P. v. Gustafson CA1/1

Filed 3/13/13 P. v. Gustafson CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A135431 v. ZACHARY WALTER GUSTAFSON, (Solano County Super. Ct. No. FCR283609) Defendant and Appellant.

Zachary Walter Gustafson (Gustafson) appeals from his conviction of two counts of inflicting corporal injury on a child. He maintains the court erred in admitting his statement to police because he claims he asserted his right to counsel. We conclude Gustafson did not unequivocally invoke his right to counsel under Miranda,1 and affirm. PROCEDURAL AND FACTUAL BACKGROUND We set forth the background of this case to the extent necessary to address the sole issue on appeal. Gustafson is the father of the victim in this case, four-year-old T.C. On Friday, March 25, 2011, T.C.’s mother Amanda dropped him off at Gustafson’s home for the weekend. T.C. had no injuries at the time, other than a fading bruise on his face. On Sunday, the day Amanda was to pick up T.C., Gustafson became frustrated while wrestling with T.C. and admitted to police he kicked him in the stomach “[w]ay harder than you should kick a 4 year old.” Later in the evening, Gustafson became angry

1 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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at T.C. and punched him in the stomach “way harder than I should’ve hit a kid.” T.C. “grabbed his stomach and fell on the ground.” As T.C. lay on the ground crying, Gustafson told him to “quit being a wha-wha.” He grabbed T.C. by the neck and carried him to the bathroom, where he put him in the tub. Gustafson then went to his room and smoked marijuana. T.C. got out of the tub and came to Gustafson’s room, where he told him he was cold. He then fell to the ground and “pooped and blood came out of his butt.” Gustafson “freaked out” and went to the home of a neighbor, Doyl Bean, who advised him to call 911. Instead, Gustafson called his girlfriend, and then the boy’s mother. T.C.’s mother picked him up and took him to a Kaiser emergency room. T.C. required a blood transfusion for internal bleeding, and was treated for abdominal injuries including a lacerated spleen, cuts to his neck, and petechiae. T.C. repeatedly told the treating physician Gustafson kicked him. Due to the severity of his injuries, he was transferred to a pediatric intensive care unit at U.C. Davis Medical Center, where he was treated by Dr. Coulter, a specialist in child abuse. Dr. Coulter opined T.C.’s “very unusual” injuries were “inflicted . . . [including] strangulation type,” consistent with someone kicking or punching him, not by a dog jumping on him as Gustafson initially told police. The Solano County District Attorney charged Gustafson with three felony counts of inflicting corporal injury on a child. (Pen. Code, § 273d, subd. (a).)2 As to the first count, there was an allegation that he inflicted great bodily injury on a child under the age of five. (§ 12022.7, subd. (d).) The jury found him guilty of two counts, and found true the enhancing allegation. The court sentenced him to 11 years 4 months in prison. This timely appeal followed. DISCUSSION Gustafson’s sole claim on appeal is the court erred in admitting evidence of his statement to police because he invoked his right to an attorney under Miranda.