Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR170257
McGuiness, P.J.
After four-year-old Alexis Zimmerman died while in his care, a jury found Aaron Heredia guilty of second degree murder and assault on a child causing death. (Pen. Code, §§ 187, subd. (a), 273ab.) He was sentenced to prison for an indeterminate term of 25 years to life. Heredia disputes the sufficiency of evidence supporting his conviction and raises several claims of legal error. We affirm the judgment.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Bridgette Alvarez and her daughter Alexis were often homeless. In August 2003, Alvarez gave temporary guardianship of her daughter to Heredia, a man who lived (with his wife and two young children) next door to her father. On the afternoon of October 23, 2003, Alexis suffered severe injuries while she was at home with Heredia and his children. She was transported to Kaiser Hospital in Vallejo and then to Children’s Hospital in Oakland, but she died of her injuries the following day.
A felony complaint was filed against Heredia on October 29, 2003, and, after a preliminary hearing, he was charged with murder (Pen. Code, § 187, subd. (a)) and assault on a child under age eight causing death (Pen. Code, § 273ab). The matter proceeded to a trial, but the jury could not reach a verdict on either count. Heredia’s second jury trial commenced on June 30, 2005.
I. Prosecution Case
Alvarez testified that Stacey Jolly, a friend of hers, first suggested that she give custody of Alexis to someone else. She then spoke with Heredia on the phone two or three times, and he agreed to take Alexis. Alvarez had often seen Heredia with his children, and she believed he was a good father to them. No mention was made about whether Heredia’s wife would help care for the girl.
Several witnesses testified that Alexis was a normal child and not especially clumsy. She was potty-trained, and she always preferred to take baths instead of showers. Alvarez said the child refused to take showers because she did not like the water hitting her in the face. Alvarez and Alexis stayed at the home of Alvarez’s friend Dana Bidou the night before Alexis went to live with Heredia. Bidou saw Alexis in her underwear before her mother bathed her that night, and she observed no bruising or other marks on the child. Alvarez’s sister saw Alexis the next day, i.e., the day she left to live with Heredia, and she also noticed no marks or bruises on the child’s body. Alvarez and her sister last saw Alexis in the middle of September. The child was asleep in Heredia’s truck, and her hair had been shaved off. Alvarez did not notice any marks on the girl, but Alexis was wearing long sleeves and pants. Alexis appeared sad and cried some.
About a month after Alexis had moved into Heredia’s home, she stayed with his sister-in-law, Quinn Steadman, for two weeks while Heredia and his wife took a trip to Florida. Steadman became concerned because Alexis’s physical well-being seemed to be deteriorating, and she called Child Protective Services (CPS) to seek help. Alexis’s mental state was different from that of any other child Steadman had seen or cared for. She could not remember Steadman’s name or how to perform daily functions such as routines for personal hygiene. Steadman noticed Alexis was clumsy “at times” and urinated erratically—sometimes holding her urine all day, sometimes urinating several times throughout the day. Alexis also behaved strangely with food, consuming her meals rapidly as if there would not be another opportunity to eat. She bruised easily, and Steadman noticed several bruises on her body and significant redness in her crotch area. Weeks earlier, shortly after Alexis was placed in Heredia’s care, Steadman had observed burn marks on the girl’s ankles. Alexis had also suffered a broken nose, and Heredia told Steadman it happened because Alexis fell while taking a shower. However, Steadman bathed Alexis and confirmed that the child was terrified of showers. Steadman told CPS about the broken nose and bruising she saw on Alexis’s legs and back and a knot Alexis had on the back of her head. Although Heredia had told Steadman that Alexis was clumsy, the child did not fall or have any accidents while in Steadman’s care. Although Steadman told CPS she thought Heredia’s family was physically abusing Alexis, she testified that she said this because she believed it was the only way to get CPS involved. She believed Alexis needed professional help, and she wanted to do whatever was necessary to get the child taken away from her sister and Heredia because, given problems the couple was going through, she did not think they could give Alexis that help.
Around 3:30 in the afternoon on October 23, 2003, Heredia’s next-door neighbor Earl Grimm was home alone when he heard the sound of a child crying. After about five to seven seconds of crying, Grimm heard a loud crash like a heavy glass or a vase breaking, followed by a single scream and then silence. Concerned, Grimm looked out his window up and down the street, but he saw no one outside. Around 4:15 p.m., paramedics arrived at Heredia’s house in response to a 911 call. Heredia and two young children were there, and Alexis was lying on the floor, flat on her back and motionless. She was not responsive to any stimulation, was not breathing and had no pulse. A paramedic started CPR and brought Alexis into the ambulance. Heredia asked where they were taking Alexis but asked no other questions and did not accompany the paramedics to the hospital.
The paramedic testified on direct examination that Alexis’s eyes were closed but conceded on cross-examination that he could not recall whether her eyes were open or closed.
Dr. Harold Farber, a pediatrics expert who treated Alexis at Kaiser Hospital, testified that she arrived with multiple bruises on her scalp, ears, nose, buttock and thighs, which are not typical areas of child bruising. Her pupils were fixed and non-reactive, indicating she had a severe brain injury. After Alexis was resuscitated, the medical staff prepared her for immediate helicopter transport to the neurosurgical center at Children’s Hospital in Oakland. Based on his experience in dealing with cases of suspected child abuse, Dr. Farber testified Alexis’s injuries appeared consistent with “non-accidental trauma.”
Dr. Thomas Reid treated Alexis when she arrived at the intensive care unit of Children’s Hospital. When Alexis arrived at Children’s, she had unstable blood pressure, could not breathe on her own and was on life support. Dr. Reid could not detect any sign of brain function in her. He recorded bruises on both sides of her forehead, a bruise between her right eye and ear, a bruise on her right upper eyelid, several small bruises inside and outside her left ear, bruises on the outside of both thighs and a squishy lump the size of a silver dollar above her right ear. Dr. Reid explained that blunt force trauma occurs when the head is hit with something solid, like a fist or baseball bat, that does not penetrate the skin. The impact causes the brain to swell, and this swelling ultimately leads to death. A CT scan performed on Alexis’s brain demonstrated that she had such swelling, and swelling was consistent with her other symptoms on examination. Alexis was given the diuretic drug mannitol in an effort to reduce the brain swelling. However, Dr. Reid did not expect Alexis to survive because, as a result of the swelling, she had no detectable brain function. He had no doubt that Alexis had been inflicted with head trauma and no doubt that the head trauma was caused by child abuse. Analysis of Alexis’s blood indicated she had an abnormality in blood coagulation (known as “DIC”) that could cause excessive bruising, but Dr. Reid explained this condition is very common after a severe injury. Although DIC can have other causes, it is a condition induced indirectly by trauma, and Dr. Reid attributed the DIC observed in Alexis to her head injury.
Dr. James Crawford, a pediatrician specializing in child abuse, also examined Alexis while she was at Children’s Hospital. He documented extensive bruising in the same areas described by Dr. Reid and a large area of swelling on the scalp. Dr. Crawford testified these were not “normal scrapes and bruises” such as one might see on any four-year-old. Accidental lesions typically occur on the front of the body and over bony areas like the elbows, knees and shins. The amount of bruising on Alexis was “clearly far in excess of anything that’s normal,” and the lesions on her head and buttocks were particularly indicative of physical assault. Dr. Crawford had no doubt in his mind that Alexis had been severely beaten. Moreover, the presence of a bruise indicates a relatively recent injury, because bruises typically last only a week, or slightly longer. Like Dr. Reid, Dr. Crawford explained that DIC is caused by a catastrophic injury or trauma to the body. However, Crawford noted that Alexis’s blood coagulation studies at Children’s did not suggest she had DIC, and he did not believe the extensive bruising on her body was caused or heightened by DIC. He testified that Alexis died from a traumatic brain injury, which was evidenced by cerebral edema (i.e., brain swelling) and the bleeding that was present between her brain and skull.
Forensic pathologist Arnold Josselson performed an autopsy on Alexis’s body on October 24, 2003. Dr. Josselson also noted the presence of numerous bruises of varying ages, and he testified that such bruising was “almost always due to child abuse” and could not have occurred from a fall off of a bed. The area above Alexis’s right ear appeared grossly swollen, and Dr. Josselson found widespread bleeding between the scalp and skull, indicating “a rather marked blunt force injury applied to the head.” Inside the skull, there was another large hemorrhage in the area between the brain and the dura (i.e., the membrane that covers the brain), and additional small areas of hemorrhage were found on the surface of the brain itself. Dr. Josselson testified that all of these findings were consistent with blunt force head injury, and he concluded this was the cause of Alexis’s death. Dr. Josselson explained that children who suffer head injuries of this type usually die as a result of brain swelling, and such swelling was documented in films taken when Alexis was admitted to Children’s Hospital. Although the brain was not swollen at the time of autopsy, Dr. Josselson believed there were two reasons why. First, while treating Alexis, doctors administered the drug mannitol, which reduces brain swelling. Second, the swelling in Alexis’s brain caused a compression of the pituitary gland and led her to develop diabetes insipidus, something Dr. Josselson observed often happens in children. When the pituitary gland is squeezed from the brain swelling, it stops producing a hormone that causes the body to retain water. Without this hormone, the patient loses a high volume of water through urination, and hospital records indicate this is what happened to Alexis. Dr. Josselson found no injury to the neck upon examination. He did not remove the spinal cord because the CT scan showed the neck to be normal and there was no clinical indication of a neck injury. Dr. Josselson testified that a fall from a bed could not have caused all of Alexis’s injuries, and the vast majority of forensic pathologists agree that a child cannot die from a fall from a bed. Police officers determined the bedroom where Alexis was injured was carpeted, and the top of bed measured two feet three inches from the floor.
Detective Philip Silva of the Vallejo Police Department spoke with Heredia about the incident on October 23, 2003. Heredia said there had been an accident and Alexis had fallen off a bed. The only other people at home were Heredia and his two children, ages four and three; Heredia’s wife was at work when the injury happened. Heredia explained that his son was ill and he had stayed home from work for the past four days to take care of the children. When asked if he had ever hit Alexis, Heredia said he had spanked her on the bottom with a belt two nights earlier as punishment because she urinated while at the dinner table. He said the child had problems with potty training and frequently had accidents. Heredia stated that he used the belt “on a fairly regular basis” for discipline, but he admitted he got “ ‘carried away’ ” during this recent spanking. When he was shown photographs and asked about the bruising and marks on Alexis’s head and body, Heredia either denied that the bruises were present, saying he could not see them, or claimed Alexis already had them when she came to live with him. Although he denied slapping or punching Alexis in the head, Heredia admitted he once “ ‘popped’ her” in the mouth when she said a bad word. Heredia said he also used the belt to discipline his own children, but Detective Silva saw no signs of bruising or abuse on them.
Heredia told the police that on the afternoon of October 23, 2003, the children were bouncing on the bed and he went into the bedroom to make them stop. He said he picked up his son and set him down on the ground and then reached to pick up his daughter. As he did so, Alexis was bouncing across the bed. Heredia said he was playing with his daughter and did not actually see Alexis fall, but when he looked he saw Alexis lying on her back with her head facing a dresser. Her eyes were open and she did not appear to be breathing. Heredia said it “ ‘looked like she was gasping,’ ” and he thought she was playing. When he realized the child was unconscious, he carried her into the living room. Then he called his wife and 911 and also started CPR on the girl. Heredia said he believed Alexis had hit her head on the dresser or windowsill, but the police found no dents or markings on these areas indicating this happened. Heredia told the police Alexis was a very clumsy child and had injured herself several times in his home. For example, once Alexis was taking a shower, and after Heredia left the room she slipped and fell flat on her face, injuring her nose. Other times, she tripped and fell in the garage and on the front brick steps. Heredia also told the officers Alexis had several injuries when he got her from her mother, including extensive bruising and burn marks on her ankles, and she also had lice in her hair. He showed the officers a bill for her treatment and said Alexis needed medical attention because she had been abused by her mother and was “not all there.”
II. Defense Case
Stacey Jolley saw Alvarez and Alexis frequently during the spring and summer of 2003. Once, near the end of July 2003, Jolley saw Alexis crying hysterically. When Jolley asked what was wrong, Alexis showed her marks she had across her bottom, lower back and upper thighs.
Alvarez’s stepmother, Yolanda Wiegers, testified that Alvarez had a poor reputation for honesty and she believed Alvarez was a compulsive liar. Wiegers noticed Alexis was clumsy at times, but she thought it was due to Alexis’s young age and she believed Alexis was a bright child. Alexis had very pale skin that showed bruises intensely, but Wiegers did not see any bruising on the child in August 2003, before she left to live with Heredia.
The defense also presented expert testimony from Dr. Janice Ophoven, a pediatric and forensic pathologist with the medical examiner’s office of St. Louis County in Minnesota. Dr. Ophoven testified that the slides she received from Dr. Josselson’s autopsy were inadequate. Although there were sections of abnormal scalp and abnormal dura, slides of brain tissue itself were normal. In Dr. Ophoven’s opinion, the finding of normal brain tissue was inconsistent with the conclusion that Alexis died from brain damage due to blunt force trauma. In a death induced by head trauma, she would expect to see physical damage to the brain tissue itself. She testified that the drug mannitol could not erase all traces of swelling; even if mannitol caused a temporary reduction in swelling, she explained, one would still see damage to areas of the brain where herniation had occurred. Mannitol would cause a temporary reduction in swelling, but “as long as there’s circulation to the brain, the water is going to go back.” Based on Heredia’s description to the police about how Alexis appeared after she fell from the bed, Dr. Ophoven said she would have investigated both head trauma and the possibility of an injury to the upper spinal cord. There was a normal CT scan of the cervical spine in this case, but Dr. Ophoven thought the scan was incomplete and noted CT scans are not necessarily able to diagnose the type of spinal cord injury Alexis may have sustained. Given the autopsy finding of a normal brain, Dr. Ophoven would have investigated whether the cause of death was injury to the cervical spine instead of brain damage. However, she conceded that whichever was the actual mechanism of death (i.e., cervical spine injury or brain damage), the event that caused the blunt force trauma to Alexis’s head is what killed her. She also agreed there was no doubt Alexis had suffered abusive injuries to her body.
Neuropathology expert Roscoe Atkinson also testified that the autopsy findings did not support a conclusion that Alexis died of a blunt force head injury. Although the subdural hematoma indicated she suffered some type of head trauma, it was not extensive enough to have caused her death. If she had suffered a blow to the head so strong that she died as a result of brain swelling, Dr. Atkinson would expect to find herniation in the brain at autopsy, yet there was no evidence of it in this case. Moreover, because the effect of mannitol only lasts for four hours, it could not be responsible for the normal brain size observed at autopsy. Atkinson also consulted with a radiologist and believed the CT scan taken at Children’s Hospital did not show extensive cerebral edema. An injury to the cervical spine, however, could cause a person to stop breathing and Dr. Atkinson testified children’s spinal cords are especially delicate. Assuming that Alexis injured herself in falling from a bed to a carpeted floor, Atkinson believed the autopsy findings and CT scans in this case would support a diagnosis of injury to the cervical spine.
III. Verdict and Sentencing
On July 18, 2005, the jury found Heredia guilty of second degree murder and assault on a child causing death. (§§187, subd. (a); 273ab.) The trial court denied probation and sentenced Heredia to 25 years to life imprisonment on the charge of assault causing death, with an additional sentence of 15 years to life imposed for the murder charge but stayed pursuant to section 654. The court also ordered restitution of $10,000 under sections 1202.4, subdivision (b) and 1202.45 and ordered victim restitution of $3,031.28.
DISCUSSION
I. Substantial Evidence Supports the Conviction
As is clear from our recitation of the evidence presented at trial, Heredia’s defense rested largely upon expert medical testimony casting doubt on the stated cause of Alexis’s death. The medical examiner and physicians who treated the child all testified she died of brain damage induced by blunt force trauma. Defense expert witnesses doubted that brain damage was the cause of death and speculated that the true cause might have been a spinal cord injury. However, one defense expert conceded that whether the medical cause of death occurred in the brain or in the spinal cord, the event that led to this fatal injury was a blunt force trauma to the child’s head. Heredia now argues that even assuming Alexis died from a blunt force trauma to the head, “there was not sufficient evidence from which a reasonable trier of fact could have found beyond a reasonable doubt that it was appellant who intentionally caused the blunt force trauma.” We disagree.
In reviewing a claim of insufficient evidence, “ ‘[a] reviewing court . . . determines “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.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.) A judgment supported by substantial evidence will not be reversed on appeal even if the trier of fact might reasonably have reached a different conclusion from the evidence. (People v. Taylor (2004) 119 Cal.App.4th 628, 639.)
Substantial evidence supports the jury’s conclusion that Heredia inflicted the head trauma that caused Alexis’s death. When the incident occurred, the only people in the house with Alexis were Heredia and his two small children. Besides the severe blow she suffered to the head, Alexis’s face and body were covered with bruises, which all the medical experts agreed were the result of child abuse. Alexis came to live with Heredia in late August 2003, and so had been in his care for almost two months when doctors observed her bruised and battered condition. Based on expert medical testimony that bruises typically last not much longer than a week, and Heredia’s own admission to police that he had “popped” the four-year-old child in the mouth on occasion and spanked her with a belt, the jury could reasonably infer that Heredia was the person who had inflicted the abuse seen on Alexis’s body. In addition, the jury could reasonably credit the testimony of the medical examiner and every doctor who treated Alexis that she died from a blunt force head injury that could not have resulted from a short fall off a bed. Her injuries were consistent with having been beaten to death, Heredia was the only person at home on October 23, 2003, capable of inflicting such injuries upon her, and the jury heard evidence indicating Heredia had been beating the child for some time. Given this evidence, it was reasonable for the jury to conclude Heredia inflicted the fatal head injury. Evidence of the surrounding circumstances also supports this inference. Heredia’s next-door neighbor testified that he heard the sound of a child crying for several seconds before he heard a loud crash, followed by a scream and then silence. The crying before the crash is more consistent with the prosecution’s version of events, i.e., a beating that perhaps “got a little out of hand” (as Heredia described his recent use of the belt on Alexis), than of children playfully jumping on the bed.
For example, Heredia’s sister-in-law noticed significant bruising on Alexis’s body and observed that the child had suffered a broken nose, and she believed the girl’s physical well-being was deteriorating while she was in Heredia’s care.
Heredia argues there is no evidence proving he did any specific act on October 23, 2003 that caused Alexis’s death. But the jury was entitled to infer this fact from all the circumstantial evidence just discussed. “The [substantial evidence] standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Finally, Heredia argues his case resembles Smith v. Mitchell (9th Cir. 2006) 437 F.3d 884, in which the Ninth Circuit Court of Appeals concluded on habeas corpus that insufficient evidence supported a grandmother’s conviction for assault on a child causing death. Although Heredia failed to acknowledge such in his appellant’s reply brief, Smith is no longer good law. On April 30, 2007, the United States Supreme Court granted certiorari, vacated the judgment and remanded the case for reconsideration in light of Carey v. Musladin (2006) 549 U.S. __ [127 S.Ct. 649]. (Patrick v. Smith (2007) 549 U.S. __ [127 S.Ct. 2126].) In any event, the facts of Smith are readily distinguishable from the present case. The defendant in Smith was convicted for the death of her seven-week-old grandchild. The attending physician suspected the cause of death was Sudden Infant Death Syndrome, and several medical indications of Shaken Baby Syndrome were absent. (Smith v. Mitchell, supra, 437 F.3d at pp. 886-887.) The child had only a small amount of subdural bleeding and a very small scalp abrasion but none of the frequently seen signs of physical violence—“no retinal bleeding, and no fractures or large bodily bruises common in cases of shaking.” (Id. at p. 887.) Such signs of abuse were present in abundance on Alexis’s head and body. In addition, the Ninth Circuit Court of Appeals found it significant that there was no evidence the grandmother had ever abused or neglected the other two toddlers she was helping her daughter raise. (Id. at p. 889.) Here, although no evidence suggested Heredia abused his own children, the jury heard substantial evidence indicating he inflicted physical abuse on Alexis while she was in his care. Indeed, Heredia even admitted to police that he had gotten “carried away” and used excessive physical force while punishing Alexis with a belt.
The issue in Musladin concerned the prejudicial effect of buttons worn by spectators at a criminal trial. The United States Supreme Court determined the Ninth Circuit Court of Appeals had improperly granted habeas relief because, absent Supreme Court authority on the issue, the California appellate court’s decision was not “contrary to or an unreasonable application of clearly established federal law.” (Carey v. Musladin, supra, 127 S.Ct. at p. 654.) The remand of Smith with directions for the Ninth Circuit to reconsider in light of Musladin suggests the high court had similar concerns about the court’s exercise of habeas powers in Smith.
Dr. Reid testified that he observed retinal bleeding when he examined Alexis’s eyes.
II. Hearsay Evidence Was Properly Excluded
Before trial, Heredia filed an in limine motion to admit hearsay statements by Alexis that her mother had abused her and used drugs in front of her and that she wanted to keep living with the Heredias. Heredia also sought to admit evidence of statements he made to a friend about Alexis’s physical condition on the night she came to live with him and statements to a coworker seeking advice on how to obtain help from government agencies in caring for Alexis. The trial court refused to admit any of this evidence, and Heredia now claims these rulings were an abuse of discretion that deprived him of a federal due process right to present a complete defense. We review rulings on the admissibility of evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.)
A. Statements by Alexis about Past Abuse
At the hearing on Heredia’s in limine motion, defense counsel said he wanted to offer testimony from Stacey Jolley that about one week before Alexis went to live with Heredia, Jolley saw the child crying. Jolley would testify that Alexis spontaneously exclaimed to her, “ ‘My mommy hit me with the dog leash. The [sic] mommy burned me.’ ” Although this statement was made at least two months before Alexis died in October 2003, defense counsel argued it was relevant to explain that a pattern mark found on Alexis’s ankle came from this beating with a leash and thus was not inflicted by Heredia. The court ruled that if the prosecution introduced evidence about the pattern mark, the defense could present expert medical testimony showing the mark was made two months earlier by a dog leash instead of a belt; however, the court refused to allow the defense to rely on a hearsay statement from the child to prove this point.
Defense counsel argued Alexis’s statement was admissible as a spontaneous declaration under Evidence Code section 1240, but the trial court found the statement did not fit within this exception to the hearsay rule. We agree. “ ‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318.) The problem with Alexis’s statement is that she did not say when her mother hit her with a leash or burned her, and the defense offered no evidence to show that any such event happened so close in time to the statement that one could infer it was uttered while Alexis was still in a state of nervous excitement. To be admissible under Evidence Code section 1240, “the statement must be the product of a reaction to a stimulus . . . and not the product of processing information in a deliberative manner.” (People v. Gutierrez (2000) 78 Cal.App.4th 170, 181.)
Heredia now contends the hearsay statement was admissible under Evidence Code section 1360 as the report of abuse by a child under age 12. Evidence Code section 1360 authorizes the admission of such evidence upon a showing of sufficient indicia of reliability and, if the child is unavailable to testify, the presentation of corroborating evidence of abuse. (Evid. Code, § 1360, subd. (a)(2), (3).) Because Heredia did not seek to admit the statement on this basis below, he did not preserve the issue for review. “It is ‘the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.’ [Citations.]” (People v. Raley (1992) 2 Cal.4th 870, 892.) Such “ ‘specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence.’ [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 424; see also People v. Partida (2005) 37 Cal.4th 428, 433-435 [discussing specificity requirement in regard to claims of erroneous admission of evidence].) The trial court did not have an opportunity to decide whether the circumstances surrounding Alexis’s statement supported its reliability, or whether sufficient corroboration had been presented, and we decline to address such factual matters for the first time on appeal.
Although the same rule generally applies when a defendant fails to preserve claims asserting federal constitutional rights (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7), the Supreme Court recently recognized a narrow exception when a criminal defendant argues a trial court’s erroneous evidentiary ruling “was so serious as to violate due process.” (People v. Partida, supra, 37 Cal.4th at p. 436.) Although Heredia also asserts a due process claim on appeal, we need not reach it because we conclude the trial court did not err in excluding the proferred evidence.
Moreover, any error in excluding the evidence was harmless. Heredia told Detective Silva that Alexis had extensive bruising and burn marks on her ankles when he received the girl from her mother, and Quinn Steadman testified that she observed burn marks on the Alexis’s ankles shortly after Alexis was placed in Heredia’s care. In addition, the jury heard from Jolley herself about the incident near the end of July 2003. Without reciting the hearsay statement, Jolley testified that she saw Alexis crying hysterically and when Jolley asked what was wrong, Alexis displayed marks she had across her bottom, lower back and upper thighs. Thus, the jury was well aware that Alexis might have suffered physical abuse before she came into Heredia’s care, and the hearsay statement from Alexis was cumulative. It was also of tangential relevance to the central issue of whether the child’s death resulted from a freak accident or a beating at the hands of Heredia, since Alvarez testified she last saw her daughter a month before the girl died and no evidence suggested abuse from months earlier could have caused the death.
For this reason, the case is distinguishable from People v. Basuta (2001) 94 Cal.App.4th 370, 387-388, in which the defendant daycare provider charged under Penal Code section 273ab was prevented from presenting any evidence that the child’s mother had previously been accused of abusing the child.
B. Statements by Heredia that He Sought Help for Alexis
Heredia also argues the trial court erred in excluding statements he made to a work colleague to the effect that he was seeking help for Alexis. Defense counsel asserted these statements were not offered for truth but rather to show that Heredia did not harbor a malicious intent or motive with regard to Alexis. (Evid. Code, § 1250, subd. (a)(1) [evidence of declarant’s then-existing state of mind not inadmissible hearsay when offered to prove a state of mind that is at issue in the action].) However, as the trial court observed, Heredia’s state of mind about Alexis in conversations with his coworker in September or even early October was not relevant to any disputed issue. The “state of mind” question for the jury was whether Heredia acted with malice on October 23, 2003 when he caused Alexis to suffer a fatal head trauma. Because Heredia’s statements to his coworker were inadmissible hearsay, the trial court did not err in excluding them.
The prosecutor understood these conversations occurred in August and early September. Defense counsel represented they “may have gone on into October” but he was “not exactly clear about when they occurred.” No Evidence Code section 402 hearing was held, and counsel provided no further offer of proof.
III. No Error in Denial of Trombetta Motion
Heredia filed an in limine motion to dismiss the case pursuant to California v. Trombetta (1984) 467 U.S. 479, due to the prosecution’s failure to preserve Alexis’s body for testing by defense experts. An autopsy was performed on October 24, 2003, the afternoon of Alexis’s death. According to the motion, on November 3, 7 and 10, defense counsel asked the prosecutor assigned to the case to preserve the remains for examination by a forensic pathologist to be retained by the defense. On November 10, 2003, the Solano County Coroner advised defense counsel that the child’s body had been taken to a mortuary. A supervisor at the mortuary informed counsel that the remains were scheduled to be disposed of on November 12 or 13, but the mortuary would preserve them if the district attorney requested. The assigned deputy district attorney declined to do so, noting that the brain and eyes and several tissue samples had been preserved for defense examination, and Alexis’s body was cremated on November 12, 2003. Based on the opinions of a retained pathologist, Dr. Ophoven, Heredia argued Alexis’s lungs and spinal cord had exculpatory value that should have been apparent at the time of autopsy, and the prosecution therefore had a duty to preserve this evidence for defense examination. The trial court denied the motion, concluding the exculpatory value of the body was not readily apparent; instead, the defense motion presented “basically a battle of the experts on the issue of cause of death.” The court also found there was no proof of bad faith by the district attorney in failing to preserve the body. Heredia challenges these rulings on appeal.
“Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence ‘that might be expected to play a significant role in the suspect’s defense.’ (California v. Trombetta[, supra,] 467 U.S. [at p.] 488; accord, People v. Beeler (1995) 9 Cal.4th 953, 976.) To fall within the scope of this duty, the evidence ‘must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ (California v. Trombetta, supra, 467 U.S. at p. 489; People v. Beeler, supra, 9 Cal.4th at p. 976). The state’s responsibility is further limited when the defendant’s challenge is to ‘the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ (Arizona v. Youngblood (1988) 488 U.S. 51, 57.) In such case, ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ (Id. at p. 58; accord, People v. Beeler, supra, 9 Cal.4th at p. 976.) [¶] On review, we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling. [Citation.]” (People v. Roybal (1998) 19 Cal.4th 481, 509-510.)
Substantial evidence supports the trial court’s finding that the exculpatory value of Alexis’s spinal cord and lungs was not apparent before her body was cremated. Alexis had no signs of brain activity when she arrived at Children’s Hospital, and all of the physicians who treated her believed she had suffered a massive brain injury. The medical examiner found indications of blunt force head trauma during the autopsy and concurred with the treating doctors’ conclusion that the child died from a brain injury. The examiner noted, “there was no clinical suspicion of any neck injury,” and a CT scan showed no evidence of an injury to the spinal cord. Given the consistent opinions of the treating doctors and medical examiner that Alexis died of a head injury, the exculpatory value of other parts of her body was not so apparent that due process required the state to preserve them. Due process does not require the prosecution “to gather and collect everything which, with fortuitous foresight, might prove useful to the defense. [Citations.]” (People v. McNeill (1980) 112 Cal.App.3d 330, 338.) Moreover, although the second prong of Trombetta may have been met, in that bodily remains are “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means” (California v. Trombetta, supra, 467 U.S. at p. 489), this fact is immaterial because “Trombetta’s two-prong test of materiality is in the conjunctive not the disjunctive, and both prongs must be met before an item can be classified as ‘ “constitutionally material” ’ [citation].” (People v. Sixto (1993) 17 Cal.App.4th 374, 398.)
At most, the physical evidence sought by the defense was potentially useful, in that “it could have been subjected to tests, the results of which might have exonerated the defendant.” (Arizona v. Youngblood, supra, 488 U.S. at p. 57.) Again, however, substantial evidence supports the trial court’s finding that the prosecution acted in good faith. Although defense counsel repeatedly requested that the body be preserved, it appears from the record that counsel had not yet retained a pathologist to examine the body when these requests were made. Nor did Heredia seek a court order to preserve the remains until he could retain such an expert. “After the autopsy or investigation is completed by the coroner, the right to control disposition of the remains of a deceased and the duty of interment devolve on the family of the deceased (Health & Saf. Code, § 7100; [People v.] Vick [(1970) 11 Cal.App.3d 1058,] 1065). Although a ‘trial court has the discretion to allow discovery by a criminal defendant including the examination of a body in some circumstances,’ a court will not judicially legislate to require ‘a coroner retain possession of a body until a defendant requests permission to conduct his own autopsy examination. Due process does not compel such a ruling.’ [Citation.]” (People v. McNeill, supra, 112 Cal.App.3d at p. 338.) The prosecutor assured defense counsel that the brain and eyes and tissue samples preserved from the body would provide adequate material for examination by a defense pathologist. The defense did not request that specific other materials be preserved, and at that time—before defense experts pointed out possible causes of death other than brain injury—there was no reason for the prosecutor to think preservation of additional body parts was necessary. Accordingly, there was no due process violation, and the trial court properly denied Heredia’s motion to dismiss.
IV. Prosecutor Did Not Commit Misconduct in Closing Argument
Next, Heredia claims the prosecutor committed misconduct during closing argument by trivializing the reasonable doubt standard and misstating the law of intent, and he argues this misconduct was significant enough to amount to a denial of due process. “A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Morales (2001) 25 Cal.4th 34, 44.)
Heredia first complains that the prosecutor’s attempt to explain the state’s burden of proof trivialized the reasonable doubt standard. On this topic, the prosecutor stated: “The burden is quite rightly upon me as the People’s representative to prove the defendant guilty beyond a reasonable doubt. ¶] You are expecting us, as you should, to hold me to that standard, and nothing less. I don’t ask you to; I don’t expect you to; wouldn’t want you to, but what does that mean? What does ‘beyond a reasonable doubt’ mean? [¶] Ultimately, you are going to find two things: Number one is the instruction His Honor will give you is, quite frankly, little or no help. [¶] Ultimately, it is, you are going to have to decide what beyond a reasonable doubt means for each of you individually. The best I can do is offer you this: You know, as I said before, there’s 15 of you; very diverse backgrounds. You all bring in very diverse life experiences, which is what we want in jurors. [¶] Well, what I can say is that there isn’t a one of you, the 15 among you up here, who got to this stage of your life that you haven’t had to make important decisions in your lives. [¶] Now, I’m not talking about, you know, sort of normal, every-day type of decisions, you know, where, ‘I got up this morning. Should I wear the blue tie with this suit or the red tie?’ [¶] Or, you know, ‘Should I take I-80 home or 680?’ [¶] No, I am talking about those occasions in life which, whether we want it or not, life impresses upon us the need to make important decisions, and we can’t avoid them; we have to make a decision. [¶] I mean, we talk about things maybe involving our relationships, our families, our jobs, you know, health care matters, you know, of importance.”
At this point defense counsel interrupted and objected that the prosecutor’s argument was diminishing the burden of proof. The objection was overruled, and the prosecutor continued: “So what do you do? I mean, you know, a lot of times, we really don’t want to have to make those kind of decisions. We wish, you know, ‘I wish my parents were still alive to make them for me. I don’t want to be this grown-up but I have to.’ [¶] As reasonable people, we gather the facts as best we can that bear upon our ability to make that decision reasonably, and then we apply our reason to them, and if having done that, there is one reasonable course of conduct or decision to make, then we as reasonable people choose to do so. [¶] We do not as reasonable people consciously choose the unreasonable alternative. [¶] That’s how I would offer it to you. It’s an important decision, but it is one that can and should be made.”
Heredia complains the prosecutor’s reference to decisions involving “relationships, our families, our jobs, . . . health care matters” trivialized the reasonable doubt standard in the same way that occurred in People v. Nguyen (1995) 40 Cal.App.4th 28. In Nguyen, the prosecutor told the jury reasonable doubt is “ ‘a very reachable standard that you use every day in your lives when you make important decisions’ ” and then gave as examples “ ‘decisions about whether you want to get married’ ” or about whether it is safe to change lanes while driving. (Id. at p. 35.) The appellate court observed these examples were misleading and minimized the prosecution’s burden: “It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. [Citations.]” (Id. at p. 36.) However, while expressing “strong[] disapprov[al] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry,” the court concluded the issue was waived and any error was harmless. (Id. at pp. 36-37.)
A similar explanation of the standard was found to be improper in People v. Johnson (2004) 115 Cal.App.4th 1169. In Johnson, the trial court attempted to distinguish reasonable doubt from “ ‘a mere possible doubt,’ ” such as a doubt as to the “ ‘whether we will be here tomorrow’ ” (Id. at p. 1171.) The court said, “ ‘It’s not reasonable for us to [have that doubt] because we plan our lives around the prospect of being alive. We take vacations; we get on airplanes. We do all these things because we have a belief beyond a reasonable doubt that we will be here tomorrow or we will be here in June, in my case, to go to Hawaii on a vacation.’ ” (Ibid.) Citing Nguyen, the appellate court concluded these comments had the effect of lowering the prosecution’s burden of proof. (People v. Johnson, supra, 115 Cal.App.4th at p. 1172.) The court remarked, “We are not prepared to say that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors or that such people finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor. Nor can we say that people make such decisions while aware of the concept of ‘beyond a reasonable doubt.’ ” (Ibid.)
Unlike Nguyen, however, the Johnson court believed the error was not waived by the defendant’s failure to object and reversal was required because the court’s statement was the equivalent of an instruction. (People v. Johnson, supra, 115 Cal.App.4th at p. 1172.)
The prosecutor’s statements in this case were very different from the remarks at issue in Nguyen and Johnson. Whereas those courts disapproved of comparisons that equated application of the reasonable doubt standard to casual decisions jurors make in daily life, such as changing lanes or planning travel, here the prosecutor cautioned jurors their task was not the same as making “normal, every-day type of decisions.” He reminded jurors that they had made “important decisions” and described the deliberations they were required to undertake in reaching such decisions (“we gather the facts as best we can that bear upon our ability to make that decision reasonably, and then we apply our reason to them . . .”). All of this was appropriate argument. (See People v. Dennis (1998) 17 Cal.4th 468, 522 [challenged statements must be considered in the context of the argument as a whole].) We do not believe the prosecutor committed misconduct by referring to the general topics of “relationships, . . . families, . . . jobs, . . . health care matters” as areas where important decisions are sometimes necessary. The prosecutor avoided comparing the jury’s task to any specific decision, which might have risked trivializing the reasonable doubt standard, and there is no reason to fear the jury would be misled by the mere mention of these broad topics. (See People v. Cole (2004) 33 Cal.4th 1158, 1202-1203 [on review of a claim of prosecutorial misconduct during closing argument, “ ‘the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion’ ”].)
Heredia also claims the prosecutor misstated the law in discussing the mental state required to convict him of the charged offenses. After explaining that implied malice may be found when a person does not state an express intention to kill but commits an inherently dangerous act from which “you can presume . . . an intent to kill,” the prosecutor gave some examples of inherently dangerous acts and then asserted implied malice could be found on the facts of the present case. He argued Heredia exhibited implied malice “by choosing consciously, deliberately, and repeatedly, to batter the body [of] 40 pound, four-year-old Alexis Zimmerman. [¶] Should have, would have, did, accept the risk that when she in fact died as a result of it, he is responsible. That is such an inherently dangerous act for an adult to batter a child of four years old, 40 pounds, that yes, the law will impute to you the malice, the responsibility, for your acts.” The prosecutor then went on to state, “The second count . . . is that . . . the defendant did in fact batter a child under eight years old and that resulted in her death. [¶] You don’t have to prove any intent to kill on the second count. . . . [¶] Just want to call it battery, assault on a child under eight years old. You don’t have to prove any intent for him to injure her in any way to find him guilty of that, just that he intended to assault her. [¶] . . . The fact that death or any injury or anything resulted from that, you don’t even have to find that whatsoever.”
Heredia now argues these statements of the law were wrong and may have led the jury to convict him based on his commission of previous batteries on Alexis. Although it is misconduct for a prosecutor to misstate the applicable law (People v. Boyette, supra, 29 Cal.4th at p. 435), Heredia’s failure to object or seek an admonition forfeited this claim on appeal. (People v. Gray (2005) 37 Cal.4th 168, 217; People v. Schmeck (2005) 37 Cal.4th 240, 286.) We disagree with Heredia’s claim that an objection would have been futile simply because the trial court overruled one previous objection to the prosecutor’s argument. In response to a later objection from defense counsel, during the prosecutor’s rebuttal argument, the court overruled the objection but cautioned the jury “to rely on the evidence, and not what counsel says the evidence is.” Likewise, upon a timely objection the court could have easily corrected any misstatements of law by the prosecutor.
Heredia also argues his trial counsel rendered ineffective assistance by failing to object to the asserted misconduct. However, because the record reveals no explanation for counsel’s failure to object, this issue would be cognizable only on habeas corpus as part of a claim of ineffective assistance of counsel. (People v. Dennis, supra, 17 Cal.4th at pp. 521-522.) Moreover, because we conclude the prosecutor did not materially misstate the law and the jury was properly instructed, it is not reasonably probable that counsel’s failure to object affected the guilt verdict. (See ibid.)
In any event, the prosecutor’s comments about implied malice did not misstate the law in any significant respect. A conviction for second degree murder may be based upon a finding of implied malice, which requires only that the defendant intentionally committed an act that is dangerous to human life with knowledge of this danger and conscious disregard for human life. (People v. Frye (1998) 18 Cal.4th 894, 963.) As the jury was properly instructed, it is not necessary for the prosecution to prove the defendant intended the act to result in death. (Ibid.; People v. Dellinger (1989) 49 Cal.3d 1212, 1217-1222.) The prosecutor was also correct that the crime of assault on a child causing death (§ 273ab) does not require an intent to kill. (See People v. Lewis (2004) 120 Cal.App.4th 837, 856.) “Section 273ab is a general intent crime. The mens rea for the crime is willfully assaulting a child under eight years of age with force that objectively is likely to result in great bodily injury—that is, the assault must be intentional.” (People v. Albritton (1998) 67 Cal.App.4th 647, 658.)
Nor do we agree with Heredia’s speculation that jurors might have misunderstood from the prosecutor’s argument that they could convict him of either count if they found only that he had battered Alexis at some previous time. The prosecutor never suggested the jury could convict Heredia of the charged offenses without finding that he took an action that caused the child’s death. On the contrary, with respect to second degree murder, the prosecutor argued that in deliberately battering Alexis Heredia accepted “the risk that when she . . . died as a result of it” he would be held responsible. (Italics added.) As to the section 273ab charge, the prosecutor argued Heredia was guilty because he “did in fact batter a child under eight years old and that resulted in her death.” (Italics added.) True, the prosecutor later said, “[t]he fact that death or any injury or anything resulted from that, you don’t even have to find that whatsoever”; however, read in context, it appears this statement was made when the prosecutor was describing the lesser included offense of simple assault. (§ 240.) Moreover, the jury was properly instructed as to the required elements of the charged offenses and all lesser included offenses, and the court told the jury to disregard any statements of law by the attorneys that conflicted with instructions given by the court. We must presume the jury followed these instructions, and thus any misstatement by the prosecutor was rendered harmless. (People v. Nguyen, supra, 40 Cal.App.4th at p. 37.)
V. Denial of Hearing on Juror Misconduct Was Not an Abuse of Discretion
After he successfully obtained the names and addresses of eight jurors who did not object to such disclosure, Heredia filed a motion seeking a new trial or a continuance of sentencing to allow him to examine a juror he asserted had committed misconduct by withholding information or lying in voir dire. A defense investigator had discovered that Mike J., the brother of juror Lawrence J., once played on a baseball team coached by Heredia’s father. Another member of the team, Josanni Goree, told the investigator Mike J. and Heredia were good friends and Heredia often visited Mike J. at his home in Richmond. Goree told the investigator “he was absolutely sure” juror Lawrence J. knew Heredia, and Goree believed Lawrence did not like Heredia.
Goree also submitted an affidavit to the same effect. He declared he had known Heredia for 20 years and was also friends with Mike J. Goree stated that during the period from 1985 to 1989, when he, Heredia and Mike J. were in high school together, Goree saw Heredia visiting at Mike J.’s house while Lawrence J. was present. On many occasions, Goree noticed Lawrence J. “acting in a manner that suggested he strongly disliked” Heredia. For example, sometimes when Heredia arrived Lawrence would tell his brother to come inside the house. Other times, Lawrence would not allow Mike to ride in a car with Heredia. Goree noticed Lawrence’s behavior was different when Heredia was not present, and he stated, “I know that Lawrence . . . objected to and disliked Aaron Heredia.” Goree believed this dislike was partly motivated by Heredia’s Hispanic ethnicity, whereas Lawrence, Mike and Goree were of African-American descent. Goree also stated his belief that Lawrence J. continued to have contact with Heredia after 1989 because Mike J. and Heredia were close friends.
Finally, Heredia’s wife submitted an affidavit stating that, during trial, she and her nieces were approached outside the courthouse by a black male juror. He said the women looked familiar and asked if he knew them from somewhere.
In response, the prosecutor submitted an affidavit from juror Lawrence J. The juror declared that he did not know Heredia and did not recall ever seeing him before the first day of trial. Lawrence J. stated that he graduated from high school in 1985 but moved out of his mother’s house in Richmond shortly before graduation. His brother Mike, who was four years younger, did not start high school until after Lawrence had graduated. Lawrence stated he often visited his mother and brother, sometimes when Mike had friends over, but Lawrence declared, “My brother had a lot of friends and I do not remember everyone that he associated with twenty years ago.” He further stated, “The fact that Aaron Heredia may have been a past associate of my brother had nothing to do with my decisions or conduct as a juror on this case.”
“[W]hen a criminal defendant moves for a new trial based on allegations of jury misconduct, the trial court has discretion to conduct an evidentiary hearing to determine the truth of the allegations. . . . [H]owever, . . . the defendant is not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact.” (People v. Hedgecock (1990) 51 Cal.3d 395, 415.)
Having considered all the affidavits, the trial court found no material issue of fact in dispute. In conversations with the defense investigator and in his affidavit, the juror consistently denied knowing Heredia. It was established that the juror’s brother attended high school with Heredia, but this was after the juror himself had graduated. The court dismissed as “rank speculation” assertions in Goree’s affidavit about the juror’s state of mind and further observed that, if there had been a relationship between Heredia and the juror, Heredia would have been in a better position to say so, yet he had submitted no declaration or testimony to that effect.
The trial court’s ruling was an appropriate exercise of discretion. The court reasonably credited the consistent statements and declarations of juror Lawrence J. that he did not recall ever meeting Heredia over the speculations of a friend of the juror’s brother that Lawrence must have known Heredia because Heredia was a friend of the brother and must have disliked Heredia because of his ethnicity. Instead of relying on such conjectures from his friend, Heredia himself could have provided the most pertinent evidence of any relationship or animus between himself and Lawrence J., yet, although he saw this juror every day throughout the proceedings, he never mentioned such a connection. Moreover, we note that over a four-month period the defense filed repeated motions to continue Heredia’s sentencing based on various allegations of juror misconduct. The Supreme Court has cautioned that an evidentiary hearing “should not be used as a ‘fishing expedition’ to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred.” (People v. Hedgecock, supra, 51 Cal.3d at p. 419.) Because the declarations submitted below did not establish such a “strong possibility” of prejudicial misconduct (ibid.), the trial court here did not abuse its discretion in denying an evidentiary hearing.
VI. No Cumulative Effect Requires Reversal
Heredia contends the cumulative effect of errors resulted in a miscarriage of justice such that his conviction must be reversed for denial of due process. (See People v. Hill (1998) 17 Cal.4th 800, 844-845.) However, because we have either rejected his claims of error on the merits or found any assumed errors to be nonprejudicial, no cumulative effect of prejudice exists that would require reversal. (People v. Sapp (2003) 31 Cal.4th 240, 316.)
VII. No Showing Court Misunderstood Probation Eligibility
Without referencing a statutory basis for its conclusion, the probation department’s presentence report in this case stated that Heredia was “prohibited from a grant of probation” due to the nature of his convictions. Heredia now argues the case must be remanded for a new sentencing hearing because this assessment was incorrect, and it is unclear whether the trial court understood he was eligible for probation.
Section 1203, subdivision (e) describes various circumstances in which a convicted person is presumptively ineligible from receiving a grant of probation. Specifically, with regard to the facts of this case, the statute provides: “Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to . . . [¶] [a]ny person who willfully inflicted great bodily injury or torture in the perpetration of the crime . . . .” (§ 1203, subd. (e)(3).) The probation department did not cite section 1203, but a reference to this statutory directive is clearly implied from the report’s statement that probation was “prohibited.” We do not agree with the Attorney General’s interpretation of the report as merely expressing the probation officer’s opinion that probation should be denied based on the circumstances of the offenses; if that were the case, the report would not have stated twice that the court was “prohibited” from granting probation.
Section 1203, subdivision (e)(3) renders a defendant presumptively ineligible for probation only when the defendant has “willfully” inflicted great bodily injury on the victim. In addressing the probation eligibility of another defendant convicted of assaulting a child causing death, the appellate court in People v. Lewis, supra, 120 Cal.App.4th at pp. 852-854, concluded this provision requires that the defendant harbored a specific intent to cause great bodily injury. Because assault on a child causing death is a general intent crime, requiring only that the defendant committed an assault “by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death” (§ 273ab), a person convicted of this crime is not presumptively ineligible for probation under section 1203, subdivision (e)(3) unless there is an admission or finding that the person intended to inflict great bodily injury on the victim. (People v. Lewis, supra, 120 Cal.App.4th at p. 854.) Neither the jury nor the trial court found that Heredia acted with an intent to inflict great bodily injury on Alexis, and he made no such admission. Nor can such an intent be inferred from the jury’s guilty verdict on the second degree murder charge. Second degree murder requires a mens rea of malice, but malice may be implied “ ‘ “when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” [Citation.]’ [Citation.]” (People v. Robertson (2004) 34 Cal.4th 156, 164.) The jury could have convicted Heredia of second degree murder if it found he deliberately committed a dangerous act, without finding that he specifically intended to kill or inflict great bodily injury. Thus, the nature of Heredia’s offenses did not, in and of themselves, preclude a grant of probation.
Whether the trial court understood it had discretion to grant probation, or whether it mistakenly thought probation was unavailable, is impossible to discern from the record. At the sentencing hearing, defense counsel did not ask the court to consider probation or even mention it as a sentencing option. Counsel’s sole argument was that the court was not obligated to impose sentence on the higher term of the two counts; instead, the court had discretion to sentence Heredia to the term of 15 years to life on the second degree murder charge (§ 190, subd. (a)) with the longer term under section 273ab stayed. The prosecutor did not mention probation in his argument, and the court also said nothing about probation at the sentencing hearing. When, as here, the record is silent on the matter, we must presume the court understood the scope of its discretion and sentenced the defendant accordingly. (See People v. Fuhrman (1997) 16 Cal.4th 930, 944-946 [no remand for resentencing is required if record is silent on trial court’s understanding of its sentencing discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497]; People v. Mosley (1997) 53 Cal.App.4th 489, 496-497 [trial court is presumed to have been aware of and followed the applicable law, including in the exercise of sentencing discretion].) Because Heredia points to no affirmative evidence of error, we presume the trial court sentenced him in accordance with the law.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.