Filed 4/9/14 P. v. Limon CA3
NOT TO BE PUBLISHED
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent, C070153
v. (Super. Ct. No. 09F9306)
GREGORY MATTHEW LIMON,
Defendant and Appellant.
After hearing evidence of gruesome and cruel injuries suffered by a seven-year-
old boy, J., a jury convicted defendant Gregory Matthew Limon of felony child
endangerment (Pen. Code, § 273a, subd. (a)),1 being an accessory after the fact (§ 32),
and resisting a peace officer (§ 148, subd. (a)(1)). The trial court sentenced defendant to
serve six years in state prison.
On appeal, defendant contends (1) there was insufficient evidence of corpus delicti
for the child endangerment conviction, (2) he received ineffective assistance of counsel
when his trial attorney argued that, if anything, he was guilty of misdemeanor child
1 Undesignated statutory references are to the Penal Code.
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endangerment, and (3) his trial attorney was ineffective for failure to object to the
admission of statements he gave in violation of his Miranda rights.2
We conclude the evidence established corpus delicti for the child endangerment
conviction. Defendant did not receive constitutionally deficient representation because
both grounds for which he complains were consistent with reasonable tactical decisions
by defense counsel. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
On December 11, 2009, Shasta County Sheriff’s Deputies Nathanial Benton and
Dave Peery were accompanied by Children and Family Services social worker Laurie
Schaller when they conducted a welfare check on seven-year-old J. At approximately
2:00 p.m., they arrived at a mobile home located at Rhonda Road in Anderson. As the
deputies approached the mobile home, they saw the door open about six inches before
slamming shut almost immediately. Deputy Benton announced the sheriff’s department
was outside and requested that whoever was behind door come outside. After repeated
requests, defendant stepped outside.
Deputy Benton explained they were conducting a welfare check on J. Defendant
stated he knew J. but had not seen him in two weeks. Defendant added that the only
person at the residence was his girlfriend, Y.G. Deputy Benton asked to enter the
residence to check for J. because the deputy was acting on information the child had
sustained serious bodily injury. Defendant refused, stating he was not the owner of the
residence and could not grant permission to enter. They continued to talk, and eventually
defendant allowed the deputies and social worker to enter. Deputy Peery stayed with
defendant outside while Deputy Benton and social worker Schaller went inside.
2 See Miranda v. Arizona (1966) 384 U.S. 436.
2
J. was found lying on a pull-out mattress of a bunk bed. The mattress had only
been pulled out 12 inches, and J. had to lie on his side to fit onto it. Within arm’s reach
of J. was a bottle of Pedialyte and a bottle of prescription medicine bearing defendant’s
name.
Deputy Benton noticed abrasions and bruising on J.’s face and he was having a
very difficult time breathing. When J. attempted to speak, “[i]t sounded like he was
constantly out of breath, in pain trying to talk.” J. said he was hurt and in pain. When the
deputy asked whether he could sit up, J. said that “he hurt too bad” to move at all.
Deputy Benton noted J. had “the appearance of extreme pain on his face.” The deputies
called for medical assistance.
When paramedics arrived, they asked Deputy Benton to help hold J. as they cut
away his clothing. Deputy Benton testified, “As they removed the victim’s clothes, I saw
numerous abrasions on his head. I saw bruising on his neck. Bruising was wrapped
around his entire torso, almost black in color, completely. The victim’s nipples appeared
to have been burned almost completely away. I noticed further bruising and abrasions
down the victim’s arms and legs.” As the paramedics carried J. out on a stretcher, he
said: “This hurts too bad. I can’t do this anymore.” When asked what had happened to
him, J. said he had hit himself a few days earlier. He was then loaded into an ambulance.
Deputy Benton asked defendant why he had lied about J. not being at the
residence and how he could just leave J. lying in the bedroom in that condition.
Defendant responded that he had not understood the deputies to need to talk to J. and J.
was “fine.”
3
Eventually, defendant’s sister, Rachel Limon, arrived at the mobile home.3 Upon
seeing the officers, she told them: “I know you’re going to take me to jail, so just take
me.”
Due to the nature of his injuries, J. was air-lifted from the local hospital to the
regional trauma center, University of California at Davis Medical Center in Sacramento.
Dr. Kevin Coulter, a pediatrician at the medical center, examined J. when he arrived and
admitted him to the pediatric intensive care unit. J. was injured “throughout all parts,
external and internal, to his body.” He had abrasions on his head and “a cauliflower ear”
that had a swollen abnormal configuration. Cauliflower ear is usually “a consequence of
a direct blow to the earlobe.” J. had bruising on his neck and a missing tooth. The
missing tooth was located in the back of his throat when x-rays were taken. J. had
apparently swallowed the tooth. Dr. Coulter opined the tooth had been knocked out by a
blow to the mouth.
J. had 13 broken ribs –- 7 fractured ribs on his right side and 6 on his left side. He
had ribs that were not only cracked, but completely broken off. This trauma was
consistent with blunt-force trauma having sufficient force to break the ribs off. Dr.
Coulter noted this would usually involve “a high-kinetic energy event” such as “major
accidents, motor vehicle accidents, severe falls, crushing injuries, very high-energy
events.” The rib injuries were one to two weeks old. Due to these injuries, blood was
filling the surface of J.’s lungs and causing further injury. J. needed a blood transfusion
in the emergency room. Without treatment, the rib and lung injuries could have been
fatal. Dr. Coulter noted, “The severity of his fractures was extraordinary. The pain
would have been severe. It would have been painful to do pretty much anything. Any
kind of movement of his chest would hurt.”
3 Due to shared surname with defendant and for the sake of clarity, we refer to his
sister by her first name.
4
The nipples on J.’s chest had recently been burned. J. also had linear abrasions
and bruises on his chest, back, and abdomen. These injuries “looked like he had been
struck with a belt-type instrument.”
J. had fractured backbones, the type of injury typically caused by blunt-force
trauma. Bones in both of J.’s arms and hands were fractured. At least one of these
injuries “had been there for some time.” The broken fingers raised “concerns for
inflicted injuries.”
J.’s liver and spleen had been lacerated in a manner consistent with blunt-force
trauma. His genitals and surrounding area were bruised.
Dr. Coulter concluded, “[T]his child suffered severe blunt-force trauma. In my
opinion these are inflicted injuries.” J. could not have inflicted his injuries upon himself.
Instead, “[s]omebody hit him with extreme force.” Dr. Coulter opined that “if someone
was carefully –- was watching him and looking at him, [a person] would recognize that it
was hurting him to even take a breath and that breathing was becoming difficult.” J. was
far too injured to run, play, or “act like a normal 7-year-old child.”
Later on the day J. was taken to the hospital, defendant was interviewed by
Detective Eric Magrini at the sheriff’s department. A video recording of the interview
was shown to the jury and a transcript was provided. The interview began with defendant
being advised he was not under arrest and was free to leave. Defendant stated his sister,
Rachel, had called him earlier in the day and asked him to take care of J. while she took
care of errands. Defendant and his girlfriend took J. with them while they went to look
for a new apartment in which to live. J. did not complain of any pain and walked with
them as they viewed approximately eight apartments. When they got back, J. got himself
something to eat and watched a movie. Defendant denied seeing any injuries on J.
because the child was wearing a long-sleeve shirt and beanie hat.
Based on inconsistencies in his story, defendant was informed he was being
detained and read his Miranda rights. When asked if he wanted to keep talking,
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defendant responded: “Just keep silent.” The detective told defendant J. was in dire
condition and asked how the injuries were inflicted. Defendant denied knowing anything
about how the injuries were caused. After being told Rachel was “confessing to a lot of
this,” defendant admitted he had seen J.’s face had “[j]ust a bunch of scratches and shit
and that’s it.” But defendant said he “didn’t pay attention to that.” Defendant stated the
penicillin bottle found near J. had been prescribed for defendant when he had his tooth
pulled.
Detective Brian Jackson joined the interview and told defendant they knew Rachel
had been hitting J. Defendant denied ever seeing Rachel hit J. and stated, “Think that, I’ll
just keep my mouth shut then.” The detective continued to talk about J., and defendant
eventually admitted seeing Rachel once hit J. in the head and throw him onto the ground.
Defendant saw J.’s face “was a little bit fucked up. And that’s it.” The whole episode
made defendant uncomfortable and he left.
Defense Evidence
The defense called J.’s first-grade teacher, who testified J. was part of her class
during the 2008 to 2009 school year. Although she observed J. had a black eye at one
point, she made no report even though she was a mandated reporter.
L.G., the sister of defendant’s girlfriend, testified that in December 2009 she
called Child and Family Services to report her concern for J. She did not believe
Rachel’s assurances J. “was doing fine and everything” because the boy appeared to be
bruised on the cheek.
Defendant’s mother testified she owned the mobile home on Rhonda Road where
J. was found. Rachel was living at the mobile home in December 2009. Defendant lived
there as well “off and on over a period of years.”
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DISCUSSION
I
Corpus Delicti for the Child Endangerment Conviction
The corpus delicti rule requires the prosecution to prove the commission of a
crime without relying solely on the defendant’s extrajudicial admissions. (People v.
Alvarez (2002) 27 Cal.4th 1161, 1168–1169 (Alvarez).) The rule is intended to ensure
one will not be falsely convicted, by his or her untested words alone, of a crime that
never happened. (Ibid.) Here, defendant contends no evidence –- aside from his
admissions to the deputies –- was introduced at trial to establish the corpus delicti for
child endangerment. The contention has no merit.
The Attorney General asserts the issue has not been preserved for appeal because
defendant did not object in the trial court to the lack of evidence of corpus delicti. In
arguing the issue, defendant acknowledges he did not object in the trial court on this
ground. However, defendant relies on Alvarez, supra, 27 Cal.4th 1161, to contend an
objection at trial is not necessary to preserve the issue. While Alvarez noted a split of
authority on whether a prior objection is necessary to preserve the issue, the Supreme
Court declined to resolve the conflict. (Id. at p. 1172, fn. 8.) We also need not resolve
the issue because the evidence of corpus delicti was ample and uncontradicted.
Dr. Coulter’s testimony supplied the necessary corpus delicti when he testified J.’s
injuries could not have been self-inflicted but were caused when “[s]omebody hit him
with extreme force.” Moreover, Dr. Coulter’s testimony established J.’s condition
rendered someone grossly negligent in allowing him to languish without obviously
needed medical attention. The corpus delicti rule requires no more than proof of “ ‘the
commission of a crime by somebody, i.e. “the fact of the injury, loss, or harm, and the
existence of a criminal agency as its cause.” ’ (Alvarez, supra, 27 Cal.4th at p. 1168.)”
(People v. Miranda (2008) 161 Cal.App.4th 98, 107, italics added.) No evidence
contradicted Dr. Coulter’s testimony.
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Defense counsel admitted during closing arguments that defendant was guilty of
misdemeanor child endangerment after he observed J.’s facial injuries but took no action.
Nonetheless, defendant now asserts no evidence showed defendant was guilty of
neglecting the duty of care for J. The contention misapprehends the function of the
corpus delicti rule, which requires only that someone committed the charged offense.
“That person need not be the accused; it could be anyone. For that reason, ‘[p]roof of the
corpus delicti does not require identity of the perpetrators. It is not necessary that it
connect the defendant with the commission of the crime although it may do so.’ (People
v. Cullen (1951) 37 Cal.2d 614, 624.)” (People v. Rivas (2013) 214 Cal.App.4th 1410,
1428, fn. omitted.) Accordingly, we reject defendant’s corpus delicti challenge.
II
Claim of Ineffective Assistance of Counsel During Closing Arguments
Defendant next contends he received constitutionally deficient representation
when his trial attorney argued he was guilty of no more than misdemeanor child
endangerment. We disagree.
A.
Defense Counsel Admission that Defendant Committed Misdemeanor Child
Endangerment
During closing arguments, defendant’s trial attorney argued to the jury:
“What you have in the jury instructions is a description of misdemeanor child
abuse. And that description, the information that [defendant] had at the time that he’s
conveying to the officer, that’s misdemeanor child abuse. And he didn’t want to get
blamed for that. That’s not the nicest thing. That is not an altruistic reason for any of his
statements. But that is consistent; that is consistent with what he did. That is consistent
with the evidence that you have aside from [defendant]; the evidence from the doctor, the
evidence from Deputy Benton and [Deputy] Peery.
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“And so when you’re evaluating that critical analysis from the video as well as the
evidence that you have, that is something that you have to consider. Because again, the
jury instruction 224, circumstantial evidence, if there are two reasonable explanations,
you must accept the one that points to innocence. You don’t –- it’s not a do I think this
one is more likely, do I think this one is more likely. If there are two reasonable
explanations –- and it is reasonable, it is not polite, it is not good, it is not morally
upright, but it is reasonable to not want to be charged with child abuse that you didn’t do.
And it is reasonable for a person in [defendant]’s circumstances to believe that a slap to
the head, the child falling to the ground, and the marks on the face did not indicate death
or great bodily injury.”
Defendant’s trial attorney further argued for the misdemeanor child endangerment
charge by stating: “And quite frankly, that is probably [the] one given the fact that
[defendant] had seen Rachel hit the child before, that he did see marks on his face, and he
called her stupid for her actions, you may very well find him guilty of that [misdemeanor]
child abuse statute, that he had care and custody of the child that day and knew that there
was something wrong; not that he knew death or great bodily injury were likely, [or] that
they had a high possibility [as] the result.”
B.
The Right to Effective Assistance of Counsel
A criminal defendant is entitled to the effective assistance of legal counsel.
(Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674].) However, we
reverse a judgment for ineffective assistance of counsel only when a defendant
demonstrates “ ‘(1) counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms, and (2) counsel’s deficient
performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s
failings, the result would have been more favorable to the defendant.” (People v. Riel
(2000) 22 Cal.4th 1153, 1175 (Riel).)
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“It is not deficient performance for a criminal defendant’s counsel to make a
reasonable tactical choice. (E.g., People v. Fairbank (1997) 16 Cal.4th 1223, 1243;
People v. Jones (1997) 15 Cal.4th 119, 182 (plur. opn.).) Reasonableness must be
assessed through the likely perspective of counsel at the time. ‘[I]t is all too easy for a
court, examining counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.” ’ (Strickland v. Washington
(1984) 466 U.S. 668, 689.)” (People v. Ochoa (1998) 19 Cal.4th 353, 445-446, fn.
omitted.)
C.
Defense Counsel Pursued a Reasonable Strategy Based on the Evidence
Even though his trial attorney admitted to the jury that defendant had committed
misdemeanor child endangerment, defendant did not receive ineffective assistance of
counsel. When there is strong evidence of guilt, as in this case, defense counsel may
reasonably conclude the best trial strategy involves concession of some culpability in
order to offer the jury some other option favorable to defendant. For example, in People
v. Bolin (1998) 18 Cal.4th 297, the California Supreme Court noted, “[g]iven the
overwhelming evidence of defendant’s guilt” concession of guilt as to a lesser offense
was a reasonable trial tactic. (Id. at p. 334-335.) Moreover, the concession preserved
counsel’s credibility in later arguing circumstances in mitigation. (Ibid.) Elsewhere, the
California Supreme Court has noted, “ ‘[g]ood trial tactics demand[] complete candor’
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with the jury.” (People v. Jackson (1980) 28 Cal.3d 264, 293, disapproved on another
point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
With the admission into evidence of defendant’s statements to officers that he had
seen Rachel hit J. in the head before throwing him to the ground and saw the scratches on
J.’s face on the day of the welfare check, defense counsel could reasonably have
concluded an acquittal of all charges was unlikely. By conceding the charge of
misdemeanor child endangerment, defense counsel preserved her credibility in arguing
defendant should be acquitted of felony child endangerment. Defense counsel relied on
the videotape to urge the jury to conclude defendant consistently stated he saw only a few
scratches on J.’s face.
Moreover, admitting the misdemeanor allowed defense counsel to use the
videotaped interview to support her arguments against conviction for being accessory
after the fact. Specifically, defense counsel argued the videotaped interview exonerated
defendant because he provided Rachel’s contact information to the officers. To this end,
she urged the jury to conclude the videotape showed defendant “is giving as much
information to find Rachel, to get her here, to get her responsible for this situation, as he
can.”
In short, defense counsel made a reasonable tactical decision to admit culpability
for misdemeanor child endangerment so she could rely on an otherwise inculpatory
videotape to argue (1) defendant committed no more than misdemeanor child
endangerment because he saw only a few scratches on J., and (2) he was sufficiently
helpful to the officers to acquit him of being an accessory after the fact. We conclude
defendant’s trial attorney was not constitutionally ineffective for pursuing a reasonable
strategy based on the evidence.
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III
Claim of Ineffective Assistance of Counsel for Failure to Move to Exclude the
Videotape on Miranda Grounds
Defendant next contends his trial attorney was ineffective for failure to object to
the videotape on grounds it violated his Miranda rights. We reject the contention.
As we have noted, a defendant does not receive ineffective assistance of counsel
when his or her attorney makes a reasonable tactical decision during trial. (People v.
Ochoa, supra, 19 Cal.4th at pp. 445-446.) The question of whether to object to a
particular piece of evidence generally constitutes a tactical decision. (People v. Hayes
(1990) 52 Cal.3d 577, 621) And, “because trial counsel’s tactical decisions are accorded
substantial deference [citations], failure to object seldom establishes counsel’s
incompetence.” (Ibid.) Thus, we reject a claim of ineffective assistance when the record
suggests a reasonable explanation for failure to object. (People v. Riel, supra, 22 Cal.4th
at p. 1185.)
Even if we assume the deputies violated defendant’s Miranda rights during his
interview on the day J. was taken to the hospital, we would nonetheless reject the claim
of ineffective assistance of counsel. As we explained in part II C., defense counsel made
a reasonable tactical decision not to dispute the contents of the videotaped interview, but
rather to rely on the videotape in arguing against conviction of felony child endangerment
and being an accessory after the fact. Deputy Benton’s testimony at trial redundantly
established that J.’s face appeared scratched and connected defendant with J. at the time
of the welfare check because both were inside the same home. Thus, if the videotape was
excluded, defense counsel would lose the ability to use defendant’s statements to argue
against conviction on two felony counts (felony child endangerment and being an
accessory after the fact). For this reason, we conclude defendant did not receive
ineffective assistance of counsel when his trial attorney failed to object that his
videotaped interview should be excluded on grounds his Miranda rights were violated.
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DISPOSITION
The judgment is affirmed.
HOCH , J.
We concur:
RAYE , P. J.
HULL , J.
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