PEOPLE v. WYATTAppellant’s Answer to Petition for ReviewCal.January 21, 2011COPY © SREae ae OOPy] pes URT "PRY Rove Ad IN THE SUPREMECOURT OF THE STATE OF CALIFORNIA JANg A | : I LON THE PEOPLE OF THE STATE OFCALIFORNIA, Supreme Court Case No. 8189786 Plaintiff and Respondent, V. REGINALD WYATT, Defendant and Appellant. COURT OF APPEAL, FIRST DISTRICT, DIVISION TWO Case No. Al14612 APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT OF ALAMEDA COUNTY Case No. C0147107 . The Honorable Jon Rolefson, Judge ANSWER TO THE PEOPLE’S PETITION FOR REVIEW WALDEMAR D. HALKA Attorney at Law State Bar No. 137915 P.O. Box 99965 San Diego, CA 92169 ~ Tel/Fax: (858) 273-8626 e-mail: halkalaw@gmail.com Attorney for Defendant and Appellant Reginald Wyatt People v. Wyatt Case No. S189786 TOPICAL INDEX Page ANSWER TO THE PEOPLE’S PETITION FOR REVIEW QUESTIONS PRESENTED ....... 200.0000 ceeee 2 STATEMENT OF THE CASE ........0. 0.02 ccc ce eee 3 STATEMENT OF FACTS ARGUMENTS ......... eee eee eee ee eee eens 5 eetne eee teen eee 6 I. Il. Hl. THE PEOPLE’S PETITION FOR REVIEW SHOULDBEDENIED BECAUSETHECOURT OF APPEAL CORRECTLY CONCLUDED THAT THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO INSTRUCT ON SIMPLEASSAULTAS ALESSERINCLUDED OFFENSE OF PENAL CODE SECTION 273AB ........ 6 THE TRIAL COURT PREJUDICIALLY ERRED IN INSTRUCTING THE JURY WITH CALCRIM NO. 820 BECAUSE THAT INSTRUCTION OMITS AN ELEMENT OF PENAL CODE SECTION 273AB THAT THE ASSAULT THAT LEADS TO THE CHILD’S DEATH BE BY MEANS OF FORCE “THAT TO A REASONABLE PERSON” WOULD BE LIKELY TO PRODUCE GREAT BODILY INJURY 2...eceee INVOLUNTARY MANSLAUGHTER IS A LESSER INCLUDED OFFENSE OF PENAL CODE SECTION 273AB, AND THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO INSTRUCT, SUA SPONTE, ON THAT LESSER INCLUDED OFFENSE ......... i beens Il beens 14 IV. THE TRIAL COURT PREJUDICIALLY ERRED BY FAILING TO SUA SPONTE INSTRUCT THE JURY THAT CRIMINAL NEGLIGENCE CANNOT SUPPORT AN ASSAULT CONVICTIONAND THAT INJURY ALONE IS NOT SUFFICIENT TO ESTABLISH AN ASSAULT...eeeceees 17 V. THE TRIAL COURT PREJUDICIALLY ERREDINFAILING TO INSTRUCT ONJURY UNANIMITY (CALCRIM No. 3500) AND THEREBY VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHTTO UNANIMOUS JURY VERDICT .. 0...eee ee 20 VI. DEFENDANT WASDENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTIONAND CALIFORNIA CONSTITUTION, THROUGH HIS TRIAL COUNSEL’S FAILURE TO REQUEST AND/OR OBJECT TO SEVERAL CRUCIAL JURY INSTRUCTIONS ...... 0.0.0.0... eee eee 26 VII. DEFENDANT’S SENTENCEOF 25 YEARS TO LIFE FORTHEUNINTENTIONALHOMICIDE UNDER PENAL CODE SECTION 273AB VIOLATES THE FEDERAL AND STATE CONSTITUTIONAL PROSCRIPTION AGAINST CRUEL AND UNUSUAL PUNISHMENT ...... 0.0... eee eee ee eee 28 CONCLUSION 2.0.0...ceeene eens 31 CERTIFICATE OF LENGTH ........ 0.000002 0 cece 32 APPENDIX “A” - Unpublished opinion of the Court of Appeal APPENDIX “B”- Order denying the People’s petition for rehearing il TABLE OF AUTHORITIES Page(s) Cases Inre Winship (1970) 397 US. 358 1.ee12, 19 Medina v. California (1992) 505 U.S.437 1.0...cee27 Montanav. Eglehoff(1996) 518 U.S.37 2.0...ee eee 27 Neder v. United States (1999) 508 U.S. 1 1... eeeees 13 Orlina v. Superior Court (1999) 73 Cal.App.4th 258 ............. 13-15 People v. Albritton (1998) 67 Cal.App.4th 647 ..............0.000-5 12 People v. Basuta (2001) 94 Cal.App.4th 370 ................0. 6, 12, 13 People v. Breverman (1998) 19 Cal.4th 142 22.0... eee ee 10 People v. Cox (2000) 23 Cal.4th 665.00... 0... eee eee eee 16 People v. Davis (2005) 36 Cal.4th 510 2.0.0... eee eee ee eee 24 People v. Deletto (1983) 147 Cal.App.3d 458 ....... 0.0.0.0 00 000008. 26 People v. Dellinger (1984) 163 Cal.App.3d 284 .................... 25 People v. Espinoza (1983) 140 Cal.App.3d 564 ................000. 25 People v. Flannel (1979) 25 Cal.3d 668 2.0.2.0... 0.0.00 c cee ee .. 18 People v. Flood (1998) 18 Cal.4th 470 1.0.0... 0.0.0... 0000000. 12, 19 People v. Hogan (1981) 31 Cal.3d 815 2.0... 0.eee eee 27 People v. Ledesma (1987) 43 Cal.3d 171 2.0.0.0... cee eee eee 26 ili People v. Lewis (2004) 120 Cal.App.4th 837 .......... 00000000. 28, 29 People v. Malfavon (2002) 102 Cal.App.4th 727 .............05. 15, 28 People v. Maury (2003) 30 Cal.4th 342 2.0.0...eee 21 People v. McElheny (1982) 137 Cal.App.3d 396 ...........0.05. 18, 19 People v. Morse (1964) 60 Cal.2d 631 2.0.0.0... 0c cece 26 People v. Norman (2007) 157 Cal.App.4th 460 ........... 20, 23, 28, 29 People v. Nye (1965) 63 Cal.2d 166 2.0.0.0... 0. ccc eee 26 People v. Preller (1997) 54 Cal.App.4th 93 .......... 0.00.0 005. 12, 23 People v. Rios (2000) 23 Cal.4th 450 2.0... cee ee eee 15, 16 People v. Russo (2001) 25 Cal.4th 1124 1.0.0.0... 0.00.00... cee ae 21 People v. Sanchez (2001) 94 Cal.App.4th 622 ......... 2... 0000 000s 23 People v. Sedeno (1974) 10 Cal.3d 703 2.0.0... ccc ce eee 26 People v. Stewart (2000) 77 Cal.App.4th 785 ............205- 10, 12-14 People v. Valenzuela (1985) 175 Cal.App.3d 381 ............ 000000 19 People v. Whitehurst (1992) 9 Cal.App.4th 1045 ................05. 26 People v. Williams (2001) 26 Cal.4th 779 .............00. 16, 18, 19, 24 People v. Wyatt (2010) 48 Cal.4th 776 .......... 4,10, 20, 21, 22, 23, 24 Strickland v. Washington (1984) 466 U.S. 668 ............ 000 eee 26 iv Constitutions California Constitution Article 1, § 15 0... cece ccc cecccecceeeeeeeveuveneeeereens 12, 19, 26 Article L, § 16.0... c cece cece cece ce ceveceeeueeeteeteeeueeeeees 26 Article 1, § 17 occ ccc ccc eccceeeeeeeseestesteetesuneeeeeeeees 29 United States Constitution Sth Amendment ......0 0...ceeee teenies 12, 19 6th Amendment .......... 0... ceceeeerenee 26 8th Amendment ........ 0.0.0. c eeeee eeeee 29 14th Amendment ..... 0... 0.ccee eens 12, 19, 26 Statutes Penal Code S20encenee ene renee 24 § 187, subdivision (a)... 6...eeteenies 3 15 § 192, subdivision (b) .. 0... 0... ceeeeeee eens 4 § 273aboetenes 3,4, 11, 12, 23 § 1203.075 2...ceeee enn eee e ees 3 Rules of Court tule 8.500(a)(2) 2...eccece eee eee eee eevee eens 1,5 rule 8.500(b)(1) oo. cece ec eee ce cee eevee eeeeen 1, 5, 11, 14, 17, 28 Standard Jury Instructions CALCRIM No.820 2.0...cetenes 12,17 CALCRIM No. 3500 2...cceee e eens 20 CALJIC No. 9.36.5 20cecenent n ees 23 Vi IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Supreme Court Case No. 8189786 Plaintiff and Respondent, Vv. REGINALD WYATT, Defendant and Appellant. COURTOF APPEAL, FIRST DISTRICT, DIVISION TWO Case No. A114612 APPEAL FROM A JUDGMENTOF THE SUPERIOR COURT OF ALAMEDA COUNTY Case No. C0147107 The Honorable Jon Rolefson, Judge ANSWERTO THE PEOPLE’S PETITION FOR REVIEW TO THE HONORABLECHIEF JUSTICE AND THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Defendant and appellant Reginald Wyatt respectfully requeststhat this Court deny the People’s petition for review. But, if review is granted, defendant requests that review also be granted to address the following important questions of law presented by his case (Cal. Rules of Court, rules 8.500(a)(2), 8.500(b)(1)): QUESTIONS PRESENTED Did the trial court prejudicially err in instructing the jury with CALCRIM No.820that omits an element ofPenal Code section 273ab that the assault that leads to the child’s death must be by meansofforce “that to a reasonable person” would be likely to produce great bodily injury, and thereby deprive defendant of his due process rights under the federal and state Constitutions? Is involuntary manslaughter a lesser-included offense of Penal Code section 273ab anddid thetrial court prejudicially err in failing to instruct the jury on involuntary manslaughter as a lesser included offense of section 273ab? Didthetrial court prejudicially err by failing to instruct the jury that criminal negligence cannot support an assault conviction and that injury aloneis not sufficient to establish an assault, and thereby deprive defendant of his due process rights under the federal and state Constitutions? Did thetrial court prejudicially err in failing to instruct on jury unanimity according to CALCRIM NO. 3500 and thereby violate defendant’s constitutional right to unanimousjury verdict? Did defendant’s trial counsel render ineffective assistance under the federal and state Constitutions by failing to request and/or object to several crucial jury instructions? 6. Whether defendant’s sentence of 25 years to life for unintentional homicide under Penal Code section 273ab violates the federal and state constitutional proscription against cruel and unusual punishment? STATEMENTOF THE CASE On May18, 2003, defendant’s 14-month-old son Reginald died while in the custody and care ofdefendant, his father. (2 RT 371-373, 379-384, 391; 3 RT 414, 468, 535.) On March 20, 2004, an information wasfiled in the Superior Court of Alameda County charging defendant with one count ofmurder (Pen. Code, § 187, subd. (a)), and one countof assault on a child under age 8 causing death (Pen. Code, § 273ab [hereafter “child homicide”’]). (1 CT 97-98.) Both counts alleged personal infliction of great bodily injury. (1 CT 98; Pen. Code, § 1203.075.) The information further alleged a prior felony conviction from Louisiana. (1 CT 98.) Defendant pled not guilty to the substantive charges and denied the special allegations. (1 CT 100.) Jury trial began on March 20, 2006. (2 CT 179.) After the evidence concluded, and the People decided not to seek a first degree murder conviction, the jury was instructed on the charged crimes of child homicide and second degree murder. (2 CT 313; 8 RT 1442-1463.) The jury was instructed on both express malice(i.e. an intent to kill) and implied malice (1.e. acting with conscious disregard of danger to humanlife) murder. (2 CT 308- 309.) As a lesser included offense of second degree of murder, the jury was instructed on the crime of involuntary manslaughter. (2 CT 310.) On April 11, 2006, the jury found defendant guilty of involuntary manslaughter and child homicide. (2 CT 279-280, 326-327; Pen. Code, §§ 192, subd. (b), 273ab.) On thetrial court’s own motion, the great bodily injury and prior conviction allegations were stricken pursuant to Penal Codesection 1385. (2 CT 279, 281.) Defendantfiled a motion for newtrial on several grounds, including the ground the verdicts were “mutually inconsistent” and contrary to the law and evidence. (2 CT 332-354.) On July 6, 2006, the trial court denied the new trial motion and sentenced defendant to prison for 25 years to life for the child homicide conviction. (2 CT 359-360, 364; 8 RT 1643-1646.) A three-year prison term for the involuntary manslaughter conviction was stayed pursuant to Penal Code section 654. (2 CT 359-360, 362; 8 RT 1656.) Defendant timely appealed his judgment ofconviction. (2 CT 366.) In an unpublished opinion filed on January 31, 2008, the Court ofAppeal, First Appellate District, Division Two,reversed the child homicide conviction for insufficiency of evidence but otherwise affirmed the judgment. (Peoplev. Wyatt (Jan. 31, 2008, A114612) [nonpub.opn.].) Presiding Justice Klein filed a concurring and dissenting opinion. In the Presiding Justice’s opinion, the involuntary manslaughter conviction should also have been reversed for the failure to instruct on jury unanimity. The People successfully sought review in this Court. In People v. Wyatt (2010) 48 Cal.4th 776, this Court reversed the Court ofAppeal’s judgment to the extent it found insufficient evidence to support defendant’s child homicide conviction and remanded the matter to the Court of Appeal. On remand,in an unpublished opinion filed on December9, 2010, the Court ofAppeal addressed the remaining issues on appeal. It concluded that the trial court prejudicially erred when it failed to instruct, sua sponte, on assault as a necessarily included offense of child homicide under Penal Code section 273ab, but otherwise affirmed the judgment. A copy of the Court of Appeal’s opinion is attached to this answer as Appendix “A.” On December23, 2010, the sought a rehearing. The rehearing petition was denied by the Court of Appeal on January 6, 2011. A copyofthe order denying rehearing is attached to this answer as Appendix “B.” On January 14, 2011, the People petitioned this Court for review. Defendant opposesthe People’s secondpetition for review. Defendant further requests that if this Court does grant review on the issues brought up by the People, that is also grant review to address other important issues of law presented by defendant’s case, as set forth in this answer to the People’s petition. (Cal. Rules of Court, rules 8.500(a)(2), 8.500(b)(1).) STATEMENT OF FACTS For the purposeofthis petition, defendant adopts the statementof facts set forth in the Court of Appeal’s opinion. (Appendix “A”at pp. 3-18.) ARGUMENTS I THE PEOPLE’S PETITION FOR REVIEW SHOULD BE DENIED BECAUSE THE COURT OF APPEAL CORRECTLY CONCLUDEDTHATTHETRIAL COURT PREJUDICIALLY ERRED IN FAILING TO INSTRUCT ON SIMPLE ASSAULT AS A LESSER INCLUDED OFFENSE OF PENAL CODE SECTION 273AB. The People ask this Court to review the Court ofAppeal’s unpublished opinionto the extent it reversed appellant’s child homicide conviction for the trial court’s failure to instruct, sua sponte, on simple assault as a lesser included offense of Penal Code section 273ab. (See REV at pp. 8-12.) This Court should deny the People’s petition because assault is a lesser included offense of section 273ab (People v. Basuta (2001) 94 Cal.App.4th 370, 392 [both simple and aggravated assaults are lesser included offenses of section 273ab]), and the Court of Appeal correctly found that the trial court prejudicially erred in failing to instruct defendant’s jury on simple assault inasmuchas a reasonable jury could convict defendantofsimple assault upon a finding that the force he inflicted on his son fell short of that which to a reasonable person waslikely to produce great bodily injury. (Appendix “A” at pp. 20-24.) The People’s argumentsare predicated on the assumption that the jury adoptedthe prosecution’s theory ofmultiple blows and actual wrestling moves based on defendant’s taped extrajudicial statements and expert medical testimony which,to the prosecutor and now the Attorney General, amounted to overwhelming and compelling evidence of defendant having punched, body-slammed, and head-butted a 14-month old toddler, causing internal injuries so major and extensive as to be seen only in the most serious cases such as car accidents. Granted, the jury or some membersof the jury could have adopted the prosecution’s theory and convicted defendant of child homicide in addition to convicting defendantoffirst degree murder or second degree murder under this identical theory. But the jury did not convict defendant of either first degree or second degree murder on which it was instructed. The jury’s verdicts are strong evidence that the jury or at least some membersofthejury actually rejected the prosecution’s theory which the Attorney Generalfinds so persuasive. The Court of Appeal correctly found that defendant’s owntestimony and that of his medical expert, Dr. Paul Herrmann, provides substantial evidence of the lesser offense. In his trial testimony, defendant denied performing any so-called “wrestling moves” on his son. He explainedin his testimony that when he described these moves to the police he was not describing actions he actually took, but “make-believe wrestling moves.” Defendant denied striking Reginald hard andtestified that at most he pushed Reginald while playing with him. Defendantfurthertestified that at one point while he was playing with Reginald defendant jumpedin the air and, while he came downonthe bed to makeit shake, Reginald rolled toward him, and defendant fell on Reginald hard, and hit Reginald in the back with his hip. It appeared to defendantthat Reginald had the wind knocked out of him because he seemed unable to get his breath. However, when Reginald beganbreathing again, defendant thought he had recovered. Reginald did not cry. Defendanttestified that other than this, he did not strike his son with any force or do anything harmful to him. Defendanttestified that he stopped playing with Reginald afterhefell on him. He got him some milk, and Reginald took the milk, looked at the television and lied down. Defendant too fell asleep and it was not until he woke up that he realized Reginald was unresponsive and something was seriously wrong. Defendanttestified that the statements he madeto the police regarding his conduct Reginald madeit clear that he was play wrestling with Reginald, not actually hurting him. At the time he madehis recorded statement, he was tired from lack of sleep and in a daze. He was under the impression that the officers knew that the wrestling he wasreferring to was not real. However, when the officers said it had to be something more than just falling on Reginald, defendantstarted “second-guessing” himselfand said that maybe he did hit him harder than what I really thought. Defendant’s testimony regarding the cause of Reginald’s injuries coming from his fall onto Reginald while defendant was trying to make the bed shake was corroborated by the testimony ofDr. Herrmann, whotestified as an expert in the field of pathology. Based on his review of Reginald’s autopsy records, Dr. Herrmann opined Reginald’s injuries could have resulted from a single sharp blow to the back right side, such as from the weightof a 170-pound manfalling on him. Healso testified that the injuries to Reginald were not consistent with the child being beaten with fists because there was little bruising ofthe body. Dr. Herrmanntestified that it was equally probable that Reginald’s major injuries were caused by a single blow as by multiple blows. With regard to Reginald’s other injuries, Dr. Herrmann believed the injuries to the heart were likely due to the administration of CPR. The cause ofthe tear to Reginald’s frenulum wasas consistent with an endotracheal tube being placed in his mouth as with violent force. On cross-examination, Dr. Herrmannsaid he believed the chances ofReginald being injured by a person falling on him on a bed would be muchless than ifthe child were on the floor. It would be much less commonfor such extremeinjuries to occur if the child was on a bed when someonefell on him. However,“it’s still a likelihood or a possibility.” The injuries here would be excessive to what Dr. Herrmann would expect if someonefell sideways onto the child on a bed, as compared to someone “falling free” onto the child. Dr. Herrmann did not have an opinion as to whether Reginald was physically abused. After receiving these injuries a child might be screaming from pain or might go into shock immediately and be absolutely still. Either way, Dr. Herrmann believed a caregiver would notice a differencein the child after such injuries were sustained. Reginald’s death was not immediate; he bledto death. If he went into shock,it is possible that he lay down or appearedto be going to sleep. The Court of Appeal correctly concluded that this testimony is substantial enough to support a jury finding that defendant’s actions fell short ofthose which a reasonable person might believe would lead to the application of force likely to “produce great bodily injury.” The evidence is, however, enoughto support a conviction under section 240. Defendanttestified that, when hejumped onthe bedto makeit shake,he did notjump on Reginald and, therefore, did not apply force likely to produce great bodily injury. Rather, he jumpedonthe bed next to Reginald, and Reginald rolled under him as he was coming down on the bed. Dr. Herrmann’s testimony provides evidence on which the jury could conclude that this act — rather than any of defendant’s later actions — resulted in Reginald’s death. Ifthe jury believed defendant,it could conclude that the actions he described were of ‘“‘an act which byits nature would probably anddirectly result in the application of physical force on another person” and that defendant was“aware of facts that would lead a 9 reasonable person to realize that as a direct, natural and probable result ofthis act that physical force would be applied to another person.” (See People v. Wyatt (2010) 48 Cal.4th 776, 780, 786.) The People, however, argue that the prosecution’s evidence proved child abuse homicide based on the aggravated assault of Reginald and, therefore, the trial court was not required to instruct on simple assault. This argument ignores the general rule that, in determining the sufficiency of the evidence to justify the giving ofan instruction undera lesser included offense, the facts must be construed in a mannerthatis the most favorable to appellant. (People v. Stewart (2000) 77 Cal.App.4th 785, 795-796.) Courts mustlook at the evidence’s “bare legal sufficiency, not its weight.” (People v. Breverman (1998) 19 Cal.4th 142, 177.) It does not follow, as the People suggest, that a jury could not have found that defendant committed only a simple assault. And, while it is certainly the case that the defendantalso argued that the jury could acquit him on the groundthat his conduct wasaccidentaland, therefore, could not constitute an assault, this does not negate the possibility that a jury would disagree with the “accident”theory, but also find that the evidence fell short of aggravated assault. The jury was neverinstructed that an assault could not be based on negligenceor criminal negligence orthat a negligence orcriminal negligence finding could not include “intentional conduct,”i.e. intentional conduct could be negligent conduct, this explains how the jury could return convictions for both “assault” child homicide and “involuntary manslaughter” based on but a single act — the bedjumping act described by defendantin his testimony. (See ArgumentIV, post.) For all the above reasons, the People’s request for review should be denied. 10 Il THE TRIAL COURT PREJUDICIALLY ERRED IN INSTRUCTING THE JURY WITH CALCRIM NO.820 BECAUSE THAT INSTRUCTION OMITSANELEMENT OF PENAL CODE SECTION 273AB THAT THE ASSAULT THAT LEADS TO THE CHILD’S DEATH BE BY MEANSOF FORCE “THAT TO A REASONABLE PERSON” WOULD BE LIKELY TO PRODUCE GREAT BODILY INJURY. Defendant argued on appeal that the trial court prejudicially erred in instructing the jury with CALCRIM No.820 becausethat instruction omits an element ofPenal Code section 273ab, namely that the assault that leads to the child’s death be by meansof force “that to a reasonable person” would be likely to produce great bodily injury. The Court ofAppeal concludedthetrial court correctly instructed the jury, under CALCRIM No. 820, that the force used must have appearedlikely to a reasonable personto result in great bodily injury. (Appendix “A”at pp. 25-26.) The Court of Appeal erred, requiring review so that this Court can address the important question of law presented by defendant’s case. (Cal. Rules of Court, rule 8.500(b)(1).) Penal Code section 273ab defines the crime of child homicidein clear and express terms: “Any person who,having the care or custody of a child whois under eight years of age, assaults the child by meansofforce that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished... .” (Pen. Code, § 273ab.) Instead of defining child homicide in terms of its statutory elements, the trial court defined the crime in terms ofCALCRIM No.820. (2 CT 313-315; 8 RT 1516- 1518.) This instruction is defective because it fails to identify an essential element of the statutory crime — an assault “by means of force that to a 1] reasonable person would belikely to produce great bodily injury.” (Pen. Code, § 273ab; People v. Preller (1997) 54 Cal.App.4th 93, 97, 98.) The error affected an element of the charged crime, thereby violating defendant’s due process rights under the Fourteenth Amendment to the United States Constitution andarticle I, section 15 of the California Constitution. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15; In re Winship (1970) 397 U.S. 358, 364; People v. Flood (1998) 18 Cal.4th 470, 480-481, 491.) The proscribed act in section 273ab is an assault that is “objectively likely to produce great bodily injury.” (People v. Albritton (1998) 67 Cal.App.4th 647, 657-658.) In turn, the “objective” test requires application of a “reasonable person”test. (People v. Stewart (2000) 77 Cal.App.4th 785, 794.) CALCRIM No.820 omitsthis essential element. The instruction only requires a finding by the jury that “[t]he force used waslikely to produce great bodily injury.” (CALCRIM No. 820.) An assault may be “likely”to produce great bodily injury even thoughthe assault, to a reasonable person using an objective test, was not likely to produce great bodily injury. While it is unnecessary to determine how or why the creators of CALCRIM No.820 omittedthis essential elementor analyze its interpretation ofcase law,it appears they substituted “force used waslikely to produce great bodily injury” for the statutory element because People v. Basuta (2001) 94 Cal.App.4th 370, determined the crime of felony assault by means offorce likely to cause great bodily injury, as defined in Penal Code section 245, was a necessarily included offense. (People v. Basuta, supra, 94 Cal.App.4thatp. 392; see CALCRIM No.820, Lesser Included Offenses [Assault With Force Likely to Produce Great Bodily Injury].) The Basuta court, however, never actually decided whether the felony assault element was identical to the 12 objective reasonable person element of section 273ab, but it did note the difference in statutory language and the languageusedin section 273 “is more restrictive.” (People v. Basuta, supra, 94 Cal.4th at p. 392.) To the extent Basuta correctly found Penal Code section 245 felony assault is a lesser included offense of child homicide, a proposition which the defense contests underthe statutory lesser included offense doctrine (Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 261; People v. Stewart, supra, 77 Cal.App.4th at p. 795), because on its face section 273ab does not require an assault which, in fact, is by meanslikely to produce great bodily injury but only requires an assault that to a reasonable person would producegreat bodily injury, section 273ab must be construed to require both elements. In other words, under Basuta, the People must prove the assault was to a reasonable personlikely to produce great bodily injury andin fact likely to produce great bodily injury. The CALCRIM No.820instruction fails to define the crime in terms required by Basuta. Thetrial court’s failure to properly define the crime of section 273ab requires reversal becausethejury was never required to determine whetherthe assault was, to an objective person, likely to produce great bodily injury. (Neder v. United States (1999) 508 U.S. 1, 19.) The fact the assault did producegreat bodily injury or the jury foundthe assault was, in fact, by means likely to produce great bodily injury does not satisfy the reasonable person element of child homicide. Review should therefore be granted. 13 Ul INVOLUNTARY MANSLAUGHTER IS A LESSER INCLUDED OFFENSE OF PENAL CODE SECTION 273AB, AND THE TRIAL COURT PREJUDICIALLY ERREDIN FAILING TO INSTRUCT, SUA SPONTE, ON THAT LESSER INCLUDED OFFENSE. Defendantalso argued on appealthatthe trial court prejudicially erred in failing to instruct the jury, sua sponte, on involuntary manslaughter as a lesser-included offense of Penal Code section 273ab. The Court of Appeal rejected the argument, relying on the opinion in Orlina v. Superior Court (1999) 73 Cal.App.4th 258, in which the court found that involuntary manslaughteris a lesser related, rather than lesser-included, offense ofsection 273ab. (Appendix “A”at pp. 26-28.) The Court of Appeal erred, requiring review so that this Court can address the important question of law presented by defendant’s case. (Cal. Rules of Court, rule 8.500(b)(1).) In Orlina, the Court of Appeal, Fourth Appellate District, Division Three, concluded the crime of involuntary manslaughter was not a lesser included offense of section 273ab. (Orlina v. Superior Court, supra, 73 Cal.App.4th at pp. 260-262.) The Orlina court expressly foundthat statutory involuntary manslaughter, as defined in Penal Code section 192, subdivision (b), ie. an “unlawful killing of a human being . . . in the commission of an unlawful act, not amounting to felony,” was a lesser included offense of section 273ab because the assault required underthat statute is not a felony. (Id. at p. 261; see also People v. Stewart (2000) 77 Cal.App.4th 785, 796.) The Orlina court believed it could notdeclare involuntary manslaughter as a necessarily included offense of section 273ab because involuntary manslaughter could also be committed by an “unlawful killing of a human 14 being . .. in the commissionofa lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (Orlina v. Superior Court, supra, 73 Cal.App.4th at pp. 261-262.) The rationale used by the court was that section 273ab speaksto “reckless conduct”likely to produce injury, while the “second definition” ofinvoluntary manslaughter encompasses careless or negligent conduct. (/d. at p. 261.) Therefore, reasoned the court, the elements of involuntary manslaughter were not necessarily encompassed within the elements of section 273ab. (/bid.) The flaw in the Orlina court’s reasoning is four-fold. First, the crime ofmanslaughter is defined as “the unlawful killing of a human being without malice.” (Pen. Code, § 192.) However, this Court has held that the manner in which manslaughter is established is not an element of the crime. (Peoplev. Rios (2000) 23 Cal.4th 450, 454, 459, 465-466.) This applies to involuntary manslaughter as well as to voluntary manslaughter. (Jd. at p. 466.) The Orlina court did not have the benefit ofRios, which was decidedafter Orlina. Second, malice is not an essential element of section 273ab. (People v. Malfavon (2002) 102 Cal.App.4th 727, 741, 743.) Because section 273ab defines a non-malice homicide crime, non-malice manslaughteris necessarily, based onits statutory definition, a lesser included offense because there is no element of specific intent to kill or conscious disregard forlife. (People v. Rios, supra, 23 Cal.4th at p. 466.) Indeed, when the first manner in which involuntary manslaughter may be factually established is considered, the elements are identical, as the Orlina court necessarily recognized. Third, the mere fact involuntary manslaughter may be committed by another means does meanit is not a necessarily included offense. Indeed, voluntary manslaughteris a necessarily included offense for murder (People v. Rios, supra, 23 Cal.4th at p. 463), but voluntary manslaughter may not be 15 a necessarily included offense of felony-murder. The fact that voluntary manslaughter is not a lesser included offense for both murder and felony- murder does not robit of its lesser included offense status for murder. The fact that the second mannerofestablishing involuntary manslaughter may not be a lesser included offense under the Orlina rationale does not prevent involuntary manslaughterfrom being a statutory lesser included offenseby the first manner,if, in violation of Rios, the manner of commission is considered elements of the offense. The Orlina rationale deals more appropriately with the question of whether, in any particular case, the defendant would be entitled to an involuntary manslaughter instruction based on the evidence. (See People v. Rios, supra, 23 Cal.4th at p. 468.) However, this is not really a legitimate concern in a section 273ab case or a problem because the evidence which establishes the assault necessary for section 273ab will always support an involuntary manslaughter conviction. An assault that to a reasonable person is likely to cause great bodily injury and in fact causes death is necessarily dangerous to humanlife or safety. (People v. Cox (2000) 23 Cal.4th 665, 671- 672, 674-675.) The Orlina court did not have the benefit of Cox. Finally, the distinction drawnin Orlina no longerexists in light ofRios, Cox, and People v. Williams (2001) 26 Cal.4th 779, anothercase not available to the Orlina court. In its historical sense, “recklessness”is “a synonym for criminal negligence.” (People v. Williams, supra, 26 Cal.4th at p. 788,fn. 4.) Therefore, section 273ab does not speak to mere “reckless conduct,” as the Olina court asserted, but to the identical conduct encompassedin section 192, i.e. “an unlawful act constituting a misdemeanor[that is] dangerous to human life or safety under the circumstances of its commission.” (People v. Cox, supra, 23 Cal.4th at p. 675.) 16 Forall of the above reasons, the Court of Appeal erred in following Olina andits rationale. Review should therefore be granted. IV THE TRIAL COURT PREJUDICIALLY ERRED BY FAILING TO SUA SPONTE INSTRUCT THE JURY THAT CRIMINAL NEGLIGENCE CANNOT SUPPORT AN ASSAULT CONVICTION AND THAT INJURY ALONE IS NOT SUFFICIENT TO ESTABLISH AN ASSAULT. Defendant further argued on appealthat the trial court prejudicially erred becauseit did not instruct, sua sponte, that criminal negligence cannot support an assault conviction andthat injury aloneis not sufficient to establish an assault. In the alternative, defendant argued that his trial counsel was ineffective because he did not request such a jury instruction. The Court of Appeal concluded the trial court was not required, sua sponte, to give such a clarifying instruction. With respect to defendant’s argument that his trial counsel was ineffective, the Court of Appeal concluded that should counsel believe such an instruction would be useful, then counsel should requestit on retrial. (Appendix “A”at p. 28.) The Court ofAppeal erred, requiring review so that this Court can address the important question of law presented by defendant’s case. (Cal. Rules of Court, rule 8.500(b)(1).) The jury was instructed on child homicide under Penal Codesection 273ab in terms of CALCRIM No. 820. (2 CT 313-315; 8 RT 1516-1518.) This instruction was based, in part, on this Court’s opinion in People v. Williams (2001) 26 Cal.4th 779, which interpreted the language ofPenal Code section 240 and clarified the definition of assault. (See CALCRIM No.820, Authority.) However, CALCRIM No.820 leaves out an importantprinciple 17 of law which the Williams court reaffirmed, that assault cannot be based on negligence or criminal negligence. (People v. Williams, supra, 26 Cal.4th at p. 788.) Nor does CALCRIM No.820, unlike other CALCRIM “assault” instructions, include the principle that an assault does not require injury, but if injury did occur that fact, along with all the other evidence, may be considered in deciding whether the defendant committed an assault. (See CALCRIM Nos. 860, 861, 862.) It is a general and commonly knownprinciple of law, reaffirmed in Williams,that an assault cannotbe based on negligenceor criminal negligence. It is also a general and commonly known principle of law, as reflected in CALCRIM Nos. 860, 861, and 862, that an assault does not require an injury and if injury occurs it may be considered in determining whether an assault occurred andthe nature ofthe assault. Both principles of law are essential for thejury’s understanding and determination ofwhether an assault occurred and to preventand protect against a jury finding an “assault” based on negligence or injury alone. Because neither of these crucial principles is contained in CALCRIM No.820, contrary to the Court of Appeal’s conclusion,thetrial court erred in failing to include them suaspontein its instructions defining the crime of child homicide under section 273ab. Evenin the absenceofa request, the trial court was required to instruct on the general principles of law governing the case, i.e., those principles relevantto the issues raised by the evidence — the principles of law commonly or closely and openly connected with the facts of the case before the court. (People v. Flannel (1979) 25 Cal.3d 668, 680, 681; People v. McElheny (1982) 137 Cal.App.3d 396, 403.) Furthermore,the trial court had a sua sponte duty to give amplifying or eeeclarifying instructions “‘where the terms have a “technical meaning peculiar 18 to the law.””” (People v. McElheny, supra, 137 Cal.App.3d at p. 403.) When the crime of “assault” is an essential element of an offense,a trial court has a sua sponte duty to instruct on its definition. (Jbid.) Here, “[w]hat an assault is in law wasa general principle of law governing the assault charges against [defendant].” (/bid.) “The legal definition of an assault is not one commonly understood by those familiar with the English language”and, as the California Supreme Court’s continued attempts to define and clarify the crimeillustrate (People v. Williams, supra, 26 Cal.4th at p. 782), “‘assault’ indeed has a technical meaning peculiar to the law.” (People v. McElheny, supra, 137 Cal.3d at pp. 403-404; People v. Valenzuela (1985) 175 Cal.App.3d 381, 393.) Both omitted principles of law — neither negligence nor injury alone may support an assault conviction — are a key part of that “technical meaning peculiar to the law.” The omissions require reversal ofthe section 273ab conviction because the jury was not adequately or correctly instructed on the key element of “assault,” and the omissions allowed the jury to convict based solely on a finding of criminal negligence and injury or a combinationofthe two. Theerror affected an element of the charged crime, thereby violating defendant’s due process rights under the Fourteenth Amendmentto the United States Constitution and article I, section 15 of the California Constitution. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. L, § 15; Jn re Winship (1970) 397 U.S. 358, 364; People v. Flood (1998) 18 Cal.4th 470, 480-481, 491.) Review should therefore be granted. 19 Vv THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO INSTRUCT ON JURY UNANIMITY (CALCRIM No. 3500) AND THEREBY VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT TO UNANIMOUS JURY VERDICT. In its unpublished opinion filed on January 31, 2008, after reversing defendant’s Penal Code section 273ab conviction for insufficient evidence, two justices of the Court of Appeal affirmed defendant’s involuntary manslaughter conviction, concludedthe trial court did not err in failing to instruct on unanimity. (People v. Wyatt (Jan. 31, 2008, A114612) [nonpub. opn.]| at pp. 29-30.) Presiding Justice Klein filed a concurring and dissenting opinion. In the Presiding Justice’s opinion, the involuntary manslaughter conviction should also have been reversed for the failure to instruct on jury unanimity. On remand, in light of this Court’s opinion in People v. Wyatt (2010) 48 Cal.4th 776, which reinstated defendant’s section 273ab conviction, defendant requested the Court of Appeal to reconsider the earlier majority conclusion that there was noerror in failing to instruct on unanimity. The Court of Appeal refused to reconsider its earlier conclusion, stating that on retrial “the trial court should heed the Third District Court ofAppeal’s advice in People v. Norman (2007) 157 Cal.App.4th 460,to the effect that‘failure to give a unanimity instruction (now CALCRIM No.3500) is the most common kind of instructional error in criminal cases,’ and its related advicethattrial courts “put CALCRIMNo. 3500 on yourlist of standard instructions to give, then ask yourself: ‘Is there some reason not to give this instruction in this case?’” (Appendix “A”at pp. 29-30.) 20 Review should be granted to decide whetherthe trial court prejudicially err in failing to instruct on jury unanimity according to CALCRIM NO.3500 and thereby violated defendant’s constitutionalright to unanimousjury verdict. In the opinion of January 31, 2008, the majority ofthe Court ofAppeal concluded that no unanimity instruction was required either because the evidence showed “only a single discrete crime,” but left “room for disagreementas to exactly how that crime was committed” (People v. Russo (2001) 25 Cal.4th 1124, 1132), or because the offense constituted a “continuous course ofconduct” (People v. Maury (2003) 30 Cal4th 342, 423). (People v. Wyatt (Jan. 31, 2008, A114612) [nonpub. opn.] at pp. 29-30.) Reginald died ofshock and hemorrhagedueto blunt force traumato his chest and abdomen. Based on this Court’s decision in this case (Peoplev. Wyatt, supra, 48 Cal.4th 776), the evidence showed twodistinct acts — that defendant assaulted and fatally injured Reginald either by performinga series of wrestling moves on him before or after being warned by defendant’s girlfriend, Tiffany Blake, that defendant was playing too rough and could injure Reginald. Blake’s warning affected the means rea required for the crime of assault. This Court noted in its opinion (People v. Wyatt, supra, 48 Cal.4th at pp. 781-782) that in his first recorded interview with the Oaklandpolice, defendant explained that he got up on Sunday morning andstarted wrestling and playing with Reginald. Defendant picked Reginald up and threw him on the bed, and “chopped”his back with both hands. He held Reginald up and pressed the boy’s stomachto his head, and then turned andflipped Reginald a distance of about four feet onto the bed. At one point, while Tiffany Blake, wasstill at home, defendant accidentally fell on top of Reginald while performing a movehecalled “comin’ off the top rope.” As defendant was 21 about to jump on the bed, Reginald rolled unexpectedly and defendant’s hip came down on Reginald’s stomach, along with mostorall ofdefendant’s body weight of 170 pounds. Reginald grunted as ifthe wind had been knockedout ofhim, but he did not cry and continued to smile and seemedfine. (/d. at pp. 781-782.) Notably, when Blakelater told defendant he wasplaying too rough with Reginald and could hurt him, defendant stopped. (People v. Wyatt, supra, 48 Cal.4th at p. 782.) However, after Blake left for work, defendant resumed wrestling with Reginald for another 20 or 30 minutes. (/d. at p. 782.) Defendant told the police that during this period he might have hit his son harder because Blake wasnot there to interfere. Defendant “body-slammed”Reginald about four times, and usedhisfists to hit Reginald in the chest about 10 or 11 times. He did an “atomic elbow”to Reginald’s head, hit him in the upper chest with his forearm aboutthree times, and then hit him on the back. In addition, defendant held Reginald up by his neck, squeezed him betweenhis legs, and twice did a “knee drop,” in which he hit Reginald in the back with his knee. Healso did “pretend” head butts and boxed with Reginald, and repeatedly did a “suplex,” which involved grabbing Reginald andflipping him over defendant’s body onto the bed. Defendant said he wanted his son to be more “active” and was trying to “toughen him up” because a kid cannot be “soft” to grow up in Oakland. (Ud. at pp. 782-783.) In the second interview of defendant, when the police asked what defendant was feeling when wrestling with Reginald, defendant said he was not feeling like himself or thinking about being rough, then clarified he was “stuck”on play-fighting with his son: “Like I just had a one-track mind. I was Just stuck on toughening him up,playin’ with Reggie, beatin’ up Reggie ... 22 that’s all that was stuck on there.” (People v. Wyatt, supra, 48 Cal.A4th at p. 783.) He further stated, “[M]y mind musta went blank, though, for me to really ... hit him hard enough ... to hurt him, and I not notice it. I wasn’t payin’ attention, and I wasn’t thinkin’.” In defendant’s words, “I was hittin’ him pretty hard” and “I wasn’t doin’ nothin’ to not hit him no harder.” Asfor why he did not heed Blake’s warning about hurting Reginald, defendant admitted he was “[h]ard-headed” and “[s]tubborn” and “[d]idn’t want a womanto betellin’ me how to raise my son.” Although he had play-wrestled with Reginald before, this was thefirst time he “lost control.” (/d. at p. 783.) Defendant was not charged with continuing act or omission amounting to child abuse. (See People v. Sanchez (2001) 94 Cal.App.4th 622, 631.) Rather, he was charged with a criminalact that caused his son’s death. With respect to the crime prohibited by section 273ab,it is defined as follows: “Any person who,having the care or custody of a child whois under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonmentin the state prison for 25 years to life.” (Pen. Code, § 273ab, italics added.) Theitalicized language requires that in order to convict a defendant under section 273ab,the prosecution must prove not only that the defendant assaulted the child with the requisite degree of force, but also that the charged assault causedthe child’s death. (People v. Norman (2003) 109 Cal.App.4th 221, 231 [“the actual death of a child under age eight is an element ofthe crime”undersection 273ab(italics in original)]; People v. Preller (1997) 54 Cal.App.4th 93, 96-98 [section 273ab requires degree offorce that reasonable person would know waslikely to result in great bodily injury, and requires that death of child result from such force]; see also CALJIC No.9.36.5 [elements ofsection 273ab include death ofchild resulting 23 from assault].) To establish an assault, the prosecution had to prove that defendant “acted with awareness of facts that would lead a reasonable personto realize that great bodily injury would directly, naturally, and probably result from his act.” (People v. Wyatt, supra, 48 Cal.4th at p. 781, citing People v. Williams (2001) 26 Cal.4th 779, 788.) Here, reasonable jurors could conclude that defendantdid not havethis requisite awareness before Blake’s warnings that he was being too rough and could hurt Reginald. In every crime there must exist a union or joint operation of act and requisite mental state. (Pen. Code, § 20.) The evidence here does not show a single discrete crime, with two possible ways in which it could have been committed. Rather, the evidence showstwodistinct acts separated by a break when Blaketold defendantto stop playing rough with Reginald. Each act is wholly distinguishable from the other. (See People v. Davis (2005) 36 Cal.4th 510, 561.) Indeed, under the evidence, some of the jurors could have found the “assault” causing death necessary for the section 273ab conviction based solely on defendant’s wrestling with Reginald before Blake told defendant that he was playing too rough with his son and could hurt him. It was during that period oftime that defendantjumpedon the bed and landed on his son with full body force. This act alone could have been the cause of Reginald’s death. On the other hand, other jurors could have found “assault” causing death based solely on defendant’s wrestling moves after Blake’s warnings, which put defendant on notice that his rough play could hurt Reginald. It was during this second and separate acts ofwrestling that defendant allegedly lost control and hit Reginald harder while trying to toughen him up. Under these circumstances, juror unanimity instruction was required because the jury could have found 24 defendant guilty ofviolating section 273ab without agreeing as to what act or acts constituted assault causing Reginald’s death. Furthermore, even if it is concluded that the various wrestling moves before and after Blake’s warning fall within the “continuous course of conduct” exception to the unanimity instruction requirement, the evidence nevertheless showsa possible separate and distinct act that defendantfell on Reginald onthe bed,thereby injuring him and causinghis death. This distinct act was subject to a completely different defense than the wrestling moves. Whereas defendant deniedhitting Reginald violently while play-wrestling with him, defendant claimed that he accidentally fell on Reginald while trying to jump on the bed to make it bounce. Accordingly, there was evidence from whichthe jurors could find that defendant caused Reginald’s death either by performing violent wrestling moves on his son, both before and after Blake’s warnings, or falling on him while trying to jump onthe bed. Indeed, there was evidence from which the jury could logically find that one act, but not another, amountedto “assault” which caused Reginald’s death. The evidence showedandtheparties argued that Reginald’s fatal injuries had resulted from the wrestling or thejumping on the bed, not from both. For the abovereasons, the unanimity instruction was required because defendant’s convictions could be based on twodiscrete acts. (See People v. Dellinger (1984) 163 Cal.App.3d 284, 289-302 [a unanimity instruction was required because the defendant was charged with first degree murder of a child, and the evidence showedthat the child’s death had been caused either by the ingestion of cocaine, or by blunt force traumato the head,or both]; see also People v. Espinoza (1983) 140 Cal.App.3d 564, 567-569 [The prosecutor arguedattrial that the defendant could be convicted of assault with a deadly 25 weapon based either on the defendant’s own use of a knife, or on his confederate’s use ofrifle during the same robbery. The appellate court held that a unanimity instruction should have been given, because “the physical acts involving the knife were not identical to those with the gun,”so the jury could have found the defendant guilty without agreeing as to what act or acts constituted assault with a deadly weapon.].) Theerror violated defendant’s constitutional right to a unanimousjury verdict (People v. Nye (1965) 63 Cal.2d 166, 173; People v. Morse (1964) 60 Cal.2d 631, 656-657; Cal. Const., art. I, § 16), and may have lessened the prosecution’s burden of proof on the act element of the offense (People v. Deletto (1983) 147 Cal.App.3d 458, 473). Review should therefore be granted. VI DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AS GUARANTEEDBYTHE SIXTHAMENDMENTTOTHE UNITED STATES CONSTITUTION AND CALIFORNIA CONSTITUTION, THROUGH HIS TRIAL COUNSEL’S FAILURE TO REQUEST AND/OR OBJECT TO SEVERAL CRUCIAL JURY INSTRUCTIONS. Defendant hadtheright to effective assistance oftrial counsel under the Sixth Amendmentto the United States Constitution and article I, section 15 of the California Constitution. (Strickland v. Washington (1984) 466 U.S. 668; People v. Ledesma (1987) 43 Cal.3d 171; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) Here,in spite of his duty to carefully prepare and requestall necessary jury instructions (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7; People 26 v. Whitehurst (1992) 9 Cal.App.4th 1045, 1051, fn. 2), defense counselfailed to: (1) Object to the given standard CALCRIM No. 820 instruction becausethat instruction omits an element ofPenal Code section 273 ab, namely that the assault that leads to the child’s death be by meansofforce “that to a reasonable person” would be likely to produce great bodily injury. (Argument II, ante); (2) Request a jury instruction on involuntary manslaughter asa lesser included offense of Penal Code section 273ab (ArgumentIII, ante); (3) Request a jury instruction that would expressly tell the jury that criminal negligence cannot support an assault conviction and that the jury could not find an assault based solely on establishment ofan injury (Argument IV, ante); and (4) Request an instruction on jury unanimity (ArgumentV,ante). Defense counsel’s omissions deprived defendant ofhis right to a fair trial under the federal and state Constitutions. (Montana v. Eglehoff(1996) 518 US. 37, 43 [failure to properly instruct the jury may deprive defendant of a fair trial]; Medina v. California (1992) 505 U.S. 437, 446 [same]; People v. Hogan (1981) 31 Cal.3d 815, 849 [jury instructions and jury deliberationsare critical stages of every criminal case].) Review should therefore be granted. 27 Vil DEFENDANT’S SENTENCEOF25 YEARSTO LIFE FOR THE UNINTENTIONAL HOMICIDE UNDER PENAL CODE SECTION 273AB VIOLATES THE FEDERAL AND STATE CONSTITUTIONAL PROSCRIPTION AGAINST CRUEL AND UNUSUAL PUNISHMENT. Defendant argued on appeal that his 25 years to life sentence under Penal Codesection 273ab violates the constitutional proscription against cruel and unusual punishment. Relying on People v. Norman (2003) 109 Cal.App.4th 221 and People v. Lewis (2004) 120 Cal.App.4th 837, the Court of Appeal rejected the argument, concluding the punishment was not disproportionate to the crime. (Appendix “A”at p. 29.) The Court ofAppeal erred, requiring review so that this Court can address the important question of law presented by defendant’s case. (Cal. Rules of Court, rule 8.500(b)(1).) There is no question the Legislature may create a new crimeofcriminal homicide and that child homicide, as defined in section 273ab, is an “assault- homicide” crime. (People v. Norman, supra, 109 Cal.App.4th at 231; People v. Malfavon (2002) 102 Cal.App.4th 727, 736, 738, 740.) Ifthe assault to a reasonablepersonis likely to cause great bodily injury and causes death, the punishment of 25-years-to-life is imposed regardless of the actual nature of the assault. If the assault was done with express malice aforethought and with deliberation and premeditation,i.e. first degree murder, the punishmentis 25-years to life — the same as first degree murder. If the assault was done with either express or implied malice, i.e. second degree murder, the punishmentis identicalto first degree murder (People v. Norman, supra, 109 Cal.App.4th at 231; People v. Malfavon, supra, 102 Cal.App.4th at p. 731), even though punishment for second degree murderis 15-years to 28 life. If no malice was involved in the assault, i.c., manslaughter (either voluntary or involuntary manslaughter), the punishmentisstill identicalto first degree murder, even though punishment for manslaughter is a fixed determinate term which doesnot event begin to approachtheseverity ofeither a 25-year-to-life or 15-year-to life term of imprisonment. The identical punishment that is equivalent to first degree murder punishment for different grades of criminal child homicide is cruel and/or unusual punishment when different punishmentsattach to different grades of criminal homicide,i.e. first degree murder, second degree murder, voluntary manslaughter and involuntary manslaughter. Based on the conviction of involuntary manslaughter, a lesser included offense of murder, it appears the jury convicted defendant of criminal- negligence child-homicide. To punish defendantas ifthe jury had foundthat he had committed first degree murder or murder-child-homicide under these circumstances, after the jury expressly concluded defendant did not act with either express or express malice and the trial court took the issue offirst degree murderfromthejury without objection from the prosecutor, is shocking and constitutes cruel and/or unusual punishment underthe federal andstate constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) Onits face, and as applied to defendant, the 25-year-to-life punishment is cruel and/or unusual punishment. The disparity in punishmentis reflected by the 3-year term imposed for involuntary manslaughter. While courts have attempted to justify 25-year-to-life punishment based on the status of the defendant (caregiver) and victim (child under age eight) (People v. Lewis, supra, 120 Cal.App.4th at p. 856; People v. Norman, supra, 109 Cal.App.4th at p. 232), status aloneis insufficient to justify the disparity in punishment. In this case, a loving father negligently killed his 14 month-old-son. His 29 punishment is 25-years to life, the same punishment that would have been handed down to a stranger who killed Reginald with express malice and premeditation and deliberation or a parent who killed his or her child with express malice and premeditation and deliberation. The 25-year-to-life punishment imposed on defendant is absurdand it shocks the conscience of a civilized society. Review should therefore be granted. 30 CONCLUSION For the above reasons this Court should deny the People’s petition for review. However,if this Court grants review on the issue brought up by the People, this Court should also grant review to address other important questionsoflaw presentedbyhiscase, as set forth in this answer. (Cal. Rules of Court, rules 8.500(a)(2), 8.500(b)(1).) Dated: January 19, 2011 Respectfully submitted, we 4 4,S aEW aldemar D. Halka Attorney for Defendant and Appellant Reginald Wyatt 31 CERTIFICATE OF LENGTH I, Waldemar D.Halka, counselfor petitioner, hereby certify pursuant to the California Rules ofCourt, that the word count for this documentis 8,250 words. (Cal. Rules of Court, rule 8.504(d)(1).) This document was prepared in Corel WordPerfect version 11, and this is the word count generated by the program for this document. I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed, at San Diego, California, on January 19, 2011. a i Z Y Waldemar D. Halka Attorney for Defendant and Appellant Reginald Wyatt 32 APPENDIX “A” Unpublished Opinion of the Court of Appeal COPY Filed 12/9/10 On remand from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying on opinions notcertified for publication or ordered published, except as specified by rule 8.1115(b)}. This opinion has not beencertified for publication or ordered published for purposesof rule 8.1315. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT | Court of Appeal First Appsilate District FILED | ' ] DIVISION TWO 7 | | DEC - 9 2619 | THE PEOPLE, sana tlaber. ciees | Plaintiff and Respondent, A114612 fBYeon moorsay| Vv. REGINALD WYATT, (Alameda County Super. Ct. No. C147107) Defendant and Appellant. I. INTRODUCTION After a jury trial, Reginald Wyatt (appellant) was convicted of involuntary manslaughter and assault on a child causing death. On appeal, he contends (1) thetrial court improperly limited his cross-examination of a police officer during a hearing on the voluntariness of appellant’s statements to officers; (2) thetrial court failed to instruct sua sponte on the requirement ofjury unanimity as to both counts; (3) the trial court omitted an essential element of the offense in its instruction on assault on a child causing death; (4) the trial court failed to instruct sua sponte on assault as a necessarily included offense of assault on a child causing death; (5) the trial court failed to instruct sua sponte on involuntary manslaughteras a necessarily included offense of assault on a child causing death; (6) the trial court failed to instruct the jury that criminal negligence could never support an assault conviction andthat injury aloneis not sufficient to establish an assault; (7) the evidence was insufficient to support the conviction for assault on a child causing death; (8) the evidence wasinsufficient to establish the corpusdelicti for either offense; (9) California’s corpus delicti rule violates due process; (10) the jury instructions directed guilty verdicts; (11) appellant was deniedhis right to effective assistance of counsel; and (12) the sentence of25 yearsto life constitutes cruel and/or unusual punishment. Weearlier foundthat the evidence wasinsufficient to support the conviction for assault on a child causing death, and reversed that conviction. Wealso rejected defendant’s contentions that the trial court erred in limiting cross-examinationofpolice officers during a Miranda’hearing,that the court failed to, sua sponte, instruct the jury on the need for unanimity with regard to the both the charged offenses,that the evidence wasinsufficient to establish the corpus delicti for either offense, that California’s corpus delicti rule violates due process, and that the jury instructions in this case directed guilty verdicts. In People v. Wyatt (2010) 48 Cal.4th 776, 780, 786 (Wyatt), the California Supreme Court reversed our judgmentto the extent that we found insufficient evidence to support defendant’s conviction for assault on a child causing death and remanded the matter to us. Wenow address the remaining issues on appeal. Because we concludethat the trial court erred whenit failed to instruct, sua sponte, on assaultas a necessarily included offense of assault on a child causing death, we address only those issues germaneto a possible retrial, namely,that the trial court omitted an essential elementofthe offense in its instruction on assault on a child causing death;that the trial court failed to instruct sua sponte on involuntary manslaughteras a necessarily included offense of assault on a child causing death; and thatthe trial court failed to instruct the jury that criminal negligence could never support an assault conviction and that injury aloneis not sufficient to establish an assault. Wealso consider and reject defendant’s contention that the sentence of 25 years to life constitutes cruel and/or unusual punishment. ' Miranda v. Arizona (1966) 384 U.S.. 436 (Miranda). Il. FACTUAL AND PROCEDURAL BACKGROUND Appellant was charged by information with murder (Pen. Code, § 187, subd.(a), count 1),” and assault on a child causing death (§ 273ab, count 2). The information further alleged, as to both counts, that appellant had personally inflicted great bodily injury on the victim, within the meaning of section 1203.075. The information also alleged that appellant had suffered a prior felony conviction. Duringtrial, the court granted appellant’s motion, under section 1118.1, for judgmentof acquittal as to first degree murder in count 1. With respect to count1, the jury found appellant guilty of the lesser included offense of involuntary manslaughter. With respect to count 2, the jury found appellant guilty of the charged offense of assault on a child causing death. On its own motion, thetrial court struck the great bodily injury and prior conviction allegations, pursuant to section 1385. On July 6, 2006, the trial court sentenced appellant to 25 years to life on count 2 and to the middle term of three years on count |, stayed pursuant to section 654. On July 20, 2006, appellant filed a notice of appeal. Prosecution Case Charrikka Harris, mother of Reginald Wyatt Jr. (Reginald), met appellant in March 2001. They began a physical relationship, although Harris already had a boyfriend. Harris found out she was pregnant in July 2001, by which time appellant had anothergirlfriend. At first appellant seemedall right with the pregnancy, but shortly before Reginald was born, he said he did not think the baby was his and would not assumeresponsibility until he found out that it was his baby. After Reginald was born, appellant refused to sign his birth certificate because “it wasn’t his baby.” He also refused to take a paternity test or to provide any financial support. Subsequently, appellant and Harris agreed to go on the Maury Povich Show, which was doing a show about paternity. Appellant took a paternity test before being flown to New York for the show; he and Harris were also given spending money. Povich * All further statutory references are to the Penal Code unless otherwise indicated. announcedonthe showthat the paternity testing showedthat appellant was Reginald’s father. After they returned to Oakland, appellant’s attitude changed. For about two weeks, he would cometo Harris’s houseto feed and play with Reginald. Then, he and Harris got into an argument about appellant’s girlfriend and he stopped coming over. Appellantstill refused to contribute financially, and Harris went to court to try to get appellant to help support Reginald and spend time with him. Appellant then soughta restraining order against Harris. The court referred them to a mediator. The court eventually orderedvisitation for appellant for five hours every Saturday. Appellant was inconsistent in his visits. Appellant was also ordered to pay $50 per week in child support, which he did. After Reginald’s first birthday, Harris agreed to let appellant take Reginald for overnight visits. After the first overnight visit, Harris smelled marijuana on Reginald’s sweater and also saw what appearedto be a burn on the back of his neck. She called the police. A paramedic lookedat the mark andsaid it was “ ‘an old scratch.’ ” Another time, she found a lump with a scab onit on Reginald’s chest. She took him tothe hospital. - On Saturday, May 17, 2003, after agreeing that appellant could take Reginald for the weekend, Harris met appellant and he took Reginald with the plan that Harris would pick Reginald up the next day. Appellant had asked a few days earlier if he could take custody of Reginald and whether Harris would let Reginald move in with appellant and his girlfriend. Harris said she would think aboutit. Reginald was then 14 monthsold. Tiffany Blake was appellant’s girlfriend. They lived together in Oakland and had been together since 2002. Their daughter, Valerie, was born in February 2003. On Saturday, May 17, 2003, Reginald cameto spend the night with appellant, Blake, and Valerie in their apartment. It was about the third time he had spentthe night with them. Reginaldslept on a pallet—a makeshift bed on the floor with a comforter, blankets, and a pillow—at the side of the bed. On Sunday morning, May 18, Blake got up at around 7:00 a.m. to get ready to go to work. It was her first day back at her job after a maternity leave and she had to be at work by 10:00 a.m. Blakeleft the apartment at about 9:00 a.m. to catch the bus to work. Before that, she saw appellant playing with Reginald. He waslifting Reginald up in the air overhis head, spinning him around, and bouncing him downonto the bed. Reginald had a blank look on his face and Blake said to appellant, “Maybe you shouldn’t do that. Maybe he doesn’t like it. Maybe he’s not having fun.” After that, she saw Reginald sitting and watching television until she left for work. At about 10:00 a.m., appellant called Harris and left a message that Reginald had had an asthmaattack and needed his asthma machine. He sounded nervous. When appellant called back, Harris answered the phone. Appellant said Reginald could not breathe; he also said an ambulance and the police were there. Harris hung up the phone and rushed to Children’s Hospital in Oakland, where she assumed Reginald would be taken. Appellant also called Blake at work between 11:00 a.m. and 12:00 p.m. Appellant told her that Reginald was not breathing and he was waiting for an ambulance. Hecalled her back 20 to 30 minuteslater on her cell phone. He was crying and said Reginald had died. At about 10:45 a.m., Douglas Curtis, who lived in appellant’s apartment building, heard a knockat his door and saw person there holding a baby in his arms. Another baby wassitting on the floor outside. The mansaid, “ ‘Would you please dial 911? My baby is not breathing.’ ” The man, who looked scared, said the baby had asthma andthat he hadtried to call 911 but could not get through. So Curtis called 911 and, in about five or ten minutes, an ambulance and paramedicsarrived. Whenparamedicsarrived, Reginald was lying on the sidewalk anda firefighter was administering C.P.R. Reginald was not breathing and there was no pulse. An endotracheal tube wasplaced in his mouth and other efforts to revive him were made, but the efforts were not successful. The paramedics then transported him to the hospital. Oakland Police Officer Kaizer Albino obtained a statement from appellant while paramedics werestill treating Reginald on the sidewalk. Appellant “was quite emotional. > Blaketestified that she still visited appellantat jail and still loved him. He wasupset. His attention was focused on his son. He wasnotall there, so he wasn't responding to my questions.” Therefore, Albino suggested they go upto appellant's apartment, which they did. In the statement obtained from appellant, appellant said he wasplaying with his two children that morning, after which he gave his son a cup of milk and put him downonthefloor. | Appellant then lay on the bed with his daughterandfell asleep. When he wokeup, appellant noticed that Reginald was not breathing and had green fluid coming from his nose. At the hospital, when doctors could not revive him, Reginald was pronounced dead. Other thana little scratch on his chin, the treating doctor saw no signs of injury or trauma on Reginald’s body. Sergeant James Rullamasinitially believed it was a SIDS death and asked appellantto fill out a form for the coroner’s office. The form contained a question about a history of fall or accident, and appellant said Reginald fell out ofhis arms as he wastrying to get out the door to get help. Appellant said there were no other falls or accidents. The next day, Monday, May 19, 2003, appellant, his brother Anthony, Harris’s sister, and a friend were at Harris’s house when the coronercalled and told Harris that the autopsy results were in and that Reginald had broken ribs, a severed liver and spleen, and had died from blunt trauma. Healso said officers were en route to “pick up” appellant. Harris hung up the phoneandsaid to appellant, “[t]hey’re going to arrest you.” Appellant and his brother then drove to the Oakland Police Department.* On that Monday morning,after he learned the results of the autopsy, Sergeant Rullamasasked officers to prepare an arrest warrant and to arrest appellant for murder. Before any arrest was made, Rullamaslearned that appellant had cometo thepolice station with his brother, Oakland Police Officer Anthony Caldwell. Sergeants Rullamas and Nolan interviewed appellant after reading him his Miranda rights. In accordance with normal procedures, they interviewed appellant before taking a tape-recorded * After appellant was arrested, Harris visited him three days a weekin jail for some time. Her family stopped speaking to her because she wasin contact with him. She did not believe appellant killed Reginald “on purpose.” statement. Rullamas acknowledgedthat it was a difficult interview because appellant’s brother was an Oaklandpolice officer whosework Rullamas respected. However, harsh tactics were not necessary with appellant. It was “a very, very soft interview”since appellant “responded to kindness,” which is “fairly unique.” Two tape-recorded interviews were made and were played forthe jury duringtrial. In the first tape-recorded interview, which began at 6:14 p.m., appellant said that, after he got up on Sunday morning, he was wrestling and playing with Reginald. He waslifting him up and dropping him on the bed. Appellant described an accident that occurred while Blake wasstill home. Appellant was doing a movecalled “comin’ off the top rope.” As he jumped onthe bed, Reginald rolled unexpectedly and appellant’s hip came down on his stomach with most or all of appellant’s body weight of 170 pounds. Reginald grunted like the wind had been knocked out of him. Blake then said he was playing too rough with Reginald and could hurt him, so he stopped. Reginald did not cry during any of this. He was laughing and then, after appellant fell on him,hestill had a smile on his face. After Blake left for work, appellant began playing with Reginald again. They played for 20 or 30 more minutes. He might have hit Reginald harderat that point in their play, since Blake was gone. He continued wrestling with Reginald, except he did not “come off the top rope” since he had jumped on him earlier. Appellant body slammed Reginald about four times, hit Reginald in the chest with his fist about 10 or 11 times, did the ‘atomic elbow”to his head, hit him in the upper chest with his forearm about three times, and then hit him in the back. Appellant also held Reginald aroundhis neck while he had him upin the air, squeezed him betweenhis legs, hit Reginald in the back twice with his knee (the knee drop), and did the body slam andpretend head butts. He boxed with Reginald and did the supplex many times, which involved flipping Reginald over his body onto the bed; that move made Reginald laugh every time. Appellant did not think he was hurting Reginald because he was playing with him. When Rullamas had asked appellant at the hospital the previous day if there was any history offall or accident, appellant did not tell him about the wrestling or falling on Reginald because he wasjust playing with him and“didn’t think that had anything to do with anything.” He wasnottrying to hide anything; he just did not think that was the cause. Sergeant Nolan noted that Sergeant Rullamashad earlier talked about every man wanting his son to be kind of tough,to be able to take it and be a man,to whichappellant responded, “{H]ere my son . . . he’s not movin’ around.I just wanted him to move around ... and be active... [{] All I was tryin’ to . . . just kinda toughen him up. Becausethis . . . it’s hard out here. Y’all know how manypeople getkilled outhere, too....” When Nolan asked if he or Rullamas had madeanythreats or promises to appellant, appellant respondedin the negative. When Nolan asked, “Wetreated you pretty nice?” appellant responded, “Extremely.” The interview concluded at 7:16 p.m. Rullamas and Nolanleft the interview room and went over appellant’s statement. Much ofwhat appellant said did not make sense to Rullamas and he thought“there had to be somekind of anger in there, some kind of punishment, or somethingin there, in my mind, and I wanted to ask him aboutthat.” At 8:00 p.m., they returned to the room to discuss this with appellant. Appellant said “he wastrying to toughen [Reginald] up little bit, but that none ofit was out of anger.” Appellant also said that it was not an attemptto discipline his son, and that his form of discipline was just to take toys away from him. Nordid it have anything to do with any frustration he was feeling. Theofficers then left the room again andcalled thedistrict attorney’s “call-out team.” A representative from thedistrict attorney’s office cameto the police station, along with her inspector, after 9:00 p.m. After Rullamas briefed them on the case and theylistened to the tape recorded statement, the team wanted the officers to attemptto obtain additional information in three areas: (1) why wasthe child with appellant outside of the hours prescribed by the court order; (2) how many times in the past had Reginald beenat appellant’s apartment; and (3) what was Tiffany Blake’srole in raising the child. Therefore, the officers returned to the interview room and asked appellant additional questions. Regarding the court order for visitation, appellant said he and Harris had madeplans for Reginald to start spending more time with him and he wanted Reginald to get used to living with him. Healso said that Reginald had spent the nightat his apartmentsix or seven times and that Blake helped with Reginald’scare. At 11:23 p.m., Rullamas and Nolan began a second taped interview with appellant. Appellant said he wasnotreally thinking about anything when he waswrestling with Reginald; his mind was going blank. It was “[l]ike I just had a one-track mind. I was just stuck on toughening him up,playin’ with Reggie, beatin’ up Reggie,” by which he meant “play fighting with him.” When appellant said his mind went blank, he meantthat “my mind musta went blank, though, for meto really .. . hit him hard enough . . to hurt him, and I not notice it. I wasn’t payin’ attention, and I wasn’t thinkin’... [{] ... But then .. . cameto a point whereit got more serious than that, and I didn’t notice andI wasn’t thinkin’ . . . that I can hurt him. I wasn't thinkin’. [{] . . . [{] [It got more serious] because he washit too hard. He washit too hard, and I wasn’t . . . doin’ nothin’ to, you know,not hit him no harder.” When asked how hard he washitting Reginald; appellant said, “I washittin’ him pretty hard.” Appellant said he did notlisten when Blake told him to stop being so rough because he was“[h]Jard-headed. Stubborn. Stuck in my ways. Didn't want a womanto be tellin’ me how to raise my son.” Appellant said he had wrestled with Reginald before, but this wasthe first time he wrestled with him “like this,” “[t]o this point . . . where I was outta control.” Appellant thought he lost control at the time he started slamming Reginald on the bed. Hesaid, “14 months old. Just a little baby. Shouldn’ta been playin’ wit’ ‘im like that.” When asked what madeit turn from play wrestling to real wrestling, appellant said, “Just wasn’t thinkin’ at all. Just wasn’t thinkin’.” Appellant said after he landed on Reginald, Reginald lay down and appellantsaid, ““ ‘Nah,it ain’t time to go to sleep. Come on.’ And wejust kep’ on playin’.” Appellant also acknowledgedthat he felt pressures related to money, getting his barber’s license, “just the every day hustle andbustle . . . just tryin’ to make it. Tryin’ to stay out the way.” This interview ended at 11:39 p.m. and appellant wastakento jail. Rullamas interviewed Tiffany Blake on May 21, 2003. The jury listened to Blake’s tape-recorded interview duringtrial. During the interview, Blake said appellant started playing with Reginald on the Sunday morning. He wouldlift Reginald up in the air, swing him around, and put him on the bed. Reginald was crying and so Blaketold appellant not to play with him like that, that she thought he was playing too rough. She thought maybeit scared Reginald to be up in theair. Blake said appellant had never done anything that caused her concern regarding his ability to care for his son or their daughter. He had never done anything reckless or dangerous and wasa good father. They were trying to get custody ofReginald and were working on getting themselves together so they could have both children and support them financially. They were having Reginald stay over on the weekends so he could get used to living with them. Dr. David Levin, a pathologist, performed an autopsy on Reginald’s body on May 19, 2003. Reginald, who was 31 inchestall and weighed 26 pounds, died of shock and hemorrhage dueto blunt force traumato the chest and abdomen. During an external examination ofthe body, Dr. Levin found an abrasion on the chin and two abrasions on the neck. There wasa laceration of the frenulum of the upper lip and a contusion on the chest. Internally, Dr. Levin found an internal contusion to the forehead, hemorrhage on the surface of the heart, on the tissue behind the heart, and at the hilus ofthe left lung. There were multiple lacerations to the liver, which caused internal bleeding of 200 milliliters of blood into the abdominal cavity. There was also hemorrhage behind the abdominal cavity and hemorrhagein the mesentery of the small and largeintestines. There were acute fractures ofthe fifth and sixth ribs on both the right and left side ofthe back of the body. There was also mild cerebral swelling. Reginald’s injuries were consistent with blunt force traumato his back, abdomen, chest, and head. Someofthe injuries could have been caused by a person who weighed 10 170 pounds jumpingup and landing with his hip onto the midsection of the child. They also could have been caused by multiple instances of blunt force trauma. There would not necessarily be bruising, especially in softer areas like the abdomen. Thelaceration to the frenulum could have been caused by blunt force to the face or something being jammedinto the mouth. The cerebral swelling could have been caused by blunt force traumato the head, by changes occurring during the dying process, or by administration of a large amountof fluids by medical personnel in an attempt to regain blood pressure. The contusion on the chest could have been caused by someone attempting to administer CPR, but CPR would not have caused the fractured ribs in the back of the body. A child whosuffered these injuries would not die instantaneously and Dr. Levin would expect that the child would cry. Death could occur in less than an hour up to many hours. Dr. James Crawford, medical director of the Center for Child Protection at Children’s Hospital in Oakland, testified as an expert in pediatrics, in the medical evaluation of child abuse. Dr. Crawford reviewed Reginald’s autopsy protocol. Reginald’s injuries were “‘at the end ofthe bell curve,”that is, at a level of injury that is uncommonin a one-year old. The types of injuries he suffered, including the multiple lacerations to the liver and the multiple sites of internal bleeding, “are seen only in the most serious events,” such as children whoare in car crashesor hit by motor vehicles. The likelihood that Reginald’s ribs were broken during CPR was “extraordinarily small.” The fractures could conceivably have been caused by blunt force traumato the child’s back, but would have to have been “something that would have been quite violent, quite out of the ordinary,” given how uncommonrib fractures are in children. Unless he was unconsciousor had a profound neurological condition, a child would be expected to react to the types of injuries shown to have occurred here by crying andclearly demonstrating that he wasin distress. As to his opinion regarding how many times Reginald must have beenhit in order to receive these injuries, Dr. Crawford believed there had to have been “at least multiple, and potentially many impacts.” It is remotely possible that one extremely violentlateral I] compression could have causedall of the significant injuries. However, it is morelikely that the injuries were caused by more than one blow. Dr. Crawford explained, “[The fewer numberof impacts that one is invoking, to explain it, the more violent those impacts have to be. So a single event would—it was, you know,to crush the child’s body this way would have been an extraordinarily violent act, in order to causeall these injuries at the sametime, as opposedto multiple lessers, but still dangerously violentacts, to different parts of the body.” The level ofviolence would be equivalent to getting hit by a motor vehicle or being a passengerin a car crash. | Defense Case Appellant, who was 31 years old at the timeoftrial, testified on his own behalf. Helived in Winfield, Louisiana until he was 28 years old, at which time he moved to California. Heinitially lived with his brother and his stepmother in Oakland. His jobs in California included working at a bar, working at Kmart, and working at a mattress warehouse. Hehadprior convictions in Louisiana for battery on a policeofficer, possession of a weapon,and possession with intent to distribute cocaine. When appellant met Charrikka Harris, he thought he wassterile because he had ~ “slept with a lot of girls” and none of them got pregnant. When Harris got pregnant, he did not think the baby was his. Reginald was born on March 6, 2002. He went on the Maury Povich Showto find out if Reginald was his baby. Once he learned Reginald was his baby, he wanted to be with him. He saw Reginald almost daily for a couple of weeks, but then stopped coming by Harris’s home very much and seldom saw his son,partly because he and Harris would always argue. After appellant and Harris went to a mediator, he saw Reginald more often. When he andhis girlfriend, Tiffany Blake, moved to Walnut Street in Oakland, in February 2003, he saw Reginald even more regularly because he nowhad a morestable residence. Reginald spent the weekend with appellant five or six times before Reginald’s death. Appellant never struck Reginald except for one time when he slapped Reginald on the hand for playing with the steering wheel in the car. Appellant never had to discipline Reginald because he was a good babyandeasyto care for. 12 On Saturday, May 17, 2003, Harris brought Reginald to appellant for a weekend visit. On Sunday morning, while Blake was getting dressed for work, appellant started playing with Reginald, swinging him upin the air and putting him on the bed. Blake told him he wasplaying too rough with Reginald, who was whining. After Blakeleft the apartment, appellant began playing with Reginald again, picking him up and tossing him on the bed. Reginald laughed while appellant did this. Appellant also put Reginald on the bed and jumped onit to make it shake, which he had done in the past. Appellant never did any wrestling moves on his son. When he describedto the police the wrestling moves he did on Reginald,it was all pretend wrestling he wastalking about. He neverstruck Reginald hard, only pushed him while playing with him and doing “make-believe wrestling moves,” such as off-the-top-rope, head butt, supplex, and an atomic elbowto the head. At one point, an accident occurred. Appellant had jumped in the air and was coming downonthe bed to makeit shake, when Reginald rolled toward him and appellant fell on Reginald, hitting Reginald in the back with his hip. It seemed like Reginald had the wind knockedoutof him,like he could not get his breath. Then he started breathing again and appellant thought he wasall right. Reginald did not cry. Other than falling on Reginald, appellant did not strike him with force or do anything harmful to him. Appellant stopped playing after he fell on Reginald. He got Reginald some milk and sat him down on the floor on his pallet. Reginald took his milk, looked at the television, and then lay down. Appellant lay down on the bed with his daughter, Valerie, and drifted off to sleep. It was about 10:00 a.m.at that point. Whenappellant woke up, he saw that Reginald was not on his pallet; he was on the floor. He tried to wake Reginald up, but he was not responsive. He was breathing faintly and appellant hit him on the back and opened his mouth in case something got stuck in there, and then tried to do CPR on him. He also called his stepmother and Harris, but neither one answered the phone. Atfirst, he did not think to call 911 because in his hometown there was n oO 911. Then hetried to call 911, but could not get through. Ashe did CPR, some green matter came out of Reginald’s nose and appellant panicked. 13 He picked up Reginald in one hand andValerie in the other and started to leave the apartment, but stumbled over a diaper pail and dropped both children. Reginald’s head hit the floor. He picked up both children and wentto a neighbor’s door, wherehe told the neighbor that his son wasnot breathing. The man said he would call 911, and the person on the line talked to appellantas he tried to do CPR again until the ambulance came. While the paramedics were working on Reginald, a police officer asked appellant questions. Appellant did nottell the officer that he had been playing with Reginald and hadfallen on top of him because appellant was focused on what was happening to his son and he also did not make a connection betweenfalling on Reginald and his condition. While riding to the hospital, appellant learned that Reginald was dead. Appellant spent the night at the homeofhis brother, Anthony Caldwell, where he only got a little bit of sleep. The next afternoon,appellant's brother drove them to Harris’s house. Harris was there with her sister and one or two other people. The coroner’s office called while appellant was there. Harris answered the phone; a short time later she said, “blunt trauma,” and dropped the phone. She wascrying andin a state of shock. As appellanttried to comfort her, Harris’s sister came in and said someone had hit Reginald in the chest hard. No one accused appellant ofkilling Reginald, and appellant did not know what had caused Reginald’s death. Appellantfirst learned during trial that his act of falling on Reginald could have caused his son’s substantial injuries. Caldwell suggested going to the police station because the police wantedto talk to appellant. They wentto the police station and Caldwell spoke with Nolan and Rullamas whosaidthat they were just going to ask appellant a few questions and would be through in a few hours. The officers told appellant, “ ‘We'll take care of you,’ ” andalso said after he answered the questions, they would let him go back hometo his family. Caldwell told appellant to “cooperate with them in every way, that they [are] going to take care of you,that these [are] some good guys.” Appellant did not think he needed a lawyer because the officers just wantedto talk to him. He did not realize they had already issued a warrant. 14 Appellant was tired from lack of sleep and his mind wasin a complete daze. He told the officers that he had been playing with Reginald when he accidentally fell on his son. Healso explained that he was play-wrestling with Reginald. As he described the various wrestling terms, he “just kind oftook on the terms,” saying, “ ‘I body-slam him,’ whatever.” He thought the officers understood he wastalking about play-wrestling. Then, whentheofficers said “it had to be [something] more [than justfalling on Reginald], I feel like, well, in my mind,I start second-guessing myself, even thoughI knew what I was doing,I start second-guessing myself . . . so I start being like, well, maybeI did hit him harder than whatI really thought I was... .” His mind was “just shredded” with grief and appellant felt shame and guilt about what had happened. Then, given that the officers would not take him at his word, he thought maybe he was not rememberingit clearly and maybe he had hit his son hard and had notrealized it. He thought the officers had the facts, so he went along with whatthey said. The officers did not start tape recording appellant’s statement until they got him to say that he had hit his son hard while wrestling with him. Also before taping him, Sergeant Rullamas said something about every man wanting his son to be kind oftough, but appellant had only said that Reginald was goodandsatstill a lot, and appellant wanted him to be more active. Then, on tape, appellant said he wanted to toughen him up, by which he only meant make him moreactive. After the first tape-recorded interview, the officers left the room, then came back and said “[tJhis is not adding up. Something else had to happen.” Theyalsosaid, “Ts]ometimes people lose control, andit's all right. You know,we're all human, and we make mistakes. You know,the D.A.s are having a hard time understandingthis.” The officers introduced a new themeofappellant's losing control and being angry when Reginald got hurt. Later that night, the officers took a second tape-recorded statement. With both statements, it seemed like everything wasscripted, with the officers and appellant “[getting] the answers down”before making the recordings. Appellant explained that when he said on the second tape that his mind went blank andhe lost 15 son in jeopardy by playing with him. By the end ofthe second interview, appellant had been convincedthat he had blacked out, struck his son too hard, and killed him. In fact, appellant did notrecall blacking out or hitting Reginald too hard. He wasjusttired and wanted to go home,andthe officers would not accept his initial answers. Anthony Caldwell testified that he is three years older than appellant. They have the same mother, but different fathers. Caldwell becamea police officer in Oakland in 1999 and wasan officer at the time of appellant's arrest. He and appellant grew up ina very segregated town in Louisiana where Black people knewto “stay in your place when authorities approach you for anything.” Because appellant’s mother workedat the school board and his uncle and brother played football, their family got more favorable treatment than other Black people. Caldwell had seen appellant interact with children and he was always fun, loving and playful; the kids loved him. He never saw appellant get angry or frustrated with young children. Appellant was elated when he learned that Reginald was his son, and became more focused on barber college and obtaining his license. Caldwell never saw appellant express any frustration toward Reginald. The day after Reginald died, Caldwell took appellant to Harris’s house to make funeral arrangements. While they were there, the coroner called with the autopsy results. Harris started screaming, “ ‘He beat my baby. He beat my baby.’ ” Caldwell called the police station and talked to Nolan, whosaid he neededto talk to appellant. Appellant told Caldwell to take him to the police station, which Caldwell did. Caldwell told appellant that he had nothing to hide andto just be truthful with the officers. Rullamas and Nolansaid that they would take care of appellant and that he could call them when they finished the interview, in maybe twoor three hours. When they said they would take care of appellant, Caldwell understood it to mean simply that they would treat him fairly. He believed he would be able to pick appellant up after the questioning, not because of anything the officers said, but because Reginald’s death had so clearly been an accident. Appellant had told him that he had been playing with Reginald when he accidentally fell on him. 16 Patricia Street, appellant’s mother, testified that appellant had been evaluated whenhe wasin fourth grade and wasclassified as hyperactive. Appellant attended college briefly, but dropped out. Appellant was excited when he learned Reginald washis son. Elayne Caldwell, appellant’s stepmother,’ testified that appellant lived with her for about two yearsstarting in 2001 and sometimestook care of her granddaughter.. Appellant was alwaysa considerate, kind, loving person. She saw appellant with Reginald on numerousoccasionsand appellant had nothing but love for his son, and wanted to have more time with him. Lionell Johnson, appellant’s uncle, testified that he helped raise appellant. He never knew him to havea violent temperor to do any act of violence toward a child. Appellant treated Johnson’s children with love and they loved and respected him. Dr. Paul Herrmann,a pathologist, testified as an expert in the field of pathology. Hehad reviewed Reginald’s autopsy records and believed Reginald's injuries could have resulted from a single sharp blowto the backright side, such as from the weight of a 170- pourtd man falling on him. The injuries were not consistent with the child being beaten with fists because there waslittle bruising of the body. However, other forms of abuse, such as the child’s abdomen being smashed onto one’s knee would probably not leave a bruise because a kneeis such a large, blunt object. If a heavy weight were dropped on the child when the child wasonthe floor, a large blunt object would not cause bruising, but would compress the body, with the force causing the ribs to break andthe liver to be lacerated. It was equally probable that Reginald’s major injuries were caused by a single blow as by multiple blows. Dr. Herrmann believed the injuries to Reginald’s heart were likely due to the administration of CPR. The cause of the tear to Reginald’s frenulum wasas consistent with an endotracheal tube being placed in his mouth as with violent force. ° In fact, Ms. Caldwell was stepmother to appellant's haif-brothers, but she considered appellant her stepson too. 17 On cross-examination, Dr. Herrmann said he believed the chances of Reginald being injured by a person falling on him on a bed would be muchless than ifthe child were on the floor. It would be much lesscommonfor such extremeinjuries to occurif the child was on a bed when someonefell on him. However,“it’s still a likelihood or a possibility.” The injuries here would be excessive to what Dr. Herrmann would expect if someonefell sideways onto the child on a bed, as compared to someone“falling free” onto the child. He did not have an opinion as to whether Reginald wasphysically abused. After receiving these severe injuries a child might be screaming from pain or might go into shock immediately and be absolutely still. Either way, Dr. Herrmann believed a caregiver would notice a difference in the child after such injuries were sustained. Reginald’s death was not immediate; he bled to death. If he went into shock, it is possible that he lay down or appearedto be goingto sleep. Rebuttal Rullamastestified on rebuttal that neither he nor anyonein his presence evertold appellant that he would be finished in a few hours; that he could go homeafterwards because he neededto be with his family; or that, after he finished answering questions, he could go home. In fact, a warrant for appellant’s arrest had already been issued and he was going to be arrested regardless of whetherhe talked to the officers. Rullamas never brought up the idea that appellant was trying to toughen up his son. Rather, appellant mentioned that his child was acting like a baby and appellant wanted to toughen him up because of the environment in Oakland. He nevertold appellant that he must havelost his temperor that the district attorney was having a hard time understanding how it was he lost control and that appellant should “ ‘just say this so the D.A. can understandit better.’ ” HI. DISCUSSION A. Prior Appellate Proceedings In our original opinion in this matter, People v. Wyatt Jan. 31, 2008, A114612) | v Wyatt’s conviction on the groundthat there was insufficient devidence to support the conviction for assault on a child causing death. In Wyatt, supra, 18 49 Cal.4th at page 778 our Supreme Court reversed concluding that we “misapplied the mensrea standard for assault.” The Wyatt court held that “a defendant may be guilty of an assault within the meaning ofsection 273ab if he acts with awareness of facts that would lead a reasonable personto realize that great bodily injury would directly, naturally, and probablyresult from his act. [Citation.] The defendant, however, need not know or be subjectively aware that his act is capable of causing great bodily injury. [Citation.] This means the requisite mens rea may be found even whenthe defendant honestly believes his actis not likely to result in such injury. [Citation.]” (Wyatt, supra, 48 Cal.4th at p. 781.) The court went on to find that, based on its review of the record, “a rational jury could find beyond a reasonable doubt that Reginald [Wyatt’s son], who was 14 months old, died at the hands of defendant, a caretaker whointentionally used force that a reasonable person would believe waslikely to cause great bodily injury. [Citations.] First, defendant’s own statements furnished substantial evidence that he intentionally acted to strike Reginald [citations]; by his own account, defendant wasfully aware he wasstriking his son a numberoftimes withhisfist, forearm, knee, and elbow. Second, the physical evidence amply showedthat Reginald suffered extensive injuries, including internal bleeding at multiple sites, multiple lacerationsto the liver, acute rib fractures, and cerebral swelling. Third, expert testimony established that Reginald’s injuries were likely caused by multiple impacts or instances of blunt force trauma,that blunt force trauma doesnot necessarily result in external bruising, especially in softer areas like the abdomen,and that Reginald’s injuries were similar to the types of injuries seen only in the most serious events, such as when children are hit by cars or are in car crashes. Consequently, even though Reginald’s body lacked externalsigns of significant trauma, the nature and extensivenessofhis internal injuries provided sufficient evidence that defendant used an amountofforce a reasonable person would believe waslikely to result in great bodily injury on a young child. [Citations.] On this record, we have notrouble concluding that substantial evidence supports defendant’s conviction of child abuse homicide.” (Wyatt, supra, 48 Cal.4th at pp. 784-785.) 19 The Wyatt court returnedthis matter to us for further proceedings consistent with that opinion. We now address the remaining issues in this appeal. B. Sua SponteDuty to Instruct on Lesser Included Offenses ofSimple andAggravated Assault Appellant arguesthat the trial court erred in not instructing the jury on assault (§ 240) [simple assault] and aggravated assault (§ 245, subd. (a)(1) [assault by means of force likely to cause great bodily injury] ) as lesser included offenses of section 273ab. Weconcludethat, althoughthetrial court was not required to instruct the jury, sua sponte, on aggravated assault as a lesser included offense of section 273ab,it was required to instruct the jury on simple assault pursuantto section 240. Its failure to do so wasprejudicial. In People v. Basuta (2001) 94 Cal.App.4th 370, 392,the court held that both simple and aggravated assault are lesser included offenses of section 273ab. Therefore, if the record contains substantial evidence of these crimes, the trial court was required to instruct the jury on them. (/bid.; see also People v. Birks (1998) 19 Cal.4th 108, 118.) Theprinciples that govern our review ofthis issue are well settled. “In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) Instructions on lesser included offenses are required only if the evidence would justify a conviction of the lesser included offense. (People v. Lopez (1998) 19 Cal.4th 282, 287; People v. Leach (1985) 41 Cal.3d 92, 106 Weconsider the question ofwhether the record contains such evidence with regard to each of these offenses separately. L. Simple Assault (§ 240) Section 240 provides that “[a]n assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” CALJIC No. 9.00 sets out the elements of simple assault as follows: “In order to prove an assault, each of the following elements must be proved: [{] 1. A person willfully [and unlawfully] committed an act which by its nature would probably anddirectly result in the application 20 of physical force on another person; [{] 2. The person committing the act was aware of facts that would lead a reasonableperson to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and [{]] 3. At the time the act was committed, the person committing the act had the presentability to apply physical force to the person ofanother.” CALJIC No. 9.00 further provides that “The word ‘willfully’ means that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person,or an actual awarenessofthe risk that injury might occur to another person. To constitute an assault, it is not necessary that any actual injury be inflicted. However,if an injury is inflicted it may be considered in connection with other evidence in determining whether an assault was committed [and, if so, the nature of the assault].” Simple assault doesnot, in contrast to sections 273ab and 245, involve a finding that the force involved wouldbe likely to “produce great bodily injury.” Rather, a jury could convict appellant ofthe lesser included offense of simple assault upon a finding that the force he inflicted on his son fell short of that which waslikely to produce great bodily injury. ~ Appellant’s own testimony andthat of his medical expert, Dr. Paul Herrmann, provides substantial evidence ofthis lesser offense. Appellanttestified that he did not perform any so-called “wrestling moves” on his son. Rather, when he described these movesto the police he was not describing actionsheactually took, but “make-believe wrestling moves,” such as “off-the-top-rope,”“head butt,” “supplex,” and an “atomic elbow”to the head. Appellant deniedstriking his son hard. At most, he pushed him while playing with him. Appellant testified that at one point while he was playing with his son he jumped in the air and, while he came downonthe bed to makeit shake, his son rolled toward him. Appellantfell on his son hard, and hit him in his back with his (appellant’s) hip. It appeared to defendantthat his son had the wind knocked out of him because he seemed 21 thought he had recovered. His son did not cry. Other thanthis, appellanttestified that he did not strike his son with any force or do anything harmful to him. Appellanttestified that he stopped playing with his son after he fell on him. He got him some milk. His son took the milk, looked at the television and lay down. Appellant too fell asleep and it was not until he woke up that he realized his son was unresponsive and something wasseriously wrong. Appellanttestified that the statements he madeto the police regarding his conduct with his son madeit clear that he was play wrestling with Reginald, not actually hurting him. At the time he madehis recorded statement, he wastired from lack of sleep and in a daze. He was underthe impression that the officers knew that the wrestling he was referring to was not real. However, whenthe officers said “it had to be [something] more [than just falling on Reginald],I feel like, well, in my mind, I start second-guessing myself, even though I knew whatI was doing,I start second-guessing myself... so I start being like, well, maybe I did hit him harder than whatI really thought I was... .” His mind was“just shredded” with grief and appellant felt shame and guilt about what had happened. Then, given that the officers would not take him at his word, he thought maybe he wasnot rememberingit clearly and maybehe hadhit his son hard and had not realized it. He thought the officers had the facts, so he went along with what they said. Appellant’s testimony regarding the cause of his son’s injuries coming from the moment whenhefell on him while trying to make the bed shake was corroborated by the testimony of Dr. Paul Herrmann, whotestified as an expert in the field ofpathology. Based on his review of Reginald’s autopsy records, Dr. Herrmann opined Reginald’s injuries could have resulted from a single sharp blow to the back right side, such as from the weight of a 170-pound man falling on him. He alsotestified that the injuries to Reginald werenot consistent with the child being beaten with fists because there was little bruising of the body. However, other forms of abuse, such as the child’s abdomen being smashed onto someone’s knee would probably not leave a bruise because a kneeis sucha large, blunt object. Ifa heavy weight were dropped on the child when the child wason the floor, a large blunt object would not cause bruising, but would compress the 22 body, with the force causing the ribs to break andthe liver to be lacerated. In sum,Dr. Herrmann testified that it was equally probable that Reginald’s major injuries were caused by a single blow as by multiple blows. With regard to Reginald’s otherinjuries, Dr. Herrmann believed the injuries to Reginald’s heart werelikely due to the administration of CPR. The causeofthe tear to Reginald’s frenulum was asconsistent with an endotracheal tube beingplacedin his mouth as with violent force. On cross-examination, Dr. Herrmann said he believed the chances of Reginald being injured by a person falling on him on a bed would be much less than if the child were on the floor. It would be much less commonfor such extreme injuries to occur if the child was on a bed when someonefell on him. However,“it’s still a likelihoodor a possibility.” The injuries here would be excessive to what Dr. Herrmann would expect if someonefell sideways onto the child on a bed, as comparedto someone“falling free” onto the child. He did not have an opinion as to whether Reginald wasphysically abused. After receiving these severe injuries a child might be screaming from pain or might go into shock immediately and be absolutely still. Either way, Dr. Herrmann believed a caregiver would notice a difference in the child after such injuries were sustained. Reginald’s death was not immediate; he bled to death. If he went into shock, it is possible that he lay down or appearedto be goingto sleep. This testimony, which we consider without evaluating the credibility of either appellant or Dr. Herrmann,is substantial enough to support a jury finding that appellant’s actions fell short of those which a reasonable person might believe would lead to the application of force likely to “produce great bodily injury.” The evidenceis, however, enough to support a conviction under section 240. Appellanttestified that, when he jumped onthe bed to makeit shake, he did not jump on Reginald and, therefore, did not apply force likely to produce great bodily injury. Rather, he jumped on the bed next to Reginald, and Reginald rolled under him as he was coming down onthe bed. Dr. rather than any of appellant’s later actions—resulted in Reginald’s death. If the jury 23 believed appellant, it could concludethat the actions he described were of “an act which by its nature would probably and directly result in the application ofphysical force on another person” and that appellant was “aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person.” The People, however, argue that the prosecution’s evidence proved child abuse homicide based on the aggravated assault of Reginald and, therefore, the trial court was not required to instruct on simple assault. This argument ignores the general rule that, in determining the sufficiency of the evidenceto justify the giving of an instruction under a lesser included offense, the facts must be construed in a mannerthat is the most favorable | to appellant. (People v. Stewart (2000) 77 Cal.App.4th 785, 795-796 (Stewart).) We look at the evidence’s “bare legal sufficiency, not its weight.” (Breverman, supra, 19 Cal.4th at p. 177.) It does not follow, as the People suggest, that a jury could not have found that appellant committed only a simple assault. And, while it is certainly the case that the appellant also argued that the jury could acquit him on the groundthathis conduct was accidental and, therefore, could not constitute an assault, thisdoes not negate the possibility that a jury would disagree with the “accident” theory, but also find that the evidencefell short of aggravated assault. Thetrial court, therefore, should have instructed the jury on simple assault under section 240. Its failure to do so wasprejudicial. (People v. Watson (1956) 46 Cal.2d 818.) 3. AggravatedAssault In contrast to simple assault, the trial court was not required to instruct sua sponte on aggravated assault under section 245. As the People correctly point out, if the jury found that appellant committed an aggravated assault it would also, necessarily, find appellant guilty of child abuse homicide undersection 273ab given that both offenses involve the same conduct: force likely to produce “great bodily injury.” Thus,if the jury fori vu 24 Reginald's death and would have convicted appellant under section 273ab rather than section 245.° D. Omission ofElement ofSection 273ab Appellant argues that the trial court erred in instructing the jury under CALCRIM No. 820 becausethat instruction omits an element of section 273ab, namely that the assault that leads to the child’s death be by meansofforce “that to a reasonable person” would be likely to produce great bodily injury. Although we need not addressthis and the remaining issues regarding instructional error, given our conclusionthatthe trial court erred in failing to instruct the jury on simple assault, wedo soin orderto assist the parties in the eventofa retrial. Thetrial court instructed the jury as follows: “Now the defendantis charged in count two with killing a child underthe age of eight by assaulting the child with force likely to produce great bodily injury[.] [J] To prove that the defendantis guilty ofthis crime, the People must prove the following: [§] One, that the defendant hadthe care or custody of the child who was underthe age of eight; [{Two, he did an act that by its nature would directly and probably result in the application of force to the child; [{{] Three, he did that act willfully; [§] Four, the force used waslikely to produce great bodily injury; [§] Five, when he acted, he was aware of facts that would lead a reasonable person to realize that his act, by its nature, would directly and probably result in great bodily injury to the child; [§]] And six, when he acted, he had the present ability to apply force likely to produce great bodily injury to the child; [{]] And seven, his act caused the child’s death.” ~(8 RT 1516-1518)~ The court then defined a numberofthe terms containedin this instruction. It told the jury, “Someone commits an act willfully when he does it willingly or on purpose. It’s not required that he intend to break the law or hurt someoneelse, or gain any kind of advantage. [§]] Great bodily injury, as I said before, meanssignificant or substantial physical injury. It’s an injury that is greater than minor ° Forthis reason, we reject defendant’s contention thatthe trial court erred in not providing the jury with a verdict form for aggravated assault. 25 or moderate harm.[¥] An act causes death if:[{] The death wasthe natural and probable consequenceoftheact; [{] The act was a direct and substantial factor in causing the death; [J] And the death wouldn't have happened withoutthe act.” ~(Ibid)~ Finally, the court explainedthat “The natural and probable consequenceis one that a reasonable person would knowis likely to happen if nothing unusual intervenes. In deciding whether a consequenceis natural and probable, you should considerall ofthe circumstances established by the evidence. [§] And a substantial factor, as I’ve used that term, is more than a trivial or remote factor. However, it doesn’t need to be the only factor that caused death.” Appellant’s argumentthat the court did not instruct the jury on the necessity of finding that the force used wassuch that a reasonable person would findit likely to producegreat bodily injury does not hold up to scrutiny. Thetrial court certainly explained to the jury that child abuse homicide involves force that “was likely to produce great bodily injury” and that the jury could find appellant guilty of this countif it found that he “was aware of facts that would lead a reasonable personto realize that his act, by its nature would directly and probably result in great bodily injury to the child.” The court also told the jury that the child’s death must be the natural and probable consequence ofthe appellant’s act, and that a “natural and probable consequenceis one that a reasonable person would knowis likely to happen if nothing unusual intervenes.” In sum,the trial court correctly instructed the jury, under CALCRIM No.820,that the force used must have appearedlikely to a reasonable person to result in great bodily injury. E. Sua Sponte Duty to Instruct on Involuntary Manslaughter as Necessarily Included Offense Wyatt contendsthat the trial court erred in failing to instruct the jury, sua sponte, on involuntary manslaughteras a lesser-included offense of section 273ab. Wedisagree. The issue of whether involuntary manslaughteris a lesser included offense of section 273ab was addressed in Orlina v. Superior Court (1999) 73 Cal.App.4th 258 (Orlina). In that case, the court found that involuntary manslaughteris a lesser related, 26 rather than lesser-included, offense of section 273ab. (/d. at p. 262.) In reachingthis conclusion, the Orlina court explained, “[s]ection 273ab provides: ‘[aJny person who, having the care or custody of a child whois undereight years of age, assaults the child by meansof force that to a reasonable person would belikely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonmentin state prison for 25 years to life... .’ Section 192, subdivision (b) defines involuntary manslaughter as ‘the unlawfulkilling of a human being without malice’ where it occurs ‘in the commission of an unlawfulact, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. ...’ [§] One of the elements ofsection 273ab is an assault be committed ‘by meansofforce that to a reasonable person would belikely to produce great bodily injury.” The corresponding element for involuntary manslaughteris that the killing occur ‘in the commission of an unlawfulact, not amounting to felony’or, in the alternative, ‘in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’ (§ 192, subd. (b).) An assault is an unlawful act which does not amountto a felony. (§§ 241, 240, subd. (a).) Therefore,the first alternative for involuntary manslaughter undersection 192, subdivision (b) corresponds to the elementspecified in section 273ab. [{] However, when we compare the second alternative for involuntary manslaughter with section 273ab, wefinda distinction between ‘force that to a reasonable person wouldbelikely to produce great bodily injury’ and an ‘act which might produce death . . . without due caution.’ Section 273abis predicated on a probability ofgreat bodily injury to the victim (see People v. Preller (1997) 54 Cal.App.4th 93, 98), while the second definition of involuntary manslaughteris based on the possibility ofthe death ofthe victim. Section 273ab speaksto reckless conduct, (‘likely to produce’ injury) while the second definition of involuntary manslaughter encompasses careless or negligent conduct(‘without due caution and circumspection’). It is therefore apparent that the elements of involuntary manslaughter are not necessarily encomp manslaughter is a lesser-related rather than a lesser-included offense of the charged 27 crime.” (Orlina, supra, 73 Cal.App.4th at pp. 261-262; see also Stewart, supra, 77 Cal.App.4th at p. 796.) Finding the Orlina court’s analysis persuasive, we reject appellant’s argument and find that the trial court did not have a sua sponte duty to instruct on involuntary manslaughteras a lesser included offense of section 273ab. F. Instruction on Criminal Negligence Appellant contendsthat the trial court erred becauseit did not sua sponte instruct the jury that criminal negligence cannot support an assault conviction. In the alternative, he argues that defense counsel wasineffective because he did not request such an instruction. A trial court has a sua sponte duty to give amplifying or clarifying instructions “ “where the terms have a “technical meaning peculiar to the law.” ’ [Citations.]” (People v. McElheny (1982) 137 Cal.App.3d 396, 403.) In general, however, “[a] party may not complain on appeal that an instruction correct in law and responsiveto the evidence wastoo general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991, 1024.) Here, in its instructions involving involuntary manslaughter, the court instructed the jury on the meaning of criminal negligence: “[M]Jore than ordinary carelessness, inattention, or mistake in judgment. The person acts with criminal negligence when:[{]] | he acts in a reckless way that creates a high risk of death or great bodily injury... .” The court’s instruction under CALCRIM No.820states that child abuse homicide involves force that “ ‘to a reasonable person would belikely to produce great bodily injury,’ ” a degree of force that is not the same as that involving criminal negligence. Although the trial court was not required, sua sponte to inform the jury that a violation of section 273ab cannot be based on criminal negligence, on retrial, appellant can certainly request such a clarifying instruction. Similarly, with regard to appellant’s argumentthatthe trial court should have instructed sua sponte that injury alone is not sufficient to establish an assault, thoughthe court had no such sua sponte duty, should counsel believe such an instruction would be useful, then counsel should requestit. 28 G. Cruel and/or Unusual Punishment Appellant contends that his sentence of 25 yearsto life, the term prescribed under section 273ab, violates the United States Constitution as well as the California Constitution proscription against cruel and unusual punishment becausethe sentence for section 273abis “ ‘grossly disproportionate’ to the crime... .” (Harmelin v. Michigan (1991) 501 U.S. 957, 997-998, conc. opn. of Kennedy, J.].) Although we have reversed appellant’s conviction under section 273ab, wenote that this claim was considered and rejected in People v. Norman (2003) 109 Cal-App.4th 221 (Norman) and People v. Lewis (2004) 120 Cal.App.4th 837 (Lewis), two cases with which weagree. With regard to appellant’s claim under the federal Constitution, the Norman court pointed out that, because the United States Supreme Court hasheld that a “sentence of life withoutparole is not cruel and unusual for certain nonviolent offenses, then, a fortiori, a sentence of 25 yearstolife is not cruel and unusual for the death of a child under age eight.” (Norman, supra 109 Cal.App.4th at p. 230.) In Lewis, the court held that under the California Constitution the “imposition of a prison term of 25 years to life for the defense described in section 273ab is notin the abstract cruel and unusual.” (Lewis, supra, 120 Cal.App.4th at p. 856.) The Lewis court pointed out that, “[t]he Legislature could reasonably conclude given the particular vulnerability of the victim, the relationship of the victim to the defendant, the violent and purposefulnature of the act involved andthe fact a death results, the crime described in section 273ab is a very serious one and a term of 25 years to life was appropriate.” (Lewis, supra, 120 Cal.App.4th at p. 856.) Nor wasit the case that the punishment was unconstitutional as applied even to an appellant with no criminal record, given in particular, the “amount of force” necessary to cause great bodily injury to the child. ([bid.) H. Jury Unanimity Given the outcomein this case, we need not revisit our earlier conclusion that the with Justice Kline’s admonition that the trial court heed the Third District Court of 29 Appeals’ advice in People v. Norman (2007) 157 Cal.App.4th 460,to the effect that “failure to give a jury unanimity instruction (now CALCRIM No.3500)is the most commonkindofinstructional error in criminal cases,” and its related advice thattrial courts “put CALCRIM No.3500 on yourlist of standard instructions to give, then ask yourself: ‘Is there some reason not to give this instruction in this case?’ ” (Ud. at p. 467). IV. DISPOSITION The conviction in count 2, assault on a child causing death (§ 273ab), is reversed. In all other respects, the judgmentis affirmed. 30 Weconcur: Kline,P.J. Richman,J. A114612, People v. Wyatt 31 Haerle, J. APPENDIX “B” Order Denying Petition for Rehearing COURT OF APPEAL, FIRST APPELLATE DISTRICT 350 MCALLISTER STREET SAN FRANCISCO, CA 94102 DIVISION 2 THE PEOPLE, Plaintiff and Respondent, V. REGINALD WYATT, : Mierse otarkens Defendant and Appellant. A114612 Alameda County No. C147107 BY THE COURT: Respondents' petition for rehearing is denied. Date: . P.J. aril DECLARATION OF SERVICE I, WaldemarD.Halka, declare underpenalty of perjury I am over 18 years of age; lam nota party to the action herein; my business addressis P.O. Box 99965, San Diego, Califor nia 92169. I caused to be served a copy of the following documentto each ofthe parties listed below: ANSWERTO THE PEOPLE’S PETITION FOR REVIEW People v. Wyatt Supreme Court Case No. S189786 Clerk of Court of Appeal Appellate Court First District, Division Two 350 McAllister St. San Francisco, CA 94102 Hon. Jon Rolefson, Judge Trial Court c/o Clerk of Alameda Superior Court 1225 Fallon Street Oakland, CA 94612 Office of the Attorney General Appellate Counselfor Plaintiff-Respondent 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 Alameda County District Attorney Trial Counselfor Plaintiff-Respondent 1225 Fallon Street, Room 900 Oakland CA 94612 William H. Du Bois Trial Counselfor Defendant-Appellant Attorney at Law 1611 Telegraph Avenue Oakland, CA 94612 Reginald Wyatt (CDC # F33546) Defendant-Appellant Salinas Valley State Prison P.O. Box 1050 Soledad, CA 93960-1050 First District Appellate Project Appellate Program 730 Harrison Street, Ste. 201 San Francisco, CA 94107 Each of said copies was sealed and deposited in the United States mail, with proper postage affixed thereto andfully prepaid. Executed underpenalty of perjury at San Diego,California, on January 19,2011. WEE Waldemar D. Halka