Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [CHANGE IN JUDGMENT] THE COURT:
The court has reviewed the petition for rehearing filed on January 17, 2020. The petition is denied. The opinion filed on January 10, 2020 is modified as follows:
I. On page 17, after the conclusion on issue No. 2, add the following:
3. The Abstract of Judgment Must be Modified
Defendant argues that the abstract of judgment must be modified because it incorrectly indicates that defendant was convicted of first degree murder, when, in fact, he was convicted of second degree murder. He also notes that the abstract incorrectly indicates under item 8 that defendant was sentenced under the "Three Strikes" law, when, in fact, he was not. Respondent concedes the errors.
We agree that the abstract of judgment must be amended to reflect that defendant was convicted of second degree murder. Additionally, under item 8 of the abstract of judgment, the clerk must delete the reference to sentencing under the Three Strikes law.
II. On page 18, the "DISPOSITION" is modified as follows:
Delete "The judgement is affirmed." In its place, insert: The conviction and sentence are affirmed. The clerk is directed to modify the abstract of judgment to reflect that the degree of the murder is second degree. Additionally, under item 8 on the abstract of judgment, the clerk should uncheck the box relating to sentencing under the Three Strikes law. In all other respects, the judgment is affirmed.
This modification affects the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
P. J. We concur: MILLER
J. cc: See attached mailing list MAILING LIST FOR CASE: E070911
The People v. William Richey Superior Court Clerk
P.O. Box 431 - Appeals
Riverside, CA 92502 James M. Toohey
Office of the Attorney General
P.O. Box 85266
San Diego, CA 92186 Kevin D. Sheehy
2118 Wilshire Boulevard, Suite 1118
Santa Monica, CA 90403 Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101 2396
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1500624) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
Infant and victim H.R. died of abusive head trauma suffered at the hands of his father, William Oliver Richey, the defendant, who maintained the child had accidentally drowned in a baby bath, only to be dropped in the shower as defendant attempted to revive him. Defendant was convicted of second-degree murder (Pen. Code, § 187, subd. (a)) and assault resulting in death (§ 273ab, subd. (a).) Defendant was sentenced to state prison for 25 years to life and appealed.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant raises two instructional issues. He argues the trial court erred by failing to instruct, sua sponte, on (1) voluntary manslaughter based on a theory of heat of passion as to the murder charge, and (2) the complete defense of unconsciousness, as to both the homicide and assault charges. We affirm.
H.R., the infant victim, was born in August 2014. Jamie B., his mother, owned a dog-grooming business not far from their residence, and defendant, father of the victim, was the primary caretaker of H.R. while his mother worked. On January 26, 2015, when H.R. was just shy of being five months of age, Jamie got ready for work, watched cartoons with the baby, and fed him before leaving. She heard defendant waking up so she strapped the baby in his jumper, and said good bye to both defendant and the baby, and left for work at about 8:30 or 8:45 a.m.
At some point, defendant called his sister, Kristy Richey, in distress about the baby and asking how to do CPR. Kristy was not officially trained in CPR, but her husband had been trained, so she gave defendant some instructions. Then Kristy asked defendant what had happened, and defendant told her that the baby had gone into the water in the bath. After walking defendant through the CPR procedure, defendant indicated he had cleared the airways and Kristy heard water or a gurgling noise. Kristy asked if the baby was breathing, but defendant indicated he was not. After two full repetitions of CPR, the baby still had not started breathing, so Kristy told him to call 9-1-1.
Defendant also called Jamie's mother, who immediately ran out of her residence, along with her boyfriend, Tony, to the residence shared by Jamie and defendant. Tony arrived first, saw defendant and the baby, and called 9-1-1. The dispatcher gave Tony instructions on how to administer CPR to the baby. While performing CPR on the baby, Tony talked to defendant about what had happened. Tony noticed that the baby was dry. Defendant stated he had stepped away from the shower to get a towel and when he returned the baby was in the water. Within ten minutes, first responders arrived.
Defendant and Jamie lived in a small backhouse on a large parcel, owned by Jamie's mother, that had one main residence, a guest house and two additional outbuildings.
Later, Jamie received a telephone call from her grandmother that something was wrong and she returned home. When she got to the residence, the baby was naked on the floor and emergency responders were using a defibrillator in an attempt to revive him. The baby was taken by ambulance to Corona Regional hospital. Tony drove with defendant to the hospital. Before Jamie left by car to go Corona Regional, defendant kept repeating that he did not know what happened; that he had just left for a second to get a towel.
The parents usually bathed the baby in an infant bathtub in a walk-in shower at the residence. Towels were kept on top of a wicker basket right next to the shower door. If there were no towels in the basket, one could find towels in a black armoire, situated behind an ottoman.
Tony was suspicious of defendant's story because their house was quite small and 30 seconds seemed a long time for defendant to get a towel. So he returned to the residence from the hospital and found clean towels in a wicker basket.
Later, after the baby had been transported to the hospital, Jamie's grandmother, whose residence was on the same parcel as Jamie's and Jamie's mother, went down to Jamie's residence to clean up and wait for everyone to return. While cleaning up, she saw that there were towels inside the wicker basket, although defendant had said he found none.
A forensic team came to the residence and secured it. A technician took photographs of the interior of the residence, including the shower. The infant bathtub was inside the shower; the deepest part of the tub measured less than 2 inches deep. There was no soap residue in the bath.
At Corona Regional, defendant went into more detail while talking with Jamie, explaining he had to walk to the armoire where towels were kept and when he came back, the baby was face down in his baby bath. The defendant was interviewed by Deputy Carrasco while at Corona Regional as part of the fact gathering process at approximately 1:30 p.m. Defendant explained that he and the baby had watched cartoons, and then took a shower. Defendant put the baby in the infant tub and stepped out to get towels to dry off, but when he returned, the baby was face down in the water. Defendant explained that he started CPR and got water out of the baby's lungs, and that the baby was making noise. Defendant then stated he called his mother-in-law to have her call 9-1-1, and that the ambulance arrived in a few minutes. After Deputy Carrasco's interview, Detective Devine also interviewed defendant at Corona Regional.
Because Corona Regional does not have a pediatric intensive care unit, the baby was soon transferred to Children's Hospital of Orange County (CHOC). There, diagnostic studies were conducted because the fact that the baby had no pulse and was not breathing led Dr. Goodman, the pediatric critical care doctor, to believe something else had happened. Normally, if the baby had been submerged in water for 30 seconds, his heart would not have stopped, whereas it took seven doses of epinephrine to restart H.R.'s heart.
A CT of the baby's abdomen and brain showed no fractures, but the brain was so swollen there was no distinct white or grey matter and no hills or valleys in the brain. Additionally, considerable hemorrhaging was visible, and the ophthalmologist found massive retinal hemorrhages behind both eyes. The three hallmarks suggestive of child abuse include brain bleeding (subdural hematoma), brain swelling, and retinal hemorrhaging. Based on these criteria, Dr. Goodman could only conclude that the baby did not have a submersion event; instead, the baby died of brain injury.
Charge nurse Terah spoke to defendant multiple times. Of concern was the fact that the baby's condition did not match defendant's report of what happened. Initially, the defendant reported he had taken a shower with the baby using the baby bath, that he did not have a towel so he stepped away to find a towel; he was gone approximately 30 seconds, and when he returned, the baby had fallen forward; he was breathing but not acting right. Then defendant stated that the baby went stiff and stopped breathing.
Eventually, Nurse Terah and Dr. Goodman spoke to both parents about the nature of the baby's injuries. They told the parents that the baby's prognosis was poor: swelling in the baby's brain and lack of oxygen would progress to brain death. The doctor and nurse explained the findings from a CT scan and an ophthalmologist's examination. Dr. Goodman indicated that shaking likely caused the baby's injuries. At this point, the parents asked for some time alone, and the medical team left the room.
When the doctor and nurse left the room, Jamie asked defendant what happened. Defendant explained he did not know what happened, that he just snapped. Jamie then asked if the baby was crying, and defendant replied that he was. Then, defendant provided additional information, explaining that after he found the baby face down, he picked up the baby and was bringing him out of the shower, but the baby had soap on him and slipped.
However, while holding the baby at the hospital, Jamie had noticed that the baby smelled like milk, and he wouldn't have smelled of milk if he had gotten out of the shower. Defendant told Jamie three different versions of what had happened that day: in the first version, defendant stepped out for just a second to get a towel and when he returned the baby was face down; the second version added the detail of dropping the baby; and the third version added the fact that he had snapped, which he had not told anyone else.
Jamie recalled an incident that occurred approximately three weeks earlier when she came out of the shower and heard the baby screaming. When she got out, she saw defendant, who was enraged, grab the baby from the changing station and swing him hard onto the bed, and then left. Shocked by this incident, Jamie took the baby to work with her that day.
The parents returned to the room where the baby was after their conversation, and had a lot of questions about what could cause bleeding and swelling in the brain. Defendant mentioned the baby falling off the couch a month earlier, and asked if that could be the cause, but was told that on imaging one can tell old blood from new. Defendant then left the room and Jamie had more questions: she wanted to know if shaking could have caused the injuries.
The baby was pronounced dead at 10:15 p.m. on January 27, 2015, after successive tests for brain function proved negative.
Dr. Wong, a pediatrician specializing in child abuse, was consulted regarding the findings. She examined the CT of the baby's head and saw subdural hematomas and subarachnoid bleeding which would not be caused by drowning alone. The brain swelling in the baby was so extensive that it herniated downward due to lack of space in the skull. When this happens, it affects the respiratory center and the baby is brain dead. Dr. Wong also saw signs of injury to the baby's neck, with bleeding at C-1 through C-4 of the infant's spinal cord, which is consistent with shaking, from the head whipping back and forth.
In Dr. Wong's opinion, defendant's explanation that the baby slumped forward and ended up face down was highly unlikely, and his further explanation of dropping the baby after a drowning incident would not explain the infant's injuries. Further, even if defendant had dropped the baby, the findings would not have included diffuse subdural hematomas; instead, there would have been a focal injury. Without external injuries, the mechanism of violent shaking would have caused such bleeding. In her opinion, the cause of the injuries was due to abusive head trauma.
Defendant was charged with murder (§ 187, subd. (a), count 1) and assault on a child likely to produce great bodily injury or death (§ 273ab, count 2). Prior to trial, several of defendant's telephone calls were recorded by the jail. In one call, defendant spoke with his sister, Kristy, about how he told the detective that he had shaken the baby a little bit to wake him up. He stated he was in a haze and disbelief when the detective challenged that description, and that he was out of it, not thinking clearly. Kristy told him not to say that he "shook" the baby; instead, he should just say he "jiggled" the baby.
In a later call between defendant and Jamie, he denied shaking the baby, stating he "jiggled him" but never shook him. Jamie reminded defendant about the earlier incident and explained that was why she felt he was guilty. Defendant stated he was not in his right state of mind.
At trial, defendant testified that the baby's injuries and death were the result of an accident. He described putting the baby in the infant bath and stepping out of the shower to look for towels when he did not find any on the basket, and returning to the shower to find the baby with his face in the water. Defendant pulled him out, shook him a little to get a response, then turned to exit the shower, when the baby slipped out of his arms and defendant fell on top of him.
Thereafter, he attempted to administer CPR with the baby on an ottoman, called his sister, and then called Jamie's mother to have her call 9-1-1. He acknowledged he had not previously mentioned dropping the baby or falling on top of him, but explained he did not remember everything right off hand when interviewed by the detective. The day was blurry to defendant, so a handful of things were vague, and he forgot to tell the detective that the baby was dropped. Nevertheless, he recalled that it was an accident, even though he did not recall many other facts.
The jury found defendant guilty of second-degree murder on count 1, and guilty on count 2. On July 13, 2018, defendant was sentenced to state prison for 25 years-to-life on count 2, which was deemed the principle term, and 15 years-to-life on count 1, which was stayed pursuant to section 654. Defendant timely appealed.
1. Instructions on Voluntary Manslaughter Were Not Required
Defendant argues that the trial court was under a sua sponte duty to instruct the jury on voluntary manslaughter, based on a theory of heat of passion, as a lesser included offense within the charge of murder. We disagree.
"On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense." (People v. Souza (2012) 54 Cal.4th 90, 113.)
"'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.'" (People v. Breverman (1998) 19 Cal.4th 142, 154, quoting People v. St. Martin (1970) 1 Cal.3d 524, 531.)
The obligation to instruct on general principles includes the duty to give instructions on lesser included offenses when the evidence raises a question as to whether all elements of the charged offense were present, but not when there is no evidence that the offense was less than that charged. (People v. Breverman, supra, 19 Cal.4th at p. 154, citing People v Hood (1969) 1 Cal.3d 444; People v. Noah (1971) 5 Cal.3d 469, 479; People v. Osuna (1969) 70 Cal.2d 759, 767.) Such instructions on lesser included offenses are required when, but only when, a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one. (People v. Hardy (2018) 5 Cal.5th 56, 98, citing People v. Breverman, supra, 19 Cal.4th at pp. 161-162.)
Voluntary manslaughter is a lesser included offense of murder. (People v. Duff (2014) 58 Cal.4th 527, 561.) "Heat of passion, which reduces murder to voluntary manslaughter, arises when the defendant is provoked by acts that would 'render an ordinary person of average disposition "liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment'" [citation], and kills while under the actual influence of such a passion." (People v. Duff, supra, 58 Cal.4th at p. 562, quoting People v. Enraca (2012) 53 Cal.4th 735, 759.)
A defendant must actually be motivated by passion in committing the killing. (People v. Beltran (2013) 56 Cal.4th 935, 951.) Decisional authority as well as the applicable jury instructions make clear that extreme intensity of the heat of passion is required to reduce a murder to manslaughter. (Id., at p. 950.) "This passion must be a '"'"[v]iolent, intense, high-wrought or enthusiastic emotion"'" [citation]." (People v. Beltran, supra, 56 Cal.4th at p. 950, quoting People v. Breverman, supra, 19 Cal.4th at p. 163.) The emotional response required goes far beyond the type of irritation a person of ordinary disposition would be prompted to feel by mundane annoyances "'such as being cut off on the road by an inattentive driver, having coffee spilled on one by a careless waiter, receiving a negative evaluation from a supervisor, or observing an umpire's bad call at one's child's little league game.'" (People v. Beltran, supra, 56 Cal.4th at p. 950.) In short, the key is whether the provocation is adequate to make a person of ordinary disposition act irrationally and kill.
The standard is an objective one; a defendant may not set up his own standard of conduct to justify or excuse himself because his passions were aroused, unless the jury believes the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. (People v. Beltran, supra, 56 Cal.4th at p. 950, citing People v. Logan (1917) 175 Cal.45, 49.) The fundamental inquiry is whether the provocation is sufficient to obscure reason and render the average man liable to act rashly. (Logan, supra, 175 Cal. at p. 50.) In Logan, the Supreme Court observed that it is not the fear of great bodily injury alone that will reduce a homicide to manslaughter, noting that the sight of a wife in adultery or a belief that the defendant's wife was committing adultery, even if unfounded, could support an instruction on heat of passion, or the act of a father-in-law attempting to take a man's wife and children from the defendant. (Id., at pp. 49-50.) But "a passion for revenge cannot satisfy the objective requirement for provocation." (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 301.)
Defendant's argument is premised on the theory that the baby's continual bouts of excessive and inconsolable crying provoked defendant to act in the heat of passion and violently shake the victim. At oral argument, counsel again maintained that there was substantial evidence defendant had "snapped" while the baby cried inconsolably, causing defendant to violently shake the baby. There are two problems with this theory: First, defendant did not testify that he was "bothered" or "provoked" by the baby's crying at the time of the "accident." Instead, his "whole defense [wa]s based on accident." In fact, when interviewed by the detective, defendant denied that the baby was crying, although on the witness stand, he stated the baby had cried earlier that morning when he was hungry.
It was Jamie who testified that defendant would be bothered when the baby had screaming fits in describing the prior incident, but there is no evidence that the baby was crying inconsolably or having a screaming fit at the time of the shaking. Absent evidence the baby was crying inconsolably or having a screaming fit at the time in question, and that defendant was provoked to the point of ending his child's life as a result of that crying, there is no evidence in the record to support an instruction on heat of passion manslaughter, within the meaning of Beltran, supra.
Second, defendant has cited no cases in which a reviewing court has addressed the question of whether "'an ordinary person of average disposition would be "liable to act rashly or without due deliberation and reflection, and [commit a homicide] from this passion rather than from judgment,"'" [citation] within the meaning of People v. Duff, supra, 58 Cal.4th at pages 561-562, due to an infant's inconsolable crying. Defendant cites tragic statistics showing that babies less than a year old are at the greatest risk of abusive head trauma, and that such injuries are frequently inflicted when a parent or caregiver becomes angry or frustrated because of a child's crying. However, those statistics do not establish a standard for the response of an ordinary person of average disposition under similar circumstances. An infant's crying may well be irritating, frustrating, and provocative, and may well result in increased statistical risk of abusive head trauma due to violent responses from frustrated parents. But no cases have held that a murder is mitigated when the killing was provoked by a baby's cries.
As noted, defendant did not rely on a provocation/heat of passion defense at trial, asserting instead that the death was accidental. Because he did not assert this defense, he did not proffer the statistics set forth in the public document of which he requests we take judicial notice. For this reason, we deny the request to take judicial notice of the report by the U.S. Department of Health & Human Services. --------
Further, defendant did not testify that he was frustrated to the point of violent response due to the infant's inconsolable crying. Instead, he denied that the baby was crying when interviewed by the detective, and he attributed the child's injuries to accident both in the pretrial interviews and on the stand. On the witness stand, testifying in his defense, he testified that the head injury occurred when defendant fell on the child as he walked out of the shower while holding the child, after finding the infant face down in the water, and after shaking the child in an effort to revive him. Because his "whole defense was based on accident," defendant did not present any evidence that warranted the giving of the heat of passion manslaughter instruction.
Absent any evidence that defendant acted violently and under heat of passion, the court was not under a duty to instruct sua sponte on the lesser offense of heat of passion voluntary manslaughter.
2. Instructions on Unconsciousness Were Not Required
Defendant also argues that the court committed reversible error by failing to instruct sua sponte on the defense of unconsciousness as to both counts. We disagree.
The duty to instruct on the complete defense of unconsciousness, like the duty to instruct on the lesser offense of heat of passion manslaughter, depends on whether the defendant is relying on that defense, or if there is substantial evidence of such a defense and the defense is not inconsistent with the defendant's theory of the case. (People v. Ray (1975) 14 Cal.3d 20, 25 citing People v. Sedeno (1974) 10 Cal.3d 703, 716.) Where the defendant did not rely on that defense at trial and there was no substantial evidence to support such a defense, an instruction on involuntary unconsciousness is not required to be given sua sponte. (People v. Ray, supra, at p. 27.)
"Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge." (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) "To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist 'where the subject physically acts but is not, at the time, conscious of acting.'" (Id. at p. 417, quoting People v. Newton (1970) 8 Cal.App.3d 350, 376.)
It has been held that an unconscious act within the contemplation of section 26 is one committed by a person who, because of somnambulism, or sleep walking, a blow on the head, or similar cause, is not conscious of acting and whose act therefore cannot be deemed volitional. (People v. Mathson (2012) 210 Cal.App.4th 1297, 1315, and cases cited.) CALCRIM No. 3425 specifies that unconsciousness may be caused by a blackout, or an epileptic seizure, or involuntary intoxication.
However, while there is no statutory presumption that a person is conscious, such a presumption has been recognized by judicial decision. (People v. Hardy (1948) 33 Cal.2d 52, 63-64, citing People v. Nihell (1904) 144 Cal.200, 202.) "Therefore, the burden is on a criminal defendant to produce evidence rebutting this presumption of consciousness." (People v. James (2015) 238 Cal.App.4th 794, 804, citing People v. Cruz (1978) 83 Cal.App.3d 308, 330-331.)
Here, defendant, whose burden it was to establish, by evidence, testimonial or otherwise, the affirmative defense of unconsciousness, did not assert that he was unaware of what he was doing due to a blackout, seizure, or other problem interfering with his volition. His appearance to all who interacted with him in the minutes and hours after the baby's abusive head trauma was that of a conscious individual attempting to give CPR to the non-responsive infant. Additionally, his admission to Jamie that he "snapped" while conversing in private at the hospital, is ample evidence that he was conscious and fully aware of what he had done.
It is true that on further cross-examination by the People regarding his position inside the shower after he fell defendant stated he hit his head. But he did not indicate that he was injured in any way or that he lost consciousness, or had a concussion or even a bump on his head. He did not complain of dizziness. He did not complain that he had no recollection of events leading to the baby's death. In this respect, defendant's case is easily distinguishable from the authorities on which he relies. (See People v. Bridgehouse (1956) 47 Cal.2d 406, 410-411 [vague memory surrounding events with no recollection of pulling the trigger]; see also, People v. Wilson (1967) 66 Cal.2d 749, 755-756 [defendant did not remember firing the gun and did not recall what happened during the shootings].) Instead, he testified that when he fell, he was in a panic trying to get the baby out of the shower.
It was defendant's burden to overcome the presumption that he was conscious, but defendant did not introduce any evidence demonstrating he was unaware of what he was doing, had suffered a black out or seizure, or was sleepwalking. Instead, he described the events with increasing detail each time he related the events, as medical findings emerged that conflicted with his accounts. He stated he remembered the whole thing. As we have already noted, defendant's "whole defense" was based on accident, so the theory that defendant was unconscious is inconsistent with his defense, and not supported by substantial evidence.
The court was under no obligation to instruct sua sponte on the affirmative defense of unconsciousness.
The judgement is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
P. J. We concur: MILLER