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The People v. Bryan Monge

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


December 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BRYAN MONGE, DEFENDANT AND APPELLANT.

(Super. Ct. No. SF103120A)

The opinion of the court was delivered by: Hull , J.

P. v. Monge

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Aurelila Monge, the eight-month old daughter of defendant Bryan Monge, died after suffering skull fractures and a laceration to her pancreas. A jury convicted defendant of child abuse resulting in death (Pen. Code, § 273ab; unspecified section references that follow are to the Penal Code) (count 1), corporal injury to a child (§ 273d, subd. (a)) (counts 2 (abdominal injury) and 4 (head injury)), and child abuse/endangerment (§ 273a, subd. (a)) (counts 3 (abdominal injury) and 5 (head injury)). The jury also found true great bodily injury enhancements under section 12022.7, subdivision (d) for the head and abdominal injuries Aurelila suffered. The jury acquitted defendant on count 8 charging abuse on another occasion and was unable to reach a verdict on counts 6 and 7 involving yet another incident of abuse. Those charges were ultimately dismissed, and the trial court sentenced defendant to a prison term of 25 years to life.

On appeal, defendant raises a number of issues relating to (1) the admission of evidence, (2) recesses taken during trial, (3) jury instructions, and (4) his motion for new trial. The People assert a claim of sentencing error, pointing out that the court stayed sentence on counts 2 through 5 without first imposing sentence for those offenses.

We remand for resentencing and otherwise affirm the judgment.

FACTS AND PROCEEDINGS

We describe relevant evidence in detail in conjunction with each of defendant's claims on appeal. The following is a brief synopsis of the case:

On January 2, 2007, eight-month old Aurelila, died from a lacerated pancreas caused by blunt force trauma. She also had two skull fractures. Defendant (her father) was charged with numerous child abuse charges, including abuse resulting in death.

Defendant asserted Aurelila's death was accidental. The family had vacationed at Disneyland the previous week, and defendant's wife, Sheina, had gone on the Peter Pan ride while carrying Aurelila in a front pack. The lap bar for the ride was very tight.

Aurelila was fine between Christmas and the day of her death.

On January 2, defendant took care of Aurelila while Sheina went to a doctor's appointment. When Sheina returned home, defendant told her that Aurelila had vomited and then had bumped her head on the sink faucet as defendant washed her off.

Aurelila's condition deteriorated that day; she vomited again, had diarrhea and was moaning and lethargic. At one point, defendant called an advice nurse who instructed him to keep the baby hydrated, ice the bump on her head, and check her for alertness. She also told defendant to bring the baby to the doctor's or the emergency room if symptoms worsened. She cautioned against giving any pain medication because it could mask symptoms. Defendant nonetheless went out to buy Children's Tylenol, and the medicine was given to Aurelila.

Later that afternoon, when Aurelila seemed worse, Sheina called a clinic and described Aurelila's symptoms. The nurse told Sheina to take the child to the emergency room. Defendant and Sheina discussed doing so, but instead opted to wait.

Ninety minutes later defendant discovered Aurelila in her crib, with her eyes rolled back in her head. Sheina called 911. The baby was not breathing, so the operator conveyed CPR instructions. Defendant tried to resuscitate Aurelila but she did not respond. An emergency team arrived at the house and transported Aurelila to the hospital. She never recovered. The cause of death was a pancreatic laceration which caused peritonitis.

Defendant was charged with multiple counts of child abuse, including abuse causing Aurelila's death. Much of the trial centered on the conflicting testimony of medical experts.

Defendant asserted that the injuries were accidental. He attributed the pancreatic injury to the tightness of the lap belt on the Disneyland ride, and he argued that when Aurelila bumped her head in the sink, she aggravated earlier skull injuries that occurred months before when Aurelila's infant seat had fallen off the counter. Defendant's medical expert testified that the injuries could have occurred in this fashion.

The prosecution's medical experts, on the other hand, disagreed. These witnesses, including the pathologist who performed the autopsy, stated that the injury to the pancreas happened much more recently than the prior week, probably within hours of death, and could only have been caused by a great deal of force, not by a restraint bar on a Disneyland ride. They also believed that any earlier skull injuries would have healed and that the current fractures were recent. They testified that the fractures could not have been caused by a bump on the faucet, but were the result of blunt force trauma, a recent application of great force such as would occur from repeated blows or if ejected in a car accident.

The jury convicted defendant on counts 1-5, the charges relating to the January 2 abuse and Aurelila's death.

This appeal followed.

DISCUSSION

I

Evidence of Spousal Domestic Violence

Defendant contends that the trial court erred in permitting the prosecution to introduce evidence of a prior incident of domestic violence involving an altercation between defendant and his wife, Sheina. Defendant asserts that this evidence was both statutorily inadmissible and irrelevant to the charged offenses, which involved child, not spousal, abuse. He also challenges the constitutionality of the pertinent statute and CALCRIM instruction. None of these claims has merit.

The prosecution sought to introduce evidence of an incident of domestic violence involving defendant and his wife. During an argument, that occurred at Sheina's sister-in-law's house, defendant shoved Sheina against a wall and threw his ring at her. Sheina left her sister-in-law's and returned to her own home. When defendant came back to their home the next morning, Sheina locked herself and her two daughters in the bathroom. Defendant pounded on the door and screamed at Sheina. As Sheina called 911 from the bathroom, defendant left the house, yelling that he would come back and "beat [her] ass."

The prosecution asserted that this testimony was admissible under Evidence Code section 1109, subdivision (a)(1), which provides that "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code section] 1101 if the evidence is not inadmissible pursuant to [Evidence Code section] 352."

The trial court admitted the evidence over defendant's objection.

On appeal, defendant contends that Evidence Code section 1109 is inapplicable because the charged offenses did not involve domestic violence.

Evidence Code section 1109, subdivision (d)(3) defines "domestic violence" as having "the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to [Evidence Code section] 352, which shall include consideration of any corroboration and remoteness in time, 'domestic violence' has the further meaning as set forth in Section 6211 of the Family Code . . . ."

It is the second definition that is relevant here. Family Code section 6211 defines "domestic violence" as abuse perpetrated against a spouse or former spouse (Fam. Code, § 6211, subd. (a)) or other specified classifications of people, including a cohabitant, i.e., a person who regularly resides in the household (Fam. Code, § 6211, subd. (b); see Fam. Code, § 6209), and "a child of a party." (Fam. Code, § 6211, subd. (e).)

The earlier incident involving Sheina meets the statutory definition of "domestic violence" under Family Code section 6211. So do the charged offenses, acts committed against defendant's young daughter, i.e., "a child of a party." Evidence Code section 1109 therefore applies.

Defendant argues that Evidence Code section 1109 must be interpreted to require that the same type of abuse be involved in both the prior and charged offenses. According to defendant, prior conduct involving spousal abuse would be admissible under section 1109 only if the current charged offense also involves spousal abuse. Defendant's reading is at odds with the express language of the statute.

As noted, Evidence Code Section 1109 subdivision (a) specifically provides that "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."

Nothing in this language limits admissibility to the same type of offense; the only qualification is that both the prior and current conduct must be acts of domestic violence as defined by Penal Code section 13700 or Family Code section 6211. (See Evid. Code, § 1109, subd. (d)(3).) As People v. Ogle (2010) 185 Cal.App.4th 1138 stated, Evidence Code section 1109 "unequivocally incorporates the Family Code definition without limitation: '"Domestic violence" . . . has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.' (§ 1109, subd. (d)(3).) The plain language of a statute proscribes its interpretation by the courts. [Citation.] 'When statutory language is clear and unambiguous, there is no need for construction and [the] courts should not indulge in it.' [Citation.]" (Ogle, at pp. 1144-1145.)

Defendant points out that Evidence Code section 1109, subdivisions (a)(2) and (a)(3) relate to specific situations in which the prior and charged offenses involve the same type of abuse, and he asserts that this indicates the Legislature's "plain intent" that the same requirement apply to the rest of the statute as well. We do not agree.

Evidence Code section 1109, subdivision (a)(2) permits the introduction of evidence of past elder abuse in prosecutions for elder abuse, and subdivision (a)(3) outlines the requirements for admitting evidence of prior acts of child abuse in prosecutions for child abuse. Neither of these subsections is applicable here, as the present case does not involve elder abuse or prior acts of child abuse. Neither of these subsections in any way suggests that their limitations somehow also apply to subdivision (a)(1) to permit the admission of past domestic violence acts only if the current charges involve abuse on the same type of victim. In fact, as we have already noted, the clear language of Evidence Code section 1109, subdivision (a)(1) provides otherwise by limiting admissibility of other domestic violence only to evaluation under Evidence Code section 352.

In People v. Dallas (2008) 165 Cal.App.4th 940, the court extensively reviewed legislative materials relating to Evidence Code section 1109 and the perceived need to facilitate prosecution of cases of domestic violence against children. The court concluded that the sole intent of this legislation was "'to make the bill's proposed expansion of the definition of "domestic violence" for purposes of propensity evidence . . . expressly subject to a section 352 hearing . . . .' [Citation.] However, there is no indication that the [reference to Evidence Code section 352 was] intended to narrow the proposed expansion of the class of cases in which such evidence would be admissible. To the contrary, [legislative] analysis stated that intent behind the bill as a whole was . . . to change 'current law, [under which] propensity evidence is admissible during sexual assault, elder or dependent adult and domestic violence prosecutions, but not as to child abuse.' [Citation.]" (Id. at p. 955, fn. omitted.) "[U]sing the 'broader definition' of domestic violence in Family Code section 6211 'will have two effects. First, and most important, prosecutors will be able to use propensity evidence in the prosecution of child abuse cases . . . .'" (Id. at p. 956.)

In accordance with the express terms of Evidence Code section 1109, evidence of a domestic abuse incident involving a spouse is admissible in a prosecution for domestic abuse involving a child, subject to Evidence Code section 352.

We only briefly address issues related to this Evidence Code provision. Defendant suggests in his reply brief that the Family Code definition of "domestic violence" is inapplicable because the court never held a hearing pursuant to Evidence Code section 352 as required.

Initially, we note that defendant did not raise any concerns involving Evidence Code section 352 in his opening brief, and therefore the matter may be deemed forfeited. (People v. Taylor (2004) 119 Cal.App.4th 628, 642-643.)

In any event, the court did in fact hear argument under Evidence Code section 352. Evidence Code section 1109, subdivision (d)(3) permits the use of the Family Code definition "[s]ubject to a hearing conducted pursuant to [Evidence Code] Section 352, which shall include consideration of any corroboration and remoteness in time[.]" Here, the court considered the admissibility of Sheina's testimony about the incident of domestic abuse, testimony about a second incident, and testimony from other witnesses about an act of abuse. The court permitted only testimony from Sheina about the 2005 incident described above. Issues of remoteness and corroboration simply were not at issue. The incident had occurred only three years earlier and, as the court noted, Sheina was the only percipient witness. The court concluded that this testimony would not consume an undue amount of time and that its probative value outweighed any prejudicial effect. The court focused its comments on the probative value of the evidence to explain Sheina's testimony and credibility but stated later that it had also found there to be "enough similarity between domestic abuse and child abuse here to justify the Court in allowing that prior evidence in" under Evidence Code section 1109. Defendant has not established any abuse of discretion.

Finally, we address two constitutional challenges. Defendant asserts that Evidence Code section 1109 deprives him of due process by admitting improper character evidence, particularly because there is no logical connection between prior acts of domestic violence against his wife and the offenses with which he was charged. More than a decade ago, in People v. Johnson (2000) 77 Cal.App.4th 410, this court upheld the constitutionality of Evidence Code section 1109 and found the statute met due process requirements under the principles enunciated in People v. Falsetta (1999) 21 Cal.4th 903. We decline to reconsider the matter.

In similar vein, defendant asserts the related jury instruction, CALCRIM No. 852, also violates due process. This instruction permits the jury to draw an inference from the earlier act of domestic violence. We have previously rejected the identical challenges to CALCRIM No. 852 (e.g., People v. Johnson (2008) 164 Cal.App.4th 731, 739-740; People v. Reyes (2008) 160 Cal.App.4th 246, 250-253), and decline to reconsider this matter as well. (See also People v. Parson (2008) 44 Cal.4th 332, 355-356; People v. Reliford (2003) 29 Cal.4th 1007, 1016.)

II

Recesses

At the end of trial on Friday, February 1, 2008, after the pathologist testified that he believed the victim's lacerated pancreas to be an intentionally inflicted injury, the court recessed trial until the following Friday, February 8. One prosecution witness testified on that date, and trial was then continued to the following Wednesday, February 13, 2008.

Defendant contends the record is devoid of any explanation for these delays and that the "interruption of trial--occurring after the state presented powerful evidence on its behalf and the defense had yet to introduce any significant evidence including any evidence from its medical experts--violated both state and federal law." The record disposes of defendant's claims.

On the first day of trial (January 15, 2008), the parties discussed a number of scheduling conflicts. The court told the attorneys that a two-day special circumstances preliminary hearing had previously been postponed and rescheduled for February 5 and 6, meaning that defendant's trial would lose at least two days. The court said it would start jury selection in defendant's case on January 23, plan for opening statements on January 24, and continue with testimony through the following Friday, February 1. The court added, "[A]nd then I will have to tell the jury not to come back until [Thursday,] February the 7th." The court asked whether this would create a problem for anyone. The prosecutor replied that the recess was fine; defense counsel commented only that this meant that neither Mardi Gras nor Ash Wednesday would be court days.

On January 29, 2008, the prosecutor informed the court that witnesses would be flying in to testify on Thursday, February 7th. The court advised that it had just been warned that the preliminary hearing scheduled for February 5th and 6th might take an additional day.

Defense counsel then said, "Your Honor, should we not, out of an abundanc[e] of caution, vacate the Thursday, February 7th? Because what are we going to do? Are you going to call us all on the 6th and say come in or don't come in?" Defense counsel added, "I'm going--that would make it easier--I'm going on an out-of-state case. I'm leaving on the 4th, and I'm coming back on the 6th. So if we're not going on the 7th, my life would be a lot easier, 'cause I get back late.

The court agreed not to hold trial on February 7th in order to allow time for the preliminary hearing, to avoid flying witnesses in who might not testify as scheduled, and to accommodate defense counsel's schedule. The court subsequently informed the jury that court would not be in session on February 7th, leaving only one day of trial that week, on Friday, February 8th. The court added that the following week would also be a short week "because of the holiday that week. We'll only get Wednesday through Friday that week." (February 13-15, 2008.)

Before releasing the jury on February 1, the court reminded the jury again that trial would not resume until the following Friday, February 8th, and it cautioned the jury not to talk about the case or form an opinion, and to avoid any media reports of the trial.

On Friday, February 8, court reconvened as scheduled but defendant was "quite ill" with the flu and seemed to be unlikely to make it through a full day of trial. The day in fact ended early and the court advised the jury that "we're going to start late next week because of the holiday on Tuesday. I will not be able to start until Wednesday, February the 13th. [¶] So we're going to take another long break here unfortunately until next week, Wednesday, February 13th at 9 o'clock. We'll resume. [¶] In the meantime, of course, please don't discuss the case with anyone or receive any information from any source or make up your mind about anything concerning the case."

At no time did defense counsel voice any objection to these recesses.

As this review demonstrates, defendant is simply incorrect in asserting there was no apparent reason for these two delays. The trial court had a previously scheduled preliminary hearing and extended the recess to insure that the preliminary hearing could be concluded. In fact, that suggestion was made by defense counsel. There is no basis for defendant's complaint on appeal.

The second "delay" was due to a holiday the following Tuesday. While court could conceivably have been in session on the intervening Monday, defendant was ill on the preceding Friday and the start/stop nature of proceedings would no doubt have been problematic for all concerned. In any event, defendant made no objection to recessing for a few days until Wednesday, and he is therefore precluded from raising any objection now. (People v. Ochoa (2001) 26 Cal.4th 398, 440-441, disapproved on another point in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)

We have no need to analyze this issue any further.

III

Theories of Criminal Negligence

Counts 3 and 5 of the information charged defendant with child abuse under section 273a, subdivision (a) for the head and abdominal injuries inflicted on Aurelila on January 2, 2007. Defendant contends that his constitutional rights to due process and the effective assistance of counsel were violated when the trial court "inject[ed] a new theory of culpability into the case only moments before closing arguments." Specifically, he contends that because the prosecution's only theory was that defendant intentionally harmed Aurelila, the court erred in instructing the jury on criminal negligence for these counts.

As the California Supreme Court explained, "Section 273a, subdivision (a) 'is an omnibus statute that proscribes essentially four branches of conduct.' [Citation.] As relevant here, it provides: 'Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment . . . .'

"Violation of section 273a, subdivision (a) '"can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect." [Citation.] Section 273a[, subdivision (a)] is "intended to protect a child from an abusive situation in which the probability of serious injury is great." [Citation.] . . . .' [Citation.]" (People v. Valdez (2002) 27 Cal.4th 778, 783-784, fn. omitted.)

"Criminal negligence is '"aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . ."' [Citation.] 'Under the criminal negligence standard, knowledge of the risk is determined by an objective test: "[I]f a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness."' [Citation.]" (People v. Valdez, supra, 27 Cal.4th at p. 783.)

The issue of instructions on criminal negligence first arose midtrial when defense counsel told the court that he was "in a state of dismay, shock and bewilderment . . . because the prospect of criminal negligence arose in informal conversation." A brief conversation ensued, and the court concluded it was premature to resolve this matter.

Trial continued with other defense witnesses, including defendant.

When instructions were revisited, the prosecutor requested an instruction on criminal negligence for counts 3 and 5, which charged defendant under section 273a, subdivision (a) with child abuse for the injuries to Aurelila's head and abdomen that occurred on January 2. (This instruction was also requested and given for the same offense in count 7, a count relating to a different incident of abuse on which the jury was unable to reach a verdict.) Defense counsel objected to such an instruction, contending that, until that point, the prosecution had been based on a theory of intentional abuse, not criminal negligence. The prosecutor responded that she had also always asserted an argument that defendant was guilty of criminal negligence for failing to seek appropriate medical care for Aurelila.

The court ruled that there was sufficient notice of a potential criminal negligence theory of liability and instructed the jury accordingly for counts 3 and 5 pursuant to CALCRIM Nos. 253 ("Union of Act and Intent: Criminal Negligence") and 821 ("Child Abuse Likely to Produce Great Bodily Harm or Death").

Defendant contends he was denied due process because he had no notice that the prosecution would be proceeding on this theory. He also asserts the court denied him the effective assistance of counsel because, without this notice, his attorney could not defend against criminal negligence.

Generally, an accused receives the requisite notice of the prosecution's theory of the case from testimony presented at the preliminary hearing. (People v. Diaz (1992) 3 Cal.4th 495, 557.) Defendant had such notice here.

From the initial complaint through to the amended information, the charging documents alleged all four bases for liability under section 273a, subdivision (a), including criminal negligence, for both counts 3 and 5.

At the preliminary hearing, doctors described the fractures to Aurelila's skull and the medical treatment that might have been given. One doctor stated that "[a]ll skull fractures would require treatment," involving, at a minimum, hospitalization and observation in an intensive care unit. These medical experts further testified that while a lacerated pancreas is potentially fatal due to resulting peritonitis, Aurelila could have recovered had immediate treatment been sought.

According to one of these doctors, the failure to seek medical care "was a significant cause of the death of the child[.]" Defense counsel in fact questioned the witness about her statement, asking whether there was "a component in the death of the child of negligence, to-wit: either the negligence of the parents in not presenting the child to the doctor, or negligence on the part of the doctors who saw the child when the child had this infection." The doctor affirmed that she believed Aurelila "could have been potentially cured by bringing the child to a doctor and the doctor prescribing the appropriate antibiotic[.]"

Defendant himself recognized that evidence of criminal negligence had been presented in his preliminary hearing by noting in his motion to set aside the information (§ 995) that a medical expert had testified that "failing to bring the child in was a significant cause of death."

The record thus establishes that defendant was on notice that criminal negligence was one theory of liability. There was no due process violation.

Neither was defendant's right to counsel compromised, as counsel was aware of the criminal negligence theory even before defendant ever presented his case. In addition to the preliminary hearing evidence, early moments in the trial also raised this issue. In her opening argument, the prosecutor told the jury that on January 2, when Sheina called a clinic at approximately 4:45 p.m. and described Aurelila's symptoms, a nurse told her to take the baby to the emergency room, but Sheina and defendant did not obtain medical attention until 90 minutes later, when they called 911.

During trial, witnesses described possible medical treatment that could have been given to Aurelila and defendant's failure to seek care. A nurse stated she had instructed defendant not to give Aurelila pain medication because it would mask symptoms, yet defendant nonetheless went to buy Children's Tylenol and the medication was given to Aurelila.

When defendant first alerted the court to the fact that criminal negligence had been discussed in "informal conversation," the case was midtrial and defendant had yet to testify. At no time did defendant suggest that a continuance was necessary to meet this "new" theory. Instead, counsel continued to emphasize that Aurelila's death was not the result of intentional acts or criminal negligence, but was simply a tragic accident.

Given these circumstances, the trial court did not violate defendant's constitutional rights in instructing the jury on a criminal negligence theory of liability for counts 3 and 5.

IV

Alleged Instructional Error Relating to Count 1

Count 1 charged defendant with child abuse resulting in death. (§ 273ab.) Defendant contends that the trial court violated his due process rights by instructing the jury that it could convict defendant on this count if it found that his actions were criminally negligent but not willful. Defendant's claim ignores the complete charge to the jury.

The trial court instructed the jury on count 1 pursuant to CALCRIM No. 820, "Assault Causing Death of Child," in relevant part as follows:

"Now turning to Count 1, that's the first count here, the defendant is charged with killing a child under the age of eight by assaulting the child with force likely to produce great bodily harm.

"To prove the defendant is guilty of this crime, the People must prove the following things: . . .

"Number one, the defendant had care or custody of a child who was under the age of eight.

"Number two, the defendant did an act that by its nature would directly and probably result in the application of force to the child.

"Number three, the defendant did that act willfully.

"Number four, the force used was likely to produce great bodily injury.

"Number five, when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act, by its nature, would directly and probably result in great bodily injury to the child.

"Number six, when the defendant acted, he had the present ability to apply force likely to produce great bodily injury to the child;

"And number seven, the defendant's act caused the child's death.

"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage." (Italics added.)

Defendant acknowledges that this is a correct statement of the law, but asserts it was counteracted by another instruction which lessened the burden of proof. Specifically, after instructing the jury on the general principles of reasonable doubt, the court instructed that "[t]he District Attorney's position as to Counts 1, 2, 4, 6, and 8--and I'll give you further instructions on those in a moment--is that the defendant willfully caused the injuries in this case, and as to Counts 3, 5, and 7, was criminally negligent as further explained in the Court's instructions.

"The defense's position in this case is that if any injuries are proved beyond a reasonable doubt, they were caused accidentally and were not the result of the defendant's criminal negligence.

"If the jury has a reasonable doubt that the injuries were willful and that the defendant was criminally negligent as explained in the Court's instructions regarding each count, they must find the defendant not guilty." (Italics and bolding added.)

Defendant asserts that the use of the conjunctive "and" in this instruction permitted the jury to convict defendant on count 1 if it found that his actions were criminally negligent but not willful. We do not agree.

The correctness of jury instructions must be determined by examining the entire charge of the court, not by focusing on any one particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Instructions are to be read as a whole, and jurors are presumed to be intelligent persons capable of understanding and correlating the instructions. (People v. Smith (2008) 168 Cal.App.4th 7, 13.)

As noted, the specific instruction on count 1 (CALCRIM No. 820) expressly informed the jury that an element of that offense was that defendant committed the act willfully. The second instruction did not counteract CALCRIM No. 820; it outlined the burden of proof and referred the jury explicitly to the court's other instructions for the requisite elements of each count.

There is no reasonable likelihood that the jury understood the instructions in a manner that violated defendant's rights.

V

Constitutionality of Section 273ab

Section 273ab provides in relevant part: "(a) Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life."

Defendant contends this provision violates due process by allowing the imposition of the penalty for murder without proof of malice. As defendant recognizes, however, our court rejected the same argument in People v. Norman (2003) 109 Cal.App.4th 221, 226-229. For the reasons expressed in that opinion, we likewise reject defendant's claim.

Defendant suggests that Norman erred in failing to consider McMillan v. Pennsylvania (1986) 477 U.S. 79, 89 [91 L.Ed.2d 67, 78-79], which noted that a state cannot restructure existing crimes to evade due process protections. But, as we explained in Norman, section 273ab defines a distinct crime; it does not restructure existing murder statutes. (People v. Norman, supra, 109 Cal.App.4th at pp. 227-229.) The federal due process concerns discussed in McMillan are not implicated here.

VI

Motion for New Trial

Defendant contends the judgment must be reversed because the trial court applied the wrong standard in denying his motion for new trial. Although the court's comments were not as direct and precise as they might have been, a full reading of the ruling demonstrates that the court applied the correct standard.

Defendant sought a new trial under section 1181, subdivision (6), which permits a new trial when the verdict is "contrary to law or evidence." In ruling on such a motion, the trial court does not defer to the jury's evidentiary conclusions. (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) "Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' [Citations.] If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is 'contrary to [the] . . . evidence.' [Citations.] In doing so, the judge acts as a 13th juror who is a 'holdout' for acquittal. Thus, the grant of a section 1181(6) motion is the equivalent of a mistrial caused by a hung jury." (Ibid.)

In his motion, defendant asserted that the prosecution's case was based on "suspicion, speculation, and conjecture" and noted that the prosecution could "never articulate how [defendant] inflicted the injuries, and no evidence was presented that [defendant] ever mistreated any of his children or behaved in any way other than as a loving father." Defendant acknowledged the conflicting expert testimony, but also observed that the percipient and character witnesses favored the defense. He argued, "Where there are two reasonable interpretations of facts, the jury is bound to adopt that which points to innocence and reject that which points to guilt. The jury quite obviously failed to follow that crucial instruction in this case."

The trial court denied defendant's motion. Because defendant asserts that the court applied the wrong standard in reaching its decision, we set forth the court's ruling in its entirety:

"I think the most significant argument in this whole issue is really the sufficiency of the evidence argument and that's certainly the most difficult one. I am going to deny this motion so I'm not going to keep you in suspense. I'm going to deny this motion and I'm going to say a few things on the record. I'm not going to try to respond to every argument you've raised here. As I say, I think the most significant thing is the sufficiency of the evidence argument. This was a very difficult case. There was certainly excellent evidence on both sides and it is not the Court's function under these circumstances, I'm certainly bound by the confinements of the parameters of the legal system and it's not my function at that point to substitute my judgment for the jury's judgment. It's my function to make an inquiry as to whether or not there is sufficient evidence to support the jury's decision.

"Obviously in this case the jury found that despite the evidence on both sides here, there was no reasonable alternative that would point to the defendant's innocence in this case and I think that's the thing we're looking for here is whether or not there's some reasonable explanation that could account for this situation other than that the defendant intentionally killed this child and the jury found that there wasn't one.

"And the Court, after reviewing the entire record here and having sat through the trial and listened to all of your arguments, I'm also going to find that while certainly reasonable minds can differ there is--that there was ample evidence, sufficient evidence from which the jury could conclude there was no reasonable alternative that would account for this situation other than that the defendant intentionally killed this baby, so the Court is going to find--and I will also say, I think that probably the most significant thing here is regardless of the excellence of the evidence and so forth and there certainly were attempts by highly credentialed experts to try to explain how this whole thing happened. It's the jury's function to weigh the value of the experts' opinion and to evaluate that and to make a decision which expert they think is the more reasonable and the--and offers a better explanation. Under these circumstances it appears to me that the jury having weighed that, decided that the [p]rosecution's experts, their explanation for what happened here is the more reasonable one and they rejected the defense evidence here as being unreasonable under the circumstances and I think that the circumstances that are most compelling here and probably account for the jury's verdict is simply the fact that there is no reasonable explanation how this whole thing could have happened other than that the defendant is guilty because you can have accident once, maybe twice, maybe three times, the problem with this was there are so many things that happened to this baby in such a short period of time and always when the defendant was by himself with her and now I know there is some exceptions you can make to that and argue about that, but the bottom line here is that so many things happened to this baby in such a short period of time and there's no reasonable explanation other than that the defendant was responsible for it. The defendant was the only one with her each of those times and I think that's probably what the jury has cited. And based upon all of the evidence here, the court cannot say there was insufficient evidence from which the jury could conclude that there's no reasonable alternative to this set of circumstances other than the defendant is guilty of this crime which they found him guilty." (Italics added.)

We agree with defendant that at several points during this statement, the court misstated its role in ruling on the new trial motion. The court repeatedly referred to the sufficiency of the evidence to support the jury's verdict, which is not the relevant standard in a section 1181, subdivision (6) motion. Instead, the court was to exercise its independent judgment and sit as a 13th juror. (Porter v. Superior Court, supra, 47 Cal.4th at p. 133.)

However, reading the court's entire statement, in context, leads us to conclude that the trial court in fact made the requisite findings under the proper standard. The court stated that the only reasonable explanation for the injuries to defendant's child was that defendant had inflicted them, and that the jury had likely come to the same conclusion as the court.

This case is similar to People v. Price (1992) 4 Cal.App.4th 1272, in which a court denied a motion for new trial stating, "'I think the evidence was sufficient.'" (Id. at p. 1275.) It then added "'there is enough evidence there for the jury to do what the jury did.'" (Ibid.) In affirming the judgment, the appellate court stated, "[T]he court's exercise of its independent judgment is reflected in its statement that the evidence was sufficient. The court's further comment there was substantial evidence to support the jury's determination is surplusage." (Ibid.)

The Price court concluded, "The principles underlying the granting or denying of a new trial motion are not arcane. Lawyers and judges are well aware there is no more awesome power than that of the trial court in determining whether to grant or deny a new trial motion. In a jury trial it is the only time the court must exercise independent judgment in weighing the evidence. . . . Although it would have been preferable for the court to have been more specific, stating it was denying the motion based on its independent weighing of the evidence, its failure to do so and its use of less than artful language cannot be equated with having applied the wrong standard." (People v. Price, supra, 4 Cal.App.4th at p. 1276.)

The same is true here. Despite references to whether substantial evidence supported the jury's verdict, the court also expressed its own independent views of the case and fulfilled the function required by section 1181, subdivision (6). Under these circumstances, defendant's claim of reversible error is meritless.

VI

Sentencing Error

The People correctly note that the trial court failed to impose sentence on counts 2, 3, 4 and 5, necessitating remand.

The court sentenced defendant to 25 years to life on count 1, and then stated that each of the remaining counts would run concurrently and be stayed pursuant to section 654. However, the court did not impose a specific sentence for these counts.

Proper sentencing procedure requires the trial court to first pronounce sentence and only then stay execution. (People v. Deloza (1998) 18 Cal.4th 585, 591-592; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327.) We must therefore remand for resentencing.

DISPOSITION

The case is remanded to the trial court for resentencing on counts 2, 3, 4, and 5. The court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur: RAYE , P. J. BUTZ , J.

20111228

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