APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed. (Los Angeles County Super. Ct. No. NA079725)
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant and appellant Anthony Jerome Hall (defendant) was convicted of the second degree murder of a child a little over a year old (Pen. Code, §187, sub. (a)*fn2 ), and of the assault on that child, who was under eight years old, causing death (§ 273ab). In the published portion of this opinion, we hold that notwithstanding the agreement of the prosecution and defense that the trial court instruct the jury on an uncharged lesser related offense of child abuse (§ 273a, subd. (a)), the trial court did not err by not giving that instruction. We affirm the judgment.
On appeal, defendant contends that trial court violated his constitutional and other rights by denying his request to order that immunity be conferred upon the mother, Octavia Martin;*fn3 excluding Octavia's recorded statements; excluding evidence of Octavia's reaction to learning that her son was dead; and refusing to instruct the jury with CALJIC Nos. 9.37, 6.40, and 4.45.
Nathan Jacob Coleman was born in July, 2007.*fn4 Defendant lived with Nathan and Octavia, his girlfriend and Nathan's mother from a previous relationship. Phyllis was Octavia's mother, and Nathan's grandmother.
Phyllis testified that on September 19, 2008, between 3:00 p.m. and 3:15 p.m., she received a telephone call from Octavia, who was "hysterical," and told Phyllis that she did not know the whereabouts of Nathan. Octavia told Phyllis that Octavia left Nathan with defendant, and she talked with defendant on the telephone and defendant told her that Nathan had been kidnapped.
An audiotape of a 911 call was played for the jury, and Long Beach Police Department Officer Malcolm Evans testified that he recognized defendant's voice as the voice of the person speaking to the 911 dispatcher. The 911 dispatcher had called defendant, who was at Long Beach Boulevard and 20th Street in Long Beach, and advised him that his girlfriend called them and said defendant had been stabbed. Defendant said that several Hispanic males attempted to stab him in the nearby alley, and took Nathan.
Long Beach Police Department Officer Cesar Velarde testified that at approximately 3:45 p.m., he was dispatched to Long Beach Boulevard and 20th Street, and he spoke with defendant. Defendant told Officer Velarde that defendant and Nathan had departed from a train and they were followed by several Hispanics in a van. Defendant said that the van drove up to him as he was urinating in an alley near Long Beach Boulevard and 20th Street, and three Hispanic males jumped out of the van, beat him, and took Nathan.
Robert Wilson testified that on September 19, 2008, at approximately 4:00 p.m., he discovered the body of a baby in a trash can located in an alley in Long Beach. Wilson's friend called 911. The baby was later identified as Nathan, and a Long Beach Police Department Officer testified that Nathan was wearing a "greenish or tealish-colored t-shirt," green, yellow, blue and white plaid pants, white socks, and one tennis shoe.
Defendant thereafter told Long Beach Police Department officers several different versions of the events that evening. Although the details differed, defendant repeated that Hispanic males jumped out of the van, beat him, and took Nathan. He then denied knowing what happened to Nathan. Defendant added that the day before Nathan ran from defendant and hit his head on the crib.
Defendant then said he became angry that Nathan ran from him and defendant struck Nathan's face three times using the palm of his hand and Nathan fell down and hit his head on the crib. At approximately 10:00 p.m. Octavia returned home, defendant told Octavia that Nathan has fallen and bruised his head, and she did not need to check on Nathan because he just went to sleep. The next morning defendant told Octavia that he would take care of Nathan so she could get ready to leave for school. At 11:00 a.m. defendant went into Nathan's room and saw a string from a deflated balloon around Nathan's neck. Defendant then put Nathan in a trash bag, got on a train, and dumped Nathan's body in a trash can. Defendant called Octavia and told her a fabricated story that he was assaulted and Nathan was kidnapped.
Denise Bertone testified that she was a registered nurse and a Los Angeles County coroner investigator. On September 19, 2008, at approximately 7:40 p.m. she removed Nathan from the dumpster. Bertone examined Nathan, and estimated that Nathan died between approximately noon and 2:00 p.m. on September 19, 2008.
Dr. James Ribe testified that he performed an autopsy examination on Nathan, and based on it opined that Nathan died between 6:00 p.m. on September 18, 2008, and noon on September 19, 2008. The cause of death was blunt force trauma causing "massive depressed skull fracture and multiple rib fractures with crushing chest injuries." He testified that, "Those are the two fatal injuries, the head injury and the chest injury together with multiple superficial injuries."
Dr. Ribe testified that there was "a massive amount of blood covering the skull . . . caused by blunt force trauma," indicating "an extremely severe violent impact of the back of the head, which caused a massive displaced skull fracture." Dr. Ribe likened it to "a person falling off the second floor of a building and landing on concrete." Nathan's ribs were also broken, and his ribcage was crushed, indicating that "a tremendous amount of blunt force was brought to bear against that area," consistent with Nathan's back being stomped on by an adult's foot. Dr. Ribe also saw "refracturing" on Nathan's ribs, which indicated that they had been previously broken and healed, and were broken again.
Dr. Ribe testified that the membrane connecting the inside of Nathan's lip to his teeth was torn, indicating to Dr. Ribe that Nathan suffered a blow--probably a slap--to his face. Dr. Ribe opined that this injury was inflicted a few hours before Nathan's death.
Dr. Ribe also testified that Nathan sustained a bruise on his left eye that was consistent with being inflicted by a fist punch, and a two inch bruise on his left cheek that appeared to be caused by a blow from a rod or straight object. Dr. Ribe opined that these injuries were inflicted "a couple of hours" to 30 minutes before Nathan's death.
Dr. Ribe testified that Nathan sustained a bruise on the front of Nathan's right ear inflicted by human punches, a large bruise in the center of Nathan's chest most likely caused by a punch from an adult's fist, and four fingertip sized bruises on his left breastbone area caused by a human hand. Dr. Ribe concluded that these injuries were inflicted minutes before Nathan's death.
In addition, Dr. Ribe testified that there were also bruises on Nathan's forehead, left ear, and right cheek. Nathan suffered at least 11 blows to his head and face area, and 25 bruises to the outside of his body excluding the fatal injuries. Dr. Ribe said that it would take several minutes of blows from different directions to receive these injuries.
An audio recording of a telephone message that defendant left on Octavia's cellular telephone on September 22, 2008, was played for the jury. Defendant stated that, "you know I didn't do that on purpose. . . . I love you too much to have something like that happen to him. . . . When I woke up had [t]he [b]alloon tied around his neck and he was dead. The only reason why I didn't call the police . . . is because I was scared and I didn't want you to go through no pain of seeing him like that. . . . I don't want you to think that I'm an evil person like that or I did that on purpose."
A recording of a telephone call placed by defendant to his parents was also played for the jury. During the telephone conversation, defendant admitted to killing Nathan, but claimed that it was an accident. Defendant stated that he hit Nathan on the evening of September 18, 2008, and found him dead in the morning of September 19, 2008. Defendant said he "just didn't know how to break down and tell [Octavia] that her son had died. . . . [So] I told her that [Nathan] got took or whatever." Defendant also stated that he got on a train and put Nathan in the trash.
Defendant testified and denied killing Nathan. Defendant last saw Nathan alive on September 18, 2008 at approximately 9:00 p.m. Earlier that day Nathan fell on a hard surface while walking out of the bathroom, which left a red mark on his face. Defendant told Octavia about Nathan's injury. At approximately 10:30 p.m., Octavia came home and checked on Nathan for five or ten minutes. After using the computer and eating dinner, defendant and Octavia went sleep.
Defendant testified that at approximately 9:00 a.m. the next morning he was awakened by Octavia, who was panicking and emotional and told defendant that she accidently killed Nathan. Octavia said that she couldn't stand seeing Nathan like that and she had a plan. Octavia told defendant that he needed to be involved and to take Nathan to Long Beach and say Nathan was kidnapped, so she would not be found responsible for Nathan's murder. Defendant agreed to help because he "loved her and . . . would have [done] anything in the world to keep her from [going] to jail." Octavia spoke to defendant for one hour, during which time defendant was "absolutely silent," and at approximately 10:00 a.m. Octavia left for school. Defendant got out of bed, got dressed, went to the kitchen to obtain a plastic bag, and approximately one hour after he got out of bed he placed Nathan in a trash bag. At approximately 1:00 p.m., defendant left the residence and took public transportation to Long Beach. Defendant then placed Nathan in the first dumpster he saw because Octavia was coming to meet him. Octavia called 911 because defendant could not bring himself to do so. Octavia told defendant during a telephone conversation to continue with the plan.
Defendant testified that he lied to the police when he said Nathan had been kidnapped and defendant had struck Nathan. Defendant told the police that he hit Nathan because he knew that, "they wanted somebody and . . . I would not give Octavia up at that time. I . . . took it all on myself." Defendant told his father that defendant killed Nathan '[b]ecause if I would have told my father the truth, then they would have went after her. . . ."
Defendant testified that he only started taking care of Nathan a week before his death. Defendant never did anything to Nathan two weeks before his death that ...