Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. CRF05145
MORRISON, J.
A jury convicted defendant David William Landis, Jr., of felony child cruelty (Pen. Code, § 273a, subd. (a)) and inflicting corporal injury on a child (§ 273d, subd. (a)). The jury also found true the allegations that at the time defendant committed these offenses he personally inflicted great bodily injury on a child under the age of five years. (§ 12022.7, subd. (d).) Defendant appeals his conviction.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On February 11, 2005, around 7:00 or 7:30 a.m., Casey Landis left the apartment she shared with her husband and their three children in order to go to work. Casey, who normally worked 10-hour days to support the family, was currently working only two hours every morning as a certified nurse’s assistant doing home care. Casey’s husband, defendant David William Landis, Jr., stayed home and cared for their children.
When Casey returned home around 10:00 or 10:30 a.m., she noticed their 10-month-old daughter, C.L., had two small, “yellowish” bruises on her forehead. Defendant told Casey that a bicycle had fallen on C.L. while Casey was at work. He also told Casey that C.L. choked on some food and defendant was forced to administer CPR. Defendant, also a certified nurse’s assistant, did not seem overly concerned about C.L. and C.L. seemed okay.
The following day, after Casey returned home from work, the Landis family went out for a day of shopping; C.L. slept in her stroller while they were shopping. After a few hours, when they were leaving to go home, Casey noticed C.L.’s head “fell” to the right when Casey put her into her car seat. Later that night, C.L. vomited while she was eating dinner and fell asleep while Casey was bathing her. Casey attributed these abnormal occurrences to C.L. being tired and suffering from a cold and an ear infection.
The next morning, however, defendant called Casey at work and told her that C.L. was not “acting quite right.” When Casey came home a short time later, she found defendant bathing C.L. Casey took over to finish bathing her. Casey immediately noticed that C.L.’s right arm and leg were “just hanging there, like she couldn’t wiggle her fingers or toes or anything.” When Casey laid C.L. down to dry her off, C.L.’s “arm and leg started to twitch together.”
Casey told defendant she thought C.L. was having a seizure, and they should take C.L. to the hospital. Defendant, insisted he did not think anything was wrong and told Casey that she was a “nurse” and “should be able to take care of [C.L.] herself.” Ignoring defendant’s protestations, Casey took C.L. to the emergency room. En route to the hospital, in the rearview mirror, Casey observed C.L. have approximately “six or seven seizures.” In the emergency room, C.L. seized again. C.L. was soon transferred to the U.C. Davis Medical Center by ambulance.
When questioned by hospital personnel at both hospitals, Casey initially said that she witnessed a bicycle fall on C.L. After U.C. Davis personnel indicated to Casey that C.L.’s injuries may be the result of child abuse, Casey admitted she was not present when C.L. was injured, that C.L. had been alone with defendant.
The day after C.L. was admitted to U.C. Davis Medical Center, Casey contacted defendant. He did not ask about his daughter’s condition; rather he was concerned that Casey would not have dinner with him that night for Valentine’s Day. Casey called defendant again, this time it was a “pretext call” orchestrated and recorded by the police. During the call, defendant repeatedly denied having abused C.L. and continued to ask Casey whether their marriage was over. An emotional Casey described the injuries suffered by their daughter and the possible long-term effects, but defendant remained focused on the marriage. He never asked about C.L.
The following day, defendant was questioned by a sheriff at the local sheriff’s office. At the outset of the interview, defendant implored the interviewing officer to tell him how his daughter was doing. Defendant later hugged the officer when he gave defendant an update on C.L.’s condition.
During the interview, defendant described how, in a single morning, a bicycle fell on C.L., she choked on a piece of toast, he had to stick his hand down her throat to disengage the food, and then he had to administer CPR, picking her up and putting her back down on the floor repeatedly. He admitted he was aggressive with C.L. in performing the CPR, but said it was because he was worried about his daughter.
Dr. Coulter’s Testimony
Shortly after C.L.’s admission to U.C. Davis Medical Center, she was examined by Dr. Kevin Coulter. Dr. Coulter, chief of the Child and Adolescent Abuse Referral and Evaluation Center at U.C. Davis for five years, reviewed C.L.’s test results, spoke with Casey, and cared for C.L. while she remained in the hospital. Based on his expertise and experience, Dr. Coulter concluded C.L.’s injuries were “inflicted;” as he described it, C.L. suffered an “abusive head injury.”
Dr. Coulter testified that C.L. had bleeding in the front and back portions of her brain, between the brain and the skull, a condition known as a “subdural hematoma.” He testified that a subdural hematoma is either the result of “rapid acceleration and deceleration” of the person, causing a “shearing of blood vessels” or the result of a single, traumatic impact. Dr. Coulter testified C.L. showed evidence of having suffered both.
Dr. Coulter further testified that C.L. suffered from “multi-layered retinal hemorrhag[ing]” in both eyes. He explained that, in his experience, you typically see multi-layer retinal hemorrhaging when there has been an abusive head injury. His conclusion of an abusive head injury was further supported by his observation that the injuries C.L. suffered required “a significant amount of force” to inflict. He testified that she could not have sustained these injuries falling off a couch, or having a toy thrown at her by a sibling. These injuries, he concluded, were not the result of “usual life events[.]”
C.L. also suffered a stroke and a pneumothorax, which caused one of her lungs to collapse. Dr. Coulter found it remarkable that C.L. had no broken ribs, but opined the pneumothorax could have been caused by someone giving her CPR. Dr. Coulter further explained that, with the exception of the pneumothorax, CPR was not likely to have caused any of C.L.’s injuries.
To rule out alternate causes for her injuries, Dr. Coulter tested C.L. for bleeding or clotting disorders and found none. He also tested C.L. for any infection that could have caused her brain to swell, or limit blood flow to her brain; she had none. Dr. Coulter also testified that defendant’s grandfather had a history of infant seizures, but found the history unremarkable given that there was no explanation for why the grandfather had seizures.
C.L. did have a larger-than-average head, her head size was above the 95th percentile for children her age, which brings with it a proportionately larger space between the skull and the brain. Dr. Coulter, however, “was not impressed” with the space between C.L.’s skull and her brain as being exceptionally large. He concluded that C.L.’s “big head did not provide some alternate explanation” for the subdural hematoma. Finally, he testified there was no evidence that C.L.’s injuries resulted from an accumulation of prior injuries.
On cross-examination, Dr. Coulter testified there were other possible explanations for the injuries that C.L. suffered. He nevertheless concluded, based on the totality of circumstances, that C.L.’s injuries were inflicted.
Dr. Ophoven’s Testimony
Defendant did not testify on his own behalf; rather, he presented his own expert, Dr. Janice Ophoven, a pediatric forensic pathologist from Minnesota. Dr. Ophoven reached different conclusions than Dr. Coulter based solely on her review of C.L.’s medical records.
There is no board certification for pediatric forensic pathology. Nor is Dr. Ophoven a board certified pediatrician. Rather, she is a board certified pathologist who focuses her practice on children. She has not practiced pediatrics since her residency in the “mid 70’s.”
It was Dr. Ophoven’s opinion that C.L.’s abnormally large head, and the use of suction forceps to deliver her via a cesarean section 10 months prior, caused “extra” cerebral spinal fluid to collect in C.L.’s brain. Dr. Ophoven concluded that the size of C.L.’s head, combined with the excess fluid, put C.L. at increased risk for serious head injury from a minor event. She also found that C.L. had an “unusual congenital anomaly” in the blood vessels leading to her brain; she considered this too to be a “critical factor” in evaluating C.L.’s injuries.
Dr. Ophoven further testified that retinal hemorrhaging could be caused by any number of events and was not necessarily the result of an abusive head trauma. She further testified that someone could get a pneumothorax “just . . . standing around,” and that it also was not necessarily evidence of abuse. Dr. Ophoven ultimately concluded that after reviewing C.L.’s medical records, she could not determine whether C.L.’s injuries were inflicted.
Verdict & Sentencing
The jury found defendant guilty as charged, convicting him of felony child cruelty and infliction of injury on a child. The jury also found true the allegations that defendant personally inflicted great bodily injury on a child under the age of five. Defendant was sentenced to four years in state prison with a five-year enhancement on the felony child cruelty conviction. Defendant received the same sentence for his conviction on infliction of injury, which was stayed pursuant to section 654.
I.
DISCUSSION
A. Sufficiency of the Evidence
Defendant contends there was insufficient evidence at trial that the injuries sustained by the victim were “inflicted” or that the victim suffered “unjustifiable pain.” Defendant is mistaken.
1. Inflicted Injury
Defendant initially argues there was insufficient evidence to find C.L.’s injuries were inflicted.
Defendant makes three arguments to support this claim: (1) because Dr. Coulter could not definitively exclude other possible sources for C.L.’s injuries, there was reasonable doubt; (2) because Dr. Ophoven offered an “equally reasonable,” alternate explanation for C.L.’s injuries, the jury was “required” to find defendant innocent; and (3) Dr. Coulter’s reliance on Casey’s explanation of events leading to C.L.’s injuries made Dr. Coulter’s conclusion unreliable because Casey was not initially truthful in explaining what happened. These arguments are unavailing because they misconstrue the role of this court. “[I]t 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 be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]” (People v. Daya (1994) 29 Cal.App.4th 697, 702, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.) Here, the parties each presented their own expert testimony. The jury apparently accepted the testimony of Dr. Coulter finding his testimony more reasonable than Dr. Ophoven’s. “On appeal the inquiry with respect to the sufficiency of evidence does not differ because a verdict may reflect a rejection of the opinion of one or more experts, . . .” (People v. Bean, supra, 46 Cal.3d at p. 934, fn. 4, citing People v. Wolff (1964) 61 Cal.2d 795, 804.) We will not reverse the jury’s finding.
2. Unjustifiable Pain
Defendant also contends there is insufficient evidence to support the jury’s finding that he caused C.L. “unjustifiable pain” under section 273a, subdivision (a). It is defendant’s position that because Dr. Coulter testified the subdural hematomas themselves likely did not cause C.L. any pain, that the state failed to meet its burden on this element of the crime.
As the People point out, however, Dr. Coulter also testified that while the hematomas themselves may not hurt, “[t]here may be pain associated with the reason you got the hematoma, . . .” The defense presented no evidence to contradict this testimony. Instead, defendant now argues this was pure speculation on the part of Dr. Coulter, and thus is not evidence. Defendant, again, is wrong.
The jury could reasonably conclude, based on Dr. Coulter’s testimony and the description of C.L.’s injuries, that C.L. suffered unjustifiable pain when she sustained the injuries.
B. Pretext Call Erroneously Admitted
Defendant claims the pretext call was improperly admitted because its admission violated his right against self-incrimination under the Fifth Amendment. He also argues it was error to admit the pretext call because “[he] made no damaging admissions and made no inconsistent statements or said anything of substantive evidentiary value.” Defendant further contends that “[t]he only ‘probative value’ (Evidence Code sec. 352) borne by the evidence was based on the prosecutor’s vague assertion that [defendant’s] ‘demeanor’ somehow indicated that he was hiding something; i.e., in some unspecified way, was indicative of consciousness of guilt.” None of these arguments withstands scrutiny.
As an initial matter, defendant failed to raise his Fifth Amendment claim in the trial court. He has, therefore, forfeited this claim. (People v. Barnum (2003) 29 Cal.4th 1210, 1224-1225, fn. 2.) In any event, the claim is meritless. The Fifth Amendment protects individuals from compelled self-incrimination. (See Malloy v. Hogan (1964) 378 U.S. 1, 6; People v. Ledesma (2006) 39 Cal.4th 641, 693.) Defendant was not in custody during the pretext call and the call was neither initiated nor conducted in a coercive manner. Accordingly, anything defendant did or said that could be construed as incriminating was not compelled and the Fifth Amendment was not violated.
Defendant’s argument that the pretext call was not probative is equally unpersuasive. “‘Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]’ [Citation.] A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 374.)
The pretext call, wherein defendant repeatedly denied abusing C.L., had probative value because it contained statements by defendant describing the circumstances surrounding the offense. The jury was thus able to consider those statements, as well as defendant’s demeanor, and make their own inferences regarding defendant’s guilt.
Defendant’s contention that the prosecutor “infected” the trial with her “spin” on the otherwise nonprobative pretext call is unfounded. As we already explained, the pretext call was probative. Evidence is always subject to the attorneys’ arguments. The jury was properly instructed that statements made by the attorneys were not evidence but only argument, and it is presumed the jury followed the court’s instruction. (People v. Boyette (2002) 29 Cal.4th 381, 436.) There was no error.
C. Instructional Error
Defendant further contends the trial court erred in failing to sua sponte instruct the jury on consciousness of guilt and assault and battery as lesser included offenses of felony child cruelty. These arguments are also without merit.
1. Consciousness of Guilt
A trial court has a duty to instruct sua sponte on “general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Contrary to defendant’s assertion, whether the contrast in his demeanor between the pretext call and the police interview shows a “consciousness of guilt” is not a “general principle of law.” It is a pinpoint instruction. The duty to instruct sua sponte does not extend to pinpoint instructions. (People v. Saille (1991) 54 Cal.3d 1103, 1117-1118, 1120.) Failure to give a pinpoint instruction sua sponte is not error. (Id. at p. 1120.)
Defendant also contends that, if the trial court did not have a duty to instruct sua sponte on consciousness of guilt, trial counsel was ineffective for failing to request such an instruction. To prove ineffective assistance of counsel, defendant must show there could have been no reasonable tactical purpose for counsel’s act or omission; he must also show a more favorable outcome was reasonably likely if counsel had not performed ineffectively. (People v. Maury (2003) 30 Cal.4th 342, 389.)
Here, it was a reasonable tactical decision not to request an instruction on consciousness of guilt, as defense counsel frequently believe such an instruction encourages the jury to make impermissible inferences regarding a defendant’s guilt. (See, e.g., People v. Bonilla (2007) 41 Cal.4th 313, 329 [defendant contended instruction on consciousness of guilt was impermissibly argumentative]; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157-1158 [defendant argued instruction on consciousness of guilt lowered the prosecutor’s burden of proof].) Trial counsel was not deficient in failing to request such an instruction.
2. Lesser Included Offenses
Trial courts have a duty to sua sponte instruct the jury on all lesser included offenses if the evidence “raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.]” (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) “[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117–118; People v. Licas (2007) 41 Cal.4th 362, 366.)
Defendant was charged with section 273a, subdivision (a), which provides in relevant part:
“Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment . . . .”
Section 240, provides as pertinent:
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”
Section 242, provides as pertinent:
“A battery is any willful and unlawful use of force or violence upon the person of another.”
A violation of section 273a, subdivision (a) “can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.” (People v. Smith (1984) 35 Cal.3d 798, 806 [discussing former section 273a, subd. (1)]; People v. Valdez (2002) 27 Cal.4th 778, 786–787].) Thus, one can violate section 273a without committing an assault or a battery. Here, the language in the charging information follows verbatim the language of the statute. Accordingly, under neither test was the trial court obliged to sua sponte instruct the jury on assault and battery as lesser included offenses of felony child abuse.
DISPOSITION
The trial court judgment is affirmed.
We concur: SIMS , Acting P.J., ROBIE , J.