People v. Stewart CA4/1

Filed 9/11/15 P. v. Stewart 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D068075

Plaintiff and Respondent,

v. (Super. Ct. No. FSB1000880)

TRAVON STEWART,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County, R.

Glenn Yabuno, Judge. Affirmed.

Catherine White, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Amanda E.

Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
 This case arose from the death of Dakari P., the infant child of defendant Travon

Stewart and his girlfriend, K.P. A San Bernardino County Superior Court jury found

Travon Stewart guilty of two felonies: (1) assault resulting in the death of a child under

eight years of age (hereafter also referred to as child assault homicide) (count 1: Pen.

Code,1 § 273ab, hereafter section 273ab); and (2) willfully causing injury to a child

(count 2: § 273a, subd. (a), hereafter section 273a(a)). The jury found to be true a count

2 allegation that Stewart personally inflicted great bodily injury upon Dakari (§ 12022.7,

subd. (d).) The trial court sentenced Stewart to 25 years to life in state prison for his

conviction of count 1 and imposed but stayed under section 654 a term of four years for

his conviction of count 2.

Stewart raises eight contentions on appeal: (1) the court prejudicially erred by

failing to sua sponte give a unanimity instruction instructing the jury that it was required

to agree unanimously on the facts supporting the child assault homicide charge (count 1);

(2) the court's "erroneous instruction on the assault element of the count one offense,

coupled with the prosecutor's legally erroneous theory of culpability and the court's

inadequate answer to the jury's question on willfulness, violated due process and requires

reversal"; (3) the court's failure to instruct the jury on simple assault and aggravated

assault as lesser included offenses of count 1 requires reversal; (4) the court abused its

discretion by denying Stewart's motion for a mistrial after the prosecutor questioned a

defense expert about what Stewart claims was evidence of old rib injuries that was

1 All further statutory references are to the Penal Code unless otherwise specified.
2
excluded by an in limine ruling; (5) the prosecutor committed misconduct three times and

thereby rendered the trial fundamentally unfair; (6) his conviction of child assault

homicide must be reversed because the court's instruction under CALCRIM No. 362

relating to consciousness of guilt was a "one-sided instruction" that failed to tell the jury

it could rely on evidence of his postincident conduct as a factor tending to prove he was

not guilty of that offense; (7) his conviction of child assault homicide must be reversed

because section 273ab is "an end run around the due process requirement of proving

malice and premeditation in cases where an assault results in the death of a child"; and

(8) even if none of the foregoing errors requires reversal when considered separately, the

cumulative effect of the errors deprived Stewart of a fair trial.

We affirm the judgment.

FACTUAL BACKGROUND2

A. The People's Case

In March 20103 K.P. and Stewart were the parents of two children: two-month-

old Dakari and toddler M.P. (together the children).

On March 3, at around 9:00 a.m., K.P. left Stewart alone in their apartment with

the children while she went to the grocery store located across the street from the

2 The following witnesses testified for the prosecution: K.P.; Paul Palsson, a
firefighter paramedic; Patricia Kellogg, a paramedic; and two medical experts, Dr. Mark
Massi and Dr. Steven Trenkle. Dr. Janice Orphoven, the defense medical expert, testified
for the defense.

3 All further dates are to calendar year 2010 unless otherwise specified.

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apartment complex. The children were asleep when she left. Before she left, K.P. gave

Stewart instructions on how to care for the children. K.P. left the store to return home

about 37 minutes after she left the apartment

Dakari awoke while K.P. was gone and started to cry. M.P. then woke up and

started to cry so that both children were crying at the same time. Stewart later admitted

to the police during a video-recorded and transcribed interview4 that he "rocked [Dakari]

hard" so that the baby would "be quiet." Stewart acknowledged he caused Dakari's head

to "go back and forth pretty violently" to the point that Dakari's eyes rolled back. Stewart

also acknowledged that he dropped Dakari on the bathroom floor by the toilet after he

"rocked" Dakari hard and then bathed him in the bathtub. Dakari cried the entire time he

was being bathed. Dakari's breathing was abnormal from the moment Stewart took him

out of the tub. Stewart noticed a "knot" on Dakari's head, and he tried to hide it by

putting a beanie cap on Dakari's head so that K.P. would not see the injury. He then put

Dakari in his crib.

K.P. testified that when she returned home, Dakari was lying in his crib "like he

was asleep." K.P. called 911 and Stewart ran into the street to ask for help. When

paramedics arrived, Stewart was very hostile and behaved in a threatening manner while

screaming out of control. Stewart did not inform K.P. or the paramedics that he had

injured Dakari.

4 The video recording of the police interview was played for the jury during trial,
and both the recording and the transcript were admitted in evidence. During
deliberations, the jury asked to view the video-recording again.
4
 Dakari was resuscitated and he regained a pulse before he arrived at the hospital,

but he was still unable to breathe on his own and he was placed on a ventilator to keep

him alive. The doctors declared Dakari brain-dead the following day, March 4, but he

was kept on life support for several more days.

San Bernardino Police Department Detective Anthony King interviewed Stewart.

As we shall discuss more fully, post, Stewart repeatedly lied by falsely telling the officer

that Dakari was his cousin, and he repeatedly lied about how Dakari was injured.

Dakari was taken off of life support on March 8. Dr. Steven Trenkle, a forensic

pathologist who performed an autopsy on Dakari, opined Dakari's death was not

accidental, but was an intentionally inflicted homicide. Dakari had a four-inch-long skull

fracture that ran from the right side parietal bone, which is above the ear, to the occipital

bone, which is at the back of the head. The fracture was not a thin fracture. The edges of

the fracture had spread apart as a result of significant swelling of the brain. There was

bleeding between the dura and the brain, indicating Dakari had suffered a trauma from a

"moving head" injury. Dakari had several subarachnoid hemorrhages, which are

hemorrhages that are between the brain and the arachnoid membrane. This type of

bleeding is typically seen when there has been an impact.

According to the expert testimony of Dr. Mark Massi, a forensic pediatrician, and

Dr. Trenkle, Dakari also had hemorrhages around the optic nerve of both eyes, with the

hemorrhaging going through multiple layers of his left eye. This type of hemorrhaging

typically is seen in trauma deaths. In addition to an impact to Dakari's head that caused

the scalp swelling and the break in the skull, some sort of shaking also was involved.

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The edges of Dakari's retina were folded upward, which is consistent with child abuse

where the baby has been shaken. Based on the severity of the retinal hemorrhaging, the

presence of a folded retina and blood between multiple layers of the brain, and Stewart's

admission that he shook Dakari, the People's medical experts opined that Dakari suffered

acceleration-deceleration injuries. Acceleration-deceleration injuries occur when a baby

is shaken and the head is made to move through space and the head is speeding up and

slowing down and changing direction.

B. The Defense

Dr. Janice Orphoven, the defense medical expert, was the only witness who

testified for the defense. Dr. Orphoven received training in pediatric forensic pathology

and worked in that field. From 2010 to the time of the trial in this matter in January

2013, with the exception of two or three consultations from prosecutors, her work

involved testifying and working with the defense in criminal cases. Dr. Orphoven opined

that Dakari died from complications from blunt force trauma to his head, and the injury

was consistent with his being accidentally dropped four to five feet. She also opined

there was no evidence of any shaking.

DISCUSSION

I. FIRST CLAIM OF COUNT 1 INSTRUCTIONAL ERROR
(FAILURE TO GIVE A UNANIMITY INSTRUCTION)

Stewart first contends his conviction of child assault homicide (count 1) must be

reversed because the court prejudicially erred by failing to give, sua sponte, a unanimity

6
instruction informing the jury it was required to agree unanimously on the facts

supporting that count. We reject this contention.

A. Background

Stewart was charged in count 1 with assault resulting in the death of Dakari, a

child under eight years of age (§ 273ab), and in count 2 with willfully causing injury to a

child (§ 273a(a)).

As pertinent here, the court instructed the jury under CALCRIM No. 821 that a

violation of count 2 included a criminal negligence element:

"To prove [Stewart] is guilty of this crime, the People must prove
that . . . [he] was criminally negligent when he caused or permitted
the child to be injured." (Italics added.)

The court also instructed the jury under CALCRIM No. 821 on the meaning of the

term "criminal negligence": "Criminal negligence involves more than ordinary

carelessness, inattention, or mistake in judgment. A person acts with criminal negligence

when: [¶] 1. He or she acts in a reckless way that is a gross departure from the way an

ordinarily careful person would act in the same situation; [¶] 2. The person's acts amount

to disregard for human life or indifference to the consequences of his or her acts; [¶]

[and] [¶] 3. A reasonable person would have known that acting in that way would

naturally and probably result in harm to others." (Italics added.)

During her closing argument, the prosecutor told the jury that the People's factual

theory of guilt regarding count 1 was that Stewart shook Dakari and slammed him onto a

hard surface, causing his skull to fracture. In her rebuttal argument, the prosecutor

focused on the negligence element of count 2, not on count 1. The prosecutor argued

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that, "[a]s far as [Stewart's] negligence goes, it's not just about not calling 9-1-1," he

covered Dakari's head injury with a beanie and he never told anybody about the injury.

B. Applicable Legal Principles

"[T]he requirement of jury unanimity in criminal cases is of constitutional origin."

(People v. Jones (1990) 51 Cal.3d 294, 321, citing Cal. Const., art. I, § 16.) As this court

explained in People v. Muniz (1989) 213 Cal.App.3d 1508, 1517, "[i]t is well established

that the entire jury must agree upon the commission of the same act in order to convict a

defendant of the charged offense."

"When an accusatory pleading charges the defendant with a single criminal act,

and the evidence presented at trial tends to show more than one such unlawful act, either

the prosecution must elect the specific act relied upon to prove the charge to the jury, or

the court must instruct the jury that it must unanimously agree that the defendant

committed the same specific criminal act." (People v. Melhado (1998) 60 Cal.App.4th

1529, 1534.) "The duty to instruct on unanimity when no election has been made rests

upon the court sua sponte." (Ibid.)

However, under the "continuous conduct" rule a unanimity instruction is not

required when "the acts alleged are so closely connected as to form part of one

transaction" or "the defendant offers essentially the same defense to each of the acts, and

there is no reasonable basis for the jury to distinguish between them." (People v.

Stankewitz (1990) 51 Cal.3d 72, 100 (Stankewitz).) "Neither an election nor a unanimity

instruction is required when the crime falls within the 'continuous conduct' exception."

(People v. Salvato (1991) 234 Cal.App.3d 872, 882.)

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 "[P]roof of a course of conduct offense will usually consist of evidence of various

incidents occurring over a period of time." (People v. Hamlin (2009) 170 Cal.App.4th

1412, 1451.) "A continuous course of conduct, by its nature, may stop and start."

(People v. Rae (2002) 102 Cal.App.4th 116, 124 (Rae).)

1. Standard of review

The propriety of a trial court's decision to give or refuse any particular instruction

in a case involves a mixed question of law and fact that is a predominantly legal one that

should be examined without deference. (People v. Waidla (2000) 22 Cal.4th 690, 733.)

Thus, "assertions of instructional error are reviewed de novo." (People v. Shaw (2002)

97 Cal.App.4th 833, 838, citing Waidla, supra, 22 Cal.4th at p. 733.)

C. Analysis

Stewart contends the prosecution's theory of criminal liability as to count 1 was

that "the . . . act that resulted in Dakari's death" was: (1) shaking Dakari, (2) slamming

Dakari's head against a hard surface, or (3) failure to act (specifically, the failure to call

911). He complains that "[t]he prosecutor never elected to choose which 'act' served as

the basis for the [count 1] charge," and the court "never instructed the jury that it must

unanimously agree on the act in determining [his] guilt on [count 1]."

As a preliminary matter, we note that, contrary to Stewart's contention, the

prosecution did not argue the failure-to-act theory as to count 1. During her closing

arguments, the prosecutor told the jury that the People's factual theory of guilt regarding

count 1 was that Stewart shook Dakari and slammed him onto a hard surface, causing his

skull to fracture. The prosecutor reiterated her argument by telling the jury the evidence

9
showed "that when [Stewart] acted, did the act of shaking, slamming, that a reasonable

person would have understood that those acts, the nature of those acts would directly and

probably result in great bodily injury." (Italics added.) Soon thereafter the prosecutor

again reiterated her argument by stating that "the act that the People are alleging is the act

of shaking, the act of slamming." (Italics added.)

The record also shows the prosecution presented the failure-to-act evidence to

prove Stewart's guilt of the count 2 offense of willfully causing injury to Dakari in

violation of section 273a(a). In her rebuttal argument the prosecutor focused not on

count 1, but on the negligence element of count 2, arguing that, "[a]s far as [Stewart's]

negligence goes, it's not just about not calling 9-1-1"; he "took the time and he bothered

to put that beanie on [Dakari] when he noticed a bump [on Dakari's head]"; and he never

told anybody about Dakari's injury.

We conclude the court was not required to give a unanimity instruction with

respect to count 1 because Stewart's alleged acts of shaking and slamming Dakari

constituted a continuous course of conduct, and thus the court did not commit

instructional error by failing to give such an instruction. Here, Dakari's mother, K.P.,

testified that on the day of the incident in question, she left Stewart alone in their

apartment with Dakari and his sibling at around 9:00 a.m. while she went to the grocery

store across the street from the apartment complex. K.P. also testified that she left the

store to return home about 37 minutes after she left the apartment. Thus, the evidence

shows Dakari was under Stewart's care in the same location for a little more than 37

minutes.

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 In addition, Stewart acknowledged during his video-recorded and transcribed

interview by the police that, during that short period of time, he caused Dakari's head to

"go back and forth pretty violently" to the point that Dakari's eyes rolled back. The

transcript of the interview shows that the following exchange occurred between Detective

King and Stewart:

"[Stewart]: Sir, I was in the room and [Dakari] was crying. I was
going like this.

"[Detective King]: Okay. See that—

"[Stewart]: But I did not—

"[Detective King]:—makes a little more sense.

"[Stewart]: —I did not do this. I didn't do this. I was like this.

"[Detective King]: Okay. But you were shaking his head back and
forth pretty violently . . . . [¶] . . .

"[Stewart]: I wasn't going like this. This is (unintelligible).

"[Detective King]: I'm not saying . . . you had . . . your hands like
that, but you were causing his head to go back and forth pretty
violently.

"[Stewart]: Yeah, by patin' [sic] and goin' like (thumping sound)—
like that.

"[Detective King]: Okay.

"[Stewart]: Tryin' to get him rockin' like, eh, be quiet. Jeez, be
quiet.

"[Detective King]: Okay. So you were rocking his head back and
forth pretty violently?

"[Stewart]: Yeah, but I didn't—no, not like this. You make it seem
like—

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 "[Detective King]: TRAVON. TRAVON—

"[Stewart]: You make it seem like I—I was doin' this intentionally."

Shortly thereafter the following exchange took place:

"[Detective King]: "You shook that head back and forth violent
enough to cause those injuries. You did. Okay. That's all I care
about, the why? I mean, were you—were you stressed?

"[Stewart]: "No, I was—he was crying. I'm trying to get him quiet.

"[Detective King]: And you were . . . stressed. Were you stressed or
not?

"[Stewart]: Yeah. I wasn't angry."

The expert medical testimony presented by the prosecution showed that an impact

to Dakari's head caused scalp swelling and the fracture of his skull and that some sort of

shaking was involved. It also demonstrated that Dakari had hemorrhages around the

optic nerve of both eyes, the hemorrhaging went through multiple layers of his left eye

and this type of hemorrhaging typically is seen in trauma deaths. Dr. Trenkle, the

forensic pathologist who performed an autopsy on Dakari, opined that Dakari's death was

an intentional homicide.

From the foregoing evidence, we conclude that the acts on which the prosecution

relied in arguing Stewart was guilty of count 1─the shaking of Dakari and the slamming

of Dakari's head against a hard surface during the short period of time Dakari was in

Stewart's care in the apartment while K.P. was across the street shopping─were "so

closely connected as to form part of one transaction" (Stankewitz, supra, 51 Cal.3d at p.

100) within the meaning of the continuous-course-of-conduct rule. As shown by defense

12
counsel's closing arguments, Stewart tendered essentially the same defense to each of the

two alleged assaults: he did not intentionally shake Dakari, and he did not intentionally

inflict the baby's head trauma.

Stewart's reliance on People v. Hernandez (2013) 217 Cal.App.4th 559, is

unavailing. The Hernandez court explained that "a continuous course of conduct exists

when the same actor performs the same type of conduct at the same place within a short

period of time, such that a jury cannot reasonably distinguish different instances of

conduct." (Id. at p. 573, italics added.) Hernandez is distinguishable because it involved

two charged acts that did not constitute one continuous course of conduct because they

were separated by time and space: the defendant's alleged possession of a firearm at the

domestic violence victim's house and his alleged subsequent possession of a firearm

hidden in his car at another location. (Id. at pp. 570-571, 576.) Here, the continuous

course of conduct exception applies because the prosecution's evidence showed that "the

same actor [(Stewart)] perform[ed] the same type of conduct [(shaking and slamming

Dakari)] at the same place [(Stewart and K.P.'s apartment)] within a short period of time

[(a little more than 37 minutes)], such that a jury [could not] reasonably distinguish

different instances of conduct." (Id. at p. 573.)

For all of the foregoing reasons, we conclude the court did not err in failing to

give, sua sponte, a unanimity instruction as to count 1.

II. SECOND CLAIM OF COUNT 1 INSTRUCTIONAL ERROR

Stewart next claims that his count 1 conviction of child assault homicide should be

reversed because the court's "erroneous instruction on the assault element of the count 1

13
offense, coupled with the prosecutor's legally erroneous theory of culpability and the

court's inadequate answer to the jury's question on willfulness, violated due process." In

support of this claim, Stewart asserts that (1) the court instructed the jury under

CALCRIM No. 820 on the elements of count 1, but it did not define the terms

"application of force" and "apply force" used in that instruction, and it thereby "allowed

the jury to find [count 1] true without ever finding [that he] assaulted Dakari"; (2) the

prosecutor presented a legally erroneous theory of culpability by telling the jury he could

be found guilty of count 1 "for the 'act' of failing to call 911"; and (3) when the jury asked

for a definition of the term "willfully" used in CALCRIM No. 820, the court

"compounded the error" by referring the jury back to the instructions, including

CALCRIM No. 820.

Stewart's claim of count 1 instructional and cumulative error is unavailing.

A. Background

1. CALCRIM No. 820

The court instructed the jury on the elements of count 1 by giving the following

modified version of CALCRIM No. 820:

"The defendant is charged in Count 1 with killing a child under the
age of 8 by assaulting the child with force likely to produce great
bodily injury.

"To prove that the defendant is guilty of this crime, the People must
prove that:

"1. The defendant had care or custody of a child who was under the
age of 8;

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"2. The defendant did an act that by its nature would directly and
probably result in the application of force to the child;

"3. The defendant did that act willfully;

"4. The force used was likely to produce great bodily injury;

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

"6. When the defendant acted, he had the present ability to apply
force likely to produce great bodily injury to the child;

"AND

"7. The defendant's act caused the child's death[.]

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

"Great bodily injury means significant or substantial physical injury.
It is an injury that is greater than minor or moderate harm.

"An act causes death if:

"1. The death was the natural and probable consequence of the act;

"2. The act was a direct and substantial factor in causing the death;

"AND

"3. The death would not have happened without the act.

"A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes.
In deciding whether a consequence is natural and probable, consider
all of the circumstances established by the evidence.

"A substantial factor is more than a trivial or remote factor.
However, it does not need to be the only factor that caused the
death." (First, second and third italics added.)

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 2. Jury's request for a definition of "willfully"

During deliberations the jury foreperson sent the following note to the court,

requesting a definition of the term "willingly": "Can we get a better or clearer definition

of the word: 'willfully' and possibly some examples of that definition." (Italics added.)

The court's written response stated: "Please refer to all of the instructions,

including [CALCRIM No.] 820."

B. Analysis

Stewart's claim of count 1 instructional error is premised in part on his contention

that, when the court instructed the jury under CALCRIM No. 820 on the elements of

count 1, it did not define the terms "application of force" and "apply force" used in that

instruction. The Attorney General asserts that Stewart forfeited his claim "because he

did not request any clarifying instructions to define [those] terms." We agree.

Our Supreme Court has explained that, "'[g]enerally, a party may not complain on

appeal that an instruction correct in law and responsive to the evidence was too general

or incomplete unless the party has requested appropriate clarifying or amplifying

language.'" (People v. Guiuan (1998) 18 Cal.4th 558, 570 (Guiuan), italics added.)

Here, Stewart does not challenge the correctness of CALCRIM No. 820. Rather,

he complains that the instruction was too general and the court should have provided a

clarifying instruction that would have given the jury additional guidance on the meaning

of the terms "application of force" and "apply force" used in that instruction. Stewart

16
does not dispute that he failed to request a clarifying instruction regarding the meaning of

those terms, which he characterizes as "critical elements" of count 1.

Thus, we conclude Stewart forfeited his claim of instructional error because he did

not request that the court give a clarifying instruction on the meaning of those terms.

(Guiuan, supra, 18 Cal.4th at p. 570; People v. Valdez (2004) 32 Cal.4th 73, 113 (Valdez)

["Defendant did not request the clarifying language he now contends was crucial and may

not now 'complain on appeal that an instruction correct in law and responsive to the

evidence was too general or incomplete.'"].)

Stewart's claim of count 1 error is also premised on his contention that the

prosecutor presented a "legally erroneous" theory of count 1 culpability by telling the

jury he could be found guilty of count 1 by failing to call 911. However, we have already

concluded that the prosecutor did not argue the failure-to-act theory as to count 1. As we

discussed, ante, the record shows that the prosecution presented the failure-to-act

evidence to prove Stewart's guilt of the count 2 offense of willfully causing injury to

Dakari in violation of section 273a(a).

Stewart also asserts that, when the jury asked for a better or clearer definition of

the term "willfully" used in CALCRIM No. 820, the court "compounded the error" by

referring the jury back to the instructions, including CALCRIM No. 820. This contention

is unavailing. "Where the original instructions are themselves full and complete, the

17
court has discretion under section 1138[5] to determine what additional explanations are

sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53

Cal.3d 68, 97; accord, People v. Davis (1995) 10 Cal.4th 463, 522.)

Here, the version of CALCRIM No. 820 that the court gave to the jury fully and

completely defined the term "willfully." Specifically, that instruction informed the jury

that "[s]omeone commits an act willfully when he or she does it willingly or on purpose.

It is not required that he or she intend to break the law, hurt someone else, or gain any

advantage." No further definition of the term "willfully" was required. Accordingly, we

conclude the court acted within its discretion when it responded to the jury's request for a

"better or clearer definition" of the term "willfully" by telling the jury, "Please refer to all

of the instructions, including [CALCRIM No.] 820."

III. THIRD CLAIM OF COUNT 1 INSTRUCTIONAL ERROR
(LESSER INCLUDED OFFENSES)

Stewart also contends the court's prejudicial failure to instruct the jury on simple

assault and aggravated assault as lesser included offenses of count 1 (child assault

homicide) requires reversal. This contention is unavailing.

5 Section 1138 provides: "After the jury have retired for deliberation, if there be
any disagreement between them as to the testimony, or if they desire to be informed on
any point of law arising in the case, they must require the officer to conduct them into
court. Upon being brought into court, the information required must be given in the
presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel,
or after they have been called."
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 A. Applicable Legal Principles

1. Duty to instruct sua sponte on lesser included offenses

"The trial court is obligated to instruct the jury on all general principles of law

relevant to the issues raised by the evidence, whether or not the defendant makes a formal

request." (People v. Blair (2005) 36 Cal.4th 686, 744 (Blair).) "That obligation

encompasses instructions on lesser included offenses if there is evidence that, if accepted

by the trier of fact, would absolve the defendant of guilt of the greater offense but not of

the lesser." (Id. at p. 745; see People v. DePriest (2007) 42 Cal.4th 1, 50 (DePriest)

["Such instructions are required only where there is 'substantial evidence' from which a

rational jury could conclude that the defendant committed the lesser offense, and that he

is not guilty of the greater offense."].)

"To justify a lesser included offense instruction, the evidence supporting the

instruction must be substantial─that is, it must be evidence from which a jury composed

of reasonable persons could conclude that the facts underlying the particular instruction

exist." (Blair, supra, 36 Cal.4th at p. 745; see People v. Breverman (1998) 19 Cal.4th

142, 162.) "Substantial evidence" in this context is evidence from which a jury

composed of reasonable persons could conclude the defendant committed the lesser

offense but not the greater. (Breverman, at p. 162.) "'In deciding whether evidence is

"substantial" in this context, a court determines only its bare legal sufficiency, not its

weight.'" (People v. Moye (2009) 47 Cal.4th 537, 556.)

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 2. Lesser included offenses of count 1 (simple assault & aggravated assault)

"[S]imple assault (§ 240) is a lesser included offense of child assault homicide

(§ 273ab)." (People v. Wyatt (2012) 55 Cal.4th 694, 698.) "Section 240 defines the

crime of simple assault as 'an unlawful attempt, coupled with a present ability, to commit

a violent injury on the person of another.'" (Wyatt, at p. 702.) To be guilty of simple

assault, a defendant "must be aware of the facts that would lead a reasonable person to

realize that a battery would directly, naturally and probably result from his conduct."

(People v. Williams (2001) 26 Cal.4th 779, 788.)

Aggravated assault (assault by means of force likely to produce great bodily injury

in violation of section 245) is also a lesser included offense of child assault homicide.

(People v. Basuta (2001) 94 Cal.App.4th 370, 392.) Section 245, subdivision (a)(1),

provides in pertinent part that "[a]ny person who commits an assault upon the person of

another with a deadly weapon or instrument other than a firearm shall be punished by

imprisonment in the state prison . . . ." Both sections 273ab and 245, subdivision (a)(1)

"require an assault by means of force likely to cause great bodily injury. Section 273ab,

however, has the additional element that the assault result in death." (Basuta, at p. 391.)

3. Standard of review

We review de novo a claim of instructional error. (People v. Posey (2004) 32

Cal.4th 193, 218.)

B. Analysis

Stewart claims his conviction of child assault homicide should be reversed

because (1) there is substantial evidence from which reasonable jurors could have found

20
him guilty of simple assault or aggravated assault, and not guilty of child assault

homicide; and, thus (2) the court prejudicially erred by failing to instruct the jury, sua

sponte, on the lesser included offenses of simple assault and aggravated assault.

Specifically, Stewart contends the court was required to instruct the jury on simple

assault "because there was sufficient evidence from which the jury could find that [he]

was not aware of facts that would lead a reasonable person to realize that great bodily

injury would naturally and probably result from the act of rocking Dakari." In support of

this contention, Stewart relies on evidence showing he told the police during his

interview that he accidentally dropped Dakari and also "rocked" him until he quieted.

Stewart also relies on the testimony of the defense expert, Dr. Orphoven, who (Stewart

asserts) "explained that of the numerous cases she examined in which a child was shaken,

she observed visible injuries to the nerves and ligaments in the spinal chord and brain

stem," but "none of these injuries occurred in this case."

Stewart also contends the court was required to instruct the jury on aggravated

assault because, although the jury could have found that his act of rocking Dakari was

assaultive and likely to result in great bodily injury, reasonable jurors could have found

this assault did not result in Dakari's death. Stewart again relies on the testimony of Dr.

Orphoven, who (Stewart asserts) "testified to this precise fact: Dakari died from the

blunt-force injury caused by [a] fall, not from any 'shaking.'"

In response, the Attorney General maintains the court did not commit instructional

error because "[n]o evidence was presented demonstrating the crime was anything less

than charged" and, thus, the evidence was insufficient to support jury instructions on

21
simple and aggravated assault. The Attorney General also argues that Stewart has failed

to establish that any such error was prejudicial.

We shall assume, without deciding, that the court erred by failing to instruct the

jury, sua sponte, on the lesser included offenses of simple assault and aggravated assault.

The People urge us to conclude that Stewart has failed to establish that any such error

was prejudicial under the Watson test for prejudice (People v. Watson (1956) 46 Cal.2d

818, 836 (Watson), which our Supreme Court, in People v. Breverman (1998) 19 Cal.4th

142, made applicable to instructional errors of this sort in noncapital cases. (See People

v. Moye (2009) 47 Cal.4th 537, 555.)

Under the Watson test, an error in failing sua sponte to instruct on a lesser

included offense requires reversal of the conviction for the greater offense "if, 'after an

examination of the entire cause, including the evidence' [citation], it appears 'reasonably

probable' the defendant would have obtained a more favorable outcome had the error not

occurred." (Breverman, supra, 19 Cal.4th at p. 178.) Probability under Watson "does not

mean more likely than not, but merely a reasonable chance, more than an abstract

possibility." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.)

Breverman explained that appellate review under Watson "focuses not on what a

reasonable jury could do, but what such a jury is likely to have done in the absence of the

error under consideration. In making that evaluation, an appellate court may consider,

among other things, whether the evidence supporting the existing judgment is so

relatively strong, and the evidence supporting a different outcome is so comparatively

22
weak, that there is no reasonable probability the error of which the defendant complains

affected the result." (Breverman, at p. 177.)

Applying the Watson harmless error test, we conclude Stewart has failed to meet

his burden of showing a reasonable probability that he would have obtained a more

favorable outcome had the court instructed the jury on simple assault and aggravated

assault as lesser included offenses of the child assault homicide offense charged in count

1. The four elements of child assault homicide (§ 273ab) are: "(1) A person, having the

care or custody of a child under the age of eight; (2) assaults this child; (3) by means of

force that to a reasonable person would be likely to produce great bodily injury; (4)

resulting in the child's death." (People v. Malfavon (2002) 102 Cal.App.4th 727, 735,

citing § 273ab.6)

Here, as shown by his trial counsel's closing argument, Stewart's principal defense

to count 1 was that he accidentally dropped Dakari onto the bathroom floor, and the

prosecutor failed to prove that the accident caused Dakari's death.7

6 Section 273ab, subdivision (a), provides in full: "Any person, having the care or
custody of a child who is under eight years of age, who assaults the child by means of
force that to a reasonable person would be likely to produce great bodily injury, resulting
in the child's death, shall be punished by imprisonment in the state prison for 25 years to
life. Nothing in this section shall be construed as affecting the applicability of
subdivision (a) of Section 187 or Section 189."

7 Defense counsel argued that "[w]e know [Stewart] dropped his son. What we
don't know was did that actually inflict all of the injuries, all of the damages? Did that
accident cause the death? We don't know." Referring to Dr. Orphoven's testimony for
the defense, Stewart's counsel argued that Dr. Orphoven "said, look, this is consistent
with an accident."
23
 Regarding the first element of count 1, it is undisputed that Stewart had care or

custody of his two-month old son, Dakari, on March 3 while Dakari's mother went

shopping at the grocery store across the street from their apartment.

Regarding the second element of count 1, the prosecution presented overwhelming

evidence that Stewart assaulted Dakari by violently shaking him and slamming his head

into a hard surface. During his video-recorded and transcribed police interview (see fn.

5, ante), Stewart stated he "rocked [Dakari] hard," and he admitted he caused the baby's

head to "go back and forth pretty violently" to the point that Dakari's eyes rolled back.

During the interview Stewart also acknowledged that he "lied to [the interviewing

officer] right there" when he told the officer he dropped Dakari─to whom he deceptively

referred as his "cousin"─on the carpet in the hallway. The officer challenged Stewart's

story by telling him, "I know what kind of force and what kind of hard object had to

strike Dakari's skull to break it." Stewart changed his story by claiming he "slipped" and

accidentally dropped Dakari on the bathroom floor. However, Dr. Trenkle, the forensic

pathologist who performed the autopsy on Dakari, testified that Dakari's death was an

intentionally-inflicted homicide. Dr. Trenkle based his opinion on the fact that (among

other things) Dakari had a one-centimeter-wide four-inch-long skull fracture that ran

from the right side parietal bone above the ear to the occipital bone at the back of the

head, and the bleeding between the dura and the brain indicated Dakari had suffered

trauma from a moving head injury.

With respect to the third element of count 1, the testimony of the prosecution's

medical experts (Drs. Massi & Trenkle) regarding the severity of Dakari's injuries

24
established that Stewart used force that, to a reasonable person, would be likely to

produce great bodily injury. As discussed more fully in the factual background, ante, the

strong expert testimony presented by the prosecution showed Dakari had a wide four-

inch-long fracture on his skull, he suffered bleeding between the dura and the brain, his

scalp was visibly swollen, his brain was severely swollen, and he had bleeding around the

optic nerve of both eyes with the hemorrhaging going through multiple layers of his left

eye. The expert testimony also showed the edges of Dakari's retina were folded upward,

which is consistent with child abuse where the baby has been shaken, and Dakari died

from intentionally-inflicted injuries.

Last, regarding the fourth element of count 1, there is no dispute that Dakari's

death resulted from the head injuries he suffered.

In addition, overwhelming evidence established that Stewart's behavior

demonstrated consciousness of guilt. That Stewart was aware of the severity of Dakari's

injuries is established by the evidence showing he tried to conceal the injury to Dakari's

head by placing a beanie over the baby's head before K.P. returned to the apartment.

During the police interview, Stewart admitted he saw a knot on Dakari's head, and he told

the officer he tried to hide it and cover it up by putting a beanie on Dakari's head "so

[K.P.] wouldn't know" that he "caused the knot on [Dakari's] head" when she returned

home from the grocery store. It is undisputed that Stewart did not seek medical

assistance. K.P. called 911. Stewart said nothing about Dakari's head injury to the

emergency medical personnel who responded to K.P.'s 911 call and tried to save Dakari's

life.

25
 The evidence also establishes that Stewart again exhibited consciousness of guilt

when he repeatedly lied during the police interview by telling the officer that Dakari was

his cousin. When the officer asked where Dakari's father was, Stewart falsely answered,

"I have no idea." Stewart also told the officer Dakari's father did not have a relationship

with K.P., she and Dakari's father had had a "one-night stand," and K.P. was "easy."

Stewart also demonstrated consciousness of guilt during the interview by

repeatedly lying about how Dakari was injured. First, he claimed Dakari "crack[ed]" his

head on his baby tub while "moving and jerking" during a bath. When the officer pointed

out that a baby would not hit his head on a baby tub to the point of cracking his skull,

Stewart changed his story and indicated that Dakari's head hit the actual tub, not the baby

tub. The officer explained that a two-month old baby would be unable to sustain that

type of injury from flailing around in a bathtub. Stewart then changed his story again and

told the officer he dropped Dakari "hard" on the carpet in the hallway. As already noted,

when the officer said that a short fall on a soft carpet would not cause a skull fracture,

Stewart admitted he "lied . . . right there" when he said he dropped Dakari in the hallway,

and he then claimed he dropped Dakari by the toilet on the bathroom floor.

For all of the foregoing reasons, we conclude Stewart has failed to show the court

prejudicially erred by failing to sua sponte instruct the jury on the lesser included

offenses of simple and aggravated assault. He has not demonstrated that, but for the

assumed instructional error, the jury would have convicted him of either simple assault or

aggravated assault, but it would not have convicted him of child assault homicide.

26
 IV. DENIAL OF STEWART'S MISTRIAL MOTION

Stewart also contends the court abused its discretion by denying his motion for a

mistrial after the prosecutor questioned the defense expert, Dr. Orphoven, about what

Stewart claims was evidence of old rib injuries that had been excluded by an in limine

ruling. We reject this contention.

A. Background

1. First trial and mistrial

Stewart had two trials in this case. Before the first trial began, the court granted a

defense motion in limine to exclude evidence related to any old rib fractures that Dakari

may have suffered. During the first trial the court declared a mistrial after one of the

prosecution's medical experts, Dr. Trenkle, indicated that Dakari had suffered two rib

fractures that were healing at the time of his death.

2. Second trial and denial of Stewart's new motion for a mistrial

Before the second trial commenced, Stewart made a motion in limine (in limine

motion No. 1) to dismiss the case or, alternatively, to preclude the People from

introducing evidence that Dakari may have suffered fractured ribs and wrists. The

motion was based on the People's alleged failure to preserve exculpatory evidence. The

court denied that motion.

Stewart also brought a motion in limine (in limine motion No. 8) to preclude the

prosecution from presenting evidence that Dakari may have suffered old or healing rib

injuries of unknown age, origin, and cause. (1CT 202:3-7; 1RT 93:6-8) The prosecutor

indicated she had no objection to that motion, but she argued the ruling should apply to

27
both the prosecution and the defense and, if the defense expert mentioned such injuries,

the prosecution should be allowed to bring witnesses to testify about the injuries. The

court granted the motion because such evidence might suggest Dakari had suffered prior

abuse.

During the trial, the prosecutor asked Dr. Orphoven on cross-examination: "Now,

did you also note that Dakari had rib fractures in this case?" (Italics added.) Before Dr.

Orphoven answered that question, defense counsel objected and the court discussed the

objection off the record. The prosecutor then moved on to a different line of questioning

and Dr. Orphoven did not answer the question about rib fractures.

Shortly thereafter, during a recess and outside the presence of the jury, the court

addressed defense counsel's objection to the prosecutor's unanswered question. After

noting that it had reviewed the defense in limine motions and its rulings on those

motions, the court stated that it was "clear that there was no exclusion of discussion about

fractured ribs, wrists or other bones." The court also stated that "[t]he only issue was

whether or not there would be testimony about older healing fractures." The court

explained that the basis for its rulings was "to avoid any implication or inference that

there had been prior instances of abuse to [Dakari]." Finding that the People were "free

to introduce evidence of fractured ribs and wrists," the court clarified that, in light of its

ruling granting the defense's in limine motion No. 8, the prosecution could not refer to

"old or healing injuries." The court added that there had been no specific request in either

the first trial or the second trial "to exclude all testimony about fractures to the ribs, to the

wrists or anywhere." Shortly thereafter, the court reiterated that the in limine rulings did

28
not exclude evidence of all fractures, stating that the evidence was "limited in the

characterization, at least age characterization of the fractures or injuries. And the basis of

that was to eliminate any inference or implication that there was prior abuse to this child.

It wasn't to eliminate the ability to discuss current injuries. Which were fractures either

to the ribs or to the wrists." (Italics added.)

Still outside of the presence of the jury, Dr. Orphoven took the stand and indicated

that Dakari's rib fractures were old injuries. After Dr. Orphoven stepped down, the court

told counsel:

"It was clear in the court's mind when it made its rulings that there
would be no overall exclusion of testimony of fractured ribs and
wrists. And that [is] based on its denial of the motion in limine [No.
1], which the court, just for the record, denied on both occasions.
We specifically again addressed the issue of old and healing
fractures or old and healing injuries of unknown age, origin and
cause. Because of the implications that it may suggest prior abuse.
That was in limine motion [No. 8] made by [defense counsel], [the]
motion to preclude the [People] and their witnesses from testifying
about ['old'] or ['healing'] injuries of unknown age and origin."
(Italics added.)

The court then affirmed its prior in limine rulings and ruled it would allow

testimony about any "fresh or current injuries" Dakari suffered on March 3:

"In review of the transcript it appears that there is going to be a
dispute between the experts regarding the nature and extent of those
injuries. . . . [¶] If there is testimony about fresh or current injuries
having occurred on March 3rd[,] it is the court's intention to allow
that testimony. . . . So the court's prior [rulings] will stand."

The court added that it would revisit its ruling if the parties wished to reargue the

matter either after the prosecution experts, Drs. Massi and Trenkle, testified, or "pursuant

29
to [an Evidence Code section] 402 [hearing] regarding the issue of the freshness or

currentness of the rib fracture injuries."

The prosecutor thereafter continued her cross-examination of Dr. Orphoven in the

presence of the jury. However, she did not resume her questioning of Dr. Orphoven

regarding rib fractures.

The next day, following an in-chambers conference and outside the presence of

the jury, the prosecutor indicated that, based on overnight telephone conversations with

Dr. Massi and Dr. Trenkle, the People no longer intended to inquire about any of Dakari's

rib or wrist fractures.

a. Mistrial motion

Shortly thereafter, defense counsel moved for a mistrial. In support of the motion,

Stewart's counsel asserted that, although he did not believe the prosecutor intentionally

violated the court's in limine rulings, "[a]t least a couple of the jurors[,] according to Dr.

Orphoven, looked at her very sharply. Seemed to be a big deal to them. Since it is being

excluded[,] I would be asking for a mistrial at this time, undue prejudice from hearing

that, and submit."

The court denied the mistrial motion, finding that "[t]here [was] no overt attempt

by [the prosecutor] to elicit testimony [from Dr. Orphoven] regarding excluded evidence.

In fact, the court indicated specifically it would include certain evidence in its denial of

the [defense's] in limine motion [No. 1]."

30
 B. Standard of Review

A trial court should grant a motion for mistrial "'only when a party's chances of

receiving a fair trial have been irreparably damaged.'" (People v. Clark (2011) 52 Cal.4th

856, 990 (Clark).) The determination of "[w]hether a particular incident is incurably

prejudicial [that it warrants a mistrial] requires a nuanced, fact-based analysis" that is best

performed by the trial court. (People v. Chatman (2006) 38 Cal.4th 344, 369-370.)

We review a trial court's order denying a motion for mistrial under the deferential

abuse of discretion standard. (Clark, supra, 52 Cal.4th at p. 990.) "Under this standard, a

trial court's ruling will not be disturbed, and reversal of the judgment is not required,

unless the court exercised its discretion in an arbitrary, capricious, or patently absurd

manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37

Cal.4th 1067, 1113 (Guerra).)

C. Analysis

We conclude the court acted well within its broad legal discretion when it denied

Stewart's mistrial motion, because the record (discussed, ante) establishes the prosecutor

did not violate the court's in limine rulings when she asked the defense expert, Dr.

Orphoven, on cross-examination: "Now, did you also note that Dakari had rib fractures

in this case?" As noted above, defense counsel immediately objected before Dr.

Orphoven answered that question, the court discussed the objection off the record, the

prosecutor moved on to a different line of questioning, and Dr. Orphoven never answered

the question as to which Stewart's counsel had objected. After reviewing the defense in

limine motions and the court's prior rulings, the court specifically found that the People

31
were "free to introduce evidence of fractured ribs and wrists," and clarified that, in light

of its ruling granting the defense's in limine motion No. 8, the prosecution could not refer

to "old or healing injuries." The prosecutor's question did not refer to "old or healing

injuries." Thus, we conclude that reversal of the judgment is not required because

Stewart has failed to meet his burden of demonstrating that the court, in denying his

mistrial motion, exercised its discretion in an arbitrary, capricious, or patently absurd

manner. (Guerra, supra, 37 Cal.4th at p. 1113.)

Even if we were to assume the court abused its discretion in denying Stewart's

mistrial motion, we would conclude that reversal of the judgment is not required because

Stewart has not met, and cannot meet, his additional burden of demonstrating that any

such error "resulted in a manifest miscarriage of justice" (Guerra, supra, 37 Cal.4th at p.

1113) because it is undisputed that Dr. Orphoven never answered the prosecutor's

question about rib fractures. Also, as the Attorney General correctly points out, the court

instructed the jury that "[n]othing that the attorneys say is evidence" and that it must "not

guess what the answer might have been" if "[a] witness does not answer" a question.

Specifically, the court instructed the jury as follows under CALCRIM No. 104:

"Nothing that the attorneys say is evidence. In their opening
statements and closing arguments the attorneys will discuss the case,
but their remarks are not evidence. Only the witnesses' answers are
evidence. [¶] The attorneys' questions are significant only if they
help you understand the witnesses' answers. Do not assume that
something is true just because one of the attorneys asks a question
that suggests it is true. [¶] During the trial the attorneys may object
to questions asked of a witness. I will rule on the objections
according to the law. If I sustain an objection, the witness will not
be permitted to answer, and you must ignore the question. If the
witness does not answer, do not guess what the answer might have

32
 been or why I ruled as I did. If I order testimony stricken from the
record, you must disregard it, and you must not consider that
testimony for any purpose." (Italics added.)

The court also gave similar instructions under CALCRIM No. 222.

Absent a showing to the contrary, we assume the jury understood and followed the

instructions given. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial

assumption underlying our constitutional system of trial by jury is that jurors generally

understand and faithfully follow instructions."].) Here, as there is no showing to the

contrary, we assume the jury understood and followed the instructions the court properly

gave under CALCRIM Nos. 104 and 222. (Mickey, at p. 689, fn. 17.) In sum, we

conclude the court properly denied Stewart's mistrial motion.

V. PROSECUTORIAL MISCONDUCT (COUNT 1)

Stewart also contends his conviction of count 1 must be reversed because the

prosecutor committed misconduct three times, and thereby violated his constitutional

right to due process by rendering the trial fundamentally unfair. Specifically, he contends

reversal is required because the prosecutor "engaged in a misconduct trifecta" by (1)

questioning the defense expert, Dr. Orphoven, about excluded evidence of old or healing

rib injuries in violation of the court's in limine rulings; (2) advancing an improper theory

of culpability; and (3) presenting a "patently false" closing argument by telling the jury

that prosecution witness Dr. Massi had no vested interest in this case.

The Attorney General argues that all three of Stewart's claims of prosecutorial

misconduct fail on the merits. The Attorney General also argues that Stewart is barred

under the forfeiture rule from raising his second and third claims of prosecutorial

33
misconduct on appeal because he failed to raise them at trial. Anticipating the forfeiture

argument, Stewart maintains that, if this court determines he waived his second and third

misconduct claims, his trial counsel's failure to raise those claims at trial deprived

Stewart of the effective assistance of counsel.

We conclude Stewart's claims of prosecutorial misconduct fail on the merits.

A. Applicable Legal Principles

"To constitute a violation under the federal Constitution, prosecutorial misconduct

must 'so infect[] the trial with unfairness as to make the resulting conviction a denial of

due process.'" (Valdez, supra, 32 Cal.4th at p. 122, quoting Darden v. Wainwright (1986)

477 U.S. 168, 181.) However, conduct that does not render a criminal trial

fundamentally unfair violates a defendant's state law due process rights only if the

prosecutor used deceptive or reprehensible methods to persuade the jury. (People v. Earp

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

The trial court ordinarily grants a prosecutor wide latitude during argument

(People v. Wharton (1991) 53 Cal.3d 522, 567), and an allegedly improper remark must

be viewed in the context of the closing argument as a whole. (People v. Lucas (1995) 12

Cal.4th 415, 475.) However, while a prosecutor may argue all reasonable inferences

from the record, she may not mislead the jury. (People v. Daggett (1990) 225

Cal.App.3d 751, 757-758.)

When the misconduct issues focus on comments the prosecutor made before the

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

34
any of the comments in an objectionable fashion. (People v. Cole (2004) 33 Cal.4th

1158, 1202-1203.)

A defendant may not complain of prosecutorial misconduct on appeal unless he

objected on that ground in a timely fashion and also requested that the jury be

admonished to disregard the perceived impropriety. (People v. Lopez (2008) 42 Cal.4th

960, 966.) The California Supreme Court has explained that "[t]he primary purpose of

the requirement that a defendant object at trial to argument constituting prosecutorial

misconduct is to give the trial court an opportunity, through admonition of the jury, to

correct any error and mitigate any prejudice. [Citation.] Obviously, that purpose can be

served only if defendant is required to, and does, raise any objection before the jury

retires." (People v. Williams (1997) 16 Cal.4th 153, 254.)

"A defendant's conviction will not be reversed . . . for prosecutorial misconduct

unless it is reasonably probable a result more favorable to the defendant would have been

reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew).)

B. Analysis

We conclude that each of Stewart's three claims of prosecutorial misconduct fails

on the merits. Thus, we need not, and do not, reach the merits of the Attorney General's

argument that Stewart forfeited his second and third misconduct claims.

1. First claim of prosecutorial misconduct

As noted, Stewart first claims that the prosecutor committed misconduct by

questioning defense expert Dr. Orphoven about excluded evidence of old or healing rib

injuries in violation of the court's in limine rulings. We reject this claim because we have

35
already concluded that the record establishes the prosecutor did not violate the court's in

limine rulings when she asked Dr. Orphoven the following unanswered question on

cross-examination: "Now, did you also note that Dakari had rib fractures in this case?"

2. Second claim

Stewart also claims the prosecutor committed misconduct by advancing an

improper theory of culpability by urging the jury to convict him of count 1 based on his

failure to call 911. We reject this claim because we have already concluded that the

record establishes the prosecutor did not argue the failure-to-act theory as to count 1; she

presented the failure-to-act evidence to prove Stewart's guilt of the count 2 offense of

willfully causing injury to Dakari in violation of section 273a(a).

3. Third claim

Last, Stewart claims the prosecutor committed misconduct by presenting a

"patently false" closing argument concerning the credibility of the expert witnesses.

Specifically, he claims the prosecutor improperly told the jury (1) that prosecution

witness Dr. Massi had no vested interest in this case, and (2) that defense expert Dr.

Orphoven did have a vested interest in this case because the defense hired her and she

would do whatever was necessary to help the defense to keep that money coming in.

In support of this claim, Stewart asserts the prosecutor's statement that Dr. Massi

had no vested interest in this case was factually incorrect because "the prosecutor's office

was paying Dr. Massi's hospital for his testimony." Stewart asserts that "[t]he record also

indicates that [Dr.] Massi's hospital apparently profited from this case in yet another way.

Defense counsel's questions in cross-examining [Dr.] Massi indicate an organ recovery

36
company paid the hospital's bills, which included the five days Dakari spent on a

ventilator to allow the company time to recover the organs." Stewart acknowledges,

however, that the jury never heard any evidence regarding this matter because the court

sustained the prosecutor's objections to defense counsel's questions about it.

We conclude that Stewart's third claim of prosecutorial misconduct fails because,

even if we were to agree the prosecutor's statement about Dr. Massi was factually

incorrect, Stewart has failed to meet his burden of demonstrating that such misconduct

infected the trial with such unfairness as to make his count 1 conviction a denial of due

process (Valdez, supra, 32 Cal.4th at p. 122); that it is reasonably probable he would have

obtained a more favorable result without such misconduct (Crew, supra, 31 Cal.4th at p.

839). We have already concluded that the evidence of Stewart's guilt (discussed, ante) is

overwhelming with respect to count 1.

VI. CALCRIM NO. 362 (CONSCIOUSNESS OF GUILT)

Next, Stewart contends his conviction of child assault homicide must be reversed

because the court erred by instructing the jury under CALCRIM No. 362, which is the

standard instruction that outlines the permissible inference of consciousness of guilt that

may be drawn from a defendant's willfully false pretrial statements relating to the charged

crime. He contends CALCRIM No. 362 is a "one-sided" instruction that "violate[s] Due

Process." We reject these contentions.

Without an objection from the defense, the court instructed the jury under

CALCRIM No. 362 that, "[i]f the defendant made a false or misleading statement before

this trial relating to the charged crime, knowing the statement was false or intending to

37
mislead, that conduct may show he was aware of his guilt of the crime and you may

consider it in determining his guilt." (Italics added.) The court's instruction also included

the following limiting language contained in CALCRIM No. 362: "If you conclude that

the defendant made the statement, it is up to you to decide its meaning and importance.

However, evidence that the defendant made such a statement cannot prove guilt by

itself." (Italics added.)

In support of his claim of instructional error, Stewart asserts that "the jury heard

powerful evidence of [his] post-incident conduct that pointed towards his innocence,

including evidence that [he] (1) desperately tried to find help for Dakari, (2) went to the

hospital, (3) voluntarily agreed to go to the police station to give a statement, and (4)

waived his Miranda[8] rights and agreed to continue talking to police even after he was

told he would be going to jail." Stewart acknowledges the court's instruction properly

told the jury that, if it found he made false statements that were intended to mislead, it

could consider that conduct as a factor tending to prove he was guilty.

Stewart contends, however, that the court's CALCRIM No. 362 instruction was a

"one-sided" instruction that improperly "convey[ed] the state's theory" and violated due

process because it did not tell the jury it could consider his post-incident conduct as a

factor tending to prove he was not guilty.

8 Miranda v. Arizona (1966) 384 U.S. 436.

38
 We reject this contention and conclude the court did not err by instructing the jury

under CALCRIM No. 362. CALCRIM No. 362 is the successor to CALJIC No. 2.03.9

(McGowan, supra, 160 Cal.App.4th at p. 1103.) As noted, CALCRIM No. 362

specifically informs the jury that evidence showing the defendant made a false or

misleading statement relating to the charged crime with knowledge the statement was

false or intent to mislead "cannot prove guilt by itself." (Italics added.) CALJIC No.

2.03 similarly provided that the defendant's pretrial conduct of "ma[king] a willfully false

or deliberately misleading statement" concerning the charged crime was "not sufficient by

itself to prove guilt." (Italics added; see fn. 10, ante.)

Stewart's claim that CALCRIM No. 362 is a "one-sided" instruction that favors the

prosecution is unavailing. This instruction plainly informs the jury that evidence

showing the defendant made such a statement "cannot prove guilt by itself." (CALCRIM

No. 362.) The instruction also informs the jury that, if the jury concludes the defendant

made such a statement, it is "up to [the jury] to decide its meaning and importance."

(Ibid.) We conclude that any reasonable jury would understand from this limiting

instruction that it must consider all of the evidence, including evidence (such as the

evidence here of what Stewart's characterizes as his "post-incident conduct") that tends to

show the defendant is not guilty of the charge offense.

9 CALJIC No. 2.03 provided: "If you find that before this trial the defendant made
a willfully false or deliberately misleading statement concerning the crime or crimes for
which he is now being tried, you may consider that statement as a circumstance tending
to prove a consciousness of guilt. However, that conduct is not sufficient by itself to
prove guilt, and its weight and significance, if any, are for you to decide." (People v.
McGowan (2008) 160 Cal.App.4th 1099, 1103 (McGowan), italics added.)
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 Our conclusion finds support in McGowan, supra, 160 Cal.App.4th 1099. In

McGowan, the court explained that "[t]he California Supreme Court has consistently

upheld CALJIC No. 2.03 against various and sundry attacks." (McGowan, at p. 1103, fn.

3.) McGowan also explained that, "[a]lthough there are minor differences between

CALJIC No. 2.03 and CALCRIM No. 362 [citation], none is sufficient to undermine our

Supreme Court's approval of the language of these instructions. Crucially, CALCRIM

No. 362 contains nearly identical language to that [contained in CALJIC No. 2.03]:

'[E]vidence that the defendant made such a statement cannot prove guilt by itself.'"

(McGowan, at p. 1104.)

In light of our conclusion on the merits of Stewart's claim of instructional error,

we need not address the Attorney General's arguments that Stewart forfeited his claim

"by failing to object to the instruction below," and that, in light of the overwhelming

evidence supporting the jury's verdict, Stewart has failed to meet his burden of

demonstrating he would have obtained a more favorable outcome had the court not given

the CALCRIM No. 362 instruction.

VII. CLAIM THAT SECTION 273AB IS UNCONSTITUTIONAL

Noting that a first degree murder conviction under state law is generally

punishable by a prison term of 25 years to life, Stewart claims his count 1 conviction of

child assault homicide, for which he was sentenced to a prison term of 25 years to life,

must be reversed because that section is "an end run around the due process requirement"

that malice aforethought and premeditation must be proven before a defendant is

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sentenced to a prison term of 25 years to life in cases where an assault results in the death

of a child.

We reject this claim. "[I]t [is] immaterial that the punishment for a violation of

section 273ab is the same as first degree murder. The Legislature exercised its

prerogative in selecting the range of punishment, and there is no principle of law that

precludes the same punishment for different crimes." (People v. Norman (2003) 109

Cal.App.4th 221, 228.)

Furthermore, section 273ab is not a murder statute; it is a child abuse homicide

statute. (People v. Norman, 109 Cal.App.4th at p. 229; People v. Albritton (1998) 67

Cal.App.4th 647, 659 ["[I]t is a misnomer to call section 273ab a murder statute[;] it is

more akin to a child abuse homicide statute."].) There is no "'viable constitutional reason

why the state cannot criminalize such conduct and make it a separate crime when the

victims are young children. Considering the purpose of the statute─to protect children at

a young age who are particularly vulnerable─there can be no dispute of the gravity of the

governmental interest involved." (Albritton, at pp. 659-660; Norman, at p. 229.) "Due

process concerns are not implicated." (Norman, at p. 229.)

VIII. CLAIM OF CUMULATIVE ERROR

Last, Stewart claims that even if none of the foregoing claimed errors requires

reversal when considered separately, the cumulative effect of the errors deprived him of a

fair trial. We reject this contention.

"'[A] series of trial errors, though independently harmless, may in some

circumstances rise by accretion to the level of reversible and prejudicial error.'" (People

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v. Cunningham (2001) 25 Cal.4th 926, 1009.) A defendant is "entitled to a fair trial but

not a perfect one." (Ibid.)

Here, in light of the overwhelming evidence of Stewart's guilt, any errors that

occurred were harmless, whether considered individually or collectively. Accordingly,

we reject Stewart's claim of prejudicial cumulative error.

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.

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