Opinion
F082484
02-23-2023
THE PEOPLE, Plaintiff and Respondent, v. BEANT KAUR DHILLON, Defendant and Appellant.
Cliff Gardner and Daniel Buffington, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF175768A Kenneth C. Twisselman II, Judge.
Cliff Gardner and Daniel Buffington, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
This case stems from the death of an infant born to defendant Beant Kaur Dhillon's 15-year-old daughter Jane, who gave birth alone in a bathroom of her family's home. After discovery of the infant's body buried behind the family's house, defendant was accused of drowning the child and failing to seek medical assistance for Jane after she gave birth. Defendant was convicted by jury of first degree murder (Pen. Code, § 187, subd. (a); count 1), assault on a child (the baby) under the age of eight years resulting in death by means of force likely to produce great bodily injury (§ 273ab, subd. (a); count 2); and willful harm, injury or endangerment of a child (Jane) (§ 273a, subd. (a); count 3). The trial court sentenced defendant to a determinate term of four years on count 3, followed by a consecutive indeterminate term of 25 years to life on count 1. The court imposed a term of 25 years to life on count 2, which was stayed under section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
At trial, a forensic pathologist opined the infant's cause of death was drowning based solely on defendant's confession to police. Defense counsel failed to object to this testimony, and we agree with defendant that this constituted ineffective assistance of counsel (IAC). We conclude, however, there is no reasonable probability that, but for the admission of this opinion testimony, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) Additionally, finding no instructional error and concluding there is substantial evidence to support the jury's verdict on count 2, we affirm.
FACTUAL BACKGROUND
Defendant and her late husband, Jagsir, were both born in India; they came to the United States separately. Defendant originally came to the United States with her first husband, whom she divorced after three months of marriage in 1999 because he was addicted to drugs, and his father abused defendant. Defendant then married Jagsir in 2002 and, while living in New York, they had two children: eldest daughter Jane and younger son J.S. Although defendant obtained permanent resident status, Jagsir was unable to achieve legal status in the United States. Defendant had received nursing training in India and worked as a certified nursing assistant after her marriage to Jagsir. By all accounts, Jagsir was physically and emotionally abusive to defendant and the children, and defendant tried to leave him on several occasions, once driving from New York to Indiana with the children after Jagsir had beaten her. Due to the stress and abuse in the household, Jane started cutting herself, became depressed and attempted suicide in 2016 when she was 13 years old. Also by 2016, defendant's nephew Bakshinder and defendant's parents were living with the family in New York.
In November 2016, the family moved to Bakersfield, California, along with Bakshinder and defendant's parents; another nephew of defendant's named P. was also living with them in California. In January 2017, Bakshinder, who was about 23 or 24 years old at the time, began molesting 14-year-old Jane, and Jane became pregnant in 2018. Jane and Bakshinder visited an abortion clinic in the summer of 2018 where an ultrasound was performed but, by Jane's account, when they returned for a second appointment, Jane's pregnancy was too advanced for an abortion. The clinic's managing physician indicated Jane was seen for a second time on July 10, 2018, at 17.6 weeks along, but the clinic performs abortions until 19 weeks and five days.
On November 12, 2018, after experiencing labor pains since the previous day, Jane locked herself in the family's upstairs bathroom, filled the bathtub with a few inches of water, and delivered the baby by herself in the bathtub. According to Jane, she pulled the umbilical cord from the placenta, wrapped the baby in a shawl, and laid down on the floor with the baby. She did not drain the bathtub water. She later told police she tied the cord in a knot, but at trial could not remember doing so. The baby was crying and Jane unsuccessfully attempted to nurse him. By this time, defendant, Jane's mother, was knocking on the bathroom door and managed to get inside. At trial, Jane described seeing Bakshinder and her mother in the bathroom when the door was opened and her mother asking about the identity of the baby's father, but she could not recall telling her mother she had been raped. She could not recall who picked up the baby; she thought perhaps it was her mother, but conceded it could have been Bakshinder. After he was taken from her, Jane remembered hearing the baby crying as though he were being taken out of the bathroom and down the stairs. She did not see her mother or anyone else do anything to the baby. The next thing Jane remembered was being taken to the shower in her mother's bedroom by either her mother or her grandmother, and then she got into her mother's bed.
Jane's father, who typically worked until 2:00 a.m., returned to the house at some point, and Jane could hear her parents talking although not what they were saying. Jane never had any specific conversation with anyone the next day about what had happened; she was never taken to the doctor nor was she asked if she wanted to go; other than her mother and grandmother, no one attended to her; and her parents told her not to say anything about what had happened because it would be a "big embarrassment" and would bring shame to the family. Bakshinder later told Jane the baby was given up for adoption, which she chose to believe. Ultimately, the baby died that night and was buried in the backyard of the family's home.
On February 26, 2019, Jagsir became irate with Jane and, in front of Jane's brother J.S., told Jane the baby had died, and it was buried in the backyard. Jane went to school, but she was very upset and told a counselor that her father had threatened her. The counselor called the police, and officers responded to Jane's school. Jane told officers about her father's threats, but when they said she might still have to return home, she told them about the baby.
According to responding officers, Jane told them she had a baby in 2018 and, while she had been told the baby was adopted, she believed it might be buried in the backyard of her home; she identified the baby's father only as a boy from school. Jane said she had delivered the baby alone in a bathroom at her home; after the delivery, there was blood everywhere and the baby started crying. Jane said she screamed for help, but no one came, and she passed out. She awoke in her grandmother's bed, and the baby was gone. She said her brother told her the baby was buried in the backyard.
Officers also questioned J.S. at his school. J.S. told them when the baby was born, Jane was in the bathroom for a long time, and when their mother opened the bathroom door, J.S. saw Jane's feet and a lot of blood and he fainted. J.S. mentioned he heard a baby crying, but did not see one. At some point in time, J.S.'s mother had told him the sound of a baby crying was from her cell phone. When J.S. awoke after fainting, he was in his grandmother's bed, and his cousin P. told him the baby had been taken to a fire station and adopted. He also reported that when he awoke from fainting and was in his grandmother's bedroom, he saw his mother carrying a heavy-appearing garbage bag down the stairs. J.S. did not see where the bag was taken, but he thought it was taken into the backyard. He said Jane told him about the backyard, and he believed the pregnancy occurred because Jane had been raped.
Officers then interviewed defendant at home. Defendant described discovering that Jane had locked herself in the bathroom, defendant opened the bathroom door with a key, and saw a lot of blood. Defendant denied hearing the baby cry before she opened the bathroom door. When defendant asked Jane what had happened, Jane said someone had raped her in the locker room at school, and she showed defendant the baby under the sink. Defendant said the baby was not crying, breathing or moving; he appeared white and bluish in color, and he was dead. Defendant did not see how developed the baby was, but Jane said she was eight months along. Defendant indicated the baby was buried in the backyard, and she had placed him there. Jane refused to go to the hospital, although she was bleeding badly. Defendant told her husband what had happened, but together they could not get Jane to reveal any other details about the baby's father, and defendant said she doubted Jane's allegation of rape because she had lied to them in the past. After interviews at the family home were concluded, the case was turned over to homicide detectives, and defendant, Jagsir, Jane and J.S. were taken to the police station and questioned again.
Police personnel exhumed the infant's body in the backyard that afternoon. Upon digging approximately two feet down into a mound of soil that appeared more raised than surrounding areas, a salt-like substance was discovered. After a bit more digging, the baby's body was discovered; it was not inside a garbage bag. The body appeared fully formed with the umbilical cord still attached. The upstairs bathroom was searched, and in the cabinet under the sink were cleaning supplies and soaps. The criminologist removed those items, sprayed a forensic substance (Bluestar®) under the sink, which indicated the potential presence of blood, and swabs were taken in those spots. Those swabs were never sent to a lab for testing as investigators felt the results would not help them determine whether the baby had ever been underneath the sink. Several cell phones were also seized at the house, including Jane's cell phone discovered in Jagsir's Toyota. Bakshinder had given Jane the phone after the baby was born; between November 20, 2018, and February 20, 2019, 97 calls and 3,796 text messages were exchanged with Bakshinder's phone.
Jane was interviewed again at the police station by Detective Littlefield. Jane said after she delivered the baby in the bathroom, she pulled the umbilical cord away from herself and it snapped just prior to delivering the placenta; she tied the cord in a knot and continued with the delivery of the placenta. Subsequently, the door to the bathroom was opened by others and her mother and grandmother were there. She recalled seeing or hearing her brother J.S. and Bakshinder.
Jane said the baby was lying next to her, and that defendant picked up the baby by one arm and walked past Jane toward the bathtub area. The baby was taken out of the bathroom, and Jane heard him cry at a distance away from her, but she did not know where the baby was taken. Once defendant took the baby from her, Jane never saw him again. Jane said she had become pregnant after consensual sex with a person whom she did not know, but who was possibly named David.
Littlefield also interviewed J.S., who said he never saw the baby, but he heard the baby crying in the general area of the upstairs bathroom, and again from the same area when he heard his mother calling for Jane. J.S. saw defendant carrying a trash bag down the stairs and noticed she was crying. He said he did not know what was in the bag, and he did not tell anyone what had happened. Regarding the paternity of the baby, J.S. said Jane told him someone had taken nude photographs of her and used the photos to extort sex from her. J.S. got information about the baby from Jane at some point in January 2019, and J.S. said that Jane was the one who told him that the baby was buried in the backyard.
Detectives Littlefield and Cason interviewed defendant at the police station, which was audio-recorded and played for the jury at trial. Defendant reiterated she had no idea Jane was pregnant until she gave birth. Jane had gone upstairs to the bathroom, and defendant had been checking on her periodically about why she had not come out of the bathroom. After three or four hours, defendant started knocking on the bathroom door. Defendant saw blood under the bathroom door and got a key to open it. Upon opening the door, she saw all kinds of blood and started asking Jane what had happened. Jane told defendant someone had raped her in the locker room at school. Jane started pointing at the cabinet under the sink, and defendant saw there was a baby in it.
Defendant told the detectives she took Jane to wash her and put Jane into bed. Then defendant went back to see the baby, which had turned a yellowish-blue color. Defendant said she started to cry and called her husband because the baby was already dead. Defendant did not know if the baby had died before she brought Jane to the bedroom or after. Defendant kept asking Jane who had done this to her, but defendant said Jane always lies to her. Defendant then took the baby and placed it in the backyard.
After pressing her to be honest, defendant indicated her mother and Bakshinder were at the bathroom door with her when she opened it, but she denied hearing any crying when she knocked on the door. When Littlefield told defendant that J.S. distinctly remembered hearing a baby crying, defendant responded, "But I don't hear no baby crying." When defendant walked into the bathroom, she saw Jane lying on the floor sprawled out. Littlefield then informed defendant that officers were conducting a search at her home, they were looking for the baby and they were going to find it. Littlefield said they were looking for fluids in the bathroom so if a baby was placed under a bathroom sink, those fluids would still be there no matter how well it had been cleaned. Defendant maintained the baby was under the sink when she got into the bathroom and a scarf had been placed over the top of him.
Defendant stated she placed the baby in a plastic bag, brought the bag downstairs, and then she dumped the baby "in the hole." Defendant stated she had dug the hole, and she covered it with dirt and some salt to prevent odor. Although Jagsir was at work during this time, he was home before the baby was buried, and defendant showed the baby to him.
Littlefield then told defendant they were going to conduct an autopsy, and they would be able to determine how the baby died. Littlefield informed defendant that, despite "the trouble that [Jane] may have put [her] family in," she needed to "be very- very-very honest about how this happened." Littlefield continued, "because if not, ... we've gotta keep looking into things and, um, looking into who else may have done what was done to that baby." When asked again where the baby was when she entered the bathroom, defendant said it was under the sink and she did not hear anything. Littlefield asked, "if anybody else told me that-that baby was crying when you picked it up, they would be lying to me?" Defendant then conceded the baby was crying, but she heard it only one time. Defendant said when they got into the bathroom, she did not see the baby until Jane pointed to the cabinet under the sink. The baby was crying, but defendant and defendant's mother picked up Jane and took her to defendant's bedroom. After attending to Jane, defendant came back to take care of the baby. She put the baby in the bath, but after a few minutes the baby was yellow and bluish; she then put the baby in a bag, but the baby was not crying at that time. Defendant clarified that when she walked out of the bathroom with Jane, the baby was crying, but after she took care of Jane and came back about five or seven minutes later, the baby was not crying and was yellowish and bluish. Defendant did not call for emergency help because of "society." She was scared of her "society culture."
Defendant repeated that she had heard the baby cry in the bathroom, but she did not see him right away. Littlefield confronted defendant with the fact others had told him they saw the baby when the door was opened. Defendant denied seeing the baby at that time and indicated that when the door to the bathroom opened, the baby was under the sink in the cabinet with a scarf. Jane had pointed to the baby once defendant got into the bathroom. The baby was crying at that time, but defendant was paying attention only to Jane; Bakshinder and J.S. were in or near the bathroom, too.
Littlefield pressed defendant on what made the baby stop crying, but defendant said she did not know; she was just trying to take care of Jane. When she had come back to the bathroom after caring for Jane, the baby had stopped crying. Defendant indicated no one was left in the bathroom with the baby while defendant was attending to Jane because defendant's mother and Bakshinder were with defendant since Jane could not stand. Littlefield indicated whoever made the baby stop crying had to be one of defendant's two nephews or her mother; defendant repeated that her mother and Bakshinder were with her, and P. was just alone and scared. When Littlefield suggested Bakshinder had done something to the baby, defendant said he was "not that type" and he was in defendant's bedroom while defendant had Jane in defendant's shower.
Littlefield told defendant her account made no sense, and when they got the autopsy reports back, it would show that the baby was either smothered or drowned. Littlefield then stated he did not think it was fair "to make everybody else responsible for a decision that took less than a second to make." Littlefield told defendant they were trying to make sense of her story, but the police did have an idea of how it happened. Littlefield repeated that he was trying "not [to] [a]ffect everybody's life in a negative way tonight."
Littlefield repeated that someone had to have smothered or drowned the baby, and that defendant needed to be as honest as possible because this would have "ripple effects that are gonna [a]ffect all kinds of people all the way around us, okay?" Cason then demanded that defendant to tell them what happened to the baby. When she said she did not know what happened, Cason said defendant's son and daughter and "everybody else" had said that when defendant came into the bathroom, Jane was holding the baby and trying to nurse him, and defendant physically grabbed the baby away from her. Defendant denied that was what happened; she repeated that she never saw the baby with her daughter, and she denied she took the baby from Jane or took the baby downstairs before she moved Jane to her bedroom.
Defendant repeated that she attended to Jane and then came back to the bathroom for the baby. She put the baby in a bag, and then in a bucket, and then took it downstairs. She dug a hole in the backyard and put the baby in it. Defendant again denied knowing anything about what happened to the baby, but Cason told defendant that everyone "saw [defendant] carry that baby out [of the bathroom]. So you do know what happened. Now is your time to tell us, because we do not believe your story."
Defendant responded that she "put the baby in the water" in the bathtub. When asked how long it took for the baby to stop screaming or moving in the bathtub, she said it took two or three minutes. She indicated she did this because she was "scared from [her] community." Defendant maintained that Jane did not have the baby with her when defendant walked into the bathroom, it was under the sink. Cason asked, "Okay, so then you grabbed the baby from there [the sink cabinet] and placed the baby in the bathtub?" and defendant responded, "Yeah." In a series of yes or no questions, Cason asked defendant if she placed the baby "face down" and she responded, "Yes." He asked if she had to keep her hand on the baby's back, and she responded no. Cason asked her if she just set the baby in the tub face down, and she said yes. Cason then asked how long the baby moved, and she responded about two to three minutes. Defendant denied the baby was crying when she took him from the cabinet. Littlefield asked, "So you picked it up with the scarf and put him face down in the bathtub?" Defendant responded, "Yeah." Defendant said she did not know why she had done it; she was wrong, and she was sorry. She "didn't think nothing would happen. I didn't know what had happened, how it happened or why."
Defendant acknowledged she knew the baby could not survive in the bathtub. Defendant again clarified that she took care of Jane before she came back for the baby, and the baby had stayed in the sink cabinet while she was attending to Jane. It was only when she returned from caring for Jane that she put the baby in the bathtub. After the baby stopped moving, she carried the baby downstairs in a bag, and she put the bag in a bucket outside. She and Bakshinder dug a hole to bury the baby, placed salt over the baby, and then Bakshinder covered the grave with dirt.
Defendant explained how she attended to Jane in the days following the delivery; she claimed that she asked Jane if she wanted to see a doctor, but Jane had refused. Defendant said she never considered taking the baby to a fire department or a hospital and dropping it off. She said that if she had known she could do that, she would have done it. She did not call 911 because she did not want cars in front of her house where her community could see, and she did not think to take the baby in her own car. Defendant told the detectives that she told her husband the baby died, but not that she had drowned him. She and Jagsir instructed the children not to tell people what had happened.
At this point in the interview, they took a break until about 7:25 p.m., and then questioned defendant again. The detectives thought the second portion was recorded, but they were unable to locate the recording later. Littlefield documented the second part of the interview and testified about it at trial. Defendant consistently denied that there were any discussions about not talking to the police; there was a point during this second portion of the interview that she again described the child as lifeless when it was under the sink, which Littlefield felt was not consistent with her earlier description of the child when she had placed him in the tub. Defendant told them she cleaned the bathroom after removing the baby.
At this point, Littlefield asked defendant to write an apology letter to explain her actions. At trial, the letter was admitted into evidence and Littlefield read it for the jury. In part of the letter, defendant wrote that the "baby was already dead when I first-the baby-the-under the sink."
The next day, defendant was interviewed by a social worker, Stephany Rosenow. When questioned about how the baby died, defendant said the baby had died before she returned to the bathroom after attending to Jane. Seeing the baby had died, she washed him off in the bathtub, put the baby in a bag, put the bag in a bucket, and buried the baby in the backyard with Bakshinder's help. Defendant claimed Jane did not want to go to the hospital because people would ask about the baby.
Rosenow also interviewed Jane, who explained she had made a bath for herself and delivered the baby; the baby started crying and her mother tried to get into the bathroom, but the door was locked. Jane felt woozy, so she laid on the floor with the baby who was wrapped in a shawl. Jane's mother and grandmother came into the bathroom, and her mother was yelling at Jane and telling her how ashamed she was of Jane. Jane said her mother took the baby, moved toward the tub, but then went out of the bathroom. She next remembered her mother cleaning her off in the shower in the other bathroom. Defendant never told Jane what happened to the baby, and Jane did not ask. Jane's brother told her what had happened to the baby, but when he did, their grandmother gave J.S. a strange look, and J.S. tried to play it off like he was kidding. Jane said her cousin had said her mother put the baby up for adoption.
An autopsy was conducted on March 4, 2019, by Dr. Paul Gliniecki about a week after defendant made her confession. At trial, Dr. Gliniecki was unavailable, and Dr. Wang testified about the autopsy results and gave his own opinion about the manner and cause of death. He described the body in a mild state of decomposition; there were no congenital abnormalities, and no trauma to the body; the airway and lungs were unremarkable, and the diaphragm was of normal shape and thickness; there were no petechial hemorrhages; and there was no evidence of upper airway obstruction.
He opined the gestational age of the baby was 36 weeks and 2 days at birth based on the autopsy findings and Jane's June 2018 ultrasound. Dr. Wang explained that a baby at this gestational age has a 95 percent chance of survival upon delivery in a hospital setting. Dr. Wang concluded there were no anatomical findings that could determine the cause of death for the infant but, based on witness statements to police that the baby was heard crying in the bathroom and defendant's statement that she placed the baby face down into a water-filled bathtub until it stopped moving, Dr. Wang opined the baby was born alive and the manner and cause of death was homicide by drowning.
On March 7, 2019, about a week after his arrest and release on bond, Jagsir committed suicide in the family home. Jane's sexual contact with Bakshinder had continued into 2019, and after being removed to foster care after her parents' arrest and her father's death, Jane miscarried a pregnancy. Police were alerted, and Jane confirmed that Bakshinder had fathered both babies. Based on Jane's cell phone data, which had been extracted by this time, investigators already suspected Bakshinder was sexually involved with Jane and were trying to ascertain when it had begun. Ultimately, police were never able to locate Bakshinder.
J.S. was interviewed again in November 2019 by a defense investigator. When Jane's baby was born, he said he was sitting on the couch in the front room when he thought he heard a baby crying. Shortly after that, defendant went upstairs to see if Jane was alright. Bakshinder tried to open the bathroom door with a pin, and the door was opened enough for J.S. to see Jane lying on the floor with blood all over. J.S. was so upset, he fainted and had to be lifted down the stairs by his cousins. His cousins took him into a bedroom, and they all sat on the bed. During this time, J.S. could hear his sister moaning. About 20 minutes later, he saw his mother carrying a bag and he asked her what was in it. J.S. thought his mother said there was blood in it, and that she was really upset and crying.
At trial, J.S. adamantly denied Bakshinder came downstairs with him after J.S. fainted. He testified it was sometime in the evening when Jane had locked herself in the bathroom, and he was home with defendant, two cousins, Jane and his grandmother. J.S. went upstairs after defendant discovered the bathroom door was locked, and he looked under the door of the bathroom and saw blood. Bakshinder and his grandmother were at the door, too. As soon as J.S. saw the blood, he yelled and fell down the stairs. He only caught a glimpse of Jane's leg and he never saw the baby. After he fell down the stairs, his cousin P., who was on the first floor, helped him to a bedroom, he fell asleep in three minutes, and that was the last thing he could remember from the day. He denied ever seeing defendant (his mom) with a trash bag and could not remember telling the police or a private investigator he saw her with one.
H.D., defendant's mother, testified at trial that she helped defendant attend to Jane after the baby was born. H.D. confirmed Bakshinder assisted defendant in getting the bathroom door open, and when defendant got into the bathroom, she asked H.D. to get a sheet from the linen closet right next to the bathroom. H.D. went into the bathroom, and saw that Jane was unconscious and there was a baby under the sink wrapped in a black, cloth scarf. H.D. never saw defendant pick up the baby. They wrapped Jane up in the sheet, picked her up and took Jane to defendant's bedroom. After getting Jane cleaned up, they took her to defendant's bed. Defendant was in the room with H.D. and Jane all night, although defendant walked out from time to time. Jagsir came home and was very angry. H.D. never asked about the baby, and she did not know the baby was buried in the backyard. Although her testimony was very consistent with what H.D. told a defense investigator in November 2018, she told a Punjabi-speaking officer who interviewed her at the family home in February 2019 that she did not know anything.
Defendant also testified at trial, and she denied drowning the baby. She admitted hearing the baby cry before she tried to get into the bathroom, but she could not remember if the baby was crying when the door was opened. When she first saw Jane, Jane was not fully conscious and appeared delirious. Defendant did not see the baby immediately, but came to see it under the sink. Defendant asked her mother to bring her a bedsheet, and they covered Jane and took her to defendant's bedroom. She denied Bakshinder went with them to defendant's bedroom.
Defendant and H.D. gave Jane a sponge bath, which took about 15 or 20 minutes; defendant examined Jane for any tearing. Defendant got Jane into defendant's bed, and then defendant returned to the bathroom as Bakshinder was calling for her. He was sitting by the sink and holding the baby; he said the baby was dead. Defendant did not check the baby, but she took some water from the bathtub and flicked it on the baby's eyes to see if he would react. Bakshinder gave defendant all the mats and put them into a black bag. By this time Jagsir had returned from work; he came upstairs and saw the baby, told defendant to go to Jane, and he told Bakshinder to put the baby in a bucket and to bring the baby downstairs. Defendant went to the bedroom, and Jagsir came in to say he was going to the store; a while later, he came back and asked her to give him the metal bucket. He came back upstairs about 10 or 15 minutes later; she learned later he and Bakshinder attempted to burn the body, but could not do so. Jagsir and Bakshinder buried the baby. She never discussed the baby with Jane because Jagsir had forbidden her to talk about it, and he had forbidden her from taking Jane to the doctor.
Defendant and Jagsir discussed what had happened but, because he did not have proper documentation to be in the country, he told her she was going to have to take responsibility. Defendant did not want Jane or Bakshinder to go to jail, either. During her police interrogation, when Littlefield mentioned the trouble that her daughter may have put the family in and that they would have to keep looking into who else may have done something to the baby, defendant became afraid for her family. She explained that when she told police she did not call 911 because of "society," she meant that her community would look down on her daughter having a relationship with Bakshinder and having a baby outside of marriage; she had concerns Jane would not be able to marry well if it became known she had had a baby before marriage. And, while defendant did not become aware of Jane's relationship with Bakshinder until after she had been arrested, the interrogation caused grave concerns for her family, and she admitted to drowning the baby as a means to protect them from further police scrutiny. She explained her statements to the detectives were also influenced by the accusatory tone of the questioning, the immigration status of those in her household, and her unfamiliarity with American laws and whether they might be held responsible just because the baby had died in their home.
Dr. Rodney Mark Root, a gynecologist, testified to the risks associated with Jane's pregnancy and delivery of the baby. He explained Jane's pregnancy was high risk due to a lack of prenatal care. Dr. Root stressed the importance of clearing a baby's airway when it is first born, and, to ensure the health of the child, the baby's nasal passages should be suctioned so that amniotic fluid is not respirated into the baby's lungs upon taking the first breath. Death due to respiratory problems might take about three minutes, and even though the baby died in this case, it might still have cried initially because crying is a natural response, yet it does not necessarily signal the child's respiratory system was fine. Dr. Root also testified that if the umbilical cord is improperly severed and proper clamping is not applied, there is a risk of hemorrhaging, and the baby could bleed to death in about two minutes. Thermogenic heat issues caused by failing to properly dry and warm the baby could develop in a 10- to 15-minute period, which would also compromise the baby's life.
Dr. Laljit Sidhu testified as an expert psychologist. He reviewed the police reports, the charging document, the interviews conducted with investigators, and defendant's interrogation. He also interviewed defendant on four different occasions. He concluded she was the victim of intimate partner violence and that she suffered from posttraumatic stress disorder (PTSD). He explained the area where defendant was living was a concentrated Sikh Indian population. He testified extensively on Sikhism and Punjabi culture within the broader Indian culture, and how society and families are traditionally organized within these cultural and religious structures. Dr. Sidhu explained how gender roles are generally strictly enforced and very defined within the culture, how women are typically the subservient members of the household and responsible for the upbringing and discipline of the children, and how shame and honor factor into the culture, particularly for women. The concept of extramarital and premarital sex is profoundly disturbing within these cultural and religious structures, and because the honor of the family is typically viewed as within the female, a female having sex outside of marriage, particularly a minor female, would be viewed with extreme disfavor within this cultural community. Dr. Sidhu also noted Jagsir was part of the Jatt caste, which typically reinforces and emphasizes the male's role as a dominant figure in the family, and this would have influenced how he ran the household.
Dr. Sidhu testified that defendant had experienced chronic and frequent physical and verbal abuse during her marriage to Jagsir. The fact that this went unreported is fairly common, and immigrant populations tend to be much more hesitant to contact law enforcement. In this case, defendant was surrounded by an Indian community, and it would not necessarily be viewed as worth reporting violent incidents given the shame that would be suffered if the police showed up. Dr. Sidhu also explained that victims tend to stay with their abuser, and that frequent victims become very good at recognizing the demeanor of their partner because they need to be wary of that person and prepared to mollify them or reduce their anger to avoid violence. The perpetrator does not always have to be present for victims to be able to predict how the abuser will react. Here, defendant said she lived in a state of fear, and Dr. Sidhu opined that would exist whether Jagsir was present or not because she knew he had certain expectations and if they were not met, there would be consequences.
DISCUSSION
I. IAC
Dr. Wang testified he had conducted over 8,000 autopsies, including 400 autopsies on babies. While he was not the pathologist who performed the autopsy in this case, Dr. Wang had reviewed the notes and reports from Dr. Gliniecki, the photographs from the autopsy, documents of X-rays taken, and police investigation records that included reports of witness statements and medical records from the clinic Jane had gone to in June 2019. Dr. Wang indicated there was no trauma to the infant's body; the mainstream bronchi (which is the main airway) appeared unremarkable; the diaphragm was of normal shape and thickness; there were no petechial hemorrhages or abnormality on the surface of the lungs; and no evidence of upper-airway obstruction. Dr. Wang testified there were no anatomical findings that could determine the cause of death for this infant, although for suffocation and drowning deaths an autopsy can be "totally normal." Dr. Wang nonetheless opined that, based on witness statements to police, the baby was born alive, and based solely on defendant's confession, he opined the infant's cause of death was drowning and that it was a homicide. Defense counsel did not object to this cause-of-death opinion, and defendant claims this constituted IAC.
Defendant maintains Dr. Wang's opinion as to cause of death was clearly inadmissible because it was not the product of any specialized training, knowledge or experience-it was based solely on a statement defendant made to the police. As such, it impermissibly commented on defendant's credibility and guilt. Defense counsel's failure to object was constitutionally IAC. The People contend any objection would have been futile because the opinion was admissible: Dr. Wang was qualified as an expert forensic pathologist, the cause and manner of death is a proper subject for expert testimony because it is beyond the common experience of the lay person, and it is not inadmissible merely because it embraced the ultimate issue to be decided by the jury.
A. Analysis
To prevail on a constitutional claim of IAC, defendant "'must satisfy a twopronged showing: that counsel's performance was deficient, and that [he] was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.'" (People v. Woodruff (2018) 5 Cal.5th 697, 736, quoting People v. Alexander (2010) 49 Cal.4th 846, 888; accord, Strickland, supra, 466 U.S. at p. 687.)
As counsel is not ineffective for failing to make meritless objections, we consider first the admissibility of Dr. Wang's cause-of-death opinion. (See People v. Ochoa (1998) 19 Cal.4th 353, 432 ["Counsel did not perform deficiently for failing to make what would have been a meritless request."].)
1. Dr. Wang's Cause-of-death Opinion Was Inadmissible
California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and give opinion testimony "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" (id., § 801, subd. (a)). "That is not to say, however, that the jury need be wholly ignorant of the subject matter of the expert opinion in order for it to be admissible. [Citation.] Rather, expert opinion testimony '"will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when 'the subject of inquiry is one of such common knowledge that [those with] ordinary education could reach a conclusion as intelligently as the witness'" [citation].'" (People v. Jones (2012) 54 Cal.4th 1, 60 (Jones).) "Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) Based on these principles, "'[a] forensic pathologist who has performed an autopsy is generally permitted to offer an expert opinion not only as to the cause and time of death but also as to circumstances under which the fatal injury could or could not have been inflicted.'" (Jones, supra, at p. 57, quoting People v. Mayfield (1997) 14 Cal.4th 668, 766.)
However, "'[a] consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant.... [T]he reason for employing this rule is not because guilt is the "ultimate issue of fact" to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case. [Citation.] Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.' (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.)" (People v. Duong (2020) 10 Cal.5th 36, 60-61.) An expert's opinion divorced from the application of any specialized expertise that comments on a witness's credibility or guilt is not a subject sufficiently beyond common experience that would assist the trier of fact. (See People v. Long (2005) 126 Cal.App.4th 865, 871, citing People v. Cole (1956) 47 Cal.2d 99, 103.)
Two California Supreme Court decisions are illustrative of these legal principles. In Jones, an 81-year-old woman (Eddings) was found in the burned remains of her mobile home lying facedown on the living room floor. (Jones, supra, 54 Cal.4th at p. 10.) Jones admitted to police that he had killed Eddings and set her residence on fire. (Id. at p. 11.) The central issue for the jury to resolve was Jones's intent in doing so. (Ibid.) The prosecution theory was that Jones committed burglary by entering Eddings's residence with the intent to sexually assault her, and that Jones killed Eddings during the commission of rape and sodomy, or during an attempt to commit these crimes. (Ibid.) The defense theory was that Jones went to Eddings's home simply to make sure she was not hurt, he was intoxicated at the time, and her death resulted from the defendant accidently falling on Eddings; Jones had no intention of killing or having sexual contact with Eddings when he went to her home; if any sexual assault occurred, it was postmortem. (Ibid.)
In support of the prosecution's theory and over defense objection, a pathologist testified Eddings had been raped and sodomized before she died. (Jones, supra, 54 Cal.4th at p. 17.) The opinion was based on the anatomical findings and evidence in the case, as well as the pathologist's training and experience in cases of rape-murder. (Ibid.) This included the array of Eddings's injuries, which were consistent with being subdued by force prior to being sexually assaulted, a foreign object in Eddings's vagina apparently placed there by a penetrating object; the presence of Jones's sperm in her rectum; the prone position of Eddings's body when it was discovered; statements made by Jones; the rarity of necrophilia in the pathologist's expert experience; and the circumstance that strangulation and blunt force trauma are "'by far'" the leading cause of death in rapemurder cases. (Ibid.) The pathologist explained that as rape is both an intimate and inherently violent act, the cause of death typically is intimate and the trauma, when present, is often severe and brutal, as it was in this case. (Ibid.)
The high court rejected the defendant's arguments the pathologist's opinion was inadmissible. (Jones, supra, 54 Cal.4th at pp. 57-62.) The court reasoned forensic pathologists are generally able to offer expert opinions as to the cause, timing and circumstances of a death; here, the expert was well qualified. (Id. at pp. 57-58.) Second, the court explained there was no rule against a pathologist relying on "'extrinsic'" factors beyond the autopsy findings and any purported preclusion against such reliance was directly contrary to the pathologist's undisputed testimony that examining all of the evidence-physical, anatomical, extrinsic or otherwise-is precisely what a forensic pathologist does in forming an opinion about the manner and circumstances of a victim's death. (Id. at p. 59.) Finally, the pathologist's opinion was a proper subject for expert testimony: it was based on "an informed forensic context that went beyond the jurors' common fund of information and could have assisted the jury in determining [Jones's] intent and timing in sexually assaulting Eddings, which was relevant to the special circumstance allegations that the murder took place during the commission of rape, sodomy, and burglary." (Id. at p. 61.)
Similar claims were rejected in People v. Brown (2014) 59 Cal.4th 86 (Brown). There, an 11-year-old victim was found in the bathtub having been sexually assaulted and drowned. (Id. at p. 91.) Over defense objection, the pathologist was permitted to opine the victim had been forcibly drowned during a struggle, and that the drowning and sexual assault were contemporaneous. (Id. at pp. 94, 100.) The defendant argued, among other things, that the pathologist did not have sufficient expertise to testify the sexual assault occurred "'concurrently'" with the drowning and that the opinion should have been excluded because it did not assist the jury; the pathologist had no special expertise in determining whether the death and assault occurred contemporaneously, and the jury had all of the relevant evidence to make that determination itself. (Id. at p. 100.)
The court rejected both arguments explaining that the pathologist was well qualified to testify regarding the nature of the victim's injuries and the circumstances surrounding her death. (Brown, supra, 59 Cal.4th at p. 100 .) The expert had explained the victim had been forcibly drowned during a struggle, and petechiae on her face reflected force had been applied there. Her lungs, but not her stomach, were filled with water, suggesting she had actively inhaled water while her esophagus was forced closed. Given the forensic evidence of recent sexual assault and the forcible nature of the drowning, the pathologist could properly opine those events occurred contemporaneously. (Ibid.) The expert had applied his knowledge, skill, experience, training and education to all of the evidence presented, which could assist the jury in determining the timing of the sexual assault, and the opinion provided an informed forensic context that went beyond the jurors' common fund of information to help them determine the timing of the assault. (Id. at p. 101.) Finally, although the opinion weighed against the defendant's version of events, that did not make it an impermissible opinion on the defendant's guilt. (Id. at p. 102.)
The pathologists in Jones and Brown considered evidence beyond the autopsy findings, including, in Jones, statements made by the defendant, but their challenged opinions were the product of their specialized expertise, which provided a forensic context beyond the jurors' common fund of information to help them opine as to the circumstances and cause of death. (Jones, supra, 54 Cal.4th at p. 61; Brown, supra, 59 Cal.4th at p. 99.) For example, in Jones, despite the defendant's claim sexual contact with the victim occurred after the victim's death, the pathologist explained that based on his training and experience, necrophilia is exceedingly uncommon and the nature of the injuries were the most common scenario for a murder committed during a rape. (Jones, supra, at p. 61.) This is quite different from a pathologist who reaches a cause-of-death conclusion solely because a witness or the police said that is how it occurred. (See State v. Vining (Me. 1994) 645 A.2d 20, 21 (Vining) [pathologist opinion victim's death was homicide based solely on conversations with police investigators was not the product of expertise, but merely an assessment of credibility and investigatory acumen of police].) In the specific context of pathology opinions regarding the cause and manner of death, several out-of-jurisdiction cases helpfully illustrate the distinction between a pathologist who uses specialized expertise to evaluate evidence outside medical autopsy findings and a pathologist who merely adopts a witness's statements to opine on the cause of death.
In State v. Tyler (Iowa 2015) 867 N.W.2d 136 (Tyler), a pathologist's opinion as to an infant's death was deemed inadmissible because it was based almost exclusively on the mother's confession that she drowned the baby in the bathtub rather than on any specialized expertise. (Id. at pp. 163-166.) The pathologist testified the autopsy and pathology examination as to the infant's cause of death were undetermined, but, in his final report, he concluded the cause of death was homicide by bathtub drowning based on what the mother told the police. (Id. at p. 148.) The Supreme Court of Iowa concluded the opinion was not based on any specialized expertise: the pathologist did not explain how any other findings factored into his opinions, and he admitted the defendant's statements to police were the but-for factor in rendering his opinion. (Id. at p. 164.) Thus, the pathologist was in no better position to determine the cause or manner of death than was the jury who watched and listened to the mother's interview statements to the police. (Ibid.)
In Vining, the victim died after falling over backwards and hitting his head on the cement floor. (Vining, supra, 645 A.2d at p. 20.) At the time of death, the victim was extremely intoxicated and was recovering from a recent, severe beating. (Ibid.) A witness testified the defendant was standing in front of the victim when he fell over, and they had been arguing. (Ibid.) The witness, however, was intoxicated at the time and did not actually see the defendant push the victim over. (Ibid.) The state's medical examiner testified there was no physical evidence from the victim's body that would allow her to determine whether the victim fell over or was pushed, but she nonetheless concluded from her conversations with police investigators that the victim's death was homicide. (Ibid.) The Supreme Judicial Court of Maine concluded this opinion was inadmissible because it was not the product of any expertise. (Id. at pp. 20-21.) Rather, it was based solely on her discussions with police investigators and "therefore amounted to an assessment of the credibility and investigatory acumen of the police." (Id. at p. 21.)
In State v. Wilson (2010) 149 N.M. 273, overruled on other grounds by State v. Tollardo (N.M. 2012) 275 P.3d 110, 121, footnote 6, the defendant was convicted by jury in the suffocation death of a two-year-old foster child (Tyler). The defendant admitted to killing Tyler, but gave contradictory statements about whether he intended to kill the child or not. (State v. Wilson, supra, at pp. 276-277.) The pathologist opined Tyler's cause of death was consistent with smothering, even though there were no definitive autopsy findings for smothering. (Id. at p. 281.) The defendant argued this opinion was unreliable because it was based on the pathologist's review of the police report and the confession rather than medical science. (Ibid.) In rejecting this argument, the Supreme Court of New Mexico explained that the pathologist had never characterized Tyler's death as a homicide, only that it was consistent with smothering, and this was based on more than just a confession and police report. (Id. at pp. 282-283.)
Finally, in State v. Roscoe (R.I. 2019) 198 A.3d 1232 (Roscoe), an 85-year-old woman was found dead in her home, lying naked and perpendicular on her bed. There were no signs of forced entry, but there was an overturned plastic end table in the living room; a cigarette lighter and small brown leather belt were discovered next to the victim's body. (Id. at p. 1235.) An autopsy revealed no vaginal injuries or defensive wounds, but there were injuries to the victim's head and face; bruising on her left breast; a urinary tract infection; and fluids around her lungs, an enlarged heart, and other indicators of a failing cardiovascular system. (Ibid.) The pathologist opined the cause of death was a heart attack or cardiac arrest following a traumatic event. (Ibid.) Although unable to determine the manner of death at the time of the examination, the pathologist later learned sperm had been found on the victim's body. (Id. at pp. 1235-1236.) Upon police inquiry, it was ascertained from witnesses the victim had not been involved in a relationship at the time of her death, and the pathologist changed his opinion as to the manner of death from undetermined to homicide. (Id. at p. 1236.) The Supreme Court of Rhode Island deemed the manner-of-death opinion was admissible, explaining it was the product of the pathologist's expertise in assessing the victim's injuries and circumstances of the death; it was not based solely on witness statements she was not in a relationship at the time of death. (Id. at pp. 1243-1244.)
Turning to the facts here, Dr. Wang's opinion as to cause and manner of death is wholly distinguishable from the pathology opinions in Brown and Jones and very similar to the inadmissible opinions offered in Tyler and Vining. Dr. Wang admitted the autopsy findings were inconclusive as to cause of death and conceded that but for defendant's statements to police that she put the infant in the bathtub, he would not have been able to determine the cause of death was drowning. Contrasting sharply with Jones, Brown, and Roscoe, Dr. Wang's opinion was not the product of any specialized expertise: he did not evaluate defendant's statements within any type of forensic context, specialized experience or training, nor did he link it to, or contextualize it around, any medical findings. The opinion was solely the product of selective crediting of some of defendant's statements to police, which offered nothing to the jury beyond the common fund of information it already possessed. (Jones, supra, 54 Cal.4th at p. 60 [expert opinion will be excluded when it adds nothing at all to the jury's common fund of information, i.e., when the subject is one of such common knowledge that people of ordinary education could reach a conclusion as intelligently as the expert].) Further, unlike State v. Wilson, Dr. Wang's opinion was not simply that drowning was not inconsistent with the autopsy findings; he definitively opined the infant's death was homicide by drowning, and this was expressly based solely on selective statements defendant made to police. (State v. Wilson, supra, 149 N.M. at p. 281.)
Without drawing on any specialized expertise, Dr. Wang's opinion as to the cause and manner of death was nothing more than his assessment of the credibility of defendant's confession and her guilt, which the jury was equally as equipped to determine and had the effect of usurping the jury's factfinding role. (See People v. Spence (2012) 212 Cal.App.4th 478, 509-511 [disapproving hypothetical question effectively asking the expert to impermissibly opine as to the guilt of the defendant and tended to interfere with the jury's ability to decide the issue].) Dr. Wang's opinion the infant's cause of death was homicide by drowning was inadmissible under such circumstances; an objection to this opinion had merit.
2. IAC
Defendant argues her counsel's failure to object to Dr. Wang's opinion constituted IAC. "Judicial review of counsel's performance is deferential; to establish deficient performance, the defendant 'must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."'" (In re Gay (2020) 8 Cal.5th 1059, 1073, quoting Strickland, supra, 466 U.S. at p. 689.) Whether or not to object to evidence at trial is largely a tactical decision for counsel, and "a case in which the mere failure to object would rise to such a level as to implicate one's state and federal constitutional right to the effective assistance of counsel would be an unusual one. [Citation.] An attorney may well have a reasonable tactical reason for declining to object, and '"[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of [IAC] must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation."'" (People v. Seumanu (2015) 61 Cal.4th 1293, 1312-1313.)
The prosecution's theory of the case was that defendant had drowned the baby in the bathtub, while the defense theory was that the baby died at some point before defendant returned to the bathroom after assisting Jane, and that defendant had falsely confessed. Dr. Wang's opinion that the infant's death was caused by drowning went to the central disputed issue on counts 1 and 2: whether defendant murdered and assaulted the baby; because the opinion was based solely on an expert's assessment of the truth of a statement to police, it implied defendant's confession was credible, and she was guilty. While a desire not to highlight evidence by making an objection is a highly tactical evaluation (People v. Seumanu, supra, 61 Cal.4th at pp. 1312-1313), Dr. Wang's opinion was not a surprise, and it went to a central issue in dispute. There was opportunity to object outside the presence of the jury. Under these circumstances, we cannot find a reasonable justification for counsel's failure to object to this portion of Dr. Wang's testimony. (See People v. Julian (2019) 34 Cal.App.5th 878, 888 (Julian) [no justification for defense counsel's failure to object to state's expert's statistical evidence on false allegations that improperly suggested the defendant was guilty].)
The death certificate stated the cause of death was drowning, which defense counsel had unsuccessfully sought to exclude in limine as unduly prejudicial; at a pretrial in limine hearing, defense counsel noted the cause of death was based solely on statements to law enforcement. The death certificate was deemed admissible, and it was received into evidence during Dr. Wang's testimony. At the time motions in limine were filed, defense counsel noted the People were seeking to substitute Dr. Gliniecki and sought a Evidence Code section 402 hearing as to that substitute witness, which was apparently denied. Defense counsel had reason to know and anticipate the cause of death as drowning would be an issue presented to the jury.
3. Prejudice
To obtain relief, defendant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.) "In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel [had] acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. [Citation.] This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' [Citation.] The likelihood of a different result must be substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 111-112.)
"An analysis of prejudice under Strickland does not involve the application of 'mechanical rules.' (Strickland, supra, 466 U.S. at p. 696.) Instead, 'the ultimate focus ... must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.' (Ibid.)" (In re Gay, supra, 8 Cal.5th at p. 1087.)
"It is widely acknowledged that an expert's statements are 'likely to carry special weight with the jury,'" and this will factor into the degree of prejudice suffered when such testimony is admitted erroneously. (People v. Clotfelter (2021) 65 Cal.App.5th 30, 60, quoting Jinro America Inc. v. Secure Investments, Inc. (9th Cir. 2001) 266 F.3d 993, 1004.) A line of recent cases regarding the improper admission of expert testimony in child abuse cases is illustrative of factors that may amplify or ameliorate the prejudicial effect of such testimony. In Julian, the appellate court held that statistical evidence presented by the prosecution expert witness went beyond the proper scope of child sexual abuse accommodation syndrome (CSAAS) evidence and that defense counsel provided IAC by not objecting to it. (Julian, supra, 34 Cal.App.5th at pp. 880-881.) This statistical evidence invited the jury to presume the defendant was guilty based on irrelevant statistical probabilities that the victim's allegations were false, and to not decide the evidence properly introduced in the case. (Julian, supra, at p. 886.) The evidence was "highly prejudicial" because it went straight to the main contested issue- whether it was the victim or the defendant who was credible-in a heavily contested case with strong defense evidence. (Id. at p. 888). The court noted that, while the statistical evidence testimony "may not be prejudicial where it occurs in a slight passing reference by the expert," "here the jury was bombarded with it." (Ibid.)
"Expert testimony on 'the common reactions of child molestation victims,' known as CSAAS theory evidence, 'is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation.'" (Julian, supra, 34 Cal.App.5th at p. 885.) But this evidence is not admissible to prove that the complaining witness has in fact been sexually abused because an expert is not allowed to give an opinion on whether a witness is telling the truth. (Ibid.)
In People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson), another case involving the admission of expert CSAAS evidence, the appellate court held expert testimony that only a small percentage of child sexual abuse allegations are false should not have been admitted, but it concluded the error was harmless. (Id. at p. 561.) The expert testified false allegations occurred "'very infrequently or rarely,'" and studies showed false allegations in only one to six percent of cases. (Id. at p. 568.) This had the effect, the appellate court concluded, of telling the jury there was an overwhelming likelihood the victim's testimony was truthful (id. at p. 570), which invaded the province of the jury and placed "a thumb on the scale for guilt" (id. at p. 571). The appellate court nonetheless concluded, however, the error in admitting the testimony was harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Wilson, supra, at pp. 571-572.) The court explained the expert's testimony on the statistical evidence was "brief"; the defense effectively rebutted the evidence with its own expert witness; the prosecutor did not mention the evidence in closing arguments; the jury was instructed that it was the sole judge of the facts and of witness credibility; and the victims testified extensively from which the jurors could assess their credibility. (Id. at p. 572.)
Similarly, in People v. Lapenias (2021) 67 Cal.App.5th 162, the appellate court determined the trial court erred in allowing the CSAAS expert to testify it is "'rare'" for children to make up a story that abuse occurred, but nonetheless concluded the error was harmless under Watson. (Lapenias, supra, at p. 166.) The appellate court held the testimony, by implication and inference, violated the general rule that an expert may not give an opinion as to whether another witness is telling the truth or that the defendant is guilty. (Id. at p. 179.) The court held there was no meaningful distinction between stating children rarely make false allegations and providing statistics to the same effect- in both cases the expert is vouching for the veracity of the victim. (Id. at pp. 179-180.) Applying Watson, the court found the error harmless because the expert's testimony was "brief"; references to the testimony in closing arguments were minimal; there was persuasive corroborative evidence of the defendant's guilt; and the jurors were instructed they were not bound by an expert's opinion and that they were the sole judgment of witness credibility. (Lapenias, supra, at p. 180.)
Turning to the facts here, defendant argues Dr. Wang's opinion as to the cause of death was, by itself, sufficient to undermine any confidence in the outcome on counts 1 and 2. Dr. Wang expressly conceded his cause-of-death opinion was not based on any anatomical findings, and he adopted defendant's confession without explaining its significance within a forensic context or assessing it through the lens of any specialized knowledge, education, training or experience. In effect, Dr. Wang opined as to the veracity and reliability of defendant's confession and that defendant had, in fact, drowned the baby. Importantly, this impermissible opinion was cloaked with the imprimatur of an expert, lending it undeniably greater significance in the eyes of the jury, and it related to the prominent disputed issue on counts 1 and 2 that went to the heart of both parties' theories of the case. This was even more pivotal, defendant maintains, because the case was so close, as evidenced by jury deliberations that took more than eight hours and its request for the transcript of defendant's police interrogation.
It is true that Dr. Wang's opinion on the cause of death went to a central issue in the case and implicitly and improperly commented on the credibility of defendant's confession and her guilt. Whether the baby drowned was of critical importance to the first degree murder charge in count 1, and on count 2 for assault on the baby resulting in death. As an expert, the jury was certainly more apt to ascribe Dr. Wang's opinion greater weight and importance. (People v. Clotfelter, supra, 65 Cal.App.5th at p. 60.) Yet, even in view of the importance of the issue and that the opinion was espoused by an expert, the opinion testimony was insufficient to undermine confidence in the outcome. (Strickland, supra, 466 U.S. at p. 694.) When the effect of Dr. Wang's opinion is evaluated in the context of the whole trial record, there is no reasonable probability one juror would have reached a different conclusion on counts 1 and 2 but for the erroneous admission of Dr. Wang's opinion.
Dr. Wang's opinion did not feature prominently in the prosecution's case. His testimony in total was relatively brief, and his opinion on the cause of death was subject to little elaboration on direct examination. Dr. Wang conceded there were no autopsy findings establishing the cause of death for this infant; indeed, he testified it was defendant's statements alone that provided the cause of death for the infant and that without that confession, it was impossible or difficult to make a finding this infant drowned. On cross-examination, it was further clarified the sole basis for the opinion was merely an adoption of defendant's confession. While the jury knew Dr. Wang found defendant's confession to police credible and true, which carried significance, the jury also knew there was no medical basis for the opinion, which tended to offset its persuasive value. By comparison, this is very distinct from the prejudicial statistical evidence offered by the expert in Julian. There, not only was the jury "bombarded" with the statistical evidence, but the evidence itself suggested there was a scientific, mathematical probability the victim was telling the truth and the defendant was guilty. (Julian, supra, 34 Cal.App.5th at p. 886 [statistical evidence encouraged jurors to presume the defendant was guilty based on statistical probabilities]; see id. at pp. 888, 889 [evidence may not be prejudicial where it occurs in a slight passing reference by expert, but in present case jury was "bombarded" with it, which was compounded by cross-examination that opened the door to a "mountain" of prejudicial statistical data].) The jury here knew Dr. Wang's opinion amounted only to his view of defendant's confession.
Defendant's interrogation recording was admitted at trial; it captured her confession and most of the interview, although the last portion of the interrogation was unavailable and relayed through Littlefield's testimony. While not videotaped, the recording allowed the jury to consider for itself factors directly weighing on the credibility of defendant's statement she drowned the baby including her English-speaking abilities, the real-time length of the interview, the tone and tenor of defendant's voice in answering questions, and the nature and degree of coercive and accusatory tactics used by the detectives.
Importantly, beyond this, there was a substantial amount of additional evidence the jury had to consider that focused directly and precisely on whether defendant's confession was false and how the baby died, the prosecution emphasized this evidence rather than Dr. Wang's opinion, and the jury instructions directed jurors to decide for themselves what weight, if any, to accord to Dr. Wang's opinion, witness testimony, and out-of-court statements the jury believed had been made, including defendant's statements. Defense expert Dr. Root opined as to other risks associated with an infant born to a 15-year-old who received no prenatal care and gave birth outside a hospital setting with no assistance, including the fatal risks associated with improperly cutting the infant's umbilical cord, failing to ensure the infant's clear airway, and failing to keep the infant warm. The jury was not asked to decide how the baby died based solely on Dr. Wang's opinion endorsing defendant's confession; there was other expert testimony that tended to undercut Dr. Wang's opinion. (See Wilson, supra, 33 Cal.App.5th at p. 572 [defense's rebuttal evidence a factor weighing against prejudice under Watson].)
Defense expert Dr. Sidhu gave extensive testimony about factors that supported defendant's position her confession to police was false. This included her cultural and religious background and the abuse she suffered from her husband that might influence her actions-e.g., simply agreeing with two male detectives' accusations that she drowned the baby when she had not. The defense case effectively focused the jury on all of the reasons why defendant's statements to police constituted a false confession and forced the jury to grapple with the baby's cause of death and the credibility of defendant's confession beyond Dr. Wang's opinion and his acceptance of the truth of the confession.
There were multiple witnesses (Jane, J.S. and H.D.) who gave a variety of statements to police and investigators before trial about what they saw and heard in and around the bathroom that night that could be compared against their trial testimony and that of defendant's; the jury had eyewitness testimony about the sequence of events from which to evaluate and weigh the truth or falsity of defendant's confession and what actually occurred. Most importantly, defendant took the stand and told the jury what happened and that she had not drowned the baby. She explained why she felt pressured to give the police a false statement that she had drowned the baby, which included, among other things, the worries she had for her family, her fears regarding Jagsir and the cultural and societal pressures she was experiencing. The jury had the opportunity to assess her demeanor and tone on the stand not just as to her overall credibility, or as to the truth of the confession, but also as to her truthfulness when she testified the baby had died by the time she got back to the bathroom. (See Wilson, supra, 33 Cal.App.5th at p. 572 [factoring that victims testified extensively for the jury to assess credibility in concluding expert's statistical evidence relating to victim credibility was not prejudicial under Watson standard].)
In closing arguments, Dr. Wang's opinion as to cause of death was not even mentioned. In fact, when the prosecutor briefly mentioned the autopsy findings, he conceded Dr. Wang's testimony was essentially unhelpful to ascertain what happened: "unfortunately[,] there's no anatomical science to talk to you about what happened because they covered it [up] for four months and left the child in the ground to decompose. But, again, you don't need that because you know exactly what she did because she told you." Rather than relying on Dr. Wang's opinion as to the cause of death or placing any emphasis on it, the prosecutor encouraged the jury to examine for themselves defendant's statements to police. (See Wilson, supra, 33 Cal.App.5th at p. 572 [prosecutor's lack of mention of inadmissible statistical evidence at closing argument a factor weighing against prejudice]; cf. Julian, supra, 34 Cal.App.5th at p. 889 [prejudice accrued in part because both parties emphasized inadmissible expert testimony in closing arguments, and an objection and additional jury instruction in response to defense counsel's closing argument on this evidence especially highlighted it for the jury].)
Defense counsel likewise directed the jury to the other evidence relevant to how the baby may have died and whether to credit defendant's confession, including defendant's imperfect English-speaking abilities; the tenor of the interrogation; her fears for her family who were also being held at the police station; the cultural, religious and familial pressures that affected her decision to falsely accept the blame for the infant's death; and the history of Jagsir's violence against defendant and the PTSD she suffered as a result, particularly in the context of two men conducting her interrogation.
In considering all of this evidence, the jury was instructed it was not required to accept any expert's opinion, it should assess the reasons for the expert's opinion, including the facts or information on which the expert relied, and it was the sole judge of witness credibility and the importance of any out-of-court statements the jury believed defendant had made. As we must presume the jury followed these instructions (People v. Gonzalez (2018) 5 Cal.5th 186, 202), this factors into an amelioration of prejudice (see Wilson, supra, 33 Cal.App.5th at p. 572 [jury instructed it was the sole judge of facts and witness credibility weighed against prejudicial impact of expert testimony]; People v. Lapenias, supra, 67 Cal.App.5th at p. 180 [same].)
Finally, there is no reliable indication the jury viewed this as a close case that would contribute to a likelihood that Dr. Wang's cause-of-death opinion was a pivotal piece of evidence supporting the convictions under counts 1 and 2. (See In re Gay, supra, 8 Cal.5th at p. 1087 [how readily deficient performance undermines confidence in trial outcome will in part depend on the strength of the trial evidence on any decisive points].) Defendant argues it was a close question for the jury, pointing out deliberations lasted over eight hours, and the jury requested the transcript of defendant's police interrogation.
In view of the length of the trial and the amount of witness testimony received, the length of jury deliberations by itself cannot signal a close case. (People v. Houston (2005) 130 Cal.App.4th 279, 301 [what length of jury's deliberation indicates about closeness of the case is related to the amount of information presented at trial].) This case involved 17 different witnesses, not counting instances where witnesses were recalled or were called to testify by both sides; the jury listened to witness testimony and evidence for nine trial days; and due to various holidays and some Covid-19 delays, deliberations did not begin until December 15, 2020, nearly one month after the first witness testified on November 16, 2020. The fact the jury deliberated for more than eight hours, which included time the jurors presumably took to review jury instructions, says as much about their diligence in performing their civic duty as it does about the closeness of the case.
As for the transcript request, defendant's interrogation statements were played for the jury nearly a month before they started deliberations. Without more, and in view of the time between the admission of that evidence and deliberation, it is speculative to conclude the request for a transcript signaled a close question regarding that testimony. (People v. Houston, supra, 130 Cal.App.4th at p. 301 ["to conclude that this was a 'close case' in light of the jury's actions 'in the absence of more concrete evidence would amount to sheer speculation on our part'"].) This was not a case where a jury had deadlocked on the sole issue presented at a first trial, and then asked for readbacks of several aspects of testimony on that issue at a second trial (People v. Zaheer (2020) 54 Cal.App.5th 326, 339-340), nor was it a case where the jury initially indicated it was deadlocked or asked questions that gave indications it was having difficulty resolving the issue (People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 [jury asked numerous questions before the close of evidence; during deliberations, it sought readback of five witnesses' testimony, and asked various questions signaling difficulty with resolution of the issue].).
When examining the trial record as a whole, the admission of Dr. Wang's opinion created only a possibility of a different outcome on counts 1 and 2, not a reasonable probability of one sufficient to undermine confidence in the outcome. Dr. Wang's opinion was not a prominent feature of the trial evidence, and the jury knew the opinion was the product of no expertise and had no medical substantiation; the jury had a substantial amount of other evidence from which it could assess both the credibility of defendant's confession and how the baby died, including additional expert testimony on alternative causes of death. Dr. Wang's opinion as to cause of death was never mentioned in closing arguments, and, in fact, the prosecutor reminded the jury there were no anatomical findings to support drowning as the cause of death; there is no reliable indication the jury viewed the case as a close one; and the jury was expressly instructed it was not required to accept any expert's opinion and that it should assess the credibility of witnesses for itself-an instruction we must presume it followed. In light of all the evidence the jury had to evaluate defendant's credibility and how the baby died, especially defendant's trial testimony, there is no reasonable probability a juror would have reached a different conclusion on counts 1 and 2 but for Dr. Wang's opinion the baby's cause of death was drowning.
II. Instructional Error
Without objection, the trial court instructed the jury pursuant to CALCRIM No. 359:
"The defendant may not be convicted of any crime based on her out-of-court statements alone. You may rely on the defendant's out-of-court statements to convict her only if you first conclude that other evidence shows that the charged crime for a lesser included offense was committed. That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. This requirement of other evidence does not apply to proving the identity of the person who committed the crime and the degree of the crime. If other evidence shows that the charged crime or a lesser included offense was committed, the identity of the person who committed it, and the degree of the crime may be proved by the defendant's statements alone. You may not convict the defendant unless the People have proved her guilt beyond a reasonable doubt."
Defendant contends this instruction on the corpus delicti rule violated her due process rights: while the instruction informs jurors that if they found other, slight evidence that the crime had occurred, they may rely on defendant's out-of-court statements to convict, the instruction does not inform jurors they could also rely on defendant's out-of-court statements to acquit. This violates due process, defendant claims, because it informs jurors to treat the same type of evidence differently depending on which party is relying on it and could easily have been understood to mean defendant's out-of-court statements could be considered only as evidence of guilt.
The People maintain defendant failed to object to this instruction or request any clarification at trial, and the issue is forfeited on appeal. Regardless, the People argue, the instruction, given in conjunction with CALCRIM No. 358, which informed the jury how it should evaluate out-of-court statements, would not suggest to jurors they could not rely on defendant's out-of-court statements to acquit.
A claim of instructional error is reviewed de novo. (People v. Mataele (2022) 13 Cal.5th 372, 419.) "'When considering a claim of instructional error, [the reviewing court] view[s] the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.'" (Ibid.)
To determine whether a jury instruction rises to the level of a due process violation, the question is one of fundamental fairness. (People v. Lemcke (2021) 11 Cal.5th 644, 655.) "A jury instruction may '"so infuse[] the trial with unfairness as to deny due process of law."' [Citation.] However, '"not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is '"whether the ailing instruction ... so infected the entire trial that the resulting conviction violates due process."'"' [Citations.] '"It is well established that the instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record."' [Citations.] '"If the charge as a whole is ambiguous, the question is whether there is a '"reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'"'" (Ibid.)
Defendant relies on Cool v. United States (1972) 409 U.S. 100 (Cool), which dealt with an accomplice jury instruction given where the purported accomplice gave entirely exculpatory testimony. To evaluate the accomplice's testimony, the trial court instructed the jury that, while an accomplice's testimony is "'open to suspicion,'" "'the testimony of an accomplice is competent evidence and it is for you to pass upon the credibility thereof. If the testimony carries conviction and you are convinced it is true beyond a reasonable doubt, the jury should give it the same effect as you would to a witness not in any respect implicated in the alleged crime and you are not only justified, but it is your duty, not to throw this testimony out because it comes from a tainted source.'" (Id. at p. 102.)
The Supreme Court of the United States concluded the instruction obstructed the defendant's right to present exculpatory testimony of an accomplice by totally excluding it unless the jury preliminarily determined it was extremely reliable. (Cool, supra, 409 U.S. at p. 104.) Moreover, "[b]y creating an artificial barrier to the consideration of relevant defense testimony putatively credible by a preponderance of the evidence, the trial judge reduced the level of proof necessary for the Government to carry its burden." (Ibid.) The effect of the instruction, given that the defense case rested almost entirely on the accomplice testimony, was to require the defendant to establish his innocence beyond a reasonable doubt. (Ibid.) In a footnote, which defendant relies upon primarily, the high court commented the instruction was confusing because it told the jury that the accomplice testimony "'may alone and uncorroborated'" support its verdict of guilt, but the accomplice testimony before the jury was exculpatory. Nevertheless, the court noted, even assuming the testimony was "to some extent inculpatory, the instruction was still fundamentally unfair in that it told the jury that it could convict solely on the basis of accomplice testimony without telling it that it could acquit on this basis." (Id. at p. 103, fn. 4.)
Considered as a whole, there is no similar defect with the instructions here. (People v. Mataele, supra, 13 Cal.5th at p. 419.) As the People note, the corpus delicti instruction was prefaced with an instruction pursuant to CALCRIM No. 358, which directed the jury how to consider any of defendant's out-of-court statements it found that she had made: "You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether the defendant made any of the statements in whole or in part. If you decide that the defendant made such statements[,] consider the statements along with all the other evidence in reaching your verdict. It is up to you to decide how much importance to give to the statements."
Thus, unlike in Cool, the jury knew it was to consider any of defendant's out-ofcourt statements it concluded had been made in reaching its verdict. Given CALCRIM No. 358, there is no reasonable likelihood the jury believed it could not rely on defendant's out-of-court statements to acquit. In conjunction with CALCRIM No. 358, the corpus delicti instruction under CALCRIM No. 359 merely cautioned the jury it could not convict based on defendant's out-of-court statements alone; it could not reasonably have been understood as directing the jury only to consider out-of-court statements for the purpose of conviction. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 [reviewing court must assume jurors are intelligent persons and capable of understanding and correlating all jury instructions].)
We conclude the trial court properly instructed the jury regarding the law and did so in a way that was not likely to confuse jurors. As a result, we do not reach defendant's prejudice arguments. (People v. Rogers (2006) 39 Cal.4th 826, 872 [finding no instructional error and conducting no prejudice analysis].)
Having resolved the merits of this claim against defendant, we also do not reach the People's argument regarding forfeiture.
III. Cumulative Error
Defendant claims the cumulative effect of the asserted IAC and instructional errors, even if harmless individually, was prejudicial and deprived her of her federal due process right to a fair trial.
Under the "cumulative error" doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1247, disapproved on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) As we have found only one error with respect to IAC, which was not prejudicial, there is no additional error to cumulate, and the doctrine is inapplicable.
IV. Lack of Substantial Evidence on Count 2
Defendant argues the evidence at trial is insufficient to establish she maintained any "care or custody" of the baby when she took the baby from Jane and put him in the bathtub. Such momentary physical custody, defendant contends, is insufficient to satisfy the legal requirement of "care or custody" under section 273ab. Defendant maintains no published case has interpreted "care or custody" in such a broad manner.
A. Legal Standard
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict" (Zamudio, supra, at p. 357), but "speculation, supposition and suspicion are patently insufficient to support an inference of fact" (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268).
B. Analysis
Section 273ab, subdivision (a), provides that "[a]ny person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life...." In People v. Cochran (1998) 62 Cal.App.4th 826, the court held that the "'care or custody'" language of section 273ab does not require a defendant to be a formal "caretaker" of the victim. (Cochran, supra, at p. 832.) Since the purpose of the statute is to protect young children who are particularly vulnerable, the court reasoned there was "no special meaning to the terms 'care and custody' beyond the plain meaning of the terms themselves. The terms 'care or custody' do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver." (Ibid.)
In People v. Perez (2008) 164 Cal.App.4th 1462 (Perez), the meaning of the term "care" as used in child abuse statutes was revisited. (Id. at pp. 1469-1472.) Perez lived in his sister's house with his sister and her two daughters. (Id. at p. 1466.) He was charged with child endangerment under section 273a, a statute that also requires the victim to be in the "'care or custody'" of the defendant. (Perez, supra, at p. 1468.) Perez was accused of endangering his sister's four-year-old daughter for leaving drugs and drug-filled syringes around the house within the child's reach. (Id. at p. 1473.) Perez asserted the evidence was insufficient to establish he had "'care or custody'" of the child, maintaining his relationship with her did not rise to the level of caretaker and pointed to cases involving defendants with a more clearly defined role in the victim's life. (Id. at pp. 1468-1479.)
The court rejected the defendant's argument that "care or custody" was limited to caretakers with relationships to the children such as parents, guardians or babysitters. (Perez, supra, 164 Cal.App.4th at p. 1469.) The court explained the term "care" "clearly covers not only parents, guardians, and babysitters, but also individuals who do not necessarily have as substantial a relationship to a child as a parent, guardian, and/or babysitter, but who nevertheless have been entrusted with the care of a child, even for a relatively short period of time." (Ibid.) Since Perez did, at times, assume a role of caregiver, it was incumbent upon him not to place the child in a situation where her welfare was endangered. (Id. at p. 1472.)
Further, the court explained, "the relevant question in a situation involving an individual who does not otherwise have a duty imposed by law or formalized agreement to care for a child (as in the case of parents or babysitters), is whether the individual in question can be found to have undertaken the attendant responsibilities at all. 'Care,' as used in the statute, may be evidenced by something less than an express agreement to assume the duties of a caregiver. That a person did undertake caregiving responsibilities may be shown by evidence of that person's conduct and the circumstances of the interaction between the defendant and the child; it need not be established by an affirmative expression of a willingness to do so." (Perez, supra, 164 Cal.App.4th at p. 1476, italics added, fn. omitted.)
In People v. Morales (2008) 168 Cal.App.4th 1075 (Morales), the defendant gave a 16-year-old girl a ride (Kayla) in his car. (Id. at p. 1078.) A police officer saw the defendant had expired registration tags and attempted to make a traffic stop, but the defendant refused to pull over, drove recklessly trying to evade the officer, and ended up colliding with a telephone pole and a metal post. (Ibid.) In arguing his child endangerment conviction under section 273a was not supported by substantial evidence, the defendant argued the "'care or custody'" requirement of the statute applied only to those who assume the responsibilities and duties of a caregiver. (Morales, supra, at pp. 1082-1083.) Since the child was not a relative, had never lived with him or driven with him in the past, the defendant did not have any care or custody of her. (Id. at p. 1083.) The court rejected this argument, reasoning that the child was physically in the care of the defendant, who was transporting her when he endangered her life by his conduct. (Ibid.) "As a passenger in his speeding car, Kayla was deprived of her freedom to leave, and she had no control over the vehicle. The jury could reasonably conclude that in taking it upon himself to control Kayla's environment and safety, [the] defendant undertook caregiving responsibilities or assumed custody over her while she was in his car." (Id. at pp. 1083-1084.)
Defendant argues Morales does not mean that strict physical custody in and of itself suffices for the "'care or custody'" requirement, nor has any other case extended the "'care or custody'" requirement in this manner. Defendant maintains the momentary act of picking up a child is not the same type of care or custody as agreeing to give a minor a ride, which comes with a duty, expectation and willingness to care for the minor while in the car. Here, defendant argues, the sole purpose of picking up the infant was apparently to drown the baby, which is not a caregiving activity.
The People, on the other hand, emphasize the evidence shows the baby was born in defendant's home, defendant knew or should have known the infant was her grandson, and when she took the baby away from Jane, as the jury could reasonably find, the infant was physically in defendant's care when she picked him up, and she had custody of him. The People highlight the court's statement in Morales that the defendant there "'assumed custody'" over the minor when he undertook to drive her in his car and analogized the act of giving the minor a ride to the act of picking up the infant.
Jane told Littlefield and the social worker that defendant took the baby away from her and walked toward the bathtub and that she also heard the baby being carried out of the bathroom. Defendant stated she picked up the baby from underneath the sink and ultimately placed it in the bathtub. These facts are not meaningfully distinguishable from the physical custody the defendant in Morales exercised over the minor in his car. Much like the defendant in Morales, defendant assumed physical custody of the infant when she picked him up. Similar to the minor in the vehicle in Morales, the totality of the infant's safety and wellbeing resides with the person holding him or her for the entire duration of that physical custody. The fact that defendant ultimately settled on an assaultive set of actions against the baby after picking him up does not change the initial care obligation she willingly assumed in taking physical custody of the baby from his mother. There was substantial evidence for the jury to reasonably conclude defendant had "care or custody" of her grandson when she picked him up and took him away from his mother.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P. J. FRANSON, J.