Filed 10/21/20 P. v. Clark CA2/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B279396
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA058334)
v.
MARKESE DEWON CLARK,
Defendant and Appellant.
In re B291549
MARKESE DEWON (Los Angeles County
CLARK Super. Ct. No. MA058334)
on Habeas Corpus.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Frank M. Tavelman, Judge. Affirmed.
ORIGINAL PROCEEDINGS; petition for writ of habeas
corpus, Frank M. Tavelman, Judge. Petition denied.
James Koester, under appointment by the Court of Appeal,
for Defendant, Appellant and Petitioner.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews, Ryan M. Smith and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.
——————————
Two-year-old King J.1 died from blunt force head trauma
inflicted while in Markese Devon Clark’s (Clark) care. At his
trial, Clark contended that King, unbeknownst to Clark, had a
prior, unrelated head injury that left his head susceptible to
reinjury. Thus, even a minor event, such as playfully tossing
King in the air or administering what Clark calls “old school”
punishment of hitting the baby on his head, could have caused
King’s death. Based on that theory, Clark contended on appeal
that the trial court should have instructed the jury on assault
with force likely to produce great bodily injury as a lesser
included offense to assault on a child causing homicide, on which
the jury was instructed and of which Clark was found guilty.
In our original opinion filed in 2019, we rejected that
contention because there was insufficient evidence to instruct the
jury on the lesser included offense. We also rejected Clark’s
remaining contentions concerning, for example, Sanchez2 error,
and denied his related petition for writ of habeas corpus.
Accordingly, we affirmed the judgment.
1To avoid confusion, we identify individuals who share the
same surname by their first names. No disrespect is intended.
2 People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
2
Clark petitioned for review. The California Supreme Court
granted review and transferred the matter with directions to
vacate our decision and to reconsider the cause in light of People
v. Perez (2020) 9 Cal.5th 1. Perez at page four held that the
failure to object to case-specific hearsay pre-Sanchez did not
forfeit the issue on appeal. Because our original opinion did not
find that the Sanchez issue was forfeited, Perez does not affect
that opinion. Accordingly, on reconsideration, we affirm our
original decision in its entirety.
BACKGROUND
I. King
Ericka and Donald had three children, two daughters and
King. In the summer of 2012, the girls were eight years old (Joy)
and five years old. King, who was born on December 29, 2010,
was almost two years old. With respect to King, Ericka had a
normal pregnancy and delivery, and his checkups, the last of
which was in July 2012, were normal.
However, in July 2012, King fell down 15 or 16 concrete or
tiled stairs, resulting in a bump to his head, although he did not
lose consciousness. Emergency room doctors examined and
released him that same day. Although Ericka remembered the
one fall, Joy remembered King falling down stairs a second time,
which also prompted a trip to the emergency room. Ericka,
however, said that while King got other bumps on his forehead
from falling or running into something, this all happened before
July 2012.
Around August 2012, Ericka and Donald separated. Soon
thereafter, in September 2012, Ericka resumed a relationship
with Clark, whom she had dated in the past. Clark and his two
children—three and one-year old girls—moved into a two-
3
bedroom apartment in Long Beach with Ericka and her three
children. Ericka worked as a personal banker for Wells Fargo,
while Clark cared for the children and worked on his music at
home.
Caring for five children at times frustrated and
overwhelmed Clark. Once, a neighbor heard King “crying, crying,
crying,” and Clark yelling, “ ‘Sit the fuck down. Shut the fuck
up.’ ” The neighbor heard Joy say she knew how to quiet King.
Another time, the neighbor saw Clark come outside to “pull
himself together.” When the neighbor told him the kids were
crying, he went back inside.
As to discipline, Ericka and Clark agreed he would not
spank Ericka’s children to avoid problems with Donald. Ericka
never saw Clark hit her children, and he never told her he had
done so. Even so, Clark complained that Ericka and Donald
babied King, who Clark called a “crybaby.” When King cried,
Clark would tell him to “man up.” Clark fantasized that he and
Ericka would have a son who Clark would teach to be “tough” and
to “really be a boy.” Clark’s notion of how to really be a boy
included telling King not to play with “girl stuff,” like his sister’s
toys.
King thus never warmed to Clark. And, after Donald left,
King lost his “spunk” and was sad. Ericka attributed this to King
missing his father, to whom he was close, and she considered
taking King to a psychologist.
In mid-October 2012, Ericka and Clark moved to a four-
bedroom house in Lancaster, where Ericka continued to work for
Wells Fargo and Clark continued to stay at home caring for the
children, although King’s sisters were in school during the day.
4
II. The events leading to King’s death
On Christmas Eve 2012, the family celebrated, King
perhaps too much, for he ate a lot of sweets. The next day, he
threw up and was weak, although he didn’t have a fever. Over
the next few days, he seemed better, although he was mopey and
not himself. On the day of his second birthday, December 29, he
uncharacteristically ate his cake slowly and moved slowly.
Concerned, Ericka considered taking him to the doctor.
On January 2, 2013, Ericka worked all day, and Clark did
not say anything was wrong with King. When Ericka got home
that night at 8:45 p.m., King was already asleep. Thinking it was
too early for King to go to bed, Ericka woke him. When she put
him down, he wasn’t able to hold his balance. Although King ate
slowly, at “not his normal pace,” he otherwise seemed fine.
The next morning, January 3, 2013, Ericka went to work.
The children remained at home with Clark. At 11:00 a.m., Clark
called Ericka and said that King had fallen and was being rushed
to the hospital. When a responding paramedic arrived, King was
not breathing, and his heart was not beating. King was also
“extremely cold” and damp. The paramedics took King to
Antelope Valley Hospital, but he was later transported to Kaiser.
Doctors drilled burr holes into his head to drain fluid that had
accumulated on his brain. When King’s neurologic function
didn’t improve, he was removed from life support on January 17.
Two days later, he died.
At the time of his death, King weighed 25 pounds and was
39 inches tall.
5
III. Joy’s testimony
Soon after King died, eight-year-old Joy gave a recorded
statement on January 21, 2013 about what happened to her baby
brother. She said that Clark had been throwing King “in the air
and pulling him down and they fell back, and then he picked him
up and went to go put him in the shower.” “[H]e put him down,”
“[h]e fall back, and he was crying, he just fell back, fell out.” A
few minutes later, Clark said King hit his head in the bathtub.
When Clark later said King fell down the stairs, Joy tried to say
that didn’t happen, but Clark shushed her. Joy also reported
that Clark would “pop[ ]” King on the behind and send King
upstairs when he got mad at King. Also, Clark “makes King hit
his head.” Clark would take King into a bedroom and Joy could
hear “head bumps” every time Clark “whoop[ed]” King, who cried.
At trial, Joy, who was now 11 years old, testified she never
saw Clark spank King, but Clark did “pop him in the head
sometimes. He popped him in the behind and his head.” On the
day King went to the hospital, Clark was playing with the kids in
the carpeted living room. When Clark threw King into the air,
King vomited onto Clark’s shirt. Clark took King upstairs to
bathe him. Clark came back downstairs, crying and saying,
“ ‘King’s not breathing.’ ”
IV. Medical testimony
Two experts testified for the prosecution: Dr. Jason Tovar
and Dr. Carol Berkowitz.
A. Dr. Tovar
Deputy Medical Examiner Jason Tovar autopsied King. He
also reviewed King’s medical records, the coroner’s investigator
6
report, a post autopsy ophthalmologist report, and a post autopsy
neuropathology report.
Dr. Tovar’s internal examination of King’s head revealed
contusions on the scalp’s undersurface in the frontal regions
toward the forehead and across the top of the head and
hemorrhage on the back of the head on the bone. More
specifically, King had hemorrhages in the subcutaneous,
subgaleal, and subdural regions of his brain. The subcutaneous
hemorrhage was diffuse (spread out) and located to the left side
of his head just above the ear and into the back, indicating
unnatural trauma. King also had diffuse subgaleal hemorrhage
to the back of his head, on the left side of his scalp over a fairly
large area. Because the subgaleal region is below the skin and
subcutaneous regions, hemorrhage to the subgaleal area
suggested application of a “larger,” “harder” or “significant” force.
The presence of hemorrhaging to the back, top, and side of King’s
head indicated multiple applications of force. A hand striking the
head or the head hitting a hard, flat surface could cause the
subcutaneous and subgaleal hemorrhages.
In addition to the subcutaneous and subgaleal
hemorrhages, King had a subdural hemorrhage on his right
posterior parietal region. Disruption of the small veins running
from the brain’s surface to the central portion of the dura3 caused
the hemorrhage. Such disruption occurs “through force and
acceleration, deceleration, or stretching or sheering effects.”
Acceleration and deceleration can cause bleeding into the retinas.
Dr. Tovar therefore dissected King’s eyes and sent them to an
3 The dura is the layer of fibrous tissue on the inside of the
skull.
7
ophthalmologist, who found retinal hemorrhages. Dr. Tovar also
sent King’s brain to a neuropathologist, who found no indication
of “natural disease process.” Dr. Tovar relied on these reports to
form his opinion about cause of death.
In addition to the hemorrhages to King’s head, he had an
older (weeks or longer) hemorrhage and calcification to the
mesentery, suggesting prior injuries to that area, “probably” from
some form of blunt force trauma.
Notwithstanding his internal injuries, King had no
external bruising. However, a child struck hard enough on the
head to cause internal damage might not exhibit external signs of
the injury.
Dr. Tovar could not ascribe the blunt force injuries to
anything natural, and nothing else in the known circumstances
“corroborate[d]” multiple injuries in different sites. However,
shaking a baby so that the baby’s head hits a flat surface like a
bathtub could cause the hemorrhaging, including the retinal
hemorrhaging King suffered. Striking a baby with an open hand
could also cause those injuries. But falling back onto a carpeted
surface could not cause them. Dr. Tovar therefore determined
that nonaccidental blunt head trauma caused King’s death and
that the mode of death was homicide.
On cross-examination, Dr. Tovar agreed that veins on the
brain that had once bled and then healed could “[p]otentially” be
more susceptible to reinjury, depending on “when we are talking
about, what time interval, and the amount of the injury.”
Bleeding veins on the brain could cause sudden severe headache,
seizures, nausea or vomiting, and loss of coordination and
balance. Tossing a child into the air a couple of times and then
putting him on carpeted floor onto which the child falls back and
8
hits it head would not be enough force to cause the veins to bleed.
But falling down stairs could cause that type of injury. If a child
fell down stairs, causing the veins on his brain to bleed, that
location could be more susceptible to reinjury.4 And, if five
months later “I give this kid a little pop on his head, even though
it’s not with tremendous force and even though it doesn’t even
leave bruising on the outside,” it might be enough to cause that
vein to start bleeding again.
However, a microscopic review of King’s dura showed no
prior injury. None of the hemorrhages could have resulted from
an injury occurring five months before January 3, 2013—that is,
the fall down the stairs. Also, there was no evidence of any prior
injury that could have caused or contributed to the subdural
hemorrhage.
B. Dr. Berkowitz
Dr. Carol Berkowitz is board-certified in pediatric
emergency medicine and in child abuse pediatrics. She reviewed
King’s medical records from Antelope Valley and Kaiser
hospitals, paramedic reports, his well-child visits, and the
ophthalmology report.
King’s condition when paramedics arrived—fixed and
dilated pupils, lack of a pulse, and cold to the touch—suggested
that “this event had gone on for a bit of time.” His low rectal
temperature, which was taken at Antelope Valley, also suggested
that King’s inability to maintain body temperature had been
4 The doctor had only become aware of King’s prior falls
and emergency room visit after he’d formed his opinion about
cause of death. Dr. Tovar did not have King’s medical history
prior to January 3, 2013.
9
ongoing for a while. Although a CT scan of King’s head taken
when he was admitted showed no abnormalities such as subdural
bleeding, that could be because his heart had stopped circulating
blood to the site of the bleed. Thus, when doctors were able to get
King’s heart beating, another CT scan showed the hemorrhages.
Also, when King was admitted, he had petechiae—tiny
hemorrhages present in the back of the eye. Later, an
ophthalmologist examined King and confirmed he had multiple
retinal hemorrhages in all four eye quadrants, indicating a
shaking or an acceleration and deceleration. Shaken baby
syndrome occurs when the brain is subjected to “whiplash, like
acceleration, deceleration,” and it “swooshes back and forth
within the skull.” Veins separate from the dura and they bleed,
causing edema or an inability to regulate breathing. Retinal
hemorrhages are also associated with shaken baby syndrome.
In Dr. Berkowitz’s opinion, King suffered nonaccidental
head trauma occurring around the time he became symptomatic,
meaning when he stopped breathing and his heart stopped
beating. The catastrophic event that caused King to stop
breathing could not have occurred several days before January 3,
2013, because the CT scan at Antelope Valley where King was
first admitted would have shown the presence of blood. She
agreed with Dr. Tovar that hitting a child does not necessarily
leave external bruising or swelling.
On cross-examination, Dr. Berkowitz admitted she had
only recently learned of King’s earlier fall down stairs. However,
it was her understanding that the emergency department did not
order imaging studies, which indicated there was no evidence of
intracranial injury. If King had such an injury, he would not
10
have been in such great health until the time of the event on
January 3, 2013.
Still, Dr. Berkowitz generally agreed that if a child hit his
head causing veins to bleed, that area would be susceptible to
nonfatal “rebleeding.” But, if King had such rebleeding, then a
CT scan five months after the event would not have been normal
and instead would have shown hygroma, which is the fluid that
persists after a prior bleed. King had no hygroma. Stated
otherwise, if King had a bleeding caused by his fall down stairs
and if some minor trauma occurred five months later on
January 3, 2013 that caused a rebleed, then he would not have
had a normal CT scan on January 3. Thus, King’s fall down
stairs did not affect her opinion that King suffered nonaccidental
head trauma on or about January 3.
V. Clark’s statement to the police and trial testimony
Clark gave a recorded statement to Detective Scott Mitchell
on January 3, 2013, after King had been taken to the hospital.
Clark denied hitting or shaking King that day; all he did was pick
up King and toss him in the air. But, he had, prior to January 3,
“smacked” King across the back of his head with an open hand.
Clark estimated he had hit King “ballpark” 15 times, “max”
20 times. On a one to 10 scale, with 10 being the hardest he
could hit, he hit King at a seven. Once or “a few times” Clark
“got a little bit” “too much” and “exceeded [his] . . . power” and hit
King at a nine or 10. Still, Clark never knocked King out; King
would just fall to the ground and cry. Around the holidays, Clark
did not hit King, who was under the weather, so he got a “pass.”5
5 Clark’s statements on this point were a bit vague, because
he later indicated he might have hit King after Christmas.
11
Clark had “no doubt” he caused King’s injuries. Clark knew “it
was a head injury because I know he hit his head a couple times.”
Clark testified at trial and continued to deny hitting or
shaking King on January 3, 2013. He also tried to minimize his
prior statements to Detective Mitchell, saying they were
inaccurate, prompted by fear and the hope that if he just said
“something” he could get back to his kids faster. Thus, he denied
spanking or, as he called it, “pop[ping],” King on the head while
they lived in Long Beach. However, Clark, who weighed 245
pounds in contrast to King’s 25 pounds, admitted he did hit King
on the head with an open hand when they moved to Lancaster.
This happened not “very often,” “like eight times.” When he did
hit King, “it wasn’t at a seven or eight or nine. It was not every
single time at that force.” Even so, Clark admitted he did
“sometimes” hit King at a seven and exceeded his power once.
King would cry for a few minutes, but Clark never knocked King
off balance and he never saw any resulting bruises or swelling.
The last time he could recall hitting King was before Christmas.
On New Year’s Eve, Clark found King on the floor, crying
and grunting and seeming not to have control of his body. He
told Ericka they should take King to the emergency room, but she
didn’t want to incur the cost of an ambulance. The next morning,
January 1, King was much better.
Two days later, on January 3, 2013, Clark was playing with
the kids in the living room. He tossed King into the air three
times, catching him as he came down. The last time, King fell
back when Clark put him down and landed straight on his back
and on his head. Clark picked him up, and King threw up,
dirtying himself and Clark’s shirt. Clark took King to the
bathroom, where he stripped him, put him into the tub, and
12
washed him with cold water. Clark did not see King hit his head
in the tub. After washing King, Clark took him upstairs and
dressed him. That was when Clark noticed King was
unresponsive. He ran downstairs with King and called 911,
telling the operator that King “had hit his head.”
He did not know about King’s prior fall down the stairs.
VI. Trial and sentencing
An information charged Clark with assault on a child
causing death, which is commonly known as child assault
homicide6 (Pen. Code, § 273ab, subd. (a); count 1)7 and with
murder (§ 187, subd. (a); count 2). A jury found Clark guilty of
count 1 and found true a great bodily injury enhancement
(§ 12022.7, subd. (d)). The jury found Clark not guilty of murder
but guilty of the lesser offense of involuntary manslaughter
(§ 192, subd. (b); count 2).
On October 21, 2016, the trial court sentenced Clark to
25 years to life on count 1. The trial court imposed but stayed a
three-year sentence on count 2 and struck the enhancement.
CONTENTIONS
Clark raises the following issues: (1) The trial court should
have instructed the jury on assault with force likely to produce
great bodily injury as a lesser included offense to count 1;
(2) expert witness doctors relied on impermissible hearsay in
violation of Sanchez, supra, 63 Cal.4th 665; (3) admitting Clark’s
statement to the detective violated Miranda v. Arizona (1966)
6People v. Wyatt (2012) 55 Cal.4th 694, 697, footnote 2
(Wyatt II).
7 All further statutory references are to the Penal Code.
13
384 U.S. 436 (Miranda); (4) the trial court should have given a
unanimity instruction; (5) prosecutorial misconduct;
(6) cumulative error; and (7) ineffective assistance of trial
counsel.
DISCUSSION
I. Failure to instruct on a lesser included offense
Clark’s first contention is the trial court prejudicially erred
by failing to instruct the jury on assault with force likely to
produce great bodily injury as a lesser included offense to child
assault homicide.8 We disagree.
A. The duty to instruct on lesser included offenses
Even in the absence of a request, a trial court must instruct
on the general principles of law, including lesser included
offenses, relevant to the issues raised by the evidence. (People v.
Smith (2013) 57 Cal.4th 232, 239; People v. Breverman (1998)
19 Cal.4th 142, 154.) Instruction on a lesser included offense is
required when there is evidence the defendant is guilty of the
lesser offense, but not the greater. (People v. Whalen (2013)
56 Cal.4th 1, 68.) Substantial evidence is evidence a reasonable
jury could find persuasive. (People v. Williams (2015) 61 Cal.4th
1244, 1263.) The “testimony of a single witness,
including . . .[the] defendant, may suffice.” (Wyatt II, supra,
55 Cal.4th at p. 698.) In determining whether substantial
8 The trial court reasoned that the “facts really don’t
support that, and, in fact, if [Clark] had been convicted of 875
[assault with force likely to produce great bodily injury] because
the individual didn’t die in this case, I think it would lead to a
conviction in the greater.”
14
evidence existed, we do not evaluate the credibility of the
witnesses, a task for the jury. (Ibid.) However, the existence of
any evidence, no matter how weak, will not justify an instruction.
(Whalen, at p. 68.) Thus, the “obligation to instruct on a lesser
included offense does not arise when there is no evidence that the
offense was less than that charged.” (Wyatt II, at p. 702.)
A “primary reason for requiring instructions on lesser
included offenses is ‘ “to eliminate the distortion of the factfinding
process that is created when the jury is forced into an all-or-
nothing choice between [guilt] and innocence” ’—that is, to
eliminate ‘ “the risk that the jury will convict . . . simply to avoid
setting the defendant free.” ’ ” (People v. Majors (1998)
18 Cal.4th 385, 410.)
We independently review whether the trial court erred by
failing to instruct on a lesser included offense. (People v. Nelson
(2016) 1 Cal.5th 513, 538; People v. Trujeque (2015) 61 Cal.4th
227, 271.) Reversal is not warranted unless it appears
“ ‘reasonably probable’ the defendant would have achieved a more
favorable result had the error not occurred.” (People v.
Breverman, supra, 19 Cal.4th at p. 149.)
B. Assault
As a general matter, assault crimes are ones of general
intent that do not require a specific intent to cause injury.
(People v. Williams (2001) 26 Cal.4th 779, 782, 788; see People v.
Albritton (1998) 67 Cal.App.4th 647, 658 [child assault homicide
is a general intent crime].) To be guilty of assault, a defendant
must be aware of facts that would lead a reasonable person to
realize that a certain consequence would directly, naturally and
probably result from his or her actions. (Williams, at p. 788.)
15
However, a defendant may not be convicted based on facts he did
not know but should have known. (Ibid.)
As to child assault homicide specifically, its elements are:
“(1) a person, having the care or custody of a child under the age
of eight; (2) assaults the 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.”9 (People v. Wyatt (2010)
48 Cal.4th 776, 780–781; Wyatt II, supra, 55 Cal.4th at p. 702.)
The jury here was accordingly instructed as to the third element
regarding mens rea that the prosecution had to prove that when
Clark “acted, he was aware of facts that would lead a reasonable
person to realize that his act by its nature would directly and
9 The trial court instructed the jury that child assault
homicide required the prosecution to prove:
“1. The defendant had care or custody of a child who was
under the age of 8;
“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;
“7. The defendant’s act caused the child’s death.
[¶] . . . [¶]
“Great bodily injury means significant or substantial
physical injury. It is an injury that is greater than minor or
moderate harm.” (Italics omitted.)
16
probably result in great bodily injury to” King. (Italics added.) In
contrast to child assault homicide, assault with force likely to
cause great bodily injury, with which the jury was not instructed,
requires proof that when 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 the application of
force to someone.”10
The difference between the two crimes is thus one of three
words about what defendant knew his act would directly and
probably result in: either “great bodily injury” (child assault
homicide) or the “application of force” (assault with force likely to
produce great bodily injury). “Great bodily injury” is “significant
or substantial physical injury. It is an injury that is greater than
10 Assault with force likely to produce great bodily injury
requires the People to prove: (1) The defendant did an act that by
its nature would directly and probably result in the application of
force to a person; (2) The defendant did that act willfully; (3) The
force used was likely to produce great bodily injury; (4) 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 the application of force to
someone; and (5) When the defendant acted, he had the present
ability to apply force likely to produce great bodily injury to a
person. The terms application of force and apply force mean to
touch in a harmful or offensive manner. The slightest touching
can be enough if it is done in a rude or angry way. Making
contact with another person, including through his or her
clothing is enough. The touching does not have to cause pain or
injury of any kind. The touching can be done indirectly by
causing an object to touch the person. Great bodily injury means
significant or substantial physical injury. It is an injury that is
greater than minor or moderate harm. (See, e.g., CALCRIM
No. 875.)
17
minor or moderate harm.” (CALCRIM No. 820, italics omitted.)
In contrast, the “terms application of force and apply force mean
to touch in a harmful or offensive manner. The slightest touching
can be enough if it is done in a rude or angry way. Making
contact with another person, including through his or her
clothing is enough. The touching does not have to cause pain or
injury of any kind. [¶] The touching can be done indirectly by
causing an object . . . to touch the other person.” (CALCRIM
No. 875, brackets omitted.) Thus, arguably the difference
between child assault homicide and assault with force likely to
produce great bodily injury is one between “great bodily injury”
and battery.
Clark thus argues that given the “ambiguous and
contradictory evidence regarding multiple assaultive acts that
could have caused the fatal injury and the quantum of force
related to those assaultive acts” and King’s prior falls down stairs
“that made him more susceptible to a traumatic brain injury,
there could be a reasonable doubt that [Clark] would objectively
appreciate that his ‘old school’ popping the back of King’s
head . . . or his tossing King up into the air and catching him
would likely result in” great bodily injury. As we therefore
understand the argument, because Clark did not know of King’s
prior falls down stairs, Clark did not realize that hitting King on
the back of the head or tossing him into the air could result in
great bodily injury. Hence, the trial court should have instructed
the jury on the lesser included offense of assault with force likely
to produce great bodily injury.
This argument rests on the notion that a fall or falls down
stairs left King’s brain so susceptible to reinjury that a minor
event, such as being playfully tossed into the air or falling back
18
onto carpet, caused multiple, diffuse hemorrhages to the
subcutaneous, subgaleal, and subdural regions of his head.
However, what, specifically, was the evidence that King suffered
a subdural bleed in or about July 2012? The evidence relevant to
this notion was limited to the following. In July 2012, King fell
down 15 or 16 concrete or tiled stairs, resulting in a bump to his
head. Emergency room doctors examined and released him
without ordering a CT scan. Eight-year-old Joy recalled a second
fall down stairs and trip to the emergency room. Five months
later, around Christmas, King was ill and not himself. The
prosecution’s experts agreed with the general ideas that a fall
down stairs could cause veins on a child’s brain to bleed, and
veins, having once bled and healed, could “potentially” be more
susceptible to reinjury. And, according to Dr. Tovar, if months
later someone gives the child a “little pop” on the head, that
might be enough to cause the veins to bleed again or, as
Dr. Berkowitz said, a nonfatal rebleed.
To be sure, this was substantial evidence King fell down
stairs and had a bump to the head. It is not substantial evidence
that King’s fall down stairs resulted in bleeding in the veins on
his brain.11 Rather, substantial evidence requires evidence and
not mere speculation. In any given case, one could “speculate
about any number of scenarios that may have occurred,” but a
reasonable inference “ ‘may not be based on suspicion alone, or on
imagination, speculation, supposition, surmise, conjecture, or
11 This point leads to the writ, which faults Clark’s trial
counsel for failing to call a defense expert witness to testify that
the earlier fall could have caused King’s veins to bleed and
rendered his brain susceptible to reinjury. We discuss that issue
post.
19
guess work. . . . A finding of fact must be an inference drawn
from evidence rather than . . . a mere speculation as to
probabilities without evidence.’ ” (People v. Morris (1988)
46 Cal.3d 1, 21; see People v. Crew (2003) 31 Cal.4th 822, 835
[speculation is not substantial evidence].) It is speculative to
draw a line from King’s fall down stairs to a subdural injury so
extensive that a minor event such as tossing King in the air or
hitting his head on carpet could cause his death.
And, to the extent Clark argues that his “pops” to King’s
head were mere “applications of force” amounting only to a
battery, we disagree. King was only about 19 months old when
Clark began caring for him and two years old when he died.
Notwithstanding the fragility of such a young child’s head, Clark
admitted he hit King on the back of his head at least eight times.
Although Clark contends there was ambiguity about the level of
force he used, citing, for example, that he left no external marks
on the child, he unambiguously said in his interview with
Detective Mitchell and at trial that he sometimes hit King at a
“seven” on a scale of one to 10, with a 10 being the hardest he
could hit. At trial, he admitted he exceeded his power, albeit just
“once.” A reasonable person would have appreciated that hitting
a baby on the back of the head would result in great bodily injury.
Stated otherwise, to the extent Clark’s argument the trial court
should have instructed the jury on the lesser is based on his “old
school” style of “discipline” which included “sometimes” hitting a
baby on the head at a power level of seven, Clark, if guilty at all,
was guilty of the greater offense. (See Wyatt II, supra, 55 Cal.4th
at pp. 702–704 [forceful play-wrestling with 14 month old not
simple assault].)
20
II. Sanchez error
Clark next contends that Drs. Tovar and Berkowitz’s
reliance on the ophthalmologist and neuropathologist reports
violated Sanchez, supra, 63 Cal.4th 665.12 As we now explain, we
reject his contention that any prejudicial error occurred.
Sanchez, supra, 63 Cal.4th 665 addressed the manner in
which expert witnesses—specifically in that case a gang expert—
may refer to hearsay they relied on to support their opinion. The
court thus considered the extent to which the confrontation
clause and our state hearsay rules preclude expert witnesses
from relating “case-specific” hearsay in explaining the basis for
an opinion. Case-specific facts are those relating to the
particular events and participants in the case being tried. (Id. at
p. 676.) “Generally, parties try to establish the facts on which
their theory of the case depends by calling witnesses with
personal knowledge of those case-specific facts. An expert may
then testify about more generalized information to help jurors
understand the significance of those case-specific facts. An
expert is . . . allowed to give an opinion about what those facts
may mean.” (Ibid.) When an expert relates case-specific facts
and treats the content of those statements as true and accurate
to support the expert’s opinion, the statements are hearsay. And,
if the “prosecution expert seeks to relate testimonial hearsay,[13]
12 Clark cursorily argues that the experts’ reliance on police
reports and King’s well-child visits was also Sanchez error, but
the thrust of his argument concerns the ophthalmologist and
neuropathologist’s reports.
13Testimonial statements are ones made with some degree
of formality or solemnity and having the primary purpose of
21
there is a confrontation clause violation unless (1) there is a
showing of unavailability and (2) the defendant had a prior
opportunity for cross-examination, or forfeited that right by
wrongdoing.” (Id. at p. 686.)
We have no occasion here to consider whether the expert
doctor witnesses violated Sanchez by relying on inadmissible
hearsay, namely, the ophthalmologist and neuropathologist
reports. Even if the information in those reports—that King had
retinal hemorrhages and that he did not die of natural causes—
were case-specific facts requiring the ophthalmologist and
neuropathologist to testify as them, no prejudice accrued to
Clark.
First, King’s medical records otherwise established he had
retinal hemorrhaging.14 Dr. Tovar referred to “reports of retinal
hemorrhages from the documentation,” which prompted him to
send King’s eyes to an external consultant. Dr. Tovar then
referred to a “report of retinal hemorrhages in the hospital
setting.” Dr. Berkowitz similarly reviewed King’s medical
records. Those records, and in particular the ones from Antelope
Valley Hospital, showed “evidence of bleeding within the back of
the eye . . . . I think the comment was that they were petechiae
establishing or proving past events relevant in a later criminal
prosecution. (People v. Edwards (2013) 57 Cal.4th 658, 705.)
14 Dr. Tovar testified that an individual’s medical records
reflecting treatment before death factored into his ultimate
determination of cause of death: “If an individual is in the
hospital for an extended amount of time, such as this case here,
we would use some of that medical information to go back to
identify what was happening immediately at the time of
presentation to assess those findings, because some of the
findings may be altered or different at the time of autopsy.”
22
eye, little tiny hemorrhages that were present in the back of the
eye” when King was at the hospital. By this, it is reasonably
clear that the medical records were made by, for example, King’s
treating physicians. Therefore, to the extent the experts’
conclusions that King was violently shaken or suffered blunt
force head trauma relied on the presence of retinal
hemorrhaging, the medical records established that fact.
However, the admissibility of those medical records is not
before us. Clark concedes, properly, they are not testimonial and
their admission did not violate his confrontation rights.
Therefore, if the medical records are hearsay, they are
nontestimonial hearsay. Experts “may . . . rely on nontestimonial
hearsay properly admitted under a statutory hearsay exception.”
(Sanchez, supra, 63 Cal.4th at p. 685.) Clark did not object to
King’s medical records. And he does not argue on appeal that
they were inadmissible under state evidentiary rules. Any issue
as to admissibility under state law is therefore forfeited.
As to the neuropathologist’s report, Dr. Tovar’s reliance on
it was harmless beyond a reasonable doubt. (See generally
Sanchez, supra, 63 Cal.4th at p. 698.) The report merely
confirmed Dr. Tovar’s personal observation King did not die of
natural causes. That is, Dr. Tovar’s external and internal
examinations of King’s body revealed no congenital,
cardiovascular or respiratory abnormalities. King’s major organs
similarly showed no abnormalities. The case-specific fact that
King had no disease or natural condition that could explain his
23
death was therefore based on Dr. Tovar’s personal observations.15
The neuropathologist similarly ruled out, at a gross and
microscopic level, any natural process that might have caused
hemorrhages. Thus, the neuropathologist’s report merely
confirmed and buttressed Dr. Tovar’s finding. Moreover, that
finding—that a two-year-old child did not die from natural
causes—was hardly a controversial one. The defense did not
contend King died of natural causes. Rather, the defense theory
was King died because some minor event on January 3, 2013
exacerbated a prior head injury.
III. Miranda
Before trial, Clark moved, under Miranda to exclude his
statements to Detective Mitchell. After setting forth additional
facts regarding those statements, we conclude Clark was not in
custody and therefore Miranda warnings were not required.
A. Additional facts
To determine the admissibility of Clark’s statements, the
trial court held a hearing at which four law enforcement officers
and Clark testified. The officers’ testimony established that
when deputies arrived at Clark’s home, he was getting ready to
leave for the hospital. A deputy put him in the back of a patrol
car and another deputy stood watch nearby. When Detective
Laura Bruner arrived, she asked Clark if he was willing to take a
polygraph test. Clark said he would, so the officers moved Clark
from the patrol car to an unmarked vehicle which had no internal
15Dr. Berkowitz similarly could think of no natural event
in a healthy two year old that could account for the hemorrhaging
in the brain, the retinal hemorrhaging, and the cardiac arrest.
24
cage. A deputy sat next to Clark in the backseat en route to the
station. At the station, Clark was taken to an interview room
where he signed a consent to take a polygraph. Detective
Mitchell told Clark that he was not in custody, “nobody’s put
handcuffs on you, nobody’s detained you, nobody’s held you
against your will. I’m not going to make you stay or force you to
stay or trick you to stay or anything like that. That’s not how we
do it, okay? We keep it on a very professional level, very low
key.” Although Clark and the detective talked, Clark was never
given a polygraph test.
Three of the officers testified that Clark was not
handcuffed, and the fourth could not remember. All officers said
that Clark did not ask for an attorney. None of the officers gave
Clark his Miranda rights.
Clark, however, said he was handcuffed on the way to the
patrol car, although he sat without handcuffs in the car, and he
immediately asked for an attorney. Although he was told he was
not under arrest, he never felt free to leave. He sat in the patrol
car for about an hour before being moved to the unmarked
vehicle.
In issuing its ruling, the trial court expressly resolved
discrepancies between the officers’ and Clark’s testimony in the
officers’ favor, particularly whether Clark was handcuffed. The
trial court found that if Clark was in custody when he was put in
the back of the patrol car for an hour, that custody or detention
was “lifted” when he was taken out of the car. Also, if Clark was
in custody, “that was more than cured by” the detective’s
statement at the interview that Clark was free to leave. Based
on the totality of the circumstances, the trial court found that
25
Clark was not in custody, and therefore his statements were
admissible.
B. Clark was not in custody
Miranda, supra, 384 U.S. 436 requires a suspect to a
custodial interrogation to be advised of certain rights. (People v.
Mickey (1991) 54 Cal.3d 612, 648.) The test for whether a suspect
is in custody is objective; the question is whether there was a
formal arrest or a restraint on the freedom of the suspect’s
movement to the degree associated with a formal arrest. (People
v. Leonard (2007) 40 Cal.4th 1370, 1400; People v. Kopatz (2015)
61 Cal.4th 62, 80 (Kopatz).) Stated otherwise, would a reasonable
person have felt at liberty to end the interrogation and to leave?
(People v. Ochoa (1998) 19 Cal.4th 353, 401–402.)
Whether a suspect is in custody depends on the totality of
the circumstances. (People v. Pilster (2006) 138 Cal.App.4th
1395, 1403.) Although no single factor is controlling, we consider
“ ‘(1) [W]hether the suspect has been formally arrested; (2) absent
formal arrest, the length of the detention; (3) the location; (4) the
ratio of officers to suspects; and (5) the demeanor of the officer,
including the nature of the questioning.’ [Citation.] Additional
factors are whether the suspect agreed to the interview and was
informed he or she could terminate the questioning, whether
police informed the person he or she was considered a witness or
suspect, whether there were restrictions on the suspect’s freedom
of movement during the interview, and whether police officers
dominated and controlled the interrogation or were ‘aggressive,
confrontational, and/or accusatory,’ whether they pressured the
suspect, and whether the suspect was arrested at the conclusion
of the interview.” (Id. at pp. 1403–1404.)
26
“Whether a [suspect] was in custody for Miranda purposes
is a mixed question of law and fact.” (Kopatz, supra, 61 Cal.4th
at p. 80.) We apply a substantial evidence standard to the trial
court’s factual findings regarding the circumstances surrounding
the interrogation, but we independently decide whether, given
those circumstances, a reasonable person in the defendant’s
position would have felt free to end the questioning and to leave.
(Ibid.)
Here, Clark argues he was in custody beginning when
officers put him in the patrol car, where he sat for about an hour.
Other than that, there is no indicia of custody. Clark was not
searched, handcuffed or arrested. Notwithstanding that he sat in
a patrol car for about an hour or more, there is no evidence he
could not have left the car had he asked. (See People v. Moore
(2011) 51 Cal.4th 386, 395–396 [defendant who agreed to talk to
deputy in patrol car was not in custody].) Moreover, once
Detective Bruner arrived, she asked Clark whether he would be
willing to take a polygraph test. Clark confirmed that the
detective “asked [him] would [he] take a polygraph test, and the
first thing [he] asked, [he would] like to speak to an attorney.
[Detective Bruner] told [him] [he was] not under arrest, . . . [w]e
just want to talk to you, to take the poly to clear your name, and
we will get you back to your kids. And [he] said, okay, because
[he] wanted to get back to [his] kids.” (Italics added.)
Then, at the station, Detective Mitchell told Clark “you are
not in custody, nobody’s put handcuffs on you, nobody’s detained
you, nobody’s held you against your will. I’m not going to make
you stay or force you to stay or trick you to stay or anything like
that.” Further, Clark signed a consent-waiver for polygraph
examination form stating that he “voluntarily” agreed to submit
27
to the examination and understood he was free to terminate it
any time. Signing such a form strongly supports the
voluntariness of an interview. (People v. Ochoa, supra,
19 Cal.4th at p. 402.) Under such a circumstance, a reasonable
individual would know “that he or she can end a voluntary
association with other individuals at will. This is so despite the
location of defendant’s questioning: the fact that he was
questioned in the police station’s polygraph examination room
does not necessarily require a finding of custody, even if the room
was in a secure area.” (Id. at p. 403.)
Nothing in the other circumstances surrounding Clark’s
interview shows that he was in custody. He waited in the patrol
car for only about an hour before Detective Bruner asked if would
take a polygraph test. The record also suggests that law
enforcement officers drove Clark to the station as a matter of
convenience, because he did not have car. (See Kopatz, supra,
61 Cal.4th at p. 81 [inference was defendant needed a ride to
station].) There is no evidence that Detective Mitchell or any
other law enforcement officer behaved aggressively toward Clark.
To the contrary, the transcript of Clark’s interview indicates that
Detective Mitchell behaved in a congenial, nonaggressive, and
respectful manner. The totality of the circumstances thus show
that Clark was not in custody.
IV. Unanimity instruction
Clark argues that the trial court should have given a
unanimity instruction because the prosecution presented the
following three discrete factual theories regarding the assault
causing Clark’s death: (1) Clark disciplined King by “popping”
him on the head, (2) Clark somehow knocked King’s head against
the bathtub, and (3) Clark violently shook King. As a
28
preliminary matter, the prosecution did not present three
discrete factual theories causing Clark’s death. Clark’s history of
hitting King—or, as appellant’s counsel characterizes it, “old-
school punishment”—was relevant to show that Clark, in keeping
with his practice, hit King on January 3, 2013 as well.16 But, it
was not the prosecution’s theory that those prior assaults killed
King on January 3. Rather, the prosecution’s theory was Clark
did something—hit King on the head and/or shook him violently
perhaps causing King to hit his head on the bathtub—on
January 3 that caused King’s death.17
This leads us to the next problem with Clark’s argument
that a unanimity instruction was required. Such an instruction
is necessary if there is evidence more than one crime occurred,
“each of which could provide the basis for conviction under a
single count” (People v. Grimes (2016) 1 Cal.5th 698, 727),
because the jury must agree on the same criminal act (People v.
Russo (2001) 25 Cal.4th 1124, 1132). However, there are
exceptions to this general rule. One is the continuous-course-of
conduct exception, which applies “ ‘when the acts are so closely
connected in time as to form part of one transaction.’ ” (People v.
16 It also could have been relevant to rebut any argument
that to the extent King’s susceptibility to injury was due to some
prior event—that event was not the fall down the stairs: it was
Clark’s practice of hitting King at a level of seven, and sometimes
at a nine or 10.
17It also was not the prosecutor’s theory that King hitting
his head on the carpet caused the subdural hemorrhage.
29
Jennings (2010) 50 Cal.4th 616, 679.)18 This exception also
applies “ ‘[w]here . . . the evidence establishes a pattern of
physical trauma inflicted [on] a child [over] a relatively short
period of time [and] a single course of conduct is involved.’ ”
(People v. Napoles (2002) 104 Cal.App.4th 108, 116, italics
omitted.) Where, for example, the cumulative result or effect of
the conduct is great bodily injury, a unanimity instruction is not
required. (Jennings, at p. 680.)
The exception applies here. The prosecution theory was
something catastrophic happened to King on January 3, 2013
over a short period of time. The prosecutor did not argue, nor
was there evidence, that hitting King’s head or shaking him were
separate, discrete acts. The prosecutor therefore repeatedly
argued in closing that the “head trauma was inflicted on
January 3, 2013”; “based on the medical science and the evidence,
it’s undisputed that all that trauma that baby King had to endure
and die from, it all happened on January 3”; “[Clark] inflicted the
head trauma on January 3, 2013”; and Clark took King to the
bathroom and gave him a “couple blows to the head . . . [a]nd
after he did the blows, he shook baby King and baby King’s head
hit the bathtub. That’s why there’s the subgaleal hemorrhage,
and the rotation, the acceleration, deceleration, and the blows to
the head from the head going forward and back and hitting the
tub, the retinal hemorrhaging.” However, even if the jury could
have believed that Clark’s months-long history of hitting King,
culminating in the fatal event on January 3, 2013, caused King’s
18Another exception is when the defendant offers the same
defense or defenses to the various acts constituting the charged
crime. (People v. Jennings, supra, 50 Cal.4th at p. 680.)
30
heart to stop beating, that abuse could only have happened over a
brief period of time, given that Clark and Ericka began living
together in September 2012 and King stopped breathing on
January 3, 2013.19 (See, e.g., People v. Ewing (1977)
72 Cal.App.3d 714, 717 [unanimity instruction not required
where physical abuse occurred over period of time].) Thus,
where, as here, the evidence is that trauma was inflicted on a
child within a relatively short period of time, the continuous
course of conduct exception applies. (People v. Napoles, supra,
104 Cal.App.4th at pp. 115–116.) No unanimity instruction was
required.
V. Prosecutorial misconduct
While conceding there “was no single instance of egregious
misconduct,” Clark argues there nonetheless was a “pattern of
subtle instances of prosecutorial misconduct.”20
“The applicable federal and state standards regarding
prosecutorial misconduct are well established. ‘ “A
prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct ‘so egregious
that it infects the trial with such unfairness as to make the
19Indeed, Clark said he didn’t start hitting King until the
family moved to Lancaster, in October 2012.
20 The Attorney General fails to respond meaningfully to
this issue. Instead, the respondent’s brief appears to have been
cut and pasted from another case. That is, the Attorney General
argues the issue has been forfeited, but defense counsel did object
to the instances of alleged misconduct. Also, the respondent’s
brief refers to firearms possession, but firearms possession is not
at issue.
31
conviction a denial of due process.’ ” ’ [Citations.] 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 court or the jury.’ ” ’
[Citation.] . . . [Citation.] Additionally, when 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.)
Here, the prosecutor’s alleged pattern of misconduct
consisted of, first, objecting during defense counsel’s cross-
examination of Dr. Berkowitz on the ground counsel was “almost
yelling” at the witness. The trial court overruled the objection
and found that counsel was not yelling at the doctor but was
instead “putting emphasis in his example and maybe some
indignation” into the question. The trial court, however,
cautioned the prosecutor: “[S]o while I don’t think your objection
is misplaced now, what I don’t want to see is, for any strategic
reasons—and I have no reason to believe you’d do this, but to be
interrupting counsel’s method of cross-examination absent it just
being obviously berating the witness or being argumentative.”
The trial court found that the objection, while overruled, was not
“misplaced” and then simply informed the prosecutor it did not
want to see interruption of cross-examination purely for
“strategic reasons,” which the court acknowledged had not
occurred. No misconduct occurred.
Second, Clark contends that the prosecutor impugned his
trial counsel’s integrity by asking about how Clark and his
32
counsel discussed that trial would be about emotion overriding
the evidence, and his counsel was “brillian[t]” at that. Defense
counsel objected, and the trial court warned the prosecutor he
was “walking on very dangerous ground. I understand why you
want some of it to come in, but what I cannot and will not allow is
for this to be manipulated in some way impugning the integrity
of the defense.” The trial court’s warning was fair, because it is
misconduct for a prosecutor to impugn defense counsel’s integrity
or to suggest defense counsel fabricated a defense. (People v.
Cash (2002) 28 Cal.4th 703, 732.) Even so, it was a warning. As
the trial court acknowledged, the prosecutor had not yet crossed
the line. No misconduct occurred.
Next, during his closing argument, the prosecutor returned
to this theme and said defense counsel “is brilliant at getting the
jury to forget about the evidence and just look at the emotion, feel
sorry for him [Citation.] . . . [Citation.] . . . and find him not
guilty.” The trial court overruled the defense objection.
Although, as we have said, a prosecutor may not cast aspersions
on defense counsel (People v Hill (1998) 17 Cal.4th 800, 832), a
prosecutor may vigorously attack the defense case and focus on
deficiencies in counsel’s tactics and factual account. (People v.
Redd (2010) 48 Cal.4th 691, 735; see, e.g., People v. Medina
(1995) 11 Cal.4th 694, 759.) This was nothing more than a
vigorous comment on defense tactics.
Finally, the prosecutor analogized conscious disregard for
life to driving under the influence, where “someone goes out,
drinks, drives, and murders someone” even though the person did
not “intend to murder someone that night.” Defense counsel
objected to the prosecutor’s reference to a “Watson murder D.U.I.
33
situation.”21 The trial court sustained an objection, finding that
the prosecutor oversimplified the law and, in doing so, misstated
it. However, the trial court told the prosecutor that the analogy
was relevant and, if he intended to continue with it, to state the
full elements of malice. The prosecutor took the court’s advice,
telling the jury that a Watson murder is “where a person is
advised of the dangers of driving through the courts, through the
D.M.V., or through the sheriff’s department, goes out drinking,
knows about that, but yet still exercises complete disregard and
does what they do . . . . So the implied malice is nothing that’s
foreign here.” Thus, even if the prosecutor’s misstatement was
misconduct, reversal is not warranted because the prosecutor
corrected his misstatement of law. That correction mitigated any
prejudice. (See, e.g., People v. Redd, supra, 48 Cal.4th at p. 752
[no prejudice when prosecutor corrects his misstatement of fact].)
VI. Cumulative error
As “ ‘[w]e have . . . found any assumed errors to be
nonprejudicial[,] [w]e reach the same conclusion with respect to
the cumulative effect of any [purported] errors.’ ” (People v. Cole
(2004) 33 Cal.4th 1158, 1235–1236; People v. Butler (2009)
46 Cal.4th 847, 885.)
VII. Petition for writ of habeas corpus
In his writ petition, Clark contends his trial counsel
provided ineffective assistance by failing to consult with and to
present a medical expert to support the defense theory that a
21In short, a Watson murder is one based on implied
malice. (People v. Watson (1981) 30 Cal.3d 290.)
34
contributing cause of King’s fatal injury was his “compromised
brain structure” from the earlier fall down stairs.
A. Additional background
To support his writ petition, Clark submitted the
declaration of Dr. Marvin Pietruszka, a forensic pathologist.
Dr. Pietruszka had been retained in April 2013 to review King’s
medical records in connection with a dependency matter
concerning Clark’s children. In a letter to counsel in that matter,
the doctor noted that, based on King’s subdural hematoma,
retinal hemorrhage, and that he was in full arrest but was
resuscitated, “an argument can be made that throwing a child up
in the air can cause retinal hemorrhages and that falling onto the
head can cause subdural hematomas. The absence of a skull or
cervical spine fracture suggests that there was no trauma with
an object and that the fall could be accidental. However, other
factors must be considered as well and these include the
numerous times that the child’s head was hit with the caretaker’s
hand.”
Thereafter, Clark’s appellate counsel asked Dr. Pietruszka
to review additional records concerning King, including the trial
testimony of Drs. Tovar and Berkowitz. In Dr. Pietruszka’s view,
forensic evidence showed that King had an earlier traumatic
brain injury. Specifically, the January 3, 2013 CT scan of King’s
brain found “mild atrophy,” and the neuropathologist confirmed
this finding. Because atrophy takes months or longer to occur,
Dr. Pietruszka reasoned that King’s fall down stairs may have
caused it. However, the doctor also noted that “slapping or
tapping of King[’s] . . . head, with only minor or moderate force as
described by . . . Clark, could certainly contribute to a worsening
of the prior injury and may reasonably have contributed to the
35
catastrophic event that led to King[’s] . . . death.” Likewise,
tossing King in the air and/or hitting his head on the carpet could
have “aggravated some brain structure weakness and triggered
the catastrophic event.”
Dr. Pietruszka’s opinion was King suffered an earlier
trauma to his brain, “possibly from the falls down the stairs, or
possibly from the repeated popping” of his head by” Clark, or a
combination of both. The catastrophic event that caused King’s
death may have been the result of the application of a less than
normally expected lethal application of force, such as tossing him
into the air and catching him, which aggravated an earlier injury.
“[T]he fall down the stairs likely caused the most serious
underl[y]ing injury” and “the repeated blows to the head
by . . . Clark may have been a contributing factor.” “The presence
of cerebral atrophy increases the risk of brain hemorrhage with
even minor trauma.”
Clark’s trial counsel elected not to call a medical expert
because based on the medical reports and Clark’s statements to
law enforcement, counsel instead chose to cross-examine the
prosecution’s medical witness.
B. Counsel made a reasonable tactical decision
“To establish ineffective assistance of counsel, a defendant
must show that (1) counsel’s representation fell below an
objective standard of reasonableness under prevailing
[professional] norms[;] and (2) counsel’s deficient performance
was prejudicial.” (People v. Scott (1997) 15 Cal.4th 1188, 1211;
Strickland v. Washington (1984) 466 U.S. 668, 687.) Prejudice is
shown when there is a reasonable probability that but for
counsel’s error the result of the proceeding would have been
different. “ ‘A reasonable probability is [one] . . . sufficient to
36
undermine confidence in the outcome.’ ” (Scott, at pp. 1211–
1212.)
We must defer to trial counsel’s reasonable tactical
decisions and indulge the “ ‘ “strong presumption that counsel’s
conduct falls within the wide range of . . . professional
assistance.” ’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925.)
Courts should not “second-guess reasonable, if difficult, tactical
decisions in the harsh light of hindsight.” (People v. Scott, supra,
15 Cal.4th at p. 1212.) “Tactical errors are generally not deemed
reversible, and counsel’s decisionmaking must be evaluated in
the context of the available facts.” (People v. Bolin (1998)
18 Cal.4th 297, 333.) There are countless ways to assist a
defendant effectively, and we must be mindful that even the best
criminal defense attorneys would not defend the same client the
same way. (Strickland v. Washington, supra, 466 U.S. at p. 689.)
Here, Clark concedes his trial counsel made a tactical
decision not to call Dr. Pietruszka as an expert. He just contends
it was an unreasonable one. The record, however, shows it was
more than reasonable. The doctor certainly could have opined—
as did Drs. Tovar and Berkowitz—that a fall down stairs can
cause brain injury and that the brain might be susceptible to
reinjury. What Dr. Pietruszka could not have done was rule out
that Clark—rather than the fall down stairs—caused any prior
brain injury by repeatedly hitting King at a level of seven and
sometimes a nine or 10. In fact, Dr. Pietruszka opined that King
suffered an earlier trauma to his brain, “possibly from the falls
down the stairs, or possibly from the repeated popping of his head
by . . . Clark, or a combination of both.” (Italics added.)
Thus, trial counsel had to weigh the value of having his
own expert concede in front of the jury that Clark could have
37
caused any mild brain atrophy by hitting King on multiple
occasions, thereby highlighting one of the more devastating facts
to the defense case. It is understandable that counsel might have
decided he did not like those optics. Instead, defense counsel
made the reasonable, tactical decision to elicit the reinjury theory
via the prosecution’s experts. To that end, counsel cross-
examined Drs. Tovar and Berkowitz on the theory King had been
injured in the fall down stairs, rendering his brain susceptible to
reinjury or to a rebleed. Even Clark’s appellate counsel concedes
that trial counsel did an “admirable” job on that score. The
defense theory was therefore fully and effectively presented to
the jury.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas
corpus is denied.
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
EGERTON, J.
38
LAVIN, Acting P. J., Dissenting:
The California Supreme Court vacated our prior opinion
and directed us to reconsider the cause in light of People v. Perez
(2020) 9 Cal.5th 1. Perez held that failure to object to pre-
Sanchez1 expert testimony that related case-specific hearsay does
not forfeit the issue on appeal. On reconsideration, the majority
restates its prior opinion without any substantive change.
As I stated before, the prosecution’s expert witnesses,
Doctors Jason Tovar and Carol Berkowitz, based their opinions
on case-specific hearsay. Because their testimony was improperly
admitted under Sanchez, and that testimony was central to
defendant’s conviction for assault on a child causing death in
violation of Penal Code section 273ab, I would reverse count 1
and remand for retrial of that count. Therefore, and once again, I
respectfully dissent.
1. The experts related case-specific hearsay to the jury.
Essentially, “[t]his case presents the following issue: May
an expert relate as true the case-specific content of documents
which were neither admitted into evidence nor shown to be
covered by a hearsay exception?” (People v. Yates (2018) 25
Cal.App.5th 474, 476.) Here, the prosecution’s experts, Tovar, the
medical examiner, and Berkowitz, an expert in child abuse
pediatrics, testified about the case-specific content of documents
that were not admitted into evidence, including reports prepared
1 People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
by an ophthalmologist and neuropathologist.2 In my view, this
was error. (See Sanchez, supra, 63 Cal.4th at p. 677 [citing
hemorrhaging in the eyes of a murder victim noted during
autopsy as a case-specific fact that would need to be established
by the autopsy surgeon]; People v. Burroughs (2016)
6 Cal.App.5th 378, 404 [trial court improperly admitted expert
testimony relating to documents, such as police reports,
probation reports, and hospital, that which formed the basis of
their opinions].)
For example, in reaching his conclusion that King J. died
from blunt-force trauma (as opposed to a natural cause or some
underlying condition), Tovar testified that based on a drug screen
of the child’s urine and blood, there was no evidence of any drugs
in his system. And based on the “U.C. Ophthalmology Report,”
there were “findings of retinal hemorrhages” and no indication of
any natural disease process; the retinal hemorrhaging was
therefore the result of “blunt force injuries.” Tovar also testified
that he submitted the child’s brain and dura for microscopic
analysis by the neuropathologist. Importantly, based on the
neuropathologist’s finding that the dura indicated no prior injury,
Tovar opined there was no evidence the child had any prior injury
that would have caused or contributed to the subdural
hemorrhaging.
For her part, Berkowitz testified at length about certain
“concerning” symptoms reflected in medical or paramedic reports
(e.g., the child’s fixed and dilated pupils were “a sign that there’s
been significant brain injury,” E.K.G. results showing the
2 Sanchez defined “case specific” facts as those “relating to the
particular events and participants alleged to have been involved in the
case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.)
2
“electricity rate of 32,” and low body and rectal temperatures).
Notably, she also testified that based on observations by hospital
staff, there “was evidence of bleeding within the back of the eye,
what we call the fundi.” And based on a CT scan from Kaiser
Medical Center—which was done after the normal CT scan at
Antelope Valley Hospital— she noticed there was a “lateral
subdural hemorrhage.” Towards the end of her direct
examination, and after reviewing those reports, Berkowitz opined
King suffered from “non-accidental abuse of head trauma” around
the time he “became symptomatic.”
In sum, the prosecution neither presented nor did the trial
court admit into evidence the records or other documents that
were the sources of the case-specific hearsay the experts related
to the jury.
2. The error was prejudicial.
We review the erroneous admission of expert testimony
under the state standard of prejudice. (People v. Watson (1956) 46
Cal.2d 818, 836; People v. Stamps (2016) 3 Cal.App.5th 988, 997.)
Under that standard, it is reasonably probable defendant would
have obtained a more favorable outcome had the error not
occurred.
First, the error went to the heart of the defense that King’s
previous head trauma made him more susceptible to serious
injury from relatively minor applications of force. (See People v.
Neidinger (2006) 40 Cal.4th 67, 79.) For example, in his opening
statement, counsel emphasized that there was no sign King had
been beaten and none of the bruising one would expect to see on
an abused child. Counsel’s cross examination of Tovar focused
exclusively on whether minor force could have killed King—
namely, the prosecution’s failure to reveal information about
3
King’s prior injuries to Tovar; the possible medical consequences
of King’s earlier falls; how any trauma from those falls could have
dovetailed with later, minor applications of force; and whether
the lack of external, visible injuries provided evidence of that
minor force. Counsel focused on these same issues in closing
argument. And the jury agreed with that defense—at least in
part. Jurors acquitted defendant of murder but convicted him of
the lesser-included offense of involuntary manslaughter based on
simple battery.
Second, the jury plainly struggled with count 1. For
example:
◦ The jury deliberated for three days. (See People v.
Cardenas (1982) 31 Cal.3d 897, 907 [six hours of
deliberations is evidence of a close case].)
◦ The jury asked several questions—including one
seeking clarification of the reasonable-person
element of count 1. (See People v. Hernandez
(1988) 47 Cal.3d 315, 352–353 [“request[s] to the
court for further instructions or the rereading of
particular testimony” indicate jury
disagreement].)
◦ The jury requested readback of testimony given
by Tovar, the medical examiner—particularly his
testimony “regarding when he was aware of Baby
King falling down stairs on two occasions and if it
would affect his opinion on cause of death.” (See
People v. Pearch (1991) 229 Cal.App.3d 1282,
1295 [“Juror questions and requests to have
4
testimony reread are indications the deliberations
were close. [Citations.]”].)
◦ The jury requested readback of testimony given
by the paramedic.
◦ The jury requested readback of defendant’s
testimony.
◦ The jury asked for a DVD player and monitor to
view interview testimony.
◦ The jury notified the court that it could not reach
a verdict for count 1. (See People v. Soojian (2010)
190 Cal.App.4th 491, 520–521 [hung jury is a
more favorable result than a guilty verdict for
Watson purposes].)
◦ The jury reported on Juror No. 5’s financial
hardship and asked if that juror could be replaced
with an alternate, indicating a desire to continue
deliberating.3
To summarize, the prosecution’s experts improperly related
as true case-specific facts contained in hearsay statements, and
that testimony was prejudicial. Because I would reverse the
conviction for count 1 under Sanchez, I do not address
defendant’s other claims of error.
LAVIN, Acting P. J.
3 The jurors reached a verdict shortly after the court responded
that Juror No. 5 could not be replaced with an alternate.
5