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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Cheryl Lynn STEGER, Defendant and Appellant.

Cr. 21709.

Decided: March 27, 1975

Volney F. Morin and James B. Rives, Los Angeles, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Jack T. Kerry, Deputy Attys. Gen., for plaintiff and respondent.

A jury found Cheryl L. Steger guilty of first degree murder in the death of Kristen Steger, the three year old daughter by a former marriage of Ralph Steger, defendant's husband. Ralph was jointly charged and tried with defendant. The jury found him guilty of the lesser offense of violating Penal Code section 273a(2). Only defendant Cheryl appeals from the judgment.

On July 30, 1971, at 9:33 p. m., a rescue ambulance of the Los Angeles Fire Department was dispatched to 16232 Malden Street. Fireman Gates and his partner were met by the sister of the defendant Cheryl Steger and were informed that there was a child in the house who was having difficulty breathing.

Fireman Gates found Kristen, the victim, lying on a couch in a bedroom with codefendant Ralph Steger giving the child mouth to mouth resuscitation. Fireman Gates in searching for signs of life shined his flashlight into the child's eyes and established the fact that there was full pupil dilation. He had been taught in his rescue training that this was an unfavorable sign. He picked up the child and drove her to Valley Emergency Hospital accompanied by the defendant and codefendant. Prior to departure he alerted the hospital and enroute attempted mechanical resuscitation and closed chest cardiac massage with no response from the child.

The defendant and codefendant who identified the child as Kristen Steger and themselves as her parents held brief conversation with Fireman Gates during the seven minute ride to the hospital. When Gates asked ‘what happened’ the defendant replied, ‘She had pain in her left hip and went to bed. I checked her and thought she was not breathing.’ The defendant also stated that the child had been out of her sight not longer than five minutes.

When asked about bruises which the fireman noted on the child's head, defendant responded, ‘She fell today.’ When asked about bruises on the child's legs, she replied ‘She fell there, too, playing.’

Nurse Rosemary Colasardo, a registered nurse of some twenty-five years experience with eight years in emergency first aid saw the child on her arrival at the hospital at 9:47 p. m. She ordered that the police be notified on seeing the extent of injuries to the child's body. Nurse Colosardo testified that ‘There wasn't two inches of her body that didn's have black and blue marks.’ She was of the opinion from the stiffness of the body that the child had been dead for several hours.

The emergency room doctor, Frederick Condo who examined the child on arrival, detected no vital signs and determined from the fact that rigor mortis set in during his examination at around 11:00 p. m. that the death had occurred at some time between 4:00 and 6:00 p. m. He testified that rigor mortis occurs anywhere from six to ten hours after death.

Dr. Condo also noted a large laceration on the child's chin of at least several days duration and a depressed skull fracture. He also observed post mortem lividity or blood pooling on the victim's body. He, too, ordered that the police be advised because of the condition of the child.

The autopsy surgeon Generoso Villano determined that the cause of death was a subdural hemorrhage in the soft brain tissues, one of massive proportions occurring possibly within twenty-four hours of death but more probably within twelve hours. He also noted a deep laceration of the chin, multiple contusions in the face, hemorrhaging in the intestines, liver and adrenals and generalized hematoma associated with bruising over much of the body.

He testified that much of the damage to the internal organs must have been caused by heavy blows rather than from mere falls and from their nature must have caused severe pain and suffering to the child. He also stated that the type of injuries were of the serious traumatic nature commonly encountered when children are involved in automobile accidents.

Two other physicians contributed their observations that the variety of injuries and varying ages of injuries indicated that the child was subjected to repeated trauma not associated with either self-inflicted injuries or mere childhood falls. For example, a green stick fracture of Kristen's arm was at least ten days old prior to its being noted by x-ray examination. This same fracture had been noted by nurses on Kristen's arrival at the Valley Hospital as a ‘puffiness of the arm’. One of these physicians opined that the injuries suffered by Kristen were consistent with the battered child syndrome.

The defendant made two lengthy statements to the investigating officers. The first, given after full ‘Miranda warning,’ by the officer occurred at 1:00 a. m. on July 31. The defendant initially revealed that she had only been married to her codefendant for some few days but had been living with him for some months prior thereto.

Defendant, in her statement, denied any severe beating of the child and variously attributed the head injury to Kristen having been struck by a playground swing seat or from having fallen from her bike. She admitted to striking the child on the buttocks and occasionally on the face and back. She claimed, however, that Kristen bruised easily.

She related that on the night of Kristen's death that she had struck Kristen on the bottom because of a toilet training accident and then at Kristen's request had put her to bed shortly before seven o'clock because Kristen complained of her leg hurting. Defendant maintained the child refused dinner and remained in bed. Defendant stated she checked on her every few minutes. At about 9:00 p. m., defendant went into the bedroom to talk to Kristen and discovered Kristen was not breathing whereupon she called her husband. Defendant claimed the child's deep chin laceration came about as a result of the child's tripping on the patio doorway and she stated that other than spankings for discipline purposes, neither she nor her husband struck the child any heavy blows.

Following her statement and during the same day, defendant approached a female jailer and spontaneously stated, ‘I want to see a detective. I want to make a full confession. I want you to know that I did it. I beat her. My husband didn't do it. He shouldn't be in jail. He didn't do it. I did it.’

Sergeant Melton who had taken the original statement was called. Sergeant Melton obtained a written statement in which defendant admitted that Kristen had been annoying her for the past week and she had spanked her. She also admitted hitting her six or seven times on the back with her fist, striking her with a belt, knocking her to the floor twice so as to cause the child's head to collide with a wall on one of the occasions.

While testifying on her own behalf defendant admitted striking the child with a sandal type shoe, a belt and poking the child in the sternum area with her pointed and rigid finger. She admitted responsibility for all the injuries to Kristen except those caused by the child's falls.

Certain photographs of the defendant's hands showing them to be swollen, puffy and discolored near the knuckles were admitted into evidence. These were explained by defendant as having occurred in accidents while cleaning the house.

Ralph Steger related in his testimony and in two extrajudicial statements that he had brought Kristen and her sister Tracy to California from Kansas where they had been residing with his ex-wife about a month before Kristen's death. She was in apparent good health at the time when he received the child from his ex-wife and had only a few bruises on her knees and a healed scar on her nose.

He was aware that defendant disciplined Kristen at times by administering spankings and slaps on the buttocks and face but was never aware that the child was being mistreated. He had, however, noted bruises on the child's body at a swimming pool a week prior to the death and had been told by defendant of a head injury to Kristen from a fall from a tricycle shortly after her arrival in California. He was not aware of any permanent or major damage to the child. In brief, his testimony mirrored that of defendant's to the effect that the child was disciplined by frequent slappings and spankings with a slipper or shoe sole but never to the extent of having been beaten. He reiterated frequently the theme of the defendant that the child was difficult to handle, clumsy in her movements, fell often and that she bruised easily.

Ralph Steger last saw the child alive on the night preceding the day of her death. He left the house on Friday, July 30, without seeing Kristen and on his return home at 9:00 to 9:15 p. m. that night, he was told by defendant that Kristen was put to bed for discipline and not to see her. He believed that he heard Kristen making sounds in the bedroom but heeded defendant's admonition not to approach the child. Within a few minutes of his arrival defendant went to the bedroom and emerged with her report that all was not well with Kristen. He then went to his daughter and attempted resuscitation.

Defendant first urges error in the admissibility of her incriminating statements. She contends that the confessions and admissions were inadmissible because of lack of voluntariness, lack of informed waiver of her right to remain silent and improper inducement by the interrogating officers.

It is our duty as the reviewing court to determine independently from the record whether the confessions were voluntary. (People v. Trout, 54 Cal.2d 576, 6 Cal.Rptr. 756, 354 P.2d 231; People v. Sanchez, 70 Cal.2d 562, 75 Cal.Rptr. 642, 451 P.2d 74.) The prosecution bears the burden of showing the voluntariness of such incriminating statements. (People v. Berve, 51 Cal.2d 286, 332 P.2d 97.) The use in evidence of an involuntary confession constitutes a denial of due process under both California and Federal Constitutions. (People v. Kendrick, supra, 56 Cal.2d 71, 14 Cal.Rptr. 13, 363 P.2d 13.)

The warning as to defendant's rights was clear and explicit and complied in all respects with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 123 L.Ed.2d 977. Her response when she was queried as to her understanding of her rights and what she was waiving by consenting to confess was clear and unequivocal, betraying no lack of understanding. The colloquy which was recorded leaves no doubt that she was fully aware of her rights as a suspect. (People v. Johnson, 32 Cal.App.3d 988, 109 Cal.Rptr. 118.)

Defendant now claims that her waiver was involuntary by attempting to show that the motivating cause for her confession was to exonerate her husband from suspicion. At the outset, there is nothing in the record to suggest that Sergeant Melton promised defendant that he would release Ralph in return for her testimony or other cooperation. If the defendant somehow independently conceived the idea that her cooperation in confessing would procure the release of her husband, such self-delusion is not that type of inducement which renders a confession involuntary. (People v. Boggs, 255 Cal.App.2d 693, at 700, 63 Cal.Rptr. 430.) The fact that a defendant believes or hopes that his confession may free others from suspicion does not render his confession involuntary. (People v. Kendrick, supra; People v. Trout, supra; People v. Rand, 202 Cal.App.2d 668, 21 Cal.Rptr. 89.)

In the instant case there were no improper inducements held out to defendant nor were there any discussions of leniency or favorable treatment for anyone. We conclude that the confessions were voluntary in every sense of the word. (See People v. Hill, 66 Cal.2d 536, 58 Cal.Rptr. 340, 426 P.2d 908.)

Defendant next claims error in allowing the introduction of the codefendant's statements implicating the defendant. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the court held that admission into evidence of extra-judicial statements of a codefendant who does not take the stand which implicate a defendant, violates the latter's constitutional right to confrontation.

Subsequent to Bruton, however, the Supreme Court in Nelson v. O'Neil, 402 U.S. 622, 626–627, 91 S.Ct. 1723, 29 L.Ed.2d 222, noted that the confrontation guaranteed by the Constitution was confrontation at trial. The absence of the defendant at the time when his codefendant made incriminating statements concerning him is immaterial so long as the codefendant is available for cross-examination. The Constitution (Sixth and Fourteenth Amendments) is violated only by the denial of cross-examination. (See also United States v. Zito, 9 Cir., 451 F.2d 361; People v. Sosa, 26 Cal.App.3d 514, 103 Cal.Rptr. 58.)

In the instant case the codefendant not only took the stand thus satisfying Bruton and Nelson requirements of confrontation but in his testimony gave complete and unswerving corroboration of defendant's version of her treatment of Kristen.

Defendant contends that she was inadequately represented by counsel at trial. Her allegations in that regard have no more substance than those made by defendant in People v. Eckstrom, 43 Cal.App.3d 996, 118 Cal.Rptr. 391, and are entitled to no more sympathetic consideration than was given by the court in that case.

The trial court did not abuse its discretion in permitting the jury to view the gruesome photographs. It is the province of the trial court to determine whether the probative value of photographic evidence outweighs any possible prejudicial effect. (People v. Salas, 7 Cal.3d 812, 103 Cal.Rptr. 431, 500 P.2d 7; People v. Terry, 2 Cal.3d 362, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Boggs, supra, 255 Cal.App.2d 693, 63 Cal.Rptr. 430; People v. Darling, 58 Cal.2d 15, 22 Cal.Rptr. 484, 372 P.2d 316.)

Since the theory of the defense was that any death causing injury was of unknown origin and that only routine parental correction had been given to the child, the nature, location and age of the injuries were probative in negating their accidental origin. In view of the manifold trauma the photographs were relevant to the question of whether or not the defendant had literally battered the child to death.

The attending surgeon, autopsy surgeon, and other physicians as well as police personnel were clearly and properly assisted in their presentation to the jury by reference to the condition of the body as reflected by the photographs.

Lastly, defendant contends that the evidence is insufficient to support a judgment of conviction for first degree murder on the theory of torture and that it was error for the court to instruct on that form of first degree murder.

CALJIC 8.24 which was read to the jury and which correctly states the law reads as follows:

‘Murder which is perpetrated by torture is murder of the first degree. The essential elements of such a murder are (1) the act or acts which caused the death must involve a high degree of probability of death, and (2) the defendant must commit such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose. The crime of murder by torture does not necessarily require any proof that the defendant intended to kill the deceased, nor does it necessarily require any proof that the deceased suffered pain.’

As stated in People v. Pickens, 269 Cal.App.2d 844, at 851, 75 Cal.Rptr. 352, at 356, ‘Murder by torture is characterized by the intent of the defendant to inflict grievous pain and suffering upon his victim either for purpose of revenge, extortion, persuasion or to satisfy some sadistic impulse [Citations.].’ (See also People v. Washington, 71 Cal.2d 1061, 1038, 80 Cal.Rptr. 567, 458 P.2d 479; People v. Anderson, 63 Cal.2d 351, 359, 46 Cal.Rptr. 763, 406 P.2d 43; People v. Turville, 51 Cal.2d 620, 335 P.2d 678.)

When a homicide is perpetrated by means of torture the means used are conclusive evidence of malice and premeditation and the crime is murder of the first degree. (People v. Misquez, 152 Cal.App.2d 471, 313 P.2d 206.)

There must be an intent that the deceased shall suffer. The intent to cause the suffering may be inferred from the circumstances surrounding the death as well as the condition of the victim's body. (People v. Turville, supra; People v. Beyea, 38 Cal.App.3d 176, at 200, 113 Cal.Rptr. 254.) We cannot accept defendant's claim that as a matter of law the element of torture was not established.

In People v. Dalton, 201 Cal.App.2d 396, 20 Cal.Rptr. 51, where the evidence of the victim's condition showed a severe physical beating, the court found the evidence adequate to support a finding that the murder was committed by torture because the circumstances indicated that ‘the assault occurred over an extended period of time; was brutal; was of that character and that degree that pain and suffering in addition to death must have been intended; was the product of a cruel and sadistic mind; and was the culmination of a pattern of abuse and mistreatment.’ (Emphasis added.) (Page 401, 20 Cal.Rptr. page 55.)

Similarly, in People v. Gilliam, 39 Cal.2d 235, 246 P.2d 31, the defendant, a young and rather large individual, beat to death a man smaller than himself who offered no resistance. The court there stated that the jury could justifiably conclude that the defendant intended to cause cruel suffering because the attack appeared to be in response to an ‘unprovoked sadistic tendency.’

The sadistic purpose of the defendant to cause this helpless young child of little more than three years of age to suffer cruel pain and suffering was amply demonstrated by the course of conduct exhibited by defendant in the month's time in which she held the child within her power. Defendant admitted to a constant and unrelenting discipline by physical blows. Although she characterized the striking of the child as ‘slaps' and ‘spankings' it is obvious from the effect on the child's body that these were deceptive euphemisms intending to mask the true state of affairs, namely, constant beatings of an extremely brutal nature. The harsh and brutal discipline periodically administered upon the child over a 10-day period demonstrated a warped attitude by the newly substituted mother of her husband's three-year old girl by another woman to make the child suffer for a responsibility upon her which she did not desire to accept to tolerate.

The infliction of corporal punishment upon a child, even under legally sanctioned circumstances, is based upon the premise that by inflicting pain upon the child he will learn not to repeat his transgressions. Here the defendant admits that her motive in striking the child was to discipline her. From this it can be inferred that she intended to cause pain. The severity of the beating and the extent of the injury are such as to permit of the inference that the intent was to cause extreme pain and suffering.

Medical testimony showed the injuries to Kristen's body to be so severe as to have been caused only by exertion of constant and tremendous force. Bruising and bleeding by the victim was observed by both defendant and the child's father for over a period of weeks. The visible and grim effects of the mistreatment were evident to all, yet the defendant continued to inflict more grievous injury with each successive day. The suffering of the child was obvious yet it was unrelieved by cessation of punishment or medical attention. Even her last hours were spent in lonely and unattended punishment for a minor transgression. When she arrived at the hospital she had been dead for hours in spite of defendant's protestations that she had checked on the child's condition.

As was its province, the jury as the trier of fact found, under proper instruction, that defendant had indeed tortured Kristen and as a result Kristen died. There was ample evidence to support that determination.

The judgment is affirmed.

I dissent.

Our antipathy for the crime of child beating should not prevent us from correctly applying the law of homicide to the facts of this case. On the facts proved the offense falls squarely within the classification of second degree murder, an ‘unlawful killing of a human being as the direct causal result of an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with wanton disregard for human life.’ (CALJIC 8.31.) In sharp contrast, first degree murder normally requires evidence of ‘willful, deliberate and premeditated killing.’ (Pen.Code, § 189.) Concededly, no showing of premeditation or deliberate intent to kill was made here, and therefore the prosecution relied on one of the special categories of first degree murder, specifically murder by torture, to qualify the offense as murder of the first degree.1

Yet other than heavy and repeated beatings the record is devoid of any evidence of torture. There were no direct accusations or direct admissions of an intent to torture. The beatings themselves do not provide evidence of torture, as might have been the case had the beatings been accompanied by branding, systematic slashing, or certain acts of mayhem. No evidence was introduced of sadistic purpose, that it to say sexual perversion in which gratification is obtained by torture or love of cruelty as a manifestation of sexual desire. By themselves the wounds do not imply an intent to confer suffering.

In People v. Anderson, 63 Cal.2d 251, 359–360, 46 Cal.Rptr. 763, 768, 406 P.2d 43, 48, the court, in reversing a conviction for first degree murder, provided a comprehensive review of the subject of murder by torture:

‘In order to support murder by torture, the evidence must demonstrate that ‘the assailant's intent was to cause cruel suffering on the part of the object of the attack, either for purposes of revenge, extortion, persuasion, or to satisfy some other untoward propensity.’ (People v. Tubby (1949) 34 Cal.2d 72, 77, 207 P.2d 51, 54.) Thus, in Tubby the viciousness of the attack alone could not justify a murder by torture. The court stated, ‘It is too apparent to admit of serious doubt that the unprovoked assault was an act of animal fury produced when inhibitions were removed by alcohol. The record dispels any hypothesis that the primary purpose of the attack was to cause the deceased to suffer.’ (Id. at p. 78, 207 P.2d [51] at p. 55; see People v. Bender (1945) 27 Cal.2d 164, 177–178, 163 P.2d 8.)

‘Those cases in which this court has upheld convictions of murder by torture have all involved some evidence tending to prove the requisite intent. In People v. Turille (1957) 51 Cal.2d 620, 632, 335 P.2d 678, the assailants tortured the victim in order to persuade him to tell them the order to persuade him to tell them the combination to a safe. In People v. Daughterty (1953) 40 Cal.2d 876, 886, 256 P.2d 911, in which a husband was convicted of murder by torture of his wife, the couple's relationship involved prior threats, marital strife, and the husband's anger over divorce proceedings. The husband made statements prior to the killing that indicated ‘as well as an intent to kill, a wish to seek vengeance [on his wife] so as to cause her to suffer.’ (Ibid.) Furthermore, when the victim ‘was lying on the ground but still alive, he stood over her and kicked her.’ (Id. at p. 887, 256 P.2d [911] at p. 917.) Finally, in People v. Gilliam (1952) 39 Cal.2d 235, 246 P.2d 31, the defendant beat the victim to death in a jail cell over the course of an hour while two other inmates periodically attempted to stop him. The court stressed the fact that the defendant desisted from his attack only when the victim gave his last gasp.

‘In contrast, the evidence in the instant case shows only an explosion of violence without the necessary intent that the victim should suffer. Although a cigarette butt was found in one of the wounds, the flesh was not burnt; the presence of the butt alone cannot support the conclusion that defendant intended to ‘cause cruel suffering.’ (People v. Tubby, supra, 34 Cal.2d 72, 77, 207 P.2d 51.) Accordingly, the evidence was not sufficient to convict defendant of murder in the first degree on the theory that death resulted from acts of torture.' (Italics added.)

In People v. Tubby, 34 Cal.2d 72, 76–77, 207 P.2d 51, 54, the court reduced a conviction from first to second degree murder, and said about murder by torture:

‘Torture has been defined as the ‘Act or process of inflicting severe pain, esp. as a punishment in order to extort confession, or in revenge.’ Webster's New Int. Dict., 2d Ed. The dictionary definition was appropriately enlarged upon by this court in its original opinion in People v. Heslen [Cal.], 163 P.2d 21, 27, in the following words: ‘Implicit in that definition is the requirement of an intent to cause pain and suffering in addition to death. That is, the killer is not satisfied with killing alone. He wishes to punish, execute vengeance on, or extort something from his victim, and in the course, or as the result of inflicting pain and suffering the victim dies. That intent may be manifested by the nature of the acts and circumstances surrounding the homicide.’ . . .

‘. . . The test cannot be whether the victim merely suffered severe pain since presumably in most murders severe pain precedes death.’

Murder by torture envisages conduct involving cruelty for cruelty's sake, cruelty for extortion, or cruelty for revenge. It connotes the presence of a mental factor in contrast to those that are purely emotional. It requires an intent that the victim suffer (People v. Caldwell, 43 Cal.2d 864, 869, 279 P.2d 539, Traynor, J.). The record at bench has none of this, and is devoid of evidence to justify instructions on, or conviction of, murder by torture. It was error for the trial court to instruct on murder by torture and error for the jury to return a first degree verdict.

If we distort the law by affirming a judgment of first degree murder on the facts of this case, we leave no punishment in reserve for a more heinous crime involving true torture. This distortion of law is entirely unnecessary to provide suitable retribution for a crime we find abhorrent, since the punishment for second degree murder, imprisonment from five years to life, is quite severe in itself.

Under the authority of Penal Code section 1260, I would modify the judgment by reducing the degree of the crime to murder of the second degree.


1.  Penal Code section 189, provides in part: ‘All murder which is perpetrated by means of a destructive device or explosive, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, . . . is murder of the first degree . . .’

COMPTON, Associate Justice.

ROTH, P. J., concurs.