Opinion
D056727 Super. Ct. No. SCD210509
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. SONNARY TINA CHHIM et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from judgments of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed.
Following a joint jury trial, a jury convicted Sonnary Tina Chhim and her codefendant roommate Chanthoeun Lisa Ron of two counts of felony child abuse (counts 1 & 2: Pen. Code, § 273 a, subd. (a), hereafter referred to as § 273a(a) (undesignated statutory references shall be to the Penal Code)). Count 1 was based on the theory that Chhim and Ron inflicted injuries on Chhim's infant child (the child), and count 2 was based on the theory that they failed to obtain appropriate medical treatment for the child. With respect to count 2, the jury found true an enhancement allegation that Chhim and Ron personally inflicted great bodily injury on a child under the age of five years (§ 12022.7, subd. (d), hereafter referred to as § 12022.7(d)). However, the jury found the same allegation in count 1 was not true as to both Chhim and Ron. The court ordered that both Chhim and Ron undergo a diagnostic evaluation under section 1203.03. Chhim and Ron were each sentenced to an aggregate prison term of eight years.
Chhim and Ron both appeal, together contending that (1) the jury's true findings on the count 2 section 12022.7(d) great bodily injury allegations must be stricken as a matter of law because such findings require proof of an affirmative act that personally inflicts such an injury, but count 2 was based on the theory that Chhim and Ron were guilty of a failure to act; and (2) the court committed prejudicial error and deprived Chhim and Ron of a fair trial, when it denied Chhim's motion for a mistrial, which Ron joined, after the jury inadvertently learned of an unredacted transcript of a detective's November 2007 interview of Chhim in which the detective had asked her, "[I]f you're not the one that did it then why not take a polygraph?"
Ron also contends the court's failure to instruct the jury on misdemeanor child abuse (§ 273a, subd. (b), hereafter referred to § 273a(b)) as a lesser included offense of the felony child abuse (§ 273a(a)) charged in count 1 denied her due process and a fair trial; and the court abused its discretion by denying her request for probation after rejecting the recommendations of the associate warden and correctional counselor at the California Institution for Women.
We affirm the judgments.
FACTUAL BACKGROUND
A. The People's Case
Chhim's child was born in November 2006. At birth he weighed seven pounds 14 ounces. The child received initial pediatric care from Dr. Richard Short and his staff through mid-March 2007, at which time the child weighed 13 pounds one ounce and was in good health. However, he had experienced some prior episodes of diarrhea and his weight gain had slowed down to the 25th percentile. The child was not seen again by anyone in Dr. Short's office, and for a period of seven months Chhim did not seek any medical care for him.
On October 17, 2007, Chhim and Ron brought the child, who was then 11 months old, to the emergency department at Children's Hospital in San Diego, where he was seen by Dr. Jim Harley, a pediatrician. Chhim and Ron reported that the child had been vomiting for two days. Dr. Harley indicated his initial impression was that the child—who weighed only 13 pounds without clothes and had wrinkled skin like an elderly man because he had no subcutaneous body fat—was severely malnourished. Dr. Harley had difficulty obtaining the child's history from Chhim. During the initial examination, Chhim referred to Ron as her cousin, friend, and roommate.
Dr. Harley testified that the child was dehydrated and "it was clear that [he] had not been eating well for a long period of time." Although Chhim told him she gave her child rice cereal and about four to five eight-ounce bottles of formula a day, Dr. Harley stated that "[i]t didn't add up because if . . . the baby was actually taking in that . . . many calories, [he] would be growing more." Dr. Harley found it alarming that the child had not doubled his birth weight and indicated that Chhim did not seem concerned about the child's weight.
Dr. Harley was also concerned about the child's development, noting that although he was able to roll over, he could not crawl, pull himself up to a standing position, or sit up on his own, and he did not make any oral sounds during the examination. Based on his initial examination of the child, Dr. Harley concluded that the child was failing to thrive as a result of malnutrition.
The child was admitted to the hospital for treatment and further examinations, which, according to the expert testimony of Dr. Lee Harvey, a pediatric radiologist at Children's Hospital, revealed he had suffered a painful hairline fracture to his left humerus—the large bone of the upper arm—that was determined to have occurred approximately two weeks earlier. The likely cause of the fracture was either an impact or a yanking, twisting motion; such a fracture is not the result of falling down.
Dr. Harvey testified that in addition to the hairline humerus fracture of the left arm, the child had also suffered a "bucket handle" fracture to his right wrist within the previous 10 to 14 days. He testified this type of fracture is "usually a twisting/pulling type of injury" that results from "substantial force." It typically does not result from a fall, and it is the type of injury Dr. Harvey had seen in abuse cases.
Dr. Harvey also indicated that radiographs revealed the child had suffered multiple skull fractures to both sides of his head, swelling and bleeding of the scalp, and fluid—including blood—around the brain. The swelling indicated the acute injury was recent and resulted from direct trauma.
In mid-October 2007, while he was hospitalized, the child suffered two seizures and displayed abnormal brain activity. Later that month, it was discovered that he was suffering nerve palsy, pressure on the brain was impinging on the nerve to his left eye, he could no longer look to the side with that eye, and a ventriculoperitoneal shunt was inserted through an incision in his head to relieve the pressure.
On October 31, 2007, the child was released from the hospital to the care of a foster mother, who cared for him until March 2008. It took three or four weeks before the child allowed the foster family to handle him without his being fearful. Once he was comfortable with people holding him, the child began eating more and gaining weight. Later in November 2007, he weighed almost 16 pounds and started to crawl and play with toys. He had begun to talk, was pulling himself up, and started to walk.
Dr. Jennifer Davis, a pediatrician and child abuse expert who runs a failure-to-thrive clinic at Children's Hospital, testified she first saw the child on October 22, 2007, and followed his progress until March 2008. Based on seeing the child and a review of his medical records, Dr. Davis opined that he suffered physical abuse and severe neglect and was the victim of "textbook, classic child abuse." She also opined the child's emaciated condition and the wasting of his muscle and fat were the result of long-standing nutritional neglect, and he could not have lost such weight as a result of several days of vomiting. Dr. Davis testified she was "stunned" when she first saw the child because he "was just so wasted and pitiful looking" and because "[h]e wouldn't let anyone hold him. He just pushed away, shied away, and cried. He was just so thin."
Dr. Davis plotted the child's information on the growth chart in use in the United States, which was developed by the Centers for Disease Control, and she contacted Dr. Short to learn about the child's prior growth. The child's weight upon admission to the hospital in October 2007 fell off the chart, which defined him as a child who suffered from failure to thrive. Dr. Davis testified that when she saw the child in March 2008 when he was 16 months old, which was after he had been placed in foster care, he had "started regaining weight" and "was approaching the growth chart very rapidly. We were very happy with his progress."
Dr. Davis explained there are two ways to define "failure to thrive": "The classic way to define it is by plotting a child on the growth chart and seeing where they fall. There are several different growth charts, but . . . they have percentage values from 3 to 97. And there's growth charts for boys and for girls. When we plot a child's age and . . . weight, if they're well below the third percentile, which would be the smallest children on average, they're considered failure to thrive. [¶] The second way it can be diagnosed is by a lack of weight gain or a crossing of two percentile lines. So if you—at that age, if you don't gain any weight for the equivalent of about three months, you are also failure to thrive regardless of where you are on the growth chart."
Mark Hood, a senior protective service worker with San Diego County's Child Welfare Services (CWS), testified he saw the child at Children's Hospital around October 19, 2007. When he tried to talk to Chhim about how the child was injured, she said she did not know. Chhim told him she and her roommate, Ron, were the child's sole caretakers. Chhim also told him she could not take care of the child and wanted to give him up for adoption. Hood contacted CWS's adoption unit, which eventually resulted in the child being adopted.
San Diego Police Detective Cassie Kramer testified she began working on this case at Children's Hospital on October 19, 2007. She interviewed Chhim and Ron on multiple occasions and recordings of four interviews were played for the jury. Detective Kramer indicated that both Chhim and Ron initially denied that Ron was Chhim's roommate and that Ron had cared for the child.
All further dates are to calendar year 2007 unless otherwise specified.
During Detective Kramer's first interview of Ron later that day, however, Ron admitted she was Chhim's roommate and she had moved into the apartment in August. She explained that she worked the graveyard shift and watched the child during the day while Chhim worked and went to school. Ron told Detective Kramer she gave the child two or three eight-ounce bottles a day, but the child only drank half and lost a lot of weight when he got sick with diarrhea. Ron stated she began watching the child when he was two or three months old and Chhim's maternity leave was ending. Ron denied she ever hit or hurt the child, but stated he had fallen off the couch onto the wood floor of the apartment three months earlier while she was changing his diaper resulting in a "little" bump on the right side of his head. Ron indicated she did not believe Chhim would harm the child, and she never saw Chhim angry or upset with the child.
Detective Kramer also interviewed Chhim at Children's Hospital on October 19. Chhim stated that the child's father was "unknown," but admitted she had two other children that lived with their father. When asked whether she could not provide for her child, Chhim replied, "[I]t's going to be very, very tough," and having "another mom" for the child would be "better for him." Chhim indicated the child did not have a crib and he slept in her bedroom in her bed. Chhim also indicated she fed her child two eight-ounce bottles at night and he usually drank it all. Chhim told Detective Kramer that the child fell off the sofa two months earlier when Ron had him and he got a bump on the side of the head. Chhim denied she ever hurt her child, and she did not think Ron would hurt him.
After Detective Kramer interviewed Chhim and Ron at the hospital, she met with them in their apartment. Both told the detective the child slept in the same bed with Chhim. Detective Kramer measured the height of the couch from which Chhim and Ron had said the child had fallen. It measured one foot three inches.
While Detective Kramer was at the apartment, a CPS social worker called to speak with the family, but Chhim did not want to speak with the social worker, who asked Detective Kramer to inform Chhim about the date of the dependency hearing. After Detective Kramer informed Chhim of the date, Chhim said she was thinking about giving up the child for adoption. Ron replied she thought it would be a good idea.
B. The Defense Case
Dr. Harry Bonnell, a forensic pathologist, testified he reviewed the child's hospital medical reports and "[X]-ray films," police investigative reports, social worker reports, and the preliminary hearing transcripts. Dr. Bonnell testified in response to a hypothetical question that an 11-month-old Cambodian child could lose about 10 percent of his body weight as a result of three days of vomiting and diarrhea. He opined there was no evidence the child's brain was damaged by the skull fractures.
On cross-examination, Dr. Bonnell acknowledged he was terminated in August 2001 from his position of chief deputy medical examiner in San Diego.
DISCUSSION
I
COUNT 2 PERSONAL INFLICTION OF
GREAT BODILY INJURY ALLEGATION (§ 12022.7(d))
Chhim, joined by Ron, contends the jury's true findings on the count 2 section 12022.7(d) great bodily injury allegations must be stricken as a matter of law because such findings require proof of an affirmative act that personally inflicts such an injury, but count 2 was based on the theory that Chhim and Ron were guilty of a failure to act. We reject this contention.
A. Background
Count 2, which charged Chhim and Ron with committing felony child abuse (§ 273a(a)) by "fail[ing] to obtain appropriate medical treatment," included an enhancement allegation that they "personally inflicted great bodily injury on a child under the age of five years" within the meaning of section 12022.7(d).
During her closing argument, the prosecutor argued that the jury should find Chhim and Ron guilty of count 2 and should find the count 2 great bodily injury allegation true because they provided no medical care or proper nourishment to the child for a period of seven months. Specifically, she argued that "[c]ount 2 deals with the starvation" and stated, "we have no medical care at all for seven months. And no weight gain for seven months." She later argued:
The court instructed the jury under CALCRIM No. 821 that to convict Chhim and Ron of count 2, the prosecution was required to prove three elements: "1. [W]hile having care or custody of the child, [they] willfully caused or permitted the child's person or health to be injured; or to be placed in a situation where the child's person or health might be endangered; [¶] AND [¶] 2. [They] caused or permitted the child to be injured or be endangered under circumstances or conditions likely to produce great bodily harm; [¶] AND [¶] 3. [They were] criminally negligent when [they] caused or permitted the child to be injured or be endangered."
"So did these two women cause his person or health to be injured? We know they both caused it in this case. Both of them had an affirmative duty to feed [the child], and they both told you they split the feeding duties equally. So they are both equally responsible. And we know that neither one of them fed him or fed him remotely enough because if either one of them fed him, he wouldn't have looked like this. [¶] . . . [¶] We have for seven months both of them actively failing to provide nourishment. It injured his health. It stunted his growth. It caused permanent damage [to the child]. So we know they both caused. We know it was willful."
Regarding the count 2 great bodily injury allegation, the prosecutor also argued:
"When you go to the great bodily injury allegation in this case you should absolutely find it because you have the effect on his brain as well. You have the developmental delays. You have the low weight that caused him all of those problems for those seven months. To get somebody to this weight, to stunt them the way they did, that is personal infliction of great bodily injury. . . . [¶] . . . They chose to let him starve." (Italics added.)
Following closing arguments, the court instructed the jury under CALCRIM No. 3162 that, in order to find the great bodily injury allegation true, the prosecution was required to prove two elements: "1. The defendant personally inflicted great bodily injury on [the child]; [¶] AND [¶] 2. At that time, [the child] was under the age of 5 years." (Italics added.) The court also instructed under CALCRIM Nos. 821 and 3162 that "[g]reat bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm."
The jury convicted both Chhim and Ron of count 2 (§ 273a(a)) and found the count 2 great bodily injury allegation (§ 12022.7(d)) to be true.
B. Analysis
We reject Chhim and Ron's assertions that a true finding on a section 12022.7(d) great bodily injury allegation requires proof that the defendant personally committed an affirmative act that inflicted such an injury, and that a defendant's failure to act—which they characterize as a "non-act"—"cannot constitute the personal 'infliction' of great bodily injury" within the meaning of that subdivision as a matter of law.
Section 12022.7(d), the count 2 sentencing enhancement at issue here, provides: "Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years." (Italics added.)
In People v. Cross (2008) 45 Cal.4th 58 (Cross), the California Supreme Court interpreted the meaning of the term "personally inflicts" in section 12022.7, subdivision (a), an enhancement with language (i.e., "personally inflicts great bodily injury") identical to that contained in section 12022.7(d). (Cross, at p. 60.) The high court in Cross explained that "the meaning of the statutory requirement that the defendant personally inflict the injury does not differ from its nonlegal meaning. Commonly understood, the phrase 'personally inflicts' means that someone 'in person' [citation], that is, directly and not through an intermediary, 'cause[s]something (damaging or painful) to be endured.' " (Cross, at p. 68.) Cross thus stands for the proposition that a true finding under section 12022.7 that the defendant "personally inflict[ed]" great bodily injury requires proof that he or she directly caused the injury, not proof the defendant committed an affirmative act that inflicted the injury. (Cross, at p. 68.)
Section 12022.7, subdivision (a) provides: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." (Italics added.)
Relying on Cross, supra, 45 Cal.4th at page 68, the Court of Appeal in People v. Warwick (2010) 182 Cal.App.4th 788 (Warwick) recently rejected the same claim that Chhim and Ron make here. In Warwick, the defendant claimed that taking "affirmative action" is required under section 12022.7(d). (Warwick, at p. 795.) Rejecting that claim, the Court of Appeal noted that the Supreme Court in Cross "stated that 'personally inflicts' means that the defendant directly, rather than through an intermediary, ' "cause[s] something (damaging or painful) to be endured." ' " (Warwick, at p. 795.) The Warwick court concluded that "this definition [of 'personally inflicts'] does not preclude the failure to act where action is required." (Ibid., italics added.)
In light of the Supreme Court's definition of the term "personally inflicts" in Cross, supra, 45 Cal.4th at page 68, and the holding in Warwick, supra, 182 Cal.App.4th 788, we reject Chhim and Ron's contention that the jury's true finding on the count 2 section 12022.7(d) great bodily injury allegation must be stricken as a matter of law. We conclude that proof of a defendant's failure to act when action is required will support a true finding the defendant personally inflicted great bodily injury within the meaning of section 12022.7(d) if the defendant's failure to act was a direct cause of the inflicted injury. (Cross, supra, 45 Cal.4th at p. 68; Warwick, supra, 182 Cal.App.4th at p. 795.) Thus, here, the prosecution's evidence that Chhim and Ron both failed to provide adequate food and medical care to the child when the child was under their care is legally sufficient to support the jury's true findings under section 12022.7(d). Also, because the evidence shows that both Chhim and Ron personally inflicted injury on the child by failing to provide adequate food and medical care to the child when the child was under their care, we need not address their claim that a section 12022.7(d) enhancement allegation "does not lie where the jury could have found the allegation [true] as to count [2] vicariously, that is, based on conduct by the codefendant." Accordingly, we affirm the jury's true finding on the count 2 section 12022.7(d) great bodily injury allegation.
II
POLYGRAPH DISCLOSURE CLAIM
Chhim and Ron claim the court committed prejudicial error and deprived them of a fair trial when it denied their motion for a mistrial after the jury inadvertently learned from an unredacted copy of the transcript of Detective Kramer's November interview of Chhim that the detective had asked her, "[I]f you're not the one ythat did it then why not take a polygraph?" (Italics added.) In support of this claim, they assert that "exposing the jury to [Chhim's] refusal to take a polygraph when challenged to do so as a means of clearing herself is prejudicial and presents the possibility of rendering suspect the outcome of the trial." This polygraph disclosure claim is unavailing.
A. Background
On July 30, 2009, as part of the People's case, the prosecutor played for the jury a recording of Detective Kramer's November 5 interview of Chhim. The recording was contained on a CD marked as exhibit 18 and a transcript of the recording was marked as exhibit 18A. As shown by page 10, lines 26 through 28, of the unredacted transcript, Chhim told Detective Kramer, "I would never hurt my baby," and Detective Kramer responded, "Well then the only way they can actually clear you is if you didn't actually — if you're not the one that did it then why not take a polygraph?" (Italics added.)
By prior agreement, the prosecutor was to have removed the reference to a polygraph so the jury would not hear it. Although the polygraph reference was highlighted in the transcript so that it could be deleted and the reference was properly redacted in the audio recording (exhibit 18) it was left in the transcript by mistake. Copies of the unredacted transcript (exhibit 18A) were provided to the jurors, and the audio recording (exhibit 18) was played for them.
Midway through the playing of exhibit 18, the court told the jury, "We have a request for a break," took a recess, and held a hearing on the record, but out of the presence of the jury. The court stated to counsel, "Obviously, we need to take out page 10, line[s] 26 through 28 dealing with the polygraph." Chhim's counsel moved for a mistrial, stating, "Something like this about if you're not the one that did it, then why not take a polygraph is so prejudicial. That bell has been rung. We can't unring it. I don't see how we can instruct or admonish or whatever the jury to forget what they just read." Ron's counsel joined in the motion.
The court denied the mistrial motion and ordered the reference to the polygraph redacted from the transcript of the interview. After further discussion, the court brought back the jurors, collected the transcripts, and admonished them as follows:
"I do want to read and give you an instruction as to a portion of the transcript that most of you I'm sure have already read as part and parcel of the audio, although it's not on the audiotape itself, but it is in the transcript. [¶] . . . [¶] Well then—this is Detective Kramer—quoting: [¶] Well then the only way they [can] actually clear you is if you didn't actually—if you're not the one that did it, then why not take a polygraph?
"I have stricken that from the record. It will be stricken from the transcript. When you get the transcript back, it will not be in there. You are to disregard it and not take it into consideration. It's not considered evidence. [¶] The reason is that in a case of this nature whether a person does or does not take a polygraph examination has no relevancy, has no bearing, it has no evidentiary value. We, as a general rule, do not recognize polygraph examinations as relevant admissible evidence in the State of California in cases of this nature.
"So whether a person does or does not take a polygraph has no bearing on the evidentiary value of the case or any bearing on the issue of guilt or innocence on a case. It's to be disregarded. It's being stricken from the record. The jury is to disregard it and not take it into consideration and not deliberate on it. Do not give it any value, any bearing, any weight whatsoever." (Italics added.)
After the verdicts were received and before the court sentenced Chhim and Ron, defense counsel again raised the issue in a motion for new trial. Following arguments on the matter, the court denied the new trial motion stating, "I think the court gave a sufficient curative instruction on this issue during the course of the trial as indicated by the prosecution. I did not feel that the jury unreasonably relied or otherwise put emphasis on that inadmissible evidence that was ordered stricken and not to be considered by the jury. It's the court's belief that the jury followed the court's instructions. [¶] . . . The verdict was well thought out based upon the evidence which was presented, which was very significant and substantial as to both defendants."
B. Standard of Review
"We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] 'A motion for mistrial is directed to the sound discretion of the trial court. . . . "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." ' " (People v. Cox (2003) 30 Cal.4th 916, 953 (Cox), disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
C. Analysis
We conclude the court did not abuse its discretion in denying the defense motion for a mistrial in this case, which was based on the inadvertent disclosure of polygraph information to the jury. Evidence Code section 351.1, subdivision (a) provides that, "[n]otwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results." (Italics added.)
Generally, when polygraph evidence is erroneously offered, a trial court's timely admonition, which the jury is presumed to have followed, cures any resulting prejudice. (Cox, supra, 30 Cal.4th at p. 953.) In Cox, the prosecutor asked a key witness whether someone from the prosecutor's office had given her a polygraph examination and the witness responded affirmatively. (Id. at p. 951.) Defense counsel objected to the question, and the trial court sustained the objection and struck the witness's answer. (Ibid) The trial court also admonished the jury to disregard the information, as follows: "Ladies and gentlemen of the jury, a question was put to you shortly before the recess that was to the effect as to whether or not the witness recalled talking to a polygraph operator. That question is struck. You are cautioned to disregard it. You are to treat it as though you never heard it." (Ibid.) Defense counsel subsequently moved for a mistrial, which the trial court denied. (Id. at p. 953.)
On appeal, the Cox defendant argued the trial court erred in denying the mistrial motion because the court's admonition did not cure the prejudicial impact of the question. (Cox, supra, 30 Cal.4th at p. 952.) The California Supreme Court rejected the argument, concluding a mistrial was not warranted as there was only one improper question, the trial court immediately struck it, and the trial court gave the jury a strong admonition to disregard it. (Id. at p. 954.) The high court also explained that, "[i]n the context of erroneously offered polygraph evidence, we have held that a trial court's timely admonition, which the jury is presumed to have followed, cures prejudice resulting from the admission of such evidence." (Id. at p. 953.)
Here, the inadvertent disclosure of the polygraph information to the jury was no more egregious than in Cox. The prosecutor did not intentionally introduce any polygraph information. Instead, the word "polygraph" inadvertently appeared in one sentence in the transcript distributed to the jurors. As in Cox, the trial court promptly addressed the matter and expeditiously had the jurors return the transcripts. The court then specifically and repeatedly admonished them that the reference to a polygraph had no evidentiary value, it was stricken from the record, it would be stricken from the transcript, and they were to disregard it and not take it into consideration. Accordingly, we conclude, as the California Supreme Court did in Cox, a mistrial was not warranted under the circumstances. Thus, the court did not abuse its discretion by denying the defense motion for a mistrial.
III
SUA SPONTE DUTY TO INSTRUCT ON THE COUNT 1
LESSER INCLUDED OFFENSE OF MISDEMEANOR CHILD ABUSE
Ron contends the court's failure to instruct the jury on misdemeanor child abuse (§ 273a, subd. (b), hereafter referred to § 273a(b)) as a lesser included offense of the felony child abuse (§ 273a(a)) charged in count 1 denied her due process and a fair trial. This contention is unavailing because, as we shall explain, (1) there is no substantial evidence from which a jury composed of reasonable persons could find Ron guilty of misdemeanor child abuse but not guilty of felony child abuse, and thus the court had no duty to sua sponte instruct the jury on the elements of misdemeanor child abuse as a lesser included offense; and (2) even if the court had erred in failing to instruct the jury on misdemeanor child abuse, any such error was harmless.
A. Background
Ron, like Chhim, was charged with two counts of felony child abuse (counts 1 & 2: § 273a(a)). Count 1 involved infliction of physical injuries and count 2 involved failure to provide medical care and nourishment.
As to count 2, the court gave CALCRIM No. 823, which informed the jury of the elements of misdemeanor child abuse as a lesser included offense of felony child abuse. The court did not give that instruction with respect to count 1. The jury convicted Ron of both counts of felony child abuse.
B. Applicable Legal Principles Governing a Trial Court's Duty To Instruct on Lesser Included Offenses and Standard of Review
"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, italics added.) Stated differently, "[t]o 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." (Ibid., italics added.) "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. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman), italics added; see also People v. Moye (2009) 47 Cal.4th 537, 556 (Moye) [" 'In deciding whether evidence is "substantial" in this context, a court determines only its bare legal sufficiency, not its weight.' "].)
"[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." (Breverman, 19 Cal.4th at p. 162, original italics; see also Moye, 47 Cal.4th at p. 553.)
1. Standard of review
In a noncapital case, any error by the trial court in failing sua sponte to instruct, or to instruct fully, on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, which requires reversal of the conviction for the greater offense "only 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.)
C. Analysis
"Section 273a defines both felony and misdemeanor child abuse. The criminal acts proscribed by section 273a are: (1) willfully causing or permitting any child to suffer, or (2) inflicting thereon unjustifiable physical pain or mental suffering, or (3) having the care or custody of any child, willfully causing or permitting the person or health of such child to be injured, or (4) willfully causing or permitting such child to be placed in such situation that its person or health is endangered." (People v. Moussabeck (2007) 157 Cal.App.4th 975, 980 (Moussabeck).)
In Moussabeck the Court of Appeal explained the difference between felony child abuse and misdemeanor child abuse: "If the act is done under circumstances or conditions likely to produce great bodily injury or death, it is a felony (§ 273a[(a)]); if not, the offense is a misdemeanor (§ 273a[(b)]). [Citation.] Misdemeanor child abuse . . . is a lesser included offense of felony child abuse . . . ." (Moussabeck, supra, 157 Cal.App.4th at p. 980, italics added.)
Here, because the court did not instruct the jury on the elements of misdemeanor child abuse as a lesser included offense of felony child abuse as charged in count 1, Ron's instructional error claim presents the issue of whether there is substantial evidence from which a reasonable jury could find she committed misdemeanor child abuse but not felony child abuse. (See Blair, supra, 36 Cal.4th at pp. 744-745.) If the trial record contains no such evidence, the court had no duty to sua sponte instruct the jury on the elements of misdemeanor child abuse as a lesser included offense of the felony child abuse charged in count 1. (Ibid.)
However, because the difference between misdemeanor child abuse and felony child abuse is whether the abuse (here, the infliction of injuries) was committed "under circumstances or conditions likely to produce great bodily injury or death" (Moussabeck, supra, 157 Cal.App.4th at p. 980), the issue presented narrows to whether there is substantial evidence from which a reasonable jury could find Ron committed the alleged child abuse under circumstances or conditions that were not likely to produce great bodily injury or death, and therefore committed misdemeanor child abuse and not felony child abuse. If there is no such evidence, the trial court had no duty to instruct on misdemeanor child abuse as a lesser included offense. (See Blair, supra, 36 Cal.4th at pp. 744-745.)
However, our framing of the issue to be decided does not end here. In support of her instructional error claim, Ron cites People v. Sheffield (1985) 168 Cal.App.3d 158, (Sheffield), overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, which held that because misdemeanor and felony child abuse are "crimes which can be committed by a continuous course of conduct and need not be based on specific acts . . . [,] if a defendant denies some act and minimizes the seriousness of others, and the jury believes him, the jury could find that the 'continuous course of conduct' amounts to a misdemeanor and not a felony." (Sheffield, at p. 167, italics added.) Relying on Sheffield, Ron asserts that count 1 was "charged and argued as [a] continuing course[] of conduct" in addition to being "charged and argued as including great bodily injury."
Thus, the issue presented by Ron's instructional error claim further narrows to whether there is substantial evidence from which a reasonable jury could find she committed child abuse in a continuous course of conduct under circumstances or conditions not likely to produce great bodily injury or death, and therefore committed misdemeanor child abuse and not felony child abuse. If the trial record contains no such evidence, the court did not have a duty to sua sponte instruct the jury on the elements of misdemeanor child abuse as a lesser included offense of felony child abuse as charged in count 1 and Ron's instructional error claim must be rejected. (See Blair, supra, 36 Cal.4th at pp. 744-745.)
We note that Ron does not contend the evidence is insufficient to support the jury's count 1 finding that she committed child abuse. Her claim is that the jury might have convicted her only of misdemeanor child abuse had they been given that option. Accordingly, we need not, and do not, address the sufficiency of the evidence to support the jury's count 1 finding that she committed child abuse.
Here, an instruction on misdemeanor child abuse as a lesser included offense of the felony child abuse charged in count 1was not warranted, and thus the court had no duty to sua sponte give such an instruction, because there is no substantial evidence from which a jury composed of reasonable persons could conclude that Ron committed child abuse in a continuous course of conduct under circumstances or conditions that were not likely to produce great bodily injury or death.
Count 1 related to injuries the child suffered to his head, left arm, and right wrist that expert medical testimony showed involved the application of substantial force under circumstances or conditions likely to produce great bodily injury or death. Dr. Harvey, the Children's Hospital pediatric radiologist, found the child had suffered multiple skull fractures on both sides of his head, swelling and bleeding of the scalp, and fluid—including blood—around the brain. He opined the swelling outside of the skull indicated the injury was recent and resulted from direct trauma. He indicated the head injuries varied in age. The child suffered nerve palsy, the pressure on his brain impinged on the nerve to his left eye, and a shunt was inserted through an incision in his head to relieve the pressure.
In addition to the head injuries, the child suffered other severe fractures that resulted from the application of significant force, not from accidents. Dr. Harvey testified the child suffered a painful two-week-old hairline fracture to the humerus bone of his left arm at "the very proximal end or the end closest to the shoulder." He opined the likely cause of the fracture was either an impact or a yanking, twisting motion, and the fracture was not the result of a fall.
Dr. Harvey testified the child had also suffered a bucket handle fracture to his right wrist within the previous 10 to 14 days. He opined this type of fracture is "usually a twisting/pulling type of injury" that results from "substantial force." He also indicated this type of fracture typically does not result from a fall and is the type of injury he had seen in abuse cases.
Dr. Davis, a pediatrician and child abuse expert at Children's Hospital, opined that the child suffered physical abuse. She found two separate traumas to the child's head, one that caused acute soft tissue scalp swelling, and an earlier trauma that caused the bleeding. Dr. Davis also opined that the skull fractures were not caused by a low force household fall such as rolling off a bed. They were the type of injuries caused by "very forceful" trauma. She also opined that the humerus fracture was a "corner fracture" seen only in infants that "is a typically abusive injury caused by a pulling and yanking of a limb," and the bucket handle radius fracture was also an "abusive injury" typically seen only in infants and caused by "a pull or a yank or a twist on that extremity."
Whether a given amount of applied force "would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied." (People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749.) Although not conclusive, the nature of the injuries are highly probative of the amount of force used. (See id. at p. 748, quoting People v Muir (1966) 244 Cal.App.2d 598, 604.) Here, the foregoing expert medical testimony regarding the nature and severity of the child's physical injuries conclusively shows the injuries were inflicted or permitted to be inflicted under circumstances or conditions likely to produce great bodily injury within the meaning of section 273a(a), the felony child abuse statute.
Having reviewed the trial record, we conclude (1) there is no substantial evidence from which a reasonable jury could find Ron committed the child abuse in a continuous course of conduct under circumstances or conditions that were not likely to produce great bodily injury or death; (2) accordingly, there is no substantial evidence from which a reasonable jury could find Ron committed misdemeanor child abuse and not felony child abuse; and thus (3) the court did not have a duty to sua sponte instruct the jury on the elements of misdemeanor child abuse as a lesser included offense of felony child abuse as charged in count 1.
IV
DENIAL OF RON'S REQUEST FOR PROBATION
Last, Ron contends the court abused its discretion by denying her request for probation after rejecting the recommendation of the associate warden and her correctional counselor at the California Institution for Women following an evaluation under section 1203.03. We reject this contention.
A. Applicable Legal Principles
"All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise." (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion." (Ibid.)
In reviewing a trial court's decision to grant or deny probation, "it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.)
California Rules of Court rule 4.414, which sets forth certain criteria relevant to the trial court's decision to grant or deny probation, provides in part:
All further rule references are to the California Rules of Court.
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"Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.
"(a) Facts relating to the crime
"Facts relating to the crime include:
"(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] . . .
"(3) The vulnerability of the victim;
"(4) Whether the defendant inflicted physical or emotional injury; [¶] . . .
"(6) Whether the defendant was an active or a passive participant; [¶] . . .
"(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.
"(b) Facts relating to the defendant
"Facts relating to the defendant include:
"(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶] . . .
"(3) Willingness to comply with the terms of probation;
"(4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶] . . .
"(7) Whether the defendant is remorseful; and
"(8) The likelihood that if not imprisoned the defendant will be a danger to others."
"In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rules 4.406(b)(2) & 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.) [¶] . . . [I]n determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable." (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313.)
B. Analysis
As Ron points out, the court rejected the recommendation that she be placed on formal probation by both the associate warden of the California Institution for Women and Ron's correctional counselor following an evaluation under section 1203.03.
Ron argues the trial court abused its discretion by denying her request for probation because (1) the court "ignored" the recommendation of the associate warden and the correctional counselor that she be placed on formal probation; (2) "the court's focus on the 'egregious injuries' suffered by [the child] and the need to protect him, ignored the facts that the jury rejected the argument that Ron personally inflicted those injuries and that [the child] was not, and never would again[ be in,] the care of Ron"; (3) "[t]he correctional counselor's report for Ron detailed that she had no prior criminal history or violent background"; (4) it was "unknown" whether she was an active or passive participant and the crime was committed under circumstances that were unusual and unlikely to recur; (5) she showed no criminal sophistication or professionalism; (6) she stated a willingness to comply with the terms of probation and had the ability to comply; (7) she would be severely impacted by imprisonment; and (8) she posed no danger to others.
Based on our review of the record, we conclude the trial court did not abuse its discretion by denying Ron probation. The court reviewed and considered the associate warden's report and the probation report, and heard Ron's counsel's arguments. The court considered the probation officer's supplemental report, which followed Ron's section 1203.03 diagnostic evaluation and recommended that the court sentence her to eight years in prison. It also considered various rule 4.414 criteria in support of granting and denying probation. It expressly weighed those criteria in exercising its discretion to deny him probation, and there is nothing in the court's decisionmaking process that shows the court misunderstood its discretion to weigh relevant criteria in deciding to grant or deny Ron probation.
The record shows the court expressly cited certain criteria listed in rule 4.414 in making its decision. Specifically, the court cited the following circumstances in denying Ron's request for probation: (1) the child was vulnerable (rule 4.414(a)(3)); (2) she inflicted physical and emotional injury (rule 4.414(a)(4)); (3) she took advantage of a position of trust (rule 4.414(a)(9)); (4) she showed no remorse to the police, the staff psychologist, or the court (see rule 4.414(b)(7)); and (5) the child's injuries were "absolutely egregious." The court determined that Ron was presumptively ineligible for probation (§ 1203, subd. (e)(3)) because the jury found her culpable for the great bodily injuries inflicted upon the 11-month-old child.
Considering all of those criteria, the trial court concluded the criteria supporting a denial of probation outweighed those supporting a grant of probation. We cannot conclude the court's decision was arbitrary or capricious. Rather, its decision was within the reasonable exercise of its discretion. On appeal, "it is not our function to substitute our judgment for that of the trial court " (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 825), but that, in effect, is what Ron suggests we do. For all of the above reasons, we affirm the court's decision to deny Ron probation.
DISPOSITION
The judgments are affirmed.
NARES, Acting P. J. WE CONCUR:
HALLER, J.
AARON, J.