Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR70611
ROBIE, J.
A jury found defendant Fernando Chavez guilty of assaulting a child under eight years of age whom he had care of with force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death. Defendant was sentenced to 25 years to life in prison.
For simplicity, we will refer to this crime as felony assault on a child resulting in death.
On appeal, defendant contends the trial court erred by not instructing the jury on two lesser included offenses: simple assault and assault by means of force likely to produce great bodily injury. Finding no error, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2006, J. O. had a 13-month-old son, M. O. J. O. no longer had a relationship with M. O.’s father, but she was in a relationship with defendant. J. O. and defendant lived together about half of the time, and defendant assumed a fatherly role with M. O. J. O. taught defendant the proper way to play with and care for M. O. She also told defendant not to shake M. O. when playing because it could cause brain injury.
At the time of trial in November 2007, J. O. was still in a relationship with defendant and the two had a child together.
On November 27, 2006, M. O. was sick and fussy, teething, running a fever, and had vomited. J. O., M. O., and defendant spent the day together at J. O.’s house. J. O. drove her friend, L. M., to Shasta College that evening. After returning from dropping off L. M., J. O. took a shower while defendant watched M. O. J. O. heard M. O. scream while she was in the shower. She got out of the shower to check on M. O. and found defendant holding M. O. trying to calm him down. J. O. finished her shower and then put M. O. down to sleep. She stated that when she put M. O. down to sleep, she gave him a bottle, and he appeared to be drinking it. However, J. O. also said that M. O. looked “weird” and did not “look right.” J. O. then left to pick up L. M. from school about 30 to 45 minutes after M. O. went down.
About 15 minutes later, defendant appeared at J. W.’s apartment holding M. O. M. O. was limp and there was vomit and blood on both M. O. and defendant. Defendant asked J. W. to perform CPR on M. O. and she called 911. Defendant then phoned L. M. to let her know M. O. was being taken to the hospital. L. M. told J. O.
According to J. W., defendant did not call 911 himself because “he was fearful because he had been smoking pot earlier.”
M. O. was admitted to the emergency room at St. Elizabeth Community Hospital in Red Bluff. He was unresponsive to stimuli at the time of admission and was put on mechanical ventilatio N.M. O. had a retinal hemorrhage in his right eye and elevated liver enzymes and his CAT scan revealed bleeding in the back of his head. M. O.’s condition was assessed as critical and he was airlifted to the UC Davis Medical Center.
Upon arrival at the UC Davis Medical Center, M. O. had no spontaneous neurologic activity. A “brain death examination” revealed that no part of M. O.’s brain had activity. M. O. was unable to breathe without the aid of a ventilator. Further CAT scans revealed there was blood in the back of his head and his brain was extremely swollen. A possible cause of the retinal hemorrhage and swelling of the brain was shaken baby syndrome.
J. O. requested that M. O. be taken off life support. After being taken off life support, M. O. died quickly on November 28, 2006. The cause of death was determined to be blunt force trauma to the head.
A subsequent autopsy revealed multiple internal injuries to M. O. The injuries consisted of abdominal injuries and head injuries. The abdominal injuries consisted of a tear on the underside of the liver, a large area of bleeding and bruising in the mesentery, and bruising of the duodenum. The head injuries consisted of a subdural hematoma, a subarachnoid hemorrhage, and bleeding at the deepest layer of the scalp. Blunt force trauma was the cause of the head injuries and was the likely cause of the abdominal injuries.
The mesentery is a fatty membrane that carries blood vessels from the aorta to the intestines.
The duodenum is the area where the stomach ends and the small intestine begins.
Both a subdural hematoma and a subarachnoid hemorrhage involve bleeding at different levels of the brain.
After M. O. was airlifted to the UC Davis Medical Center, the Red Bluff police asked J. O. and defendant to come to the police station to answer some questions. When defendant was questioned regarding whether he shook M. O. (the likely cause of the injuries), he admitted that he “shook him up a little” and “shook him up a couple times.” Defendant also admitted that he “threw” M. O. up in the air and M. O. landed on the sofa. When it became apparent to the police detectives that defendant had possibly assaulted the child, he was read his Miranda rights. After being read his rights, defendant continued to speak with the police detectives and admitted to “squeezing” M. O. as well. A DVD of defendant’s questioning by the police was played for the jury at trial.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
Defendant was subsequently charged by information with felony murder and felony assault on a child resulting in death. The felony murder charge was later dropped and the case proceeded to trial on the felony assault charge.
The prosecution introduced expert medical testimony regarding the cause and likely circumstances of M. O.’s death. The prosecution’s expert, Dr. Gregory Reiber, testified that the injuries M. O. sustained were consistent with being squeezed, shaken, and then having his head slammed down on a hard surface. Dr. Reiber conceded on redirect examination that a fall from five to six feet could have caused the head injuries that resulted in M. O.’s death. However, Dr. Reiber stated that in combination with the abdominal injuries it was “not consistent” that M. O. was only dropped. Additionally, he stated that the abdominal injuries were not consistent with improperly performed CPR because typically the injuries would occur to the opposite side of the liver.
Dr. Reiber also testified regarding the likely behavior of M. O. after sustaining such a blow to the head. Dr. Reiber testified that he would expect a child to be knocked unconscious for a short period of time. After regaining consciousness, a child would be “sleepy, not very responsive, not very interactive, until lapsing into unconsciousness again from the swelling of [the] brain.” Dr. Reiber testified that a child might vomit as a reflex from the swelling in the head 10 to 20 minutes after the initial blow. Dr. Reiber also stated that he would not expect a child to take a bottle after such a head blow and thought it was “unlikely” that a baby would cry because the baby would not fully regain consciousness.
Defendant testified on his own behalf. He denied he ever shook M. O. and explained that his previous statements to law enforcement were made because he was “scared” and he thought if he admitted to shaking M. O. the police officers would “let [him] go faster.” Defendant went on to testify that while J. O. was in the shower, M. O. slipped out of his arms and fell to the floor from his shoulder. According to defendant, M. O. “kept crying” after he fell. Defendant testified that he never told J. O. about M. O.’s fall. Defendant explained that after J. O. went to pick up L. M. from school, M. O. began to choke and he performed CPR on the child. Defendant also stated that while he performed CPR on M. O., the child vomited in his mouth. This caused defendant to run to the kitchen to wash his mouth out. Defendant left M. O. on the edge of the bed and when he returned from washing his mouth out, M. O. had apparently fallen off the bed onto the floor.
J. O. had testified, however, that defendant admitted to her he shook M. O.
No evidence of defendant’s height appears in the record.
Defense counsel argued that M. O.’s injuries were the result of being dropped, falling off the bed, and incorrectly performed CPR. Counsel argued that these events in combination caused the fatal head injuries and the abdominal injuries.
Defense counsel requested a jury instruction on simple assault as a lesser included offense. The trial court determined that a simple assault instruction was not supported by the facts of the case; however, the court expressed concern about whether an instruction on assault by means of force likely to produce great bodily injury should be given. Defense counsel asked that the court not instruct the jury on that crime and the court found that it was not supported by the evidence, so the jury was only instructed on felony assault on a child resulting in death.
“THE COURT: I have some problems with ADW [assault with force likely to produce great bodily injury] anyway because it’s not -- that’s not really the Defendant’s claim: that the shaking is true and not the head injury. I mean, his claim is the head injury is an accident and that he didn’t shake the victim.
The jury found defendant guilty. Defendant was sentenced to 25 years to life in prison. Defendant then filed this timely appeal.
DISCUSSION
On appeal, defendant contends the trial court erred by not instructing the jury on the lesser included offenses of simple assault (Pen. Code, § 240) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Defendant argues that the jury could have found he shook M. O. and also accidentally dropped him and that the internal injuries were caused by the shaking whereas the fatal head injury was caused by M. O.’s accidental fall. Because the jury could have found he caused only the nonfatal abdominal injuries, defendant contends, it should have been instructed on the lesser included offenses of simple assault and assault by means of force likely to produce great bodily injury.
All further statutory references are to the Penal Code unless otherwise indicated.
I
Legal Standard
A trial court must instruct on a lesser included offense if there is substantial evidence from which a reasonable jury could conclude the defendant is guilty of the lesser offense, but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) “In deciding whether evidence is ‘substantial’ in this context, a court determines only its bare legal sufficiency, not its weight.” (Id. at p. 177.) If there was such evidence, the reviewing court then asks whether the error requires reversal of the defendant’s conviction for the greater offense. (Id. at pp. 177-178.)
In a noncapital case, the error in failing to instruct on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, which requires reversal of the conviction for the greater offense “if, ‘after an 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.” (People v. Breverman, supra, 19 Cal.4th at p. 178.) Probability under Watson “does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.) “In determining whether a failure to instruct on a lesser included offense was prejudicial, an appellate court may consider ‘whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.’” (People v. Rogers (2006) 39 Cal.4th 826, 870, quoting People v. Breverman, supra, 19 Cal.4th at p. 177.)
II
The Trial Court Did Not Err In Failing To Instruct On Simple Assault Because The Facts Of The Case Did Not Support It
Defendant contends the trial court erred in failing to instruct on the lesser included offense of simple assault. We disagree with defendant because the facts of the case did not support a jury instruction on simple assault as a lesser included offense.
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “‘Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury.’” (People v. Steele (2008) 164 Cal.App.4th 1195, 1202, quoting People v. Miceli (2002) 104 Cal.App.4th 256, 269.)
In order to convict on a charge of felony assault on a child resulting in death, a jury must necessarily find that the defendant committed an assault. The difference between simple assault and felony assault on a child resulting in death is the attendant circumstances that must accompany the felony assault. The felony assault carries the attendant circumstances of: (1) having care or custody of a child under eight years of age; (2) the assault must be by means of force that to a reasonable person would likely produce great bodily injury; and (3) the force applied to the child must result in its death. (§ 273ab.)
While a person must necessarily commit assault in the process of committing felony assault on a child resulting in death, if a jury finds the elements of the greater charge have been proven, then the defendant cannot be convicted of the lesser charge as well. (See People v. Cole (1982) 31 Cal.3d 568, 582, citing People v. Moran (1970) 1 Cal.3d 755, 763.) However, it is error to instruct on the lesser included offense of simple assault where the defendant, if guilty at all, could only be guilty of the greater offense and not simply the lesser offense. (See People v. Stewart (2000) 77 Cal.App.4th 785, 795-796, citing People v. Hawkins (1995) 10 Cal.4th 920, 954.)
Defendant contends the jury could have believed his original statement to the police that he shook M. O. and threw him on the sofa but also believed the fatal head injury was the result of M. O. accidentally falling. If the jury believed that M. O.’s fatal head injury resulted from an accidental fall, then defendant did not apply force to M. O. that resulted in his death, which was necessary to sustain a conviction of felony assault on a child resulting in death. Defendant argues that under this scenario, he would have been guilty of no more than simple assault. Therefore, the jury should have been instructed on that crime.
Based on the facts of the case, we can find no plausible argument that a jury could have convicted defendant of simple assault but not the greater offense of felony assault on a child resulting in death. Defendant asserts that the jury could have found that the shaking and throwing of M. O. constituted a simple assault. Shaking a 13-month-old baby and throwing the baby on a sofa resulting in a lacerated liver, extreme bleeding in the mesentery, and bruising of the duodenum cannot reasonably be characterized as a simple assault. At the very least, defendant’s acts constituted assault by means of force likely to produce great bodily injury. A jury could not have viewed the medical evidence of serious internal injuries and reasonably found that defendant was guilty of only a simple assault. Therefore, the trial court was correct to not instruct the jury on simple assault because the facts of the case did not support it.
III
The Trial Court Did Not Prejudicially Err In Failing To Instruct On Assault By Means Of Force Likely To Produce Great Bodily Injury
Defendant also contends the trial court erred by not instructing the jury on the lesser included offense of assault by means of force likely to produce great bodily injury. He urges this court to adopt language in People v. Basuta (2001) 94 Cal.App.4th 370, 392, which intimates that assault by means of force likely to produce great bodily injury is a lesser included offense of felony assault on a child resulting in death. We need not decide that issue today. Even assuming assault by means of force likely to produce great bodily injury is a lesser included offense of felony assault on a child resulting in death based on the facts of this case, the trial court’s failure to instruct on assault by means of force likely to produce great bodily injury did not result in prejudice to defendant because after an examination of the evidence, we find there is no reasonable probability that defendant would have received a more favorable verdict at trial had an instruction been given for assault by means of force likely to produce great bodily injury.
The argument defendant advances in his brief is that the jury could have believed the shaking and dropping were two separate incidents. Therefore, in defendant’s view, the jury could have found him guilty of assault by means of force likely to produce great bodily injury for the shaking, but not guilty of felony assault on a child resulting in death because the death was caused by an accidental fall. Under this theory, defendant would not be guilty of felony assault on a child resulting in death because any force defendant applied did not “result” in the death of M. O.; instead, the death was caused by blunt force trauma to the head from the accidental fall and not the internal injuries from the shaking. A review of the evidence and testimony, however, reveals the mental gymnastics a jury would need to perform to reach such a conclusion.
Dr. Reiber’s uncontroverted testimony was that M. O.’s “injuries [are] very consistent with a child being grabbed very hard around the abdomen and slammed into a blunt surface, a wall or floor or some hard surface, so that the back of his head was severely impacted.” Defense counsel’s argument was that M. O.’s injuries were the result of being dropped and defendant’s improper performance of CPR on M. O. Dr. Reiber admitted the head injuries could be consistent with a fall from five to six feet. However, he noted that the abdominal injuries were not consistent with improperly performed CPR given the location of the liver injury. Dr. Reiber also noted that he had never seen a mesentery injury associated with inappropriately applied CPR. Therefore, the head injuries, in combination with the abdominal injuries, were not “consistent” with a fall from five to six feet. Dr. Reiber admitted that the abdominal injuries could conceivably be the result of inappropriately applied CPR; however, he felt it was unlikely. The fact remains that Dr. Reiber maintained the abdominal and head injuries were the result of one chain of events of M. O.’s being squeezed, shaken, and then having his head slammed against a hard object. The defense did not put on its own expert to refute Dr. Reiber’s testimony. Nor did defense counsel’s cross-examination of Dr. Reiber cause him to waiver as to his medical conclusion regarding the manner in which the injuries were inflicted upon M. O.
“[Dr. Reiber:] If I am talking about [M. O.] specifically, could that have happened in him [blunt force trauma to the head caused by a short fall], I have to take into account the fact that he has a pattern of abdominal injury that is almost a dead ringer for what I have seen in abusive abdominal injury cases.
Defense counsel’s motion for appointment of an expert at the county’s expense was granted. However, no defense expert testified at trial to refute Dr. Reiber’s testimony.
Even assuming the jury believed that the abdominal injuries and head injuries were inflicted independently of one another, to find assault by means of force likely to produce great bodily injury, the jury would have had to both believe and disbelieve defendant. During the original police interview, defendant admitted to squeezing and shaking M. O. Later at trial, defendant stated that he did not shake M. O. but told police he did so they would let him go. Then defendant testified that M. O. fell from his shoulder, a fact he had told no one previously. In order for the jury to find assault by means of force like to produce great bodily injury it would have had to believe defendant’s statement to police that he shook the baby, disbelieve his trial testimony that he lied about the shaking, and believe his testimony regarding dropping the baby. In addition, this believe-disbelieve-believe scenario would have to have been coupled with the jury rejecting Dr. Reiber’s uncontroverted conclusion that such a scenario was “unlikely” and “not consistent” with the medical evidence.
Also weighing against any finding of prejudice is the fact that the jury requested all of J. O.’s testimony and Dr. Reiber’s testimony relating to the behavior of a child after a blow to the head. Dr. Reiber said that a child who sustains a blow to the head like M. O. would be unresponsive and sleepy and would not feed or cry in the aftermath of the trauma. J. O. stated, however, that when she got out of the shower, M. O. seemed strange but was coherent and even fed from a bottle. Defendant stated that M. O. kept crying after he was dropped. The scenario that M. O.’s head injuries resulted from the accidental fall is inconsistent with these statements. Dr. Reiber’s testimony was that a baby would not feed or cry and would not regain much consciousness following the head injuries M. O. suffered. Although we cannot know what the jury believed, we can infer that it believed Dr. Reiber and not J. O. and defendant. If M. O. truly was dropped on his head while J. O. was in the shower, the medical expert’s description of how M. O. would respond was completely the opposite of J. O.’s and defendant’s descriptions. Presumably the jury did not believe the dropping explanation for the head injury because of its conviction of defendant.
Defendant’s “shake and drop” theory rests on the premise that M. O.’s fatal head injury occurred when he was dropped, which according to the defendant’s testimony happened while J. O. was in the shower.
We conclude there was no reasonable possibility that the jury would have accepted the “shake and drop” argument defendant now argues on appeal. Indeed, at best, it is an “abstract possibility.” (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 918.) As explained, the jury would need to have disbelieved Dr. Reiber’s uncontroverted medical testimony coupled with believing and disbelieving different parts of defendant’s story. On review, we find that the evidence supporting defendant’s conviction is so relatively strong and the evidence supporting a different outcome so comparatively weak that there was no prejudice to defendant because there was no reasonable probability that defendant would have obtained a more favorable outcome had the jury been instructed on assault by means of force likely to produce great bodily injury.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., DAVIS, J.
“I suppose it’s possible that he, if he is telling the truth about shaking the victim to the police and that it happened because the baby’s crying, that’s inconsistent with the evidence, because after the head injury the evidence is that this baby would not be crying and doing the things that has been happening.
“I don’t have any problem not giving it. I don’t think it is supported by the evidence. And given the specific objection to it, I won’t give it.”
“[Defense Counsel:] But Doctor, let me interrupt you. You also said that those abdominal injuries could also be caused by inappropriate CPR; is that correct?
“[Dr. Reiber:] It’s possible. I think it’s very unlikely.
“[Defense Counsel:] But it is possible?
“[Dr. Reiber:] It’s conceivable, yes.”