Opinion
E043487.
2-17-2009
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DANIEL COX, Defendant and Appellant.
Fay Arfa for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Andrew Mestman and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
On the night of August 27, 2005, Pamela Seiber left her 3-year-old son, Michael, in the care of her boyfriend, Alex Mendoza, while she went to work at a strip club. Defendant Richard Daniel Cox was Mendozas roommate and was home with Mendoza and Michael. Throughout the night, Mendoza beat and tortured Michael, punching him in the stomach; kicking him; dropping him on his head until there was a cracking sound; burning his anus, penis, and foot; and making him eat his own feces, while defendant aided and/or participated. When Pamela arrived home at 2:30 a.m. on August 28, 2005, Michael appeared to be sleeping peacefully in Mendozas bedroom, and defendant and Mendoza were watching a movie. In the middle of the night, Michael stopped breathing. He was rushed to the hospital, where he was revived. Michael lived for 31 hours but eventually succumbed to the numerous blunt force injuries inflicted on him.
In a trial severed from Mendozas, defendant was convicted of first degree torture murder and assault on a child under the age of eight causing death.
Defendant now contends:
1. The trial court violated his federal constitutional rights by denying him free trial transcripts and a continuance after obtaining private counsel, which essentially foreclosed any opportunity to file a motion for new trial.
2. Insufficient evidence supported his conviction of torture murder because the acts committed by Mendoza were not torture murder.
3. Insufficient evidence supported defendants conviction of assault on a child under the age of eight causing death, as he did not have care or custody of Michael.
4. Insufficient evidence was presented that defendant aided and abetted Mendoza in either crime.
5. The People erroneously introduced prior bad acts committed by defendant in disciplining Michael, and the court failed to give a limiting instruction.
6. The modified instruction on the burden of proof for greater and lesser included offenses was erroneous.
7. The trial court erred by failing to instruct on several theories of involuntary manslaughter.
8. The trial court failed to instruct on the lesser included offense of assault with force likely to cause great bodily injury to the fatal-assault-on-a-child charge.
9. A detectives out-of-court statements made during a pretrial interview of defendant were improperly admitted in violation of his constitutional rights of confrontation.
10. A detectives testimony that defendant lied during his pretrial interviews was erroneously admitted as improper attacks on defendants credibility.
11. The prosecutor committed misconduct during questioning of witnesses and closing argument.
12. Defendant received ineffective assistance of counsel should this court conclude that he has waived any issues on appeal.
13. Cumulative errors require reversal.
The People contend that the abstract of judgment must be corrected to delete the conduct credits, as the trial court in its oral pronouncement of sentence granted no conduct credits.
We agree that the abstract of judgment should be corrected to reflect the oral pronouncement of sentence. We otherwise affirm the judgment.
I
PROCEDURAL BACKGROUND
A jury found defendant guilty of the first degree torture murder of 3-year-old Michael (Pen. Code, § 187, subd. (a)) in count 1, and guilty of a separate count of assault on a child under the age of eight causing death (§ 273ab) in count 2. The trial court sentenced defendant to state prison for the indeterminate sentence of 25 years to life on the assault on a child causing death and stayed the sentence on the first degree murder pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant and Mendoza were charged together with committing these crimes. However, the trial court severed their trials.
II
FACTUAL BACKGROUND
A. Prosecution
1. The events leading up to August 27, 2005
Pamela Seiber was mother to 3-year-old Michael Vallejo Seiber. In July 2005, Pamela met Alex Mendoza at one of the strip clubs where she worked. Defendant lived with Mendoza; he had his own room.
Pamela was in state prison custody at the time she testified. She had pleaded guilty to child endangerment in connection with Michaels death and was granted immunity to testify at defendants trial.
Pamela and Mendoza entered into a romantic relationship; she and Michael frequently stayed the night at Mendozas house. Mendozas elderly invalid father lived with Mendoza, who took care of him. Mendoza and Pamela came to an agreement that she would watch Mendozas father during the day while Mendoza was at work, and Mendoza would take care of Michael while she worked at night.
After they made this arrangement, Mendoza watched Michael approximately six times. Defendant was home with Mendoza at least five of these times. Pamela did not give either Mendoza or defendant permission to hit Michael. At some point prior to August 27, 2005, Mendoza had hit Michael in the head, and Pamela had left Mendozas house. She returned when he promised to treat Michael well. Michael never told Pamela that either Mendoza or defendant had hurt him. On another occasion, Mendoza had thrown a ball hard at Michaels face one time during a game, and Pamela told him to stop. Mendoza also made Michael beat up one of Michaels favorite toys, an Elmo doll, in order to make him tougher; defendant went along with Mendoza.
About a week before Michael was killed, he had taken a trip to Mexico with his grandparents, Lydia and Solomon Vallejo. When he returned from the trip, he had bruises near his ribs, which Pamela claimed Lydia and Solomon told her were caused when he had fallen off some stairs. Michael also had received a blister on his foot while visiting Lydia and Solomon, caused by stepping on a charcoal briquette.
2. The hospitalization of Michael on August 27, 2005
On August 27, 2005, Pamela left for work at approximately 6:30 p.m. Michael told Pamela before she left that he did not feel good and wanted to go to his grandparents house, but she left him with defendant and Mendoza.
Pamela got off work about 2:30 a.m. and brought home Stacy Mestaz, with whom she worked at the strip club. When Pamela and Mestaz arrived home, defendant and Mendoza were sitting on the couch watching a movie. When Stacy asked to see Michael because she had not met him before, defendant and Mendoza gave each other "guilty" looks.
Pamela and Mestaz went into Mendozas room, where Michael was sleeping. Michael was making some noises but appeared to be sleeping peacefully. Pamela did not want to wake him up, so they left the room. Pamela and Mestaz fell asleep on the couch.
Sometime later Mendoza yelled at Pamela to wake up because Michael was not breathing. Pamela ran to Michael, whom she found unresponsive on Mendozas bed. Pamela woke Mestaz, and Mendoza drove them to the hospital; defendant was still asleep on the couch. As they were driving, Pamela noticed marks on Michaels legs and on his back. Pamela asked Mendoza how Michael got the bruises, but he claimed he did not know how and insisted they had just played.
When they arrived at the hospital at 4:00 a.m., Michael had no pulse, was not breathing, and appeared to be dead. Michael had red marks on his anus, which appeared to a nurse on duty to be consistent with his being sodomized. Michaels penis appeared bruised. After performing cardiopulmonary resuscitation on Michael for 45 minutes, doctors were able to bring back his pulse and blood pressure. Michael was transferred to an intensive care unit at another hospital. His condition was reported to law enforcement because it appeared that he had been severely beaten.
At some point, defendant arrived at the hospital. Defendant and Mendoza made jokes while waiting at the hospital. They both acted nervous when they were told the police were coming to the hospital.
Pamela, Mestaz, Mendoza, and defendant all went to the police station and were interviewed. After defendant and Mestaz talked to the police, Mestaz drove defendant back to Mendozas house. As they drove, defendant told Mestaz that Mendoza had done things to Michael and not to tell anyone until after the trial. When Mestaz asked what trial he was talking about, he said that it did not look good for Mendoza.
Defendant told Mestaz that Mendoza had been beating Michael. He told her that "both of them" had used Michael like a "guinea pig" and given him dog food and beer. Mestaz was certain that defendant told her "we" had given him beer. When Mestaz asked defendant what he meant by "we," he changed his story and said, "I mean Alex. He told me to give it to him." Defendant said that he and Mendoza had given Michael beer and had laughed at how he acted.
Defendant told Mestaz that Mendoza turned into a "monster" whenever Pamela left the house. He said Mendoza had kicked Michael in the stomach, stomped on him, punched him in the stomach and chest, held him by his feet and dropped him on his head, burned the bottom of his foot, burned his penis, and made him eat his own feces out of his diaper.
3. Michaels injuries
Michael survived for 31 hours after he was resuscitated. He died on August 29, 2005. An autopsy was conducted on August 31, 2005. Michael had bruises on his left hip and under his left armpit. He had a bruise on his forehead above his nose between his eyes. There was some sort of injury to his left ear. There was hemorrhaging in his skull that was likely caused by blunt force injury. There was a bruise on his right front thigh. There were old injuries to the front part of his thighs, elbow, and wrist that appeared to be healing. There was some redness on his penis that appeared to be a burn mark.
There were tears in Michaels anus consistent with some sort of object being stuck inside, which was consistent with sexual assault. Michael had a blister on the bottom of his right foot. There was hemorrhaging in the muscles in Michaels upper back and on the back of his head. He also had a fracture to his occipital bone that ran from the bottom part of the skull up to the brain. Michael had a fresh injury to his rib where it attached to his spine, which was consistent with someone standing on his chest.
There was injury to Michaels liver that was likely caused by being crushed between the spine and the front of the abdomen or by a hard kick or blow with a fist. There was hemorrhaging around the pancreas. Both injuries were recently inflicted. There was also bleeding around the kidneys. These injuries would have caused pain to Michael.
The cause of Michaels death was multiple blunt force injuries to the abdomen area causing the injuries to the liver, kidneys, and diaphragm. The skull injury did not cause his death.
4. Defendants pretrial statements
In an interview conducted on August 28, 2005 by Riverside County Sheriffs Detective Roman Pluimer, defendant first denied that either he or Mendoza hit Michael. He blamed Michaels injuries on his either running into a pole or being knocked down by one of the dogs. Defendant also said that he was "part of taking care of" Michael. Defendant denied that Mendoza ever threatened him.
Defendant later admitted that Mendoza had hit Michael "lots of times." He told Detective Pluimer that the minute Pamela left for work he knew it was "hell week" for Michael. Mendoza would immediately start kicking Michael in the stomach, ribs, and legs. Michael would scream to Mendoza that he loved him to try to get him to stop. The beatings would last the entire time Pamela was working. Mendoza would hit Michael with the force he would use on an adult. During one beating, Michael defecated in his diaper, and Mendoza made him eat it.
Defendant admitted that Michael had been beaten by Mendoza on the night of August 27, 2005. After the beatings, they left Michael at home alone while they went to the video store. It was defendants idea to leave Michael home, telling Mendoza that they would be "fucked" if they got pulled over by the police.
After returning from the video store on August 27, 2005, Mendoza took a long lighter used to light fires and burned Michaels anus, penis, and foot. Mendoza then stood on top of Michaels chest with all of his weight and pulled Michaels arms and feet up toward him. While they were watching a movie, Mendoza picked up Michael by his feet and dropped him on his head. About two hours before Pamela returned from work, Mendoza stopped abusing Michael because Michael was in such bad condition that Mendoza told defendant he was not sure that Michael was going to live.
On September 14, 2005, defendant was again interviewed. Defendant admitted he was present all six times that Mendoza watched Michael. He described further abuse by Mendoza such as pressing his thumb into Michaels ear until it bled, tripping him while he ran down the hall to get away, forcing him to drink Mendozas fathers urine, and forcing him to drink alcohol.
The night before Michael was taken to the hospital was the worst beating. At one point, Michael was so beat up he was lying on the bed drooling and sweating profusely. On that night, Mendoza repeatedly stomped on Michaels chest, picked him up and dropped him on his head, and punched him in the stomach. Mendoza hit Michael repeatedly for five or six minutes.
Defendant explained with more detail the burn on Michaels foot. Defendant claimed he tried to "help" Michael by using a razor blade to cut the skin off the blister that was on his foot from stepping on the coal while with his grandparents. Mendoza came up with a lighter and burned Michael in the same place. During this interview, defendant admitted that he had spanked Michael on the hand and bottom six or seven times to discipline him.
A third interview was conducted on October 5, 2005. Defendant told Detective Pluimer that he had left something out of his statement. He said that one time Michael ripped up a photograph of his, and he chased Michael and kicked his leg out from under him, and Michael fell to the ground. Defendant also indicated that on occasion Mendoza would hold Michael while defendant disciplined him. Defendant admitted he may have hit Michael in the back of the head when Michael flipped him off.
At the end of this interview, defendant tried to backtrack and claim he had been in his room most of the time that Mendoza was abusing Michael.
Defendant claimed he stayed even though he wanted to leave because he had no where to go.
B. Defense
Lydia (Michaels grandmother) denied that Michael had been injured in Mexico. Around August 15, Lydia noticed that Michael had something black in his ear, and the ear was swollen. Lydia took him to the doctor and got medication. Michael suffered a burn to his foot when he stepped on a charcoal briquette while they were barbecuing.
Riverside County Child Protective Services was contacted after Michaels visit to the doctor. He was examined on August 16, 2005. He had a scab on his ear and a dark circle under his eye. No action was taken to remove Michael.
Pamela had told a neighbor prior to Michaels death that she believed Mendoza was hitting Michael and that Michael was afraid to be at Mendozas house.
Detective Pluimer was recalled and testified regarding an interview with Mendoza. Mendoza described his actions as "rough playing." Numerous times Mendoza would swing Michael around by one arm and leg and then throw him on the bed. Michael often bounced off the bed and landed on his head on cement. One time Mendoza heard a cracking sound but continued throwing Michael. Mendoza admitted punching and kicking Michael in the stomach and chest, hitting Michael in the back of the head, shaking him, and hitting him in the face with a ball.
On August 27, 2005, Mendoza punched and hit Michael for 15 minutes. Mendoza admitted having Michael eat his own feces but claimed he was using it as a way to potty train Michael.
Pamela had described defendant to a defense investigator as being "[m]entally slow," shy, and withdrawn. She indicated that defendant appeared to be in fear of Mendoza. Pamela described defendant as Mendozas "bitch." Mendoza was verbally abusive to defendant.
A former girlfriend of Mendozas testified that he had gone to prison on two prior occasions for beating her up.
Defendant presented several character witnesses, including his employer, former high school teachers, family members, and friends, who described defendant as immature, honest, not confrontational or violent, and not the type of person to harm a child. Defendant had told other persons that Mendoza was violent and mean and that he was afraid of him.
III
INSUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION OF FIRST DEGREE TORTURE MURDER
Defendant contends that the evidence was insufficient to support his first degree torture-murder conviction because Mendozas conduct did not amount to torture causing death, and therefore he could not have aided and abetted torture murder.
Although defendant contends in the heading that the evidence was insufficient to support his conviction for fatal assault on a child under the age of eight, he provides no argument on that issue, and we will not address here.
A. Standard of Review for Sufficiency Claims
"We often address claims of insufficient evidence, and the standard of review is settled. `A reviewing court faced with such a claim determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.]" (People v. Moon (2005) 37 Cal.4th 1, 22.)
B. Substantial Evidence Supported the Jurys Findings That Mendoza Committed First Degree Torture Murder
Murder by means of torture, a statutorily listed type of first degree murder (§ 189), does not require an intent to kill, but requires the intent to torture and requires the same proof of deliberation and premeditation as is required of other kinds of first degree murder. (People v. Steger (1976) 16 Cal.3d 539, 546.) "The elements of torture murder are: (1) acts causing death that involve a high degree of probability of the victims death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. [Citations.]" (People v. Cook (2006) 39 Cal.4th 566, 602.)
"It is not the amount of pain inflicted which distinguishes a torturer from another murderer, as most killings involve significant pain. [Citation.] Rather, it is the state of mind of the torturer — the cold-blooded intent to inflict pain for personal gain or satisfaction — which society condemns." (People v. Steger, supra, 16 Cal.3d at p. 546.)
In People v. Whisenhunt (2008) 44 Cal.4th 174, the California Supreme Court upheld a conviction for first degree torture murder on facts similar to those presented here. The California Supreme Court held, "The evidence of [the victims] wounds support first degree murder by torture. The evidence indicates that she was brutally kicked or punched, and that, after she was incapacitated, the perpetrator methodically poured hot cooking oil onto various portions of her body, repositioning her body so as to inflict numerous burns throughout her body, including her genital region. As we have stated, the jury may infer the required mental state for murder by torture from the condition of the victims body. [Citation.] Here the condition of the body, with the numerous methodical burn wounds inflicted, abundantly supports the jurys finding that defendant had the willful, deliberate, and premeditated intent to cause extreme pain or suffering for a sadistic purpose." (Id. at p. 201.)
Defendant tries to distinguish Whisenhunt by claiming that Mendoza never incapacitated Michael and never poured oil on his body. This is a distinction without a difference. The acts committed by Mendoza were equally as brutal as those committed in Whisenhunt.
We believe that the injuries suffered by Michael, combined with the testimony regarding the beating of Michael, clearly supported that Mendoza committed first degree torture murder. There is no dispute in the evidence as to what Mendoza did to Michael. Testimony was presented by several witnesses, including testimony regarding statements made by defendant himself prior to trial, that during the so-called "hell week" Mendoza stomped on Michael; punched and kicked Michael in the stomach; held Michael by his feet and dropped him on his head until there was a cracking sound; burned the bottom of Michaels foot, anus, and penis; and held his foot on Michaels chest while Michael lay on the ground and violently pulled Michaels arms toward him.
The autopsy revealed that Michael had numerous bruises on his body. He had tears on his anus, consistent with sexual assault. He had burns on his penis, anus and on the blister on his foot. He had a severe fracture to his skull. His liver and pancreas were injured, likely caused by being kicked or crushed between the spine and abdomen. There were also injuries to his kidneys and bleeding. Michael died as a result of multiple blunt force injuries.
These actions were clearly for sadistic purposes. Defendant himself told Mestaz that he and Mendoza had given Michael dog food and beer. Mendoza had forced Michael to eat his own feces. Mendozas sadism was shown by forcing Michael to say "I love you," to Mendoza in order to avoid being further beaten.
Defendant argues that the actions of Mendoza were just a misguided attempt to discipline him. The extent of the torture done to Michael throughout the night on August 27 simply cannot be described as attempts at discipline. The jury could reasonably conclude that the numerous acts committed by Mendoza were for purposes of torture, and there is no dispute that his injuries resulted in his death. We conclude ample evidence supported that Mendoza committed first degree torture murder. We also believe that the evidence supported that defendant aided and abetted Mendoza, as will discussed post, in part V.
IV
INSUFFICIENCY OF EVIDENCE OF CARE AND CUSTODY OF MICHAEL TO SUPPORT CONVICTION FOR FATAL CHILD ABUSE ON A CHILD UNDER THE AGE OF EIGHT
Defendant claims that there was insufficient evidence presented to support the elements of fatal assault on a child under the age of eight on a theory that he was the direct perpetrator of the abuse. Specifically, he insists there was insufficient evidence presented to show that he had care and custody of Michael to convict him on a theory as a direct perpetrator.
The jury was instructed that they could find defendant guilty of the fatal assault either as a direct perpetrator or as an aider and abettor. Since the jury found defendant guilty of aiding and abetting Mendoza on the first degree torture murder, it is probable they convicted defendant of the fatal assault as an aider and abettor, since the same evidence supported both counts. However, since it is possible they found defendant was a direct perpetrator, we address this issue here and the sufficiency of aiding and abetting separately, post, in part V.
Section 273ab provides in relevant part: "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 childs death, shall be punished by imprisonment in the state prison for 25 years to life." Accordingly, the elements that must be proved in order to convict a person of violating section 273ab include that "(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 childs death. [Citations.]" (People v. Malfavon (2002) 102 Cal.App.4th 727, 735-736.) "The terms `care or custody do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver." (People v. Cochran (1998) 62 Cal.App.4th 826, 832.)
In Malfavon, the court held that substantial evidence supported the jurys finding that the defendant had care or custody of the child when the defendant admitted he was responsible for watching the child, who was asleep in a car seat, while the childs mother went upstairs to the defendants apartment, and other evidence showed that the defendant had been the childs babysitter in the past. (People v. Malfavon, supra, 102 Cal.App.4th at p. 737.)
Despite the fact that Pamela did not give defendant permission to discipline or care for Michael, she was aware that defendant was always with Mendoza while Mendoza cared for Michael. Further, defendant assumed the role of caretaker. Defendant told Detective Pluimer that he was "part of" taking care of Michael. The evidence showed that defendant admitted disciplining Michael by spanking his hand and bottom. Defendant disciplined Michael while Mendoza held him. Further, if defendants story is to be believed, he tried to help Michael with the injury on his foot. Defendant assumed the care and custody of Michael by choosing to discipline him and cannot escape his conviction for violating section 273ab by claiming he had no authority to commit such acts.
We note that defendant does not contest that, as a direct perpetrator, he did not commit abuse that caused Michaels death. We believe the jury could have disbelieved defendants pretrial statements and found he inflicted the fatal injuries along with Mendoza.
The evidence supports that defendant had care and custody of Michael to support his conviction of fatal assault on Michael.
V
INSUFFICIENT EVIDENCE THAT DEFENDANT AIDED AND ABETTED MENDOZA
Defendant claims that there was insufficient evidence presented that he aided and abetted Mendoza in the first degree torture murder and assault on a child under the age of eight against Michael.
"A `person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 40.) "[P]resence at the scene of the crime, while insufficient of itself to make one an aider and abettor, is one factor which tends to show intent. Other factors which may be considered include the defendants failure to take steps to prevent the commission of the crime, companionship, and conduct before and after the crime. [Citation.]" (People v. Pitts (1990) 223 Cal.App.3d 606, 893.)
As set forth ante, in part III, there was ample evidence presented that Mendoza committed first degree torture murder. Defendant has not presented any coherent argument that the evidence that Mendoza committed fatal assault on a child under the age of eight was insufficient, nor would such argument be successful here, since the same evidence supported both convictions. There was ample evidence upon which the jury could conclude that defendant aided and abetted Mendoza in these crimes.
Defendant was present every time Mendoza watched Michael. He was well aware of how Mendoza treated Michael. He admitted that the minute Pamela left the house, Mendoza would start beating Michael. Defendant told no one. Although he had no legal duty to report Mendoza, his failure to protect Michael from such harm showed his willingness to assist Mendoza in the perpetration of such torturous acts upon Michael.
Evidence was presented that defendant and Mendoza were good friends and worked together. Defendant and Mendoza both watched Michael for Pamela. Defendant was clearly present when Michael received his fatal injuries. When Pamela arrived home from work, defendant and Mendoza were watching a movie while Michael suffered in the bedroom. Mestaz observed a "guilty" look exchanged between defendant and Mendoza when the women asked to see Michael. Based on this evidence alone, the jury could infer that defendant aided and abetted Mendoza.
When the above evidence is combined with defendants statements, the evidence overwhelmingly shows he aided and abetted Mendoza. Defendant initially denied any involvement or that Mendoza hurt Michael. The jury could consider this denial as evidence of his intent to aid and abet Mendoza. Also, defendant had disciplined Michael on occasion, while Mendoza held Michael. After witnessing Mendoza break Michaels neck by throwing him hard on the floor, defendant suggested they leave him home alone while they went to the video store as they would be "fucked" if they were stopped by the police. Despite acknowledging that severe harm had been done to Michael, defendant was willing to leave him alone to suffer. This was strong evidence that defendant shared Mendozas intent to inflict torture and pain on Michael. Even though defendant attempted to minimize his involvement, the jury could reasonably infer that he assisted and aided Mendoza in both the first degree torture murder and fatal assault causing Michaels death.
Defendant claims that Mestazs testimony that defendant told her that both he and Mendoza used Michael like a guinea pig and gave him beer and dog food could not be considered torturous acts, as they were not intended to cause cruel pain or suffering. Although these acts may not have caused physical pain to Michael, they were clearly sadistic in purpose. Further, they showed a willingness on defendants part to assist Mendoza. The jury could reasonably conclude that if defendant was willing to aid and abet in these sadistic practices, he intended to also aid the physical injuries inflicted on Michael.
We conclude that the evidence overwhelmingly supports that defendant aided and abetted Mendoza in the first degree torture murder and fatal assault on Michael, despite defendants attempts to minimize his involvement.
VI
ADMISSION OF DEFENDANTS STATEMENT THAT HE DISCIPLINED MICHAEL AS PRIOR BAD ACTS
Defendant contends that the trial court improperly admitted prior bad acts committed by him in disciplining Michael under Evidence Code section 1101, subdivision (b).
A. Additional Factual Background
As set forth, ante, in part II.4, defendants statements to Detective Pluimer were introduced. Defendant admitted that he spanked Michael on the hand and bottom six or seven times. In addition, he admitted that one time Michael ripped up a photograph belonging to him. Defendant chased after Michael and kicked his leg out from underneath him, resulting in Michael falling to the ground. He also admitted that he may have hit Michael in the back of the head because Michael "flipped [him] off." Defendant never interjected an objection to the above evidence being admitted.
B. Analysis
Initially, we agree with the People that the defendant has waived this claim by failing to raise it in the lower court. Defendant never objected on any grounds in the lower court that this was inadmissible prior bad acts evidence. Defendant has forfeited his claim under Evidence Code section 1101 by failing to assert it in the trial court. (People v. Thomas (1992) 2 Cal.4th 489, 520.) Defendant certainly never interjected that the admission of the evidence infringed on his federal constitutional rights. (People v. Smithey (1999) 20 Cal.4th 936, 995 [defendants cannot assert federal constitutional errors for the first time on appeal].)
Defendant does not dispute that he failed to object but argues that if he is found to have waived the claim, he received ineffective assistance of counsel. We will discuss ineffective assistance of counsel post, in part XIII.
Even if we were to review defendants claim, we would disagree that evidence that defendant disciplined Michael prior to August 27, 2005, was inadmissible prior bad acts evidence.
Evidence Code section 350 provides that "[n]o evidence is admissible except relevant evidence." "`Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
"While there is no universal test of relevancy, the general rule in criminal cases might be stated as whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. [Citation.] Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury. [Citation.]" (People v. Slocum (1975) 52 Cal.App.3d 867, 891; see also People v. Mobley (1999) 72 Cal.App.4th 761, 793.) The weight given to such evidence is for the jury to decide. (Slocum, at p. 891.)
Evidence Code section 1101, subdivision (a) excludes "evidence of persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . when offered to prove his or her conduct on a specified occasion." Evidence Code section 1101, subdivision (b), however, provides that this "does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the persons character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted.)
The acts of discipline committed by defendant upon Michael were relevant to show that defendant had care and custody of Michael, an element of the crime of fatal assault on a child under the age of eight, not to show his disposition to commit the instant crimes. (See § 273ab.) By assuming the role of disciplinarian, defendant showed that he felt he had some duty of care for or custody of Michael. This evidence had a tendency to prove that defendant committed the fatal assault offense. (People v. Slocum, supra, 52 Cal.App.3d at p. 891.) Such theory of admissibility is supported by the prosecutors argument to the jury that defendants admission of touching Michael showed a duty of care.
In addition, the evidence was properly admitted to attack defendants credibility. Defendant initially denied any involvement or knowledge in the beatings of Michael. Each time he was interviewed by police, defendant admitted more and more involvement, including his owns acts of discipline. Defendants credibility was clearly before the jury, as they had to determine whether he was lying about disagreeing with the abuse of Michael or had actually committed the abuse. This evidence was also properly admitted to attack defendants credibility. (See Evid. Code, § 1101, subd. (c).)
The evidence was properly admitted for the above purposes, and therefore we need not address defendants argument that the evidence was improper Evidence Code section 1101, subdivision (a) evidence or that the trial court failed to give a limiting instruction as to the evidence.
Even if we were to consider that the evidence was improperly admitted to show that defendant had a propensity to commit the crimes as argued by defendant, we would conclude that the error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 836.) As fully explicated, ante, in parts III, IV, and V, the evidence that defendant aided and abetted Mendoza in the torture murder and either aided and abetted or perpetrated the fatal assault on Michael was overwhelming, and the admission of his acts of discipline could not have affected the verdict.
VII
INSTRUCTIONAL ERROR ON THE BURDEN OF PROOF OF GREATER AND LESSER OFFFENSES
Defendant claims that the trial court erred by giving the jury a modified version of Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3517. He claims that modification excluded the requirement set forth in People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry) that the jury be instructed that, if they have a reasonable doubt as to whether the defendant committed the greater or lesser offense, they are required to find the defendant guilty of the lesser offense.
The jury was instructed on the lesser offenses of assault on a child by force likely to produce great bodily injury within the meaning of section 273a, subdivision (a) and simple assault within the meaning of section 240, for the charge of fatal assault on a child under the age of eight in count 2. It was also instructed on second degree murder for count 1. (CALCRIM No. 403.) The jury was further instructed with a modified version of CALCRIM No. 3517 as follows: "You will be given four verdict forms with respect to count 2 in this case. Only one of the possible verdict forms may be signed and return [sic] by you on that count. Thus, you are to determine whether the defendant is guilty or not guilty of the crime charged in the information, or of any lesser crime. In doing that, you may choose the manner and order in which you evaluate each crime, and consider the evidence pertaining to it. You may find it helpful to consider and reach a tentative conclusion on all of the charges and lesser crimes before you reach you final verdict. [¶] However, you must remember that the Court cannot accept a guilty verdict on a lesser crime unless all 12 jurors have found the defendant not guilty of the charged or greater crime. If you all agree that the People have not proved that the defendant committed any of the charged or lesser offenses, you must complete the appropriate verdict form stating hes not guilty. You may not find the defendant guilty of both the greater crime and lesser offense." The modification of CALCRIM No. 3517 excluded all references to the fact that the jury had to find defendant guilty of the greater offense beyond a reasonable doubt.
In Dewberry, the court held, "[W]hen the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense." (Dewberry, supra, 51 Cal.2d at p. 555.) The trial court must give such an instruction even in the absence of a request. (People v. Crone (1997) 54 Cal.App.4th 71, 76.)
Based on the totality of the instructions, it is clear the trial court complied with the directives in Dewberry. As noted in People v. Musselwhite (1998) 17 Cal.4th 1216, 1263, when a trial court instructs the jury similarly to that directed in Dewberry, there is no error. Here, the jury was instructed with CALCRIM No. 220, that in order to find defendant guilty, the People had to prove defendants guilt beyond a reasonable doubt. They were also instructed with CALCRIM No. 3517, that they were to find the lesser offense if they were not convinced that the greater offense had been committed. They were also instructed as to the count 1, the torture murder, that "[t]he People have the burden of proof beyond a reasonable doubt that the killing was a first degree murder rather than a lesser crime. If you have a reasonable doubt on whether the murder was on [sic] the fi[r]st degree . . . then you must find the degree of the crime to be murder of the second degree."
Based on the instructions as a whole, the jury was advised it had to find defendant guilty beyond a reasonable doubt. Hence, the language of CALCRIM No. 3517 combined with CALCRIM No. 220 advised the jurors to find defendant guilty of the greater offense beyond a reasonable doubt, and if it failed to so find, it must find the lesser offense true beyond a reasonable doubt. This is exactly what Dewberry requires.
Even if we were to conclude the jury was not properly instructed, the error is evaluated under the Watson harmless error standard. (People v. Crone, supra, 54 Cal.App.4th at p. 78; Dewberry, supra, 51 Cal.2d at p. 558.) It is inconceivable that, having found that defendant aided and abetted Mendoza in the torture murder of Michael, the jury would find, based on the same evidence, that defendant only aided and abetted felony child abuse or simple assault. Any conceivable instructional error was therefore harmless.
VIII
LESSER INCLUDED INSTRUCTIONS ON INVOLUNTARY MANSLAUGHTER ON THE TORTURE MURDER
Defendant contends that the trial court erred by failing to instruct on the lesser included offenses of involuntary manslaughter for first degree murder. He claims that the jury should have been instructed on the three theories of involuntary misdemeanor manslaughter, involuntary manslaughter based on the commission of a lawful act in an unlawful manner or without due caution or circumspection, and involuntary manslaughter based on the commission of a noninherently dangerous felony without due caution and circumspection.
Initially, defendant complains that the second degree murder instruction on the theory that defendant aided and abetted the target offense of child abuse homicide (§ 273ab) and child abuse likely to produce great bodily harm (§ 273a, subd. (a)) for the murder count was erroneous because the target offense (§ 273ab) was a greater offense (because the sentence for the conviction was 25 years to life) than the natural and probable consequences offense, i.e., second degree murder (which requires a 15-years-to-life sentence). Defendant provides no authority for his claim that a target offense cannot carry a greater punishment than the resulting offense, and we need not decide the issue here. Furthermore, the jury was instructed it could find the target offense was a violation of section 273a, subd. (a) (which carries a maximum sentence of six years), which defendant does not contend was erroneous. The jury found defendant guilty of violating section 273ab in count 2 but rejected that he committed second degree murder in count 1. As such, it necessarily concluded that defendant aided and abetted the first degree torture murder, not any lesser offense of fatal child abuse. What defendant fails to recognize is that even if the second degree murder instruction was erroneous, he would have benefitted from it had the jury so found him only guilty of second degree murder.
Defendant faults the People with not responding to this claim in their respondents brief. However, it is not entirely clear that defendant was raising this as an issue, as it appeared under the heading that the trial court failed to instruct the jury with lesser included offenses, not that there was error in the instruction given.
We also reject that defendant was entitled to involuntary manslaughter instructions.
A trial court must instruct on lesser included offenses supported by the evidence "`regardless of the theories of the case proffered by the parties. [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 159.) Moreover, "the duty to instruct sua sponte on lesser included offenses is not satisfied by instructing on only one theory of an offense if other theories are supported by the evidence." (People v. Lee (1999) 20 Cal.4th 47, 61 (plur. opn. of Baxter, J.) "`The trial court must instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 717.)
Misdemeanor homicide, or involuntary manslaughter, is a killing "in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).) A person may be guilty of involuntary manslaughter if he acted with criminal negligence. (People v. Cox (2000) 23 Cal.4th 665, 671.) "`Criminal negligence "means that the defendants conduct must amount to a reckless, gross or culpable departure from the ordinary standard of due care; it must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life." [Citation.] [Citation.]" (People v. Hansen (1997) 59 Cal.App.4th 473, 478-479, quoting People v. Odom (1991) 226 Cal.App.3d 1028, 1032.)
Defendant claims that the evidence was insufficient to show that either he or Mendoza intended to kill Michael. He claims the jury should have been instructed on involuntary manslaughter under a theory that defendant either committed, or aided and abetted Mendoza in the crime of, misdemeanor battery (§ 242) or misdemeanor child abuse (§ 273a, subd. (b)), a theory of criminal negligence in the performance of a lawful act, and negligence in the commission of a noninherently dangerous felony.
The People proceeded on the theory that defendant aided and abetted Mendoza in torture murder, which required a finding that Mendoza willfully, deliberately, and with premeditation inflicted extreme and prolonged pain on Michael. (See CALCRIM No. 521) The jury was not required to find that either defendant or Mendoza intended to kill Michael.
The facts of the instant case simply do not support that the acts committed by defendant and Mendoza amounted only to misdemeanor battery or child abuse or a noninherently dangerous felony. The coroner testified that Michael died as a result of the injuries to the liver, kidneys, and diaphragm. The coroner indicated that the injuries would have been caused by a hard kick, blow with a fist, or stomping on Michael. This type of force cannot be considered to be a misdemeanor battery or child abuse, or a noninherently dangerous felony; it only supported the torture-murder finding.
Furthermore, defendants claim that an involuntary manslaughter instruction was required since he and Mendoza were engaged in the commission of the lawful, albeit misguided, act of disciplining Michael is without merit. No reasonable juror could conclude that forcing a child to eat his own feces and drink alcohol, dropping him on his head until a cracking sound was heard, stomping and kicking him in the chest, cutting his foot with a razor blade, and leaving him alone after being severely beaten constituted lawful acts performed with due care or circumspection. The trial court did not error by failing to give involuntary manslaughter instructions.
Even if the trial court erred by failing to give instructions on involuntary manslaughter, or by giving an erroneous second degree murder instruction, such error was harmless. (See People v. Lasko (2000) 23 Cal.4th 101, 111.) When a trial court violates state law by failing to instruct on a lesser included offense in a noncapital case, a conviction of the charged offense may be reversed "`only if, "after examination of the entire cause, including the evidence" [citation], it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred [citation]. [Citation.]" (Ibid.) Here, it is not reasonably probable that defendant would have been convicted of second degree murder or involuntary manslaughter had lesser included offense instructions been given.
The jury was instructed on the lesser offenses of simple assault and child abuse likely to produce great bodily harm on count 2 but rejected these lesser offenses. The jury necessarily concluded as to count 2 that defendant was guilty of nothing less than a violation of section 273ab, fatal child abuse. Accordingly, it would not have concluded that he was guilty of a misdemeanor or noninherently dangerous felony for count 1 even had it been instructed with lesser offense instructions. As such, any conceivable error was harmless.
IX
LESSER INCLUDED INSTRUCTIONS ON FATAL CHILD ABUSE
Defendant claims that the trial court erred by failing to instruct the jury with the lesser included offense instructions for section 273ab of assault with force likely to produce great bodily injury.
Section 273ab requires assault committed by means of force that to a reasonable person would be likely to produce great bodily injury resulting in the death of the child. It has been determined that assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)) is a lesser included offense of fatal assault resulting in a childs death. (People v. Basuta (2001) 94 Cal.App.4th 370, 391-392.)
Defendant asserts the conviction of his offense (§ 273ab) was based on injuries sustained by Michael in his abdominal area. Pamela testified that Michael complained of a stomach ache prior to her leaving for work on August 27, 2005. Defendant contends that Mendozas actions of stomping and kicking Michael in the stomach aggravated the injury but did not cause Michaels death.
There was no testimony presented that Michael had a preexisting injury to his abdomen that would cause his death. The coroner testified that Michael died as a result of recent injuries caused by the application of significant force to his chest. Michaels pancreas and kidneys were hemorrhaging, caused by kicking or stomping recently inflicted. The evidence simply does not support this argument.
Even if we were to conclude the instruction should have been given, "[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041,1085-1086.) The jury was instructed with the functional equivalent of section 245, subdivision (a)(1). (§ 273a, subd. (a).) Because the jury rejected the other possible assault offense, it obviously concluded that defendant aided in the injuries that resulted in Michaels death. Moreover, by finding defendant guilty of aiding and abetting torture murder, it is inconceivable it would find that he committed assault causing great bodily injury that did not result in Michaels death. It is not reasonably probably that defendant would have obtained a more favorable result if the jury had been instructed with the lesser offense of assault with force likely to cause great bodily injury.
X
ADMISSION OF DETECTIVE MASSONS PRETRIAL STATEMENTS VIOLATED DEFENDANTS RIGHTS OF CONFRONTATION
Defendant claims that Detective Pluimers testimony that involved questions posed to defendant by Detective Masson, who did not testify at trial, violated his federal constitutional rights of cross-examination under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford).
A. Background
Detective Pluimer interviewed defendant on September 14, 2005, along with another detective, Detective Masson. Detective Masson did not testify at trial. During Detective Pluimers testimony, the prosecutor reviewed the interview transcript with Detective Pluimer and asked about defendants involvement in hurting Michael. The prosecutor noted, while looking at the transcript of the interview, that Detective Masson asked defendant if he ever hit Michael. Defendant denied in response that he ever hit Michael, and Detective Masson responded, "[B]ullshit." Detective Masson told defendant that he needed to be honest with the officers. Detective Pluimer also indicated that Detective Masson "[s]aid that he needed to be honest with him, or with us; that he knows that theres more to the story than what hes told us; and he needs to be honest and tell us what kind of injuries hes inflicted or what kind of discipline hes done to Mikey." Detective Masson told defendant that they knew he had inflicted injuries on Michael. Detective Masson noted that defendants eyes were "welling up," and he was shaking his head.
Defendant then said that he was going to tell the truth. He admitted he had spanked Michael on the hand and on his bottom. Defendant was instructed to hit Detective Massons hand as an example. After he did so, Detective Masson accused defendant of minimizing the force. Defendant admitted he probably hit Michael harder and did not know his own strength.
The prosecutor also brought forth Detective Massons statement that he didnt buy defendants "bullshit." In addition, defendant said that he did report the incidents to the police because he did not want them to think he was also involved. The prosecutor also inquired about a statement by defendant that he hit Michael with a force of about a "three" on a scale of one to 10. Detective Masson responded that it was probably more than a three but did not clarify the meaning of that statement. Defendant admitted he could not control his own strength.
B. Analysis
The People initially contend that defendant has waived his claim by failing to object to the testimony below. Defendant does not dispute that counsel failed to object. Defendant must raise issues in the trial court in order to raise them on appeal, even federal constitutional issues. (People v. Smithey, supra, 20 Cal.4th at p. 995.) As such, defendant has waived this claim.
We will address defendants ineffective assistance of trial counsel claim post, in part XIII.
In Crawford, the United States Supreme Court held that the confrontation clause prohibits the use of "testimonial" statements made out of court to prove the guilt of an accused unless he is given the opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at p. 57.) The Court in Crawford declined to give a comprehensive definition of "testimonial" but indicated that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with the closest kinship to the abuses at which the Confrontation Clause was directed." (Id. at p. 68.)
The confrontation clause, however, "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Crawford, supra, 541 U.S. at p. 59, fn. 9.)
The questions posed by Detective Masson were not admitted for their truth. Rather, they were admitted to give meaning to the responses by defendant. The interview would have had no meaning had Detective Massons questions been excluded. Detective Massons questions gave context to the reason that defendant finally decided to tell the officers the truth. Also, defendants statements regarding the force he used to hit Michael would have no meaning without Detective Massons questions. The prosecution never argued that Detective Massons statements were true or showed defendants guilt. Detective Massons questions were admissible for the nonhearsay purpose of placing defendants statements into context. (People v. Turner (1994) 8 Cal.4th 137, 190, abrogated on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
Since Detective Massons questions were not offered for the truth of the matter asserted, the confrontation clause did not bar their use. (Crawford, supra, 541 U.S. at p. 59, fn. 9.) Similarly, a statement is hearsay under California law only if it is offered for the truth of the matter asserted. (Evid. Code, § 1200.) The admission of the statement did not violate either defendants federal or state constitutional rights.
Defendant further claims that if we find that Detective Massons questions were properly admitted for a nonhearsay purpose, the trial court erred by failing to give a limiting instruction.
Evidence Code section 355 provides, "When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." Defendant concedes that no request for the limiting instruction was made. This section expressly requires a request for a limiting instruction, and therefore, a trial court "has no sua sponte duty to give one." (People v. Hernandez (2004) 33 Cal.4th 1040, 1051; see also People v. Jennings (2000) 81 Cal.App.4th 1301, 1316.) Hence, defendant cannot now complain that a limiting instruction should have been given.
We will address defendants claim that the failure to request a limiting instruction constituted ineffective assistance of counsel, post, in part XIII.
Even if we were to conclude that the Detective Massons extrajudicial questions to defendant violated his rights under the confrontation clause, such error is subject to the harmless error analysis of Chapman. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140 [119 S.Ct. 1887, 144 L.Ed.2d 117]; People v. Song (2004) 124 Cal.App.4th 973, 982.)
Here, as set forth in full detail in parts III, IV, and V, ante, the evidence of defendants guilt was overwhelming. These isolated statements could not have affected the verdict, taking into account all of the testimony presented by the prosecution that defendant aided and abetted the torture murder and fatal assault on Michael. Any conceivable error was harmless.
XI
DETECTIVE PLUIMERS TESTIMONY THAT DEFENDANT LIED IN PRETRIAL POLICE INTERVIEWS
Defendant claims that the trial court erred by allowing Detective Pluimers "opinion" on defendants credibility.
A. Background
Detective Pluimer was asked by the prosecutor whether defendant ever lied during pretrial interviews about his own and Mendozas involvement in the death of Michael. Detective Pluimer responded that defendant had lied. There was no objection by defendant. Detective Pluimer also testified as to the different versions of the story that defendant gave about what happened on that night. On August 28, 2005, defendant told Detective Pluimer that Mendoza had not hit Michael, and he himself had done nothing. Defendant blamed Michaels injuries on his being knocked back by one of the dogs. Defendant insisted to Detective Pluimer that this was the truth and that he "doesnt lie." Later in the interview, defendant indicated that Mendoza had spanked Michael.
On cross-examination, defense counsel asked Detective Pluimer, "So, in fact, if we put all three interviews together in sequence, [defendant] started out with an absolute denial, he didnt know anything about anything, correct?" Detective Pluimer responded, "Yes, he lied on several occasions." Defense counsel objected, "Your honor, may I ask that the witness please answer the question, and Court admonish the witness." The trial court ruled, "The objections overruled. Try to answer the question directly. Dont argue with the attorney or allow them to draw you into an argument."
On rebuttal, the prosecutor again asked Detective Pluimer regarding defendant and Mendoza both starting their interviews by denying involvement and then admitting some involvement.
B. Analysis
Defendant contends, relying upon People v. Melton (1988) 44 Cal.3d 713, 744, that Detective Pluimers statements were an inadmissible opinion about defendants credibility as a witness. In Melton, the principal witness for the prosecution, named Boyd, testified that he and defendant, who became lovers in prison, had committed to a plan to swindle affluent gay men once released. After they were released from prison, they met a man who was subsequently murdered. (Melton, at pp. 725-726.) Melton was charged with the murder. (Id. at p. 275.) A defense investigator testified that Boyd had told him that another man besides Melton had committed the murder. On cross-examination, the prosecutor was allowed to pursue a line of inquiry with the investigator that he made no effort to find this other man in an effort to demonstrate the investigator did not believe Boyd. (Id. at pp. 742-743.) The Supreme Court found that the "[l]ay opinion about the veracity of particular statements by another is inadmissible on that issue." (Id. at p. 744.)
The California Supreme Court has declined to discuss whether Melton survived Proposition 8, and therefore we must consider it here. (See People v. Padilla (1995) 11 Cal.4th 891, 946-947, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Unlike Melton, Detective Pluimers statements cannot reasonably interpreted to be an attempt to attack defendants credibility. These statements were not admitted as substantive evidence. The point of the evidence was to show the progression of the interviews. The questions did not address specific statements or evidence, but rather addressed the different versions that defendant gave to the police.
Even if we were to conclude the evidence was erroneously admitted, no more favorable result would have occurred had it been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.) Here, all of the statements made by defendant were before the jury. They were well aware that defendant initially denied that Mendoza had ever touched Michael and was very good to Michael. Defendant then abruptly changed his statement, outlining the horrific acts committed by Mendoza against Michael. Furthermore, defendant first denied that he ever touched Michael. In subsequent interviews, he admitted to slapping and tripping him. The jury was fully instructed on evaluating witness credibility, including determining whether a witness has lied or changed his or her story. Further, the evidence of defendants guilt was overwhelming. (See parts III, IV, and V, ante.) The admission of Detective Pluimers statements could not have affected the verdict.
XII
PROSECUTORIAL MISCONDUCT
Defendant claims that the prosecutor committed misconduct during both questioning and closing argument by eliciting inadmissible evidence.
A. Additional Background
The prosecution sought to have all of the pretrial statements made by Mendoza excluded from defendants trial. Defendant sought to admit those statements by Mendoza that implicated Mendoza himself to support the defense that defendant only went along with Mendoza because he was afraid. The trial court allowed only those statements that were Mendozas own declarations against interest.
On cross-examination of Detective Pluimer regarding Mendozas statements that had been introduced by the defense on direct (as set forth, ante, part II), the prosecutor asked whether these statements were in regard only to what Mendoza did to Michael. The prosecutor asked if there were parallels between how Mendoza and defendant progressed in their interviews. An objection by defendant was overruled. Detective Pluimer then testified that they both first denied any abuse but then eventually admitted to some disciplining. On redirect, Detective Pluimer, in response to defense counsels questions, stated that Mendoza also talked in his interview about the "activities" by Pamela and defendant.
On recross-examination, the prosecutor asked, "Yes-or-no question, these questions and answers that were introduced, do they relate specifically to the conduct of Alex Mendoza?" and Detective Pluimer responded, "Yes."
During the prosecutors closing argument, he argued to the jury that defendant never told "the whole truth. . . . [H]e never told you the truth, and lied repeatedly in those statements. But look at what you were able to find, facts out of those statements, glimpses into the state of mind of this particular defendant. Little things. Misstatements."
Later, the prosecutor stated, "Youre not going to get the whole truth. Youre not going to get the whole story in a case like this, because theres two people inside of there and a dead body, and you have his statement to consider. And nobody is going to tell the truth or the complete truth in a situation like that. Nobody. [¶] Even Mendoza wouldnt say that he did everything, or did all of that. And the one thing about Mendozas statement, it only pertained to what Mendoza said Mendoza did. Remember that. It was a very, very specific question that was asked. Mendoza said what Mendoza did."
In rebuttal argument, the prosecutor said, "The Mendoza statements. There was no evidence brought out, whatsoever, what Alex Mendoza said about anyone else. All Alex Mendoza[s] statement was was what Alex Mendoza did. It was very specific questions were asked and answered and not contradicted in evidence. What Mendoza said, Mendoza did."
B. Analysis
Defendant interprets the prosecutors questioning of Detective Pluimer and his argument as implying facts known to him and not in evidence that defendant knew more than he told the police and that Mendoza had implicated defendant. We disagree.
A prosecutors misconduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Hill, supra, 17 Cal.4th at p. 819.) Misconduct by a prosecutor that does not render a criminal trial fundamentally unfair is error under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.)
In order for a reviewing court to review a claim of prosecutorial misconduct, a defendant must make an objection and request for admonishment at trial. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) Such objection must be timely made at trial and a request for an admonition must be required; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (People v. Bradford (1997) 15 Cal.4th 1229, 1333; People v. Barnett (1998) 17 Cal.4th 1044, 1133.) It is presumed that a jury will follow the courts instructions, including an admonition to disregard improper comments. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17)
We conclude that defendant has waived his claim. Although defendant made a general objection to the questioning regarding parallels between defendants and Mendozas statements, he did not state it was based on prosecutorial misconduct and never asked that the trial court admonish the jury to disregard the testimony. Further, defendant made no objections during closing argument. As such, these claims have been waived.
Even if we were to review defendants claim, it lacks merit. "It is, of course, misconduct for a prosecutor to `intentionally elicit inadmissible testimony." (People v. Bonin (1988) 46 Cal.3d 659, 689, overruled on another point in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1; see also People v. Bell (1989) 49 Cal.3d 502, 532 ["deliberate attempt to put inadmissible and prejudicial evidence before the jury" was misconduct].) We do not agree with defendant that the prosecutors statements implied to the jury that Mendoza implicated him. The court had indicated that the only statements that could be admitted were those in which Mendoza implicated himself. The prosecutor clarified to the jury that anything Mendoza said pertained to him only. This is not misconduct.
Further, the prosecutors references to defendant not telling the whole story and never telling the truth were not improper argument. A prosecutor does not commit misconduct by calling the defendant a liar if it is based on inferences from the evidence. (See People v. Edelbacher (1989) 47 Cal.3d 983, 1030.) Defendant repeatedly changed his story during pretrial interviews. The prosecutor had significant fodder with which to characterize defendant as a liar.
Finally, even if we could somehow conclude that the prosecutors actions constituted misconduct because they implied that defendant or Mendoza told the police more than what was testified to in court, we would conclude it was harmless. (Chapman v. California, supra, 386 U.S. at p. 24 [beyond a reasonable doubt standard is applicable where prosecutorial misconduct infringes upon a defendants constitutional rights]; see also People v. Hall (2000) 82 Cal.App.4th 813, 817.) As set forth in parts III, IV, and V, ante, the evidence of defendants guilt was overwhelming. We conclude that any conceivable misconduct was harmless.
XIII
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that if we find he has waived any of his arguments raised in arguments V (introduction of bad acts), X (Detective Pluimers opinion on defendants credibility) or XI (prosecutorial misconduct) by failing to first raise them in the trial court, then he received ineffective assistance of counsel. In his reply brief, defendant also claims he received ineffective assistance due to counsels failure to object to the admission of Detective Massons questioning and failing to request a limiting instruction. Although we normally would not address a claim raised for the first time in the reply brief, since we find it is easily dismissed, we will address it here.
In order to establish a claim of ineffective assistance of counsel, a defendant must "demonstrate (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced the defendant, i.e., there is a `reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result. [Citations.] A `reasonable probability is one that is enough to undermine confidence in the outcome. [Citations.]" (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) In evaluating counsels actions at trial, "[a] court must indulge a strong presumption that counsels acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]" (Dennis, at p. 541.)
Since we have concluded, ante, that defendant was not prejudiced by the admission of his prior disciplining of Michael and Detective Pluimers statements that defendant lied in his interviews, and found no prejudicial prosecutorial misconduct, defendant cannot show that he received ineffective assistance counsel, as there was no prejudice.
As to the failure to object to the introduction of Detective Massons statements made during the pretrial interview of defendant and the failure to request a limiting instruction, there are tactical reasons for defense counsel not objecting or requesting the instruction. Defendant himself used statements made by Detective Masson to support his defense. Defendant brought out statements by Detective Masson telling defendant that Mendoza was a "monster," and he did not want to compare defendant to him. Certainly, it is conceivable that defense counsel would want the jury to consider those statements for their truth, as he sought to paint Mendoza as a monster who forced defendant to be involved. Also, he would not want to object to their admission if he wanted to use the statements himself. Furthermore, defendant cannot show prejudice, as we have concluded that even if the statements were erroneously admitted, it would have not affected the verdict.
We reject that defendant received ineffective assistance of counsel.
XIV
DENIAL OF CONTINUANCE TO FILE NEW TRIAL MOTION
Defendant contends that the trial court erred by denying his request for a continuance to file a new trial motion and in denying his request for county-paid transcripts.
A. Additional Factual Background
On March 7, 2007, the jury returned its verdict. Sentencing was set for April 13, 2007, with a waiver by defendant, who was entitled to be sentenced within 28 days.
On April 13, 2007, the matter was heard. Trial counsel, John Aquilina, was present with defendant. New counsel, Fay Arfa, was present and advised the trial court she had been retained the night before to file a new trial motion and for sentencing. She submitted a motion for continuance pursuant to section 1050 in order to have the trial transcripts prepared, which was not filed two days prior to the hearing as required by section 1050. No substitution of counsel had been filed, and the trial court denied the oral motion to substitute counsel.
Defendant stated on the record that he wanted Arfa to replace Aquilina. The trial court then inquired as to the length of the requested continuance. Arfa responded it would depend on how long it would take for the reporter to prepare the transcripts and for her to review them in order to prepare a motion for new trial, but she gave no grounds for new trial motion. Arfa then advised the trial court that she had an ex parte motion for the transcripts to be paid at county expense. Without looking at the motion, the trial court denied the motion on the ground that Arfa had not properly substituted in as counsel.
Arfa responded that she had a right to file the new trial motion and that county expense should not be a consideration when her client was facing a life sentence. Arfa asked that the transcripts be prepared, and they would try to pay for them.
The trial court again denied the substitution of counsel request but advised defendant he had a right to file motion for new trial. The trial court, however, did continue the sentencing hearing in order for letters from family members and others to be received on defendants behalf. Arfa was advised she was welcome to resubmit her request to substitute in as counsel, and if she wanted to file a motion for new trial, she would need to provide additional information as to the grounds she suspected would support the motion. Arfa was also advised that the reporter could prepare the transcript within 30 days and the cost. The sentencing was continued to May 4, 2007.
On May 4, 2007, Arfa was substituted in as counsel for defendant. It was agreed that defendants files would be transferred to her. Arfas ex parte motion for the county to pay for the transcripts was denied. Arfa also filed a motion for continuance. She complained that she had not yet received the transcripts (although she assured the trial court she was making efforts to do so) and therefore had no idea what had occurred at trial. The trial court agreed with Arfa that a motion for new trial could be made by defendant but indicated that it was not at counsels convenience. When the trial court set the hearing on the motion for new trial on June 1, 2007, with moving papers to be filed by May 22, Arfa complained that the trial court had put her in an "impossible position." The trial court agreed with putting the sentencing and new trial motion over to June 8, 2007, with no further continuances being granted.
On June 8, 2007, another attorney appeared for Arfa and explained to the court that Arfa had been in a car accident four days before and was experiencing pain. The trial court had received a motion to continue. The trial court noted that the declaration in support of the motion to continue was dated June 2, 2007, that it was "faxed" to the court on June 6, 2007, and that it contained no mention of an accident. The trial court continued sentencing to June 15.
Arfa filed another continuance motion. At the hearing on June 15, Arfa lodged a petition for review from this courts denial of a writ of mandate. Arfa advised the trial court she was not ready to proceed to sentencing. She asserted that she was trying to copy the trial transcript from Mendozas counsel. The trial court had been advised by the court reporter that no one had requested copies of the transcript, so it did not exist. Arfa claimed that there would not be "closure" to the victims family until Mendozas trial was complete, and his trial was still pending. Arfa wanted to delay sentencing until after Mendozas trial. Arfa had been unable to obtain the files from Aquilina for various reasons.
On May 24, 2007, defendant filed a petition for writ of mandate in this court asking us to order the trial court to give him a free transcript so that he could prepare a motion for new trial, essentially the same issue raised on appeal. We denied the writ of mandate in a summary opinion. We take judicial notice of the file on our own motion.
The People responded that it and the victims family opposed any continuance. Arfa had made no attempt to obtain transcripts. She had been given the opportunity to file a new trial motion and failed to do so; no constitutional error had occurred.
The trial court denied the motion to continue and found no legal cause why judgment could not be pronounced. In response to questions about defendants appropriate sentence, Arfa responded that defendant was wrongfully convicted and that the trial court should grant a motion for new trial.
B. Denial of County-Paid Transcripts
As noted, this court denied defendants petition for writ of mandate on the same issue. We agree with the decision, but since we issued a summary denial, we will provide a reasoned opinion.
"[S]ince a motion for a new trial is an integral part of the trial itself, a full reporters transcript must be furnished to all defendants, rich or poor, whenever necessary for effective representation by counsel at that important stage of the proceeding. And, because there are no mechanical tests for deciding when the denial of a full reporters transcript for argument on a motion for a new trial is so arbitrary as to violate due process or to constitute a denial of effective representation, each case must be considered on its own peculiar facts and circumstances." (People v. Lopez (1969) 1 Cal.App.3d 78, 83.) As explained in People v. Bizieff (1991) 226 Cal.App.3d 1689, 1702, "the trial court may properly deny a request for free transcripts to prepare a motion for new trial where the indigent defendant fails to show a particularized need for transcripts." (See also People v. Markley (2006) 138 Cal.App.4th 230, 241.) A trial courts concern about delay is a wholly legitimate basis to deny a request for a full transcript, especially absent a showing of particularized need. (Bizieff, at p. 1704.)
In Lopez, the appellate court concluded that the trial court did not abuse its discretion in denying the defendants request for trial transcripts when there was no showing that the trial attorney was unavailable to consult with new counsel and no suggestion that new counsel intended to assert trial counsels ineffectiveness. (People v. Lopez, supra, 1 Cal.App.3d at pp. 83-84.)
Here, defendant made no showing of particularized need for the transcripts. Arfa could have consulted with Aquilina as to any potential trial errors. Aquilina obviously could not advise on any ineffective assistance of counsel claims, but Arfa never claimed that she intended to raise such issues. Regardless, Arfa could also inquire of defendant who sat at trial as to any trial counsel deficiencies. Arfa made no effort to show a particularized need for the transcripts. As such, the trial court did not abuse its discretion by denying that request.
C. Denial of Continuance
Continuances shall be granted only upon a showing of good cause. (People v. Froehlig (1991) 1 Cal.App.4th 260, 265; § 1050, subd. (e).) "`The grant or denial of a motion for a continuance rests within the sound discretion of the trial judge [citations]." (Froehlig, at p. 265.) "The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.]" (People v. Beames (2007) 40 Cal.4th 907, 920.) The denial of a continuance may be so arbitrary as to deny due process. (See People v. Frye (1998) 18 Cal.4th 894, 1013.) "However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. [Citation.]" (Beames, at p. 921.) In establishing good cause for a continuance, "[a]n important factor for a trial court to consider is whether a continuance would be useful. [Citation.] . . . [T]o demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time." (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
Here, the trial court granted the three prior continuances to allow Arfa time to obtain the necessary documents to file a new trial motion. Further, based on the comments made by the trial court at the April 13 hearing, had she shown that she was beginning the process of writing the motion for new trial or made a more vigorous attempt to obtain the files, the trial court likely would have given her more time.
Moreover, Arfa never provided any grounds for a new trial motion. Although she did not have the transcripts and did not participate in trial, she could have consulted with defendant and Aquilina as to any potential irregularities in the trial. If she could have given the trial court anything to show at least one issue that could be raised in a new trial motion, the trial court may have granted her request to continue the sentencing. Arfa provided nothing but excuses to the trial court as to why she could not get the files from Aquilina and why she did not obtain the transcripts.
Further, defendant has completely failed to show any prejudice from the denial of the continuance. Defendant has never stated what issues would have been raised in a new trial motion. Defendant has now reviewed the transcript and has raised issues on appeal. At no time has defendant claimed what would have been raised in a new trial motion that was not presented here. We have concluded, ante, that no prejudicial trial errors occurred; therefore, based on the issues raised on appeal, there was no ground for granting a new trial. No further errors have been brought forth by defendant. There simply has been no showing how the results would have been different had a new trial motion been filed by defendant.
Although at oral argument counsel referred to evidence she would have presented in a new trial motion, she made no such showing in the trial court.
XV
CUMULATIVE ERROR
Defendant asserts that reversal is required due to cumulative errors, which deprived him of a fair trial. We do not agree, as we have found that no trial errors occurred, or if error occurred, it was not prejudicial. Therefore, we reject defendants argument that cumulative trial errors deprived him of a fair trial or warrants reversal. Defendant is entitled to a fair trial, not a perfect one. (People v. Houston (2005) 130 Cal.App.4th 279, 320.)
XVI
CONDUCT CREDITS
The People contend the abstract of judgment should be modified to reflect the oral pronouncement of sentence that defendant should receive no conduct credits pursuant to section 2933.2.
At the time of sentencing, the trial court noted that pursuant to section 2933.2 defendant was not entitled to any conduct credits. The minute order for the date of sentencing and the abstract of judgment state that the trial court awarded conduct credits pursuant to section 2933.1.
Oral pronouncement of judgment is controlling. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) "Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error." (People v. Mesa (1975) 14 Cal.3d 466, 471, superseded by statute on other grounds in People v. Turner (1998) 67 Cal.App.4th 1258, 1268.) "Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Defendant does not dispute that the trial court could deny conduct credits. As such, we conclude the minute order and abstract of judgment should be modified to eliminate any conduct credits.
XVII
DISPOSITION
The court is directed to modify the court minutes for the June 15, 2007, hearing, and the abstract of judgment, to delete the conduct credits. As so modified, the judgment is affirmed. The court is directed to prepare an amended abstract of judgment in accordance with this disposition and to deliver it to the Department of Corrections and Rehabilitation.
We concur:
HOLLENHORST, Acting P.J.
McKINSTER, J.