Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Riverside County, Philip K. Sarkisian, Judge. (Retired judge of the Alameda Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part as modified, reversed in part and remanded for resentencing as to Defendant and Appellant Melissa Sue Osuna. Affirmed as to Defendant and Appellant Ray Timothy Ponce. Motion for in camera review of juvenile court records. Super. Ct. No. RIF108833
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Melissa Sue Osuna.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Ray Timothy Ponce.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Paramedics responding to an emergency call on March 10, 2003 found three-year-old Yessenia Garcia breathing, but unconscious and unresponsive to stimuli, on the floor of the apartment where she lived with her mother Melissa Sue Osuna and her mother’s boyfriend Ray Timothy Ponce. Yessenia was taken to a hospital and placed on life support. She was covered in bruises and abrasions and had suffered severe impact injuries, all caused by lethal force, to her forehead and to the back and left side of her head. The hospital’s director of forensic pediatrics found it remarkable that Yessenia had so many injuries, observing “[t]here’s hardly a square inch that doesn’t have something.” Yessenia was pronounced clinically brain dead two days later.
A jury convicted Osuna and Ponce with the second degree murder of Yessenia (count 1, Pen. Code, § 187, subd. (a)) and with assault on a child by means of force likely to produce great bodily injury resulting in the child’s death (child homicide) (count 2, § 273ab). The trial court sentenced Osuna and Ponce each to a term of 25 years to life in prison on count 2 and stayed sentence on count one pursuant to section 654, subdivision (a). Both Osuna and Ponce have appealed; each contends the other caused Yessenia’s death.
Further code references are to the Penal Code unless otherwise noted.
We affirm in full the judgment against Ponce. We conclude the evidence was insufficient to support the verdict against Osuna for second degree murder and child homicide; however, the evidence established that Osuna is guilty of involuntary manslaughter. Therefore, we exercise our statutory authority under sections 1181, subdivision (6) (section 1181(6)) and 1260 to modify the verdict and judgment against Osuna to reflect a conviction for the lesser included offense of involuntary manslaughter. We reverse the judgment against Osuna for child homicide because Osuna did not have the requisite mental state to be liable for its lesser included offenses of assault and assault by means of force likely to produce great bodily injury. We remand for the limited purpose of resentencing Osuna.
Ponce is not entitled to similar treatment under sections 1181(6) and 1260 because the evidence was sufficient to support the verdict against him. We reject Ponce’s contentions in support of reversal and affirm his conviction.
Facts
Yessenia was born in January 2000. Osuna was her mother, and her father was Santee Garcia. Although Osuna and Garcia ended their relationship when Yessenia was between six and nine months old, he visited Yessenia nearly every other weekend until she died and appeared to be a loving and affectionate father.
Osuna and Ponce began dating in October 2002 and soon thereafter moved into an apartment together. Yessenia lived with Osuna’s parents, Gloria and Fernando Osuna, for about another month before joining Osuna and Ponce in their apartment.
On weekdays, Yessenia attended a preschool where Gloria worked as a teacher. In January 2003, Yessenia was treated for a chin laceration, which she apparently received by jumping off a table at school. No other injuries were noted at the time. A month later, Yessenia went to school with a bump on her forehead the size of an egg. Osuna told Gloria that Yessenia had fallen off a bed and landed on her head. As the swelling went down, Yessenia’s eyes turned black. During the last week of February 2003, Yessenia received a minor injury on her face from another child. Gloria occasionally observed Yessenia with bruises from playing, but never noticed injuries to her buttocks or legs.
Ponce was unemployed. Osuna worked as a receptionist and supported the household. Several of her coworkers believed Ponce physically abused her. On one or two occasions, a coworker, Wayne Walls, observed extensive bruising on Osuna’s upper arms. He considered her explanation for the bruises to have been satisfactory at the time, but later, in hindsight, came to believe the bruising was from physical abuse. Another coworker, Henry Salgado, also recalled seeing bruises on Osuna and was aware that she and Ponce fought. Georgine Tacke, who had been a registered nurse for 50 years, saw bruises on Osuna’s upper arms that looked like “grab” bruises. When Tacke asked Osuna about the bruises, her response was not satisfactory. Tacke advised Osuna not to leave Yessenia at home. Gloria claimed, however, never to have noticed bruises on Osuna’s arms.
On Monday, March 3, 2003, Yessenia attended school. It was school picture day, and Yessenia had her picture taken. The picture did not show any bruising or signs of injury.
On Tuesday, March 4, 2003, Gloria took Yessenia to Garcia’s house, where she spent the day. Garcia, who bathed Yessenia and changed her clothing, claimed the only injuries he noticed were a bruise under her eye and a scratch on her nose. After work, Gloria picked up Yessenia from Garcia’s home and drove back to her home. Gloria did not notice anything wrong with Yessenia. Later that day, Osuna picked up Yessenia from Gloria’s home. It was the last time Gloria saw Yessenia.
On Wednesday, March 5, 2003, Osuna called Gloria to tell her Yessenia would be spending the day with Ponce and his sister rather than going to school. The next day, Osuna told Gloria that Yessenia had fallen down the stairs the previous day and would not be attending school for the rest of the week. Yessenia stayed at home with Ponce on March 6 and March 7 while Osuna was at work.
Yessenia was supposed to spend the weekend of March 8 and 9, 2003 with Gloria and Garcia. Osuna told Gloria that Yessenia would not be visiting because of her injuries from falling down the stairs.
Osuna told a coworker, Sacha Oakley, that while on a school field trip, Yessenia had fallen off from a bus, hit her head on the sidewalk, and had bruises on her face and body. Osuna told Oakley she had to cover Yessenia in make-up and clothing to take her out in public. Osuna told coworker Walls that Yessenia had fallen off a bus while on a school field trip to the San Diego Zoo. Osuna told Tacke that Yessenia had gone to the San Diego Zoo with Ponce’s sister, Ruth Ponce, and tripped and injured herself while running through the parking lot. Tacke thought the story was suspicious and, when Osuna said she had not obtained medical care for Yessenia, told Osuna to bring her to the work to be treated. Osuna did not do so. Osuna also told coworker Darlene Field that Yessenia had tripped and injured herself while on a field trip to the San Diego Zoo. Yessenia neither went on a school field trip nor went with Ponce’s sister to the San Diego Zoo. Osuna told Salgado that Yessenia was badly bruised from head to toe after falling down stairs while carrying a bowl of cereal.
On Saturday evening, March 8, 2003, Ponce’s sister Ruth visited the apartment shared by Osuna and Ponce and saw Yessenia sitting on the ground, wearing pajamas that covered her arms and legs. She had a scratch on her chin and a small bruise under her left eye. Ruth later told a deputy district attorney and an investigator that Yessenia’s face was “‘really swollen’” and that when she saw Yessenia she exclaimed, “‘“Oh, my God.”... “What happened to her?”’” Ruth told Osuna to take Yessenia to the hospital, but neither Osuna nor Ponce sought medical care for Yessenia.
On Sunday, March 9, 2003, Gloria spoke with Yessenia by telephone. Yessenia’s voice did not sound unusual and she was able to understand what Gloria said.
On Monday, March 10, 2003, Osuna did not take Yessenia to school and instead left her in the apartment with Ponce before going to work. At a few minutes after 12:00 noon, Ponce called Ruth and asked her to come over right away because there had been an accident. Ruth arrived at the apartment within a few minutes, went upstairs, and found Yessenia lying on her back on the floor of her bedroom. Yessenia appeared unconscious and was gasping for air. Ruth carried Yessenia into the hallway and attempted to give her cardiopulmonary resuscitation (CPR). Blood and mucous poured from Yessenia’s nostrils. Ruth carried Yessenia to the bathroom and brushed warm water over her face and head to clean away the blood and mucous. After several minutes, Ruth dialed 911 and was told the paramedics were on their way. Ruth carried Yessenia downstairs to wait for them to arrive.
When paramedics arrived at about 12:16 p.m. they found Yessenia lying on the ground, breathing but unresponsive to stimuli. She was taken to Riverside Community Hospital and later that day transferred to Loma Linda Children’s Hospital.
Police officers arrived at the apartment at 12:25 p.m. on March 10. Ponce was extremely upset and the officers had difficulty speaking with him. He identified himself as Yessenia’s stepfather and said her biological father had not been in her life since birth. Ponce told the police that Yessenia had taken a bath and fell off a boom box while trying to hang a towel on a peg. One police officer found a dry towel on Yessenia’s bed and no wet towels were found in the apartment. The bathroom floor was wet and there was a wet spot on the carpet in a hallway. A hair was found on the wall two feet and eight inches above the wet spot in the hallway. In Yessenia’s bedroom there was a boom box at the foot of the bed. The carpet at the foot of the bed by the boom box, the spot where, according to Ponce, Yessenia had fallen, was not wet. Some of Yessenia’s clothing was found neatly folded underneath a plastic bag in a trash can.
Once Osuna arrived at the apartment, a police officer transported Ponce and her to the police station. The officer described Osuna and Ponce as very affectionate and loving toward each other. Ponce was more emotional than Osuna. Ponce told the police officer Yessenia had fallen from a boom box, and Osuna told the officer Yessenia had fallen down the stairs the previous Wednesday.
Yessenia was placed on life support. Two brain death evaluations were conducted on Yessenia. The first was conducted at 3:15 p.m. on March 11. The second was conducted at 6:30 a.m. on March 12. Yessenia was pronounced clinically brain dead at the second evaluation.
Dr. Claire Sheridan-Matney treated Yessenia on March 10 and declared her brain dead on March 12. Dr. Sheridan-Matney is the Director of the Division of Forensic Pediatrics and a member of child abuse and neglect team at Loma Linda Children’s Hospital. She observed swelling one Yessenia’s face and scalp, bilateral eye hemorrhages, and at least three distinct impact sites, one to the forehead, one to the back of the head, and another to the left side of the head. Dr. Sheridan-Matney observed bruises to Yessenia’s right hip, right eyelid, left arm, left thigh, buttocks, ear, elbow, wrist; linear (straight line) bruises to her right thigh; abrasions (meaning the skin has been cut) around her right knee and upper arms; macerated tissue under her upper lip; an old scar on the side of her mouth, and linear “grab marks” on her upper arms. “There’s hardly a square inch that doesn’t have something, ” she commented.
Dr. Sheridan-Matney believed the bruising on Yessenia’s buttocks must have been very painful. She concluded the abrasions on Yessenia’s upper arms were at least five days old and looked like they were caused by sharp fingernails. Yessenia had acute “loop marks” on her legs that looked recently inflicted because they were red and swollen. Yessenia also had square-shaped marks on her right arm and hip that could have been caused by a shoe. There was an open cut behind Yessenia’s ear that could have been caused by someone pulling the ear and lacerating it with a fingernail. Yessenia had a patterned injury on the back of her right arm that appeared as though it had been inflicted by a belt buckle, and another patterned injury on her lower right abdomen that look as though it had been caused by someone standing on her. Accidental injuries, Dr. Sheridan-Matney noted, rarely have such definite patterns. The different ages of the various injuries, and the degree to which each had healed, indicated Yessenia had been physically abused over a period of time.
Dr. Sheridan-Matney concluded Yessenia’s head injuries were caused by “lethal force”-force greater than that created by falling down a flight of stairs or off of a boom box. She explained “[t]hese are extraordinary forces that we’re talking about to cause this kind of brain damage.” She believed Yessenia’s injuries could have been caused by shaking or being thrown against a hard surface, causing the brain to rotate.
Dr. Sheridan-Matney testified the head injuries to Yessenia would have been immediately symptomatic and she would not have been able to function normally after receiving them. There would not have been a “lucid interval” during which Yessenia would have been able to walk and talk normally; instead, Yessenia would have rapidly gone into a coma after being injured. According to Dr. Sheridan-Matley, it would not have been possible for Yessenia to receive the brain injuries on the night of March 9, 2003 and survived the night. Thus, Dr. Sheridan-Matney concluded, Yessenia was injured during the morning of March 10.
Forensic pathologist Dr. Steven Trenkle performed the autopsy on Yessenia. He concluded the cause of death was blunt head injury due to abusive head trauma, with battered child syndrome a contributing cause. During the internal examination, Dr. Trenkle found a one-inch tear in the galea, the deepest part of the scalp and next to the bone. He described the tear as a “significant injury” and explained it could only have by caused by a “significant impact”-a force greater than would occur if an active child were injured at home or on the playground. The injury would not have resulted from falling down stairs or falling off a boom box.
Also during the internal examination, Dr. Trenkle found that Yessenia had a subcutaneous hemorrhage in her scalp caused by a blunt-force injury, a retinal hemorrhage behind one eye, and “a marked swelling of the brain, ” a typical reaction to trauma. Her brain was so swollen it could not have been treated.
Dr. Trenkle concluded Yessenia’s head injuries were intentionally inflicted and could have been caused by a “bodily slam” to the floor, wall, or side of a bathtub. After receiving these types of injuries, Yessenia would not have acted normally. She would have been unconscious, possibly comatose; she might have had seizures and, potentially, stopped breathing. Dr. Trenkle therefore concluded Yessenia suffered the fatal injuries near the time of the 911 call on March 10. In addition, Yessenia was anemic when she arrived at Riverside Community Hospital and her hemoglobin fell from 8.9 to 6.6 at Loma Linda Children’s Hospital, indicating acute bleeding occurring near the time of the 911 call.
During the external examination, Dr. Trenkle saw the same body injuries noted by Dr. Sheridan-Matney. He observed swelling on the forehead, hemorrhaging underneath the swelling, abrasions, contusions, scarring, and bruises of varying size and severity on Yessenia’s arms, buttocks, thighs, hip, leg, the base of her neck, and overlapping “whip” marks on her thigh made by some kind of looping cord. He also noted injuries to the tissue inside Yessenia’s lip.
Dr. Trenkle opined that most of Yessenia’s injuries were inflicted within a short period of time near the time of the 911 call on March 10. The major bruising to Yessenia’s buttocks and thighs was inflicted less than 72 hours from the time Yessenia was declared brain dead on March 12. Some injuries were older. He believed some of the scars on her chest were five to eight months old. Injuries to the tissue inside Yessenia’s lip and behind her ear, and a forehead bruise, appeared to be more than five days old. Abrasions on Yessenia’s arms were inflicted earlier than the head injuries and were in the process of healing.
Riverside Police Detective Rome Whitt interviewed Ponce at the police station on March 10, 2003. A videotape of the interview was played for the jury. In the interview, Ponce said he had lived at the apartment with Osuna since October 2002, was unemployed, and was receiving unemployment benefits. He claimed Yessenia had fallen down the stairs for the second time on the previous Thursday. He and Osuna had discussed taking Yessenia to the doctor but decided against it because Osuna was in a custody battle with Garcia and they were afraid he would learn about Yessenia being injured. Ponce and Osuna put ice on Yessenia’s forehead, head, and mouth, and, by Saturday, the swelling on Yessenia’s head had gone down and her lips were healing. On Sunday evening Ponce and Osuna discussed taking Yessenia to the doctor on Monday when Osuna returned home from work.
In the interview, Ponce recounted the events of the morning of March 10 as follows: Yessenia acted and spoke as she normally would, and Ponce did not notice anything wrong with her. He prepared a bath for Yessenia and laid out her clothes while she bathed. When she was finished bathing, Ponce drained the bathtub, dried her hair, and sent her to her room to get dressed. After hearing a loud thump, Ponce went to Yessenia’s room and found her on the floor in front of the boom box. She was shaking and appeared to be having a seizure. Ponce carried her to the shower and let water run over her head. When he blew into her nose, mucous and blood came out. He threw water on her face, placed her in the hallway, called his sister, and then dialed 911. Ponce told the 911 dispatcher that Yessenia fell of a boom box. Ponce’s sister Ruth arrived and took charge of the situation.
Defense and Rebuttal Evidence
A. Ponce
Dr. David Posey, a private pathologist, testified on Ponce’s behalf. Dr. Posey agreed that Yessenia died of nonaccidental head trauma consistent with shaking or banging her head against a hard surface. He opined, however, the brain injuries occurred between 48 and 72 hours before she was pronounced brain dead. He based his opinion on his review of staining of tissue samples from Yessenia that showed the presence of “macrophages, ” which appear during the healing process to clean up “iron and debris” following an injury.
Dr. Posey received 20 slides of tissue samples taken from Yessenia, of which 12 slides were of brain tissue. Dr. Posey’s associate, Dr. Roscoe Atkinson, applied the stains and conducted the tests, but did not testify at trial. He applied four different stains or preparations to the tissue samples: (1) an iron stain; (2) a trichrome stain; (3) a CD68 preparation; and (4) the Factor VIII preparation. The iron stain was negative, meaning the injury could not have occurred more than four to five days before brain death. This gave Dr. Posey one marker for determining the date of injury. The trichrome stain and the Factor VIII preparation were negative, and therefore were not useful in determining the date of injury.
Dr. Posey testified the CD68 prepartion was positive for the presence of macrophages in the brain tissue. Because macrophages appear on the CD68 tests between 48 and 72 hours after the injury, Dr. Posey concluded the blunt force trauma was inflicted on Yessenia between five days and 48 to 72 hours before brain death. Using the time of death as 6:30 a.m. on March 12, Dr. Posey calculated backwards to conclude the blunt force trauma that caused Yessenia’s death could not have occurred around the time of the 911 call on March 10.
Dr. Posey’s written report stated “‘[t]he CD 68 stain showed only baseline peripheral blood Monocyte reactivity and neutrophil cross-reactivity.’” Portions of the report were quoted on the record at trial.
Dr. Posey also testified a person could have a lucid interval after suffering a head trauma before that person starts to “decompensate.” According to Dr. Posey, if Yessenia had suffered the head injuries on the night of March 9, it would have been possible for her to walk, talk, and act the next morning, although she would have been in pain and possibly disoriented.
Ponce’s uncle (Dr. Michael Sanchez), sister (Monique Linton), and mother (Connie Louise Ponce) testified to Ponce’s good character and gentle personality. Sanchez testified Ponce was good with children and appeared close to Yessenia. Linton testified Ponce loved children and was incapable of hurting them. She testified she never saw him angry and he was the “passive” partner while Osuna was the “dominant” one. Connie Louise Ponce testified her son was never violent and was particularly affectionate with children.
Ponce testified on his own behalf. He claimed Osuna’s relationship with Yessenia changed over time. According to Ponce, Osuna started to become increasingly frustrated and aggressive with Yessenia and sometimes hit her with a belt. On several occasions, when Yessenia wet her pants, he saw Osuna scold her and smack her on her hand or grab her arm and lead her upstairs.
Ponce testified Yessenia fell down the stairs on March 6, 2003. Afterwards, he noticed bruises on her face and later saw a bump on her head and suggested taking Yessenia to the hospital. Osuna said it was not necessary to take Yessenia to the hospital and placed ice on her head to reduce the swelling. By Saturday, March 8, Yessenia’s condition was not improving, and on Sunday, March 9, she was lethargic. Ponce and Osuna decided to take Yessenia to the hospital on Monday, March 10.
Ponce further testified: On the evening of March 9, Osuna became angry with Yessenia and pulled her upstairs by the arm. He soon heard the sound of spanking, a belt cracking, and Yessenia crying. He walked upstairs to see what was going on and saw Osuna kneeling in front of Yessenia with her hands on her upper arms jerking her back and forth and telling her she needed to say when she wanted to go “potty.” Osuna told Ponce it was just another bathroom incident and he should mind his own business.
The next morning, Osuna awakened Ponce at about 10:00 a.m. and told him she was leaving Yessenia with him rather than taking her to school. After arising shortly before noon, Ponce testified he saw Yessenia in her bedroom playing with a singing toy. She said, “‘good morning, daddy, ’” but look disoriented. She did not move much while Ponce bathed her. He noticed bruises on her arms and legs. Ponce put underwear and a shirt on Yessenia and asked her to put her pajamas in the hamper. She returned to the bathroom, but left again when Ponce asked if she had hung up her towel. The next time Ponce saw Yessenia, she was on the bedroom floor, stiff and with her fists clenched. She was heaving and her eyes were fluttering. Ponce placed Yessenia under the shower and tried to revive her by performing CPR. After dialing 911 and receiving no response, he called his sister Ruth.
B. Osuna
Osuna did not testify. Yessenia’s pediatrician testified that a review of her medical records showed that she had seen Yessenia seven times between March 11, 2002 and February 6, 2003. Yessenia’s height and weight were within normal range, and her immunizations were current. The pediatrician had noted no signs of abuse.
Osuna’s sister, Leticia Osuna, and cousin, Cynthia Sands, testified to the close relationship between Osuna and Yessenia. Leticia Osuna recounted an incident in December 2002 in which Ponce called the police when she and her mother knocked at the apartment door to pick up Yessenia. After the police arrived, Osuna and Yessenia went home with Leticia Osuna. Later the same say, Ponce appeared at Leticia Osuna’s house to remove Osuna and take her back home with him. He was very upset. The police arrived. Osuna left with Ponce.
Sands testified she noticed Osuna became somewhat distant after she began seeing Ponce. Based on a brief telephone conversation with Ponce, Sands thought he was a “jerk.”
Osuna also presented testimony in support of a defense that she was a victim of battered women’s syndrome. Several office coworkers testified seeing bruises on Osuna’s upper arms, and two coworkers testified they noticed a change in Osuna’s mood starting about one month before Yessenia died. Dr. Jody Ward, a clinical and forensic psychologist, testified as an expert on battered women’s syndrome. The testimony relating to domestic abuse and battered women’s syndrome is discussed in greater detail in Part II of the section entitled “Ponce’s Appeal.”
C. Rebuttal Evidence
Dr. Trenkle testified in rebuttal to Dr. Posey’s testimony. Dr. Trenkle testified all bodies produce blood monocytes at a baseline level, so one would expect to see monocytes in a blood stain, even of uninjured tissue. Monocytes in excess of this baseline amount might indicate a response to an injury. When a monocyte is activated and enters tissue in response to injury it becomes a macrophage. Dr. Trenkle testified that Dr. Posey’s report mentioned only “baseline peripheral blood monocytes” and did not mention monocytes above baseline level that would be an indication of a reaction to an injury. Dr. Posey’s opinion was based on the presence of macrophages, which are not mentioned in the report.
Dr. Trenkle explained that the brain has its own macrophages, called microglial cells that are always present in the brain tissue. He noted that Dr. Posey’s report mentioned only blood monocytes, meaning monocytes circulating in the blood stream and not present in tissue.
In addition, Dr. Trenkle testified the human body does not produce macrophages in response to an injury according to a fixed time schedule. Dr. Posey’s report, which found macrophage in tissue samples from Yessenia, mistakenly assumed macrophages never appear until 48 hours from injury. According to Dr. Trenkle, some reports have found macrophages appearing as early as six hours and as late as 72 hours from injury. Dr. Trenkle testified no study had ever been performed of the production of macrophages in three- to four-year-old children who have sustained brain injuries and contusions at an exact point in time.
Dr. Trenkle stated the bruising along Yessenia’s upper thigh extended into the fatty tissue, where there had been significant bleeding. Significant force was required to inflict such an injury. A belt or a cord could cause such deep bruising.
Osuna’s appeal
I.
Pursuant to sections 1181(6) and 1260, We Modify the Verdict and Judgment Against Osuna to Reflect a Conviction for Involuntary Manslaughter and Reverse the Judgment Against Her for Child Homicide.
A. Summary
The jury convicted Osuna, along with Ponce, of second degree murder and child homicide. The prosecution presented its case at trial on the theory Osuna was guilty of those crimes because she aided and abetted Ponce in commission of the crime of felony child abuse, the natural and probable consequence of which was the murder of Yessenia. The prosecution presented its case against Ponce at trial on the theory he was the perpetrator. However, the trial court instructed the jury, pursuant to People v. Culuko (2000) 78 Cal.App.4th 307, 329-330 (Culuko), that it could convict both Osuna and Ponce of murder and child homicide without deciding who was the perpetrator.
In closing argument, the prosecutor argued: “There are two paths to guilt for Melissa Osuna, and they are these: That one, she aided and abetted felony child abuse, leading to her child’s death; or two, that she failed to protect her child by recklessly permitting felony child abuse to occur, leading to her child’s death, because the law imposes upon parents a duty to protect their children.” The prosecutor argued the only path to guilt for Ponce was as the perpetrator because “he, himself, inflicted the fatal injuries on Monday, March 10, 2003.”
We have carefully and thoroughly reviewed the evidence and conclude it was insufficient to support Osuna’s conviction for second degree murder and child homicide either as a perpetrator or as an aider and abettor. As we shall explain, the evidence was sufficient to hold her liable for involuntary manslaughter as a lesser included offense of murder. The evidence was insufficient to hold Osuna liable for child homicide or its lesser included offenses of simple assault or assault by means of force likely to produce great bodily injury.
Accordingly, pursuant to our authority under Penal Code sections 1181(6) and 1260, we shall modify the verdict and judgment as to Osuna to reflect her conviction on count 1 for the lesser included offense of involuntary manslaughter and reverse her conviction on count 2 for child homicide.
After oral argument, we requested supplemental briefing from the parties on several issues relating to whether we can and should modify the judgment against Osuna pursuant to section 1181(6) and 1260 to lesser included offenses. Osuna and Ponce each filed a supplemental brief, the Attorney General filed a supplemental brief in response, Osuna filed a supplemental reply brief, and Ponce filed a supplemental letter reply brief.
B.
The Appellate Court’s Authority Under Sections 1181(6) and 1260 to Modify the Judgment
Pursuant to Penal Code section 1181(6), an appellate court may modify the verdict or judgment to a lesser included offense without ordering a new trial “if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein.” An appellate court thus may reduce a conviction to a lesser included offense if the evidence supports the lesser included offense but not offense for which the defendant was convicted. (People v. Howard (2002) 100 Cal.App.4th 94, 99.) “The purpose for allowing an appellate court to modify the judgment to a lesser included offense is to ‘obviate the necessity of a new trial when the insufficiency of the evidence only goes to the degree of the crime.’ [Citation.]” (People v. Matian (1995) 35 Cal.App.4th 480, 487.)
In People v. Bechler (1998) 61 Cal.App.4th 373, 378-379, the Court of Appeal concluded the evidence was insufficient to support the defendant’s conviction for assault with a firearm on a firefighter. Pursuant to section 1181(6), the Court of Appeal modified the judgment to reflect a conviction for the lesser and necessarily included offense of assault with a firearm. (Id. at p. 378-379; see also People v. Martinez (1999) 20 Cal.4th 225, 241 [“Although we must reverse the kidnapping count, section 1181[] (6), authorizes us to reduce the conviction to the lesser included offense of attempted kidnapping of a person under the age of 14”].)
Section 1260 similarly grants an appellate court the authority to “reduce the degree of the offense or attempted offense or the punishment imposed.” Thus, “[u]nder section 1260, a reviewing court is not restricted to the remedies of affirming or reversing a judgment of conviction.” (People. v. Muszynski (2002) 100 Cal.App.4th 672, 683; see also People v. Rivera (2003) 114 Cal.App.4th 872, 879 [“Appellate courts are authorized to ‘reduce the degree of the offense’”].) “‘Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial. [Citations.]’ [Citation.]” (People v. Edwards (1985) 39 Cal.3d 107, 118.)
C.
The Evidence Was Insufficient to Support Osuna’s Conviction For Second Degree Murder and Child Homicide Either as a Perpetrator or as an Aider and Abettor.
Through trial, as presented by the prosecution, and the briefing on appeal, the parties have argued only whether Osuna could be liable as an aider and abettor. Her possible liability as a perpetrator was not mentioned until Ponce raised the issue in his supplemental brief. He argued: “Osuna is operating from the faulty premise that the jury perceived her as an aider an abettor and not [Ponce], and that it was [Ponce] who inflicted all abuse on Yessenia, which apparently some members of this Court are contemplating, if not adopting. However, neither Osuna nor this Court can speculate in such fashion.” The Attorney General’s supplemental brief also urges us to “not indulge in the fact finding required to determine who was the perpetrator and who was the aider and abettor....” Because “[t]he jury was instructed it need not make those determinations, ” the Attorney General argues, “this court should refrain from doing so.” (Fn. omitted.)
We agree with Ponce that, in light of the Culuko instruction given to the jury, we cannot presume the jury convicted Osuna as an aider and abettor rather a perpetrator. Notwithstanding the prosecutor’s closing argument and the trial judge’s conclusion at sentencing that Osuna did not inflict the fatal blows, the jury was told it did not have to decide who was the perpetrator and returned a verdict of guilty without expressly making that determination.
Ponce argues that because of the Culuko instruction, the jury did not have to decide who was the perpetrator and “it doesn’t matter what theory the People used to prosecute this case or whether the factual issue was resolved for or against [Ponce] or Osuna, because in truth neither Osuna, nor this Court, or anyone for that matter except each juror, will ever know.”
For that reason, we must address the issue whether substantial evidence supported Osuna’s conviction of second degree murder under the theory that Osuna was the perpetrator-that she inflicted the blunt force trauma that killed Yessenia. As both Osuna and the Attorney General have argued only whether Osuna could be liable under an aider and abettor theory, the argument that the evidence supports her liability as a perpetrator comes from Ponce’s supplemental brief.
1. Evidence of Osuna’s Liability as a Perpetrator
Ponce posits that Osuna inflicted the blunt force trauma that caused Yessenia’s death during the evening of Sunday, March 9, 2003. He argues the evidence supporting a finding that Osuna was the perpetrator was the following:
1. Ponce testified that on the evening of March 9, Osuna became angry with Yessenia and pulled her upstairs by the arm. He soon heard the sound of spanking, a belt cracking, and Yessenia crying. Ponce denied ever abusing Yessenia.
2. Ponce’s expert, Dr. Posey, applied four types of stains or preparations to tissue samples taken from Yessenia and observed the presence of “macrophages, ” which appear during the healing process to remove iron and debris following an injury. Based the presence of macrophages, Dr. Posey opined that Yessenia’s brain injuries occurred between 48 and 72 hours before she was pronounced brain dead and could not have occurred around the time of the 911 call on March 10. Dr. Posey testified a person could have a lucid interval after suffering a head trauma, and, therefore, if Yessenia had suffered the head injuries on the night of March 9, it would have been possible for her to walk, talk, and act the next morning. The injuries to Yessenia’s ear and bruises to her legs and arms were, in Dr. Posey’s opinion, 72 hours to five days old. Dr. Posey testified the drop in Yessenia’s hemoglobin, a factor in Dr. Trenkle’s opinion the head injuries occurred on March 10, was due to the dilution of blood with fluids given intravenously to Yessenia at the hospital.
3. Sands testified that when she spoke with Yessenia by telephone at about 9:30 or 10:00 p.m. on March 9, 2003 she seemed normal. According to Ponce, “[t]his left a window of between a little after 9:30 or 10:00 p.m. up until Osuna left for work the next morning at 10:00 a.m. for Yessenia to have sustained fatal injuries.”
4. Osuna told a variety of lies to her coworkers about how Yessenia had been injured the week before her death. Osuna kept Yessenia home from school on March 5, 6, 7, and 10, made excuses why Yessenia could not visit Garcia on March 8 and 9, and failed to seek medical treatment for Yessenia. Those actions, Ponce argues, are “equally consistent with an inference of consciousness of guilt as opposed to an inference of ‘protecting [Ponce], ’ as Osuna has asserted.”
5. There is no evidence in the record to support the assertion that Ponce, rather than Osuna, was the one who physical abused Yessenia before her death. Ponce argues, “it is unknown who was harming Yessenia, and it could just [as] easily have been Osuna.”
Is this evidence sufficient to support the verdict against Osuna under the theory she was the perpetrator?
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] ‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
A rational trier of fact could not find Osuna guilty as a perpetrator under the evidence presented at trial. Ponce’s testimony that on the evening of March 9 he heard the sound of Osuna spanking Yessenia and of a belt cracking did not explain the blunt force trauma to the head that caused Yessenia’s death. In addition, had the jury believed Ponce’s testimony, it would have acquitted him. Ponce’s testimony, indeed his entire defense, was inconsistent with his liability either as a perpetrator or as an aider and abettor.
Osuna’s conduct the week before Yessenia died, her lies to her coworkers, her excuses for not letting Yessenia visit Garcia, and her failure to seek medical treatment for Yessenia could be interpreted as attempts to protect Ponce or as evidence of her own consciousness of guilt. That evidence was susceptible of either inference.
Dr. Posey’s testimony was not of solid value. Although we cannot substitute our evaluation of a witness’s credibility for that of the jury, we equally cannot allow a conviction to stand on testimony of such questionable value as that of Dr. Posey. His three-page, bare-bones report did not indicate which slides tested negative and which slides tested positive. Dr. Posey did not look at the slides himself; instead, his associate Dr. Atkinson conducted the tests and, apparently, prepared the report. Dr. Atkinson did not testify.
Portions of the report quoted in the record at trial indicated the tests for all stains and preparations were negative and “‘[t]he CD 68 stain showed only baseline peripheral blood Monocyte reactivity and neutrophil cross-reactivity.’” Dr. Posey, in contrast, testified the CD68 stain tested positive for macrophages. As Dr. Trenkle testified, Dr. Posey’s report mentioned only the presence of “baseline peripheral blood monocytes, ” did not mention monocytes above baseline level that would be an indication of a reaction to an injury, and did not mention the presence of macrophages. Dr. Trenkle explained that all bodies produce blood monocytes at a baseline level, so one would expect to see monocytes in a blood stain, even of uninjured tissue. When a monocyte is activated and enters tissue in response to injury it becomes a macrophage. Monocytes in excess of this baseline amount might indicate a response to an injury. The report referred only to blood monocytes, meaning monocytes in the blood vessels, and therefore, according to Dr. Trenkle, would not include the brain’s own macrophages that are always present in brain tissue.
Dr. Posey’s conclusion that Yessenia had been injured 48 hours to five days before she was pronounced brain dead was based on his testimony that the CD68 preparation of tissue samples showed the presence of macrophages. But Dr. Posey’s report did not mention macrophages, referred only to baseline peripheral blood monocytes, concluded all stains are preparations were negative, and did not mention macrophages existing in brain tissue.
Further, Dr. Trenkle testified that Dr. Posey’s theory was “quite novel” and he knew of only two forensic pathologists and neurologists-Dr. Posey and the cosigner of his report, Dr. Atkinson-who believe that time of death could be determined based on the presence of monocytes and macrophages.
Dr. Trenkle also testified that the human body does not produce monocytes in response to an injury according to a fixed time schedule. Dr. Posey’s report, which found macrophage in tissue samples from Yessenia, mistakenly assumed macrophages never appear until 48 hours from injury. According to Dr. Trenkle, some reports have found macrophages appearing as early as six hours and as late as 72 hours from injury. Dr. Trenkle testified no study had ever been performed of the production of macrophages in three- to four-year-old children who have sustained brain injuries and contusions at an exact point in time.
Expert testimony that is at odds with the expert’s own report, that is based on tests the expert did not conduct and which do not support the expert’s conclusion, and that is based on a novel theory, is not of reasonably solid value in itself to support a murder conviction. Outside of Dr. Posey’s testimony, there was no evidence directly linking Osuna as a perpetrator to Yessenia’s death. As mentioned, Ponce’s testimony does not account for blunt force trauma to the head and was disbelieved by the jury, and the remaining evidence Ponce cites is subject to competing inferences. In sum total, the evidence was insufficient to support a murder conviction against Osuna under the theory she was the perpetrator.
In his opening and reply briefs, Ponce did not argue the evidence was insufficient to support his conviction for second degree murder and child homicide. But in his supplemental briefs, Ponce argues that if we reduce Osuna’s convictions to lesser included offenses, we must do the same for him because the evidence that he was the perpetrator is no stronger. He contends the only evidence favoring Osuna was that she was not at home when the 911 call was made on March 10 and her medical experts opined the blunt force trauma was inflicted at about the time of that 911 call.
There is, however, a qualitative and quantitative difference between the evidence of Osuna’s guilt as a perpetrator and Ponce’s guilt as a perpetrator. Ponce did have sole custody of Yessenia on the morning of March 10 when the 911 call was made. The significance of that fact cannot be ignored or brushed away with unsatisfactory expert testimony. The treating physician, Dr. Sheridan-Matley, and the autopsy physician, Dr. Trenkle, both testified the blunt force trauma inflicted on Yessenia was so severe that is would have been immediately symptomatic and must have occurred on the morning of March 10. Dr. Sheridan-Matley, unlike Dr. Posey, treated Yessenia at the hospital and extensively examined her body after she died. Dr. Trenkle, unlike Dr. Posey, conducted a thorough autopsy of Yessenia. Neither Dr. Sheridan-Matley nor Dr. Trenkle testified inconsistently with his or her own report. Their testimony was rock solid.
Ponce told police officers that Yessenia had fallen off of a boom box after taking a bath. But the carpet at the foot of the bed, the spot where, according to Ponce, Yessenia had fallen, was not wet. No wet towels were found in the apartment. The bathroom floor was wet and there was a wet spot on the carpet in a hallway. A hair was found on the wall two feet and eight inches above the wet spot in the hallway. This evidence supported an inference that after removing Yessenia from the bathtub, Ponce banged her head against the wall in the hallway.
Ponce told the police officers on March 10 that Yessenia, despite her injuries from the week before her death, was acting normally and he “didn’t see like nothing wrong with her, like talking wrong, talking different or acting different.” Dr. Posey, who testified at trial before Ponce, testified that “we know that [Yessenia] woke up in the morning later than normal and didn’t seem to be functioning as usual, so that’s kind of an indicator that... something had happened.” Dr. Posey testified it would be unlikely that a child who suffered the injuries suffered by Yessenia one evening would behave normally the next morning. When Ponce testified at trial, after Dr. Posey testified, he changed his story: Ponce testified that on the morning of March 10, Yessenia appeared groggy and disoriented and was not completely coherent.
Yessenia’s pediatrician testified she had seen Yessenia seven times between March 11, 2002 and February 6, 2003 and had noted no signs of abuse. Although this testimony does not negate the possibility that Osuna abused Yessenia after February 6, 2003, it marks the onset of the abuse to that date, by which time Osuna and Ponce were living together with Yessenia. In other words, there was no evidence Yessenia was abused before she began living with Ponce.
Thus, the evidence that Ponce was the perpetrator was sufficiently strong to support his conviction for second degree murder. He is not entitled to the same modification under sections 1181(6) and 1260 as is Osuna.
2. Osuna’s Liability as an Aider and Abettor
The evidence also was insufficient to support Osuna’s conviction for second degree murder under the theory she aided and abetted Ponce in committing the crime of felony child abuse, the natural and probable consequence of which was murder. As we shall explain, the evidence was insufficient to show that she knew of Ponce’s criminal purpose and that she left Yessenia with Ponce on the morning of March 10 with the intent to encourage or facilitate him in physically abusing her.
Under the natural and probable consequences doctrine, a person who knowingly aids and abets criminal conduct is not only guilty of the intended offense (called the target crime), but also of any other crime the perpetrator actually commits (called the nontarget offense) that is the natural and probable consequence of the target crime. (People v. Medina (2009) 46 Cal.4th 913, 920.)
In this case, the nontarget offenses were murder and child homicide, and the (uncharged) target offense was felony child abuse under section 273a, subdivision (a) (section 273a(a)). The trial court instructed the jury on the elements of felony child abuse as an uncharged crime. The court also instructed on liability under the natural and probable consequences doctrine: “In order to find a defendant guilty of the crime of murder and/or the crime of assault on a child under 8 resulting in death, as a natural and probable consequence of perpetrating or aiding and abetting the crime of felony child abuse, you must be satisfied beyond a reasonable doubt that: [¶] 1) The crime of felony child abuse was committed; [¶] 2) The defendant perpetrated or aided and abetted the crime of felony child abuse; [¶] 3) A principal in the crime of felony child abuse committed the crime of murder and/or the crime of assault on a child under 8 resulting in death; and [¶] 4) The crime of murder and/or the crime of assault on a child under 8 resulting in death was a natural and probable consequence of the commission of the crime of felony child abuse.”
“An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” (People v. Avila (2006) 38 Cal.4th 491, 564.) A person aids and abets the commission of a crime when that person (1) “‘with knowledge of the criminal purpose of the perpetrator, ’” and (2) with the “‘intent or purpose of either committing, or of encouraging or facilitating commission of, the offense, ’” (3) “‘by act or advice aids, promotes, encourages, or instigates the commission of the crime.’” (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Cooper (1991) 53 Cal.3d 1158, 1164.) “‘Liability as an aider and abettor requires knowledge that the perpetrator intends to commit a criminal act together with the intent to encourage or facilitate such act....” (People v. Richardson (2008) 43 Cal.4th 959, 1021.)
Felony child abuse under section 273a(a) falls in to four categories of conduct. (People v. Valdez (2002) 27 Cal.4th 778, 783 (Valdez).) Section 273a(a) provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in such situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.” (Internal numbering added.) The crime of felony child abuse can be committed by active conduct, that is, by direct infliction of injury, or by passive conduct, that is, indirect infliction of injury such as neglect or child endangerment. (People v. Sargent (1999) 19 Cal.4th 1206, 1215-1216.)
Osuna could be liable for murder under an aiding and abetting theory only if she knew of Ponce’s criminal purpose and left Yessenia with Ponce on the morning of March 10, 2003 with the intent of encouraging or facilitating his commission of felony child abuse. The evidence did not support such an inference. Although Osuna knew Ponce had inflicted severe harm on Yessenia, the evidence did not support the conclusion that Osuna left Yessenia with Ponce on the morning of March 10 knowing he intended to abuse Yessenia and intending to encourage or facilitate his abuse. As we explain in the next section, Osuna acted with criminal negligence by leaving Yessenia with Ponce, not with the intent that he abuse her.
D.
The Evidence Was Sufficient to Establish Liability Against Osuna for Involuntary Manslaughter.
1. Liability Under Count 1
Although the evidence was insufficient to support the conviction against Osuna for murder as an aider and abettor, the evidence was sufficient to support liability as a perpetrator for involuntary manslaughter, a lesser included offense of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422.)
Involuntary manslaughter is the unlawful killing of a human being, without malice aforethought. (§ 192, subd. (b).) Involuntary manslaughter may be committed in any of three forms. “Involuntary manslaughter based on the predicate act of a misdemeanor or a lawful act is statutorily defined in Penal Code section 192, subdivision (b), which states the offense is a (1) killing ‘in the commission of an unlawful act, not amounting to a felony, ’ or (2) a killing ‘in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’” (People v. Butler (2010) 187 Cal.App.4th 998, 1006-1007.) Third, involuntary manslaughter can also be committed when a noninherently dangerous felony is committed without due caution and circumspection. (People v. Burroughs (1984) 35 Cal.3d 824, 835; People v. Huynh (2002) 99 Cal.App.4th 662, 679.) Criminal negligence is the governing mens rea for all three forms of involuntary manslaughter. (People v. Butler, supra, 187 Cal.App.4th at p. 1007.)
Osuna committed the third form of involuntary manslaughter. Cases have uniformly held that felony child abuse is not an inherently dangerous felony. (Culuko, supra, 78 Cal.App.4th at pp. 321-322; People v. Lee (1991) 234 Cal.App.3d 1214, 1220-1229 (Lee); People v. Caffero (1989) 207 Cal.App.3d 678, 682-684 (Caffero).) The felony child endangerment prong of section 273a-“‘willfully causes or permits that child to be placed in a situation where his or her person or health is endangered’”-is subject to a criminal negligence standard. (Valdez, supra, 27 Cal.4th at pp. 787-788.) We agree that such passive felony child abuse is a noninherently dangerous felony.
The term inherently dangerous felony refers to “such felonies as are in themselves ‘inherently dangerous to human life....’” (People v. Phillips (1966) 64 Cal.2d 574, 582, disapproved on another ground in People v. Flood (1998) 18 Cal.4th 470, 484-490.) In Caffero, the court concluded that injuries constituting great bodily harm were not necessarily considered to be inherently life-threatening. (Caffero, supra, 207 Cal.App.3d at p. 683.) Felony child abuse under section 273a implicates a wide range of circumstances including both those likely to produce great bodily harm and those likely to produce death. Felony child abuse is not an inherently dangerous felony because section 273a applies to conduct likely to produce death or likely to produce great bodily harm, and “even certainty of great bodily harm would not support an implication of inherent risk of death. [Citation.]” (Caffero, supra, 207 Cal.App.3d at pp. 683-684.) The court in Lee agreed with this reasoning. (Lee, supra, 234 Cal.App.3d at p. 1226.)
Passive felony child abuse arises when the defendant “willfully causes or permits that child to be placed in a situation where his or her person or health is endangered.” (§ 273a(a).) The appropriate mens rea for felony child endangerment involving indirect infliction of harm under section 273a(a) is criminal negligence. (Valdez, supra, 27 Cal.4th at pp. 781, 787-789.)
In contrast, the mens rea for active child abuse involving direct infliction of harm under section 273a(a) is “the intent to perform the underlying injurious act on a child.” (Valdez, supra, 27 Cal.4th at p. 786.) The Supreme Court has discerned “no obstacle to requiring different mental states for distinct types of conduct prohibited by a single penal statute.” (Id. at p. 789.)
“‘[C]riminal negligence’” exists when the defendant engages in conduct that is “‘aggravated, culpable, gross, or reckless, ’” i.e., conduct that is “‘such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.’” (People v. Penny (1955) 44 Cal.2d 861, 879.)
By leaving Yessenia with Ponce on the morning of March 10, Osuna placed Yessenia in a situation where her life was endangered. Osuna knew Ponce had severely injured Yessenia in the past and, if left alone with her, might do so again, or might kill her. The jury could find, based on the evidence, that Ponce severely abused Yessenia the week before she died. Osuna did not take Yessenia to school, did not let Gloria or Garcia see her, and lied to her coworkers about the cause of Yessenia’s injuries. The autopsy revealed severe bruising and injuries all over Yessenia’s body in various stages of healing. One severe episode of beating was enough to put Osuna on notice. Nonetheless, disregarding Yessenia’s life or indifferent to the consequences of her actions, Osuna placed Yessenia directly in danger. Osuna’s criminal negligence in leaving Yessenia with Ponce led directly to Ponce killing her.
Osuna, acting with criminal negligence, committed passive felony child abuse without due caution and circumspection, resulting in Yessenia being killed. Osuna therefore is guilty under count 1 of involuntary manslaughter.
Because we conclude Osuna is guilty of involuntary manslaughter as a perpetrator, and is not liable under and aiding and abetting theory for second degree murder, we do not address Osuna’s argument the evidence was insufficient to support liability against her for Yessenia’s death under the natural and probable consequences doctrine.
Osuna argued the evidence was insufficient to support liability against her under the natural and probable consequences doctrine for two reasons: (1) the jury was never instructed on which act of felony child abuse constituted the target crime from which liability flowed; and (2) murder and child homicide were not the natural and foreseeable consequences of felony child abuse in this case because only one incident of child abuse occurred before Yessenia’s death.
2. Liability Under Count 2
Assault by means of force likely to produce great bodily injury under section 245 subdivision (a)(1) is a lesser included offense of child homicide under section 273ab. (People v. Basuta (2001) 94 Cal.App.4th 370, 392.) Assault, including assault by means of force likely to produce great bodily injury is a general intent crime. (People v. Hood (1969) 1 Cal.3d 444, 457-458; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1193-1194; People v. Covino (1980) 100 Cal.App.3d 660, 669; People v. Martinez (1973) 31 Cal.App.3d 355, 359.) Assault thus requires “an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790.)
As we have concluded, Osuna acted with criminal negligence by leaving Yessenia with Ponce on March 10, and, therefore, she did not have the requisite mental state of general intent to be convicted of assault. Because the evidence did not support Osuna’s conviction for child homicide under section 273ab, or its lesser included offenses of assault and assault by means of force likely to cause great bodily injury, we reverse the conviction on count 2.
II.
Ineffective Assistance of Counsel
As ground for complete reversal of the judgment, Osuna contends her trial counsel was ineffective when she failed to object to a portion of a videotape of Ponce’s police interview in which Ponce stated that Osuna was under investigation by child protective services for child abuse at the time Yessenia died. We conclude counsel’s representation, if deficient, did not subject Osuna to prejudice.
At trial, the prosecution played for the jury a videotape of Ponce’s police interview conducted on March 10, the day Yessenia was taken to the hospital. During the interview, Ponce told the police that Osuna had been questioned by a child protective services worker about bruises on Yessenia’s buttocks, that Osuna was “going through that right now with Social Services, ” that Osuna told the Social Services worker that she spanked Yessenia occasionally, that Osuna had begun disciplining Yessenia with a belt in October or November, and that Osuna had a case with Child Protective Services for child abuse. Ponce told the police he did not want to question Yessenia’s injuries while Osuna was involved in a child abuse case. Osuna’s counsel posed no objections.
No evidence was presented at trial showing Osuna was the subject of a child protective services investigation. During pretrial proceedings, Ponce’s counsel obtained an order to have Yessenia’s juvenile court records transferred to the trial court and reviewed in camera. The trial court reviewed the juvenile court records and advised the parties it found nothing discoverable. As we will explain in part I of the section entitled “Ponce’s Appeal, ” we have reviewed Yessenia’s juvenile court records and conclude the trial court did not err in finding those records contained nothing that was discoverable.
To prevail on a claim of ineffective assistance of counsel, the defendant must prove (1) his or her attorney’s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his or her attorney’s deficient representation subjected him or her to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice necessary to establish ineffective assistance of counsel means a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694; People v. Salcido (2008) 44 Cal.4th 93, 170.) A reasonable probability means a “probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.)
We turn directly to the second prong. “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697; accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)
To be sure, as Osuna argues, Ponce’s counsel mentioned the interview and child protective services involvement at several points in closing argument. But both Osuna’s counsel and the prosecutor emphasized to the jury in closing argument there was no evidence of an investigation by child protective services. Osuna’s counsel stated in closing argument: “If there was any CPS [Child Protective Services] previous child abuse, you would have heard it. You better believe. We all have the same subpoena power. You would have heard it. That’s another one of his lies, because where is the evidence? It doesn’t exist.” In rebuttal, the prosecutor agreed: “I will agree with [Osuna’s counsel] about... the CPS evidence.... We all have the ability to compel Child Protective Services to divulge their records, and... I agree with [Osuna’s counsel] that if, in fact, there had been an active CPS investigation going on against... Osuna, you would have heard evidence of it. I certainly would have wanted to present it....”
Perhaps more importantly, the jury simply did not believe Ponce. It rejected his testimony and his defense and convicted him of second degree murder. Since the jury did not believe his testimony at trial, it likely did not believe his statements made in a police interview.
But for counsel’s failure to object to the videotape of Ponce’s police interview, there was no reasonable probability the result of trial would have been different. We therefore reject Osuna’s claim of ineffective assistance of counsel.
Ponce’s Appeal
In his appeal, Ponce makes four contentions: (1) we should make an independent review of juvenile court records to determine whether the trial court erred in denying his motion to discover records of an investigation of Osuna conducted by child protective services; (2) the trial court committed reversible error by permitting Osuna to present evidence of domestic violence and expert testimony on battered women’s syndrome; (3) the trial court committed reversible error by failing sua sponte to instruct the jury on assault by means of force likely to cause great bodily injury as a lesser included offense of child homicide; and (4) the trial court erred by denying his motion for a new trial based on juror misconduct. Under Rule 8.200(a)(5) of the California Rules of Court, Osuna joins in those arguments and issues raised by Ponce that accrue to her benefit.
I.
In Camera Review of Yessenia’s Juvenile Court Records
Ponce has requested that we conduct an independent, in camera review of Yessenia’s juvenile court records to determine whether the trial court erred in finding it contained nothing that is discoverable. Osuna joins in his request.
In December 2004, in response to Ponce’s petition for disclosure of juvenile court records, the presiding judge of the Riverside County Juvenile Court authorized the trial court to review the file of an investigation of Yessenia conducted by Riverside County Child Protective Services. At a pretrial hearing on August 13, 2004, the trial court conducted an in camera review of the file and determined “[t]here is nothing discoverable in there.”
Ponce filed a motion in this court seeking an order transferring Yessenia’s juvenile court records to us and requesting we take judicial notice of the those records. In response to Ponce’s motion, we issued an order (1) augmenting the appellate record with Yessenia’s juvenile court records, (2) directing the Riverside County Juvenile Court to transmit the Yessenia’s juvenile court records to Judge Dennis A. McConaghy, who determined the records contained nothing discoverable, (3) directing Judge McConaghy to review the juvenile court records and identify in a minute order the records he previously reviewed in camera, (4) directing the Juvenile Court to transmit Yessenia’s juvenile court record to us when Judge McConaghy completed his review, and (5) directing the Riverside Superior Court to prepare a supplemental clerk’s transcript including Judge McConaghy’s minute order and to transmit the supplemental clerk’s transcript under seal to us. In our order, we stated we will consider Ponce’s motion for the court to conduct an in camera review of the Juvenile Court records after the case is fully briefed.
A supplemental clerk’s transcript under seal has been filed with this court. The supplemental clerk’s transcript contains a minute order issued by Judge McConaghy reflecting he has fully complied with our order.
We grant Ponce’s motion to conduct an in camera review of the juvenile court records submitted to us. We have received two file folders pertaining to Yessenia. One folder is for Case No. RIJ-JM07236 and the other is for Case No. RIJ-JM07572. Neither file contains discoverable matter. The file in Case No. RIJ-JM07236 contains only a petition for disclosure of juvenile records filed in June 2004 by Ponce’s trial counsel. The file in Case No. RIJ-JM07572 contains only a petition for disclosure of juvenile records filed in February 2007 by Ponce’s trial counsel and the exhibits attached to the petition. Accordingly, we conclude the trial court did not err in finding Yessenia’s juvenile court records contained nothing that was discoverable.
II.
Admission of Evidence of Battered Women’s Syndrome
Ponce argues the trial court erred by permitting Osuna to present evidence, including expert testimony, of battered women’s syndrome (BWS). He contends (1) Osuna did not lay an adequate foundation to show she suffers BWS, (2) if relevant, BWS evidence was unduly prejudicial and inadmissible under Evidence Code section 352, and (3) if inadmissible, BWS evidence was prejudicial. We conclude any error in admitting BWS evidence was harmless.
A. Background Law and Evidence
1. Law Regarding Evidence of BWS
BWS has been defined to mean “‘“a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives.” [Citations.]’ [Citation.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1083-1084.) “[E]xpert BWS testimony is relevant to explain that it is common for people who have been physically and mentally abused to act in ways that may be difficult for a layperson to understand. [Citation.]” (People v. Riggs (2008) 44 Cal.4th 248, 293.)
Evidence Code section 1107, subdivision (a) permits expert testimony on BWS: “In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.”
Expert testimony on BWS may also be relevant under the more general provision of Evidence Code section 801, subdivision (a) if the testimony is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of facts.” (See People v. Brown (2004) 33 Cal.4th 892, 895 [expert testimony on behavior of domestic violence victims may be relevant under Evidence Code section 801 when there has been only one incident of domestic violence].)
2. Expert Testimony on BWS in This Case
Dr. Ward testified for Osuna on the subject of BWS. Dr. Ward testified that BWS helps to explain why women become involved in or stay in abusive relationships and that BWS is part of a continually repeating cycle of violence. The first stage of the cycle is the “tension building phase” in which there are less serious incidents of physical abuse and a large amount of verbal and psychological abuse. In this stage, the woman will attempt to placate the abuser and try to prevent others from learning about the abuse. The second stage is the phase in which an “acute battering incident” occurs. In this phase, the abuser might “explode[] into violence” for a period of anywhere from two to 24 hours, while the woman feels helpless and is concerned with surviving. Finally comes the “loving respite phase” in which the abuser apologizes, claims he will never abuse the woman again, and showers her with love and gifts. By doing so, the abuser induces the woman to believe the abuse will never happen again.
As the cycle repeats itself, the woman feels helpless and powerless to leave the relationship; her energy is focused on staying alive and she fears, with some reason, she is at greater risk of being killed by leaving the relationship than by staying in it. The abuser often will try to isolate the woman by cutting her off from family and friends.
Dr. Ward testified that women suffering from BWS often stay in abusive relationships because they might feel they have no place to go, are financially dependent on the abuser, or have children from the relationship. She also explained that women in abusive relationships tend to hide it or lie about it and often are uncooperative with police for fear of reprisal from the abuser. Dr. Ward testified a woman suffering from BWS has a “blind spot” that prevents her from seeing the danger in the abusive relationship both for herself and for her children. According to Dr. Ward, the signs of BWS include unexplained bruises, changes in the woman’s personality, and public displays of anger by the abuser.
Dr. Ward did not interview Osuna, did not offer an opinion on whether she suffered from BWS, and did not testify specifically about this case or the relationship between Osuna and Ponce.
When Dr. Ward concluded testifying, the court instructed the jury to consider her testimony only for the limited purpose of determining “whether [Osuna’s] reactions are not inconsistent with her having been physically abused, or you can consider it for the purpose of [showing] the beliefs, perceptions, or the behavior of the victims of domestic violence.” During jury instruction at the end of trial, the trial court again instructed the jury that evidence of BWS was to be considered for the limited purpose “that [Osuna’s] reactions as demonstrated by the evidence are not consistent with her having been physically abused or the beliefs, perception, or behavior of victims of domestic violence.”
B. Forfeiture
The Attorney General argues Ponce forfeited his challenge to BWS testimony because he has failed to affirmatively demonstrate he objected to the BWS evidence in the trial court on the ground of lack of foundation. “In the absence of a timely and specific objection on the ground sought to be urged on appeal, the trial court’s rulings on admissibility of evidence will not be reviewed.” (People v. Clark (1992) 3 Cal.4th 41, 125-126.)
Before trial, Osuna filed a motion in limine requesting the court permit her to present evidence of domestic violence and expert testimony of BWS. The hearing on the motion in limine was conducted in chambers and was not reported. In August 2009, Ponce filed a motion requesting that we order the trial court to settle the record and that the appellate record be augmented with the settled statement of the in camera hearing. We granted the motion. It appears a settled statement was filed in this court on April 9, 2009 as an augmented record. Ponce, contending that settled statement was incomplete, filed a motion requesting further augmentation of the record or direction as to how to proceed “in light of an incomplete settled statement.” We construed the request as a motion to strike the settled statement filed on April 9, granted the motion, and ordered the Riverside Superior Court to prepare and serve a settled statement in conformance with Rule 8.137 of the California Rules of Court following a hearing by the judge who presided over the trial.
Subsequently, we received a reporter’s transcript of a hearing conducted on June 19, 2009 before the trial judge pursuant to our order to prepare a settled statement. At this hearing, Ponce’s trial counsel stated: “I remember receiving a written motion by [Osuna’s trial counsel] on behalf of Ms. Osuna seeking to admit evidence of [BWS]. And I don’t remember whether it was in chambers, or in open court, perhaps not on the record, but I do, specifically, remember an objection to the introduction of [BWS] evidence against Ray Ponce on the grounds of-two grounds, essentially, relevance and [Evidence Code section] 352, to the extent that that evidence, given its minimal probative value, would prejudice him unnecessarily and would be too collateral to what the case was really about.” The prosecutor did not disagree. The trial judge did not have an independent recollection of the conference on Osuna’s motion in limine and accepted counsel’s representation stating, “[Ponce’s trial counsel] presented a vigorous defense on behalf of his client, and I believe there was an objection and the Court did allow the evidence....”
The Attorney General argues this settled statement is an inadequate record establishing Ponce objected to evidence of domestic violence and BWS. We disagree. The settled statement established Ponce objected to that evidence on two grounds: (1) relevance and (2) Evidence Code section 352. It is clear the trial court overruled the objection because the court allowed the evidence.
The settled statement also reveals, however, that Ponce’s trial counsel did not specifically object to the BWS evidence on the ground of lack of foundation. Ponce argues his relevance objection was sufficient to preserve his claim of lack of foundation for expert testimony because, without foundational evidence that Osuna was subject to domestic abuse from him, expert witness testimony on BWS was irrelevant. Lack of evidence of domestic violence goes to the foundation, not relevance, of expert BWS testimony. “There must be independent evidence of domestic violence-otherwise the expert testimony about how victims of domestic violence behave would lack foundation.” (People v. Brown, supra, 33 Cal.4th at p. 908.)
Ponce therefore did not preserve an objection to BWS evidence based on lack of foundation. Nonetheless, to forestall an ineffective assistance of counsel claim, we decline to invoke the forfeiture doctrine and address the merit of Ponce’s lack of foundation argument. (See People v. Butler (2003) 31 Cal.4th 1119, 1128; People v. Hardy (1992) 2 Cal.4th 86, 209.)
C. Foundation for BWS Testimony
If otherwise relevant and admissible, BWS evidence is admissible “provided... that there is an adequate foundation for a finding that the witness has been affected by BWS.” (Riggs, supra, 44 Cal.4th at p. 293.) We conclude an adequate foundation was laid in this case for admission of BWS testimony.
Osuna did not testify. The evidence she was a victim of domestic violence consisted of the following. Her coworker Walls saw bruises on Osuna’s upper arms and thought “there might be an abuse situation.” Coworker Tacke also saw bruises on Osuna’s arms that looked like “grab marks”-“[l]ike someone had grabbed her arm really hard.” Another coworker, Salgado, testified he saw bruises on Osuna but could not remember where the bruises were located. Another coworker, Patricia Coronado, noticed “dots” and bruises on Osuna’s arms that looked like “fingertip bruises” from being grabbed, and another coworker, Darlene Field, testified that on one occasion she saw bruises on Osuna’s upper arm.
Both Coronado and Field noticed that Osuna’s work personality changed about two months before Yessenia’s death. Originally cheerful and happy, Osuna became depressed and sad.
The parties stipulated that on March 10, 2003, six of Osuna’s neighbors were interviewed by police detectives. The parties stipulated five of the neighbors knew Ponce lived with Osuna but had not noticed any disturbances from their apartment. The parties stipulated that one neighbor told the detective that in January 2003, she heard a car pull into the parking lot then heard Ponce and Osuna arguing. He was “in the woman’s face” and was shouting, “‘Don’t worry about how I make my money.’” At one point, Ponce raised his hand as if to hit Osuna in the face, but stopped and said to her, “‘[l]et’s take it inside.’”
D. Any Error in Admitting Dr. Ward’s Testimony Was Harmless.
We do not address whether this evidence was sufficient to lay a foundation for the admission of Dr. Ward’s testimony or whether the trial court erred in overruling Ponce’s objection to it under Evidence Code section 352 because we conclude any error admitting Dr. Ward’s testimony was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
“[T]he erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice.” (People v. Richardson, supra, 43 Cal.4th at p. 1001, citing Evid. Code, §§ 353, subd. (b) and 354.) “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence, ’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.).
“In determining whether there was prejudice [under Watson], the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. [Citation.]” (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) “There is a reasonable probability of a more favorable result within the meaning of Watson when there exists ‘at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.’” (People v. Mower (2002) 28 Cal.4th 457, 484.)
Our review of the record leaves us without doubt the admission of BWS evidence had no effect whatsoever on the jury’s decision. Ponce argues the BWS was highly inflammatory and Osuna’s counsel used it to give an emotionally charged closing statement. True perhaps, but the jury would have none of it. By convicting Osuna of second degree murder, the jury rejected her BWS defense wholesale.
Nor did the jury consider the BWS evidence for the improper purpose of showing that Ponce had a propensity toward violence. During Tacke’s testimony, the trial court gave a limiting instruction telling the jury to consider evidence of domestic violence by Ponce only for purposes of Osuna’s defense based on BWS. The court specifically told the jury not to consider the evidence as showing Ponce “has some propensity for violence or something of that nature.” When Dr. Ward concluded testifying, the court instructed the jury to consider her testimony only for the limited purpose of determining “whether her reactions are not inconsistent with her having been physically abused, or you can consider it for the purpose of [showing] the beliefs, perceptions, or the behavior of victims of domestic violence.” During jury instruction at the conclusion of trial, the court gave yet another limiting instruction, again specifically instructing the jury not to consider the evidence of BWS to prove any act of abuse occurred. We presume the jury faithfully followed the court’s limiting instruction. (People v. Mendoza (2007) 42 Cal.4th 686, 699-700.)
In addition, during deliberations, the jury sent back three questions, none of which dealt with the BWS evidence. The evidence that Ponce fatally injured Yessenia was very strong. Both the physician who declared her brain dead and the physician who performed her autopsy testified she suffered the fatal brain injuries close to the time of the 911 call on March 10. Absent the BWS evidence, it is not reasonably likely the jury would have found that Osuna fatally injured Yessenia.
III.
Failure to Provide the Jury a Written Copy of the Oral Instruction on Assault By Means Of Force Likely To Cause Great Bodily Injury
Ponce argues the trial court erred by failing to instruct the jury, sua sponte, on assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)) as a lesser included offense of child homicide.
“The trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.” (People v. Cooper, supra, 53 Cal.3d at p. 827.) “Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117-118.)
Assault by means of force likely to cause great bodily injury is a lesser included offense of child homicide under section 273ab. (People v. Basuta, supra, 94 Cal.App.4th at p. 392.)
The trial court orally instructed the jury on the crime of assault by means of force likely to cause great bodily injury. After instructing the jury on the crime of assault on a child causing death, the court stated: “Now, there is a lesser crime to that charged in count 2. That is, as I said, assault by means of force likely to produce great bodily injury. It’s a violation of [section] 245, subdivision (a)(1), ... of the Penal Code.” The court explained that “bodily injury refers to significant or substantial bodily injury or damage.” The court then instructed on the elements of assault by means of force likely to cause great bodily injury and on the definition of assault.
There is no evidence the jury was ever given a written copy of the instruction on assault by means of force likely to cause great bodily injury. No such instruction appears in the clerk’s transcript. The Attorney General simply argues the jury was instructed and does not address this discrepancy at all.
In People v. Ochoa (2001) 26 Cal.4th 398, 447, disapproved on another ground in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14, the Supreme Court addressed a similar situation in which the trial court read CALJIC Nos. 2.02 and 2.03 to the jury but omitted them from the written set provided to the jury. Rejecting the defendant’s claim of error, the Supreme Court stated: “Although providing written instructions is ‘generally beneficial and to be encouraged, ’ defendant has no federal or state constitutional right to instructions in writing [citation], and the statutory right depends on an express request. (§ 1093, subd. (f).) Furthermore, defendant has not shown it is reasonably probable that the jury would have reached a result more favorable to defendant had it received a written copy of [the instructions]. [Citations.]” (People v. Ochoa, supra, 26 Cal.4th at p. 447.)
Ponce does not refer us to anyplace in the record where his counsel made an express request to provide the jury with the jury instructions in writing. Nor has Ponce shown it was reasonably probable the jury would have reached a verdict more favorable to him had it received the written instruction on assault by means of force likely to cause great bodily injury. Ponce argues he suffered prejudice from the court’s failure to instruct altogether on the lesser included offense. He does not argue prejudice from lack of a written instruction when an oral instruction was given.
We apply the standard of review of Watson, supra, 46 Cal.2d at page 836 to determine whether “it is reasonably probable that the jury would have reached a result more favorable to [Ponce] had it received a written copy [of the instruction on assault by means of force likely to cause great bodily injury].” (Ochoa, supra, 26 Cal.4th at p. 447.)
Section 273ab defines the offense of child homicide. The elements of the offense are: “‘(1) A person, having the care or custody of a child under the age of eight; (2) assaults this child; (3) by means of force that to a reasonable person would be likely to produce great bodily injury; (4) resulting in the child’s death.’” (People v. Wyatt (2010) 48 Cal.4th 776, 780 (Wyatt) quoting People v. Malfavon (2002) 102 Cal.App.4th 727, 735.) The elements of assault by means of force likely to cause great bodily injury under section 245, subdivision (a)(1) are: (1) a person was assaulted; and (2) the assault was committed by means of force likely to produce great bodily injury. (CALJIC No. 9.02.) The difference between assault by means of force likely to cause great bodily injury and child homicide is that the latter requires the victim to be a child under eight years of age, the assault resulted in the child’s death, and the defendant had the care or custody of the child.
Section 273ab provides: “Any person who, having the care or custody of a child who is 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 imprisonment in the state prison for 25 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 189.”
A defendant may be guilty of an assault within the meaning of section 273ab if he acts with awareness of facts that would lead a reasonable person to realize that great bodily injury would directly, naturally, and probably result from his act. (Wyatt, supra, 48 Cal.4th at p. 781.) “The defendant, however, need not know or be subjectively aware that his act is capable of causing great bodily injury.” (Ibid.)
Here, there is no doubt the victim, Yessenia, was a child under eight years of age, she died of blunt force trauma to the head, and she was in the care of Ponce on the morning of March 10, 2003. The case was prosecuted on the theory that Ponce murdered Yessenia by inflicting the fatal injuries to her head on March 10 and that Osuna aided and abetted the murder by leaving Yessenia with Ponce. By finding both Ponce and Osuna guilty of second degree murder, the jury likely accepted that theory and found that Ponce assaulted Yessenia on the morning of March 10. We have determined the evidence was insufficient to support the verdict against Osuna on the theory she was the perpetrator, and the evidence the fatal blows were inflicted by Ponce on the morning of March 10 was strong. Both Dr. Sheridan-Matney, who pronounced Yessenia brain dead, and Dr. Trenkle, who performed the autopsy, concluded the fatal injuries were inflicted on the morning of March 10 when Ponce undisputedly had care and custody of Yessenia.
Although Ponce’s expert, Dr. Posey, testified the fatal blows likely were inflicted on the evening of March 9, his testimony was dubious, and nothing in the record suggests the absence of a written instruction on assault by means of force likely to cause great bodily injury caused the jury to disbelieve Dr. Posey and believe Dr. Sheridan-Matney and Dr. Trenkle instead.
The record gives no suggestion that the absence of the written instruction had any effect on the jury decision. The jury gave no indication it was confused by the instructions. (See People v. Cooley (1993) 14 Cal.App.4th 1394, 1399 [trial court’s failure to provide written copy of jury instructions to jury not prejudicial where jury gave no indication of confusion].) None of the three questions the jury sent back during deliberations concerned the instructions on either child homicide or the lesser included offense of assault by means of force likely to cause great bodily injury.
IV.
Alleged Juror Misconduct
Ponce argues the trial court erred by denying his motion for a new trial in which he asserted jury misconduct. We conclude the trial court did not err by denying the motion for a new trial because, assuming juror misconduct occurred, the presumption of prejudice was rebutted.
A. Background
In January 2008, Ponce’s trial counsel filed a motion for a new trial asserting a juror had committed misconduct. In support of the motion, Ponce’s trial counsel submitted his own declaration stating: “Following the taking of the verdicts, all three trial counsel... joined the jurors in the deliberation room. In the presence of all three of us, a male juror indicated that he had determined that a five-gallon Sparklett’s water bottle weighed about the same as the decedent. Accordingly, he had picked up the bottle and placed it on his shoulder to replicate the action of someone picking up and then throwing the decedent, Yessenia.... He stated he was trying to determine which defendant likely had the ability to throw the decedent. No counsel inquired further on the subject at the time, so I did not know how many jurors took part in the experiment, or to what extent their verdict to Mr. Ponce might have been affected as a result of it.”
The trial court subsequently ordered the prosecutor to submit a proposed letter and questionnaire to be forwarded to the jurors. The prosecutor submitted a “Juror Declaration” asking: “During deliberations, was an experiment conducted in which the weight of the victim, Yesennia... was simulated in some manner (such as by using an object) in order to assess the physical strength required by a person to forcefully handle the victim? If so, please give as full and detailed an account of this aspect of your deliberations as you can remember.”
Nine jurors responded to the questionnaire. Four jurors (Juror Nos. 4, 6, 8, and one unidentified juror) said no such experiment was conducted during deliberations. Juror No. 7 said an experiment was not conducted but “the approximate weight of the child was compared to that of a 5 gallon water jug in the room.” Four jurors (Juror Nos. 1, 3, 10, and 11) could not recall whether an experiment was conducted. Juror No. 1 stated there was a discussion about physical strength but could not recall the details. Juror No. 3 stated there was an experiment in which a female juror simulated the child in a crotched position and a male juror tried to grab her arms while facing her and while standing behind her. Juror Nos. 3 and 10 remembered an experiment involving fingernail marks. No juror stated the experiment described in the questionnaire was conducted during deliberations.
After hearing oral argument, the trial court denied the motion for a new trial stating: “In all candor, I’m not sure that the behavior disclosed by the declarations rises to the level of jury misconduct. However, assuming for the purpose of this hearing that it does constitute jury misconduct, it’s my conclusion that it could not have in any way interfered with either defendant receiving a fair trial. [¶] I’ve reviewed all of the evidence in this case, clearly the evidence established who inflicted the fatal blows. And... whatever occurred with respect to this water bottle, whether it was discuss[ed], whether it was handled, it did not adversely affect the jury’s impartiality, nor did it lighten the prosecution’s burden of proof. Nor did it contradict any asserted defense. It was just de minimis.”
B. The Law and Standards of Review
A jury verdict may be vacated on the basis of jury misconduct that materially affected the substantial rights of a party. (Code Civ. Proc., § 657, subd. (2).) “Experiments by the jury or a juror and unauthorized conversations about the case, outside the ambit of deliberations, may constitute misconduct sufficient to warrant a new trial.” (Bell v. State of California (1998) 63 Cal.App.4th 919, 930.)
“When a defendant moves for a new trial based on juror misconduct, the trial court undertakes a three-step inquiry.” (People v. Sanchez (1998) 62 Cal.App.4th 460 475.) First, the court determines whether the declarations and other evidence supporting the motion are admissible. (Ibid.) Second, the court determines from the admissible evidence whether the facts establish juror misconduct. (Ibid.) Third, if the court finds misconduct occurred, it must determine whether the conduct was prejudicial. (Ibid.) “In making the determination as to the admissibility of the evidence presented, including declarations of jurors, ‘... the trial court must take great care not to overstep the boundaries established by Evidence Code section 1150.’” (Sanchez, supra, 62 Cal.App.4th at p. 475.)
Evidence Code section 1150, subdivision (a) states: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”
When juror misconduct has occurred, prejudice is presumed and the prosecution bears the burden of rebutting the presumption. (People v. Marshall (1990) 50 Cal.3d 907, 949 951.) The conviction must be reversed if the misconduct impaired jury impartiality, lightened the prosecution’s burden of proof, or negated a defense. (People v. Von Villas (1992) 11 Cal.App.4th 175, 256.)
“We accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination.” (People v. Nesler (1997) 16 Cal.4th 561, 582.)
C. Rebuttal of Prejudice
After remarking the declarations did not appear to disclose misconduct, the trial court in this case assumed misconduct for purposes of the hearing. We will make the same assumption for purposes of appeal. Our independent review leads us to conclude the presumption of prejudice is rebutted by the record. In Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417, footnote omitted, the Supreme Court explained: “[T]he presumption is not conclusive; it may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct. [Citations.] Some of the factors to be considered when determining whether the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.”
The classic rendition of the rule was stated by the California Supreme Court early in the last century: “They [the jurors] may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.” (Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 657; see People v. Bogle (1995) 41 Cal.App.4th 770, 778-779; People v. Castro (1986) 184 Cal.App.3d 849, 853-854.)
The juror responses to the questionnaire establish the evidence of juror misconduct in this case is extremely weak. None of the nine jurors responding to the questionnaire stated the experiment with the water jug took place. All nine of the jurors responding to the questionnaire stated either that no experiment with the water jug occurred or that the juror could not recall whether such an experiment occurred. If the experiment occurred, it was not memorable and likely had little if any effect on the deliberations.
The only evidence supporting the claim of misconduct was the declaration of Ponce’s trial counsel that a juror had stated he had picked up a five-gallon bottle of water and placed it on his shoulder to replicate the action of someone picking up and then throwing Yessenia. That portion of counsel’s declaration was inadmissible hearsay. (Evid. Code, § 1200, subd. (a).) Because the prosecutor failed to object on hearsay grounds, counsel’s declaration was admissible; however, the declaration’s reliance on hearsay diminishes its weight. In addition, the declaration from Ponce’s trial counsel did not identify the results of any experiment, and none of the evidence reveals whether the verdict was consistent or inconsistent with any such results.
Finally, the water jug experiment, if it occurred, would not have contradicted Ponce’s defense. The purpose of the experiment apparently would have been to determine whether Ponce or Osuna was capable of lifting and throwing Yessenia. Ponce’s defense was that Osuna engaged in ongoing pattern of beating Yessenia and inflicted the fatal blows on the night of March 9 by grabbing and pulling Yessenia by the arms, shaking her, beating her, and whipping her with a belt. Whether or not Osuna could lift and throw Yessenia was not material to that defense.
Disposition
The judgment against Ponce is affirmed. The judgment against Osuna as to count 2 is reversed. The judgment against Osuna as to count one is ordered modified to reflect a conviction for one count of involuntary manslaughter (Pen. Code, § 192, subd. (b)). As modified, the judgment on count 1 is affirmed, and the matter is remanded for the sole purpose of resentencing Osuna on that count.
WE CONCUR: SILLS, P. J.MOORE, J.