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The People v. Kevin Harper


February 15, 2012


(Super. Ct. No. 08F08512)

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

P. v. Harper



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Kevin Harper, Jr., was convicted by jury of causing his infant son's death by assaulting the child with force likely to produce great bodily injury (Pen. Code, § 273ab, subd. (a))*fn1 and involuntary manslaughter (§ 192, subd. (b)). He was sentenced to an aggregate term of 25 years to life in state prison.

On appeal, defendant asserts: (1) the trial court erroneously denied his motion under Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] and People v. Wheeler (1978) 22 Cal.3d 258 (Batson/Wheeler motion) because the prosecutor used peremptory challenges to remove three prospective jurors on the basis of race; (2) the trial court prejudicially erred by allowing expert testimony on shaken baby syndrome; (3) the trial court prejudicially erred by instructing the jury with CALCRIM No. 362 on consciousness of guilt; and (4) the trial court failed to properly exercise its discretion in sentencing defendant. Defendant's challenge to the expert testimony has been forfeited by his failure to object to this testimony below. His remaining contentions lack merit.*fn2 Accordingly, we affirm the judgment.


In accordance with the standard of review, we view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Vu (2006) 143 Cal.App.4th 1009, 1013.)

In August 2008, defendant drove his infant son Jaden to Mercy San Juan Medical Center. The infant was in cardiac arrest when he arrived. After being resuscitated, he experienced a seizure and was treated with medication. Jaden was then transferred to the Pediatric Intensive Care Unit at UC Davis Children's Hospital. Upon his arrival, Jaden was in a deep coma, his breathing was agonal, his blood pressure was elevated, his anterior fontanelle (i.e., the soft spot at the back of an infant's head) was slightly bulging, and he was continuing to experience involuntary muscle movements from the seizure suffered at Mercy San Juan.

Dr. Robert Pretzlaff, Chief of Pediatric Critical Care Medicine, ordered a CT scan of Jaden's brain, which revealed "early swelling of the brain" often seen "after a variety of injuries, traffic accidents, a severe blow to the brain." The scan also revealed "a significant amount of bleeding around the brain, something called subdural hematoma, so there was blood over the top of the brain." The extent of the bleeding suggested a "shaking injury" as opposed to trauma caused by a localized impact. There was also evidence of petechial hemorrhages (i.e., small ruptured blood vessels) between the gray matter and white matter of the brain, caused by the shifting of these portions of the brain.

A second CT scan performed the following day revealed a greater amount of swelling and a more pronounced "loss of differentiation between the gray and white matter." This indicated to Dr. Pretzlaff that Jaden's injuries were sustained shortly before the infant was brought to Mercy San Juan. Dr. James Brandt, professor of ophthalmology at UC Davis, then examined Jaden's eyes and found "severe retinal hemorrhages in both eyes." These hemorrhages were "at all levels of the retina." Drs. Pretzlaff and Brandt concluded that Jaden's injuries were caused by "nonaccidental trauma" or "shaken baby syndrome."

Jaden died the following day. The autopsy, performed by Dr. Kathleen Enstice, revealed small bruises on Jaden's head, face, left arm, and back. Dr. Enstice noted that "Jaden's brain was extremely swollen, stretching the skull bones." She also noted extensive bleeding across both hemispheres of Jaden's brain and of his optic nerve sheath and retinas. The autopsy also revealed "traumatic axonal injury," which typically occurs when neurons are torn due to rapid acceleration and deceleration of the brain. Bleeding along Jaden's spinal cord and tearing of the muscle and ligaments connecting the base of his skull to his spine indicated to Dr. Enstice that Jaden's neck was repeatedly hyperextended. According to Dr. Enstice, Jaden died of "[b]lunt head and neck trauma" occurring "no more than an hour prior to his arrival" at Mercy San Juan.

Defendant was alone with Jaden for about six hours prior to driving his son to Mercy San Juan. According to his account of the events that led to his son's death, he gave Jaden a bottle of formula, laid the infant down in his crib, and then took a shower. When defendant stepped out of the shower, he heard Jaden crying and walked over to the crib. Jaden was stiff and vomited when defendant picked him up; he then went limp and stopped breathing. Defendant called 911 twice, received a recorded message both times, and drove Jaden to Mercy San Juan.*fn3 This version of events was given to hospital staff at UC Davis Children's Hospital, Jaden's mother, and a sheriff's deputy who responded to the hospital the night Jaden was admitted. However, defendant did not mention to the deputy that Jaden's body was tense when he returned to the crib following his shower. And he did not mention to Jaden's mother that their son had vomited. After defendant was questioned by an investigator sometime following Jaden's admission, defendant told Jaden's mother that "he was playing an airplane game [with Jaden] and maybe he was playing too rough."

At trial, the defense argued that defendant did not assault Jaden, and that the injuries could have been the result of an undiagnosed bleeding disorder that caused spontaneous hemorrhages and swelling in his brain. Dr. Karen Griest testified for the defense in support of this theory. For purposes of this opinion, we need not review her testimony in detail. Suffice it to say that her testimony countered that of Dr. Deborah Stewart who testified generally about shaken baby syndrome and agreed with the conclusion of the treating physicians that Jaden was "the victim of significant abusive head trauma acceleration/deceleration forces to his brain which resulted in fatal injuries."



Batson/Wheeler Motion

Defendant contends the trial court should have granted his motion to quash the jury panel because the prosecutor exercised peremptory challenges to excuse three prospective jurors on the basis of race. (People v. Wheeler, supra, 22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129]; Batson v. Kentucky, supra, 476 U.S. 79 [90 L.Ed.2d 69].) We disagree.

"Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.]" (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).)

In determining whether to grant a Batson/Wheeler motion, the trial court uses a three-part test. "First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the [trial] court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." (Lenix, supra, 44 Cal.4th at pp. 612-613; People v. Mills (2010) 48 Cal.4th 158, 173.)

In this case, defendant moved to quash the jury panel following the prosecutor's peremptory removal of three African-American prospective jurors (B., T., and D.-W.), arguing: "It certainly appears that the [prosecutor is] systematically excluding members of this jury panel that are of [defendant's] ethnicity, African American. [¶] [B.] has been excused. She indicated that she has law enforcement contacts, that she has been in social services and in victim's compensation. She indicated at all times she would be fair and had no bias. [¶] [T.] was excused. She indicated repeatedly that she could be fair and showed no bias toward the defense. [¶] [D.-W.] has a number of -- had law enforcement contacts, a CDC brother-in-law and a friend in the Los Angeles Sheriff's Department. She said that with the two contacts with the courts, both as a victim and with her husband as being a DUI defendant, everyone was fairly treated. And she said repeatedly that she could be fair. [¶] It appears, at least on a prima facie basis, that these people have been excused from the jury by the prosecutor because of their ethnicity." The trial court found a prima facie case of purposeful discrimination, asked for the prosecutor's reasons for the peremptory challenges, and ultimately found no discriminatory intent. "Once the trial court ruled on the credibility of the prosecutor's stated reasons, the issue of whether the defense had made a prima facie showing became moot." (People v. Jurado (2006) 38 Cal.4th 72, 104; Hernandez v. New York (1991) 500 U.S. 352, 359 [114 L.Ed.2d 395, 405].) Thus, our review is limited to the second and third stages of the Batson/Wheeler analysis.

At the second stage of the analysis, the prosecutor must provide a "'clear and reasonably specific' explanation of his [or her] 'legitimate reasons' for exercising the challenges." (Batson v. Kentucky, supra, 476 U.S. at p. 98, fn. 20.) "'The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.' [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.]" (Lenix, supra, 44 Cal.4th at p. 613; People v. Arias (1996) 13 Cal.4th 92, 136; see Purkett v. Elem (1995) 514 U.S. 765, 769 [131 L.Ed.2d 834, 840].)

At the third stage of the analysis, "'the issue comes down to whether the trial court finds the prosecutor's race-neutral explanation to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' [Citation.] In assessing credibility, the [trial] court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her." (Lenix, supra, 44 Cal.4th at p. 613, citing People v. Wheeler, supra, 22 Cal.3d at p. 281; People v. Mills, supra, 48 Cal.4th at pp. 174-175.)

"The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in a case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.] . . . All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. '[A] "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]'" (People v. Reynoso (2003) 31 Cal.4th 903, 924, quoting Purkett v. Elem, supra, 514 U.S. at p. 769 [131 L.Ed.2d at p. 840].)

"We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges '"with great restraint."' [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]" (People v. Burgener (2003) 29 Cal.4th 833, 864.) Simply put, we consider only "whether substantial evidence supports the trial court's conclusions." (Lenix, supra, 44 Cal.4th at p. 627; People v. Bonilla (2007) 41 Cal.4th 313, 341-342.)

We now turn to an examination of the circumstances in which the prosecutor removed the three prospective jurors identified by defendant and conclude substantial evidence supports the trial court's assessment of the prosecutor's stated reasons for removing these prospective jurors.

Prospective Juror B.

The prosecutor explained that she removed prospective juror B. because B. stated that she had "a close male friend [who] was wrongfully charged with child molestation and taken through the system." This is a race-neutral reason for exclusion that satisfies the second stage of the Batson/Wheeler analysis. (See People v. Cowan (2010) 50 Cal.4th 401, 450 [prospective juror removed in part because "she knew people who had been falsely accused of crimes"]; see also People v. Panah (2005) 35 Cal.4th 395, 441-442 [negative experience with police or the arrest of a relative is a nondiscriminatory basis for exclusion].)

Substantial evidence supports the trial court's conclusion that B. was genuinely removed for this nondiscriminatory reason. As defendant correctly observes, at the third stage of the analysis, we must consider whether the proffered reason "applies just as well to an otherwise-similar nonblack who is permitted to serve" because such circumstantial evidence "tend[s] to prove purposeful discrimination . . . ." (Miller-El v. Dretke (2005) 545 U.S. 231, 241 [162 L.Ed.2d 196, 214].) We must do so on appeal even though defendant did not rely on a comparative juror analysis in arguing the motion below. (Lenix, supra, 44 Cal.4th at p. 622.)

However, as our Supreme Court has cautioned, "comparative juror analysis on a cold appellate record has inherent limitations" due to the fact that, "[o]n appellate review, a voir dire answer sits on a page of transcript. In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact." (Lenix, supra, 44 Cal.4th at p. 622.) We also point out that because defendant has waited until appeal to argue comparative juror analysis, "such evidence will be considered in view of the deference accorded the trial court's ultimate finding of no discriminatory intent." (Id. at p. 624, citing Hernandez v. New York, supra, 500 U.S. at p. 365 [114 L.Ed.2d at p. 409].)

Defendant argues that comparing B.'s voir dire responses to those of seated juror 3970190 reveals the pretextual nature of the prosecutor's stated reason for removing B. because seated juror 3970190 "also had a bad experience with CPS" and "stated that CPS was greatly overworked." This comparison is a stretch. When B. was asked by defense counsel whether she could "imagine a case in which someone's charged with abuse but they didn't do it," B. responded: "Oh, yes." She then elaborated: "Um, it was a father, friend of mine, he's a guy, male friend, and he was charged with molestation, but he really didn't commit the crime and I think it was more or less taken out of [context]." She then stated that she "provide[d] emotional support" for her friend, described the situation as "pretty traumatizing," and explained that "the charges were dropped because [they were] untrue."

Unlike B.'s experience of supporting a friend who was falsely accused of molestation, seated juror 3970190's voir dire responses revealed that she was a trained volunteer for Court Appointed Special Advocates (CASA), an organization that provides volunteer advocates for children in foster care. As she explained: "We are advocates for the [4,700] dependent children in this county and we're assigned usually one child in order to advocate. Many times it's because CPS not being able to cover [sic] all they need to cover and so we advocate for the child." She also explained that she became an advocate after her daughter adopted a child out of the foster system and discovered that CPS was "overworked" and "[un]able to stay on top of this adoption." She further stated that she became an advocate because she felt "strongly that [CPS] needs a lot of help" and that CASA's role was to "basically do[] what CPS isn't doing."

While B.'s situation is very different from that of seated juror 3970190, it is similar to that of prospective juror D.-W. (discussed in detail below), who was also removed by the prosecution, and who believed that her friend was reported to CPS during a "spousal dispute" and falsely accused of showing pornography to an 11-year-old child. B.'s situation is also similar to that of prospective juror C., whose wife "felt violated" when CPS arrived at their home to investigate a "scratch" on their daughter's shoulder. C., however, was removed by the defense, and understandably so given that defendant was charged with murder and child abuse resulting in the death of his six-month-old child and C. wrote on his juror questionnaire that he was "mad at the idea of an adult abusing a baby." This serves to underscore our Supreme Court's observation that "[v]oir dire is a process of risk assessment. . . . Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court's factual finding." (Lenix, supra, 44 Cal.4th at p. 624.)

Nor are we persuaded by defendant's reliance on the fact that the prosecutor did not question B. While the failure to engage in meaningful voir dire on the subject the prosecutor claims to have been concerned about can be evidence that the stated reason for removal was in reality a pretext for discrimination (Miller-El v. Dretke, supra, 545 U.S. at p. 246 [162 L.Ed.2d at pp. 217-218]), we believe that defense counsel's voir dire of B. on the subject of her friend's "emotional" and "traumatizing" experience of being falsely accused of molestation was sufficient to indicate to the prosecutor that B. would not be a desirable juror. Substantial evidence supports the trial court's conclusion that B. was not removed on the basis of race.

Prospective Juror T.

The prosecutor explained that she removed prospective juror T. because "[T.] has a son that had run-ins with the law throughout the course of his life. She accompanied him to court in -- as late as 2009. Her son eventually -- his grant of probation was eventually revoked and he went to state prison." This reason also satisfies the second stage of the Batson/Wheeler analysis. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1123-1124 [imprisonment of a relative is a valid race-neutral reason for exclusion]; see also People v. Cummings (1993) 4 Cal.4th 1233, 1282 [conviction of a relative is a proper consideration]; People v. Sims (1993) 5 Cal.4th 405, 430 [same].)

We also conclude substantial evidence supports the trial court's determination that T. was genuinely removed for this nondiscriminatory reason. T.'s voir dire responses revealed that her 34-year-old son was convicted of multiple crimes "throughout the years," including assault and drug possession. As she explained, "he's addicted to drugs, so it was involving drugs at the time. [¶] . . . [¶] That was about 10 years ago. He's -- maybe eight years ago. He served time, but he broke his probation and he is in prison now." When the prosecutor asked whether T. had accompanied her son to court, she answered that she had done so "when he was 15 or 16" and sent to the "youth authority," and as recently as "November of last year," when he was sent back to prison. T. also stated that her son was prosecuted in Sacramento County. Despite T.'s statement that her son was "treated as fairly as one could be treated who keeps getting himself in trouble," the prosecutor was justified in determining that she posed a risk of holding her son's trouble with the law against the prosecution.

Nevertheless, defendant argues that T. is similar to seated juror 3817300, whose cousin and uncle were prosecuted for selling drugs. However, this juror's voir dire responses revealed that this prosecution occurred about eight years in the past and he did not attend the proceedings. Moreover, the fact that seated juror 3817300 had another cousin who was robbed and murdered, and whose assailants were successfully prosecuted by the Sacramento County District Attorney's office could have indicated to the prosecutor that this juror was more desirable than T. Indeed, T.'s situation is more analogous to that of prospective juror D. Apparently, D.'s son was driving a car that was involved in a shooting and was arrested for attempted murder. The prosecutor questioned D. about her son's case immediately before questioning T. about her son. The prosecutor also removed D. immediately before T. These circumstances provide additional support for the trial court's conclusion that T. was removed, not because of her race, but because of her son's trouble with the law. Substantial evidence supports this decision.

Prospective Juror D.-W.

The prosecutor explained that she removed prospective juror D.-W. for two reasons. First, "she had a friend who was . . . reported to CPS. It, however, was something that had no validity and her friend was questioned by CPS, and it stemmed from what she thought was a spousal dispute. And she apparently had some issue with that." We have already determined that this is a legitimate race-neutral reason for exercising a peremptory challenge. (See People v. Cowan, supra, 50 Cal.4th at p. 450; see also People v. Panah, supra, 35 Cal.4th at pp. 441-442.)

As a second reason for removing D.-W., the prosecutor explained that she is a pharmaceutical representative with "very limited knowledge of the medical field and the medical industry." However, her juror questionnaire indicated that she had studied "'different diseases in the body system.'" As the prosecutor explained: "My concern with [D.-W.], just like my concern with the other [registered nurse] I excused, [M.], is that they're going to be influencing the jury potentially with what they perceive [as] their knowledge of the body, disease, and whatnot." This too is a legitimate race-neutral reason for exercising a peremptory challenge. (See People v. Howard (1992) 1 Cal.4th 1132, 1156 [professional training provides a legitimate reason to challenge a juror].)

The trial court's determination that D.-W. was genuinely removed for these nondiscriminatory reasons is also supported by substantial evidence. As already mentioned, D.-W. stated during voir dire that she believed her friend was reported to CPS during a "spousal dispute" and falsely accused of showing pornography to an 11-year-old child. While defendant argues that "[t]here was nothing in any of her responses to indicate that she had some sort of 'problem' with that," the prosecutor explained that she did not like the fact that D.-W. viewed the charges as having "no validity" despite her admitted "limited knowledge" of the situation. This is a valid concern and is supported by the record.

With respect to D.-W.'s medical knowledge, she explained that she sold vaccines for a pharmaceutical company and routinely came into contact with doctors, nurses, and immunization coordinators. Apparently, prompted by a response on her juror questionnaire indicating that she had studied "'different diseases in the body system,'" the prosecutor asked whether she would be comfortable setting aside this knowledge and deciding the case based solely on the evidence presented at trial. The prosecutor asked prospective juror M., a registered nurse, the same question at the same time she asked D.-W. Both indicated they could do so. And both were removed by the prosecution. The timing of these questions provides circumstantial evidence that the medical training of these prospective jurors, whether actual or perceived, was the reason they were removed.

Nevertheless, defendant argues that the same rationale should have prompted the prosecutor to challenge seated juror 3905458, a firefighter with paramedic training. However, when questioned on voir dire about whether he had a lot of medical training, he answered: "Just paramedic is the highest." He then explained: "We treat as first responders. We go there, we stabilize as best we can, and then we take them to the medical doctors and give them a report of what we saw, what the patient presented as, how we treat it, why we treat it and give it to them and give them a complete thorough history or story of what we saw, what we were told." This account of his paramedic training could have convinced the prosecutor that he would not be attempting to influence the other jurors with his medical knowledge. On the other hand, D.-W., who was described by the prosecutor as being a well-spoken individual, proclaimed to have studied "'different diseases in the body system'" while her job as a sales representative would not ordinarily indicate a high degree of medical training. Thus, the prosecutor was not so much concerned that D.-W. had a high degree of medical training, but rather that she perhaps believed her level of training to be higher than it actually was, and that she presented a risk of influencing the other jurors with her perceived knowledge.

Defendant also complains that the prosecutor did not question D.-W. about the CPS incident. However, as with prospective juror B., the prosecutor could have received sufficient information from the defense voir dire to question whether D.-W. would be a desirable juror in light of the fact that she believed her friend was falsely accused of showing pornography to a child. And the prosecutor did question D.-W. on her perceived medical knowledge. "Under the circumstances, the prosecutor's failure to question [D.-W.] about each and every area of articulated concern does not undermine the conclusion that her stated race-neutral reasons for excusing [the prospective juror] were genuine and not pretextual." (People v. Cowan, supra, 50 Cal.4th at p. 451.)

We also note that the prosecutor did not exercise a peremptory challenge against seated juror 3810088, who was also African-American. "While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a [Batson/]Wheeler objection." (People v. Turner (1994) 8 Cal.4th 137, 168; People v. Gutierrez, supra, 28 Cal.4th at p. 1122.)

Because substantial evidence supports the trial court's decision to deny defendant's Batson/Wheeler motion, we accord that decision the deference to which it is entitled. (People v. People v. Mills, supra, 48 Cal.4th at p. 185.)


Expert Testimony

Defendant asserts the trial court committed reversible error under People v. Kelly (1976) 17 Cal.3d 24 (Kelly)*fn4 by admitting expert testimony on shaken baby syndrome, arguing that a "shift in mainstream medical science casts considerable doubt as to whether this type of evidence should be admitted at all in a case such as this, where there is no history of abuse, no indications at all of any external trauma, no bruising or broken bones; only the 'classical' symptoms of [shaken baby syndrome]." However, as defendant acknowledges, he did not object to this testimony below because "evidence of [shaken baby syndrome] is routinely admitted and has never been excluded in a California case." Accordingly, he has forfeited this claim on appeal. (People v. Doolin (2009) 45 Cal.4th 390, 448; People v. Geier (2007) 41 Cal.4th 555, 610-611; People v. Combs (2004) 34 Cal.4th 821, 847; People v. Cua (2011) 191 Cal.App.4th 582, 591.)

In order to avoid this result, defendant raises "the specter of ineffective assistance of counsel." But challenging counsel's performance as constitutionally deficient on direct appeal requires more than the conjuring of a phantasm. When, as here, counsel has not had the opportunity to explain her conduct, we will not find ineffective assistance of counsel unless there could be no satisfactory explanation. (People v. Lewis (1990) 50 Cal.3d 262, 288.) Here, given the lack of any California case law supporting an objection to expert testimony on shaken baby syndrome, defendant's trial counsel could reasonably have refrained from raising a Kelly objection to this testimony because she thought it would lack merit. (See, e.g., People v. Salazar (2005) 35 Cal.4th 1031, 1038; People v. Lewis (2004) 120 Cal.App.4th 837, 846 (Lewis).)


Instructional Error

We also reject defendant's claim that the trial court committed reversible error by instructing the jury with CALCRIM No. 362. This instruction provides: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. [¶] However, evidence that the defendant made such a statement cannot prove guilt by itself."

We have recently approved CALCRIM No. 362, noting that our Supreme Court had consistently approved its nearly-identical predecessor, CALJIC No. 2.03.*fn5 (People v. McGowan (2008) 160 Cal.App.4th 1099, 1103; see People v. Page (2008) 44 Cal.4th 1, 50-52; People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224; People v. Kelly (1992) 1 Cal.4th 495, 531-532.) This instruction is proper where the only evidence of the falsity of a defendant's statement is its inconsistency with the prosecution's case at trial. (People v. Arias, supra, 13 Cal.4th at p. 141.)

Defendant's challenge to CALCRIM No. 362 is two-fold. First, he asserts there is no evidence in the record that he made a false or misleading statement before trial relating to the crime. Second, he argues the instruction lowered the prosecution's burden of proof by allowing the jury to infer guilt from the fact that he "'lied.'" He is mistaken.

The prosecutor cited three examples of defendant's false statements: (1) defendant claimed nothing happened to Jaden immediately prior to bringing him to Mercy San Juan despite the medical evidence that he suffered from "nonaccidental trauma" to his head and neck occurring "no more than an hour prior to [his] arrival" at the hospital, a time when defendant was alone with the child; (2) defendant later told Jaden's mother that "he was playing an airplane game [with Jaden] and maybe he was playing too rough"; and (3) defendant stated that he called 911 twice and received an automated message despite trial testimony that no such calls were received at the call center and that callers do not receive an automated message.

Defendant argues that none of these statements was conclusively proven to be false. But all that is required in order for the instruction to be given is some evidence from which a reasonable jury could conclude the statements to be false or misleading. Defendant's account of the events that led to his son's hospitalization and death was inconsistent with the medical testimony that Jaden died from massive swelling and bleeding of the brain caused by nonaccidental trauma to his head and neck, i.e., shaken baby syndrome, occurring immediately before his arrival at the hospital. This initial version was also inconsistent with defendant's subsequent statement that "he was playing an airplane game [with Jaden] and maybe he was playing too rough." Based on the medical testimony, "a jury could reasonably infer that [both] statements were self-serving falsehoods intended to cast his conduct in the least culpable light." (People v. Arias, supra, 13 Cal.4th at p. 141.) The instruction was adequately supported by evidence.*fn6

Nor did the giving of this instruction violate defendant's right to due process under the state and federal Constitutions by permitting the jury to infer his guilt of the charged crimes from his false or misleading statements, thereby reducing the burden of proof. Because CALCRIM No. 362 instructs the jury that it may infer a consciousness of guilt only if it first finds that the defendant made a knowingly false or intentionally misleading statement relating to the charged crimes, and further informs the jury such evidence is not alone sufficient to prove his or her guilt, the instruction properly guides the jury's consideration of the evidence and does not lessen the prosecution's burden of proof. (People v. Jackson, supra, 13 Cal.4th at p. 1224.) Moreover, "because [the instruction] precludes a jury from convicting a defendant based solely upon his or her dishonest statements relating to the crimes," it is favorable to the defense. (People v. Page, supra, 44 Cal.4th at p. 51.) And "[i]f the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence." (People v. Kelly, supra, 1 Cal.4th at pp. 531-532.) There was no error, constitutional or otherwise.


Sentencing Error

Defendant's final contention is that we must remand for resentencing because the probation report erroneously stated that he was ineligible for probation unless the trial court found this to be an unusual case. And, argues defendant, "[e]ven if the court may have understood that probation was an option, it does not appear from the record that the court considered the full scope of its discretion in granting probation." We disagree.

As defendant correctly observes, the probation report recommended a state prison term of 25 years to life, stating defendant was "not eligible for probation pursuant to [] section 1203(e)(3), unless the Court finds unusual circumstances warranting a grant of probation." The probation report further stated that "[n]o unusual circumstances were found warranting a grant of probation" and that "[h]ad unusual circumstances been found, probation would not have been recommended as the nature, seriousness and circumstances of the crime warrant a State Prison commitment."

"A defendant is presumptively ineligible for probation under section 1203, subdivision (e)(3), if he or she 'willfully inflicted great bodily injury or torture in the perpetration of the crime.'" (Lewis, supra, 120 Cal.App.4th at p. 852.) This "requires the defendant's intent to cause great bodily injury or torture, not merely that the crime resulted in great bodily injury or torture." (Id. at p. 853, citing generally People v. Gonzales (1994) 29 Cal.App.4th 1684, 1695-1698.) Here, defendant was convicted of violating section 273ab, a crime that requires only an assault "by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death." (Italics added.) Thus, in order for defendant to be presumptively ineligible for probation under section 1203, subdivision (e)(3), the trial court was required to find that he actually intended to inflict great bodily injury on his son. (Lewis, supra, 120 Cal.App.4th at p. 854.) No such finding was made by the trial court.

However, in denying defendant's application for probation, the trial court stated: "[T]he evidence was strong and convincing that this baby died while under your care and control because of a forceful act committed by you. [¶] And it's because of that act that I am not able to grant you mercy. I am not able to grant you leniency. There are no factors that indicate the existence of an unusual case. There are no existent circumstances that warrant probation in this case. [¶] The nature and circumstances of the death, the fact that we have an extremely vulnerable baby, an infant, that was killed in the way it was, justifies a state prison sentence." (Italics added.) The trial court also relied on defendant's prior conviction for domestic violence resulting from an incident in which he choked his girlfriend while aggressively swinging her from side to side and twice pushed her into a shelf. Accordingly, the record reveals that the trial court first assumed defendant was presumptively ineligible for probation and found this was not an unusual case, and then assumed that defendant was eligible for probation and found that facts relating to the crime and facts relating to defendant militated against a grant of probation.*fn7 We cannot conclude this was an abuse of the trial court's discretion.


The judgment is affirmed.

We concur: NICHOLSON , Acting P. J. ROBIE , J.

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