People v. Palacio CA4/1

Filed 2/25/15 P. v. Palacio CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064643

Plaintiff and Respondent,

v. (Super. Ct. No. SCD231290)

LAWRENCE PALACIO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed.

Charles M. Sevilla for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Marvin E.

Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

Lawrence Palacio appeals a judgment following a jury verdict finding him guilty

of one count of felony child abuse (Pen. Code, § 273a, subd. (a)).1 On appeal, he

1 All statutory references are to the Penal Code unless otherwise specified.
contends: (1) the evidence is insufficient to support his conviction; (2) the trial court

erred by denying his request for an Evidence Code section 402 hearing on the foundation

for the opinions of the prosecution's expert witnesses and/or by not requiring the

prosecution to comply with its section 1054.1 discovery obligations regarding its

witnesses; (3) the trial court erred by denying his Evidence Code section 352 motion to

exclude evidence regarding a Navy form he signed that changed his former wife's address

and allowing the prosecutor to question him and argue to the jury based on that form; (4)

the prosecutor committed prejudicial error in questioning certain witnesses; and (5) the

trial court erred by denying his Evidence Code section 352 motion and admitting into

evidence a photograph showing his son's cranial bolt while hospitalized.

FACTUAL AND PROCEDURAL BACKGROUND

In 2010, Palacio and his girlfriend, then known as Miriam P. (Miriam), lived

together in a two-bedroom apartment in La Jolla.2 Miriam was pregnant with their baby

and intended to have a natural, vaginal birth. On April 26, 2010, she went into labor and

was admitted to Scripps La Jolla Hospital (Scripps). Miriam's blood pressure spiked and

her baby began to show intermittent fetal distress by his heart rate slowing. Because a

vaginal birth had been unsuccessful, Dr. Gary Vandenberg, her obstetrician, delivered her

baby by an emergency C-section. The baby, named G., weighed five pounds, one ounce,

2 Palacio and Miriam married on April 13, 2012. To avoid confusion, we refer to
Miriam by her first name and, in so doing, intend no disrespect.

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and had Apgar scores of 8 and 9 out of 10, meaning he was a normal baby with a good

heart rate, respiration, color, and glucose.

After G.'s birth, Dr. Robert Warner became his pediatrician. G. was discharged

from the hospital without any complications three days after his birth. At G.'s routine

office visits, Warner examined him and found his weight, growth, oxygen level, and head

circumference were normal. Warner believed G.'s brain development was normal.

Miriam believed G. was healthy, albeit colicky. When he became fussy at night,

she rocked him, danced with him, sang to him, and put him in a swing. Sometimes

Palacio would also care for G. and would become frustrated by his crying. Miriam would

then take over caring for G. She never saw Palacio lose his temper and be rough or harm

G. in any way. Prior to July 13, 2010, G. had not suffered any trauma.

After Miriam returned to work, E. P., her mother, cared for G. while she was at

work. P., a former midwife, believed G. was one of the fussiest babies she had cared for,

crying whenever he was not held. She said G. would stare and not make eye contact with

her.

On the morning of July 13, G. woke up, smiled, and looked his mother in the eye.

Her interactions with him were normal. Miriam and Palacio took G. to P.'s house and

went to a gynecological appointment for Miriam. They picked G. up at about 2:30 p.m.

G. had his normal temperament and had no accidents while at P.'s house.

At about 10:30 p.m. that night, G. woke up and began his normal crying. Palacio

offered to take care of G. and gave him a bottle. Miriam fell asleep, but was later

awakened by Palacio, who had a look of terror, or fear and worry, on his face. She got up

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and found G., who was then breathing, on the couch. When she tried to pick him up,

Palacio stopped her. A minute later, she picked up G. and asked Palacio what had

happened. He replied that he was rocking G. to sleep, G. stopped crying, and then he

stopped breathing. Palacio said he performed CPR on G. They took G. to Scripps, the

closest hospital.

Dr. Ian Reilly, an emergency room physician at Scripps, treated G. Palacio and

Miriam told him G. was crying, suddenly became lifeless, and stopped breathing for two

minutes. Palacio gave G. two rescue breaths and G. began breathing again. They did not

report any trauma to G. Lab tests showed G.'s white blood cell count was elevated and he

was not getting enough oxygen. Reilly concluded G. had suffered metabolic acidosis,

indicating he had a hypoxic event, or a lack of oxygen, to his entire body. A lumbar

puncture showed his spinal fluid contained blood, indicating bleeding on G.'s brain. A

CT scan of G.'s brain showed he had an acute on chronic subdural hematoma on the left

side of his brain. The blood in his brain appeared to be of different ages. After finding

G. did not have an infection and forming the belief he had suffered trauma, Reilly had G.

transferred to Rady Children's Hospital (Rady) at about 5:30 to 6:00 a.m. on July 14.

At Rady, tests showed G.'s white blood cell count had returned to normal,

indicating he did not have an infection, a metabolic disorder, or a bleeding disorder. G.

did not have any skeletal fractures and his frenulum was not torn, thereby not showing

any sign of smothering. A CT scan of G.'s brain showed subdural bleeding of different

ages (i.e., densities).

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 The following day, July 15, G. began having "absent stare seizures" that appeared

on an EEG of his brain, but did not result in any physical manifestations. On July 16, an

MRI showed his brain was beginning to swell (i.e., cerebral edema). A neurosurgeon

inserted a bolt through G.'s skull to monitor the pressure in his brain and a shunt was

placed to drain extra cerebrospinal fluid. In July and August, CT scans and MRIs

showed he had dead tissue in the posterior of his brain that was caused by a hypoxic

ischemic injury (i.e., deprivation of oxygen or blood to the brain). The subdural and

hypoxic ischemic events both caused death of brain tissue and were two different injuries.

An October 18, 2010, MRI showed a new subdural hematoma.

On August 4, G. was released from the hospital. Warner, his pediatrician, found

G. was different because he did not follow him with his eyes as he had before. Warner

believed G.'s developmental delays were consistent with the brain injury he suffered on

July 13.

An information was filed charging Palacio with one count of felony child abuse

(§ 273a, subd. (a)). It further alleged that in committing that offense he personally

inflicted great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)),

and personally inflicted great bodily injury within the meaning of section 1192.7,

subdivision (c)(8).

Prosecution's case. At trial, the prosecution presented evidence substantially as

described above, as well as the testimony of various percipient and expert witnesses

regarding G.'s injuries and statements made by Palacio and Miriam. Dr. Preeti Bansal, a

Rady pediatric opthalmologist, testified that on July 14, 2010, she examined G. and found

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he had extensive retinal hemorrhaging in all three layers of the retinas in both eyes.

Bansal testified that very few events could cause that type of injury, stating the "number

one" cause is "nonaccidental trauma from a shaking-type injury, where there is

acceleration and deceleration of the eye . . . ."

Dr. Jerry Dwek, a Rady pediatric radiologist, reviewed the CT scan performed on

G.'s brain at Scripps on July 14 and testified it showed a left subdural hematoma with an

area of bleeding and an area of old bleeding. He also testified the new bleed occurred

between a couple of hours and a couple of days before the scan. Although the other area

of old bleeding could not be dated, he stated it could not have occurred during birth

because such hemorrhages resolve or are absorbed by four weeks of age. Dwek stated

significant trauma is the primary cause of blood in the subdural space. One cause of that

trauma is shaking a baby because veins in the brain are ruptured. He testified that

"[b]lood equals trauma." He testified that either a subdural hemorrhage or the loss of

oxygen to the brain could cause a seizure.

Dr. Cynthia Kuelbs, a pediatrician and medical director of the Chadwick Center

for Children and Families at Rady, examined G. at Rady and reviewed all of his hospital

records, pediatric records, radiology and neurology reports, birth records, and

opthalmology records. Kuelbs testified the type of retinal hemorrhages G. had result only

from very significant trauma. That type of retinal hemorrhage would not be caused by

infection and any retinal hemorrhages from birth would have disappeared by two months

of age. She testified that shaking can cause a subdural hematoma. Furthermore, the

hypoxic injury G. suffered could have been caused by suffocation, by apnea and not

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breathing for a while, or by another brain insult that led to swelling and poor blood flow

to that area of the brain. Her study on hypoxia, published in 2008, showed none of the

150 children in the study who had gone without oxygen had suffered any bleeding in

neuroimaging studies. Kuelbs did not believe the lack of oxygen alone would cause a

subdural bleed. Furthermore, children who die from positional asphyxia generally do not

show any visible or physical signs of asphyxia.

According to Kuelbs, G. had hypoxic ischemic injuries. Both hypoxic injuries and

trauma can cause seizures. Kuelbs stated there was no evidence G.'s seizures were

caused by anything other than his July 13 brain injury. There was no evidence G.

suffered any seizures in the years after his brain injury cleared. The brain injury that

caused G.'s subdural hematoma could also have caused the increase in his intracranial

pressure. Crying and rescue breaths could not have caused an increase in his intracranial

pressure.

Kuelbs testified G. suffered trauma that caused his retinal hemorrhages and brain

injury (i.e., subdural hematoma) and led to his seizures. His trauma was consistent with

"some type of fast acceleration/fast deceleration," most commonly a shaking injury, but

could also have been caused by someone throwing him onto a soft surface. Regarding

G.'s hypoxic injury, she stated it was difficult to determine whether it was caused by the

brain trauma and resulting seizures or by a separate event such as suffocation.

Nevertheless, G.'s hypoxic injury was consistent with him being pressed into Palacio's

chest until he stopped breathing. G.'s injuries were consistent with having occurred

shortly before his admission into the hospital, but not back to the time of his birth

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because he had several months of care after his birth by a good pediatrician and had been

doing very well.

Jill Farabelli, a social worker who worked at Rady, testified that she met Palacio

and Miriam during the morning of July 14, 2010. Palacio told Farabelli what happened

before G. stopped breathing. He stated that he put G. in a swing and G. stopped

breathing. He stated G. had not been in an accident, experienced trauma, or had a recent

illness. Neither Palacio nor Miriam mentioned a shaking or smothering of G.

Mya Bryson, a child protective services supervisor, testified that on July 14, 2010,

she was called to Rady regarding a suspected child abuse case. On her arrival, Farabelli

briefed her, and Bryson then interviewed Palacio in G.'s room. Palacio stated the baby

had been planned and G. had not experienced any health problems. Palacio did not

mention any staring spells. Palacio had just returned from a short Navy deployment on

July 9. G. seemed to have a pickier demeanor on his return. He said G. was a fussy

child, spoiled, and colicky. Late on July 13, Palacio took care of G., who was crying in a

more high-pitched sound than normal, "almost like he was in pain." G. head-butted him

in the chin. While Palacio was holding him, G. went limp and stopped breathing.

Palacio did not mention pressing G.'s face into his chest or otherwise muffling or

smothering his cries. Palacio denied shaking G. He admitted he sometimes got frustrated

with G., especially when he cried.

Dr. Sarah Villarroel, a Navy general pediatrician and child abuse pediatrician,

testified she was consulted regarding G.'s case on July 14, 2010. During Bryson's

interview of Palacio, Villarroel entered the room and both she and Bryson questioned him

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while Farabelli was also present. Palacio did not mention that G. had any staring spells

or head-butting incidents. Starting about 10:30 p.m. on July 13, Palacio began holding

and walking around with G., but could not console him. He placed G. in a swing, but that

also did not calm him down. While Palacio was later carrying him, G. stopped breathing.

Palacio did not mention he pressed G.'s face into his chest or shook him. Palacio stated

he gave G. two rescue breaths without any chest compressions. Villarroel and Bryson

also interviewed Miriam, who did not mention any history of accident, trauma, or

seizures.

At about 5:00 to 6:00 a.m. on July 14, 2010, San Diego Police Detective Brooke

Lawson, who was assigned to the police department's child abuse unit, went to Rady in

response to a call. Farabelli had previously briefed Lawson on the telephone regarding

G.'s situation and the statements made by Palacio and Miriam. Lawson first interviewed

Miriam, who described the events leading up to G.'s hospital visit. She did not tell

Lawson that G. would stare off into the distance.

In a recorded two-hour interview, Lawson and another detective questioned

Palacio. Palacio stated he had recently returned from a 10-day Navy deployment.

Miriam's pregnancy with G. was "not exactly planned." G. had been healthy before the

July 13 event. Palacio did not mention any staring spells. He denied that G. had suffered

any accidents. He stated G. was fussy and occasionally head-butted him. Palacio told

Lawson that he cared for G. that night by holding him, rocking him, singing to him,

placing him in a swing, placing him facing away from him and then toward him, and

placing him on his lap and rubbing his back. While Palacio was holding G., he gave out

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a "cry from hell," went limp in his arms, and stopped breathing. Palacio stated he gave

G. two rescue breaths and revived him. Palacio repeatedly denied he shook G. During

the 45-minute period during which he tried to console G., he (Palacio) became angry and

frustrated by G.'s crying and his (Palacio's) body began shaking while holding G. Stating

it was a "lose-lose" situation, Palacio started to cry and admitted he held G. tightly

against his chest twice, trying to stop or muffle his crying, but making sure his nostrils

were visible. He stated that G. also head-butted him. Palacio denied throwing G. onto

the couch. Using a doll, Palacio demonstrated for Lawson how he cared for G. that

night.3 In one segment (Exh. 19), Palacio showed how he held G. tightly to his chest to

muffle his crying. In another segment (Exh. 20), Palacio showed how he held G.'s head

in his right hand and swung his body right and left while jiggling G.'s head up and down,

which he referred to as the shaking motion. Palacio stated that after the second time he

pressed G.'s face into his chest, G. stopped breathing. Palacio admitted he was "really

frustrated" with G.'s crying. He stated his "whole upper body was shaking" while he held

G. Lawson spoke with Miriam again on July 24 and, for the first time, she mentioned G.

had done "some staring in the past."

Kelly Monge, a child protective services supervisor, spoke with Miriam, her

mother and two of her sisters on July 29, 2010. Miriam and one sister stated they

believed G. had staring spells before he was hospitalized. On November 18, Monge

spoke with Palacio about what happened on July 13. He told her he was aware of his

3 Palacio's demonstration was videotaped and later played for the jury.

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behaviors (i.e., what he did) that night and believed his son's condition was due to those

behaviors. He told Monge he was going to try to learn a way to deal with his frustrations.

Defense case. Cathy P.-Sugatan, Miriam's oldest sister, testified in Palacio's

defense that when G. was four to six weeks old, on four or five occasions she saw his

eyes turn away from her for five to 10 seconds. G. would stare at nothing and his eyes

were not focused. She told Miriam about G.'s staring. However, on cross-examination,

she admitted she had not told Lawson there was anything wrong with G.'s eyes. She first

mentioned it to Monge on July 29, 2010. Christine Mathews, Miriam's other sister,

testified she never saw G. stare off into the distance. G. was very irritable and

inconsolable.

Palacio testified in his own defense. He stated he was 34 years old and

unemployed. He and Miriam were not married in 2010. Miriam's pregnancy was "sort of

planned," but they "weren't exactly ready to have a baby." He was separated from his

first wife and planning to divorce when G. was born. He stated he told Warner, G.'s

pediatrician, about G.'s staring spells. At about 10:00 p.m. on July 13, 2010, Miriam fed

G. and then Palacio told her he would take care of him. He changed G.'s diaper and

swaddled him in a blanket. He went to the living room with G. and held him while

walking back and forth, but G. continued to cry. As Palacio was moving G. to his left

shoulder to pat him on the back, G. jerked his head back and head butted him in the chin.

G. was sweating and trying to kick out of the swaddle. Palacio took off the swaddle, sat

on the couch, and placed G.'s stomach on his thigh and rubbed his back to relieve gas. G.

began crying hysterically and continued sweating. After additional efforts to relieve G.'s

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gas were unsuccessful, Palacio cradled G. in his forearm and rocked him back and forth.

When G. continued to cry hysterically, Palacio moved him in a figure-eight motion to

imitate the swing motion. G. cried louder than he had ever before, as if he was in pain.

Palacio was getting a little frustrated and held G. tighter to him. G. then began to jerk

around harder, rigidly straightened out his arms and legs, let out a loud cry, and then

stopped crying. Palacio then realized G. was not breathing. He did not believe he had

done anything to cause G. to stop breathing. Although he was frustrated with G., he was

not angry and denied hurting G. Using his CPR training, Palacio gave G. two rescue

breaths, sat him up, and patted him on the back. During the following five minutes, G.'s

breathing returned to normal. Palacio then woke Miriam up and told her G. had stopped

breathing. They then took G. to the hospital. During his interview with Lawson, he used

the word "shaking" as meaning the rocking and figure-eight motion he used while

holding G. securely. He denied shaking G. On cross-examination, Palacio denied he

pressed G. into his chest.

Dr. Michael Weinraub, a pediatrician, testified as a defense expert. He reviewed

G.'s birth records, pediatric records, hospital records from Scripps and Rady, Villarroel's

report, Lawson's reports, and Palacio's video recordings. G. did not have a normal birth

without complications. Miriam had preeclampsia and G.'s heart rate changed, which led

to a C-section birth. In a study published in 2008, four of 22 infants born by C-section

showed subdural hematomas and 32 of 101 infants born by vaginal deliveries had

subdural hematomas. He believes it is possible for bleeding from a birth injury to

continue weeks later. A condition called benign extra cerebral collection involves too

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much fluid on the brain and can be caused during birth. That excessive fluid can stretch

the bridging veins from the dura and make it bleed more easily. Although infection does

not directly cause subdural hematoma, it can cause a different kind of fluid on the brain

that can stretch the bridging veins and cause bleeding.

Weinraub testified that G.'s fetal distress was caused by compression of his head in

the birth canal. His variably decelerating heart rate was caused by some kind of brain

trauma (e.g., squeezing of the head or hypoxia). Molding of a baby's head so it can fit

through the birth canal can cause bleeding on the brain. The length of time G. spent in

the birth canal increased his chances of suffering a subdural hematoma during birth.

Weinraub disagreed that the existence of subdural hematoma blood necessarily meant a

child suffered trauma. Subdural hematomas can be caused by genetics, metabolism,

cancer, sickle cell, osteogenesis, coagulation disorders, ruptured aneurysm, and

hemophilia.

Weinraub also was concerned about the rapid increase in G.'s head circumference

after birth (i.e., from the 10th percentile at birth to the 80th percentile on July 14). He

believed that significant increase warranted testing (e.g., CT scan or MRI) to determine if

there were problems (e.g., extra fluid on the brain or subdural hematoma). In his opinion,

given G.'s history prior to July 14, he was not a "normal" baby.

Weinraub further stated G.'s medical status on July 14, 2010, was not solely

consistent with trauma, but could also have been the result of other nontrauma events

(e.g., apparent life-threatening event, infection, or thrombosis). Also, rescue breaths

could increase intracranial pressure, which could cause retinal hemorrhages and bleeding

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on the brain. G.'s increased white blood cell count was more likely due to infection than

head trauma or stress. His low platelet count meant he had a higher propensity to bleed

and was a greater sign of infection. His metabolic test showed metabolic acidosis, which

is consistent with infection and could cause his cellular systems to malfunction. He did

not have respiratory acidosis, a sign of smothering.

Weinraub testified the chronic or acute subdural hematoma shown on the Scripps

CT scan could have been caused by something other than nonaccidental trauma. G.'s

abnormal eye movements could be a sign of seizures. G.'s EEG on July 15, 2010,

showed four or five nonclinical seizures (i.e., electrical activity in brain without any body

shaking), which Weinraub believed were consistent with G.'s staring spells.

Weinraub stated retinal hemorrhages can be caused by accidental or nonaccidental

head trauma, ruptured aneurysm, infection, and increased intracranial pressure. He stated

G.'s retinal hemorrhages were caused by the significant increase in his intracranial

pressure, along with cofactors of infection and low platelet count. Severe crying can

cause increased intracranial pressure. Also, G.'s numerous blood draws and spinal taps

could have enhanced his retinal hemorrhages. He stated retinal hemorrhages cannot be

dated.

Weinraub testified G.'s October 18, 2010, MRI showed a significant acute rebleed.

However, there was no investigation of any cause other than his prior condition.

Weinraub stated, to a reasonable degree of medical certainty, G. had birth trauma that

resulted in a chronic subdural hematoma, which could bleed with little or no trauma. G.

bumped his head on Palacio's chin and cried worse because the bump triggered a bleed or

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thrombosis, as well as a seizure or shift in his brain that caused him to stop breathing.

G.'s October 18 MRI confirmed his opinion.

On cross-examination, Weinraub conceded the subdural hematomas in the 2008

study he cited resolved within three months and most resolved within one month. He

also conceded there were studies concluding that increased cranial pressure does not

cause retinal hemorrhages. He conceded shaking can cause retinal hemorrhages.

Dr. Patrick Barnes, a pediatric radiologist and pediatric neuroradiologist at the

Stanford University Medical Center, reviewed the MRIs and CT scans performed on G.

He also reviewed G.'s other medical records, Weinraub's report, and Dwek's PowerPoint

presentation. Barnes testified G.'s July 14, 2010, CT scan showed an acute hemorrhage,

his July 19 CT scan showed no recurring hemorrhage, but showed swelling of the brain,

and brain swelling was most likely related to the seizures G. suffered. G.'s July 14 MRI

showed there was no brain injury due to the lack of oxygen or blood flow or any brain

injury characteristic with smothering. G.'s October 18 MRI showed a new, large

hemorrhage. Imaging cannot distinguish between accidental and nonaccidental trauma.

Prosecution's rebuttal. In rebuttal, the prosecution played the audio recording of

Palacio's July 14, 2010, interview by Lawson (Exh. 63). During the interview, Palacio

stated that while he was holding G. really tight, "my whole upper body was shaking." G.

then stopped crying and Palacio put him down and noticed he had stopped breathing.

Jury's verdict and sentencing. The jury found Palacio guilty of felony child abuse

(§ 273a, subd. (a)) and found true both allegations. The trial court imposed, but

suspended execution of, an eight-year sentence, and granted Palacio five years of formal

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probation on the condition he serve 365 days in county jail. Palacio timely filed a notice

of appeal.

DISCUSSION

I

Substantial Evidence to Support Palacio's Conviction

Palacio contends the evidence is insufficient to support his conviction of felony

child abuse.

A

When a defendant challenges his or her conviction for insufficient evidence on

appeal, we apply the substantial evidence standard of review. "Under this standard, the

court 'must review the whole record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence--that is, evidence which is

reasonable, credible, and of solid value--such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial

evidence test is on the whole record of evidence presented to the trier of fact, rather than

on ' "isolated bits of evidence." ' " (People v. Cuevas (1995) 12 Cal.4th 252, 260-261,

italics added in Cuevas.) We "must presume in support of the judgment the existence of

every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990)

51 Cal.3d 294, 314.) Furthermore, "[a]lthough we must ensure the evidence is

reasonable, credible, and of solid value, nonetheless it is the exclusive province of the

trial judge or jury to determine the credibility of a witness and the truth or falsity of the

facts on which that determination depends. [Citation.] Thus, if the verdict is supported

16
by substantial evidence, we must accord due deference to the trier of fact and not

substitute our evaluation of a witness's credibility for that of the fact finder." (Ibid.)

"The standard of review is the same in cases in which the People rely mainly on

circumstantial evidence." (People v. Stanley (1995) 10 Cal.4th 764, 792.)

B

Section 273a, subdivision (a), defines the offense of felony child abuse, stating:

"Any person who, under circumstances or conditions likely to
produce great bodily harm or death, willfully causes or permits any
child to suffer, or inflicts thereon unjustifiable physical pain or
mental suffering, . . . shall be punished by imprisonment . . . ."

The willful causation of unjustifiable pain or mental suffering requires only a general,

and not a specific, criminal intent. (In re L.K. (2011) 199 Cal.App.4th 1438, 1445.)

Section 273a does not require the child actually sustain great bodily injury. (People v.

Clark (2011) 201 Cal.App.4th 235, 245.) Under section 273a's requirement of

"circumstances or conditions likely to produce great bodily harm or death," the term

"likely" means a substantial danger, or a serious and well-founded risk, of great bodily

harm or death. (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.)

The trial court in this case instructed the jury with CALCRIM No. 821 on the

elements of felony child abuse. The prosecutor argued in closing that Palacio inflicted

unjustifiable physical pain or mental suffering on G. by shaking him, which led to the

subdural hematoma and retinal hemorrhages, and by smothering him, which stopped his

breathing and led to his hypoxic ischemic brain injury. Palacio's defense counsel argued

there was no evidence Palacio smothered G. and no evidence proving beyond a

17
reasonable doubt that he caused G.'s subdural hematoma and retinal hemorrhages by

shaking him.

C

Based on our review of the whole record, we conclude there is substantial

evidence to support the jury's finding that Palacio committed the offense of felony child

abuse (§ 273a, subd. (a)). Warner testified G.'s well-baby examinations were normal and

neither parent expressed any concerns about him. On July 13, 2010, Palacio had recently

returned from a short Navy deployment, was working long hours, and was stressed.

After G. stopped breathing, he was taken first to Scripps and then to Rady. His CT scans

and MRIs showed he had subdural bleeding on the left side of his brain, with one part

new (i.e., within hours to days old) and the other part older. Dwek testified significant

trauma is the primary cause of subdural bleeding, and that trauma could be caused by

shaking a baby. Kuelbs testified G.'s trauma was from fast acceleration and deceleration,

most likely from shaking. Bansal testified G.'s severe retinal hemorrhaging was most

consistent with shaking or a very serious car accident. Kuelbs testified G.'s retinal

hemorrhages resulted only from very significant trauma, and any retinal hemorrhages

from birth would have been gone by two months of age. Tests ruled out infection or

other possible causes of G.'s subdural bleeding and retinal hemorrhages. Dwek testified

any subdural hemorrhages from G.'s birth would have been absorbed by four weeks of

age. Kuelbs testified there was no evidence showing a lack of oxygen alone can cause a

subdural bleed. Kuelbs testified brain trauma can cause seizures and there was no

evidence of any cause of G.'s seizures other than his July 13, 2010, brain injury. In

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Kuelbs's opinion, G. sustained a brain trauma most likely caused by shaking, which led to

his subdural hemorrhage, retinal hemorrhages and his seizures at Rady.

During his interview with Lawson, Palacio stated he was really frustrated after 45

minutes of G.'s crying and, while holding G. very tightly, he shook his whole upper body.

A videotape of Palacio's demonstration of how he held and moved with G. was shown to

the jury. Palacio told Monge he believed his son's condition was due to his (Palacio's)

behaviors, and he was going to try to learn a way to deal with his frustrations.

The above evidence is substantial evidence to support a finding by the jury that

Palacio's actions (i.e., shaking his whole upper body while holding G. very tightly and/or

pressing G.'s face twice into his chest to muffle the baby's crying) were willful and likely

to produce great bodily harm or death, and as a result G. suffered unjustifiable physical

pain or mental suffering. There is substantial evidence to support a finding that Palacio's

shaking of his body while holding G. caused G.'s subdural hematoma and retinal

hemorrhages. In addition, there is substantial evidence to support a finding that Palacio's

action in holding G. very tightly to his chest did, in effect, smother him and cause him to

stop breathing and suffer a hypoxic ischemic injury. While at Rady, G. had absent stare

seizures, and CT scans and MRIs showed his brain was swelling and suffered a death of

brain tissue. Although Kuelbs could not determine whether G.'s hypoxic injury was

caused by his brain trauma and resulting seizures or by a separate event like

smothering/suffocation, his hypoxic injury was consistent with Palacio pressing G. into

his chest until the baby stopped breathing. There is substantial evidence to support a

19
finding by the jury that Palacio's willful actions on July 13, 2010, caused G.'s subdural

hematoma and retinal hemorrhages, as well as his hypoxic injury.

The jury was not required to accept the alternative explanations provided by

Palacio's experts regarding other possible causes of G.'s injuries. To the extent Palacio

argues there is substantial evidence to support contrary findings by the jury and cites

evidence and inferences therefrom that would have supported a defense verdict, he

misconstrues and/or misapplies the substantial evidence standard of review.

Furthermore, to the extent California courts may have recognized Palacio's theory of

"equal circumstantial support" (see, e.g., U.S. v. Flores-Rivera (1st Cir. 1995) 56 F.3d

319, 323; Cosby v. Jones (11th Cir. 1982) 682 F.2d 1373, 1383),4 our review of the

whole record does not support application of that theory in this case. The evidence in this

case, when viewed most favorably to the verdict, does not give equal or nearly equal

circumstantial support to a theory of guilt or a theory of innocence of felony child abuse.

(Cf. U.S. v. Flores-Rivera, supra, 56 F.3d at p. 323.)

II

Motion for Evidence Code Section 402 Hearing and Purported Discovery Error

Palacio contends the trial court erred by denying his request for an Evidence Code

section 402 hearing on the foundation for the opinions of the prosecution's expert

4 Palacio does not cite, and we are unaware of, any California case adopting that
theory.

20
witnesses and/or by not requiring the prosecution to comply with its section 1054.1

discovery obligations regarding its witnesses.

A

On January 3, 2013, Palacio filed motions in limine, including a motion requesting

an Evidence Code section 402 hearing to allow him to examine the prosecution's experts,

except for Villarroel. He argued:

"The defense anticipates the prosecution will be relying on the
expert opinion of medical doctors to go beyond specific treatment
findings and will express opinions about the cause of the child's
injuries. Aside from Dr. Villarroel, the defense has not received any
formal reports or reference to the basis for the anticipated expert
opinion(s), rather, only a mention to 'the literature.' In contrast, the
prosecution possesses detailed reports by both potential defense
experts with a bibliography of the medical literature they relied upon
in reaching their opinions and conclusions. Consequently, Mr.
Palacio requests a hearing pursuant to Evidence Code sections 402
and 403 in order to examine the proposed experts on the basis of
their opinions. Such procedure is the only effective way for the
defense to ultimately conduct a meaningful cross-examination
regarding the witnesses' opinions. See generally Evidence Code
§ 721.

"Furthermore, the defense is entitled to evaluate whether 'the
literature' relied upon by the expert(s) are well-recognized and
accepted professional treatises, book[s] or articles in line with the
Kelly test. [Citations.] [¶] Thus, Mr. Palacio requests that the court
permit voir dire of the prosecution's proposed expert(s) outside the
presence of the jury prior to opening statements." (Italics added.)

At the hearing on Palacio's motion for an Evidence Code section 402 hearing, he

initially requested a hearing for all of the prosecution's experts, except for Villarroel--

who had testified at the preliminary hearing and provided a three-page report. He

subsequently stated he did not need to examine Reilly and Vandenburg based on the

21
assumption they would not be giving opinions on causation. The prosecutor represented

that Villarroel would testify only as G.'s treating physician, and "Dr. Kuelbs is going to

be our expert." Palacio stated he did not have anything on Kuelbs. The prosecutor

disagreed, stating he had the report provided by Villarroel, "which essentially Dr. Kuelbs

wrote. He has our follow-up meeting with her acknowledging that fact, and . . . the

testimony of Dr. Villarroel, which is going to be pretty much the same as Dr. Kuelbs with

the additional information." The prosecutor further represented: "Dr. Kuelbs will be the

only doctor who will give opinions . . . that this is a shaken baby, smothered baby. I

think Dr. Dwek talks a little bit about the brain findings. I have provided his PowerPoint

he has prepared to the defense in discovery this morning." Palacio confirmed that he had

received a one-page report from a prosecution investigator in which Dr. Kuelbs stated she

worked with Villarroel, assisted Villarroel in writing the report, and agreed with all the

report's conclusions. Palacio argued the Kuelbs/Villarroel report states there is no basis

in literature that an infection can cause a subdural hematoma or retinal hemorrhages like

G.'s, but does not cite any supporting medical literature for that opinion. Palacio argued:

"In order to have an effective cross-examination . . . , we need to know, at least to a

certain degree, the foundation for these witnesses' opinions outside the presence of the

jury, whether that's through a detailed report or whether that is through [an Evidence

Code section] 402 hearing." The prosecutor replied, noting the reports of Palacio's

experts (i.e., Weinraub and Barnes) contained little, if any, citations of medical literature

in support of their opinions.

22
 The trial court denied Palacio's motion for an Evidence Code section 402 hearing,

stating: "I think you [Palacio] have enough to go forward with. You are going to have

defense witnesses you are going to call and you can get a copy of the transcript [of

Kuelbs's trial testimony]. You can show it to your expert and if there's something

deficient in what she [i.e., Kuelbs] says, then your expert will point it out." Palacio asked

the court for clarification that his request for an Evidence Code section 402 hearing "as it

relates to Dr. Kuelbs" was denied. The court replied, "Yes."

B

"[A]ll court-ordered discovery is governed exclusively by―and is barred except as

provided by―the discovery chapter newly enacted by Proposition 115 [(i.e., §§ 1054 et

seq.)]." (In re Littlefield (1993) 5 Cal.4th 122, 129.) The reciprocal discovery

obligations of the prosecution and a criminal defendant are set forth in, respectively,

sections 1054.1 and 1054.3. Section 1054.1 provides:

"The prosecuting attorney shall disclose to the defendant or his or
her attorney all of the following materials and information, if it is in
the possession of the prosecuting attorney or if the prosecuting
attorney knows it to be in the possession of the investigating
agencies:

"(a) The names and addresses of persons the prosecutor intends to
call as witnesses at trial. [¶] . . . [¶]

"(f) Relevant written or recorded statements of witnesses or reports
of the statements of witnesses whom the prosecutor intends to call at
the trial, including any reports or statements of experts made in
conjunction with the case, including the results of physical or mental
examinations, scientific tests, experiments, or comparisons which
the prosecutor intends to offer in evidence at the trial." (Italics
added.)

23
Section 1054.5 provides the exclusive method for the court to enforce the parties'

discovery obligations, stating:

"(a) No order requiring discovery shall be made in criminal cases
except as provided in this chapter. This chapter shall be the only
means by which the defendant may compel the disclosure or
production of information from prosecuting attorneys . . . .

"(b) Before a party may seek court enforcement of any of the
disclosures required by this chapter, the party shall make an
informal request of opposing counsel for the desired materials and
information. If within 15 days the opposing counsel fails to provide
the materials and information requested, the party may seek a court
order. Upon a showing that a party has not complied with Section
1054.1 or 1054.3 and upon a showing that the moving party
complied with the informal discovery procedure provided in this
subdivision, a court may make any order necessary to enforce the
provisions of this chapter, including, but not limited to, immediate
disclosure, contempt proceedings, delaying or prohibiting the
testimony of a witness or the presentation of real evidence,
continuance of the matter, or any other lawful order. Further, the
court may advise the jury of any failure or refusal to disclose and of
any untimely disclosure.

"(c) The court may prohibit the testimony of a witness pursuant to
subdivision (b) only if all other sanctions have been exhausted. . . ."
(Italics added.)

Section 1054.7 provides: "The disclosures required under this chapter shall be made at

least 30 days prior to the trial, unless good cause is shown why a disclosure should be

denied, restricted, or deferred. . . ." If the evidence or other information required to be

disclosed is discovered within 30 days of trial, it must be disclosed to the other party

immediately. (§ 1054.7; People v. Verdugo (2010) 50 Cal.4th 263, 280.)

Under section 1054.1, subdivision (f), the term "reports" includes handwritten

notes of an expert in arriving at his or her expert opinion (People v. Hajek and Vo (2014)

24
58 Cal.4th 1144, 1233), and the term "statements" includes oral statements of a witness

whether directly stated to counsel or orally communicated to counsel by an investigator

or other third party (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 165-166).

On appeal, we review a trial court's ruling on a discovery motion for abuse of discretion.

(People v. Ayala (2000) 23 Cal.4th 225, 299.)

Evidence Code section 400 et seq. provides procedures for determining the

existence of a disputed preliminary fact on which the admissibility of evidence depends.

In particular, Evidence Code section 402 provides:

"(a) When the existence of a preliminary fact is disputed, its
existence or nonexistence shall be determined as provided in this
article.

"(b) The court may hear and determine the question of the
admissibility of evidence out of the presence or hearing of the
jury . . . .

"(c) A ruling on the admissibility of evidence implies whatever
finding of fact is prerequisite thereto; a separate or formal finding is
unnecessary unless required by statute."

On appeal, we review a trial court's ruling on a party's request for an Evidence Code

section 402 hearing for abuse of discretion. (People v. Slocum (1975) 52 Cal.App.3d

867, 888.)

C

To the extent Palacio asserts the trial court abused its discretion by denying his

request for an Evidence Code section 402 hearing, we conclude he has forfeited or

waived that assertion by not presenting any substantive legal analysis or argument

showing the court erred. "When an appellant fails to raise a point, or asserts it but fails to

25
support it with reasoned argument and citations to authority, we treat the point as

waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) "Where

a point is merely asserted by [appellant] without any [substantive] argument of or

authority for its proposition, it is deemed to be without foundation and requires no

discussion." (People v. Ham (1970) 7 Cal.App.3d 768, 783.) "Issues do not have a life

of their own: if they are not raised or supported by [substantive] argument or citation to

authority, we consider the issues waived." (Jones v. Superior Court (1994) 26

Cal.App.4th 92, 99; see Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th

691, 699-700; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488,

fn. 3; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2; Bayside

Auto & Truck Sales, Inc. v. Department of Transportation (1993) 21 Cal.App.4th 561,

571.)

D

Palacio's primary, if not sole, argument appears to be that the trial court erred by

not requiring the prosecution to comply with its discovery obligations under section

1054.1 by providing him with reports or statements of the prosecution's witnesses who

were expected to express opinions at trial. However, as the People assert, Palacio

forfeited or waived this argument by not complying with section 1054.5's prerequisites

and not moving under section 1054.5 for a court order requiring immediate disclosure or

other relief. Except as otherwise required by the United States Constitution, the parties'

discovery obligations in a criminal case and court orders for discovery are governed by

section 1054 et seq. (In re Littlefield, supra, 5 Cal.4th at p. 129.) Section 1054.5,

26
subdivision (b), provides: "Before a party may seek court enforcement of any of the

disclosures required by this chapter, the party shall make an informal request of opposing

counsel for the desired materials and information. If within 15 days the opposing counsel

fails to provide the materials and information requested, the party may seek a court

order." (Italics added.) Accordingly, a party may not seek a court order for disclosure

unless that party has first made an informal request of opposing counsel for the desired

materials and information. The California Supreme Court has held that section 1054.5's

required procedures for seeking court enforcement of the prosecution's discovery

obligations under section 1054.1 do not violate due process of law. (Izazaga v. Superior

Court (1991) 54 Cal.3d 356, 374.) Palacio does not cite to, and we are unaware of, any

document in the record on appeal showing he did, in fact, satisfy the requirement that he

make an informal request of the prosecution for certain materials and information.

Absent that request, Palacio was not entitled to seek a court order under section 1054.5

for immediate disclosure of the materials and information or other remedy. Furthermore,

there is nothing the record showing Palacio waited the required 15-day period before

filing a motion for immediate disclosure. Therefore, to the extent Palacio's in limine

motion sought relief under section 1054.5, the trial court did not err by denying that relief

because he did not comply with its prerequisites of first making an informal request for

such materials and information and waiting 15 days thereafter before filing his motion.

(§ 1054.5, subd. (b).) Palacio, in effect, forfeited or waived any argument that the

prosecution did not comply with its section 1054.1 discovery obligations.

27
 We further note Palacio's in limine motion wholly omitted any reference to

sections 1054.1 and 1054.5 and did not implicitly assert any violation of the prosecution's

section 1054.1 discovery obligations. On the contrary, as the People assert, his motion

expressly requested an Evidence Code section 402 hearing so that he could ascertain the

foundations for any opinions the prosecution's experts might give at trial. That is a

different issue than a section 1054.1 discovery issue. As noted above, section 1054.1,

subdivision (f), requires the prosecution to disclose "any reports or statements of experts"

whom the prosecution intends to call at trial. Palacio's in limine motion for an Evidence

Code section 402 hearing did not assert the prosecution had failed to disclose any reports

or statements of its experts. By not expressly or implicitly asserting below that the

prosecution had violated its section 1054.1 discovery obligations, Palacio forfeited or

waived any argument on appeal that the trial court erred by denying his motion for an

Evidence Code section 402 hearing.

E

In any event, assuming arguendo Palacio implicitly asserted below that the

prosecution violated its section 1054.1 discovery obligations and he satisfied the

requirements of section 1054.5, subdivision (b), we nevertheless would conclude any

violation of the prosecution's discovery obligations did not prejudice him. Palacio argues

that, without disclosure by the prosecution of the expert opinions of Drs. Kuelbs, Dwek,

and Bansal, he had no informed opportunity to prepare for, and cross-examine, those

prosecution experts regarding their opinions and establish doubt that G.'s retinal

hemorrhages were the product of shaken baby syndrome, and show they were instead the

28
product of accidental or other noninflicted trauma. In support of his argument, he filed a

request for judicial notice, asking that we take notice of seven articles or studies

published in medical journals. He states the purpose of his request is only to establish

"the fact that these studies existed at the time of trial" and not for the truth of the facts

asserted in those studies. However, Palacio does not persuade us the articles he submits

qualify for judicial notice under either Evidence Code section 452, subdivision (g) or (h),

or otherwise. Furthermore, we note those articles were not before the trial court at the

time it decided Palacio's in limine motion. Accordingly, we deny Palacio's request for

judicial notice and disregard the seven articles or studies submitted therewith in deciding

this appeal. (Evid. Code, §§ 452, 459, subd. (a).)

Assuming arguendo there is some controversy or disagreement regarding the

import of retinal hemorrhages and/or subdural hematomas in proving a baby has been

shaken, Palacio's counsel had G.'s medical records and Villarroel's report (which Kuelbs

apparently authored or co-authored) before trial, and therefore had notice the

prosecution's experts would testify that G.'s retinal hemorrhages and subdural hematomas

showed those injuries were most likely caused by nonaccidental trauma, such as shaking.

Therefore, Palacio cannot reasonably assert his counsel was "blindsided" by the

prosecution's failure to provide additional reports and statements of its experts pursuant

to section 1054.1, subdivision (f). Furthermore, Palacio does not cite any medical

literature on which Dwek and Bansal relied in forming their opinions and refers to only

one article on which Kuelbs relied. At trial, Palacio's counsel cross-examined Kuelbs

regarding that article and his defense experts refuted her opinion and the article on which

29
she relied. Even had the trial court granted Palacio's motion for an Evidence Code

section 402 hearing regarding the prosecution's opinions and foundations for those

opinions, it is not reasonably probable he would have obtained a more favorable result.

(People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) In denying Palacio's motion for

an Evidence Code section 402 hearing, the court stated his experts could review the trial

transcript of the testimony of the prosecution's expert witnesses and then refute those

opinions and/or foundations for those opinions when they subsequently testified for the

defense. Palacio does not show that scenario would not allow him and his experts an

opportunity to adequately prepare a defense to the testimony of the prosecution's experts.

Furthermore, as discussed above, Palacio's experts (i.e., Weinraub and Barnes) testified

extensively on the disputed issues of retinal hemorrhages and subdural hematomas and

the diagnosis of shaken baby syndrome, but the jury presumably found the testimony of

the prosecution's experts more persuasive. Palacio does not show he and his experts

likely would have persuaded the jury to reach a different verdict had he received the

Evidence Code section 402 hearing he requested. We conclude Palacio has not carried

his burden on appeal to show it is reasonably probable he would have obtained a more

favorable result had the court granted his motion.5 (Watson, supra, 46 Cal.2d at p. 836.)

5 We reject Palacio's conclusory assertion, citing Wardius v. Oregon (1973) 412
U.S. 470, that the trial court's denial of his motion violated his federal constitutional right
to due process of law. Wardius is factually and legally inapposite to this case.

30
 III

Admission of Navy Form

Palacio contends the trial court erred by denying his Evidence Code section 352

motion to exclude evidence regarding a Navy form he signed that changed his former

wife's address, and allowing the prosecutor to question him and argue to the jury based

on that form.

A

Before trial, Palacio filed an in limine motion seeking an order precluding the

prosecutor from referring to the fact he was married to another woman, Betsy Velasco,

when G. was born and later injured. He argued that evidence was irrelevant. The

prosecutor argued Palacio's marriage to Velasco was a fraudulent marriage to get a green

card for her and military benefits for him. The prosecutor expressed doubt Palacio ever

lived with Velasco, who was living in Illinois when G. was born. She argued that after

the Naval Criminal Investigative Service (N.C.I.S.) began investigating this issue

following G.'s birth, Palacio completed a Navy form changing Velasco's address to a

false San Diego address. The prosecutor argued that evidence showed Palacio's moral

turpitude and should be admitted if he testified at trial because it showed a pattern of

dishonesty. Although Palacio argued that evidence should be excluded under Evidence

Code section 352, the trial court disagreed and ruled the evidence would be admissible to

impeach him if he testified at trial.

At trial, Palacio testified on direct examination that he had married Velasco in

2007 when he was stationed in Illinois. When he moved to San Diego, she moved with

31
him, but then she became homesick, they separated, and she returned to Illinois in 2009.

In 2009, Palacio began dating Miriam, who became pregnant with his child (G.) that year.

G. was born in April 2010. Palacio and Velasco divorced in January 2011.

On cross-examination, Palacio admitted he told Lawson he starting living with and

having sex with Miriam in March 2008. He admitted he received a $150 per month

housing allowance from the Navy because of his marriage to Velasco. Velasco was a

Mexican citizen who received a Navy identification card and documentation based on her

marriage to him. The prosecutor asked Palacio whether it was true he had never lived

with Velasco, but he replied he had lived with her. The trial court sustained Palacio's

objection to the prosecutor's question whether he was aware he could be court-martialed

for adultery if the Navy learned he was married when he had a baby out of wedlock. The

court then overruled Palacio's objection to the prosecutor's question whether he had

concerns about his marriage and the fact the Navy would know he got married only for

the benefits. Palacio replied, "That's not why I got married." He admitted that on

July 22, 2010, he went to a Navy office and showed G.'s birth certificate to complete a

Navy form making him a dependent. He denied giving anyone at the office information

to change Velasco's address to a San Diego address. He testified he did not put that

address change information on the Navy form himself and "[s]omeone else typed it up."

He admitted that if the Navy form showed Velasco moved to San Diego on July 22, 2010,

it would be incorrect. He denied changing Velasco's address on the Navy form. He

stated that her address change on the form "[m]ust have been an error."

32
 In rebuttal, the prosecution presented the testimony of Romy Christensen, an

N.C.I.S. agent, who stated Exhibit No. 62 was an official Navy form, dated July 22, 2010,

which added G. as Palacio's dependent and also changed Velasco's address to a San

Diego address. It showed Palacio had signed the form, indicating he had reviewed it and

that its information was correct. The signature on that form appeared similar to

signatures on other Navy forms in Palacio's file.

In closing, the prosecutor argued the evidence showed Palacio lied when he

testified he did not make the change to Velasco's address on the Navy form. Referring to

the Navy form, she further argued in rebuttal that Palacio asked the jury to "listen to me

when I sit on the stand and actually lie to you about filling out certain forms and

statements that I made in the past."

B

We conclude the trial court did not abuse its discretion by admitting evidence

regarding the Navy form that changed Velasco's address and allowing the prosecutor to

argue based on that form that Palacio was lying when he stated he did not make that

change. Contrary to Palacio's assertion, there is evidence to support a finding he

requested the address change on the Navy form. The record shows Palacio went to the

Navy office and showed G.'s birth certificate. The Navy form shows G. was added as

Palacio's dependent and Velasco's address was changed to a San Diego address. The

form bears a signature similar to signatures on other forms in Palacio's Navy file. Based

thereon, the jury could reasonably infer, despite Palacio's denial, that he gave the Navy

the information for, and requested, the address change for Velasco. The jury could

33
reasonably reject any other possible explanation for that address change (e.g., as Palacio

suggests on appeal, a clerk's or computer error). Palacio did not present any testimony or

other evidence showing the Navy office could have obtained Velasco's San Diego

address from any source other than Palacio.

Based on the reasonable inference that Palacio did, in fact, request and make the

change in Velasco's address on that Navy form, the prosecutor could properly argue, and

the jury could reasonably infer, that Palacio was dishonest when he requested and made

that address change on the form and later testified at trial that he did not do so. The trial

court properly admitted the Navy form evidence as impeachment evidence showing

moral turpitude and was properly used by the prosecutor to attack his credibility. (Evid.

Code, § 780, subd. (e); cf. People v. Harris (2005) 37 Cal.4th 310, 337 [past criminal

conduct involving moral turpitude that relates to veracity of witness is admissible to

impeach that witness, subject to trial court's discretion to exclude under Evid. Code,

§ 352].) The trial court also properly overruled Palacio's objection and allowed the

prosecutor to ask him whether he was concerned about repercussions from the Navy

when he changed Velasco's address, which question was relevant to his credibility.6

6 Although Palacio also apparently challenges the trial court's overruling of his
relevancy objection to the prosecutor's question whether he had concerns about his
marriage and the fact the Navy would know he married only for benefits, he fails to show
that question is irrelevant. Furthermore, to the extent he now asserts that question was
improper as argumentative, he waived or forfeited that assertion by not timely objecting
below on that ground.

34
Likewise, the prosecutor reasonably questioned Palacio about his marriage to Velasco,

including whether he had ever lived with her.

Furthermore, to the extent Palacio asserts the prosecutor erred by arguing he was,

in effect, a liar or perjurer, he waived or forfeited that challenge by not timely objecting

below and requesting an admonition. (People v. Brown (2003) 31 Cal.4th 518, 553.) In

any event, we believe the prosecutor properly argued, in effect, that Palacio was not

entitled to credence based on the Navy form and other evidence. (People v. Pinholster

(1992) 1 Cal.4th 865, 948.)

In any event, assuming arguendo the trial court and prosecutor erred as Palacio

asserts, we nevertheless would conclude he has not carried his burden on appeal to show

it is reasonably likely he would have obtained a more favorable result had those errors

not occurred. (Watson, supra, 46 Cal.2d at p. 836; People v. Bain (1971) 5 Cal.3d 839,

849 (Bain).) At most, he argues in conclusory fashion that the purported errors are

prejudicial under the Watson standard. Furthermore, contrary to Palacio's assertion, the

errors of which he complains do not implicate or involve his right to due process of law

under the United States Constitution, which would invoke the more stringent standard for

prejudicial error (see, e.g., Chapman v. California (1967) 386 U.S. 18, 24 [the People

have the burden to show the federal constitutional error was harmless beyond a

reasonable doubt] (Chapman).)

35
 IV

Claims of Prosecutorial Error

Palacio contends the prosecutor committed prejudicial error in questioning

Bryson, Lawson and Weinraub. Palacio properly characterizes his claims as asserting

prosecutorial "error" rather than "misconduct." (People v. Hill (1998) 17 Cal.4th 800,

823, fn. 1.)

A

"A prosecutor's conduct violates the Fourteenth Amendment to the federal

Constitution when it infects the trial with such unfairness as to make the conviction a

denial of due process. Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only if it involves the

use of deceptive or reprehensible methods to attempt to persuade either the trial court or

the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) To preserve a claim of

prosecutorial misconduct or error, a defendant must timely object and request a curative

admonition unless an admonition would not have cured the harm caused by the

misconduct or error. (People v. Hinton (2006) 37 Cal.4th 839, 863; People v. Earp

(1999) 20 Cal.4th 826, 858.)

Absent a fundamentally unfair trial under the federal Constitution, prosecutorial

misconduct or error does not require reversal of the judgment unless it was prejudicial

under state law, i.e., it is reasonably probable the defendant would have obtained a more

favorable verdict absent the misconduct or error. (People v. Bell (1989) 49 Cal.3d 502,

534, 542 (Bell); People v. Castillo (2008) 168 Cal.App.4th 364, 386; People v. Crew

36
(2003) 31 Cal.4th 822, 839.) If the prosecutorial misconduct or error renders the

defendant's trial fundamentally unfair under the federal Constitution, reversal of the

judgment is required unless the misconduct or error is harmless beyond a reasonable

doubt. (Castillo, at pp. 386-387, fn. 9; People v. Bordelon (2008) 162 Cal.App.4th 1311,

1323-1324.)

"It is misconduct [i.e., error] for a prosecutor to ask a witness a question that

implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to

anticipate an answer confirming the implied fact or is prepared to prove the fact by other

means. [Citation.] But if the defense does not object, and the prosecutor is not asked to

justify the question, a reviewing court is rarely able to determine whether this form of

misconduct [i.e., error] has occurred. [Citation.] Therefore, a claim of misconduct [i.e.,

error] on this basis is waived absent a timely and specific objection during the trial."

(People v. Price (1991) 1 Cal.4th 324, 481 (Price).)

Although a prosecutor is given wide latitude in vigorously arguing the People's

case, the prosecutor may not misstate the law. (Bell, supra, 49 Cal.3d at p. 538; People v.

Bandhauer (1967) 66 Cal.2d 524, 529.) The prosecutor "has the right to fully state his

views as to what the evidence shows and to urge whatever conclusions he deems proper.

Opposing counsel may not complain on appeal if the reasoning is faulty or the

conclusions are illogical because these are matters for the jury to determine." (People v.

Thomas (1992) 2 Cal.4th 489, 526.) "It has long been settled that appeals to the

sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial.

[Citations.] We recognize that the prosecutor 'may vigorously argue his case and is not

37
limited to "Chesterfieldian politeness" ' [citations], but the bounds of vigorous argument

do not permit appeals to sympathy or passion such as that presented here." (People v.

Fields (1983) 35 Cal.3d 329, 362-363, fn. omitted.)

"[W]hen the claim focuses upon comments made by the prosecutor before the

jury, the question is whether there is a reasonable likelihood that the jury construed or

applied any of the complained-of remarks in an objectionable fashion." (People v.

Samayoa (1997) 15 Cal.4th 795, 841.) Even if an error could not be cured by an

admonition to the jury, reversal of a defendant's conviction is warranted only if on the

whole record the error resulted in a miscarriage of justice. (Bell, supra, 49 Cal.3d at

p. 535.)

B

Bryson. Palacio asserts the prosecutor prejudicially erred by questioning Bryson

whether he told her he had smothered G. As discussed above, Bryson interviewed

Palacio after G. was taken to Rady. She wrote a report regarding that interview. On

direct examination, the prosecutor asked Bryson whether Palacio told her he pressed G.'s

face into his chest. Bryson replied, "No." When asked whether Palacio told her about

muffling G.'s cries, Bryson answered, "I don't believe so." On cross-examination,

Palacio's counsel asked Bryson whether Palacio had told her that G.'s cries that night

were different in that they were high-pitched almost like he was in pain. Bryson

answered that Palacio told her G.'s cries were different, more high-pitched, and almost

like he was in pain. On redirect examination, the prosecutor asked Bryson whether

Palacio told her the reason G.'s cries became high-pitched was because he had just

38
smothered him. Bryson replied, "No." The prosecutor then asked Bryson whether

Palacio told her that after G.'s cries became high-pitched, he smothered G. a second time.

Palacio's counsel objected to that question as argumentative. After the trial court

overruled that objection, Bryson replied, "No."

Palacio asserts the prosecutor erred by asking Bryson the two questions on redirect

examination regarding whether he told her he smothered G. However, assuming

arguendo Palacio's counsel adequately objected to those questions, we nevertheless

conclude Palacio has not carried his burden on appeal to show those prosecutorial errors

caused a miscarriage of justice (i.e., it is reasonably probable he would have obtained a

more favorable result had the prosecutor not so erred).7 (Bell, supra, 49 Cal.3d at

pp. 534-535, 542; People v. Castillo, supra, 168 Cal.App.4th at p. 386; People v. Crew,

supra, 31 Cal.4th at p. 839.) Rather, he simply argues in conclusory fashion that the

court clearly erred by allowing "such prejudicial 'questions.' " Furthermore, based on our

review of the record, we believe the jury disregarded the prosecutor's apparent

argumentative and improper questions (for which the prosecutor apparently did not have

a good faith belief would be answered in the affirmative) as not statements of facts based

on evidence after Bryson answered those questions and denied that Palacio told her he

smothered G.

7 Palacio apparently does not, nor could he reasonably, argue those questions
violated his federal Constitutional right by "infect[ing] the trial with such unfairness as to
make [his] conviction a denial of due process." (People v. Morales, supra, 25 Cal.4th at
p. 44.)

39
 C

Lawson. Palacio asserts the prosecutor erred by allowing Lawson to falsely testify

that he (Palacio) shook G. and by falsely arguing to the jury that "there was shaking." A

prosecutor has a "constitutional duty to correct false testimony." (People v. Kasim (1997)

56 Cal.App.4th 1360, 1384.) It is also improper for a prosecutor to argue facts not in

evidence. (People v. Hill, supra, 17 Cal.4th at pp. 827-828.)

Lawson's recorded interview of Palacio was played for the jury. As described

above, during that interview Palacio stated he was jumping around and his whole upper

body was shaking back and forth while he tightly pressed G. against him. Palacio stated

he pressed G. into his chest to stop him from crying and did so again, even harder, after

G.'s "scream from hell." Palacio agreed with Lawson's description of that conduct as

"muffling" G.'s crying. The jury also viewed the videotapes of Palacio's demonstration of

his actions while holding G.

On direct examination, the prosecutor asked Lawson what Palacio told her he did

after the "scream from hell." Lawson replied:

"He describes again moving with the child, and he describes himself
shaking. He describes shaking the baby, there's a physical
movement also as he [is] giving the description. And that he again
placed baby G.'s face into his chest."

The prosecutor asked Lawson whether Palacio described his whole body as shaking.

Lawson replied, "Mr. Palacio described . . . his whole body as shaking, yes."

Palacio asserts the prosecutor did not correct Lawson's purported false testimony

that he told her he shook G. and smothered him. However, as the People argue, Palacio

40
waived or forfeited that claim by not timely objecting to that purported failure by the

prosecutor. (People v. Guerra (2006) 37 Cal.4th 1067, 1124 (Guerra); Price, supra, 1

Cal.4th at p. 481.) In any event, we conclude the prosecutor did not err as Palacio asserts.

In the context of Lawson's testimony, her statement that Palacio "describe[d] shaking the

baby" was not false. Before that statement, Lawson testified Palacio told her "[h]e

describes again moving with the child, and he describes himself shaking." She then gave

the challenged testimony that "[h]e describes shaking the baby, there's a physical

movement also as he [is] giving the description." A few questions later, the prosecutor

clarified Lawson's testimony, asking: "You said that [Palacio] had described his whole

body as shaking?" Lawson answered: "Mr. Palacio described . . . his own body as

shaking, yes." To the extent Lawson's initial testimony may have been misleading

regarding what Palacio stated he did, the prosecutor clarified that ambiguity and the jury

presumably understood that Lawson testified Palacio told her his whole body was

shaking as he held G. and not that he performed any independent act of separately

shaking G. Therefore, there was no false testimony by Lawson for the prosecutor to

correct.

Palacio also apparently challenges Lawson's testimony supporting a "smothering"

or "muffling" event. However, he does not cite to the record any use of the term

"smothering" by Lawson. Furthermore, although Lawson admitted she was the first to

use the term "muffling" when interviewing Palacio, that description was reasonable and

was, in effect, adopted by Palacio during the interview. According to Lawson (and as

confirmed by the recording and transcript of the interview), Palacio told her he held G.

41
tightly against his chest twice, trying to stop his crying, but making sure his nostrils were

visible. Palacio also demonstrated for her how he held G. Lawson reasonably inferred

Palacio's conduct was an attempt to muffle G.'s cries. Accordingly, Lawson's use of that

term during the interview and at trial was not false testimony and the prosecutor did not

err by not correcting it.

Finally, Palacio argues, again in conclusory fashion, that the prosecutor erred by

arguing to the jury that he "admitted to Detective Lawson . . . he . . . pressed the baby into

his chest and the baby stopped breathing and there was shaking . . . [¶] . . . and admitted

hurting his son." However, as the People argue, Palacio waived or forfeited that claim by

not objecting below. (Guerra, supra, 37 Cal.4th at p. 1124; Price, supra, 1 Cal.4th at

p. 481.) In any event, the evidence, as described above, supports that argument by the

prosecutor. Lawson testified Palacio told and/or showed her how he pressed G. into his

chest, that G. stopped breathing shortly thereafter, and that his whole upper body shook

while he was holding G. The prosecutor did not err by so arguing to the jury.

Assuming arguendo the prosecutor erred as Palacio asserts, we nevertheless would

conclude he has not carried his burden on appeal to show it is reasonably likely he would

have obtained a more favorable result had those errors not occurred. (Watson, supra, 46

Cal.2d at p. 836; Bain, supra, 5 Cal.3d at p. 849.) At most, he argues in conclusory

fashion that the purported errors are prejudicial under the Watson standard. Furthermore,

contrary to Palacio's assertion, the errors of which he complains do not implicate or

involve his right to due process of law under the United States Constitution, which would

42
invoke the more stringent standard for prejudicial error (see, e.g., Chapman, supra, 386

U.S. at p. 24).

D

Weinraub. Palacio asserts the prosecutor erred by asking Weinraub if he was

aware Barnes had changed his mind about the age of G.'s chronic bleed because the

evidence did not support that factual assertion. On direct examination by Palacio,

Weinraub testified the July 14, 2010, MRI showed mixed subdural hematoma, called

intermediate density, that had both acute and chronic bleeds. Weinraub testified that G.

had an "acute on chronic bleed" on that date. On cross-examination, the prosecutor asked

Weinraub: "[A]re you aware Dr. Barnes changed his opinion last night to say that the

chronic bleed is three to seven days old?" Palacio's counsel objected, arguing the

question misstated the evidence. The trial court overruled the objection. Weinraub then

answered: "I would have to look at that."

Barnes later testified that the July 14, 2010, CT scan showed different blood

collections that could be at least two to three weeks old and some less than two weeks

old. He also testified a side view of the scan showed there was blood that looked less

than two to three days old and blood at least two to three days old. He testified the range

was "somewhere between three and seven days old." He further testified that, after he

reviewed Dwek's PowerPoint presentation, he amended his own report dated

December 22, 2012, to add six words describing the July 14, 2010, MRI.

Assuming arguendo the prosecutor erred by misstating the evidence when she

asked Weinraub whether he was aware "Barnes changed his opinion last night to say that

43
the chronic bleed is three to seven days old" (referring to Barnes's addendum to his

report), we conclude Palacio has not carried his burden on appeal to show it is reasonably

probable he would have obtained a more favorable result had that error not occurred.

(Watson, supra, 46 Cal.2d at p. 836; Bain, supra, 5 Cal.3d at p. 849.) At most, he argues

in conclusory fashion that the purported error was prejudicial under the Watson standard.

Furthermore, contrary to Palacio's assertion, the error of which he complains does not

implicate or involve his right to due process of law under the United States Constitution,

which would invoke the more stringent standard for prejudicial error (see, e.g., Chapman,

supra, 386 U.S. at p. 24). Based on our review of the whole record, we conclude the

prosecutor's assumed error in questioning Weinraub was harmless under the Watson

standard.

Palacio also asserts the prosecutor erred by impeaching Weinraub with boxes in

the courtroom that were not in evidence. On direct examination by Palacio, Weinraub

testified he had reviewed certain records and reports regarding G.'s medical treatment and

care. On cross-examination, the prosecutor asked him how many pages of discovery he

had reviewed. Weinraub replied, "Certainly over 1,000." Later, Weinraub admitted he

had not seen a certain neurosurgery report included in the discovery documents. The

prosecutor referred to a cart in the courtroom, asking Weinraub: "And looking over at the

cart which is in the well which contains four banker's boxes full of documents, those are

all the records from [Rady] Children's Hospital, over 10,000 pages. Did you review

those?" Weinraub replied: "I did not review 10,000 pages of records." He admitted: "I

wasn't provided with 10,000 pages of documents from any source." Later, after

44
Weinraub testified G. had a bleeding disorder because he had a low platelet count and

that Rady had not completed a work up or final diagnosis, the prosecutor asked him how

he could know that and asked: "Did you review those 10,000 pages?" Weinraub admitted

he did not know whether a bleeding test had been performed.

During closing argument, the prosecutor argued Kuelbs was the only expert

witness who had reviewed the 10,000 pages of medical records. Palacio's counsel argued

Weinraub's opinion should not be discredited because he did not read all of the

documents in those boxes. His counsel questioned what was in those boxes and where

they came from. In rebuttal argument, the prosecutor argued Weinraub admitted he had

not looked at, or even received, all 10,000 pages of discovery.

Palacio argues the prosecutor had no foundation for her questions about the boxes.

However, as the People argue, Palacio waived or forfeited his claims by not objecting

below. (Guerra, supra, 37 Cal.4th at p. 1124; Price, supra, 1 Cal.4th at p. 481.)

Assuming arguendo the prosecutor erred as Palacio asserts, we nevertheless would

conclude he has not carried his burden on appeal to show it is reasonably likely he would

have obtained a more favorable result had those errors not occurred. (Watson, supra, 46

Cal.2d at p. 836; Bain, supra, 5 Cal.3d at p. 849.) At most, he argues in conclusory

fashion the purported errors are prejudicial under the Watson standard. Furthermore,

contrary to Palacio's assertion, the errors of which he complains do not implicate or

involve his right to due process of law under the United States Constitution, which would

invoke the more stringent standard for prejudicial error (see, e.g., Chapman, supra, 386

U.S. at p. 24). Furthermore, because Palacio has not carried his burden to show he was

45
prejudiced by the prosecutor's purported errors, he likewise has not carried his burden to

show he was denied his constitutional right to effective assistance when his counsel did

not object to those errors. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 697

[if defendant fails to show that absent defense counsel's deficient performance there is a

reasonable probability he or she would have obtained a more favorable result, the

defendant has not shown he or she was denied effective assistance of counsel and the

conviction must be upheld]; People v. Frye (1998) 18 Cal.4th 894, 978-979.)

V

Admission of G.'s Photograph

Palacio contends the trial court erred by denying his Evidence Code section 352

motion and admitting into evidence a photograph showing G.'s cranial bolt taken while

he was hospitalized at Rady.

A

Palacio moved in limine to exclude all photographs of G., arguing they had little

probative value or relevance and could inflame the passions of the jurors and had a

substantial danger of prejudicing him. During a hearing on the motion, the prosecutor

argued that Exhibit 17, a photograph of G. showing the cranial bolt in his head, was

relevant to show great bodily injury and help the jury to understand his care and

treatment. Palacio objected to that photograph, arguing it would be prejudicial and allow

the jurors to let their emotions into the case. The trial court overruled the objection,

finding the photograph was relevant to show what sort of medical treatment G. received

and help the jurors understand G.'s injuries and the concept of the bolt. The court found

46
the photograph's probative value outweighed its prejudicial effect. At trial, Villarroel

identified the photograph as depicting the bolt placed in G.'s head. The court admitted

the photograph into evidence.

B

"When a defendant makes a claim that photographs of the victim are unduly

gruesome or inflammatory, their admission lies within the broad discretion of the trial

court." (People v. Benavides (2005) 35 Cal.4th 69, 96.) The trial court's exercise of that

discretion will not be disturbed on appeal unless the probative value of the photographs

clearly is outweighed by their prejudicial effect. (Ibid.; People v. Heard (2003) 31

Cal.4th 946, 976.) Evidence is prejudicial when it uniquely tends to evoke an emotional

bias against a party as an individual, while having only slight probative value. (People v.

Hart (1999) 20 Cal.4th 546, 616.)

C

We conclude the trial court did not abuse its discretion under Evidence Code

section 352 by admitting the photograph of G. The court correctly found the photograph

was relevant to show what sort of medical treatment G. received and help the jurors

understand G.'s injuries and the concept of the bolt. It also found its probative value

outweighed its prejudicial effect. Based on our review of the photograph, we believe the

court properly exercised its discretion by admitting it. Although the photograph may be

disturbing or unsettling for some to view, it is not unduly gruesome so as to inflame the

passions of the jurors. (Cf. People v. Benavides, supra, 35 Cal.4th at p. 96.)

Furthermore, contrary to Palacio's apparent argument, the photograph was not cumulative

47
of other evidence (e.g., Villarreal's testimony). Although Villarreal testified regarding

the cranial bolt inserted into G.'s head, the photograph helped to clarify that testimony for

the jurors. (Ibid.)

In any event, assuming arguendo the trial court erred by admitting that

photograph, we nevertheless would conclude Palacio has not carried his burden on appeal

to show it is reasonably likely he would have obtained a more favorable result had that

error not occurred. (Watson, supra, 46 Cal.2d at p. 836; Bain, supra, 5 Cal.3d at p. 849.)

At most, he argues in conclusory fashion that the purported error was prejudicial under

the Watson standard. Furthermore, contrary to Palacio's assertion, the purported error

does not implicate or involve his right to due process of law under the United States

Constitution, which would invoke the more stringent standard for prejudicial error (see,

e.g., Chapman, supra, 386 U.S. at p. 24.) None of the cases cited by Palacio are apposite

to this case or persuade us to reach a contrary conclusion. (See, e.g., People v. Burns

(1952) 109 Cal.App.2d 524; People v. Marsh (1985) 175 Cal.App.3d 987; People v. Ellis

(Colo. 1978) 589 P.2d 494.)

VI

Cumulative Error

Palacio finally contends the cumulative prejudicial effect of all of the trial court's

and prosecutor's errors require reversal of his conviction. However, he argues only in

conclusory fashion that the purported errors were cumulatively prejudicial under the

Watson standard. Furthermore, contrary to Palacio's assertion, the purported errors do

not implicate or involve his right to due process of law under the United States

48
Constitution, which would invoke the more stringent standard for prejudicial error (see,

e.g., Chapman, supra, 386 U.S. at p. 24). None of the cases cited by Palacio are apposite

to this case or persuade us to reach a contrary conclusion. Based on our consideration of

all of the errors Palacio asserts, we conclude the cumulative prejudicial effect of those

purported errors was harmless (i.e., it is not reasonably probable he would have obtained

a more favorable result had those errors not occurred). (People v. Williams (2009) 170

Cal.App.4th 587, 646; Watson, supra, 46 Cal.2d at p. 836.)

DISPOSITION

The judgment is affirmed.

McDONALD, J.
WE CONCUR:

BENKE, Acting P. J.

NARES, J.

49