Opinion
E032757.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID CHARLES PATKINS, Defendant and Appellant.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Senior Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendant guilty of second degree murder (Pen. Code, § 187) (count 1), child abuse resulting in death (§ 273a) (count 2), and possession of brass knuckles (§ 12020, subd. (a)). The trial court thereafter found true that defendant had previously been convicted of a serious and/or violent felony (§§ 667, subds. (a)-(e), 1170.12). As a result, defendant was sentenced to a total term of 59 years to life in state prison. On appeal, defendant contends (1) the trial court abused its discretion in admitting his prior child abuse offense, (2) the trial court erred in instructing the jury with the consciousness of guilt (CALJIC No. 2.03) instruction, and (3) the abstract of judgment must be corrected to reflect the oral pronouncement of judgment. We agree the abstract of judgment must be amended but reject defendants remaining contentions.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
In February 2000, after impregnating his girlfriend, Margie Garofano, defendant moved into her house. On October 25, 2000, Margie gave birth to their son, Erik. After Margies maternity leave expired, she went back to work, working the night shift three nights a week from 7:00 p.m. until 7:00 a.m. as a critical care nurse. Defendant worked occasionally as a handyman and painter, providing about 10 percent of the family income.
Defendant became impatient with Erik when he cried. He also grew jealous of the attention Margie gave Erik. In March 2001, a few days before Eriks four month well-baby checkup with his doctor, Margie noticed a bump on the back of Eriks head. When she asked defendant what happened, he said Erik hit his head on the coffee table when he rolled off the couch. During the well-baby appointment, after Margie described the way defendant sometimes flipped Erik on his forearm, the doctor told defendant that was a dangerous way to hold the baby. Margie obtained some pamphlets from the doctor about "shaken baby syndrome" and left them out for defendant to read.
Defendant and Margie, who never married, began to argue about Margies concern that defendant did not contribute financially to the family. As time went on, the arguments became more heated, and Margie asked defendant to move out two or three times. Defendant said that he would move out if she gave him $ 6,000 so he could get his life back together. Margie did not have that much money, but she gave defendant a check for $2,000 in early April.
On April 27, 2001, when Margie left for work about 6:20 p.m., Erik was healthy. Margie worked all night. About 6:30 a.m. the following morning, defendant telephoned Margie and asked her to come home from work right away because Erik was hurt. When Margie asked defendant what happened, defendant said Erik injured his shoulder around 5:30 a.m., when defendant tripped and fell on the carpeted stairs while he was holding the baby. Margie asked defendant if he called 911, and defendant replied that he had not yet done so. Margie then told defendant to call 911 and get Erik to the hospital. Although defendant seemed reluctant to do so, he called 911. After Margie hung up the telephone with defendant, she went home immediately.
Responding paramedics found defendant and Erik in an upstairs bedroom. A paramedic observed the baby lying on the bed, looking somewhat drowsy, with a weak cry but no external injuries. When the paramedic asked defendant what happened, defendant said that he dropped the baby while climbing the stairs when the dog got in his way. The paramedic estimated an 18-inch drop after examining the stairs. The stairs were each seven inches high and three feet wide. Defendant agreed to accompany Erik to the hospital.
After Margie arrived at the hospital, she unsuccessfully attempted to waken Erik by calling his name and touching his chest. When Margie manually lifted Eriks eyelids, one pupil looked down and the other looked straight ahead. This alarmed Margie because, as a trained nurse, she knew that this was a sign of a head injury. Erik then awoke, arched his head back, and began kicking his legs and crying. Margie noticed, however, that Erik could not move his eyes.
After Margie found a doctor, the doctor asked defendant what happened. Defendant stated that Erik hit his head on the stairs when defendant dropped him. Erik was then taken to be treated. While they waited for the results of the examination, Margie again asked defendant how Erik got hurt. Defendant said it was an accident.
Dr. Sonne, the emergency room doctor who attended to Erik, ordered a CT scan of Eriks brain after noting that Erik was "posturing" with one arm stiff near his side, that his eyes were staring in a fixed position, and that he had a high pitched cry, all indicators of abnormal brain functions. The CT scan showed skull fractures on both sides of Eriks head, bleeding between the brain and left skull, a subdural hematoma on the left side of the brain, and blood inside the frontal cortex of the brain. Eriks brain was swollen, indicating trauma. X-rays of Eriks body also revealed a healing fracture of Eriks femur. Dr. Sonne opined that the CT scan and lesions in Eriks brain were inconsistent with the history of the injury given by defendant. The doctor suspected child abuse and recommended that a child abuse workup be performed.
Erik was then transferred to Loma Linda Hospital for intensive care treatment. The treating doctor concluded Eriks condition was critical and ordered a child abuse workup. After reviewing the child abuse evaluation, the doctor concluded Eriks injuries contradicted the history provided by defendant. An eye examination revealed extensive bilateral retinal hemorrhaging. The examination suggested abusive head trauma as a result of being shaken.
Erik died three days later, on May 1, 2001, after unsuccessful efforts to relieve the swelling in his brain to keep him alive. An autopsy revealed optic nerve bleeding, which, like the retinal hemorrhaging, indicated a shaking injury. An older fracture to Eriks femur and a more recent fracture to Eriks rib also indicated Erik had been shaken. The skull fractures and subdural hemorrhaging indicated abusive head trauma. The extent of the injuries, particularly the skull fractures, stemmed from an impact greater than that which would occur from a fall to a carpeted floor. Abusive head trauma, rather than an accidental fall, caused Eriks injuries.
A pair of brass knuckles were found by police on April 28, 2001, inside a drawer in Margies garage. Defendant had found them at a park and kept them in the garage.
II
DISCUSSION
A. Admission of Prior Child Abuse Offense
Defendant contends the trial court abused its discretion in admitting evidence of his prior 1993 offense of child abuse (& sect; 273, subd. (a)(1)) inflicting great bodily injury (§ 11022.7). Specifically, he claims that, while the evidence was probative, it was nevertheless "so overwhelmingly prejudicial and inflammatory" that its admission requires reversal of the judgment. We disagree.
Prior to trial, the prosecutor sought to admit specific instances of prior conduct by defendant toward another son, Jack, in 1993, which resulted in defendants conviction by guilty plea of child abuse inflicting great bodily injury. The prosecutor argued the evidence was admissible under Evidence Code section 1101, subdivision (b) to prove defendants intent, knowledge of the danger in shaking a baby, lack of mistake, and lack of accident in the instant charged offenses of second degree murder and child abuse. Defense counsel asserted evidence of defendants prior conduct and conviction were "extremely" prejudicial, "overkill," and improper propensity evidence.
The trial court admitted the evidence, finding: "As far as the [Evidence Code section] 1101[, subdivision ](b) evidence, I believe its highly probative in this kind of case. It clearly goes to intent, implied malice, as well as lack of accident. The jury will be admonished in the [Evidence Code section] 1101[, subdivision ](b) instruction that they cannot consider this for disposition evidence, and if the People argue disposition evidence, obviously that would be prosecutorial misconduct, and this matter would be subject to a mistrial if that should occur. [¶] The jury will be advised that this evidence is to be considered only as it relates to the issue of intent and lack of accident or mistake. [¶] Under [Evidence Code section] 352, balancing the probative value of this evidence against the possible prejudicial effect, I feel that it weighs in favor of its admissibility. And for the challenge, therefore, the challenge under [Evidence Code section] 352 will be denied."
The admitted evidence showed that defendant lived with and impregnated another girlfriend, Michelle McFarland, who gave birth to their baby, Jack, in March of 1993. In May 1993, Michelle saw defendant shake Jack, hard, for several seconds. The following day, Michelle took Jack and moved to Iowa, where she stayed for about two weeks until defendant contacted her and coaxed her into returning to California. Sometime later, when Michelle noticed a red mark on the back of the babys head, defendant said the baby hit his head on the windowsill while defendant was holding him.
On July 1, 1993, Michelle and defendant had an argument while they were in the car with Jack. Michelle got out of the car and walked home. When Michelle got home, she noted that Jacks crying seemed unusual. The next morning Jack had a fever, and Michelle called the doctor to arrange for an appointment. Defendant, however, did not want to take Jack to the doctor. Defendant continued to resist taking Jack to the doctor, even though Jacks condition worsened over the next few days.
Michelle finally took Jack to the hospital on July 3, 1993. A CT scan revealed a skull fracture. When Michelle relayed this information to defendant, defendant said he dropped the baby while bathing in the shower that morning. The following day, when defendant was interviewed by a police officer investigating the cause of Jacks injuries, defendant again stated that Jack slipped from his hands when he was bathing Jack in the shower. Defendant also told the officer that a month earlier Jack had fallen to the floor when defendant "clipped" the bedpost while carrying him.
In August 1993, defendant pleaded guilty to child abuse (§ 273, subd. (a)(1)) and admitted that he inflicted great bodily injury on the baby (§ 12027). Several years later, defendant admitted to Michelle that he held Jack upside down by the feet while shaking him.
There was also testimony from Dr. Rebecca Piantini, a forensic pediatrician who examined Jacks medical records relating to his injuries. Although Dr. Piantini neither spoke with any of Jacks treating doctors nor examined any X-rays or CT scans in Jacks case, she opined that Jacks injuries were likely to have been abusive injuries and unlikely to have been caused by a fall from defendants arms in the shower.
Defendant claims the trial court abused its discretion in admitting the foregoing evidence because it was inflammatory, it confused the issues, it involved conduct remote in time, and it consumed an undue amount of trial time. We find no abuse.
"Character evidence is inadmissible when offered to prove conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) The purpose of this rule is to avoid placing an accused in the position of defending against crimes for which he [or she] has not been charged and to avoid having a jury convict him [or her] on prejudicial character evidence alone. [Citation.]" (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 430; accord, People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).)
Under Evidence Code section 1101, subdivision (b), evidence that a defendant committed other crimes, civil wrongs, or other acts is admissible under Evidence Code section 1101 if it is relevant to prove a fact (e.g., motive, intent, knowledge, absence of mistake or accident, or common plan or design) other than the defendants disposition to commit the charged crime. (Ewoldt, supra, 7 Cal.4th at p. 393.)
The admissibility of such evidence "depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence." (People v. Thompson (1980) 27 Cal.3d 303, 315, italics omitted, disapproved on another ground in People v. Williams (1988) 44 Cal.3d 883, 907, fn. 7.)
In determining whether evidence of other crimes has a tendency to prove a material fact in dispute, the court must first determine whether or not the uncharged offense serves "`"logically, naturally, and by reasonable inference" to establish that fact." (People v. Thompson, supra, 27 Cal.3d at p. 316.) Moreover, "[e]vidence of uncharged offenses `is so prejudicial that its admission requires extremely careful analysis. [Citations.] [Citations.] `Since "substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value. [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 404, italics omitted.)
"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] `[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish . . . the presence of the normal, i.e., criminal intent accompanying such an act . . . . [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant `"probably harbor[ed] the same intent in each instance." [Citations.] [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 402; see also People v. Yeoman (2003) 31 Cal.4th 93, 121-122.)
Even where evidence is not required to be excluded under Evidence Code section 1101, a further inquiry under Evidence Code section 352 is required. (People v. Balcom (1994) 7 Cal.4th 414, 426-427.) In other words, for other crimes evidence to be admissible, the trial court not only must find that the probative value of that evidence is substantial but also must determine whether that probative value "is `substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 404, quoting Evid. Code, § 352.) On appeal, we review the trial courts rulings on both questions for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637; People v. Daniels (1991) 52 Cal.3d 815, 858.)
In the present matter, the trial court did not abuse its discretion in admitting the prior act evidence on counts 1 (second degree murder) and 2 (child abuse resulting in death) for the purposes of showing that defendant had knowledge of danger, lack of mistake or accident, and intent to commit the charged offenses. The prior act was strikingly similar to the charged offenses in counts 1 and 2. Indeed, defendant concedes the evidence was probative.
We next must address the principal question of whether the probative value of the prior crime evidence "is `substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 404, quoting Evid. Code, § 352.) As stated above, the prior act and conviction evidence was highly probative. The prejudicial effect of that evidence, on the other hand, was minimal.
Factors to consider in assessing prejudice include whether the defendant was convicted of the prior offense, which eliminates the danger that the jury would feel compelled to do so in the current case and also eliminates the need for the jury to decide if the prior crime actually occurred, which could potentially confuse the issues. (Ewoldt, supra, 7 Cal.4th at p. 405.) Defendant was convicted of child abuse inflicting great bodily injury in 1993, and therefore the noted concerns do not come into play. In addition, cases have held that long distances in time do not render other crimes evidence irrelevant per se if the incidents are extremely similar, and the myriad similarities of Jacks and Eriks experiences present such a case. (See, e.g., People v. Burns (1987) 189 Cal.App.3d 734, 738-739; People v. Waples (2000) 79 Cal.App.4th 1389, 1393-1396 [this court determined extremely similar crimes committed 18 to 25 years before the present crime were relevant and admissible]; but see People v. Harris (1998) 60 Cal.App.4th 727, 739 .)
Testimony regarding the prior crime was not inflammatory, or no more inflammatory than the charged offenses, another factor to consider in assessing whether the probative value of the evidence substantially outweighed its potential for prejudice. (People v. Burns, supra, 189 Cal.App.3d at pp. 738-739.) In arguing otherwise, defendant asserts that the prior crime evidence showed nothing more than defendants propensity to commit crimes and had no other probative value. As discussed previously, the evidence was relevant to prove defendants knowledge of the danger of shaking a baby, lack of mistake or accident, and intent to commit the charged offenses, and therefore we reject defendants contrary claim.
The prejudice defendant complains of is the type that naturally flows from relevant, highly probative evidence. And, as noted above, the evidence of the prior act was so highly relevant to the issues in the present case that there was very little danger the jury would have used it for an improper purpose. Moreover, the trial court limited any prejudicial impact of the prior conviction by instructing the jury, in the language of CALJIC No. 2.50, that such evidence could not be considered to prove defendant was a person of bad character or that he had a disposition to commit crimes. Considering all of the relevant factors, we conclude the trial court did not abuse its discretion in finding that the probative value of the evidence was not substantially outweighed by the probability that it would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
Notwithstanding the above, even if we were to assume that the trial court abused its discretion in allowing the admission of the prior crime evidence, we are unable to find that defendant was prejudiced. Even if testimony concerning the prior offense had not been admissible, we would have concluded that its introduction was harmless error under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) There was overwhelming physical and testimonial evidence here to find that defendant killed Erik and that he committed child abuse resulting in death. The CT scan of Eriks brain showed that Eriks brain was abnormally functioning. It also showed skull fractures on both sides of Eriks head, bleeding between the brain and left skull, a subdural hematoma on the left side of the brain, and blood inside the frontal cortex of the brain. Eriks swollen brain indicated trauma. The child abuse workup, the CT scan, the lesions in Eriks brain, and an eye examination all contradicted the history given by defendant as to Eriks injuries. Eriks complete medical examination revealed abusive head trauma as a result of being shaken. An autopsy of Eriks body showed optic nerve bleeding, which, like the retinal hemorrhaging, indicated a shaking injury. An older fracture of Eriks femur and a more recent fracture to Eriks rib also showed Erik had been shaken. There was overwhelming evidence here to indicate that Erik died as a result of abusive head trauma rather than an accidental fall.
Defendant also claims admission of the prior offense evidence violated his constitutional right to due process under the federal and state Constitutions. Substantially similar arguments recently were rejected by our Supreme Court in People v. Yeoman, supra, 31 Cal.4th at pages 122-123. As the court explained, "[w]e reject the argument because the trial courts decision to admit the evidence was correct under state law (Evid. Code, §§ 352, 1101, subd. (b); see People v. Ewoldt, supra, 7 Cal.4th 380, 402-403), was neither arbitrary nor fundamentally unfair . . . ." (Id. at p. 123; see also People v. Falsetta (1999) 21 Cal.4th 903, 917 [high court held that Evid. Code, § 1108, which permits evidence of a defendants uncharged sex offenses to show his propensity to commit offenses of the same type, did not violate due process, reasoning that the trial courts discretion to exclude unduly prejudicial evidence under Evid. Code, § 352 saved § 1108 from the defendants due process challenge]; see also People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1029 [this court held Evid. Code § 1109, which permits admission of a defendants prior acts of domestic violence to show the defendant had a propensity to commit one or more charged offenses involving domestic violence, does not offend due process]; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096 [same]; People v. James (2000) 81 Cal.App.4th 1343, 1353 [same]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310 [same]; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334 [same]; People v. Johnson (2000) 77 Cal.App.4th 410, 416-419 [same].) For the same reasons, Evidence Code section 1101 does not offend due process.
B. CALJIC No. 2.03
Defendant also argues the trial court erred in instructing the jury with the consciousness of guilt instruction (CALJIC No. 2.03). Specifically, he claims the instruction was improper because it "strongly" suggested that the defense was fabricated and the jury might therefore infer his guilt from this fabrication, and because it was an improper pinpoint instruction. We disagree.
CALJIC No. 2.03, as given to the jury, states: "If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."
"The giving of CALJIC No. 2.03 is justified when there exists evidence that the defendant prefabricated a story to explain his conduct. The falsity of a defendants pretrial statement may be shown by other evidence even when the pretrial statement is not inconsistent with defendants testimony at trial." (People v. Edwards (1992) 8 Cal.App.4th 1092, 1103.) Prior statements, if false, may constitute evidence of consciousness of guilt even when they are exculpatory in form. (People v. Cooper (1970) 7 Cal.App.3d 200, 204-205.) Furthermore, false reasons for ones conduct may be circumstantial evidence of an ulterior, unspoken, and illicit motivation. (See, e.g., People v. Osslo (1958) 50 Cal.2d 75, 93; see also People v. Rankin (1992) 9 Cal.App.4th 430, 436 [CALJIC No. 2.03 should be given if defendant makes a false statement for the purpose of deflecting suspicion].)
If the defendants pretrial statements contradict physical evidence or the testimony of trustworthy witnesses, the jury may view the making of those statements as demonstrating consciousness of guilt. (People v. Kimble (1988) 44 Cal.3d 480, 496, 498.) Here, there was both physical evidence (photographs of Eriks injuries and of the stairs in the house) and the testimony of trustworthy witnesses, i.e., the paramedic and the doctor, that contradicted defendants pretrial claim that he accidentally dropped Erik while on the stairs. Accordingly, it can be a proper evidentiary basis for giving CALJIC No. 2.03.
Defendant, however, contends the instruction was improper because it suggested to the jury that he made false statements, and therefore the jury inferred his guilt from this fabrication. To the contrary, the Supreme Court has repeatedly held that the consciousness of guilt instructions (see also CALJIC Nos. 2.04 [efforts by defendant to fabricate evidence] and 2.06 [efforts by defendant to suppress evidence]) do not properly relate to mental state. In People v. Crandell (1988) 46 Cal.3d 833 (disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346), the defendant claimed that the consciousness of guilt instructions violated due process by permitting an unfounded inference, arguing that the jury might "view `consciousness of guilt as equivalent to a confession, establishing all elements of the charged murder offenses, including premeditation and deliberation, though defendant might be conscious only of having committed some form of unlawful homicide." (Crandell, at p. 871.) The Crandell court rejected this argument, concluding: "Defendants fear that the jury might have confused the psychological and legal meanings of `guilt is unwarranted. A reasonable juror would understand `consciousness of guilt to mean `consciousness of some wrongdoing rather than `consciousness of having committed the specific offense charged. The instructions advise the jury to determine what significance, if any, should be given to evidence of consciousness of guilt, and caution that such evidence is not sufficient to establish guilt, thereby clearly implying that the evidence is not the equivalent of a confession and is to be evaluated with reason and common sense. The instructions do not address the defendants mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard thereto." (Ibid .; see also People v. Jackson (1996) 13 Cal.4th 1164, 1224 [unnecessary to limit the instruction by advising jury that consciousness of guilt is not probative of mental state]; People v. Breaux (1991) 1 Cal.4th 281, 304.) In People v. Ashmus (1991) 54 Cal.3d 932 (disapproved on another ground in People v. Yeoman, supra, 31 Cal.4th 93), the defendant similarly argued that the consciousness of guilt instructions violated due process by improperly implying that if he lied about attacking a murder victim it might be inferred that he acted with intent to kill. (Ashmus, at p. 977.) The Ashmus court concluded that the instruction did not permit such an inference: "A reasonable juror simply could not have taken the words of the instruction to mean that lies by defendant supported an inference of intent to kill on his part." (Id. at p. 978; see also People v. Clark (1993) 5 Cal.4th 950, 1022.) Thus, the consciousness of guilt instructions are actually less appropriate in cases where intent is the primary issue. The rationale in Crandell and other California Supreme Court cases dealing with the instant issue is applicable to this case.
Defendant relies on People v. Rubio (1977) 71 Cal.App.3d 757, 758, where the appellate court disagreed with the giving of CALJIC No. 2.03 when the only proof that a defendants pretrial statements are false is that they conflict with the prosecutions evidence at trial. The court reasoned: "The giving of CALJIC No. 2.03 is justified only if there exists evidence that defendant prefabricated a story to explain his conduct. This instruction is not applicable in the situation where a defendant makes an explanation of behavior to the police which is consistent with his self-serving testimony at trial that conflicts with the prosecutions evidence before the jury. In such a case, the instruction of necessity casts specific doubt on a defendants credibility as a witness and singles out defendants testimony as subject to more particular scrutiny than that attached to prosecution witnesses." (Rubio, at p. 769.)
In People v. Kimble, supra, 44 Cal.3d 480, the Supreme Court examined whether the general rule allowing admission of pretrial false statement applies only when the "`falsity is demonstrated by the fact that they are contrary to the defendants own trial testimony." (Id. at p. 496.) The court held that such a restriction is not applicable to pretrial false statements. The court disagreed with the line of cases holding otherwise. In People v. Bacigalupo (1991) 1 Cal.4th 103, the Supreme Court found that the instruction did not suggest to the jurors that they could infer any mental state or degree of culpability from consciousness of guilt. It held the instruction was not biased or argumentative but was a proper instruction advising the jury of inferences that could rationally be drawn from the evidence. (Id. at p. 128.) In People v. Kelly (1991) 1 Cal.4th 495, the Supreme Court again rejected a defendants argument that CALJIC No. 2.03 was favorable to the prosecution. (Kelly, at p. 531.)
Hence, in light of Kimble, Bacigalupo, and Kelly, it is clear that Rubio is no longer a correct statement of the law. (See People v. Edwards (1992) 8 Cal.App.4th 1092, 1103-1104; People v. Williams (1995) 33 Cal.App.4th 467, 478.)
Defendant further argues that CALJIC No. 2.03 constituted an impermissibly argumentative pinpoint instruction that drew an inference favorable to the prosecution. We again disagree. As the People point out, this contention has repeatedly been rejected by our Supreme Court. (People v. Boyette (2002) 29 Cal.4th 381, 438-439; People v. Kipp (1998) 18 Cal.4th 349, 375; People v. Jackson, supra, 13 Cal.4th 1164, 1223-1224; People v. Kelly, supra, 1 Cal.4th 495, 532.)
We conclude that the trial court did not err by giving CALJIC No. 2. 03.
Even if we assume the challenged instruction was inapplicable here, applying the more stringent Chapman standard, we find any error to be harmless beyond a reasonable doubt. As stated in section II.A, ante, there was overwhelming physical and testimonial evidence here to find that defendant abused and killed Erik and that he gave a false explanation regarding Eriks injuries to the paramedic, the doctor, and his girlfriend. Based on the foregoing evidence, any error in instructing the jury with CALJIC No. 2.03 was harmless beyond a reasonable doubt.
Chapman v. California, supra, 386 U.S. 18, 24.
C. Correction of Abstract of Judgment
Lastly, defendant contends, and the People agree, that the abstract of judgment must be corrected to reflect the oral pronouncement of judgment. Because the abstract of judgment erroneously indicates the 30-years-to-life sentence on count 1 (15 years doubled pursuant to the three strikes law) runs consecutively to the 50-years-to-life sentence on count 2 (25 years doubled pursuant to the three strikes), and the trial court stayed the sentence on count 1 pursuant to section 654, we agree with the parties that the abstract of judgment must be corrected accordingly.
III
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect the sentence on count 1 (second degree murder) was stayed and to forward a copy of the amended abstract to the Department of Corrections. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: HOLLENHORST Acting P.J., McKINSTER J.