P. v. Ortiz

Filed 2/11/10 P. v. Ortiz CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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After an incident shrouded in mystery, 11-month-old D.C. was rushed to the hospital suffering from a severe head injury. Three people were present when D.C. was injured: her mother, Di.C. (Mother); Mothers boyfriend, defendant Leonardo Trejo Ortiz; and defendants sister, Alejandra Ortiz. Following a series of interviews, defendant was charged by information with two counts of child endangerment and one count of inflicting corporal punishment on a child. (Pen. Code,  273a, subd. (a), 273d, subd. (a).)[1] A jury found defendant guilty of one count of child endangerment and one count of inflicting corporal punishment on a child, and not guilty of the remaining count of child endangerment. Sentenced to prison for 12 years, defendant appeals, contending the court erred in refusing to grant use immunity for Mothers testimony and defense counsel performed ineffectively in failing to request a pinpoint instruction on third party culpability. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On August 13, 2006, following a 911 call from Alejandra Ortizs apartment, an ambulance transported D.C. to the hospital. Sheriffs deputies, detectives, and Child Protective Services (CPS) personnel interviewed Alejandra, defendant, and Mother about the events surrounding D.C.s injury.

Ultimately, a second amended information charged defendant with two counts of child endangerment (counts one and two) and one count of inflicting corporal punishment on a child (count three). The first count of child endangerment referred to the incident on August 13, 2006, which resulted in D.C.s hospitalization. The second child endangerment count referred to an incident in July 2006, in which defendant shook D.C. As to counts one and three, the information further alleged defendant personally inflicted great bodily injury on a child under the age of five. ( 12022.7, subd. (d).)

Defendant entered a plea of not guilty and denied the allegations. A jury trial followed.

Prior to trial, Mother invoked her privilege against self-incrimination and refused to testify. Defense counsel requested the court to grant Mother use immunity. The court denied the request because of the realistic possibility Mother might be prosecuted in the future for failing to prevent D.C.s injuries and for committing other crimes.

Alejandras Testimony

Alejandra testified that Mother and defendant became romantically involved prior to D.C.s birth in the fall of 2005. Defendant is not D.C.s father. D.C. was very attached to Mother and cried when separated from her.

According to Alejandra, Mother sometimes called D.C. names and hit her when she cried. Mother once struck her daughter hard enough to leave a red mark. Mother had once thrown D.C. onto the couch.

Prior Incident

In July 2006 defendant, Mother, and D.C. visited Alejandra. When Mother left the room to go to the bathroom, D.C. began to cry. Defendant told Alejandra that D.C. always cried when Mother left the room.

Although defendant picked up D.C. and patted her back, the baby continued crying. Defendant knocked on the bathroom door and asked Mother why she was taking so long. Defendant picked up D.C. and tossed her up like, you know, how you usually do to a baby. In response to the courts inquiry, Alejandra defined tossing as holding a baby above your head and then catching it. Defendant tossed D.C. The court described shaking as a vigorous side to side motion. Alejandra stated she did not see defendant shake D.C.

When Mother came back in the room, she and defendant began arguing. Alejandra took the baby from Mothers arms, and defendant and Mother began hitting one another.

In an interview with detectives after D.C.s hospitalization, Alejandra stated defendant picked up the baby, tossed her into the air, and then caught her. Alejandra told her brother to stop because D.C. was small and would be frightened. Defendant then shook D.C. for about 10 seconds. Alejandra told defendant not to shake the baby and defendant said nothing will happen to her.

When Mother came out of the bathroom, Alejandra told her defendant had lifted D.C. up in the air and shaken her. Mother told defendant she had already told him not to do that and slapped defendant. While Mother held D.C., defendant pushed Mother onto the couch and hit her in the mouth. As the pair fought, Alejandra took D.C. and went outside.

Later that day, Mother told Alejandra she was pregnant with defendants child. Mother said she could not make it on her own with two children.

August 2006 Incident

In August 2006 defendant, Mother, and D.C. moved into Alejandras one-bedroom apartment. Alejandra, her mother, and Alejandras two daughters also lived in the apartment.

On the afternoon of August 13, 2006, defendant sat in the bedroom closet playing a video game. When Mother decided to take a shower, defendant told her to put D.C. on the floor next to him and he would watch her. Mother put D.C. next to defendant, went into the bathroom, and took a shower.

D.C. began to cry, and defendant continued playing his video game. Alejandra went into the bedroom to get her clothes. Defendant told his sister, Just dont pay attention to her if she cries like that whenever her Mom is not around.

Alejandra told defendant he should check D.C.s diaper. Alejandra helped defendant change the babys diaper. Defendant picked up D.C. and patted her on the back, but she continued to cry. Defendant put D.C. back on the floor. Defendant told Alejandra the baby would cry until Mother came out of the bathroom. Alejandra suggested that defendant put D.C. in the shower with Mother. Defendant undressed D.C. and went to the bathroom door. Alejandra left the bedroom and went to the kitchen.

Defendant knocked on the door and called out to Mother. A few minutes later, Alejandra, in the kitchen, heard Mother screaming for her and shouting la nia, Spanish for my daughter or my girl. Alejandra ran to the bathroom, finding the door open and Mother, now dressed, inside.

Defendant, holding D.C., stood behind Mother. D.C. lay in defendants arms with her eyes rolled back and her legs hanging down. Alejandra heard the baby moan. The baby was dry and wrapped in a receiving blanket.

Alejandra asked her brother and Mother what had happened. Mother, crying, did not respond to the question but repeated hysterically, My daughter and My baby is dying.

Defendant, shaken, did not respond. Defendant turned on the faucet and rubbed water on the babys forehead.

Alejandra again asked what had happened. Defendant and Mother looked at one another but did not answer. Alejandra asked again, and defendant said there was nothing wrong with the baby and that its only her anger.

Alejandra carried the baby into the living room and called 911. D.C. regained consciousness briefly and moaned.

Mother, crying and shaking, said her daughter was going to die. Again, Alejandra asked what they had done to D.C., and Mother said they had not done anything.

An ambulance transported D.C. and Mother to the hospital. Defendant and Alejandra drove to the hospital together. Alejandra asked defendant if D.C. had fallen. Defendant said no, that she just started to act that way.

At the Hospital

Sacramento County Sheriffs Deputy Michael Baroni met defendant and Mother at the hospital emergency room. Mother and defendant spoke Spanish to one another. Mother appeared distraught and extremely worried about her daughter. Defendant was calm and not visibly upset. Defendant translated the conversation between Mother and the officer.

Defendant told Baroni that Mother stated D.C. had slipped in the bathtub and hit her head the day before. After the baby fell, Mother saw no bumps or bruising and D.C. appeared normal. Defendant also relayed Mothers explanation of the events leading up to D.C.s hospitalization that evening. Mother had been getting ready to give D.C. a bath, when the baby suddenly went limp in Mothers arms. D.C.s head tilted and her arms shook. Mother called for help and defendant came and took D.C.

A short time later another sheriffs deputy, Ryan Cervetti, contacted Baroni, Mother, and defendant at the hospital. Mother appeared sad and upset; defendant appeared calm and relaxed. Defendant told Cervetti that Mother was a good mother and took care of D.C. Defendant also said D.C. cried whenever Mother put her down. According to defendant, we feel like the baby doesnt like us because the baby cries all the time. Mother, with defendant as translator, told Cervetti she had been abused physically by her husband in Honduras.

Later that evening, Detective Juan Hidalgo contacted defendant and Mother at the U. C. Davis Medical Center, where D.C. had been transferred. During a tape-recorded conversation in a patrol car, defendant had told Mother not to change her story, and that the police were going to take her up to the room, and that they were going to be separated.

When Hidalgo, who speaks Spanish, interviewed Mother separately, she told him that the previous day D.C. had fallen in the bathtub and hit the back of her head. On the day of the interview, Mother was giving D.C. a bath, and as she took her out of the tub, D.C. suffered a seizure.

Hidalgo separately interviewed defendant. Defendant told Hidalgo that D.C. cried when separated from Mother. Defendant never took care of the baby and did not know if anything was wrong with her. Mother told defendant that D.C. had fallen in the bathtub the day before.

Interviews at Alejandras Apartment

Deputies interviewed Alejandra and her mother, Guillermina, the evening of the incident. Alejandra told one deputy that she never noticed any problems between defendant and Mother, or between the couple and D.C. The afternoon of the incident, Alejandra saw defendant change D.C.s diaper in the bedroom closet. He then picked up the baby and walked to the bathroom. Alejandra went into the kitchen before Mother opened the bathroom door.

Officers found an unsoiled diaper on one of the sofas in Alejandras apartment. They found two soiled diapers in the bedroom closet, and vomit stains on the carpet in front of the sofa.

Subsequent Interviews

Two days later, Detective Hidalgo translated a conversation between Mother and Dr. Coulter, who treated D.C., at the hospital. Dr. Coulter told Mother that D.C. suffered bone fractures to her head and retinal hemorrhaging in both eyes. Mother said D.C.s injuries were the result of her fall in the bathtub the day before the baby was rushed to the emergency room.

That same day, Mother also spoke with her sister, Xiomara, at the hospital. Mother told her sister that defendant had hit D.C. in the past. She also told Xiomara that defendant was the last person alone with the baby while Mother took a shower. D.C. was crying, and defendant knocked on the door and brought the baby into the bathroom. D.C. appeared injured. Defendant had hired an attorney to defend Mother, so she could not change her story.

Xiomara asked Mother why she had not told the police what happened. Mother told her sister defendant threatened that if she changed her story, she and her daughter would pay for it, and he threatened to kill them. Two days later Xiomara told police what Mother had confided in her.

On August 16, 2006, Detective Hidalgo interviewed Mother, who stated that she and defendant were just roommates and friends. Mother was unable to explain her previous statement about keeping the story straight. Mother also told Hidalgo she never left D.C. alone with anyone. D.C. had fallen in the bath on August 12 and hit her head, but seemed to be fine. Mother also reiterated that defendant never took care of D.C. and never did anything to her.

The same day, Detective Brian Shortz talked with defendant at Alejandras apartment. Defendant told Shortz that Mother was not a bad mother and that accidents happen. Defendant believed D.C. had fallen out of Mothers arms. Defendant helped Mother out in any way he could, but because the baby cried when Mother left her, Mother never left D.C. with him.

The day of the incident, Mother was either showering or running a bath. Alejandra was in the kitchen. Mother called to defendant and handed him D.C. from inside the bathroom. D.C. was naked, and Mothers hair and body were wet. Mother wore pants, but no shirt. The bathroom floor was wet, but there was no water in the bathtub.

Mother told defendant D.C. had slipped in the tub, hit her head, and that something was wrong with her. Defendant said D.C. was holding her head back and to the side. She was stiff on one side and loose on the other.

Defendant also stated he had translated for Mother at the hospital. Mother told officers that her daughter had fallen in the bathtub the day before and the same thing had happened the day of the incident. Defendant had not known of D.C.s accident the day before.

Defendant denied taking care of D.C. or changing her diaper on the day of the charged crimes. Defendant did not know whose diapers were on the closet floor.

On August 17, 2006, a CPS social worker interviewed Alejandra, who told her D.C. was with defendant as Alejandra helped him change the babys diaper. She left the room, and the next thing she heard was Mother yelling that something was wrong with the baby.

The social worker testified that Alejandra did not say she was in the bedroom, or that she saw defendant knock on the bathroom door while holding D.C. Nor did Alejandra state that Mother, soaking wet, opened the door and defendant went into the bathroom and locked the door.

The social worker also interviewed Mother the same day. Mother told the social worker D.C. had fallen out of her crib two months before the incident and that she had taken the baby to a doctor. Mother did not tell the doctor what happened because she was afraid. According to Mother, the day before the incident, D.C. slipped in the bathtub and hit her head, but she seemed to be all right. Mother told only Alejandra about the fall. The next day D.C. became unconscious and had a seizure.

A few days later Detectives Shortz and Hidalgo interviewed Alejandra. Alejandra told detectives that the day of the incident, she saw Mother give D.C. a bath in the morning. Alejandra was not in the bedroom when Mother went into the bathroom to shower. When Alejandra returned to the bedroom, D.C. was crying and sitting in the closet next to defendant. Defendant told her not to pay any attention to the baby.

Defendant picked up D.C. and noticed she was wet, and Alejandra helped him change the diaper. D.C. continued to cry. Alejandra suggested defendant put her in the shower with Mother. She followed defendant to the bathroom door, where he knocked, and then she proceeded to the kitchen. It took Mother about two to three minutes to open the door. Alejandra heard the door open and then Mother screamed.

Alejandra went to the bathroom and Mother said D.C. is dying. When Alejandra asked her what happened, Mother looked at defendant and said, Leo . . . [m]y child, my little girl, that who knows what that [sic]. Defendant told his sister nothing was wrong and that it was only D.C.s anger.

In a subsequent interview with another CPS social worker investigator, Mother behaved erratically and the investigator characterized her responses as calculated. Mother, who would not make eye contact with the investigator, said: Everything that happened to my baby is my fault and no one elses. [D.C.] was in the bathroom with me when she fell. There was nobody else at home. I was taking a bath. I was taking a bath with her and she just fell. I do not know why is it that nobody believes me. I am not protecting anyone. [D.C.] was injured when she was in my care.

Mother told the investigator that the day before the incident, D.C. had hit her head in the bathtub but seemed to be fine. However, the next day the baby began to have seizures, and Mother asked defendant and Alejandra for help.

A few weeks later Mother contacted Detective Hidalgo, and they met the next day. She told the detective that Alejandra and her mother warned her that if she told the truth, her baby would be taken away and she would go to jail for protecting defendant. Defendant told her not to change her story. Now Mother wanted to tell the truth.

After Mother began living with defendant at her brothers house, defendant would tell D.C. to shut up when she cried. He also hit the baby on the back, shook her three times, pulled her hair, and squeezed her. Defendant hit D.C. hard enough to make her back red and leave a finger mark. When Mother intervened, defendant struck her.

Mother also described the prior incident in which defendant shook D.C. Defendants mother told him he could be arrested for shaking the baby. Alejandra also saw defendant shake D.C. Alejandra hit defendant and told him to leave the baby alone.

According to Mother, D.C. was fine the day of the incident that landed her in the emergency room. Mother took a shower, leaving D.C. with defendant. D.C. started crying and defendant knocked on the bathroom door. When Mother opened the door, D.C. was not crying and was turning purple.

Mother asked defendant what he had done to the baby. Defendant said he had not done anything, just taken off her diaper. Mother screamed for Alejandra, who came into the bedroom. Mother told her D.C. was dying. D.C. moaned when Alejandra grabbed her. Defendant told Mother there was nothing wrong with D.C.; Alejandra phoned the paramedics.

A few weeks later, Mother had a second interview with the CPS investigator. Mother appeared more relaxed and made eye contact with the investigator. Mother told the investigator she left D.C. with defendant because she believed if Alejandra was there, defendant would not hurt her daughter. After her shower, defendant knocked at the door. Defendant handed her D.C., who looked purple. Her body felt light and her eyes rolled back in her head. Defendant said he had not done anything. Mother called for Alejandra, who asked what they had done to the baby. Mother said she did not know what defendant had done to her.

Mother also told the investigator that defendant hit D.C. because she would cry, and because she was not his child. Defendant struck the baby in his mothers and Alejandras presence. Mother did not tell the truth immediately because defendants mother threatened her that if she did she would be arrested. Alejandra also told her not to tell the truth because she would be arrested. Mother also feared for the welfare of her children in Honduras.

Approximately a week later, Alejandra told Detective Hidalgo that during the prior shaking incident, defendant picked up D.C. and threw her up. Alejandra told him not to do that because the baby would get scared. Defendant said D.C. liked it, but Alejandra pointed out the baby was still crying. Defendant said he was not doing anything to D.C. and shook her for about 10 seconds. Alejandra angrily told him to stop, and took the baby from defendant. Alejandra told the detective she realized defendant shook D.C. hard enough that she would have gone into a seizure or something if he had continued.

When Mother came out of the bathroom, Alejandra told her that defendant had shaken D.C. Defendant and Mother began fighting, and Mothers mouth was bleeding.

As for the incident leading to D.C.s hospitalization, Alejandra stated she was in the kitchen when she heard defendant knocking on the bathroom door. She heard the door open, and Mother screamed. Alejandra also stated she had seen Mother strike D.C. on the buttocks and legs about four times, but not hard enough to injure her.

Defendants Arrest and Subsequent Statements

Officers arrested defendant the same day as Alejandras second interview. En route to jail, defendant denied injuring D.C. At some point, defendant began to cry and said he wanted to talk about what had happened.

Defendant told the detective that while Mother was in the shower and Alejandra was in the kitchen, I grabbed the baby. . . . And some kind of reason I had . . . like hate against the baby, and I hit her on the ground. Defendant continued: At the [sic] point . . . I remember that all the things they did to me when I was a kid, and some kind of reason, I took it out . . . [] . . . [] [o]n her. Defendants anger increased and he hit D.C. hard on the floor again. Defendant also stated Mother had not done anything to her daughter.

During a taped telephone conversation with defendant after his arrest, Mother told him she needed someone who loves my children, not hits them. Defendant responded: I know, baby, and Im sorry. Mother told defendant she knew he was violent and would hit D.C. Defendant told Mother he was going to get help. When Mother asked defendant why he struck her daughter, defendant said he did not know why, but it was not intentional.

Expert Testimony

Dr. Kevin Coulter, an expert in the recognition, evaluation, and treatment of child abuse injuries, testified. Coulters examination of D.C. and her medical records revealed D.C. suffered a severe head injury, was unable to move her right arm and leg, and suffered multiple seizures on her right side. She had bruising on her right shoulder and upper arm, and pinpoint bleeding in the skin over her shoulders.

According to Coulter, such injuries were consistent with recent nonaccidental injury and child abuse, which had occurred within the preceding 24 hours. D.C.s skull, scalp, spinal cord blood vessel, and retinal injuries were consistent with a blunt force impact stemming from contact with a hard surface with sufficient force.

Coulter did not believe D.C.s injuries resulted from hitting her head against the bathtub in a fall. Instead, the injuries were consistent with someone grabbing baby [D.C.] with both hands and picking baby [D.C.] up and forcibly hitting her body, and she would be facing that person, forcibly hitting her body on the [floor] or maybe shaking her and hitting her on the [floor]. D.C.s shoulder bruising resulted from being grabbed with significant force. According to Coulter, D.C. would not have appeared uninjured after the incident. Coulter also testified that D.C.s injuries were potentially life threatening.

Defense Case

Defendant testified in his own behalf.[2] According to defendant, Mother had struck and cursed her daughter in the past on three separate occasions when the baby would not stop crying. Defendant admitted he had tossed D.C. in the air and that Alejandra had taken the baby from him.

As for the August 13 incident, defendant stated that while Alejandra was in the bedroom, he took D.C. to the bathroom and knocked on the door. When Mother opened the door, he went into the bathroom with the baby and closed the door. Mother and D.C. sat on the floor. Defendant and Mother began to argue. As defendant walked to the door, Mother picked up D.C. and hit her against the floor. Mother again picked up D.C. and hit her against the floor. D.C.s eyes rolled back into her head and she became motionless. Mother opened the door and called to Alejandra.

Defendant told Mother not to change her story because the police would not believe what really happened to D.C. Defendant told Mother they would get in trouble because he was on probation and she was receiving government assistance and had not reported her relationship with defendant. Defendant told officers he had thrown D.C. against the floor because he was worried about Mother and their unborn child.

On cross-examination, defendant admitted his testimony at trial differed from the version he gave officers. Defendant testified he lied to the police. He denied throwing D.C. on the floor or shaking her.

Verdict and Sentencing

The jury found defendant guilty of counts one and three, and found true the great bodily injury allegations. The jury found defendant not guilty of count two.

The court sentenced defendant to 12 years in prison: the upper term of six years on count one and six years for the great bodily injury enhancement. On count three, the court imposed but stayed both the middle term of four years and five years for the great bodily injury enhancement. Defendant filed a timely notice of appeal.

DISCUSSION

I. USE IMMUNITY

Defendant argues the trial court violated his constitutional rights to due process and confrontation by refusing to grant use immunity for the testimony of Mother. According to defendant, Mothers testimony was crucial to his defense of third party culpability.

Background

Prior to trial, the People moved to exclude evidence of third party culpability, that Mother was responsible for D.C.s injuries. The court denied the motion. After the court informed Mother of her Fifth Amendment privilege, she invoked her privilege against self-incrimination and refused to testify.

Defense counsel requested that the court grant Mother use immunity in order to protect defendants right to a fair trial. Defense counsel argued that Mother, by asserting her privilege, prevented defendant from fully presenting a defense of third party culpability.

The court denied the request, stating: Well, Im going to assume that I have the inherent power under the Sixth Amendment . . . [to] in an appropriate case confer use immunity on a witness, but I think the interest of justice would be disserved in this case if I were to do that because of the realistic possibility that [Mother] might be prosecuted in the future for failing to prevent the injuries that were allegedly inflicted by Mr. Ortiz; for making false reports to the police; and for at least one other crime I cant recall now. And I think the district attorney has the right not to be placed in the infamous Oliver North situation, where its almost impossible to determine what is and is not the product of the witness testimony in the event of future prosecution of [Mother]. So I therefore deny the motion. Im not going to make an order granting use immunity.

Defense counsel argued the People had had ample opportunity to charge Mother if that were their intent. Defense counsel pointed out that nearly two years had elapsed since the incident and continued: I believe that the reason they are asserting that now is to prevent her from testifying . . . to prevent the defense from being able to present a full defense.

The court responded that during a discussion in chambers, the district attorney stated her supervisors had discussed the possibility of Mothers being prosecuted and that it was a viable and distinct possibility. The district attorney confirmed the courts recollection.

The court concluded: I think thats important. For that reason, Im going to stand on my previous order denying the request for an order confirming use immunity. The district attorney has the charging power, and I think the Court should be very reluctant to interfere with the District Attorneys charging power where theres any significant likelihood that the prosecution might be prejudiced in a future prosecution. And Im not willing to conclude that the district attorney is in bad faith in taking the position that the district attorney has taken.

Discussion

Use immunity protects a witness against the actual use of his or her compelled testimony, as well as the use of evidence derived from the compelled testimony. However, use immunity does not protect the witness from prosecution, but prevents a prosecutor from using the immunized testimony against the witness compelled to testify. (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366.)

The Supreme Court has outlined the basic requirements for a court to grant use immunity to a witness: [T]he vast majority of cases . . . reject the notion that a trial court has inherent power to confer immunity on a witness called by the defense. [Citation.] The one jurisdiction that recognizes such a power, we have observed, also recognizes that . . . [t]he defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendants case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found to relate only to the credibility of the governments witnesses. [Citation.] (People v. Lucas (1995) 12 Cal.4th 415, 460 (Lucas).)

Defendant argues the court erred in denying his request for use immunity for Mothers testimony, contending it was highly unlikely the prosecution intended to file charges against her, and failing to grant her immunity foreclosed the possibility that defendant could adequately develop a third party culpability defense. Defendant acknowledges that Mothers statements to officers and CPS workers were introduced into evidence through testimony and videotape; however, defendant was never given a single opportunity to question her on any of them. Nor was the jury ever given an opportunity to assess her demeanor and thereby test her credibility.

Our review of the evidence presented at trial reveals Mothers expected testimony was not clearly exculpatory and essential to the defendants case. (Lucas, supra, 12 Cal.4th at p. 460.) Mothers statements to Detective Hidalgo implicated defendant in D.C.s injuries. She told the detective during two separate interviews that when she opened the bathroom door defendant held D.C., who was turning purple and whose eyes were rolled backward into her head.

Defendant challenges the reliability of Mothers statements to Hidalgo, arguing they resulted from the detectives statement that he was going to place D.C. in protective custody. According to defendant: [Mother] was made to understand that she would be deprived of all contact with her daughter were she not to name [defendant] as the culpable party. It is reasonable to assume that, freed from the severe threats she had endured, [Mother] would have testified as she had consistently and repeatedly done previously, in a manner exculpatory of [defendant].

However reasonable defendant terms the assumption that Mothers testimony would exculpate him, use immunity conferred by the court requires the evidence to be clearly exculpatory, not merely possibly exculpatory. Moreover, during closing argument, defense counsel painstakingly reviewed the twists and turns of Mothers various statements, both implicating defendant and exculpating defendant, to present a picture of Mother as unstable and untrustworthy. During trial, various witnesses testified as to the changing story Mother presented during the investigation. Thus, evidence of Mothers statements exculpating defendant and blaming D.C.s injuries on a fall in the bathtub the previous day were already before the jury.

In the same vein, Mothers expected testimony would have been cumulative of the testimony offered at trial. Defendant fails to explain what the key evidence that was noncumulative and essential to [defendants] defense would have been.

Instead, defendant argues the jury was foreclosed from making any of the usual important credibility determinations that result from viewing a witness and as a result being able to assess the truth of the witness statements. Not only was [Mother] shielded from jury view, she was also insulated from cross-examination. No one could question her about the enormous discrepancies between her various statements or her motivations for making various statements. Nor could she be questioned about any threats or promises made to her prior to or during the course of the investigation. Given the absence of these fundamental safeguards guaranteed by the judicial process, it is impossible to conclude that her testimony would simply have been cumulative of other evidence at trial.

However, the testimony at trial recounting the twists and turns of the scenarios Mother offered to various interviewers provided ample opportunity for the jury to consider her credibility and the veracity of her wildly conflicting statements. Moreover, the court should not confer use immunity if the testimony relates only to the credibility of the governments witnesses. [Citation.] (Lucas, supra, 12 Cal.4th at p. 460.)

Finally, the trial court specifically found that a grant of immunity to Mother would make it more difficult to prosecute Mother. Defendant argues the evidence belies this claim, since it is undisputed that though over two years had passed, the government had made no moves whatsoever toward prosecuting [Mother] on any offense. Defendant charges that the governments true intent was revealed in its failed in limine motion to exclude Mothers testimony in its entirety.

However, the trial court, privy to conversations in chambers, concluded that a grant of use immunity could prejudice any future prosecution of Mother because its almost impossible to determine what is and is not the product of the witness testimony. Regardless of the time period between the incident and defendants prosecution, the district attorney informed the trial court that future prosecution of Mother was a viable and distinct possibility.

We are not persuaded by defendants claim that the prosecutions actions amounted to an effort to intentionally preclude the defense from presenting key evidence. In the context of use immunity, to prevail on a claim that the prosecution interfered with the witness requiring a grant of use immunity, the defendant must establish the prosecutions conduct was entirely unnecessary to the proper performance of his or her duties; the misconduct was a substantial cause in depriving the defendant of the witnesss testimony; and the now unavailable testimony was material. (Lucas, supra, 12 Cal.4th at p. 457.) Defendant presents no evidence that the prosecution discouraged Mother from testifying.

The trial court did not err in denying defendants request for use immunity for Mother.

II. INEFFECTIVE ASSISTANCE IN FAILING TO

REQUEST A PINPOINT INSTRUCTION

Defendant asserts trial counsel performed ineffectively in failing to request a pinpoint instruction on third party culpability. This failure, defendant contends, deprived the jury of guidance on the nature of the defense, and the burden of proof and its relation to reasonable doubt.

To establish ineffective assistance of counsel, a defendant must show counsels performance was deficient and fell below an objective standard of reasonableness; and it is reasonably probable that a more favorable result would have been reached absent the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674].) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694.)

A defendant is entitled to an appropriate pinpoint instruction upon request. A pinpoint instruction relates particular facts to a legal issue or pinpoints the core of a defendants case. (People v. Saille (1991) 54 Cal.3d 1103, 1119.)

During trial, defendant testified that Mother caused D.C.s injuries. In closing argument, defense counsel argued defendants version of events was accurate, while Mothers was not. Defendant argues defense counsel relied on a third party defense, yet failed to request a pinpoint instruction.

Defendant acknowledges CALCRIM does not contain a standard instruction on a third party culpability defense, but argues an instruction directing the jurys attention to defendants theory of the case should have been requested. Since a defendant need not prove the third party guilty, but only need raise a reasonable doubt as to his own guilt based on the third party evidence, a pinpoint instruction would inform the jury of defendants burden of proof.

While we acknowledge that defendants defense focused on the culpability of Mother in D.C.s injuries, the lack of a pinpoint instruction on third party culpability did not prejudice defendant. The court instructed the jury pursuant to CALCRIM No. 220, stating a defendant is presumed innocent and is entitled to acquittal if the jury has reasonable doubt regarding his guilt. The instruction also places the burden of proving a defendant guilty beyond a reasonable doubt squarely on the prosecution. Thus if, as defendant argued, the jury believed Mother was responsible for D.C.s injuries, it would have acquitted defendant under the instructions given.

Defendant disagrees, arguing that in the case of third party culpability, the natural inclination of a juror is to decide whether or not the third-party is guilty. This is not the standard, however, because the correct inquiry is whether the third party evidence raises a reasonable doubt as to the defendants guilt. In the absence of an appropriate instruction . . . a jury is likely to erroneously conclude that it is the defendants duty to prove the actual culpability of the third party.

We are not persuaded. The court informed the jury that unless the prosecution proved beyond a reasonable doubt that defendant, not someone else, injured D.C., it must acquit him. They were also told they were to presume defendant innocent until convinced of his guilt beyond a reasonable doubt. A third party pinpoint instruction would not have changed the outcome of the case.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SCOTLAND , P. J.

HULL, J.

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[1] All further statutory references are to the Penal Code.

[2] Defendant admitted being convicted of felony false imprisonment in 2004 and passing a forged check in 2005.