(Alameda County Super. Ct. No. C147107)
The opinion of the court was delivered by: Haerle, J.
Following remand from the Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After a jury trial, Reginald Wyatt (appellant) was convicted of involuntary manslaughter and assault on a child causing death. On appeal, he contends (1) the trial court improperly limited his cross-examination of a police officer during a hearing on the voluntariness of appellant's statements to officers; (2) the trial court failed to instruct sua sponte on the requirement of jury unanimity as to both counts; (3) the trial court omitted an essential element of the offense in its instruction on assault on a child causing death; (4) the trial court failed to instruct sua sponte on assault as a necessarily included offense of assault on a child causing death; (5) the trial court failed to instruct sua sponte on involuntary manslaughter as a necessarily included offense of assault on a child causing death; (6) the trial court failed to instruct the jury that criminal negligence could never support an assault conviction and that injury alone is not sufficient to establish an assault; (7) the evidence was insufficient to support the conviction for assault on a child causing death; (8) the evidence was insufficient to establish the corpus delicti for either offense; (9) California's corpus delicti rule violates due process; (10) the jury instructions directed guilty verdicts; (11) appellant was denied his right to effective assistance of counsel; and (12) the sentence of 25 years to life constitutes cruel and/or unusual punishment.
We earlier found that the evidence was insufficient to support the conviction for assault on a child causing death, and reversed that conviction. We also rejected defendant's contentions that the trial court erred in limiting cross-examination of police officers during a Miranda*fn1 hearing, that the court failed to, sua sponte, instruct the jury on the need for unanimity with regard to the both the charged offenses, that the evidence was insufficient to establish the corpus delicti for either offense, that California's corpus delicti rule violates due process, and that the jury instructions in this case directed guilty verdicts. In People v. Wyatt (2010) 48 Cal.4th 776, 780, 786 (Wyatt), the California Supreme Court reversed our judgment to the extent that we found insufficient evidence to support defendant's conviction for assault on a child causing death and remanded the matter to us.
We now address the remaining issues on appeal. Because we conclude that the trial court erred when it failed to instruct, sua sponte, on assault as a necessarily included offense of assault on a child causing death, we address only those issues germane to a possible retrial, namely, that the trial court omitted an essential element of the offense in its instruction on assault on a child causing death; that the trial court failed to instruct sua sponte on involuntary manslaughter as a necessarily included offense of assault on a child causing death; and that the trial court failed to instruct the jury that criminal negligence could never support an assault conviction and that injury alone is not sufficient to establish an assault. We also consider and reject defendant's contention that the sentence of 25 years to life constitutes cruel and/or unusual punishment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by information with murder (Pen. Code, § 187, subd. (a), count 1),*fn2 and assault on a child causing death (§ 273ab, count 2). The information further alleged, as to both counts, that appellant had personally inflicted great bodily injury on the victim, within the meaning of section 1203.075. The information also alleged that appellant had suffered a prior felony conviction.
During trial, the court granted appellant's motion, under section 1118.1, for judgment of acquittal as to first degree murder in count 1. With respect to count 1, the jury found appellant guilty of the lesser included offense of involuntary manslaughter. With respect to count 2, the jury found appellant guilty of the charged offense of assault on a child causing death. On its own motion, the trial court struck the great bodily injury and prior conviction allegations, pursuant to section 1385.
On July 6, 2006, the trial court sentenced appellant to 25 years to life on count 2 and to the middle term of three years on count 1, stayed pursuant to section 654.
On July 20, 2006, appellant filed a notice of appeal.
Charrikka Harris, mother of Reginald Wyatt Jr. (Reginald), met appellant in March 2001. They began a physical relationship, although Harris already had a boyfriend. Harris found out she was pregnant in July 2001, by which time appellant had another girlfriend. At first appellant seemed all right with the pregnancy, but shortly before Reginald was born, he said he did not think the baby was his and would not assume responsibility until he found out that it was his baby. After Reginald was born, appellant refused to sign his birth certificate because "it wasn't his baby." He also refused to take a paternity test or to provide any financial support.
Subsequently, appellant and Harris agreed to go on the Maury Povich Show, which was doing a show about paternity. Appellant took a paternity test before being flown to New York for the show; he and Harris were also given spending money. Povich announced on the show that the paternity testing showed that appellant was Reginald's father. After they returned to Oakland, appellant's attitude changed. For about two weeks, he would come to Harris's house to feed and play with Reginald. Then, he and Harris got into an argument about appellant's girlfriend and he stopped coming over.
Appellant still refused to contribute financially, and Harris went to court to try to get appellant to help support Reginald and spend time with him. Appellant then sought a restraining order against Harris. The court referred them to a mediator. The court eventually ordered visitation for appellant for five hours every Saturday. Appellant was inconsistent in his visits. Appellant was also ordered to pay $50 per week in child support, which he did.
After Reginald's first birthday, Harris agreed to let appellant take Reginald for overnight visits. After the first overnight visit, Harris smelled marijuana on Reginald's sweater and also saw what appeared to be a burn on the back of his neck. She called the police. A paramedic looked at the mark and said it was " 'an old scratch.' " Another time, she found a lump with a scab on it on Reginald's chest. She took him to the hospital.
On Saturday, May 17, 2003, after agreeing that appellant could take Reginald for the weekend, Harris met appellant and he took Reginald with the plan that Harris would pick Reginald up the next day. Appellant had asked a few days earlier if he could take custody of Reginald and whether Harris would let Reginald move in with appellant and his girlfriend. Harris said she would think about it. Reginald was then 14 months old.
Tiffany Blake was appellant's girlfriend. They lived together in Oakland and had been together since 2002. Their daughter, Valerie, was born in February 2003. On Saturday, May 17, 2003, Reginald came to spend the night with appellant, Blake, and Valerie in their apartment. It was about the third time he had spent the night with them. Reginald slept on a pallet--a makeshift bed on the floor with a comforter, blankets, and a pillow--at the side of the bed. On Sunday morning, May 18, Blake got up at around 7:00 a.m. to get ready to go to work. It was her first day back at her job after a maternity leave and she had to be at work by 10:00 a.m.
Blake left the apartment at about 9:00 a.m. to catch the bus to work. Before that, she saw appellant playing with Reginald. He was lifting Reginald up in the air over his head, spinning him around, and bouncing him down onto the bed. Reginald had a blank look on his face and Blake said to appellant, "Maybe you shouldn't do that. Maybe he doesn't like it. Maybe he's not having fun." After that, she saw Reginald sitting and watching television until she left for work.
At about 10:00 a.m., appellant called Harris and left a message that Reginald had had an asthma attack and needed his asthma machine. He sounded nervous. When appellant called back, Harris answered the phone. Appellant said Reginald could not breathe; he also said an ambulance and the police were there. Harris hung up the phone and rushed to Children's Hospital in Oakland, where she assumed Reginald would be taken. Appellant also called Blake at work between 11:00 a.m. and 12:00 p.m. Appellant told her that Reginald was not breathing and he was waiting for an ambulance. He called her back 20 to 30 minutes later on her cell phone. He was crying and said Reginald had died.*fn3
At about 10:45 a.m., Douglas Curtis, who lived in appellant's apartment building, heard a knock at his door and saw a person there holding a baby in his arms. Another baby was sitting on the floor outside. The man said, " 'Would you please dial 911? My baby is not breathing.' " The man, who looked scared, said the baby had asthma and that he had tried to call 911 but could not get through. So Curtis called 911 and, in about five or ten minutes, an ambulance and paramedics arrived.
When paramedics arrived, Reginald was lying on the sidewalk and a firefighter was administering C.P.R. Reginald was not breathing and there was no pulse. An endotracheal tube was placed in his mouth and other efforts to revive him were made, but the efforts were not successful. The paramedics then transported him to the hospital.
Oakland Police Officer Kaizer Albino obtained a statement from appellant while paramedics were still treating Reginald on the sidewalk. Appellant "was quite emotional. He was upset. His attention was focused on his son. He was not all there, so he wasn't responding to my questions." Therefore, Albino suggested they go up to appellant's apartment, which they did. In the statement obtained from appellant, appellant said he was playing with his two children that morning, after which he gave his son a cup of milk and put him down on the floor. Appellant then lay on the bed with his daughter and fell asleep. When he woke up, appellant noticed that Reginald was not breathing and had green fluid coming from his nose.
At the hospital, when doctors could not revive him, Reginald was pronounced dead. Other than a little scratch on his chin, the treating doctor saw no signs of injury or trauma on Reginald's body. Sergeant James Rullamas initially believed it was a SIDS death and asked appellant to fill out a form for the coroner's office. The form contained a question about a history of fall or accident, and appellant said Reginald fell out of his arms as he was trying to get out the door to get help. Appellant said there were no other falls or accidents.
The next day, Monday, May 19, 2003, appellant, his brother Anthony, Harris's sister, and a friend were at Harris's house when the coroner called and told Harris that the autopsy results were in and that Reginald had broken ribs, a severed liver and spleen, and had died from blunt trauma. He also said officers were en route to "pick up" appellant. Harris hung up the phone and said to appellant, "[t]hey're going to arrest you." Appellant and his brother then drove to the Oakland Police Department.*fn4
On that Monday morning, after he learned the results of the autopsy, Sergeant Rullamas asked officers to prepare an arrest warrant and to arrest appellant for murder. Before any arrest was made, Rullamas learned that appellant had come to the police station with his brother, Oakland Police Officer Anthony Caldwell. Sergeants Rullamas and Nolan interviewed appellant after reading him his Miranda rights. In accordance with normal procedures, they interviewed appellant before taking a tape-recorded statement. Rullamas acknowledged that it was a difficult interview because appellant's brother was an Oakland police officer whose work Rullamas respected. However, harsh tactics were not necessary with appellant. It was "a very, very soft interview" since appellant "responded to kindness," which is "fairly unique."
Two tape-recorded interviews were made and were played for the jury during trial. In the first tape-recorded interview, which began at 6:14 p.m., appellant said that, after he got up on Sunday morning, he was wrestling and playing with Reginald. He was lifting him up and dropping him on the bed. Appellant described an accident that occurred while Blake was still home. Appellant was doing a move called "comin' off the top rope." As he jumped on the bed, Reginald rolled unexpectedly and appellant's hip came down on his stomach with most or all of appellant's body weight of 170 pounds. Reginald grunted like the wind had been knocked out of him. Blake then said he was playing too rough with Reginald and could hurt him, so he stopped. Reginald did not cry during any of this. He was laughing and then, after appellant fell on him, he still had a smile on his face.
After Blake left for work, appellant began playing with Reginald again. They played for 20 or 30 more minutes. He might have hit Reginald harder at that point in their play, since Blake was gone. He continued wrestling with Reginald, except he did not "come off the top rope" since he had jumped on him earlier. Appellant body slammed Reginald about four times, hit Reginald in the chest with his fist about 10 or 11 times, did the "atomic elbow" to his head, hit him in the upper chest with his forearm about three times, and then hit him in the back. Appellant also held Reginald around his neck while he had him up in the air, squeezed him between his legs, hit Reginald in the back twice with his knee (the knee drop), and did the body slam and pretend head butts. He boxed with Reginald and did the supplex many times, which involved flipping Reginald over his body onto the bed; that move made Reginald laugh every time. Appellant did not think he was hurting Reginald because he was playing with him.
When Rullamas had asked appellant at the hospital the previous day if there was any history of fall or accident, appellant did not tell him about the wrestling or falling on Reginald because he was just playing with him and "didn't think that had anything to do with anything." He was not trying to hide anything; he just did not think that was the cause.
Sergeant Nolan noted that Sergeant Rullamas had earlier talked about every man wanting his son to be kind of tough, to be able to take it and be a man, to which appellant responded, "[H]ere my son . . . he's not movin' around. I just wanted him to move around . . . and be active . . . . [¶] All I was tryin' to . . . just kinda toughen him up. Because this . . . it's hard out here. Y'all know how many people get killed out here, too . . . ."
When Nolan asked if he or Rullamas had made any threats or promises to appellant, appellant responded in the negative. When Nolan asked, "We treated you pretty nice?" appellant responded, "Extremely."
The interview concluded at 7:16 p.m. Rullamas and Nolan left the interview room and went over appellant's statement. Much of what appellant said did not make sense to Rullamas and he thought "there had to be some kind of anger in there, some kind of punishment, or something in there, in my mind, and I wanted to ask him about that." At 8:00 p.m., they returned to the room to discuss this with appellant. Appellant said "he was trying to toughen [Reginald] up a little bit, but that none of it was out of anger." Appellant also said that it was not an attempt to discipline his son, and that his form of discipline was just to take toys away from him. Nor did it have anything to do with any frustration he was feeling.
The officers then left the room again and called the district attorney's "call-out team." A representative from the district attorney's office came to the police station, along with her inspector, after 9:00 p.m. After Rullamas briefed them on the case and they listened to the tape recorded statement, the team wanted the officers to attempt to obtain additional information in three areas: (1) why was the child with appellant outside of the hours prescribed by the court order; (2) how ...