Opinion
E039736
6-7-2007
THE PEOPLE, Plaintiff and Respondent, v. DARRICK A. BOOKER, Defendant and Appellant.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, William M. Wood and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Darrick Armand Booker appeals from judgment entered following jury convictions for assault of a child under eight years of age, causing death (count 1; Pen. Code, § 273ab), and second degree murder (count 2; § 187, subd. (a)). The trial court sentenced defendant to 25 years to life in prison for count 1, and a concurrent prison term of 15 years to life for count 2.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court erred in instructing the jury on felony murder and in disqualifying as incompetent defense witness, B.C., who was five years old at the time of the trial. Defendant also asserts, and the People agree, that the concurrent term imposed for count 2 must be reversed because it violates the prohibition against multiple punishment under section 654.
To protect the anonymity and privacy of this child witness, we refer to him in this opinion by the initials, B.C.
We reject defendants contentions challenging the felony-murder instruction and disqualification of B.C. as a witness and thus affirm defendants convictions, but order defendants sentence modified to stay the term imposed on count 2 (murder) pursuant to section 654.
1. Facts
Defendant and Tamekia Jackson had a child together, JaiQuan, who was born in February 2002. In June 2002, defendant and Jackson began living together in a two-story apartment.
On July 30, 2002, at 9:00 a.m., Jackson left for her hair appointment. Since Jackson anticipated her hair appointment lasting a long time, defendant suggested Jackson leave JaiQuan with him so JaiQuan could bond with B.C., defendants son by another woman. When Jackson left, JaiQuan seemed fine.
When Jackson called defendant around noon, defendant told her JaiQuan was upstairs sleeping and there had been no problems. When she called around 2:00 p.m., defendant told her JaiQuan was sleeping.
A little after 4:00 p.m., defendant called 911 and told the dispatcher JaiQuan was not breathing. Defendant said he was trying to administer CPR on JaiQuan and he thought JaiQuan was trying to breathe. As the dispatcher was telling defendant how to perform CPR, defendant said, "Im gonna go to jail for this," "It, its nothing, man. Im goin to jail, baby," "I dont wanna go to jail for . . . my son," and "My girls gonna kill me." At one point during the call, defendant told B.C. to go upstairs. When the police arrived, JaiQuan was not breathing and had no pulse. The officers did not notice any signs of trauma on JaiQuan.
At the scene, defendant told Deputy Bowling that five minutes before calling 911, he had given JaiQuan a bottle upstairs. After he left JaiQuan and was downstairs for a minute, he heard JaiQuan coughing. Defendant ran upstairs and found JaiQuan not breathing. JaiQuan was lifeless. Defendant blew into JaiQuans mouth. Formula came out JaiQuans mouth but JaiQuan was not breathing. Defendant called 911 and brought JaiQuan downstairs.
After the police arrived, defendant called Jackson and told her about JaiQuan. When she arrived, the police and paramedics were still there with JaiQuan. Defendant was crying. Defendant told Jackson that JaiQuan had been upstairs and B.C. had been downstairs watching TV. Defendant also said he ran upstairs when he heard JaiQuan choke and hit him on the back. JaiQuan spit up and then went limp.
JaiQuan was taken to the local hospital and placed on a ventilator. His condition was extremely critical. The emergency room (ER) nurse did not notice any external signs of trauma. JaiQuans symptoms of low body temperature and decreased neurological activity were not consistent with choking or drowning, according to the ER nurse. That evening JaiQuan was transferred to Loma Linda Hospital. He died there on August 1, 2002. While Jackson stayed with JaiQuan at Loma Linda Hospital she noticed a bruise appear on JaiQuans forehead.
After JaiQuan was transported to the hospital, officers and defendant went back to defendants apartment and defendant showed the officers JaiQuans bottle, pillow, and blanket, which were in an upstairs bedroom where defendant had said JaiQuan was when he choked. Jackson testified at trial that when she went back to the apartment with officers that evening, she had seen the blanket on the floor in the upstairs bedroom and JaiQuans bottle on top of a television downstairs. Jackson had not asked defendant to wash the blanket or the clothes JaiQuan had been wearing. He had never done the laundry before and there was no washing machine in the apartment complex.
On August 1, the day JaiQuan died, detectives Gary Smith and Gary Somerville went to defendants apartment and conducted a crime scene investigation. Defendant and Jackson were present. The officers noticed a one-half inch dent in the master bedroom wall about one foot, nine inches above the floor.
Defendants Recorded Statement (CT 273-316}
During the crime scene investigation, defendant provided a recorded statement in which he told Detective Somerville that Jackson and her family had removed his belongings from the apartment. Defendant denied changing the scene of the crime. He said he had washed JaiQuans blanket at his mothers house because Jackson had complained the blanket was dirty.
Defendant also told Somerville that B.C. was sleeping downstairs on the couch at the time of the incident and JaiQuan was upstairs asleep with a bottle. After giving JaiQuan a bottle, defendant went downstairs to turn off the television. A minute later, about 2:15 or 2:30 p.m., defendant heard JaiQuan gagging or choking and rushed upstairs. Defendant patted JaiQuan on his back and tried to perform CPR. Milk came out JaiQuans nose. Defendant called 911 and made B.C. go upstairs. Defendant denied harming JaiQuan. Defendant also denied that B.C. would hit JaiQuan and said that B.C. was downstairs at the time of the incident. Defendant said he did not know how JaiQuan got a fractured skull.
Expert Witness Testimony
Dr. Frank Sheridan, the forensic pathologist who performed an autopsy on JaiQuan, testified that JaiQuan had multiple recent bruises on his head, arms, legs, thighs, knees, and buttocks. JaiQuan had extensive head injuries, including two fractures in his skull, one which was two-inches long around the top left side of his head. The other fracture was three-inches long and extended along the left side of the skull, from front to back. There also was bleeding within JaiQuans skull and on his brains surface. The blood was fresh.
Dr. Sheridan testified that he believed JaiQuans injuries were caused by acceleration/deceleration injuries to the head caused by JaiQuans head slamming against something. Sheridan further believed JaiQuan was held by the lower torso, near the thigh area and twice slammed hard against a hard surface, such as a floor or wall. Sheridan did not believe JaiQuan was dropped on the floor nor did he fall down the stairs. According to Sheridan, a three-year-old child, such as B.C., was not strong enough to have caused JaiQuans injuries and the injuries were not the type caused by bludgeoning. JaiQuans injuries were less than two or three days old. JaiQuan died two days after the incident. Sheridan concluded JaiQuans death was caused by abusive head trauma and not by an accident.
Dr. Sheridan-Massey, a forensic pediatrician specializing in child abuse and neglect, examined JaiQuan and testified that his bruises were unusual for a five-month-old child who was not ambulatory. Sheridan-Massey testified that JaiQuans injuries could not have been caused by tumbling down the stairs. She could not tell whether JaiQuans head struck something or something struck his head but an impact would not have caused JaiQuans acceleration/deceleration injuries unless he had fallen from an extraordinary height. It was inconceivable a three or four year old could have caused the injuries. Rather, based on the extreme degree of trauma, the injuries would have had to have been caused by an enraged adult. As soon as the impacts occurred, JaiQuan would have become unconscious or semi-conscious and unable to make voluntary sounds or breath normally.
Defendants Testimony
Defendant testified that he did not tell the truth to the police because he did not want to get in trouble for leaving the children alone. He was not downstairs when he heard JaiQuan choking. He had been outside, waiting in the parking lot for a friend. JaiQuan and B.C. were both upstairs in the master bedroom. As defendant was coming inside, after having been outside for five or 10 minutes, he heard JaiQuan choking. Defendant went upstairs into the master bedroom and saw B.C. on top of JaiQuan. An ashtray was on the blanket next to JaiQuan. Defendant did not see B.C. injure JaiQuan. Defendant hustled B.C. downstairs and called 911. Defendant wanted the police to see B.C. downstairs. Defendant also told B.C. to tell the police B.C. was asleep at the time of the incident.
Defendant testified that he did not know what caused the dent in the bedroom wall or how JaiQuan got his bruises. Defendant said the computer, television, VCR and ashtray were moved out of the apartment the day of his recorded interview with Somerville. He claimed he and Jackson were removing their belongings because they had previously broken up, but had still been living together at the time of the incident. He had washed the blankets in the apartment, including JaiQuans, because Jackson had complained they were dirty. Defendant claimed he told the dispatcher he was going to jail because he should have been inside watching the children.
2. Instruction on Felony Murder
Defendant contends the trial court erred in instructing the jury sua sponte on felony murder. We conclude there was no abuse of discretion in giving the instruction.
A. Forfeiture
The People argue defendant forfeited his objection to the felony-murder instruction by not raising it in the trial court. We disagree. Waiver of instructional error does not occur when substantial or constitutional rights of a defendant are affected. (People v. Croy (1985) 41 Cal.3d 1, 14, fn. 6; People v. Van Winkle (1999) 75 Cal.App.4th 133, 139-140; § 1259.) Section 1259 provides: "Upon an appeal taken by the defendant, the appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§ 1259.)
Defendants challenge to the instruction on felony murder concerns whether the felony-murder theory was applicable, and thus affects defendants substantial rights. Defendants challenge was not forfeited even though he did not raise it in the trial court.
B. Instruction on Felony Murder
Before closing argument, the trial court informed counsel that it intended to give sua sponte an instruction on felony murder (CALJIC No. 8.10) because the section 273ab offense was an inherently dangerous felony. Neither party objected. The court thereafter instructed the jury on murder based on malice aforethought and felony murder as follows: "Every person who unlawfully kills a human being with malice aforethought or [during] a felony inherently danger [sic] to human life is guilty of the crime of murder in violation of Penal Code Section 187. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A human being was killed; [¶] 2. The killing was unlawful; and [¶] 3. The killing was done with malice aforethought, [or during] a felony inherently dangerously [sic] to human life. Assault on a child causing death is a felony inherently dangerous to human life."
Defendant asserts that the trial court erred in giving this instruction on felony murder because the section 273ab predicate offense, assault causing death of a child, is not an inherently dangerous felony within the meaning of the second degree felony-murder rule.
C. Inherently Dangerous Felony
The first degree felony-murder rule is a creation of statute. (§ 189.) The second degree felony-murder rule, applied in the instant case, is a common law doctrine. (People v. Robertson (2004) 34 Cal.4th 156, 166 (Robertson).) As explained in People v. Hansen (1994) 9 Cal.4th 300 (Hansen), "The felony-murder rule imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to human life. `Under well-settled principles of criminal liability a person who kills-whether or not he is engaged in an independent felony at the time-is guilty of murder if he acts with malice aforethought. The felony-murder doctrine . . . operates to posit the existence of that crucial mental state-and thereby to render irrelevant evidence of actual malice or the lack thereof-when the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it. [Citations.]" (Id. at p. 308.)
A principal purpose of the felony-murder doctrine is deterring negligent or accidental killings that may occur in the course of committing a felony. (Robertson, supra, 34 Cal.4th at pp. 165-166; Hansen, supra, 9 Cal.4th at p. 308.) "Case law has emphasized the need to deter the commission of felonies that put human life at risk . . . and also the need to deter persons who commit such felonies from committing negligent or accidental killings in the course of these felonies. [Citations.]" (Robertson, supra, at pp. 165-166.) The felonies that may support a conviction for second degree felony murder thus are limited to felonies that are inherently dangerous to human life. (Hansen, supra, at p. 308.)
As explained in Hansen, "the justification for the imputation of implied malice under these circumstances is that, `when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life . . . . [Citation.] We also have reasoned that, "`[i]f the felony is not inherently dangerous, it is highly improbable that the potential felon will be deterred; he will not anticipate that any injury or death might arise solely from the fact that he will commit the felony." [Citation.] Thus, under the latter circumstances the commission of the felony could not serve logically as the basis for imputation of malice." (Hansen, supra, 9 Cal.4th at p. 308.)
The felony-murder doctrine is thus limited to inherently dangerous felonies because "the hazard to life presented by such felonies is foreseeable. When the danger is foreseeable, it is rational to expect a felon to take precautions not to kill accidentally or negligently-or to forgo commission of the hazardous felony altogether." (Robertson, supra, 35 Cal.4th at p. 166.) A defendant is unlikely to be deterred if it is not reasonably foreseeable that death might arise solely from committing the predicate felony. (Hansen, supra, 9 Cal.4th at p. 308.)
In Hansen, supra, 9 Cal.4th 300, the California Supreme Court rejected the defendants contention that discharging a firearm at an inhabited dwelling was not an inherently dangerous felony for purposes of the second degree felony-murder rule. (Id. at p. 311.) In concluding the offense was an inherently dangerous felony, our high court explained that, "In determining whether a felony is inherently dangerous, the court looks to the elements of the felony in the abstract, `not the "particular" facts of the case, i.e., not to the defendants specific conduct. [Citation.]" (Id. at p. 309.) An inherently dangerous felony is an offense that, viewed in the abstract, poses a great or substantial risk of death or high probability that someone will be killed. (Id. at p. 310; Robertson, supra, 35 Cal.4th at p. 166.)
The issue here is whether the offense of assault of a child under the age of eight years, causing death, is a felony that is "inherently dangerous to human life" for purposes of the felony-murder rule. We conclude it is, because, viewed in the abstract, a section 273ab assault poses a substantial risk of death or high probability that a young child will be killed. (Hansen, supra, 9 Cal.4th at p. 310; Robertson, supra, 35 Cal.4th at p. 166.) A section 273ab assault involves a limited, narrowly defined type of assault, which society finds particularly egregious and seeks to deter because it involves conduct subjecting a young child to great bodily harm, which ultimately results in death.
Under section 273ab, "`[t]o be guilty of this crime, one must willfully and unlawfully, while having care or custody of a child under eight years old, assault the child by means of force that to a reasonable person would be likely to produce great bodily injury and . . . which results in the childs death." (People v. Preller (1997) 54 Cal.App.4th 93, 96; see also People v. Norman (2003) 109 Cal.App.4th 221, 226-227.) The punishment for the crime is 25 years to life in prison, the equivalent of punishment for first degree murder. (§ 273ab.)
A section 273ab offense is the type of crime which "the defendants unlawful conduct serves to justify the conclusion that proof of actual malice should not be required." (Robertson, supra, 34 Cal.4th at p. 166.) Since a section 273ab conviction requires a finding that the assault was committed with force likely to cause great bodily injury and resulted in death, there is a high probability that when the perpetrator committed the assault, he or she was well aware of the risk of death. (Robertson, supra, at p. 166.) It is thus reasonable to assume that the hazard to life presented by the assault was foreseeable. (Ibid.) In turn, "it is rational to expect a felon to take precautions not to kill accidentally or negligently — or to forgo commission of the hazardous felony altogether." (Robertson, supra, at p. 166, citing Hansen, supra, 9 Cal.4th at pp. 308, 314.) Under such circumstances, a section 273ab felony can be said to be tinged with malevolence, particularly since it is committed against a young child by the childs caretaker. (Robertson, supra, at p. 166.)
We thus conclude that a section 273ab felony, considered in the abstract, qualifies as an inherently dangerous felony under the felony-murder rule. (Hansen, supra, 9 Cal.4th at p. 309.)
D. Merger of Inherently Dangerous Felony and the Resultant Homicide
Defendant argues that, even assuming a section 273ab offense is an inherently dangerous felony, the trial court erred in instructing the jury that a section 273ab offense could serve as a felony predicate offense for a felony-murder conviction. Defendant argues the section 273ab offense could not serve as a predicate offense because it merged with the resulting homicide.
In People v. Ireland (1969) 70 Cal.2d 522, the California Supreme Court adopted the merger doctrine. As our high court explained in Hansen, supra, 9 Cal.4th 300, "The name of the doctrine derived from the characterization of the assault as an offense that `merged with the resulting homicide. In explaining the basis for the merger doctrine, courts and legal commentators reasoned that, because a homicide generally results from the commission of an assault, every felonious assault ending in death automatically would be elevated to murder in the event a felonious assault could serve as the predicate felony for purposes of the felony-murder doctrine." (Id. at p 311.)
In Ireland, the court applied the merger rule to a homicide arising from the defendant shooting and killing his wife. (People v. Ireland, supra, 70 Cal.2d at pp. 527-528.) The trial court instructed the jury that, under the second degree felony-murder rule, as long as the killing resulted from an assault with a deadly weapon, the defendant was guilty of second degree murder, without regard to malice. (Id. at pp. 538-539.) The Supreme Court in Ireland held this was error: "[T]he utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule `beyond any rational function that it is designed to serve. [Citation.] To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Id. at p. 539, fn. omitted, quoting People v. Washington (1965) 62 Cal.2d 777, 783; italics added.)
In Hansen, the California Supreme Court rejected Irelands "integral part of the homicide" test in determining merger. In Hansen, the defendant was convicted of felony murder, committed by discharging a firearm at an inhabited dwelling and killing a girl. The Hansen court held the merger rule did not apply. The Hansen court also rejected the "Taylor test," that a predicate felony "does not merge with a homicide where the act causing death was committed with a collateral and independent felonious design separate from the intent to inflict the injury that caused death." (Hansen, supra, 9 Cal.4th at p. 314; see also People v. Taylor, supra, 11 Cal.App.3d at pp. 61, 63.)
People v. Taylor (1970) 11 Cal.App.3d 57.
The defendant in Hansen argued that the trial court erred in instructing the jury on felony murder because the predicate felony, discharging a firearm at an inhabited dwelling, merged with the resulting homicide. The court in Hansen rejected the defendants merger argument on the ground the predicate felony would not elevate all felonious assaults to murder or subvert the legislative intent behind the felony-murder rule. (Hansen, supra, 9 Cal.4th at p. 316.)
The California Supreme Court in Hansen chose not to rely on the collateral purpose rationale, concluding: "Rather than rely upon a somewhat artificial test that may lead to an anomalous result, we focus upon the principles and rationale underlying the foregoing language in Taylor, namely, that with respect to certain inherently dangerous felonies, their use as the predicate felony supporting application of the felony-murder rule will not elevate all felonious assaults to murder or otherwise subvert the legislative intent." (Hansen, supra, 9 Cal.4th at p. 315.)
The Hansen court further explained there was no merger of the predicate offense and murder conviction because "application of the second degree felony-murder rule would not result in the subversion of legislative intent. Most homicides do not result from violations of section 246, and thus, unlike the situation in People v. Ireland, supra, 70 Cal.2d 522, application of the felony-murder doctrine in the present context will not have the effect of `preclud[ing] the jury from considering the issue of malice aforethought . . . [in] the great majority of all homicides. (Id., at p. 539.) Similarly, application of the felony-murder doctrine in the case before us would not frustrate the Legislatures deliberate calibration of punishment for assaultive conduct resulting in death, based upon the presence or absence of malice aforethought. [T]his is not a situation in which the Legislature has demanded a showing of actual malice (apart from the statutory requirement that the firearm be discharged `maliciously and willfully) in order to support a second degree murder conviction. Indeed, as discussed above, application of the felony-murder rule, when a violation of section 246 results in the death of a person, clearly is consistent with the traditionally recognized purpose of the second degree felony-murder doctrine — namely the deterrence of negligent or accidental killings that occur in the course of the commission of dangerous felonies." (Hansen, supra, 9 Cal.4th at p. 315.)
This reasoning applies equally to a section 273ab crime. Applying the felony-murder rule to a section 273ab offense would not elevate all felonious assaults to murder or subvert the legislative intent behind the felony-murder rule. The felony-murder rule would be limited to a narrow type of assault involving young children who die due to their caretakers assaulting them so severely as to pose a risk of great bodily injury, resulting in death.
Allowing a felony-murder conviction based on a section 273ab offense also will not frustrate the Legislatures calibration of punishment for assaultive conduct resulting in death, based upon the presence or absence of malice aforethought. Section 273ab provides punishment equivalent to that of first degree murder even though malice is not required and also allows for a separate conviction for murder. (Hansen, supra, 9 Cal.4th at p. 315.)
In addition, applying the felony-murder rule is consistent with the traditionally recognized purpose of the second degree felony-murder doctrine of deterring negligent or accidental killings that occur in the course of assaulting a young, vulnerable child. (Hansen, supra, 9 Cal.4th at p. 315.) Applying the felony murder to section 273ab crimes would tend to deter such reprehensible assaults condemned by society, as is reflected by the punishment imposed for such a section 273ab. Section 273ab not only provides severe punishment equivalent to punishment for first degree murder but also states that "Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 189," thus indicating a separate murder conviction is permissible.
The court in People v. Norman (2003) 109 Cal.App.4th 221 (Norman), rejected the merger doctrine as well. Although Norman is distinguishable from the instant case because the court did not instruct the jury on felony murder, the case is, nevertheless, instructive since the court held the merger rule did not apply to section 273ab where the murder conviction and section 273ab assault were founded on the same underlying conduct. In Norman, the defendant was convicted of second degree murder (§ 187) and assaulting a child under the age of eight, resulting in death (§ 273ab). (Norman, supra, at p. 224.) The defendant argued in part that the merger rule precluded his second degree murder conviction. (Norman, supra, at pp. 226-227.)
The Norman court rejected the defendants contentions, noting that section 273ab is not a murder statute and therefore the merger rule had no application in Norman. (Norman, supra, 109 Cal.App.4th at p. 227.) The court added that the merger rule also did not apply because defendants section 273ab conviction was separate from, and not dependent on, his murder conviction in which a finding of malice was required. (Norman, supra, at pp. 227-228.)
In Robertson, in which the defendant was convicted of second degree felony murder, the California Supreme court discussed application of the merger rule to the predicate offense of discharge of a firearm in a grossly negligent manner. In Robertson, the defendant fired into the air in an attempt to scare off four men who were burglarizing his car, and killed one of the car thieves. The court in Robertson held that the merger rule did not bar a conviction for second degree felony murder predicated on the firearm discharge offense because the defendant, by his account, had a collateral purpose, independent from the commission of the resulting homicide, in firing his gun. (Robertson, supra, 34 Cal.4th at pp. 171, 173.)
The court in Robertson stated that, "Although the collateral purpose rationale may have its drawbacks in some situations [citation], we believe it provides the most appropriate framework to determine whether, under the facts of the present case, the trial court properly instructed the jury. The defendants asserted underlying purpose was to frighten away the young men who were burglarizing his automobile. According to defendants own statements, the discharge of the firearm was undertaken with a purpose collateral to the resulting homicide, rendering the challenged instruction permissible." (Robertson, supra, 34 Cal.4th at p. 171.)
In People v. Randle (2005) 35 Cal.4th 987, the California Supreme Courts most recent decision on the merger rule, the court concluded that, unlike in Robertson, the merger rule applied because the predicate felony was committed without any independent or collateral purpose: "The fact that defendant admitted shooting at [the victim] distinguishes Robertson and supports application of the merger rule here." (Id. at p. 1005.) In Randle, the defendant fired at the victim during a fight. The defendant claimed he did so because the victim was beating up his cousin.
Our high court in Randle explained that Robertson, in which the merger rule did not apply, was distinguishable because the defendant in Robertson fired in the air to scare off car thieves, a purpose collateral to the resulting homicide. In Randle, on the other hand, the defendant admitted he fired directly at the victim: "The fact that defendant admitted shooting at Robinson distinguishes Robertson and supports application of the merger rule here. Defendants claim that he shot Robinson in order to rescue Byron simply provided a motive for the shooting; it was not a purpose independent of the shooting." (Randle, supra, 35 Cal.4th at p. 1005.)
As in Robertson, here, the merger rule does not apply because there was evidence defendant killed the victim in furtherance of the collateral purpose of attempting to subdue, quiet or punish the child, as opposed to assaulting the child for the purpose of committing homicide. (Robertson, supra, 34 Cal.4th at pp. 171-172.) Also, as in Robertson and Hansen, the merger rule does not apply in the instant case because of the need to deter negligent or accidental killings that occur in the course of the commission of dangerous felonies, such as section 273ab assault of a young child (Hansen, supra, 9 Cal.4th at p. 315), and because of the foreseeability that a section 273ab assault will end in death and thus is inherently dangerous to the victims life. (Robertson, supra, at p. 172; Hansen, supra, at pp. 308, 314.)
3. Disqualification of Defense Witness
Defendant contends the trial court abused its discretion in finding B.C. incompetent to testify under Evidence Code section 701, and thus excluding his testimony.
A. Background Facts
Before the trial, the court held an Evidence Code section 402 hearing (402 hearing) to determine whether B.C. was competent to testify under Evidence Code section 701. B.C. was six years old at the time of the hearing and three and a half at the time of the homicide. The prosecutor also objected to B.C.s testimony under Evidence Code section 702 on the grounds he did not remember what occurred on the day of the homicide and was thus unable to state anything within his personal knowledge concerning the circumstances of the homicide.
Right after B.C. took the stand to testify at the section 402 hearing and was given the oath to tell the truth, and before he was asked any questions, B.C. declared: "I was — I had two things in my hand. And I had the ashtray and my baby brother in my hand. And then I was walking down the stairs carefully to put my baby brother on the couch, but [I] dropped my baby brother on the ground. And the ashtray had water in the bottom of it, and I was trying to put the ashtray on the table but it slipped out of my hands on my baby brothers forehead."
The trial court responded by asking B.C. to state his name and date of birth. B.C. did not know the year of his birth. The trial court asked B.C. if he knew the difference between a truth and a lie. B.C. said he did. The court asked him, "If I told you this (indicating) was a red pen, is that the truth or a lie?" B.C. said it was a lie because the pen was blue. When asked who taught him the difference between a truth and a lie, B.C. said his mother did.
The court then noted to B.C. that, when he took the stand, he started talking. The court questioned B.C. as follows:
"THE COURT: Who told to you [sic] say what you just said?
"THE WITNESS: You.
"THE COURT: I didnt tell you to say anything. Who told you to say that?
"THE WITNESS: Me. [¶] . . . [¶]
"THE COURT: Why did you say that?
"THE WITNESS: Because I want my dad to come home. [¶] . . . [¶]
"THE COURT: [W]hy do you think by saying that that it will help him?
"THE WITNESS: [B]ecause my teacher said that if I tell the truth then my dad might come out of jail.
"THE COURT: Your teacher?
"THE WITNESS: Actually my granny. [¶] . . . [¶]
"THE WITNESS: Dolores.
"THE COURT: Is she back there?
"THE WITNESS: Back right there. [¶] . . . [¶]
"THE COURT: Okay. I have some reservations about this."
Defense counsel then questioned B.C., as follows:
"Q: [B.C.], do you remember your little brother?
"A: Huh-huh.
"Q: Did you ever have a little brother?
"A: Yeah.
"Q: Who do you live with now?
"A: My granny Dolores.
"Q: How long have you lived with your granny Dolores?
"A: Thirty hundred days."
When asked why he was in court, B.C. stated: "`Cause I wanted to see my dad, and my granny took me over here to come see my dad." When defense counsel asked B.C. if he came to testify as a witness to something, B.C. replied, "Yes," but when asked, "What is it that you witnessed, do you know?," B.C. said, "No." When asked to name all his brothers or sisters, he named two girls and two boys, but did not mention JaiQuan. B.C. said he did not remember having a little baby brother but remembered his father had a girlfriend named Chocolate (JaiQuans mother, Jackson). When asked if Chocolate had a baby, B.C. said no and that he had never seen her with a baby at his fathers home. B.C. did not provide any further testimony.
During defense counsels argument as to B.C.s competency, he noted that shortly after the homicide the police and defense investigators interviewed B.C. B.C. made unrecorded statements suggesting he might have seen the homicide. Therefore he should be permitted to testify. Defense counsel suggested that even if B.C. could not remember what occurred, the police could testify as to what he told them.
After hearing B.C.s testimony and argument, the court ruled B.C. was incompetent to testify as a defense witness under Evidence Code section 701. The court stated that B.C. was "incapable of expressing himself concerning the matter so as to be understood" and incapable of understanding the duty to tell the truth. The court further stated: "The Court finds that this child, even at this age, cannot expressly follow the rules of court or answer the questions as asked by the attorneys. And that the witness is incompetent to testify and is now disqualified pursuant to Evidence Code Section 701."
The court further elaborated that "The reason why I will not allow his testimony in this is because its obvious that hes been coached. The child witness himself has said that the grandmother had told him if he came in and said these things that his dad would come home. He has ulterior motives in this, hence his reliability is shot whether its now or whether its back then. . . . Furthermore, because I dont know what statements he made back then, because theres no evidence that he made any statements. And by his own admission he doesnt remember those statements."
B. Applicable Law
The record sufficiently supports the trial courts finding that B.C. was not competent to testify under Evidence Code sections 700 and 701. "`As a general rule, "every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter." (Evid. Code, § 700; see Pen. Code, § 1321.) A person may be disqualified as a witness for one of two reasons: (1) the witness is incapable of expressing himself or herself so as to be understood, or (2) the witness is incapable of understanding the duty to tell the truth. (Evid. Code, § 701, subd. (a).)" (People v. Dennis (1998) 17 Cal.4th 468, 525 (Dennis), quoting People v. Mincey (1992) 2 Cal.4th 408, 444 (Mincey).) The party challenging the witnesss competency "`bears the burden of proving disqualification, and a trial courts determination will be upheld in the absence of a clear abuse of discretion. [Citation.]" (Dennis, supra, at p. 525, quoting Mincey, supra, at p. 444.)
Under Evidence Code section 702, subdivision (a), a witness must have personal knowledge of the facts to which he testifies. "Personal knowledge" means a "present recollection of an impression derived from the exercise of the witness own senses." (Cal. Law Revision Com. com., reprinted at 29B pt. 2 Wests Ann. Evid. Code (2007 ed.) foll. § 702, p. 300, citing 2 Wigmore, Evidence (3d ed. 1940) § 657 p. 762.) The proponent of the evidence has the burden to establish this requisite foundation. (Evid. Code, § 403, subd. (a)(2).) Whether to exclude testimony under Evidence Code section 702 lies within the discretion of the trial court whose decision will not be disturbed unless there is a clear abuse of discretion. (People v. Tatum (2003) 108 Cal.App.4th 288, 298 (Tatum).)
Although many have referred to a witnesss capacity to perceive and to recollect (Evid. Code, § 702) as an issue of competency to testify, the term "competency" more precisely refers to a witnesss qualification to testify under Evidence Code section 701, subdivision (b). (People v. Lewis (2001) 26 Cal.4th 334, 356, fn. 4 (Lewis).) Unlike a witnesss personal knowledge, which if lacking may result in exclusion of testimony under Evidence Code section 702, a witnesss competency to testify under Evidence Code section 701 is determined exclusively by the court. (Lewis, supra, at p. 360.)
C. Analysis
Citing Mincey, supra, 2 Cal.4th 408, Tatum, supra, 108 Cal.App.4th 288, and Lewis, supra, 26 Cal.4th 334, defendant asserts that there was no showing that B.C. was incompetent as a witness. Defendant argues that, although B.C.s testimony was inconsistent at times and he did not remember certain facts, "Inconsistencies in testimony and a failure to remember aspects of the subject of the testimony . . . do not disqualify a witness. [Citation.] They present questions of credibility for resolution by the trier of fact." (Mincey, supra, at p. 444.)
B.C.s believability and ability to recall events relate to his credibility as a witness and thus are not valid grounds for finding him incompetent to testify. Although many have referred to a witnesss capacity to perceive and to recollect (Evid. Code, § 702) as an issue of competency to testify, the term "competency" more precisely refers to a witnesss qualification to testify under Evidence Code section 701, subdivision (b). (Lewis, supra, 26 Cal.4th at p. 356, fn. 4.)
B.C.s testimony established that he was capable of expressing himself so as to be understood. In expressing himself, it became clear to the trial court that he had been coached, was lying, and did not recall the circumstances of the homicide.
B.C.s testimony also sufficiently established he was capable of understanding the duty to tell the truth. (Evid. Code, § 701, subd. (a).) He distinguished between a true fact and false fact, that of the color of the trial judges pen. B.C. also told the court his mother had taught him the difference between a truth and a lie. There was no evidence that B.C. did not comprehend his duty to tell the truth. His testimony indicating that he did not personally recall the circumstances of the homicide and was not telling the truth was insufficient to support a finding of incompetency.
In Tatum, supra, 108 Cal.App.4th at page 297, the court held the victim, who was 82 when attacked, was a competent witness even though the victim was confused at times, made inconsistent statements, and was forgetful. In Lewis, the court also held the challenged witness was competent to testify even though his testimony may have consisted of inconsistencies, incoherent responses, and possible hallucinations, delusions and confabulations. (Lewis, supra, 26 Cal.4th at pp. 360, 361.)
Finally, in Mincey, a case involving a witness, who was five years old at the time of trial, the court concluded the witness was competent. The Mincey court rejected defendants arguments that the trial courts voir dire of the witness was inadequate to determine whether she was capable of recounting her impressions of the subject incident, and the trial court failed to impress upon her that she would be punished if she did not tell the truth. (Mincey, supra, 2 Cal.4th at p. 445.)
Although there was no evidence that B.C. was incompetent to testify, exclusion of his testimony on competency grounds was harmless error because B.C.s testimony was excludable under Evidence Code section 702 on the ground he did not have personal knowledge of the facts to which he was testifying. The trial court stated that it excluded B.C.s testimony because it was apparent B.C. was coached, had a strong motive to lie, was lying, and, most importantly did not recollect the circumstances of the homicide.
As explained in Tatum, "section 702 requires that a witness at trial have `"a present recollection of an impression derived from the exercise of the witnesss own senses." [Citations.] (People v. Lewis (2001) 26 Cal.4th 334, 356) . . . Under that section, the trial court must admit the proffered testimony of a witness upon introduction of evidence sufficient to sustain a finding that the witness has personal knowledge of the subject matter of his testimony. [Citation.]" (Tatum, supra, 108 Cal.App.4th at pp. 297-298.)
Here, there was evidence B.C. did not have personal knowledge of the circumstances of the homicide, most likely because of his young age or because he was not present. His story was not plausible; he was very young at the time of the crime; his testimony indicated he did not remember the circumstances of the crime; he had a strong motive to lie; and, because of his young age, he was susceptible to being manipulated into lying by his grandmother, with whom he was living.
While the trial court stated it excluded B.C.s testimony under Evidence Code section 701, the trial court also gave reasons for excluding it under Evidence Code section 702 as well. We find no abuse of discretion in excluding B.C.s testimony under Evidence Code section 702 since it was reasonable to conclude that B.C. did not have personal knowledge of the circumstances of the murder. He did not even remember JaiQuan or that Jackson had a baby.
We further conclude that exclusion of B.C.s testimony was harmless error because it is not reasonably probable that the outcome would have been more favorable to defendant had B.C. testified since he was not a believable witness. (People v. Watson (1956) 46 Cal.2d 818, 836.) Even applying the Chapman standard, we come to no different conclusion.
Chapman v. California (1967) 386 U.S. 18, 24.
4. Section 654 Prohibition Against Multiple Sentencing
Defendant was sentenced to separate, concurrent terms for assaulting a child, causing death (count 1; § 273ab) and second degree murder (count 2; § 187, subd. (a)). Defendant contends, and the People agree, that the concurrent term imposed for second degree murder, must be reversed because it violates the prohibition against multiple punishment under section 654.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." In other words, section 654 "bars multiple punishment for an indivisible course of conduct which violates more than one statute." (People v. James (1977) 19 Cal.3d 99, 119 (James)); see also, People v. Avalos (1996) 47 Cal.App.4th 1569, 1583 (Avalos).) Divisibility depends on the defendants intent — "if all his offenses were `incident to one objective, the defendant may be punished only once." (James, supra, at p. 119.)
When section 654 applies, the proper procedure is to stay imposition of sentence on the count with the lesser sentence that is subject to section 654, with the stay to become permanent on the defendants completion of the remainder of the sentence. (People v. Pearson (1986) 42 Cal.3d 351, 361; People v. Miller (1977) 18 Cal.3d 873, 886.)
Here, it is undisputed that the same act, intent, and objective existed for commission of the murder and assault offenses, counts 1 and 2. At the sentencing hearing, the parties and the court agreed that section 654 precluded separate punishment for each offense. On appeal, the parties also agree that section 654 bars separate punishment for the count 2 murder conviction, which carries the lesser term. Thus, the consecutive term for that count must be stayed pursuant to section 654.
5. Disposition
The judgment is ordered modified to stay execution of the sentence on count 2 (murder) pursuant to section 654. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect the sentence as modified by this opinion and to forward it to the Department of Corrections and Rehabilitation.
We concur:
Ramirez, P. J.
King, J.