P. v. Anderson 1/30/08 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B189211

Case Date: 05/14/2008

Preview:Filed 1/30/08 P. v. Anderson CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. MARKCINE ANDERSON, Defendant and Appellant.

B189211 (Los Angeles County Super. Ct. No. TA075280)

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald V. Skyers, Judge. Affirmed.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

Markcine Anderson appeals following her conviction by jury of attempted murder, with findings she used a deadly weapon and inflicted great bodily injury. The jury found not true the allegation that appellant committed the offense willfully, deliberately, and premeditatedly. Sentenced to a term of 13 years, she contends that the following rulings constituted prejudicial error: (1) admission of a police officer's testimony that, when interviewed, appellant avoided his questions; (2) admission of a psychiatrist's opinions about appellant's veracity and motive; (3) allowing the prosecutor to comment on appellant's failure to testify; (4) alleged failure to hold a hearing on the voluntariness of appellant's Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436); (5) imposing an upper term sentence allegedly in violation of the right to jury trial. We find these rulings either were not error or were not prejudicial, and we affirm the judgment. FACTS Appellant initially pled not guilty by reason of insanity, but withdrew that plea after she was examined pursuant to Penal Code section 1027 (undesignated section references are to that code). Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that sometime between 7:00 and 8:00 a.m. on June 24, 2004, appellant, then age 36, repeatedly stabbed her nine-year-old nephew Timothy M. with a kitchen knife, at the home where they both resided, together with appellant's mother Angeline Sanders, Timothy's two brothers and cousin, and appellant's brother George Kennedy. (Timothy's father, Lacour Harrison (also Sanders's son) did not live there.) With nobody else at home, appellant entered the bedroom where Timothy was watching television, and after he stood up she stabbed him more than once in the stomach. Timothy tried to run from the room, but appellant grabbed his shirt and stabbed him in the back. She then stabbed him in the chest, both arms, and right middle finger. In shock, Timothy lay on the floor. Appellant left the room and closed the door. Timothy testified that on an occasion previous to the stabbing, appellant had come into a room in which Timothy's cousin was helping him with homework, and had struck

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Timothy in the back with a wooden snake. On another occasion, she had locked Timothy out of the house when he returned home from school. When Sanders returned to the house around 9:00 a.m., Timothy called to her, and she went to his room upstairs. Still on the floor, Timothy told Sanders appellant had stabbed him. Sanders observed a laceration in Timothy's abdomen, from which intestines were protruding, and there was blood on the floor, walls, and window. Sanders screamed, rousing her son Kennedy, who had recently returned home and fallen asleep. He covered Timothy's wounds while Sanders phoned 911. Paramedics transported Timothy to Harbor UCLA Medical Center. He arrived near death from bleeding, with several potentially fatal wounds, and underwent surgery to repair numerous organs. Timothy remained hospitalized for six weeks, and suffered scars. Kennedy went looking for appellant, whom he had seen walking toward a metro rail station as he went home. He located her at a bus stop in Carson, more than 10 miles from home. She was under police detention. Kennedy asked her why she had "done that" to Timothy, and she replied, "Timothy who? Do what to Timothy?" Los Angeles Police Detective Juan Gonzales and his partner arrived at the Sanders residence following uniformed officers. Detective Gonzales observed a seven to eightinch bloody knife by the kitchen sink, and in Timothy's room he found a blood-stained shirt with six holes in front and four in back, consistent with penetration by a knife. The detectives proceeded to the police station where appellant had been taken, and questioned her. Appellant first was read her Miranda rights, and stated she understood each of them. When then asked whether she wanted to talk about what had happened, appellant replied, "No. It doesn't matter. I didn't do anything." Appellant proceeded to make statements that Detective Gonzales characterized as having nothing to do with the investigation or the questions posed. For example, appellant said that children shouldn't be at her house; only she and her mother should be. Appellant said the children upset her. Asked about her knowledge of the offense, she remarked "Timothy who?" and said she had no idea what the detectives were talking about. 3

On cross-examination by appellant, Detective Gonzales admitted that an audio recording made of appellant's interview could not be located. Questioned extensively about appellant's having given answers unrelated to the investigation, Detective Gonzales stated that "she seemed to be giving me attitude," which he illustrated as involving rolling her eyes and staring at the wall, "as if we were wasting her time." On redirect examination, Detective Gonzales testified that other criminal suspects he had interviewed had similarly given him attitude. Then, asked how he would describe appellant's behavior, the detective replied, "Just seemed like she was avoiding the questions." Appellant's motion to strike on grounds of speculation and lack of foundation was denied. The witness then volunteered, "She was avoiding questions. She was pretty much

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