Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA270479, Ruffo Espinoza, Judge.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
This case arises from acts of child abuse which resulted in the death of four-year old Malaya King. A jury convicted defendant Iona King, the victim’s mother, of second degree murder (§ 187, subd. (a)), assault on a child resulting in death (§ 273ab), and child abuse (§ 273a, subd. (a)). The jury found that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)) in commission of all crimes and willfully caused her daughter to suffer (§ 12022.95) while committing child abuse. The trial court sentenced defendant to a term of 26 years to life.
All undesignated statutory references are to the Penal Code.
The jury acquitted defendant of torture (§ 206).
On appeal, defendant primarily contends that the evidence is insufficient to sustain her convictions. In addition, she attacks two evidentiary rulings: the first permitted evidence about an incriminating statement she had made and the second allowed the jury to view enlarged autopsy photographs during a physician’s testimony. We find no merit to any of these claims and therefore affirm the judgment.
STATEMENT OF FACTS
As mandated by the traditional rule of appellate review, we recite the evidence in the light most favorable to the judgment. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 142-143.)
Defendant and her two children, four-year old Malaya (the victim of the crimes) and six-year-old J., lived in a two-bedroom apartment with defendant’s boy friend Russell Galloway and his two children, nine-year old T. and eight-year-old R.
During the morning of August 28, 2004, Galloway and his two children left the apartment to go shopping. At that time, Malaya was asleep. Galloway and his family returned at approximately 5:30 pm. He saw defendant in their bedroom with Malaya. He heard defendant tell Malaya: “You’re going to listen to what I say, you are going to mind me. You know, respect and do as I ask you to do.” Malaya appeared to be “fine.”
Later that evening, R. was walking to the bathroom when he saw defendant and Malaya in the master bedroom. Defendant was hitting Malaya “a lot of times” very hard with a vacuum tube attachment. Malaya was crying. According to R., defendant had told Malaya to do “jumping jacks” and when Malaya did not do so, defendant hit her. A white cloth was tied around Malaya’s head, covering her mouth. After defendant “whacked” Malaya one last time, Malaya fell down on the bed and did not move. Defendant removed the cloth from Malaya and called for Galloway, stating that Malaya would not wake up.
Galloway went to the bedroom and saw Malaya lying motionless on the bed. Defendant screamed: “My baby, what’s wrong with my baby?” Defendant told Galloway that she had only spanked Malaya and did not know what had happened to her. While Galloway was telephoning defendant’s brother Hajii King, defendant left the apartment after stating: “I killed Malaya, I’m going to jail.”
Hajii King arrived and saw that the motionless Malaya was not breathing. Her lip was swollen and her head was bruised. When Malaya did not respond to King’s CPR efforts, Galloway called “911.” The paramedics arrived and found Malaya in cardiac arrest. Their efforts at CPR were unsuccessful and they took her to the hospital. A black plastic vacuum hose attachment was recovered from the floor, near the foot of the bed.
Malaya was pronounced dead within a few minutes of arriving at the hospital. She weighed 40 pounds and was 43 inches tall. The cause of death was blunt force trauma and “other undetermined causes, ” possibly asphyxiation. None of the blows she suffered would have been independently fatal but, because Malaya was so small, the combined effects of the blows led to shock and internal blood loss. In addition, being beaten while a cloth was tied around her mouth could have caused Malaya to asphyxiate. Malaya’s face, upper lip, forehead, right leg and left thigh had bruises which had been inflicted within hours of her death. Many of the bruises were deep, penetrating to the bone. The bruises were consistent with having been repeatedly struck with a hard plastic pipe but inconsistent with having fallen down the stairs (the defense theory of the case).
DISCUSSION
A. Sufficiency of the Evidence re Murder Conviction
Defendant advances two arguments to attack the sufficiency of the evidence to sustain her conviction of second degree murder. We examine each argument separately.
1. Proximate Cause
Defendant claims “that her murder conviction should be reversed because the prosecution presented no solid evidence that Malaya was killed by [defendant’s] conduct rather than the ‘independent intervening cause’ of falling down stairs.” Defendant relies upon the coroner’s testimony that (1) Malaya died from “blunt force trauma and other undetermined causes” and (2) some of Malaya’s injuries were consistent with falling down stairs. (Italics added.) Defendant also notes that no one testified that “Malaya could not have fallen down stairs” the night she was killed. From there, she constructs the argument that because “evidence was presented that Malaya sustained the injuries that resulted in her death accidentally, by asphyxiating while falling down stairs after she was beaten, ” “no solid evidence showed her conduct comprised the ‘legally sufficient proximate cause’ of Malaya’s death.” We are not persuaded.
The issue of proximate cause was squarely presented to the jury. The pattern causation instruction, CALJIC No. 3.40, was used. It reads: “To constitute the crime of murder, any lesser included offenses, or the crime of assault on a child causing death there must be in addition to the death of Malaya King an unlawful act which was a cause of that death. [¶] The criminal law has its own particular way of defining cause. A cause of the death is an act that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act the death and without which Malaya’s death would not occur.”
The parties’ closing arguments elaborated on this issue. Defense counsel argued Malaya’s fatal injuries were caused by a fall down the stairs, not by defendant’s actions. The prosecutor argued to the contrary. The jury implicitly rejected the defense theory when it convicted defendant of second degree murder. “The determination of whether defendant’s unlawful act or acts were a proximate cause of the death is a question for resolution by the trier of fact [citation] and is determined according to the ordinary principles governing proximate causation. [Citations.]” (People v. Harris (1975) 52 Cal.App.3d 419, 427.) “[I]n homicide cases, a ‘cause of the [death of the decedent] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the [death] and without which the [death] would not occur.’ [Citations.] In general, ‘[p]roximate cause is clearly established where the act is directly connected with the resulting injury, with no intervening force operating.’ [Citation.]” (People v. Schmies (1996) 44 Cal.App.4th 38, 48-49.)
Here, R. saw defendant repeatedly strike Malaya with the vacuum attachment while Malaya’s mouth was gagged. The assault did not end until Malaya fell down and laid motionless on the bed. R.’s observation that defendant hit Malaya very hard was confirmed by the nature of the injuries she suffered. Malaya’s body was covered with recently inflicted bruises, many of which were so deep that they penetrated to the bone. The coroner concluded that Malaya’s death was caused by blunt force trauma. Taken together, the record contains more than substantial evidence to support the jury’s implicit finding that defendant’s actions were the proximate cause of Malaya’s death.
No witness supported defendant’s argument that a fall down the stairs was the proximate cause of Malaya’s death. Galloway testified that he never saw Malaya fall down the stairs. R. told Detective Waymire that he did not see Malaya fall down the stairs. And T. (R.’s older sister) told the police that no one told her that Malaya had fallen down the stairs. In fact, no one testified that Malaya moved from the bed between the time R. saw her fall down and Hajii King arrived at the apartment. In sum, defendant’s argument that her conduct was not the proximate cause of her daughter’s death does not rise above mere speculation.
Although not discussed by the parties, if, in fact, there had been substantial evidence of another cause of Malaya’s death (e.g., a fall down the stairs), the jury would have been instructed pursuant to CALJIC No. 3.41 (“More Than One Cause/Concurrent Cause”). In addition, contrary to what defendant apparently suggests, she would not be exonerated simply because there was an intervening act: only an unforeseeable intervening act would supercede her criminal liability. (People v. Brady (2005) 129 Cal.App.4th 1314, 1325-1327.)
Defendant’s reliance upon People v. Hebert (1964) 228 Cal.App.2d 514 to support her argument that there is insufficient evidence of proximate cause is misplaced. In that case, the defendant struck the intoxicated victim in the face; the victim fell to the floor of the bar and hit his head. The police came and, while transporting the victim to their patrol car, banged his head on the sidewalk. At the police station, the victim fell twice on the concrete floor. The victim was taken to the hospital where he died. (Id. at pp. 515-516.) The coroner testified that the injuries caused when the defendant hit the victim in the barroom were “probably fatal” but he could not testify to an absolute certainty that the victim would have died absent the injuries suffered from the later falls. (Id. at p. 518.) The defendant was convicted of involuntary manslaughter. The Court of Appeal reversed for a retrial because of instructional error. It found that the evidence raised “an intricate and difficult” question of proximate cause and that the jury instructions on that question were “unclear and confusing” because they did not clearly address the issue of the foreseeability of the injuries sustained by the victim while in the care of the police. (Id. at pp. 519-520.)
It is apparent therefore that defendant errs in claiming that the issue in People v. Hebert, supra, was sufficiency of the evidence to support the jury’s implied finding of proximate cause, the issue raised on this appeal. Instead, the issue was whether the jury was properly instructed about the pertinent principles of proximate case. Here, however, defendant does not contend that CALJIC No. 3.40 was confusing or unclear or that any other instruction(s) should have been submitted to the jury. Consequently, nothing in People v. Hebert, supra, assists defendant.
The initial discussion about jury instructions was conducted “off the record.” To the extent the parties’ subsequent comments about instructions were reported, nothing indicates that defense counsel sought submission of any other instruction(s) about proximate cause.
2. Malice
Defendant next urges there was insufficient evidence of malice because Malaya’s “injuries were not demonstrative of protracted acts of cruelty.” The argument is not persuasive. The two cases defendant cites do not hold that implied malice requires protracted acts of cruelty. Instead, those cases merely stand for the proposition that in those particular situations where a defendant did engage in numerous acts of protracted cruelty toward a child, there was substantial evidence of implied malice.
People v. Evers (1992) 10 Cal.App.4th 588 and People v. Burden (1977) 72 Cal.App.3d 603.
Here, the prosecution’s theory of second degree murder was based on implied malice. Consequently, the correct governing principle is found in CALJIC No. 8.11. That instruction, which the trial court submitted to the jury, explained: “Malice is implied when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [¶] The word ‘aforethought’ does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.” If implied malice is present, it is not necessary to establish that defendant intended her actions to result in the victim’s death. (People v. Swain (1996) 12 Cal.4th 593, 602-603.)
Substantial evidence supports the jury’s finding that defendant acted with implied malice. Given Malaya’s small size (40 pounds heavy and 43 inches tall), the nature of weapon (hard plastic), the manner of attack (many hard blows), the severe nature of the blows (some of Malaya’s bruises went to the bone) and the restriction of Malaya’s ability to breathe (gag in her mouth), the jury could reasonably infer that defendant knew her actions were dangerous to life and with conscious disregard for that danger, deliberately performed those actions.
B. Sufficiency of the Evidence re Conviction for Assault Upon A Child Resulting in Death
“The elements of assault on a child, resulting in death [§ 273ab], are: (1) A person, having the care or custody of a child under the age of eight; (2) assaults this child; (3) by means of force that to a reasonable person would be likely to produce great bodily injury; (4) resulting in the child’s death. [Citations.]” (People v. Malfavon (2002) 102 Cal.App.4th 727, 735-736.)
Defendant contends that her section 273ab conviction must be reversed because “no solid evidence was presented that [she] used the type of force against Malaya that, to a reasonable person, would likely result in death.” By inaccurately characterizing the charging statute, defendant misframes the issue. Section 273ab does not require use of force that a reasonable person would believe likely to result in the child’s death. (People v. Albritton (1998) 67 Cal.App.4th 647, 655.) Instead, it only requires: (1) the use of force that a reasonable person would believe likely to produce great bodily injury, and (2) that force, in turn, results in the child’s death. (People v. Preller (1997) 54 Cal.App.4th 93, 98.) For the reasons set forth in our prior discussion of implied malice, there is substantial evidence that defendant used force that a reasonable person would believe likely to produce great bodily injury upon a small four-year old child.
C. Admission of Defendant’s Statement
1. Factual Background
During R.’s testimony, the prosecutor asked him: “Did you tell Detective Waymire that you heard [defendant] say, ‘I killed Malaya, I’m going to jail.’” Defense counsel did not object to the question. R. answered “No” and when asked again, responded: “I didn’t remember hearing that.”
Later on, the prosecution proposed to call a witness who would, in part, testify that R. had told the police about defendant’s statement. The following colloquy occurred:
“[Defense Counsel]: Your Honor, I would also have a motion to exclude the statement, ‘I’m going to jail again.’ I don’t have objection to [the witness] testifying to the fact [R.] told [him] that [defendant] said, ‘I killed Malaya, ’ but I do have an objection to that statement. I believe it’s unduly prejudicial, and it talks about things that are not within the purview of the jury, and I don’t think it addresses anything to the statement, ‘I killed Malaya’ other than being unduly prejudicial.
“THE COURT: Well, I think the statement taken as a . . . whole [¶] . . . – ‘I’m going to jail, ’ seems to acknowledge some wrongdoing here. People can kill without the – there’s different types of killings. Some of them can be justified. Some of them can be accidental. The fact that she says, ‘I’m going to jail’ acknowledges wrongdoing or state of mind that I think is declaration against penal interest, so I’m going to allow it.” (Italics added.)
Thereafter, evidence establishing that defendant had made the statement was introduced at three different times. The first time was during the testimony of Los Angeles Police Officer Eric Campose. Officer Campose had gone to defendant’s apartment the night Malaya died and interviewed R. R. told him, among other things, that defendant had said: “I killed Malaya, I’m going to jail.” The second time was during the testimony of Detective Todd Waymire. The detective had interviewed R. at the police station the night of the crime. R. told him that defendant, as she was leaving the apartment, said that “she was afraid of going to jail.” The third time was when R.’s taped interview with Detective Waymire was introduced into evidence. During the interview, R. explained that defendant, before leaving the apartment, told him that “she didn’t want to go to jail.”
In closing argument, the prosecutor urged defendant’s statements “I killed Malaya, I’m going to jail” were a “[c]omplete acknowledgement of what has occurred. [¶] . . . [¶] She is acknowledging what has happened. She is completely aware of what she has done. She is completely aware of the responsibility that she has taken.”
The court submitted CALJIC No. 2.71, the pattern instruction defining an admission, to the jury.
2. Discussion
Defendant contends that her statement that she was “going to jail” should have been excluded because “an inculpatory meaning was not ‘directly inferable’ from this statement. [Citations.] This statement did not comprise an admission of criminal liability because the statement did not contain any details of the offense but merely expressed a generalized fear of incarceration.” This argument ignores the fact that defendant made the statement immediately before she said “I killed Malaya.” Taken together, the statements constituted an implied admission of criminal fault. Defendant had killed her daughter and because defendant recognized that her daughter’s death was neither accidental or unintentional, she (defendant) would suffer criminal sanctions (incarceration). In light of the controlling principle that under “Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124), we find no error in admitting the statement.
On appeal, defendant claims for the first time that the admission of the statement infringed her federal due process right to a fair trial. “[R]ejection, on the merits, of a claim that the trial court erred on the issue actually before that court [e.g., admission of evidence under state rules of evidence] necessarily leads to rejection of the newly-applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (People v. Avila (2006) 38 Cal.4th 491, 527, fn. 22.)
Defendant also argues that the trial court’s ruling was error because the statement “I’m going to jail” did not qualify under the admission exception to the hearsay rule. Defendant’s hearsay claim has not been preserved for appeal because it was not raised below. (Evid. Code, § 353, subd. (a).) Defense counsel effectively raised only an Evidence Code section 352 objection when she argued that admission of the statement would be “unduly prejudicial” to the defense. This was insufficient to preserve a hearsay objection. (People v. Williams (1997) 16 Cal.4th 635, 681.) In any event, the statement by itself was not hearsay because it was not offered for the truth of the matter of asserted, e.g., to prove defendant was going to jail. Instead, because it was introduced in conjunction with defendant’s admission that she had killed her daughter, it was (as explained above) offered to show defendant’s consciousness of guilt for Malaya’s death.
Lastly, defendant next urges that introduction of the statement “was prohibited by Evidence Code section 1101, as improper propensity evidence.” She argues that since her “statement that she was ‘going to jail’ implied [she] ‘knew and associated with’ criminals because she had been incarcerated in the past, this statement should not have been admitted because its admission created a threat that the statement would be used improperly ‘by the jury as character-trait evidence.’” Putting aside the fact that the specific objection has been, as was the hearsay objection, forfeited because it was not raised below (People v. Clark (1992) 3 Cal.4th 41, 125-126; Evid. Code, § 353), this appellate argument is meritless. Introduction of the statement did not constitute use of a prior bad act to demonstrate defendant’s propensity to commit a crime. The evidence was offered to show defendant’s consciousness of guilt. That, in fact, was the very point the prosecutor made in her closing argument.
D. Enlarged Autopsy Photographs
1. Factual Background
At trial, the prosecutor introduced seven color photographs of Malaya taken at the hospital after she died. The photographs, five inches by three and a half inches, show the multiple bruises the child suffered. Defendant does not challenge the admission of those photographs. Instead, defendant challenges the fact that during the testimony of Dr. David Wagner (the emergency room physician who attended to Malaya the night she was brought to the hospital), larger computer generated images of the photographs were utilized. The sparse record on this issue is the following.
Pursuant to request of defendant’s appellate counsel, the superior court has transmitted the seven photographs to this court. (Cal. Rules of Court, rules 8.224 and 8.320(e).) We have examined the photographs.
Prior to Dr. Wagner’s testimony, defense counsel objected that the enlarged photographs “distort[ed] the injuries” by showing a redness that was “not a part of the injuries” and that the redness was caused by “the computerization process of the picture.” The trial court responded: “I’ve looked at the blowups, and I respectfully disagree. I don’t think there’s anything particularly inflammatory or misleading about anything. . . . I don’t see any material difference in the photograph, except a little redness.” The prosecutor also disagreed with the defense claim. She said: “I don’t agree with [defense] counsel that there’s redness. I agree that there’s some portion, that there’s just a little bit of computerization, but I don’t think it’s material, and I told counsel that I will qualify my exhibit by saying that on the record.” Defense counsel, not satisfied, argued: “[B]lowing up a picture which has distortion by the computer – which in my opinion makes the injury look worse – has a shock value for the jury; it’s very prejudicial. And they might not wait to see the picture when they’re in the jury room, and I think that’s mischaracterizing the injury itself.”
Dr. Wagner proceeded to testify. He explained the emergency measures his staff had employed in their unsuccessful attempts to resuscitate Malaya. The prosecutor displayed the enlarged photographs. When she presented the first of the seven photos, she asked Dr. Wagner: “And does that photograph – and grant it, there is some level of computerized distortion given the enlargement, but does that photograph accurately depict the state of [Malaya’s] body as you saw it once it came to the emergency room?” The doctor answered it did. As the prosecutor showed the doctor each of the photographs, he testified that each accurately showed Malaya’s injuries.
Although defense counsel conducted a detailed cross-examination of Dr. Wagner, she asked him no questions about any “distortion” of the photographs caused by the computer-generated enlargement process.
Later in trial, the regular size series of photographs were entered into evidence without any objection from defense counsel.
The prosecutor made no mention of the photographs (enlarged or regular size) in closing argument.
2. Discussion
Defendant contends that “the trial court abused its discretion and committed prejudicial error in admitting the blown up autopsy photographs.” According to her, the blow-ups “were inadmissible because they depicted the child’s bruises inaccurately and, on this basis, were of no material value save to inflame the jury’s passions against [her].”
This contention suffers from three infirmities.
The first is that defendant has not presented a sufficient record by which to evaluate her claim of error. That is, while she has had the regular sized photographs transmitted to us (see fn. 8, ante), the record does not contain any images of the enlarged photographs. Hence, it is impossible to evaluate her claim that they inaccurately depicted the victim’s injuries. “‘[E]rror is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against [her].’” (People v. Clifton (1969) 270 Cal.App.2d 860, 862.)
The second is that the record provided does not support her claim that the enlarged photographs materially distorted the images. Neither the trial court nor the prosecutor agreed with defense counsel’s claim to that effect. When the prosecutor showed the enlarged photographs to Dr. Wagner, the prosecutor, conceding that there was some computer distortion, asked the doctor if the photographs were accurate depictions of Malaya’s injuries. He replied in the affirmative. Although defense counsel could have pursued this point on her cross-examination of Dr. Wagner to develop an evidentiary record to support her argument, she did not do so, arguably resulting in a forfeiture of any claim of error.
The third is that defendant mischaracterizes the trial court’s ruling. The court did not admit the blown up photographs into evidence. It simply permitted the prosecutor to use them to illustrate Dr. Wagner’s testimony. That decision was clearly not an abuse of discretion since the option -- showing the jury the regular size photographs as he testified –would have been cumbersome and disruptive. As noted above, only the regular sized photos were introduced into evidence, a ruling defendant does not challenge.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.