Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C148346
Jenkins, J.
Introduction
In this case the prosecution alleged that over a period of time, defendant physically abused his three-year old son, Chazarus Hill, Jr., resulting in his death. The medical evidence showed Chazarus was systematically beaten and, as a result thereof, he sustained multiple blunt force traumas to the head and bruises and contusions on every part of his body causing death.
The three-year old victim, defendant’s son, was also named Chazarus. We shall refer throughout to the victim as “Chazarus” and to defendant Chazarus Hill as “defendant.”
Defendant was charged in a three-count information with murder (Penal Code, § 187), assault on a child causing death [child homicide] (§ 273ab), and felony child abuse involving the infliction of great bodily injury on a child less than five years old (§§ 273a, subd. (a), 12022.7, subd. (d)). Each count carried an allegation that the victim suffered great bodily injury (§§ 1203.075), and an allegation defendant used a deadly or dangerous weapon, namely, a switch or belt, (§ 12022, subd. (b)(1)). Count Three carried a separate allegation that defendant inflicted great bodily injury on a child under 5 years of age. (§ 12022.7, subd. (d).)
Further statutory references are to the Penal Code unless otherwise noted.
A jury returned guilty verdicts on the child homicide and felony child abuse counts, and found the accompanying allegations true. The jury returned a verdict of involuntary manslaughter on the murder count. Defendant filed a timely notice of appeal following the trial court’s imposition of a total indeterminate term of 26 years to life.
Defendant contends: (1) the jury instruction on the mental state required for child homicide was legally inadequate; (2) there is insufficient evidence to support his conviction for child homicide and for the jury’s finding that he used a deadly or dangerous weapon in the commission of the offence; (3) the case should be remanded for the trial court to exercise its discretion in deciding whether unusual circumstances allow defendant to be considered as eligible for probation. Having considered each of defendant’s assertions of error, we find them meritless and affirm.
Factual Background
A. Prosecution Evidence
1. Medical Evidence
At around 2:00 a.m. on the morning of Saturday, September 20, 2003, Dr. Gail Hubbell was on duty at San Leandro Hospital when she learned that defendant had brought a dead child (Chazarus) to the hospital. Dr. Hubbell asked defendant about what happened beforehand. Defendant told Dr. Hubbell that he had picked Chazarus up at 1:00 a.m. from his mother at a house in Hayward, and at that time Chazarus was groggy and uncommunicative. Defendant stated that he noticed Chazarus was not breathing properly, so he splashed him with cold water. When Chazarus did not revive, defendant said he attempted C.P.R. before getting in the car and driving Chazarus to the hospital. Defendant also told Dr. Hubbell that he had not seen Chazarus for two weeks prior to collecting him that night from his mother.
Dr. Hubbell stated that upon arrival at the hospital Chazarus was not breathing, had no pulse and showed no signs of life. Dr. Hubbell noted the body displayed signs of dependent livedo — pooling of the blood — an indication that Chazarus may have been dead for a period of time. Dr. Hubbell noted that Chazarus had “many bruises on the body, and also had puncture wounds all over the legs, and also on one side of the body near the ear and the side of the face.” There was some ecchymosis — large bruises — present on this forehead and right cheek. After attempts to revive Chazarus proved futile, he was pronounced dead at 2:45 a.m.
Dr. Paul Herrmann performed the autopsy on Chazarus around 9:00 a.m. the same day, and testified as a qualified expert pathologist. Dr. Herrmann stated Chazarus was about three-and-a-half years old at the time of death, weighed about 40 pounds and measured about 41 inches. Dr. Herrmann noted abrasions — areas where the skin has been scraped away — on the right cheek, nose, forehead, upper lip, and a large contusion (bruise) on the right cheek. There was another large bruise in front of the right ear. Also, there was bruising and abrasions on the left cheek and an abrasion on the upper neck. Dr. Herrmann also noted a large area of contusion on the forehead and some associated abrasions. He observed a total of five areas of fresh bruising on the right cheek; abrasions behind both ears; and abrasions on the back of the head and upper neck.
Dr. Herrmann explained that he made an incision through the scalp and peeled the scalp back from the surface of the skull in order to see if the skull showed signs of injury. He found numerous contusions on the scalp that could not be seen from the outside. Also, Dr. Herrmann noted multiple contusions on the left arm and left side of the chest; multiple contusions just under the nipple on the right side of the chest; and multiple patterned contusions on the lower abdominal wall, indicating that the skin had been struck with an instrument at considerable force. He opined that the patterned bruises were consistent with blows from a belt buckle. Dr. Herrmann opined at trial that the contusions on the abdomen showed a pattern consistent with Chazarus having been struck with an object like a belt buckle or the toe of a shoe.
On the back side of the body, Dr. Herrmann noted on the right side of the back contusions so numerous that they merged together; scattered contusions on the left side of the back; and a prominent contusion on the back of the left arm. Dr. Herrmann explained that because the buttock area has a lot of fat beneath the surface, the skin tends to just indent when struck. However, when he made incisions in the skin on the buttocks he discovered extensive hemorrhaging beneath the surface of the skin. There were also abrasions on the buttocks. On the legs, the right thigh showed large areas of continuous contusion, making it impossible to count the number of contusions separately; numerous contusions on the left thigh, multiple contusions involving “most of the surface of the right leg”; and multiple contusions on the front of the left leg. Numerous scratches and abrasions on the legs were consistent with Chazarus having been hit with “a tree-like switch material.”
Dr. Herrmann’s internal examination revealed no injury to the lungs or heart. However, he noted internal injuries to the head. “Near the entire undersurface of the scalp showed hemorrhage, indicating multiple blows to the head. We were not able to count them, because the hemorrhage simply involved the entire undersurface of the scalp,” Dr. Herrmann stated. He went on: “The brain showed the presence of subdural hemorrhage and subarachnoid hemorrhage, which means there was hemorrhage on the surface of the brain. . . . And as a result of these injuries to the head, there was swelling of the brain. [¶] [The bruising to the body] probably was also a contribution to that swelling [of the brain], because this child had obviously lost a lot of blood in the tissues of the skin, and as a result of that, was not carrying enough oxygen to the brain, too, which caused brain swelling. [¶] But the brain swelling primarily was due to blunt injuries to the head. And the child’s death was actually caused primarily by the blunt injuries to the head and surface of the brain, with hemorrhage inside the head, with a contribution to his death from the loss of blood in the soft tissues of his skin [due to the considerable contusions all over the body].”
Dr. Herrmann opined that the force employed in the blows to the head was “considerable, because in order to get those hemorrhages of the brain, there has to be a violent movement of the head relative to the movement of the brain.” This requires “a lot of force,” quite unlike “being under a table and rising up and forgetting that you are under the table and thumping your head.” Violent trauma to the head was also indicated in the histological (tissue) examination showing hemorrhage along the nerves of the eye and in the retina of the eye. Dr. Herrmann stated that he gave the cause of death as “blunt trauma to the head and trunk and extremities.” On cross-examination, Dr. Herrmann opined that it is unlikely Chazarus would have died absent the injuries to the head.
Dr. James Crawford, the Medical Director of the Center for Child Protection at the Children’s Hospital in Oakland, testified as an expert in the medical evaluation of child abuse and neglect. In April 2006, Dr. Crawford reviewed various items relating to Chazarus’ death, including the coroner’s report, the autopsy report and accompanying photographs, medical records from San Leandro Hospital and police reports. Dr. Crawford stated that the number of injuries on Chazarus’ body were “almost too numerous to count. [¶] He had injuries involving the soft tissue of his body in virtually his entire body: both of his arms, both of his legs, the front of his chest, the back of his back, his abdomen, his buttocks, his face, [and] his head. He was literally covered with injury, which is it’s [sic] extremely unusual to have this extent of injury.” These injuries, Crawford stated, were consistent with blunt force trauma, “meaning some type of an impact to the body that was very widely distributed that was clearly consistent with truly extreme physical abuse. This child was quite seriously and quite systematically beaten.”
Regarding Chazarus’ head injuries in particular, Dr. Crawford stated that the extensive hemorrhaging encompassing almost the entire scalp, coupled with the amount of subdural and subarachnoid hemorrhaging, show that “there were many impacts to the head,” which “speaks to the extreme nature of the violence directed towards this child’s head.” Dr. Crawford opined that one could imagine the level of violence directed at the child as “if this child walked on to a football field” without a helmet against collegiate athletes. He further opined: “So, what’s significant in this case is that he was hit hard enough in a wide enough distribution that each of those impacts caused injury. So he wasn’t just hit everywhere. He was hit hard enough virtually everywhere that bleeding happened.” Dr. Crawford distinguished between “pattern injuries and nonpattern injuries,” the difference being that a pattern injury “looks like the object that caused it.” The injuries to Chazarus’ stomach were pattern injuries, suggesting Chazarus was struck with an object a number of times. Moreover, all the bruises Chazarus displayed at the time of death were fairly recent, which “speaks to the violence he experienced in the last week or two.”
2. Investigating Officers
Oakland Police Sergeant Mark Dunakin worked in the homicide unit and was dispatched at around 3:12 a.m. on the morning of Saturday, September 20, 2003, to investigate an infant death at San Leandro Hospital. After contacting defendant and his wife, Kimberley Ford Hill, who had accompanied defendant to the hospital, Dunakin requested that they both be transported to the police station for further questioning. About 1:00 p.m. that day, Dunakin and his partner interviewed defendant after a Miranda advisement. In a tape-recorded interview played to the jury, defendant told Dunakin that Chazarus had last stayed with him “2 to 3 weeks, maybe a month ago.” Defendant said that Chazarus had been staying with his mother, Tyrinza Brown. In the month before taking him to the hospital, defendant only saw Chazarus on two brief occasions. The last time defendant saw Chazarus was when Brown called him after Friday midnight and asked him to pick Chazarus up at a location in Hayward. When defendant arrived at the location at about 1:00 a.m. on Saturday morning, Chazarus was in Brown’s arms asleep, and she just passed him off to defendant and walked away without saying anything. When defendant got back to his wife’s mother’s house in San Leandro, he opened the car door to get Chazarus out and noticed he looked lifeless. He splashed some water on Chazarus from a neighbor’s garden hose to try to revive him but that did not work, so he and his wife got in the car and drove to the hospital.
Miranda v. Arizona (1966) 384 U.S. 436.
In a second statement taken later the same day, defendant admitted to Dunakin that he had not been truthful in the first statement he gave. The Defendant said the truth was that Chazarus’ mother was in Los Angeles, defendant had not seen her in a couple of months, and he took care of Chazarus. Defendant stated he’d had a problem in the past few days with his son “whining, crying and . . . talking back,” so he’d been “pretty tough” with the boy. When defendant gave Chazarus a “whooping,” he struck Chazarus on the buttocks with the flat of his right hand, and sometimes with a belt folded in half in the middle or with a switch, part of a tree branch. Defendant said he used the switch to “strike him on his hands, arms ― or, if he had shorts on, ― his legs.” On the Friday, he, Hill and Chazarus left the house in Oakland early to go over to Hill’s mother’s house on Lark Street in San Leandro. Defendant had to discipline Chazarus that day for disobedience: he turned Chazarus around, pulled his pants down and “whoop[ed] his butt, his legs.” Defendant admitted that in the few days before Chazarus’ death, he disciplined Chazarus quite a few times with the belt and switches. Chazarus’ face was bruised, defendant said, because he accidentally ran into a wall while trying to escape a whooping. Defendant explained what looked like kick marks on Chazarus’ body as follows: Chazarus would lie on the floor and curl up in a ball to avoid being whooped, so defendant would tell him to get up; when Chazarus refused, defendant would put down the belt and body-punch Chazarus around the ribcage with a loosely closed fist. When asked how hard he punched Chazarus, defendant replied, “Maybe a little bit harder than I was supposed to.” Defendant said the red markings on Chazarus’ abdomen were probably from the belt, and the marks and bruises on his thigh and buttocks were from the switch.
Oakland Police Department civilian evidence technician Katharine Potter stated that she was dispatched to San Leandro hospital at about 2:45 a.m. Saturday morning to begin the investigation on Chazarus’ death. After a search warrant had been obtained, Potter began to process the home where defendant lived with his grandmother, Sadie Catchings, at 3045 Modesto Avenue in Oakland. Potter found several switches (sticks with all the leaves taken off) in the bedroom that defendant shared with Chazarus, one at the foot of the dresser, one on the bed, two in the east doorway, one in front of the closet door, one to the left of the stereo, one at the left rear of the bed, and another in front of the nightstand. Potter found makeshift flash cards with numbers on them next to the bed, and another set on the nightstand. Also, she found a belt in front of the closet door. Potter cut a stick from the tree outside the house and fashioned a switch which looked similar to those found inside the house. On top of the couch in the living room, Potter found a cane, wooden sticks and a belt.
Oakland Police Department civilian evidence technician Regina Bucher stated that at around 6:30 p.m. that Saturday evening she was requested to process a potential crime scene at 15401 Lark Street in San Leandro. Bucher found twelve switches scattered throughout the living room in different locations. She also found several belts: a worn, brown leather belt with a silver buckle was lying on top of the dining table; a light brown leather belt was lying on the coffee table; a rainbow colored belt was lying on the floor; and a piece of a leather belt was on top of the stereo.
3. Percipient Witnesses/Other Evidence
Kimberly Ford Hill testified that before meeting defendant she had five children by a man who subsequently died in a car accident. After the accident, Hill lived with her mother, Robin Ford, at her mother’s house in San Leandro. Hill stated she disciplined her own children by using time-outs, “yell[ing] at lot,” and occasionally “popping” (slapping) them on the hands. She denied ever using a belt or a switch to discipline her children.
Hill said she met defendant through a friend. After they started to date, she noticed that he had a child living with him. Defendant told Hill that Chazarus’ mother had called and asked defendant to come and take Chazarus because she couldn’t take care of him anymore. In May 2003, Hill and defendant were married and after that Hill spent most of her time at defendant’s house. At that stage, defendant disciplined Chazarus by yelling at him. Hill stated that during the time she was married to defendant she disciplined Chazarus two or three times by smacking his hand with her hand — she never used a switch or a belt on the child and at no time did she hit him on the head. She further stated that there were occasions when she had witnessed defendant physically disciplining Chazarus and had told him “to stop doing it or to ease up a bit.” Defendant would not respond. Hill said that when defendant’s grandmother questioned his handling of Chazarus, defendant would sometimes say, “That’s my son. I do what I want to do.”
Hill stated she first noted signs that defendant was physically disciplining his son some two to three months after they got married. At that point, she began to notice defendant taking Chazarus into the other room, and she could hear Chazarus crying, so she thought “he was probably getting a spanking or something” for not doing what he was told. Hill stated that she first witnessed defendant disciplining Chazarus three or four weeks before the child died. She saw defendant spank Chazarus on the bottom with his hands. Once or twice she saw defendant use a belt to “pop” Chazarus on the bottom. Hill only remembered once seeing defendant spank Chazarus with a switch and that was earlier on the day that Chazarus died.
Regarding events leading up to Chazarus’ death, Hill stated that on the Friday morning she and defendant drove over to Hill’s mother’s house in San Leandro. Hill readied her youngest son for school. After dropping her son off at school, Hill, defendant and Chazarus went to Arroyo Park. At the park, Hill told defendant that she “needed some space right now” and planned to go and stay at her mother’s house. Hill explained she felt defendant needed to spend more time alone with Chazarus and would not discipline the child so much if she was not around. Defendant reacted by yelling so loud that a park ranger came over to ask if there was a problem.
After they returned to the house in San Leandro, defendant made Chazarus go over his numbers a couple of times in the afternoon. On the second occasion, Chazarus got the numbers wrong and defendant beat him with a switch. After that, Hill again told defendant she wanted them to separate so that he could spend more time with Chazarus. In response, defendant stated: “If I can’t have you, I’m going to fuck him up. I don’t care.” Defendant began to kick at Chazarus as Hill stood between them. Hill told the child to go in the other room as she kept defendant at bay. Chazarus ran into Hill’s mother’s room. Hill pushed defendant back, but defendant got around her and ran into the other room after Chazarus. Hill could hear Chazarus crying and defendant yelling. Hill heard defendant telling Chazarus that he loved Hill and saying words to the effect, “I don’t want to be here no more. If she leaves me, she’s all I got.” When Chazarus came out of the room, Hill noticed that he had a bruise on his face and said, “Oh, my God. Have you seen his face? What happened?” Hill said it was a “bad bruise” and defendant put some ice on Chazarus’ face. Chazarus said he was sorry and told defendant, “It’s okay, daddy. I’m not mad at you.”
Hill and defendant left the San Leandro home with Chazarus at around 7:45 p.m. They drove around, watched a “sideshow” [street activity] for a while, and arrived back at defendant’s Modesto Avenue home at around 10:30 p.m. At one point, something prompted Chazarus to say to Hill, “I know. I know. You don’t have to keep telling me that over and over again.” Defendant heard this, got mad at Chazarus, started yelling at him and gave him a spanking with a switch. Defendant also swatted Chazarus on the back of the head and knocked him to the floor.
Late that night, Hill told defendant she wanted to go back to her mother’s house because she wanted to be by herself. Eventually, she relented to defendant’s request that they go together. Back at the San Leandro home, defendant got Chazarus ready for bed at around midnight. Defendant again went over the numbers with Chazarus, and when Chazarus got stuck on a few numbers defendant grabbed him by the shoulders and started shaking him. After shaking Chazarus, defendant went to the bathroom and Hill went into the kitchen. Then Hill noticed that Chazarus had collapsed on the living room floor.
Defendant came out of the bathroom and said, “What happened?” Hill said, “I don’t know, I was in the kitchen.” Defendant got down and started calling Chazarus’ name and shaking him a little bit. Hill “couldn’t think straight” and started “tripping.” She felt like she wanted to harm herself and went towards the knives in the kitchen but defendant took the knives from her and tried to calm her down. Defendant picked Chazarus up, carried him into the shower, and splashed a little water on his face. Hill said Chazarus took a couple of deep breaths then it looked like he was asleep. Hill and defendant then drove Chazarus to the hospital.
Subsequently, hospital staff informed them that Chazarus was dead. Hill stated that after giving a statement to the police she was charged with permitting a child to suffer and be inflicted with unjustifiable pain and suffering. The District Attorney made her no promises or deals. Hill agreed to plead guilty and received a sentence of four years in state prison, of which she served two-and-a-half years.
The prosecution also presented the testimony of Aaron Bridges, who lived with Robin Ford, Hill’s mother. Bridges recalled that defendant and Hill used to visit once or twice a week with Chazarus. Defendant and Hill were visiting a few weeks before Chazarus died. They went to the store, leaving Bridges and Robin to look after Chazarus. While they were gone Chazarus needed to use the bathroom. Bridges said Chazarus was limping on his way to the bathroom, “like he was about to fall” Bridges looked on as Robin pulled down Chazarus’ pants so he could use the bathroom. Bridges said Chazarus was in pain and “flinching” as Robin pulled his pants down. Chazarus put his finger to his mouth, made a “shushing” sound and said, “Don’t say nothing. Don’t tell nobody. My daddy did this when he spanked me.” Bridges said he thought about calling the police. He told Robin they needed to talk to Hill, because “if this boy show up like this again, I’m going to call the police.” Bridges also described another time during the summer of 2003 when defendant, Hill and Chazarus were in the bathroom, which is right off the kitchen. Bridges was in the kitchen and from behind the closed door of the bathroom he heard defendant saying, “Shut up,” followed by two or three loud smacking sounds.
The jury also heard testimony from Cheryl Calhoun, who stated she was a friend and neighbor of Sadie Catchings, defendant’s grandmother, and had known defendant since he was a young boy. After Chazarus arrived in September 2002, Calhoun saw him at least three times a week either at Catchings’ house or at her own house when he came over to visit. Calhoun thought Chazarus was a “little sweetheart” and he called her “auntie.” One time in August 2003, Calhoun went over to Catchings’ house to visit. Chazarus ran to the front door to greet her. As she always did, Calhoun leaned down to give Chazarus a hug, but this time Chazarus winced and said, “Auntie, that hurts. My daddy socked me there.” Chazarus pointed to both of his upper arms. Calhoun called Child Protective Services (CPS), but CPS did not respond.
B. Defense Evidence
In his defense, defendant testified that he disciplined Chazarus by spanking him by hand on his hands or buttocks. Defendant admitted he had used a belt and small switches but “would still say it was a spanking.” Defendant’s purpose in disciplining Chazarus in this manner was to punish him for doing something wrong or being disobedient. His intention was not to cause Chazarus pain or to hurt him. Defendant stated that it was never his intention to kill his son or to seriously injure him. Defendant denied ever kicking his son and stated he “never hit him on his head.” The injuries to Chazarus’ head were due to an “incident where I was spanking my son where he ran from me” and he tripped and fell into the wall between the bathroom and bedroom.
Defendant admitted he lied to the police in his interview at the police station and did so because he was afraid the police would think he caused his son’s death. When his counsel asked whether the second interview was correct, defendant stated: “Most of it was correct within what I can understand of it other than them piling questions on top of questions and me trying to remember certain things they were trying to like build a time line for.” Defendant stated he was raised primarily by his grandmother, Sadie Catchings. As he was growing up he was disciplined with belts and switches, and, on one occasion, with an extension cord. Defendant stated he had a romantic relationship with Tyrinza Brown. By the time Chazarus was born the relationship had ended but they still “talked off and on.” Defendant went down to southern California for the birth of his son. After that, he saw Chazarus when the child was about one year old. Chazarus stayed with defendant for about two weeks at defendant’s grandmother’s house before defendant returned him to southern California. Defendant came to obtain custody of Chazarus when he was just over two years old, after Tyrinza Brown’s mother contacted him and asked him if he would like to come and get Chazarus so that she could “just get herself together financially.”
On cross-examination, defendant was confronted with the preliminary hearing testimony of his grandmother, Sadie Catchings, in which she stated she never had to punish defendant as a child because “he was a pretty good little boy” and “pretty smart.” Defendant stated he believed his grandmother was not telling the truth when she testified she never “whooped [him] with belts and switches,” and denied making that up “to testify here in court to try to get some sympathy.” Defendant denied his grandmother was afraid of him.
Defendant was asked whether in the weeks before Chazarus’ death, he had seen the bruising on Chazarus’ body while giving him a bath, defendant replied, “I’ve seen a couple marks.” Defendant did not take Chazarus to the hospital because “the marks I seen wasn’t life-threatening.” The marks were not “actual bruises” but “in the nature of like scratches or like healing marks, or something like that.” Defendant stated, “I didn’t cause all of the marks and bruises on his body. Like I said, I spanked my child before and I may have caused some of them.” Defendant admitted that he lied to hospital staff and to the police about how Chazarus was so bruised at the time of his death. On the Friday night before Chazarus died, defendant dressed him in his pajamas about 10:10 p.m. at Sadie Catchings’ house, but he did not notice any bruising on Chazarus’ body.
Discussion
A. Instructional Error
Defendant contends the trial court’s instruction to the jury on the section 273ab child homicide offense was legally inadequate because it failed to properly define the mental state required for the assault component of a section 273ab offense. Against such a claim of instructional error, “an appellate court reviews a trial court’s instruction independently: The underlying ‘question is one of law, involving as it does the determination of . . . applicable legal principles. . . . ’ (Citation.)” (People v. Alvarez (1996) 14 Cal.4th 155, 217.) “The proper test for judging the adequacy of instructions is to decide whether the trial court ‘fully and fairly instructed on the applicable law. . . . ’ (Citation.) ‘ “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [”] [Citation.]’ (Citation) ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ (Citation.)” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)
Section 273ab provides in relevant part: “Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 25 years to life.” (§ 273ab [italics added].) The trial court instructed the jury on the section 273ab offense according to pattern instruction CALJIC No. 9.36.5, as follows: “The Defendant is accused in Count Two of the Amended Information of having violated section 273ab of the Penal Code, a crime. [¶] Every person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, is guilty of a violation of Penal Code section 273ab, a crime. [¶] ‘Great bodily injury’ means significant or substantial bodily injury or damage; it does not mean trivial or insignificant injury or moderate harm. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person had the care or custody of a child under eight years of age; [¶] 2. That person committed an assault upon the child; [¶] 3. The assault was committed by means of force that to a reasonable person would be likely to produce great bodily injury; and [¶] 4. The assault resulted in the death of the child.” (Italics added.)
In support of his claim that the trial court erred in its jury instruction pertaining to the requisite mental state to establish a violation of section 273ab, defendant relies upon People v. Williams (2001) 26 Cal.4th 779 (Williams). In Williams, the Supreme Court clarified the required mental state for assault, holding that “assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Williams, supra, 26 Cal.4th at p. 790.) In further support of his argument, defendant also cites CALCRIM pattern instruction number 820 for a section 273ab offense, which directly incorporates as an element of the offense the Williams formulation of the mental state required for assault. (See CALCRIM No. 820) Defendant contends the omission of the Williams definition of the mental state required for assault from CALJIC No. 9.36.5, the instruction defining the elements necessary to establish a section 273ab offense, deprived him of his right to a jury determination of “the issues concerning [his] mental state such as ‘willfulness’ and ‘knowledge’ of the nature of the act” constituting the assault.
This contention is without merit. Although the Williams definition of the mental state required for assault was not included within CALJIC No. 9.36.5, it was clearly set forth in the instruction given to the jury defining the crime of assault. The jury was instructed on assault according to CALJIC pattern instruction number 9.00. CALJIC No. 9.00 provides in relevant part that one element necessary for assault is: “The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person.” Thus, when the instructions are considered as a whole under the assumption “that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given” (People v. Martin, supra, 78 Cal.App.4th at p. 1111), it is clear that the jury was properly instructed on the assault component of the section 273ab offense.
Defendant asserts that we may not rely on the separate assault instruction to avert error because it was “presented as part of a lesser offense [and therefore] came too late” to apprise the jury of the proper mental state required for the section 273ab offense. We reject that line of reasoning because, as noted, we assume the jurors correlate all jury instructions given. (People v. Martin, supra, 78 Cal.App.4th at p. 1111.) Additionally, the trial court also gave CALJIC pattern instruction number 1.01, which instructed the jury in pertinent part that “[t]he order in which the instructions are given has no significance as to their relative importance.”
In sum, CALJIC Nos. 9.36.5 and 9.00 in combination clearly apprised the jurors of all required elements to establish a violation of section 273ab, albeit not as seamlessly as the current CALCRIM No. 820 instruction. Thus, there was no error in the two instructions given instead of the one which defendant now prefers on appeal. (People v. Thomas (2007) 150 Cal.App.4th 461, 466-467 [even assuming “the organization and wording” of a CALCRIM instruction may be superior to the CALJIC equivalent, there is no error if the jury “was . . . informed of the principle for which [defendant] argues” and the CALJIC instruction is otherwise “legally valid and acceptably worded”].)
B. Sufficiency of the Evidence Claims
Defendant contends that the child homicide conviction under section 273ab is not supported by sufficient evidence that the physical discipline he applied was accompanied by willfulness and knowledge of the potential for great bodily harm. Also, defendant contends that the evidence does not support the deadly weapon enhancement under section 12022, subdivision (b)(1).
1. Standard of Review
In assessing a challenge to the sufficiency of the evidence, we view “the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment. (Citations.) We resolve the issue based upon the entire record and determine whether there is substantial direct or circumstantial evidence of the convicted offenses. (Citations.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury’s conclusion. (Citation.)” (People v. Stewart (2000) 77 Cal.App.4th 785, 790 (Stewart).)
Moreover, “[i]n making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]’ (Citation.)” (Stewart, supra, 77 Cal.App.4th at p. 790.) In addition, “[a]n appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) Further, “[b]efore 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 jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
2. Section 273ab Offense
Defendant contends the evidence is insufficient to support his child homicide conviction under section 273ab. Defendant concedes he punished Chazarus excessively by spanking him with belts and switches. Such spanking, he contends, does not amount to great bodily injury for purposes of the section 273ab conviction because there is no direct evidence defendant was responsible for the deadly blows to Chazarus’ head. Moreover, he suggests the jury’s manslaughter verdict is an implied finding that he was not responsible for Chazarus’ head injuries.
Defendant’s contention is without merit. First, a verdict of involuntary manslaughter is entirely consistent with a finding that defendant delivered the mortal blows to Chazarus. The jury could have concluded, on the one hand, that defendant struck Chazarus about the head by means of force that to a reasonable person would be likely to produce great bodily injury, and, on the other hand, could also have concluded that in administering such force defendant did not intend to kill his son, i.e., he lacked the requisite malice required for murder.
Second, there is ample direct and circumstantial evidence in the record for a rational trier of fact to conclude that defendant was responsible for Chazarus’ head injuries. (People v. Mills (1991) 1 Cal.App.4th 898, 920 [“[I]t is not required that direct evidence of the manner in which the injury occurred be introduced . . . . Circumstantial evidence is sufficient to prove” intentional infliction of child abuse.].) Here, the medical evidence itself was damning. To summarize, Doctors Herrmann and Crawford testified that the brain injuries sustained by Chazarus were caused by non-accidental, multiple blunt force blows to the head administered with considerable force causing violent movements of the head. Indeed, Dr. Crawford stated Chazarus was seriously and systematically beaten and that his head injuries showed “the extreme nature of violence directed towards this child’s head.” Dr. Crawford added that all the bruises on Chazarus at the time of death were fairly recent, speaking to “the violence he experienced in the last week or two.” Significantly, in defendant’s first interview with the police, he attempted to remove himself from that period of intense violence in the last two weeks or so of Chazarus’ life by falsely stating he had only seen Chazarus a couple of times in the last month. In the second interview, however, he admitted having custody of Chazarus and said he’d been “pretty tough” with his son recently.
In addition to the medical evidence, Hill testified that on the fateful evening she tried to hold defendant at bay as he kicked at Chazarus, but she was unable to prevent defendant from pursuing Chazarus into the other room. When Chazarus came out of the other room, he had a massive bruise on his face, and Hill said, “Oh my God. Have you seen his face?” Hill also stated that later the same evening defendant was angry with Chazarus and swatted him on the back of the head hard enough to knock the child to the floor. Also, Cheryl Calhoun and Aaron Bridges testified about how Chazarus told them defendant had beat him about his legs and arms, leaving Chazarus in such pain that those areas were sore and sensitive to the touch. Against this percipient witness testimony and medical evidence of repeated non-accidental blunt force injury, defendant offered the jury the implausible explanation that Chazarus injured his head when he ran into a wall while running from a whooping. However, the jury also heard defendant’s earlier admissions to the police about how he routinely beat Chazarus with a belt and a switch, and punched him “harder than I was supposed to.”
Given the direct evidence of the serious and extensive injuries defendant inflicted on Chazarus’ body, including defendant’s own admissions, the jury was entitled to infer it was he who administered the fatal blows to Chazarus’ head. (People v. Maury, supra, 30 Cal.4th at p. 396 [“appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence”.]) On this record, defendant may not divide and compartmentalize the evidence in an attempt to assert an insufficiency by accepting responsibility for Chazarus’ bodily injuries and denying responsibility for his head injuries. Rather, viewing the record as a whole, there is ample evidence to support the jury’s finding that he assaulted Chazarus to the head by “means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death.” (§ 273ab.)
3. Enhancement for Use of Deadly Weapon
Defendant contends that the evidence was insufficient to support the deadly weapon enhancement triggered by the jury’s finding that defendant “did personally use a deadly and dangerous weapon, to wit: switch and belt.” We disagree.
Section 12022 provides in pertinent part: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” (§ 12022, subd. (b)(1).) A deadly weapon may be any object, instrument, or weapon used so as to be capable of producing, and likely to produce, death or great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) In determining whether an object not inherently deadly or dangerous was used in the requisite manner, the trier of fact may look to the nature of the weapon, the manner of its use, and any other relevant fact. (Id. at p. 1029.) “Although neither physical contact nor injury is required for a conviction, if injuries result, the extent of such injuries and their location are relevant facts for consideration. (Citation.)” (People v. Beasley (2003) 105 Cal.App.4th 1078, 1086 (Beasley).) “Great bodily injury is significant or substantial injury. (Citation.) Permanent or protracted impairment, disfigurement, or loss of function, however, is not required. (Citation.)” (Id. at p. 1087.)
The extent and severity of the injuries in this case are particularly disturbing, and the medical testimony recited above provides ample substantial evidence that the injuries to Chazarus’ body were significant and substantial. As noted above, both Doctors Herrmann and Crawford described the extensive bruising and lacerations in all parts of Chazarus’ body. Indeed, Dr. Crawford stated that the injuries on Chazarus’ body were “almost too numerous to count.” Also, he described the “pattern injuries” on Chazarus’ stomach indicating that he was struck repeatedly with an object. Dr. Hubbell stated that pattern injuries were consistent with blows from a belt buckle or the toe of a shoe. Dr. Herrmann stated that the numerous scratches and abrasions on Chazarus’ legs were consistent with injuries inflicted by a “tree-like switch material.”
Dr. Crawford stated that from a physical standpoint, the injuries to the body “would have been very painful injuries.” This was borne out by the testimony of Aaron Bridges, who described Chazarus limping to the bathroom and wincing in pain when his pants were pulled down. Indeed, Dr. Herrmann stated that the extensive bruising and contusions over Chazarus’ body were a contributory factor in his death. As Dr. Herrmann explained, the bruising and contusions to the body caused blood loss in the soft tissue of the skin, reducing the blood flow and oxygen supply to the brain, which contributed to the fatal swelling in Chazarus’ brain. Furthermore, defendant admitted to the police that the markings on Chazarus’ abdomen were probably from the belt, and the markings on his thighs and buttocks were from the switch that defendant used to beat his son. In sum, on this record we have no difficulty in concluding the evidence supports the jury’s finding that defendant used a belt or switch in a manner capable of producing, and likely to produce, death or great bodily injury.
C. Probation Eligibility
Defendant contends the trial court failed to properly adjudicate the issue of his probation eligibility at sentencing. He notes that in pronouncing sentence “the trial court made no reference to probation” and did not rule on whether his case was unusual enough to overcome the statutory presumption against probation in this case. We agree the trial court erred by denying probation without first ruling whether defendant had overcome the statutory presumption against probation. However, any error on this point was harmless.
Probation is governed by section 1203. Section 1203 limits the grant of probation to certain persons, including those who use a deadly or dangerous weapon in connection with the perpetration of the crime (§ 1203, subd. (e)(2)), except in the “unusual case[] where the interests of justice would best be served if the person is granted probation.” (§ 1203, subd. (e).) Rule 4.413(b) of the California Rules of Court provides that if the defendant “comes under a statutory provision prohibiting probation ‘except in unusual cases where the interests of justice would best be served,’ . . . the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.” (Rule 4.413(b) [italics added].)
In this case, the probation report notes that defendant is presumptively ineligible for probation under section 1203, subdivision (e)(2) because the crime involved use of a deadly weapon. The report lists the criteria affecting probation under Rule 4.414, discusses those criteria in detail, resolves each one adversely to defendant, and recommends that probation be denied. Because the court stated on the record that it read and considered the probation report, we assume the court adopted the probation report recommendation to deny probation when, without objection, it sentenced defendant to state prison.
However, the probation report recommended a denial of probation under the Rule 4.414 criteria affecting probation without first discussing the factors under Rule 4.413(c) to evaluate if defendant’s case was unusual enough to overcome the statutory limitation on probation. (See Rule 4.413(b) [trial court should determine whether the statutory presumption against probation is overcome under Rule 4.413(c) before determining probation eligibility under Rule 4.414].) Nevertheless, even if the trial court’s failure to evaluate the case under Rule 4.413(c) was an abuse of discretion (see People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 [“The standard for reviewing a trial court’s finding that a case may or may not be unusual is abuse of discretion.”]), no remand is warranted because any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [reversal required only if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”].)
Defendant urges remand under People v. Lewis (2004) 120 Cal.App.4th 837 (Lewis). Lewis is inapposite. In Lewis, the court of appeal remanded for a new probation and sentencing hearing because the trial court failed to find on the record that defendant was presumptively ineligible for probation under section 1203, subdivision (e)(3), i.e., that he intended to inflict great bodily injury on the victim. (Lewis, supra, 120 Cal.App.4th at p. 854.) Here, by contrast there is no question defendant is presumptively ineligible for probation under section 1203, subdivision (e)(2) [use of deadly weapon], because the jury made that finding, which we have affirmed as supported by substantial evidence.
In this context, reversal is warranted only if it is reasonably probable that the trial court would have granted probation after determining defendant’s case was unusual under Rule 4.413(c). However, defendant makes no showing at all on this point. Indeed, given the appalling level of violence demonstrated in this case, it not reasonably probable the trial court would determine that the interests of justice warranted a rejection of the statutory presumption against probation. Finally, the trial court denied probation on the basis of the probation report’s damming evaluation of the criteria affecting probation under Rule 4.414, including but not limited to the seriousness of the child abuse; the vulnerability of the victim; defendant’s denial of responsibility; his prior unsatisfactory performance on probation; his lack of remorse and the fact he was on probation at the time of the instant offense. On this record, there is no reasonable probability the trial court would grant probation upon a remand. Accordingly, the trial court’s denial of probation must be affirmed.
Disposition
The judgment is affirmed.
We concur: Pollak, Acting P. J., Siggins, J.