Opinion
F074821
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS NEWBOLD, Defendant and Appellant.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine B. Chatman, Julie A. Hokan and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF144277A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Catherine B. Chatman, Julie A. Hokan and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Nicholas Newbold appeals the judgment of several convictions arising out of the death of his two-month-old daughter, Jude N. Appellant asserts several prejudicial errors arising out of the trial court's granting of the prosecutor's request to instruct the jury on an aiding and abetting theory of guilt after the close of evidence. Appellant also asserts the trial court erred by excluding a prior statement of one of the witnesses as impeachment evidence and by failing to instruct the jury on a lesser included offense. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Information
Appellant, along with his girlfriend and Jude's mother, Juliana Linn, were charged by information with premeditated and deliberate murder (Pen. Code, § 187, subd. (a); count 1); deadly assault of a child under eight years of age (§ 273ab; count 2); willful injury or endangerment of a child (§ 273a, subd. (a); count 3); and unlawful processing of a controlled substance (Health & Saf. Code, § 11379.6, subd. (a); count 4). As to count 3, it was further alleged as to appellant only that he personally inflicted great bodily injury upon Jude, a person under five years of age (§ 12022.7, subd. (d)). As to count 4, it was further alleged that appellant and Linn committed the offense in a structure where a person under 16 years of age was present (Health & Saf. Code, § 11379.7, subd. (a)).
Linn pled no contest to count 3 before trial.
All further undesignated statutory references are to the Penal Code.
Trial Evidence
Prosecution Case
Jude was born on June 30, 2012. At her two-week well baby exam on July 17, 2012, Jude was deemed to be a "perfectly normal infant" except for a common condition called oral candidiasis, or oral thrush.
In September 2012, appellant, Linn and Jude lived together in an apartment. Andrew Hughes lived in the apartment next door. Hughes testified he could hear through the wall Jude crying. Jude's cry was "different" when Linn left home for work, leaving appellant and Jude alone. Hughes said Jude cried louder when she and appellant were alone and that Hughes could hear appellant "muttering," and "stomping around the house in anger." Hughes said Jude sounded like an average baby, but once that stomping started, Jude would "just immensely start to cry and just whine, that need of somebody there for her and that person wasn't him." Hughes never saw appellant hit, strike, shake, or squeeze Jude.
Donald Cameron and his fiancé, Malisa Grant, were friends with Linn and appellant. On the evening of September 10, 2012, they went to appellant and Linn's apartment to visit. Appellant and Jude were home, but Linn was at work. Neither Cameron nor Grant noticed anything unusual with Jude. Grant said Jude was conscious and not acting "bizarre" at all.
Both Cameron and Grant testified that appellant was very unhappy and seemed frustrated during the visit. Appellant said he was irritated that he had to be home alone with Jude all day and Linn was not helping as much as she could have been. Appellant told Cameron and Grant he "fucking hate[s] being a stay-at-home dad." Appellant said every time Jude needed care at night, Linn would not wake up, and he would have to wake up and take care of Jude.
On cross-examination, when asked how Linn acted generally around Jude, Grant replied, "Okay. [Linn] wasn't as care—not as caring, but like as easy as you would be, I guess, on a newborn baby, but she was good around her." Grant said she observed Linn not supporting Jude's head as much as Grant thought she should have and bouncing Jude heavily on Linn's knees. Grant testified appellant got frustrated with Jude because he was a first-time father and observed appellant bouncing Jude roughly on his knees a couple of times.
Linn testified she was charged with appellant for the crimes and pled no contest to willful endangerment or injury to a child in violation of section 273 a, subdivision (a), in exchange for a six-year sentence and her truthful testimony at appellant's trial. On September 10, 2012, while Linn held Jude, Jude cried, and Linn heard a "popping noise." Linn was on the couch feeding Jude and burped her like normal. There was nothing unusual about Jude that caught Linn's attention. Linn left home at approximately 2:00 p.m. to go to work and left Jude alone with appellant.
Linn got home after 8:00 p.m. and Cameron and Grant were visiting. Jude was sleeping normally in the bedroom. Linn testified she and appellant went to bed between 9:30 p.m. and 11:00 p.m.
At approximately 1:00 a.m., appellant turned on the bedroom light and was yelling "Help, help, help," and had Jude in his arms. Appellant said Jude was not breathing. Linn grabbed a pillow and put Jude on it and told appellant to call 911. Paramedics came and took Jude to the hospital; Jude later passed away at 6:58 a.m.
On cross-examination, when asked how appellant was as a parent, Linn testified that appellant was "[v]ery, very caring, very patient, very—[appellant] took his time with [Jude] and made sure she was always very comfortable." Linn never saw appellant shake or be violent with Jude. Linn said appellant sang and talked to Jude a lot. After Jude's death, appellant was "very upset and definitely not himself."
At 5:30 a.m. on September 11, 2012, detective Jim Conner from the Kern County Sheriff's office responded to the hospital where Jude was taken and spoke to appellant.
Appellant explained he usually put Jude to bed at approximately 9:00 p.m. and she would wake up by 3:00 or 4:00 a.m. to eat. Appellant said Jude had been upset and he should have paid more attention to how cranky she had been. Jude whined approximately four or five times between the time she went to bed and 1:00 a.m. At around 1:00 a.m., appellant woke her up, and she would not take her "binky," so he took her into the living room to feed her. When appellant gave Jude her bottle, she took two or three drinks and spit out the milk. Appellant held her for a second and let her drool, then she started screaming. Appellant laid her down on his lap and tried to give her her "binky." Jude then opened her mouth and, according to appellant, "[sat] up a little bit and just, like, hiccup[ed]. But it wasn't a hiccup." Appellant then said Jude started spitting up in his arms. Her eyes closed and she started going white, stopped breathing, and went limp. Appellant ran back into the bedroom, yelled for help, and told Linn to call 911. Appellant said, "I just thought she was choking. I didn't—I don't know—I don't know how she got hurt or who held her. I—they said she had broken ribs and...." Appellant told Conner "I don't know what the hell happened honestly."
Appellant then told Conner that the doctors said Jude had bruises. Appellant explained he has seen bruises on Jude since the day she was born. Appellant said "they" told him that Jude would bruise just by holding her wrong. Appellant also said when Jude would cry this past week, he and Linn heard clicking in her shoulder blade. Appellant said that Linn told him she looked it up online and told appellant it was Jude's muscles growing into the skeletal structure and it was normal for young babies. Later in the interview, appellant told Conner he had heard the clicking a month before and that Linn thought Jude's ribs got broken during birth.
Appellant said that Jude was scheduled to get a two-month checkup on August 30, but they missed her appointment. Appellant asked for a new appointment and was waiting for a callback.
Appellant told Conner he and Linn were the only people besides Jude in the apartment when Jude became nonresponsive. Appellant said Jude did not fall or have any accidents that day. Jude was not left alone that day except for when appellant went to the bathroom.
Appellant told Conner he had never disciplined Jude. He said, "if there's one parent that would be the discipline parent it would be [Linn] but so far we both been very (giving) to her."
Conner again interviewed and recorded appellant at his apartment on September 11, 2012. Appellant again said in the last week Jude had only been alone with appellant or Linn.
Eugene Carpenter, forensic pathologist, performed Jude's autopsy on September 12, 2012, at approximately 9:40 a.m. Carpenter testified Jude had no external injuries except the soft spot of her head was a little swollen. Carpenter said it is common in shaken baby cases for the infant not to exhibit external injuries. Carpenter testified Jude suffered rib fracturing. The nature of the fractures indicated child abuse by violent shaking with force "sufficient to break the otherwise almost unbreakable ribs of the infant." Some of the rib fractures were older and healing; these were at least 10 to 14 days old but not older than three weeks. Carpenter said the radiologist opined the rib fractures were consistent with being in different states of healing and that some of the ribs had been broken and then rebroken. Jude had 18 rib fractures in total; 11 on the left side and seven on the right.
Carpenter said he found a small area of bleeding underneath Jude's scalp consistent with, but not specific for, a pinching type of injury between where the head hinges on the neck and is consistent with "violent shaking." Carpenter said this injury is very suspicious by itself; however, broken ribs are rather rare in infants, and this "shows a greater extent of the severity of the injuries."
Jude also had hemorrhages on her retinas in both eyes and around the optic nerve in her left eye. Carpenter explained that in shaken baby cases, retinal hemorrhages are present, whereas in other types of injuries such as car accidents or falling from a height, they are not. Retinal hemorrhages are caused by the rotational motion of the head during the shaking and all by itself is highly suspicious of traumatic head injury to an infant. Hemorrhages on the optic nerve is also common in shaken baby cases.
The last type of injury common in violent shaking is brain injury. Carpenter found several examples "classically associated with violent shaking and the death of infants" in Jude's case. Jude had a subdural hemorrhage, or bleeding under the thick lining of the skull over the brain. Carpenter explained that on a violent shaking and in rotational injuries of the head, where the head is moving violently from right to left, the veins in the brain easily tear. A small amount of blood can come out to the surface of the brain before death and is caused by the deeper, more severe brain injuries. Carpenter said the blood is just a sign of severe violent injury to the brain. It is the violent injury to the internal parts of the brain that causes death.
The prosecutor asked Carpenter when Jude would have displayed symptoms from the injury that caused her death. Carpenter responded, "immediately." Carpenter said, "Any injury severe enough to kill an otherwise healthy infant causes ... immediate, obvious abnormal states, such as a coma or deep coma. [¶] Any injury that results in the death of an infant, even if it's over five hours or ten hours, that infant is doing nothing but dying from that injury. It does not ever look a little better. It does not ever look like it might be normal. [The baby] is basically on its way to dying after that injury." The prosecutor asked Carpenter if the baby would "appear cuddly or fine after suffering brain injuries that profound," and Carpenter responded, "No. She's going to look like she's dead or almost dead."
On cross-examination, defense counsel asked Carpenter whether he determined some of the blood from the subdural hematoma to be two days old. Carpenter responded, "No." He explained that he did find other areas on the brain, specifically the temporal lobes, which indicated an injury consistent with two or several days old, but that that blood was not the hematoma itself. Carpenter explained this older blood was evidence of other injuries.
Defense counsel asked Carpenter if he would expect to see some type of symptoms from a child with the type of rib fractures Jude had. Carpenter responded that "[c]linically it would be very difficult for the infant to breathe without pain.... But I would think it's reasonable to say that the infant's breathing would be affected whether or not it could feel pain. [¶] ... [¶] And it would not look normal."
On redirect examination, Carpenter reiterated that the injuries that caused Jude's death must have occurred after she was seen looking "normal."
After the autopsy was performed, Conner spoke to appellant again at the sheriff's substation on September 13, 2012. Appellant confirmed that only he or Linn had been alone with Jude the week prior to her death. Appellant denied squeezing, shaking, or dropping Jude. When confronted with the fact that the medical evidence revealed Jude's death was nonaccidental, appellant denied having any idea how Jude's injuries could have occurred. When asked if Linn would do something to cause Jude's injuries, appellant said, "No. I do not believe she or I did anything or anyone did anything to hurt [Jude]."
Sergeant Michael Dorkin from the Kern County Sheriff's office testified that when he responded to appellant and Linn's residence, he observed contents of a "BHO" lab, or butane honey oil lab, which is used to convert marijuana to concentrated cannabis. Dorkin seized from the residence approximately 1,800 grams, or four pounds, of marijuana; cans of butane; half a bottle of butane oil; and a PVC pipe that had a hole drilled in it and mesh on the bottom, which is used for the process. BHO labs are hazardous because the contents are flammable and can explode.
Mike Chavez III, the property management maintenance person at appellant and Linn's apartment, saw law enforcement at appellant's apartment at approximately 9:30 a.m. or 10:00 a.m. on September 11. Chavez asked appellant what was going on, and appellant told Chavez his baby had passed away and he could not believe what was happening. Appellant then told Chavez that investigators were searching his home but did not find things he was using to make marijuana concentrates. Chavez testified appellant said, "I don't believe they didn't find my shit." Chavez thought it odd that appellant would be distressed about his baby but then, chuckling, he talked about his "shit."
Cameron and Grant said they saw appellant and Linn a few days after Jude died, and while Linn seemed really upset, appellant did not seem as distraught. Both Cameron and Grant testified that appellant talked more about how the police did not find his marijuana than his baby.
Defense Case
Ronald Gabriel, child neurologist, testified for the defense. Gabriel reviewed Jude's medical records, including the pregnancy, labor and delivery, newborn, well-baby check on July 17, 2012, emergency room records from September 11, 2012, and records from the hospital where Jude was transferred to that morning. Gabriel said Jude had an abnormality in the brain, which occurred sometime during pregnancy, and caused her to have an underdeveloped brain. Gabriel also said Jude had sustained multiple rib fractures on both sides of the chest that were of various ages. Jude also had sustained bleeding in the brain of a traumatic nature; some of the blood was very fresh, and some was a bit older.
Gabriel testified the most recent rib fractures were sustained at least seven to 10 days before Jude died. The brain bleed was "certainly" caused by "blunt force trauma." The most recent bleeding was from 12 to 36 hours before Jude's cat scan, which took place at 2:18 a.m. on September 11, 2012. Gabriel explained there was at least one blunt force trauma that caused the bleeding. Gabriel said either there was a blunt force trauma that occurred anywhere from two to six days earlier, and the blood continued to seep, or there were two separate injuries with a second injury causing the bleeding which was 12 to 36 hours old.
Gabriel said Jude's rib injuries would have caused symptoms such as crying, fretfulness, irritability, and not taking the bottle—symptoms which caused Linn, according to the records Gabriel reviewed, to "discipline" Jude. It would have been clear there was "something going on" with Jude for days to weeks.
Gabriel testified "[t]here's no question" the cause of Jude's injuries was physical abuse. The injuries were nonaccidental and inflicted by someone. Jude's preexisting brain condition may have made her more susceptible to death from injury than a healthy child but was not the cause of death.
Verdict
A jury found appellant guilty of counts 2, 3, and 4. The jury found the allegation under count 3 that appellant personally inflicted great bodily injury upon Jude not true. The jury found appellant not guilty of premeditated murder but could not agree on the lesser included offense of second degree murder. The People later moved to dismiss count 1, and the court granted the motion.
Sentence
As to count 2, appellant was sentenced to a prison term of 25 years to life. The trial court sentenced appellant to the midterm of four years as to count 3 but struck the sentence in the interest of justice. As to count 4, appellant was sentenced to the midterm of five years to be served consecutive to the sentence imposed on count 2. Appellant's total prison sentence was 25 years to life plus a determinate term of five years.
DISCUSSION
I. Instruction on Aiding and Abetting
A. Relevant Background
Jury Instruction Conference
On October 24, 2016, the People and the defense rested. The next day, October 25, a jury instruction conference was held off the record. On October 26, the court memorialized the conference on the record. The court indicated it would be instructing the jury based on the evidence presented on failure to act based on a legal duty as a parent. Defense counsel objected to the "aiding and abetting and related instructions" stating: "I don't feel [these instructions are] supported by the evidence. This is a new theory being brought up now, at the conclusion of evidence, that was never mentioned at this point till now, so I think it's inappropriate." The prosecutor responded the evidence proffered by the defense conceded that the injuries were abusive but were inflicted by someone other than appellant. This alternate theory necessitated the aiding and abetting instruction.
The court noted the jury should be instructed that if they are to find appellant aided and abetted as to count 3, then the court is going to expect counsel to inform them that if that is the theory, then the enhancement should be found not true since he did not personally inflict great bodily injury.
Jury Instructions
In addition to instructions on each of the charged offenses, the jury was given a special instruction that read:
"A parent has a legal duty to his or her minor child to take every step reasonably necessary under the circumstances in a given situation to exercise reasonable care for the child, to protect the child from harm, and to obtain reasonable medical attention for the child. [¶] The word 'act' as used in these instructions includes an omission or failure to act in those situations where a person is under a legal duty to act." (See CALCRIM No. 820A.)
The jury was instructed that a person may be guilty of a crime either as a direct perpetrator or as an aider and abettor. (See CALCRIM No. 400.) The jury was instructed the elements of aiding and abetting are: "One, the perpetrator committed the crime; [¶] Two, the defendant knew that the perpetrator intended to commit the crime; [¶] Three, before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime; [¶] And, four, the defendant, by words or conduct or by omitting or failing to act in those situations where he is under a legal duty to act, did, in fact, aid and abet the perpetrator's commission of the crime."
The jury was further instructed that "Parents have a legal duty to protect their children. A parent who knowingly fails to take all reasonable steps necessary, under the circumstances, to stop a crime on his or her child may be liable for the crime if the purpose of non-intervention is to aid and abet the crime." (See CALCRIM No. 401.)
The jury was also instructed they must not find appellant guilty of either counts 1 or 2 unless they all agree the People have proved appellant is guilty beyond a reasonable doubt, but they did not have to unanimously agree on whether appellant was an aider and abettor or a direct perpetrator.
The jury was instructed as to count 3 that they had been presented with more than one act to prove appellant committed the offense and must not find him guilty unless they agree on the act.
Prosecution Closing Argument
The prosecutor argued appellant was the direct perpetrator of the abuse that caused Jude's death, but he also explained to the jury the alternate theory of guilt as an aider and abettor.
The prosecutor went on to explain the legal duty of a parent to his child to intervene in the case of witnessing an assault. The prosecutor then said appellant admitted he was aware of popping sounds in Jude's chest and missed her two-month checkup appointment. The prosecutor argued:
"I would submit to you that the reason he didn't take her in, the reason he didn't fulfill his affirmative duty to protect this kid, even if you believe that, you know, [Linn] did this—which I would submit the evidence does not show—but the reason he didn't do that is because he knew absolutely what they would find if he did bring her in and he knew what would happen if he brought her in and they found that she had a bunch of broken ribs."
As to count 3, the prosecutor argued that appellant could either be found guilty for endangerment by having the BHO lab in the apartment or by personally imposing the injuries on Jude. The prosecutor said that if they found appellant guilty by way of endangerment, they must find the personal infliction of great bodily injury enhancement not true.
Defense Closing Argument
In the defense's closing argument, defense counsel pointed out that the People's "original case" was that appellant was the direct perpetrator and stated:
"Now [the prosecution is] asking you to find him guilty on a theory of aiding and abetting. How can the government argue both ways if they've proven something to you beyond a reasonable doubt? [¶] It shows the weakness in the government's case, that the medical evidence doesn't support the prosecution's argument."Defense counsel then criticized the aiding and abetting theory and argued there was no evidence that appellant knew:
"[W]ho, where, or how Jude was harmed. [Appellant] did not know what was happening to his baby. He had no clue what was going on. [¶] If you have no clue about what is going on to your child, there's not an affirmative duty on you in that instance, then, to do so, because you couldn't—you can't react to what you don't know."
Jury Deliberation Questions
During deliberations, the jury requested a transcript of Linn's testimony and a transcript of Gabriel's testimony referring to Linn disciplining Jude. The court provided the requested transcripts. The jury also asked, "How is the term 'act' defined for the count of assault causing death of a child? The definition for 'act' is defined for murder, but is it the same for this charge?" The court responded in a note: "Yes. Please see CALCRIM number 820A." After approximately eight hours of deliberating, the jury indicated they were hung on the "lesser-included offense" and the personal infliction of great bodily injury allegation.
The jurors were referring to the only lesser-included offense in their verdict packet, the less-included offense of count 1: second degree murder, in violation of section 187, subdivision (a).
The court instructed the jury to continue deliberating. The jury then asked for clarification on the definitions of "intentionally committed an act" and "deliberately acted with conscious disregard for human life." The court referred the jury to CALCRIM Nos. 520 and 200. CALCRIM No. 520 is the instruction for first and second degree murder. The instruction defines the elements for the state of mind of "implied malice." CALCRIM No. 200 instructs the jury to follow the definitions of words and phrases as given. If not given, then to use their everyday meanings.
CALCRIM No. 520 reads in part:
"The defendant acted with implied malice if:
"1. He intentionally committed an act; [¶] ... [¶]
"AND
"4. He deliberately acted with conscious disregard for human life.
After more deliberation, the jury again informed the court they could not reach a unanimous decision as to the "lesser-included offense." The jury requested the attorneys to comment on the elements of implied malice and the court allowed brief argument. Defense counsel argued there was no evidence appellant had any knowledge of what was happening to Jude. The prosecutor argued it would be unreasonable for appellant not to know Jude had broken ribs and that someone was hurting her. Further Jude would have been screaming due to her broken ribs and appellant chose not to take her to the doctor, and this constituted implied malice.
Appellant's Motion for New Trial
After appellant was convicted, he filed a motion for a new trial based on prejudicial misconduct pursuant to section 1181, subdivision 5, and violation of his Sixth Amendment due process rights alleging the prosecution proceeded on the aiding and abetting theory after the conclusion of evidence with no notice to the defense. Defense counsel attached a declaration to his motion wherein he declared (1) the prosecutor indicated to him the reason why Linn received an offer and appellant did not was due to the prosecution's belief that Linn was the aider and abettor not appellant; (2) during the trial defense counsel received sample jury instructions from the prosecution which did not include aiding and abetting instructions; and (3) "While I was aware of the case of People v. Rolon [(2008) 160 Cal.App.4th 1206 (Rolon)] and other similar cases it was so apparent from the prosecution's opening statement and approach to the evidence that a theory of aiding and abetting was not being considered, due to that I did not discuss such theories of liability with my client prior to any decision of his to testify or not testify in the instant case."
Subdivision 5 of section 1181 provides that the court may grant a new trial: "When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury."
During the prosecutor's opening statement, he argued the evidence would show appellant personally abused and murdered Jude. The prosecutor explained Linn was not charged with personal infliction of great bodily injury "because the evidence didn't support any indication that she herself did anything to the baby. She just allowed it to happen."
At the hearing on the motion, the prosecutor argued that defense counsel was:
"[P]roceeding from a false assumption; namely, that I somehow changed my theory of the case from one in which the defendant personally murdered his daughter to one in which he aided and abetted [Linn] in committing that murder. [¶] My theory of the case never changed even a little bit. My theory of the case was that he personally murdered that little girl. During the case it was that he personally murdered that girl. And as I sit here right now, my absolute belief is that [appellant], with his own hands, murdered that two-month-old baby."The prosecutor explained that he did not feel Linn "c[a]me off terribly charismatically to the jury." The prosecutor said, "I had a suspicion that maybe the jurors might not have liked her very much, and I was concerned because of that, along with some statements by the defense's doctor about ... Linn supposedly disciplining the baby, I developed a concern that some of the jurors might possibly think that she had committed this crime personally, as opposed to simply aiding and abetting [appellant] in its commission. Because of that, I requested the instructions pursuant to People vs. Rolon, which we discussed and were given." The prosecutor explained that he argued appellant was the direct perpetrator but the jury's finding that Linn was the perpetrator, did not mean appellant was not liable in the event they found him guilty as an aider and abettor.
The court denied appellant's motion, noting it appeared there was an opportunity for alternative theories to be presented based on the way the evidence was presented to the jury. The court found it was not unusual for the court to consider a request to present aiding and abetting instructions so that the jury would understand what to do with the evidence presented.
B. Analysis
1. Notice of Aiding and Abetting Theory
a. Alleged Sixth Amendment and Due Process Violations
Appellant contends his Sixth Amendment right to be adequately informed of the nature and cause of the accusation against him as well as his state and federal constitutional rights to due process were violated by the trial court's instructing the jury on aiding and abetting. We disagree.
Appellant recognizes that generally a prosecutor does not need to elect a theory of guilt. (See People v. Garrison (1989) 47 Cal.3d 746, 776, fn. 12 [holding that the complaint does not need to recite a particular theory of guilt].) Appellant concedes, "[a]bstractly, the prosecutor does not need to say in advance whether the defendant is charged as a perpetrator or as an aider and abettor [sic]." Rather, appellant contends a violation occurred in his case because the prosecutor affirmatively expressed to the defense that he believed appellant was the direct perpetrator and that Linn was an aider and abettor. Appellant argued the prosecutor's behavior constituted "affirmatively misleading or ambushing the defense with [the alternate] theory," so as to violate due process, citing People v. Quiroz (2013) 215 Cal.App.4th 65, 71 (Quiroz).
In Quiroz, the defendant was charged with first degree murder, and the People alleged the defendant personally used a firearm in committing the murder. (Quiroz, supra, 215 Cal.App.4th at p. 69.) During voir dire, the People submitted proposed jury instructions, including an aiding and abetting instruction. (Ibid.) After the People rested their case-in-chief, and after the defendant had called two of his witnesses, the trial court held its initial jury instruction conference. (Ibid.) At the conference, the People again requested the jury be instructed on both direct liability and aiding and abetting liability. (Ibid.) Over the defendant's objection, the court tentatively ruled that substantial evidence supported the defendant's liability as an aider and abettor. Thereafter, the defendant proceeded to call six additional witnesses. (Ibid.) Over another objection by the defense at the final jury instruction conference, the trial court instructed the jury on direct and aiding and abetting liability. During closing argument, the defendant criticized the People for shifting its story from the defendant as the shooter to aider and abettor. (Ibid.) The jury found the defendant guilty of murder but split 11 to 1 on whether he personally used a firearm, and the court declared a mistrial on the firearm allegation. (Ibid.)
On appeal, the defendant in Quiroz argued that the court erred in instructing the jury on aiding and abetting liability because the People requested the instruction so late in the trial as to deny him the effective assistance of his counsel. (Quiroz, supra, 215 Cal.App.4th at pp. 69-70.) The appellate court in Quiroz first explained that "Under California's practice of short-form pleading, an instrument charging a defendant as a principal is deemed to charge him as an aider and abettor as well. (§ 971.) This 'notice as a principal is sufficient to support a conviction as an aider and abettor ... "... without the accusatory pleading reciting the aiding and abetting theory...." ' " (Id. at p. 70.) The Quiroz court accordingly held that because the defendant was charged with the murder as a principal, he received adequate notice under California law. (Ibid.)
Here, too, appellant was adequately noticed of the aiding and abetting theory under California law with his charging document; however, appellant does not appear to be challenging this on appeal.
The Quiroz court went on to analyze if and how the defendant's federal constitutional rights were implicated:
"A criminal defendant also has a federal constitutional right to ' " be informed of the nature and cause of the accusation." ' [Citation.] It is unsettled whether California's short-form pleading practice, without more, confers constitutionally adequate notice of the People's decision to proceed on an implicitly charged alternative legal theory. [Citations.] Nevertheless, we have deemed notice of a new theory to be constitutionally sufficient when the defendant is further alerted to the theory by the evidence presented at the preliminary hearing [citations] or by the People's express mention of that theory before or during trial sufficiently in advance of closing argument. [Citations.] What due process will not tolerate is the People affirmatively misleading or ambushing the defense with their theory." (Quiroz, supra, 215 Cal.App.4th at pp. 70-71.)In analyzing the case before it, the Quiroz court noted that the People submitted the instruction early in the trial and explicitly renewed the request five days before closing argument while the defense was still presenting his case. The court noted the defendant called six more witnesses after the instruction conference. The court held the defendant had more than sufficient notice of the People's intention to proceed on an aiding and abetting theory and that the People "in no way ambushed" the defendant with its aiding and abetting theory. (Quiroz, supra, 215 Cal.App.4th at p. 71.)
The Quiroz court noted the defendant's asserted error was harmless in any event. The court explained that in cases where a new theory is introduced "late in the game" for reasons other than "prosecutorial gamesmanship," courts have employed a harmless error test. "That test looks to whether the late notice 'unfairly prevented [defense counsel] from arguing his or her defense to the jury or ... substantially misled [counsel] in formulating and presenting arguments.' " (Quiroz, supra, 215 Cal.App.4th at p. 71.) The court held any alleged error was harmless because the defendant had ample time to call witnesses and tailor his closing argument after the People reaffirmed its request for an aiding and abetting instruction and pointed out that the defendant capitalized on the People's midtrial shift in emphasis during his closing argument. (Ibid.)
We do not find the prosecutor's representations to appellant regarding his belief that appellant was the direct perpetrator were intentionally misleading. The prosecutor requested the aiding and abetting instructions based on the evidence that appellant was not the direct perpetrator and suggested that Linn was, as well as the quality of Linn's testimony. Appellant's defense was he was not the direct perpetrator and had no idea what happened to Jude. The evidence supported the only other perpetrator could be Linn. The prosecutor was permitted based on this evidence to argue that even if appellant's alternative was true, appellant had knowledge that would support his liability.
By both expert's estimations that the most recent injury took place at a time when, by appellant's own account, only he or Linn were alone with Jude.
We do not believe the prosecutor's representations before and during trial precluded him from requesting instructions that applied to appellant's theory of the case. We do not agree with appellant's characterization that the prosecution changed its theory. Rather, this is a case where the evidence presented at trial triggered the trial court's duty to instruct "even in the absence of a request," "on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.)
Appellant was not "ambushed" with the theory. We recognize that the prosecutor in Quiroz introduced the instructions at the beginning of trial and made his official request before the close of the defendant's case—five days before closing argument—which was earlier than the prosecutor did in the present case. We find, however, defense counsel in the present case was given a reasonable opportunity to argue against the aiding and abetting theory because he did so argue. Like in Quiroz, defense counsel even capitalized on the introduction of the new theory as a weakness in the People's case. We do not find the fact that evidence had been closed in Quiroz, a distinguishing factor, because appellant did not even attempt to request to reopen evidence or ask for a continuance to address the theory more fully than he had during trial. We find no error under Quiroz.
Appellant also cites Lankford v. Idaho (1991) 500 U.S. 110 (Lankford) for the proposition that even though the trial court had the "power" to instruct on aiding and abetting despite the prosecution's representation, "abstract legal authority does not override the facts of a particular case." In Lankford, the State of Idaho, through a presentencing order, advised the trial court that it was not seeking the death penalty. During the sentencing hearing, the defendant did not present any mitigating evidence but, instead, simply argued the merits of different prison terms. Nevertheless, the trial court, sua sponte, determined that the defendant should be sentenced to death. On review, the United States Supreme Court concluded the defendant was denied due process because he did not have "adequate notice of the critical issue that the judge was actually debating." (Id. at p. 120.) In so holding, the court noted, "If notice is not given, and the adversary process is not permitted to function properly, there is an increased chance of error, ... and with that, the possibility of an incorrect result." (Id. at p. 127.)
Appellant contends he too was deprived of a properly functioning adversary process. Appellant states under Idaho law the court could impose the death penalty even if the prosecutor did not seek it, much like the court here had the power to instruct the jury on an aiding and abetting theory even if the prosecutor had not sought it. Appellant contends Lankford requires us to find despite the court's authority to have instructed on aiding and abetting that the prosecutor caused an error of constitutional proportion. Lankford is inapposite. We first note the trial court does not only have the "power" to instruct on theories of the case but has a "duty." (See People v. Cole (2004) 33 Cal.4th 1158, 1206.) The trial court here noted it believed the instructions were appropriate based on how the evidence was presented, and thus was obligated to so instruct the jury. Further, as noted, unlike in Lankford, appellant was given the opportunity to argue against the aiding and abetting theory and did so. He was not prevented from requesting a continuance or to reopen evidence. The defendant in Lankford had no such opportunity.
We find no Sixth Amendment or due process violation.
b. Section 1009 and California Constitution , Article I, Section 14
Appellant also contends the alleged instructional error "violated section 1009 and the California Constitution" because the aiding and abetting theory was not supported by evidence adduced at the preliminary hearing. Both provisions cited by appellant relate to charging documents. Section 14 of article I of the California Constitution provides, in relevant part, that an information may only be filed after examination and commitment by a magistrate. Section 1009 provides an information may only be amended "so as to charge an offense not shown by the evidence taken at the preliminary examination." Appellant does not explain with any persuasive authority how these provisions require notice of the particular theory of guilt. Accordingly, this claim fails.
In any event, the aiding and abetting theory was supported by the evidence at the preliminary hearing. At the preliminary hearing, the People presented evidence that Jude died of blunt force trauma to the head that may have been caused by shaking. They introduced appellant's statement that only he, Linn, and Jude were in his apartment the morning Jude died, as well as appellant's account of what happened the moments before Jude stopped responding. The People also presented evidence that Linn expressed that Jude would cry whenever someone touched her ribs and that she had heard a clicking sound in Jude. Linn said that neither she nor appellant sought medical attention for Jude's ribs. The prosecutor argued either appellant or Linn could be the direct perpetrator and the court expressly held both defendants to answer on an aiding and abetting theory.
We find no error under section 1009 or section 14 of article 1 of the California Constitution.
c. Alleged Ineffective Assistance of Counsel
In the alternative, in case this court finds notice was proper for the aiding and abetting theory, appellant contends in supplemental briefing his trial counsel's failure to prepare a defense for aiding and abetting constituted ineffective assistance of counsel.
Appellant argues that because trial counsel failed to subject the aiding and abetting theory to "meaningful adversarial testing," his claim must be scrutinized under the heightened standard under United States v. Cronic (1984) 466 U.S. 648, 656 (Cronic), wherein he does not need to show prejudice stemming from the error. We disagree.
The United States Supreme Court in Cronic stated: "[I]f counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." (Cronic, supra, 466 U.S. at p. 659.) But the court later clarified that Cronic's application is very narrow: "When we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete." (Bell v. Cone (2002) 535 U.S. 685, 696-697; Florida v. Nixon (2004) 543 U.S. 175, 190 ["Cronic recognized a narrow exception to" the rule that a defendant claiming ineffective assistance of counsel must show prejudice].)
As the California Supreme Court has stated in rejecting reliance upon Cronic: "Defendants have been relieved of the obligation to show prejudice [under Cronic] only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage." (In re Visciotti (1996) 14 Cal.4th 325, 353.) Here, trial counsel was neither totally absent nor prevented from assisting appellant. Appellant must satisfy the standards established in Strickland v. Washington (1984) 466 U.S. 668 (Strickland). (See In re Visciotti, at p. 353.)
To prevail on such a claim under Strickland, appellant must establish that (1) the performance of his trial counsel fell below an objective standard of reasonableness and (2) prejudice occurred as a result. (Strickland, supra, 466 U.S. at p. 687; People v. Anderson (2001) 25 Cal.4th 543, 569.) "When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Here, as appellant insists the claim must be scrutinized under Cronic, he does not offer any argument that the second prong of the Strickland test was met, namely, that prejudice occurred as a result of the alleged error. Nor can we glean any from his other briefing or the record. Appellant does not show how any further preparation for the aiding and abetting theory would have changed the result in his case on this record. In his opening brief, he discusses the possibility of calling witnesses who watched Jude, presenting evidence about the reason appellant missed Jude's two-month checkup appointment, and the possibility of taking the stand himself, but we are not in a position to determine what that evidence would show or what its strength would be in defending the aiding and abetting theory. Appellant cannot show prejudice of his alleged claim of ineffective assistance of counsel on direct appeal and thus his claim fails.
2. Substantial Evidence to Support Aiding and Abetting Instruction
Appellant contends the aiding and abetting instructions were not factually supported by the evidence. He contends no evidence was presented to show appellant knew Linn was abusing Jude nor that he intended for it to continue or occur. We disagree.
"A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof. [Citation.] We review the trial court's decision de novo." (People v. Cole, supra, 33 Cal.4th at p. 1206.) " 'The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. [Citation.] To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented.' " (People v. Campbell (1994) 25 Cal.App.4th 402, 408.)
As indicated in the special instruction regarding parental inaction given to the jury, the aiding and abetting theory in the present case is based on People v. Swanson-Birabent (2003) 114 Cal.App.4th 733 (Swanson) and Rolon, supra, 160 Cal.App.4th 1206. In Swanson, the court held the evidence was sufficient to support a lewd and lascivious act conviction against the defendant where she stood by and watched while her boyfriend molested her daughter. (Swanson, at pp. 741-743.) On whether standing by could legally constitute an "act," the court said:
"[T]he [fact finder] could reasonably determine that defendant did 'act' during each incident, by standing over the bed and watching as [the perpetrator of the abuse] molested the victim. Defendant argues that this was not an 'act,' citing the rule that, ordinarily, mere presence at the scene of a crime and the failure to take steps to prevent a crime are insufficient to establish aiding and abetting liability. [Citation.] However, in this case defendant was not merely present. Her presence served an important purpose: it encouraged the victim to comply with [the perpetrator] rather than resist. Defendant's presence also encouraged [the perpetrator] to continue molesting the victim." (Swanson, supra, 114 Cal.App.4th at p. 744.)The Swanson court went on: "Our analysis would be the same even if we were to classify defendant's act of standing over the bed, watching [the perpetrator] molest the victim, as an 'omission' rather than an 'act.' Although no published California case has yet to consider the question, other 'state courts have held that a failure to act can constitute aiding and abetting, provided the aider and abettor has a legal duty to act.' " (Swanson, supra, 114 Cal.App.4th at p. 744.)
The Rolon court upheld a murder conviction of a parent who knew her child's father had abused the child and continued to allow him to be around the child in spite of a court order. The father eventually killed the child. (Rolon, supra, 160 Cal.App.4th at pp. 1209-1212.) The Rolon court approved of Swanson, explaining, "parents have a common law duty to protect their children and may be held criminally liable for failing to do so." (Rolon, at p. 1219.) Thus, "a parent who knowingly fails to take reasonable steps to stop an attack on his or her child may be criminally liable for the attack if the purpose of nonintervention is to aid and abet the attack." (Ibid.) The Rolon court therefore held: "[A]iding and abetting liability can be premised on a parent's failure to fulfill his or her common law duty to protect his or her child from attack. For the same reasons we conclude that such intentional conduct ... can support liability for [second degree] murder." (Ibid.) Rolon clarified that "liability as an aider and abettor requires that the parent, by his or her inaction, intend to aid the perpetrator in commission of the crime, or a crime of which the offense committed is a reasonable and probable outcome." (Ibid.) The Rolon court cited with approval out-of-state cases upholding murder convictions by an aiding and abetting theory where the defendants were not present at the time of the death of the children, but left the children alone with individuals who had physically abused the children in the past. (Id. at pp. 1217-1218; People v. Stanciel (1992) 153 Ill.2d 218.)
In the present case, we note the evidence was uncontroverted that Jude was abused, and the abuse caused her death. The evidence was also uncontroverted, by both medical experts' account of the timing of her exhibiting the symptoms, that Jude suffered her brain injuries at a time when only appellant or Linn had been alone with Jude. Appellant's own medical expert proffered the idea that Linn "disciplined" the child. There is no question on this record that either appellant or Linn or both abused Jude.
In our view, substantial evidence supports the conclusion that appellant committed the assault against Jude under an aiding and abetting theory based on two possible scenarios. The first is the scenario that was discussed by the prosecutor, that appellant aided and abetted in the abuse of Jude by failing to take steps to seek medical attention or stop the abuse. Gabriel testified that Jude exhibited symptoms such as screaming and that it would have been clear that something was wrong with her. Appellant himself referred to Linn as the "discipline" parent. Appellant was the stay-at-home parent and lived in close quarters with Linn and Jude. He did not take Jude to her two-month checkup appointment and indicated that he believed X-rays would be taken at that appointment. Appellant's knowledge of ongoing abuse by Linn could be inferred from the totality of the evidence.
The evidence also supports a reasonable inference that appellant personally witnessed at least the final abuse that led to Jude's death and did nothing to intervene, like in Swanson. Appellant does not consider possible liability based on appellant witnessing the final injury to Jude because "all the evidence showed that [appellant] was holding [Jude]" at the moment Jude collapsed. However, a fact finder would not be forced to accept this evidence. The only witnesses who could speak to what happened in the moments before Jude stopped responding were appellant and Linn. As the evidence clearly supported that one or both of them were the perpetrators of this abuse, it is not unreasonable to discount their statements. If one accepts Carpenter's testimony that the final injury would have immediately caused coma-like symptoms, one can infer appellant's statement that he was merely holding Jude before she went limp is a knowingly false statement.
A fact finder is permitted to view a defendant's knowingly false statement as showing he was aware of his guilt, and the fact finder is permitted to use a defendant's false statement in determining guilt. (See CALCRIM No. 362.) Just as a reasonable inference can be made from Carpenter's testimony that appellant abused Jude immediately before she experienced coma-like symptoms, a reasonable inference can be made that Linn abused Jude before she experienced her symptoms, and appellant was aware of it, did nothing to stop it, and accordingly intended to assist by nonintervention. We note that appellant does not challenge the sufficiency of the evidence to support his conviction in count 2. Thus, he concedes despite his statement and the defense expert's testimony the evidence is sufficient to support direct liability.
Appellant also argues the aiding and abetting theory relied on a factual scenario that required a criminal negligence standard rather than a criminal intent standard, and thus was a legally invalid theory. For the reasons we have already discussed, we disagree. Substantial evidence supports the giving of the aiding and abetting instructions. Further, the jury was correctly instructed that they were required to find under the aiding and abetting theory that appellant knew of the perpetrator's intent and intended to aid and abet the perpetrator. (See CALCRIM No. 401.) We presume the jury followed the court's instructions. (People v. Edwards (2013) 57 Cal.4th 658, 746.)
We do not find the aiding and abetting instructions constituted either a factually or legally invalid theory.
3. Validity of the Aiding and Abetting Theory Under People v. Partee (2019) 8 Cal .5th 860
While this appeal was pending, we granted appellant's request to file supplemental briefing to address a recent California Supreme Court case, People v. Partee (2020) 8 Cal.5th 860 (Partee). The defendant in Partee voluntarily spoke to law enforcement in the course of a murder investigation of four suspects. (Id. at p. 862.) The defendant was subpoenaed and granted use immunity for her testimony at trial but declined to testify. (Ibid.) The defendant was subsequently prosecuted for her failure to testify, including for four felony counts of accessory after the fact to murder under section 32. (Partee, at pp. 862-863.) The defendant appealed contending her failure to testify did not support an accessory conviction because her silence did not fulfill the " 'overt or affirmative assistance' " requirement of the crime of accessory. (Id. at p. 863.) The California Supreme Court reversed the Court of Appeal's judgment affirming her convictions. (Ibid.)
As part of the California Supreme Court's reasoning, it analogized the use of the word "aids" in section 32, the accessory statute, to the word "aids" in section 31, the aiding and abetting statute. (Partee, supra, 8 Cal.5th at pp. 866-868.) The court explained the word "aids" in section 31 refers only to overt or affirmative forms of assistance and that "section 32 must be read in the same way." (Partee, at p. 868.)
Section 32 reads: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony." --------
Based on this reasoning, appellant contends Partee overruled Rolon, supra, 160 Cal.App.4th 1206, and therefore the jury in his case was given an illegal theory of guilt when they were instructed that they could convict him on a failure to act, violating his constitutional rights under the Sixth and Fourteenth Amendments. We decline to read Partee as overruling Rolon and reject appellant's argument.
The portion of the Partee opinion appellant contends overrules Rolon is a reiteration of the long-standing general rule that aiding and abetting requires some affirmative action; that is, that silence or failure to intervene cannot sustain an aiding and abetting conviction. This is demonstrated in the cases cited by the Partee court to support its assertion that aiding and abetting requires an affirmative act. In People v. Weber (1948) 84 Cal.App.2d 126 (Weber), cited by the Partee court: "The mere knowledge or belief that a crime is being committed or likely to be committed, and the failure on the part of the one having such knowledge or belief to take some steps to prevent it, in no sense amounts to aiding and abetting." (Weber, at p. 130.) Similarly, in People v. Villa (1957) 156 Cal.App.2d 128, also cited by the Partee court, the court stated: "Of course, the appellant's presence at the scene of the crime, his knowledge that a crime was being committed, and his failure to prevent it, alone could not support the conviction. (Villa, at pp. 135-136.)
Rolon is not at odds with the general rule and cases cited by Partee. Rather, Rolon deals with a question not considered by Partee regarding the special relationship between parent and child, which confers a common law duty to act. Rolon relied on the California Supreme Court case of People v. Heitzman (1994) 9 Cal.4th 189, which cited with approval People v. Burden (1977) 72 Cal.App.3d 603, in which a father who willfully withheld food from his child, resulting in the child starving to death, was liable for murder based on his failure to perform his common law duty to care for his child. Appellant points out that neither Heitzman or Burden deal with aiding and abetting specifically, but we do not find that to be a reason to reject Rolon's reasoning even in light of Partee, as we will explain. Rolon merely extrapolated from the authority that the common law can provide a rationale that failure to act can be equivalent to an affirmative act in some situations. (Rolon, supra, 160 Cal.App.4th at p. 1216.)
In Partee, there was no "special relationship" between the defendant and the victim of the crime. We view Partee as limited to the question before it, which was: whether "a witness's silence in the face of legal compulsion to provide testimony in a criminal trial. It is not obvious that such silence—a failure to supplement the efforts of the prosecution—amounts to ' "overt or affirmative assistance." ' " (Partee, supra, 8 Cal.5th at p. 869.)
Without a subpoena, the appellant in Partee was no different than the type of person described by Weber and Villa who knew a crime was committed but did not stop it. The "legal duty" to comply with a subpoena is distinguishable from the common law duty to protect one's children because, as Partee points out, the prosecution can simply impose the duty leading to unintended and unfair negative results. As the court states: "Were we to hold [failure to comply with a subpoena qualifies as accessory after the fact], it is plausible that 'every possibly recalcitrant witness will get a subpoena,' and felony 'accessory charges for recalcitrant witnesses are now fair game.' " (Partee, supra, 8 Cal.5th at p. 872.) This includes absurd results as the Partee court points out where a victim of domestic violence could be forced to choose between testifying against an intimate partner or being convicted as an accessory to their own assault. (Id. at p. 873.) No such absurd results arise from the Rolon holding.
Appellant assures us that if we were to read Partee as overruling Rolon, culpable parents would still receive punishment for behavior like that in the present case. He points out that section 273a provides up to six years in prison for any parent who "permits ... [their] child to be injured, or willfully ... permits [their] child to be placed in a situation where his or her person or health is endangered...." He also points out that the "natural and probable consequences" doctrine allows increased punishment if the parent's actions aided a lesser crime that was reasonably likely to escalate to a violation of section 273ab. We do not disagree with appellant that these provisions can punish similar behavior to what occurred in the present case, but for the reasons already discussed, we do not find Partee overruled Rolon, and under Rolon, the jury in the present case was properly instructed. The jury was not instructed on an invalid theory of guilt and as such none of his constitutional rights were violated.
4. Unanimity
In the alternative, appellant contends the trial court erred by not requiring the jury to unanimously decide on either the direct perpetrator or the aiding and abetting theory.
" 'It is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty. [Citations.] More specifically, the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator. [Citations.] This rule of state law passes federal constitutional muster.' " (People v. Majors (1998) 18 Cal.4th 385, 408.)
Appellant claims this rule should not apply to the present case because the theories implicate different "events," citing People v. Davis (1992) 8 Cal.App.4th 28 (Davis). The Davis court stated: "What we conclude is actually required ... is unanimous agreement that the defendant is criminally responsible for one discrete criminal event." (Id. at p. 41.) Davis does not help appellant. Here, there was one discrete criminal event, namely, the assault causing Jude's death.
The Davis court explained:
"It is simply of no consequence that some jurors believe the defendant is guilty based on one theory while others believe he is guilty on another even when the theories may be based on very different and even contradictory conclusions concerning, for example, the defendant's basic intent in committing the crime. [¶] We see no reason to apply a different rule with regard to theories of criminal participation. The Legislature has determined those who aid and abet and those who actually perpetrate the offense are principals and equally culpable. (§ 31.) Clearly, criminal law is ultimately concerned with ascribing criminal responsibility for discrete events. This is done by defining crimes, for example, first degree murder, and by determining who will be responsible for those crimes, for example, aider and abettors and direct perpetrators. Once the discrete event is identified, for example, the killing of a particular human being, the theory each individual juror uses to conclude the defendant is criminally responsible need not be the same and, indeed, may be contradictory." (Davis, supra, 8 Cal.App.4th at p. 45.)Jurors need not unanimously agree on whether the defendant is an aider and abettor or a principal even when different evidence and facts support each conclusion. (Davis, supra, 8 Cal.App.4th at p. 45.)
Appellant also relies on People v. Dellinger (1984) 163 Cal.App.3d 284, 301, in which the appellate court concluded that one basis, among several, to reverse a judgment of conviction on second degree murder was the trial court's failure to give a unanimity instruction. The appellate court recognized that "[m]ost of the reported cases involving multiple criminal acts by a defendant [in which courts have held a unanimity instruction was required] also involve potential multiple offenses." (Ibid.) Nevertheless, without citing authority, the appellate court held a unanimity instruction was required even though "there was only one offense and one victim but there were several hypotheses as to which act or acts caused [the victim's] death[, either blunt force trauma to the head or forced ingestion of cocaine]." (Ibid.) "As long as there are multiple acts presented to the jury which could constitute the charged offense, a defendant is entitled to an instruction on unanimity." (Ibid.) Dellinger supports appellant's position. Dellinger also, however, conflicts with more recent Supreme Court authority (e.g., People v. Russo (2001) 25 Cal.4th 1124, 1132 ["where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty").] For this reason and because Dellinger failed to cite any authority for its holding, we will not follow it.
The trial court did not err by instructing the jury that they did not need to agree unanimously on a theory of guilt.
II. Exclusion of Witness Statement for Impeachment
A. Relevant Background
At trial, in addition to what was already recounted above in the factual portion of this opinion, the following occurred during Chavez's testimony:
"[Defense Counsel]: Do you recall, when you spoke to the detectives, saying that [appellant] was in shock?
"[Chavez]: I don't ever remember using those words to the detective.
"[Defense Counsel]: Okay.
"[Chavez]: If it's in a report, I may have said it.
"[Defense Counsel]: Okay. So if you had said to the detective that you thought [appellant] was in shock, what would that mean to you with your describing that somebody is in shock?
"[Chavez]: Well, like I said, I've never—I don't recall ever telling anybody that I thought he was in shock, but if somebody is in shock, they're going to be shaken to the core, obviously."
Defense counsel moved to introduce the statement Chavez previously made to law enforcement as a prior inconsistent statement in order to impeach Chavez. Specifically, defense counsel asked that Chavez's statement, where he said appellant was "in shock" approximately three times, be admitted. The relevant portion of Chavez's interview with Conner is as follows:
"[Conner]: What ... was [appellant's] emotional uh—demeanor?
"[Chavez]: Uh—it was—he was in shock, you know? I mean I—I honestly, I don't know what happened. I have no idea.
"[Det. Bravo]: In shock that his baby passed away or shocked that we didn't take him to jail?
"[Chavez]: A little bit of both probably. I think a little bit of both. Like he was scared to death. I mean his baby just died. He—he was in shock. One minute he'd be talking like nothin' was wrong and the next minute he'd be crying. So um ... that's about all I know."
Defense counsel said the reason for his motion was that Chavez "kind of left some doubt as to whether or not he said 'shock' or not ... [a]nd my recollection is his testimony was such that he even left kind of doubt as to if that was a word he would even use." Defense counsel asked that he be permitted to impeach Chavez either through being permitted to question the officer or by playing that portion of Chavez's recording.
The prosecutor argued that because Chavez said he did not remember whether he used the words "in shock," Chavez's statement that appellant was in shock is not an inconsistent statement. In response, defense counsel argued he felt Chavez was being purposefully evasive. Defense counsel went on to say his recollection is that the impression given by Chavez at trial was significantly different than what Chavez said to law enforcement and that "I don't know" or "I don't remember" is an inconsistent statement.
The trial court held the statement that Chavez did not remember saying appellant was in shock was not inconsistent with his statement to law enforcement that appellant was in shock. The trial court found Chavez was not being purposefully evasive so as to find the statement inconsistent. The trial court denied the defense's request to impeach Chavez with the statements from his statement to law enforcement, finding the hearsay exception involving prior inconsistent statements was not applicable.
B. Analysis
Appellant contends the exclusion of Chavez's prior statement violated Evidence Code section 1235. Appellant argues the trial court abused its discretion by not applying the proper test in determining whether the statement was inconsistent. Appellant contends the court, by narrowing its focus as to whether Chavez was being evasive or not, erred because it did not consider the "effect" of the different statements. We disagree.
We apply "the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question." (People v. Waidla (2000) 22 Cal.4th 690, 725.) " '[A] trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
Evidence Code section 1235 provides a hearsay exception for statements inconsistent with a witness's testimony at trial. The "fundamental requirement" of Evidence Code section 1235 is that the statement in fact be inconsistent with the witness's trial testimony. (People v. Johnson (1992) 3 Cal.4th 1183, 1219.) Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. (People v. Green (1971) 3 Cal.3d 981, 988.) However, courts do not apply this rule mechanically. When a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. (Id. at pp. 988-989.)
Green stands for the proposition, which has been reinforced by the court in People v. Cowan (2010) 50 Cal.4th 401, 462, that even though testimony the declarant forgot what happened is not directly inconsistent with a prior statement, it can be inconsistent in effect, that is, as a denial, when the forgetfulness is evasive. Here, Chavez did not testify that appellant was not "in shock." Rather, Chavez said he did not remember saying appellant was "in shock." This is not a direct inconsistent statement. Therefore, the trial court's analysis of whether Chavez's statements were deliberately untruthful was relevant to whether the statements could be seen as a denial in effect. We defer to the trial court's factual finding that Chavez's statement that he did not remember whether he said appellant was in shock was truthful. We therefore find Chavez's testimony not inconsistent, directly or in effect, with his statement to law enforcement.
We reject appellant's claim that the trial court was required to determine whether the jury would be left with a different "impression" of appellant's attitude after hearing Chavez's statement to law enforcement. He cites no authority nor could we find any persuading us that this is the proper test. Even if we were to apply the test proffered by appellant, we would not come to a different conclusion. In the context of Chavez's statement to law enforcement, his observation that appellant was "in shock" was a second thought to Chavez's impression that appellant was "more concerned about his [marijuana] stash than anything else." That is, Chavez did not mention appellant was "in shock" until after describing that appellant could not believe he did not go to jail and was bragging that law enforcement did not find his drug manufacturing paraphernalia. When asked if appellant was "in shock" because his baby died or because he was not taken to jail, Chavez responded, "probably" "a little bit" of both. Further, Chavez's testimony included that appellant was upset regarding Jude's death. Chavez testified appellant said he could not believe "this was happening" and at first appellant seemed "normal" to Chavez because appellant seemed "distressed" about his baby dying. We find no abuse of discretion.
Appellant also claims his constitutional right to cross-examine witnesses was violated by the exclusion of the statement. Appellant claims his right to cross-examine includes a chance to impeach witnesses' testimony. We reject this claim. Because we find the trial court was within its discretion in finding the statement was not inconsistent, there were no grounds for which Chavez's statement could be impeached.
Appellant also argues the trial court's ruling excluded "exculpatory evidence" in violation of his constitutional right to due process and right to present a defense. We also reject this claim. Where a "trial court's ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense," the ruling does not constitute a violation of due process. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
We find no error or unfairness.
III. Lesser Included Offense
Appellant contends in supplemental briefing that the trial court erred in failing to instruct the jury on the lesser included offense of simple assault. We reject this claim.
California law requires a trial court to "instruct fully on all lesser necessarily included offenses supported by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) "On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (Id. at p. 162.) An instruction is not warranted unless there is "substantial evidence," meaning " ' "evidence from which a jury composed of reasonable [persons] could ... conclude[]" ' that the lesser offense, but not the greater, was committed." (Ibid.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense...." (Ibid.)
Appellant bases his argument on the evidence at trial that Jude had preexisting medical issues that made her more susceptible to severe injury. In support, he cites Gabriel's testimony, which reads in context:
"[Defense Counsel]: ... So even though there may have been some kind of preexisting fluid from birth, nothing like that was the cause of death in this case.
"[Gabriel]: No, but it may have been underlying provoc—in other words, it may have made things more vulnerable.
"[Defense Counsel]: Okay.
"[Gabriel]: But it was not the actual cause of death.
"[Defense Counsel]: So it's a child that may have been more susceptible to death from such an injury than a perfectly healthy child.
"[Gabriel]: That's right."
Appellant contends that because Jude was "more susceptible to death" from her injuries than an otherwise healthy child, the jury may have concluded the assault was not caused by "force likely to produce great bodily injury," as required by section 273ab. Appellant argues the proper verdict in that case would be for simple assault.
Here, there is not substantial evidence that supports the lesser offense of simple assault, but not the greater, of section 273ab was committed. Though Gabriel testified Jude was more susceptible to death from her injuries, he did not testify she was more susceptible to the injuries themselves. It is not reasonable to conclude the injuries, whether or not they caused death, were not "great bodily injury." Gabriel testified Jude's abuse was caused by blunt force trauma, opining it could have been done "by using a hammer, using a piece of wood, or slamming the child up against a hard object." Gabriel said accidental causes of the same injuries could be "a second-story fall" or "a motor vehicle accident." Clearly force consistent with a second story fall or a motor vehicle accident is force likely to cause great bodily injury. Carpenter testified the injuries were most consistent with "violent shaking."
The trial court did not err by failing to instruct on simple assault.
DISPOSITION
The judgment is affirmed.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
PEÑA, J.
"The word 'act' as used in these instructions includes an omission or failure to act in those situations where a person is under a legal duty to act. [¶] ... [¶]
"An act causes 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 of the circumstances established by the evidence.
"A parent has a legal duty to help, care for, rescue, and protect his or her minor child.
"If you conclude that the defendant owed a duty to Jude [N.], and the defendant failed to perform that duty, his failure to act is the same as doing a negligent or injurious act."