Opinion
NOT TO BE PUBLISHED
C053349, C052634 Super. Ct. No. 02F07057
MORRISON , J.
In these consolidated appeals, defendants Kathryn Elizabeth Potter and Andrew Anthony Cejas challenge their convictions arising out of the brutal killing of Cejas’s 12-year-old son, Christopher, by means of stomping and punching and kicking.
During a joint trial a mistrial was granted as to Cejas. Potter’s jury convicted her of second degree murder and felony child abuse resulting in death. (Pen. Code, §§ 187, subd. (a), 273a, subd. (a), 12022.95.) On retrial a jury convicted Cejas of first degree murder, and the court found he had two strikes (lewd acts with a child). (Pen. Code, §§ 187, subd. (a), 288, subd. (a), 667, subds. (b)-(i); 1170.12.) The trial court sent Cejas to prison for 75 years to life, and Potter to prison for 15 years to life. Each defendant timely appealed.
Cejas asserts that an instruction allowed the jury to use uncharged bad-acts evidence for unduly broad purposes. We disagree.
Potter raises three arguments based on her claim that the jury found her guilty of second degree murder on the theory that she aided and abetted Cejas in committing felony child abuse.
Potter also contends the trial court should have instructed on the defense of necessity. That defense was not viable on these facts. Further, the verdicts reflect that the jury rejected Potter’s defenses of duress, the effects of Battered Woman’s Syndrome (BWS) and Post Traumatic Stress Disorder (PTSD). Instructions on necessity would not have bolstered that evidence. A necessity defense would also have failed.
Finally, Potter claims the trial court allowed improper cross-examination of her expert witness. She did not preserve her claims on appeal, and in any event they lack merit.
We shall affirm the judgment as to each defendant.
FACTS
Because the evidence at the two trials was substantially the same we will give a general outline of the facts and provide more specific facts as relevant to each defendant’s appeal.
Potter and Cejas lived together in Sacramento with their son, P., and Potter’s twin daughters. Potter thought she was Cejas’s wife, as she did not know he was married when she and Cejas had a wedding ceremony. Christopher had been raised by his mother’s family and lived in North Carolina. In 2002 Christopher went to Lancaster, California, to visit his grandparents and Cejas met him there. Eventually, Christopher, age 12, came to live with defendants in Sacramento.
Christopher was abused and starved. He was handcuffed and forced to stand for long periods, and was videotaped to ensure his compliance with discipline. During the five months he lived in Sacramento his weight dropped from 137 to 103 pounds. Eventually, on the night of August 20-21, 2002, over a long period of time, he was beaten so badly that his brain was bruised, his liver was torn, his broken ribs punctured his lung, which in turn displaced his heart, and he was kicked so hard in the groin that the area swelled, obscuring his genitals. Neither defendant sought help for Christopher.
The next morning Cejas left to join his work crew as part of his sentence on a charge of failing to register as a sex offender. Potter called her father, a retired law enforcement officer who lived in Oregon, and arranged to meet him in Redding. She did not tell anyone what had happened until she reached Redding. When Redding officers learned what happened and asked Sacramento officers to investigate, they found Christopher dead, from multiple, massive, blunt force injuries.
Cejas’s defense was that Potter was the killer.
Potter’s defense was that she had suffered years of abuse from Cejas and was unable to oppose his will or seek help for Christopher, raising theories of duress, battered woman’s syndrome (BWS) and posttraumatic stress disorder (PTSD). The People rebutted these claims by evidence largely but not entirely from Potter’s statements to the police, her testimony, and her diary entries and letters that although she had been molested as a child, she married a child molester; despite her claims of abuse by Cejas, she liked sex with him and stayed with him; she used a false last name on P.’s birth certificate to hide Cejas’s status as a sex offender; she lied to Christopher’s mother about Cejas’s status; she misled a social worker investigating a possible molestation of one of Potter’s daughters; she lied about having a fatal illness to get sympathy; she herself was abusive; and she actively hated Christopher because he was obese and because she knew Cejas still had feelings for Christopher’s mother. She participated in withholding food and water from Christopher and at times handcuffed him herself. When her father came to pick up the twins the day before the fatal beating began, Christopher was handcuffed in another room and Cejas was out of the apartment, yet Potter said nothing to him. In short, she did nothing to stop the beatings because she did not like Christopher and did not want to get Cejas in trouble, not because she was afraid to act.
DISCUSSION
I. Appeal of Cejas
Cejas contends the court prejudicially misinstructed on the permissible use of uncharged bad-act evidence.
Two categories of uncharged bad-act evidence were introduced against Cejas. First, there was evidence, testimony by neighbors and Potter’s daughters, that Cejas beat Christopher on other occasions before the beating that killed him. This evidence was admitted pursuant to Evidence Code section 1101, subdivision (b), to show Cejas’s identity, intent, motive and plan. Months before the killing, Cejas’s neighbor called Child Protective Services because she heard loud hitting sounds. Potter’s daughter, S., saw Cejas kick Christopher and hit him with a belt until he bled, and Potter’s daughter, V., saw Cejas punch Christopher and kick him in the private parts.
Second, evidence that Cejas mistreated Potter’s daughters was introduced: Cejas states “the only evidence of any punishment of them by appellant was S[.]’s testimony that he made them stand holding a book over their heads”; and the Attorney General agrees.
Cejas asserts the instructions on these categories of evidence caused prejudice. We agree with the Attorney General that this claim is barred. The trial court and both trial attorneys engaged in detailed discussions about the instruction, and discussed how to modify it to fit these facts and the law. When the changes were made, defense counsel stated he had no objections.
Although failing to object to an instruction is not of itself consent to that instruction, in this case defense counsel helped tailor the instruction for his client’s benefit. After those efforts were complete, he registered no objections to the instruction as given. In such circumstances, defendant should be barred from arguing the instruction should have been further modified in ways not brought to the attention of the trial court. (See People v. Rodrigues (1994) 8 Cal.4th 1080, 1133-1135, 1191-1192; People v. Viramontes (2001) 93 Cal.App.4th 1256, 1264.)
In any event, the instruction did not allow the jury to use the bad-act evidence improperly. We set out the instruction as given, with added paragraph numbers:
“[1] The People presented evidence of alleged conduct by the defendant that was not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the alleged conduct.
“[2] Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt.
“[3] If the People have not met this burden, you must disregard this evidence entirely. If you decide that the defendant committed the alleged conduct, you may but are not required to consider that evidence for the limited purpose of deciding whether or not the defendant was the person who committed . . . the offense alleged in this case, or the defendant acted with the specific intent required to prove the alleged offense in this case, or that the defendant had a motive to commit the offense alleged in this case, or the defendant had a plan to commit the offense alleged in this case.
“[4] Do not consider the evidence for any other purpose.
“[5] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
“[6] If you conclude that the defendant committed the alleged conduct, that conclusion is only one factor to consider along with all the other evidence.
“[7] It is not sufficient by itself to prove that the defendant is guilty of murder. The People must still prove each element of the charge and special circumstance beyond a reasonable doubt.
“[8] If you conclude the defendant committed the alleged conduct, you may consider that evidence and weigh it together with any other evidence received during the trial to help you determine whether the defendant is guilty of the charged crime and special circumstance.
“[9] The weight and significance of the evidence are for you to decide; however, if you find a defendant committed any or all of the alleged acts or alleged conduct, that is not sufficient by itself to prove he committed the charged crime.
“[10] You may not find the defendant guilty unless you are satisfied the People proved each element of the crime and special circumstance beyond a reasonable doubt.”
The trial court also defined preponderance of the evidence, and instructed the jury that the People had to prove the charges beyond a reasonable doubt, as defined.
Cejas posits that Paragraph 8 allowed the jury to use all the bad-act evidence, together with the other evidence, to determine “whether the defendant is guilty” of the charges. He complains that only some of the bad-act evidence was admitted for all relevant purposes, but this paragraph allowed all of the bad-act evidence so to be used. We reject this claim.
We agree that virtually all of the bad-act evidence was admitted for the limited purposes allowed by Evidence Code section 1101. That was the evidence of abuse committed against Christopher. But Paragraphs 3, 4 and 5 told the jury that all of the “alleged conduct” was admitted for limited purposes, that it could be used for and only for identity, intent, motive and plan. We presume the jury is composed of rational jurors who are capable of reading and correlating instructions (People v. Powell (1960) 186 Cal.App.2d 54, 59 (Powell)), and the record does not suggest that Paragraph 8 of this instruction would be read out of context. The instructions were correct and lawful.
The evidence of what Cejas did to the girls seems trivial when compared to the uncharged acts against Christopher (kicking in groin, beating with belt until he bled). His acts against Christopher were plainly admissible (see People v. Hoover (2000) 77 Cal.App.4th 1020, 1026 [alleged assaults against same victim admissible]) and the jury would not have been improperly swayed by the evidence regarding the girls. There is no basis for reversal. (Cal. Const., art. VI, § 13.)
II. Appeal of Potter
A. Second Degree Murder
Potter claims no substantial evidence supports murder on an aider liability theory, the murder verdict based on that theory violates due process, and the trial court misinstructed on aider liability. Before addressing these three claims, we reject a basic assumption underlying each of these claims.
Potter baldly asserts that she stands convicted of murder on the theory that she aided and abetted Cejas’s commission of felony child abuse, and murder was the natural and probable consequence thereof. The record instead indicates that, after rejecting Potter’s claim that she was unable to do anything to stop Cejas, the jury found Christopher was killed as the natural consequence of Potter’s deliberate performance of an act inherently dangerous to human life, that is, her omission to act, with conscious disregard for Christopher’s life, while she had a duty as his de facto parent to protect him. In statutory terms, she acted with an “abandoned and malignant heart” by choosing not to help Christopher. (Pen. Code, § 188.)
The jury was instructed on four theories of murder, two theories of first degree murder (torture murder and premeditated murder) and two theories of second degree murder. One theory of second degree murder was that Potter aided Cejas in committing felony child abuse, and murder was the natural and probable consequence thereof.
However, the jury was also instructed on implied malice murder as defined by CALJIC No. 8.31:
“Murder of the second degree is [also] the unlawful killing of a human being when:
“One, the killing resulted from an intentional act,
“Two, the natural consequences of the act are dangerous to human life, and
“Three, the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.
“When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being.”
The trial court added the following:
“The word ‘act’ as used in these instructions includes an omission or a failure to act in those situations where a person is under a legal duty to act.
“Any person having care or custody of a minor child has a duty to obtain medical treatment when failure to do so could endanger the health of the child.”
During the instructional conference the trial court explained that the evidence showed without question that Potter had care and custody of Christopher and was his de facto parent. (See People v. Culuko (2000) 78 Cal.App.4th 307, 335; People v. Toney (1999) 76 Cal.App.4th 618, 621-622; People v. Cochran (1998) 62 Cal.App.4th 826, 832-833.) This conclusion is not challenged on appeal and is apparent from the record, which shows that Potter was Cejas’s putative wife, enrolled Christopher in school, arranged for his clothing, prepared his meals—when he was allowed to eat—and so forth.
The trial court, describing the horrific and protracted beating that Potter witnessed, stated:
“Anyone, in my opinion, who has care and custody of a child . . . would have a legal duty, in my opinion, to act and to render aid.
“Now, whether her failure to act was the result of Post Traumatic Stress Disorder, duress, or Battered Women’s Syndrome, the jury can decide, but, legally, setting aside those defenses, any person having care or custody of a child, . . . would have the duty in my opinion to provide medical care under those circumstances.”
Earlier, in discussing Potter’s motion for acquittal, the trial court had commented that her failure to act for a long time while Christopher was beaten to death clearly satisfied the elements of implied malice second degree murder, if the jury rejected the duress and allied defenses.
During deliberations, the jury submitted nine written questions, which were not all answered in the order in which they were submitted. Question One asked for a definition of the phrase “care and custody.” The trial court replied it had no special meaning, that it did not “‘imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver.’”
Question Five was the last question answered. It was a two-part question as follows:
“A. In CALJIC 3.00 [defining principals], does the term ‘act’ include an omission or failure to act (as listed under CALJIC 8.31 [defining implied malice murder])?
“B. In CALJIC 8.11 [defining malice aforethought], does the term ‘act’ (‘The killing resulted from an intentional act’) mean an omission or failure to act (as listed under CALJIC 8.31)?”
Without objection the trial court answered the first part of Question Five as follows: “No. In CALJIC 3.00 and 3.01, the term ‘act’ does not include an omission or failure to act. Aider and abettor liability for murder cannot be based on an omission or failure to act.”
Potter’s counsel filed a written objection to the trial court’s proposed answer to the second part, but the objection was narrow: He requested that the court answer the second part “no,” on the view that “the jury did not ask about implied malice, nor did the jury ask about aiding and abetting. The jury simply and clearly asked does the term act mean an omission or failure to act as listed in CALJIC 8.31.” This objection was unsound: Plainly, the jury was asking about implied malice, as indicated by its citation to CALJIC No. 8.31. Potter alternatively asked: “If the Court does expand, over defense objection, then the Court is requested to instruct the jury that the answer is no if Ms. Potter was an aider and abettor.” The trial court agreed, and twice told the jury that aider liability could not be based on failure to act.
The trial court answered the second part of Question Five as follows:
“The answer depends on what you find the facts to be.
“The term ‘act’ in that portion of CALJIC 8.11 which defines implied malice, means both an act and an omission or failure to act in those situations where a person is under a legal duty to act. Any person having care or custody of a minor child has a duty to obtain medical treatment when failure to do so could endanger the health of the child.
“However, aider and abettor liability for murder cannot be based on an omission or failure to act.
“As a principal, one may be liable for implied malice murder based upon a failure to act where a legal duty to act exists, as defined in CALJIC 8.31, as long as you are satisfied beyond a reasonable doubt that all other elements have been established.”
The jury received the answer to this question at 12:15 p.m. on the last day of deliberations, and reached its verdicts by 2:03 p.m., which strongly indicates this was the last issue holding up the verdicts.
Although Potter denigrates the answer the court gave to the jury’s question, quoted above, she did not object to the legal adequacy of the instruction in the trial court, she merely objected that the trial court was answering the question too broadly. The trial court’s answer correctly stated the law applicable to implied malice murder. (People v. Burden (1977) 72 Cal.App.3d 603, 614-619 [second degree murder upheld on evidence father allowed child to starve]; see People v. Heitzman (1994) 9 Cal.4th 189, 198.) Thus, the jury could have concluded that Potter had a duty to seek medical care for a child under her care and that she made a conscious decision not to act, that such failure to act was inherently dangerous to human life, and deliberately done with conscious disregard for life. That is, she bore Christopher implied malice directly, not as an aider.
Because of the evidence, the verdicts and the timing of the verdicts, it seems clear that Potter’s jury predicated liability on implied malice murder, which was the most logical route to murder. Although she claimed to be too afraid to do anything sooner, the jury rejected her duress and related claims when it convicted her of felony child abuse; had her defense raised a reasonable doubt about her willfulness, an element of that offense, it would have acquitted her thereof. This jury was not reluctant to express its doubts: It rejected both theories of first degree murder despite evidence that Christopher was killed by means of torture; if the jury found her to be an aider, it likely would have fixed her liability at first degree murder. Its conviction on the felony child abuse charge reflects it did not credit her duress and related claims, and its conviction on second-degree murder, after the trial court answered the questions in the manner described above, reflects that the jury found she failed to prevent Christopher’s killing when, as a person with “care and custody” over him (Pen. Code, § 273a, subd. (a)), she failed to stop the abuse or seek help.
Because Potter neither heads nor develops any argument why this theory of liability is not supported by the evidence or is otherwise infirm, we deem any such arguments to be forfeited. (See People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)
We now address Potter’s claims pertaining to murder.
1. Sufficiency of the Evidence
Potter asserts no substantial evidence supports her liability for murder because the record lacks evidence that Christopher’s death “was a natural and probable consequence of appellant’s neglect, based on the information available to her prior to the victim’s death.” We reject the claim.
First, if we agreed with Potter that no substantial evidence supported an aiding theory, we would affirm because we would not assume that the alleged error in submitting the factually unsupported aiding theory to the jury was prejudicial; instead, we would assume, as indicated above, that the jury chose the factually supported theory of implied malice murder. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
Second, Potter’s mode of argument is flawed. The heart of her claim of lack of evidence is as follows:
“Appellant’s rendition of Chris’[s] death is the only first-hand account of the crime in the record. The other, circumstantial, evidence establishes only that Chris was beaten to death by his father. Without appellant’s confession there would be insufficient evidence to establish her criminal liability. In these circumstances, lacking other evidence of criminal liability, review for insufficiency of the evidence requires that the defendant’s inculpatory statement be taken as a whole and at face value.” (Italics added.)
We disagree, because “a trier of fact is permitted to credit some portions of a witness’s testimony, and not credit others.” (People v. Williams (1992) 4 Cal.4th 354, 364.)
The cases relied on by Potter in support of her method of argument at best indicate that where the only explanation of an alleged crime carries with it mitigating facts, the trier of fact may not at the same time believe the inculpatory and reject the exculpatory portions. In California this is usually called the Toledo rule, taken from a case where the only account of a killing was that a defendant struck the victim when the victim came at him with a knife: In other words, there was no other explanation for the killing, except an exculpatory one. (People v. Toledo (1948) 85 Cal.App.2d 577, 581.) An earlier California Supreme Court case explained the point as follows: “The courts may sometimes say that the prosecution is ‘bound by’ extrajudicial statements of defendant which are introduced by the prosecution and which are irreconcilable with guilt, but this concept is applicable only where there is no other competent and substantial evidence which could establish guilt.” (People v. Acosta (1955) 45 Cal.2d 538, 542-543; see In re George B. (1991) 228 Cal.App.3d 1088, 1093.)
The Toledo rule was criticized in Matthews v. Superior Court (1988) 201 Cal.App.3d 385, 393-394 [questioning Toledo’s viability after adoption of Evidence Code]; and People v. Ross (1979) 92 Cal.App.3d 391, 400 [similar]. In any event, the rule does not help Potter.
Potter’s statements to the police and her testimony do not indivisibly establish both the manner of killing and exculpatory facts: Instead, they establish that Potter knew Christopher was subjected to great bodily injury for a long time and that she did nothing to prevent those injuries or seek medical help.
Why Potter did nothing was a separate issue. The jury was not compelled to believe her claim to the police and at trial that she was paralyzed into inaction by her fear of Cejas.
Furthermore, Potter performed acts which the jury could rationally have found aided Cejas. Potter (with her father) was interrogated by Redding police on August 21, 2002, and Potter alone was again interrogated by the Sacramento police one week later. Her statements based on these interrogatories set out a general timeline:
Friday, August 16, 2002:
Potter called her father to have him pick up the twins on Monday and take them to Oregon.
Saturday, August 17, 2002:
Cejas found out about the visit and became angry, hitting Potter and throwing her to the floor.
Monday, August 19, 2002:
After Cejas left for his jail work alternative job, Potter’s father arrived to pick up the girls. Christopher was handcuffed in the bedroom at the time.
Later that day Cejas beat Christopher, first by punching him in the stomach when he drank water and later in the evening Cejas hit him with a belt.
Tuesday, August 20, 2002 (times estimated by Potter):
7:40 a.m.: Cejas goes to work alternative job.
11 a.m.: Potter leaves Christopher handcuffed while she goes to the video store.
3-4 p.m.: Cejas returns home and he and Potter watch a movie until about 6 p.m.
7 p.m.: Potter goes to the market and again goes to the video store. The twins call from their grandparents’ house; this makes Cejas angry.
10 p.m.: Potter prepares food for Cejas and leaves for a short drive to cool down. Potter returns and watches a movie while working on needlepoint.
11:30 p.m.: Potter unhandcuffs Christopher to let him go to the bathroom; Cejas hears him and becomes enraged because he believes Christopher drank water without permission.
During the beating of Christopher, Potter takes P. into another room to quiet him down and at one point tells Cejas to stop because of the neighbors.
Wednesday, August 21, 2002:
1:15 a.m.: The beating stops.
5:45 a.m.: Cejas wakes up and prepares for work.
After he leaves, Potter calls her father and prepares to go to Redding.
When the beating first started, and later during the beating, Potter quieted P., who began waking up. A jury could find these acts assisted Cejas by helping to prevent discovery of Christopher’s condition.
Further, there was evidence from which the jury could find that during the long beating, Potter twice left the house and returned. Although she claimed these trips preceded the onset of the beating, there was contrary evidence: A neighbor testified she heard yelling and “repetitive and . . . loud” hitting sounds at about 2-4 p.m. on the afternoonof August 20, 2002. She heard a distinct period of yelling and beating beginning near midnight. The jury could find that after Cejas beat Christopher for an initial period, Potter went about her normal routine. The jury could find that by maintaining the façade of normality, Potter encouraged Cejas to continue beating Christopher. (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743-746 [mother’s presence without objecting to molestations encouraged perpetrator to continue].) This conclusion flows from the portion of the pattern instruction stating: “Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.” (CALJIC No. 3.01, italics added.) The jury could also find that Potter’s presence during the prolonged beating encouraged Cejas to continue the beating.
For all of these reasons, we reject Potter’s claim that no substantial evidence supports her conviction of murder.
2. Due Process
Potter asserts that the instructions allowed the jury to convict her of murder “without evidence of an intentional act or advice which aided, promoted, encouraged, or instigated the commission of the target crime or the murder itself.”
Potter’s claim assumes the jury could have found her liable on an aiding theory based on her failure or omission to act. This claim disregards the trial court’s answer to the jury’s Question Five, as we described at length above. By that answer, the jury was precluded from returning a murder verdict on an aiding theory based on Potter’s failure or omission to act. We presume the jury followed the trial court’s instructions. (Powell, supra, 186 Cal.App.2d at p. 59; see People v. Chong (1999) 76 Cal.App.4th 232, 245.)
She also asserts that the answer eliminated the required mental state for aider liability for murder, thus allowing the jury to convict on a legally erroneous theory. We disagree. To find her guilty of the target offense of felony child abuse the jury was instructed it had to find she acted “willfully and as a result of criminal negligence[.]” The jury, in response to its question, was also instructed that if it found her not guilty of the target offense “due to duress, threats and menaces, then she cannot be held liable for murder” on an aiding theory. In order to find liability as an aider the jury had to find Potter had “knowledge” of Cejas’s purpose, intended to help him and by “act or advice aid[ed], promote[d], encourage[d], or instigate[d]” Cejas. Thus, the instructions did not allow for murder liability “without a finding of any mental state” as she asserts.
In the reply brief Potter claims that her liability for murder “is based entirely on her assertedly negligent failure to call 911.” This possibility was foreclosed because, as stated above, the jury, in response to its Question Five, was twice instructed that “aider and abettor liability for murder cannot be based on an omission or failure to act.”
3. Use of “Reasonably Foreseeable”
As part of the pattern aiding instructions, the trial court instructed as follows:
“In determining whether the crime of murder was a natural and probable consequence, you must determine whether a reasonable person in the defendant’s position would have known that the crime was a reasonable foreseeable consequence of the act aided and abetted. In making this determination, you must consider those circumstances which the defendant knew, taking into account all the facts and circumstances surrounding the particular defendant’s conduct.
“You may not find the defendant guilty of murder, merely because she aided and abetted Cejas’ commission of felony child abuse, if it was unforeseeable that Cejas would commit murder as a result. However, if you find, beyond a reasonable doubt that Potter did aid and abet Cejas’ commission of felony child abuse, and if it was foreseeable that Cejas would commit murder as a result, you may find Kathryn Potter guilty of murder under this theory of aiding and abetting.
“The question is not whether the aider and [abettor] actually foresaw the additional crime of murder, but whether, judged objectively, murder was reasonably foreseeable.”
Potter asserts this instruction lessened the standard of proof for murder on an aiding theory. In particular, she asserts the instruction “eliminated the requirement that the murder be a ‘likely’ or ‘probable’ result of Cejas’s escalating child abuse.” We reject this claim.
The instruction as given, read in context, fully comports with People v. Coffman and Marlow (2004) 34 Cal.4th 1, 106-108 (Coffman and Marlow), which explains that:
“Elaborating on the natural and probable consequences doctrine . . . we observed that an aider and abettor ‘is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.’ As the Court of Appeal in People v. Brigham (1989) 216 Cal.App.2d 1039 [] noted, although variations in phrasing are found in decisions addressing the doctrine—‘probable and natural,’ ‘natural and reasonable,’ and ‘reasonably foreseeable’—the ultimate factual question is one of foreseeability. [Citations.] “‘A natural and probable consequence is a foreseeable consequence’ [citations]; the concepts are equivalent in both legal and common usage.” Coffman cites no authority for the contention that the term ‘natural and probable consequences’ is one having a meaning peculiar to the legal context and that, therefore, the term must be expressly defined for the jury. . . . [¶] . . . [¶]
“Finally, we reject the premise of Coffman’s argument that the application of the natural and probable consequences doctrine in capital cases unconstitutionally predicates murder liability on mere negligence. Liability as an aider and abettor requires knowledge that the perpetrator intends to commit a criminal act together with the intent to encourage or facilitate such act; in a case in which an offense that the perpetrator actually commits is different from the originally intended crime, the natural and probable consequences doctrine limits liability to those offenses that are reasonably foreseeable consequences of the act originally aided and abetted.”
Reading the instruction given in this case, we see no error. “A natural and probable consequence is a foreseeable consequence.” (People v. Fabris(1995) 31 Cal.App.4th 685, 698, quoted with approval on this point, Coffman and Marlow, supra, 34 Cal.4th at p. 107, disapproved on another point, People v. Atkins (2001) 25 Cal.4th 76, 90, fn. 5; see People v. Mendoza (1998) 18 Cal.4th 1114, 1133; People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [reasonable person “would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant”]; People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1177.) The inclusion of the concept of reasonable foreseeability in the challenged instruction was not error.
Moreover, Potter offers no direct authority for her claim, she simply observes that CALCRIM offers a definition of “natural and probable consequences” (CALCRIM No. 402), itself based on a concurring and dissenting opinion in People v. Prettyman (1996) 14 Cal.4th 248. That definition would have told the jury (with appropriate insertions)(CALCRIM No. 402):
“A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the murder was committed for a reason independent of the common plan to commit the felony child abuse, then the commission of murder was not a natural and probable consequence of felony child abuse.”
This killing was not committed “for a reason independent” of the felony child abuse; Christopher died as a direct result of that abuse. To the extent aiding liability was on the table, the issues were whether Potter actively assisted Cejas and whether murder was foreseeable, based on the facts and circumstances as she knew them. The instruction lauded by Potter would have made no difference as to those two issues.
B. Necessity Defense
Potter claims she was “denied a defense to the charge of felony child abuse, and thus to the charge of murder as a natural and probable consequence, when the trial court failed to instruct sua sponte on the defense of necessity.” Because no substantial evidence in the record supports that defense, no such instruction was warranted. (See People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054-1059.)
A necessity instruction would have provided as follows:
“A person is not guilty of a crime when she engages in an act, otherwise criminal, through necessity. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense, namely:
“1. The act charged as criminal was done to prevent a significant and imminent evil, namely, a threat of bodily harm to oneself or another person;
“2. There was no reasonable legal alternative to the commission of the act;
“3. The reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided;
“4. The defendant entertained a good-faith belief that her act was necessary to prevent the greater harm;
“5. That belief was objectively reasonable under all the circumstances; and
“6. The defendant did not substantially contribute to the creation of the emergency.” (CALJIC No. 4.43.)
At least two of these elements are not met.
First, murdering someone cannot be done out of “necessity,” because the harm caused is at least equivalent to the harm avoided. (United States v. Holmes (C.C.E.D. Pa. 1842) 26 Fed. Cas. 360 [captain tossed passengers off of life boat to preserve lives of crew; conviction affirmed]; The Queen v. Dudley & Stephens (1884) 14 Q.B. 273 [15 Cox C.C. 624] [sailors in life boat killed boy for nourishment; convictions affirmed]; accord, People v. Anderson (2002) 28 Cal.4th 767 [explaining why duress cannot excuse murder].)
Second, Potter had the reasonable alternative of calling the police to stop Cejas’s conduct, or obtain medical help for Christopher. (See People v. Pepper (1996) 41 Cal.App.4th 1029, 1035-1036 [felon took possession of gun, purportedly to protect children, but he could have moved children instead of the gun]; People v. Morris (1987) 191 Cal.App.3d Supp. 8 [instead of driving recklessly to get medical aid for another, Morris could have called for an ambulance].) Although Potter claimed that she was too afraid to do anything until she reached Redding hours after the abuse had stopped, that does not mean she had no reasonable and legal alternative to doing nothing.
Public policy regarding criminal law is set by the Legislature; only in very limited circumstances will the courts fashion an exception to statutory criminal liability, and then only where a clear countervailing public policy supports an exception. (People v. Youngblood (2001) 91 Cal.App.4th 66, 72-73; see also People v. Galambos (2002) 104 Cal.App.4th 1147, 1160-1162.) Some classic examples allowing a necessity defense are violating a camping law to seek shelter from the elements (In re Eichorn (1998) 69 Cal.App.4th 382), and breaking out of jail to avoid unlawful abuse by guards (People v. Lovercamp (1974) 43 Cal.App.3d 823).
Public policy does not excuse Potter’s conduct. Her daughters were with her father in Oregon. She could have called 911 as soon as Cejas fell asleep, or immediately after leaving the apartment the next morning with her son; instead, she drove to Redding before saying anything. No instruction on necessity was warranted. (See, e.g., People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 [“necessity defense is inappropriate in this case because its recognition would encourage rather than deter violence”].)
Finally, it is clear from the verdicts that Potter’s claims of abuse and her expert’s opinion testimony failed to raise any doubt in the jury’s mind about Potter’s liability for felony child abuse. The BWS instruction explicitly stated that Potter merely had to raise a reasonable doubt on that issue as to the mental state for murder and torture, and the duress instruction, read in conjunction with the instructions requiring the People to prove every element of felony child abuse beyond a reasonable doubt, implicitly also required Potter to merely raise a reasonable doubt as to crimes other than murder. (People v. Graham (1976) 57 Cal.App.3d 238, 240; cf. Dixon v. U.S. (2006) 548 U.S. ___ [165 L.Ed.2d 299] [burden on federal defendant to prove duress by a preponderance of the evidence].) But Potter would have had the burden to prove necessity by a preponderance of the evidence. (See People v. Waters (1985) 163 Cal.App.3d 935, 937 ; People v. Condley (1977) 69 Cal.App.3d 999, 1008-1011 [discussing reasons for different burdens]; CALJIC No. 4.43.) The jury that found the evidence raised no doubt as to duress and BWS would not have been persuaded by a preponderance of the evidence, viewing the same evidence through the lens of a necessity instruction. There is no basis to reverse. (Cal. Const., art. VI, § 13.)
C. Evidentiary Ruling
Dr. Linda Barnard testified as Potter’s expert on BWS. Barnard believed Potter was a battered woman “Because she was physically, sexually, verbally, and psychologically abused by Andrew Cejas throughout their relationship.” However, this was not a diagnosis; “we are not trying to diagnose someone. We are describing a situation, which is why we changed it from Battered Women’s Syndrome to either talking about domestic violence or Intimate Partner Battering and its effects.” She described how she evaluated Potter, and opined that Potter had been credible. On direct examination she characterized Potter’s responses to many incidents or behaviors as “typical” or “reasonable,” meaning “consistent” with domestic abuse.
During cross-examination Dr. Barnard conceded her opinion was based at least partly on what Potter told her. She testified Potter had gaps in her memory about some of the abuse inflicted by Cejas, and that such gaps are “consistent or reasonable” for a victim of “Intimate Partner Battering and its effects[.]” The following then took place:
“Q. Is having gaps in the memory also consistent with a person who’s purposefully seeking to avoid having to answer tough questions for which they don’t have a good answer?
“A. They could attempt to do that, yes.
“Q. Okay. Is stating that she has gaps in her memory or things are foggy also an effective coping mechanism for women who don’t want to tell the truth when the truth would hurt them?
“MR. GREINER [Defense counsel]: Objection. [Invades] the jury’s province.
“THE COURT: The objection is overruled. The witness — in this area it’s hard to explain Battered Woman Syndrome or Intimate Partner Battering and credibility issues. Ultimately, she can express an opinion, the jury has to decide that. But it does address that specifically in the statute. [¶] I’ll make further points on this subject later.”
Dr. Barnard then answered: “It could, yes.”
Potter now argues the question sought Barnard’s opinion about whether Potter was lying, and asserts:
“The question was argumentative in the absence of any separate source of information on which the psychologist could assess the defendant’s credibility. The psychologist was not qualified to determine, or asked to determine, the defendant’s credibility. In these circumstances, the question was objectionable as argumentative, and the defense objection should have been sustained.”
Because the objection interposed at trial was that the prosecutor’s question went to the ultimate issue in the case, that is, that it invaded “the jury’s province,” the appellate claims that the question was argumentative or called for an expert opinion about Potter’s veracity are barred. (Evid. Code, § 353; People v. Morris (1991) 53 Cal.3d 152, 187-188.)
Moreover, the question did not ask the expert to give an opinion on Potter’s veracity, it merely asked if one of the factors (gaps in memory) mentioned by the expert in reaching her opinion that Potter was credible could have an alternative explanation inconsistent with the expert’s opinion. Nor was the question argumentative. It simply pressed the expert on a subject she had testified to during her direct examination.
Further, as it said it would do, the trial court later cautioned the jury as follows:
“[U]ltimately what’s reasonable, what’s not, is a question of fact that you’re going to have to decide in light of the law that you’ll be given at the end of the case.
“So I don’t want you to substitute the doctor’s opinion for your own fact-finding function and your role as the ultimate triers of fact and your role ultimately to decide credibility of witnesses.
“There have been questions about whether the doctor believed answers, conduct on the part of Miss Potter. Again, you decide credibility, not other witnesses. I permitted the questions because the doctor has to make decisions in deciding whether a person is malingering; that is, whether they’re hiding or giving false answers intentionally. So I permitted some questions in that area. But ultimately that’s your role and you shouldn’t substitute the responses of the doctor for your lawful duties to decide credibility and what is reasonable conduct or not reasonable, as you’ll be instructed later.”
We presume the jury understood and followed this admonition. (Powell, supra, 186 Cal.App.2d at p. 59.)
DISPOSITION
The judgments are affirmed.
I concur: BUTZ , J.
SCOTLAND , P.J.
I concur in affirming the judgment.
Contrary to the claim of defendant Cejas, the instruction to the jury regarding its consideration of evidence of uncharged conduct was not confusing, conflicting, or otherwise erroneous. Applying it in light of all the instructions given to the jury, a reasonable juror would not have understood the instruction to mean that although certain evidence was introduced for a limited purpose, it nonetheless could be considered by the jury for any purpose in determining whether the charges were proved beyond a reasonable doubt.
Also without merit is the claim by defendant Potter that there is insufficient evidence she was an aider and abettor of the child abuse that led to the fatal beating of 12-year-old Christopher by Cejas and insufficient evidence that “death was a probable consequence of the beating, based on information available to [Potter] prior to the death.” The record contains ample evidence from which the jury reasonably could conclude that Potter assisted Cejas in a systematic course of abuse, including handcuffing, starvation, and sleep deprivation, motivated by their intense dislike of the child and that the brutally fatal beating by Cejas was reasonably foreseeable. Potter’s protestations that she “did not share the rage which Cejas focused” on Christopher, and that she was “a passive or tacit participant in felony child abuse, which in turn led to Chris’ death,” ring hollow in light of the evidence that Potter personally handcuffed Christopher, withheld food and water from him, and told a friend that if it was up to Potter, the “fat fucker [Christopher] would never eat again.” Based on the horrific circumstances of the abuse of Christopher, a reasonable jury could conclude Potter understood that it was simply a matter of time until the contempt she and Cejas had for Christopher would escalate into a brutal attack upon him that would threaten his life.
Because there was substantial evidence that Potter aided and abetted Cejas in this systematic abuse with the understanding that Christopher’s death was a natural and probable consequence of the abuse, the trial court properly instructed the jury on the doctrine of natural and probable consequences. The fact that the instruction referred to whether the killing was a “reasonable foreseeable consequence of the act aided and abetted” was not error. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 106-107; People v. Fabris (1995) 31 Cal.App.4th 685, 698.)
Potter believes that the trial court erred in not instructing sua sponte on the defense of necessity. The contention fails for the reasons stated by my colleagues, who also correctly reject her claim that the trial court “erred by overruling a defense objection to a question posed to a defense expert calling for an opinion on whether [Potter] was telling the truth.”
There being no error, the judgment must be affirmed.