Opinion
D072088
05-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID ASHTON, Defendant and Appellant.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD265240) APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted David Ashton of second degree murder following his fatal assault of his girlfriend, Regina Moore. (Pen. Code, § 187, subd. (a).) Ashton argues his conviction must be reduced to involuntary manslaughter because there was insufficient evidence to support a finding of implied malice. He also seeks a new trial for the exclusion of evidence relevant to whether he acted with implied malice.
All further statutory references are to the Penal Code unless otherwise specified.
Following the framework set forth in People v. Cravens (2012) 53 Cal.4th 500 (Cravens), we conclude there was sufficient evidence for a reasonable jury to find that Ashton acted with implied malice. Although the trial court erred in excluding evidence relevant to his defense, the error was harmless. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ashton had a long history of domestic violence. He became abusive when drinking and hit with great force when drunk. Moore, an alcoholic, moved into his house in 2014. Ashton promised to pay for her cell phone and cover her child support obligations if she cleaned his house. Their relationship started out platonic but became sexual.
Moore was dating John B., who was unaware she and Ashton were intimate. After she moved in with Ashton, John and Moore's friends and relatives began seeing her with marks, bruises, and black eyes. She told them that Ashton hit her. In 2015 Ashton started hitting her on the top of her head to avoid leaving visible marks. On four occasions, Moore's friend Robert P. felt lumps on Moore's head where Ashton had hit her.
Moore told John that Ashton "was going to kill [her] one of these days" and wrote in her diary that one incident "could have been fatal." Others voiced similar concerns to both Moore and Ashton. Moore was 5 feet, 1 inch in height, weighed around 114 pounds, and was so petite she wore girls' clothing. Ashton was 6 feet, 2 inches tall and weighed 220 pounds. Moore once told John that Ashton "hits me with his big giant fists and I only have little teeny, tiny fists." Ashton admitted he was "a pretty big guy" with an "unfair advantage, definitely" over the women he beat. Moore called her friends and family for help when she feared Ashton would be abusive. But she did not heed their advice to move out or stay away.
On January 13, 2016, Ashton came home from work and got upset about the tiling job in the ongoing bathroom remodel. John saw Moore later that night. She cried and told him that Ashton had grown irate and struck her in the head. Moore spent the next few days with John. She complained of headaches throughout the week to Ashton, John, and her daughter, and she scheduled a doctor's appointment for January 25 to diagnose the problem.
At trial, Ashton denied hitting her on January 13 and claimed they had merely argued.
Later that week, Ashton wanted to buy a cell phone from John. On January 22, John and Moore returned to Ashton's house to give him the phone. They left the house and walked toward John's car, but Moore went back inside to get her purse. When she took too long to return, John went inside. He found Moore on the floor, as if shoved. Ashton screamed, "Get this fucking bitch out of here. She's stealing my vodka." Moore left with John and spent the night at his house.
Moore returned to Ashton's house on January 23. She had been drinking all day. Ashton had also been drinking on and off that day. That evening, as Moore sat on the sofa in the living room, she made a comment about Ashton's family that angered him. He quickly walked over and punched her in the head. She blocked the first blow with her left arm, but he continued to punch her in the head with his fists, four or five times in total. The entire series of blows took seconds. Moore did not move or fight back and remained cowering on the couch. Ashton then struck her on the cheek, pulled her hard by the hair to make her move, and kicked her right arm as she struggled to get up. He stopped hitting her and helped her get up. Moore told Ashton she thought he had broken her arm. She walked to Ashton's truck and stepped into it. Ashton drove her to John's house around 8:00 p.m. and returned home.
John answered his door and saw a crying Moore. She said, "I think that fucker broke my arm and he hit me in the head." As she sat down inside, John smelled an odor and asked if she had defecated. Moore replied, "Yeah, I shit my pants when he broke my fucking arm." She was perfectly coherent, did not stumble or fall, and was able to clean up and remove her shoes. Moore eventually fell asleep on the floor. Her loud snoring awoke John, who turned her over and covered her with a blanket. At 3:00 a.m., John awoke and noticed she was unresponsive and not breathing. He called 911 and administered CPR.
Moore was taken to a hospital, where she died on January 24. She had a blood alcohol level of 0.249, which was not necessarily high for an alcoholic. An autopsy revealed that Moore died by multiple blunt force injuries causing a 100-milliliter subdural hematoma that caused her brain to herniate (shift). Moore also had seven subgaleal hemorrhages between her scalp and skull, a broken arm, multiple fractured ribs, facial swelling, and bruises—27 injuries in total. Moore had been treated for hypertension, alcoholism, and hypothyroidism, but her alcoholism and health conditions did not cause or contribute to her death.
This injury was variously described as a subdural hemorrhage or a subdural hematoma. We use those terms interchangeably to refer to a hemorrhage occurring between the brain and the dura, which is the layer of fibrous tissue between the skull and brain.
Ashton denied breaking her ribs; the defense theory was that they fractured during CPR.
The autopsy revealed that Moore also had an older subdural hematoma about 10 days old that was in the early stages of healing. The older subdural hematoma was consistent with Moore being punched in the head on January 13 and her reported headaches the week before her death. The autopsy showed that most of the pooled blood was acute, meaning it originated from the January 23 assault. But the older subdural hematoma increased Moore's susceptibility to suffering another subdural hematoma.
The older subdural hematoma could also be consistent with Moore falling down.
At the hospital, while Moore was being treated, John told police officers that Ashton struck Moore the previous week after they argued over a tile job. Officers conducted a traffic stop as Ashton left his home on January 24. Unprompted, Ashton asked officers, "Is this about Regina?" He appeared nervous and had swelling on both hands.
The San Diego County District Attorney charged Ashton in a one-count information with murder. (§ 187, subd. (a).) At trial, the People presented testimony from Moore's friends and relatives, Ashton's ex-wife and former girlfriend, police officers and investigators, the treating ER physician, and a forensic pathologist who performed the autopsy. These witnesses described Ashton's pattern of domestic violence against Moore and other women, events before and after the fatal altercation on January 23, and the nature of Moore's injuries and cause of death.
Ashton testified in his defense. He admitted hitting Moore on January 23, but stated he was unaware she had an older subdural hematoma. He denied hitting her on January 13 and testified that Moore fell while drunk on his concrete patio on January 16.
Forensic pathologist Christopher Swalwell testified as an expert for the defense. He believed the fatal subdural hematoma was not independent of and was essentially a re-bleed into the older subdural hematoma. Psychiatrist Alan Abrams also testified as an expert for the defense. He diagnosed Ashton with mild autism spectrum disorder and extrapolated that Moore would have had a blood alcohol level of 0.37 at the time of the fatal altercation.
The jury was instructed on first and second degree murder as well as voluntary and involuntary manslaughter. It convicted Ashton of second degree murder. The court denied Ashton's new trial motion and sentenced him to a term of 15 years to life in state prison.
DISCUSSION
1. Substantial Evidence Supports Ashton's Conviction
Ashton's theory at trial was that Moore fell and hit her head on the patio a week before her death, causing a subdural hematoma that increased her risk for the fatal one that followed. Unaware of her condition, Ashton beat her on January 23 knowing he would cause injury but not death. The resulting subdural hematoma caused a re-bleed of the old injury and killed her. Relying on this theory, which the jury considered and necessarily rejected, Ashton contends there was insufficient evidence of malice to convict him of second degree murder. Specifically, he claims the evidence failed to show an intent to kill, as required for express malice, or that he knew that hitting Moore in the head was dangerous to human life, as required for implied malice.
Where an appellant claims reversal is required for insufficient evidence, our task is clear. (Cravens, supra, 53 Cal.4th at p. 507.) " '[W]e review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (Ibid.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (Id. at p. 508.) As we explain, there is sufficient evidence from which a reasonable jury could have found that Ashton caused the older subdural injury and thereafter acted with implied malice when inflicting the fatal blows.
Murder is the unlawful killing of a human being or fetus with malice aforethought. (§ 187, subd. (a); Cravens, supra, 53 Cal.4th at p. 507.) Ashton was convicted of second degree murder, meaning the jury did not find the additional elements of willfulness, premeditation, and deliberation required for first degree murder. (People v. Knoller (2007) 41 Cal.4th 139, 151 (Knoller).) "Malice may be either express (as when a defendant manifests a deliberate intention to take away the life of a fellow creature) or implied." (Cravens, supra, at p. 507; § 188.)
As the People point out, the jury heard testimony from Ashton's ex-wife that on past occasions Ashton said he wanted to kill Moore. These statements concerned his ex-wife because Ashton was "the type of person" to let ideas fester. "One might, of course, speculate that he harbored . . . a particularized intent [to kill Moore]. 'But speculation is not evidence, less still substantial evidence.' " (People v. Waidla (2000) 22 Cal.4th 690, 735.) Because there is no evidence linking Ashton's threats temporally or contextually to the altercation that killed her, we focus our attention on implied malice.
Malice "is implied, when no considerable provocation appears, or when the circumstances attending to the killing show an abandoned and malignant heart." (§ 188.) Because this statutory definition has proven vague (Knoller, supra, 41 Cal.4th at p. 151; People v. Chun (2009) 45 Cal.4th 1172, 1181), courts have clarified that implied malice has two components, one physical and the other mental. (Cravens, supra, 53 Cal.4th at p. 508.) The physical component is the performance of an act, the natural consequences of which are dangerous to human life. (Ibid.) The mental component is the defendant's knowledge that his conduct endangers the life of another and actions in conscious disregard of life. (Ibid.) "In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less." (Knoller, supra, at p. 143.)
In Cravens, the Supreme Court considered whether there was sufficient evidence of implied malice where a single sucker punch to the victim's head resulted in death. (Cravens, supra, 53 Cal.4th 500.) The defendant's friends had been socializing with the victim at a bar when an argument broke out. They followed the victim to his apartment and assaulted him in the parking lot. The defendant threw the fatal punch without warning, when the victim's guard was down. (Id. at pp. 508-509.) Articulating the starting presumption that " 'if the blows causing death are inflicted with the fist, and there are no aggravating circumstances, the law will not raise the implication of malice aforethought, which must exist to make the crime murder,' " the Cravens court concluded the aggravating circumstances in that case supported a finding of implied malice. (Id. at p. 508.) We follow the same framework and likewise conclude sufficient evidence supports both the physical and mental components of implied malice.
a. Physical component
As to the physical component of implied malice—the performance of an act inherently dangerous to life—Cravens relied on several aggravating circumstances that are also present here. The defendant in Cravens "targeted a smaller and shorter victim who was intoxicated, exhausted, and vulnerable." (Cravens, supra, 53 Cal.4th at p. 508.) The question was not the victim's strength when rested and sober; the defendant "swung hard against a fatigued and intoxicated victim who was two inches shorter and 60 pounds lighter." (Id. at p. 509.) Here, Moore was seated and intoxicated when a bigger, stronger Ashton without warning punched her repeatedly in the head. The size differential is starker than in Cravens—Ashton was over a foot taller and a hundred pounds heavier than Moore. Although she had made some comments that upset Ashton, like the victim in Cravens, she "was not behaving in an aggressive manner." (Ibid.)
Cravens noted that the defendant secured every possible advantage to inflict the greatest injury, standing on the curb to amplify his height advantage. (Cravens, supra, 53 Cal.4th at p. 509.) Ashton was over a foot taller than Moore when both were standing. He walked over and within seconds punched a seated Moore repeatedly in the head while she cowered beneath him. Ashton attempts to minimize his conduct, suggesting "Moore was sitting on a couch with her blankets," unlike the "attack on the street" in Cravens. The size differential between Ashton and Moore, their relative positioning, and his rapid-fire blows to the head show his attack was no less severe than the one in Cravens.
The fatal punch in Cravens was "extremely hard," with one witness stating it was one of the hardest punches he had seen thrown. (Cravens, supra, 53 Cal.4th at p. 509.) It was so forceful the victim was knocked unconscious before hitting the pavement. (Ibid.) Here, Ashton hit Moore with enough force to break her arm and make her to lose control of her bowels. The punches to her head produced a subdural hematoma; 100 milliliters of blood seeped between the brain and skull, causing the brain to shift or herniate. Ashton's hands were still swollen a day later. His ex-wife testified he hit extremely hard when drinking, and he had been drinking all day. Past blows to the head left Moore with chronic headaches and lumps on her head, suggesting Ashton had applied significant force on past occasions. The jury reasonably rejected Ashton's claim he "pulled his punches" and "didn't hit her full force" on January 23. As in Cravens, his "apparent belief that he could have inflicted even more damage . . . is hardly exculpatory." (Ibid.)
Ashton makes much of the fact that the victim in Cravens was rendered unconscious by the fatal blow, whereas Moore walked to the car and could speak coherently. He likewise claims "there was nothing like the blindside sucker punch that was crucial to the finding of implied malice in Cravens." But Cravens never suggested a sucker punch or immediate unconsciousness were prerequisites to finding the physical component of implied malice. Instead, it merely cited those facts as indicia of the force the defendant used. (Cravens, supra, 53 Cal.4th at p. 509.) We look to different indicia here.
For the same reason, we are not persuaded by Ashton's reliance on People v. Guillen (2014) 227 Cal.App.4th 934 (Guillen). Ashton contends there was implied malice in Guillen because the defendants engaged in a "planned, sustained, hidden-from-view attack by waves of assailants," who "continued after the victim was barely conscious and defenseless." As did Cravens, Guillen simply looked to whether there was evidence of aggravating circumstances in that case. It concluded there was sufficient evidence of implied malice where a sustained group assault against a prison inmate resulted in death. We follow the same approach in looking at a different set of facts. The duration of the fatal assault and Moore's consciousness are not dispositive. (See, e.g., People v. Brothers (2015) 236 Cal.App.4th 24, 28, 34 [rejecting claim of instructional error because the defendant's beating the victim with a broomstick in the head and face multiple times "with such force the stick broke in half" showed implied malice].)
b. Mental component
The crux of Ashton's appeal revolves around the mental component of implied malice. He argues that although he knew his actions would injure Moore, there was insufficient evidence he knew they could kill her.
To satisfy the mental component of implied malice, the prosecution had to establish that Ashton knew his conduct endangered the life of another and acted with a conscious disregard for life. (Cravens, supra, 53 Cal.4th at p. 508.) This "requires proof that a defendant acted with conscious disregard of the danger to human life," and not simply disregard of "the risk of serious bodily injury." (Knoller, supra, 41 Cal.4th at p. 156, italics added on each quote.) There must be evidence the defendant actually appreciated the risk to human life involved—a subjective standard applies. (People v. Dellinger (1989) 49 Cal.3d 1212, 1217.)
Nevertheless, there is no need to prove a high risk of death from defendant's conduct. (Knoller, supra, 41 Cal.4th at pp. 143, 157.) All that is required is awareness of some risk—i.e., that given conduct endangers human life. (Id. at p. 157, citing People v. Phillips (1966) 64 Cal.2d 574, 587.) Here, as in Cravens, "the jury was entitled to infer defendant's subjective awareness that his conduct endangered [Moore's] life from the circumstances of the attack alone, the natural consequences of which were dangerous to human life." (Cravens, supra, 53 Cal.4th at p. 511.) Ashton's behavior before and after the January 23 assault further bolster a finding of implied malice. (Ibid.)
Ashton was aware that past beatings had sent Moore to the hospital several times. His ex-wife warned him he could hurt Moore badly, to which he laughed and said he hit Moore because she was dumb. He was aware of their 100-pound size differential, testifying he was "a pretty big guy" who had "an unfair advantage, definitely" over the women he beat. He struck Moore in the head ten days earlier and knew she was suffering from a lingering headache. Yet he punched her in the same spot repeatedly and without warning on January 23 as she sat cowering on a sofa. He hit her hard enough to break her arm, and his hands were swollen the next day. Ashton understood that athletes wore helmets to prevent head injuries, and he recognized the brain was very fragile.
Moore once journaled that Ashton's blow "could have been fatal" and that Ashton's beatings would kill her one day. Her ex-husband warned her, "You got to get away from that guy because he's going to kill you." A friend was "concerned for her safety" and felt it was "dangerous" for her to continue living with Ashton. If Moore and those around her appreciated that Ashton's conduct endangered her life, the jury could reasonably infer that Ashton did too. "Whether [Ashton] was subjectively aware of the risk [to human life] is best answered by the question: how could he not be? It takes no leap of logic for the jury to conclude that because anyone would be aware of the risk," Ashton was. (People v. Moore (2010) 187 Cal.App.4th 937, 941.)
Given their size differential, relative positioning during the incident, and Moore's intoxication, the jury could find from the circumstances of the January 23 assault alone that Ashton knew his actions posed some risk to Moore's life. That he had hit her on the head ten days earlier and knew she was experiencing headaches further supports that finding. The jury reasonably rejected Ashton's self-serving testimony that he did not know the extent of Moore's injuries or believe he had used enough force to kill her.
Indeed, Ashton's own testimony about a prior assault undermines his claimed ignorance about the risk involved. After hitting a seated Moore with no force in 2015, he testified she "flew right off her stool, faceplanted on the tile floor before she could catch herself, and suffered two black eyes. He claimed he was "shocked that she fell because I didn't hit her with any force." The jury was entitled to find that after this incident, Ashton subjectively knew that punching her four or five times in the head with considerably greater force would endanger Moore's life.
Ashton claims his lengthy history of domestic violence is exculpatory because none of those victims died or suffered serious injury. This was the view expressed by Justice Kennard's dissent in Cravens. (Cravens, supra, 53 Cal.4th at p. 516 (dis. opn. of Kennard, J.) ["these past assaults, none of which led to a fatal injury, do not tend to establish that in this case the blow involved a high probability of death"].) The majority took the opposite view, citing defendant's pattern of behavior to conclude the fatal blow "was predictably dangerous to human life." (Id. at p. 510.)
By parallel reasoning, Ashton's pattern of abuse made the January 23 assault predictably dangerous to Moore's life. Moore journaled that a past assault could have been fatal and that Ashton would one day kill her; others shared her concern. The jury could reasonably reject Ashton's testimony that her older subdural injury was from falling on the patio. Having punched Moore in the head on January 13 hard enough to leave lasting headaches, Ashton repeatedly punched her there again on January 23, breaking her arm and inflicting enough pain that she lost control of her bowels. Ashton's ex-wife knew about Ashton's pattern of abuse and was concerned—Moore was so petite she "shopped in the little girls' section" whereas Ashton was extremely strong. Ashton recognized he was a big guy with an unfair size advantage. As in Cravens, the jury could reasonably reject the defense version that the natural consequence of the fatal punch was merely a "sore [head]" or that Moore's death was a "freak result." (Id. at pp. 510-511.)
We also look to Ashton's conduct after the fatal assault to evaluate the mental component of implied malice. (Cravens, supra, 53 Cal.4th at p. 511.) Here, as in Cravens, Ashton "took no steps to ascertain [Moore's] condition or to secure emergency assistance." (Ibid.) After repeatedly hitting her in the head and hearing he might have broken her arm, Ashton dropped her off at John's house and left it to him to seek medical attention. He did not take her to the hospital himself because he worried about getting arrested if her arm was in fact broken. Ashton did not try to call John until the next day, after he returned from his weekend activity of flying remote-controlled airplanes.
Cravens approved of People v. Ogg (1958) 159 Cal.App.2d 38 (Ogg), a case neither party cites that has close parallels with this case. (Cravens, supra, 53 Cal.4th at p. 511.) Francis Ogg, a professional boxer who fought in the 160- and 172-pound range was convicted of second degree murder of his 5 feet, 4 inches, 101-pound wife, who died of a fractured skull, intracranial hemorrhage, and cerebral lacerations. (Ogg, supra, at pp. 41-42, 47.) He admitted to beating her in the past but denied doing so on that occasion, claiming he had instead heard her fall on the concrete patio. (Id. at pp. 45-46.) Knowing she was seriously hurt, he left to go bowling and took a flight the next day to Las Vegas without calling for assistance. (Id. at pp. 46-47.) From injuries throughout the victim's body, the jury could reasonably infer Ogg acted with implied malice. (Id. at pp. 50-51.) His conduct after the fatal assault further supported that finding. (Id. at p. 51.) These were "aggravating circumstances" to defeat the presumption that a fist fight resulting in death is ordinarily manslaughter, not murder. (Id. at pp. 51-52.) We reach the same conclusion on similar facts.
"The existence of a mere conflict in evidence provides no basis for reversal. . . . [I]n this appeal the only issue that is properly before us is whether any reasonable jury could have found that [Ashton] acted with implied malice." (People v. Latham (2012) 203 Cal.App.4th 319, 334.) On the record before us, there is ample evidence from which a reasonable jury could find both the physical and the mental components of implied malice. Having been instructed on both malice aforethought murder and involuntary manslaughter, it reasonably convicted Ashton of second degree murder based on a finding of implied malice.
2. The Evidentiary Error Was Harmless
Ashton argues the trial court erroneously excluded evidence that was relevant to negate the mental component of implied malice—namely, his knowledge that Moore might be more susceptible to a subdural hematoma during the fatal assault as a result of her older subdural injury. We conclude any error in this regard was harmless.
On direct examination, Ashton described what happened the morning after the fatal assault. He first learned of Moore's death after his arrest and was shocked. Defense counsel then tried to elicit testimony as to whether he knew that Moore had a heightened risk of suffering another subdural hematoma given her preexisting subdural hematoma. The court sustained the People's objections to the last two questions in the following exchange on relevancy grounds:
"Q. Now -- Now were you aware, on the evening that she died, that she had an older subdural hematoma?
"A. No. I didn't know anything about that.
"Q. Now, have you had any medical training?
"A. No.
"Q. Up until this case, did you know what a subdural hematoma was?
"A. No.
"Q. Did you have any knowledge, other than what the doctors at the hospital in July may have told you, about her medical condition?
"A. Did I have knowledge of her medical condition?
"Ms. Rooney: Objection. Vague as to when.
"The court: Sustained.
"Q. Other than what the doctors at the hospital told you during that July hospitalization for the alcohol issue, did you have any medical knowledge of her condition?
"Ms. Rooney: Objection. Vague and irrelevant.
"The court: Sustained as irrelevant.
"Q. Did you have any knowledge that Regina might be more prone to a subdural hematoma than someone ~ a healthy person?
"Ms. Rooney: Objection. Relevance.
"The court: Sustained."
Ashton contends the court erred in sustaining objections to the final two questions. He argues his knowledge as to Moore's risk for a subdural hematoma were "indisputably relevant" to the issue of implied malice. We agree the court erred. Whether Ashton knew about Moore's medical condition and her increased risk for a subdural hematoma were relevant to his subjective awareness that his actions endangered human life. Relevant evidence is that "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "Except as otherwise provided by statute, all relevant evidence is admissible." (Id., § 351.) Ashton was entitled to tell the jury that because he was unaware of the existing subdural hematoma, he did not know that Moore was at increased risk for another.
Nevertheless, reversal warranted only if the error resulted in prejudice. Although Ashton argues the heightened standard for federal constitutional error applies, "[b]ecause the trial court merely rejected some evidence concerning a defense, and did not preclude defendant from presenting a defense, any error is one of state law and is properly reviewed under [People v. Watson (1956) 46 Cal.2d 828, 836 (Watson)]." (People v. McNeal (2009) 46 Cal.4th 1183, 1203.)
Under the Watson standard, any error here was harmless. (Watson, supra, 46 Cal.2d 836.) Testifying pathologists on both sides agreed that Moore's existing subdural hematoma placed her at greater risk for suffering another subdural hematoma. It is not reasonably probable the jury would have reached a different result had Ashton been permitted to testify that he was unaware of that fact. Ashton did testify he did not know Moore had an existing subdural hematoma and that he did not even know what a subdural hematoma was. Defense counsel argued in closing that even if Ashton suffered a subdural hematoma on January 13 after the tile fight, that would not "alter what happened on the 23rd because he wouldn't know that she had a subdural hematoma."
Given this record, the excluded testimony would have added little if anything to his defense. Whether Ashton knew of Moore's increased risk due to any preexisting medical condition, he knew she had suffered recent head trauma and was complaining of headaches before he punched her in the head. Viewing the record as a whole, there is no reasonable probability the jury would have reached a more favorable verdict had the trial court permitted Ashton to answer the last two questions in the quoted exchange. (People v. DeHoyos (2013) 57 Cal.4th 79, 131.)
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. AARON, J.