Opinion
B323591
04-23-2024
THE PEOPLE, Plaintiff and Respondent, v. RONALD SALMOND, Defendant and Appellant.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Nicholas Webster, Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA454849, Curtis B. Rappe, Judge. Affirmed.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Nicholas Webster, Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
SEGAL, ACTING P. J.
INTRODUCTION
Elijah M. was two years old and lived with his mother, his sister, who was four years old, and his mother's friend, Ronald Salmond. While in the care of Salmond, Elijah suffered severe injuries to his internal organs, and later died. A jury convicted Salmond on one count of assault of a child under eight years of age by means of force likely to produce great bodily injury, resulting in the child's death (Pen. Code, § 273ab, subd. (a)) and one count of second degree murder (§ 187). The trial court sentenced Salmond, who had a prior serious or violent felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), to a prison term of 50 years to life (25 years to life for the conviction for assault of a child resulting in death, doubled under the three strikes law).
Statutory references are to the Penal Code.
The court also imposed and stayed execution under section 654 of a sentence of 30 years to life on the murder conviction.
At trial the People introduced inconsistent statements Salmond made to police officers about the circumstances of Elijah's death. When initially questioned, Salmond stated that Elijah and his sister had been playing in their bedroom while Salmond was in another room and that he discovered Elijah in distress, kneeling against the bottom bed of the children's bunk bed. During a subsequent interview, however, Salmond stated he accidentally dropped Elijah while they were playing. Salmond argues that the latter statement was involuntary and that the trial court violated his constitutional rights by admitting it.
We conclude that the People met their burden to show Salmond made the statement voluntarily and that the court did not err in admitting it.
Salmond also argues his trial counsel rendered ineffective assistance by failing to object to various acts of misconduct Salmond asserts the prosecutor committed during opening statement and closing argument. We conclude most of the acts Salmond complains of did not rise to the level of prosecutorial misconduct. For the remaining acts, we conclude that, even if the prosecutor acted improperly, Salmond has not shown the claimed misconduct prejudiced him.
Finally, Salmond contends the trial court erred in declining to consider whether to dismiss his prior serious or violent felony conviction under amended section 1385, subdivision (c). As amended, section 1385, subdivision (c), requires a court to "dismiss an enhancement if it is in the furtherance of justice to do so," except when prohibited by an "initiative statute" (§ 1385, subd. (c)(1)), and sets forth several mitigating circumstances that "weigh greatly in favor" of dismissal (§ 1385, subd. (c)(2)). We join those courts that have held that, because the three strikes law is an alternative sentencing scheme and not an enhancement, section 1385, subdivision (c), does not apply to the three strikes law. (See People v. Dain (2024) 99 Cal.App.5th 399, 411; People v. Olay (2023) 98 Cal.App.5th 60, 67-69 (Olay); People v. Burke (2023) 89 Cal.App.5th 237, 243 (Burke).) Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Elijah Is Seriously Injured While at Home with Salmond, and Dies in the Hospital
Elijah lived in an apartment with his mother, Jazmyne; his four-year-old sister, Emiyah; and Salmond. Elijah and Emiyah shared a room with a bunk bed.
A few weeks before he died, Elijah (as well as the other members of the household) became sick after eating some chicken. Because Elijah was vomiting everything he ate or drank, Salmond and Jazmyne took Elijah to a hospital. Doctors diagnosed Elijah with pancreatitis and transaminitis. He remained hospitalized for several days; doctors ultimately discharged him on June 3, 2015.
As one doctor testified during trial, transaminitis refers to elevated levels of certain enzymes in in the liver.
The week after leaving the hospital, Elijah continued to vomit and was lethargic but, according to Jazmyne, was "doing better." On June 12, 2015 Jazmyne left Elijah and Emiyah with Salmond. While Jazmyne was away, Salmond called the 911 emergency operator and reported that Elijah threw up, was choking on his vomit, and was not breathing. The emergency operator instructed Salmond to perform the Heimlich maneuver, then cardiopulmonary resuscitation (CPR). Seven minutes after Salmond placed the call, an emergency response team arrived at the home and immediately took Elijah to the hospital. At the hospital, doctors discovered Elijah had several serious internal injuries and significant internal bleeding in his abdominal area. Doctors administered a blood transfusion and performed several other procedures, but Elijah eventually died in the hospital.
B. A Police Officer Interviews Salmond, Who Denies Hurting Elijah
Officer Ysenia Avalos of the Los Angeles Police Department interviewed Salmond the day after Elijah died. Salmond told Officer Avalos that, after Jazmyne left home, he was in his bedroom using his laptop while the children were playing and watching television in their bedroom. At one point, Salmond went into the children's room and saw Elijah on the ground, kneeling against the bottom bed of the bunk bed with his head down. Salmond thought Elijah may have fallen from the bunk bed because the ladder to the top bunk was attached to the bed and Emiyah liked to play on the ladder. Salmond told Officer Avalos that he went to get Elijah some juice, but that when he returned Elijah was vomiting "out of his mouth" and "out of his nose." Salmond tried to administer CPR, but Elijah did not respond.
Salmond said he went to get his mother, Christine Gray, who lived in the apartment building across from Salmond's building. Salmond then called the 911 emergency operator. At the direction of the operator, Salmond tried to perform the Heimlich maneuver on Elijah, but "nothing was really coming out but a little bit of saliva." Officer Avalos interviewed Salmond a second time five months later, and at that time Salmond gave a similar account of the events.
C. Two Doctors Conclude Elijah's Injuries Were Caused by Abuse; A Pathologist Concludes the Cause of Death Was Nonaccidental Trauma
After Elijah died, Dr. Tom Kallay-a pediatric critical care physician who treated Elijah in the hospital-and Dr. Kelly Callahan-a child abuse pediatrician who reviewed Elijah's medical records-sent a letter to the Los Angeles Police Department describing Elijah's injuries. In their opinion, "Elijah's injuries were indicative of blunt force trauma to the abdomen" and "inflicted trauma."
Dr. Vadims Poukens conducted an autopsy of Elijah's body a few days after he died. In addition to observing injuries to the organs in Elijah's abdominal area, Dr. Poukens observed injuries to Elijah's neck, thyroid, and scalp. Dr. Poukens concluded that Elijah died from multiple traumatic injuries and that his injury pattern "indicated non-accidental origin."
D. Salmond Changes His Story After Police Officers Arrest and Question Him
In March 2017-a little less than two years after Elijah died-police officers arrested Salmond and took him into custody. Officer Avalos interviewed Salmond, who initially maintained his previous account of what happened to Elijah. However, after 13 minutes of persistent questioning from Officer Avalos (more on that later), Salmond eventually told Officer Avalos that he dropped Elijah while playing a game. Salmond stated: "We were playing spaceship. Him and me and Emiyah. I lifted him up, both by their shoulders, and I was tossing them both in the air.... [Emiyah] always felt jealous because she felt like I was giving more to him. She reached up and grabbed my arm when I was throwing him in the air and I dropped him." Upon further questioning from Officer Avalos, Salmond said that Elijah may have hit a toy when he fell, but that "there was nothing, like, super crucial that was under him ...."
E. The People Charge Salmond
The People charged Salmond with one count of murder (§ 187) and one count of assault of a child under eight years of age, by means of force likely to produce great bodily injury, resulting in the child's death (§ 273ab). The People alleged Salmond had been convicted of a prior or serious violent felony within the meaning of the three strikes law. (See §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
F. The People Present Their Case at Trial 1. Two Paramedics Who Responded to the 911 Emergency Call Testify About Elijah's Condition
Carl Weideman and Justin Randolph were paramedics who arrived at the home after Salmond made the 911 emergency call. Weidman testified that, when he entered the home, Elijah was lying on the floor, was not breathing, and had no pulse. Weidman found Elijah's skin temperature was cool, indicating Elijah had not been breathing for a while. When Weidman checked Elijah's airway, he observed some vomit. Salmond told Randolph that Elijah started choking after drinking some juice. Both Weidman and Randolph testified Salmond never mentioned that he dropped Elijah or that Elijah had fallen.
2. Drs. Kallay and Callahan Testify Elijah's Internal Injuries Were Inflicted Non-accidentally
Drs. Kallay and Callahan described Elijah's internal injuries. Dr. Kallay testified that Elijah had a transacted pancreas (meaning it was "torn apart" in "two pieces") and a necrotic section of his transverse colon and that there was evidence of hemorrhages around his kidneys and intestines. Dr. Kallay concluded that, given the "spectrum" of Elijah's injuries, it was almost certain they were inflicted non-accidentally. In particular, a transacted pancreas "would be caused by significant blunt force injury," such as a "very, very high-speed car accident" or a "very hard blow to the midsection directed right at the belly."
Dr. Callahan similarly testified that, in her opinion, Elijah's injuries were "indicative of non-accidental trauma, or child abuse." She too stated that only "some kind of blow to the abdomen" could cause a transacted pancreas. She also testified that Elijah had paraduodenal bruising in his intestine, which would only be caused by "being hit in the abdomen," and that Elijah's multiple hemorrhages demonstrated he suffered trauma.
Dr. Kallay and Dr. Callahan both testified Elijah's injuries could not have been caused by falling from a bunk bed or by falling after having been tossed a couple of inches in the air.
Drs. Kallay and Callahan also testified Elijah's injuries could not have been caused by a person administering CPR or performing the Heimlich maneuver.
Dr. Kallay testified that, in his experience, pancreatitis in children is generally caused by medications, infections, or trauma, but generally not by food poisoning. Dr. Callahan similarly stated that older children sometimes develop pancreatitis if, for example, they crash while riding their bicycles and hit their midsection on the handlebars, but that for toddlers (like Elijah) who do not ride bikes, abuse is the leading cause.
Dr. Callahan also said salmonella (from spoiled chicken) does not cause pancreatitis in children.
3. Dr. Poukens Testifies About the Results of His Autopsy; A Neuropathologist Testifies Elijah Had Brain Injuries
Dr. Poukens testified Elijah had lacerations to his pancreas and liver, which were caused by a "severe blow to the stomach, or multiple blows." He testified there were hemorrhages around all the major organs in Elijah's abdominal and neck area, evidence of hemorrhages on his scalp, and bruises on his head, back, chest, arms, and legs. It was Dr. Poukens's opinion that, given the varied locations of Elijah's injuries, the injuries were caused by multiple traumatic blows. Dr. Poukens concluded that the cause of Elijah's death was multiple traumatic injuries and that the manner of death was homicide.
Dr. Cho Lwin, a forensic neuropathologist who examined Elijah's brain, also testified. Dr. Lwin observed evidence of multiple hemorrhages in Elijah's brain and concluded many of the hemorrhages occurred either less than one hour, between four and 12 hours, or less than 24 hours, before Elijah died. Dr. Lwin also found evidence of a chronic subdural hemorrhage and a neomembrane-a "fibrous tissue" deposited by reactive cells after an injury-which Dr. Lwin concluded occurred between one month and one year before Elijah died. In Dr. Lwin's opinion, the hemorrhages in separate areas indicated they were caused by "multiple blunt force impact."
Dr. Lwin explained he dated the injuries from the time Elijah's brain would have ceased activity, which was not necessarily the time hospital doctors, after attempting lifesaving procedures, pronounced Elijah dead.
When questioned by counsel for Salmond, Dr. Lwin stated accidental trauma can cause subdural hemorrhages. However, Dr. Lwin concluded that, because there were multiple areas of blunt force trauma and evidence of subdural hemorrhages on both sides of Elijah's brain, the "mechanism" in Elijah's case was nonaccidental trauma. As Dr. Lwin explained: "It is very rare you have subdural hemorrhage [on] both sides" unless there is "very severe traumatic injury." In Dr. Lwin's opinion, a fall to the floor or from a bunk bed could not have caused Elijah's injuries.
4. Emiyah Testifies Salmond Beat Elijah the Day He Died; Her Earlier Statements Were Less Clear
Emiyah was 10 years old when she testified at trial. Describing what happened to Elijah, Emiyah said: "My uncle had brought [Elijah] into the bathroom to burp him, I guess. I don't really know. But then-then when he came out he started to like hurt him, keep on hitting him. I yelled to stop. He didn't stop.... And because I was four, I didn't understand anything. I couldn't do anything. Then I saw Elijah laying down on the floor, just dead. But to my mind, since I was four, just lying there looking like he was asleep." When asked by the prosecutor, "Do you remember some of the things the uncle was doing" when he "hit and hurt your little brother and then was dead," Emiyah responded: "No. I don't remember some of the things that he used to do, but I do know that he was hitting him, hurting him, and I heard that he was crying. I didn't exactly know what was happening."
Emiyah's pre-trial statements, however, were more ambiguous. Shortly after paramedics took Elijah to the hospital, a certified forensic interviewer interviewed Emiyah. Counsel for Salmond played a video recording of the interview to the jury. During the interview, Emiyah was able to say Elijah had been hurt, but had difficulty providing details. When the interviewer first asked what happened, Emiyah said Elijah "get hurt" and "fell down." The interviewer asked whether Elijah had cried, which prompted the following exchange:
"Interviewer: And how come he cried?
"Emiyah: Cause he fell down the floor and . . . and Ronnie bump him.
"Interviewer: And tell me how Ronnie bumped him?
"Emiyah: He bumped him on the floor. ....
"Interviewer: How did Ronnie do that?
"Emiyah: Cause he burped him on the bathroom. ....
"Interviewer: Emiyah, tell me what happened when Ronnie bumped Jaja.
"Emiyah: He bumped into my room. And he bump him on the floor on that bathroom. .... "Interviewer: How did he do that?
"Emiyah: Cause his fingers bump him. "Interviewer: Whose fingers bumped him?
"Emiyah: Ronnie's fingers. "Interviewer: Okay. And tell me what Ronnie's fingers did, what did his fingers do?
"Emiyah: They pop him on my booty."
Toward the end of the interview, Emiyah again indicated Elijah hurt himself by falling on the floor:
"Interviewer: Did you brother get hurt?"
"Emiyah: Yes.
"Interviewer: What happened to your brother got hurt?
"Emiyah: I got him on my bed like that and . . . checked there's a monster.
"Interviewer: Okay. Tell me more.
"Emiyah: He pop him. My booty. ....
"Interviewer: And how did your brother get hurt, Emiyah?
"Emiyah: Cause I lift my foot and . . . face. ....
"Interviewer: I don't understand. Emiyah . . . what are you telling me?
"Emiyah: Elijah . . . he got hurt on the floor.
"Interviewer: What happened?
"Emiyah: Cause I wanted my teddy bear. ....
"Interviewer: How did he get hurt on the floor.
"Emiyah: Cause he rolled on the floor. . . and . . . when Jaja and me fall down in the floor.
"Interviewer: Uh huh. What did Jaja look like when he rolled on the floor?
"Emiyah: He . . . he was very small."
Theresa Saracho, a nurse practitioner who examined Emiyah and prepared a report the day after Elijah died, also testified at trial. Saracho noted in her report Emiyah had no signs of abuse. However, Emiyah made the following statement to Saracho: "Ronnie was mad at Elijah, cuz he was walking
Elijah bumped his head down on the floor, on the bathroom floor! Ronnie throw him down .... I said, NO! But he . . . still kept popping him. Mommy say to your room. They say go to your room. Ronnie was popping Elijah chest on My heart. I was crying."
Counsel for Salmond introduced a statement Emiyah made to Officer Avalos and the prosecutor a year after Elijah died that she did not remember much about Elijah. Counsel for Salmond also introduced Emiyah's testimony during the preliminary hearing three years before the trial. Emiyah testified then that a stranger hit Elijah in the face on the sidewalk outside their home and that she did not remember anything else that happened to him. When testifying at trial, Emiyah did not remember her prior statements. Emiyah also acknowledged she had spoken to several people during the last few years about what happened to Elijah.
5. The People Introduce Salmond's Prior Statements; Jazmyne Testifies Salmond Never Explained What Happened
The People sought to prove Salmond gave different versions of, and failed to disclose, what he did to Elijah. The prosecutor played for the jury recordings of each of Salmond's first two interviews with Officer Avalos-during which Salmond said he found Elijah in the children's bedroom in distress-and, over Salmond's objection, a recording of his third interview-during which he stated he dropped Elijah while playing the spaceship game. The People also played a recording of a call Salmond made from jail a year after the third interview. During the call, Salmond said he found Elijah in the children's bedroom "on the floor just throwing up." He did not mention playing spaceship with or dropping Elijah.
Jazmyne testified that, on the day Elijah died, she left Emiyah and Elijah with Salmond. While she was away, her phone ran out of battery power. As soon as she returned, her neighbors told her an ambulance had taken Elijah away. Salmond was upset and started blaming her for allowing her phone to run out of battery. A few weeks later, Salmond said to her: "Your phone is always dead. That's why your son died."
Jazmyne testified Salmond never told her that he found Elijah slumped over his bed, that Elijah fell off the bunk bed, or that he dropped Elijah. Salmond told her something different about what happened, but it was "very vague." She remembered him telling her that Elijah was throwing up through his mouth and nose and that Salmond went to his mother for help. Jazmyne acknowledged during her testimony that she never saw Salmond hit her children and that the children never suggested to her that he hit them.
G. Salmond Presents His Defense
1. Salmond's Mother Describes the Incident
Salmond's mother, Christine Gray, testified about the incident, providing an account essentially consistent with Salmond's statements to Officer Avalos. Gray testified Salmond called her from outside her apartment. When she went to Salmond and Jazmyne's home, she saw Elijah on the couch, vomiting, and Emiyah in the living room, panicking. Gray told Emiyah to go to her room and told Salmond to call the 911 emergency operator on her phone, which he did. At the direction of the operator, Salmond performed the Heimlich maneuver. Gray testified that she remembered the emergency operator directing Salmond to perform CPR, but that she did not recall whether he did so before the paramedics arrived.
2. Dr. Michael Weinraub Testifies Elijah's Injuries May Have Been Caused by Accidental Trauma
Dr. Michael Weinraub, a forensic pediatrician, testified as an expert witness for Salmond. In Dr. Weinraub's opinion there was insufficient evidence to conclude to a reasonable degree of medical certainty Elijah died from child abuse. Dr. Weinraub explained Elijah was still suffering from chronic pancreatitis when he was released from the hospital the week before he died. In reviewing a pathology report prepared when Elijah died, Dr. Weinraub noted fibrosis ("scarring") in Elijah's pancreas. Dr. Weinraub agreed with Drs. Kallay and Callahan that only blunt force trauma could transect the pancreas. However, he said, the existence of pancreatitis and fibrosis rendered the pancreas more susceptible to traumatic injury. In Dr. Weinraub's opinion, transection could occur if, for example, a four-year-old child (like Emiyah) fell on Elijah from a bunk bed. Dr. Weinraub also testified that, given how small Elijah was, such a blow could have caused all the observed injuries to the internal organs in Elijah's abdominal area.
Dr. Weinraub also disagreed with Dr. Callahan's and Dr. Kallay's conclusions Elijah's pancreatitis was probably caused by abuse. Dr. Weinraub explained that, when Elijah was in the hospital a couple of weeks before he died, Elijah's treating doctors performed several tests to determine the cause of the pancreatitis, but that there was no contemporaneous evidence suggesting Elijah had been abused. He also disagreed with Dr. Kallay's and Dr. Callahan's conclusion that food poisoning cannot cause pancreatitis; according to Dr. Weinraub, salmonella was a "known" cause.
Dr. Weinraub further testified the results of blood tests taken the night Elijah died showed Elijah suffered from disseminated intravascular coagulation (DIC), a disorder that prevents blood clotting and results in excessive bleeding. In Dr. Weinraub's opinion, blunt force impact to the pancreas caused the DIC. The DIC then caused Elijah to bleed more and to develop bruises from minor impacts; for example, when paramedics and hospital personnel attempted life-saving procedures. Dr. Weinraub found relevant the absence of any patterns of abuse, such as slap marks or bite marks, in Dr. Poukens's autopsy report.
Discussing Dr. Lwin's autopsy of Elijah's brain, Dr. Weinraub testified a neomembrane (as observed by Dr. Lwin) "bleeds very easily," which meant the neomembrane could cause an additional, acute subdural hemorrhage from "mild head trauma." Dr. Weinraub concluded that, given Elijah's history of pancreatitis, development of DIC, and formation of a neomembrane in the brain, it was not reasonable to conclude child abuse, rather than accidental trauma, was the most likely cause of Elijah's injuries.
H. The Jury Convicts Salmond on Both Counts, and the Trial Court Sentences Him
On count one, the jury acquitted Salmond of first degree murder, but convicted him of second degree murder. (§ 187.) The jury also convicted Salmond of assault of a child under eight years of age by means likely to produce great bodily injury, resulting in the child's death. (§ 273ab, subd. (a).)
Salmond admitted the allegation he had a prior serious or violent felony conviction within the meaning of the three strikes law. After denying Salmond's motion to dismiss the prior conviction, the trial court sentenced Salmond to a prison term of 50 years to life on the conviction of assault of a child under eight years of age by means likely to produce great bodily injury, resulting in death (25 years to life, doubled under the three strikes law). The court also sentenced Salmond to a term of 30 years to life on the murder conviction (15 years to life, doubled under the three strikes law), but stayed execution of the sentence under section 654. Salmond timely appealed.
DISCUSSION
A. The Trial Court Did Not Err in Admitting Salmond's Statement He Dropped Elijah
Salmond contends the trial court erred in admitting the recording of his third interview with Officer Avalos, where he stated he dropped Elijah while playing the spaceship game. Salmond contends that, because he made the statement involuntarily after coercion from Officer Avalos, the court violated his due process rights under the United States Constitution and the California Constitution in admitting the statement. The trial court, however, did not err.
1. Factual and Procedural Background
a. Officer Avalos Questions Salmond
As discussed, Officer Avalos interviewed Salmond immediately after police officers arrested him. Officer Avalos advised Salmond of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), which Salmond said he understood. She then asked Salmond whether he had a "different story" about how Elijah died than the one he had previously given, and Salmond initially said, "No."
During the interview, Officer Avalos stated on multiple occasions "experts" would say how Elijah died if Salmond did not offer a better explanation. Toward the beginning of the interview, she said: "When we first . . . met that night, I told you that there was gonna be a lot of people, experts much bigger than me, much bigger than you, with a lot more knowledge.... Well, those reports say otherwise from what you are saying or said to me." A couple of minutes later, while Salmond was complaining he had become addicted to "crystal meth" after Elijah died, Officer Avalos stated: "You know what? We're not gonna do this, Ronald. Elijah's dead. And there has to be an explanation for that. Everything that's about to happen from this point forward is gonna be a bit out of your control now. If there is something to say about what happened . . . that you haven't told me, this would be the time to do so. Because otherwise, all of those experts and folks are gonna let everybody else know what really happened. So the only thing you can get out right now is your version if it is different than . . . what you have already told me." Later on, Officer Avalos similarly said, "If you don't tell me what happened that day, everybody else is gonna tell you what happened that day," and, "I can tell you there's people that are gonna tell you, Ronald, . . . they're gonna give your story for you." Salmond continued to say he had no new information about how Elijah died.
Officer Avalos also suggested during the interview she did not think Salmond intended to hurt Elijah. When Salmond at one point stated, "You making it seem as if I specifically targeted my own stepson," Officer Avalos said, "I don't think you targeted him. But I think it's pretty clear that something else happened that you're . . . not sharing. But I don't think you targeted him. I think maybe you loved him. I think maybe you didn't expect something to happen. I think maybe there's additional information, and that's the opportunity that I'm trying to provide for you right now." Shortly after that, Officer Avalos again said she did not think Salmond intended to hurt Elijah.
After 13 minutes of interrogation, Officer Avalos asked, "Ronald, if you did not beat your child that day, then what really happened?" Salmond said, "I would like to know myself," which prompted Officer Avalos to say, "Okay. Then you know what? You'll get that opportunity." At that point, Officer Avalos announced the date and time and began to walk toward the door of the room. Salmond said: "Hold on. Wait a minute.... Wait. Wait. Wait." Officer Avalos replied: "Unless you're gonna say something different, because that's what I'm here to interview you about, okay, we're done. We're done. I'm walking out of here. You're gonna stay here. So, take a deep breath and think about what you're gonna say next." After a long pause, Salmond stated, "I never meant to hurt that boy." He then told Officer Avalos about the spaceship game.
Officer Avalos continued to question Salmond after he made the statement about the spaceship game. After 15 minutes, Salmond became frustrated with her questions, and she told Salmond to "relax." Salmond said: "I'm not relaxing. It's not a situation to relax in. I haven't relaxed all day. I haven't been able to sleep in a week." A few minutes later, after Officer Avalos again stated the date and time and asked whether there was anything else Salmond wanted to say, Salmond said, "I wasn't ready to do this. I haven't been able to sleep in days. I haven't eaten. None of that. Still high." Before the interview ended, Salmond said a few more times he was not in his "right mind" to deal with the situation. The interview lasted 42 minutes.
b. The Trial Court Denies Salmond's Motion To Exclude Evidence of the Interview
During trial Salmond filed a motion to exclude evidence of the interview. The trial court held a hearing outside the presence of the jury, at which Officer Avalos and Salmond testified. Officer Avalos testified she knew Salmond was unhoused at the time of the interview. She said that during the interview he appeared "a little disheveled" and "his hair was messy," but that he did not appear to be excessively tired, hungry, or thirsty. She said that his pupils were not dilated and that he did not appear to be under the influence of any substances. In Officer Avalos's opinion Salmond was able to communicate and respond appropriately to her questions.
Salmond testified that, during the week leading up to the interview, he was sleeping on the streets. He had taken methamphetamine the night before, and the morning of, the interview and he was "extremely tired, thirsty, and hungry."
According to Salmond, two officers "lied" and told him the police were detaining him for an "open container" infraction; no one told him he was arrested for murder until immediately before the interview. Salmond stated that, as Officer Avalos was about to leave the interrogation room, she "gesture[d]" that it was his only chance to say something and said that his failure to say something else "was going to be used against him." At this point Salmond said he dropped Elijah while playing the spaceship game, a game he remembered playing with Emiyah while Elijah was in the hospital.
The court denied Salmond's motion. The court found that Salmond was calm and responsive during the interview, ruled that the People met their burden to show Officer Avalos did not use coercive tactics that overbore Salmond's will, and concluded that his statements were voluntary.
2. Applicable Law and Standard of Review
"'"The Fourteenth Amendment of the federal Constitution and article I, section 7 of the California Constitution make 'inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion.'"'" (People v. Suarez (2020) 10 Cal.5th 116, 157; see People v. Battle (2021) 11 Cal.5th 749, 790 (Battle).) "In determining whether a statement is involuntary, 'we consider the totality of the circumstances to see if a defendant's choice to confess was not "'"'essentially free'"'" because his will was overborne by the coercive practices of his interrogator.'" (Battle, at p. 790; see People v. Ramirez (2022) 13 Cal.5th 997, 1107.) "The presence of coercion is a necessary, but not always sufficient, predicate to finding a [statement] was involuntary." (Battle, at p. 790; see People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 20.) Other factors include "'the length of the interrogation and its location and continuity, and the defendant's maturity, education, and physical and mental health.'" (Miranda-Guerrero, at p. 21; see People v. Sanchez (2019) 7 Cal.5th 14, 51.)
"When a defendant challenges the admission of a statement on the grounds that it was involuntarily made, the state bears the burden of showing by a preponderance of the evidence that a defendant's statement was, in fact, voluntary." (Battle, supra, 11 Cal.5th at p. 790; see People v. Miranda-Guerrero, supra, 14 Cal.5th at p. 20.) "[W]e accept the trial court's factual findings as to the circumstances surrounding the confession, provided they are supported by substantial evidence, but we review de novo the ultimate legal question of voluntariness." (Battle, at p. 790; see People v. Wall (2017) 3 Cal.5th 1048, 1066; People v. Winbush (2017) 2 Cal.5th 402, 452-453.)
3. Officer Avalos's Conduct Was Not Coercive, and Salmond's Will Was Not Overborne
Salmond argues Officer Avalos's interrogation was coercive because it "involved an implied promise of leniency/threat of prosecution." According to Salmond, Officer Avalos impliedly threatened to prosecute Salmond when she stated that, if Salmond did not offer a new explanation for Elijah's injuries, experts would say what happened and tell Salmond's "story." And, Salmond argues, by suggesting he may not have intended to hurt Elijah, Officer Avalos impliedly promised he would not be prosecuted if he changed his story.
Coercive police conduct may include "threats" and "direct or implied promises" (Battle, supra, 11 Cal.5th at p. 790; see People v. Linton (2013) 56 Cal.4th 1146, 1177), as well as "'more subtle forms of psychological persuasion,'" such as "'deception or communication of false information'" (People v. Miranda-Guerrero, supra, 14 Cal.5th at p. 20; see Boitez v. Superior Court (2023) 96 Cal.App.5th 1213, 1224). As the Supreme Court has explained, however, the "business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means." (Battle, at p. 791.) "'"Questioning may include exchanges of information, . . . confrontation with contradictory facts, [and] even debate between police and suspect ...."'" (People v. Williams (2010) 49 Cal.4th 405, 444.) Detectives may also "repeatedly express that they believe a suspect is lying" and may "engage in 'vigorous,' repetitive questioning of suspects ...." (Battle, at p. 791.)
Officer Avalos's statements were not coercive threats or promises. It was entirely proper for her to tell Salmond that his prior statements about what happened to Elijah were not consistent with the opinion of experts, as well as to question him, even repeatedly, about what really happened. So too, by admonishing Salmond the experts would explain what happened to Elijah if Salmond did not, Officer Avalos was "comment[ing] on the '"realities"' of Salmond's position and "the choices available to him"-another permissible tactic. (Battle, supra, 11 Cal.5th at p. 793; see People v. Flores (1983) 144 Cal.App.3d 459, 469 ["truthful and 'commonplace' statements of possible legal consequences, if unaccompanied by threat or promise, are permissible police practices"].) Indeed, Officer Avalos's prediction was accurate: The medical experts did explain at trial what they thought happened to Elijah. "No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence." (People v. Williams, supra, 49 Cal.4th at p. 444; see People v. Carrington (2009) 47 Cal.4th 145, 147.)
Nor was there anything improper about Officer Avalos's suggestion (even if not entirely sincere) Salmond did not intend to hurt Elijah. "[T]he police properly may confront, and even debate with, a suspect regarding theories based on the circumstances of the crimes ...." (People v. Carrington, supra, 47 Cal.4th at p. 174.) In particular, a detective may suggest a murder suspect accidentally killed the victim, so long as the detective does not offer more favorable treatment in exchange for an admission. (See id. at p. 171 [detective's "suggestions that the . . . homicide might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide the details of the crime"]; People v. Thompson (1990) 50 Cal.3d 134, 170 [detectives did not coerce a murder suspect to confess where they presented "alternative theories of accidental or intentional killing" and stated they were "going" with the intentional-killing theory]; see also People v. Spencer (2018) 5 Cal.5th 642, 675 [officer's "suggestion that [the defendant] did not mean to kill the victim but only to 'cut' him did not amount to an implied promise of leniency"].) Officer Avalos offered an alternative explanation for how Elijah may have sustained his injuries. She never told Salmond he would avoid prosecution or otherwise receive more favorable treatment if he admitted he did not intend to hurt Elijah.
Salmond relies on People v. McClary (1977) 20 Cal.3d 218 and People v. Cahill (1994) 22 Cal.App.4th 296 to support his contention Officer Avalos's conduct was coercive. Both cases are distinguishable. In McClary detectives called a 16-year-old murder suspect a "liar" and told her they had "enough information to fully prosecute [her] for murder." (McClary, at p. 233.) They also told her she could be tried as a principal subject to the death penalty (an incorrect statement of the potential punishment) or as an accessory after the fact. (Ibid.) After explaining the difference, detectives said they were going to try her as a principal "[u]nless [her] story change[d] ...." (Id. at pp. 223-224.) The Supreme Court held that, under those circumstances, "the threats of punishment and the promises of leniency" rendered the defendant's admissions involuntary. (Id. at p. 229.)
In People v. Cahill, supra, 22 Cal.App.4th 296 the defendant was suspected of robbing, raping, and murdering a woman in her home. During the interrogation, the detective told the defendant: "If I don't hear from you why this happened, . . . I'm going to assume that this was a cold-blooded premeditated murder of this little lady." (Id. at pp. 305-306.) The detective later explained the differences between first degree murder, second degree murder, and voluntary manslaughter and told the defendant: "[I]f she had you cornered, you're stuck. Okay. And it just happened. In which case, it wouldn't fall into first degree murder." The detective also strongly implied the defendant would not get the death penalty if the murder was not premeditated. (Id. at p. 306.) The court in Cahill held the detective's statement amounted to a threat or promise of leniency because "the clear implication" was the defendant could avoid a first degree murder conviction if "he admitted that he was inside the house and denied that he had premeditated the killing." (Id. at p. 314.) The court also found relevant that the detective's description of the law "was materially misleading," and his implied promise therefore knowingly false, because he "omitted[ed] any reference to the felony murder doctrine," under which the defendant could still receive a death sentence. (Id. at p. 315.)
The facts here are nothing like those in McCrary or Cahill. The Supreme Court's opinion in People v. Holloway (2004) 33 Cal.4th 96 explains why. In Holloway the detective, while interrogating a murder suspect, raised the possibility of the death penalty and "suggest[ed] that the killings might have been accidental or resulted from an uncontrollable fit of rage, and that such circumstances could 'make[ ] a lot of difference' ...." (Id. at p. 116.) Distinguishing McCrary and Cahill, the Supreme Court held the detective's comments fell "far short of being promises of lenient treatment in exchange for cooperation" because the detectives "did not represent that they, the prosecutor or the court would grant defendant any particular benefit if he told them how the killings happened." (Holloway, at p. 116.) The same is true here. Unlike the detectives in McCrary and Cahill, Officer Avalos never made or implied "a promise of a particular charge or other particular lenient treatment in exchange for cooperation." (Holloway, at p. 117.) She never discussed different charges the prosecutor could file or different punishments Salmond might receive, nor did she suggest Salmond could avoid a murder prosecution by admitting he accidentally hurt Elijah. Nor did she make any material misstatements about the law. At most, Officer Avalos implied that Salmond's version of events might be different than those of the experts (and Emiyah) and that Salmond therefore might want to share his version. (See People v. Hill (1967) 66 Cal.2d 536, 549 ["When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity."].) To the extent Salmond believed he could exonerate himself by offering a new version of events, it was merely wishful thinking.
At one point during her questioning Officer Avalos said "somebody else was there that day." She soon clarified she was referring to Emiyah.
Moreover, even if Officer Avalos's comments were somewhat coercive, other factors indicated Salmond's will was not overborne when he made the statement he accidentally dropped Elijah. (See People v. Miranda-Guerrero, supra, 14 Cal.5th at p. 20 ["If coercive police conduct is present, we evaluate the totality of the circumstances to determine whether a defendant's statements were freely given."].) Officer Avalos conducted the interview in the afternoon, and interrogated Salmond for only 13 minutes or so before he said he had dropped Elijah. (See id. at p. 21 [defendant's confession was voluntary, even though officers began interviewing him at midnight and interrogated him for more than seven hours before he confessed]; People v. Peoples (2016) 62 Cal.4th 718, 740 [confession was voluntary, even though "detectives used coercive techniques to undermine defendant's free will over 50 times during the 12-hour interrogation"].) Salmond "makes 'no claim of physical intimidation.'" (People v. Spencer, supra, 5 Cal.5th at p. 672.) Contrary to Salmond's testimony he asked Officer Avalos whether she could interview him another time, the record reflects that on multiple occasions Officer Avalos offered to end the interview, but that Salmond said he wanted to keep speaking to her. (See Battle, supra, 11 Cal.5th at p. 791 [defendant's admission was not involuntary where he did not "express an unwillingness to speak with [the] investigator" and "knew he could stop the examination 'at any time'"].) Finally, notwithstanding Salmond's claim he had recently ingested methamphetamine, was hungry and thirsty, and had not slept for days, Officer Avalos testified Salmond did not appear under the influence of any substances, and the record reflects he understood her questions. (See People v. Hensley (2014) 59 Cal.4th 788, 814 [defendant's ability to understand and respond to the detective's questions indicated the defendant was not "so drug impaired, sleep deprived, or medically weakened that he did not freely and deliberately choose to speak with law enforcement officials"]; see also People v. Miranda-Guerrero, supra, 14 Cal.5th at p. 20 [in reviewing whether a statement was voluntary, "[w]hen testimony in the record is conflicting," we '"'must "accept that version of events which is most favorable to the People, to the extent that it is supported by the record'"'"].) The record reflects Salmond voluntarily stated he dropped Elijah.
B. Salmond Has Not Shown Prosecutorial Misconduct Requiring Reversal
Salmond contends the prosecutor committed several acts of misconduct during opening statement and closing argument: first, by arguing Salmond had "anger issues" based on evidence not in the record; second, by denigrating Salmond's trial counsel and expert witness, Dr. Weinraub; and third, by appealing to the jurors' emotions by repeatedly displaying Salmond's booking photograph and photographs of Elijah. Salmond, however, forfeited these arguments by failing to object to the prosecutor's conduct at trial. His contentions the prosecutor improperly argued Salmond had anger issues and denigrated Salmond's attorney and expert also lack merit. Finally, Salmond has not shown his trial counsel rendered ineffective assistance by failing to object to the prosecutor's use and display of the photographs.
1. Applicable Law and Standard of Review
"'A prosecutor's conduct violates a defendant's constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects "'the trial with unfairness as to make the resulting conviction a denial of due process.' [Citation.]" [Citation.] The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor. [Citation.] Conduct that does not render a trial fundamentally unfair is error under state law only when it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"'" (People v. Young (2019) 7 Cal.5th 905, 932; see People v. Duong (2020) 10 Cal.5th 36, 69.)
2. Salmond Forfeited His Arguments of Prosecutorial Misconduct
"To preserve a claim of misconduct for appeal, a defendant must make a timely objection and ask the court to admonish the jury, unless an objection would have been futile and a request for admonition ineffective." (People v. Flores (2020) 9 Cal.5th 371, 403; see People v. Young, supra, 7 Cal.5th at p. 932.) Salmond does not argue that an objection would have been futile or that a request for admonition would have been ineffective. In addition, the prosecutor displayed the photographs Salmond complains were improper in electronic slideshows presented to the jury during opening statement and closing argument. With one exception, the slides also included the text of each comment by the prosecutor that Salmond challenges. And (reasonably) assuming the prosecutor provided copies of the slides to Salmond's trial counsel before presenting them to the jury (Salmond does not contend otherwise), Salmond's trial counsel knew the prosecutor was going to display the photographs and make the arguments to the jury. Nothing in the record suggests Salmond's trial counsel objected at any time.
The slideshow did not include the comment Salmond asserts denigrated Dr. Weinraub; the prosecutor made that comment orally during closing argument. We will discuss that argument in more detail.
3. The Prosecutor Did Not Improperly Refer to Evidence Outside the Record
Even if not forfeited, Salmond's argument the prosecutor committed misconduct in arguing Salmond had anger issues lacks merit. Because there was no obvious motive for why Salmond killed Elijah, the prosecutor argued to the jury during closing argument that Salmond assaulted Elijah after losing his temper while Jazmyne was away. One slide presented to the jury stated: "Salmond has anger issues. He was not the biological father of Elijah or Emiyah.... Salmond started abusing him. He has anger issues." The prosecutor essentially read the slide to the jury. He then referred to Jazmyne's testimony that Salmond told her Elijah died because her phone was always dead and argued that Salmond was "mad" and "jealous" because Jazmyne was not answering her phone and he "didn't like being left alone with the children."
While the prosecutor's theory may have been a little speculative, it was a permissible characterization of the evidence. A prosecutor commits misconduct by referring to "'"[s]tatements of facts not in evidence"'" (People v. Rivera (2019) 7 Cal.5th 306, 335), but "'"is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence"'" (People v. Peoples, supra, 62 Cal.4th at p. 796; see People v. Parker (2022) 13 Cal.5th 1, 78). "'"'Whether the inferences the prosecutor draws are reasonable is for the jury to decide.'"'" (People v. Shazier (2014) 60 Cal.4th 109, 127; see People v. Thornton (2007) 41 Cal.4th 391, 454.)
In context, the prosecutor was asking the jury to infer Salmond assaulted Elijah in a fit of rage and jealousy. (See People v. Avila (2009) 46 Cal.4th 680, 712, fn. 13 [prosecutor did not engage in misconduct in stating the defendant committed murder "'perhaps to impress some girls or perhaps just . . . for the pleasure of indiscriminately killing two young men in the prime of their lives,'" where the evidence did not "reveal a precise motive" for the crime].) There was evidence to support that inference. Jazmyne's testimony suggested Salmond blamed her for Elijah's death because her phone was not working, both on the day Elijah died and a few weeks later; Emiyah testified Salmond "kept on hitting" and "popped" Elijah; and Drs. Kallay, Callahan, Poukens, and Lwin testified Elijah suffered multiple, nonaccidental blunt force injuries to his abdominal area, head, and neck. The jury was free to reject the prosecutor's theory, but the prosecutor did not commit misconduct in urging the jury to adopt it. (See People v. Benton (1970) 100 Cal.App.3d 92, 98 [prosecutor did not commit misconduct by arguing to the jury that the defendant's prior quarrels with victim showed he had '"a temper that's a character defect'"]; see also People v. Johnson (1992) 3 Cal.4th 1183, 1226 ["prosecutor's 'strained argument'" from the evidence was not misconduct; "if the prosecutor's reasoning was faulty, the jury was free to reject it"]; People v. Farmer (1989) 47 Cal.3d 888, 923 ["counsel have a right to present to the jury their views on the deductions or inferences that the facts warrant," and even if counsel's "reasoning may be faulty," it is "a matter for the jury to decide"], overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
4. The Prosecutor Did Not Improperly Denigrate Salmond's Trial Counsel or Dr. Weinraub
One of the slides the prosecutor showed the jury during his closing argument included the following text, which he read out loud: "The defense tactic is to try to CONFUSE YOU. Don't let them." During his rebuttal argument, the prosecutor again stated that the defense was trying to confuse the jury and that "[t]hey just throw any possibility they can at you." Salmond argues these comments were an improper attack on his counsel's credibility.
They were not. "Although the prosecution may not attack defense counsel's integrity, it may . . . vigorously attack the defense case and argument if that attack is based on the evidence .... 'An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper.'" (People v. Hillhouse (2002) 27 Cal.4th 469, 502; see People v. Spector (2011) 194 Cal.App.4th 1335, 1405.) "It is not misconduct for a prosecutor to argue that the defense is attempting to confuse the jury," so long as the prosecutor does not otherwise "attack[ ] the integrity of defense counsel." (People v. Kennedy (2005) 36 Cal.4th 595, 626-627.)
The record shows the prosecutor was merely commenting on what he perceived were the weaknesses of the defense's evidence and defense counsel's argument; the prosecutor was not attacking defense counsel's integrity. When the prosecutor stated during this portion of his closing argument the defense was trying to confuse the jury, he was comparing the testimony of Drs. Kallay, Callahan, Poukens, and Lwin with that of Dr. Weinraub. The prosecutor then argued that, in his opinion, even if the jury believed Dr. Weinraub's testimony Elijah had preexisting chronic pancreatitis and a preexisting brain injury, the evidence still showed nonaccidental trauma caused Elijah's other injuries. When the prosecutor again stated during his rebuttal argument the defense was trying to confuse the jury, he was referring to an argument by defense counsel that Elijah's injuries were consistent with accidental trauma or a lesser included offense. The prosecutor was explaining why, in his opinion, the evidence demonstrated the only reasonable conclusion was that Salmond beat Elijah to death.
Similarly, when the prosecutor stated the defense was throwing any possibility at the jury, he was referring to a statement by defense counsel during closing argument that Emiyah's testimony about Salmond "hitting" Elijah was consistent with Salmond trying to perform CPR. The prosecutor explained why, in his opinion, counsel for Salmond's theory was "not supported by the evidence"; for example, because Gray testified that she told Emiyah to go to her room and that she did not recall Salmond performing CPR and because Elijah's injuries were not the type one would expect from CPR. Thus, it was "clear the prosecutor's comment was aimed solely at the persuasive force of defense counsel's closing argument, and not at counsel personally." (People v. Charles (2015) 61 Cal.4th 308, 328-329; see People v. Dykes (2009) 46 Cal.4th 731, 772 [prosecutor did not engage in misconduct by stating defense counsel "wants to try to confuse you about what the meaning of the special circumstance instruction is" and is "doing the best he can"]; People v. Kennedy, supra, 36 Cal.4th at p. 626 [prosecutor did not engage in misconduct by stating defense counsel's "idea of blowin' smoke and roiling up the waters to try to confuse you is you put everybody else on trial"], disapproved on another ground in People v. Williams, supra, 49 Cal.4th 405, 459; People v. Breaux (1991) 1 Cal.4th 281, 305 [prosecutor did not engage in misconduct by arguing defense counsel was trying "to create some sort of a confusion with regard to the case because any confusion at all is to the benefit of the defense"].)
Salmond also argues the prosecutor committed misconduct by denigrating Dr. Weinraub. During closing argument, the prosecutor stated Dr. Weinraub "made $29,000 off the back of Elijah, who died." "Although prosecutorial arguments may not denigrate opposing counsel's integrity, 'harsh and colorful attacks on the credibility of opposing witnesses are permissible.'" (People v. Parson (2008) 44 Cal.4th 332, 360; see People v. Johnson (2022) 12 Cal.5th 544, 629.) "'Thus, counsel is free to remind the jurors that a paid witness may accordingly be biased and is also allowed to argue, from the evidence, that a witness's testimony is unbelievable, unsound, or even a patent "lie."'" (People v. Rivera, supra, 7 Cal.5th at p. 335; see Parson, at p. 332.) The prosecutor may also "expose bias in the witness[es] by showing [their] propensity to advocate for criminal defendants even in extreme cases." (People v. Krebs (2019) 8 Cal.5th 265, 343; see People v. Zambrano (2007) 41 Cal.4th 1082, 1165, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390.)
In context, the prosecutor's comment was a permissible means of trying to undermine Dr. Weinraub's credibility. Dr. Weinraub testified that, in nearly every criminal case where he had testified as an expert witness, he had testified for the defendant. The prosecutor's comment Dr. Weinraub made money off the back of Elijah followed a comment that Drs. Callahan, Kallay, Lwin, and Poukens were not paid for their testimony. The prosecutor contrasted the facts that Dr. Kallay personally treated Elijah and that Drs. Lwin and Poukens personally conducted autopsies on Elijah's body and brain with the fact that Dr. Weinraub only reviewed medical records and spoke to defense counsel. And the prosecutor argued why, in his opinion, Dr. Weinraub's testimony Elijah's injuries could have been caused by Emiyah falling on him was not consistent with the injuries observed by the other expert witnesses. While harsh, the prosecutor's isolated comment was within the bounds of permissible advocacy. (See People v. Rivera, supra, 7 Cal.5th at p. 334 [prosecutor did not engage in misconduct by stating the defendant's expert witness was "taking money and trying to arrive at a conclusion that the money was paid to secure"]; People v. Arias (1996) 13 Cal.4th 92, 162 [prosecutor did not engage in misconduct by describing an expert witness "as a 'so-called expert, so-called because a real scientist would never stretch any [principle] for a buck'"]; People v. Spector, supra, 194 Cal.App.4th at p. 1407 [prosecutor did not engage in misconduct by stating, when referring to the defendant's expert witness, "You can write a check for $419,000 to hire paid-to-say witnesses to get you out of what you have done"].)
5. Salmond Has Not Shown His Counsel Rendered Ineffective Assistance in Failing To Object to the Prosecutor's Repeated Display of Photographs
Finally, Salmond contends the prosecutor committed misconduct by repeatedly displaying in the prosecutor's slideshow, during opening statement and closing argument, photographs of Elijah and a booking photograph of Salmond. A prosecutor's "appeals to the prejudice, passions or sympathy of the trier of fact" is misconduct. (People v. Lashley (1991) 1 Cal.App.4th 938, 952; see People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 788-789.) The prosecutor's display of the photographs of Elijah did not constitute an improper appeal to the jury's prejudice, passion, emotion, or sympathy. The deck of slides included a few different photographs of Elijah before the incident and a few photographs of Elijah in the hospital after the incident. It is true, as Salmond complains, the prosecutor displayed the photographs (particularly those showing Elijah close to death in the hospital) on several slides. As the People point out, however, all the photographs were properly admitted into evidence to show the nature and scope of Elijah's injuries. Moreover, one of the primary issues at trial was whether Elijah's injuries could have been caused by something other than an assault. (See People v. Davenport (1995) 11 Cal.4th 1171, 1214 [exhibits "were properly admitted; hence the prosecutor did not commit misconduct in either referring to or emphasizing them" during opening statement and closing argument]; People v. Wash (1993) 6 Cal.4th 215, 256-257 [prosecutor did not commit misconduct by displaying images of the crime scene and the victims during opening statement because "it is well settled that the 'use of photographs . . . intended later to be admitted in evidence, as [a] visual . . . aid[ ] is appropriate"].)
The prosecutor's repeated use of Salmond's booking photograph, however, is more troubling. Salmond says that in these pictures he "looks rather crazed" and that the photograph "looks exactly like a mugshot," a characterization the People do not dispute. The People introduced the photograph at trial for a limited purpose: to show Salmond's physical appearance during his third interview with Officer Avalos. While it would have been permissible for the prosecutor to display the photograph when discussing Salmond's statements to Officer Avalos, the prosecutor gratuitously included the photograph on most of the slides presented to the jury during opening statement and closing argument. For example, the prosecutor displayed the photograph on slides discussing the elements of the crimes and on slides discussing certain evidence, such as Emiyah's testimony and Elijah's injuries. On one slide, the prosecutor imposed an arrow from the word "Murder" to the photograph; on another, the prosecutor titled the slide "MURDERER AND CHILD ABUSER" and imposed a bright red arrow directed at Salmond's photograph. It is hard to see why the prosecutor included the photograph of Salmond in so many of the slides and used the photograph in conjunction with such accusatory language, other than to appeal to the jurors' prejudices. (See, e.g., Watters v. State (Nev. 2013) 313 P.3d 243, 245-248 [defendant did not receive a fair trial where the prosecutor displayed to the jury an image of the defendant's booking photograph with the word "GUILTY" imposed over the photograph]; In re Glasmann (Wash. 2012) 286 P.3d 673, 705 [prosecutor committed misconduct by "intentionally present[ing] the jury with copies of [the defendant's] booking photograph altered by the addition of phrases calculated to influence the jury's assessment of [the defendant's] guilt and veracity"].)
It is not clear what Salmond means by "crazed." In the photograph Salmond does appear alarmed or startled. The photograph depicts Salmond's head and upper shoulders, as one would expect from a mugshot. In addition, Salmond has a degenerative eye condition called keratoconus and has noticeable damage to the cornea of one eye.
The photograph was part of a larger document prepared by the Los Angeles Police Department, which the court admitted into evidence. In addition to containing the photograph, the document listed certain information about Salmond, including his height and weight. Counsel for Salmond initially objected to the introduction of the document, but it appears she withdrew her objection after the People explained how they intended to use it. Salmond does not argue that the trial court erred in admitting the document as an exhibit or that his trial attorney provided ineffective assistance by failing to object to its admission.
But we need not decide whether the prosecutor committed misconduct in repeatedly displaying these photographs to the jury because, as discussed, counsel forfeited any argument based on such misconduct by failing to object at trial. Which is why Salmond argues his counsel rendered ineffective assistance by failing to object to the prosecutor's use of the photographs.
"'"To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant."'" (People v. Rices (2017) 4 Cal.5th 49, 80; see People v. Johnson (2015) 60 Cal.4th 966, 979-980.) "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (In re Gay (2020) 8 Cal.5th 1059, 1086; see Rices, at p. 80.) "'"A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel."'" (People v. Brown (2014) 59 Cal.4th 86, 109; see People v. Gamache (2010) 48 Cal.4th 347, 382.) "On direct appeal, if the record '"sheds no light on why counsel acted or failed to act in the manner challenged,"' we must reject the claim '"unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation."'" (People v. Caro (2019) 7 Cal.5th 463, 488; see People v. Johnsen (2021) 10 Cal.5th 1116, 1165.)
Whether trial counsel's failure to object to the prosecutor's use of the photographs in the slideshow fell below an objective standard of reasonableness (or, in Salmond's words, "did not make sense") is a close issue. The prosecutor used the booking photograph of Salmond an awful lot of times (by our count, on 46 out of 84 slides). And yet, "in the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object" to instances of prosecutorial misconduct "is inherently a matter of trial tactics not ordinarily reviewable on appeal." (People v. Frierson (1991) 53 Cal.3d 730, 749.)
During her closing argument trial counsel for Salmond argued to the jury (as Salmond argues on appeal) that Officer Avalos coerced him into admitting he hurt Elijah and therefore that his inconsistent statements were not probative of his guilt. In support of her argument, she stated that Salmond "hadn't eaten," "hadn't slept in days," and "was addicted to meth" and that his voice sounded "different . . . than in the prior interviews." Counsel for Salmond may have reasonably (even if ultimately incorrectly) believed the prosecutor's repeated use of a "crazed" booking photograph of Salmond supported her argument about Salmond's state of mind during the interview. (See People v. Welch (1999) 20 Cal.4th 701, 764 ["defense counsel could have legitimately decided that it was tactically wise not to interrupt the prosecutor but to respond to the [improper statements] during his own closing argument"]; People v. Kelly (1992) 1 Cal.4th 495, 540 ["An attorney may choose not to object" to instances of prosecutorial misconduct "for many reasons, and the failure to object rarely establishes ineffectiveness of counsel."].)
In addition, the law governing whether the prosecutor committed misconduct was not entirely clear. While, as stated, the prosecutor's conduct-which was similar to conduct that courts in other jurisdictions have criticized- was troubling, Salmond has not cited any California cases holding a prosecutor's repeated display of a defendant's booking photograph during opening statement or closing argument constitutes misconduct. Trial counsel's failure to advocate for, or make objections based on, potentially novel applications of law generally does not support a claim of ineffective assistance. (See Engle v. Isaac (1982) 456 U.S. 107, 134 ["[w]e have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney"; it "does not insure that defense counsel will recognize and raise every conceivable constitutional claim"]; People v. Upsher (2007) 155 Cal.App.4th 1311, 1329 [counsel did not render ineffective assistance in failing to take certain actions regarding the defendant's prior conviction, given "the unsettled state of the law" on the issue]; People v. Foster (2003) 111 Cal.App.4th 379, 385 [defendant could not establish his "counsel's failure to object to the prosecutor's questions in this case 'fell below an objective standard of reasonableness,'" given there was "no California authority establishing whether or not the questions were proper"]; State v. Brown (Wash. App. 2011) 245 P.3d 776, 778 ["Many state and federal cases have . . . concluded that an attorney's failure to raise novel legal theories or arguments is not ineffective assistance."]; see also People v. Riel (2000) 22 Cal.4th 1153, 1203 ["trial counsel fought what they reasonably believed were the genuine fights at trial"; therefore, "we cannot find counsel acted ineffectively in selecting which objections to make and which not to make"].)
But even if counsel for Salmond's performance was deficient on this point, Salmond has not shown any such deficiency prejudiced his defense. As discussed, all the photographs were admitted into evidence; the jury had seen them during trial. The People introduced dozens of other photographs of Elijah's injuries, including additional photographs of Elijah in the hospital shortly before he died and graphic photographs of the injuries to Elijah's organs and skull taken during the autopsies. Salmond was also present in court during the trial, and it is unclear from the record whether there was any disparity between his appearance at trial and his appearance in the booking photograph, and if so, how much of a disparity. It is not reasonably probable Salmond would have obtained a more favorable result had the court instructed the prosecutor to remove from the deck of slides certain photographs the jury had already seen. (See People v. Coddington (2000) 23 Cal.4th 529, 624 [counsel did not render ineffective assistance in failing to object to the admission of evidence where the defendant's claim was "speculative . . . as to the ruling the court might have made"], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Salmond also objects to a few isolated misstatements the prosecutor made during closing argument. At one point, the prosecutor stated: "[Salmond] didn't like being left alone with the children. Remember when Emiyah said that in her forensic interview at four?" At another point, he said: "The defense was trying to get Dr. Weinraub to agree that he had chronic pancreatitis. He wouldn't, because Elijah didn't have chronic pancreatitis." Salmond is correct that these statements were not fair characterizations of the record. Salmond's counsel, however, did not provide ineffective assistance because she responded to these points during her closing argument by discussing Emiyah's statements and Dr. Weinraub's testimony. (See People v. Welch, supra, 20 Cal.4th at p. 764.) And it is not reasonably probable Salmond would have obtained a better outcome had his counsel interrupted the prosecutor to object to these isolated statements.
C. Section 1385, Subdivision (c), Does Not Apply to a Sentence Imposed Under the Three Strikes Law
1. Procedural Background
Citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and recently amended section 1385, subdivision (c), Salmond filed a motion prior to sentencing to dismiss his serious or violent felony conviction under the three strikes law. As relevant here, Salmond asked the trial court to dismiss his prior conviction under section 1385, subdivision (c), because he maintained several enumerated mitigating factors listed in that provision applied to him. (See § 1385, subd. (c)(2)(A)-(I).)
At the sentencing hearing, counsel for Salmond raised section 1385, subdivision (c). The trial court asked, "Does that even apply here?" Counsel for Salmond said that she recognized "section 1385, subdivision (c), applies primarily to enhancements" and that "the three strikes law is not an enhancement, but a sentencing scheme ...." She stated, however, that even if section 1385, subdivision (c), did not technically apply, the factors enumerated in the amended statute were still relevant to the court's analysis under section 1385, subdivision (a), and Romero. The court denied the motion, without addressing section 1385, subdivision (c).
The People assert that, given his trial counsel's admission, Salmond forfeited his argument the trial court should have considered whether to dismiss the prior conviction under section 1385, subdivision (c). The record is ambiguous on this point. We assume, without deciding, Salmond adequately raised this issue in the trial court.
2. Section 1385, Subdivision (c), Does Not Apply
Senate Bill No. 81 (2021-2022 Reg. Sess.) "amended section 1385 by requiring that a trial court 'dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by an initiative statute.'" (Olay, supra, 98 Cal.App.5th at p. 63; see § 1385, subd. (c)(1).) Section 1385, subdivision (c)(2), lists several mitigating circumstances and states: "In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances . . . are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety."
Salmond contends the trial court erred in declining to consider whether to dismiss his prior serious or violent felony conviction under section 1385, subdivision (c), and asks us to direct the court to exercise its discretion. Section 1385, however, subdivision (c), does not apply to alternate penalty provisions like the three strikes law.
"'[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citation.] In determining that intent, we first examine the words of the respective statutes: 'If there is no ambiguity in the language of the statute, "then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs." [Citation.] "Where the statute is clear, courts will not 'interpret away clear language in favor of an ambiguity that does not exist.'"'" (People v. Coronado (1995) 12 Cal.4th 145, 151; see Burke, supra, 89 Cal.App.5th at p. 242; People v. Lipscomb (2022) 87 Cal.App.5th 9, 17.)
As Salmond acknowledges, every court that has considered the issue has held that, because "subdivision (c) of section 1385 applies only to an 'enhancement,'" and because the three strikes law is not an enhancement, section 1385, subdivision (c), does not apply to the three strikes law. (Burke, supra, 89 Cal.App.5th at p. 244; see People v. Dain, supra, 99 Cal.App.5th at p. 411; Olay, supra, 98 Cal.App.5th at pp. 66-69; People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn. 2.) We agree with these courts. An enhancement "has a well-established technical meaning in California law"-"'"'an additional term of imprisonment added to the base term'"'"-and does not include an alternate sentencing scheme like the three strikes law. (Dain, at p. 410; accord, Olay, at pp. 65-66; Burke, at p. 243 &fn. 3; see Romero, supra, 13 Cal.4th at p. 527 [the three strikes law "articulates an alternative sentencing scheme for the current offense rather than an enhancement"]; People v. Frutoz (2017) 8 Cal.App.5th 171, 174, fn. 3 [same]; see also Association of Deputy District Attorneys for Los Angeles County v. Gascon (2022) 79 Cal.App.5th 503, 542 ["the Legislature (and the voters) enacted the three strikes law to create an alternative sentencing scheme when the defendant has qualifying prior felony convictions"], review granted Aug. 31, 2022, S275478.)
Salmond's primary argument is that the Legislature must have intended "enhancement" to include alternative sentencing schemes because, if it did not, two provisions of subdivision 1385, subdivision (c), would be surplusage. The first alleged surplusage is in section 1385, subdivision (c)(1), which states the court shall dismiss an enhancement if it is in the furtherance of justice "except if dismissal of that enhancement is prohibited by any initiative statute." According to Salmond, if the term "enhancement" refers to the well-established meaning of an additional term of imprisonment added to the base term, there are no initiative statutes that prohibit the dismissal of enhancements. On the other hand, according to Salmond, if the term "enhancement" includes allegations that increase the penalty under alternative sentencing schemes, there are initiative statutes that prohibit dismissal of an "enhancement." Salmond points to the one strike law, which states in subdivision (g) of section 667.61 that, "[n]otwithstanding Section 1385 or any other law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section." (See People v. Mancebo (2002) 27 Cal.4th 735, 741 [section 667.61, the one strike law, "sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force"].)
The second surplusage, according to Salmond, is in section 1385, subdivision (c)(2)(G), which lists as a mitigating circumstance that "the defendant was a juvenile when they committed . . . any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement ...." (Italics added.) According to Salmond, if "enhancement" refers to the well-established meaning, there are no "prior juvenile adjudication[s] that trigger" enhancements. On the other hand, according to Salmond, if the term "enhancement" includes allegations that increase the penalty under alternative sentencing schemes, there are prior juvenile adjudications that may trigger an enhancement; namely, a prior juvenile adjudication may constitute a serious or violent conviction under the three strikes law. (See §§ 667, subd(d)(3), 1170.12, subd. (b)(3).)
It may be that, under existing law, the specific provisions of subdivisions (c)(1) and (c)(2)(G) Salmond identifies are not applicable to any enhancements. And yet, the court in People v. McDowell (2024) 99 Cal.App.5th 1147 rejected an argument identical to Salmond's. As the court in McDowell explained, "the canon against surplusage, like other canons of construction, is an interpretative aid; it is not absolute and '"will 'be applied only if it results in a reasonable reading of the legislation.'"'" (McDowell, at p. 1155; see Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858, 875.) Salmond's interpretation of the term "enhancement" as including an alternative sentencing scheme is not reasonable because it "is at odds with the term's established legal meaning and the Penal Code's instruction that we follow that established meaning." (McDowell, at p. 1155; see § 7, subd. (16) ["[w]ords and phrases must be construed according to the context and the approved usage of the language"]; In re Friend (2021) 11 Cal.5th 720, 730 ['"It is a well-recognized rule of construction that after the courts have construed the meaning of any particular word, or expression, and the legislature subsequently undertakes to use these exact words in the same connection, the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts.'"]; Olay, supra, 98 Cal.App.5th at p. 65 ["when 'a term has developed a particular meaning in the law, we generally presume the legislative body used the term in that sense'"].) Notwithstanding the canon against surplusage, "we will not conclude that the Legislature intended to give the word 'enhancement' a different and much broader meaning without any express indication in the text of the statute." (McDowell, at p. 1155; see Olay, at p. 67 ["we are skeptical the Legislature would have expressed an intent to reject the well-established legal meaning of 'enhancement' in such a roundabout manner by obliquely referencing 'juvenile adjudications' as one of the relevant mitigating circumstances"].)
In McDowell the court held section 1385, subdivision (c), does not apply to section 236.1, which "proscribes and sets forth the penalties for different kinds of human trafficking offenses." (McDowell, at p. 1153.)
Salmond also argues the legislative history of Senate Bill No. 81 supports his contention section 1385, subdivision (c), applies to the three strikes law. "Resort to a statute's legislative history is appropriate only if the statute is reasonably subject to more than one interpretation or is otherwise ambiguous." (Ste. Marie v. Riverside County Regional Park &Open-Space Dist. (2009) 46 Cal.4th 282, 290; see People v. Reid (2016) 246 Cal.App.4th 822, 830 ['"Where [the Legislature] has manifested its intention, [courts] may not manufacture ambiguity in order to defeat that intent.'"].) And as discussed, section 1385, subdivision (c), is not ambiguous. But even if we considered the legislative history of Senate Bill No. 81, it would not support Salmond's proposed interpretation.
As the court recognized in Olay, supra, 98 Cal.App.5th at pages 68 to 69, the Senate Committee of Public Safety stated in a March 2021 Analysis that the purpose of Senate Bill No. 81 was to "codif[y] a recommendation made by the Committee on the Revision of the Penal Code [(CRPC)] to improve fairness in sentencing and help ensure that penalties more closely reflect the circumstances of the crime." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 81 (2021-2022 Reg. Sess.) Mar. 16, 2021, p. 3.) It is true that the CRPC recommendations "repeatedly refer[ ] to 'Strikes' as enhancements rather than using the technical legal meaning and does not separate 'Strikes' from inclusion in its recommendation." (Burke, supra, 89 Cal.App.5th at p. 243, fn. 3; see Com. on the Revision of Pen. Code, 2020 Annual Report and Recommendations (Feb. 2021) at p. 38 ["[t]he most common enhancements include . . . the Three Strikes law"], 42 ["the most common type of sentencing enhancement across other jurisdictions are enhancements based on prior convictions, including Three Strikes and habitual offender statutes"].) In discussing the CRPC's recommendations, the Analysis of the Senate Committee of Public Safety similarly stated that "[o]ne of the Committee's recommendations is to provide guidance for judges considering sentence enhancements" and referred to the three strikes law's disproportionate impact on people of color and people suffering from mental illness. (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 81, at p. 5.)
A June 2021 analysis of Senate Bill No. 81 by the Assembly Committee on Public Safety, however, clarified that an "enhancement" differs from "an alternative penalty scheme" like the three strikes law. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 81, as amended Apr. 27, 2021, at pp. 5-6.) In particular, the analysis stated: "This bill enacts a presumption that it is in the furtherance of justice to dismiss an enhancement when the [mitigating] circumstances, such as mental health issues, prior victimization or childhood trauma, disparate racial impact, the allegation of multiple enhancements, or a sentence exposure of over 20 years"-i.e., the mitigating circumstances codified in section 1385, subdivision (c)(A)-(E)-"are present." (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 8, at p. 5.) The analysis continued: "An enhancement differs from an alternative penalty scheme. An alternative penalty scheme does not add an additional term of imprisonment to the base term; instead, it provides for an alternate sentence for the underlying felony itself when it is proven that certain conditions specified in the statute are true.... These include the Three Strikes Law (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527) . . . among others. The presumption created by this bill applies to enhancements, but does not encompass alternative penalty schemes." (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 8, at pp. 5-6, italics added.) As the court in Olay stated, a "more unambiguous statement of the Legislature's intent to adopt the legal meaning of enhancement for section 1385, subdivision (c) can hardly be imagined." (Olay, supra, 98 Cal.App.5th at p. 67.)
The CRPC may have initially intended its recommendations to apply to the three strikes law. But our role is to ascertain the intent of the Legislature, not the committee that makes recommendations to the Legislature. "If . . . the Legislature intended to depart from existing law by adopting a more expansive understanding of th[e] term [enhancement], presumably . . . the legislative history would not have expressed the exact opposite: an intent to adopt the narrower, legal meaning of the term enhancement" defined in the case law. (Olay, supra, 98 Cal.App.5th at p. 69; see McDowell, supra, 99 Cal.App.5th at p. 1156.) Because section 1385, subdivision (c), does not apply to the three strikes law, the trial court did not err in declining to consider whether to dismiss Salmond's prior conviction under that provision.
DISPOSITION
The judgment is affirmed.
We concur: MARTINEZ, J. RAPHAEL, J. [*]
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.