P. v. Naredo

















Filed 1/10/13 P. v. Naredo CA2/3

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 THREE




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THE PEOPLE, Plaintiff and Respondent, v. ALI DAVID NAREDO, Defendant and Appellant.

B232887 (Los Angeles County Super. Ct. No. BA348851)

APPEAL from a judgment of
the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Harvey Giss, Judge.
Affirmed.



Maureen L. Fox, under appointment by the Court of Appeal,
for Defendant and Appellant.



Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for
Plaintiff and Respondent.



INTRODUCTION

A jury found
defendant and appellant Ali David Naredo guilty of, among other things, href="http://www.mcmillanlaw.com/">involuntary manslaughter of his
seven-month-old son. At trial, the
People introduced, over Naredo’s objection, his statement to the police that he
punched the baby’s head. On appeal, he
contends that his statement was involuntary because it was coerced by a promise
of a benefit or leniency. He also
contends that the trial court improperly denied challenges for cause, admitted
cumulative autopsy photographs, and failed to instruct the jury properly. We hold that no prejudicial error occurred
and affirm the judgment.

>FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. Prosecution
case.

In May 2007,
Jeannie M. and Naredo got married. Away
from Naredo due to her military training, Jeannie became pregnant with another
man’s child. Before the baby, Rian, was
born, Jeannie told Naredo the child wasn’t his.
Although Naredo was upset, he and Jeannie continued to live together off
and on, and they were together when Rian was born in March 2008.

On November
6, 2008, Naredo and Jeannie, who was now pregnant with Naredo’s child, were
living in an apartment, although she had told him she was moving out. That night of November 6, Jeannie put Rian in
his playpen and went to take a shower around 6:00 or 6:30 p.m. Naredo was on the bed watching
television. While in the shower, Jeannie
heard a sound similar to the sound of someone burping a baby: “three like pats, but they were a lot
louder.” She went into the bedroom and
asked Naredo, who was holding Rian, if he had hit him. Naredo said he would never do that. Rian made a noise that sounded as if he was
gasping for air.

Thinking
Rian was fine, Jeannie went back into the bathroom to change, and Naredo came
in to take Rian into the shower. Jeannie
noticed that Rian was white, his lips were pale, and his eye was droopy. She asked what was wrong with the baby, but
Naredo said nothing. When she repeated
her question, Naredo panicked and said, “What’s wrong? What’s wrong?” She asked if he had done anything to the baby,
but Naredo didn’t answer. They drove to
the hospital.

Dr. Lisa
Kellman saw Rian at Alhambra Hospital.
Because he wasn’t breathing, he was given CPR and intubated. The right side of Rian’s scalp had a huge
hematoma and he had “blown pupils,” indicating possible head trauma. A CT scan showed multiple comminuted skull
fractures and a large septal hematoma, which is a collection of blood in the
soft tissue of the scalp and the cranium.

Jeannie told
Dr. Kellman she didn’t know what happened because she was in the shower. Naredo told the doctor that Rian hit his head
on the wall really hard. When
Dr. Kellman asked “how,” Naredo said something about how babies arch their
backs when they cry. In the doctor’s
opinion, this story was inconsistent with Rian’s injuries. Naredo also told a police officer that Rian
suddenly jerked his head and struck a wall.
Rian slipped out of Naredo’s hands, but Naredo caught him. Rian started to shake.

Rian was
transported to Huntington Hospital, where Dr. Kristine Thomas cared for
him. Rian had massive swelling of the
head, bruising to the scalp and head, his pupils didn’t react to light
(indicating lack of brain function), and his retinas had hemorrhages
(indicative of severe blunt force trauma or shaking). The baby’s mother told Dr. Thomas she was in
the shower when she heard thumping. When
she came out, Rian, pale and unresponsive, was in Naredo’s arms. Dr. Thomas agreed that the history from
Naredo was inconsistent with Rian’s injuries.
Rian’s mother agreed to a do-not-resuscitate order, and Rian died at
12:40 a.m. Dr. Thomas listed the cause
of death as blunt force head injury resulting in brain death.

Rian’s
autopsy confirmed he died from blunt force trauma from multiple blows. Rian had bruises to his left forehead and
left back of ear, abrasions on his chin area, and a bruise to the right side of
his head. The right side of his face was
swollen and he had a subcutaneous hemorrhage under his frontal scalp. He had a depressed skull fracture (the fatal
injury), meaning his bone was pushed in, which requires a great deal of
force. He also had hemorrhages to his
optic nerve.

Detectives
interviewed Naredo on November 7 and 11, 2008.
Naredo first said that Rian hit his head on the wall and fell to the
floor. Then he said he tossed Rian in
the air and failed to catch him. When
Naredo put Rian on the bed, he fell, hitting his head again. Finally, Naredo said that Rian fell, and when
he wouldn’t stop crying, Naredo slapped him, causing Rian’s head to hit the
wall.

B. Defense
case.

Dr. Jan
Leestma, a pathologist and neuropathologist, testified that a depressed skull
fracture in a seven-month-old baby could result from a fall of five or six feet
onto a hard, flat, tile surface. The
bruising on the sides of Rian’s head could have resulted from the main skull
fracture site or could represent separate injury sites. Bruising on the upper left hand portion of
Rian’s forehead was probably another impact site.

The doctor
could not “correlate” what he saw in the autopsy materials “with some elements”
of a scenario in which Rian jerked his head back and hit his head on the
wall. The depressed skull fracture would
be unlikely to occur in a scenario in which the child was hit twice on the head
with a closed fist, causing the baby’s head to strike the wall.

II. Procedural background.

On March 10,
2011, a jury found Naredo not guilty of second degree murder as charged in
count 1 but guilty of the lesser offense of involuntary manslaughter (Pen.
Code, § 192, subd. (b)).href="#_ftn1"
name="_ftnref1" title="">[1] The jury also found him guilty of count 2,
felony assault on a child causing death (§ 273ab), and of count 3, child abuse
(§ 273a, subd. (a)). The jury found true
an infliction of great bodily injury or death allegation under section
12022.95.

On May 9, 2011,
the trial court sentenced Naredo, on count 2, to 25 years to life. The trial court imposed and stayed sentences
of four years on count 1 and of 10 years on count 3 under section 654.







DISCUSSION

I. Admission of Naredo’s statement to detectives, if error,
was harmless.

Naredo
contends that his statement was not voluntary, because it was coerced by
promised benefits. We conclude that any
error in admitting the statement was harmless.

A.
The
interrogation.

Detectives
Ramirez and Marquez interrogated Naredo on two days, November 7 and 11,
2008. The November 7 interrogation began
at 3:00 a.m.

At the
outset of the interrogation, Detective Ramirez said he just wanted to talk to
Naredo, and he wasn’t rushing to judgment.
When Naredo asked if he was going to get to go home, the detective
answered, “I don’t see why not.” Naredo
asked again if he would get to go home, and the detectives told him they were
going to talk and “get this straightened out.”
The detectives said they were there to get to know Naredo, and they
proceeded to ask Naredo about his background, family, and wife. When Naredo expressed concerned he wouldn’t
get to see his baby born, he was told not to worry about that.

The
detectives emphasized the importance of telling the truth; they could explain
an “accident” or a “bad choice” but not a lie.
People make “mistakes” or maybe “something happened that you didn’t mean
to happen, then . . . that’s fine too.”
“[W]e can explain that and . . . we can work with that.” But the detective couldn’t work with
“ ‘[n]othing happened’ or ‘[t]his miracle happened.’ ” Naredo said he understood.

Naredo
described what happened the day Rian died:
Naredo, for example, had breakfast and went to the store and
library. When Naredo asked, “what’s
going to happen once we’re done here?”, Detective Ramirez said he didn’t
know. Naredo asked if he was going to be
detained “or something like that?” The
detective answered, “At this point, no.”
Naredo asked if he was going to get to go home, and the detective told
him they were trying to finish up as soon as they could.

Naredo then
described how Rian was hurt. While in
the kitchen, Naredo heard a “ ‘boom.’ ” The baby had hit his head on the wall and
fallen to the tile floor. Detective
Marquez told Naredo that Rian’s skull was fractured. Then he told him Rian was dead. Although the detective believed that Naredo
loved his son, he didn’t believe Rian died from hitting his head on the wall. Detective Ramirez said that babies Rian’s age
are fussy and hard to handle. Naredo
said he wouldn’t beat up a toddler, but then he said he threw Rian in the air
and failed to catch him. That is how
Rian first hit his head, and then he fell and hit his head again.

After a
break, the detectives told Naredo they’d talked to the doctors and Naredo’s
story didn’t explain Rian’s injuries. Naredo said, “I did not kill my own
kid.” Saying he knew that, the detective
repeated that there wasn’t an explanation for all of Rian’s injuries. When Naredo asked if they were saying he was
lying, the detective said it just didn’t match up. The detective repeated that he knew how hard
it was to handle a baby—sometimes people lose it for a second. Naredo again denied hitting Rian. After praising Naredo for caring for Rian,
the detective said, “Am I going to sit there and let somebody tell you . . .
that you intentionally went out and did something to that kid? No.”
But if there was a mistake or an accident, “then . . . [I’ll] say, ‘. .
. this is what happened.’ ” “I’m
sticking up for you.” “Because . . .
here’s the thing. I’m here. I’m sticking up for you.” And if the doctors were pointing their
fingers at Naredo, then “it’s up to me . . . [to] say, ‘Hold
on. You got it wrong. This is what happened. It wasn’t supposed to be that
way.’ ” “ ‘This is an
accident. This was what really
happened.’ ”

Detective
Ramirez said he believed Naredo made a mistake, that he wasn’t like a guy who
gets into a car with a rifle looking for somebody to shoot. “There’s a
difference. . . . [N]ow,
you got a whole bunch of people that are sitting there pointing and sitting
there and putting you in a certain category, we need to stop that right
now.” He is not like a drive-by
murderer. The detectives repeated that
they understood how parents lose their head for a second. “[I]t can happen. . . . You think you’re the first person to sit
there?” “Now, does that mean they . . .
spend the rest of their life in––in Solano stamping license plates? No.
That means. . . we get them parenting classes. That means, they get, you know, maybe anger
management classes. That means they get
help. Okay? Maybe they drank too much. Maybe they do this and we––there’s a lot of
different things.” “People who make
mistakes need help. They don’t need to
be stamping license plates in Solano for the next thirty-five, forty years.”

After
explaining that they had to report to the doctors and to their superiors,
Detective Marquez said, “[T]his is what being a parent is all about. . . . This is not somebody who needs to go to
jail. This is somebody that needs
help. This is somebody that needs . . .
assistance, like we all do. We can’t do
it ourselves. We can’t do it
alone.” The detective told Naredo he
could be helped by deciding if this was a mistake or preplanned, so that he
didn’t get lumped in with people who didn’t care about their kids. “[A]nd so you made a mistake. Big fucking deal. That is what we’re here to say. Big fucking deal. You’re doing the right thing. Okay.”
Although the detective said he couldn’t “bullshit” Naredo, because this
was going to be a “rough time,” he was trying to help him. The detective asked for his trust, but “[a]m
I going to make your problems disappear?
Fuck no.” Although, “I can’t help
you on some problems––not right now at least––” down the road Naredo would
thank him. “But I’m here––the only
person that’s going to . . . save you for yourself right now . . . .”

After the
detective again suggested that Naredo made a mistake and lost his cool, Naredo
admitted that Rian fell, and when he cried, Naredo slapped him. When Naredo slapped Rian, his head hit the
wall. Naredo asked if there was anything
he could do to see his baby being born, and Detective Marquez said, yes, and
told Naredo he would be alright.

During a
second interview, Naredo told the detectives he punched Rian’s head twice. Near the end of the interrogation, when
Naredo expressed distress at not seeing his baby born, Detective Ramirez said
he couldn’t promise him anything, but “nobody knows anything about what’s going
to happen tomorrow.” “There’s no
guarantees.” Naredo reminded the
detective, “I told you I’ll cooperate and do whatever you want. Your partner said that there could be
programs, that there could be anger management, that there could be
something.” The detective told him,
“It’s not up to me.” When Naredo asked
if the detective was going to help him, the detective said he couldn’t tell him
that.

When the
detectives told Naredo he was being charged with murder and that they had no
control over the charge, Naredo replied, “I thought you did.”

B.
Admission of the
statement.

An
involuntary confession—one that is not free because the defendant’s will was
overborne—is inadmissible at trial under the due process guarantees of the
United States and California Constitutions.
(Mincey v. Arizona (1978) 437
U.S. 385, 398; People v. Massie
(1998) 19 Cal.4th 550, 576; People v.
Smith (2007) 40 Cal.4th 483, 501.) A
confession is involuntary when elicited by a promise of some benefit or
leniency, whether express or implied, and the wrongful inducement and the
defendant’s statement are causally linked.
(People v. Holloway (2004) 33
Cal.4th 96, 115; People v. Maury
(2003) 30 Cal.4th 342, 404-405; Colorado
v. Connelly (1986) 479 U.S. 157, 164, fn. 2.) But mere advice or exhortation by the police
that it would be better for the accused to tell the truth, when unaccompanied
by a promise of some benefit or leniency, does not render a subsequent
confession involuntary. When the
defendant, however, is given to understand that he or she might reasonably
expect more lenient treatment at the hands of the police, prosecution, or the
courts, in consideration of making a statement, even a truthful one, the
inducement may render any ensuing statement by the defendant involuntary and,
thus, inadmissible. (>Holloway, at p. 115.) Although detectives may not lead a suspect to
believe he might get the benefit of more lenient treatment if a statement is
made, detectives may point out the benefit that flows naturally from a truthful
and honest course of conduct. (>People v. Jimenez (1978) 21 Cal.3d 595,
611-612, overruled on other grounds in People
v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17; see also >People v. Hill (1967) 66 Cal.2d 536,
549.) There can be a fine line between
permissibly urging a suspect to tell the truth by outlining the benefits that
may flow from confessing and impermissibly making an implied promise of lenient
treatment in exchange for a confession.
(Holloway, at p. 117.)

The
voluntariness of a suspect’s statement is determined based on the totality of
the circumstances. Those circumstances
include “ ‘the crucial element of police coercion [citation]; the length of the
interrogation [citation]; its location [citation]; its continuity’ as well as
‘the defendant’s maturity [citation]; education [citation]; physical condition
[citation]; and mental health.’ ” (>People v. Williams (1997) 16 Cal.4th
635, 660.) Questioning by the police may
include exchanges of information, summaries of evidence, an outline of theories
of events, confrontation with contradictory facts, debate, and even exaggerated
statements implying that the police have more knowledge about a crime than they
actually possess. (People v. Holloway, supra, 33 Cal.4th at p. 115; see also >People v. Jones (1998) 17 Cal.4th 279,
299.) Only those “psychological ploys
which, under all the circumstances, are so coercive that they tend to produce a
statement that is both involuntary and unreliable” are inadmissible. (People
v. Ray (1996) 13 Cal.4th 313, 340.)

“In order to introduce a
defendant’s statement into evidence, the People must prove by a preponderance
of the evidence that the statement was voluntary. [Citation.]
If a statement is found to be involuntary, the statement and other
evidence derived from it are inadmissible for any purpose.” (People
v. Vasila (1995) 38 Cal.App.4th 865, 873.)
We accept “the trial court’s resolution of disputed facts and inferences
as well as its evaluations of credibility if substantially supported, but
independently determine from undisputed facts and facts found by the trial
court whether the challenged statement was legally obtained.” (People
v. Smith, supra, 40 Cal.4th at p. 502.)

The
detectives here did not engage in coercive tactics by suggesting that sometimes
people make “mistakes” and “lose it”, and “accidents” happen. This was nothing more than suggesting a
theory of events, which is permissible.
(People v. Holloway, supra, 33
Cal.4th at p. 115.) Also, detectives did
suggest that people who make mistakes don’t need to spend the rest of their
lives in prison “stamping license plates” and that parents who lose their head
for a second get parenting or anger management classes. But they did not tell Naredo he would receive
such services in lieu of prison if he gave a statement implicating himself in
Rian’s death.

But even if
a defendant’s confession was involuntary, its admission will be found harmless
if there is no reasonable probability its admission contributed to the
verdict. (See People v. Cunningham (2001) 25 Cal.4th 926, 994, citing >Chapman v. California (1967) 386 U.S.
18, 24; Arizona v. Fulminante (1991)
499 U.S. 279, 309.) “ ‘To say that
an error did not contribute to the ensuing verdict is . . . to find that error
unimportant in relation to everything else the jury considered on the issue in
question, as revealed in the record.’
[Citation.] Thus, the focus is
what the jury actually decided and whether the error might have tainted its
decision. That is to say, the issue is
‘whether the . . . verdict actually rendered in this trial was surely unattributable to the error.’ [Citation.]”
(People v. Neal (2003) 31
Cal.4th 63, 86.)

Any error in
admitting Naredo’s statement here to police was harmless. The injuries to Rian occurred while Jeannie
and Naredo were home alone with him.
Moreover, they occurred while Jeannie was in the shower, and Naredo was
alone in the bedroom with Rian. In the
shower, Jeannie heard three or four thumps.
She asked Naredo, who was holding Rian, if he had hit him. When Jeannie finally noticed something was
wrong with Rian and asked what happened, Naredo didn’t answer her.

When Rian’s
treating physician asked what happened, Naredo said Rian arched his back and
hit his head against the wall. All of
the doctors who testified—including Rian’s treating physicians, the coroner,
and the defense expert witness—agreed that Rian died from blunt force trauma to
the head resulting in brain death. They
also agreed it was unlikely all of his injuries could have resulted from
hitting his head against the wall or from a short fall from a bed.

Therefore, in the absence of
Naredo’s confession, the evidence was that Rian sustained a depressed skull
fracture while alone with Naredo. That
fracture resulted from a blunt force trauma of some force. According to the treating physician and
coroner, that injury could not have resulted from Rian hitting his head against
the wall. The inevitable conclusion from
this evidence was Naredo inflicted the injury.
Moreover, the jury, even with Naredo’s confession before them, rejected
a second degree murder verdict, finding Naredo guilty instead of involuntary
manslaughter, felony assault on a child causing great bodily injury, and child
abuse. It is not reasonably probable the
statement contributed to the verdict.



II. The trial court did not err by denying challenges for cause.

Naredo next
contends that the trial court improperly denied his challenges for cause to
Prospective Juror No. 11 and Juror No. 8.

A.
Additional
facts: voir dire.

1. Juror No. 11.

Juror No. 11
said that if you’re guilty, “you are guilty.”
And although it was up to the prosecution to state the evidence, if the
evidence “is there,” then there shouldn’t be a trial. If the prosecution has the evidence already,
“then why go through a trial?” When the
trial court advised that people can see things differently, the juror said she
understood that, but “that’s my personal belief.” She had an infant and wasn’t getting much
sleep, and therefore she didn’t think she would be “a hundred percent here.”

Defense
counsel challenged for cause Juror No. 11.
Before deciding the challenge, the trial court questioned the juror
further. When asked if she couldn’t be
fair because of the nature of the charges, the juror answered “[n]ot
necessarily. [¶] I just feel that a lot of times I guess cases
shouldn’t have, you know, gone to trial when there is significant evidence that
the prosecution has already.” When the
trial court explained that somebody would have to decide “you are not having a
trial because you are guilty,” the juror answered that if the case was like
what happened in Arizona, “we all know he did it. There [are] witnesses who saw him . . . do
what he did, and yet he’s getting a trial[.]”
When asked if the juror thought this case fell in that category, she
answered, “I don’t know because I haven’t heard the evidence.” She said she could keep an open mind. When the trial court further explained that
even though there might be no question a defendant shot someone, there could be
a question what was his state of mind and what was the precise crime he
committed. The juror said she
understood. The trial court denied the
challenge to cause as to Juror No. 11, and the defense used its first
peremptory to excuse the juror.

>2. Juror
No. 8.

By the time
Juror No. 8 was placed on the panel, the defense had already exhausted its
peremptory challenges. During voir dire,
the juror said he had an eight-year-old grandson, and it might cause a “little
bit” of a problem in judging this case.
But when asked if it would cause him to be unfair, the juror answered,
“No.” The juror later said that he felt
sad for the victim, but his feelings for the child would not affect how he
looks at the evidence, “but it will be there.”
When his daughter got married, “that was my wors[t] nightmare.” When defense counsel asked if there was
anything about his experiences or feelings that would cause him to vote guilty
despite the evidence, the juror answered, “It will be kind of hard not
to.” He added, “But I would
respond.” When asked if it would “be so
hard that you think you might not be able to do it,” the juror said, “I probably
would be, too.”

Juror No. 8
later told the trial court it would be “kind of hard to keep an open
mind.” The court asked, “But will you
attempt to do it? And you are assuming
that certain evidence is going to come in.
If that evidence comes in, you can act on it and do what you think is
appropriate when it comes time to rendering a verdict, if it comes in. [¶]
You understand that?” The juror
said he understood. When the prosecutor
asked the juror if he would be fair and listen to all of the evidence before
making a decision, the juror said, “That’s correct.”

The defense
made a for-cause challenge to Juror No. 8, but the trial court found that the
juror was “suitable to sit after the court’s last question which rehabilitated
the juror, if there was anything prior to that which was cause for concern.”

B.
An incompetent
juror was not forced on Naredo.

Because the
trial court refused to excuse Prospective Juror No. 11, Naredo used a
peremptory challenge against her. By the
time Juror No. 8 was on the panel, Naredo had exhausted his challenges. Naredo therefore now contends that by
refusing to excuse Prospective Juror No. 11 and Juror No. 8 for cause, an
incompetent juror (Juror No. 8) was forced on him. We disagree.

Reversal under circumstances
like those here is proper only if a defendant exhausts all of his or her peremptory
challenges and an incompetent juror
is forced on the defendant. (>People v. Yeoman (2003) 31 Cal.4th 93,
114; but see People v. Bittaker
(1989) 48 Cal.3d 1046; see also People v.
Baldwin (2010) 189 Cal.App.4th 991 [noting inconsistency between >Yeoman and Bittaker].) “ ‘Either party
may challenge an individual juror for “an actual bias.” [Citation.]
“Actual bias” in this context is defined as “the existence of a state of
mind on the part of the juror in reference to the case, or to any of the
parties, which will prevent the juror from acting with entire impartiality, and
without prejudice to the substantial rights of any party.” [Citations.]’ ” (People
v. Ayala (2000) 24 Cal.4th 243, 271-272; see also People v. Barnwell (2007) 41 Cal.4th 1038, 1051 [“A juror who is
actually biased is unable to perform the duty to fairly deliberate and thus is
subject to discharge].)

Whether to remove a
prospective juror for cause rests within the trial court’s wide
discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1146-1147; >People v. Waidla (2000) 22 Cal.4th 690,
715.) Where a juror gives conflicting
testimony as to his or her capacity for impartiality, the determination of the
trial court on substantial evidence is binding on the appellate court. (People
v. Hillhouse (2002) 27 Cal.4th 469, 488; People v. Mendoza (2000) 24 Cal.4th 130, 169; People v. Carpenter (1999) 21 Cal.4th 1016, 1035-1036; >People v. Kaurish (1990) 52 Cal.3d 648,
675.)

Neither Juror No. 8 nor
Prospective Juror No. 11, who did not sit on the jury, were incompetent. Juror No. 11’s fatigue, due to caring for an
infant, was not a ground, in the trial court’s discretion, to excuse her for
cause. There is no other indication in
the record that the juror would be inattentive or unable to physically perform
the duties required of a juror. The
other ground for challenging the juror is equally unavailing. Citing the shooting in Arizona of,
presumably, Congresswoman Gabrielle Giffords, Juror No. 11 initially
expressed doubt about the need for a trial when there is clear evidence of the
defendant’s guilt. The trial court
explained to the juror that even where there might be no doubt the defendant
committed the act, there could be a question as to his state of mind and what
crime he committed. The juror said she
understood. Similarly, although Juror
No. 8 expressed difficulty with the case because he had a young grandson, he
also told the trial court and prosecutor he could be fair and keep an open
mind. Where, as here, the jurors gave
conflicting testimony, the trial court’s determination of impartiality is
binding on us. (People v. Hillhouse, supra, 27 Cal.4th at p. 488.) The trial court did not err by denying the
challenges for cause.

III. Autopsy photographs.

Over
Naredo’s objection under Evidence Code section 352, the trial court admitted
autopsy photographs of Rian with his skin pulled back from his scalp. (People’s Exhibits. 24, 25, 26.) Naredo contends that the photographs were
inadmissible, in that they were cumulative and that their admission violated
his federal due process rights.

“The
admission of photographs of a victim lies within the broad discretion of the
trial court when a claim is made that they are unduly gruesome or
inflammatory.” (People v. Crittenden (1994) 9 Cal.4th 83, 133-134; see also >People v. Coleman (1988) 46 Cal.3d 749,
776.) The court’s exercise of its
discretion will not be disturbed on appeal unless the probative value of the
photographs clearly is outweighed by their prejudicial effect. (Crittenden,
at p. 134; People v. Lewis (2009)
46 Cal.4th 1255, 1282.) If the
photographs, though “gruesome,” would clarify a medical examiner’s testimony,
then they may be admitted in the court’s discretion. (Coleman,
at p. 776.) Autopsy photographs may
therefore be admitted as pertinent because they show the “ ‘nature and
placement of the fatal wounds’ ” or support the prosecution’s theory of
how the murders were committed or illustrate the testimony of the coroner and
percipient witnesses. (>People v. Loker (2008) 44 Cal.4th 691,
705.)

Though
certainly “gruesome” and perhaps especially disturbing because of Rian’s young
age,href="#_ftn2" name="_ftnref2" title="">[2]
we cannot conclude that the trial court abused its discretion by admitting the
autopsy photographs. The trial court
found that the photographs were admissible if they went to a “verified part of
the doctor’s theory” and that they could be used to rebut any suggestion that a
fall caused Rian’s injuries. Although
the doctors who treated Rian had testified that his injuries were inconsistent
with a mere fall, the autopsy photographs were relevant to disproving that
theory.

Nor were
they simply cumulative of the doctors’ testimony. Photographs of a murder victim need not be
excluded as cumulative “simply because testimony also has been introduced to
prove the facts that the photographs are intended to establish.” (People
v. Crittenden, supra, 9 Cal.4th at pp. 134-135.) Although there was no dispute that Rian died
as a result of blunt force trauma to the head resulting in a depressed skull
fracture, there was a dispute as to what could cause such a fracture, as well
as the other injuries to Rian’s head.
The defense theory was Naredo threw Rian into the air and failed to
catch him. The prosecution theory was
Naredo repeatedly punched Rian. The autopsy
photographs tended to show the extent of the injuries. Photographs 24 and 25, for example, showed
the extent of the bleeding which was otherwise not evident. Photograph 24 also showed that part of
Rian’s bone had detached.
Photograph 26 showed Rian’s swollen and red brain. It also showed that a few pieces of his brain
had slightly detached. The photographs
therefore illustrated the extensive damage to Rian’s brain and skull.

Not only
were the photographs relevant and, in the trial court’s discretion, admissible
under Evidence Code section 352, their admission did not violate Naredo’s
federal constitutional rights. “A
defendant has the general right to offer a defense through the testimony of his
or her witnesses [citation], but a state court’s application of ordinary rules
of evidence—including the rule stated in Evidence Code section 352—generally
does not infringe upon this right [citations].”
(People v. Cornwell (2005) 37
Cal.4th 50, 82, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Although the United States Supreme Court, in >Chambers v. Mississippi (1973) 410 U.S.
284, 302-303, “determined that the combination of state rules resulting in the
exclusion of crucial defense evidence
constituted a denial of due process under the unusual circumstances of the case
before it, it did not question ‘the respect traditionally accorded to the
States in the establishment and implementation of their own criminal trial rules
and procedures.’ [Citation.]” (Cornwell,
at p. 82; see also People v. Ayala
(2000) 23 Cal.4th 225, 301.)



IV. The
trial court did not improperly respond to the jury’s question.

When the
jury, during deliberations, asked a question, the trial court simply directed
them back to the instructions. We reject
Naredo’s contention that the court erred.

A trial
court must instruct the jury, sua sponte, on the general principles of law that
are closely and openly connected to the facts and that are necessary for the
jury’s understanding of the case. (>People v. Moye (2009) 47 Cal.4th 537,
548; People v. Abilez (2007) 41
Cal.4th 472, 517; People v. Breverman
(1998) 19 Cal.4th 142, 154.) But where
“the original instructions are themselves full and complete, the court has
discretion under section 1138 to determine what additional explanations are
sufficient to satisfy the jury’s request for information. [Citation.]
Indeed, comments diverging from the standard are often risky.” (People
v. Beardslee (1991) 53 Cal.3d 68, 97.)

Here, the
jury was instructed with CALCRIM No. 820:
“The defendant is charged in Count 2 with killing a child under the age
of eight years by assaulting the child with force likely to produce great
bodily injury in violation of Penal Code section 273[ab]. 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 eight[;] [¶] [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.
[¶] Someone commits an act
willfully when he or she does it willingly or on purpose. It does not require that he or she intend to
break the law, hurt someone else, or gain some advantage.” (Italics added.)

The jury was
further instructed: “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 should 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.”

During
deliberations, the jury asked, “Would the judge give us a simplified
explanation of count 2, see [No.] 7 specifically. We have a few people on the fence.” Discussing the question with counsel, the
trial court said it didn’t want to elaborate because “I’m doing something very
dangerous with the instruction, if I go any further. It speaks for itself.” Defense counsel objected. The court, however, told the jury: “Here’s what’s frustrating. I cannot ask you a series of questions as to
where your head is at, because then I’m already engaged in becoming a member of
the jury. And I can’t be the 13th juror
while you are deliberating on this case.
All I can do is look at number seven and try to decipher what your
question specifically is asking.
[¶] If it’s asking whether the
word ‘act’ is singular or plural, you can read the balance of the instruction
and it may or may not assist you, everything that appears after that by way of
language of the instruction. [¶] That’s the best I can do.”

The trial court did not abuse its discretion by referring
the jury back to the instructions. The
instructions were full and complete.
They informed the jury that Naredo’s act had to have caused Rian’s
death, and they explained what is an “act causing death.” As the court said, explaining “act” in any
further detail was risky.

V. Jury instructions.

The trial court failed to instruct the jury with CALCRIM
No. 301,href="#_ftn3" name="_ftnref3" title="">[3]
regarding witness testimony and No. 302,href="#_ftn4" name="_ftnref4" title="">>[4]
regarding how jurors are to weigh conflicting testimony. The People concede the error, but contend it
was harmless. We agree.

Where conflicting evidence has been presented at trial,
the trial court has a sua sponte duty to instruct the jury with, for example,
CALCRIM Nos. 301 and 302. (See >People v. Virgil (2011) 51 Cal.4th 1210,
1261-1262 [trial court’s failure to instruct jury with CALJIC No. 2.22, the
predecessor to CALCRIM No. 302, was error, albeit harmless, in light of
conflicting evidence presented at trial]; People
v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885; accord, >People v. Cleveland (2004) 32 Cal.4th
704, 751.) The failure to give the
instruction, however, can be harmless error.
(Virgil, at p. 1262; >People v. Carpenter (1997) 15 Cal.4th
312, 393.)

The gist of
CALCRIM Nos. 301 and 302 was in other instructions which were given to the
jury. The jury was instructed with, for
example, CALCRIM No. 220 (in deciding whether the People proved their case
beyond a reasonable doubt the jury “must impartially compare and consider all
the evidence that was received throughout the entire trial”); CALCRIM No. 223
(“Both direct and circumstantial evidence are acceptable types of evidence to
prove or disprove the elements of a charge. . . . You must decide whether a fact in issue has
been proved based on all the evidence”); and CALCRIM No. 226 (the jury
must judge the witnesses’ credibility, considering factors such as, “How
reasonable is the testimony when you consider all the other evidence in the
case?”); CALCRIM No. 332 (how to evaluate an expert witness’s testimony).





The prosecutor also did not
argue in his closing argument that more witnesses supported conviction than the
number who opposed it. Rather, the
prosecutor told the jury it had to determine from “all that evidence” “what is
true” and to “look at the evidence in total.
Don’t pick one piece out . . . .” Because it is not reasonably probable that
the jury would have reached a different result had CALCRIM Nos. 301 and 302
been given, the trial court’s error in failing to give the instruction is
harmless. (People v. Watson (1956) 46 Cal.2d 818, 831.)

VI. Cumulative error.

Nor does the cumulative
effect of the purported errors require reversal. As we have “ ‘either rejected on the merits
defendant’s claims of error or have found any assumed errors to be
nonprejudicial,’ ” we reach the same conclusion with respect to the cumulative
effect of any purported errors. (>People v. Cole (2004) 33 Cal.4th 1158,
1235-1236; see also People v. Butler
(2009) 46 Cal.4th 847, 885.)





>DISPOSITION

The judgment is affirmed.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS











ALDRICH,
J.





We concur:





KLEIN,
P. J.











CROSKEY,
J.