P. v. Gallegos
Filed 12/5/12 P. v. Gallegos CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
RENE GALLEGOS
et al.,
Defendants and Appellants.
E052499
(Super.Ct.No.
RIF140921)
OPINION
APPEAL
from the Superior Court
of
County. Edward D.
Webster, Judge. Affirmed.
Athena
Shudde, under appointment by the Court of Appeal, for Defendant and Appellant
Rene Gallegos.
Jerry
D. Whatley and John L. Dodd, under appointment by the Court of Appeal, for
Defendant and Appellant Joanna Gonzalez.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl
T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant and appellant Rene Gallegos of
three-month old son
title="">[1] (count 1—Pen. Code § 187, subd. (a));
causing death as to the same victim (count 2—§ 273ab); and five counts of
child neglect respectively as to his remaining offspring (§ 273a, subd.
(b)). Another jury
defendant Joanna Gonzalez, of involuntary manslaughter of the victim (count 1—§
192(b)), a lesser, necessarily included offense of the count 1 charge of second
degree murder and five counts of child neglect (§ 273a, subd. (b)) as to her
remaining offspring.
name="_ftnref4" title="">[4] The court sentenced Gallegos to an aggregate,
indeterminate term of 25 years to life.
The court granted Gonzalez two years probation.
On
appeal, Gallegos contends the court’s instruction of the jury with a bracketed
portion of the pattern jury instruction CALCRIM No. 520 violated his federal
constitutional right to due process by
permitting the jury to find him guilty of second degree murder based on
negligence rather than on the requisite intentional, deliberate, and knowing
act. He further maintains the court
prejudicially erred in failing to adequately answer the jury’s two questions
regarding the instruction. Gonzalez
argues insufficient evidence
supported her conviction for involuntary manslaughter. She further maintains the court prejudicially
erred in failing sua sponte to instruct the jury with CALCRIM No. 3500, the
unanimity instruction. We affirm the
judgments.
Paramedic
Jennifer Gilden responded to defendants’ residence on December 28, 2007, at
8:14 a.m. The fire fighters met her and
her partners outside; they were carrying a small child, the victim, in their
arms. The victim had no pulse and no
respirations. The fire fighters were
performing CPR as they walked toward the paramedics. Paramedic Gilden intubated the victim, moved
him to the ambulance, and left the scene at 8:23 a.m. The victim showed no external signs of
trauma. The ambulance arrived at
Riverside Community Hospital at 8:33 a.m.
The victim’s condition did not change in the interim despite Paramedic
Gilden’s continuing performance of CPR.
She handed the victim off to hospital staff.
Dr.
Eugene Chan, an emergency medical physician at Riverside Community Hospital,
testified he received the victim at 8:33 a.m.; the victim was unresponsive and
showed no signs of life. The victim was
already deceased when Dr. Chan and his staff attempted to resuscitate him;
their attempts were unsuccessful. Dr.
Chan declared the victim dead at 8:44 a.m.
He saw no external signs of trauma.
The
preliminary hearing testimony of Dr. Aaron Gleckman was read into the record at
trial.
the Riverside County Coroner’s Office who conducted the autopsy of the victim
on January 7, 2008. He found multiple
points of trauma on the victim’s head:
“[T]here were more than three injuries.
There were three actual impact sites, three sites where his head was
either slammed against something or something was slammed against his head, and
those were all recent.â€
Dr.
Gleckman determined the cause of the victim’s death was blunt force trauma to
the head: “[E]ither the baby’s head was
slammed against something to cause that hemorrhage under the scalp on the skin
within the brain or something was used to hit [him]; and those different impact
sites, that resulted in the injury to the brain and death.†The deputy coroner likewise found evidence of
blunt force head trauma. Dr. Gleckman
testified there was no way the injuries could have been sustained
accidentally: “[T]he findings are
overwhelming to show that this was . . . [intentionally] inflicted force.†The fatal injuries occurred within 24 hours
of the victim’s death. Dr. Gleckman also
found evidence of older injuries suggesting the victim had sustained a
continued course of abuse. Moreover, Dr.
Gleckman testified there was also an element of Shaken Baby Syndrome in the
case. Dr. Gleckman testified that had
the victim seen a doctor after he sustained his initial injuries it could
potentially have saved his life.
Deputy
Sheriff Kimberly Burney responded on December 28, 2007, regarding a call for
medical aid for a baby who was not breathing.
When she arrived, both the fire department and the paramedics were
already on the scene; fire department personnel were doing chest compressions
on the victim. The victim had no
external signs of trauma. Gallegos
appeared fidgety, but calm. Gonzalez
“was very distraught. She was crying and
yelling . . . .â€
There
were three homes on the lot; Deputy Burney had originally arrived at Gonzalez’s
grandmother’s home, where the victim was; she was directed to defendants’
residence. Upon entering, she noted,
“[t]here was a tile floor that was filthy, a very strong odor emitting from the
entire house, and . . . just in general disrepair.†She observed the home had “[a] very strong
smell†“[k]ind of like rotten food, feces.â€
“The whole house was just overpowering.
We had to keep going outside getting air and then coming back in.†The defendants’ bathroom floor was covered in
“[c]lothing, trash, debris, [and] a broken mirror.â€
They
found a total of four baby bottles in the home.
One had mold on the top and a dried white residue on the bottom. Another had four ounces of liquid inside. In the living room were “old, spoiled food,
and dishes, and debris and trash.†The
kitchen had “dishes everywhere. It had
old, spoiled food [on] all the dishes.
There [were] nails exposed from the cabinets. There were spiders, flies, cockroaches.†She could not tell if the bedroom was
carpeted because “it was so soiled and dirty that you couldn’t really tell what
it was, and it was exposed concrete in between.â€
A
total of 13 people lived in the home.
Defendants and their six children shared one bedroom. Two of Gonzalez’s brothers, Raul, Jr., and
Rudy, lived in another bedroom; another brother, Artemio, lived in the living
room. Gonzalez’s parents, Raul and
Martina, lived in a third bedroom.
name="_ftnref6" title="">[6]
Gallegos
was in jail when the victim was born; he was released in November 2007. Gonzalez did not obtain a job until after
Gallegos’s release. Gallegos was
responsible for taking care of the children while Gonzalez worked; nonetheless,
Gallegos would often leave the home and children without telling anyone. In fact, he would often jump out the window
so that the other members of the household would not know he had left.
Susie
Thomas, a Public Health Nurse with the Riverside County Department of Social
Services (the department), testified she went to a follow-up investigation at
defendants’ home on December 24, 2004, regarding allegations of physical abuse
and neglect. She was there in part to
educate defendants about Shaken Baby Syndrome; she gave them a pamphlet, told
them what effects should compel them to bring a baby to the hospital, and
performed a medical assessment of the children.
She testified the allegation of physical abuse was unsubstantiated.
Artemio
testified at trial that he saw Gallegos hit the children, though he testified
at the preliminary hearing that he had not.
Rudy testified Gallegos hit the children on their hands. Artemio testified Gallegos would discipline
the children with time-outs and spankings.
Gallegos would yell at the victim when he would cry; Artemio would hear
Gallegos hit the victim in the bedroom.
Gallegos would call the baby a “faggotâ€; Gallegos yelled at all the
children loudly.
On
December 22, 2007, Artemio took Gonzalez to work sometime between 3:30 and 5:00
a.m. At some point after he returned
home, Martina told him something was wrong with the victim; the victim was
having convulsions and shaking. Gallegos
was not in the home; Artemio drove to a home three blocks away where Gallegos
could always be found; Artemio believed they sold drugs at the house. Martina told Gallegos that he needed to take
the victim to the hospital because he was sick.
Gallegos declined at that time; he returned inside the house where they
had found him. As Gonzalez was returning
home from work that day, Martina informed her about the convulsions. Martina told Gonzalez she should take the
victim to the doctor.
On
December 28, 2007, Artemio again took Gonzalez to work between 3:30 and 5:00
a.m. Thirty minutes to one hour after
Artemio had returned home, Gallegos brought the victim to Artemio and Martina. The victim looked pale, weak and limp. Martina testified she told Gallegos the
victim was dying and that he should call the fire department. He told her she was crazy. Gallegos initially asked Artemio to take the
victim to the hospital, but Gallegos did not want to accompany him; Gallegos
decided he wanted to stay with his friends.
Instead, he told Artemio to go pick up Gonzalez from work. Artemio and Martina went to pick up Gonzalez
from work; Artemio told her the victim was sick. It took them approximately one hour to pick
up Gonzalez and return home.
When
they arrived home, Gonzalez came out with the victim five minutes later. The victim appeared to be sleeping; Artemio
did not know if the victim was breathing.
Artemio drove them to their grandmother’s house where Gonzalez went
inside and called the ambulance.
Gonzalez said the victim was no longer breathing.
During
her initial police interview, Gonzalez admitted the victim had thrown up a
couple times prior to Christmas and that she intended to take him to the
doctor, but the clinic was closed on Christmas Eve and Christmas Day.
had last used drugs eight or nine years ago.
She said she did not know if he had ever been arrested for drugs, but
knew he had been arrested previously for what she believed was an unpaid
traffic infraction. During a second
interview over a week later, she told the officer Martina never told her the
victim had experienced convulsions on December 22, 2007.
At
trial, Gonzalez testified she lied to the officer when she denied Martina told
her about the victim incurring convulsions; she only reported Martina told her
the victim had been shaking. On December
22, 2007, Martina had told her the baby had been sick and had convulsions. During the week between December 22 and 28,
2007, Martina told her the victim had been vomiting. Gonzalez testified she had previously been
informed by individuals from the department of the symptoms of Shaken Baby
Syndrome; those symptoms included convulsions, vomiting, and lethargy. Nevertheless, she believed Martina was
exaggerating regarding the victim’s symptomology because his temperature was
normal and he looked normal and happy.
Contrariwise,
Gonzalez testified she was still concerned about the victim and planned to take
him to the clinic on December 24, 2007, but it was closed. She admitted she knew Gallegos had been
arrested for possession of methamphetamine and that she knew Gallegos hung out
at a residence rumored to be a house where drugs were sold. She conceded that leaving the children with a
methamphetamine user would be dangerous.
On December 28, 2007, Gallegos was the person responsible for the victim.
Gallegos
called forensic pathologist Harry Bonnell to the stand. Dr. Bonnell testified he read the autopsy
report, medical records, and evidence in the case. He contended a blood culture should have been
performed to rule out an infection as the cause of death. Dr. Bonnell testified there were a number of
other possible causes for the victim’s subdural hematomas other than blunt
force trauma: (1) infection; (2)
injuries sustained during birth that rebleed after incurring minor bumps; and
(3) injuries caused by a short fall.
Nevertheless,
Dr. Bonnell testified the victim could have died from abusive head trauma. Moreover, he admitted he could not say with
certainty what caused the victim’s death.
Furthermore, he conceded rebleeds of subdural hematomas were unlikely in
C-section births and even in vaginal births after the child was one month of
age or older; Gonzalez gave birth to the
victim by C-section. Finally, Dr.
Bonnell testified that in his medical opinion no matter how hard you shake a child,
you cannot cause brain damage unless you hit the child’s head on something.
Joseph
Cohen, Chief Forensic Pathologist for the Riverside County Coroner’s Office
from July 26, 1999, to August 8, 2010, reviewed both Dr. Gleckman’s and Dr.
Bonnell’s reports and the autopsy photographs.
He testified the photographs showed fresh contusions from blunt force
trauma. He opined the cause of death was
multiple blunt impact injuries inflicted to the head of the victim within
minutes or hours of his death. Dr. Cohen
testified there was no evidence of infection even in the absence of cultures.
A. CONSTITUTIONALITY OF CALCRIM NO. 520
Gallegos
contends the court’s instruction of the jury with a modified version of CALCRIM
No. 520, which included bracketed language referencing negligence, permitted
the jury to find him guilty by a lesser standard than required by law; thus,
violating his federal due process rights.
Regardless of the People’s argument that Gallegos invited or forfeited
the issue, we hold there was no reasonable likelihood the jury applied the
instructions in the unconstitutional manner posited.
On
October 19, 2010, the People filed their amended request for jury instructions,
including CALCRIM No. 520. On October
22, 2010, prior to the completion of trial, the court engaged in the following
colloquy with the People, counsel for Gallegos, and counsel for Gonzalez
regarding the instruction:
“The
Court: . . . And then, obviously, I have
to go back and correct the printing on 520, and I’m going to modify the
instruction. I guess I’ll go through the
whole effort and make one for [each defendant] . . . but we’re only talking
about implied malice; is that correct?
“[People]: That’s correct.
“The
Court: And I filled in the duty part of
father/mother has a legal duty to care for, protect and provide medical care
for his/her child; are you agreeable to that?
“[People]: I am.
“The
Court: [Gallegos’s counsel], are you
okay with 520 the way it’s phrased[?]
“[Gallegos’s
counsel]: I am generally if I could have
the weekend—obviously, maybe if I have an objection on Monday—I just had a big
question mark to make sure that the legal duty was proper[ly] defined there.â€
Gonzalez’s
counsel requested language requiring that the death be foreseeable in order to
be the natural and probable consequence of defendant’s act. The court responded: “Well, I’m a little bit leery about drafting
court language to instruction[s] that[] [have] been approved. But, again, one thing I’m not going to do is
rewrite it right here. If somebody wants
to write an instruction with the language they think is appropriate, we can
discuss it, but at this point, 520 is the instruction I’ll give.†The court and parties held further discussion
regarding the proposed version of CALCRIM No. 520 later that day.
After
completion of trial, the court reviewed its proposed written instructions with
counsel. The court asked, “Any objection
to my modifying 520 to take out 1 and just renumber 1A to 1 and put that in its
place?†The People responded, “I think
that would be better, your Honor.â€
Gonzalez’s counsel agreed: “That
seems more appropriate.†Soon after, the
court discussed the modified version of CALCRIM No. 520 with Gallegos’s
counsel. The court then asked Gallegos’s
counsel whether he was “okay with everything so far, except for our discussion
about 580?†Gallegos’s counsel replied,
“Yes.â€
The
court ultimately instructed Gallegos’s jury with the following version of
CALCRIM No. 520: “The defendant is
charged in Count 1 with murder in violation of Penal Code section 187. To prove that the defendant is guilty of this
crime, the People must prove that:
Number one, the defendant committed an act that caused the death of
another person, or, 1A. Owing a duty to
[the victim], the defendant intentionally failed to act and that failure to act
caused the death of [the victim]; and number two, when the defendant acted,
he had a state of mind called malice aforethought. Malice aforethought may be implied
malice. [¶] The defendant acts with implied malice if: Number one, he intentionally committed an
act; or 1A, owing a duty to [the victim],
he intentionally failed to act; and, number two, the natural and probable
consequences of the act were dangerous to human life; and number three, at the
time he acted he knew his act was dangerous to human life; and number four, he
deliberately acted with conscious disregard for human life. . . . [¶] An
act causes death if the death is the direct, natural, and probable consequence
of the act and the death would not have happened without the act. A natural
and probable consequence is one that a reasonable person would know is
likely to happen if nothing unusual intervenes.
In deciding whether a consequence is natural and probable, consider all
the circumstances established by the evidence.
[¶] . . . A father has
a legal duty to care for, protect, and provide medical care for his child. If you
conclude that the defendant owed a duty to [the victim], and the defendant failed to perform that duty, his
failure to act is the same as doing a negligent or injurious act.†(Italics added.)
During
its deliberations, Gallegos’s jury issued a request reading, “We ask for
clarification on the charge ‘murder in the second degree’—the word
‘INTENTIONAL’. [¶] Count 1:
1A: Owing a duty . . . baby
Anthony[.]†The court asked the
foreperson for an explanation of the jury’s request. The foreperson replied that they needed
clarification because when considering the word “‘intentional.’ Accidental comes to mind . . . . [¶] .
. . [¶]
On the second page, the very last comment or the statement where it
states that it’s his duty, etcetera, to [the victim], and by not acting is the
same as possibly an injurious act, with that in mind, does that—if that’s felt
does that fulfill 1A, for example, but if it was—it’s the word ‘intentional’
where one of the jurors or two of the jurors . . . .†The court responded with a lengthy exposition
regarding the differences between intentional and accidental acts and failures
to act. The court told the jurors that
counsel were concerned the court had not answered the question; if so, the
court advised the jury to put in writing another question that it could answer.
The
jury later responded with a second written request, apparently at the direction
of only one juror, reading, “Regarding Count 1:
1A [¶] ‘Intentionally failed to act’ and
‘unknowingly failed to act’ are two different meanings.’ [¶]
Question: If he unknowingly
failed to act does this make it intentional?†The court permitted both counsel to argue a
clarification of the issue for an additional two minutes.
Defendant
contends the former two italicized portions of the instructions, which were
modifications to the pattern instruction made by the court in addition to the
latter italicized portion that was a bracketed part of the pattern instruction,
permitted the jury to find Gallegos guilty of murder in the second degree even
if it found his sole criminal act was failing to realize he should have taken
the victim to the hospital when the victim exhibited symptoms of physical
illness. In other words, it erroneously
permitted the jury to find defendant guilty of second degree murder based only
upon Gallegos’s negligence. He argues
this position is underscored by the fact that the jury twice requested
clarification of the instruction.
“The
independent or de novo standard of review is applicable in assessing whether
instructions correctly state the law [citation] and also whether instructions
effectively direct a finding adverse to a defendant by removing an issue from
the jury’s consideration [citations].†(
218.) “Against a claim of this kind, an
appellate court reviews a trial court’s instruction independently: The underlying ‘question is one of law, involving
as it does the determination of . . . applicable legal principles . . . .’ [Citation.]â€
(People v. Alvarez (1996) 14
Cal.4th 155, 217.)
Nonetheless, “‘With regard to criminal trials, “not every
ambiguity, inconsistency, or deficiency in a jury instruction rises to the level
violation. The question is ‘“ whether
the ailing instruction
. . . so infected the entire trial that the resulting conviction violates due
process.â€â€™ [Citation.] ‘“[A] single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall charge.â€â€™ [Citation.]
If the charge as a whole is ambiguous, the question is whether there is a
‘“reasonable likelihood that the jury has applied the challenged instruction in a way†that violates
the Constitution.’†[Citation.]’ [Citations.]â€
(People v. Letner (2010) 50
Cal.4th 99, 182.)
“Murder is the unlawful
killing of a human being . . . with malice aforethought.†(§ 187, subd. (a).) “Malice may be express or implied.†(§ 188.)
Here, the latter is at issue.
“Malice is implied when the killing is proximately caused by ‘“an act,
the natural consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct endangers the
life of another and who acts with conscious disregard for life.â€â€™ [Citation.] In short, implied malice requires a
defendant’s awareness of engaging in conduct that endangers the life of
another—no more, and no less.†(
143.) “‘The general rule, supported by
numerous authorities in England and the United States, is that if death is
the direct consequence of the malicious omission of the performance of a duty,
such as of a mother to feed her child, this is a case of murder; but if the
omission is not willful, and arose out of neglect only, it is
manslaughter.’ [Citations.]†(People
v. Burden (1977) 72 Cal.App.3d 603, 616.)
We do not find it
reasonably likely the jury, as instructed, believed it could find Gallegos
guilty of second degree murder based solely on an act of negligence in failing
to take the victim to the hospital when he exhibited signs of physical
illness. First, neither the court nor
either counsel below interpreted the jury’s questions in such a manner. Rather, the People were certain the question
focused on the complexity between finding guilt for an intentional action
and/or an intentional failure to act, the latter being an area where the People
had experienced jury confusion in prior cases.
Gallegos’s counsel, on the other hand, exhibited complete perplexity as
to the meaning of the jury’s question.
Second, CALCRIM No. 520 as given clearly informed the jury that in order
to find Gallegos guilty of second degree murder, it was required to find either
that Gallegos intentionally committed
an act that caused the death of the victim or intentionally failed to act causing the death of the victim; the
language did not permit a guilty verdict based on a negligent act or failure to
act. The latter language using the word
“negligent†did not alter the requisite elements the jury was required to find
in order to convict Gallegos of second degree murder.
Third, the court also
instructed the jury with CALCRIM No. 582, the pattern instruction for the
lesser offense of involuntary manslaughter, which requires a criminally
negligent act or failure to act. It is
incomprehensible the jury would come to a determination that it could more
easily convict Gallegos of the more serious crime of second degree murder based
upon a lesser finding of simple negligence, than it could find him guilty of
the lesser crime of involuntary manslaughter based upon the higher standard of
correct interpretation of the requisite findings for it to render a guilty
verdict of second degree murder against defendant. The People argued Gallegos beat the
victim. They argued the act, or failure
to act, had to be intentional.
Gallegos’s counsel likewise argued that in order to be found guilty of
second degree murder, the jury must find Gallegos deliberately acted or
intentionally failed to act. Gallegos’s
counsel also argued the requisite finding of criminal negligence if the jury
were to find defendant guilty of the lesser included offense of involuntary
manslaughter “or, if you believe that he acted reasonably given the
circumstances, something short of criminal negligence, he would be not guilty
of all charges.†Thus, it is not
reasonably likely the jury attached itself to the word “negligent†in the
instruction and disregarded the express, requisite findings necessary to
convict Gallegos of second degree murder.
The court’s instruction did not deprive Gallegos of due process.
B. COURT’S ANSWER TO JURY’S QUESTIONS
Gallegos
contends that even if CALCRIM No. 520 as given would survive constitutional
scrutiny, the court abused its discretion in the manner it responded to the
jury’s questions, failing to help the jury understand the legal principles it was
asked to apply. We disagree.
After
the jury submitted its first question, the court proposed bringing the jury
into the courtroom and asking the foreman to clarify the question. The People responded, “I don’t have an
objection to that, but I think it’s clear what they mean. They’re talking about, obviously, the
failure-to-provide-medical-care or protect version of a murder theory, and
if—the Court knows that the language, which is not good language, in 521A is,
‘Owing a duty to [the victim] the defendant intentionally failed to act,’ and
that is a very difficult phrase for every jury that I’ve ever had deal with
this issue because it’s basically telling the jury that somebody intentionally
didn’t do something, which is a very hard concept, I think, to understand. It’s also an oxymoron. That he intentionally didn’t do something is
just a very difficult concept for jurors to understand. I think that’s the question, but I’m happy to
have them asked if that’s what the court wants to do.â€
Gallegos’s
counsel responded: “There’s two choices,
really. Just tell them, basically, some
version of, that everything you need to know is already in the jury
instructions, or bring them out as you stated and find out what they really
mean.†The court asked the foreperson
for an explanation of the request. The
foreperson stated the jury needed clarification because when considering the
word “‘intentional.’ Accidental comes to
mind . . . . [¶] . . .
[¶] On the second page, the very
last comment or the statement where it states that it’s his duty, etcetera, to
[the victim], and by not acting is the same as possibly an injurious act, with
that in mind, does that—if that’s felt does that fulfill 1A, for example, but
if it was—it’s the word ‘intentional’ where one of the jurors or two of the
jurors . . . .â€
The
court then went on to give a rather lengthy elucidation of the difference
between “intentional†and “accidentalâ€:
“Let me just first say about the word ‘intentional’ and the word
‘accidental,’ that’s easier. The issue
about intentionally not doing something is much more difficult. But an intentional act can be a deliberate
act. For example, a chess master playing
chess, moving a piece might [be] a very deliberate act that might take five
minutes. That is an intentional
act. But if somebody trips in front of
you and you reflexively catch them, that’s an intentional act even though
that’s a reflex. You can have many
different kinds of intentional acts.
[¶] What a mistake is what many
of you understand as an accident. If
you’re playing golf, if you slice a shot, hit a tree, and you hit somebody with
a ball, that’s an accident. Or you back
your car out and you have a pick-up truck next to you, and you’re hoping the
car coming down the road is going to stop because you can’t see because you
have the big side of pick-up truck.
That’s what I’m thinking when . . . I back out. If that person doesn’t see your backup lights
and you back into that person, that’s an accident. [¶] If
you’re playing basketball and you come down and land on somebody’s foot, you
don’t want to land on that foot because that’s how you’re going to get a
sprained ankle. That would be an
accident, okay? I think those are easy
to understand. [¶] The question about intentionally not doing
something is—let’s say your spouse tells you, ‘I need for you to go to the
store and pick up some milk,’ and you decide you’re not going to do it because
you want to stay home and watch the baseball game, you intentionally decided
not to do that. Does that help.â€
The
foreman responded, “We’d have to go back.â€
The court then expanded upon its previous explanation: “Those are pretty clear examples, in my own
mind, of—in everyday life. And remember,
we talked about your common sense and experience, that’s what we’re talking
about when you’re jurors. I have had the
experience where jurors try to read too much into this and try to come up with
special definitions of words and so forth, so, again, when the instruction
says, your common sense and life experience, we don’t want you to forget that,
okay? All right.†The foreperson returned with the jury for
deliberations.
The
People complained about the court’s answer, requesting the court make clear
Gallegos need not have intended death be the outcome of his failure to act;
“I’m confident that’s what the confusion is here.†Gallegos’s counsel replied, “Well, at this
point, I think that the foreperson asked the question and you gave an answer
and they said that they would like to go back.â€
The court retorted, “I think I’ll leave it at that.†Nevertheless, the People continued to
complain the court’s examples were incorrect as explanations of the law. The court eventually told the jurors that
counsel were concerned he had not answered their question and asked that, if
so, they write out another question so he could address it.
The
jury complied sending out another request reading “Regarding Count 1: 1A
[¶] ‘Intentionally failed to act’
and ‘unknowingly failed to act’ are two different meanings.’ [¶]
Question: If he unknowingly
failed to act does this make it intentional?†Gallegos’s counsel responded, “As I told [the
prosecutor] earlier, I think the easy answer is no, but—it’s clearly not the
same thing, but I’m trying to get behind the question. I have no idea what they’re talking
about.†The prosecutor insisted, “I
still think there’s no difference when she substitutes ‘unknowing’ for
‘unintentional.’ I think I know the
issue, and I just think they’re having trouble expressing it, but I know we’ve
had a difference of opinion on what they’re asking. And I would . . . ask the Court . . . to give
us a minute or two to reopen argument . . . to discuss this and see if we could
solve the problem.â€
Gallegos’s
counsel replied, “Obviously, [the prosecutor], maybe because of a prior case,
seems certain that he knows what the issue is.
At this point, I am completely confused as to what they’re talking
about. I suspect that the language of
520 is sort of mixing and matching things.
Obviously, the circumstances known to Gallegos at the time factors into
whether he intentionally failed to act or not on something. I think the easy answer is—whether
unknowingly is the same as intentionally, is no.†The court responded “I think the real
question is whether or not he knew that the failure to get medical care was
dangerous to human life, and that’s what the ‘unknowingly’ should be focused
on.â€
Gallegos’s
counsel agreed: “Right. So under the second 1A under implied malice,
factors one through four or five should all be read in [¶] . . . [¶]
conjunction with one another.†The court
concurred: “I agree. I agree completely. . . . The question really is whether or not that
failure to act was with conscious disregard for life. Because he made a choice not to seek medical
care . . . .†Juror No. 10, the juror
who apparently made both requests, then stated, “Well, my question is, if he
unknowingly did this act, I mean, if he didn’t know what to do at the time that
these acts happened, if he did not know what to do, was that intentionally—did
he intentionally not do something.â€
Gallegos’s
counsel observed the juror was “focusing on the implied malice. I believe that part’s clear. . . . I mean, it’s getting so specific right now,
we’re clearly dealing with just one of the 12 jurors. I fear that we’re going to invade the
province of the jury and start, you know, going places that we shouldn’t. I think she needs to make up her own
mind.†The prosecutor again requested
the court give each of them a minute to argue in answer to the request. The court agreed to give each of them two
minutes to argue.
The
court then went on the record with the jurors and explained, “the attorneys
have heard the specific concern that [juror No. 10] has, and at some point when
the question gets very specific, if I answer the question directly, it’s almost
like I’m telling the jurors what to do in terms of the verdict. So, the compromise position, we’re now
clearly allowed to do this, is allow the attorneys about two minutes to explain
what they understand that means and to see if that help[s] you see. [¶] .
. . [¶]
But again, I’m afraid that if I answer your question directly, I may,
essentially, be telling the jury what to do, and I don’t really want to do
that.â€
The
People explained that “intentional†referred to whether the defendant
unreasonably gambled with the victim’s life in refusing to obtain medical help
after having been educated about the repercussions of the particular symptoms
displayed by the victim. Defendant
argued, “the question is from yesterday if he, meaning [Gallegos], unknowingly
failed to act, does this make it intentional, and the simple answer to that
question is no. If you have an unknowing
act, then it does not make it intentional. . . . [¶] . . . [¶] .
. . So in situations where I don’t know if I should go to the doctor, I don’t
know how sick [the victim] is, I want to wait for [Gonzalez] to come, that
would be read in conjunction with did he knowingly act or fail to act knowing
that it was dangerous to human life, did he consciously disregard human
life? And if it’s no, he didn’t
knowingly act in that way, then it would be not guilty to murder.†The jury returned to deliberations at 8:41
a.m. It announced it had a verdict at
1:30 p.m.
“The
trial court has a duty to help the jury understand the legal principles the
jury is asked to apply. [Citation.] In particular, under section 1138 the court
must attempt ‘to clear up any instructional confusion expressed by the
jury.’ [Citation.] But ‘[t]his does not mean the court must
always elaborate on the standard instructions.
Where the original instructions are themselves full and complete, the
court has discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for
information.’ [Citations.] In exercising that discretion, the trial
court ‘must at least consider how it can best aid the jury. It should decide as to each jury question
whether further explanation is desirable, or whether it should merely reiterate
the instructions already given.’
[Citations.]†(
454, 465.) “An appellate court applies
the abuse of discretion standard of review to any decision by a trial court to
instruct, or not to instruct, in its
over a deliberating jury.
[Citation.]†(
745-746; People v. Eid (2010) 187
Cal.App.4th 859, 882.)
In
the instant case, it is unclear precisely what miscomprehension of CALCRIM No.
520 juror No. 10 was having. The People
and the court appear to have initially believed the point of contention to be
whether a person who fails to act can do so deliberately. The court’s protracted explanation contained
a number of examples differentiating between intentional acts, intentional
non-acts, and unintentional acts.
Nonetheless, Gallegos’s counsel did not concur with the court’s or the
People’s understanding of the query; rather, he appeared stumped as to the
meaning of the question. Under the
circumstances, where the question is not clearly understood by the court or
either party, we cannot say the court’s attempted explanation amounted to an
abuse of its discretion to attempt to aid the jury in its duties.
Moreover,
the court’s initial attempt at aiding the jury did not end the matter. The jury came back with another
question. The court questioned the
particular juror who proposed the question.
Though we agree with Gallegos’s counsel that the most efficient manner
of dealing with the second question would have been merely to answer “noâ€;
again, where the respective parties could not agree on precisely what the
question meant, it is difficult to assign blame to the court for not knowing
how to definitively remedy the juror’s inquiry.
Furthermore,
the court permitted the parties additional time to give their own explanations
to the jury. Gallegos’s counsel stated
unequivocally “If you have an unknowing act, then it does not make it
intentional.†It is notable that neither
of the jury questions ever mentioned the word “negligent.†Here, the trial court spent a great deal of
time discussing the jury questions with counsel, querying the jury foreperson
and the juror who asked the question, attempting to answer the question itself,
and allowing counsel the additional opportunity to argue the matter. We find no abuse of discretion in the trial
court’s near-Herculean efforts to clarify the query of one juror. Finally, even if the court abused its
discretion, it was not reasonably probable that any error resulted in a less
favorable outcome for Gallegos. (
As noted ante, it is unfathomable the jury would believe it
could convict Gallegos of the more serious crime of second degree murder based
upon a finding of mere negligence, but only find him guilty of the lesser crime
of involuntary manslaughter based upon a higher standard of culpability.
C. SUFFICIENCY
OF THE EVIDENCE
Gonzalez contends
insufficient evidence supports her conviction for involuntary
manslaughter. We disagree.
“In
reviewing a criminal conviction challenged as lacking evidentiary support,
‘“the court must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.†[Citation.]’ [Citation.]â€
(People v. Streeter (2012) 54
Cal.4th 205, 241.)
“‘A
charge of manslaughter may be predicated upon a failure to act as well as upon
an act. Willful failure of a person to
perform a legal duty, whereby the death of another is caused, is murder, but if
the omission was not willful, but was the result of gross or culpable
negligence, it is involuntary manslaughter.’
[Citation.]†(
85, 101; People v. Burden,
Witkin, Cal. Crim. Law (3d ed. 2000) Crimes Against the Person, § 232, p. 842;
CALCRIM No. 582.)
Here,
substantial evidence supported the jury’s determination that Gonzalez had
willfully failed to protect the victim from Gallegos. Gonzalez had lived in a single bedroom with
Gallegos and their six children for nearly two months. The condition of the home was exceptionally
decrepit and filthy, demonstrating a general lack of concern on Gonzalez’s part
for the health and welfare of her children.
Gonzalez’s family members testified Gallegos would hit the children;
Artemio specifically testified Gallegos would hit the victim and call him a
“faggot.†Dr. Gleckman found evidence of
older injuries suggesting the victim had sustained a continued course of abuse. It is inconceivable that living in such close
quarters with Gallegos and her other family members Gonzalez was unaware of
Gallegos’s behavior toward the children and the victim in particular.
Moreover,
she told the interviewing officer Gallegos had last used drugs eight or nine
years ago. She said she did not know if
he had ever been arrested for drugs, but knew he had been arrested previously
for what she believed was an unpaid traffic infraction. However, she later admitted she knew Gallegos
had been arrested for possession of methamphetamine. She testified she knew Gallegos hung out at a
residence rumored to be where drugs were sold.
She conceded that leaving the children with a methamphetamine user would
be dangerous. Her initial lie regarding
Gallegos’s drug use reveals a consciousness of guilt. Nonetheless, despite being aware that
Gallegos hit the children, yelled at the victim, and potentially used drugs,
she left Gallegos responsible for taking care of the children while she worked.
Furthermore,
Dr. Gleckman testified there was also an element of Shaken Baby Syndrome in the
case. Gonzalez had previously been given
information regarding the symptoms exhibited by a child who has incurred Shaken
Baby Syndrome. When Gonzalez returned
home from work on December 22, 2007, Martina informed her the victim had
experienced convulsions. Martina told
her she should take the victim to the doctor.
During her initial police interview, Gonzalez admitted the victim had
thrown up a couple of times prior to Christmas and that she intended to take
him to the doctor, but the clinic was closed on Christmas Eve and Christmas
Day. During the week between December 22
and 28, 2007, Martina told her the victim had been vomiting.
During
her second interview, Gonzalez told the deputy Martina never told her the
victim had experienced convulsions on December 22, 2007. Gonzalez testified at trial she lied to the
deputy when she denied Martina told her about the victim experiencing
convulsions. Thus, Gonzalez had been
told the victim exhibited symptoms she knew to be indicative of Shaken Baby
Syndrome. Gonzalez testified she was
concerned about the victim and planned to take him to the clinic. Her failure to take the victim to the doctor
the day after she had been told of the victim’s symptoms, December 23, 2007,
when the clinic would presumably have been open, or even after Christmas,
further reflects a disregard for the health of the victim. Moreover, her lie to the interviewing deputy
about being told of the victim’s convulsions reflects a consciousness of guilt
that she had not taken him to the doctor, and continued to leave him in
Gallegos’s care. Thus, the People
adduced substantial evidence from which the jury could reasonably have
concluded that Gonzalez willfully failed to protect the victim from Gallegos’s
fatal behavior toward the victim.
D. UNANIMITY INSTRUCTION
Gonzalez
contends the court erred in declining to give the jury the unanimity
instruction. We disagree.
A
criminal defendant is entitled to a verdict in which all 12 jurors concur as a
matter of due process under the state and federal Constitutions. (People
v. Russo (2001) 25 Cal.4th 1124, 1132.)
In any case in which the evidence would permit jurors to find the
defendant guilty of a crime based on two or more discrete acts, either the
prosecutor must elect among the alternatives or the court must require the jury
to agree on the same criminal act.
“[C]ases have long held that when the evidence suggests more than one
discrete crime, either the prosecution must elect among the crimes or the court
must require the jury to agree on the same criminal act. [Citations.]
[¶] This requirement of unanimity
as to the criminal act ‘is intended to eliminate the danger that the defendant
will be convicted even though there is no single offense which all the jurors
agree the defendant committed.’
[Citation.] . . . The [unanimity]
instruction is designed in part to prevent the jury from amalgamating evidence
of multiple offenses, no one of which has been proved beyond a reasonable
doubt, in order to conclude beyond a reasonable doubt that a defendant must
have done something sufficient to convict on one count.’ [Citation.]â€
(Id. at pp. 1132-1133.) Where it is warranted, the court must give
the instruction sua sponte. (
reversible error if, without it, some jurors may have believed the defendant
guilty based on one act, while others may have believed him guilty based on
another. (Russo, at p. 1133.)
In
People v. Taylor (2010) 48 Cal.4th
574, the defendant argued that “because the prosecution presented two distinct
factual scenarios in support of its burglary theory, the trial court erred in
failing to give a unanimity instruction regarding that offense.†(Id.
at p. 627.) The court noted in
burglary to illustrate ‘the difference between discrete crimes, which require a
unanimity instruction, and theories of the case, which do not.’†(Taylor,
at p. 627.) Thus, where the evidence
showed two different entries into two separate homes on two separate dates,
both with burglarious intent, the unanimity instruction would be required. (Ibid.) “On the other hand, where the evidence shows
only a single discrete crime but leaves room for disagreement as to exactly how
that crime was committed or what the defendant’s precise role was, the jury
need not unanimously agree on the basis or, as the cases often put it, the
‘theory’ whereby the defendant is guilty.
[Citation.]†(
at p. 1132.) Thus, where the entry
element of burglary could have been committed at either one of two different
times, both of which were argued to the jury, no unanimity instruction was
required. (Taylor, at pp. 627-628.)
Here,
the People requested the court instruct Gallegos’s jury with the unanimity
instruction because there were “two distinct theories†for the murder. The court declined to give the instruction
observing, “[t]he reason why it’s not required is—the murder or the death is considered
the act. . . . Here, there’s only one
act, which is the death of the child.â€
We believe the same reason applies to render unnecessary the instruction
as to Gonzalez’s jury. As Gonzalez’s
appellate counsel repeatedly notes, the People argued two “theories†of her
guilt. As discussed in
presentation of different “theories†as to how a single crime occurred does not
require that the court give the unanimity instruction.
Moreover,
even to the extent one could view the evidence as presenting more than one act
by Gonzalez amounting to a willful failure to protect the victim, we believe
such acts would constitute a continuous course of conduct that would, likewise,
negate any need for the unanimity instruction.
(See People v. Culuko (2008)
78 Cal.App.4th 307, 325; People v. Riel,
supra, 22 Cal.4th at p. 1199;
321; People v. Napoles (2002) 104
Cal.App.4th 108, 115-116.) Even if
error, cases generally hold the omission of a unanimity instruction harmless if
the record reveals “no rational basis, by way of argument or evidence, by which
the jury could have distinguished between [the acts which would constitute the
offenses].†(People v. Deletto (1983) 147 Cal.App.3d 458, 473;
1437, 1450.) We find no rational basis
to distinguish between Gonzalez’s ostensible, multiple failures to protect;
thus, we find no prejudice.
The
judgments are affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
name="_ftn1" title=""> [1] The
victim was born in September 2007 and died in December 2007.
name="_ftn2" title=""> [2] All
further statutory references are to the Penal Code unless otherwise indicated.
