Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC058741A
Margulies, J.
A jury convicted defendant Pedro Joaquin Olivas of second degree murder and assault on a child under eight years of age resulting in death. The trial court sentenced him to a term of 25 years to life in state prison.
Defendant contends his convictions must be reversed because (1) the trial court allowed the prosecutor to exclude prospective Hispanic jurors in a racially discriminatory manner and declined to instruct the jury on involuntary manslaughter, and (2) his trial counsel provided ineffective assistance by failing to present evidence promised in his opening statement. We find no merit in defendant’s arguments and affirm his convictions.
I. BACKGROUND
Defendant was charged by indictment with murder (Pen. Code, § 187, subd. (a)) and assault on a child under eight years of age likely to produce great bodily injury and resulting in death (§ 273ab). Defendant pleaded not guilty to both counts. Jury trial commenced on August 1, 2007.
All further statutory references are to the Penal Code.
A. Prosecution Case
Lizeth Esquivel lived at her sister’s house with her sister’s family and a second sister. In October 2002, Ms. Esquivel had a son, Fernando. When Esquivel went back to work about three months later, her sisters babysat Fernando.
Esquivel moved out of her sister’s house on April 5, 2004, and into an apartment in Daly City. Shortly after midnight on April 9, 2004, Esquivel and defendant brought Fernando, then 17 months old, to the Seton Medical Center in Daly City. Fernando was breathing but unconscious and unresponsive.
Dr. Mark Alderdice was on duty that night in the Seton Emergency Department. Alderdice found Fernando to be “comatose basically.” He and other medical staff initiated efforts to resuscitate the child. However, Fernando died at Stanford Medical Center on April 13.
Alderdice was board certified in emergency medicine and had practiced in that capacity since 1989. He was the administrative director for the emergency departments of 10 hospitals and was responsible for oversight of 130 emergency department physicians. Alderdice helped to set standards for these departments, which included recognition and treatment of injuries associated with shaken baby syndrome.
Within minutes of their arrival at the hospital, Alderdice asked defendant what had happened. Defendant said that Fernando had fallen off a bed that was two to three feet high, and onto the floor. When Alderdice pressed him for details, defendant explained that Fernando fell onto the carpeted floor, tried to get up, fell again, and bumped his head into a wall heater. Fernando became unresponsive so defendant put him on the bed and tried to wake him. Defendant denied that any other incidents had occurred that might account for the child’s comatose state.
Further examination of Fernando revealed bruising on his forehead just above the nose and minor bruising on his legs. A CT scan revealed a subdural hematoma on the right side of Fernando’s brain. He had retinal hemorrhages in both eyes. Fernando was also bleeding from his frenulum—the gum area underneath his upper lip. The tear to the tissue in this area appeared to be fresh and likely occurred within a matter of hours before Fernando was brought to the hospital. There was also residual blood in Fernando’s throat.
The combination of the subdural hematoma with the retinal hemorrhages caused Alderdice to suspect that Fernando may have been violently shaken. The hemorrhages in Fernando’s eyes were of such an extent that they were not consistent with a benign cause, including a fall from a bed, impact with a wall heater, or a fall from a high chair. Alderdice believed they were caused by a shearing force that resulted from acceleration or deceleration. He thought it was “inconceivable” that the child would have sustained the injuries he had as a result of a fall from the bed and bumping his head into a wall heater. Alderdice believed Fernando’s injuries were consistent with shaken baby syndrome, in which a child is violently shaken back and forth with his head whipping back and forward multiple times. This can occur with or without blunt impact against a floor, wall, or backboard. In Fernando’s case, the bruise on his forehead was indicative of impact against a broader, flatter surface.
Alderdice found defendant’s demeanor to be extremely unusual and striking. He seemed agitated and angry, whereas parents in that situation were typically fearful and upset over a child’s injury. Alderdice repeatedly pressed defendant for other possible explanations of the child’s injury, and stressed that he needed the information to facilitate his treatment of Fernando, but defendant denied any other trauma. Alderdice also spoke to the child’s mother. Neither parent told him the child had been hurt before the alleged fall from the bed.
Daly City Police Department Detective Albert Cisneros responded to the Seton Medical Center around 2:00 a.m. on April 9, and spoke with defendant and Esquivel. Defendant told Cisneros that he had driven Esquivel to the BART station at around 7:00 p.m. the preceding day and that Fernando was with them. After returning to the apartment, defendant fed, bathed, and changed Fernando. Fernando fell asleep and defendant took him to the bedroom and placed him in the center of the queen-sized bed with a pillow on either side of him. Defendant left the room to call Esquivel to find out when she would be done at work because he had some personal business to conduct. Defendant told Cisneros that he told Esquivel words to the effect that “he didn’t want to be kept waiting, he had to take care of his business. He didn’t want to do this again.”
After finishing his call, defendant told Cisneros he heard a “boom” and went into the bedroom. He saw Fernando “stagger[] up on his feet” and then fall forward and hit his head on the wall heater. He picked Fernando up and Fernando fainted in his arms. He called Esquivel at work. He did not know why he did not call 911. He tried to revive Fernando by placing a damp paper napkin on his face and patting his face to see if he would wake up. He took Fernando with him and went to pick up Esquivel at San Francisco International Airport where she worked.
During a break in his interview of defendant, Cisneros spoke with doctors at the hospital who told him Fernando’s injuries were inconsistent with defendant’s explanation of what happened. When Cisneros confronted defendant about the inconsistencies, defendant repeated the account he had already given, and repeated that account again when he was reinterviewed at the police station after being read his rights under Miranda v. Arizona (1966) 384 U.S. 436. Defendant told Cisneros that the injuries Fernando sustained probably occurred when the child was in the care of Esquivel’s sisters. Defendant claimed to have seen bruises and marks on Fernando when he was in the sisters’ care and described that as an ongoing issue.
After defendant was indicted and advised that the charges included murder, Cisneros interviewed him a third time on June 5, 2005. Defendant initially repeated his earlier account. When Cisneros told him that the crime lab found blood on Fernando’s clothing, defendant told him for the first time that Fernando had fallen from the couch earlier in the evening with a baby bottle in his mouth. According to defendant, this fall caused Fernando to bleed from the gum area of his mouth. Defendant did not give a coherent answer when asked to explain why he had not mentioned the couch fall earlier. He reiterated in the third interview that he had not been happy about how long he had to babysit for Fernando that evening, that this caused problems between him and Esquivel, and that he was considering ending his relationship with her. He also reiterated his claim that Esquivel’s family members were responsible for Fernando’s injuries.
Detective Joseph Bocci of the Daly City Police Department took photos of Fernando at the Stanford Medical Center. He observed “at least one dozen” bruises on Fernando, most of which were on his head “running parallel with the eyebrow line along the bridge of the nose over to the other opposite side of the temple.” He also saw “faint bruising” at the “lower jaw line area.” Bocci also noticed a reddish circular mark, about the size of a 50-cent piece, in the middle of Fernando’s chest.
Criminalist Linda French processed the crime scene at Esquivel’s apartment on the morning of April 9. The bed was two feet two inches in height and was located four feet away from the wall heater. French observed stains on a pillowcase and on the top sheet of the bed that were later determined to be blood. French closely examined the wall heater. She saw no sign of impact on the heater and found no blood on it. French was trained to detect patterns in dust. She found an even layer of undisturbed dust on the heater that would have been displaced if someone struck the heater. It was unlikely the dust had accumulated recently. French opined that the heater was not disturbed within the previous nine hours or the night before. The floor was covered with a standard brown wool carpet over foam padding.
Esquivel’s sisters testified that Fernando did not have any bumps, bruises, broken bones or other injuries when he and his mother moved out on April 5, 2004. He never had any serious injuries when he lived with them.
Forensic pathologist Thomas Rogers performed Fernando’s autopsy. Rogers opined that Fernando died from “multiple blunt injuries,” consistent with being beaten to death. He found 19 bruises on Fernando’s head and neck, and 11 bruises on his arms and legs. The appearance of the bruises at the time of autopsy was consistent with the bruises having been inflicted between 7:00 p.m. on April 8 and 1:00 a.m. on April 9. Rogers observed a “great disruption” to Fernando’s frenulum and opined that such an injury was indicative of a battered child. In Rogers’s opinion, Fernando’s injuries were inconsistent with having been caused by a fall off a bed, landing on a carpet, and then hitting his head against a wall heater. It was significant that Fernando sustained blunt injuries over a wide area of his body.
Neuropathologist Hannes Vogel examined Fernando’s brain. He observed a subdural hematoma under the covering, or dura, on the right side, which he estimated occurred within two to four days of Fernando’s death on April 13. Vogel opined that the subdural hematoma was a result of the infliction of traumatic injury. Vogel’s examination suggested there may have been some injury to Fernando’s spinal cord, as well. He believed there was “no chance whatsoever” that Fernando’s injuries occurred as a result of a fall from a bed that was two feet off the floor. He was also “[a] hundred percent” confident that Fernando’s injuries could not have been caused by an earlier fall from a high chair. Vogel observed multiple severe hemorrhages in front of and behind Fernando’s retinas. In Vogel’s opinion, the hemorrhages were indicative of a blunt force trauma. Based on his examination, Vogel testified that although he could not exclude a severe car accident or fall from a high building as possible causes of Fernando’s injuries, it would be a “stretch” to attribute injuries of such severity even to a fall from a two story building or a car accident without restraints at 30 to 40 miles per hour.
Doctor Peter Egbert of the ophthalmic pathology laboratory at Stanford Medical Center examined Fernando’s eyes, and concluded that the pattern of injuries he observed “occurs exclusively... in abusive injuries.” In Egbert’s opinion, no explanation other than child abuse accounted for Fernando’s retinal hemorrhages.
Forensic DNA analysis revealed that Fernando’s blood was on a baby jumper located on the dresser, a baby pajama top found on the shower curtain rod, as well as the pillowcase and top sheet taken from the bed. Fernando’s blood was also found on the T-shirt defendant was wearing on the night of the incident, along with defendant’s own blood. Another stain on defendant’s T-shirt was found to contain a mixture of Fernando’s and defendant’s blood.
B. Defense Case
The defense rested without introducing any evidence. In his closing argument to the jury, defense counsel maintained defendant’s statements to the police about the circumstances of Fernando’s injuries were consistent and true, and urged the jury to find that the prosecution failed to prove defendant’s guilt beyond a reasonable doubt.
C. Verdict, Sentencing, and Appeal
The jury convicted defendant as charged, and found that the murder was in the second degree. The trial court sentenced him to a total state prison term of 25 years to life. This timely appeal followed.
II. DISCUSSION
Defendant contends his convictions must be reversed because (1) the trial court erred in failing to find that the prosecutor exercised peremptory challenges against prospective Hispanic jurors in a racially discriminatory manner, (2) his trial counsel provided ineffective assistance by failing to present crucial evidence promised in his opening statement, and (3) the trial court erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter.
A. Batson/Wheeler Motion
1. Facts
From the prospective jurors available to sit on the jury, the prosecutor struck two with Hispanic surnames—N.R. and A.O. He then struck two more Hispanic jurors—M.S. and M.E.—from the prospective jurors available to sit as alternates. Defendant objected to the prosecutor’s asserted discriminatory striking of Hispanic jurors pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). At the time of the motion, two of the 12 seated jurors were Hispanics.
Batson held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates, inter alia, the defendant’s right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. (People v. Gray (2005) 37 Cal.4th 168, 183–184.) Wheeler had previously held that such a practice violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (People v. Gray, at pp. 183–184.)
In response to the defense motion, the trial court found, “based upon the entirety of the jury selection process and the fact that [the prosecutor] accepted the panel as constituted a number of times, which included a number of individuals with Hispanic surnames,” that defense counsel had failed to state a prima facie case of discrimination. Nevertheless, the court permitted the prosecutor to state his reasons for striking the four Hispanic prospective jurors, after which the court reiterated its finding of no prima facie case of racial discrimination and denied the defense Batson motion.
a. N.R.
N.R. was a 34-year-old female resident of Redwood City. She was married with three children and worked part-time doing office managerial work for her husband’s building maintenance business. She had worked for 10 years as a medical assistant for several medical professionals. Her experiences with those individuals were “mostly positive” and she believed medical professionals “mostly want to help.” Her sister-in-law had worked as a community service officer. Her brother had been sexually abused by family members when he was a child, and she had been held up while working as a teller. She answered “No” on her jury questionnaire when asked whether she would “automatically believe the testimony of a doctor simply because he or she is a doctor.” In response to the follow-up prompt, “If ‘yes’ please explain,” she added, “I would definitely look at the evidence and hear the other side of the story.”
At the outset of his juror voir dire, the prosecutor told the jurors that he would mainly be asking them two questions—whether they could be fair jurors and whether they had any knowledge of Spanish. The prosecutor explained that when he asked them if they could be fair jurors he was expecting them to let him know if there was anything in their background they believed would substantially interfere with their ability to be fair to both sides. He also stated that he would be asking those who had any background in Spanish whether it would be difficult for them to rely on the translator’s English translation of a Spanish-speaking witness’s testimony.
He asked N.R. only the two questions he emphasized in his preliminary statement: whether she could be a fair juror and whether, due to her knowledge of Spanish, she could focus on the English translation when a witness was testifying in Spanish. She answered both questions affirmatively.
In explaining why he challenged N.R. (with his sixth peremptory challenge), the prosecutor stated that she “wasn’t a bad juror but because of the dynamics of jury selection, I thought I could get a better one.” He explained: “She was the one that took some pain to point out in her jury questionnaire, you know, I want to hear both sides of the story, and while that is, of course, what you should be doing, she seemed to want to emphasize that to the extent where I suspect that there could conceivably be a defense bias there, and I simply wasn’t willing to take a chance with the jury dynamics the way it is.”
b. A.O.
A.O. was a 20-year-old female resident of Daly City. She was single with one child, lived with her mother, and worked full-time as a medical assistant. She had gone to college for two years. Either A.O. or a family member or friend had been a witness to or victim of domestic violence.
In explaining his peremptory challenge of A.O., the prosecutor stated that she “acted or appeared very young to [him].” He stated that she was only 20 years old and seemed “quite young” in both appearance and demeanor. He also pointed to two responses on her questionnaire (1) to the question of whether she had formed any expectations about child abuse cases from reading or watching television, she responded, “No, you must hear all evidence first for outcomes to be just”; and (2) when asked whether crimes involving child abuse should be treated differently from other crimes, she responded that it “depends on who is committing them, another child or minor or an adult.” The prosecutor commented as follows on these responses: “I’m not sure... that that portrays [a] focus that... I would want to keep on the jury. She just seemed very young.” During voir dire, the prosecutor asked A.O. only whether she could be fair and whether as a medical assistant she had worked on a child abuse case. She stated she had not worked on such a case.
c. M.S.
During the selection of the four alternate jurors, the prosecution exercised its first two peremptory challenges against two Hispanic-surnamed jurors, M.S. and M.E. M.S. was a female, born in El Salvador. She was 32 years old, married with four children, a resident of East Palo Alto, and the food manager at a Costco Wholesale store.
The prosecutor asked M.S. two questions during voir dire—whether she could be a fair juror (she replied “yes”) and whether she could think of anything that would prevent her from being fair (she answered “No”).
The prosecutor stated his reason for striking M.S. was that she appeared “quiet and diffident compared to the other jurors,” and “younger than her age of 32.” The prosecutor stated he was concerned she might feel “cornered or pushed around,” especially in view of the jury’s gender breakdown of nine men and three women. He offered to show the court that he had tagged both her and M.E. as negative on their questionnaires.
d. M.E.
M.E. was a male, born in Honduras, a resident of San Mateo, married with four children, and retired. His oldest child was 38 years old. One of his sons was a private investigator. One daughter was a forensic psychologist, and another daughter was a social worker.
During voir dire, the prosecutor asked M.E. whether he could be a fair juror, whether he spoke with his psychologist daughter about her cases, and whether she testifies in court. He replied that he could be fair, and that he does not speak with his daughter about her cases and she does not testify in court.
The prosecutor explained that he excused M.E. because his daughter’s work as a forensic psychologist sounded like defense work. He also believed that at least two of M.E.’s children “were involved in the sort of thing that would cause him to have a liberal view of crime and criminality.”
2. Applicable Law
Our Supreme Court spelled out the procedures to be followed in deciding a Batson/Wheeler motion as follows: “There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.] To do so, a defendant must first ‘make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial... exclusion” by offering permissible race-neutral... justifications for the strikes. [Citations.] Third, “[i]f a race-neutral... justification is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful... discrimination.” [Citation.]’ [Citation.] The same three-step procedure applies to state constitutional claims. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341.)
In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, implausible reasons or reasons contradicted by the record may be found to be pretexts for purposeful discrimination. (McClain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1221–1222; Caldwell v. Maloney (1st Cir. 1998) 159 F.3d 639, 651.) However, the justification offered need not be sufficient to support a challenge for cause, and even “ ‘trivial’ ” or “ ‘ “highly speculative” ’ ” reasons, if genuine and neutral, will suffice. (People v. Arias (1996) 13 Cal.4th 92, 136; People v. Ervin (2000) 22 Cal.4th 48, 77.) “A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 613.)
3. Analysis
Defendant asserts the following factors supported his prima facie case of discrimination: (1) at the time of the motion, the prosecutor had excused four of the six Hispanics then available on the panel; (2) other than their membership in the identified group, the excluded prospective jurors were heterogeneous; (3) the prosecutor’s voir dire of the excluded jurors was desultory; and (4) the defendant was a member of the excluded group.
We will assume, without deciding, that factors (1) and (4) are sufficient to support an inference of discrimination. (Cf. Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073, and cases cited therein.) Nonetheless, “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Purkett v. Elem (1995) 514 U.S. 765, 768; Batson, supra, 476 U.S. at p. 93.) Here, in light of the prosecutor’s explanations of his peremptory challenges, defendant failed to meet that burden, even taking into account the comparative juror analysis that he offers for the first time on this appeal.
The sample size was too small to conclude that the excluded jurors reflected a true cross-section of Hispanics. The prosecutor’s oral voir dire of the excluded Hispanic prospective jurors was no more cursory than his voir dire of the non-Hispanic jurors he excused.
a. Proffered Reasons
The prosecutor expressed similar concerns about two of the prospective jurors—A.O. and M.S.—that they seemed young and immature. In M.S.’s case, he added that he considered her to be quiet and diffident compared to the other jurors and expressed particular concern that she might feel intimidated during deliberations on a predominately male jury. We find nothing in the record to contradict the reasons proffered by the prosecutor. A.O. was 20 years old, single, and lived with her mother. It would not be particularly surprising or counterintuitive that she came across to the prosecutor as being relatively immature. Although M.S. was 32 years old, this is not inconsistent with the prosecutor’s stated concerns about her, that she seemed young and diffident. It is noteworthy that M.S.’s questionnaire and oral voir dire responses were extremely terse, which is consistent with the prosecutor’s impression that she might feel insecure or intimidated by the proceedings. Most importantly, defendant’s trial counsel, who was in the best position to challenge the prosecutor’s stated impressions of A.O. and M.S. if they were off base, made no rejoinder when invited to respond to the prosecutor’s comments, and the trial court, which was in an equally good position to question the prosecutor’s impressions, accepted his characterization of these prospective jurors without comment.
It is hard to quarrel with the prosecutor’s stated reason for excusing M.E.—fear that he might have a liberal view of crime and criminality due to his children’s employment. It is no surprise that a prosecutor might want to eliminate a juror who harbored liberal views on criminality. Attempting to predict a parent’s views on criminality from his children’s job titles may seem arbitrary or speculative—but it is not atypical of the kind of guesswork that jury selection inevitably involves. That family members’ views may correlate is presumably the reason jury questionnaires not infrequently request information about other family members. Unlike challenges for cause, peremptory challenges are permitted to be based on just such hunches. We find nothing in the prosecutor’s stated reasons for excusing M.E. to support the defense claim of discriminatory motive.
The prosecutor’s reason for excusing N.R. is ostensibly the hardest of his reasons to understand. Based on a jury questionnaire response that she would “definitely look at the evidence and hear the other side of the story” when it came to believing the testimony of a doctor, the prosecutor felt there was a risk N.R. might be unduly skeptical of doctors’ testimony. That explanation gains credibility in light of the record as a whole. First, the testimony of doctors was the linchpin of the prosecution’s case, so any doubt the prosecutor had about N.R. along these lines would have to be taken very seriously. Second, N.R. did go out of her way to stress that she would not automatically believe a doctor’s testimony. She volunteered the quoted statement even though the questionnaire did not call for a written explanation of her answer, and she again emphasized her objectivity about doctors when questioned by defense counsel in voir dire by answering, “No, no, definitely not,” when asked if she would give additional credibility or weight to a doctor’s testimony. Third, N.R. had left the medical field after several years and reported in her questionnaire that her experiences with medical professionals had been “mostly” positive and that doctors “mostly” wanted to help, leaving open the possibility that she had also had negative experiences with doctors. Finally, as the prosecutor acknowledged, he thought N.R. was an acceptable juror and kept her on the panel for some time before excusing her. It would therefore not be surprising that his reasons for excusing her might be harder to articulate or more subjective than his reasons for excluding the other jurors. But based on the record as a whole, we cannot say that his proffered reasons were insincere. (See People v. Reynoso (2003) 31 Cal.4th 903, 924 [“[t]he proper focus of a Batson/Wheeler inquiry... is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on [their] objective reasonableness”].)
Although by no means conclusive in the absence of credible explanations for his use of peremptories against the four Hispanic prospective jurors in issue, other factors also tend to bolster the prosecutor’s claims of good faith and lack of motivation to discriminate. First, the prosecutor did not excuse his first Hispanic juror until after he had offered four times to accept prospective juries that included three Hispanic members, and he used five peremptory challenges to excuse non-Hispanic jurors before excusing his first Hispanic juror from the sworn jury. This does not show a prosecutor who seemed particularly anxious to remove Hispanics from the jury. “While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.” (People v. Turner (1994) 8 Cal.4th 137, 168, overruled on different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) Second, although the four excluded jurors were of the same race as the defendant, they were also of the same race as the infant victim, and all had children. The race and age of the victim reduce the likelihood that the prosecutor excused these jurors out of concern they would be sympathetic to the defendant because he was Hispanic. (See Wheeler, supra, 22 Cal.3d at p. 281; People v. Ortega (1984) 156 Cal.App.3d 63, 70.)
4. Comparative Juror Analysis
For the first time on appeal, defendant attacks the credibility of the prosecutor’s stated reasons for excusing the four prospective jurors in issue based on a comparative analysis of the non-Hispanics the prosecutor left on the jury. According to defendant, these non-Hispanic jurors had some of the same characteristics as those cited by the prosecutor as reasons for excusing the four Hispanic prospective jurors in issue, thus undermining the credibility of those reasons. Although we will address defendant’s comparative juror analysis on the merits, we note that he failed to offer any such arguments in the trial court. We are thus left to speculate on a cold record as to what legitimate grounds, if any, the prosecutor might have perceived for distinguishing among these assertedly similar prospective jurors.
We approach such a review with caution: “[C]omparative juror analysis on a cold appellate record has inherent limitations. [Citation.]... There is more to human communication than mere linguistic content.... Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact.... [¶]... When a comparative juror analysis is undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he perceived in jurors who seemingly gave similar answers. [¶] Moreover, the selection of a jury is a fluid process, with challenges for cause and peremptory strikes continually changing the composition of the jury before it is finally empanelled.... ‘[T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view....’ [Citation.] [¶]... Each juror becomes, to a certain degree, a risk taken. Voir dire is a process of risk assessment.... Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” (People v. Lenix, supra, 44 Cal.4th at pp. 622–624.)
At the outset, we reject defendant’s assertion that because the prosecutor accepted two jurors who were 26 and 27 years old, his stated concerns about the immaturity and diffidence of rejected jurors A.O. and especially M.S. must have been pretextual. A person’s maturity and assertiveness are not rigidly determined by his or her chronological age. It is entirely possible for a 20-year-old to be less mature than a 26-year-old and for a 32-year-old to be less mature or assertive than a 27-year-old. We will not overturn the presumption that the prosecutor did not engage in purposeful discrimination based on an assumption in defiance of common sense that maturity can be equated with age. Further, defendant finds A.O.’s statement that “you must hear all evidence first for outcomes to be just” in child abuse cases, to be indistinguishable from Juror No. 10’s comment that he would not have any other expectation in a child abuse case than “just to hear the facts of the case.” But there would have been multiple race-neutral reasons for the prosecutor to prefer having Juror No. 10 on the jury compared to A.O. Juror No. 10 stated on his jury questionnaire that crimes involving child abuse should be treated differently than other crimes in that “[p]enalties for conviction should be harder.” Juror No. 10 was 44 years old, male, had three children, and held significant project management responsibilities for his employer. He was not comparable to A.O. as a potential juror in any significant respect.
With respect to N.R., defendant calls attention to two jurors, Juror Nos. 6 and 10, who also indicated on their questionnaires that they would be objective about medical testimony, and a third juror, Juror No. 2, who stated in oral voir dire that he would not assign extra credibility to the hospital’s physicians but would “wait and hear” their testimony. But Juror No. 10’s views on child abuse would have made him especially appealing to the prosecution even if he did take a neutral stance on medical testimony. In addition, unlike N.R., Juror No. 6 responded “Yes” when asked if she would automatically believe the testimony of a doctor and then proceeded to qualify her answer. Juror No. 6 stated that it would depend on the doctor’s training. Juror No. 10 stated he would not necessarily believe “everything” the doctor says. Also, unlike N.R., neither Juror No. 6 nor Juror No. 10 reported having left the medical field after working closely with medical professionals, or gave answers otherwise raising a red flag that he or she potentially harbored negative views of doctors. Juror No. 2 could well have had a superior appeal for the prosecution compared to N.R. because of his scientific education and employment, which might have better equipped him to follow the medical testimony. He had a Ph.D. in applied physics and worked as an engineer for a medical device company. That Juror No.2’s wife was a nurse at one of the hospitals where Fernando was treated might also have added to his appeal. For these reasons, and in light of our discussion earlier of the unique factors pertinent to N.R.’s exclusion, the defendant’s proposed comparisons do not persuade us that the prosecutor excused her because she is Hispanic.
Finally, defendant points out that while the prosecutor maintained he struck M.E. in part because M.E.’s daughter was a social worker, which might cause him to have a liberal view of crime, the prosecutor accepted two non-Hispanic jurors who might well have been excused for similar reasons. Juror No. 8’s mother-in-law was a social worker and Juror No. 11 had himself been a social services caseworker in the past. However, Juror No. 8’s mother-in-law was a social worker in Oklahoma, which is not a state known for its liberal view of crime. Juror No. 8’s own background and profession seemed conservative in nature. He was born in Pasadena, California, attended a Catholic university, and worked in the risk management department of a large corporation. Most significantly, Juror No. 8 had three young children and—much like Juror No. 10—responded in his jury questionnaire that crimes involving children should be treated differently from other crimes and added that “crimes against children cannot be tolerated—punishment should be appropriate.” Unlike M.E., Juror No. 11 did not have two and possibly three family members who worked in areas that might cause them to have liberal views of crime. The social service agency Juror No. 11 had formerly worked for was a nonprofit involved in providing child care and parenting services. If anything, this experience might have predisposed him to a pro-prosecution view in this case. In addition, two of Juror No. 11’s nephews had been victims of child abuse, he expressed a positive view of doctors, and he had close friends who were doctors and nurses—all favorable characteristics for the prosecution. Again, defendant’s proposed comparisons do little to demonstrate prosecutorial bias against Hispanic jurors.
5. Conclusion
Even assuming that the trial court erred in finding no prima facie case of discrimination, we find that defendant fails to satisfy his burden of demonstrating that the prosecutor’s ostensible reasons for striking prospective jurors N.R., A.O., M.S., and M.E. were mere pretexts for purposeful discrimination.
B. Ineffective Assistance of Counsel
1. Facts
During his opening statement, defense counsel told the jury that the defense would not contest the nature of Fernando’s injuries, but only “the mechanism or causation of those injuries.” Consistent with defendant’s statements to police and doctors, defense counsel told the jurors that it would hear evidence Fernando fell from the bed onto the floor and fell face forward into the heater. In addition, counsel promised that the evidence would show Esquivel left for work before defendant arrived at her apartment to babysit on the night of the incident. She left Fernando alone in the apartment strapped into his high chair watching television. When defendant arrived some minutes later, the high chair had tipped over and Fernando was on the ground still strapped into the chair and acting disoriented.
Defense counsel also explained that defendant never told the police about Fernando’s fall from the high chair because of his concern that it could get Esquivel in trouble. Defendant and Esquivel subsequently had another baby together and child protective services held proceedings on Esquivel’s fitness to raise the new child in light of Fernando’s death. Because of its possible effect in those proceedings, defendant did not report the high chair fall until later.
In line with this promised evidence, defense counsel told the jury that medical evidence would show that a child may suffer an injury, have a “lucid interval” where he appears to be fine, and then suffer a subsequent impact that can dramatically aggravate or cause a re-bleed, where an initial injury is aggravated, bleeds again, and leads to a subdural hematoma.
Although listed on both the prosecution and defense witness lists, Esquivel ultimately refused on the advice of her appointed counsel to testify for either the prosecution or defense, citing her Fifth Amendment privilege against self-incrimination. As noted earlier, defendant did not testify in his own behalf or introduce any evidence. In his closing argument, defense counsel argued that defendant’s statements to Dr. Alderdice and Detective Cisneros—that Fernando fell off the bed and fell against the heater—were true, and made no further reference to Fernando’s asserted fall in his high chair.
In his closing and rebuttal arguments, the prosecutor pointed out that no evidence of a fall from a high chair had been presented.
Defendant alleges that defense counsel’s failure to deliver evidence of the alleged high chair fall, as promised in his opening statement, constituted ineffective assistance of counsel and rendered the trial fundamentally unfair.
2. Legal Standard
To demonstrate ineffective assistance of counsel, defendant must show that (1) his counsel’s performance at trial was deficient under prevailing professional norms; and (2) but for counsel’s failings, it is reasonably probable that the result of the proceeding would have been more favorable to him. (See Strickland v. Washington (1984) 466 U.S. 668, 687–688, 694; People v. Seaton (2001) 26 Cal.4th 598, 666.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, at p. 694.) We begin our review with a strong presumption that counsel was not at fault: “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.]... [A] court must indulge [therefore] a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.]” (Id. at p. 689.)
“ ‘[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected.” (People v. Wilson (1992) 3 Cal.4th 926, 936.) A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. (Ibid.)
Making promises about defense evidence in an opening statement and then failing to deliver does not constitute ineffective assistance per se. (People v. Burnett (2003) 110 Cal.App.4th 868, 885 (Burnett).) “Whether the failure to produce a promised witness amounts to ineffective assistance of counsel is a fact-based determination that must be assessed on a case-by-case basis. [Citation.] Forgoing the presentation of testimony or evidence promised in an opening statement can be a reasonable tactical decision, depending on the circumstances of the case. [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 955 (Stanley).)
3. Analysis
Defendant principally relies on Harris v. Reed (7th Cir. 1990) 894 F.2d 871 (Harris), Anderson v. Butler (1st Cir. 1988) 858 F.2d 16 (Anderson), and People v. Corona (1978) 80 Cal.App.3d 684 (Corona).
With respect to Harris and Anderson, we note first that intermediate level federal cases do not have precedential value in this court, but may carry persuasive authority only. (People v. Bradley (1969) 1 Cal.3d 80, 86.) Given the unique facts of these two cases, we do not consider them persuasive in the matter before us. In Anderson, the defendant was on trial for killing his estranged wife and the jury was faced with deciding whether defendant was guilty of murder in the first degree, or second degree, or manslaughter. (Anderson, supra, 858 F.2d at pp. 16–17.) Defense counsel made his opening statement after the prosecution rested its case-in-chief, promising expert psychiatric testimony that the defendant was unaware of what he was doing when he committed the crime. The very next day counsel rested the defendant’s case without presenting the promised experts, and the jury convicted him of first degree murder. (Id. at p. 17.) On those specific facts, the Anderson court concluded—in a split decision—that counsel’s failure to produce the testimony likely left jurors with the impression that impartial experts would not back up defendant’s claim, thus undermining his lay witnesses and altering the probable outcome of the case. (Id. at pp. 17–19.) Here, the defense rested 10 days after delivering its opening statement and, as discussed below, after intervening developments during the trial called into question the wisdom and feasibility of basing his defense on the theory put forward in defense counsel’s opening statement.
The Harris case was described and distinguished as follows in Burnett, supra, 110 Cal.App.4th at page 885: “In [Harris], the ineffective assistance arose not from defense counsel’s unkept promise to present a defense theory, but because counsel decided not to present witnesses without ever interviewing them and without consulting with defendant. That situation is different from ‘instance[s] where counsel chose, as a matter of sound trial strategy, not to put on any defense because the defense theory was an “incredible” one.’ ([Harris, supra, 894 F.2d] at p. 878, fn. 8.) Here, the defense was an incredible one. Counsel’s advice ‘was an appropriate exercise of his decisionmaking responsibilities at trial.’ [Citation.]” There is no evidence and no claim in this case that defendant’s ineffective assistance stemmed from failing to interview witnesses or consult with defendant.
In Corona, counsel committed in his opening statement to introduce a multitude of evidence disproving the prosecution’s case—including alibi testimony (by the defendant and other witnesses), psychiatric evidence, and character and other rebuttal testimony—which was not fully developed at that time or became irrelevant, meaningless, or obsolete after submission of the case-in-chief. (Corona, supra, 80 Cal.App.3d at pp. 719, 725.) Counsel at that time abandoned all promised defenses, and submitted the matter on the prosecution’s evidence. (Id. at p. 725.) The Court of Appeal in Corona found that this conduct did indeed prejudice the defense. (Ibid.) But it would be a gross mischaracterization of the Corona decision to limit it to this one facet of defense counsel’s conduct. The Corona case was primarily about a much more significant breach of duty—an egregious conflict of interest between counsel and his client created by a fee agreement under which Corona granted his attorney exclusive literary rights to Corona’s life story. In no uncertain terms, the court found that this arrangement set up “a conflict of interest.... [that] constituted not only an outrageous abrogation of the standards which the legal profession has set for itself and upon which clients have a right to rely, but also rendered the trial a farce and mockery....” (Id. at pp. 703, 727.) Counsel’s failure to live up to his opening statement was but one manifestation of his repeated failures to investigate or pursue obvious defenses and of his self-interest in making the trial “lengthy and sensational... at any price.” (Id. at p. 704.) Given its highly unique elements, we do not find Corona to be particularly useful in the present context.
In our view the most relevant cases are Burnett and Stanley. The defendant in Burnett argued that his trial counsel provided ineffective assistance by failing to call the defendant to testify after promising he would in his opening statement. (Burnett, supra, 110 Cal.App.4th at p. 873.) The Court of Appeal concluded that this was a reasonable tactical decision in light of extensive impeachment evidence that “would only have further antagonized the jurors and the trial court” had defendant testified. (Id. at pp. 883–884.) The court stated: “It is not defense counsel’s fault that defendant lied to him. Nor is it counsel’s fault that he told the jury that he would present evidence which, apparently during the course of the trial, he discovered was a lie. Once the trial court ruled that defendant’s credibility could be impeached with even more damaging evidence, there was little point in engaging in a credibility duel which could only disadvantage defendant with the trial court.” (Id. at pp. 884–885.)
In this case, the theory that Fernando was accidentally injured when he tipped over his high chair could not have been presented without defendant’s testimony at a minimum. We may infer from counsel’s statements on the record that he had already conferred with his client when he made his opening statement, and expected him to take the stand. (See People v. Hines (1997) 15 Cal.4th 997, 1032 [counsel not ineffective for informing jury during opening statement that defendant would testify given defendant’s indication to counsel that he was willing to do so].) Either defense counsel thereafter changed his mind about the advisability of having defendant testify or defendant changed his own mind about testifying. If defendant refused to testify on his own accord, counsel cannot be faulted. If, on the other hand, defendant followed his counsel’s recommendation not to testify, counsel’s tactical judgment in that regard is subject to scrutiny. But, here, the record on appeal suggests a number of satisfactory explanations for defense counsel’s assumed change of position about having defendant testify. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
First, by asserting the privilege against self-incrimination, Esquivel made herself unavailable to corroborate defendant’s claim that Fernando had been left unattended in the high chair. Not only would the jury be less likely to believe defendant’s uncorroborated testimony, but such testimony ran the risk of further antagonizing the jury by seeming to unfairly scapegoat the child’s mother. Second, the prosecution introduced compelling testimony from its highly-credentialed experts that even a fall from a high chair combined with the other accidental spills Fernando suffered by defendant’s account could not have caused the type and extent of injuries Fernando suffered. The prosecution was also prepared to offer other evidence in rebuttal that the chair could not have been tipped over by a child of Fernando’s size. Defense counsel may have reasonably concluded that defendant risked more loss of credibility by testifying than by not testifying. Third, the lack of corroboration and likely cogency of the prosecution’s rebuttal testimony had to be weighed alongside the considerable risks to which defendant would expose himself by testifying. There was the risk inherent in offering an account of a different accident that he had never previously mentioned to the police or Dr. Alderdice, even when they were begging him at the hospital for any information that might help save Fernando’s life. In addition, the court was apparently prepared to allow the prosecution to ask defendant whether he had made statements to others denying his paternity of Fernando, and to call rebuttal witnesses if he denied it. Such evidence would have permitted an inference that defendant was less likely to restrain his violent impulses since he believed Fernando was not his child. Finally, defendant’s testimony might have opened the door to evidence from child protective services files opened for defendant and Esquivel’s other child of prior incidents of violence, and of altercations between defendant and Fernando’s aunts and uncles.
Assuming for the sake of analysis that defense counsel advised defendant not to testify, we cannot say, on this record, that there can be no satisfactory explanation or defensible tactical basis for such an action. To the contrary, such advice reflects a reasonable tactical decision based on the developments that unfolded at trial and the likely disadvantages to defendant of taking the stand to present an uncorroborated version of what occurred on the night in question that had never been furnished to police or to the doctors attempting to save Fernando’s life, could not credibly account for Fernando’s injuries in any event, and would have exposed defendant to damaging cross-examination and rebuttal evidence.
Finally, as in Stanley, even if “counsel’s failure to present the witness and testimony described in his opening statement had no tactical justification and fell below the normal range of competency, we would find such error nonprejudicial.” (Stanley, supra, 39 Cal.4th at p. 955.) In our view, the evidence of defendant’s guilt was overwhelming and it is not reasonably likely that any jury would have believed his belated claim that Fernando’s high chair tipped over or that he withheld that alleged fact from doctors and police in order to protect Esquivel. We also do not find it reasonably likely that the jury’s verdict would have been more favorable to defendant if his counsel had not raised the high chair theory in his opening statement. The story defendant told police was convincingly refuted by the medical testimony and would not have gained any appreciable persuasive force if the high chair claim had never been mentioned to the jury.
C. Involuntary Manslaughter Instruction
Following an off-the-record discussion with the parties about jury instructions, defense counsel stated for the record that he had requested the court to instruct on the lesser included offense of involuntary manslaughter. The court denied counsel’s request, finding insufficient evidence to support an instruction on involuntary manslaughter. The jury ultimately convicted defendant of second degree murder. Defendant contends the trial court violated his constitutional rights to due process and a jury trial when it refused to instruct on the lesser included offense of involuntary manslaughter.
A court need only instruct on a lesser included offense where there is evidence from which a rational trier of fact could conclude beyond a reasonable doubt that the defendant was guilty of the lesser crime. (People v. Ceja (1994) 26 Cal.App.4th 78, 85, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 91.) In People v. Watson (1981) 30 Cal.3d 290 at pages 296–297, the California Supreme Court highlighted the differences between involuntary manslaughter and second degree murder as follows: “[Criminal negligence] has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] On the other hand, malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.]... Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence. [Citations.] [¶] Furthermore, we have applied different tests in determining the required mental states of gross negligence or malice. A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.] However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]” (Original italics omitted; italics added.) Implied malice is most often established circumstantially. (People v. James (1998) 62 Cal.App.4th 244, 277.) In the face of evidence showing implied malice, a defendant’s self-serving statements denying an intent to kill do not constitute substantial evidence warranting an instruction on involuntary manslaughter. (People v. Evers (1992) 10 Cal.App.4th 588, 597–598.)
In this case, all of the medical witnesses testified that Fernando’s injuries were consistent with child abuse. Dr. Rogers opined that Fernando died from multiple blunt injuries consistent with being beaten to death. He found 30 bruises on Fernando’s head, neck, arms, and legs. Dr. Alderdice’s testimony that Fernando’s head had struck a flat surface, the blood evidence, and the extent of Fernando’s injuries were all suggestive that Fernando had been slammed repeatedly against the bed. Dr. Vogel opined that even a fall from a two-story building or a car accident without restraints at 30 to 40 miles per hour could most likely not have caused injuries as severe as those inflicted on Fernando while in defendant’s care. Dr. Egbert compared the instrumentality that inflicted Fernando’s injuries to a television falling off a bureau and crushing a child’s skull. He concluded that the pattern of injuries he observed in Fernando’s eyes occurred exclusively in abusive injuries.
Defendant compares this case to People v. Albritton (1998) 67 Cal.App.4th 647, in which the Court of Appeal held that guilty verdicts on involuntary manslaughter and child abuse resulting in death were not inconsistent. (Id. at p. 656.) But the child victim in Albritton died of shaken baby syndrome at the hands of the defendant, which the court held could have been caused by the commission of child abuse without due caution and circumspection. (Ibid.) Fernando’s injuries in this case were caused by much more than mere shaking. The prosecution’s evidence showed that Fernando was violently beaten to death. If the jury believed that evidence, it could only conclude that whoever abused Fernando must have known such abuse would likely cause serious injury or death. On the other hand, had the jury believed defendant’s statements to the police and doctors about how Fernando became injured, it could only have concluded that Fernando died accidentally. The evidence permitted no middle ground: either defendant acted with criminal malice or he committed no crime at all.
Based on the evidence in the record, no instruction on involuntary manslaughter was warranted.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.