Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA105988 Eleanor Hunter, Judge.
Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Zee Rodriguez and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Monica Mercado, appeals the judgment entered following her conviction for second degree murder and attempted murder, with enhancements for inflicting great bodily injury and inflicting injury knowing the victim was pregnant (Pen. Code, §§ 187, 664/187, 12022.7, 12022.9.) She was sentenced to state prison for a term of 32 years to life. In a related habeas corpus petition, Mercado claims she was denied the effective assistance of counsel.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified. The habeas corpus petition is denied.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
a. Porsche Davis’s testimony.
Defendant Mercado and Porsche Davis were romantically involved with the same man, Bryant Waller. Davis testified she and Mercado had been fighting over Waller for three years. Davis testified she and Waller were living together, and that she believed he had ended his relationship with Mercado.
On April 5, 2009, Davis was eight months pregnant with Waller’s child. That morning, as Davis was walking home from a McDonald’s restaurant, she saw Mercado and Waller in a green Range Rover. Mercado was driving. Davis was angry because Waller had their car and she had been calling him because she was hungry; she felt Waller should have brought her breakfast that morning.
Mercado stopped the car. Davis walked to the passenger side and told Waller to give her their car keys. Waller tried to open the passenger door, but it wouldn’t open. Mercado called Davis a bitch and Davis threw a cup of orange juice into the car, splashing Waller. Mercado drove off as Davis walked away. Davis looked to make sure Mercado was gone because Mercado had tried to run her over in the past. When she saw Mercado pull into a driveway, Davis kept walking. But when she looked again, Mercado was driving right toward her. Davis heard Waller say something like “watch out” or “Porsche, move.” Davis put her hands on the car hood, curled into a ball and held her stomach. The next thing she knew, she was underneath the Range Rover: “I just felt my baby go in my back and that was it.... And my stomach just went flat instantly.” The front and back tires of the Range Rover had driven over her. Davis testified the car did not swerve before it hit her, and she never heard any sound to indicate Mercado had applied the brakes.
Davis was taken to a hospital. Her baby, delivered by cesarean section, was born critically injured and did not survive. Davis suffered a cracked pelvis, broken ribs and injuries to her spine and shoulder. She was hospitalized for three and a half weeks before being transferred to a rehabilitation center.
b. Bryant Waller’s testimony.
Waller testified he had spent the night before the incident at Mercado’s home after she invited him to come over. Mercado had previously obtained a restraining order against Waller, who had a prior conviction for domestic violence, but they had an enjoyable evening. The next morning, Mercado drove them to a Jack-In-The-Box in her Range Rover. After leaving the restaurant, Waller saw Davis walking down the street. He told Mercado to ignore her. Mercado stopped the car. She and Waller talked about spending a day with their two boys. Mercado brought up Davis’s pregnancy and said, “... I can’t believe that you’re going to let her have this baby.” Waller said Davis was eight months pregnant and there was nothing he could do about it. Mercado seemed upset, but not really angry.
While he and Mercado were talking, Davis walked up and asked him for the keys to their car. When Davis used the word “bitch, ” Mercado said, “[H]old on bitch, ” and Davis tossed her cup of orange juice into the car, hitting Waller in the face. Everybody started screaming. Mercado put the Range Rover into reverse and backed up. Waller told her to pull over. Mercado asked if he was going “to save this bitch.” Waller tried to get out of the car but he had trouble opening the door. The car started moving.
Mercado turned into a driveway, backed out, and started driving down the street. Waller was still trying to get the passenger door open. When he finally succeeded in getting it open a little, Mercado grabbed him and again asked if he intended “to go help this bitch.” The car swerved when Mercado grabbed him. At that moment, the Range Rover hit Davis, although Waller did not see the actual impact. After Mercado let Waller out of the car a half block away, he ran back to Davis. Mercado drove off.
c. Independent eyewitness testimony.
Bruce Cotton, a truck driver, was sitting on his porch that morning. He saw Davis walking down the street and arguing with Waller, who was riding in a car. Davis was yelling at him: “Give me my keys, give me my keys.” Mercado pulled over and parked, and Cotton heard all three of them arguing. When Mercado started driving again, Davis walked after the car yelling, “[P]lease give me my keys.” Mercado turned around, headed back toward Davis and stopped right in front of her. Davis put her hand on the hood of the car and kept yelling for her keys. Waller yelled, “No, stop. Don’t do it. Don’t do it.” Mercado “hit the accelerator” and rolled slowly over Davis. The car did not swerve or brake. Cotton testified Davis screamed and he heard her bones being crushed as Mercado ran over her with the car’s front and back tires. It looked like Waller tried to get out of the car, but Mercado sped around the corner and Waller could not get out until she came to a stop. After Waller got out, Mercado sped off.
Jai Gilyard testified she was sitting in the living room of her mother’s house that morning and she looked out the window when she heard loud voices. She saw Davis walking and a Range Rover driving by in the same direction. Then the same car drove by in the opposite direction. Gilyard heard someone in the car say, “If you don’t get from in front of my car, I’m going to run you over.” Gilyard saw Davis “rolling under the car.”
Meanwhile, Cotton had called 911, jumped into his car and followed Mercado. When Mercado stopped at a gas station, he pulled in behind her. Cotton testified Mercado jumped out of her car, came over to him and in “a vengeful voice... asked me what the hell am I following her for.” When Cotton told her she’d just run over a woman and left the scene of an accident, Mercado gave him a “like, so what” look. She jumped back into her car and sped off.
d. Waller’s police statement.
Waller told Detective Mark Hahn, in an interview on the same day as the incident, that as Mercado turned her car around in the driveway she said, “Oh, I’m going to kill this bitch.” Waller said Mercado “went right at [Davis]” with the car. Although at trial Waller testified he could not say if Mercado had acted deliberately, he told Hahn he had “no sympathy” for her because “don’t nobody up on God’s green earth would do anything to gun a pregnant woman down.” On cross examination, Waller acknowledged he had been pretty clear in his interview with Hahn that he believed Mercado had acted deliberately.
Waller also acknowledged that when he subsequently spoke to Mercado in jail, he told her he would wait for her and marry her. He told her he would “give them all the information they need to help” Mercado get out of jail. Waller acknowledged he did not tell Hahn there had been any kind of “tussle” inside the car between him and Mercado, or that Mercado had grabbed his arm just before hitting Davis.
e. Medical evidence.
Dr. Virender Rehan attended at the delivery of Davis’s baby by emergency caesarian section. The baby was almost dead at birth, her heart beating only occasionally. Her skull had been fractured, she was suffering from convulsions and there was extensive internal head bleeding. It was obvious she would not survive. When life support was discontinued, the baby died within minutes.
Deputy Medical Examiner Dr. Ogbonna Chinwah testified his job entails determining the cause and manner of death of bodies brought to the coroner’s office. He testified: “Manner of death is classified in five classifications: Natural, accident, suicide, homicide, and undetermined.” Chinwah performed the autopsy on Davis’s baby. Because of a catastrophic skull fracture, it would have been virtually impossible to save the baby’s life. Chinwah opined the cause of death had been blunt force trauma to the baby’s head, and he characterized the death as a homicide. Chinwah based this homicide conclusion on information he received indicating the baby’s mother had been intentionally run over by a car.
f. Prior violent incidents involving Mercado.
Davis testified she and Mercado had had prior angry encounters during which Mercado had done such things as spraying mace into Davis’s car, cutting her with a knife, and slashing her tires. During one of these encounters, Davis had pepper-sprayed Mercado. Mercado and Davis had a fight in January 2009, during which Mercado tried to run Davis down with her Range Rover. Waller had yelled at Davis to watch out, and Davis managed to jump out of the way. Mercado then crashed into the gates of a market and Davis threw a hammer at her. Davis got into her own car and Mercado chased her through the neighborhood. Later, Mercado drove into Davis’s parked car.
Waller testified that once, in November 2007, he and a former girlfriend, Saraya Hollis, were riding in a car when Mercado drove up. Waller got out and Mercado started chasing Hollis. When Hollis returned, there was a dent in Waller’s car because Mercado had hit it. The next morning, Waller and Hollis were again in Waller’s car when Mercado drove up behind them and “bumped” the car.
Waller testified that, in addition to Davis’s baby and the children he had with Mercado, he also had three children with Gwanna Hayes. In September 2007, Mercado came to Hayes’s house looking for him. When Waller opened the door, Mercado “ran inside” and “[s]tarted banging up stuff.” She smashed photographs of Waller and his children, and broke the window of Waller’s car. Waller called the police.
Hollis also testified about the November 2007 incident. She was sitting in her car with Waller when Mercado approached and began arguing with him. When Hollis drove off, Mercado chased her and repeatedly ran into her car. The next morning, when Hollis was dropping Waller off, she noticed Mercado behind her. Hollis got out and they had words. Mercado then tried to hit Hollis with her car. Hollis moved out of the way and Mercado hit Hollis’s car. Hollis filed a police report.
2. Defense evidence.
Mercado’s sister, Violeta, testified that when she lived with Mercado in 2007-2008, Davis used to drive by and look at their house five or six times a month. Once, Davis came into their yard and threw a Coke can or bottle at the windshield of Violeta’s car. When Violeta yelled at her, Davis asked, “Where the fuck is your bitch ass sister.” Davis, who had a wrench in her hand, also said: “Oh, you just watch and see, I have something for that bitch.”
Mercado’s other sister, Gabriela, testified that once in March 2008 she was babysitting at Mercado’s house while Mercado and Waller went out. At 2:30 a.m., she heard Mercado yelling. Running outside, Gabriela saw Mercado in her car and Davis running up to the car with a hammer. Davis started banging on Mercado’s car with the hammer. Waller was there, yelling at Davis to leave. Mercado got out of the car and started fighting with Davis.
Mercado testified in her own defense. She had prior convictions for petty theft and grand theft. Mercado and Waller had two young children. Mercado testified Waller lived with her during the “whole course of [their] relationship.” Mercado first learned Waller was seeing Davis two or three years ago. She and Davis had been engaged in a running battle over Waller, and she had told Davis to leave Waller alone many times.
On the morning of April 5, as she and Waller were driving home from Jack-In-The-Box, Waller suddenly told her, “Man, just go straight and avoid the bullshit.” When Mercado pulled over and asked what he was talking about, Waller said Davis was pregnant. Mercado started crying and asked why Davis was having the baby. Waller said there was nothing he could do because she was eight months pregnant. Mercado said, “I can’t believe that she’s going to have your baby.” Just then, Davis appeared and said, “You’re still fucking with this bitch. Give me my keys. Give me my keys.” When Waller told her to hold on a minute, Davis threw her orange juice into the car.
Mercado decided to drive home, so she pulled into a driveway. Before backing up, she looked in both directions and saw Davis on the sidewalk. As Mercado put the car into reverse, Waller tried to get out. Mercado was upset. She pulled on him and Waller pushed her; they were screaming at each other. After turning around in the driveway, Mercado was going 20 or 25 miles per hour. Waller was still trying to get the car door open and Mercado was pulling on his arm. Mercado never saw Davis standing in the street. When she felt the impact, she got scared and drove off.
Mercado denied intentionally hitting Davis. She denied having said, “If you don’t move, I’m going to run you over, ” or, “I’m going to kill this bitch.” She testified Waller never said, “No, don’t do it, don’t run her over.” Mercado also denied trying to run Hollis down, but admitted hitting the car Hollis had been sitting in.
CONTENTIONS
1. The trial court misinstructed the jury when it asked a question while deliberating.
2. Defense counsel was ineffective for not obtaining a report of Mercado’s psychological examination until after the trial.
3. The medical examiner’s testimony characterizing the baby’s death as a homicide violated the confrontation clause.
4. There was cumulative error.
5. There was sentencing error.
DISCUSSION
1. Trial court properly answered the jury’s question during deliberations.
Mercado contends her convictions must be reversed because the trial court gave an incorrect answer when, during deliberations, the jury asked a question about the murder and voluntary manslaughter instructions. This claim is meritless.
a. Background.
The jury was given CALCRIM No. 520, defining murder. This instruction stated, in part:
“The defendant is charged in Count I with murder. To prove the defendant is guilty of this crime, the People must prove that:
“Number one, the defendant committed an act that caused the death of another person;
“Two, when the defendant acted she had the state of mind called malice aforethought;
“And three, she killed without lawful excuse or justification.
The jury was also given CALCRIM No. 570, defining voluntary manslaughter, which stated:
“A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in heat of passion.
“The defendant killed someone because of sudden quarrel or in heat of passion if:
“Number one, the defendant was provoked;
“Number two, as a result of the provocation the defendant acted rashly and under influence of intense emotions that obscured her reasoning or judgment;
“And three, the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than judgment.”
While deliberating, the jury sent the following note to the trial court: “Definition of § 520/570 contains 3 points; in both Sections does all 3 criteria have to be met in order to meet verdict of the § 520 or § 570?” The trial court responded with a one word answer: “Yes.”
b. Discussion.
Mercado contends: “While the three elements of murder, of course, all had to be proven beyond a reasonable doubt in order for the jury to return a verdict of guilty of murder, the three ‘criteria’ contained in CALCRIM 570, the voluntary manslaughter instruction, did not have to be ‘met’ in order for the jury to return a voluntary manslaughter verdict. Rather, the prosecution had to disprove, beyond a reasonable doubt, the existence of passion/quarrel and provocation as defined by the three criteria in the instructions, in order for the jury to find Ms. Mercado guilty of murder. [¶] The court’s error erroneously shifted the burden of proof on the issue of provocation and passion/quarrel and relieved the prosecution of proving an essential element of malice – the absence of provocation and passion/quarrel.”
Noting that “[a]bsence of a sudden quarrel or heat of passion is a fact the prosecution must prove beyond a reasonable doubt when murder and voluntary manslaughter are under joint consideration” (People v. Najera (2006) 138 Cal.App.4th 212, 223), Mercado argues: “By informing jurors that the elements of passion/quarrel had to be ‘met’ in order for the jury to return a voluntary manslaughter verdict, and by treating these elements as analogous or comparable to the elements of murder, the trial court erred.” (Italics added.)
We are not persuaded.
Mercado’s argument appears to be predicated on a misreading of the record. For instance, she poses the issue this way: “The deliberating jury asked the court whether the elements of murder had to be met in order to return a murder verdict, and whether the three criteria establishing provocation/passion had to be met in order to return a voluntary manslaughter verdict. The court answered ‘yes.’ ” But this formulation misconstrues the essence of the jury’s question, which was: As to both instructions, do all three elements have to be satisfied? The proper answer to this question was indeed “yes.” By focusing on the “had to be met” language, rather than on the “all three elements” language, Mercado makes it sound like the jury was asking about the burden of proof. As we read the jury’s question, however, it had to do with whether all three elements of each instruction, both CALCRIM No. 520 and CALCRIM No. 570, were necessary elements, i.e., whether the elements were conjunctive or disjunctive. The trial court properly answered by saying the elements were conjunctive.
Moreover, the jury was given the following clear direction as part of the voluntary manslaughter instruction: “The People have the burden of proving beyond a reasonable doubt the defendant did not kill as a result of a sudden quarrel or in heat of passion. [¶] If the People have not met this burden, you must find the defendant not guilty of murder.”
Hence, the trial court’s answer was correctly directed at the actual question the jury asked. We agree with the Attorney General that, given all the instructions, it is not reasonably likely the jury “misapplied the trial court’s... response in a manner that shifted the burden of proof.”
The trial court did not err in responding to the jury’s question.
2. Failure to obtain Mercado’s psychological report from expert did not constitute ineffective assistance of counsel.
Mercado contends she was denied effective assistance because defense counsel arranged for her to be interviewed by a psychologist, but then failed to obtain the psychologist’s report in time to use it at trial. This claim is meritless.
a. Background.
On the day voir dire commenced, the trial court asked defense counsel about the proposed testimony of Dr. Sandra Baca, who had been engaged as a defense expert. Baca, a licensed marriage and family therapist, and an expert on domestic violence, had interviewed Mercado five days earlier. Defense counsel replied, “I’ll know when I get a report. This is an expert in domestic violence. We do know that Miss Mercado has been a victim of continuous domestic violence by Mr. Waller.” When the trial court questioned the relevance of such psychological evidence since Waller had not been the victim, defense counsel said, “I won’t know until I get the report.”
Three days later, just prior to opening statements, the trial court remarked the defense theory had evolved from self-defense to accident and asked if Baca was being dropped as a witness. Defense counsel said he intended to have her testify, although he still did not have her report. The trial court ruled Baca’s testimony would be excluded unless the defense could make a more specific offer of proof. There was no further offer of proof and Baca did not testify.
After Mercado’s conviction, defense counsel included a copy of Baca’s report, which was not written until after Mercado had been convicted, as part of a sentencing memorandum. The report said Mercado told Baca that, when she was a child, her father had been physically abusive. Mercado tried to protect her two younger sisters when her parents argued, and she tried to protect her mother from her father. The report said Mercado had two sons by a man named George Jenkins, and that these boys had been removed from Mercado’s house in 2009 because of Waller’s violence. Mercado described having been badly beaten by both Jenkins and Waller.
Baca’s report concluded “the following susceptibility risk factors may help explain [Mercado’s] actions on the day” of the incident: Mercado had been “exposed to high levels of violence in the home when she was growing up” at the hands of “an alcoholic and drug addicted father, ” and Mercado subsequently “repeated what she observed in her family home and became involved with men who used and abused her.” Baca opined that, because “Mercado’s case of repeated activation of her stress-response from the vicarious trauma she endured at [a] young age began when her brain was still developing, [it] may have caused an altered sensitivity and dysfunction throughout her brain. Ms. Mercado’s impulse problems might be due to a change in the organization of her stress response in her neural networks.”
Defense counsel subsequently filed a new trial motion. At the hearing on this motion, counsel said he did not receive Baca’s report until after trial and that when he read it he realized he had not adequately represented Mercado. Counsel said he had been unaware Mercado’s history of abuse included her relationship with Jenkins and her childhood. The new trial motion was denied.
b. Legal principles.
A claim of ineffective assistance of counsel has two components: “ ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.] To establish ineffectiveness, a ‘defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ [Citation.] To establish prejudice he ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (Williams v. Taylor (2000) 529 U.S. 362, 390-391 [120 S.Ct. 1495].) “[T]he burden of proof that the defendant must meet in order to establish [her] entitlement to relief on an ineffective-assistance claim is preponderance of the evidence.” (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
An appellate court “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052].)
c. Discussion
Mercado contends she was prejudiced because defense counsel “proceeded to trial without having obtained a report from Dr. Baca, the expert he... retain[ed] – and, therefore, without considering whether expert testimony about the matters Dr. Baca wrote about in her report would have assisted Ms. Mercado’s case.” Mercado asserts the lack of this psychological evidence compromised her heat-of-passion attempted voluntary manslaughter defense.
But Mercado has not cited any authority allowing the admission of this kind of psychological evidence to establish the objective element of a heat-of-passion voluntary manslaughter defense. As People v. Steele (2002) 27 Cal.4th 1230, explained: “The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago... ‘this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, ’ because ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.] [¶] Defendant’s evidence that he was intoxicated, that he suffered various mental deficiencies, that he had a psychological dysfunction due to traumatic experiences in the Vietnam War, and that he just ‘snapped’ when he heard the helicopter, may have satisfied the subjective element of heat of passion. [Citations.] But it does not satisfy the objective, reasonable person requirement, which requires provocation by the victim. [Citation.] ‘To satisfy the objective or “reasonable person” element of this form of voluntary manslaughter, the accused’s heat of passion must be due to “sufficient provocation.” ’ [Citation.] ‘[E]vidence of defendant’s extraordinary character and environmental deficiencies was manifestly irrelevant to the inquiry.’ [Citation.]” (Id. at pp. 1252-1253.)
Here, even without the kind of testimony Baca might have provided, there was already more than enough evidence establishing the subjective element of heat-of-passion provocation, i.e., that Mercado assaulted Davis in a jealous rage after learning Davis was pregnant with Waller’s child. What was missing from Mercado’s heat-of-passion defense was the objective element and, as Steele explained, the kind of testimony Baca might have provided is irrelevant to the objective element. As the Attorney General argues, “Since Dr. Baca’s report concludes that appellant’s responses were unique based on her alleged history of abuse, Dr. Baca’s testimony would not have supported a voluntary manslaughter verdict.” There is no reasonable probability the psychological evidence at issue here would have made any difference in the result.
Mercado argues Baca’s evidence would have been admissible under People v. Humphrey (1996) 13 Cal.4th 1073. But that case involved the defendant’s killing of her abuser and it related to the defendant’s claim of self-defense.
Because there was no prejudice flowing from defense counsel’s failure to obtain Baca’s psychological report in time for use at trial, there was no ineffective assistance of counsel.
Given this result, the related claim raised in Mercado’s habeas corpus petition is denied.
3. Medical examiner’s testimony about manner of death did not violate the confrontation clause.
Mercado contends her confrontation clause rights were violated when the deputy medical examiner, Dr. Chinwah, testified Davis’s baby died as a result of a homicide. This claim is meritless.
a. Background.
After testifying about the details of his autopsy findings, Chinwah was asked if he had determined the baby’s “manner of death, ” and the following colloquy occurred:
“A. Homicide.
“Q. Why did you conclude homicide? “
A. The circumstances under which this occurred was [sic] taken into consideration, and... the information I got was that this mother was intentionally run over by the operator of the vehicle.”
On cross examination, Chinwah was asked where that information had come from:
“A. The coroner’s office has an investigator that goes to the scene of anything that is brought into the coroner’s office. [¶] And the investigator interviews different people and make [sic] report.
“Q. Do you know if the investigator interviewed the people that have testified in this trial about what happened?
“A. I have no idea.”
Chinwah also explained: “Homicide in our definition is death by the hand of another person and the circumstance surrounding it.” Upon further cross examination, Chinwah agreed the massive blunt force injury that killed Davis’s baby could have been the result of either an accident or an intentional assault. On redirect-examination, the following colloquy occurred:
“Q. Doctor, the information you received was that the driver sped up and ran over the woman, correct?
“A. Yes.
“Q. And the injuries that you observed to the baby, were they consistent with the driver speeding up and running over the mother who was carrying that baby? “
A. Yes.”
b. Discussion.
Mercado argues Chinwah’s testimony, that the baby’s death was a homicide and that he was told Davis had been intentionally run over, violated the confrontation clause and warrants reversal of Mercado’s conviction. We disagree.
Mercado argues there was a Sixth Amendment confrontation clause violation under Crawford v. Washington (2004) 541 U.S. 36 (124 S.Ct. 1354), because Chinwah’s testimony involved double hearsay: the extra-judicial statement from the unnamed investigator, on top of the extra-judicial statements from the unnamed witnesses who had been interviewed by the investigator. Not so.
As People v. Gardeley (1996) 14 Cal.4th 605, explained: “Expert testimony may... be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions.... [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter... upon which it is based, ’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]” (Id. at p. 618.)
“It is the long-standing rule in California that experts may rely upon and testify to the sources on which they base their opinions (Evid. Code, §§ 801, 802), including hearsay of a type reasonably relied upon by professionals in the field. [Citations.] These rules apply to mental health experts. [Citation.] Hearsay relied upon by experts in formulating their opinions is not testimonial because it is not offered for the truth of the facts stated but merely as the basis for the expert’s opinion. [Citations.] [¶] Crawford was concerned with the substantive use of hearsay evidence that was admitted within an exception to the hearsay rule. It did not suggest that the confrontation clause was implicated by admission of hearsay for nonhearsay purposes. In fact, Crawford expressly stated that the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’ [Citation.]” (People v. Cooper (2007) 148 Cal.App.4th 731, 746-747, italics added; see also People v. Ramirez (2007) 153 Cal.App.4th 1422, 1426 [detective’s reliance on hearsay in forming opinion that predicate crimes had been committed for benefit of criminal street gang did not violate Crawford]; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 [gang expert’s reliance on casual conversations with other gang members to learn defendant belonged to the gang did not violate Crawford].)
Cooper applied this rule to the testimony of a prosecution expert who testified to the mental competence of an elder-abuse victim (§ 368), who had died prior to trial, on the basis of videotaped interviews with the victim: “To the extent Dr. Evans’s opinion regarding Nelson’s mental competence was based on the videotaped interviews, the confrontation clause does not prevent her from rendering her opinion and stating the sources of information on which she relied in reaching it. Such evidence is not admitted for the truth of the matter asserted.” (People v. Cooper, supra, 148 Cal.App.4th at p. 747.)
The hearsay statements made to the coroner’s investigator, which in turn were relied on by Dr. Chinwah as a basis for his opinion the baby’s death had been a homicide, did not violate Mercado’s confrontation rights when Chinwah repeated the substance of those statements at trial. This evidence was not admitted to establish the truth of the extra-judicial statements, but only to show the basis for Chinwah’s expert opinion.
Given this result, the related claim raised in Mercado’s habeas corpus petition is denied.
4. There was no cumulative error.
Mercado contends her convictions must be reversed for cumulative error. Because we have found no errors, her claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
5. Sentencing error must be corrected.
Mercado contends, and the Attorney General properly concedes, the trial court erred by imposing enhancements on count 2 (the attempted murder of Davis) for both the infliction of great bodily injury (§ 12022.7) and the infliction of injury on a pregnant woman resulting in the termination of her pregnancy (§ 12022.9).
Section 12022.7, subdivision (a), provides: “Any person who personally inflicts great bodily injury on any person other than an accomplice 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 three years.”
Section 12022.9 provides, in pertinent part: “Any person who, during the commission of a felony or attempted felony, knows or reasonably should know that the victim is pregnant, and who, with intent to inflict injury, and without the consent of the woman, personally inflicts injury upon a pregnant woman that results in the termination of the pregnancy shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.”
Section 1170.1, subdivision (g) provides, in pertinent part: “When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.”
Because section 12022.9 punishes the infliction of bodily injury upon a victim who happens to be pregnant, both it and section 12022.7 punish the infliction of great bodily injury. (See § 12022.53, subd. (f) [referring to “enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9”]; People v. Pieters (1991) 52 Cal.3d 894, 901 [referring to sections 12022.7 and 12022.9 as enhancements for “infliction of great bodily injury”.) However, section 1170.1, subdivision (g), provides, in pertinent part: “When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.” Hence, we will order stricken the three-year enhancement under section 12022.7.
See People v. Taylor (2004) 119 Cal.App.4th 628, 644 (“[People v. Dennis (1998) 17 Cal.4th 468] teaches that the point of the enhancement is to punish the defendant for injuring a woman in a particular manner with a particular result, not for the particular harm that comes to the fetus she is carrying.”).
DISPOSITION
The three-year sentence enhancement under section 12022.7 is stricken. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment. The habeas corpus petition is denied.
We concur: CROSKEY, J. ALDRICH, J.