Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. CC759975
Duffy, J.
A jury convicted the defendant, Giti Karimpour, of committing child abuse against two infants at her daycare center. She was sentenced to prison. On appeal, she raises four claims: that her trial counsel was constitutionally ineffective in two respects, that the trial court erred in defining the adjective “likely” for the jury, and that the direct restitution award to one child’s parents must be reduced by the amount of an insurance company adjustment.
We find no merit to defendant’s ineffective assistance of counsel claims or her claim of instructional error. We agree, however, that the amount of the restitution award must be reduced. Accordingly, we will modify the judgment to reduce the award amount, but otherwise we will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
I. Convictions and Sentence
An information charged defendant with two counts of child abuse in violation of Penal Code section 273a, subdivision (a). The information alleged that the abuse charged in count one resulted in great bodily injury (§ 12022.7, subd. (d)).
All further statutory references are to the Penal Code unless otherwise indicated.
A jury convicted defendant on both charges and found true the great-bodily-injury allegation. The trial court sentenced defendant to a two-year lower term on count one and, consecutively, 16 months on count two (one-third the midterm on that count), for a total prison term of three years and four months. The court dismissed the great bodily injury enhancement under section 1385, i.e., in furtherance of justice. Also relevant to this appeal, the court ordered direct restitution (§ 1202.4, subds. (a)(3)(B), (f)) of $7,793.00 to reimburse medical expenses incurred by the mother of the victim in count one.
II. Facts
The parents of Grant M. and J.G. were clients of Giti’s Home Daycare, defendant’s child daycare business. Grant was less than a year old while in defendant’s care, and defendant began to care for J.from the age of three months until he was almost two years old.
A. Prosecution Case
1. Count One: Grant M.
Grant M. began to attend Giti’s Home Daycare in November of 2006 at the age of six months. On the evening of February 5, 2007, after bringing Grant home from the facility, his mother discovered that he had two painful bruises on the side of his head. His legs, however, were fine and he was playing and acting normally that evening and early the next morning before being taken to the daycare facility.
On that next morning, as Grant M.’s mother delivered Grant to the facility, she asked defendant how he had become bruised, and defendant said she did not know.
That afternoon Grant’s mother went to collect Grant M. and immediately detected that he “was not his normal happy self.” Defendant handed Grant to his mother. Grant was “screaming uncontrollably” and “hysterical” as if in “extreme pain.” He failed to recognize his mother. Defendant said that earlier that afternoon another child had knocked Grant over, causing Grant to bump his head, and that Grant had been in distress since then.
Throughout that night Grant M. continued to show signs of extreme pain, particularly when his mother manipulated his legs. Early the next morning Grant’s mother telephoned defendant to ask whether anything had happened to his legs the day before and defendant repeated that Grant had bumped his head, but that was all. Grant’s mother took him that day to the Stanford University hospital emergency room, where doctors discovered that he had a spiral fracture of the femur, which could be caused by a twisting of the leg. The hospital notified law enforcement authorities.
Defendant employed an assistant, Maria Dolores Parra Valdez, but Parra Valdez was not there on the day that Grant M. showed signs of the leg injury when his mother dropped him off and picked him up.
2. Count Two: J.G.
J.G. was three months old when he began attending Giti’s Home Daycare in 2005. On December 19, 2006, he was 21 months old. His mother went to collect him from defendant that day, and before his mother gathered him from a sleeping room, defendant told her, without rancor and perhaps even in a bemused tone, that J.had been misbehaving-he had refused to eat and she had had to force him to do so. When J.’s mother went to the sleeping room, she found him whimpering, moaning, and drooling continuously. His mother noticed scratches and bruises on both sides of his face. At this point he became agitated and was crying, and he could not close his mouth, eat, or drink. J.’s mother asked defendant to explain the situation, and she replied that she was feeding him with a spoon and he turned his head and bumped it on a bookcase. J.’s mother left feeling panicky. She took him directly from Giti’s Home Daycare to the Palo Alto Medical Foundation, where a pediatrician examined the drooling and crying child and discovered fresh puncture marks on his face and in the back of his throat. The marks were aligned as if made by the tines of a fork. The treating pediatrician testified that “a perforation of the area back there” can amount to a “serious injury” because “[t]here’s several vital structures surrounding the oropharynx” that was injured, “several major veins and arteries to the side, and a space behind the oropharynx that is prone to infection if compromised.” She was not worried in J.’s case, however, because “[h]e didn’t look toxic to me, so I wasn’t concerned about a perforation....” She administered ibuprofen and released him after he relaxed.
The next day J.G.’s parents visited Giti’s Home Daycare to confront defendant. Defendant admitted that she had tried to feed J.with a metal fork, i.e., not a specialized children’s fork. Parra Valdez, defendant’s assistant at the daycare facility, testified that she could not get J.to eat on the day of his injuries and that later she saw defendant trying to feed him. Defendant was squeezing or pinching his cheeks. The implement that Parra Valdez had used to try to feed J.was an adult fork similar to a salad fork.
3. Other Testimony
a. Melissa T.’s Injuries in 2003
The father of Melissa T. testified about injuries his daughter received while in defendant’s care. On January 29, 2003, Melissa was almost two years old. Her mother picked her up at defendant’s daycare business and took her immediately to a hospital. Melissa had one or more facial scratches and bruises. Melissa’s father confronted defendant, and he testified that his best recollection of her explanation for the injuries was that Melissa had become scratched while playing with another child and bruised when “she went to the bathroom... and she slipped and hit her side of the face... on the sink or on the floor.” Hospital personnel advised Melissa’s parents that they were going to report her injuries to the child welfare authorities. On cross-examination, Melissa’s father testified that his memory of the incident was suboptimal.
b. Expert Testimony Opining That Child Abuse Occurred
Catherine Albin, M.D., a pediatrician and chief of her medical group’s pediatrics department, testified as an expert in diagnosing child abuse and spiral fractures. She reviewed the cases of Grant M., J.G., and Melissa T.
Dr. Albin first testified about Grant M.’s injury. Grant was not ambulatory, and for such a child a spiral fracture is “considered to be decidedly unusual.” She opined that his injury must have occurred while he was in defendant’s care. It would be unlikely for Grant to arrive at the daycare center, “go about his usual activities for a number of hours[, ] and then suddenly... start responding differently from an injury that would have occurred many hours earlier.” She also opined that defendant knew or should have been aware that something was wrong with Grant. “[I]n general, there is not a period of time where a child would be expected to be without symptoms. So... shortly after the fracture, there would be a change in behavior and demeanor... so that someone who is experienced with his personality would identify something that was different.”
Dr. Albin did not know how Grant M. came to be injured; she opined only that “it requires a significant amount of force” to inflict the type of injury he suffered. She rejected the idea that such an injury could have been caused by another child’s act of pushing him. “[A] child in a sitting position who is pushed backwards would potentially fall back, but there is no twisting in that mechanism of injury. There is no way... I can identify that this child, by falling from a sitting position down to the ground, would injure his leg in this way.”
Dr. Albin rejected the explanation defendant gave to Grant M.’s parents:
“So my conclusion for abuse was based on serious injury to the largest long bone in the body, an explanation that, by an experienced childcare provider, seemed implausible, [and] there was delay in... identifying that the child was injured. In fact, the child was carried around for a number of hours, and then the parent was not told about anything particular except for potentially the head injury. But the third aspect, which you didn’t ask me about, which is important in my assessment, is that in the same packet with the case about Grant were other injuries to children in the same daycare. [¶] So oftentimes, when I get cases of suspected child abuse related to a spiral fracture, when I ask Social Services to do an investigation of a family’s profile, are there previous child abuse referrals? Are there other unexplained injuries? Does the child himself have previous injuries? [¶] So in this particular case, I had an unusual injury, an explanation that did not help me understand how the injury occurred, delay in seeking medical care, and then the third part was that... other children in the same home... had had injuries, which, in my opinion, were likewise consistent with abuse.”
Later in her testimony, Dr. Albin reemphasized the importance to her of the allegation that a series of suspicious injuries occurred at Giti’s Home Daycare. “In Grant [M.]’s case, he is invaluable for the other two cases I reviewed [J.G. and Melissa T.] at the same time because this is a case where, in the daycare setting, other children were also injured. Even if Grant had never been injured before, he is, in fact, following the continuum of being in the care of somebody who has injured other children.”
Dr. Albin opined that Grant M.’s injury was “nonaccidental” because it “meets all the criteria that’s in the child abuse literature. Basically, a serious injury, implausible story, known trauma that has occurred... in that daycare setting, and delay of medical care.” Also, defendant would have heard the bone break if it broke in her presence. Dr. Albin described herself as being “very assured that this is, in fact, an abuse-related injury, ” one that another child could not have caused.
As for J.G., Dr. Albin opined that defendant had held him immobile and force-fed him with a metal fork. She observed in photographs a pattern of minor scratch marks on his face that could have been caused by a fork of that type. She opined that the marks suggested an instance of “excessively forceful feeding that results in injury.” As for the throat injury, the documentation Dr. Albin reviewed, which include the treating pediatrician’s report and photographs, suggested “significant trauma to that area.” A sufficiently severe injury in the back of the throat could be fatal because the resulting swelling could make breathing impossible. “A daycare provider who has years of childcare experience should know better.” She viewed defendant as “a care provider who is extremely frustrated [and] who is out to teach this boy a lesson.”
Dr. Albin also reviewed documentation concerning Melissa T., who allegedly was injured at the daycare facility in 2003. A photograph showed a bruise on her face and neck. There were “parallel markings that... don’t match too many things in nature” and red and purple discoloration. The bruise was “very typical of a slap mark, and... it might be two separate impacts with a hand on the side of the face.” Another photograph showed marks consistent with slap marks on the other side of her face. Still another photograph showed a scratch below an eye. Melissa probably had been scratched at the same time she was slapped.
“This is not accidental, ” Dr. Albin concluded. “There’s no way that this child fell against anything symmetrically on both cheeks at the same time on the same day resulting in this.... This is, in my opinion, an unrestrained slap that causes bruises. [¶]... This child was hit twice, at least, and hit hard.”
On cross-examination, defense counsel caused Dr. Albin to concede that her conclusions were based on limited information. His cross-examination implied that her work was cursory. Specifically, Dr. Albin testified that she had not consulted the pediatrician who treated J.G. She “[p]robably” looked at the pediatrician’s report. She did not review Grant M.’s pediatric medical records, although recently she had “been given some... things” about him. She did not review Melissa T.’s medical records even though it was possible that Melissa had been a patient at Dr. Albin’s hospital. Nor did she talk with Melissa’s treating physician-she responded to counsel’s question with a suggestion: “perhaps you could explain to me what I would be asking them for.” She could not identify any medical literature to support her view that a spiral fracture of a femur would be accompanied by a loud snap and based her opinion that it would because certain parents, but not all of them, had told her they had heard a snap in that situation. Grant’s X-rays showed a possibility of older injuries-an arm injury and a leg injury-and if the X-rays did show injuries, they could have been inflicted by the same kind of torquing force that likely caused his spiral femur fracture. Dr. Albin could not recite the American Medical Association’s or the California Medical Association’s definitions of child abuse and was not sure that they had adopted one. She did not know the legal definition of child abuse. Defense counsel elicited inconsistent statements about whether Dr. Albin agreed that the examining pediatrician should be viewed as the expert in J.’s case rather than a physician reviewing the child’s injuries. Dr. Albin backed away from an aspect of her testimony on direct examination and agreed that the injuries only were consistent with Melissa’s having been slapped.
Also on cross-examination, Dr. Albin testified that she had testified “[h]undreds of times” for the prosecution in child abuse cases in the past 20 years and continued to do so “[p]robably once a month.”
Toward the end of her testimony on cross-examination, Dr. Albin endorsed a key distillation in her written report: “ ‘In summary, each of these children have had injuries that are highly unlikely to be accidents.’ ” On redirect examination she testified that the injury to Grant M. satisfied one of the ultimate facts the jury was to decide: the broken leg constituted “great bodily injury”; i.e., “[b]y legal standards and by medical standards, it is a serious injury.” Defense counsel was objecting to the tenor of the witness’s testimony at the time but the record does not show that he moved to strike these particular statements.
B. Defense Case
Several character witnesses, all of them parents and clients of Giti’s Home Daycare, provided glowing accounts of defendant’s loving qualities. One witness was a pediatric nurse practitioner. The witnesses testified that defendant loved children and would never commit any reckless or negligent act that would harm a child. “I thought she was the most loving person I’d seen around children, ” one parent testified. Another parent, a pilates instructor, testified that defendant attended her young daughter’s birthday party at her and her husband’s home.
The prosecutor cross-examined some of the witnesses and, as relevant to defendant’s appeal, asked them if they were aware that Giti’s Home Daycare had been found to be operated negligently. One or more witnesses testified to not knowing (except as noted) about the following asserted matters: (1) one or more licensing authorities had cited the establishment for negligent supervision, found poisonous plants in a place children could access, found dangerous items in a cupboard children could access, told defendant to remove an unsafe bouncer chair, found children too close to a dangerous heat source, and cited defendant for not obtaining and keeping evidence of parental medical consent; (2) at times defendant would leave the children unsupervised; (3) defendant had not maintained a cardiopulmonary resuscitation certification; (4) defendant was once cited for negligently supervising her charges; (5) defendant once ran an unlicensed daycare facility after authorities rejected her license application; (6) in 1995 defendant was cited for having too many children to satisfy the mandatory adult-child supervision ratio; (7) Grant M., J.G., and Melissa T. had been injured while in defendant’s care; and (8) defendant wrote a misleading letter to parents about official findings of negligence. Defense counsel objected to particular questions but did not object to this line of questioning generally.
Regarding item (5), the character witness was aware of the license rejection and unlicensed status.
III. Motion for a New Trial
After the jury returned its verdicts, defendant filed a motion to substitute counsel, which the trial court granted. Thereafter defendant’s new counsel (hereafter “replacement counsel”) prepared a detailed and comprehensive motion for new trial based on a claim that defendant’s original counsel (hereafter “trial counsel”) provided constitutionally ineffective assistance under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution. A hearing followed in which replacement counsel strove to show, in effect, that because of trial counsel’s omissions the trial was unbalanced and resulted in a miscarriage of justice.
Declarations attached to defendant’s new-trial motion came from an attorney and a physician who questioned aspects of trial counsel’s handling of the defense case.
The attorney, an experienced criminal defense attorney who is a certified specialist in the field, declared that “[i]n a case involving child abuse and child endangerment charges, it is very important to get all the facts and expert opinions so the jury can make an informed decision. Medical knowledge is constantly expanding and older theories are replaced by more research. Experts are necessary to permit the attorney to understand all the issues.... They can also be called to testify to rebut or contradict... and raise a reasonable doubt.” “I am of the opinion that [trial counsel’s] representation was below the reasonably expected level of effective attorney assistance in the areas of investigation, preparation and presentation of evidence to the jury in a case, such as this one, in which the prosecution relies in large part on the testimony of a medical expert witness.”
The physician, a pediatrician with a distinguished professional background, declared that the pediatrician who testified for the prosecution, Dr. Albin, had misinterpreted Melissa T.’s injuries and had incorrectly testified that Grant M.’s injuries had to have occurred within 48 hours of their discovery by radiological methods. They could have occurred as much as four days earlier and possibly earlier than that. Moreover, Grant’s X-rays, though consistent with normal variances in bone formation, also suggested a possibility of prior trauma, raising a question about the source of any such prior trauma, be it other accidents, other child abuse, or a rare disorder. With regard to Melissa and Grant, the declaration concluded, the prosecution expert’s testimony was “exaggerated, ” “incorrect, ” “inconsistent, ” and ultimately “unreliable.” Much the same was true regarding J.G.-the testimony was “overstated, ” “exaggerated, ” and again “unreliable.” J.’s injury could have been self-inflicted and the medical expert’s testimony that he was immobilized and force-fed lacked “any medical basis.” The record suggested that the pediatric expert witness functioned “more as an advocate rather than an unbiased medical witness.”
At a hearing on the motion, trial counsel was called as the prosecution’s witness, i.e., a witness in opposition to the new-trial motion replacement counsel brought on defendant’s behalf. Trial counsel was then cross-examined by replacement counsel. His testimony was lengthy and involved.
Trial counsel acknowledged that he did not consult a physician for information that might be introduced in evidence to counter the testimony of Dr. Albin. He called this a tactical choice and resolutely defended it and a number of other tactical choices that he made in representing defendant. Although he did retain medical experts on a criminal defendant’s behalf when he thought it necessary, he had defended innumerable child physical abuse cases and had won some of them without calling a medical expert. He had learned that colleagues had presented expert medical testimony to counter Dr. Albin in other cases and had lost every time.
Trial counsel further testified as follows:
1. Trial counsel accumulated a wealth of information about Dr. Albin through various sources, had tried at least one case before this one in which she testified for the prosecution, obtained a good result in that case (acquittal on one count and a deadlocked jury on the other), and could anticipate her testimony in this case through the preliminary examination. He thought she would come across as a crusader for the prosecution and that cross-examination would show she was ill-informed about the facts of the case and certain medical phenomena. For example, based on trial counsel’s reading of medical literature about pediatric spiral fractures and his anticipation that Dr. Albin would testify that the perpetrator would have to hear a loud crack when it happened, trial counsel knew he could impeach her on the point himself and did not need an expert to do it. On cross-examination “I said[, ] Dr. Albin, can you point me to one medical book that says that this injury is accompanied by a loud sound? No, I can’t. Can you give me one article that says that. No, I can’t. One treatise? No. I can’t.” As a result, “I thought Dr. Albin looked like a fool” on that point, based on the loud-sound testimony counsel anticipated Dr. Albin would provide. Yet more problematic for Dr. Albin’s testimony on that topic, trial counsel elicited the concession from her that Grant M.’s X-rays raised the possibility of older traumatic injuries. Trial counsel did not need an expert to adduce this exculpatory evidence because Dr. Albin provided it herself.
2. To call a defense expert to testify could generate cynicism among the jurors because instead of highlighting the flaws in Dr. Albin’s testimony the contest would be reduced to a battle of compensated experts.
3. The defense had a problem inasmuch as certain factual aspects of the case did not favor defendant. A defense medical expert could pick away at details of Dr. Albin’s testimony, but on cross-examination the prosecution could further parade before the jury facts unfavorable to the defense.
4. To call a defense expert ran the risk that Melissa T.’s medical records would be brought to light before the jury, and that would harm the defense. “[T]hat expert was going to be asked about the other two kids [Melissa and presumably J.G.], and there were some real problems....” One problem was that the medical records would reveal that the treating physician had reported to the child welfare authorities that Melissa had suffered child abuse. By contrast, trial counsel knew that Dr. Albin had not reviewed Melissa’s medical records or talked to her treating physician and he could point out these lapses on cross-examination. By not bringing in an expert who could be questioned about Melissa, trial counsel was able to keep that damaging evidence from the jury.
As noted, however, Melissa T.’s father testified that hospital personnel told him and his wife that they were going to report Melissa T.’s injuries to the child welfare authorities.
In general, trial counsel did not favor what he derided as the shotgun approach to trying a case. “[T]here are lawyers, you know, and I don’t criticize anybody-there are lawyers who do what I call the shotgun approach, and they stand up and they want to fire a shotgun and pellets. Go over all over maybe this, maybe that. [¶] I never thought that was an effective way... to try a case.” Because no competent potential witness had seen Grant M. be injured while in defendant’s care and the case against defendant with regard to Grant was circumstantial, trial counsel preferred to try to focus the case so as to plant reasonable doubt in the jurors’ minds regarding Grant using methods other than the so-called shotgun approach.
The trial court denied defendant’s new-trial motion. The court reasoned that Dr. Albin’s testimony on the prosecution’s behalf could effectively be countered either by a defense medical expert or, as trial counsel chose, by cross-examination. The court called the declaration of the pediatrician in support of the new-trial motion “not... very helpful” in deciding who injured Grant M. and when. In summary, trial counsel “may very well have made the best tactical choices given the facts and circumstances that he had.”
DISCUSSION
I. Ineffective Assistance of Counsel-Failing to Consult a Medical Expert
Defendant claims that trial counsel rendered ineffective assistance of counsel by failing to consult a medical expert to evaluate the soundness of the conclusions of the pediatrician who testified as an expert witness for the prosecution. Defendant further contends that if the defense expert found those conclusions to be questionable, effective counsel would have challenged them with expert testimony at trial on behalf of defendant.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
This case requires us to harmonize two principles that apply to the deficient performance prong of ineffective assistance of counsel law. On the one hand, “[i]n light of ‘the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant, ’ the performance inquiry necessarily turns on ‘whether counsel’s assistance was reasonable considering all the circumstances.’ [Citation.] At all points, ‘[j]udicial scrutiny of counsel’s performance must be highly deferential.’ ” (Wong v. Belmontes (2009) 558 U.S. __, __ [130 S.Ct. 383, 384-385] (per curiam).) Appellate courts must act with great restraint in evaluating the utility of a tactical decision, even if the client ultimately loses the case, given an appellate court’s remote position in place and time and the limited information an appellate court almost always possesses in comparison to that held by trial counsel when deciding tactics.
The foregoing considerations, however, do not amount to a safe harbor. With regard to the tactical choices made about researching and preparing the case, counsel’s focusing of the investigation in one direction rather than another plausible direction must be reasonable under prevailing professional norms. (Wiggins v. Smith (2003) 539 U.S. 510, 521-522.) “ ‘[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ” (Id. at p. 521.) Even then, however, appellate courts are restrained from merely second-guessing trial counsel. “ ‘In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.’ ” (Id. at pp. 521-522.)
In sum, “we focus on whether the investigation supporting counsel’s decision not to introduce... evidence... was itself reasonable.” (Wiggins v. Smith, supra, 539 U.S. at p. 523, first italics added.)
On this well-developed record, we cannot find trial counsel’s performance deficient. Trial counsel was experienced at trying child physical abuse cases and had thoroughly researched the etiology of the type of injury that Grant M. suffered. Moreover, he knew what Dr. Albin was likely to say because he had heard her testify at the preliminary examination. To be sure, consulting an orthopedist might have yielded yet more information that would have been useful for impeaching Dr. Albin, but we are required to accord counsel’s decisions “ ‘a heavy measure of deference’ ” (Wiggins v. Smith, supra, 539 U.S. at p. 522) and will not second-guess trial counsel’s expectation that he knew enough to impeach the pediatrician effectively. We have reviewed the record thoroughly and find that indeed, trial counsel subjected Dr. Albin to thorough cross-examination, undermining her testimony in numerous significant respects, as we have summarized above. (Ante, pp. 7-8.)
Compared to trial counsel’s meticulous cross-examination, the additional criticisms of Dr. Albin’s testimony offered in the pediatrician’s declaration in support of defendant’s new-trial motion amounted to little that would have assisted defendant. The pediatrician opined that Grant M.’s injuries could have occurred as much as four days before they were verified and possibly earlier, Grant’s X-rays suggested a possibility of prior trauma, J.G.’s injury could have been self-inflicted, and Dr. Albin’s testimony was generally too prosecution-oriented to be reliable. Trial counsel had, however, already gotten Dr. Albin to concede that Grant may have suffered prior orthopedic trauma, and the timing evidence, if presented, would have amounted to a quibble. The jury could detect and assess any bias on the witness’s part. We find no deficient performance.
Neither the federal nor the state Constitution offers a remedy for performance by counsel that is good but less than perfect. In our view, counsel generally performed well in representing defendant. To be sure, we have noted that Dr. Albin testified to an ultimate fact, i.e., that Grant M.’s injury constituted great bodily injury as a matter of law. That testimony was of questionable propriety if admissible at all. We have had occasion to observe that courts “ ‘have been highly critical... when an expert offers legal conclusions as to ultimate facts in the guise of an expert opinion.’ ” (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 865 [discussing a case in which an expert on police procedures declared that police officers’ conduct was grossly negligent].) Defense counsel could have moved to strike the testimony and did not do so. Nevertheless, overall defense counsel represented defendant ably, well above the level of performance that would implicate the constitutional rights to effective assistance of counsel.
Even if we did find a possibility of deficient performance, moreover, we would not hesitate to conclude that defendant was not prejudiced by it. The evidence that she caused both charged injuries, though circumstantial with regard to Grant M.’s injury, was strong. Only she was present when Grant underwent a dramatic behavior change from happy in the morning to miserable in the late afternoon. Her assistant saw her forcibly trying to feed J.G. She made suspicious statements about the events surrounding both injuries. There is no reasonable probability that, if counsel had consulted a medical expert, the outcome would have differed.
II. Ineffective Assistance of Counsel-Failing to Object on Cross-examinations
Defendant contends that trial counsel was ineffective for failing to object to the prosecutor’s cross-examination questions propounded to certain character witnesses. As noted, the prosecutor elicited from some witnesses that they did not know that defendant’s daycare facility had been operated deficiently in various respects. (Ante, pp. 9-9.)
“If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged, ’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
The record sheds no light on this point, and there could be a satisfactory explanation for counsel’s failure to object to the prosecutor’s questions, namely that counsel realized that the trial court would overrule any general objection to this line of questioning and an objection would be futile. The case revolved around whether defendant had abused Grant M. and J.G. The defense was attempting to show through the character witnesses that defendant was a caring person who loved children and would not abuse children in her care. “ ‘When a defense witness gives character testimony, the prosecutor may inquire of the witness whether he or she has heard of acts or conduct by the defendant inconsistent with that testimony, so long as the prosecutor has a good faith belief that such acts or conduct actually took place.’ ” (People v. Hinton (2006) 37 Cal.4th 839, 902.) Reports of injured children, negligent supervision, dangerous conditions in the daycare facility, and children being allowed access to harmful materials and furniture all related to the character traits defendant placed in issue. The prosecution, defense counsel could have concluded, was entitled to impeach the witnesses’ opinions by showing that they were largely unaware of these deficiencies in defendant’s daycare operations over the years, and the trial court would also feel that way and overrule any objection as meritless. “Representation does not become deficient for failing to make meritless objections.” (People v. Ochoa (1998) 19 Cal.4th 353, 463.) Accordingly, there was no ineffective assistance of counsel.
III. Instructional Error in Defining “Likely”
Defendant claims that the trial court infringed on her right to due process under the Fifth and Fourteenth Amendments to the United States Constitution when, at the prosecution’s request and over defendant’s objection, it gave the jury an instruction defining the term “likely” that is contained in section 273a.
Even if the trial court erred in granting the prosecution’s request to define “likely, ” we conclude that there was no due process violation and the error was harmless.
We review independently the superior court’s action of instructing the jury on the meaning of “likely.” (See People v. Cole (2004) 33 Cal.4th 1158, 1217.)
Subdivision (a) of section 273a 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.” (Italics added.)
Because defendant was charged with two counts of physical child abuse under section 273a, the jury was instructed in language derived from the statutory text. In the portion particularly relevant to defendant’s appeal, the court explained that defendant was charged “with Child Abuse Likely to Produce Great Bodily Harm or Death, in violation of Penal Code Section 273a[, subd.] (a).” The court defined “likely” as follows: “The word ‘likely’ as used in the felony child endangerment statute, referring to ‘circumstances or conditions likely to produce great bodily injury or death, ’ means a substantial danger; i.e., a serious and well-founded risk of great bodily harm or death, rather than death or serious injury is ‘probable’ or ‘more likely than not.’â€�
To provide context for the quoted paragraph, we set forth other portions of the instruction that the trial court gave the jury:
Objecting to the attempt to define “likely, ” defense counsel argued that the supplemental instruction would be surplusage and “very confusing” and would “really confuse the jury.” But the trial court agreed with the prosecution that the “likely” standard set forth in section 273a, subdivision (a), deviated from the common meaning of the adjective, so an instruction was warranted. The court mentioned People v. Sargent (1999) 19 Cal.4th 1206, apparently stating that it set forth the applicable legal standard, and for the same purpose the prosecution mentioned People v. Wilson (2006) 138 Cal.App.4th 1197. The two standards are, however, not quite identical, as will appear, and if the court meant to follow Sargent, nevertheless it followed Wilson.
On appeal, defendant argues that a definition of section 273a’s “likely” term set forth in People v. Sargent, supra, 19 Cal.4th 1206, must be followed and that People v. Wilson, supra, 138 Cal.App.4th 1197, is wrongly decided insofar as it called Sargent’s teaching a dictum. The People argue that Wilson is correct and that Sargent indeed does contain a dictum that need not be followed.
People v. Sargent, supra, 19 Cal.4th 1206, stated: “We have observed that violation of section 273a[, subd.] (1) ‘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.] We have also observed, however, that ‘[t]wo threshold considerations... govern all types of conduct prohibited by this law: first, the conduct must be willful; second, it must be committed “under circumstances or conditions likely to produce great bodily harm or death.” [Citation.] Absent either of these elements, there can be no violation of the statute.’ [Citation.] Section 273a[, subd.] (1) 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.]” (Id. at pp. 1215-1216, italics added.)
“In 1993, subdivisions (1) and (2) were redesignated subdivisions (a)(1) and (b). (Stats. 1993, ch. 1253, § 1.) In 1994, subdivisions (a)(1) and (b) were redesignated subdivisions (a) and (b). (Stats. 1994, ch. 1263, § 3.)” (People v. Sargent, supra, 19 Cal.4th at p. 1209, fn. 2.) “The current version of section 273a is substantively identical.” (Ibid.) It remains so today.
In People v. Valdez (2002) 27 Cal.4th 778, the Supreme Court reiterated that section 273a, subdivision (a), “ ‘is “intended to protect a child from an abusive situation in which the probability of serious injury is great.” ’ ” (Id. at p. 784.) A month later, however, the court commented that the Sargent definition of “likely” was made “in passing.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 917.)
In People v. Wilson, supra, 138 Cal.App.4th 1197, the Court of Appeal arrived at a different definition of “likely” for purposes of section 273a, subdivision (a). It engrafted the definition supplied by our Supreme Court in People v. Superior Court (Ghilotti), supra, 27 Cal.4th 888, for “likely” as that term appears in the Sexually Violent Predators Act (see Wilson, at pp. 1203-1204), namely that “likely” means “a substantial danger-that is, a serious and well-founded risk” (Ghilotti, at p. 895, italics omitted; accord, id. at pp. 916, 922; see also id. at pp. 925, fn. 15, 927). “We conclude, ” the Wilson court wrote, “that given the interest protected, i.e., the lives of highly vulnerable children, the definition of ‘likely’ in the context of section 273a is not that death or serious injury is probable or more likely than not. While we understand it was developed in a different legal context, we nonetheless believe that adaptation of the definition of ‘likely’ as used in the [Sexually Violent Predators Act] context is appropriate here. We thus conclude that ‘likely’ as used in section 273a means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death. We believe in the context of child endangerment this definition of the term ‘likely’ draws a fair balance between the broad protection the Legislature intended for vulnerable children and the level of seriousness required for a felony conviction.” (Wilson, at p. 1204.) Wilson alsostated that the definition of “likely” in People v. Sargent, supra, 19 Cal.4th at page 1216, was a dictum that need not be followed. (Ibid.)
The instruction the trial court gave the jury was confusing in that it both stated a definition that the jury should follow and, unnecessarily, dismissed a definition that the jury should not follow-i.e., the instruction directed the jury not only to consider the question whether defendant’s actions created “a serious and well-founded risk of great bodily harm or death” but also to ignore the question whether “death or serious injury is ‘probable’ or ‘more likely than not.’ ”
Nevertheless, there was no due process violation and any error was harmless beyond a reasonable doubt.
The correct standard of review is itself a difficult question, one barely touched on by the parties. The United States Supreme Court has undertaken different approaches in different cases. One view is that either there is a due process violation or there is not, such a violation being generally understood, with regard to trial errors, to be some defect that rendered the trial fundamentally unfair (see Gagnon v. Scarpelli (1973) 411 U.S. 778, 790). Thus if there is a due process violation, “ ‘[i]t is unnecessary to add a separate layer of harmless-error analysis....’ ” (Kyles v. Whitley (1995) 514 U.S. 419, 436, fn. 9.) “[O]nce a reviewing court applying [a review for materiality] has found constitutional error there is no need for further harmless-error review.” (Id. at p. 435.) Elsewhere, however, our federal high court has intertwined the consideration of prejudice and due process violations. “[I]f Banks succeeds in demonstrating ‘cause and prejudice, ’ he will at the same time succeed in establishing the elements of his... due process claim.” (Banks v. Dretke (2004) 540 U.S. 668, 691.) Still elsewhere the federal high court has implied that an inquiry into both a due process violation and prejudice is valid appellate procedure. (Bradshaw v. Stumpf (2005) 545 U.S. 175, 187 [“we therefore express no opinion on whether the prosecutor’s actions amounted to a due process violation, or whether any such violation would have been prejudicial”].) The applicable standard may depend on the type of due process claim; for example, the due process claim addressed in Kyles contains a materiality component and prejudice analysis may well be superfluous.
Defendant relies on People v. Flood (1998) 18 Cal.4th 470 for her view that unless the state can show the asserted error to have been harmless beyond a reasonable doubt the conviction must be reversed. (Deck v. Missouri (2005) 544 U.S. 622, 635; Chapman v. California (1967) 386 U.S. 18, 24.)
Flood, however, involved a more serious error than the one asserted here. (See People v. Rundle (2008) 43 Cal.4th 76, 150-151.) In Rundle, the defendant contended that “the trial court inadequately instructed on the crime of rape because it failed to define the term ‘sexual intercourse’ as meaning vaginal intercourse.” (Id. at p. 150, fn. omitted.) In Rundle-and this is the essence of defendant’s claim as well-the defendant asserted that “the instruction did not clearly explain the meaning of the term used in the statute and the instruction. This is distinguishable from the circumstances present in Flood, in which the trial court did not give an instruction defining ‘peace officer’ and instead told the jury that the police officers involved were peace officers, thereby removing that element from the jury’s deliberations.” (Id. at p. 151.) Here, defendant insists that “[t]he instruction’s definition of likely was crucial to an element of the offense” and the instruction “erroneously broadened the reach of the statute” as interpreted in People v. Sargent, supra, 19 Cal.4th at page 1216. We do not agree. Any error here would not be as substantial as the error in Flood; it would be similar to the error in Rundle. Still, defendant may be correct that the prejudice standard articulated in Chapman v. California, supra, 386 U.S. at page 24, applies to her claim (but see Middleton v. McNeil (2004) 541 U.S. 433, 437 ). The People do not disagree with defendant on this point, and we will assume for purposes of argument that the Chapman standard applies. “For error under the United States Constitution, as made plain in decisions of the United States Supreme Court..., the general rule on direct review of a state criminal judgment is harmless error analysis pursuant to Chapman v. California[, supra, ] 386 U.S. 18..., with its ‘harmless beyond a reasonable doubt’ standard....” (People v. Flood, supra, 18 Cal.4th at p. 525, fn. omitted (dis. opn. of Mosk, J.).) Moreover, the court in People v. Chaffin (2009) 173 Cal.App.4th 1348, applied the Chapman standard in considering the issue before us. (Chaffin, at p. 1353.)
People v. Rundle, supra, 43 Cal.4th 76, was overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22.
Under the Chapman test, defendant is not entitled to reversal. The state has shown any error to be harmless beyond a reasonable doubt. That is to say, the state has established “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (Chapman v. California, supra, 386 U.S. at p. 24), or, more modernly, it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” (Neder v. United States (1999) 527 U.S. 1, 18.) The conviction is valid if defendant inflicted injuries “likely to produce great bodily harm or death.” (§ 273a, subd. (a).) The meaningful part of the instruction to which defendant objected at trial told the jury: “The word ‘likely’ as used in the felony child endangerment statute, referring to ‘circumstances or conditions likely to produce great bodily injury or death, ’ means a substantial danger; i.e., a serious and well-founded risk of great bodily harm or death....” The remaining words were irrelevant surplusage. “[S]erious and well-founded risk of great bodily harm or death” is close to the California Supreme Court’s Valdez-Sargent gloss on the statutory language-i.e., a great probability of serious injury-and follows precisely the gloss advanced in Wilson. Regardless of whether People v. Valdez, supra, 27 Cal.4th 778, and People v. Sargent, supra, 19 Cal.4th 1206, are authoritative or instead People v. Wilson, supra, 138 Cal.App.4th 1197, is, the instruction did not deviate from either gloss in any material respect. In addition, either formulation correlates with the facts the jury heard. With regard to Grant M., the jury found that defendant committed great bodily injury against him. With regard to J.G., the jury was not asked to return such a finding, but the treating pediatrician’s testimony (ante, p. 4) and that of Dr. Albin (ante, p. 7) established a serious risk of great bodily harm and a great probability of serious injury, physical effects that J.fortunately avoided. Any error that may have occurred was harmless beyond a reasonable doubt and no due process violation occurred.
We note that the rationale of Wilson was questioned in People v. Chaffin, supra, 173 Cal.App.4th at pages 1351-1352.
IV. Restitution Amount
As noted, the trial court ordered direct restitution of $7,793.00 to reimburse medical expenses incurred by the parents of Grant M., the victim in count one, to have their infant son treated at an emergency room. Both parties agree that because an insurer’s action caused the hospital charges to Grant’s parents to be lowered by $2,571.69, the restitution amount must be reduced to $5,221.31, which the record shows to be “the amount the medical providers accepted from [the] insurer as full payment for their services, plus the deductible paid....” (People v. Bergin (2008) 167 Cal.App.4th 1166, 1168; see id. at pp. 1171-1172.) We agree and will modify the judgment and order that the abstract of judgment be corrected.
DISPOSITION
The abstract of judgment is ordered modified by reducing the $7,793.00 direct restitution award (Pen. Code, § 1202.4, subds. (a)(3)(B), (f)) to $5,221.31. The clerk of the superior court is to forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.
“The defendant is charged in Counts 1 & 2 with Child Abuse Likely to Produce Great Bodily Harm or Death in violation of Penal Code Section 273a[, subd.] (a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1.
The defendant willfully inflicted unjustifiable physical pain or mental suffering on a child; [¶] AND [¶] 2. The defendant inflicted pain or suffering on the child under circumstances or conditions likely to produce great bodily harm[] or death.
“In the alternative, as to Count 2 only, the defendant may be guilty of this crime if the People prove that: [¶] 1. The defendant willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering; [¶] AND [¶] 2. The defendant inflicted pain or suffering on the child or caused or permitted the child to suffer or be injured under circumstances or conditions likely to produce great bodily harm or death; [¶] AND [¶] 3. The defendant was criminally negligent when she caused or permitted the child to suffer or be injured.”
We have quoted the written instructions here and in the main body of this opinion. The trial court implied that it would give the jury copies of the written instructions for use during deliberations and the record offers no reason to doubt that it did so. In these circumstances (People v. Wilson (2008) 44 Cal.4th 758, 802) “[t]o the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.” (Id. at p. 803; accord, id. at p. 804.) In any event, there are no meaningful discrepancies between the two versions.
We will intertwine the due process and Chapman-based prejudice standards. This serves judicial economy, because under either approach defendant is not entitled to relief, and therefore there is no need to labor to articulate fine and somewhat recondite aspects of the applicable standard of review.