Opinion
C086157
10-25-2019
THE PEOPLE, Plaintiff and Respondent, v. GUYLAND DESHEAY WASHINGTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F04826)
When Alyssa H. went to work on July 11, 2014, she left her one-year-old daughter, Leila, in the sole care and custody of her boyfriend, defendant Guyland Desheay Washington. Several hours later, Leila was dead. Due to the significant amount of bruising on Leila's body, the attending physician at the hospital suspected child abuse. Defendant was arrested and charged with murder (Pen. Code, § 187, subd. (a); count one) and assault resulting in the death of a child under eight years of age, also known as "child homicide" (§ 273ab; count two). After trial, a jury found defendant guilty of both counts. The court sentenced defendant to 25 years to life for the child homicide and stayed the sentence for the murder conviction under section 654.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant argues (1) defendant's counsel rendered ineffective assistance by failing to object to testimonial hearsay evidence; (2) the trial court violated his right to a jury trial by improperly dismissing a juror midtrial; (3) the trial court violated due process by failing to give a balanced jury instruction on defendant's out-of-court statements; and (4) the child homicide statute (§ 273ab) is facially unconstitutional.
Although we find no reversible error, we have discovered discrepancies between the trial court's oral pronouncement of judgment and the sentencing minute order with respect to the second degree murder conviction (count one) that require correction. We will modify the judgment to clearly describe the sentence imposed for count one, and direct the trial court to correct its minute order and amend the abstract of judgment. We affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution's Case-In-Chief
Alyssa began dating defendant in or about December 2013. Although the relationship started off well, they soon began having arguments, some of which turned physical. Defendant usually was the aggressor when their arguments became physical.
Alyssa's infant daughter, Leila, was a source of tension between defendant and Alyssa. According to Alyssa, defendant was jealous of Leila. In text messages before Leila's death, defendant told Alyssa that she was "overprotective" of Leila and that she did not acknowledge or appreciate him or treat him like family.
Leila, who was born in May 2013, was approximately one year old.
When Alyssa went to work, she usually asked relatives to watch Leila. However, on a few occasions, when her relatives were unavailable, Alyssa asked defendant to watch Leila. One time, in late June 2014, after defendant watched Leila, Alyssa and her grandmother noticed bruising on Leila. Alyssa's grandmother said it looked as if someone had picked Leila up and held her very tightly, leaving fingerprints. When Alyssa asked defendant about the bruising, defendant denied causing the bruises, and said that Leila had fallen while playing under the dinner table. Alyssa was skeptical of defendant's explanation, but she continued to see defendant and let him watch Leila.
On July 10, 2014, the day before Leila's death, Alyssa's relatives watched Leila while Alyssa was at work. None of Alyssa's relatives reported seeing any bruising or visible injuries on Leila, although they did notice that Leila was "fussy" and appeared to be teething.
Later that evening, Alyssa took Leila to defendant's house, where they stayed the night. Alyssa did not notice any bruising or injuries when she changed Leila's diaper just before putting Leila down for the night.
On July 11, the following morning, Alyssa left Leila in defendant's care and went to work. Around 3:00 in the afternoon, defendant texted Alyssa to tell her that Leila had fallen off the couch. When Alyssa called, defendant told her that he had given Leila some medicine and that she was a little red, but otherwise okay.
Alyssa arrived to pick up Leila shortly before 4:30 p.m. Defendant first brought out Leila's diaper bag and belongings and put them in Alyssa's vehicle. He did not say anything about Leila's well-being. Defendant then carried Leila out to the car, holding her against his chest as though she was asleep. As defendant started to put Leila into her car seat, Alyssa noticed that Leila was unresponsive and appeared not to be breathing. Alyssa began "freaking out" and demanded to know what had happened. Defendant replied that he did not know.
Over defendant's protest, Alyssa called 911 while she drove Leila to a nearby fire station, where Leila was loaded into an ambulance and transported to the UC Davis Medical Center. Emergency personnel described Alyssa's demeanor as distraught and very concerned. Defendant, in contrast, showed very little emotion.
Leila arrived at the hospital under active CPR but without a pulse or respirations. Additional resuscitation attempts proved unsuccessful. At 5:14 p.m. Leila was pronounced dead.
Dr. Cheryl Vance, the chief of pediatric emergency medicine, was Leila's attending physician at the hospital. Dr. Vance reported that Leila's physical exam was "remarkable" for the significant amount of bruising on her body, including a linear bruise, consistent with a handprint, on the right thigh; bruises on the right hip, right buttock, and right lateral neck; bruises consistent with fingerprints along the jawline; a contusion over the left clavicle and left shoulder; and a contusion on the left lateral thigh. Dr. Vance also observed injuries to Leila's rectal area, including an erythematous contusion (a red bruise on the buttock and perianal skin), possible tears at 9:00 and 12:00, and anal laxity. Dr. Vance noted blood in Leila's diaper. Suspecting possible child abuse, Dr. Vance reported her observations to the hospital's "crisis team," which contacted law enforcement.
Police Investigation
Law enforcement placed defendant in the back of a patrol car for transport to police headquarters. Without defendant's knowledge, an in-car camera recorded him talking to himself while he waited in the back of the car. The camera recorded defendant asking God for forgiveness: "God, please forgive me for anything that I've done upon you, God. I know I couldn't have killed her by hittin' her head on that wall, God. Please help me." The camera also recorded defendant saying, "I hurt that little girl, man."
At the police station, after waiving his Miranda rights, defendant was interrogated by the police. The interrogation lasted approximately 12 hours. Throughout the interrogation, defendant insisted that Leila's death was an accident caused by her falling off the couch. Defendant told the detectives that Leila was bowlegged and frequently fell and injured herself.
Miranda v. Arizona (1966) 384 U.S. 436 .
A video of portions of defendant's interrogation was played for the jury.
However, several hours into the interview, when confronted with the in-car recording, defendant admitted that, in addition to Leila falling off the couch, he "accidentally" hit Leila in the head with a cabinet door. Later still, he admitted that he also "accidentally" kneed Leila in the back causing her head to hit the wall. Defendant admitted he was "very rough" with Leila, but insisted he did not intentionally hurt her.
Medical Expert Testimony
Dr. Jason Tovar, the chief forensic pathologist at the coroner's office, performed Leila's autopsy on July 12, 2014. Dr. Tovar observed numerous bruises on Leila's body, including multiple places on her head, face, neck, jaw, chest, extremities, back, buttocks, perianal, and vulvar regions. Specifically, he observed: petechiae hemorrhaging in the right eye; bruises on the right and left side of the neck; a bruise on the forehead and right side of the head; bleeding in the soft tissues on the backside of the head extending from the lower portion of the back of the head and onto the neck; a fracture of the right outer surface of the skull; subdermal bleeding in the back of the head near the floor of the skull and a fracture extending into that location; bleeding in the soft tissue near the right eye; bruises on the right and left cheeks; bruising on the chest, upper chest, sternum, upper back, left forearm, and left shoulder; and numerous abrasions and contusions of varying shapes and sizes on the lower back, buttocks, and the side of both thighs.
Dr. Tovar identified three rib fractures. According to Dr. Tovar, the rib fractures occurred on top of older rib fractures, which were days to weeks old and in the process of healing. Dr. Tovar also noted a repetitive injury to the area under Leila's jawline.
Dr. Tovar observed stretch-type abrasions on the right and left labia, as well as tears in the mucosa, with bleeding in the soft tissue in the perianal area. With respect to the injuries to Leila's anus, Dr. Tovar could not determine whether there had been any penetration prior to her death. He explained that the injuries could have been caused by a forceful impact (e.g., a punch or fist) in the buttock region.
While there was a "strong possibility" that asphyxia played a part in Leila's death, Dr. Tovar stated that Leila's cause of death was blunt force trauma to her head and brain associated with the fracture on the back of the head. The broad distribution of injuries suggested that they were caused by multiple acts of intentionally inflicted trauma, rather than a single impact or fall. As he succinctly explained to the jury, "[A] simple fall wouldn't account for all those findings."
Leila's autopsy included an evaluation by a consulting neuropathologist. Dr. Claudia Grecco conducted the initial neuropathology review. Dr. Grecco reported bleeding in various locations on the brain, some mild edema, and retinal hemorrhaging and injuries to the optic nerves.
Because Dr. Grecco had retired and was not available to testify at trial, the People retained a second neuropathology expert, Dr. Keng-Chih Su, to testify at trial as the prosecution's neuropathology expert. Dr. Su reviewed Dr. Grecco's report, but reached his own, independent conclusion regarding Leila's neuropathology based on the same underlying hard evidence (autopsy photos, slides, and smears) that Dr. Grecco reviewed in preparing her report.
Based on his review, Dr. Su found that Leila suffered (1) bilateral retinal hemorrhaging, (2) hemorrhaging (bleeding) of the soft tissue around the eyes; (3) multiple subcutaneous hemorrhages of the scalp; and (4) a large area of subcutaneous hemorrhage at the posterior neck with a skull fracture. Like Dr. Tovar, Dr. Su opined that Leila's death was caused by repeated abusive head trauma from multiple directions, and not a single fall from a couch onto a hard floor.
Defense Case
Defendant testified in his own defense. He claimed that Leila was clumsy and had many marks and bruises because she fell down frequently. Defendant admitted that he accidentally hit Leila with a cabinet door while he was cleaning his house. However, the defense maintained throughout trial that defendant never intentionally hurt Leila and that Leila's fatal injury occurred when she accidentally fell off the couch and hit her head on a hard, jagged lamp base.
Defendant called family members and a friend as character witnesses. These witnesses testified that defendant was calm and laid back, and incapable of inflicting Leila's injuries. In contrast, defendant attacked Alyssa's character, describing her as a lying, abusive, substance-using, careless mother.
The defense did not call any experts to contest the medical testimony regarding the cause of Leila's fatal injuries.
Verdict and Sentencing
The jury found defendant guilty of child homicide (§ 273ab) and second degree murder (§ 187, subd. (a)). The court sentenced defendant to 25 years to life for the child homicide charge, but stayed the sentence for the murder conviction under section 654.
DISCUSSION
I
Ineffective Assistance of Counsel
Defendant contends that his counsel was incompetent in failing to object to hearsay testimony about Dr. Grecco's neuropathology report. We disagree.
A. Additional Background
The prosecution's theory at trial was that defendant intentionally harmed Leila, causing a head injury that led to her eventual death. To support this theory, the prosecution relied on testimony from medical experts Dr. Tovar and Dr. Su.
At a pretrial hearing, the prosecutor explained that Dr. Su was retained as a neuropathology expert because the original neuropathologist, Dr. Grecco, had retired and was unable to testify at trial. Defense counsel, recognizing the potential problem of facing unconfronted hearsay evidence, objected to the admission of any expert testimony which relies on "testimonial" hearsay evidence. In response, the prosecutor assured the court that Dr. Su "didn't just evaluate Dr. Grecco's prior neuropathological evaluation, he had access to all of the photographs, the slides, . . . the brain cuts—all of the hard copy physical evidence that [Dr. Grecco] reviewed," and "made his [own] independent diagnoses." The prosecutor added, "It happened to be consistent with Dr. Grecco, but it was not based on Dr. Grecco['s assessment]. It's based on his own assessment."
The court asked whether Dr. Grecco was present during the autopsy. The prosecutor said she was not. The court then asked, "And Dr. Su, likewise, was not present during the autopsy and did his work subsequent and used the actual slides that were preserved from the autopsy to form his own opinion; is that right?" The prosecutor responded, "Yes." Based on the prosecutor's representations, the court denied defendant's objection as moot, but invited defendant to renew his objection should the issue come up again at trial.
At trial, both Dr. Tovar and Dr. Su testified that Dr. Grecco found swelling (edema) in Leila's brain. Defense counsel did not object to this testimony.
Dr. Tovar testified that he considered Dr. Grecco's neuropathology report in reaching the conclusions in his autopsy report. Dr. Tovar testified that he considered Dr. Grecco's findings of (1) bleeding in Leila's brain, (2) edema (swelling) in Leila's brain, (3) retinal hemorrhaging (bleeding) in Leila's eye, and (4) injuries to the optic nerves.
Dr. Su testified that he reached his own, independent conclusion regarding Leila's neuropathology based on the same evidence that Dr. Grecco reviewed in preparing her report. However, he admitted that he reviewed Dr. Grecco's report before preparing his own. During his testimony, after confirming the presence of subdural hematoma (bleeding) in Leila's brain, the prosecutor specifically asked whether he saw evidence of brain swelling. Dr. Su responded, "Okay. Yeah. Besides the subdural hemorrhage in Dr. Grecco's report, she also mention[s] . . . brain swelling. It's called edema."
B. Analysis
On appeal, defendant argues that reliance by Dr. Tovar and Dr. Su on Dr. Grecco's finding of brain swelling was testimonial hearsay, which would have been excluded had defense counsel timely objected to it. Because his counsel failed to object, defendant argues he was denied effective assistance of counsel.
To establish ineffective assistance of counsel, a defendant must show by a preponderance of the evidence both that (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218; Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 695-696] (Strickland).)
In measuring counsel's performance, judicial review is highly deferential. (Strickland, supra, 466 U.S. at p. 689; In re Andrews (2002) 28 Cal.4th 1234, 1253.) "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." (Strickland, supra, 466 U.S. at pp. 689-690.)
Where, as here, the strategic reasons for challenged decisions are not apparent from the record, we will not find ineffective assistance of counsel unless there could have been " ' "no conceivable tactical purpose" ' " for counsel's acts or omissions. (People v. Earp (1999) 20 Cal.4th 826, 896.) Because the decision whether to object during trial is inherently tactical, a mere failure to object will seldom establish ineffective assistance of counsel. (People v. Freeman (1994) 8 Cal.4th 450, 490-491; People v. Ghent (1987) 43 Cal.3d 739, 772.)
Here, defendant has failed to carry his burden to show counsel's performance was deficient. We can conceive of legitimate, tactical reasons why a reasonably competent attorney could have decided not to object to the hearsay evidence of Dr. Grecco's findings. As to Dr. Tovar, defense counsel could have decided not to object because an objection would have drawn unnecessary attention to Dr. Grecco's findings, and because defense counsel knew that Dr. Su would testify about his own neuropathology findings, which were similar to Dr. Grecco's. As to Dr. Su's testimony, defense counsel could have decided not to object because the brain swelling was a minor part of Dr. Su's overall medical testimony, and because an objection could have allowed Dr. Su to elaborate on his own findings (which were based on the same evidence that Dr. Grecco reviewed). We cannot say that there is no conceivable tactical purpose for the decision not to object. Accordingly, defendant has failed to overcome the presumption that counsel's decision was sound trial strategy or otherwise within the range of reasonable professional assistance.
But even if we were to assume defense counsel's performance was incompetent, defendant has failed to show he was prejudiced by it. To establish prejudice, it is not enough to show that counsel's errors had some conceivable effect on the outcome of the proceeding; the defendant must show that there is a reasonable probability that, but for counsel's failings, the outcome would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (Id. at p. 218.)
Defendant has failed to show a reasonable probability that, but for the hearsay evidence of some mild brain swelling, the result in this case would have been different. As discussed above, Dr. Grecco's finding of some mild brain swelling was a minor part of the overall medical evidence and was not central to the experts' opinions that Leila's injuries were intentionally inflicted.
During his autopsy, Dr. Tovar observed numerous bruises on Leila's body, including multiple injuries to her head, face, neck, jaw, chest, extremities, back, and buttocks. He also found multiple rib and skull fractures, petechiae hemorrhaging in her right eye, stretch-type abrasions on her labia, as well as tears in the mucosa with bleeding in the perianal area. Based on the number of injuries, the nature of the injuries, the location of the injuries (some of which were in obscure locations), the amount and type of force required to produce such injuries, and the presence of newer injuries on top of older ones, Dr. Tovar opined that Leila's injuries were caused by multiple acts of intentional abuse, rather than a single, accidental fall. Dr. Grecco's finding of mild brain swelling was additional evidence of head trauma, but it was not an important part of Dr. Tovar's opinion as to how the injuries occurred.
The same is true for Dr. Su, who agreed with Dr. Tovar that Leila's injuries were caused by repeated abusive head trauma from multiple directions, rather than a single, accidental fall. Dr. Su based his opinion on the nature, location, and severity of the numerous injuries to Leila's head, combined with the retinal hemorrhaging and soft tissue injury around her eyes. He referred to the brain swelling merely as an additional "abnormal" neuropathology finding. It was not critical to his opinion on the cause of Leila's injuries.
In addition to the nonhearsay testimony of Dr. Tovar and Dr. Su, the jury heard the testimony of Dr. Vance, the attending emergency room physician, that the significant amount of bruising on Leila's body and the injuries to Leila's rectal area were consistent with child abuse. Dr. Vance suspected child abuse even though she did not know about the internal trauma to Leila's head.
The jury also could consider defendant's out-of-court statements. The jury watched the in-car recording of defendant asking for forgiveness for "hittin' her head on that wall," and heard defendant's admission that he "hurt that little girl." The jury also heard defendant's incriminating statements to police that he was "very rough" with Leila, that he "accidentally" hit her head with a cabinet door, and that he "accidentally" kneed her in the back causing her head to hit the wall.
Further, the jury heard Alyssa's testimony that defendant seemed jealous of Leila, and that, on at least one prior occasion, Leila had sustained injuries while under defendant's care. And the jury could consider defendant's oddly stoic reaction to Leila's death.
In sum, contrary to what defendant argues, this was not a close case. The evidence against defendant was overwhelming. Thus, even if defense counsel erred in failing to object to the testimony about Dr. Grecco's finding of some mild brain swelling, we conclude defendant has not shown a reasonable probability that the result of the proceeding would have been any different.
II
Dismissal of Juror No. 9
Defendant next contends that the trial court violated his right to a jury trial by improperly dismissing a juror midtrial. Defendant contends that the error is prejudicial and requires reversal of the judgment. While we agree that the trial court erred in dismissing the juror, we do not agree the error was prejudicial and requires reversal.
A. Additional Background
Prior to trial, the defense filed a supplemental witness list which included the name "O'chante Robinson." During jury selection, the trial court read a list of potential witnesses to the prospective jurors and asked them to raise their hand if they recognized any of the names. One of the prospective jurors indicated that she knew Robinson. When the court asked the prospective juror how she knew "her," the prospective juror replied, "Oh, it's a female? Maybe not." The court asked for clarification from defense counsel whether Robinson was a male or female. Defense counsel mistakenly responded that Robinson was a female, to which the prospective juror said, "Never mind." The prospective juror eventually was seated as Juror No. 9 (Juror 9).
It turned out that Robinson was, in fact, male and was the person that Juror 9 said she knew. Partway through defendant's case-in-chief, Juror 9 informed the bailiff that she recognized Robinson while he was waiting outside the courtroom.
Outside the presence of the other jurors, the court conducted a hearing to determine whether Juror 9 should remain on the jury. Juror 9 told the court that during a break in trial, Robinson "came up to me. He's like, oh, I'm gonna be talking in your case. And I was, okay, Weird. And that was pretty much it." She said that the conversation lasted only about 10 seconds because she told him, "I can't talk to you then since I'm on the jury." When the court inquired why she waited two days to inform the bailiff about her encounter with Robinson, she said she "forgot" and that Robinson "was gone by the time we went back out on our next break."
The court asked Juror 9 to explain how she knew Robinson. Juror 9 told the court that Robinson was a former coworker. She and Robinson had worked together for about five years, but they had stopped working together in 2013. Juror 9 told the court she had last seen Robinson "about a year ago" when "[w]e all met" at a fast food restaurant.
The court asked Juror 9, "So if [Robinson] were to testify in this case, do you have an opinion about him?" Before Juror 9 could answer, defense counsel interrupted and stated that he had "no intention on calling [Robinson] at this point." The following exchange then occurred:
"THE COURT: Knowing that that was an individual that potentially could have testified in this case, does that cause you to have any concerns or issues about you being fair or impartial?
"[JUROR 9]: Uh, no. Not really. I don't know. I don't know. It would just be a little weird but . . . .
"THE COURT: So knowing that he is not going to testify in this case
"[JUROR 9]: That—yeah. That makes it . . . .
"THE COURT: Does it cause you any problems with being fair and impartial to both sides?
"[JUROR 9]: No.
"THE COURT: Does it cause you to lean towards one side or the other?
"[JUROR 9]: No.
"THE COURT: Okay. Have you formed any opinions about Mr. Robinson as such that just because you saw him here and he may have some connection to this case that causes you to draw any inferences one way or another?
"[JUROR 9]: No."
The prosecutor asked what Juror 9 meant when she said she "thought it would be weird." Juror 9 replied, "Just that it would be awkward. . . . Just because we're not necessarily friends, but just 'cause I know him so well and know that that would be a part of this case would be weird for me because it's like—I guess it's, like, it's close. I don't really know how to explain it." The prosecutor asked, "Would it make you feel uncomfortable about being charged with making such an important decision in this case that you think he may have some association with?" Juror 9 answered, "Um, it's possible. I don't—I don't know that I could say that unless it happened though. So—but it's possible." The court inquired whether Juror 9 engaged in social media with Robinson, and Juror 9 replied that they were "friends" on Facebook and Instagram.
The prosecutor moved to have Juror 9 dismissed from the jury because of her connection to Robinson, a potential defense character witness. Over defense counsel's objection, the court found good cause to discharge the juror, reasoning, "I just think that the connection is such that she cannot in my view fairly and dispassionately discharge her duties as a juror."
B. Analysis
Defendant argues that the trial court erred in discharging Juror 9 because nothing in the record shows as a "demonstrable reality" that she could not fairly and dispassionately discharge her duties as a juror. We agree.
A trial court may order that a juror be discharged and replaced with an alternate at any time before or after the final submission of the case to the jury based upon a showing of "good cause" that the juror is "unable to perform his or her duty." (§ 1089.) The ultimate decision whether to retain or discharge a juror lies within the court's discretion. (People v. Debose (2014) 59 Cal.4th 177, 200.) The discretion to remove a sitting juror is, however, limited in that "the juror's 'inability to perform' his or her duty 'must appear in the record as a demonstrable reality.' " (People v. Armstrong (2016) 1 Cal.5th 432, 450 (Armstrong); but see People v. Boyette (2002) 29 Cal.4th 381, 462 , fn. 19.)
The demonstrable reality test is " 'more comprehensive' " and " 'less deferential' " than the typical abuse of discretion standard. (People v. Debose, supra, 59 Cal.4th at p. 201.) "Under the demonstrable reality standard, a reviewing court's task is more 'than simply determining whether any substantial evidence in the record supports the trial court's decision.' [Citation.]" (Armstrong, supra, 1 Cal.5th at p. 450.) " 'It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established.' " (Id. at pp. 450-451.) While we do not reweigh the evidence on appeal, we " 'must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied.' " (Id. at p. 451.) In reaching that conclusion, we will consider " 'not just the evidence itself, but also the record of reasons the court provides.' " (Ibid.)
In this case, the court articulated three specific reasons for its conclusion that Juror 9 cannot fairly and dispassionately discharge her duties as a juror. First, Juror 9 was "friends" with Robinson, a potential defense witness. Second, Robinson's association with the case caused Juror 9 to feel "awkward." Third, Juror 9 waited two days to report her conversation with Robinson.
On this record, we do not agree that Juror 9's inability to perform her duty appears as a demonstrable reality.
Although the trial court characterized Juror 9 and Robinson as "friends" who had "met up recently," the evidence shows that they were more in the nature of work acquaintances. Juror 9 explained that Robinson was a former coworker. She and Robinson had worked together for about five years, but they had stopped working together in 2013. Juror 9 told the court she had last seen Robinson "about a year ago" when "[w]e all met" at a fast food restaurant.
While Juror 9 and Robinson were "friends" on social media, as defendant argued, such "friendships" can be attenuated and may not carry the same weight as real world friendships. Defense counsel urged the court to investigate the nature and extent of their social media interactions, but the court declined to do so. We agree with defendant that, in the absence of such inquiry, the bare fact of social media friendship has limited evidentiary value.
Courts have held that a juror's mere acquaintance with a witness does not necessarily render a juror biased. (People v. McPeters (1992) 2 Cal.4th 1148, 1174-1175 [no error in retaining juror who thought highly of witness who also was seller's real estate agent of a home juror recently purchased], superseded by statute on unrelated grounds as stated in People v. Clark (2011) 52 Cal.4th 856, 939; People v. Maciel (2013) 57 Cal.4th 482, 543-544 [no error in retaining juror who worked for the same employer as two witnesses]; see also People v. Cochran (1998) 62 Cal.App.4th 826, 831 [no prejudice in retaining jurors who knew members of victim's family].) "It is not necessary that jurors be totally ignorant of the facts and issues involved in the case; it is sufficient if they can lay aside their impressions and opinions and render a verdict based on the evidence presented in court. [Citation.]" (People v. Fauber (1992) 2 Cal.4th 792, 819.) In this case, Juror 9 said her connection to Robinson would not prevent her from being fair and impartial. Such statements made by jurors are presumed to be true. (People v. Preston (1973) 9 Cal.3d 308, 313.)
It is true that a juror need not admit bias for a court to find that it exists. (People v. Lomax (2010) 49 Cal.4th 530, 590.) Because Juror 9 gave some equivocal responses during the trial court's questioning, the People contend we should defer to the court's determination as to her true state of mind. The problem here is that Juror 9 was equivocal only about her ability to be fair and impartial if Robinson testified at trial. When Juror 9 was asked if knowing that Robinson potentially could testify caused her to have any concerns or issues about being fair or impartial, her answer was equivocal: "Uh, no. Not really. I don't know. I don't know. It would just be a little weird but . . . ." Similarly, when Juror 9 was asked whether it makes her uncomfortable that Robinson "may have some association" with the case, she responded, "Um, it's possible. I don't—I don't know that I could say that unless it happened though. So—but it's possible."
When she said she could not be sure "unless it happened," we reasonably infer she meant unless Robinson testified.
But defense counsel made clear that Robinson would not be called as a witness. And when the court asked Juror 9 how she felt "knowing that [Robinson] is not going to testify in this case," she responded that she would not have any problems with being fair and impartial to both sides. She also testified that "just because" Robinson "may have some connection to the case" did not cause her to draw any inferences, one way or the other.
In the unlikely event Robinson was called to testify, despite defense counsel's assurances that he would not be, the trial court could have reconsidered whether to discharge Juror 9 at that time.
In short, Juror 9 thought it would be "weird," "awkward," and possibly "uncomfortable" if Robinson were to testify. However, knowing that Robinson would not be called to testify, she did not have any leanings toward one side or the other and would not have any problems being fair and impartial to both sides.
The People argue that Robinson's connection to the case affected her ability to be fair and impartial even if Robinson were not called to testify. The trial court apparently agreed: "Well, [Robinson is] obviously out in the hallway on Monday and interested in this case, and she is now aware of that." However, neither the People nor the court have explained how knowing that Robinson was "interested" in the case affected her ability to be fair and impartial.
The People also argue that had defense counsel correctly identified Robinson as a male during voir dire, Juror 9 likely would have been excused for cause at that time. Regardless of whether this is true, the argument overlooks one critical fact. At the time of jury selection, it was unknown whether Robinson would be called to testify. By the time Juror 9 was discharged, it was known that Robinson would not be called as a witness. This is a critical distinction.
Even if we assume that Juror 9 knew or learned that Robinson was a potential witness for the defense, there is no evidence showing that her association with Robinson would prevent her from fairly and impartially deciding the case against defendant. Her former working relationship with a potential character witness, and her concerns about potentially being placed in the "awkward" and possibly "uncomfortable" position of having to judge his credibility, without more, does not show to a demonstrable reality that she was biased. (See, e.g., People v. Ray (1996) 13 Cal.4th 313, 344 [a juror who is acquainted with the victim's family as the result of a business or professional relationship is not necessarily incompetent to serve]; People v. McPeters, supra, 2 Cal.4th at pp. 1174-1175 [upholding retention of juror who was involved with victim's husband in real estate deal].)
A juror's inability to perform her functions must appear in the record as a demonstrable reality; courts may not simply " 'presume the worst.' " (People v. Bowers (2001) 87 Cal.App.4th 722, 729 (Bowers); People v. Beeler (1995) 9 Cal.4th 953, 975, overruled on other grounds as stated in People v. Edwards (2013) 57 Cal.4th 658, 705.) In this case, the trial court did just that.
The trial court appears to have taken the approach that if there is any question as to the juror's impartiality, the juror should be removed so that a clearly qualified juror may take her place. Such a conservative approach is understandable, but inconsistent with California law. A trial court's order removing a sitting juror must be sustained, not as a matter of speculation, but as a demonstrable reality, manifestly supported by evidence on which the court actually relied. (Armstrong, supra, 1 Cal.5th at p. 451.) The trial court cannot excuse a seated juror merely out of an abundance of caution. (People v. Compton (1971) 6 Cal.3d 55, 60.)
In finding that Juror 9 was unable to perform her duties, the trial court also relied on the fact that Juror 9 waited two days to report her conversation with Robinson. While intentional concealment of material information by a juror may justify a finding of implied bias, " 'mere inadvertent or unintentional failures to disclose are not accorded the same effect.' " (People v. Wilson (2008) 44 Cal.4th 758, 823.) The proper test for unintentional concealment is whether the juror is " ' "sufficiently biased to constitute good cause for the court to find . . . that he [or she] is unable to perform his [or her] duty." ' " (Ibid.)
The People argue that the conversation itself was juror misconduct justifying Juror 9's discharge as a juror. However, the trial court's ruling was based on the delay in reporting the conversation, not the conversation itself. In any event, courts have held that a juror must have engaged in " 'serious and wilful misconduct' " to support a finding that the juror is unable to perform his or her duty. (Bowers, supra, 87 Cal.App.4th at p. 729; People v. Daniels (1991) 52 Cal.3d 815, 864.) Juror 9's unauthorized communication with a witness may have been improper, but it was not serious or willful since (1) Robinson approached her; (2) the content of the communication was not inherently prejudicial; (3) the entire conversation lasted about 10 seconds; and (4) Juror 9 appropriately told Robinson that she could not talk to him because she was on the jury. (People v. Cowan (2010) 50 Cal.4th 401, 507 [contact between juror and witness may be nonprejudicial if contact was " 'de minimis' "]; People v. Federico (1981) 127 Cal.App.3d 20, 38 [presumption of prejudice does not arise unless unauthorized content of communication was about the matter pending before the jury]; People v. Chavez (1991) 231 Cal.App.3d 1471, 1485 [same]; People v. Lewis (2009) 46 Cal.4th 1255, 1309 [content of conversation not inherently prejudicial].)
Juror 9 did not conceal her connection to Robinson. She disclosed it during voir dire as soon as she was told that Robinson was a potential witness. It was only when she was mistakenly told that Robinson was female that Juror 9 said she did not know Robinson. Further, after her encounter with Robinson in a hallway outside the courtroom, Juror 9 voluntarily came forward and disclosed her connection to Robinson before anyone called Robinson as a witness.
Juror 9 testified she did not report her encounter with Robinson sooner because it lasted only 10 seconds and she simply forgot. She also testified that, at the time of the encounter, she was unsure whether Robinson was affiliated with the prosecution or the defense. The court did not make any finding contradicting or questioning the credibility of Juror 9's explanation. Instead, the trial court implied that, regardless of her intentions, Juror 9 is simply unable to follow the court's instructions. The record does not bear this out.
The court made no comments on the record about Juror 9's demeanor or anything else about her presentation that led to its conclusion that the juror would be unable to follow the instructions or otherwise act fairly and impartially.
The court admonished the jury not to converse "about any subject connected with this case or the trial of it," and warned the jurors not to "speak with me, the attorneys, witnesses, or defendant on any subject while the trial is in progress." But the court included the following caveat: "A simple greeting in the hallway if you should see any one of us is all right, but any discussion beyond that could be misinterpreted and give rise to an appearance of an impropriety." A simple greeting in the hallway is precisely what happened. Robinson recognized Juror 9, approached her and told her he was going to be a witness in the case. Without discussing anything related to the guilt or innocence of the defendant, she told Robinson that she could not speak to him because she was on the jury. This record does not show to a demonstrable reality that Juror 9 was unable to follow court instructions or was otherwise unable to fulfill her duties.
C. Prejudice
Defendant contends the improper discharge of Juror 9 is structural error, reversible per se. We disagree.
As a general rule, absent a showing of prejudice, the erroneous exclusion of a juror for cause does not mandate reversal. (People v. Riccardi (2012) 54 Cal.4th 758, 840-842 [conc. opn. of Cantil-Sakauye, C. J.], overruled in part on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) "This rule is based on the principle that a '[d]efendant has a right to jurors who are qualified and competent, not to any particular juror.' [Citation.]" (Riccardi, supra, at p. 840; People v. Thomas (1990) 218 Cal.App.3d 1477, 1486.)
Automatic reversal is an exception to the general harmless error analysis. It applies in a small subset of the cases where structural errors have rendered the trial process fundamentally unfair or an unreliable determinant of the defendant's guilt or innocence, such as where the defendant was denied the right to a fair and impartial jury. (People v. Romero (2017) 14 Cal.App.5th 774, 783; see also People v. Cooper (1991) 53 Cal.3d 771, 809 [erroneous exclusion of juror because of that person's views on the death penalty compels the reversal of the penalty phase]; People v. Cisneros (2015) 234 Cal.App.4th 111, 120 [purposeful discrimination in the exercise of peremptory challenges is reversible per se]; cf. People v. Jones (2012) 54 Cal.4th 1, 45, fn. 9 [distinguishing erroneous Witherspoon-Witt (Witherspoon v. Illinois (1968) 391 U.S. 510 ; Wainwright v. Witt (1985) 469 U.S. 412 ) exclusion of a prospective alternate juror in a trial where no alternate juror sat on the jury].)
Not every error affecting the composition of a jury impairs the defendant's constitutional right to a fair and impartial jury. (See People v. Collins (1976) 17 Cal.3d 687, 691, 693-694 [replacing empaneled juror excused for cause with alternate does not impair constitutional proscriptions]; People v. Warren (1986) 176 Cal.App.3d 324, 326 [same]; People v. Burgess (1988) 206 Cal.App.3d 762, 766 [same]; see also People v. Black (2014) 58 Cal.4th 912, 920 [when defendant uses peremptory challenges to excuse prospective jurors who should have been removed for cause, the right to an impartial jury is affected only when an incompetent juror who should have been removed for cause sits on the jury].)
Because defendant does not claim that any of the jurors who eventually served were biased against him, his constitutional right to a fair and impartial jury was not impaired. Accordingly, any error in excusing Juror 9 is subject to harmless error review under People v. Watson (1956) 46 Cal.2d 818, 836. (Bowers, supra, 87 Cal.App.4th at p. 735 [trial court's error in excusing a seated juror requires reversal only if it is reasonably probable a result more favorable to the defendant would have been obtained but for the error]; see also People v. Thomas, supra, 218 Cal.App.3d at p. 1486 [where an alternate juror, approved by defendant in voir dire, is allowed to deliberate on the jury, the defendant bears a heavy burden to demonstrate prejudice].)
Defendant's reliance on Armstrong and People v. Cleveland (2001) 25 Cal.4th 466 (Cleveland) is misplaced. Both of those cases involved discharge of a juror during deliberations based on allegations that the juror had prejudged the case and was refusing to deliberate in good faith. (Armstrong, supra, 1 Cal.5th at pp. 453-455; Cleveland, supra, at pp. 485-486.) In Cleveland, our Supreme Court recognized that determining whether to discharge a juror during deliberations is a "delicate matter" because of the risk that the juror will be removed, not because the juror is unwilling to deliberate, but because the juror disagrees with the majority as to what the evidence shows, how the law should be applied, or the manner in which deliberations should be conducted. (Cleveland, at pp. 485, 486.) Removing a "holdout" juror based on his or her views of the merits of the case is tantamount to "loading" the jury, which is clearly prejudicial. (People v. Hamilton (1963) 60 Cal.2d 105, 128, overruled in part on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2, 648-649; Shanks v. Department of Transportation (2017) 9 Cal.App.5th 543, 557.)
In both Armstrong and Cleveland, our Supreme Court concluded that the discharged jurors had not refused to deliberate; they simply viewed the evidence differently from the rest of the jury. (Armstrong, supra, 1 Cal.5th at p. 453; Cleveland, supra, 25 Cal.4th at pp. 485-486.) In light of such findings, the Supreme Court concluded that removal of such jurors required reversal. (Armstrong, supra, at p. 454; Cleveland, supra, at p. 486.) Although defendant is correct that neither case mentions the harmless error standard, it also is true that neither case disapproves a harmless error analysis or suggests that a per se reversal standard should apply. The most that can be said about Armstrong and Cleveland is that the Supreme Court concluded the errors were prejudicial under the facts of those cases.
Here, unlike Armstrong and Cleveland, the dismissal of Juror 9 occurred during trial, before the start of the jury's deliberations. There is no evidence indicating which way Juror 9 was leaning when she was dismissed. (Cf. Bowers, supra, 87 Cal.App.4th at pp. 735-736 [applying Watson and concluding that had holdout juror not been erroneously discharged, it was reasonably probable the case would have ended in mistrial, a more favorable result for the defendant than conviction].) Nor is there any evidence that the alternate who replaced Juror 9 (or any other seated juror) was biased against defendant. We conclude that the dismissal of Juror 9 during trial was harmless error. (People v. Cunningham (2001) 25 Cal.4th 926, 976; People v. Dell (1991) 232 Cal.App.3d 248, 256.)
III
Jury Instructions
Defendant argues the trial court violated due process by failing to give a balanced jury instruction on defendant's out-of-court statements.
When a defendant's extrajudicial statements form part of the prosecution's evidence, the trial court must instruct the jury that "a finding of guilt cannot be predicated on the statements alone." (People v. Alvarez (2002) 27 Cal.4th 1161, 1170.) Here, because the People relied on several out-of-court statements by defendant to support the theory that he intentionally abused Leila, the trial court gave the standard jury instruction on the corpus delicti rule, CALCRIM No. 359, as follows:
"The defendant may not be convicted of any crime based on his out-of-court statements alone. You may rely on the defendant's out-of-court statements to convict him only if you first conclude that other evidence shows [that] the charged crimes or a lesser included offense was committed. That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.
"This requirement of other evidence does not apply to proving the identity of the person who committed the crime. If other evidence shows that the charged crime or lesser included offense was committed, the identity of the person who committed it may be proved by the defendant's statement alone. You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt." (CALCRIM No. 359, as given.)
On appeal, defendant argues this instruction violated due process because it was "unbalanced," instructing jurors that they could rely on defendant's out-of-court statements to convict without instructing jurors that they also could rely on such statements to acquit. We conclude defendant forfeited this issue by failing to raise it below.
Generally, a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his substantial rights. (People v. Mackey (2015) 233 Cal.App.4th 32, 106 (Mackey); see People v. St. Martin (1970) 1 Cal.3d 524, 531 [even in the absence of a request, a trial court must fully and fairly instruct the jury on the general principles of law relevant to a criminal case].) However, a trial court has "no sua sponte duty to revise or improve upon an accurate statement of law" (People v. Lee (2011) 51 Cal.4th 620, 638), and a party may not complain on appeal that an instruction otherwise correct in law was too general or incomplete unless the party requested appropriate clarifying or modifying language. (Mackey, supra, 233 Cal.App.4th at p. 106; Lee, supra, at p. 638; see People v. Andrews (1989) 49 Cal.3d 200, 218.)
The instruction at issue here, CALCRIM No. 359, has been held to be an accurate statement of California law. (See People v. Rosales (2014) 222 Cal.App.4th 1254, 1259-1261; see also People v. Reyes (2007) 151 Cal.App.4th 1491, 1498.) Thus, if defendant believed the instruction required elaboration or clarification, it was incumbent on defendant to request it. He did not do so. Accordingly, defendant forfeited his claim of instructional error.
Even if the claim had not been forfeited, it would fail. Faced with a claim of instructional error, we review whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights. (Mackey, supra, 233 Cal.App.4th at p. 108; People v. Tate (2010) 49 Cal.4th 635, 696; People v. Andrade (2000) 85 Cal.App.4th 579, 585.) In conducting this inquiry, the challenged instruction is not judged in isolation, but must be considered in the context of the instructions as a whole. (Mackey, supra, 233 Cal.App.4th at p. 108; People v. Castillo (1997) 16 Cal.4th 1009, 1016.) We are "obligated to regard the jurors as intelligent and capable of understanding and correlating all instructions they are given." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1155; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) A trial court's instructions will be interpreted, if possible, to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. (Ramos, supra, 163 Cal.App.4th at p. 1088.)
In this case, considering the challenged instruction in the context of the entire charge, there is no reasonable likelihood that the jury thought that defendant's out-of-court statements could only be considered as evidence of defendant's guilt. Defendant construes the instruction as conveying the prosecution's theory of the case. However, the purpose of the instruction was to protect defendant, by limiting the use of his inculpatory out-of-court statements. The jury was told that defendant may not be convicted based on his out-of-court statements alone, and that the jury may rely on such statements "to convict . . . only if you first conclude that other evidence shows [that] the charged crimes or a lesser included offense was committed."
Jurors were not told that they could rely on defendant's out-of-court statements only to convict or that they could not use such statements to acquit. In contrast, jurors were instructed—repeatedly—that they could not convict unless the People proved defendant's guilt beyond a reasonable doubt. Jurors also received specific instructions on how to consider evidence of defendant's pretrial statements:
"You have heard evidence that the defendant made oral and written statements before the trial. You must decide whether the defendant made any of these statements in whole or in part. If you decide that the defendant made such statements, consider the statements along with all the other evidence in reaching your verdict. It is up to you to decide how much importance to give to the statements." (CALCRIM No. 358, as given, italics added.)
Reasonable jurors would have understood from the instructions as a whole that the prosecution was required to prove defendant's guilt beyond a reasonable doubt after examining all of the evidence. There is no reasonable likelihood that the jury was misled to believe that defendant's out-of-court statements could be relied upon only to convict. Thus, the lack of a "balancing" instruction in CALCRIM No. 359 did not impair defendant's right to due process. (Mackey, supra, 233 Cal.App.4th at pp. 105-109 [rejecting need for balancing instruction in context of modified CALCRIM No. 305]; see also People v. Moore (2011) 51 Cal.4th 1104, 1140 [no right to parity of jury instructions].)
IV
Due Process Challenge to Section 273ab
Defendant argues that his conviction under section 273ab must be reversed because the statute is unconstitutional on its face. Emphasizing that the penalty for a violation of section 273ab is the same as that for first degree murder, defendant argues that the state is allowing prosecutors to punish defendants for first degree murder without proof of a deliberate and premeditated intent to kill. Defendant characterizes this as an "end run" around the traditional due process requirements for the offense of murder.
Although defendant failed to raise this contention in the trial court, we exercise our discretion to consider it here. (In re Sheena K. (2007) 40 Cal.4th 875, 889; People v. Norman (2003) 109 Cal.App.4th 221, 229-230 (Norman).)
Defendant's claim is nearly identical to one we rejected in Norman, supra, 109 Cal.App.4th 221. In Norman, a jury found the defendant guilty of second degree murder under section 187 and child homicide under section 273ab. (Norman, at p. 224; see also People v. Malfavon (2002) 102 Cal.App.4th 727, 743 (Malfavon) [referring to § 273ab as "child abuse homicide"].) On appeal, the defendant argued that his child homicide conviction must be reversed because the statute imposed a 25-year-to-life penalty—the same as for first degree murder—for a general intent assault. (Norman, at p. 224.) As here, the defendant relied on the legislative history of section 273ab to argue that the Legislature intended to make it easier to convict defendants of first degree murder by deleting an element of the offense, namely, malice aforethought. (Norman, at p. 227.) Also, as here, the defendant argued that due process bars efforts to redefine the elements of a crime to make it easier to convict. (Id. at pp. 227-228.)
We affirmed the conviction, rejecting the defendant's claim that section 273ab is unconstitutional. (Norman, supra, 109 Cal.App.4th at p. 229.) We found no merit in the defendant's argument that section 273ab was an attempt to redefine murder. (Norman, at p. 227.) Looking at the plain language of both statutes, we concluded that section 273ab "is not a murder statute;" it establishes a different crime, with different elements. (Norman, at pp. 227, 229.) Unlike murder, which requires proof of an unlawful killing and a showing of malice aforethought, child homicide has no malice requirement, and it requires proof of three other elements that are not required for murder: (1) an assault on a child under the age of eight, (2) by a person having care or custody of the child, (3) with force that a reasonable person would know was likely to inflict great bodily injury. (Id. at pp. 228-229; Malfavon, supra, 102 Cal.App.4th at p. 743; see also People v. Basuta (2001) 94 Cal.App.4th 370, 399 [holding that the element of care and custody creates a "meaningful distinction" between child homicide and murder].) We found it immaterial that the punishment for a violation of section 273ab is the same as first degree murder because "there is no principle of law that precludes the same punishment for different crimes." (Norman, at p. 228.)
Our conclusion in Norman is consistent with the Fourth District Court of Appeal's decision in Malfavon, supra, 102 Cal.App.4th 727. In that case, the defendant was convicted of second degree murder for killing his girlfriend's infant daughter. As an alternative charge, the defendant also was convicted of child homicide. (Id. at pp. 731, 741.) On appeal, the defendant argued that the child homicide statute (§ 273ab) violates due process because it is "merely a restatement of murder without the element of malice." (Malfavon, at pp. 731, 737-740.)
The Court of Appeal affirmed the constitutionality of the statute, holding that "[p]rescribing punishment for various forms of homicide is distinctly within the police power of the states, as is the definition of the elements of crimes and delineation of their punishments. [Citation]." (Malfavon, supra, 102 Cal.App.4th at p. 738.) Further, " 'the Due Process Clause of the Fourteenth Amendment does not . . . require a State to fix or impose any particular penalty for any crime it may define or to impose the same "proportionate" sentences for separate and independent crimes.' " (Malfavon, at p. 737, quoting Williams v. Oklahoma (1959) 358 U.S. 576, 586 [3 L.Ed.2d 516, 523].) Having concluded that child homicide and murder are separate crimes, the court found no constitutional reason why the Legislature could not define a new homicide crime without the element of malice and set a 25-year-to-life penalty for such crime. (Malfavon, at pp. 738-741; see also People v. Albritton (1998) 67 Cal.App.4th 647, 659-660.)
As Malfavon and Norman make clear, the power to define the elements of crimes and fix penalties is vested exclusively in the Legislature. (See also People v. Rhodes (2005) 126 Cal.App.4th 1374, 1385 (Rhodes); People v. Mauch (2008) 163 Cal.App.4th 669, 674.) As long as the Legislature acts rationally, the distinct punishment imposed for a particular form of homicide will not offend due process. (Rhodes, supra, at p. 1386.) Here, the Legislature has acted rationally. There is a rational basis to punish child homicide in the same manner as first degree murder to deter a particularly egregious type of homicide in which the victims are young, vulnerable children, forcefully abused by those who were entrusted to protect them. (§ 273ab, subd. (a).)
The premise underlying defendant's argument—that the severity of the punishment must be predicated upon the perpetrator's mental state—is simply untrue. The Legislature takes many factors into consideration when prescribing the punishment for a crime. (Rhodes, supra, 126 Cal.App.4th at p. 1386.) For example, "[t]he Legislature has determined in many contexts that firearm offenses are treated more harshly than the same crimes committed by other means in order to deter the use of firearms and save lives." (Ibid.) Likewise, the Legislature has imposed more onerous penalties on offenders who kill or injure peace officers to promote the societal interest of protecting peace officers engaged in the performance of their duties. (Ibid.) In Norman, we expressly rejected the assertion that the due process clause somehow requires a showing of premeditation and deliberation to obtain a penalty of 25 years to life. (Norman, supra, 109 Cal.App.4th at p. 228.)
Relying on McMillan v. Pennsylvania (1986) 477 U.S. 79 , defendant suggests that Norman was wrongly decided. We are not persuaded. McMillan warned that states cannot restructure the elements of existing crimes to evade the requirement that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime with which the defendant was charged. (McMillan, at pp. 84, 89.) This cautionary language has no application here. As discussed above, we do not agree the state has, in enacting section 273ab, improperly "redefined" murder. Thus, we reject the argument that section 273ab constitutes an "end run" around the traditional due process requirements for murder.
V
Abstract of Judgment
In our review of the record, we have discovered discrepancies between the trial court's oral pronouncement of judgment and the sentencing minute order with respect to the second degree murder conviction (count one). At sentencing, after pronouncing a 25-year-to-life sentence for count two, the trial court pronounced judgment for count one as follows: "With respect to Count 1, a violation of Section 187 of the Penal Code, second degree murder, I'm imposing that term, but it will be stayed pursuant to Section 654." Although we construe this language as imposing the term required for a conviction of second degree murder under section 187—15 years to life under section 190, subdivision (a)—the trial court's minute order erroneously shows a sentence for count one of 25 years to life.
To avoid any possible confusion, we modify the judgment to explicitly impose a term of 15 years to life for the violation of section 187 (count one), stayed pursuant to section 654, and order the trial court to correct the erroneous minute order. (People v. Rowland (1988) 206 Cal.App.3d 119, 123 [if judgment entered in minutes fails to reflect the judgment pronounced by the court, the error is clerical, and the record can be corrected at any time]; People v. Mitchell (2001) 26 Cal.4th 181, 185 [court has inherent power to correct clerical errors in its records so as to make these records reflect the true facts]; see also People v. Alford (2010) 180 Cal.App.4th 1463, 1474.)
DISPOSITION
The judgment is modified to provide that defendant is sentenced to a term of 15 years to life on count one, stayed under section 654. The trial court is directed to correct its minute order to reflect this sentence, and to prepare an amended abstract of judgment in accordance with this opinion and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
KRAUSE, J. We concur: HULL, Acting P. J. MURRAY, J.