Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge, Super. Ct. No. F04906173-0
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Tamara Lynette Robinson was convicted of the second degree murder of her 10-year-old niece, Tiana. In addition, she was found guilty of two counts of corporal injury to a child, Tiana’s sister, P. (We protect the names of P and Tiana’s other sister, S; because both of their names start with “A,” we use the second letter of each name.) Defendant appeals, claiming the evidence is insufficient to support a finding of implied malice. In addition, she raises numerous instructional issues, argues that there was prosecutorial misconduct, and asserts there is an error in the abstract of judgment. We affirm.
FACTS
Defendant’s sister, Tina J., had three daughters, P, S and Tiana (in order of age, Tiana being the youngest). Tina was having financial difficulties and asked defendant if she would watch her daughters. Defendant agreed to the three girls’ moving in with her and her toddler, F.
During the summer of 2003, defendant and the girls were rarely seen. Defendant would tell others that they spent a lot of time out of town. After July, defendant told others that Tiana was out of town with friends. Although some people saw P and S during the summer, no one saw Tiana after early July. C, a friend of the girls, saw P and S at a birthday party on July 14, 2003. Tiana was not with them. P and S only stayed a few minutes and were not sociable. C thought it was unusual because P, S and Tiana were always together.
Tiana had Grave’s disease, a disease of the thyroid gland. Her condition was monitored closely. Tiana missed her doctor’s appointment on July 7, 2003. Tiana’s treating physician asked the nurse to contact defendant regarding the missed appointment. The nurse called defendant’s telephone number on July 8 and 10, 2003, but did not speak to anyone. Defendant called the office on July 14, 2003, and reported that Tiana had been in her mother’s care over the Fourth of July and had not returned.
P and S began their school year in late August of 2003. Tiana was not in school. Defendant filled out her eligibility report for August of 2003 and wrote that as of September 8, 2003, Tiana wanted to live with her mother.
On September 8, 2003, defendant called and left a message for Tina saying she would like Tina to come to their brother Alfred Tisdale’s home that evening. Defendant told Tina that Tiana would be there. That same day, defendant called Tabitha, Alfred’s wife, and asked Tabitha to watch the girls after school while she ran errands. Tabitha agreed to watch the girls.
P and S arrived at Tabitha and Alfred’s home about 4:30 p.m. Tabitha asked P where Tiana was. P said Tiana was still out of town. Defendant arrived later that evening and asked where Tiana was. Relying on what P had told her, Tabitha said Tiana was out of town. Defendant was upset and asked Tabitha who told her that Tiana was out of town. Tabitha told defendant they needed to look for Tiana or call the police. Defendant said she would call the police.
Defendant called her friend, Fresno Police Officer Michael Moore, in the early morning hours of September 9, 2003. She stated a concern about Tiana not coming home. Moore told her she should file a missing person’s report.
Defendant called the police in the early morning hours of September 9, 2003, and reported that Tiana was missing. She told the responding officer that she last saw Tiana on September 8, 2003, at 7:30 a.m. Defendant told the officer that Tiana had a history of running away and that she did not want to live with defendant. Defendant said that Tiana was supposed to go to her uncle’s house on September 8th, but she never showed up. Defendant also called Tina and told her Tiana ran away.
On September 9, 2003, Tabitha saw P and S on their way to school. She asked if Tiana had come home. P said no. Tabitha was concerned, so she went to the girls’ school and asked about Tiana. Tabitha spoke to the vice principal, Carol Badawi, and the mental health educator, Peral Heppner.
The school records were checked and it was discovered that Tiana had not been at school at all during the new school year. Emergency cards for P and S had been filled out by defendant. There was no emergency card for Tiana. In addition, Tiana was not listed as a sibling on P’s or S’s emergency card.
Badawi called P and S into her office. She asked them what was going on and asked where Tiana was. P and S said Tiana had not walked home with them the night before. Badawi referred the matter to Heppner.
Heppner talked to both girls and they were returned to class. P’s teacher reported that P was distraught; Heppner tried to calm P down. At lunchtime, P was falling apart. Heppner spoke to P again and asked her if she was keeping secrets; she said yes. Heppner then asked P if Tiana was alive. P began to wail and then told Heppner that Tiana was dead.
Heppner held P’s hand as they talked. P said “ouch” when they were holding hands. Heppner saw bruises and welts on P’s hand and forearm.
Police officers were dispatched to the school. P and S were taken for questioning. Defendant arrived at school at approximately 3 p.m. She was taken to the police station and interviewed.
Defendant was interviewed for several hours. At the outset, she said that Tiana was gone all summer and the last time defendant saw her was July 11, 2003. Defendant noted that Tiana created problems in their home every day. She commented that all of her nieces were liars. Defendant complained that she spent a lot of time and energy on Tiana when she should have been devoting her time to her own baby.
Defendant said she did not want to say anything bad about her nieces and felt she was supposed to be their protector. Eventually, she stated the girls were fighting about exercises. P and S were trying to show Tiana how to exercise to meet the requirements at school. Defendant also tried to help. Tiana did not want to do the exercises. Eventually P and S told defendant to go to her room and they would take care of working with Tiana. Defendant said she went into her room. When defendant came out of her room, Tiana was in the bathtub with the shower on and S was telling her to get up. Defendant told Tiana to get out of the tub, but she did not move. S and P took Tiana out of the tub and lifted her into the hallway. Defendant tried to help Tiana, but she was unsuccessful. Defendant did not call for help because she panicked.
P and S testified at trial and told a much different story than what defendant told the police. P testified that in early July she was doing exercises and she asked Tiana if she wanted to do the exercises with her. Tiana said she did not want to. Defendant overheard the conversation and asked if Tiana had said she did not want to do the exercises. Defendant starting hitting Tiana and told her she needed to exercise because she was so skinny. Defendant asked Tiana to do sit-ups and pushups.
Defendant told Tiana she had better do the exercises. Defendant was angry. Tiana tried to do the exercises but she could not do them. Defendant got the shower curtain rod. She kicked Tiana and then started hitting Tiana with the rod on her back, buttocks and legs. P said defendant hit Tiana with the rod for about 30 minutes. Tiana kept falling down and crying.
Defendant told Tiana to go downstairs. She went downstairs; P went downstairs also. Defendant had Tiana place her fingers on the counter. Defendant repeatedly hit Tiana’s fingers with a meat tenderizer. Defendant made Tiana take off her clothes and sit in the garage. The garage was very hot. P asked Tiana if she wanted some water. Tiana said yes but defendant told P that Tiana could not have anything to drink.
Tiana was in the garage for about 10 to 15 minutes. She looked exhausted. Tiana came into the house and defendant made her crawl up the stairs in her underwear like a dog. Defendant yelled at Tiana and hit her head hard against the wall. Tiana was crying. Defendant kept hitting Tiana with the curtain rod and also hit her with the hose from the vacuum cleaner.
P heard defendant’s daughter, F, crying and went into the other room. P could hear defendant yelling and Tiana crying. P came out of the bedroom and saw Tiana in the bathtub. She looked pale. P went back in the bedroom. Defendant called P into the bathroom and said she thought she had killed Tiana. Defendant tried to resuscitate Tiana. Defendant was going to call an ambulance but decided not to because of all the bruises. P testified that Tiana’s entire head was swollen.
S also testified at trial. She said that she and P were doing exercises and asked Tiana if she would like to do the exercises with them. Defendant came into the room and told Tiana to do the exercises correctly. Defendant instructed S to take F and put her in the other room and have her watch cartoons on the television set. After a while, S asked P to go sit with F so S could go back to the room where Tiana was. Defendant hit Tiana with an open hand on her head and arm because she was not doing the exercises correctly. Tiana was crying. Defendant got a baseball bat and the shower rod curtain and told Tiana to do the exercises right or she would hit her. Defendant hit Tiana on the legs, arm and head.
S traded places again with P. S looked out the door and saw defendant continuing to hit Tiana. Defendant was yelling and Tiana was crying. Defendant forced Tiana to go in the garage for about 20 minutes. After that, Tiana dragged herself up the stairs. P had gone back to the upstairs bedroom to sit with F. Once upstairs, Tiana suffered more blows from being struck by defendant with the bat. Defendant hit her in the legs, arms, and head. Tiana stopped moving. Defendant told Tiana to get up and stop faking it.
Defendant told S to help her put Tiana in the bathtub. They put Tiana in the bathtub and then moved her into the hall. P came out of the bedroom during this time. Defendant tried to resuscitate Tiana. S asked defendant if they should call the police and defendant said no.
Defendant told S to go and get clothes for Tiana. They dressed Tiana, put her hair in a bun, and placed her in a sleeping bag. They moved the sleeping bag to the back bedroom. Tiana’s body remained in the room for three days. It smelled. They moved the sleeping bag downstairs, removed Tiana’s body from the sleeping bag and put her in garbage bags. Tiana’s body remained downstairs for four days. It smelled. On the fifth day, defendant awoke P and S early and instructed them to put Tiana’s body in the trunk of the car. They did so. Defendant then drove to the dumpster and they put Tiana’s body in it. They then dumped bleach in the dumpster, drove to the gas station, and vacuumed out the car. The girls were instructed that if anyone asked about Tiana they were to say she was out of town.
P and S both testified that defendant had struck them previously with the shower curtain rod. In addition, defendant got mad at P and S on September 8, 2003, when they gave the incorrect story to Tabitha about where Tiana was. Defendant hit S in the mouth and said S would go to jail if the police found out. Defendant hit P in the ear, rupturing her eardrum. When they arrived home, defendant hit them both with the shower curtain rod. Defendant had hit P days earlier on the buttocks with the shower curtain rod because she did not put her pajamas away properly.
Defendant’s apartment was searched. A shower curtain rod, blood samples, and rug and carpet samples were removed from the apartment. The blood on the bedroom door and bedroom wall were consistent with Tiana’s DNA. The rug sample contained human DNA. A partial profile of DNA from the rug was consistent with Tiana’s DNA.
A landfill was searched for two weeks, but Tiana’s body was not found.
Dr. Swati Banjaree was Tiana’s treating physician for her thyroid disease. She testified that trauma could have an adverse affect on someone with Tiana’s condition. One could develop a rare condition called thyroid storm. When this occurs, it is very dramatic and the patient will suffer a high fever, diarrhea, vomiting, tremulousness, palpitations and sometimes seizures. Other than a thyroid storm, trauma would not cause a different result to a patient with this thyroid condition.
Several witnesses testified that defendant said negative things about Tiana, such as defendant could not stand her, Tiana was giving her problems, and defendant was happy when Tiana was gone during the summer because she was a problem child and got on her nerves. When Juanita Doyle asked defendant if Tiana was still on a trip, defendant replied that she did not care if Tiana came back and “she didn’t want that F-ing B back home.”
DISCUSSION
I. Substantial Evidence of Implied Malice
Defendant argues the evidence was insufficient to prove implied malice. In particular, she contends that, while there was evidence that she administered corporal punishment to Tiana that was cruel and excessive, the evidence did not establish that she used such force as to pose a high probability of death. In addition, defendant argues there was no evidence to show that she was subjectively aware that her actions involved a high probability of death.
“Our role in reviewing the sufficiency of the evidence in a criminal case is a limited one. [Citation.] We examine the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. [Citations.] Substantial evidence is ‘“evidence which is reasonable, credible, and of solid value.”’ [Citation.] Although ‘mere speculation cannot support a conviction’ [citation], the trier of fact is entitled to draw reasonable inferences from the evidence and we will ‘“‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’”’ [Citations.]” (People v. Bohana (2000) 84 Cal.App.4th 360, 367-368.)
Defendant was convicted of second degree murder. Second degree murder requires that the killing be accompanied by implied malice. “The concept of implied malice has both a physical and a mental component. [Citation.] The physical component is satisfied by the performance of ‘“an act, the natural consequences of which are dangerous to life.”’ [Citation.] The mental component … involves an act ‘“deliberately performed by a person who knows that [her] conduct endangers the life of another and who acts with conscious disregard for life….”’ [Citation.]” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106-107.)
First, defendant argues the evidence was insufficient to show that the natural consequences of her acts were dangerous to life. She claims most of the acts described by P and S were merely acts of corporal punishment. While admitting that the blows to Tiana’s head could potentially be viewed as life threatening, she contends the evidence did not establish that she pushed Tiana with such force and violence against the wall that there was a high probability it would result in death or that when she hit her in the head with the baseball bat she did so with life-threatening force.
In addition to the general beating of Tiana by defendant and the confinement in the hot garage, P testified that defendant “got her [Tiana’s] head and she went like that and hit her head against the wall.” P said Tiana’s head hit the wall hard. S testified that defendant hit Tiana five to seven times in the legs, arm and head with the curtain rod. S also testified that, when Tiana came back upstairs from the garage, defendant hit her in the arms, legs and head with the baseball bat.
Hitting a 10 year old’s head hard against a wall and hitting a 10 year old in the head with a baseball bat is more than sufficient evidence for a jury to find that the natural and probable consequences of the acts are dangerous to human life.
Second, defendant argues that even if the physical element of implied malice was shown, the evidence was insufficient to support a finding that she was subjectively aware that Tiana might die. Defendant relies on the facts that she thought Tiana was faking it when she collapsed and that the prosecutor could not point to any specific evidence to show that defendant was subjectively aware that her acts were dangerous to human life.
P testified that after Tiana collapsed defendant told P she thought she (defendant) had killed Tiana. In addition, defendant asked P if she thought that defendant killed her or that Tiana’s hyperthyroid condition killed her. Demonstrative of her consciousness of guilt, defendant did not call law enforcement after Tiana died, but instead hid her body in the apartment for a substantial period of time and then disposed of it. These factors, in addition to the fact that defendant repeatedly beat Tiana over a long period of time, were sufficient to show that defendant was aware at the time she acted that she was endangering Tiana’s life.
Substantial evidence support a finding that defendant acted with implied malice.
II. CALCRIM No. 520--Natural Consequences
“Translation of the statutory elements of implied malice into plain, understandable jury instructions has undergone an evolutionary process.” (People v. Nieto Benitez, supra, 4 Cal.4th at p. 103.) Two lines of authority developed defining implied malice in different ways. “One strand held that malice could be implied where ‘the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.’ [Citations.] The alternate strand held that malice could be implied where the killing was proximately caused by “‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”’ [Citations.]” (Id. at pp. 103-104.)
In People v. Nieto Benitez, supra, 4 Cal.4th 91, the defendant challenged the instruction defining the physical component of implied malice by utilizing the “natural consequences of which are dangerous to life” language and claimed that the jury should have been instructed that the act committed by the defendant had to carry a high probability that death would result. The Supreme Court disagreed and found that for the physical component of implied malice both linguistic formulations “are equivalent and are intended to embody the same standard.” (Id. at p. 111.) Thus, the trial court did not err in not instructing with the “high probability of death” language.
Here, the jury was instructed pursuant to CALCRIM No. 520 that in order to prove a defendant is guilty of murder the People must prove that the defendant committed an act that caused the death of another person. In addition, the jury was told that malice must be shown and that a defendant acts with implied malice if: “1. She intentionally committed an act; 2. The natural consequences of the act were dangerous to human life; 3. At the time she acted, she knew her act was dangerous to human life; AND 4. She deliberately acted with conscious disregard for human life.”
In addition, the jury was instructed pursuant to CALCRIM No. 240 on causation. The instruction provided, “[f]or purposes of the instructions on Murder and Voluntary Manslaughter, an act causes a death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. [¶] There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the death.” (Italics added.)
Defendant contends that the language in CALCRIM No. 240, that a natural and probable consequence is one that a reasonable person would know is likely to happen if nothing intervenes, would mislead a juror into thinking that the act involved to show the physical element of implied malice does not require a high probability that it will result in death, only a mere likelihood of death. Defendant claims that this confusion lessened the People’s burden of proof and resulted in reversible error.
Respondent contends that defendant’s argument is answered by the case of People v. Knoller (2007) 41 Cal.4th 139. Respondent is mistaken. The court in Knoller focused on the mental element of implied malice and held that for the subjective mental element the test is not whether the defendant is aware that his or her conduct had a high probability of resulting in death--the test under the subjective component is whether “a defendant acted with a ‘conscious disregard for human life’ [citations].” (Id. at p. 157.) The court in Knoller did not rule that for the objective physical element of implied malice the “high probability test” was not applicable.
We thus agree with defendant that the objective test for the physical element of implied malice has not diverged from the “high probability” test, although the Supreme Court has indicated that the preferable language to be used in instructing a jury is the “natural consequences” test. However, we do not agree with defendant that CALCRIM No. 240 diluted the requirement that the act for implied malice must involve a high probability of death.
CALCRIM No. 240 is an instruction on causation. It was in the context of whether an act causes death that the “likelihood” language was utilized. Whether the cause of death is a natural and probable consequence of an act is a different question from whether the natural consequences of an act are dangerous to human life. The latter question requires dangerousness, which the courts have found is the equivalent test for a high probability of death. The People were required to prove that defendant committed an act that caused the death of another person. CALCRIM No. 240 pertained to this question. The People were then required to prove as an element of implied malice that the natural consequences of the act were dangerous to human life. We do not believe that the instructions as given caused dilution of the standard required for implied malice.
III. Child Endangerment as a Theory for Involuntary Manslaughter
The jury was given the options of convicting defendant of second degree murder, voluntary manslaughter or involuntary manslaughter, or of finding her not guilty for the death of Tiana. Defendant argues the trial court erred in failing to instruct sua sponte on the theory of involuntary manslaughter based on child endangerment. She argues that her statement to police supported a theory of involuntary manslaughter that was not made available to the jury as part of its instructions. Her theory is that she could have been convicted of involuntary manslaughter based on her statement to police that she retreated to her bedroom and allowed S to administer corporal punishment to Tiana without her supervision. She would therefore have committed child endangerment because she was in charge of Tiana’s care and negligently failed to protect her from the acts of S.
We need not determine if defendant’s theory would have supported a finding of involuntary manslaughter because error, if any, in failing to instruct on a theory of child endangerment was harmless.
We will find reversible error for the failure to instruct on a lesser included offense if there is a reasonable probability that the defendant would have obtained a more favorable result in the absence of the error. (People v. Breverman (1998) 19 Cal.4th 142, 176-177.) The jury was instructed on second degree murder, voluntary manslaughter, and involuntary manslaughter (based on a different theory than now asserted). The jury rejected the lesser options and found defendant guilty of second degree murder. There is no reasonably probability that had the jury been instructed on the now asserted theory of involuntary manslaughter it would have chosen that option. (People v. Abilez (2007) 41 Cal.4th 472, 516.) This is particularly true because the jury must have disbelieved defendant’s version of what happened (that she was in the other room when S beat Tiana), or they would not have been able to reach a verdict of second degree murder. It is clear from the verdict that the jurors rejected defendant’s version that she was not the person who beat Tiana. Because the jury necessarily rejected defendant’s version of events, the theory of involuntary manslaughter based on defendant’s failure to protect Tiana from the acts of S was not a viable theory.
Defendant points to the jury’s request for clarification on the differences among implied malice murder, voluntary manslaughter and involuntary manslaughter as an indication that the jury was struggling with the pivotal issue that distinguishes the greater offense from the lesser offense; thus, argues defendant, any error was not harmless. Again, we find that the jury would not have been struggling among these choices it if believed defendant’s version of events. Any failure to instruct on this theory was harmless.
IV. Acquittal-First Instruction
In Stone v. Superior Court (1982) 31 Cal.3d 503, the court held that “the trial court is constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense.” (Id. at p. 519.) Subsequently, in People v. Kurtzman (1988) 46 Cal.3d 322 the defendant claimed the trial court erred when it informed the jury that it must unanimously agree whether or not the defendant is guilty of the greater offense before it could consider the lesser included offense. The Supreme Court agreed that this was error and held that “Stone should be read to authorize an instruction that the jury may not return a verdict on the lesser offense unless it has agreed beyond a reasonable doubt that defendant is not guilty of the greater crime charged, but it should not be interpreted to prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense.” (Id. at p. 329, original italics.) “Kurtzman concluded that the practice of requiring unanimous acquittal on the greater offense before returning a verdict on the lesser included offense represented an appropriate balancing of interests, protecting a defendant’s interest in not improperly restricting the jury’s deliberations, and recognizing the state’s interest in having the jury grapple with the question of a defendant’s guilt of the highest crime charged. [Citation.]” (People v. Fields (1996) 13 Cal.4th 289, 304.) The procedure “protects the People’s interest in obtaining a verdict on the charged offense, as well as the defendant’s right to have a decision of acquittal recorded and not to be placed in jeopardy twice for the same offense.” (People v. Zapata (1992) 9 Cal.App.4th 527, 533, disagreed with on other grounds in People v. Fields, supra, at pp. 304-305.)
A Stone instruction was given in this case. Pertinent here, the instruction stated, “If you all agree that the defendant is not guilty of murder and voluntary manslaughter, but you all agree the People have proved that she is guilty of involuntary manslaughter, then you must do two things. First, complete the verdict forms stating that she is not guilty of murder and voluntary manslaughter. Second, complete the verdict form stating that she is guilty of involuntary manslaughter. Do not complete the verdict form stating that the defendant is guilty of involuntary manslaughter unless you all agree that the defendant is not guilty of murder and voluntary manslaughter.” (Italics added.)
Defendant contends that because involuntary manslaughter is not a lesser included offense of voluntary manslaughter and because voluntary manslaughter was not the charged offense, the instruction should have stated that the jurors must all agree that defendant is not guilty of murder or voluntary manslaughter before they could complete a verdict for involuntary manslaughter. She argues that the “and” language may have resulted in the jurors’ not considering involuntary manslaughter because their instructions required a unanimous acquittal on voluntary manslaughter first; thus, an inability to acquit defendant on voluntary manslaughter would mean that involuntary manslaughter was not an option.
We disagree with defendant’s characterization of the ramifications of this instruction. This is not a case like Kurtzman where the jurors were told not to consider the lesser included or related offenses; the jury was explicitly told “you may consider these different kinds of homicide in whatever order you wish.” Defendant has not adequately explained how she was harmed. Although involuntary manslaughter is not a lesser included crime of voluntary manslaughter, it is a lesser related crime to voluntary manslaughter, and defendant has not supplied a reason why the same acquittal-first procedure should not be applied in such a situation. (People v. Zapata, supra, 9 Cal.App.4th at p. 533.)
V. Unanimity Requirement in Involuntary Manslaughter Instruction
“It is a fundamental principle of our criminal justice system that the prosecution must prove beyond a reasonable doubt ‘every fact necessary to constitute the crime with which … [the defendant] is charged.’ [Citation.] It is also clear where evidence presented to the jury indicates more than one act which may constitute the charged offense, the jury must be instructed it must unanimously agree on the specific criminal act in order to convict the defendant.” (People v. Hefner (1981) 127 Cal.App.3d 88, 96.)
“The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.) The failure to provide a unanimity instruction is subject to the Chapman (Chapman v. California (1967) 386 U.S. 18) harmless error analysis on appeal. (People v. Wolfe (2003) 114 Cal.App.4th 177, 186.)
“When … the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed, the jury need not unanimously agree on the theory under which the defendant is guilty.” (People v. Benavides (2005) 35 Cal.4th 69, 101.)
The jury was instructed on involuntary manslaughter that defendant could be convicted based on separate theories. The first theory was the commission of a crime that posed a high risk of death or great bodily injury because of the way in which it was committed. Under this theory, two separate crimes were alleged: battery and infliction of physical punishment on a child. The second theory outlined in the involuntary manslaughter instruction was the commission of a lawful act with criminal negligence that caused Tiana’s death.
The instruction on involuntary manslaughter also contained the following paragraph: “You may not find the defendant guilty of Involuntary Manslaughter unless all of you agree that the People have proved that the defendant committed at least one of the following crimes, Battery on Tiana or Infliction of Physical Punishment on Tiana, or you all agree that the People have proved that defendant committed a lawful act in reasonably disciplining Tiana, but that in doing so she acted with criminal negligence. You must also all agree that the same act or acts were proved.” (Italics added.)
Typically defendants argue on appeal that the trial court erred in failing to give a unanimity instruction. Here, defendant asserts the trial court erred in including the above emphasized unanimity requirement in the involuntary manslaughter instructions. She claims the unanimity requirement should not have been given and that she was prejudiced by the error because the murder instruction did not contain a similar unanimity requirement. Defendant claims that if jurors could not all agree on which dangerous act was committed for purposes of involuntary manslaughter it would eliminate involuntary manslaughter as an alternative and because a murder conviction did not require the same juror unanimity murder would be the jury’s only effective option.
An error in failing to instruct properly on a lesser included offense instruction is judged under a Watson (People v. Watson (1956) 46 Cal.2d 818, 836) standard of prejudice. “‘A conviction of the charged offense may be reversed in consequence of this form of error, only if, “after an examination of the entire cause, including the evidence” [citation], it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred [citation].’ [Citation.]” (People v. Lasko (2000) 23 Cal.4th 101, 111.)
Defendant’s argument assumes the jurors were unable to follow instructions. The jury was clearly and concisely instructed on the elements of murder and voluntary manslaughter, including in no uncertain terms the concept of proof beyond a reasonable doubt, and was repeatedly told it must find defendant not guilty if the People did not meet their burden. Had the jurors believed that defendant’s actions met the requirements for involuntary manslaughter but they were unable to unanimously agree on which act was the lawful act that she performed with criminal negligence, we are confident they would have returned to the courtroom with questions for the trial court and/or returned to the courtroom proclaiming that they were unable to reach a unanimous verdict for the crime of involuntary manslaughter. We do not believe that a jury that had determined defendant acted with only criminal negligence would surrender that position and resort instead to returning a verdict of second degree murder. If anything, the instruction inured to defendant’s benefit because it required juror unanimity on the act involved before the jury could return a verdict of involuntary manslaughter based on the theory of committing a lawful act with criminal negligence. Error, if any, in including a unanimity requirement in the involuntary manslaughter instruction was harmless.
VI. Instructions on the Right to Use Corporal Punishment
In People v. Whitehurst (1992) 9 Cal.App.4th 1045, the defendant was charged with two counts of inflicting corporal punishment on a child resulting in a traumatic condition. His defense to one count was that it did not occur; his defense to the other count was that he hit the child appropriately while disciplining her. On appeal, he claimed the trial court erred in failing to instruct sua sponte on a parent’s right to discipline a child. The appellate court agreed that the right to discipline a child is not self-evident and it was error to not instruct regarding a parent’s right to appropriately discipline a child. “”[W]hether the corporal punishment falls within the parameters of a parent’s right to discipline involves consideration of not only the necessity for the punishment but also whether the amount of punishment was reasonable or excessive.” (Id. at p. 1050.)
An instruction on the right to punish a child was given in this case. “A person having the care and custody of a minor child is not guilty of Inflicting Physical Punishment on a Child or Child Endangerment or the lesser crime of Battery, if she used justifiable physical force or another justifiable method to discipline a child. The use of physical force, or sending a child to the garage, is justifiable if a reasonable person would find that punishment was necessary under the circumstances and that the physical force or method used was reasonable.
“The People must prove beyond a reasonable doubt that the force or method of punishment used was not justifiable. If the People have not met this burden, you must find the defendant not guilty of Inflicting Physical Punishment on a Child, and Child Endangerment, and the lesser crime of Battery.”
Defendant claims that this instruction did not satisfy the trial court’s sua sponte duty to define the scope of a parent’s right to discipline a child by corporal punishment because a parent has wide discretion in the administration of corporal punishment and the instruction did not convey this concept.
“[T]he law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right wilfully to inflict personal injuries beyond the limits of reasonable parental discipline. No sound public policy would be subserved by extending it beyond those limits.” (Emery v. Emery (1955) 45 Cal.2d 421, 429-430.)
While a parent has wide discretion in the performance of his or her parental functions, the right to inflict punishment or injuries on a child is based on a test of reasonableness. The instruction here adequately conveyed the concept of reasonableness. The trial court did not have a sua sponte duty to alter the instruction as now requested by defendant.
VII. Accomplice Instructions
Officer Steven Presser was told by Badawi (the vice principal at the school) that when P was interviewed by Heppner, P said that S had hit Tiana a lot on the day she was killed. In her statement to police, defendant said that she left the room and P and S said they would take care of Tiana. Defendant told officers that S said she would take care of it and P said she hated Tiana. In a letter defendant wrote during her interview, she said that “they said they hit her with a bat.”
The trial court determined that it would give an accomplice instruction regarding the testimony of S based on the testimony of Officer Presser.
Defendant claims the trial court erred in failing to include P in the accomplice instructions. She contends that her statement provided support for a finding that P was involved in the killing of Tiana when defendant left the room and left P and S alone with Tiana. Defendant argues that the error in the failure to instruct cannot be deemed harmless under any standard because there was no legally sufficient corroboration of P’s testimony.
We need not determine if the evidence was enough to find that P may have been an accomplice because any error to give the accomplice instruction was harmless. “An erroneous failure to give accomplice instructions is deemed harmless as long as there is ‘sufficient’ … evidence of corroboration. [Citations.] ‘“Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]” [Citation.] The evidence “is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” [Citation.]’ [Citations.]” (People v. Felton (2004) 122 Cal.App.4th 260, 271-272.)
Manifestations of consciousness of guilt and an effort to cover up can constitute the required corroboration. (People v. Buono (1961) 191 Cal.App.2d 203, 218; see also People v. Felton, supra, 122 Cal.App.4th at p. 272 [flight as sufficient corroboration].) Here defendant engaged in an elaborate scheme to cover up the disappearance of Tiana after she was killed--including hiding her body in the home for days, wrapping the body in plastic bags, dumping it in a dumpster and pouring bleach on top to disguise any odor, telling many stories about Tiana being out of town with friends, reporting her missing to the police only after school started, not listing her as a sibling on P’s and S’s emergency cards at school, reporting to the department in charge of her aid that Tiana was going to go live with her mother (after she was dead), and arranging for a meeting of Tina and Tiana at defendant’s brother’s house (knowing that Tiana was dead). In addition, P testified that defendant hit her in the ear, rupturing her ear drum, after P and S told the wrong story about Tiana’s whereabouts at the Tisdales’ on the evening of September 8, 2003. P’s ruptured eardrum was seen by a doctor. This incident confirmed that it was defendant who instituted and controlled all aspects of the cover-up scheme. Defendant continued relying on this elaborate scheme when she was initially questioned by police. This was sufficient evidence to corroborate the testimony of an accomplice. Error, if any, in failing to list P as a possible accomplice in the accomplice instructions was harmless.
VIII. Oral Admissions Instruction
The jury was instructed pursuant to CALCRIM No. 358 on how to view defendant’s statements. The court omitted from this instruction the portion that states, “You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.” Defendant contends that this omission was prejudicial error. Defendant points to two areas that should have been accompanied by the cautionary portion of the instruction. First, she claims the cautionary instruction applied to P’s testimony that defendant asked her if P thought defendant killed Tiana or if Tiana died from her hyperthyroid condition. Next, defendant claims the cautionary instruction applied to the many statements attributed to her regarding Tiana’s whereabouts.
We must determine if it is reasonably probable the jury would have reached a result more favorable to defendant had the cautionary portion of the instruction been given. (People v. Stankewitz (1990) 51 Cal.3d 72, 94.) “‘“The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.” [Citation.]’ [Citation.]” (People v. Dickey (2005) 35 Cal.4th 884, 905.) “Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]” (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.)
We find that the failure to give a cautionary instruction regarding statements attributed to defendant regarding Tiana’s whereabouts was harmless. When defendant was interviewed, her interview was video-recorded. She began her interview by repeating the same series of statements she had made to others regarding Tiana: that she was gone all summer and did not return. Thus, the reliability of the statements of other witnesses was verified by defendant’s own statement.
The failure to give a cautionary instruction regarding the admission testified to by P was also harmless. The purpose of a cautionary instruction is to determine if the statement (admission) was actually made. The question at trial was whether P and/or S were credible witnesses or whether they fabricated their testimony. There is no reason to believe that the now-complained-of admission was key to the determination of P’s credibility. The admission was less inflammatory and probative than the testimony of P that defendant slammed Tiana’s head into the wall, beat her fingers with a meat tenderizer, and hit her numerous times with the shower curtain rod and vacuum cleaner hose. Other than defendant’s denial that she participated in the killing of Tiana, the only evidence in the record to contradict the content of the admission or that the admission was in fact made was the evidence that bore on P’s credibility as a whole. The believability of P’s account of the events was clearly not going to turn on whether defendant asked her if she thought that defendant killed Tiana or whether she died from her hyperthyroid condition. The jury was instructed thoroughly on judging the credibility of witnesses. Having found P’s testimony to be credible, the jury had no reason to disbelieve the admission she attributed to defendant, even if they had been told to view it with caution.
IX. Prosecutorial Misconduct
Defendant raises three instances she claims amount to prosecutorial misconduct. The first instance was in the People’s opening statement to the jury. The People were describing defendant’s home and how she kept the girls in the house, would not let them talk on the telephone, and lived like a hermit. As part of this description the People stated, “Some people have characterized it that she conducted her home like a concentration camp and was very controlling.” Defendant objected. The district attorney responded, “not my words.” The court overruled the objection.
The next instance of claimed prosecutorial misconduct occurred during the People’s argument to the jury at the close of evidence. The People argued that sometimes the character and quality of a witness is self-evident. The People continued, and the following occurred: “And you know what? In this case I want you to ask yourself something, why didn’t defense counsel -- why didn’t defense counsel cross-examine [P] for more than ten minutes? Well, maybe because the self-evident nature of the credibility of what she’s saying would just be telegraphed or expanded upon. Maybe it would be even more self-evident. But if the defense theory here is that the girls, [S and P] were the ones who assaulted and killed Tiana don’t you think that the defense counsel owed you a duty to go after those witnesses and vigorously cross-examine them about all the possible details of their participation in this?
“MS. JUNIO [defense counsel]: Your Honor, I’m going to object as to improper argument.
“THE COURT: Well, ladies and gentlemen, defense counsel doesn’t owe a duty here. All right? Counsel can argue the case to you in what he believes the evidence has shown. But I’ve told you at the outset of the case the defendant does not have to prove she’s not guilty, just so that you understand that. Go ahead.”
The third instance of asserted prosecutorial misconduct occurred during the People’s closing argument to the jury. Defendant argued that P and S did not tell the truth and were covering up for each other. In response, the People argued as follows: “And defense counsel has the audacity really to stand up before you after those girls testified from their heart to the best of their ability about what happened, and to suggest that they cracked some sort of grand conspiracy. And we’ve all been taken in by it; I guess the District Attorney, the police department, everybody else, and we ran with it. I think it’s an insult to -- well, it’s an insult to the District Attorney, but it’s also unreasonable.” Defendant did not object to this argument by the People.
“The law governing prosecutorial misconduct is well established. ‘Conduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury” [citations] or “is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process” [citation].’ [Citations.] A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent. [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm. [Citations.]” (People v. Kennedy (2005) 36 Cal.4th 595, 617.)
We fail to see the severity in the remarks of the prosecutor that defendant attributes to them. As for the third instance of claimed prosecutorial misconduct, “[d]efendant did not object to the prosecutor’s remark. Its brevity and the unlikelihood of an adverse inference being drawn by the jury indicate that an objection and admonition might have cured any possible harm. Accordingly, defendant may not now raise the issue on appeal. [Citation.]” (People v. Mincey (1992) 2 Cal.4th 408, 446.)
While we agree that the term “concentration camp” is a strong term, it was made in the context that witnesses would testify that defendant ran a strict home. It is the type of term that is sometimes used loosely and not literally. In fact, during closing argument, defense counsel repeated the term and said that the People’s use of the term was an appeal to the jurors’ emotions and was an insult to the millions of people who died in a concentration camp. The use of the term “concentration camp” was not egregious and did not infect the trial with such unfairness as to make the conviction a denial of due process.
Finally, any prejudice from the People’s comment that defense counsel should have vigorously cross-examined P and S but did not was cured by the court’s admonition that defense counsel does not owe a duty to present evidence. Furthermore, “the prosecutor may comment on the state of the evidence, including the failure of the defense to introduce material evidence or to call witnesses. [Citation.]” (People v. Mincey, supra, 2 Cal.4th at p. 446.) Failing to thoroughly cross-examine a witness is similar to the failure to call a witness. Also, defense counsel explained in her argument that she only cross-examined P briefly and yet she was able to catch her lying, even after P had made numerous visits with the district attorney to review her testimony prior to trial. Thus, in addition to the trial court’s admonition, defense counsel effectively countered any prejudicial effect from the People’s remark on the brief cross-examination of P.
Defendant has failed to show that prejudicial prosecutorial misconduct occurred.
X. Cumulative Error
Defendant argues that the cumulative prejudice of the above errors compels reversal of the judgment. “[A]ny errors that occurred were of an insubstantial nature. Whether viewed either alone or in combination, the errors did not prejudice defendant.” (People v. Kennedy, supra, 36 Cal.4th at p. 628.)
XI. Abstract of Judgment
Defendant contends and respondent concedes that defendant’s conviction in count 1 for second degree murder is omitted from the list of convictions in paragraph 1 of the abstract of judgment. We note that the indeterminate term is listed in paragraph 6 on the first page, and under “other orders” on the second page the abstract states that the court imposed a sentence of 15 years to life on count 1, second degree murder.
DISPOSITION
We direct the trial court to correct the abstract of judgment to state under the list of convictions that defendant was convicted of second degree murder and to forward the same to the appropriate authorities. In all other respects, the judgment is affirmed.
WE CONCUR: CORNELL, J., GOMES, J.