Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. MA043976 Jared D. Moses, Judge.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Following a jury trial, appellant Sharrieff Brown was convicted of second degree murder and assault resulting in the death of a child under eight. On appeal, he claims that his conviction for second degree murder must be reversed because the trial court did not instruct the jury on involuntary manslaughter. We conclude appellant fails to show any prejudicial error, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 3, 2008, Trecion Grace, an 18-month-old child, died of blunt force head trauma. The principal issue at trial was how she received the blunt force head trauma.
Appellant was the father of Trecion’s half sister; he sometimes took care of Trecion; and there was evidence he lived with Trecion, her two siblings, and her mother Taija Grace. Trecion was in appellant’s care at the time of her fatal injury. Appellant claimed the accidental injury occurred when Trecion fell from a three-foot-high kitchen counter.
1. Prosecution Evidence
Taija Grace and her mother (Trecion’s grandmother) testified that when she left Trecion with appellant on November 3, Trecion had no unusual marks or bruises.
Several hours later, at the time of her death, Trecion had numerous injuries. The coroner, Dr. James Ribe, who performed an autopsy on Trecion, testified that Trecion suffered the following injuries: complex depressed comminuted fracture of the calvaria (round part of the head), a fracture in the base of her skull, brain injury, bruises on her face, injury to her abdomen, a tear in her liver, multilayered retinal hemorrhages in both eyes, bleeding in the optic nerve sheath, a bruise on her forehead, a bruise on her jaw, and partially healed rib fractures. Dr. Ribe opined that the injuries were caused by child abuse. He concluded that Trecion was either slammed against a flat surface or thrown against a flat surface. According to him, the severe injuries – especially the brain injury, the retinal hemorrhages, and the nonlinear skull fractures – showed that the injuries could not have been caused by a fall from a three-foot counter. According to him, Trecion’s “smashed skull, ” showed someone had applied a “tremendous amount of force” to her head. And Dr. Ribe concluded someone inflicted at least six blows to Trecion.
When interviewed, appellant told officers and detectives Trecion fell from a kitchen counter where he had placed her when he left the room to tend to her half sister. According to appellant, when he returned to the kitchen, Trecion was on the floor, nonresponsive. Appellant said he tried to give Trecion Caldiopulmonary Resuscitation (CPR), though he lacked knowledge of how to properly administer it. Appellant explained away the abrasions on Trecion’s face, claiming they occurred when he wiped her face with a washcloth. When a detective told appellant that his story was inconsistent with the evidence, appellant responded by stating that he also dropped Trecion. Appellant clarified that he did not “slam” her, but only “dropped her, ” and stated that he did not want to hurt her when he dropped her.
The prosecution suggested that appellant and his mother engaged in a coverup. There was evidence that the television in the living room disappeared the night Trecion was injured. In addition, a steam cleaner that was generally in the garage was found in the living room. No one explained what happened to the television or why the steam cleaner was in the living room.
2. Appellant’s Evidence
On November 3, 2008, appellant called his mother, Eyvonne Galloway, informing her that Trecion fell off the kitchen counter. Galloway rushed to the residence. Once there, Galloway called 911, and the 911 operator instructed her to give CPR, which Galloway attempted. Galloway had seen Trecion injure her head more than a dozen times before when she hit it against her crib, a wall, and the floor. Galloway’s friend Penny Knight also saw Trecion hit her head.
Dr. Harry Bonnell, a forensic pathologist opined that Trecion’s liver injury was the result of CPR. He opined that Trecion’s hitting her head was not sufficient to cause the skull fractures. According to him, Trecion’s injuries were consistent with a fall from a three-foot counter if Trecion was standing on top of the counter and landed head first. However, he acknowledged her injuries also were consistent with her head being hit on a hard object such as a television or a piece of furniture. Dr. Bonnell concluded that Trecion suffered four impact injuries. Dr. Bonnell noted the absence of any injuries to Trecion’s arms or legs, the second most common injury to a battered child. But he acknowledged she suffered from a head injury, the most common injury suffered by a battered child.
3. Argument
The prosecutor argued that appellant smashed Trecion’s head against something or smashed something against her head, possibly the television. She argued that the severity of the injuries indicated Trecion did not simply fall from a counter. She argued that Dr. Ribe’s testimony was more credible than Dr. Bonnell’s testimony and criticized Dr. Bonnell’s sources.
Defense counsel argued that Trecion’s death was the result of a tragic accident. Counsel argued appellant did not intentionally slam Trecion or hit her against anything. Defense counsel argued that “the people’s case, stands on how much... you believe Dr. Ribe” because Dr. Ribe was the only witness to directly contradict appellant’s statement that Trecion fell from a counter. According to defense counsel, the television story was made up because there was no evidence of the television.
4. Instructions
Without objection, defense counsel requested the court instruct the jury on accident, and the court gave an instruction that when a person commits an act by accident, without criminal intent or criminal negligence, he does not commit a crime.
Defense counsel did not request instructions on any lesser included offenses. The prosecutor mentioned the involuntary manslaughter instruction, and defense counsel requested the court refrain from giving that instruction. No instruction on involuntary manslaughter was given. The court instructed the jurors on second degree murder.
5. Verdict and Sentencing
The jury found appellant guilty of second degree murder (Pen. Code, § 187) and assault resulting in death of a child under eight (§ 273ab). The court sentenced him to state prison for 25 years to life for the section 273ab violation. The court imposed and stayed a 15-year-to-life prison sentence for the second degree murder. This appeal followed.
Undesignated statutory citations are to the Penal Code.
DISCUSSION
The trial court has an obligation to instruct on all lesser included offenses supported by evidence that the offense committed was less than that charged. (People v. Barton (1995) 12 Cal.4th 186, 194-195.) Appellant’s sole argument is that the court should have instructed the jury on involuntary manslaughter. He appears to have two theories why the instruction should have been given: (1) the killing occurred during the commission of a noninherently dangerous felony when appellant left Trecion on the counter; and (2) the allegedly unintentional killing occurred during the commission of an assault. As we explain, we conclude no instruction was warranted based on the latter theory, and any error in failing to instruct based on the former theory was harmless under any standard.
Because defense counsel requested the court refrain from giving the instruction, the “doctrine of invited error bars the defendant from challenging on appeal the trial court’s failure to give the instruction.” (People v. Barton, supra, 12 Cal.4th at p. 198.) Nevertheless, we have considered appellant’s arguments on the merits to forestall a claim of ineffective assistance of trial counsel. (See People v. Lewis (1990) 50 Cal.3d 262, 282.)
Involuntary manslaughter is a lesser included offense of murder. (People v. Butler (2010) 187 Cal.App.4th 998, 1006.) “Both murder (based on implied malice) and involuntary manslaughter involve a disregard for life; however, for murder the disregard is judged by a subjective standard whereas for involuntary manslaughter the disregard is judged by an objective standard. [Citations.] Implied malice murder requires a defendant’s conscious disregard for life, meaning that the defendant subjectively appreciated the risk involved. [Citation.] In contrast, involuntary manslaughter merely requires a showing that a reasonable person would have been aware of the risk. [Citation.] Thus, even if the defendant had a subjective, good faith belief that his or her actions posed no risk, involuntary manslaughter culpability based on criminal negligence is warranted if the defendant’s belief was objectively unreasonable.” (Id. at pp. 1008-1009.) The necessary mens rea for involuntary manslaughter is criminal negligence. (Id. at p. 1008.)
1. Involuntary Manslaughter Based on Felony Child Abuse
A noninherently dangerous felony may underlie the commission of an involuntary manslaughter. (People v. Butler, supra, 187 Cal.App.4th at pp. 1006-1007.) Based on this principle, appellant argues that the evidence he left Trecion unattended on a counter supported a finding of child endangerment, which he contends is a noninherently dangerous felony (based on authority discussing the felony murder rule). As we explain, assuming the trial court should have instructed the jury on involuntary manslaughter based on the evidence appellant describes, appellant cannot demonstrate any harm resulted from the absence of the instruction. Because appellant cannot demonstrate prejudice under any standard, even assuming error, reversal is not warranted. (See, e.g., People v. Valdez (2004) 32 Cal.4th 73, 138 [absent prejudice instructional error did not require reversal].)
Section 273a provides in pertinent part: “(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. [¶] (b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.”
When it convicted him of assault resulting in death under section 273ab, the jury necessarily found that appellant assaulted Trecion and the assault resulted in her death. Therefore, the jury necessarily rejected appellant’s claim that he merely left Trecion on the countertop, the cornerstone of appellant’s argument. According to the view of the evidence the jury indisputably accepted, it rejected appellant’s theory (on appeal) that he was criminally negligent in leaving Trecion on the counter. Thus, assuming the court should have instructed the jury on involuntary manslaughter, appellant suffered no prejudice (under any standard) from the failure to so instruct.
The court instructed the jurors on assault on a child under eight resulting in the child’s death as follows: “Every person who, having the care or custody of the child under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting the child’s death, is guilty of a violation of... section 273ab, a crime.... In order to prove this crime, each of the following elements must be proved: one, a person had the care or custody of a child under eight years of age; two, that person committed an assault upon the child; three, the assault was committed by means of force that to a reasonable person would be likely to produce great bodily injury; and four, the assault resulted in the death of the child.” (Italics added.)
This case is distinguishable from People v. Albritton (1998) 67 Cal.App.4th 647 (Albritton) in which the court found section 273ab and involuntary manslaughter were not inconsistent. In that case, the evidence showed that a child died of shaken baby syndrome and the defendant was responsible for shaking the child. (Albritton, at p. 656.) In Albritton, the jury could have found that appellant assaulted the child resulting in death and the assault resulted in involuntary manslaughter. In contrast here, appellant’s theory that he left Trecion on the counter is inconsistent with the jury finding that he assaulted her. Albritton, thus, does not aid appellant.
2. Involuntary Manslaughter Based on Assault
Appellant states that the jury should have been instructed on involuntary manslaughter if the evidence would have supported the conclusion the homicide occurred during the commission of an assault. To analyze this contention, the key issue is whether there was evidence appellant acted without realizing the risk to Trecion because that intent distinguishes murder and manslaughter. (Albritton, supra, 67 Cal.App.4th at p. 654.) Implied malice, necessary for a second degree murder conviction, is present “when an individual, with wanton disregard for human life, commits an act which involves a high degree of probability it will result in death.” (Ibid.) When a defendant realizes the risk involved and acts in disregard of the danger, the defendant is guilty of murder based on implied malice. (People v. Evers (1992) 10 Cal.App.4th 588, 596.) In contrast, if the defendant does not realize the risk involved, his mens rea is criminal negligence and his crime is involuntary manslaughter. (Ibid.)
Here, there was no evidence appellant assaulted Trecion without realizing the risk to her. No evidence showed that he was unaware of the risk of slamming her head against a hard object. No evidence showed he had a subjective, good faith belief that his assault on Trecion posed no risk to her. Although Dr. Bonnell testified that Trecion’s injuries were consistent with a (head-first) fall from the counter, even that evidence does not support appellant’s new theory that he assaulted Trecion without comprehending the risk to her. The only evidence appellant cites to support his argument is his statement that when he dropped Trecion “he didn’t want to hurt her....” But that evidence, even if credited, is not probative of his intent when he assaulted Trecion. Therefore, appellant has not shown the court was required to sua sponte instruct the jury on the lesser included offense of involuntary manslaughter. (People v. Evers, supra, 10 Cal.App.4th at p. 598.)
To the extent appellant is arguing he lacked the ability to present a defense to the jury, his argument lacks merit. His defense was that Trecion suffered injuries when she fell from the counter. His counsel argued that the killing was accidental and asked the court to refrain from instructing on voluntary manslaughter. He was permitted to present a defense; the jury however rejected his defense.
DISPOSITION
The judgment is affirmed.
We concur: BIGELOW, P. J. GRIMES, J.
Section 273ab provides in pertinent part: “(a) 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.”
Appellant was also charged with two counts of child abuse in violation of section 273a, subdivision (a) for conduct allegedly occurring prior to November 3, 2008. The jury acquitted him of these charges.