Opinion
C077279
06-29-2021
THE PEOPLE, Plaintiff and Respondent, v. LUKES STEVEN LADEWIG, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. 1069, 121872
RAYE, P. J.
A marriage mired in violence culminated in the death of the wife. A jury convicted defendant Lukes Steven Ladewig, the victim's husband, of second degree murder, infliction of corporal injury, and dissuading their five-year-old son from reporting a crime. Sentenced to 43 years to life, defendant appeals, challenging the sufficiency of the evidence, instructional error, and ineffective assistance of counsel. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with murder (Pen. Code, § 187, subd. (a), count 1), corporal injury of a spouse (§ 273.5, subd. (a), count 2), and dissuading a witness (§ 136.1, subd. (b)(1), count 3). The information alleged as to count 2 that defendant inflicted great bodily injury and had sustained a prior conviction for corporally injuring a spouse within the last seven years (§§ 12022.7, subd. (b), 273.5, subd. (e)(1)), as to count 3, that defendant incurred a prior conviction for dissuading a witness (§ 1361.1, subd. (c)(3)), and as to all counts, that defendant suffered a prior strike conviction and served a prior prison term (§§ 667, subd. (e), 1170.12, subd. (c), 667.5, subd. (b)). Defendant entered a plea of not guilty.
All further statutory references are to the Penal Code unless otherwise designated.
A jury trial followed. The following evidence was introduced at trial.
The Couple
Defendant and the victim dated for many years and had three children-a five year old (Son No. 1), a three year old (Son No. 2), and a one-year-old-before their marriage in June 2012, not long before the events leading to the victim's death. It is fair to say their marriage was troubled from the start.
Prior Violent Confrontations
The couple's neighbors regularly heard yelling coming from their home and the sound of things breaking. The neighbors heard defendant shouting loudly. They frequently called the police fearing violence was taking place in the home. Some neighbors considered moving because of the incidents though they never witnessed any physical violence.
One neighbor overheard a conversation in which the victim accused defendant of breaking her ankle; defendant did not deny the accusation. The victim could also be physically aggressive and would not hesitate to defend herself against defendant's attacks.
2009 Incident
In 2009 the victim called 911 and said defendant had “just beat the shit out of [her].” Defendant grabbed the phone, hung up, and told her the authorities would take away their children if she reported the abuse.
When police arrived they found scratches on the victim's arm, blood on her arm and shirt, red marks on her face, and blood on her nose and lips. Defendant knocked out her two front teeth. Defendant pleaded guilty to injuring a spouse and dissuading a witness.
October 2012 Incident
In October 2012 defendant told a former girlfriend he didn't know why he married the victim. He was miserable and wanted to end the marriage.
Shortly after, on October 16, 2012, the victim visited her friend. She expressed frustration with her family situation and said she was going to go home and drink a bottle of tequila. She eventually calmed down and left for home.
The friend called her that evening. She answered the phone, but did not speak. Instead, the friend heard the victim and defendant fighting. The friend called again later and spoke to the victim. She said she was all right, but the friend thought she was acting strangely and hiding things from her.
That night neighbors heard yelling from the house. They heard defendant shouting and swearing; they did not hear the victim yelling.
Son No. 2's Testimony
Son No. 2 was almost four years old at the time of his mother's death, and five years old at the time of trial.
At trial, he testified he saw defendant “punch [my mom] in the head” five times that night. She was standing before each punch and fell to the ground. Defendant struck her with his fist.
In an interview with a social worker 10 days after the incident, Son No. 2 stated defendant “hit my mom” down and slapped her. He saw defendant drag his mother and go “boom” on her head. He told the social worker “my dad just slapped my mom. Just keep [sic] doing it.” During the fight, he saw the fish tank break, leaving shattered glass all over. He thought he saw his mother “dead in the [bath]tub.”
Son No. 1's Testimony
Son No. 1, five at the time of his mother's death, was almost seven years old at the time of trial. As with Son No. 2, the jury heard both Son No. 1's testimony at trial and a recorded interview with police shortly after his mother's death.
He testified that defendant “killed” his mother and that he saw defendant do “bad things” to her the night of her murder. Defendant punched her once in the face with his fist. He did not see defendant push or kick her and did not see her drinking or hear the couple yelling at each other.
In the interview shortly after his mother's death, Son No. 1 said defendant and his mother were yelling at one another that night. Defendant came into the bedroom where Son No. 1 slept and pushed his mother to the floor. Defendant then “beat her up and kicked her.” Son No. 1 saw blood on her face and all over her body. Defendant did lots of “booms” on her, which Son No. 1 explained as defendant pushing her. He told police, “Daddy just fucked her up.”
He also told police he saw defendant put his mother in the bathtub and then drag her out. Defendant poured water on her, but she did not wake up. Son No. 1 saw the glass from the broken fish tank on the floor. Defendant told him to go to bed and “[d]on't tell anyone about it.” Son No. 1 told police he was not afraid because he was “being a big boy” and a “battle watcher.” The officer who interviewed him believed his attitude stemmed from repeatedly witnessing violence between his father and mother.
The Morning After
Early the next morning, defendant contacted the victim's employer and said she would not be coming to work. He said she had been in the bathroom all night and was not waking up. The statement struck the employer as odd.
Defendant also called his work and said he would not be in because he had to watch his sons. The victim's grandmother had agreed to watch the children that day, but defendant called her and told her he would take care of them. Later, defendant called her and said there was a problem with the victim. She arrived and defendant asked her to clean up the bedsheets, which were covered in feces.
After making breakfast, defendant drove Son No. 1 to school. Defendant returned home and called 911 at around 8:00 a.m.
The officer who responded found the victim lying naked on the bathroom floor with a swollen lip and bloody nose. Defendant's lip was swollen and his hand injured. Medical personnel found the victim unconscious and not breathing, but detected a pulse.
After being transported to the hospital, the emergency physician found the victim unresponsive. Her brain was bleeding and the swelling pushed her brain to the right of her skull. She was comatose and her brain injury was extremely severe. She had bruising all over her body. Unable to operate, the medical team declared her brain dead.
The victim died from an “acute traumatic subdural hematoma, ” a brain clot caused by blunt force trauma. Subsequent tests revealed no drugs or alcohol in her system.
Crime Scene Evidence
Officers found blood spatters on the couple's front porch and door. They determined the blood spray and splatter consistent with a discharge of a “mouthful of blood.”
Officers noted blood on the bathroom door, on pillows in the master bedroom and a closet, and in the kitchen. The bathroom door blood pattern was consistent with a strike to the face. Swabs of blood stains found in the kitchen, on the porch, and on the doorjamb matched the victim's DNA. However, defendant's DNA did not appear on any of the swabs of the blood found at the scene.
One of the walls had a crescent-shaped indenture, probably caused by a sharp object, not by a fist. Officers found vomit and urine on a comforter in the bedroom and feces on the victim's pajamas.
Officers noted two fish tanks between the bathroom and bedroom and shattered pebbles nearby. They also found similar pebbles in the trash can. They found no open beer cans or alcohol containers.
Autopsy
A forensic pathologist, Dr. Susan Comfort, performed the autopsy. The victim suffered numerous injuries: bruising under the right eye; forehead abrasions; chest bruising; bruising to the arms, wrist, shoulders, abdomen and breasts; bruising on both legs; abrasions on the back of the head and shoulder; a large area of bruising from the lumbar to the buttocks; bruising on the upper back; abrasions under the chin; and bruises on the lip, knuckles, and fingers. Dr. Comfort determined the injuries were fresh and recent. The blow to the victim's face was “fairly forceful” and the blow to her forehead was a “deep blow or a hard blow.”
Upon removing the skin, Dr. Comfort found bruising under the scalp. A forceful blow to the head produces such bruising. The victim's brain swelled and a blood clot formed in her skull. Dr. Comfort described the clot as about the size of the palm of a hand and caused by blunt force trauma. Though no alcohol was detected in her urine or blood generally, when the blood clot was tested it had a blood alcohol level of 0.05 percent, which is approximately the amount of one glass of wine. According to Dr. Comfort, as the blood clot was sitting in the lab prior to testing, “a certain amount of degradation can happen. [¶]... you can actually get a little bit of alcohol produced artifactually. So this could be an artifactual thing. [¶] Or it can also be that she might have ingested alcohol. It had metabolized out of her bloodstream by the time they did the regular blood test [but] was still present within the blood clot.” Numerous other of the victim's injuries resulted from blunt force trauma, including anoxic brain injury, brain herniation, and aspirational pneumonia.
Dr. Comfort determined the victim died from blunt force injuries to the head, causing the fatal blood clot. Dr. Comfort could not state whether the blood clot resulted from multiple blows or a single blow. However, other injuries resulted from multiple blows.
Defendant's Prior Violent Acts
The prosecution presented evidence of defendant's violent conduct against his former girlfriend, C.T. She testified defendant regularly assaulted her with “punches, slaps, kicks, hair pulling, pushing down, spitting on, name calling, kicking, all around a little bit of everything.”
Although she could not recall each violent incident, she described four violent episodes. During the first incident, C.T. and defendant fought over his drinking. He pushed her down, dragged her by the hair, punched, slapped, and kicked her. After defendant told her to put their daughters in the car, he said “that mommy was going to die tonight.” Defendant said, “say goodbye to your daughters because I'm going to put you in the trunk and put you in with the girls, and we're going to go to the lake, and you are going to drown.” She believed defendant would kill her.
In the second incident, defendant grabbed C.T. and tried to push her down a flight of stairs after they argued about their daughters. While they struggled, defendant struck her, dislocating her jaw.
During the third incident, defendant tried to grab C.T.'s car keys and began punching her. She struck back in defense. Defendant pummeled her “like a punching bag.” Defendant pleaded guilty to corporally injuring the parent of his child. Subsequently, defendant violated C.T.'s protective order.
In the final incident, C.T. threatened to call the police during a fight. Defendant grabbed the phone, pulled her hair, and squeezed her throat. He threw her down, got on top of her, and punched her. She managed to get up, but defendant followed and continued punching her. Defendant said he was “going to put [her] in the car and drive [her] off a cliff.”
Defense Case
Evidence of the Victim's Drinking
A toxicologist, Dr. Alan Barbour, testified that the victim did not have drugs or alcohol in her urine when she died. Dr. Barbour stated any alcohol in her blood would have burned off in a matter of hours. The blood clot in her brain had a blood alcohol content of 0.05 percent. Dr. Barbour concluded the victim probably had alcohol in her system when she was injured. It was also likely that her blood alcohol content was higher at the time of her injury because of blood circulation while the hematoma continued to bleed before eventually becoming sealed off from the rest of her bloodstream.
A liquor store clerk testified the victim occasionally came in to the store. He remembered her buying a shot-sized bottle of a sweet liquor and cigarettes but could not remember when. A private investigator obtained a liquor store receipt showing the victim purchased a pint of tequila, a shot-sized bottle of sweet liquor, and a pack of cigarettes the night of the beating.
Evidence of the Victim's Character
One of defendant's ex-girlfriends testified that after the victim and defendant began dating the ex-girlfriend told the victim she might be pregnant with defendant's child. The victim later confronted the ex-girlfriend, punched her in the back of the head, stabbed her neck with car keys, and continued punching when she fell to the ground. The victim had been drinking and acted very aggressively. A bystander broke up the fight, but did not see the stabbing. This was the only physical confrontation between the pair. Defendant's ex-girlfriend acknowledged defendant had a reputation for violent conduct.
A friend testified she and her husband went camping with defendant and the victim. Everyone drank heavily. The friend left to fish and the victim followed her. The victim called her a bitch, pushed her in the water, and walked away. The victim knew she could not swim. When she returned to the campground, the victim attacked her. The friend sustained a black eye and a bite on her breast. The victim had never previously been violent towards her, but she had seen the victim argue with others. She also knew defendant was violent with the victim.
Defendant's Testimony
Defendant testified in his own defense. He recounted the events leading up to the victim's death.
That evening, he, the victim, and their sons went to pick up a pizza. The victim stopped at a liquor store on the way home and bought tequila, cigarettes, and a small bottle of liquor.
After they arrived home, the couple began to argue about the victim's drinking. After defendant hid the tequila bottle, she went out to buy more. Angry, defendant told her to “go get another D.U.I.” When she returned, defendant called her a bitch and she punched him in the lip. An altercation followed and defendant threw her down near the fish tank.
She tried to get up and defendant “took a cheap shot” and “kicked her in the ass.” She punched him in the face and defendant slapped her, causing her to fall down near the other fish tank.
Defendant noticed his sons were watching and grabbed them and walked towards his truck. The victim followed, jumped on defendant's back, and punched him in the head. Defendant “popped her good” with the back of his hand, causing her to bleed from her nose on the porch. Defendant slapped her three times, but never punched her. He never meant to hurt her.
The victim went back inside, spit on the wall, broke a vase, and took a bath. Defendant swept up the broken vase and glass marbles from the fish tank and put them in the trash. He then went into his bedroom with his sons. The victim came in and punched defendant. Defendant took the boys to their bedroom. He helped the victim out the bathtub because she was unsteady and appeared drunk. She collapsed in the doorway and asked for a glass of water. When defendant helped her, she turned and punched him. The couple then apologized to one another, had sex, and fell asleep. In the middle of the night, she vomited and defendant was unable to wake her the next morning. Defendant called both his and the victim's work and lied about them not being able to work that day. He also called the victim's grandmother to tell her she did not need to watch the boys.
Defendant took his son to school and returned home. He found the victim not breathing and with vomit coming out of her nose and mouth. Defendant tried putting her in the bathtub to wake her up. When that failed, defendant called 911 and attempted CPR. He told the 911 operator she had been in a bar fight.
When officers arrived, defendant denied striking the victim and told them she had been hurt during a fight in a bar the night before. Because of his past experiences with law enforcement, defendant lied to protect himself and because he wanted to be with the victim at the hospital. In a later interrogation, defendant admitted his previous dishonesty.
Defendant denied asking the victim's grandmother to clean the house. He asked her to leave things undisturbed.
At the hospital, defendant told a detective the victim injured herself in a bar fight. After his arrest, defendant wrote letters to the victim apologizing for his behavior and asking to be forgiven.
Defendant denied killing or inflicting serious injury on the victim. When she vomited in the middle of the night, defendant did not realize she was in distress but believed she was drunk. Defendant did not tell Son No. 1 not to tell anyone about what happened.
Defendant acknowledged he had a problem with anger, which played a role that night. He admitted prior convictions for domestic violence, but denied having a reputation for violence. Although defendant lied when he spoke with emergency responders and law enforcement after the incident, he was telling the truth at trial.
Rebuttal
In rebuttal, defendant's cousin testified about an incident with defendant in July 2012. Defendant had been drinking and they began arguing. His cousin was irritable and “pushi[ng] buttons, ” but defendant was rude and called her a “spoiled little bitch.” Defendant yelled at her and slapped her, causing her jaw and face to swell.
An officer who investigated the victim's altercation with defendant's ex-girlfriend when she told the victim she might be pregnant with defendant's child testified. Defendant's ex-girlfriend never claimed the victim stabbed her. She declined to press charges and did not request medical help.
The sergeant who responded to the home the morning of the victim's death testified defendant had a fat lip and redness and missing skin on his knuckles. The injuries appeared recent. Defendant told the officer he hurt himself punching the wall in frustration and from dragging the victim to the bathroom.
Detective Jeff Moser spoke with defendant at the hospital. Defendant did not say that he and the victim fought with one another, Instead, defendant told the detective he never struck her; she was a “stupid bitch” who got hurt during a bar fight with another woman.
Following defendant's arrest, Detective Jacques Morlet interviewed him. Defendant laughed when Morlet asked if he had stuck the victim, and denied hitting her. Morlet testified that defendant was angry and confrontational when he interviewed him. Defendant stated the victim was hurt in a bar fight and that he would never strike her. When discussing her death, defendant showed less emotion and appeared matter of fact. Morlet believed defendant “pretended to cry” during the interview. In contrast to his trial testimony, defendant never said the victim jumped on him or punched him that night. He also stated he hurt his hands sweeping at work, not pulling her out of the bathtub.
Morlet asked defendant about his son's statement that “Daddy fucked her up” and defendant admitted he struck the victim when she attacked him. Defendant sarcastically said he was sorry. After Morlet asked him about the blood found at the scene, defendant's version of events began to change. He admitted throwing the victim to the ground and said she struck her head on the fish tank. Morlet sensed no remorse on defendant's part.
Defendant did not tell Morlet that he and the victim reconciled that night. Morlet saw no injuries to defendant's face or head during the interview. Nor did officers find a bottle of tequila or sweet liquor at the couple's home.
Verdict and Sentencing
The jury found defendant guilty on all counts and found each allegation true. At a bifurcated bench trial, the trial court found the prior prison term and prior strike allegations true.
The court sentenced defendant to 30 years to life for the murder conviction and nine years for the dissuading a witness conviction. The court imposed a 10-year sentence for corporal injury on a spouse, but stayed the term under section 654. The trial court revoked defendant's probation in Siskiyou County Superior Court case No. 10-0069 and sentenced him to four years. Defendant filed a timely notice of appeal.
DISCUSSION
I
Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence supporting his conviction for second degree murder. He also argues insufficient evidence supports his conviction for dissuading Son No. 1 from calling the police.
In reviewing a defendant's challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence. Substantial evidence is evidence that is credible, reasonable, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
We do not reassess the credibility of witnesses, and we draw all inferences from the evidence that supports the jury's verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Unless it is physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.) As to circumstantial evidence, even if we find the evidence reasonably susceptible to a contrary finding, we reverse only if under no hypothesis whatsoever is there sufficient evidence to support the conviction. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054; People v. Bolin (1998) 18 Cal.4th 297, 331.)
Second Degree Murder
Defendant asserts “there is simply no evidence that when he struck [the victim] he did so in a manner that endangered her life, nor was there any evidence that he... did so with conscious awareness he might be endangering her life.” Therefore, since insufficient evidence supports his conviction for second degree murder we must reverse.
Second degree murder is the unlawful killing of a human being with malice aforethought, but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. (People v. Knoller (2007) 41 Cal.4th 139, 151 (Knoller).) Malice may be either express or implied. (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).)
Implied malice is composed of both a physical and mental component. The physical component is satisfied by the commission of an act, the natural consequences of which are dangerous to life. The mental component requires knowledge on the defendant's part that his or her conduct endangers the life of another and that he or she acts with a conscious disregard for life. (People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun); Knoller, supra, 41 Cal.4th at p. 143, People v. Jones (2018) 26 Cal.App.5th 420, 442-443 (Jones).)
In essence defendant argues: “The plain facts are that [defendant] participated in a physical altercation with [the victim], and she suffered an unforeseeable and freak injury, a subdural hematoma from either a blow to her eye or a fall into a fish tank.” This scenario, defendant contends, cannot support a verdict for second degree murder.
The problem is defendant's scenario: a selective and minimized version of the events surrounding the murder. In reviewing the sufficiency of the evidence, we consider all the evidence in the light most favorable to the judgment. Our review of the evidence supports the jury's verdict.
The physical evidence supports a finding that defendant performed an act, the natural and probable consequences of which are dangerous to life. (Chun, supra, 45 Cal.4th at p. 1181.) Defendant punched the victim five times in the head with his closed fist, punches severe enough to knock her to the ground. While she lay on the ground defendant beat and kicked her. Defendant stated he threw the victim to the ground causing her head to hit the fish tank. Son No. 2 told an officer defendant repeatedly slapped her. In the aftermath officers found the victim's blood all over her body and the couple's home. None of the blood belonged to defendant.
The victim's injuries also reflect the severity of defendant's beating. Dr. Comfort testified to extensive exterior injuries to the victim's body, including bruising to her face, forehead, legs, arms, back, chest, shoulder, lip, hands, abdomen, buttocks, and chin. The facial bruising resulted from a “fairly forceful” blow, and the forehead injury was caused by a “deep blow.” The bruising under the scalp was caused by a forceful blow to the head. As a result of the blunt force blow, the victim's brain swelled, causing a blood clot to form in her skull.
Dr. Comfort concluded the victim died from multiple blunt force injuries to the head that resulted in the fatal blood clot. The fatal injury was caused either by the impact that resulted in the black eye or the impact that resulted in her forehead bruise. Dr. Comfort could not ascertain whether the blood clot resulted from multiple blows or a single blow. The victim's other injuries resulted from multiple blows.
Defendant focuses on the fact that he did not strike the victim with an object and repeatedly argues Dr. Comfort “did not express any opinion on how this injury [the forehead bruise] occurred.” Therefore, “the injury to [the victim] could have occurred by an act as simple as a single blow to her face that caused bruising around [her] eye, but no broken bones. [Defendant] submits that this is not an act which is objectively dangerous to human life, and it lacks any aggravating circumstances which are required to convert manslaughter into murder.”
Defendant's insistence that the evidence does not support a finding of an act objectively dangerous to human life is unconvincing. A blow from an assailant's hand can constitute second degree murder.
In Cravens, the victim died after a single punch and, given the attendant circumstances, the Supreme Court found sufficient evidence to support a conviction for second degree murder. (Cravens, supra, 53 Cal.4th at pp. 508-509.) In Cravens, the victim's intoxication rendered him vulnerable, as did the preceding punching and kicking during the fight. The punch knocked the victim unconscious before he struck the ground. The defendant secured an advantage by towering over the victim and the punch caught the victim by surprise. (Ibid.) The Supreme Court found “defendant's behavior before and after the fight further demonstrated that this was not, as defendant suggests, a simple fistfight between friends.” (Id. at p. 511.)
Defendant attempts to characterize the altercation with the victim in this case as lacking any of the aggravating factors found determinative in Cravens. However, the evidence at trial revealed defendant repeatedly struck the victim; she suffered numerous injuries while he emerged with a bruised lip and knuckles. Although the evidence on her alcohol ingestion was conflicting, the jury could have concluded her intoxication rendered her more vulnerable to defendant's attack. Defendant's punches left her prone on the ground. Ultimately, defendant struck her so hard she crashed into the fish tank, leaving her unconscious. Contrary to defendant's characterization, this was not a simple domestic dispute that resulted in death.
Defendant cites People v. Vasquez (2018) 30 Cal.App.5th 786, 796 for the proposition that to constitute murder there has to be a wanton and brutal use of the hands without provocation. However, here the jury heard evidence of just such wanton and brutal use of hands.
We also consider the mental component required for implied malice second degree murder: defendant's awareness that his conduct endangered the victim's life. The jury may infer subjective awareness from the circumstances underlying an attack that endangers human life. (Cravens, supra, 53 Cal.4th at p. 511.)
Defendant seeks to dismiss his history of domestic violence, arguing, while he and the victim had a tumultuous relationship, “they loved each other and were in the process of raising their three small children together.” Defendant also stresses that he “did not employ a weapon.” He argues that the night of the murder he and the victim did what they had done many times-engage in domestic violence. “During the fighting [defendant] stuck [the victim], as he had done in the past. In the past, the most serious injury [defendant] had ever inflicted was knocking out [her] artificial front teeth (‘partials'), which were reinserted. [¶] There was no evidence whatsoever [she] was ever treated at a hospital or doctor's office for any injuries from their fighting.”
This pattern of domestic violence does not undercut or negate the jury's finding of defendant's conscious disregard of the impact of his actions the night of the murder. To the contrary, a “defendant's propensity to commit domestic violence against a former girlfriend who was murdered, and other prior girlfriends who were assaulted, is relevant and probative to an element of murder, ‘namely [defendant's] intentional doing of an act with malice aforethought that resulted in the victim's death.' [Citation.] A defendant's pattern of prior acts of domestic violence logically lends to the inference of malice aforethought and culpability for murder.” (People v. Brown (2011) 192 Cal.App.4th 1222, 1237.)
The jury also heard evidence of defendant's prior violent attacks on his former girlfriend, C.T. Defendant acknowledged three prior convictions for corporally injuring a spouse or cohabitant. He also admitted punching his cousin in the face. Prior to the fight with the victim, he told C.T. he wanted out of the marriage with her. After the murder, defendant told officers he never stuck her, but that she had injured herself in a fight with another woman. When an officer asked if he struck her, he laughed and denied the allegation.
From the evidence before it, the jury could conclude defendant, in repeatedly punching the victim and ultimately throwing her at the fish tank, acted with a consciousness that these acts could cause fatal injuries. Defendant argues Dr. Comfort never determined whether the victim died from the blow to her head or from falling and hitting the fish tank. Regardless, the jury had before it sufficient evidence that defendant both punched the victim in the head and threw her into the fish tank; either act could have caused her death. Substantial evidence supports the jury's finding beyond a reasonable doubt that defendant committed second degree murder. (Jones, supra, 26 Cal.App.5th at p. 444.)
Dissuading a Witness
According to defendant, the basis for his conviction of witness dissuasion against Son No. 1 rested on a single statement by defendant when he said “[d]on't tell anybody about it.” Neither this statement nor the surrounding circumstances, defendant contends, demonstrate evidence of the specific intent required to support his conviction.
To prove a violation of section 136.1, subdivision (b)(1), the prosecution must show the defendant has attempted to prevent or dissuade a person who is a victim or witness to a crime from making a report of the victimization to any peace officer or other official. (People v. Navarro (2013) 212 Cal.App.4th 1336, 1347; People v. Upsher (2007) 155 Cal.App.4th 1311, 1320.) The defendant must have the specific intent to dissuade a witness from making a report. (People v. Ford (1983) 145 Cal.App.3d 985, 989.)
At trial, Son No. 1 testified defendant did not say anything to him after defendant struck his mother. However, during a police interview shortly after his mother's death he said defendant struck her and was “mad about mommy.” Defendant told them to go to bed. Defendant told him “[d]on't tell anybody about it.” Earlier in the interview he denied defendant said this.
Defendant contends “[t]his innocuous statement from a father to his five-year-old son does not demonstrate an intent on the part of appellant to dissuade a witness from contacting the police.” He also argues the Legislature did not intend to punish attempts to dissuade children from discussing crimes inside the home with friends or relatives.
Defendant, after beating the victim in front of Son No. 1, told his son not to tell anyone about what happened. The jury had before it substantial evidence that defendant told Son No. 1, who had witnessed the beating, not to tell anyone, including a police officer about what he had seen. The elements of section 136.1, subdivision (b) were met.
II
Instructional Error
Instructions on Causation
Defendant challenges the trial court's instruction on the causation element of murder. Defendant contends the court erroneously instructed the jury that it could convict him of murder if they found defendant only injured the victim as opposed to having caused her death.
Background
The court instructed the jury with a modification of CALCRIM No. 520:
“The defendant is charged in Count One with murder in violation of Penal Code section 187. To prove the defendant is guilty of this crime, the People must prove that:
“1. The defendant committed an act that caused the death of another person;
“2. When the defendant acted, he had a state of mind called malice aforethought;
“AND
“3. He killed without lawful excuse.
“There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
“The defendant acted with express malice if he unlawfully intended to kill.
“The defendant acted with implied malice if:
“1. He intentionally committed an act;
“2. The natural and probable consequences of the act were dangerous to human life;
“3. At the time he acted, he knew his act was dangerous to human life;
“AND
“4. He deliberately acted with conscious disregard for human life.
“Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.
“If you find the defendant guilty of murder, it is murder of the second degree.”
The trial court did not give the standard portion of CALCRIM No. 520 covering causation, which states: “An act causes the death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. [¶] There may be more than one cause of death. An act causes death only if it a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.”
Instead, the trial court instructed with CALCRIM No. 240: “An act causes injury if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.”
The parties discussed the jury instructions, but these discussions do not appear in the record.
Discussion
The court must instruct, even in the absence of a request, on the general principles of law relevant to the issues raised by the evidence. These general principles refer to those principles closely and openly connected with the facts before the court and that are necessary to the jury's understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The court may properly deny a proffered instruction where the substance of the instruction was adequately covered by the instruction given. (People v. Welch (1972) 8 Cal.3d 106, 119-120.) We consider the instructions as a whole to determine whether they correctly state the law. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237 (Campos).)
We also assess the jury instructions to determine whether there is a reasonable likelihood the jury applied the instructions in a way that violated the defendant's constitutional rights. (Campos, supra, 156 Cal.App.4th at p. 1237.) We review the instructions de novo. (People v. Hamilton (2009) 45 Cal.4th 863, 948.)
Defendant argues the instruction on causation given by the trial court “removed the question of whether [defendant's] conduct brought about the death of [the victim] and instead focused the jury's attention on an issue [defendant] conceded at trial-whether he was responsible for inflicting injury on [the victim].” Defendant focuses on the language in CALCRIM No. 240 about whether an “act causes an injury” as opposed to the language in CALCRIM No. 520 about whether an “act causes death.” This difference, defendant contends, “permitted the jury to conclude [defendant] was the legal cause of [the victim's] death by simply finding [defendant] reasonably should have known striking her would cause her to be injured.”
We review the given instructions to determine whether it is reasonably likely the instructions caused the jury to misapply the law. In addition, we interpret the instructions if possible so as to support the jury's verdict rather than defeat it if the instructions are reasonably susceptible to such interpretation. (People v. Carrington (2009) 47 Cal.4th 145, 192; People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)
The court instructed the jury that, to find defendant guilty of murder, it must find “The defendant committed an act that caused the death of another person” and “when defendant acted, he had a state of mind called malice aforethought.” The jury heard extensive testimony by Dr. Comfort about the injuries inflicted upon the victim by defendant that resulted in her death. Given the other instructions and Dr. Comfort's unequivocal testimony, we cannot find the instructions given would have misdirected the jury to convict defendant of murder if it believed defendant inflicted “any injury” to the victim. We find no error.
Dissuading a Witness
Defendant also faults the trial court's instructions on dissuading a witness, arguing the court, by fashioning its own instruction, inappropriately expanded defendant's liability.
Background
The trial court instructed:
“The defendant is charged in Count Three with intimidating a witness in violation of Penal Code section 136.1.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant tried to discourage [Son No. 1] from making a report that someone else was a victim of a crime to a law enforcement officer or teacher;
“2. [Son No. 1] was a witness;
“AND
“3. The defendant knew he was trying to discourage [Son No. 1] from reporting victimization and intended to do so.” (Italics added.)
CALCRIM No. 2622 tracks the instruction given by the court, but as to the first element gives the trial court the option to “insert type of official specified in Pen. Code, § 136.1(b)(1).” (CALCRIM No. 2622) Section 136.1, subdivision (b)(1) defines officials as “any peace officer or state or local law enforcement officer or probation or parole or correction officer or prosecuting agency or to any judge.” The statute does not mention teachers.
Discussion
This addition of teachers by the trial court, defendant contends, impermissibly broadened the scope of the statute and provided the prosecution with an illegal basis for conviction. We find any error harmless. After beating the victim, defendant told Son No. 1 “[d]on't tell anybody about it.” The jury would not have viewed defendant's words as an attempt to dissuade his son from talking to a teacher, but not a police officer. The use of the word teacher did not impact the jury's verdict. (People v. Jeter (2005) 125 Cal.App.4th 1212, 1217-1218.)
III
Ineffective Assistance of Counsel
Hearsay
Defendant labels defense counsel's performance ineffective for failing to object to the children's hearsay statements, which did not fall under any evidentiary exception, and claims counsel's omission was prejudicial and requires reversal. According to defendant, the issue presents the question, “can a witness be impeached under Evidence Code section 1235 with a hearsay statement the witness does not recall having made in the first instance?”
Background
A child protective services (CPS) worker interviewed Son No. 2 nine days after the victim's death. The jury saw the video recording of the interview. A detective interviewed Son No. 1, in the presence of his caregiver, the day after the victim's death. The interview was played for the jury during the detective's testimony. Defense counsel did not present a hearsay objection.
Inconsistencies Between Trial Testimony and Interviews
At trial, Son No. 2 testified nothing happened to his mother in the bathroom the night of the murder. He told the CPS interviewer his mother was dead in the bathtub and defendant could not get her out of the tub. He testified defendant only punched her, but did not slap or hit her. He told the interviewer defendant hit her repeatedly. Although Son No. 2 testified defendant hit her with his fist, he told the interviewer defendant hit her with an open hand.
At trial, Son No. 1 testified defendant hit his mother with his fists, but did not kick or push her. He told the detective defendant pushed and kicked her. Son No. 1 testified nothing happened the night of her death in the bathroom. However, he told the detective she had been asleep in the bathtub and defendant dragged her out.
Although Son No. 1 testified defendant said nothing after he struck the victim, he told the detective defendant told him to go to bed and not to tell anyone what happened. He testified defendant did not drive him to school the next morning, but told the detective defendant did drive him to school. Finally, he testified his mother never drank anything he described as poison, but told the detective she drank from a bottle that poisoned her.
Discussion
A witness's prior inconsistent statements may be offered as evidence to prove the truth of the matter asserted. Under Evidence Code section 1235, a witness's prior statement that is inconsistent with their trial testimony is admissible so long as the witness is given the opportunity to explain or deny the statement. (People v. Ledesma (2006) 39 Cal.4th 641, 710; People v. Zapien (1993) 4 Cal.4th 929, 951; Evid. Code, §§ 770, 1235.) Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with the witness's prior testimony describing the event. (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.)
Defendant contends defense counsel acted ineffectively in failing to object to the children's testimony because they could not remember speaking earlier to the CPS interviewer or the detective. “Consequently, these young children could not explain any inconsistencies between their hearsay statements and their trial testimony.”
“ ‘Generally it is true that the testimony of a witness indicating that he or she does not remember an event is not inconsistent with a prior statement describing the event. [Citation.] “But justice will not be promoted by a ritualistic invocation of this rule of evidence. Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness'[s] prior statement [citation], and the same principle governs the case of the forgetful witness.”' ” (People v. Hovarter (2008) 44 Cal.4th 983, 1008-1009.)
Defendant focuses on the children's lack of recollection of speaking to others around the time of the victim's murder and argues their failure to remember the conversations renders their trial testimony inadmissible as prior inconsistent statement. According to defendant, “regardless of whether the witness's inability to recall the hearsay statements is a simple lack of memory (Hawthorne), brought on by drug use (Levesque), or by trauma (Simmons), the law requires a witness must be able to recall having made the prior statements before the hearsay statement can be admitted. The same rule applies in the instant case where the youth of the witnesses may have prevented their recollection.”
People v. Hawthorne (1992) 4 Cal.4th 43, 55 [witness's lack of memory at trial about statements police made during a lineup was not inconsistent with earlier statements at a preliminary hearing]; People v. Levesque (1995) 35 Cal.App.4th 530, 544-545, [mother of child abuse victim did not recall, based on prior drug use, previous statements made to an attorney]; People v. Simmons (1981) 123 Cal.App.3d 677, 679-681 [witness's inability to remember earlier statements due to amnesia].
Defendant's argument presents a quandary that he alludes to in arguing the children were not being deliberately evasive, which would allow the trial court to admit their prior inconsistent statements: “Logic and common experience dictate children who are three and five years old will not be able to recall their statements two years later.” However, given the facts before us, we need not attempt to reach a conclusion on this difficult question as to whether a child's natural propensity to forget bars their earlier statements.
The Supreme Court in People v. Dennis (1998) 17 Cal.4th 468, considered the reliability of child witnesses. The court rejected the defendant's argument that a child witness's testimony was unreliable because of gaps in her memory and her discussions with the prosecutor and others. The child's limited memories did not violate the defendant's right to confrontation; that right “secures to an accused an adequate opportunity to cross-examine witnesses; it does not guarantee testimony free from forgetfulness, confusion, or even evasion.” (Id. at p. 526.) The Dennis court also found “Defendant was fully afforded the protections of the procedures constitutionally required to ensure reliability in the factfinding process. As we have previously remarked in rejecting essentially the same contention, defendant ‘ “was given an opportunity to be heard and to cross-examine in a judicial forum.”' ” (Ibid.) In People v. Lopez (2018) 5 Cal.5th 339, the Supreme Court revisited Dennis and concluded: “But credibility is an issue for the trier of fact, and in the present case, the defense's cross-examination, which thoroughly explored the possibility of coaching or brainwashing, provided the jury with sufficient information to determine the credibility of [the child witnesses]. Additionally, the jury heard testimony from several other witnesses that supported the children's testimony; the jury did not have to rely on their testimony alone to determine that [defendant] had committed the charged offenses.” (Id. at p. 354.)
Defendant argues counsel performed ineffectively in failing to object to the children's earlier testimony. To establish ineffective assistance of counsel, defendant must show counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing norms, and the deficient performance prejudiced defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) We accord trial counsel's tactical decisions substantial deference and do not second-guess counsel's reasonable tactical decisions. (People v. Maldonado (2009) 172 Cal.App.4th 89, 97.)
We will not reverse on appeal if the record does not affirmatively show why counsel failed to object and the circumstances suggest counsel had a valid tactical reason for not objecting. If the record sheds no light on why counsel acted or failed to act, we affirm unless there could be no satisfactory explanation for the act or omission. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Portions of the children's interviews before trial provided support for defense counsel's argument that the couple's fight was mutual and that the victim was drunk and aggressive the night of the murder. Son No. 1 told the detective his parents were beating each other and pushing each other that night. He described his mother as drunk in the bathtub and said she had drunk a big bottle of poison. According his pretrial interview, defendant and his mother screamed at each other and both were covered in blood. He also said the fish tank broke during the fight.
Son No. 2 told the CPS worker that his parents, the night of the murder, were mean to each other and yelling bad words. He said the fish tank broke during the fight.
Both pretrial interviews introduced testimony supporting defendant's contention that he did not act in conscious disregard of human life in causing the victim's death. His defense relied upon evidence that the altercation was mutual and that the victim was both drunk and aggressive prior to sustaining the fatal blows. Portions of the pretrial statements of the children corroborated defendant's version of events: a domestic altercation between two angry parents, one drunk, which resulted in the accidental death of the wife. Since there were only three surviving witnesses to the event, defense counsel could have reasonably decided that admitting the pretrial interviews bolstered the defendant's case. We cannot find defense counsel's failure to object to the testimony constitutes ineffective assistance.
Competence
Defendant also contends the children were not shown to be competent witnesses when the hearsay statements were made. According to defendant, defense counsel's failure to object on these grounds also constitutes ineffective assistance of counsel.
In general, any person, regardless of age is competent to be a witness. (Evid. Code, § 700.) A witness can be found incompetent to testify if they are incapable of understanding the duty to tell the truth. (Evid. Code, § 701, subd. (a)(2); People v. Montoya (2007) 149 Cal.App.4th 1139, 1150.)
Defendant acknowledges the trial court never explicitly found the children competent to testify but argues by admitting their out of court statements the court implicitly found them competent. Defendant also concedes trial counsel failed to object, but contends this failure constitutes ineffective assistance of counsel. However, for the reasons given above, we find defense counsel may have had a sound tactical reason for not objecting to the children's pretrial statements and find no ineffective assistance of counsel.
Admission of Rebuttal Evidence
Defendant faults the trial court's admission of testimony by the victim's mother during rebuttal. According to defendant, the trial court erred in relying on Evidence Code section 1202 in admitting the testimony.
Background
During trial, Son No. 1 testified nothing happened to his mother in the bathroom the night she died. Defendant testified Son No. 1 did not help him put the victim in the bathtub.
On rebuttal, the prosecution moved to introduce testimony by the victim's mother that Son No. 1 had volunteered a few months after the murder that he helped carry his mother's body to the bathtub. During a hearing on the matter, the victim's mother stated Son No. 1 spontaneously made the statement and it was not in response to any queries. She believed he was reliving the moment when he made the statement.
Defense counsel objected, arguing her testimony exceeded the bounds of rebuttal. The trial court admitted the statement as a prior inconsistent statement under Evidence Code section 1202.
The victim's mother testified that Son No. 1 stated “he had to carry -- help carry mama's body to the bathtub. He carried her by... her feet.”
Discussion
Defendant argues the court erred in admitting the victim's mother's testimony under Evidence Code section 1202. Evidence Code section 1202 permits the impeachment of a hearsay statement, previously introduced into evidence, through another, inconsistent hearsay statement of the same declarant. The inconsistent statement is admissible even though the declarant is not given the opportunity to deny or explain the statement. “The purpose of [Evidence Code] section 1202 is to assure fairness to the party against whom hearsay evidence is admitted without an opportunity for cross-examination.” (People v. Corella (2004) 122 Cal.App.4th 461, 470.) However, Evidence Code section 1202 does not apply to the impeachment of witness testimony. (Corella, supra, at p. 471.)
Defendant contends because the sole purpose of admitting the victim's mother's testimony was to impeach Son No. 1's testimony, Evidence Code section 1202 was an improper basis for admission and the statement and the testimony about Son No. 1's demeanor should not have been admitted.
However, the victim's mother described the statement as spontaneous and not made in response to questioning. She also stated Son No. 1 appeared to be reliving the incident. Under Evidence Code section 1240, a hearsay statement is admissible when a declarant spontaneously describes an event while still under the stress or excitement of the event.
The lapse of time between the described event and the statement, although a factor in determining spontaneity, is not determinative. “ ‘ “Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.”' ” (People v. Trimble (1992) 5 Cal.App.4th 1225, 1234.) We also conclude that any error in the statement's admission was harmless beyond a reasonable doubt given the other evidence on this point and the enormous evidence of guilt generally.
IV
Sentencing Issues
In a supplemental letter brief, defendant contends:
(1) We should strike his one-year prior prison term enhancement in light of Senate Bill No. 136 (2019-2020 Reg. Sess.). Senate Bill No.136 amended section 667.5, subdivision (b) to eliminate the one-year prior prison term enhancement for most prior convictions. (Stats. 2019, ch. 590, § 1.) Because defendant's judgment is not yet final, we agree with the parties that the amended law applies to him retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744-745) Accordingly, the one-year prison term enhancement must be stricken.
(2) The term imposed for his conviction for witness dissuasion in Siskiyou County Superior Court case No. 10-0069 (case No. 10-0069) should be one-third the middle term instead of the full middle term.
As the parties explain, defendant was sentenced in a consolidated hearing on the revocation of his probation in case No. 10-0069 and the imposition of sentence in Siskiyou County Superior Court case No. 12-1872 (case No. 12-1872). The trial court imposed an indeterminate term of 30 years to life for the murder conviction in case No. 12-1872. Based on California Rules of Court, rule 4.452, the trial court imposed a combined determinate sentence for the determinate offenses in case No. 12-1872 and case No. 10-0069. The witness dissuasion count in case No. 12-1872 was selected as the principal term-four years-doubled to eight years. A consecutive term of 10 years was imposed for the corporal injury conviction in case No. 12-1872 and stayed. Pursuant to section 1170.15 the court imposed a full consecutive middle term of three years on the witness dissuasion count in case No. 10-0069. It ordered a consecutive term of one year (one-third the midterm) for the corporal injury count in case No. 10-0069, and a consecutive one-year prior prison enhancement, for a combined determinate term of 13 years in state prison.
The defendant argues the court erred in its application of section 1170.15, which provides as follows: “[I]f a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 or 137 that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony, the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment....”
According to defendant, section 1170.15 can only apply when the dissuading conviction is related to the principal term; here, the first felony and the dissuasion count are both subordinate terms. However, none of the cases cited by defendant support this proposition and according to People v. Hennessey (1995) 37 Cal.App.4th 1830, 1835, a case from this court cited by defendant, “[u]nder section 1170.15, the sentencing judge need only determine if [the related] crime was a felony of which the defendant was convicted.” We reject the argument.
(3) He is entitled to presentence credits under section 4019 of the revocation case.
Defendant insists that he is entitled to at least 141 days of custody credits while in custody for case no. 10-0069 prior to his arrest for the current case. However, as the Attorney General points out, section 2933.2 prohibits presentence conduct credit for offenders convicted of murder. This prohibition applies to time served on an offense prior to and unrelated to, the murder resentenced for the offense when being sentenced for the murder. (People v. Brown (2020) 52 Cal.App.5th 899, 909
DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b). The judgment is affirmed as modified. The trial court shall prepare an amended abstract of judgment reflecting the judgment as modified, and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, J., MURRAY, J.