Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. RIF108585, Edward D. Webster, Judge.
BENKE, Acting P. J
Appellant's severely disabled son died as a result of head injuries he suffered when appellant forcefully opened the child's bedroom door, knowing the child usually sat behind the door. Appellant was convicted of assaulting a child under the age of eight with force likely to cause great bodily injury resulting in the death of the child and second degree murder. Appellant's trial counsel did not ask for, and the trial court did not give, an instruction on the defense of accident. On appeal appellant argues the failure to give an accident instruction requires reversal of her convictions.
We agree the trial court had a sua sponte duty to instruct on the defense of accident. However, in light of the instructions the trial court provided the jury with respect to second degree murder, manslaughter, and assault with force likely to cause great bodily injury, the trial court's failure to also instruct with respect to accident did not prejudice appellant. Hence we affirm appellant's convictions.
FACTUAL AND PROCEDURAL BACKGROUND
According to appellant Cecilia Angelita Ochoa, at approximately 2:00 a.m. on February 25, 2003, she heard her three-year-old son Matteo crying. Matteo was mentally impaired and at the age of three did not speak. Matteo suffered from hydrocephalus, which physicians had treated by inserting a shunt in his brain when he was an infant. Appellant told police officers Matteo had a habit of sitting behind his bedroom door and either kicking it or banging his head against it.
Appellant admitted to police that, although she was aware of Matteo's habit of sitting behind his bedroom door, in response to Matteo's crying she went to his bedroom door and forcefully opened it. Appellant also admitted that when she opened the door she was mad. Appellant told the police she heard the door hit Matteo's head and then heard Matteo's head hit the wall behind the door. Appellant left Matteo in his room crying and returned to her own bedroom. Matteo cried for a long time and later, when appellant went to check on Matteo, who was still crying, he pulled his arms away from her and held his head; appellant interpreted this behavior to mean Matteo did not want her to touch him.
Appellant checked on Matteo again at 9:00 a.m. He did not want to wake up or eat. Appellant took her daughter to school and checked on Matteo throughout the rest of the day. According to appellant, when she checked on Matteo during the day he was breathing, but sleeping. At some point during the evening, appellant left her home with her sister and returned around 10:00 p.m. and checked on Matteo again. He was not breathing.
Although appellant found Matteo not breathing at 10:00 p.m., she waited until 1:00 a.m. the following morning before calling 911. Appellant explained she waited because she knew she injured Matteo when she hit him with the door.
Officers found Matteo lying on his back, covered with a blanket. His skin was pale and cold to the touch; one officer lifted the child's arm and it was stiff.
Appellant was interviewed twice by law enforcement officers. The first interview took place shortly after appellant called 911. During the first interview, which lasted approximately one hour, appellant stated Matteo had seemed fine on the day before he died, but that he had been crying during the night before he died, that she had calmed him, and that the following morning he was sleeping and did not want to eat. She claimed she checked Matteo throughout the day and that he had slept most of the day. During the first interview, appellant told police she found Matteo dead at 12:30 a.m. During the first interview appellant did not tell police about hitting her son with his bedroom door.
Appellant was released following the initial interview. Shortly thereafter, police officers were advised by a pathologist who had conducted an autopsy on Matteo that Matteo had died as the result abusive head trauma. The police officers investigating Matteo's death decided to again interview appellant. The second interview was conducted six hours after the first interview was complete. After being confronted with the information provided by the pathologist, appellant admitted she hit Matteo in the head with his door and that she had found him not breathing at 10:00 p.m. on the evening of February 25.
Appellant was arrested and charged with assault on a child under eight years of age with force likely to produce great bodily injury and murder. (Pen. Code, §§ 273ab, 187.)
At trial, in addition to presenting evidence of appellant's statements, the prosecution presented testimony from the pathologist who performed the autopsy as well as two other medical experts. The pathologist testified Mateo had fresh bruises on both sides of his face, four separate bruises under his scalp in the area of his forehead and top of his head, and freshly clotted blood beneath his skull. According to the pathologist, 30 to 40 cubic centimeter's (ccs) of blood came out of Matteos' skull when the pathologist opened it. The pathologist testified that 30 to 40 ccs of blood is a significant amount of blood for a child. The pathologist also found significant bleeding around the optic nerves of both eyes. Based on what he found during the course of the autopsy, the pathologist concluded Matteo had been the victim of blunt force trauma. The other medical experts agreed with the pathologist and concluded that Matteo had died as the result of a subdural hematoma which had caused his brain to swell.
The prosecution also presented evidence from two witnesses who had been occasional babysitters for Matteo. They both testified that when appellant brought Matteo to them, he was not clean and they both had the same experience with appellant: on separate occasions each of them had agreed to take care of Matteo for a few hours and on each occasion appellant had not returned for more than a day.
Appellant testified in her own defense. She testified that Matteo had been crying throughout the night and that she was frustrated when she opened the door. She testified that she did not know he was behind the door but admitted that there was a chance he was. Appellant admitted that she knew Matteo was dead when she checked on him at around 10:00 p.m. on the evening of February 25. However, rather than reporting his death to anyone, she left the apartment with her other children, her boyfriend and dropped her sister off at another location. When she returned 20 minutes later, she still waited to call police.
On cross-examination appellant denied having any problem with methamphetamine and denied ever paying babysitters with methamphetamine. Appellant also presented character witnesses who testified that appellant appeared bonded to Matteo, that she took good care of all her children, and that the witnesses never saw any indication the children were abused.
In its rebuttal case the prosecution presented evidence that in fact appellant paid babysitters with methamphetamine.
The trial court instructed the jury on second degree murder, involuntary manslaughter, involuntary manslaughter based on the failure to perform a legal duty, and assault on a child with force likely to cause great bodily injury resulting in the death of a child. Among other contentions, appellant's counsel argued Matteo's death was accidental. The jury found appellant guilty of second degree murder and assault on a child resulting in the death of the child. The trial court sentenced appellant to 25 years to life on the assault conviction and stayed a 15-year-to-life sentence on the murder conviction.
DISCUSSION
As we indicated at the outset, on appeal appellant contends the trial court should have sua sponte given the jury an instruction on the defense of accident and that her counsel was ineffective in failing to request such an instruction. Although such an instruction was required, the record shows beyond any reasonable doubt that an instruction on the defense of accident would not have resulted in a more favorable verdict.
I
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citations.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) "[T]he sua sponte duty to instruct on all material issues presented by the evidence extends to defenses as well as to lesser included offenses [citation].... In the case of defenses,... a sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citation.]" (Id. at p. 157.)
CALCRIM No. 3404 provides in relevant part that a "defendant is not guilty of [the charged offense] if [she] acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of [the charged crime] unless you are convinced beyond a reasonable doubt that [she] acted with the required intent." CALCRIM No. 3404 is based on Penal Code section 26, which provides in pertinent part: "All persons are capable of committing crimes except those belonging to the following classes: [¶]...[¶] Five—Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence."
As appellant points out, in People v. Gonzales (1999) 74 Cal.App.4th 382 the court required an instruction on the defense of accident under factual circumstances similar to the one presented on this record. In People v. Gonzales the defendant was charged with domestic violence after he kicked open a bathroom door which hit his girlfriend in the head. The victim later made statements to the effect that her head injury and other injuries she suffered were the result of an accident and the defendant's counsel argued that her injuries were the result of an accident. On appeal the court stated: "Since there was substantial evidence that [the victim's] injuries were caused by an accident and defense counsel relied on the defense of accident in his argument to the jury, the trial court erred in failing to instruct the jury sua sponte regarding that defense when initially instructing the jury. [Citations.]." (Id. at p. 390.)
As in People v. Gonzalez, in light of appellant's testimony she did not know Matteo was behind the door when she opened it and counsel's argument to the same effect, the trial court erred in failing to give an instruction on the defense of accident. Appellant's testimony was substantial evidence which, if believed, would have supported the defense of accident and counsel's argument makes its clear such an instruction was not inconsistent with appellant's theory of the case. (People v. Breverman, supra, 19 Cal.4th at p. 157; People v. Gonzales, supra, 74 Cal.App.4th at pp. 390-391.)
II
Having found instructional error, we must determine whether the error requires reversal of appellant's convictions. "The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime." (People v. Gonzales, supra, 74 Cal.App.4th at p. 390.) Thus the instructional error is one affecting an element of the offense charged and arguably will warrant reversal "unless it is harmless beyond reasonable doubt." (People v. Cooper (1991) 53 Cal.3d 1158, 1170-1171; but see People v. Salas (2006) 37 Cal.4th 967, 984 .)
Here we have no difficulty concluding that the error was harmless beyond a reasonable doubt. In instructing the jury on second degree murder, the trial court gave CALCRIM No. 520, which in pertinent part stated: "To prove that the defendant is guilty [of second degree murder], the People must prove that:
"AND
"Malice aforethought may be implied if
"1. She intentionally committed an act;
"3. At the time she acted, she knew her act was dangerous to human life;
"4. She deliberately acted with conscious disregard for human life."
Plainly, under CALCRIM No. 520, the jury could not have convicted appellant of second degree murder if it accepted appellant's testimony that she did not know Matteo was behind the door. If appellant did not know Matteo was behind the door, forcefully opening the door would not have been acting "with conscious disregard for human life" as required by CALCRIM No. 520.
Our conclusion that an accident instruction would not have resulted in a less severe verdict is buttressed by the additional manslaughter and assault instructions the trial court gave. In instructing on involuntary manslaughter, the court gave the jury CALCRIM No. 580, which in pertinent part states: "The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter." (Italics added.) In instructing on assault on a child with force likely to cause great bodily injury, the trial court gave CALCRIM No. 820, which in pertinent part states: "To prove that the defendant is guilty of this crime, the People must prove that: [¶]... [¶] 5. When the defendant acted, she was aware of facts that would lead a reasonable person to realize that her act by its nature would directly and probably result in great bodily injury to the child." (Italics added.) In light of these instructions and the jury's finding that appellant was guilty of both murder and assault, we have no doubt the jury rejected appellant's accident defense. Again, the jury could not have accepted appellant's version of events and still found that she had "full awareness and knowledge" that her conduct was endangering her son's life or that "she was aware of facts that would lead a reasonable person" to believe she would inflict great bodily injury on him.
In sum, although the trial court should have given an instruction on the defense of accident, in light of the other instructions the jury was given, appellant was not prejudiced by the omission.
III
"A defendant seeking relief on the basis of ineffective assistance of counsel must show... that it is reasonably probable a more favorable probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Price (1991) 1 Cal.4th 324, 440.) Thus, because the trial court's error did not prejudice appellant, we must also reject her contention that her counsel's failure to ask for an accident instruction warrants reversal.
Judgment of conviction affirmed.
WE CONCUR: HUFFMAN, J., McDONALD, J.