P. v. Jones





Filed 6/8/11 P. v. Jones CA3
NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, Plaintiff and Respondent, v. CLIFTON JONES, Defendant and Appellant.

C058911 (Super. Ct. No. 05F10937)

After the death of his one-month-old son, defendant Clifton Jones was charged with murder and assault on a child under the age of eight resulting in death. (Pen. Code, §§ 187, subd. (a), 273ab.)[1] A jury acquitted defendant of murder but convicted him of involuntary manslaughter, a lesser offense. (§ 192, subd. (b).) The jury deadlocked on the child abuse homicide charge, and a second jury convicted defendant on that count. Sentenced to 25 years to life, defendant appeals, contending (1) section 1023 prohibited retrial on the child abuse homicide count, (2) counsel performed ineffectively in failing to assert section 1023, (3) instructional error, (4) prosecutorial and judicial misconduct, (5) counsel performed ineffectively in failing to assert attorney-client and work product privileges, (6) sentencing error, and (7) his sentence constitutes cruel and unusual punishment. We shall remand for a consideration of the restitution fines and direct the trial court to strike fees not imposed at sentencing. In all other respects, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2006 an information charged defendant in count one with the murder of Clifton Jones, Jr., and in count two with the assault of Clifton Jones, Jr., a child under the age of eight years, resulting in death. In July 2007 a jury acquitted defendant of second degree murder in count one, but convicted defendant of involuntary manslaughter as a lesser included offense. The jury deadlocked on count two and the court declared a mistrial as to that count.
The prosecution requested a retrial on count two and a second trial followed. Since most of defendant’s contentions relate to the second trial, we briefly summarize the evidence.

Prosecution Case

Janelle Dorrough and defendant began an off-and-on relationship in 2000. Dorrough became pregnant with defendant’s child. The couple did not live together. Instead, Dorrough lived with her cousin, Keyona Ervin, and Ervin’s two children, a two year old and a four month old. The house did not have a telephone land line; instead, Dorrough and her cousin used the cousin’s cell phone.
On November 9, 2005, Dorrough gave birth to defendant’s child, Clifton Jones, Jr., known as CJ. Following his birth, CJ, essentially a full-term baby, had no health problems.
Defendant moved in with Dorrough a few days after the birth. He wanted to be close to his son and to help care for him. The trio slept in the same bed.
During the first month, CJ gained weight and developed normally. He did not suffer from colic or gas. CJ cried when hungry but was not prone to prolonged crying spells.
Dorrough breast fed CJ but switched to a combination of breast feeding and bottles to allow defendant to feed CJ and bond with him. Dorrough instructed defendant about the proper way to feed CJ, cautioning him against propping up the bottle by placing a towel underneath. Defendant fed CJ daily but did not feed CJ in the middle of the night.
Although there was a baby swing in the home, Dorrough never put CJ in it because he was too little. CJ could not hold his head up and needed to have his neck supported.
Defendant was a loving father. He was calm and gentle with his son. Dorrough worried defendant would spoil their son because he picked up CJ every time he cried. Defendant never yelled at CJ, nor did he spank or hit the baby. Defendant never appeared disturbed by CJ’s crying.

The Incident

The evening before CJ’s death was routine. CJ and defendant both appeared normal the next morning.
Dorrough needed to deliver paperwork regarding CJ’s birth to the welfare office. As Dorrough prepared to leave, CJ began to cry. Defendant tried to soothe his son with a pacifier, but CJ continued to cry. However, defendant did not appear frustrated or angry with the baby. Dorrough comforted CJ and he fell asleep before she left.
Defendant had not been alone with CJ before, but Dorrough was not apprehensive about leaving the baby with him. Defendant assured her he could watch CJ and seemed happy to show he could handle the responsibility. Dorrough went out, assuring defendant she would not be gone long.
Approximately an hour later, the fire department received a 911 call reporting a child having difficulty breathing. Paramedics arrived and found CJ in defendant’s arms. CJ appeared flaccid and cyanotic with a pulse of less than 80 beats per minute. CJ was very blue and his limbs were limp. It appeared as though he had not been breathing for some time.
Defendant told paramedics CJ choked during a bottle feeding and then stopped breathing. Paramedics began life support efforts.
When Dorrough returned home, she found defendant sitting in the front seat of an ambulance. Defendant said nothing but put his finger in the air as if to ask Dorrough to wait. He appeared shocked and frantic. Defendant, Dorrough, and Ervin drove to the hospital.
In shock, Dorrough did not ask defendant any questions while en route to the hospital. Ervin asked defendant what happened, and defendant told her he put CJ in the baby swing and gave him a bottle. Defendant then went into the bathroom, leaving CJ with his bottle in the swing. CJ choked on the bottle, turned blue, and went limp. Defendant tried to administer CPR (cardiopulmonary resuscitation).
As paramedics rushed CJ to the hospital, they attempted to induce breathing by intubating the baby. They also performed CPR and gave CJ a cardiac stimulant. Although his heart rate increased, CJ’s condition did not otherwise improve.

At the Hospital

At the hospital, defendant told Dorrough, “I know you told me don’t ever prop the bottle in his mouth. I’m sorry.” He also told hospital staff that he put CJ in the swing and propped a bottle in the baby’s mouth. He left the room for a minute, and when he returned CJ was gagging and vomiting. When defendant took CJ out of the swing, the baby went stiff and limp.
Joanne Natale, M.D., a pediatric critical care specialist, examined CJ and found him in a comatose state, with bloody secretions around his mouth. Tests were run on the baby, including a CT (computerized tomography) scan and a chest X-ray. The CT scan revealed bleeding in CJ’s brain, although the scan quality was poor. Dr. Natale believed CJ had a seizure during the scan, which blurred the picture. Dr. Natale continued to treat CJ for two hours.
CJ experienced another cardiac arrest. Medical personnel performed CPR but told Dorrough CJ was not going to survive. Dr. Natale pronounced CJ dead and allowed Dorrough to hold him.
A month or two later, Dorrough received a letter from defendant, in which defendant stated CJ was injured when defendant danced with him. Defendant did not tell Dorrough about it because he was afraid she would be angry. Defendant did not say CJ hit his head on anything.

The Autopsy

Mark Super, M.D., performed part of the autopsy on CJ along with Aimee Butel, M.D. At the time of the autopsy, CJ weighed eight and one-half pounds. The autopsy revealed no exterior injuries or bruises, or any injuries that appeared more than a few days old.
When Dr. Super peeled back CJ’s scalp, he found two bruises on the back of CJ’s head. Under CJ’s skull, Dr. Super found blood in unusual places, subdural hematomas (blood clots between the dura, a membrane covering the brain, and the brain itself), and bleeding in the membranes that cover the brain. Bleeding in the brain is abnormal, caused by veins shearing when the skull is impacted.
Dr. Super also discovered a fracture of CJ’s left parietal bone, the major side bone of the skull. The fracture was about one and one-half inches long, located slightly behind the left ear.
Dr. Super found bleeding in the fibrous sheath surrounding CJ’s optic nerves, which extend from the eyeballs to the brain. This type of bleeding occurs when the eyeball and the brain stretch apart, usually during a front to back impact, known as an acceleration/deceleration injury.

Cause of Death

Dr. Super testified that, in his opinion, CJ died from blunt force head injuries. Dr. Super believed the injuries came from a blunt object, but he could not determine whether CJ’s head hit an object or an object hit the baby. CJ died not from the fracture, but from the brain injury. Although a “trip and fall” by someone holding the baby could have caused the fracture, it would not explain the serious brain injury.
Dr. Super found CJ’s head injuries similar to those of infants killed in car accidents. CJ’s injuries were also consistent with those of a child slammed against a wall or who had fallen from a second- or third-story balcony.
According to Dr. Super, if CJ had not been immediately rendered unconscious, he would have become irritable and would have cried or vomited for a brief period before becoming lethargic and losing consciousness. However, in Dr. Super’s opinion, CJ probably experienced an instantaneous loss of consciousness.
Dr. Super reviewed defendant’s testimony from the first trial. Defendant stated he tripped and fell against the wall while holding CJ. However, Dr. Super found several discrepancies in defendant’s version of events.
The physician found it difficult to believe defendant used CJ’s head to break his fall. Even if defendant had done so, the fall would not have generated the force necessary to break CJ’s skull. Dr. Super acknowledged he could not estimate defendant’s speed at point of impact. If, as defendant testified, CJ slammed into the wall and then defendant slammed into CJ, the infant would have had injuries on his face. Dr. Super found no such injuries.
In addition, defendant initially failed to provide this explanation for CJ’s injuries. Since defendant’s explanation of events did not comport with CJ’s injuries, Dr. Super ruled CJ’s death a homicide.
Angela Rosas, M.D., an expert in physical child abuse, testified that such abuse is often impulsive and can be brought on by an infant’s crying. Parents who abuse their children do not always have a violent history with the child. Dr. Rosas also found defendant’s explanation of the incident inconsistent with CJ’s injuries.
According to Dr. Rosas, a child who had been dropped during a fall would sustain a slight skull fracture with some bleeding beneath the skull. Dr. Rosas had never seen a fatal brain injury as a result of a person falling while holding a child. CJ’s injuries were similar to injuries suffered by children in car accidents who had not been secured in a car seat, or by children in falls from a second story.
Dr. Rosas testified CJ probably lost consciousness almost immediately. CJ might have been irritable and lethargic for a few minutes followed by a loss of consciousness within minutes. Dr. Rosas had never heard of a child suffering traumatic brain injuries from choking.
Dr. Rosas testified she believed CJ’s injuries resulted from abuse and inflicted injury, based on the severity of the brain injury. CJ’s fracture and subdural hematoma might have been caused by a fall as described by defendant, but the infant’s severe brain injury was caused by abuse. CJ’s brain injuries caused his death.

Defense Case

Defendant testified that he and Dorrough dated on and off for five or six years. Although Dorrough’s pregnancy was not planned, and defendant was initially shocked, he eventually became happy about the prospect of being a father.
Defendant did not have much experience with babies. He did watch his niece and his “God niece” occasionally. Defendant’s niece would throw “little tantrums,” demanding her way. Defendant responded by giving her a “[t]ime out” or compromising with her.
After CJ’s birth, defendant spent the night with the mother and child in the hospital. Defendant felt very happy about CJ’s birth and wanted to move in with Dorrough so he could help raise his son.
Defendant let Dorrough know he wanted to be an equal parent to CJ. He fed CJ by bottle. When CJ woke in the middle of the night, defendant got up with him to change his diaper. Defendant never felt fatigued or irritable from the effects of sleep deprivation.
When CJ cried, defendant picked him up, walked him around, and talked to him. He would pat CJ on the back while supporting his head. Defendant usually carried CJ with CJ’s head resting on his shoulder. When this process did not calm CJ, defendant would give the baby a pacifier. If the pacifier did not soothe the baby, Dorrough would intervene. CJ would cry for only a few minutes. Defendant never became angry with CJ, and never spanked or struck the infant.

The Incident

The morning of CJ’s death, defendant felt normal, neither sad nor angry. CJ also appeared normal, not any fussier than usual.
Before Dorrough left to run her errand, defendant offered to stay with CJ. Although this would be his first time alone with CJ, defendant was not apprehensive. Shortly before Dorrough left, CJ woke up and wanted to eat. Although defendant attempted to soothe him, CJ would not calm down and Dorrough stepped in and nursed the baby. Dorrough put CJ on the bed and he fell asleep.
After Dorrough and Ervin left, defendant rolled some marijuana into an empty cigar wrapper, making a “blunt.” He had finished about one half of the blunt when he heard CJ crying. Defendant felt “content, actually relaxed, more relaxed and calm.” However, defendant was not “buzzed long enough to get the munchies.”
When defendant checked on CJ, the baby’s diaper was dry and he seemed fine. Defendant rocked him until he stopped crying. Defendant returned to the living room and resumed smoking marijuana.
CJ began whining and defendant picked him up again. Defendant began to dance around holding CJ and supporting his neck. The baby’s head did not flop around while they were dancing.
Defendant needed to go to the bathroom. He went to grab a bottle for CJ, who was no longer crying. As defendant reached for the bottle, he tripped over a shoe. Defendant was moving quickly when he tripped. He fell to the right, taking several steps before he fell.
Defendant attempted to break his fall, but everything happened very quickly. He put his hand out but did not connect with anything. CJ fell into the wall, and then defendant hit the wall. Defendant heard a loud sound when CJ hit the wall, and the baby immediately began crying loudly. He massaged CJ’s head and walked and talked to him. Defendant thought CJ just had a bump on his head from the fall.
Defendant still needed to go to the bathroom, so he put CJ in the swing with the bottle propped up by a blanket. He did not think the swing was dangerous.
Defendant was gone for only a minute or two. He returned to find CJ with formula dripping from his mouth. Defendant wiped the baby’s mouth and put him on his shoulder to burp him. CJ did not appear sick, but suddenly “every muscle just got rock hard, and he stretched out, and then he just started going limp.”
Defendant put on his shoes and stepped outside to get help. CJ’s eyes were glazed and not tracking. Defendant attempted to perform CPR, but the baby did not respond.
Defendant ran down the middle of the street and flagged down a vehicle. The driver called 911 and a dispatcher instructed defendant on performing CPR. Defendant had completed three or four chest compressions when paramedics arrived.
Defendant was afraid the paramedics would intervene because of the marijuana and might take away the other children that lived in the home. He was also still under the influence of marijuana. When paramedics asked defendant what happened, he panicked and told them he had propped a bottle in CJ’s mouth and left the room. When he returned, defendant told the paramedics, CJ choked and went limp. At trial, defendant testified CJ did not choke, but the rest of his statement to the paramedics was accurate.
When Ervin and Dorrough returned, defendant drove with them to the hospital. He told Ervin the same story he told the paramedics, but he also told Ervin he placed CJ in the swing.
At the hospital, hospital workers asked defendant about the incident. Worried and panicked, defendant decided to repeat the version of events he gave the paramedics and Ervin.

The Aftermath

The following day, defendant spoke with Detective Tyndale at the police station. Tyndale asked about accidents, but defendant denied any accident occurred. Defendant told the detective he propped a bottle in CJ’s mouth while he went to the bathroom. When he returned, CJ choked and went limp.
Tyndale then said there was more to the injury than that. Defendant then stated he had been dancing with CJ and might have been a little rough. However, defendant did not tell the detective that he tripped with the baby.
Defendant returned to the police station that evening after being arrested. He had another interview with Detective Tyndale. After the detective told defendant CJ had a head injury, defendant stated maybe he had shaken CJ “a little too hard” while dancing with him. According to defendant, Tyndale’s questioning led him to make the statement. Defendant was confused and did not tell Tyndale he tripped and fell.
Defendant also spoke with an expert hired by the defense about the incident. He told the expert he did not know what happened to CJ. Defendant did not tell the expert the truth because he was not thinking clearly.

Cause of Death

James Crawford, M.D., testified for the defense as an expert in pediatrics and evaluating physical abuse in children. According to Dr. Crawford, inconsolable crying can trigger abusive behavior in parents. Such crying can cause otherwise loving parents to lash out in frustration. Afterwards, most parents feel remorse for their actions. Parents often change their story to hide their abuse.
Dr. Crawford testified defendant’s fall could have caused CJ’s injuries. As he fell, defendant would have gained momentum, causing CJ to hit the wall with greater force and increasing the severity of CJ’s injuries.
If CJ’s head hit the wall while arcing backwards, he would have hit the wall with even greater force. According to Dr. Crawford, these rotational impacts cause greater damage to the brain than straight impacts. Dr. Crawford stated that when the impact is rotational, “the brain mov[es] inside of the skull, and that type of rotational deceleration is particularly toxic to brain cells.” A rotational impact would also result in subdural and/or subarachnoid bleeding.
Dr. Crawford testified defendant’s version of events, tripping and falling into the wall, could account for the bleeding in CJ’s brain. Such a fall would be like someone slamming CJ’s head into a hard surface.
The impact, Dr. Crawford stated, probably knocked CJ unconscious right away. If not, CJ would have cried loudly until he lost consciousness after a few seconds or minutes.
Dr. Crawford noted that he knew of no studies describing the force necessary to cause fatal head injuries in children, and he was not aware of any experts who knew how much force would be required. Although defendant’s fall could have caused CJ’s injuries, Dr. Crawford had never seen a fatal injury when a parent fell holding an infant.
Dr. Crawford had seen similar injuries in car accidents, falls from windows, and abuse. However, these types of accidents are not helpful in determining the amount of force necessary to kill an infant because the accidents generate more than enough force to cause death.
Although Dr. Crawford believed defendant’s explanation was possible, “I would have a very high suspicion that this was inflicted trauma.” Dr. Crawford testified it was not possible that choking caused CJ’s injuries. CJ died from blunt impact head trauma, which Dr. Crawford believed likely involved abuse.

Verdict and Sentence

The jury found defendant guilty of assault on a child causing death. The court sentenced defendant to a prison term of 25 years to life. Defendant filed a timely notice of appeal.

DISCUSSION

Retrial on Child Abuse Homicide

The jury in defendant’s first trial acquitted him of second degree murder but convicted him of involuntary manslaughter, a lesser included offense. The first jury deadlocked on the charge of child abuse homicide. Defendant contends that because involuntary manslaughter is a lesser included offense of child abuse homicide, section 1023 barred retrial on the greater offense.
Section 1023 states: “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.”[2]
Under the “elements test,” if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) In effect, when an offense cannot be completed without necessarily committing another offense, the latter is a necessarily included offense. (People v. Malfavon (2002) 102 Cal.App.4th 727, 742 (Malfavon).)
Defendant contends involuntary manslaughter is a lesser included offense of child abuse homicide. Section 273ab states: “Any person who, having care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 25 years to life. . . .” Section 192, subdivision (b) defines involuntary manslaughter as the unlawful killing of a human being without malice when the crime happens in the commission of an unlawful act, not amounting to felony, or in the commission of a lawful act that might produce death in an unlawful manner, or without due caution and circumspection.
In Orlina v. Superior Court (1999) 73 Cal.App.4th 258 (Orlina), the appellate court found involuntary manslaughter is a lesser related offense to child abuse homicide, not a necessarily lesser included offense. The Orlina court noted one of the elements of section 273ab is an assault committed “by means of force that to a reasonable person would be likely to produce great bodily injury.” The corresponding element for involuntary manslaughter is that the killing occur “in the commission of an unlawful act, not amounting to felony” or, in the alternative, “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” “Therefore,” the Orlina court concluded, “the first alternative for involuntary manslaughter under section 192, subdivision (b) corresponds to the element specified in section 273ab.” (Orlina, at p. 261.)
In contrast, the court concluded, “when we compare the second alternative for involuntary manslaughter with section 273ab, we find a distinction between ‘force that to a reasonable person would be likely to produce great bodily injury’ and an ‘act which might produce death . . . without due caution.’ Section 273ab is predicated on a probability of great bodily injury to the victim [citation], while the second definition of involuntary manslaughter is based on the possibility of the death of the victim. Section 273ab speaks to reckless conduct (‘likely to produce’ injury) while the second definition of involuntary manslaughter encompasses careless or negligent conduct (‘without due caution and circumspection’. It is therefore apparent that the elements of involuntary manslaughter are not necessarily encompassed within the elements of section 273ab. Involuntary manslaughter is a lesser related rather than a lesser included offense of the charged crime.” (Orlina, supra, 73 Cal.App.4th at pp. 261-262.)
The decision in Orlina has been cited with approval in Malfavon, supra, 102 Cal.App.4th at page 744 and People v. Stewart (2000) 77 Cal.App.4th 785, 796. This court, in People v. Murray (2008) 167 Cal.App.4th 1133, 1140 (Murray), found Orlina instructive in determining that aggravated assault is not a necessarily included offense of involuntary manslaughter.
Defendant argues Orlina rests on faulty ground and should not be relied upon. According to defendant, Orlina erred in applying the elements test for a necessarily included offense as though it required the lesser offense be included in the greater offense in all alternatives. Defendant argues the elements test is met if only one alternative of the lesser offense is necessarily committed when the greater offense is committed.
In addition, defendant contends Orlina “turned the elements test upside-down” by looking at the lesser offense and determining whether there are ways to commit the lesser offense without committing the greater offense. Instead, the elements test requires the court to consider the greater offense and determine whether a defendant cannot commit the greater offense without necessarily committing the lesser. Defendant asserts, “When that is done, one can come to no other conclusion but that involuntary manslaughter is a lesser included offense to child abuse homicide. An actor cannot commit child abuse homicide without also committing involuntary manslaughter.”
In support, defendant cites our opinion in People v. Cameron (1994) 30 Cal.App.4th 591 (Cameron.) In Cameron, we considered whether the defendant’s sentence for second degree murder should be reduced to involuntary manslaughter, the least offense for which the defendant would have been convicted absent the trial court’s instructional error. (Id. at pp. 602-605.)
In determining whether involuntary manslaughter is a lesser included offense of second degree murder, we reconsidered our earlier opinion in People v. Rhodes (1989) 215 Cal.App.3d 470. In Rhodes, we concluded there could be an unjustified killing that did not fit within any of the statutory definitions of criminal homicide where one kills unintentionally and without malice as the result of an inherently dangerous felony. Applying Rhodes’s reasoning to the facts of Cameron, if the jury found an absence of malice and an absence of an intent to kill it would have to acquit the defendant, even though she committed an unlawful killing of a human being. Faced with such an absurd result, we found Rhodes’s view of involuntary manslaughter incorrect. Rhodes erred by “implicitly read[ing] the description of involuntary manslaughter as an exclusive measure of the unlawful killings which can be treated as involuntary manslaughter.” (Cameron, supra, 30 Cal.App.4th at p. 605.)
Instead, we noted: “When the manslaughter statute was first enacted in 1872 . . . it defined a single crime. ‘Manslaughter is the unlawful killing of a human being, without malice.’ [Citation.] The offense was categorized as either voluntary or involuntary. The crime of manslaughter complements the crime of murder. Thus, if a killing is unlawful it must constitute either a murder or manslaughter, the defining boundary being malice; if the homicide is unlawful and malice is lacking the offense is manslaughter. If the offense cannot be voluntary manslaughter, because the case law holds that voluntary manslaughter requires an intent to kill, it is manslaughter nonetheless and, a fortiori, must be involuntary manslaughter.” (Cameron, supra, 30 Cal.App.4th at p. 604, fns. omitted.)
Defendant argues that, under our reasoning in Cameron, because child abuse homicide is an aggravated form of manslaughter, and involuntary manslaughter is manslaughter without aggravating elements, involuntary manslaughter must be a lesser included offense to child abuse homicide. According to defendant, because one cannot commit child abuse homicide without also committing an “unlawful, unintentional killing, without malice,” involuntary manslaughter is a lesser included offense to child abuse homicide.
Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. (Murray, supra, 167 Cal.App.4th at p. 1139.) The issue here is whether the statutory elements of child abuse homicide necessarily include all the statutory elements of involuntary manslaughter. (Id. at p. 1140.)
Defendant’s reliance on Cameron and interpretation of the two crimes is flawed. Defendant could have committed involuntary manslaughter by an act that might produce death without due caution but without force that to a reasonable person would be likely to produce great bodily injury. In other words, defendant could have committed involuntary manslaughter by an act that would not constitute child abuse homicide. In addition, an act creating a possibility of the death of the victim due to careless or negligent conduct would not amount to the reckless conduct required under section 192, subdivision (b). Since a defendant can commit involuntary manslaughter without committing a child abuse homicide, involuntary manslaughter is not a necessarily included offense for purposes of double jeopardy.

Ineffective Assistance of Counsel

Defendant contends trial counsel’s failure to argue that retrial of the child abuse homicide was precluded by section 1023 amounts to ineffective assistance of counsel. In order to show counsel performed ineffectively, counsel must have performed beneath the level of objective reasonableness given prevailing professional standards, and this performance must have prejudiced defendant. (In re Clark (1993) 5 Cal.4th 750, 766.) However, involuntary manslaughter is not a necessarily included offense of child abuse homicide. Therefore, counsel did not perform ineffectively in failing to raise the issue.

Instructional Error

Requisite Criminal Intent

Defendant argues the trial court erred in instructing the jury on the required union of act and general criminal intent, CALCRIM No. 250, which is designed for general intent crimes. Child abuse homicide, defendant contends, has a specific mental element.
The court instructed the jury with CALCRIM No. 250: “The crime charged in this case requires proof of the union, or joint operation, of the act and wrongful intent. [¶] For you to find a person guilty of the crime of Penal Code section 273ab, assault causing death of a child, that person must not only commit the prohibited act or fail to do the required act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act[;] however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime.”
The court also instructed pursuant to CALCRIM No. 820, which states: “The defendant is charged with killing a child under the age of 8 by assaulting the child with force likely to produce great bodily injury in violation of Penal Code section 273ab. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant had care or custody of a child who was under the age of 8; [¶] 2. The defendant did an act that by its nature would directly and probably result in the application of force to the child; [¶] 3. The defendant did that act willfully; [¶] 4. The force used was likely to produce great bodily injury; [¶] 5. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in great bodily injury to the child; [¶] 6. When the defendant acted, he had the present ability to apply force likely to produce great bodily injury to the child; [¶] And [¶] 7. The defendant’s act caused the child’s death. [¶] The People are not required to prove that a reasonable person would believe the force used would likely result in the child’s death. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] An act causes death if: [¶] 1. The death was the natural and probable consequence of the act; [¶] 2. The act was a direct and substantial factor in causing the death; [¶] And [¶] 3. 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 of the circumstances established by the evidence. [¶] A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that caused the death.” (Italics in element No. 5 added.)
The People concede that “assaultive crimes also require actual knowledge of information that is sufficient to show that the nature of the perpetrator’s acts would probably and directly result in injury to another.” In addition, the People acknowledge that the bench note to CALCRIM No. 251 states the court has a sua sponte duty to instruct on the union of act and specific intent or mental state. The bench note to CALCRIM No. 250 states: “[T]his instruction must not be used if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense.”
However, the trial court instructed pursuant to CALCRIM No. 250, not CALCRIM No. 251, despite the child abuse homicide charge against defendant. In assessing whether this omission constitutes reversible error, we consider whether the court’s omission resulted in a reasonable probability of a different result had the trial court instructed pursuant to CALCRIM No. 251, the appropriate instruction. (People v. Alvarez (1996) 14 Cal.4th 155, 220.)
The trial court instructed the jury that to find defendant guilty of child abuse homicide, the People must prove that “[w]hen the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in great bodily injury to the child.” (CALCRIM No. 820.) In effect, CALCRIM No. 820 informed the jury defendant must have had specific knowledge when he acted in order to be guilty of child abuse homicide, the basis of the omitted instruction, CALCRIM No. 251.
Defendant argues CALCRIM No. 820 did not fill the void left by the court’s failure to instruct pursuant to CALCRIM No. 251, because the jury may have believed the act referred to in CALCRIM No. 820 was the act of caretaking, referred to earlier in the instruction. We are not persuaded by defendant’s attempt to posit confusion on the part of the jury as to which “act” CALCRIM No. 820 refers. The reference to caretaking in CALCRIM No. 820 makes no mention of an act. However, CALCRIM No. 820 explicitly refers to an act that would “directly and probably result in the application of force to the child.” We see no possibility the jury would interpret CALCRIM No. 820 in the manner defendant proposes.
Nor does CALCRIM No. 250 undercut or conflict with CALCRIM No. 251’s instruction on the union of act and intent, as defendant suggests. CALCRIM No. 250 informed the jury there must be a union between the act and the wrongful intent. CALCRIM No. 250 makes no mention of a knowledge requirement, nor does the instruction negate the requirements set forth in CALCRIM No. 251.
Defendant also argues the prosecution’s argument diluted the effect of CALCRIM No. 820 and eliminated the knowledge of fact element. The prosecution stated it did not matter whether or not defendant intended to harm CJ because the offense was a general intent crime, which required only that defendant act willfully. According to defendant, these remarks exploited the court’s error by stating the offense was a general intent crime requiring no specific mental state.
However, defense counsel’s argument underscored the knowledge requirement under CALCRIM No. 820: “5. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in great bodily injury to the child.” The prosecution amplified these comments, noting: “And as far as whether the act was what a reasonable person would believe to cause great bodily injury, again, I’ll focus on Dr. Crawford, because he’s their witness, although all three experts said it.” Counsel’s arguments, when taken together, did not undermine the knowledge requirement of CALCRIM No. 820.
Defendant also contends no evidence supported the conclusion that he was aware of facts that would lead a reasonable person to realize that his act by its nature would result in great bodily injury to CJ. To the contrary, all the experts agreed CJ’s injuries were the result of a tremendous force to his head. Defendant’s constantly shifting versions of the events leading to CJ’s injury provide circumstantial evidence of his knowledge at the time of the act, evidencing guilt over defendant’s act, which resulted in the infant’s death.
While the trial court erred in failing to instruct the jury pursuant to CALCRIM No. 251, our review of the instructions as a whole and the evidence at trial reveals no reasonable probability of a different result had the court so instructed.

Failure to Instruct on Lesser Included Offenses

Defendant contends the trial court erred in refusing to give instructions on assault by force likely to cause great bodily injury, voluntary and involuntary manslaughter, and child abuse as lesser included offenses to child abuse homicide. Defendant argues there was sufficient evidence to support an instruction on each of these offenses, and their omission forced the jury to make an “all-or-nothing” determination of defendant’s culpability in CJ’s death.

Background

At trial, defendant requested instructions on assault by means of force likely to produce great bodily injury as a lesser included offense to child abuse homicide. The prosecution opposed the request, arguing the facts did not support the instruction. The trial court denied the request.

Discussion

A defendant is entitled upon request to instructions on necessarily included offenses that the evidence tends to prove. (People v. Noah (1971) 5 Cal.3d 469, 478.) In the absence of such a request, the court has a sua sponte duty to instruct the jury on lesser included offenses supported by the evidence. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
“An instruction on a lesser included offense must be given only when the evidence warrants such an instruction. [Citation.] To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, ‘evidence from which a rational trier of fact could find beyond a reasonable doubt’ that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 174.)

Assault Likely to Produce Great Bodily Injury

The parties agree the offense of child abuse homicide cannot be committed without necessarily committing assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) However, the parties disagree over whether substantial evidence supported instructing on assault.
Child abuse homicide requires knowledge of facts “that would lead a reasonable person to realize that his act by its nature would directly and probably result in great bodily injury to the child.” (CALCRIM No. 820.) In contrast, assault likely to produce great bodily injury requires that when defendant acted he “was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.” (CALCRIM No. 875, alternative 1B.)
Defendant argues the proof of the knowledge element of child abuse homicide was weak in the present case. According to defendant: “If the People cannot establish the nature of the assaultive act, how can the People prove the mental element of the offense, which requires proof that the defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in great bodily injury to the child‌ [Citation.] How can the jury find that the defendant was aware of facts concerning the nature of the act when the nature of the act remains unknown‌ ‘[W]hatever Clifton Jones did,’ did he have the requisite knowledge of facts to sustain a conviction for child abuse homicide‌” Therefore, the court erred in failing to instruct on assault as a lesser included offense.
We view the evidence presented at trial differently. Defendant testified CJ’s injuries resulted from defendant’s trip and fall, not from an act of force that a reasonable person would not believe was likely to cause great bodily injury. Nothing in defendant’s version of events supported an instruction on assault.
Moreover, the expert testimony, both for the prosecution and the defense, underscored the grim severity of the blow to CJ’s skull. Dr. Super testified CJ’s injuries were similar to those suffered in auto accidents, in falls from second-floor balconies, and in abuse cases where a baby was battered. Dr. Rosas also found CJ’s injuries comparable to those of children in auto accidents or in falls from second-story balconies. Defendant’s expert echoed these observations and testified he had never observed a fatal injury resulting from a parent’s fall.
Defendant focuses on the lack of evidence of the type of act that caused the injury, arguing that since we do not know exactly what happened, the jury could not determine the knowledge defendant possessed when the act took place. However, regardless of the nature of the act, the amount of force the experts testified caused the trauma to CJ’s head, coupled with defendant’s explanation of the incident, did not support the giving of an assault instruction that required defendant to be aware of facts that would lead a reasonable person to believe the act would directly result in “the application of force to someone.”

Voluntary and Involuntary Manslaughter

Defendant also contends the court erred in not instructing sua sponte on voluntary and involuntary manslaughter. As previously discussed, involuntary manslaughter is not a lesser included offense to child abuse homicide.
Voluntary manslaughter is the unlawful killing of a human being without malice upon a sudden quarrel or heat of passion. (§ 192, subd. (a).)
Here, however, no evidence at trial supported a theory of voluntary manslaughter. Defendant claimed he tripped and fell into a wall, injuring his son. Defendant did not claim CJ’s injuries resulted from self-defense or heat of passion. None of the testimony by the experts supported such a scenario. The court did not err in not giving a sua sponte instruction on voluntary manslaughter.

Child Abuse

Defendant also argues the trial court should have given a lesser included offense instruction on child abuse. (§ 273a, subd. (a).) Section 273a, subdivision (a) states: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.”
Given the level of force the experts testified caused the trauma to CJ’s head, there was no evidence to support a conclusion that defendant was guilty of a lesser crime of child abuse. No evidence established defendant willfully caused or permitted CJ to be injured. Instead, the evidence revealed defendant exerted a level of force that would cause a reasonable person to believe his actions would cause great bodily injury.
We are not persuaded by defendant’s argument that since the experts could not determine the minimum quantum of force necessary to inflict or produce the injury in question, there was no solid evidence establishing the degree of force used against CJ. Defendant attempts to minimize the expert testimony, terming it “anecdotal evidence.” However, although the experts could not precisely quantify the force CJ suffered, each expert compared the force to that experienced in car accidents, multistory falls, and severe battering. All of these comparisons provided evidence that whatever transpired, defendant was aware of facts that would lead a reasonable person to realize his actions would directly and probably result in great bodily injury to CJ.

Judicial and Prosecutorial Misconduct

Defendant contends the trial court and the prosecution committed misconduct by referring to and relying on an unpublished appellate court decision during instructional discussions on lesser included offenses. According to defendant, these actions denied defendant procedural due process and a fair trial.

Background

During discussions regarding defendant’s request for lesser included offense instructions, the court stated it had reviewed an unpublished appellate opinion, People v. Leon (Oct. 14, 2004, D041152), which the prosecution submitted to the court. The court asked defense counsel to review and comment on the unpublished opinion. Defense counsel responded that an unpublished opinion could not be cited and could not be used as precedent, even if the reasoning could be considered. Instead, defense counsel urged the court to consider a published opinion, People v. Basuta (2001) 94 Cal.App.4th 370.[3]
The prosecution replied: “. . . I understand that’s an unpublished case, but the facts I think are helpful because Leon does refer to the Basuta case. There are not any published cases dealing with Basuta and subsequent jury instructions, so that’s why I pulled the Leon case.” The prosecution continued: “. . . Leon held that the instruction cannot be given just on speculation. There has to be some evidence to support it.”
The trial court denied defendant’s request for a lesser included offense instruction: “Based upon the testimony presented, based upon the case citations, Yeats, Basuta, Leon to a lesser extent, obviously, because it’s not published, based upon the language in CALCRIM [Nos.] 820 and 875, the Court is going to deny the defense’s request to give [CALJIC No.] 9.02 and [CALCRIM No.] 875, the lesser included [section] 245 option to the jury.”

Discussion

California Rules of Court, rule 8.1115(a) provides: “Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”
Defendant contends the prosecution committed misconduct by providing the trial court with an unpublished opinion supportive of the People’s argument on lesser included offenses. Defendant describes the prosecution’s conduct as “an attempt to improperly influence the trial judge on a critical issue.”
A prosecutor’s behavior violates the federal Constitution when it amounts to a pattern of conduct that is so egregious that it fills the entire trial with such unfairness that any conviction violates due process. Less severe conduct that does not render a trial fundamentally unfair is prosecutorial misconduct under state law only when it encompasses the use of reprehensible or deceptive methods to try and persuade the court or jury. (People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Espinoza (1992) 3 Cal.4th 806, 820.)
We cannot find the prosecution’s act of providing the court and defense counsel with a citation to an unpublished case, while in violation of the California Rules of Court, amounted to either reprehensible or deceptive conduct sufficient to constitute prosecutorial misconduct. Nor did the prosecution’s citation to an unpublished case fill the trial with such unfairness that defendant’s conviction violates due process.
Defendant also argues the trial court’s consideration of the unpublished case denied defendant due process. The parties agree we consider the question of due process under the test enunciated in People v. Hernandez (1984) 160 Cal.App.3d 725 (Hernandez), in which the court considered whether a trial judge consulted the judge named in a published opinion to gain a better understanding of the published case. In determining whether this action violated the defendant’s due process rights, the court considered (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value of substitute procedural safeguards; (3) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible public official; and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. (Id. at pp. 743-744.)
Applying this test to the prosecution’s supplying of an unpublished case to the trial court during jury instructions does not support defendant’s claim of a violation of due process. Criminal defendants have a due process liberty interest in fair and unbiased decision making. However, the trial court acknowledged the opinion was unpublished and relied upon it “to a lesser extent” than the published authority the trial court cited in support of denying defendant’s request. Under these circumstances, the risk of an erroneous deprivation of defendant’s interest in a fair trial is extremely low. Even considering the other factors outlined in Hernandez, we cannot find the trial court’s abbreviated consideration of an unpublished opinion violated due process.

Ineffective Assistance: Attorney-Client and
Work Product Privileges

Defendant argues trial counsel performed ineffectively in failing to interpose attorney-client and work product privilege objections to questions by the prosecution during the first trial. Specifically, defendant asserts counsel failed to object to testimony by forensic pathologist Dr. Curtis Rollins regarding a meeting with defendant and defense counsel.

Background

During the first trial, Dr. Rollins testified as an expert for the defense. Dr. Rollins reviewed medical and autopsy records to familiarize himself with the scope and nature of CJ’s injuries. Defense counsel asked Dr. Rollins to consider a hypothetical patterned after defendant’s testimony about the incident. Dr. Rollins testified the trip and fall described in the hypothetical could account for CJ’s injuries.
On cross-examination, the prosecution asked Dr. Rollins whether he met with defendant, and the physician stated he met with defendant at the jail. In order to ascertain what happened, Dr. Rollins needed to know defendant’s version of events. Dr. Rollins asked defendant what happened and defendant said he did not know.
Dr. Rollins testified a trip and fall could be consistent with CJ’s injuries, but other scenarios could also result in such injuries. He agreed with the coroner that the manner of death was homicide and not accident. However, if he had had information about a trip and fall, he probably would have concluded the cause of death was undetermined. Dr. Rollins was concerned that he had not received defendant’s trip-and-fall explanation earlier.
Defendant testified both prior to and after Dr. Rollins’s testimony. Prior to the physician’s testimony, defendant testified he tripped and fell with the baby and crashed into a wall. Defendant admitted he failed to tell paramedics, Dorrough, or Ervin about the fall. Nor did defendant tell hospital personnel about the fall. Defendant did not tell officers about the fall during his first or second interviews.
After Dr. Rollins’s testimony, defendant testified he met with the physician but did not explain how CJ was injured. Defendant admitted he had many opportunities to reveal that he had tripped and fallen while holding the baby. Defendant told his attorney about the fall about five days after the meeting with Dr. Rollins.
During closing argument, the prosecution reiterated defendant’s delay in telling various people about the trip and fall, including his failure to tell Dr. Rollins. The prosecution also noted defense counsel failed to explain why defendant did not tell his own expert about falling.
Defendant also testified at his second trial, and again stated he tripped and fell while holding CJ. Again, defendant failed to mention the trip and fall to paramedics, Dorrough, Ervin, or any hospital personnel following the incident. Defendant did not tell police about the fall during his first or second interview.
Defendant testified he met with Dr. Rollins and told him he did not know how CJ was hurt. Defendant did not tell Dr. Rollins what happened because he was not thinking clearly and was not sure he could trust the expert or his attorney. Five days later, defendant thought he could trust his attorney enough to tell him about the trip and fall.
Dr. Crawford testified as an expert witness for the defense. Dr. Crawford testified it was possible CJ’s injuries resulted from a trip and fall. During cross-examination, Dr. Crawford testified he had reviewed Dr. Rollins’s report and prior testimony. Dr. Crawford also knew that although defendant met with Dr. Rollins, defendant did not tell the expert about the fall. Dr. Crawford testified defendant’s failure to initially explain that he had tripped and fallen with CJ made the physician suspicious that the infant’s injuries resulted from child abuse.
In closing argument in the second trial, the prosecution again underscored defendant’s initial failure to report the trip and fall following the incident. The prosecution also noted defendant failed to tell Dr. Rollins about the fall when they met in jail. In addition, the prosecution argued defense counsel failed to explain why defendant did not tell the expert about the trip and fall.

Discussion

Defendant challenges the effectiveness of counsel on two counts. According to defendant, counsel failed to object based on attorney-client privilege during the first trial when the prosecution asked Dr. Rollins about the meeting at the jail as well as the prosecution’s questions regarding the communications with defense counsel about what defendant said about the case. In addition, defendant argues defense counsel performed ineffectively in failing to object during the second trial when the prosecution asked defendant about his attorney-client conversations, and during closing argument when the prosecution argued defense counsel failed to explain why defendant did not tell Dr. Rollins that he had tripped and fallen with CJ.
Defendant also argues defense counsel performed ineffectively in failing to object on the basis of work product privilege when the prosecution questioned Dr. Rollins about his report and testimony during both trials.
Again, to show ineffective assistance of counsel, a defendant must show defense counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that absent counsel’s deficient performance, the outcome of the case would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-216.) As a general rule, the failure to object is a matter of trial tactics, which we seldom second-guess. (People v. Carter (2003) 30 Cal.4th 1166, 1209.)
We find defendant cannot sustain this burden for two related reasons. First, it is entirely conceivable that defense counsel did not object to Dr. Rollins’s testimony because the juries in both the first and second trial had heard testimony from defendant and other witnesses that defendant failed to tell anyone he had tripped and fallen with CJ until well after the fact. Objecting to Dr. Rollins’s testimony might have served to underscore defendant’s failure to provide any tenable explanation immediately following CJ’s death and for some time afterward.
Even discounting this plausible reason for not objecting to Dr. Rollins’s testimony, we cannot find defense counsel’s failure to object prejudiced defendant. Defendant must establish a reasonable probability he would have obtained a more favorable result absent defense counsel’s deficient representation. (In re Clark (1993) 5 Cal.4th 750, 766.) However, as noted, the issue of defendant’s failure to tell anyone about the trip and fall immediately after the incident was already squarely before the jury.
Defendant contends that but for Dr. Rollins’s testimony, the jury would not have known he failed to tell both his counsel and the defense expert about the fall. Defendant terms this additional evidence “highly damaging to his defense.” In the context of the evidence at trial, defendant’s failure to tell counsel or the expert about the accident was no more damaging than his failure to tell the paramedics, CJ’s mother, police officers, or emergency personnel immediately following the incident. We find no prejudice.

Prosecutorial Misconduct

Defendant argues the prosecution committed misconduct by pointing out during closing argument that defendant failed to come forward and inform law enforcement officers about the trip-and-fall scenario prior to trial.

Background

When defendant was questioned by police the second time, he received a Miranda warning prior to the interview.[4] Defendant waived his Miranda rights and gave a version of events t