Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County, Super. Ct. No. KA073172 Charles E. Horan, Judge.
Salvatore Coco; and Sandra J. Applebaum, under appointment by the Court of Appeal, for Defendant and Appellant Jose Luis Gonzalez.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant Aurora Gonzalez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendants and appellants, Jose Luis Gonzalez and Aurora Gonzalez, appeal from the judgments entered following their convictions, by jury trial, for their roles in the death of a neighbor’s 19-month-old child. Aurora was convicted of felony child abuse. Jose was convicted of felony child abuse, second degree murder, assault resulting in the death of a child under eight, with an enhancement for infliction of pain likely to cause great bodily injury. (Pen. Code, §§ 273a, subd. (a), 187, 273ab, 12022.95.) Sentenced to state prison for two years (Aurora) and 25 years to life (Jose), the defendants contend there was trial error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgments are affirmed.
BACKGROUND
1. Prosecution evidence.
Selena Andredas Saldana was the mother of 19-month-old David Del Toro. On her way to work in the mornings, Selena would drop David off at the home of defendants Aurora and Jose Gonzalez, who lived just four or five houses down from Selena. Aurora took care of David while Selena was at work.
David’s 15-year-old sister testified that on the evening of November 2, 2005, she had gone to Sunshine Park with David and 19-year-old Jonathan Solis. David was fine at that time; he was not ill and there had been no accidents at the park. Solis, whose parents rented out a room in their house to Selena, also testified David had been fine at the park. That night, David’s sister put him to bed. When she changed his diapers, she did not see any bruises on his stomach.
All further calendar references are to the year 2005 unless otherwise specified.
On Thursday, November 3, Selena awoke at 5:00 a.m. David had slept with her that night and, in the morning, he appeared normal and calm. When Selena changed him, she did not see any marks or bruises on his stomach. Selena dropped David at Aurora’s, as usual, and went to her factory job.
J.J., who was a high school student, lived with his father, Jose, and his step-mother, Aurora. J.J.’s high school was three miles from home, and his schedule required him to be at school from 12:00 p.m. to 3:00 p.m. J.J. testified Aurora had been babysitting for David since the summer. When J.J. awoke at 8:00 a.m., his parents were both home. Aurora then left the house for a while with his younger sister, but returned to the house about 11:45 a.m.
J.J. testified that, while Aurora was gone, he saw Jose with David outside the house:
“Q. What, if anything, was your father doing with David?
“A. Well, on that day David Del Toro was kind of sad.
“Q. Outside, what, if anything, was he doing?
“A. Well, he was – when I got outside, when I saw him, he already vomited. So I saw his vomiting right there on the [ground], and then my dad told me just to go inside and bring some tissue so I can clean up the vomiting.
“Q. Was your father holding David while the two of them were outside?
“A. Yes.
“Q. Can you describe for us at this point how David – this is at the point when David is outside, your father is outside – at that point how did David look?
“A. He looked like he was already sick.”
Jose changed David’s shirt and David did not vomit after that.
Jose began mowing the lawn. At one point, he asked J.J. to go inside and check on David, who was in his stroller in the living room. J.J. went to check and found David “making this like weird marks [sic] like as if he has some pain around his . . . chest.” David looked ill. He was clutching himself above his chest and “whining that his chest was hurting.” At about 11:00 a.m., J.J. noticed that David appeared to be unconscious. He saw David “roll his eyes all the way back.” Jose and J.J. were both in the living room at this time. Jose “sat [David] up to see if he was unconscious, and then [Jose] let him go and he fell [forward] in his stroller down where the cup goes, on the cup holder.”
By the time Aurora returned home shortly before noon, David was still unconscious. Aurora took him out of the stroller, “held him in her hands and she sat on the couch trying to wake him up.” Aurora said to call 911, but Jose told her not to call, that he would call Selena first to see what she wanted to do. At noon, Jose left to give J.J. a ride to school. Aurora was on the phone with Selena when Jose and J.J. left the house. J.J. admitted lying to the police initially by telling them Aurora took David with her that morning when she went to drop her younger children off at school. In fact, David had been alone at the house with Jose and J.J. from 8:30 a.m. until 11:45 a.m. J.J. denied having punched or hurt David, and testified he did not see his father hit David or yell at him.
Selena testified that, after she returned from her lunch break at work, she got a phone call from Aurora, who said David had been vomiting all morning. Aurora asked if she should take him to the hospital. Although Aurora said it was urgent, she did not say David was unconscious or that he could not sit up in his stroller. Based on Aurora’s call, Selena did not think David’s condition was life-threatening.
Jose picked Selena up from a bus stop near her job. He was very calm. When Selena asked about David’s condition, Jose said, “[W]omen were the ones that were desperate, his wife that worried.” When they got to the Gonzalez house, David appeared to be unconscious. When Selena lifted one of his eyelids, David’s eye was “rolled up.” There was fresh blood and a bruise on his lip; Aurora said David had hit himself with his bottle. Selena said she was going to call 911, but Aurora said Jose would drive them to a nearby hospital.
David was put into Jose’s car. They stopped at Selena’s house for two or three minutes so she could get David’s health insurance card. Jose then drove to the hospital in a “normal way,” without hurrying. After dropping Selena and David at the hospital, Jose left a few minutes later, saying he had to pick his children up from school.
David never regained consciousness after Selena picked him up from the Gonzalez’s house. He was on life support for six days, and then died in less than a minute when the life support was removed. Selena had previously seen marks and bruises on David’s face. When she asked about them, Aurora said David had hit himself.
Fernando Del Toro Rivas was David’s father. Due to financial troubles, he spent a lot of time in Mexico from May to October. The last time he had been alone with David was on October 29. When he saw David on the afternoon of November 2, David was doing well.
Areceli Rangel was a site director/teacher at Options Preschool, located next to La Seda Elementary School. Defendants’ four-year-old daughter was a student of Rangel’s. The preschool requires volunteer work from the parents a couple of times a month. Aurora had signed up to volunteer on November 3; she came in at 8:45 a.m. and left at 11:45 a.m.
On November 16, a week after David died, Aurora came to La Seda Elementary School and asked to speak with the principal. Because the principal was out, she spoke to Norma Parra, the office manager. Aurora asked if the school could write her a character reference letter. She explained that she had been taking care of a young child who “hadn’t been feeling well, he had been vomiting. She gave him something to eat and then . . . noticed that he started to behave like he was having . . . a little tantrum. She didn’t know exactly what was going on, . . . he was shaking . . . so she picked him up and put him down on the sofa to rest.” Aurora said this had happened at about 10:30 a.m. When she checked him at 11:30 a.m., his body was limp and she could not wake him up. The child was hospitalized with broken ribs and a head injury, and subsequently died.
Dr. Norman Owashi, an emergency room physician at Queen of the Valley Hospital, testified about his treatment of David on November 3. When David arrived at the hospital at 1:43 p.m., he was “actively seizing” and unconscious. His right pupil was “blown,” which meant it was “markedly dilated and did not react to light.” This was a “very, very bad sign” indicating “marked brain swelling.” David had bruising on the right side of his abdomen. CAT scans revealed a subdural hematoma, which is bleeding in between the brain and the dura, the sack covering the brain. Owashi opined this subdural hematoma had been caused by “[s]evere blunt trauma.” There were also bilateral rib fractures of varying ages; some were fresh and others were already healing. David’s liver had been lacerated. This was a new injury, and it had caused internal bleeding and a collection of blood in the abdominal cavity.
Owashi opined the laceration to David’s liver “had to have occurred” the day he was admitted to the hospital, and not too long before his arrival. He based this opinion on the amount of free-flowing, unclotted blood from the liver laceration that had collected in the abdomen: “[T]he liver laceration, if it would have been much earlier, he would have died from bleeding into his abdomen.”
Owashi testified David’s condition at the time of his admission was “very grave and precarious.” Asked, “If a responsible adult had seen his condition earlier, would you expect them to have brought him to the hospital earlier?”, Owashi replied: “I think even nonmedically trained persons, they see how ill David was, would recognize that the patient was in a grave situation and bring the patient in.” In response to his acknowledgment that David’s symptoms would have become progressively worse over time, Owashi was asked if the severe symptoms he observed might not have been apparent “an hour earlier to a nonmedically trained person.” Owashi replied, “I’m thinking of what was seen on the CAT scan of the initial injury of the brain, and the injury was so massive, I think they would be able to see something. Was it worse by the time they came into the emergency department? I would definitely say yes because of the secondary swelling. [¶] Again I would think that in terms of the initial injury, that there should be some signs somebody would be able to notice that the baby was not right.”
Because Queen of the Valley Hospital did not have a pediatric ICU, David was transferred to Children’s Hospital of Orange County.
Dr. Joseph Halka, who worked with the Orange County Sheriff-Coroner’s Office, performed the autopsy on David. Halka testified he had worked as a forensic pathologist since 1969 and was board certified in anatomical, clinical and forensic pathology. He had done between 15,000 and 17,000 autopsies, of which 1,500 to 1,700 had been performed on children.
Like Owashi, Halka found evidence of both new and old injuries. There were older injuries to David’s spleen and right kidney that were already healing. His pancreas had both a recent injury and old injuries which had already calcified. There were pre-existing injuries to the lungs and the left eye. The eye injury had been caused by a “direct blow.” There were calluses which indicated that old rib fractures were mending.
Halka testified he found a pool of blood in David’s abdomen, as well as intercostal muscle hemorrhaging associated with rib fractures. David had lost about 400 milliliters of blood, which was 20 percent of his total supply. Halka found no blood clots in the abdominal area, which was significant because clotting normally begins quickly. There were hemorrhages to three ribs on the left side and one rib on the right side. David’s abdominal and rib injuries could have been caused by being squeezed or punched. A spinal cord injury indicated there had been “a very severe kind of force. Analogy is often used, you see this in fall from heights, traffic collisions, that kind of injury. Very forceful.”
Halka observed a surface tear in David’s liver that had apparently been caused by the liver being pressed against a protuberance of the spinal column. Although the amount of force required to lacerate the liver would be “a lot less” than that involved in the spinal cord injury, merely bumping up against something would not have caused this type of injury: “You would need to compress the liver over the spinal column so the amount of pressure would have to be at least significant. Usually when you only bump into something, as we do items of furniture, only the skin surface is injured, but the deep organs are not. [¶] Q. So this would have taken some degree of force? [¶] A. Yes.” The liver laceration was so serious because “it was a significant tear consuming a large portion of the blood volume in a child.”
David’s brain had hemorrhaged on both sides, injuries which had most likely been caused by blunt force trauma to the head. “Children fall all the time, so that kind of accidental short fall would not cause this particular kind of hemorrhage. This is a hemorrhage which is caused by a forceful . . . and focused blow to the head.” Halka testified the blow to David’s head would have rendered him immediately unconscious, and that the abdominal injury had occurred after the head blow.
Halka had listed the cause of death as “[e]xsanguination, or blood loss, due to the laceration of the liver, which was due to a blunt force trauma to the abdomen.” He testified, however, that there had actually been “[m]ultiple potential causes of death” because the head blow could have also caused David’s death: “I think the dying process beings with the head injury. The culmination . . . is the blood loss in the abdomen.” The rib fracture associated with the intercostal hemorrhage had occurred on the same day as the head and abdominal injuries. Based on David’s admission to Queen of the Valley hospital at 1:43 p.m., Halka opined that all these injuries had been inflicted on David after 8:45 a.m. on the morning of the day he was admitted to the emergency room.
2. Defense evidence.
Dr. Stephen Steinfeldt, a radiologist, had reviewed David’s x-rays. He opined the rib fractures were of varying ages: “There are multiple fractures, most of these are old. They may be relatively recent but majority of these injuries are all old, at least over seven to ten days. Probably much longer than that. Two, three, four, five, six weeks or longer.”
Dr. Griffith Thomas, a clinical pathologist, testified he was board certified in anatomic and clinical pathology. He had practiced forensic pathology “for years,” but “never took the board exams.” The only written reports he had ever prepared were for “hospital and laboratory biopsies.” Thomas testified that, although he had done some autopsies, he had never done any forensic autopsies involving trauma and he had practiced forensic pathology only as a consultant. He testified, “Well, I’ve never by myself been responsible for doing forensic pathology.”
Thomas had reviewed Dr. Halka’s autopsy report, the hospital records and a transcript of Halka’s trial testimony. Thomas testified he would not expect to find clotting of the stagnant blood from the liver laceration. He opined David’s head injury would not necessarily have rendered him immediately unconscious, and that he could have regained consciousness at the hospital. Thomas testified he could not determine when the head and abdominal injuries occurred: “It would end up speculation. I mean, in pathology, you see the end result. There are certain things that you can time such as, say, the age of a myocardial infarct, heart attack, but in a situation like this, I would not be able to set any time parameters whatsoever.”
The prosecutor asked Thomas, “Would you agree, sir, that it would take a substantial and overwhelmingly [sic] amount of force to cause a hemorrhage in the spinal column?” Thomas replied: “It certainly would – well, I can’t quantitate a substantial force, but any force to a . . . child’s abdomen, they are very fragile because a child, unlike adults, if you see a blow coming, you are going to stiffen up. A child has no defense like that. So if you put a fist to a child or a foot to a child’s abdomen, there’s no defense . . . .” (Italics added.)
CONTENTIONS
1. There was insufficient evidence to sustain Jose Gonzalez’s convictions.
2. There was insufficient evidence to sustain Aurora Gonzalez’s conviction.
3. Jose Gonzalez’s attorney rendered ineffective assistance.
4. Jose Gonzalez’s convictions should be reversed due to cumulative error.
DISCUSSION
1. There was sufficient evidence to sustain Jose Gonzalez’s convictions.
Jose contends the evidence was insufficient to sustain his convictions for felony child abuse, second degree murder and assault on a child causing death. This claim is meritless.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – that is, 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 federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Jose’s argument essentially consists of cherry picking exculpatory bits of trial evidence and then arguing this evidence might have led a reasonable jury to acquit him. For instance, he points to evidence indicating David might have suffered an accidental injury at Sunshine Park, that he might have been suffering from a pre-existing illness, that there were inconsistencies in the testimony of David’s parents, that Selena admitted she spanked her children as a form of discipline, and that Dr. Thomas testified it was possible David’s injuries had not rendered him immediately unconscious. Then, noting there was no direct evidence he had battered David, Jose asserts the evidence was insufficient to convict.
But this approach cannot succeed. “ ‘An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.’ [Citation.] ‘Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].’ [Citation.]” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, ‘without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[ ] of conviction.’ [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient.” (Ibid.) “If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jury’s verdict may lie in the evidence he ignores.” (Id. at p. 1574.)
As the prosecutor told the jury during closing argument, proof of Jose’s guilt came down to a question of which medical expert was more believable: “I told you in opening statement that Dr. Halka was going to put the murder, the time frame when defendant Jose Gonzalez, Sr., had care and custody of the child [sic]. So the case to a certain extent comes down to Dr. Halka versus Dr. Thomas. So I wanted to look at some differences in their backgrounds so you could get a sense of which expert should be believed.” “Dr. Halka has performed over 15,000 forensic autopsies . . . and he’s coming in and he’s telling you based on his experience . . . that it was within that time frame. How many has Dr. Thomas performed? Zero forensic autopsies.” “All right. Halka, full-time forensic pathologist since [1969]. Thomas, he has never been a full-time forensic pathologist.” “We know that Dr. Halka has passed his boards in forensic pathology. It’s a subspecialty of pathology and he’s passed them. [¶] What do we know about Dr. Thomas? He is not board certified in forensic pathology.” “Halka prepared a report. He was cross-examined on it. Both counsel relied upon the report to understand this case. Dr. Thomas did not prepare a report.”
The prosecutor continued, “Why is this important? Why am I spending time talking about Dr. Halka? Because of the time line.” The prosecutor pointed out the evidence showed Selena had caught the 6:30 a.m. bus for work, that Aurora arrived at the preschool at 8:45, and that she left the preschool to return home at 11:45: “Why is that important? Because we can establish during that time period that Aurora is out of the house. Why does that matter? Dr. Halka says this happened after 8:45 and that’s why it’s important.” “By the time Aurora got home, that child had been battered.”
Regarding the autopsy evidence showing David had suffered old as well as new injuries, the prosecutor said, “What access did Jose . . . have to David? We gave you the time cards. You go through it yourselves. Don’t take my word for it. June 2nd, June 9th, June 16th, June 23rd, June 30th, July 7th, July 14th, July 21st, July 28th, August 4th, August 11th, August 18th, August 25th, September 1st, September 8th, September 15th, September 22nd, September 29th, October 6th, October 13th, October 20th, October 27th, November 3rd. Those are the Thursdays that that man was home while young David Del Toro was being watched by his wife. Those were the Thursdays, each of these days, that he had access to that child. [¶] So when you look at the old injuries, these are the days that show he had access. And we know he had access because his employer keeps track.”
The prosecutor argued Halka’s forensic medical examination proved David’s fatal injuries had been inflicted the same day he was admitted to the emergency room: “What do we know based on the autopsy? The external bruises. There was [sic] no inflammatory cells and no iron deposits. And now you have heard that that would be the first sign, when you start having the inflammatory cells, of healing. None from the external bruises. [¶] What else do we know? No clotting in the abdominal area. Approximately two cups of blood was [sic] recovered at autopsy. There were two liver tears. There was bleeding in the mesentery. There was bleeding in the retroperitoneal.” “Direct your attention back to Dr. Halka’s testimony. And when he talked about the liver laceration, he said, ‘I looked at it microscopically.’ He’s not saying there wasn’t any clotting just because there wasn’t clotting in the blood. He’s looking at the slide. The slide taken of the tissue by the liver, the liver laceration. That’s [what] he’s looking at. That microscopic slide. [¶] He’s saying there was no clotting. Dr. Thomas did not dispute that. Did not dispute that.” “What else do we know? Bleeding in the epidural of the spinal cord; okay? [¶] . . . [¶] And what did Dr. Halka say? This was an injury analogous to a type of fall, and he’s saying it’s by way of analogy, to understand the . . . type of force. It’s a fall from a severe height or a traffic collision. That type of force.”
The prosecutor argued “the evidence has proven these crimes occurred while Jose . . . had care and custody of this child.” “Jose was left with the child while Aurora went to Options Preschool. . . . [¶] Did the person willfully cause the . . . health of this child to be injured? Well, folks, here’s the picture, the diagram of the punch. These are the injuries. He caused, he willfully caused the person or health to be injured.” “Implied malice murder. Was the natural consequences of the act dangerous to human life? Is it dangerous to punch a child in the abdomen with the type of force that would cause the spinal cord to be hemorrhaged? Is that dangerous to human life? Ladies and gentlemen, People submit that it is.”
In turn, the defense argued that any injuries suffered by David had been inflicted by someone other than Jose. Defense counsel told the jury: “It’s the [defendant’s] position . . . that Jose Gonzalez did not in any way injure or harm David Del Toro. It’s our position that that child was injured before he ever arrived at the babysitter’s house.” “[W]ho had access to this child other than Thursdays? The parents had access to this kid every day they wanted to.”
In rebuttal, the prosecutor again pointed to the medical evidence: “[W]e’ve proven beyond a reasonable doubt the crime happened after [David] was in [Jose’s] care. Dr. Owashi told you it was an injury that happened that day. [¶] Now, he’s not a forensic pathologist. He says, ‘I can’t be more precise than that. That’s not something that I do. I try to fix them and move them on.’ [¶] But Dr. Halka says, ‘You know what? That’s what I do. I look and I work backwards and I use deduction and I think about these things.’ ” “And Dr. Halka said, ‘Hey, these two blows occurred after 8:45, both of them.’ Now, we maintain it’s the liver that was the ultimate blow because there was no clotting, and we maintain it’s the liver that Jose Gonzalez hit. . . . [¶] And Dr. Halka said, ‘And you know what? The head happened the same day. The head happened after 8:45.’ And he’s telling you this based upon his experience.”
Contrary to Reynoso’s claim, there was sufficient evidence David’s fatal injuries had not been inflicted before he arrived at the Gonzalez home on November 3, that J.J. and Jose were alone with David after Aurora left for the preschool, and that the fatal injuries were inflicted before Aurora returned home sometime after 11:45 a.m. There was sufficient evidence those injuries had been inflicted by Jose, not by J.J. There was sufficient evidence Jose intentionally battered David on the morning of November 3, and that the injuries he inflicted caused David’s death.
2. There was sufficient evidence to sustain Aurora Gonzalez’s conviction.
Aurora contends there was insufficient evidence to sustain her conviction for felony child abuse. This claim is meritless.
Aurora was convicted of violating section 273a, subdivision (a), which provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.”
“Violation of section 273a, subdivision (a) ‘ “can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.” [Citation.] . . . Section 273a[, subdivision (a)] is “intended to protect a child from an abusive situation in which the probability of serious injury is great.” [Citation.] “[T]here is no requirement that the actual result be great bodily injury.” [Citation.]’ [Citation.]” (People v. Valdez (2002) 27 Cal.4th 778, 784.) “As construed to contain a criminal negligence requirement, section 273a, subdivision (a) sets forth a standard of conduct that is rigorous. Ordinary negligence will not suffice. Specifically, criminal negligence involves ‘ “a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . or an indifference to consequences.” ’ [Citation.]” (Id. at p. 788.) “When that departure endangers the person or health of a child and is ‘under circumstances or conditions likely to produce great bodily harm or death,’ it constitutes a felony violation of the child endangerment statute. (§ 273a, subd. (a).)” (Id. at p. 790.)
The prosecution theory was that Aurora was guilty of felony child endangerment because of her role in the almost two-hour delay in getting David medical attention after she returned home from the preschool. Aurora contends there was insufficient evidence to sustain this theory. Some of her arguments, like Jose’s, are facially inadequate. For instance, Aurora argues the trial evidence “was controverted as to how serious David’s condition may have appeared around noon. Indeed, medical testimony established that David’s injuries occurred shortly before appellant arrived home and that they were the type of injuries where the signs of medical distress progressed over time.” Again, the mere fact that evidence was controverted does not mean there was insufficient evidence to sustain a conviction. That the symptoms of David’s injuries would have appeared progressively more severe over time does not mean that, when Aurora returned home, his condition would not have alerted a reasonable person to the need for immediate treatment.
Aurora argues the evidence shows she tried to deal with the situation responsibly by notifying Selena and offering to take David to the hospital, but that Selena said she wanted to take David herself. However, Selena testified Aurora did not say anything about David being unconscious or unable to sit up in his stroller; Aurora only said David had been vomiting.
Aurora argues, “The fact that while on their way to the hospital, [Selena] wanted to stop by her house to pick up David’s insurance card corroborates the notion that neither appellant, nor [Selena], realized exactly how serious David’s injuries were.” But not only did Aurora have a lot more information than Selena had, but Selena lived only a few houses away and she testified it only took two or three minutes to retrieve the insurance information.
Aurora argues there was “absolutely no indication that [she] failed to call 911 with the knowledge that it would endanger David’s life . . . .” But Aurora’s subjective awareness of the risk involved was not one of the elements of felony child endangerment. Valdez is specific on this point: “Defendant asserts one violating section 273a, subdivision (a) must have a subjective awareness of the risk in order to violate the felony endangerment prong of section 273a, subdivision (a). Again, however, nothing in the statutory language – willfully causing or permitting a child to be placed in a situation where his or her person or health is endangered – appears to require such an awareness. Section 273a, subdivisions (a) expressly imposes no specific mental state requirement other than willfulness . . . .” (People v. Valdez, supra, 27 Cal.4th at p. 790.)
Aurora complains the Attorney General “makes much of the fact that appellant . . . told the police that she was with David that morning. The ‘deception,’ according to respondent, indicates her consciousness of her husband’s guilt and explains why she did not call 911, thereby endangering David’s life.” Aurora argues this reasoning is flawed because “[w]hatever [she] said, did, or felt after the fact is immaterial.” Not so. Aurora’s subsequent conduct was relevant because it shed light on her earlier conduct and state of mind. (Cf. People v. Hannon (1977) 19 Cal.3d 588, 599 [subsequent efforts to suppress inculpatory testimony are admissible consciousness of guilt evidence]; People v. Vu (2006) 143 Cal.App.4th 1009, 1029 [“Evidence the defendant used a false alibi is relevant to prove consciousness of guilt.”].)
Aurora argues, “[A]lthough it might indeed have been wiser to call 911, it is uncontroverted . . . that appellant’s error in judgment was not a contributing factor to David’s death and that, therefore, she did not create the danger to David.” The predicate for this argument is that causation is an element of felony child endangerment. It is not. The issue is whether Aurora’s conduct might have caused David harm. “Section 273a provides for felony punishment where certain actions are committed ‘under circumstances or conditions likely to produce great bodily harm or death.’ A misdemeanor status is to those acts committed ‘under circumstances or conditions other than those likely to produce great bodily harm or death.’ For the felony punishment there is no requirement that the actual result be great bodily injury. The statute is intended to protect a child from an abusive situation in which the probability of serious injury is great.” (People v. Jaramillo (1979) 98 Cal.App.3d 830, 835.)
Aurora’s opening brief contains the following undeveloped cultural defense claim: “In addition, if one is to evaluate appellant’s judgment based on a reasonable person standard in defendant’s position, one must also take into consideration the traditional role of women in Mexican households.” Aurora doesn’t bother to explain what that traditional role is or how it affected this case, what evidence was presented at trial to make out a cultural defense, or what legal authority supports a cultural defense. The failure to properly develop an argument is fatal on appeal. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”].)
3. Jose’s ineffective assistance of counsel claim is meritless.
Jose contends his defense counsel rendered ineffective assistance. This claim is meritless.
a. Legal principles.
A claim of ineffective assistance of counsel has two components: “ ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.] [¶] To establish ineffectiveness, a ‘defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ [Citation.] To establish prejudice he ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (Williams v. Taylor (2000) 529 U.S. 362, 390-391 [120 S.Ct. 1495].)
“ ‘If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.’ [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1053.) “In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny” in order to avoid “the adverse consequences that systematic ‘second-guessing’ might have on the quality of legal representation provided to criminal defendants and on the functioning of the criminal justice system itself.” (People v. Ledesma (1987) 43 Cal.3d 171, 216.)
Initially, Jose claims his convictions must be “reversed per se” under United States v. Cronic (1984) 466 U.S. 648 [104 S.Ct. 2039], because defense counsel “entirely failed ‘to subject the prosecution’s case to meaningful testing.’ ” Jose does not try to explain how this can be true given that defense counsel cross-examined the prosecution witnesses, put on defense witnesses, and made a closing argument. (See Jones v. Superior Court, supra, 26 Cal.App.4th at p. 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”].)
b. Discussion.
Jose complains defense counsel failed to give any opening statement. However, “decisions whether to waive opening statement and whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) As the Attorney General argues, this could have been a reasonable tactical choice given the several lines of possible defense available depending on the prosecutor’s tactical approach. Jose does not suggest what defense counsel should have said in an opening statement.
Jose complains that, after properly objecting to the admissibility of gruesome autopsy photographs, defense counsel’s failure to adequately argue the objection led to the admission of those photographs. Asserting the trial court admitted the photos as relevant to such issues as the age of David’s injuries, how they were inflicted and by whom, Jose argues: “[H]ow the injuries were inflicted was not really the issue, but only when they were inflicted and by whom . . . .” This argument is belied by Jose’s own assertions throughout this appeal that there was evidence David might have been accidentally hurt while playing at Sunshine Park or falling down some stairs, or that David might have had a pre-existing illness because he had been sick in October.
Jose complains defense counsel failed to object to the prosecutor’s argument that Jose had access to David when the old injuries had likely been inflicted. Jose argues, “[I]n fact, all the prosecution proved is that Appellant did not work on Thursdays, and nothing more than that.” But that’s the point. The evidence showed Selena brought David over to the Gonzalez house on weekdays, which included Thursdays, Jose’s day off.
Jose complains defense counsel did not object when the prosecutor argued Jose had “acted out of anger or frustration in harming David, even though there was absolutely no evidence thereof.” But the medical evidence established the kind of force used against David was so substantial it would not have been caused by something like an accidental fall. Even the defense expert, Dr. Thomas, agreed it would have taken great force to cause the hemorrhaging in David’s spinal column. Hence, it was reasonably inferable Jose had acted out of anger or frustration.
Jose complains defense counsel declined the trial court’s offer to give a motive instruction (former CALJIC No. 2.51). Jose argues, “Under the circumstances of this case where no one actually saw Appellant physically harm David . . ., and where there was evidence presented that other persons may have caused David physical harm and/or that he was injured playing in the park the night before he went to the hospital . . ., it was crucial to show . . . that Appellant lacked any motive to cause David any physical harm.” But the child battering at issue here was not likely to have involved the kind of conscious motive addressed by CALJIC No. 2.51.
Jose complains his chief defense expert, Dr. Thomas, had not reviewed all the medical reports, and that although Thomas “had referred [defense counsel] to a radiologist to review the x-rays . . . it appears that [defense counsel] never consulted with a radiologist, and he certainly did not call one to testify.” These complains are groundless. As the Attorney General points out, defense counsel did have a radiologist, Dr. Steinfeldt, testify. Jose does not explain how he was prejudiced by defense counsel’s failure to provide Thomas with all the medical reports. Dr. Thomas reviewed the Children’s Hospital records and the autopsy findings. Although he did not review the emergency room record from Queen of the Valley Hospital, he testified the information necessary for his expert opinion had been included in the Children’s Hospital record.
Finally, Jose complains defense counsel failed to request that the jury be instructed on simple assault as a lesser included offense. But as the Attorney General points out, “[T]his represents another classical case of a tactical decision made by trial counsel. A request of simple assault could be a hint to the jury that, although appellant committed the assault, he did not mean the consequences. This could have obviously been seen by the jury as a concession on the very issue that was most in doubt, identity.” (RB 52)
Jose has failed to demonstrate defense counsel rendered ineffective assistance.
4. There was no cumulative error.
Jose contends that, even if harmless individually, the cumulative effect of these claimed trial errors mandates reversal of his convictions. Because we have found no errors, his claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
DISPOSITION
The judgments are affirmed.
We concur: KITCHING, J., ALDRICH, J.