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People v. Cedillo

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jun 8, 2012
E052598 (Cal. Ct. App. Jun. 8, 2012)

Opinion

E052598

06-08-2012

THE PEOPLE, Plaintiff and Respondent, v. ANA ALICIA CEDILLO, Defendant and Appellant.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. INF060125)


OPINION

APPEAL from the Superior Court of Riverside County. Randall Donald White, Judge. Affirmed.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

After a jury found defendant and appellant, Ana Alicia Cedillo (hereafter defendant), guilty of murder in connection with the death of her 18-month-old son, Oscar, Jr. (count 1), the trial court sentenced her to serve an indeterminate term of 15 years to life in state prison. In this appeal, defendant contends (1) the trial court should have granted her Wheeler motion because the prosecutor exercised peremptory challenges to excuse jurors based on presumed group bias resulting from the prospective juror's ethnicity; (2) the evidence is insufficient to show implied malice and therefore does not support the jury's verdict finding defendant guilty of second degree murder; (3) the trial court did not properly instruct the jury on involuntary manslaughter; and (4) the trial court abused its discretion by allowing the prosecutor to question defendant on cross-examination about prior contacts with child protective services.

The jury also found defendant guilty of two other charges with respect to Oscar—attempted assault on a child under the age of eight with force likely to produce great bodily injury resulting in death in violation of Penal Code sections 664/273ab, as a lesser included offense of the charged crime (count 2), and felony child abuse or neglect in violation of Penal Code section 273a, subdivision (a) (count 3). With respect to another of defendant's children, the jury found defendant guilty of misdemeanor child abuse, as a lesser included offense of the charged crime of child abuse or neglect in violation of Penal Code section 273a, subdivision (a) (count 4). Before trial, the district attorney dismissed four other counts of felony child abuse or neglect alleged with respect to defendant's other children.

People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).

We agree with defendant's last two claims but conclude the error was not prejudicial. Therefore, we will affirm the judgment.

SUMMARY OF FACTS

We limit the facts to those pertinent to the charges involving Oscar, Jr., because defendant does not challenge her conviction on count 4 in which one of defendant's other children is the victim.

In the early morning on September 28, 2007, defendant found her 18-month-old son, Oscar Jr. (baby Oscar, to distinguish him from his father Oscar, Sr.), lying on the floor next to the bed where defendant had put him the previous evening to sleep with two of his sisters. Defendant noticed something brownish on baby Oscar's face, so she picked him up and washed his face in order to wake him up. When baby Oscar did not wake up, defendant called her mother who told defendant to call the paramedics. Fifteen minutes elapsed between the time defendant found baby Oscar on the floor in the bedroom and the time she called the paramedics.

Baby Oscar was the youngest of defendant's six children.

When the paramedics arrived, defendant was waiting outside, holding baby Oscar. The paramedics took the infant to a local hospital emergency room where he was pronounced dead on arrival. Dr. Mark McCormick, the forensic pathologist who conducted the autopsy, determined baby Oscar died as the result of "peritonitis due to ruptured duodenum, due to blunt impact to the abdomen." Dr. McCormick expressed the opinion that to rupture baby Oscar's duodenum, the impact to the infant's abdomen had to have been severe, such as that resulting from a significant blow, stomp or kick that most likely was administered by an adult. In Dr. McCormick's opinion, baby Oscar suffered the blunt force trauma between mere hours and a couple days before his death. Dr. McCormick also expressed the opinion that as a result of the ruptured intestine baby Oscar would have been in constant pain, and the pain would have been significant, severe. In addition, he would expect symptoms such as loss of appetite, fever, diarrhea, nausea, and vomiting in the hours or days leading up to the infant's death.

According to Dr. McCormick, baby Oscar was in the fifth percentile in weight and height for his age, most likely the result of poor nutrition. He also had two rib fractures that were in the process of healing, which suggested they were broken 10 to 20 days prior to baby Oscar's death. In addition, Dr. McCormick noted bruises on the infant's torso and head, some of which had occurred within hours of baby Oscar's death, and others of which reflected older injuries.

Various witnesses testified at trial that baby Oscar looked sick in the days before his death, and the witnesses in question each had advised defendant to take him to a doctor. Those witnesses included Ana Vasquez, who took care of baby Oscar and two of defendant's other children for about 30 minutes on September 26, 2007, while defendant ran an errand. Vasquez testified in pertinent part that baby Oscar, whom she had taken care of at least 100 times since his birth, seemed ill and did not play with the other children. Vasquez testified that when defendant left him at her house, baby Oscar had a bruise on his forehead, another scratch on his chin, and a bruise on his left leg. Vasquez testified that baby Oscar did not move around like he usually did when she babysat him in the past. Instead he just sat in one place. His forehead also felt a little hot. When defendant came to pick up the children, Vasquez told her to take baby Oscar to the doctor. Defendant told Vasquez she was afraid to take the child to a doctor because the government might take him away from her.

In 2006, child protective services (CPS) had removed defendant's children from her custody for six months as a result of an investigation that was initiated after defendant failed to obtain medical treatment for one of her daughters, who had suffered third degrees burns on her feet from accidentally walking barefoot over hot charcoal.

Defendant's daughter A. testified, in pertinent part, that baby Oscar seemed sick and sad the week before his death. He cried when she carried him and "kept lunging over to grab his stomach." Baby Oscar also had diarrhea, and he was throwing up every day. On the night of his death, baby Oscar seemed very sick so A. asked defendant to take the baby to a doctor. Baby Oscar's father, Oscar, Sr., also told defendant to take the baby to the hospital.

When interviewed by various police officers during the investigation of baby Oscar's death, defendant initially denied that baby Oscar had been ill in the days before he died. She also initially denied hitting baby Oscar or any of her children. Eventually, defendant acknowledged that she spanked baby Oscar two or three times a week. Ultimately, defendant admitted that she had spanked or hit baby Oscar on either the Tuesday or the Wednesday before he died. Defendant demonstrated on a CPR mannequin how she had picked baby Oscar up by one arm and spanked him two or three times on the buttocks. When asked if it was possible that defendant had hit baby Oscar on the back and that he could have sustained his injury that way, defendant said, "It was possible." Defendant also admitted she knew baby Oscar had been sick before he died and that he vomited the night before his death, but she had not taken him to the doctor because she was afraid CPS would take the kids away.

Additional facts pertinent to the issues defendant raises on appeal will be recounted below.

DISCUSSION


1.


WHEELER ISSUE

Defendant contends the prosecutor used his peremptory challenges to excuse six Hispanic prospective jurors based on group bias, and therefore the trial court's denial of defendant's Wheeler motions violated her right under the state Constitution to be tried by a jury drawn from a cross-section of the community and her right under the federal Constitution to equal protection of the law. We disagree.

A. Pertinent Facts and Procedure

During jury selection, the prosecutor used peremptory challenges to excuse six Hispanic prospective jurors, and as a result, defendant twice moved for a mistrial under Wheeler. Defendant made her first Wheeler motion after the prosecutor excused a third Hispanic prospective juror. The trial court found defendant had made a prima facie showing of group bias and asked the prosecutor to state his reasons for excusing the three men in question. With respect to Prospective Juror Meza the prosecutor said he displayed "confident" body language; he was employed as a "server"; "[h]e previously worked at the Koffi Bean, also worked at Macy's, doesn't have life experience, very young, very impressionable. He didn't seem like he would read the law, understand it and make an independent decision based on the evidence. He lived in Desert Hot Springs, poor area. Based on that, on what he previously said, he might have sympathy or empathy for the defendant, make a decision on socioeconomic status as opposed to following the law and the evidence."

The prosecutor explained with respect to Prospective Juror Velasquez, "[h]e was evasive as far as eye contact when I was trying to speak to the jury panel. When he was actually in the box, I noticed he had earrings. That shows, to me, nonconformity. He appeared to be lackadaisical, not taking this seriously. When court and counsel were talking, he was not paying attention. He crossed his arms. That indicates to me that somebody doesn't like me; hence, they are not listening to me. As a result, I felt he would not be a fair and impartial juror for the People in this case."

The prosecutor explained Prospective Juror Venegas, "was a casino cook, who is also from Coachella. Socioeconomic status, I thought he would, I guess, empathize with the defendant. Seeing as how this case did take place in Indio, he might feel empathy for the defendant. [¶] When I was speaking to [the person] right next to him, regarding issues for cause, he looked away from me, crossed his arms, similar to what Mr. Velasquez did. That indicates this person is not listening to me, doesn't like me for some reason. Hence my inference he is not a fair—he cannot be fair and impartial for the People."

After defense counsel responded to the prosecutor's explanations, the trial court denied defendant's Wheeler motion, after "having weighed the statements of counsel and [based on] the court's observations of these individuals."

Defendant made her second Wheeler motion after the prosecutor excused four more Hispanic prospective jurors, all women. The trial court again found defendant had made a prima facie showing of group bias, and asked the prosecutor to state his reasons for excusing the prospective jurors in question. Defendant acknowledges in this appeal that the prosecutor stated race-neutral reasons for excusing two of the four prospective jurors, Ms. Lienhard and Ms. Quinones. Therefore, we will only recount the prosecutor's reasons for excusing Prospective Jurors Contreras and Gomez.

The prosecutor said he excused Prospective Juror Contreras because "she would not have eye contact with me since the beginning, for the last two days. Even when I spoke to her, she would not make eye contact with me. I felt that maybe she had something to hide, wasn't being forthright with the court or myself. The only thing that—and she also said that her husband has something to do with either sales or provisions of housing for the low income. [¶] Again, I thought maybe she might have some sort of propensity to identify with [the defendant] because of her financial state; hence, for those reasons I do not want her on the jury."

With respect to Prospective Juror Gomez, the prosecutor recounted the fact that she had a brother who had been abused and appeared to be very young. The prosecutor also stated "she seemed almost aggressive with me when I spoke with her—very dominant, very forthcoming—I thought she would not get along with the other jurors, that she would be a personality conflict. Of course her brother was abused. There might be some issues there with regard to being able to follow the evidence on either side. For those reasons, I exercised a peremptory challenge on Ms. Gomez."

The trial court again denied defendant's Wheeler motion after finding "there has been sufficient justification made for the excusing of those particular jurors."

B. Analysis

"'"Both the state and federal Constitutions prohibit the use of peremptory challenges to remove Prospective Jurors based solely on group bias."' [Citation.] . . . '[W]hen challenges such as defendant's are made[,] "[f]irst, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]"' [Citations.]" (People v. Vines (2011) 51 Cal.4th 830, 848.)

"Here, the trial court found that defendant had made a prima facie showing, so the burden shifted to the prosecutor to explain his conduct. 'A prosecutor asked to explain his conduct must provide a "'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." [Citation.] "The justification need not support a challenge for cause, and even a 'trivial' reason, if genuine and neutral, will suffice." [Citation.] A Prospective Juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. [Citation.] Certainly a challenge based on racial prejudice would not be supported by a legitimate reason.' [Citation.]" (People v. Jones (2011) 51 Cal.4th 346, 360, italics omitted.)

"'"[W]e review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges 'with great restraint.'" [Citation.] The trial court's determination is a factual one, and as long as "'"the trial court makes a 'sincere and reasoned effort' to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal"'" when they are supported by substantial evidence. [Citation.]' [Citation.]" (People v. Thomas (2011) 51 Cal.4th 449, 474.)

"'"[R]ace-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie '"peculiarly within a trial judge's province"' [citations], and we have stated that 'in the absence of exceptional circumstances, we would defer to [the trial court].' [Citation.]"' [Citations.]" (People v. Jones, supra, 51 Cal.4th at p. 361.)

Defendant contends the prosecutor's stated reason for excusing Prospective Juror Meza was pretextual and was based on nothing more than a stereotype derived from the juror's age and occupation. As recounted above, the prosecutor excused Mr. Meza in part because he was young and lacked life experience. Defense counsel did not dispute this characterization in the trial court. Although the characterization is based on a stereotype, it is one that does not violate either the state or federal Constitutions. (Cf. United States v. Bishop (9th Circ. 1992) 959 F.2d 820 (Bishop), in which the court held the stereotype that a Black prospective juror who lived in a poor neighborhood might be inured to violence and believe the police use excessive force was a surrogate for the prospective juror's race.) The prosecutor's stated reason is not based on prohibited group bias. Therefore, the reason constitutes an acceptable explanation for the prosecutor's exercise of the peremptory challenge. Because we conclude the prosecutor stated a race-neutral explanation, we will not address defendant's additional claim that the prosecutor's reference to the prospective juror's body language and apparent confidence are so vague as to be incomprehensible.

Defendant raises the same pretext and stereotype claim with respect to Prospective Juror Velasquez, whom the prosecutor excused based in part on his body language (crossed arms) and his lack of eye contact which made him seem evasive. Defendant does not dispute any of the facts the prosecutor cited as the basis for excusing Prospective Juror Velasquez. Instead, defendant takes issue with the inferences the prosecutor drew from those facts. As previously discussed, as long as the prosecutor's reasons are legitimate and race neutral, they do not have to be rational. (People v. Jones, supra, 51 Cal.4th at p. 360.) Hunches, as well as arbitrary and idiosyncratic reasons suffice. (Ibid.)

With respect to Prospective Juror Venegas, defendant contends the prosecutor relied on socioeconomic status as a proxy for the prospective juror's ethnicity. Defendant cites Bishop, supra, 959 F.2d 820 to support her claim. In that case, as previously noted, the prosecutor excused a Black juror who "lived in a predominantly low-income, black neighborhood and was therefore likely [in the prosecutor's view] to believe the police 'pick on black people.'" (Bishop, at p. 821 [quoting the prosecutor].) "The United States Court of Appeals for the Ninth Circuit invalidated the peremptory challenge as based on stereotypical presumed group bias, but only because there was no 'nexus between the jurors' characteristic'—i.e., that they lived in a poor, predominantly African-American city—'and their possible approach to the specific trial.' [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 190, quoting Bishop, supra, 959 F.2d at p. 825.)

Decisions of lower federal courts interpreting federal law are not binding on this court. (People v. Zapien (1993) 4 Cal.4th 929, 989.) Therefore, we will not apply Bishop to the prosecutor's reliance on the prospective juror's socioeconomic status as the reason for exercising his peremptory challenge, although we view the reason as potentially problematic. The prosecutor here also cited the prospective juror's failure to make eye contact and the fact that he crossed his arms when the prosecutor was questioning the person next to him. The prosecutor interpreted those actions to mean the prospective juror was not paying attention to him. Defendant did not dispute those facts in the trial court nor does she dispute them in this appeal, although she minimizes their significance, and faults the trial court for failing to make an adequate inquiry into the genuineness of the prosecutor's reasons. As set out above, the trial court based its denial of defendant's first Wheeler motion in part on the trial court's own observations of the prospective jurors in question. From that comment, we may conclude the trial court was aware of its obligation to evaluate the honesty and validity of prosecutor's reasons. Because the trial court's determination is supported by the evidence, and the prosecutor's reason was based on the prospective juror's demeanor rather than on prohibited group bias, we must defer to the trial court's assessment. (People v. Thomas, supra, 51 Cal.4th at p. 474; People v. Jones, supra, 51 Cal.4th at p. 361.)

Defendant's claim with respect to Prospective Juror Contreras is identical to her claim regarding Prospective Juror Venegas—the prosecutor relied on socioeconomic class as a substitute for ethnicity. As with Prospective Juror Venegas, the prosecutor also cited the fact that Prospective Juror Contreras would not make eye contact with the prosecutor, even when he was speaking to her. Because the facts are nearly identical, our discussion regarding Prospective Juror Venegas also applies to Prospective Juror Contreras. In reaching this conclusion, we recognize that this prospective juror was the subject of defendant's second Wheeler motion and, in denying that motion, the trial judge did not expressly state he had relied on his own observations of the prospective jurors. We nevertheless may reasonably infer from the record that the judge relied on his own observations. Moreover, defendant did not claim in the trial court, and does not claim in this appeal, that the prosecutor's description of Prospective Juror Contreras was inaccurate.

In excusing Prospective Juror Gomez, the prosecutor cited her young age as one of the reasons. Defendant does not dispute this reason. Instead, defendant argues that the remaining reasons were pretextual, first, because they conflict with reasons given for excusing other Hispanic prospective jurors, and next, because the trial court did not question the prosecutor about his reliance on demeanor or body language to excuse four Hispanic prospective jurors. Therefore, defendant contends the trial court did not make a truly reasoned attempt to evaluate the prosecutor's explanation.

Defendant's conflict claim is based on the prosecutor's reference to Prospective Juror Gomez being aggressive, "very dominant, very forthcoming," but then citing the fact that Prospective Juror Contreras would not make eye contact which suggested she was not being forthright. The obvious explanation is that the prosecutor could honestly believe that both characteristics are unfavorable. The trial court's failure to question the prosecutor's reliance on body language is also easily explained—presumably the trial court observed the behavior the prosecutor cited and therefore did not need to ask any questions. Defendant's contrary view notwithstanding, the trial court is not required to question the prosecutor if the trial court observed the behavior or heard the statements the prosecutor relied on to excuse the prospective juror. (People v. Silva (2001) 25 Cal.4th, 345, 386 ["When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings."].)

Defendant cites People v. Fuentes (1991) 54 Cal.3d 707, 720, as support for her assertion. The part of the opinion defendant cites is inapposite in that it states that when the prosecutor cites a laundry list of reasons for excusing prospective jurors, the trial court must separately question whether any of the reasons cited actually applied to each of the excused prospective jurors. (Ibid.)

Accordingly, and for the reasons just explained, we conclude the trial court did not err in denying defendant's Wheeler motions in this case.

2.


SUFFICIENCY OF THE EVIDENCE

Defendant contends the evidence is insufficient to support the second degree murder conviction because it does not establish that she acted with implied malice. We disagree.

A. Standard of Review

"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

B. Analysis

As the trial court instructed the jury, in order to find defendant guilty of second degree murder, the jury had to find, among other things, that defendant acted with express or implied malice. The prosecutor conceded in closing argument that there was no evidence that defendant acted with express malice. Therefore, the prosecutor explained that he was relying only on implied malice as the basis for the second degree murder conviction. The prosecutor also argued the evidence established "two instances" of implied malice. In the first instance, or theory, of implied malice, defendant hit baby Oscar and inflicted the fatal injury. Defendant committed that act with conscious disregard of the consequences as evidenced by defendant's admission that she knew from her parenting classes that hitting an infant involved a serious risk of injury or death. The second theory of implied malice was that defendant failed to obtain medical care for baby Oscar even though she knew he was very ill and several people had told her to take him to a doctor.

Defendant acknowledges that the jurors might have relied on either or both theories of implied malice to reach their guilty verdict on the second degree murder charge. She contends, however, that in this case we know the jury actually based their verdict on failure to seek medical care because they acquitted defendant of the assault charged in count 2, and instead found defendant guilty of the lesser included offense of an attempt to commit the charged assault. From their verdict on count 2, defendant contends we must infer the jury found defendant did not hit baby Oscar. Defendant argues there is insufficient evidence of implied malice based on defendant's failure to obtain medical care for the infant. We disagree with both aspects of defendant's claim.

First, we agree with the Attorney General that the jury's verdict on count 2 has no bearing on the jury's verdict on count 1. Each verdict is viewed independently, and we are not required to assume the jury was factually consistent in reaching verdicts on separate counts. "The law generally accepts inconsistent verdicts as an occasionally inevitable, if not entirely satisfying, consequence of a criminal justice system that gives defendants the benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever the evidence." (People v. Palmer (2001) 24 Cal.4th 856, 860.) In short, we cannot assume from the fact the jury found defendant not guilty of assault by force likely to produce great bodily injury or death as charged in count 2, and instead found defendant guilty of the lesser included offense of an attempt to commit that crime, that the jury necessarily found defendant did not hit baby Oscar.

Moreover, the evidence is sufficient to support both theories of implied malice second degree murder the prosecutor relied on at trial in this case. As the trial court instructed the jury, in order to find defendant guilty of implied malice second degree murder, the evidence had to show that defendant intentionally committed an act the natural and probable consequences of which were dangerous to human life; that defendant knew at the time she committed the act that it was dangerous to human life; and that defendant deliberately committed the act with conscious disregard for human life.

According to the forensic evidence presented at trial, recounted above, baby Oscar died of peritonitis caused by a blow to the abdomen that ruptured his duodenum. In addition to the injury that caused his death, baby Oscar had other injuries that indicated he had been physically abused for some period prior to his death. Although defendant testified that the infant had taken several falls during the week preceding his death, including a fall from the couch that caused a bruise on his forehead and a fall out of the bathtub that caused a bruise on his side, the forensic pathologist testified that those incidents would not have caused the severe injuries baby Oscar suffered. The forensic pathologist testified that baby Oscar's body displayed signs of physical abuse that included two ribs that had been broken within 10 to 20 days before his death, old and new bruises all over his body, as well as internal injury to a kidney and the ruptured duodenum. During her initial police interview, defendant claimed not to know how baby Oscar got all the bruises on his body, even though she acknowledged she was the person primarily responsible for bathing and diapering the child. Later during the interview, defendant acknowledged that she could have hit baby Oscar on Tuesday or Wednesday prior to his death and that she might have hit him harder than she had intended. The evidence also established that in 2006 defendant took a 12-week parenting education course in which she learned, among other things, about child abuse including the risk of physical injury created when a parent uses physical punishment to correct a child's behavior. The noted evidence is sufficient to support an implied finding that defendant intentionally struck baby Oscar, and that she did so with conscious disregard for the consequences of that act.

Defendant also admitted she knew baby Oscar was sick during the week preceding his death although she minimized his ailments in that she denied seeing him hold his stomach, or seeing him vomit more than once. Defendant's daughter, A., who was nine years old when baby Oscar died, testified, among other things, that the week before his death, baby Oscar seemed very sick, that he was vomiting, and had diarrhea. He was so sick the night before his death that A. asked her mother to take him to a doctor. Ana Vasquez also testified that baby Oscar was sick when defendant left him at her house the day before his death. Vasquez told defendant to take the baby to a doctor, but defendant said she was afraid to take him to a doctor because CPS would take her children away. Defendant acknowledged that in addition to A. and Vasquez, baby Oscar's father, Oscar, Sr., told her to take the baby to a doctor. This evidence is sufficient to support an implied malice finding, namely, that defendant knew baby Oscar was seriously ill and in conscious disregard for his well-being, defendant failed to obtain medical care for the infant.

Accordingly, for the reasons set out above, we reject defendant's challenge to the sufficiency of the evidence to support the jury's verdict finding her guilty of second degree murder on an implied malice theory.

3.


INVOLUNTARY MANSLAUGHTER JURY INSTRUCTION

Defendant contends the trial court incorrectly instructed the jury on involuntary manslaughter as a lesser included offense to the charged crime of murder, because, first, the trial court did not include the misdemeanor offense of failure to provide for a child in violation of Penal Code section 270 as one of the crimes that would support such a conviction; next, the trial court did not instruct on involuntary manslaughter based on a lawful act committed in a criminally negligent manner; and, third, because the trial court did not instruct the jury on the elements of simple battery, the only theory of involuntary manslaughter the trial court included in the instruction. Although the trial court's instruction was incomplete, we conclude the error was harmless in this case.

A. Pertinent Facts

Involuntary manslaughter is defined as an unlawful killing without intent to kill and without implied malice that occurs (1) during the commission of an unlawful act, other than a felony, or (2) in the course of a lawful act committed with criminal negligence. (Pen. Code, § 192, subd. (b).) The trial court instructed the jury in this case on the first form of involuntary manslaughter based on the crime of simple battery, but the trial court did not instruct the jury on the elements of that offense. The trial court also did not instruct on the misdemeanor of failure to provide for a child, but defendant did not request that the crime be included in the instruction. The trial court did instruct the jury on the second form of involuntary manslaughter based on a lawful act committed with criminal negligence, but the trial court did not identify the lawful act in the jury instruction.

The trial court told the jury that "Instruction 960 tells you what the people must prove in order to prove that the defendant committed a simple battery," but the trial court did not give the noted instruction.

Instead, the trial court's instruction incorrectly identified the crime of simple battery as the act defendant committed with criminal negligence.

B. Analysis

Although the trial court's jury instructions on involuntary manslaughter were incomplete, or incorrect, such misdirection of the jury requires reversal of defendant's murder conviction "only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (People v. Breverman (1998) 19 Cal.4th 142, 178, fn. omitted.)

Defendant has not demonstrated the error was prejudicial. Instead, defendant makes the bald assertion that "a properly instructed jury would have been likely to have returned a verdict to [sic] the lesser included offense of involuntary manslaughter in the absence of such error." We are not so sanguine.

We agree with the Attorney General, if the jury had been inclined to find defendant guilty of involuntary manslaughter, at the very least they would have asked the trial court for a definition of the crime of simple battery. The jury had only one question during their deliberations, and that question related to the lesser included offense on count 2. From the fact that the jury did not ask the trial court to elaborate or clarify the obviously incomplete involuntary manslaughter instruction, we are able to conclude the jury did not discuss that crime, and therefore it is not reasonably probable the jury would have reached a result more favorable to defendant if the trial court's involuntary manslaughter instructions had been complete and correct.

4.


CROSS-EXAMINATION OF DEFENDANT

Before trial, defendant moved to exclude evidence that between October 1999 and July 2005 CPS had four referrals of neglect involving defendant and her children. Defendant argued that the probative value of the evidence was substantially outweighed by its potential for undue prejudice within the meaning of Evidence Code section 352. In addition, defendant argued the evidence was inadmissible character evidence under Evidence Code section 1101, subdivision (a). At a pretrial hearing, the prosecutor agreed not to introduce the various social workers' reports, but stated he intended to call as a witness the social worker who directed defendant to take parenting classes as a result of the 2006 referral.

Before defendant testified at trial, defense counsel renewed his motion to exclude the CPS evidence, but the trial court denied that motion purportedly because the judge did not know what evidence the prosecutor intended to present. As a result, after defendant testified at trial, the prosecutor cross-examined her over her attorney's various objections, including relevance, hearsay, improper character evidence under Evidence Code section 1101, subdivision (a), and more prejudicial than probative within the meaning of Evidence Code section 352, regarding her prior contacts with CPS from 1999 to 2005. Defendant moved for a mistrial at the conclusion of the prosecutor's cross-examination, claiming in pertinent part, that the prosecutor asked defendant questions, over objection, about complaints that had never been substantiated, such as whether in 2005 defendant was smoking marijuana and manufacturing methamphetamine. The trial court denied that motion after the prosecutor argued that all his questions pertained to acts of moral turpitude, and therefore constituted proper impeachment.

Defendant contends the trial court abused its discretion in allowing the prosecutor to question defendant about the CPS reports because those reports contained hearsay, some of the claims about defendant had never been investigated and substantiated (in particular whether in 2005 defendant had been smoking marijuana and manufacturing methamphetamine), and in any case most of the claims even if true did not amount to moral turpitude. We agree, however, we conclude the error was not prejudicial.

A. Standard of Review

We review a trial court's ruling on the admissibility of evidence under the abuse of discretion standard. (People v. Waidla (2000) 22 Cal. 4th 690, 723.) The trial court's rulings "will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

B. Analysis

Generally, a witness may be cross-examined upon any matter within the scope of direct examination. (Evid. Code, § 773, subd. (a).) Therefore, a defendant can be cross-examined not only about the facts expressly stated in direct testimony, but also with respect to facts implied from that testimony. (People v. Teshara (1904) 141 Cal. 633, 638.) In addition, cross-examination may be used to attack the credibility of the witness by showing the witness is not trustworthy and therefore should not be believed. (People v. Allen (1978) 77 Cal.App.3d 924, 931.)

Defendant's testimony on direct examination was almost entirely focused on the circumstances leading up to baby Oscar's death on September 28, 2007, beginning with the morning of the day before he died and continuing through the criminal investigation following his death. We do not share the Attorney General's view that defendant implied through that testimony that she was a good mother who stayed at home and cared for her children. Therefore, the prosecutor's cross-examination of defendant was not directed at refuting express or implied factual assertions defendant made on direct exam regarding the quality of her mothering.

The prosecutor claimed at trial that defendant's acts of neglect recounted in the CPS reports involved moral turpitude, and therefore were admissible to impeach her credibility as a witness. Under People v. Wheeler (1992) 4 Cal.4th 284, any prior misconduct of a witness that involves moral turpitude is admissible to impeach his or her credibility as a witness, whether or not the conduct resulted in a criminal conviction. (Id. at pp. 295-296; People v. Ayala (2000) 23 Cal.4th 225, 273; People v. Alvarez (1996) 14 Cal.4th 155, 201, fn. 11.) Whether the conduct in question involves moral turpitude is a question of law subject to independent review on appeal. (Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 74, fn. 7.) However, whether such evidence should be admitted for impeachment is subject to the trial court's discretion under Evidence Code section 352, and that ruling is reviewed for abuse of discretion. (People v. Feaster (2002) 102 Cal.App.4th 1084, 1091-1092.)

"Moral turpitude is defined as the 'general readiness to do evil.'" (People v. Feaster, supra, 102 Cal.App.4th at p. 1091.) "[P]assive crimes do not involve moral turpitude." (Id. at p. 1092.) Child abuse based on neglect is a passive crime; therefore, it does not involve moral turpitude. (People v. Sanders (1992) 10 Cal.App.4th 1268, 1273-1275.)

The prosecutor questioned defendant on cross-examination about conduct in the CPS reports that constituted neglect, e.g., failing to supervise the children with the result that on at least one occasion one of the children purportedly wandered into the street late at night and was nearly hit by a car; failing to care for the children by changing their dirty diapers; failing to protect the children from injury posed by broken glass purportedly on the floor in the house; failing to protect the children from danger as a result of which one of the children stepped on burning charcoal that was on the ground in the backyard under circumstances not entirely clear from the record but that had something to do with a barbeque; failing to protect the children from injury posed by a hot curling iron as a result of which one of the children was burned; failing to maintain the home in safe and habitable condition with the result that a toilet purportedly did not work, there purportedly was no refrigerator in the house, there was no toilet paper in the house, and the house was littered with clothing and soiled diapers. The prosecutor asked only one question that involved active conduct by defendant—whether she had ever hit one of her daughters with a belt.

Defendant objected to all the prosecutor's questions on the grounds of relevance, Evidence Code section 352, and improper character evidence under Evidence Code section 1101, subdivision (a). The trial court should have sustained those objections. At the very least, the trial court should have sustained defendant's objections under Evidence Code section 352 that the probative value of the evidence was substantially outweighed by its potential for prejudice.

The Attorney General asserts that the evidence in question was admissible under Evidence Code section 1101, subdivision (b) to show defendant's intent in committing the charged crimes, and also to prove defendant's common scheme and plan to neglect her children. We do not share the Attorney General's view. With exception of the assault charged in count 2, none of the crimes charged required specific intent. As previously noted, the prosecutor relied on implied malice in proving the murder charge. The prosecutor also relied on defendant's acts of neglect to prove the charges alleged in counts 3 and 4. Moreover, "[e]vidence of a common design or plan is admissible to establish that the defendant committed the act alleged." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, italics omitted.) Defendant's identity as the person who committed the charged crime was relevant only to the limited issue of whether defendant was the person who inflicted the injury that killed baby Oscar. However, the CPS evidence did not involve active abuse, as previously discussed, and therefore did not show a common plan or scheme.
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The issue we must now resolve is whether the trial court's error was prejudicial. The erroneous admission of evidence requires reversal of a conviction only if that error was prejudicial in that it resulted in a miscarriage of justice. (Evid. Code, § 353.) In this context, a miscarriage of justice occurs when this court is able to say, absent the erroneously admitted evidence, it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Despite his cross-examination of defendant, the prosecutor did not mention any of the erroneously admitted evidence in his closing argument. The prosecutor argued defendant's guilt based on her admissions to the investigating police officers, her own trial testimony, the forensic evidence, and the testimony of the other prosecution witnesses. Defendant argues this was a close case, as evidenced by the jury's verdicts finding her guilty of the lesser offenses on counts 2 and 3. Therefore, defendant contends, the error in admitting evidence from CPS reports of prior encounters with defendant was prejudicial. We do not see the connection defendant purports to make between prejudice and the jury's verdicts on count 2 and count 3. We would expect to see the opposite result, i.e., verdicts of guilty as charged on all counts, if the error were prejudicial. Moreover, and as previously discussed, the jury's verdicts on count 2 and count 3 do not have any bearing on how or why the jury reached its verdict finding defendant guilty of second degree murder as charged in count 1. For each of the reasons discussed, we conclude it is not reasonably probable the jury would have reached a result more favorable to defendant on any of the charges if the erroneously admitted evidence had not been introduced at trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORT

MCKINSTER

J.
We concur:

HOLLENHORST

Acting P.J.

MILLER

J.


Summaries of

People v. Cedillo

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jun 8, 2012
E052598 (Cal. Ct. App. Jun. 8, 2012)
Case details for

People v. Cedillo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANA ALICIA CEDILLO, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jun 8, 2012

Citations

E052598 (Cal. Ct. App. Jun. 8, 2012)