(Super. Ct. Nos. 08F5142 & 07F1047)
The opinion of the court was delivered by: Blease , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Curtis Wayne Taylor and Beau Houston Gray assaulted Travis Smith, causing Smith to suffer a traumatic brain injury. Smith was hospitalized for eight days and died less than 48 hours after being discharged. Between the time he left the hospital and his death, Smith consumed alcohol and medication that had not been prescribed for him despite being told not to do so by his physician.
Following a joint trial, a jury found defendants not guilty of first degree murder (Pen. Code, § 187, subd. (a))*fn1 or torture (§ 206) but guilty of second degree murder and assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)). The jury also found true an allegation defendants inflicted great bodily injury during the commission of the assault. (§ 1192.7, subd. (c)(8).)*fn2 In a bifurcated proceeding, the trial court found true allegations Taylor had a prior strike conviction (§ 1170.12), served two prior prison terms (§ 667.5, subd. (b)), and was released on bail when he committed the assault (§ 12022.1).
The trial court sentenced Gray to an aggregate term of 19 years to life in state prison, consisting of 15 years to life for murder, plus a consecutive 4 years (the upper term) for assault with force likely to cause great bodily injury.
The court sentenced Taylor to an aggregate term of 42 years and 8 months to life in prison, consisting of 30 years to life (15 years to life doubled for the prior strike) for murder, a consecutive 8 years (the upper term doubled for the prior strike) for assault with force likely to cause great bodily injury, plus a consecutive 2 years for the bail enhancement, a consecutive 2 years for the 2 prior prison terms, and a consecutive 8 months (one-third the middle term) on an unrelated matter.
Defendants appeal, contending the trial court prejudicially erred in failing to sua sponte instruct the jury on independent intervening causation, sua sponte instruct the jury on unanimity as to the assault charge, or stay their sentences for assault under section 654.*fn3 They also assert that the prosecutor committed misconduct during closing argument, and that they received ineffective assistance of counsel. In addition, Taylor claims the admission of Gray's redacted confession violated his Sixth Amendment right to confront and cross-examine witnesses against him, and there was insufficient evidence to support the court's finding that he had a prior strike conviction.
We shall conclude that the trial court erred in refusing to stay defendants' sentences for assault with force likely to cause great bodily injury, modify the judgments to stay defendants' sentences for that offense, and affirm the judgments as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2008, defendants spent the day drinking alcohol and smoking marijuana at the Shady Oaks Mobile Home Park with 14-year old T.D., 18-year old Tabitha Bigger, Shane Venzke, and others.
At some point T.D. left with the victim Smith, who was "extremely drunk," and two others to get more alcohol. According to T.D., Smith touched her "butt" as she was getting into the car and, once inside, touched her hand and told her she was pretty. Word of Smith's alleged touching quickly spread throughout the trailer park.
After returning from the store, Smith went to the home of Jimmy Jones, who also lived in the trailer park, and told Jones that "[t]hose people down at the trailer park think I touched that little girl." Jones asked Smith whether he had touched her, and Smith said, "No." Smith purchased some methamphetamine from a woman at Jones' home and snorted a line or so that night.
Later that evening, Jones and Smith were approached by defendants as they walked along a canal near the trailer park. T.D., Venzke, and Bigger were also present. Taylor punched Smith in the face, and Smith fell to the ground, striking his head. While Smith was on the ground, Gray stomped on his head. Jones asked Taylor why he attacked Smith, and Taylor said it was because Smith was a child molester. Defendants left Smith unconscious and bleeding, returned to the trailer park, and continued partying.
Less than an hour later, defendants returned to Smith, who remained on the ground where he had been beaten. Taylor asked Smith whether he was going to touch little girls again, and Smith said, "Yeah." Taylor then slapped him. Taylor again asked Smith whether he was going to touch little girls, and Smith said, "Fuck yeah." Taylor then punched or kicked Smith, while Gray stomped on his head "really hard" with the entire weight of his body. Defendants emptied Smith's pockets, taking his wallet, marijuana, methamphetamine, and possibly a ring. Defendants left Smith unconscious and went to Jones' home. They had methamphetamine when they arrived. Jones tasted the methamphetamine and identified it as the same methamphetamine his friend sold to Smith earlier that evening.
Approximately 20 minutes later, defendants again returned to Smith. As Smith attempted to move, Taylor began punching him in the face, while Gray stomped on his head and chest. Smith pleaded with defendants to stop. When defendants were finished, Smith was barely able to speak. Taylor urinated on his head.
Defendants told T.D. and Bigger not to call an ambulance or 911 and not to tell the police anything about defendants' involvement if questioned. If they did, Taylor said "he would know who did it and something would be done." Taylor asked Gray to take Smith home so he did not die where he lay, and Gray told Taylor that Smith "could lay there and die for all he cared."
Early the next morning, T.D. walked by the scene of the beatings, and Smith remained there unconscious. Defendants also were there. Taylor was cleaning off the fence near where the beatings took place, while Gray stood around. At approximately 6:30 a.m., a mountain biker saw Smith and asked a resident of the trailer park to call for help.
Ten to fifteen minutes later, a Redding police officer arrived and found Smith unconscious next to the fence. Smith's eye was swollen and discolored, and he had blood running from his nose. Smith told the officer he had fallen during the night and injured himself. Smith smelled like alcohol and had trouble standing. The officer called an ambulance, and Smith was taken to the hospital.
Smith was diagnosed with a traumatic brain injury and was placed in the hospital's intensive care unit. He had multiple intracerebral contusions and an "altered level of consciousness." He also appeared to be suffering from acute alcohol withdrawal. He remained in the hospital for eight days. When he was released on June 16, 2008, his discharge papers did not say that he should refrain from consuming alcohol; however, Dr. Ashok Jain, the consulting neurosurgeon on Smith's case, told Smith and Smith's sister that Smith should not consume alcohol or take any medication without Dr. Jain's knowledge.
After being released, Smith stayed with his sister. He was unusually quiet, complained that his head hurt, and said he wanted to lie down. His wife visited him at his sister's home on June 17, 2008, the day after he was released from the hospital. Smith told her that he "wanted to go into a rehab because he was going to die if he continued to drink . . . ." He also complained of pain in his head. Smith was unusually quiet during her visit.
Later that evening, Smith drank beer with a friend, who observed that Smith "wasn't himself." Smith "collapsed, fell down" on his way to the restroom. He was not finishing his sentences and was jumping from topic to topic. He also appeared pale. His friend left around 9:00 or 10:00 p.m. Smith's sister's boyfriend last saw Smith at 11:30 p.m.; he was the last person to see Smith alive. Smith's sister discovered Smith's body the following morning, June 18, 2008, at approximately 7:00 a.m. There were several empty 12-ounce beer cars and three empty 32-ounce beer cans near Smith's body.
Later that day Gray was interviewed by Officer Todd Cogle of the Redding Police Department. When asked what he was doing on June 8, 2008, before Smith was assaulted, Gray said he was drinking in the trailer park with a couple of "chicks" when Smith walked through, and one of the "chicks" started "freaking out," saying that Smith had molested her. Gray asked Smith if he was going to stop touching little girls. Gray initially said that Smith pulled out a knife and attempted to cut him, and that he kicked Smith in the head. Later, Gray acknowledged Smith did not pull a knife on him and confirmed that when Smith attempted to get up, Gray kicked him back down. Gray said that Smith was "hurting" but still talking when Gray left. Gray returned to Smith two or three times during the course of the night, and Smith was beaten each time. After Gray returned the second time, Smith was badly beaten; he had blood coming out of his nose and mouth, and his eyes were so swollen he could not see out of them. Gray said Smith received 100 blows over the course of the evening but later gave different estimates.
Dr. Susan Comfort, a forensic pathologist with the Shasta County Sheriff's Coroner System, performed a post-mortem examination of Smith's body hours after it was discovered. She found several skull fractures. "[T]he largest and most impressive fracture was in . . . . the back of the head. It was slightly depressed, meaning the bone was actually pushed with enough force that it bent inwards, and radiating from a point of impact on that left area were three fractures, which then coursed into separate areas of the skull, one more towards the front, and the other two more towards the back of the head." She also found a separate fracture on the left side of the temporal region, which "ran down and intersected [with the] . . . fractures that were in the back of the head." The fracture on the back of Smith's head was consistent with a very hard blow or falling backward and hitting the ground. The fracture on the left side was consistent with a kick to the head. Dr. Comfort also observed multiple contusions on the brain that corresponded to the fractures.
After performing the physical examination but before receiving the toxicologist's report, Dr. Comfort cautioned Officer Cogle that Smith may have died as a result of methamphetamine poisoning, alcohol poisoning, or a mixture of the two. In addition to the head trauma, she found ischemic bowel changes, which can be caused by methamphetamine use. She advised Officer Cogle that it would be "pretty risky" to charge anyone with Smith's murder before she made her official ruling on the cause of death. She explained that "if we get the tox back and he's got methamphetamine and alcohol, then I'm going to be ruling it as an accidental drug, mixed drug and alcohol intoxication." When asked what her opinion as to the cause of death would be "if the tox comes back clean or with just alcohol on board," Dr. Comfort responded, "Well then, we're only left with head injuries."
The toxicology report indicated that Smith's blood alcohol level was .14, which is equivalent to consuming seven beers. He also had a very low level of Fentanyl,*fn4 which had not been prescribed, in his system. Alcohol and Fentanyl reduce blood flow to the brain and could have been fatal to someone with Smith's injuries. No methamphetamine was found. Dr. Comfort opined that Smith's death was caused by blunt force injuries to the head, and that alcohol and Fentanyl intoxication were contributing factors. She concluded that blunt force trauma was a substantial cause of Smith's death, and that he would not have died had he not been so severely beaten 10 days earlier.
Dr. Comfort estimated that Smith died around midnight on June 17, 2008. She based her estimate on the investigator's observation of rigor in Smith's arms, legs, and jaw at approximately 7:00 a.m. the following morning. Smith's state of rigor indicated he had been deceased for approximately eight hours. Once a person is deceased, his or her body stops metabolizing alcohol.
Two CAT scans were taken of Smith's head upon his arrival at the hospital; neither revealed a skull fracture. Dr. Noel Curcio, one of Smith's treating physicians, believed it was possible that the skull fractures observed by Dr. Comfort were missed but thought it was more likely that the fractures were received after Smith was discharged. He acknowledged that Smith's injuries were consistent with a skull fracture, and that a person with severe injuries like those discovered during the autopsy could succumb to those injuries days or weeks after they were inflicted.
Dr. Jain also believed that it was unlikely the radiologists who interpreted Smith's CAT scans missed any fractures. Had Smith suffered the fractures prior to being released, Dr. Jain doubted that Smith's clinical condition would have been as good as it was. Dr. Jain would not be surprised to find skull fractures in a person who had suffered the multiple traumatic injuries to the brain that Smith had. He would "probably disagree" with Dr. Comfort's finding that the cause of death was blunt force trauma sustained 10 days before Smith's death because Smith's clinical condition was very good at the time he was discharged, and Dr. Jain had never seen that happen before.
The fact that the skull fractures were not observed on the CAT scans did not alter Dr. Comfort's opinion that the fractures were caused at the same time as the brain contusions. She based her opinion on the fact that the skull fractures corresponded to the locations of the brain contusions, and the absence of any fresh trauma to the brain or injury to the scalp. She explained that with "a very thin hairline fracture such as what you see here . . . and also when it's fresh . . . it's very easy not to see it on an imaging scan . . . ." When she shared her findings with one of the radiologists that reviewed the CAT scans, he was not surprised that she found a fracture he did not and "said sometimes when the fractures are located down at the bottom of the skull or base of the skull is an area that is harder to scan, and sometimes it's easy to miss a fracture, especially if it's not displaced and just a simple hairline fracture." Dr. Comfort further explained that if the fractures were caused by a fall after Smith was released from the hospital, she would expect to find corresponding fresh trauma to the brain or fresh injury to the scalp, which she did not. Instead, she observed "some early signs of healing" that were consistent with the injuries being 10 days old.
Dr. Paul Herrmann, a forensic pathologist called by Taylor, opined that Smith "died as a result of a combination of injuries to his brain and also Fentanyl and alcohol intoxication." Had Smith not used alcohol or Fentanyl, it is unlikely he would have died when he did. Similarly, if Smith had not suffered the brain injuries as a result of defendants' attack, "the Fentanyl and alcohol would not have killed him."
Defendants did not dispute assaulting Smith. Rather, during closing arguments Taylor's counsel conceded: "As far as the assault, at least as far as my client is concerned, he definitely assaulted Travis Smith. There's no doubt about that. And there's no doubt that in my mind that Travis Smith suffered something." Gray's counsel likewise acknowledged that "there was an assault here, and certainly there was great bodily injury that was done here." Defendants did, however, dispute that they had the requisite intent for murder and urged that Smith died as a result of his own actions following his release from the hospital, and not as a result of the assault.
Any Potential Aranda-Bruton*fn5 Error Was Harmless
Beyond A Reasonable Doubt
Taylor contends the admission of co-defendant Gray's extra-judicial statements, which he contends inculpated him in Smith's beating in the context of the prosecutor's questioning, violated his Sixth Amendment right to confront and cross-examine witnesses against him insofar as Gray did not testify and thus could not be cross-examined at trial. As we shall explain, any error in admitting Gray's redacted statements was harmless beyond a reasonable doubt because Gray's statements were merely corroborative and cumulative to the overwhelming and properly admitted evidence of Taylor's guilt. (See People v. Song (2004) 124 Cal.App.4th 973, 984.)
Following his arrest, Gray was interviewed by Officer Cogle and made statements inculpating both Taylor and himself in Smith's beating. During the in limine proceedings, Taylor moved to exclude Gray's statements insofar as they inculpated him in the crimes. The prosecutor did not object to Taylor's motion so long as he was permitted to "introduce statements of one defendant with regard to strictly what . . . he did." (Italics added.) The prosecutor explained that he intended to introduce Gray's statements "through testimony with the questions limited to what did Mr. Gray say he did next . . . ." The trial court agreed that was an appropriate way to proceed and granted Taylor's motion.
At trial, the prosecutor introduced Gray's statements through the testimony of Officer Cogle. The prosecutor began by asking Officer Cogle whether Gray told "you what his involvement was in the beating of Travis Smith?" Officer Cogle responded in the affirmative, and the prosecutor asked whether Gray told him "what he was doing on June 8th 2008 before the assault?" Officer Cogle testified that Gray said he had been drinking beer with a couple of "chicks" when Smith approached, and one of the "chicks" started "freaking out," saying that Smith had molested her. Gray said he approached Smith, asked Smith if he was going to stop touching little girls, and Smith pulled out a knife and tried to cut Gray. Gray kicked Smith in the head. (Gray later admitted that Smith did not pull a knife on him.) Gray stated that when he left, Smith was hurting but still talking. Gray told Officer Cogle that he went back to Smith's location two or three times during the course of the evening. The prosecutor's direct examination of Officer Cogle then proceeded as follows:
"Q. Okay. . . . [¶] During those two to three times, did Mr. Gray tell you that [Smith] was beaten each of those two or three times?
"Q. Did he tell you that [Smith] was urinated on during one of those ...