P. v. Molina

Filed 10/17/07 P. v. Molina CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Barry Taylor and Richard H. Kirshner, Judges. Affirmed with directions.

Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

In case No. LA043208, Victor Manuel Molina (defendant) was charged with murder (Pen. Code, 187; count 1);^[1] assault on a child under eight years of age resulting in death ( 273ab; count 2); child abuse ( 273a, subd. (a); count 3); and child beating ( 273d; count 4). The information alleged the intentional infliction of great bodily injury ( 12022.7, subd. (a)) in count 1 and the intentional infliction of great bodily injury on a child under the age of five years ( 12022.7, subd. (d)) in counts 3 and 4, and that defendant had a prior serious felony conviction requiring a five-year enhancement and triggering the sentencing scheme in the Three Strikes law ( 667, 1170.12).[2] There were two trials. During the initial trial, the jury returned verdicts of guilty of child abuse (count 3) and of child beating (count 4), with a finding that the intentional infliction of great bodily injury on a child under the age of five years was true. The jury acquitted defendant of first degree murder, but was deadlocked as to second degree murder (count 1) and assault (count 2). The trial court declared a mistrial, and defendant was retried on second degree murder and assault on a child under eight years of age resulting in death. In the second trial, the jury returned guilty verdicts on second degree murder and assault on a child under eight years of age resulting in death. In bifurcated proceedings, defendant admitted the prior serious felony conviction, a 1999 conviction of voluntary manslaughter in case No. BA176184.

In case No. LA043208, the trial court sentenced defendant to consecutive terms for child abuse (count 3) and for the assault (count 2), imposing a total term in state prison of 68 years to life, staying the sentence in counts 1 and 4 pursuant to section 654.

At the end of the initial trial in case No. LA043208, the trial court revoked probation in case No. BA176184 in which defendant was on probation for the 1999 voluntary manslaughter of his brother-in-law. After sentencing in LA043208, the trial court imposed a concurrent determinate term of 21 years in the probation violation case.

Defendant appeals from the judgments.

CONTENTIONS

In case No. LA043208, defendant raises four contentions with respect to the initial trial: (1) the evidence was insufficient to support his convictions of child abuse (count 3) and child beating (count 4), and alternatively, the trial court failed sua sponte to charge the jury with instructions on accomplice testimony; (2) the use of other crimes testimony was error; (3) the trial court prejudicially erred by failing to give complete jury instructions on the elements of child abuse; and (4) cumulative error requires a reversal. Defendant raises seven contentions with respect to the retrial: (5) the use of other crimes and propensity testimony was error, and charging the jury with CALJIC No. 2.50.02 constituted constitutional error; (6) the trial court abused its discretion by admitting excessively emotional photographs of the child victim; (7) the trial court failed to instruct the jury on how to consider accomplice testimony; (8) the trial court erroneously denied the defense request to instruct the jury with CALJIC No. 8.72; (9) the trial court failed to define the term assault in count 2; (10) cumulative error requires a reversal; and (11) the abstract of judgment must be corrected.

In case No. BA176184, defendant contends that the evidence supporting the order revoking probation is insufficient based upon his first contention above; accordingly, the order revoking probation and imposing judgment must be vacated.

Defendants contentions are unpersuasive, except insofar as we find error in the abstract of judgment. Accordingly, we affirm the judgments with further direction that the superior court must correct the abstract of judgment.

FACTS

1. The Evidence Adduced During the Initial Trial

On May 2, 2003, Angel Molina (Angel), a healthy baby boy, was born to Tawyna Dooley (Dooley) and defendant, who lived together in a San Fernando Valley apartment. Several days after birth, the couple brought the baby home from the hospital. Three weeks later, on May 26, 2003, Angel was rushed to the hospital in the early morning hours by paramedics because he had stopped breathing. Angel was resuscitated and put on life support. He had suffered brain damage from a lack of oxygen and could not breathe on his own. Angel remained on life support until June 25, 2003, when he died.

A. The Medical Testimony

Dr. Peter Liu was a pediatric and critical care specialist at the Valley Presbyterian Hospital who examined Angel after he was brought to the hospital. In Dr. Lius opinion, Angel had been deprived of oxygen for some 10 to 20 minutes before resuscitation. Angel showed no signs of the infliction of physical trauma. The lack of oxygen had caused brain damage that eventually led to Angels deterioration and death. After the initial examination, Dr. Liu spoke to the parents. Dr. Liu was already mildly suspicious of child abuse based on the story given to the emergency room physician. Dr. Liu testified that the parents presentation to him was odd. Also, defendants explanation for what had happened was inconsistent with Angels condition.

Dr. Liu ordered x-rays. The doctor discovered that Angel had five-day-to-two-week-old fractures to his femurs. Since femurs are large flexible bones that can be broken only by the application of a substantial amount of force, the fractures were inconsistent with accidental injury. Angel also had two acute fractures to the back of his ribs, which also had to have been deliberately inflicted with a substantial amount of force. Dr. Liu gave his opinion that the rib injuries were inflicted by a hard squeeze or a blow or by throwing the baby; such injuries would not have resulted from merely dropping the child. Dr. Liu explained that the infliction of force necessary to break Angels ribs had to have been severe, similar to the force that would be applied to a baby during an automobile accident.

It was also Dr. Lius opinion that the injuries had occurred during child abuse. He opined that the oxygen deprivation leading to brain death had resulted from some physical event that suffocated Angel -- some smothering or blocking of airways. He said that the suffocating would not have occurred as a result of the rib injuries, but was the result of a separate act. The injuries could not be explained by Sudden Infant Death Syndrome (SIDS) or by the CPR used to resuscitate Angel, even if it had been rough and improperly administered CPR. Medical personnel had found nothing inside Angels airways that would have caused suffocation.

Dr. Yulai Wang, a Los Angeles County deputy medical examiner, conducted the autopsy. After a consulting with a number of experts, Dr. Wang concluded that the cause of death was homicide. More specifically, he opined that Angels death was due to hypoxic ischemic encephalopathy, or brain death, caused by chest trauma and probable asphyxia. He gave his opinion that someone had either compressed the babys chest, breaking the ribs, thereby smothering the baby, or someone had used other means to smother the child. Dr. Wang was of the opinion that significant force had to have been used to break the ribs and that the smothering did not occur simply because someone hugged Angel too hard. He explained that the fractures in the femurs and in the back of the ribs were characteristic of child abuse. There were no marks or physical signs on the body indicating that the baby was smothered. However, intentionally closing off a babys mouth and nose may not leave signs of physical abuse.

B. Dooleys Testimony

Dooley, Angels mother, testified that at age 16, she had one child, who at three months old died of spinal meningitis. Thereafter, she became a heroin and cocaine addict and a prostitute. She had a second child during the period of her addiction and gave up custody of that child to family members. She said that despite her addiction, she did not use drugs when she was pregnant. In November 2001, she had heart valve replacement surgery due to damage caused by heroin. Thereafter, she recovered from her addiction because further drug use would result in her death. In July 2002, she met defendant. Almost immediately, she became pregnant.

After the birth, she and defendant brought Angel home and took turns caring for him. Occasionally, her mother or defendants mother and sister briefly babysat. On Thursday, May 15, 2003, Dooley started a telemarketing job on weekdays from 6:30 a.m. to 2:00 p.m. The job lasted until Friday, May 23, 3003, when she was fired. When Dooley was away at work, defendant was alone with Angel.

Dooley said that on her first day of work, she returned home to find defendant standing outside waiting for her. Angel was in his arms, and defendant immediately told her that she was going to be mad at him. He displayed Angels forehead. Angel had a black eye and a bruised forehead. Defendant claimed that he had been in the kitchen holding Angel. He had turned quickly and accidentally hit Angels head on the counter. Dooley accepted the explanation at face value. Defendant also told her that he had cancelled Angels periodic check-up with the doctor, which was scheduled that day. Dooley rescheduled the appointment for May 20, 2003. After this incident, Dooley observed a marked change in Angels behavior. After May 16, 2003, Angel cried more and cried uncontrollably whenever Dooley changed his diaper or touched his lower body. During the next visit to the doctor, Dooley did not mention the black eye and bruising as defendant was standing right there.

On Sunday, May 25, 2003, Dooley and defendant returned home with the baby after visiting defendants family, and defendant went to sleep early. At 12:30 a.m., Dooley fed Angel in the living room. At 2:30 a.m., she fed Angel a small bottle, changed his diaper, and burped him. She attempted to lull Angel to sleep, but at about 3:00 a.m., Angel was still awake. She took Angel into the bedroom and into the couples bed to lull him to sleep. When she got into bed, she inadvertently awakened defendant, who was unhappy about the baby being in the bed. Dooley explained that defendant did not want the baby to get used to sleeping in their bed. Defendant volunteered to care for Angel, and Dooley told him that she had already fed Angel. She fell asleep.

What seemed like moments later, defendant awakened Dooley and said, Get up. The baby isnt breathing. Defendant was now dressed, whereas he had not been earlier, and he was tying a boot lace. Dooley ran into the living room. She observed Angel lying on the living room floor in only a diaper; his pajamas had been removed. Angel had bad color and was cold and limp. She tried to dial 911, but she was too upset to dial. She threw the telephone at defendant, who telephoned 911. Dooley ran outside screaming to wait for paramedics. When the paramedics did not arrive immediately, she returned to the apartment and saw defendant on the telephone administering CPR to Angel with two fingers.

The paramedics arrived and took Angel to the hospital. Dooley repeatedly cried and said, Not this baby. She rode in the ambulance to the hospital, and defendant followed in his truck. At her arrival at the hospital, she knew Angel was in poor condition as she heard a loudspeaker announcement to that effect. She could not recall much about what happened at the hospital because she was upset. Dooley did recall that at the hospital, defendant told her that he did not want to deal with this because of his past. He said that he wanted to go to El Salvador, where she knew he had family. Later, after Angel was on life support, Dooley overheard defendant tell someone else that he wanted to leave.

Dooley and defendant were arrested. They went to childrens court. There, during a consultation with her counsel, she discovered that Angels legs were broken. After she and defendant were charged with murder, they were offered plea bargains. Pursuant to an agreement, she pled guilty to child endangerment with the promise of a two-year prison term, and the murder charge was dismissed. She explained that she pled guilty because she felt responsible for the abuse: she believed that she should have left defendant and taken the baby with her on May 16, 2003, when Angel had received the black eye.

During cross-examination, Dooley admitted that there were moments when she was frustrated and tired of taking care of Angel. She denied knowing that defendant had physically abused Angel and denied that she ever hit, threw, or suffocated Angel. She admitted that at one point, she had told defendant that she would accompany him to El Salvador, however, she never made any plans to go there.

C. Erika M.s Testimony

Erika M. (Erika) was defendants estranged wife and the mother of defendants other son, Dominic, born in November 1997. Erika and defendant were age 17 when they married. Erika testified that defendant was jealous of Dominic from the time of his birth. Defendant was unhappy because he believed that Erika paid more attention to the baby than to him, and he tried to talk Erika into abandoning their son. Defendant was always trying to physically separate her from the baby and would get upset and angry when Dominic cried. Defendant would yell such things at Dominic as Shut up and Be quiet, and he would yell at her to Shut the baby up.

Erika recalled an incident in January or February 1998 when Dominic was less than three months old. Erika and defendant had an argument in the front seat of their car. During the argument, Dominic started to cry. Defendant prevented Erika from consoling Dominic, and he got out of the drivers seat, opened the rear car door, removed Dominic from the car seat, and harshly put Dominic back into the car seat. Dominic was not injured, and Erika did not report the incident to the police. However, after the incident, Erika would not leave Dominic alone with defendant.

Defendant did not testify or present evidence on his own behalf, but chose to rely on the state of the evidence.

2. The Evidence Adduced During Retrial

During retrial, the prosecutions case-in-chief was essentially the same. However, the prosecutor introduced further evidence of guilt.

A. The Medical Testimony

Dr. Liu gave his opinion that a combination of chest trauma and smothering was the cause of the hypoxia. He elaborated that initially, he was suspicious of child abuse because of the reports he had obtained from the admitting emergency room personnel. His initial suspicion that something was wrong was partially confirmed by his contact with the parents. He said that defendant told him in a very organized way that defendant had given Angel some back blows when the baby was apparently choking on formula. Angel then became unresponsive and limp. The doctor explained that in his experience, when a baby chokes on a liquid, it never results in hypoxia. Also, he thought that Dooleys reaction when interviewed was unusual: she was quiet and did not say much. Normally, the mother is in charge of the baby and is the person who interacts with the doctor. The explanations for Angels conditions were suspicious in two ways: the parents demeanor was unusual, and defendants explanation was inconsistent with Angels physical condition. Defendant also informed the doctor that Angel had not been involved in an accident.

The doctor said that this was not a SIDS death. X-rays showed nothing in the airways that would have caused suffocation. Dr. Liu testified that the kind of force necessary to break the flexible bones in a babys body had to be substantial. For example, to break a babys ribs, the baby would have to fall from a window onto a concrete floor or someone had to have punched the baby. The doctor said that patting a baby hard on the back would not break ribs. To break a babys ribs, one had to squeeze the baby much harder than a reasonable person would ever squeeze a baby. To break a large flexible bone like a femur, the baby would have to have been involved in something like an automobile accident, or take a fall involving a large amount of force where there was an object in front of the babys legs. The accident would not be of the sort that would go unnoticed; the broken femurs could only have resulted from, for example, a fall in which the infant fell two stories onto a concrete floor.

In the present case, the signs of child abuse and the severe injury led Dr. Liu to conclude that the injuries inflicted were done so intentionally, not accidentally.

Dr. Wang gave his opinion that a lack of oxygen and the resulting brain damage led to Angels death. He said that the loss of oxygen resulted from intentionally inflicted trauma, which arose either from force applied to the babys chest, or smothering, or both. Dr. Wang explained that any smothering would have been noticed. If a baby is accidentally smothered, it struggles violently and cries out loudly. Unless a babys mouth and nose is covered, when a baby is squeezed hard, he will cry out in pain. A radiologist had informed Dr. Wang that Angels fractures were typical of those caused by child abuse.

B. Dooleys Testimony

Dooley testified as she had during the initial trial. However, she added the further information that defendant had started beating her from commencement of their relationship. When she returned home on May 16, 2003, and found Angel injured, she and defendant had a heated argument over taking Angel to the doctor. During the argument, defendant had pushed her to the floor while she was holding Angel. When she fell to the floor, she had shielded Angel from injury by holding him up and away from the floor. Later that day, defendant hit Dooley over the back with a baseball bat. Dooley was afraid of defendant. He had threatened to hurt her if she told anyone about the violence, and she no longer saw her friends because he did not like it. Dooley had believed that defendant would become less violent after Angels birth, however, the violence continued.

Dooley said that on May 26, 2003, she was reduced to hysteria. She believed that having the baby would result in an improved life. However, observing Angels condition as he lay on the living room floor had demonstrated that despite her sobriety, things were not going well.

At the hospital, defendant provided Dooley with an explanation for Angels condition, which she accepted as the truth. He told her that he was rocking Angel on his knees to put him to sleep and that Angel had started throwing up like a waterfall. Defendant leaned Angel forward to keep him from choking on the vomit. Defendant then started to change the babys pajamas because they were covered with vomit, and defendant noticed that the baby was limp. Defendant heard gurgling sounds and administered CPR. When Angel did not respond, he woke Dooley.

After Angel was placed on life support, Dooley returned to their apartment. All she saw on the living room floor was a little spilled formula and a bottle.

Later, while leaving the hospital, defendant had told her that he wanted to go to El Salvador rather than deal with the situation, and he asked Dooley to go with him. She was shocked. She asked him whether he was serious, and he replied that he was.

Three days later, Dooley and defendant were at a friends residence. Defendant had been drinking an alcoholic beverage. Again, he told her that he wanted to leave the country. She told him that they had a baby on life support, and their present situation had nothing to do with anything that had occurred to him in the past.

On May 31, 2003, Dooley and defendant were arrested. After the arrest, Dooley negotiated a two-year prison term and pled guilty to child endangerment. Testifying truthfully was a condition of the plea agreement. She pled guilty because she did not take Angel to the doctor on May 16, 2003, and because she had continued living with defendant knowing how violent he was. She had concluded that she reasonably should have known that defendant might harm the baby.

Dooley testified that before May 26, 2003, she did not think that defendant would ever hurt Angel. She was baffled by their arrests. After her release from prison and in preparation for her trial testimony, the detectives informed her of further information that she had not known about Angels death even during her plea. Currently, Dooley was of the opinion that defendant had caused Angels death.

During cross-examination, Dooley admitted that defendant was not violent with Angel in her presence.

C. Defendants Admissions

Maria Molina, one of defendants sisters, and Gladys Molina, defendants mother, testified that on the few brief occasions when they had cared for Angel, they did not hurt him. Maria Molina admitted that after May 16, 2003, Angel cried uncontrollably when his diaper was changed, and the quality of his crying was far more intense than it had been previously.

Defendant made several inconsistent statements to his family about the death and its cause. Maria Molina told Los Angeles Police Detective Kelly Martinelli that defendant had told her that on May 26, 2003, he had fallen asleep next to Angel on the living room floor. When he awoke, the babys color was blue. When Maria Molina asked defendant how the babys legs had been broken, defendant blamed the injuries on the medical personnel who assisted in Angels birth. Gladys Molina told Detective Martinelli that defendant had said that it was Dooley who found the baby on the floor limp, purple, and not breathing.

Maria Penate, another of defendants sisters, said that on May 29, 2003, Dooley had blurted out to her that defendant had an accident in which defendant dropped Angel. After Dooleys comment, defendant had looked at Dooley, and Dooley became quiet. After defendants arrest, defendant told Maria Penate that a week prior to May 26, 2003, he had dropped the baby. She questioned him about it, and he would say nothing more. Jennifer Penate, defendants niece, said that at the hospital, defendant had told her that Angel had started vomiting when he tried to feed Angel and that Angels heart had stopped.

After Angels hospitalization, defendant told Detective Martinelli that at 3:30 a.m., he was caring for Angel while Dooley was sleeping. He tried to feed the baby chamomile tea in a bottle. Angel started spitting up formula uncontrollably and then Angels heart stopped. Defendant administered CPR, telephoned 911, and wakened Dooley. After the explanation, Detective Martinelli took defendant to the apartment and had him reenact what had occurred. On the living room floor, the detective found no vomit; all she found was some formula sprinkled on the rug near the chair. There was a small amount of spit-up on Angels pajamas, which were lying on the rug.

Defendant told Detective Martinelli that Angel had not been involved in the sort of an accident that could have caused his injuries.

Detective Martinelli arrested Dooley and defendant when she received a tip that defendant and Dooley were leaving the country.

D. Erikas Testimony

During retrial, Erikas testimony was similar. However, she minimized her earlier claims about defendants conduct, testified that Dominic was born in November 1996, and said that the car seat incident had occurred when Dominic was one year old. She said that defendant had only put Dominic in the car seat aggressively, forcefully, or harshly.

Erikas testimony was impeached with her out-of-court statements to Detective Martinelli and with her prior testimony. The prosecutor had her admit that since defendants arrest, she had been visiting him at the jail with Dominic. Erika eventually agreed that previously, she had said that defendant would get angry when Dominic cried and would repeatedly scream at Dominic, Shut up. Shut the f--- up. Shut up. Also, she claimed that when Dominic was less than three months old, defendant had violently picked up Dominic and then threw him back into the car seat. Erika said that during the argument, defendant was very angry because the baby was crying and that he had yelled, Shut up and Shut the f--- up. She said that she did not report the incident because she was afraid of defendant, and she had believed that defendant might hurt her or Dominic if she reported any abuse. Erika admitted that after the car seat incident, she had stopped living with defendant because of the danger he posed to Dominic.

Again, defendant did not testify or present evidence, but chose to rely on the state of the evidence.

DISCUSSION

I. The Sufficiency of the Evidence and Jury Instruction: The Initial Trial

Defendant contends that the evidence is insufficient to support his convictions of child abuse (count 3) and child beating (count 4). In the alternative, he contends that the trial court was required sua sponte to give accomplice instructions, and the failure to do so was prejudicial error.

The contentions lack merit.

A. The Standard of Review

In reviewing a claim of the insufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Cole (2004) 33 Cal.4th 1158, 1212 . . . .) The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053 . . . .) (People v. Ramirez (2006) 39 Cal.4th 398, 463.) The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1175.)

B. The Elements of Child Abuse and Child Beating

The offense of child abuse in violation of section 273a, subdivision (a), can occur in a variety of situations.[3] The offense includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect. (People v. Sargent (1999) 19 Cal.4th 1206, 1215-1216 (Sargent).) The People in this case proceeded only on a theory that defendant had intentionally assaulted and smothered Angel. Accordingly, the elements of the active assault form of child abuse were that (1) the accused willfully inflicted unjustifiable physical pain or mental suffering on a child (2) under circumstances or conditions likely to produce great bodily harm or death. The offense is intended to protect a child from an abusive situation in which the probability of serious injury is great. [Citation.] (Id. at p. 1216; People v. Valdez (2002) 27 Cal.4th 778, 790 (Valdez).) There is no requirement that the actual result be bodily injury. (Sargent, supra, 19 Cal.4th at p. 1216.) Direct assault child abuse is a general intent crime. (Id. at pp. 1219-1220, 1224; see also, the discussion of intent in People v. Colantuono (1994) 7 Cal.4th 206, 218-219 & fn. 10.)

Where a defendant is charged with indirect child abuse, such as the failure to seek medical treatment, child endangerment, or willfully permitting situations that imperil a child, the requisite mens rea is criminal negligence. (Valdez, supra, 27 Cal.4th at pp. 788-791.)

The offense of child beating, a violation of section 273d, requires that (1) the defendant inflict a cruel or inhuman corporal punishment or injury upon a child and (2) the actual result is an injury resulting in a traumatic condition. Corporal punishment means administered to the body. (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1160.) For the purposes of the statute, traumatic condition has been defined as a wound or other abnormal bodily condition resulting from the application of some external force. [Citation.] (People v. Thomas (1976) 65 Cal.App.3d 854, 857.)[4]

C. Accomplice Testimony

Section 1111 provides in pertinent part, as follows: A conviction can not be had upon the testimony of an accomplice unless it be corroborated . . . . [] An accomplice is . . . defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause . . . .

Corroboration may be supplied by circumstantial evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1129.) The evidence required for corroboration of an accomplice need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. [Citations.] Moreover, evidence of corroboration is sufficient if it connects defendant with the crime, although such evidence is slight and entitled, when standing by itself, to but little consideration. [Citations.] [Citations.]. (People v. Williams (1997) 16 Cal.4th 635, 680-681; accord, People v. McDermott (2002) 28 Cal.4th 946, 985-986.)

A trial court must give appropriate instructions on accomplice testimony only where there is substantial evidence that a witness is an accomplice. (E.g., People v. Lewis (2001) 26 Cal.4th 334, 369.) An accomplice is . . . one who is liable to prosecution for the identical offense charged against the defendant ( 1111) and does not include an accessory ( 31, 32; People v. Tewksbury (1976) 15 Cal.3d 953, 960 . . .). An accomplice must have guilty knowledge and intent with regard to the commission of the crime. [Citation.] (Lewis, supra, at p. 369 . . . .) (People v. Boyer (2006) 38 Cal.4th 412, 467.) Not giving such instructions, however, is harmless . . . when there is ample evidence corroborating the witnesss testimony. [Citation.] (People v. Cook (2006) 39 Cal.4th 566, 518.)

D. The Analysis

1. The Sufficiency of the Evidence

In counts 3 and 4, defendant was charged with the child abuse and the child beating that occurred on or about May 16, 2003, i.e., the black eye and bruised forehead, and the broken femurs. Defendant argues that Dooley was an accomplice as a matter of law because the undisputed facts show that there was probable cause to believe that she had committed child abuse. Also, Dooley was liable for the same offense as defendant as she had admitted child endangerment. Defendant asserts that during the trial, Dooley testified that by leaving defendant with the baby, she had committed passive child abuse pursuant to section 273a, subdivision (a), because she reasonably should have known that there was a substantial risk defendant would hurt Angel. Defendant supports this claim by citing the decision in People v. Felton (2004) 122 Cal.App.4th 260 (Felton). He also urges that Dooley was an accomplice as a matter of law with respect to child beating. He asserts that in view of the very close relationship between the two offenses and Dooleys testimony, it logically follows that Dooley was also an accomplice to this offense.

The contentions fail. The trial court was not required to give accomplice instructions because there was no evidence to support a jury finding that Dooley was an accomplice to either charge and in any event there was independent corroboration of guilt.

Subsequent to the Felton decision, the California Supreme Court addressed the issue raised here in People v. Ward (2005) 36 Cal.4th 186 (Ward). In Ward, the witness, Springer, accompanied the victim to purchase rock cocaine on a street corner from defendant. Springer knew defendant from earlier drug purchases. During the sales transaction, the victim complained about the size of the rock that defendant had sold him, and defendant purportedly pulled out a gun and fatally shot the victim in the chest. (Id. at p. 194.) On appeal, the Ward defendant contended that Springer was the shootings perpetrator, not him, and that Springer was an accomplice because Springer had accompanied the unarmed victim to the drug sale. (Id. at pp. 212-213.)

The Ward court rejected the claim that Springer had accomplice status as a matter of law. The court pointed out that a person acting independently of the accused as a perpetrator of the offense is not an accomplice. The court explained: Although section 1111 defines an accomplice as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given, the law further requires a relationship between the defendant and accomplice, either by virtue of a conspiracy or by acts aiding and abetting the crime. [Citation.] The record, however, contains no evidence of a conspiracy between Springer and defendant or that Springer somehow aided and abetted defendant in the commission of any crime. As such, the standard instruction on witness credibility (see CALJIC No. 2.20)--including [t]he existence or nonexistence of a bias, interest, or other motive--was sufficient to apprise the jury on its consideration of Springers testimony. (Ward, supra, 36 Cal.4th at p. 212.)

The Ward court disapproved the courts earlier decision in People v. Gordon (1973) 10 Cal.3d 460, 468-469, to the extent that decision indicated that a witness could be deemed a defendants accomplice in the charged offense even if the evidence of the witnesss possible involvement tends to show the witness committed the crime without the defendants participation. (Ward, supra, 36 Cal.4th at p. 212.) The court also rejected the second theory of accomplice liability--that murder is a natural and probable consequence of any drug deal--because the evidence suggested no association with defendant, and Springer accompanied the victim, not the defendant, to the sale. (Id. at p. 213.)

The principles in Ward apply here. [It] is uniformly held that the defense initially bears the burden of producing evidence to raise the accomplice issue (Evid. Code, 550) and that in the absence of any such proof the witness is treated as not being an accomplice. [Citations.] (People v. Tewksbury, supra, 15 Cal.3d at p. 963; People v. Belton (1979) 23 Cal.3d 516, 523 & fn. 9.) That the witness is or was being prosecuted for the same offense does not alone establish a witness is an accomplice. (People v.Tewksbury, supra, at p. 963.) The trial evidence suggests that Dooley and defendant jointly lived with the child, but it failed to suggest a criminal association in the commission of assaultive child abuse. Dooley admitted that she believed that she was guilty of the child endangerment prohibited by section 273a, subdivision (a), because after the black eye incident, she should have known that defendant was likely to hurt Angel. But no evidence was adduced during trial that defendant and Dooley were joint perpetrators of the conduct involving a direct assault on the child before May 24, 2003.

Defendant argues that the decision in Felton compels a different result. In Felton, on a previous occasion, the mothers boyfriend shook her baby, breaking the female infants ribs. The mother lost custody, but regained it with a promise not to expose defendant to her children. Despite her promise, the mother let defendant talk her into believing that he had not been responsible for the babys earlier injuries. The mother again permitted defendant to babysit her children, and defendant again inflicted serious injury on the baby. At trial, the mother testified against the defendant. (Felton, supra, 122 Cal.App.4th at pp. 264-266.) On appeal, the Felton court held that there was a factual issue as to whether the mother was an accomplice, i.e., a coperpetrator in the child abuse offense, because the offense was a continuing one. Also, the mothers conduct in permitting the defendant to watch the child while she was at work suggested that the mother had the requisite intent for aiding and abetting. (Id. at pp. 263, 270-271.)

We disagree that Felton applies here. Rather, we conclude that the decision in Ward controls in this case. At best, Dooley did not aid and abet the direct infliction of injury on Angel. She was a perpetrator for purposes of child endangerment, but she never aided and abetted defendant, i.e., acted with knowledge of defendants unlawful purpose and with the intent or purpose of committing, encouraging, or facilitating the commission of the crime. (See Felton, supra, 122 Cal.App.4th at p. 271.) Nor was there any evidence that she participated with defendant in assaulting Angel. She was entirely ignorant of defendants conduct. Dooley and defendant committed child abuse independently of one another, and thus never jointly participated in a criminal enterprise. Consequently, there was no evidence supporting a conclusion that Dooley was an accomplice as a matter of law in the abuse perpetrated by defendant.

Also, Dooley was not an accomplice with respect to child beating. Again, defendant produced no evidence establishing that Dooley was an accomplice with respect to this latter crime.

Second, we reject defendants sufficiency of the evidence claim as Dooleys testimony was adequately corroborated.[5]

Apart from Dooleys testimony, Dr. Liu testified that he had had a conversation with the parents after Angels hospital admission. From what the parents told the admitting doctor when Angel arrived at the emergency room, Dr. Liu entertained a bare suspicion of child abuse. Dr. Liu said that he examined Angel, observed Angels medical condition, and then spoke to Angels parents. After talking to the parents, he obtained the x-rays that confirmed to him there had been child abuse. Dr. Liu said that the parents presentation was odd. Also, defendant gave the doctor an explanation for Angels condition that was inconsistent with Angels condition of oxygen deprivation with no visible signs of injury.[6]

The inconsistency between defendants explanation and Angels condition is such that it permits the reasonable inference that defendant was not being frank with the doctor. Dr. Lius testimony supplied the jury with evidence that defendant was exhibiting a consciousness of guilt. While the corroborating evidence may be slight, it is sufficient to implicate defendant in the commission of the offense and it illustrated for the jury that that Dooley was telling the truth. (People v. Davis (2005) 36 Cal.4th 510, 543; see People v. Perry (1972) 7 Cal.3d 756, 772 [conduct or statements allowing a reasonable inference of consciousness of guilt may corroborate accomplice testimony.)

2. Jury Instructions

In the alternative, defendant contends that the trial courts failure sua sponte to charge the jury as to accomplice testimony was error that additionally denied him due process. As we noted previously, even where accomplice instructions are required, the error is harmless where the accomplices testimony is sufficiently corroborated. (People v. Boyer, supra, 38 Cal.4th at p. 467.) Such instructions were not required here as there is no substantial evidence that Dooley was an accomplice. (People v. Lewis, supra, 26 Cal.4th at p. 369.) Moreover, because Dooleys testimony was corroborated, there is no merit to the contention, including the claim of a denial of due process. (People v. Frye (1998) 18 Cal.4th 894, 966.) As there is no violation of California law governing accomplice corroboration, we need not decide whether any such violation would have infringed defendants federal due process rights on a theory that he was arbitrarily denied a state-created right. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346; People v. Davis, supra, 36 Cal.4th at p. 548.)

II. The Uncharged Acts Testimony: The Initial Trial

Defendant contends that the trial court abused its discretion by admitting Evidence Code section 1101, subdivision (b) evidence of prior uncharged acts.

The contention lacks merit.

A. Background

In this contention, defendant complains about the use of Erikas testimony during the initial trial. The trial court admitted Erikas testimony pursuant to Evidence Code section 1101, subdivision (b), to prove motive and intent. After listening to the parties arguments on the issue, it also ruled that the evidence was more probative than prejudicial.

B. The Standard of Review

We review the trial courts rulings for an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369; People v. Ewoldt (1994) 7 Cal.4th 380, 405 (Ewoldt).)

C. The Relevant Legal Principles

As a general rule, evidence that is otherwise admissible may be introduced to prove a persons character or character trait. (Evid. Code, 1100.) But, except for purposes of impeachment (see 1101, subd. (c)), such evidence is inadmissible when offered by the opposing party to prove the defendants conduct on a specified occasion ( 1101, subd. (a)), unless it involves commission of a crime, civil wrong or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act ( 1101, subd. (b)). (People v. Falsetta (1999) 21 Cal.4th 903, 911, italics omitted (Falsetta).)

In Ewoldt, supra, 7 Cal.4th 380, 394, footnote 2, the California Supreme Court interpreted Evidence Code section 1101 and explained the different theories justifying admissibility of prior acts evidence under that section: This distinction, between the use of evidence of uncharged acts to establish the existence of a common design or plan as opposed to the use of such evidence to prove intent or identity, is subtle but significant. Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it. [Citation.] . . . . Ewoldt used a shoplifting prosecution as an example: evidence that defendant committed similar acts could be admitted to show he (1) meant to steal rather than inadvertently failed to pay, conceding or assuming he took the goods without paying (intent/absence of mistake or accident); (2) actually took the goods without paying, conceding or assuming he was at the scene but not that he took the goods (common plan); and/or (3) committed the theft, conceding or assuming that someone did so but not that he was at the scene (identity). (Ibid.) The court then addressed the degree of similarity to the charged crime required to permit admission of other acts evidence introduced to show intent. The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. . . . In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] [Citation.] (Id. at p. 402.)

A greater degree of similarity is required to prove the existence of a common design or plan. To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.] (Ewoldt, supra, 7 Cal.4th at p. 403.)

The greatest degree of similarity is required to show relevance to prove identity. The uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts, and [t]he pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature. (Ewoldt, supra, 7 Cal.4th at p. 403.)

Ewoldt further explained that even if Evidence Code section 1101 does not require exclusion of the evidence of defendants uncharged misconduct because it is relevant to prove a material fact other than his criminal disposition, the court still must consider whether the evidence is more prejudicial than probative pursuant to Evidence Code section 352. (Ewoldt, supra, 7 Cal.4th at p. 404.)

Under Evidence Code section 352, evidence is more prejudicial than probative if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The weighing process under section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) The [trial] courts exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value. [Citation.] (Id. at pp. 1314-1315.)

D. The Analysis

Defendant argues that Erikas testimony was inadmissible because it was relevant only to criminal propensity, and even if tangentially relevant to the trial issues, it should have been excluded pursuant to Evidence Code section 352. He urges that Erikas testimony is irrelevant as there was a lack of similarity between the uncharged and charged conduct. The uncharged incident occurred during the parents argument in Erikas presence, and the child was not hurt. Whereas, during the charged conduct, defendant was alone with the child, injuries were inflicted, and ultimately, the child died. The prior incidents remoteness, slightly over five years, also rendered Erikas testimony only marginally relevant. With respect to the jealousy and abandonment testimony, that evidence failed to give rise to any proper inference of a motive to abuse, assault, or murder Angel, and there was no direct logical nexus.

Defendants contention lacks merit. Defendant was charged with murder, making his intent, i.e., deliberateness, premeditation, and malice, a contested trial issue. Also, the People had to prove intent for involuntary manslaughter: whether defendant acted with due caution and circumspection, or the injuries were merely accidental and inflicted because of bad judgment. Other elements of proof at issue: how Angels injuries were inflicted and related to his death; the cause of death; whether there was an infliction of unjustifiable physical pain or mental suffering under circumstances or conditions likely to produce great bodily harm or death; whether there was an infliction of a cruel or inhuman corporal punishment or injury; and whether force was inflicted and whether it was such that a reasonable person would have known it would be likely to produce great bodily injury. Erikas testimony related to all of these issues.

For Erikas testimony to be admissible on the issue of intent, all that was necessary was that the prior conduct be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] (Ewoldt, supra, 7 Cal.4th at p. 402.) Defendants rough handling of Dominic showed that it was likely he harbored the same jealousy or ill-will he harbored against Dominic against his newborn son Angel and that his actions were unlikely accidental. As was explained in People v. Steele (2002) 27 Cal.4th 1230, 1243-1244, in a murder case, a defendants guilty plea puts into issue the elements of that offense: intent to kill or implied malice, deliberation and premeditation are all material facts at trial. Here, there were additional facts of mistake and accident at issue. The People are entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent. [Citation.] (Id. at p. 1243.)

Erikas testimony was also admitted to prove that defendant harbored a motive to hurt Angel. As is explained in People v. Demetrulias (2006) 39 Cal.4th 1, 15, the probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus. [Citations.] Here, Erika testified to defendants jealousy of the baby and the time she spent with him, raising the inference that jealousy was a motive behind the harm inflicted on Angel.

With respect to the Evidence Code section 352 balancing, defendant asserts that remoteness decreased the relevance of Erikas testimony, and her testimony was not substantially probative of identity, malice, and whether the injuries led to the childs death. He argues that depicting defendant as a callous and uncaring father was unduly prejudicial and likely to evoke an emotional response from the jury. He also asserts there was an element of unreliability involved in the purported conduct with Dominic as it was not reported to the police or litigated. The use of the testimony ran the risk that the jury would return a verdict in this case so as to punish defendant for the uncharged misconduct. He asserts that after the jury heard of defendants jealousy and prior conduct, such evidence was likely to [turn] the presumption of innocence on its head.

In People v. Balcom (1994) 7 Cal.4th 414, the Supreme Court explained that the probative value of other crimes evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. (Id. at p. 427.)

Further, [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 638.) In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose. [Citation.] (People v. Branch (2001) 91 Cal.App.4th 274, 286.)

The probative value of Erikas testimony stemmed from the similar circumstance that defendant apparently harbored ill-will against his first-born son, even when the child was a newborn. Defendant did not like it when Dominic interfered with defendant maintaining control over Erika and diverted her attention from defendant. Defendant became angry and willing to inflict violence on the baby whenever the baby cried. On balance, since Erika had apparently borne the only other child that defendant had fathered, the just-over-five-year gap between Dominics and Angels births was not so significant as to render Erikas testimony inadmissible because of its remoteness. (See, e.g., People v. Branch, supra, 91 Cal.App.4th at p. 285 [30 years]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 [23 years].)

The probative value of the uncharged conduct arose from an independent source, defendants estranged wife, Erika. Erikas failure to report the prior incident did not show a lack of reliability, as defendant asserts, because Dominic was not injured and defendants violence prevented any report. Use of the incident was not likely to confuse the jurors. The prior conduct was proven with short testimony from Erika, and defendant through family members and Erikas family would have been able to refute Erikas testimony had it been untrue. The incident was less inflammatory than the charged offenses and not likely to cause a jury to want to convict defendant in this case for the uncharged conduct. (See, e.g., People v. Balcom, supra, 7 Cal. 4th at p. 427.) Erikas testimony was not so inflammatory as to risk causing the jurors to ignore the requirement of proof beyond a reasonable doubt. (See People v. James (2000) 81 Cal.App.4th 1343, 1353.) The trial court properly exercised its discretion by admitting Erikas testimony.

Defendant argues that the use of the uncharged acts testimony violates due process. In People v. Jablonski (2006) 37 Cal.4th 774, 805, our high court said the following: Evidence is substantially more prejudicial than probative (see Evid. Code,  352) if, broadly stated, it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome (People v. Alvarez (1996) 14 Cal.4th [155], 204, fn. 14 . . .). (People v. Waidla (2000) 22 Cal.4th 690, 724. . . .) The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair. (People v. Falsetta [, supra,] 21 Cal.4th [at p.] 913. . . .) The evidence here permitted reasonable inferences to be drawn by the jury and was not of such quality [that it] necessarily prevent[ed] a fair trial. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) The use of the evidence did not violate due process.

III. CALJIC No. 9.37

Defendant contends the trial court improperly failed to charge the jury with all the elements of assault on a child under eight years of age resulting in death, such as are included within the pattern instruction, CALJIC No. 9.37.

We disagree.

A. CALJIC No. 9.37, as Modified

The trial court charged the jury with a modified version of CALJIC No. 9.37, as follows.

The defendant is accused in count 3 of having violated section 273a, [subdivision (a)] of the Penal Code, a crime. Every person who under circumstances or conditions likely to produce great b