P. v. Osuna and Ponce








Filed 11/9/10 P. v. Osuna and Ponce CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. MELISSA SUE OSUNA and RAY TIMOTHY PONCE, Defendants and Appellants.

G041029 (Super. Ct. No. RIF108833) O P I N I O N

Appeals from judgments of the Superior Court of Riverside County, Philip K. Sarkisian, Judge. (Retired judge of the Alameda Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part as modified, reversed in part and remanded for resentencing as to Defendant and Appellant Melissa Sue Osuna. Affirmed as to Defendant and Appellant Ray Timothy Ponce. Motion for in camera review of juvenile court records. Granted.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Melissa Sue Osuna.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Ray Timothy Ponce.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Introduction
Paramedics responding to an emergency call on March 10, 2003 found three-year-old Yessenia Garcia breathing, but unconscious and unresponsive to stimuli, on the floor of the apartment where she lived with her mother Melissa Sue Osuna and her mother’s boyfriend Ray Timothy Ponce. Yessenia was taken to a hospital and placed on life support. She was covered in bruises and abrasions and had suffered severe impact injuries, all caused by lethal force, to her forehead and to the back and left side of her head. The hospital’s director of forensic pediatrics found it remarkable that Yessenia had so many injuries, observing “[t]here’s hardly a square inch that doesn’t have something.” Yessenia was pronounced clinically brain dead two days later.
A jury convicted Osuna and Ponce with the second degree murder of Yessenia (count 1, Pen. Code, § 187, subd. (a))[1] and with assault on a child by means of force likely to produce great bodily injury resulting in the child’s death (child homicide) (count 2, § 273ab). The trial court sentenced Osuna and Ponce each to a term of 25 years to life in prison on count 2 and stayed sentence on count one pursuant to section 654, subdivision (a). Both Osuna and Ponce have appealed; each contends the other caused Yessenia’s death.
We affirm in full the judgment against Ponce. We conclude the evidence was insufficient to support the verdict against Osuna for second degree murder and child homicide; however, the evidence established that Osuna is guilty of involuntary manslaughter. Therefore, we exercise our statutory authority under sections 1181, subdivision (6) (section 1181(6)) and 1260 to modify the verdict and judgment against Osuna to reflect a conviction for the lesser included offense of involuntary manslaughter. We reverse the judgment against Osuna for child homicide because Osuna did not have the requisite mental state to be liable for its lesser included offenses of assault and assault by means of force likely to produce great bodily injury. We remand for the limited purpose of resentencing Osuna.
Ponce is not entitled to similar treatment under sections 1181(6) and 1260 because the evidence was sufficient to support the verdict against him. We reject Ponce’s contentions in support of reversal and affirm his conviction.
Facts
Yessenia was born in January 2000. Osuna was her mother, and her father was Santee Garcia. Although Osuna and Garcia ended their relationship when Yessenia was between six and nine months old, he visited Yessenia nearly every other weekend until she died and appeared to be a loving and affectionate father.
Osuna and Ponce began dating in October 2002 and soon thereafter moved into an apartment together. Yessenia lived with Osuna’s parents, Gloria and Fernando Osuna, for about another month before joining Osuna and Ponce in their apartment.
On weekdays, Yessenia attended a preschool where Gloria worked as a teacher. In January 2003, Yessenia was treated for a chin laceration, which she apparently received by jumping off a table at school. No other injuries were noted at the time. A month later, Yessenia went to school with a bump on her forehead the size of an egg. Osuna told Gloria that Yessenia had fallen off a bed and landed on her head. As the swelling went down, Yessenia’s eyes turned black. During the last week of February 2003, Yessenia received a minor injury on her face from another child. Gloria occasionally observed Yessenia with bruises from playing, but never noticed injuries to her buttocks or legs.
Ponce was unemployed. Osuna worked as a receptionist and supported the household. Several of her coworkers believed Ponce physically abused her. On one or two occasions, a coworker, Wayne Walls, observed extensive bruising on Osuna’s upper arms. He considered her explanation for the bruises to have been satisfactory at the time, but later, in hindsight, came to believe the bruising was from physical abuse. Another coworker, Henry Salgado, also recalled seeing bruises on Osuna and was aware that she and Ponce fought. Georgine Tacke, who had been a registered nurse for 50 years, saw bruises on Osuna’s upper arms that looked like “grab” bruises. When Tacke asked Osuna about the bruises, her response was not satisfactory. Tacke advised Osuna not to leave Yessenia at home. Gloria claimed, however, never to have noticed bruises on Osuna’s arms.
On Monday, March 3, 2003, Yessenia attended school. It was school picture day, and Yessenia had her picture taken. The picture did not show any bruising or signs of injury.
On Tuesday, March 4, 2003, Gloria took Yessenia to Garcia’s house, where she spent the day. Garcia, who bathed Yessenia and changed her clothing, claimed the only injuries he noticed were a bruise under her eye and a scratch on her nose. After work, Gloria picked up Yessenia from Garcia’s home and drove back to her home. Gloria did not notice anything wrong with Yessenia. Later that day, Osuna picked up Yessenia from Gloria’s home. It was the last time Gloria saw Yessenia.
On Wednesday, March 5, 2003, Osuna called Gloria to tell her Yessenia would be spending the day with Ponce and his sister rather than going to school. The next day, Osuna told Gloria that Yessenia had fallen down the stairs the previous day and would not be attending school for the rest of the week. Yessenia stayed at home with Ponce on March 6 and March 7 while Osuna was at work.
Yessenia was supposed to spend the weekend of March 8 and 9, 2003 with Gloria and Garcia. Osuna told Gloria that Yessenia would not be visiting because of her injuries from falling down the stairs.
Osuna told a coworker, Sacha Oakley, that while on a school field trip, Yessenia had fallen off from a bus, hit her head on the sidewalk, and had bruises on her face and body. Osuna told Oakley she had to cover Yessenia in make-up and clothing to take her out in public. Osuna told coworker Walls that Yessenia had fallen off a bus while on a school field trip to the San Diego Zoo. Osuna told Tacke that Yessenia had gone to the San Diego Zoo with Ponce’s sister, Ruth Ponce, and tripped and injured herself while running through the parking lot. Tacke thought the story was suspicious and, when Osuna said she had not obtained medical care for Yessenia, told Osuna to bring her to the work to be treated. Osuna did not do so. Osuna also told coworker Darlene Field that Yessenia had tripped and injured herself while on a field trip to the San Diego Zoo. Yessenia neither went on a school field trip nor went with Ponce’s sister to the San Diego Zoo. Osuna told Salgado that Yessenia was badly bruised from head to toe after falling down stairs while carrying a bowl of cereal.
On Saturday evening, March 8, 2003, Ponce’s sister Ruth visited the apartment shared by Osuna and Ponce and saw Yessenia sitting on the ground, wearing pajamas that covered her arms and legs. She had a scratch on her chin and a small bruise under her left eye. Ruth later told a deputy district attorney and an investigator that Yessenia’s face was “‘really swollen’” and that when she saw Yessenia she exclaimed, “‘“Oh, my God.” . . . “What happened to her‌”’” Ruth told Osuna to take Yessenia to the hospital, but neither Osuna nor Ponce sought medical care for Yessenia.
On Sunday, March 9, 2003, Gloria spoke with Yessenia by telephone. Yessenia’s voice did not sound unusual and she was able to understand what Gloria said.
On Monday, March 10, 2003, Osuna did not take Yessenia to school and instead left her in the apartment with Ponce before going to work. At a few minutes after 12:00 noon, Ponce called Ruth and asked her to come over right away because there had been an accident. Ruth arrived at the apartment within a few minutes, went upstairs, and found Yessenia lying on her back on the floor of her bedroom. Yessenia appeared unconscious and was gasping for air. Ruth carried Yessenia into the hallway and attempted to give her cardiopulmonary resuscitation (CPR). Blood and mucous poured from Yessenia’s nostrils. Ruth carried Yessenia to the bathroom and brushed warm water over her face and head to clean away the blood and mucous. After several minutes, Ruth dialed 911 and was told the paramedics were on their way. Ruth carried Yessenia downstairs to wait for them to arrive.
When paramedics arrived at about 12:16 p.m. they found Yessenia lying on the ground, breathing but unresponsive to stimuli. She was taken to Riverside Community Hospital and later that day transferred to Loma Linda Children’s Hospital.
Police officers arrived at the apartment at 12:25 p.m. on March 10. Ponce was extremely upset and the officers had difficulty speaking with him. He identified himself as Yessenia’s stepfather and said her biological father had not been in her life since birth. Ponce told the police that Yessenia had taken a bath and fell off a boom box while trying to hang a towel on a peg. One police officer found a dry towel on Yessenia’s bed and no wet towels were found in the apartment. The bathroom floor was wet and there was a wet spot on the carpet in a hallway. A hair was found on the wall two feet and eight inches above the wet spot in the hallway. In Yessenia’s bedroom there was a boom box at the foot of the bed. The carpet at the foot of the bed by the boom box, the spot where, according to Ponce, Yessenia had fallen, was not wet. Some of Yessenia’s clothing was found neatly folded underneath a plastic bag in a trash can.
Once Osuna arrived at the apartment, a police officer transported Ponce and her to the police station. The officer described Osuna and Ponce as very affectionate and loving toward each other. Ponce was more emotional than Osuna. Ponce told the police officer Yessenia had fallen from a boom box, and Osuna told the officer Yessenia had fallen down the stairs the previous Wednesday.
Yessenia was placed on life support. Two brain death evaluations were conducted on Yessenia. The first was conducted at 3:15 p.m. on March 11. The second was conducted at 6:30 a.m. on March 12. Yessenia was pronounced clinically brain dead at the second evaluation.
Dr. Claire Sheridan-Matney treated Yessenia on March 10 and declared her brain dead on March 12. Dr. Sheridan-Matney is the Director of the Division of Forensic Pediatrics and a member of child abuse and neglect team at Loma Linda Children’s Hospital. She observed swelling one Yessenia’s face and scalp, bilateral eye hemorrhages, and at least three distinct impact sites, one to the forehead, one to the back of the head, and another to the left side of the head. Dr. Sheridan-Matney observed bruises to Yessenia’s right hip, right eyelid, left arm, left thigh, buttocks, ear, elbow, wrist; linear (straight line) bruises to her right thigh; abrasions (meaning the skin has been cut) around her right knee and upper arms; macerated tissue under her upper lip; an old scar on the side of her mouth, and linear “grab marks” on her upper arms. “There’s hardly a square inch that doesn’t have something,” she commented.
Dr. Sheridan-Matney believed the bruising on Yessenia’s buttocks must have been very painful. She concluded the abrasions on Yessenia’s upper arms were at least five days old and looked like they were caused by sharp fingernails. Yessenia had acute “loop marks” on her legs that looked recently inflicted because they were red and swollen. Yessenia also had square-shaped marks on her right arm and hip that could have been caused by a shoe. There was an open cut behind Yessenia’s ear that could have been caused by someone pulling the ear and lacerating it with a fingernail. Yessenia had a patterned injury on the back of her right arm that appeared as though it had been inflicted by a belt buckle, and another patterned injury on her lower right abdomen that look as though it had been caused by someone standing on her. Accidental injuries, Dr. Sheridan-Matney noted, rarely have such definite patterns. The different ages of the various injuries, and the degree to which each had healed, indicated Yessenia had been physically abused over a period of time.
Dr. Sheridan-Matney concluded Yessenia’s head injuries were caused by “lethal force”—force greater than that created by falling down a flight of stairs or off of a boom box. She explained “[t]hese are extraordinary forces that we’re talking about to cause this kind of brain damage.” She believed Yessenia’s injuries could have been caused by shaking or being thrown against a hard surface, causing the brain to rotate.
Dr. Sheridan-Matney testified the head injuries to Yessenia would have been immediately symptomatic and she would not have been able to function normally after receiving them. There would not have been a “lucid interval” during which Yessenia would have been able to walk and talk normally; instead, Yessenia would have rapidly gone into a coma after being injured. According to Dr. Sheridan-Matley, it would not have been possible for Yessenia to receive the brain injuries on the night of March 9, 2003 and survived the night. Thus, Dr. Sheridan-Matney concluded, Yessenia was injured during the morning of March 10.
Forensic pathologist Dr. Steven Trenkle performed the autopsy on Yessenia. He concluded the cause of death was blunt head injury due to abusive head trauma, with battered child syndrome a contributing cause. During the internal examination, Dr. Trenkle found a one-inch tear in the galea, the deepest part of the scalp and next to the bone. He described the tear as a “significant injury” and explained it could only have by caused by a “significant impact”—a force greater than would occur if an active child were injured at home or on the playground. The injury would not have resulted from falling down stairs or falling off a boom box.
Also during the internal examination, Dr. Trenkle found that Yessenia had a subcutaneous hemorrhage in her scalp caused by a blunt-force injury, a retinal hemorrhage behind one eye, and “a marked swelling of the brain,” a typical reaction to trauma. Her brain was so swollen it could not have been treated.
Dr. Trenkle concluded Yessenia’s head injuries were intentionally inflicted and could have been caused by a “bodily slam” to the floor, wall, or side of a bathtub. After receiving these types of injuries, Yessenia would not have acted normally. She would have been unconscious, possibly comatose; she might have had seizures and, potentially, stopped breathing. Dr. Trenkle therefore concluded Yessenia suffered the fatal injuries near the time of the 911 call on March 10. In addition, Yessenia was anemic when she arrived at Riverside Community Hospital and her hemoglobin fell from 8.9 to 6.6 at Loma Linda Children’s Hospital, indicating acute bleeding occurring near the time of the 911 call.
During the external examination, Dr. Trenkle saw the same body injuries noted by Dr. Sheridan-Matney. He observed swelling on the forehead, hemorrhaging underneath the swelling, abrasions, contusions, scarring, and bruises of varying size and severity on Yessenia’s arms, buttocks, thighs, hip, leg, the base of her neck, and overlapping “whip” marks on her thigh made by some kind of looping cord. He also noted injuries to the tissue inside Yessenia’s lip.
Dr. Trenkle opined that most of Yessenia’s injuries were inflicted within a short period of time near the time of the 911 call on March 10. The major bruising to Yessenia’s buttocks and thighs was inflicted less than 72 hours from the time Yessenia was declared brain dead on March 12. Some injuries were older. He believed some of the scars on her chest were five to eight months old. Injuries to the tissue inside Yessenia’s lip and behind her ear, and a forehead bruise, appeared to be more than five days old. Abrasions on Yessenia’s arms were inflicted earlier than the head injuries and were in the process of healing.
Riverside Police Detective Rome Whitt interviewed Ponce at the police station on March 10, 2003. A videotape of the interview was played for the jury. In the interview, Ponce said he had lived at the apartment with Osuna since October 2002, was unemployed, and was receiving unemployment benefits. He claimed Yessenia had fallen down the stairs for the second time on the previous Thursday. He and Osuna had discussed taking Yessenia to the doctor but decided against it because Osuna was in a custody battle with Garcia and they were afraid he would learn about Yessenia being injured. Ponce and Osuna put ice on Yessenia’s forehead, head, and mouth, and, by Saturday, the swelling on Yessenia’s head had gone down and her lips were healing. On Sunday evening Ponce and Osuna discussed taking Yessenia to the doctor on Monday when Osuna returned home from work.
In the interview, Ponce recounted the events of the morning of March 10 as follows: Yessenia acted and spoke as she normally would, and Ponce did not notice anything wrong with her. He prepared a bath for Yessenia and laid out her clothes while she bathed. When she was finished bathing, Ponce drained the bathtub, dried her hair, and sent her to her room to get dressed. After hearing a loud thump, Ponce went to Yessenia’s room and found her on the floor in front of the boom box. She was shaking and appeared to be having a seizure. Ponce carried her to the shower and let water run over her head. When he blew into her nose, mucous and blood came out. He threw water on her face, placed her in the hallway, called his sister, and then dialed 911. Ponce told the 911 dispatcher that Yessenia fell of a boom box. Ponce’s sister Ruth arrived and took charge of the situation.
Defense and Rebuttal Evidence
A. Ponce
Dr. David Posey, a private pathologist, testified on Ponce’s behalf. Dr. Posey agreed that Yessenia died of nonaccidental head trauma consistent with shaking or banging her head against a hard surface. He opined, however, the brain injuries occurred between 48 and 72 hours before she was pronounced brain dead. He based his opinion on his review of staining of tissue samples from Yessenia that showed the presence of “macrophages,” which appear during the healing process to clean up “iron and debris” following an injury.
Dr. Posey received 20 slides of tissue samples taken from Yessenia, of which 12 slides were of brain tissue. Dr. Posey’s associate, Dr. Roscoe Atkinson, applied the stains and conducted the tests, but did not testify at trial. He applied four different stains or preparations to the tissue samples: (1) an iron stain; (2) a trichrome stain; (3) a CD68 preparation; and (4) the Factor VIII preparation. The iron stain was negative, meaning the injury could not have occurred more than four to five days before brain death. This gave Dr. Posey one marker for determining the date of injury. The trichrome stain and the Factor VIII preparation were negative, and therefore were not useful in determining the date of injury.
Dr. Posey testified the CD68 prepartion was positive for the presence of macrophages in the brain tissue.[2] Because macrophages appear on the CD68 tests between 48 and 72 hours after the injury, Dr. Posey concluded the blunt force trauma was inflicted on Yessenia between five days and 48 to 72 hours before brain death. Using the time of death as 6:30 a.m. on March 12, Dr. Posey calculated backwards to conclude the blunt force trauma that caused Yessenia’s death could not have occurred around the time of the 911 call on March 10.
Dr. Posey also testified a person could have a lucid interval after suffering a head trauma before that person starts to “decompensate.” According to Dr. Posey, if Yessenia had suffered the head injuries on the night of March 9, it would have been possible for her to walk, talk, and act the next morning, although she would have been in pain and possibly disoriented.
Ponce’s uncle (Dr. Michael Sanchez), sister (Monique Linton), and mother (Connie Louise Ponce) testified to Ponce’s good character and gentle personality. Sanchez testified Ponce was good with children and appeared close to Yessenia. Linton testified Ponce loved children and was incapable of hurting them. She testified she never saw him angry and he was the “passive” partner while Osuna was the “dominant” one. Connie Louise Ponce testified her son was never violent and was particularly affectionate with children.
Ponce testified on his own behalf. He claimed Osuna’s relationship with Yessenia changed over time. According to Ponce, Osuna started to become increasingly frustrated and aggressive with Yessenia and sometimes hit her with a belt. On several occasions, when Yessenia wet her pants, he saw Osuna scold her and smack her on her hand or grab her arm and lead her upstairs.
Ponce testified Yessenia fell down the stairs on March 6, 2003. Afterwards, he noticed bruises on her face and later saw a bump on her head and suggested taking Yessenia to the hospital. Osuna said it was not necessary to take Yessenia to the hospital and placed ice on her head to reduce the swelling. By Saturday, March 8, Yessenia’s condition was not improving, and on Sunday, March 9, she was lethargic. Ponce and Osuna decided to take Yessenia to the hospital on Monday, March 10.
Ponce further testified: On the evening of March 9, Osuna became angry with Yessenia and pulled her upstairs by the arm. He soon heard the sound of spanking, a belt cracking, and Yessenia crying. He walked upstairs to see what was going on and saw Osuna kneeling in front of Yessenia with her hands on her upper arms jerking her back and forth and telling her she needed to say when she wanted to go “potty.” Osuna told Ponce it was just another bathroom incident and he should mind his own business.
The next morning, Osuna awakened Ponce at about 10:00 a.m. and told him she was leaving Yessenia with him rather than taking her to school. After arising shortly before noon, Ponce testified he saw Yessenia in her bedroom playing with a singing toy. She said, “‘good morning, daddy,’” but look disoriented. She did not move much while Ponce bathed her. He noticed bruises on her arms and legs. Ponce put underwear and a shirt on Yessenia and asked her to put her pajamas in the hamper. She returned to the bathroom, but left again when Ponce asked if she had hung up her towel. The next time Ponce saw Yessenia, she was on the bedroom floor, stiff and with her fists clenched. She was heaving and her eyes were fluttering. Ponce placed Yessenia under the shower and tried to revive her by performing CPR. After dialing 911 and receiving no response, he called his sister Ruth.
B. Osuna
Osuna did not testify. Yessenia’s pediatrician testified that a review of her medical records showed that she had seen Yessenia seven times between March 11, 2002 and February 6, 2003. Yessenia’s height and weight were within normal range, and her immunizations were current. The pediatrician had noted no signs of abuse.
Osuna’s sister, Leticia Osuna, and cousin, Cynthia Sands, testified to the close relationship between Osuna and Yessenia. Leticia Osuna recounted an incident in December 2002 in which Ponce called the police when she and her mother knocked at the apartment door to pick up Yessenia. After the police arrived, Osuna and Yessenia went home with Leticia Osuna. Later the same say, Ponce appeared at Leticia Osuna’s house to remove Osuna and take her back home with him. He was very upset. The police arrived. Osuna left with Ponce.
Sands testified she noticed Osuna became somewhat distant after she began seeing Ponce. Based on a brief telephone conversation with Ponce, Sands thought he was a “jerk.”
Osuna also presented testimony in support of a defense that she was a victim of battered women’s syndrome. Several office coworkers testified seeing bruises on Osuna’s upper arms, and two coworkers testified they noticed a change in Osuna’s mood starting about one month before Yessenia died. Dr. Jody Ward, a clinical and forensic psychologist, testified as an expert on battered women’s syndrome. The testimony relating to domestic abuse and battered women’s syndrome is discussed in greater detail in Part II of the section entitled “Ponce’s Appeal.”
C. Rebuttal Evidence
Dr. Trenkle testified in rebuttal to Dr. Posey’s testimony. Dr. Trenkle testified all bodies produce blood monocytes at a baseline level, so one would expect to see monocytes in a blood stain, even of uninjured tissue. Monocytes in excess of this baseline amount might indicate a response to an injury. When a monocyte is activated and enters tissue in response to injury it becomes a macrophage. Dr. Trenkle testified that Dr. Posey’s report mentioned only “baseline peripheral blood monocytes” and did not mention monocytes above baseline level that would be an indication of a reaction to an injury. Dr. Posey’s opinion was based on the presence of macrophages, which are not mentioned in the report.
Dr. Trenkle explained that the brain has its own macrophages, called microglial cells that are always present in the brain tissue. He noted that Dr. Posey’s report mentioned only blood monocytes, meaning monocytes circulating in the blood stream and not present in tissue.
In addition, Dr. Trenkle testified the human body does not produce macrophages in response to an injury according to a fixed time schedule. Dr. Posey’s report, which found macrophage in tissue samples from Yessenia, mistakenly assumed macrophages never appear until 48 hours from injury. According to Dr. Trenkle, some reports have found macrophages appearing as early as six hours and as late as 72 hours from injury. Dr. Trenkle testified no study had ever been performed of the production of macrophages in three- to four-year-old children who have sustained brain injuries and contusions at an exact point in time.
Dr. Trenkle stated the bruising along Yessenia’s upper thigh extended into the fatty tissue, where there had been significant bleeding. Significant force was required to inflict such an injury. A belt or a cord could cause such deep bruising.
Osuna’s appeal
I.
Pursuant to sections 1181(6) and 1260, We Modify the Verdict and Judgment Against Osuna to Reflect a Conviction for Involuntary Manslaughter and Reverse the Judgment
Against Her for Child Homicide.
A. Summary
The jury convicted Osuna, along with Ponce, of second degree murder and child homicide. The prosecution presented its case at trial on the theory Osuna was guilty of those crimes because she aided and abetted Ponce in commission of the crime of felony child abuse, the natural and probable consequence of which was the murder of Yessenia. The prosecution presented its case against Ponce at trial on the theory he was the perpetrator.[3] However, the trial court instructed the jury, pursuant to People v. Culuko (2000) 78 Cal.App.4th 307, 329-330 (Culuko), that it could convict both Osuna and Ponce of murder and child homicide without deciding who was the perpetrator.
We have carefully and thoroughly reviewed the evidence and conclude it was insufficient to support Osuna’s conviction for second degree murder and child homicide either as a perpetrator or as an aider and abettor. As we shall explain, the evidence was sufficient to hold her liable for involuntary manslaughter as a lesser included offense of murder. The evidence was insufficient to hold Osuna liable for child homicide or its lesser included offenses of simple assault or assault by means of force likely to produce great bodily injury.
Accordingly, pursuant to our authority under Penal Code sections 1181(6) and 1260, we shall modify the verdict and judgment as to Osuna to reflect her conviction on count 1 for the lesser included offense of involuntary manslaughter and reverse her conviction on count 2 for child homicide.[4]
B.
The Appellate Court’s Authority Under Sections 1181(6) and 1260 to Modify the Judgment
Pursuant to Penal Code section 1181(6), an appellate court may modify the verdict or judgment to a lesser included offense without ordering a new trial “if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein.” An appellate court thus may reduce a conviction to a lesser included offense if the evidence supports the lesser included offense but not offense for which the defendant was convicted. (People v. Howard (2002) 100 Cal.App.4th 94, 99.) “The purpose for allowing an appellate court to modify the judgment to a lesser included offense is to ‘obviate the necessity of a new trial when the insufficiency of the evidence only goes to the degree of the crime.’ [Citation.]” (People v. Matian (1995) 35 Cal.App.4th 480, 487.)
In People v. Bechler (1998) 61 Cal.App.4th 373, 378-379, the Court of Appeal concluded the evidence was insufficient to support the defendant’s conviction for assault with a firearm on a firefighter. Pursuant to section 1181(6), the Court of Appeal modified the judgment to reflect a conviction for the lesser and necessarily included offense of assault with a firearm. (Id. at p. 378-379; see also People v. Martinez (1999) 20 Cal.4th 225, 241 [“Although we must reverse the kidnapping count, section 1181[] (6), authorizes us to reduce the conviction to the lesser included offense of attempted kidnapping of a person under the age of 14”].)
Section 1260 similarly grants an appellate court the authority to “reduce the degree of the offense or attempted offense or the punishment imposed.” Thus, “[u]nder section 1260, a reviewing court is not restricted to the remedies of affirming or reversing a judgment of conviction.” (People. v. Muszynski (2002) 100 Cal.App.4th 672, 683; see also People v. Rivera (2003) 114 Cal.App.4th 872, 879 [“Appellate courts are authorized to ‘reduce the degree of the offense’”].) “‘Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial. [Citations.]’ [Citation.]” (People v. Edwards (1985) 39 Cal.3d 107, 118.)
C.
The Evidence Was Insufficient to Support Osuna’s Conviction For Second Degree Murder and Child Homicide Either as a Perpetrator or as an Aider and Abettor.
Through trial, as presented by the prosecution, and the briefing on appeal, the parties have argued only whether Osuna could be liable as an aider and abettor. Her possible liability as a perpetrator was not mentioned until Ponce raised the issue in his supplemental brief. He argued: “Osuna is operating from the faulty premise that the jury perceived her as an aider an abettor and not [Ponce], and that it was [Ponce] who inflicted all abuse on Yessenia, which apparently some members of this Court are contemplating, if not adopting. However, neither Osuna nor this Court can speculate in such fashion.” The Attorney General’s supplemental brief also urges us to “not indulge in the fact finding required to determine who was the perpetrator and who was the aider and abettor. . . .” Because “[t]he jury was instructed it need not make those determinations,” the Attorney General argues, “this court should refrain from doing so.” (Fn. omitted.)
We agree with Ponce that, in light of the Culuko instruction given to the jury, we cannot presume the jury convicted Osuna as an aider and abettor rather a perpetrator.[5] Notwithstanding the prosecutor’s closing argument and the trial judge’s conclusion at sentencing that Osuna did not inflict the fatal blows, the jury was told it did not have to decide who was the perpetrator and returned a verdict of guilty without expressly making that determination.
For that reason, we must address the issue whether substantial evidence supported Osuna’s conviction of second degree murder under the theory that Osuna was the perpetrator—that she inflicted the blunt force trauma that killed Yessenia. As both Osuna and the Attorney General have argued only whether Osuna could be liable under an aider and abettor theory, the argument that the evidence supports her liability as a perpetrator comes from Ponce’s supplemental brief.
1. Evidence of Osuna’s Liability as a Perpetrator
Ponce posits that Osuna inflicted the blunt force trauma that caused Yessenia’s death during the evening of Sunday, March 9, 2003. He argues the evidence supporting a finding that Osuna was the perpetrator was the following:
1. Ponce testified that on the evening of March 9, Osuna became angry with Yessenia and pulled her upstairs by the arm. He soon heard the sound of spanking, a belt cracking, and Yessenia crying. Ponce denied ever abusing Yessenia.
2. Ponce’s expert, Dr. Posey, applied four types of stains or preparations to tissue samples taken from Yessenia and observed the presence of “macrophages,” which appear during the healing process to remove iron and debris following an injury. Based the presence of macrophages, Dr. Posey opined that Yessenia’s brain injuries occurred between 48 and 72 hours before she was pronounced brain dead and could not have occurred around the time of the 911 call on March 10. Dr. Posey testified a person could have a lucid interval after suffering a head trauma, and, therefore, if Yessenia had suffered the head injuries on the night of March 9, it would have been possible for her to walk, talk, and act the next morning. The injuries to Yessenia’s ear and bruises to her legs and arms were, in Dr. Posey’s opinion, 72 hours to five days old. Dr. Posey testified the drop in Yessenia’s hemoglobin, a factor in Dr. Trenkle’s opinion the head injuries occurred on March 10, was due to the dilution of blood with fluids given intravenously to Yessenia at the hospital.
3. Sands testified that when she spoke with Yessenia by telephone at about 9:30 or 10:00 p.m. on March 9, 2003 she seemed normal. According to Ponce, “[t]his left a window of between a little after 9:30 or 10:00 p.m. up until Osuna left for work the next morning at 10:00 a.m. for Yessenia to have sustained fatal injuries.”
4. Osuna told a variety of lies to her coworkers about how Yessenia had been injured the week before her death. Osuna kept Yessenia home from school on March 5, 6, 7, and 10, made excuses why Yessenia could not visit Garcia on March 8 and 9, and failed to seek medical treatment for Yessenia. Those actions, Ponce argues, are “equally consistent with an inference of consciousness of guilt as opposed to an inference of ‘protecting [Ponce],’ as Osuna has asserted.”
5. There is no evidence in the record to support the assertion that Ponce, rather than Osuna, was the one who physical abused Yessenia before her death. Ponce argues, “it is unknown who was harming Yessenia, and it could just [as] easily have been Osuna.”
Is this evidence sufficient to support the verdict against Osuna under the theory she was the perpetrator‌
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] ‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
A rational trier of fact could not find Osuna guilty as a perpetrator under the evidence presented at trial. Ponce’s testimony that on the evening of March 9 he heard the sound of Osuna spanking Yessenia and of a belt cracking did not explain the blunt force trauma to the head that caused Yessenia’s death. In addition, had the jury believed Ponce’s testimony, it would have acquitted him. Ponce’s testimony, indeed his entire defense, was inconsistent with his liability either as a perpetrator or as an aider and abettor.
Osuna’s conduct the week before Yessenia died, her lies to her coworkers, her excuses for not letting Yessenia visit Garcia, and her failure to seek medical treatment for Yessenia could be interpreted as attempts to protect Ponce or as evidence of her own consciousness of guilt. That evidence was susceptible of either inference.
Dr. Posey’s testimony was not of solid value. Although we cannot substitute our evaluation of a witness’s credibility for that of the jury, we equally cannot allow a conviction to stand on testimony of such questionable value as that of Dr. Posey. His three-page, bare-bones report did not indicate which slides tested negative and which slides tested positive. Dr. Posey did not look at the slides himself; instead, his associate Dr. Atkinson conducted the tests and, apparently, prepared the report. Dr. Atkinson did not testify.
Portions of the report quoted in the record at trial indicated the tests for all stains and preparations were negative and “‘[t]he CD 68 stain showed only baseline peripheral blood Monocyte reactivity and neutrophil cross-reactivity.’” Dr. Posey, in contrast, testified the CD68 stain tested positive for macrophages. As Dr. Trenkle testified, Dr. Posey’s report mentioned only the presence of “baseline peripheral blood monocytes,” did not mention monocytes above baseline level that would be an indication of a reaction to an injury, and did not mention the presence of macrophages. Dr. Trenkle explained that all bodies produce blood monocytes at a baseline level, so one would expect to see monocytes in a blood stain, even of uninjured tissue. When a monocyte is activated and enters tissue in response to injury it becomes a macrophage. Monocytes in excess of this baseline amount might indicate a response to an injury. The report referred only to blood monocytes, meaning monocytes in the blood vessels, and therefore, according to Dr. Trenkle, would not include the brain’s own macrophages that are always present in brain tissue.
Dr. Posey’s conclusion that Yessenia had been injured 48 hours to five days before she was pronounced brain dead was based on his testimony that the CD68 preparation of tissue samples showed the presence of macrophages. But Dr. Posey’s report did not mention macrophages, referred only to baseline peripheral blood monocytes, concluded all stains are preparations were negative, and did not mention macrophages existing in brain tissue.
Further, Dr. Trenkle testified that Dr. Posey’s theory was “quite novel” and he knew of only two forensic pathologists and neurologists—Dr. Posey and the cosigner of his report, Dr. Atkinson—who believe that time of death could be determined based on the presence of monocytes and macrophages.
Dr. Trenkle also testified that the human body does not produce monocytes in response to an injury according to a fixed time schedule. Dr. Posey’s report, which found macrophage in tissue samples from Yessenia, mistakenly assumed macrophages never appear until 48 hours from injury. According to Dr. Trenkle, some reports have found macrophages appearing as early as six hours and as late as 72 hours from injury. Dr. Trenkle testified no study had ever been performed of the production of macrophages in three- to four-year-old children who have sustained brain injuries and contusions at an exact point in time.
Expert testimony that is at odds with the expert’s own report, that is based on tests the expert did not conduct and which do not support the expert’s conclusion, and that is based on a novel theory, is not of reasonably solid value in itself to support a murder conviction. Outside of Dr. Posey’s testimony, there was no evidence directly linking Osuna as a perpetrator to Yessenia’s death. As mentioned, Ponce’s testimony does not account for blunt force trauma to the head and was disbelieved by the jury, and the remaining evidence Ponce cites is subject to competing inferences. In sum total, the evidence was insufficient to support a murder conviction against Osuna under the theory she was the perpetrator.
In his opening and reply briefs, Ponce did not argue the evidence was insufficient to support his conviction for second degree murder and child homicide. But in his supplemental briefs, Ponce argues that if we reduce Osuna’s convictions to lesser included offenses, we must do the same for him because the evidence that he was the perpetrator is no stronger. He contends the only evidence favoring Osuna was that she was not at home when the 911 call was made on March 10 and her medical experts opined the blunt force trauma was inflicted at about the time of that 911 call.
There is, however, a qualitative and quantitative difference between the evidence of Osuna’s guilt as a perpetrator and Ponce’s guilt as a perpetrator. Ponce did have sole custody of Yessenia on the morning of March 10 when the 911 call was made. The significance of that fact cannot be ignored or brushed away with unsatisfactory expert testimony. The treating physician, Dr. Sheridan-Matley, and the autopsy physician, Dr. Trenkle, both testified the blunt force trauma inflicted on Yessenia was so severe that is would have been immediately symptomatic and must have occurred on the morning of March 10. Dr. Sheridan-Matley, unlike Dr. Posey, treated Yessenia at the hospital and extensively examined her body after she died. Dr. Trenkle, unlike Dr. Posey, conducted a thorough autopsy of Yessenia. Neither Dr. Sheridan-Matley nor Dr. Trenkle testified inconsistently with his or her own report. Their testimony was rock solid.
Ponce told police officers that Yessenia had fallen off of a boom box after taking a bath. But the carpet at the foot of the bed, the spot where, according to Ponce, Yessenia had fallen, was not wet. No wet towels were found in the apartment. The bathroom floor was wet and there was a wet spot on the carpet in a hallway. A hair was found on the wall two feet and eight inches above the wet spot in the hallway. This evidence supported an inference that after removing Yessenia from the bathtub, Ponce banged her head against the wall in the hallway.
Ponce told the police officers on March 10 that Yessenia, despite her injuries from the week before her death, was acting normally and he “didn’t see like nothing wrong with her, like talking wrong, talking different or acting different.” Dr. Posey, who testified at trial before Ponce, testified that “we know that [Yessenia] woke up in the morning later than normal and didn’t seem to be functioning as usual, so that’s kind of an indicator that . . . something had happened.” Dr. Posey testified it would be unlikely that a child who suffered the injuries suffered by Yessenia one evening would behave normally the next morning. When Ponce testified at trial, after Dr. Posey testified, he changed his story: Ponce testified that on the morning of March 10, Yessenia appeared groggy and disoriented and was not completely coherent.
Yessenia’s pediatrician testified she had seen Yessenia seven times between March 11, 2002 and February 6, 2003 and had noted no signs of abuse. Although this testimony does not negate the possibility that Osuna abused Yessenia after February 6, 2003, it marks the onset of the abuse to that date, by which time Osuna and Ponce were living together with Yessenia. In other words, there was no evidence Yessenia was abused before she began living with Ponce.
Thus, the evidence that Ponce was the perpetrator was sufficiently strong to support his conviction for second degree murder. He is not entitled to the same modification under sections 1181(6) and 1260 as is Osuna.
2. Osuna’s Liability as an Aider and Abettor
The evidence also was insufficient to support Osuna’s conviction for second degree murder under the theory she aided and abetted Ponce in committing the crime of felony child abuse, the natural and probable consequence of which was murder. As we shall explain, the evidence was insufficient to show that she knew of Ponce’s criminal purpose and that she left Yessenia with Ponce on the morning of March 10 with the intent to encourage or facilitate him in physically abusing her.
Under the natural and probable consequences doctrine, a person who knowingly aids and abets criminal conduct is not only guilty of the intended offense (called the target crime), but also of any other crime the perpetrator actually commits (called the nontarget offense) that is the natural and probable consequence of the target crime. (People v. Medina (2009) 46 Cal.4th 913, 920.)
In this case, the nontarget offenses were murder and child homicide, and the (uncharged) target offense was felony child abuse under section 273a, subdivision (a) (section 273a(a)). The trial court instructed the jury on the elements of felony child abuse as an uncharged crime. The court also instructed on liability under the natural and probable consequences doctrine: “In order to find a defendant guilty of the crime of murder and/or the crime of assault on a child under 8 resulting in death, as a natural and probable consequence of perpetrating or aiding and abetting the crime of felony child abuse, you must be satisfied beyond a reasonable doubt that: [¶] 1) The crime of felony child abuse was committed; [¶] 2) The defendant perpetrated or aided and abetted the crime of felony child abuse; [¶] 3) A principal in the crime of felony child abuse committed the crime of murder and/or the crime of assault on a child under 8 resulting in death; and [¶] 4) The crime of murder and/or the crime of assault on a child under 8 resulting in death was a natural and probable consequence of the commission of the crime of felony child abuse.”
“An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” (People v. Avila (2006) 38 Cal.4th 491, 564.) A person aids and abets the commission of a crime when that person (1) “‘with knowledge of the criminal purpose of the perpetrator,’” and (2) with the “‘intent or purpose of either committing, or of encouraging or facilitating commission of, the offense,’” (3) “‘by act or advice aids, promotes, encourages, or instigates the commission of the crime.’” (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. Cooper (1991) 53 Cal.3d 1158, 1164.) “‘Liability as an aider and abettor requires knowledge that the perpetrator intends to commit a criminal act together with the intent to encourage or facilitate such act. . . .” (People v. Richardson (2008) 43 Cal.4th 959, 1021.)
Felony child abuse under section 273a(a) falls in to four categories of conduct. (People v. Valdez (2002) 27 Cal.4th 778, 783 (Valdez).) Section 273a(a) provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in such situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.” (Internal numbering added.) The crime of felony child abuse can be committed by active conduct, that is, by direct infliction of injury, or by passive conduct, that is, indirect infliction of injury such as neglect or child endangerment. (People v. Sargent (1999) 19 Cal.4th 1206, 1215-1216.)
Osuna could be liable for murder under an aiding and abetting theory only if she knew of Ponce’s criminal purpose and left Yessenia with Ponce on the morning of March 10, 2003 with the intent of encouraging or facilitating his commission of felony child abuse. The evidence did not support such an inference. Although Osuna knew Ponce had inflicted severe harm on Yessenia, the evidence did not support the conclusion that Osuna left Yessenia with Ponce on the morning of March 10 knowing he intended to abuse Yessenia and intending to encourage or facilitate his abuse. As we explain in the next section, Osuna acted with criminal negligence by leaving Yessenia with Ponce, not with the intent that he abuse her.
D.
The Evidence Was Sufficient to Establish Liability Against Osuna for Involuntary Manslaughter.
1. Liability Under Count 1
Although the evidence was insufficient to support the conviction against Osuna for murder as an aider and abettor, the evidence was sufficient to support liability as a perpetrator for involuntary manslaughter, a lesser included offense of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422.)
Involuntary manslaughter is the unlawful killing of a human being, without malice aforethought. (§ 192, subd. (b).) Involuntary manslaughter may be committed in any of three forms. “Involuntary manslaughter based on the predicate act of a misdemeanor or a lawful act is statutorily defined in Penal Code section 192, subdivision (b), which states the offense is a (1) killing ‘in the commission of an unlawful act, not amounting to a felony,’ or (2) a killing ‘in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’” (People v. Butler (2010) 187 Cal.App.4th 998, 1006-1007.) Third, involuntary manslaughter can also be committed when a noninherently dangerous felony is committed without due caution and circumspection. (People v. Burroughs (1984) 35 Cal.3d 824, 835; People v. Huynh (2002) 99 Cal.App.4th 662, 679.) Criminal negligence is the governing mens rea for all three forms of involuntary manslaughter. (People v. Butler, supra, 187 Cal.App.4th at p. 1007.)
Osuna committed the third form of involuntary manslaughter. Cases have uniformly held that felony child abuse is not an inherently dangerous felony. (Culuko, supra, 78 Cal.App.4th at pp. 321-322; People v. Lee (1991) 234 Cal.App.3d 1214, 1220-1229 (Lee); People v. Caffero (1989) 207 Cal.App.3d 678, 682-684 (Caffero).)[6] The felony child endangerment prong of section 273a—“‘willfully causes or permits that child to be placed in a situation where his or her person or health is endangered’”—is subject to a criminal negligence standard. (Valdez, supra, 27 Cal.4th at pp. 787-788.) We agree that such passive felony child abuse is a noninherently dangerous felony.
Passive felony child abuse arises when the defendant “willfully causes or permits that child to be placed in a situation where his or her person or health is endangered.” (§ 273a(a).) The appropriate mens rea for felony child endangerment involving indirect infliction of harm under section 273a(a) is criminal negligence.[7] (Valdez, supra, 27 Cal.4th at pp. 781, 787-789.)
“‘[C]riminal negligence’” exists when the defendant engages in conduct that is “‘aggravated, culpable, gross, or reckless,’” i.e., conduct that is “‘such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.’” (People v. Penny (1955) 44 Cal.2d 861, 879.)
By leaving Yessenia with Ponce on the morning of March 10, Osuna placed Yessenia in a situation where her life was endangered. Osuna knew Ponce had severely injured Yessenia in the past and, if left alone with her, might do so again, or might kill her. The jury could find, based on the evidence, that Ponce severely abused Yessenia the week before she died. Osuna did not take Yessenia to school, did not let Gloria or Garcia see her, and lied to her coworkers about the cause of Yessenia’s injuries. The autopsy revealed severe bruising and injuries all over Yessenia’s body in various stages of healing. One severe episode of beating was enough to put Osuna on notice. Nonetheless, disregarding Yessenia’s life or indifferent to the consequences of her actions, Osuna placed Yessenia directly in danger. Osuna’s criminal negligence in leaving Yessenia with Ponce led directly to Ponce killing her.
Osuna, acting with criminal negligence, committed passive felony child abuse without due caution and circumspection, resulting in Yessenia being killed. Osuna therefore is guilty under count 1 of involuntary manslaughter.
Because we conclude Osuna is guilty of involuntary manslaughter as a perpetrator, and is not liable under and aiding and abetting theory for second degree murder, we do not address Osuna’s argument the evidence was insufficient to support liability against her for Yessenia’s death under the natural and probable consequences doctrine.[8]
2. Liability Under Count 2
Assault by means of force likely to produce great bodily injury under section 245 subdivision (a)(1) is a lesser included offense of child homicide under section 273ab. (People v. Basuta (2001) 94 Cal.App.4th 370, 392.) Assault, including assault by means of force likely to produce great bodily injury is a general intent crime. (People v. Hood (1969) 1 Cal.3d 444, 457-458; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1193-1194; People v. Covino (1980) 100 Cal.App.3d 660, 669; People v. Martinez (1973) 31 Cal.App.3d 355, 359.) Assault thus requires “an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790.)
As we have concluded, Osuna acted with criminal negligence by leaving Yessenia with Ponce on March 10, and, therefore, she did not have the requisite mental state of general intent to be convicted of assault. Because the evidence did not support Osuna’s conviction for child homicide under section 273ab, or its lesser included offenses of assault and assault by means of force likely to cause great bodily injury, we reverse the conviction on count 2.
II.
Ineffective Assistance of Counsel
As ground for complete reversal of the judgment, Osuna contends her trial counsel was ineffective when she failed to object to a portion of a videotape of Ponce’s police interview in which Ponce stated that Osuna was under investigation by child protective services for child abuse at the time Yessenia died. We conclude counsel’s representation, if deficient, did not subject Osuna to prejudice.
At trial, the prosecution played for the jury a videotape of Ponce’s police interview conducted on March 10, the day Yessenia was taken to the hospital. During the interview, Ponce told the police that Osuna had been questioned by a child protective services worker about bruises on Yessenia’s buttocks, that Osuna was “going through that right now with Social Services,” that Osuna told the Social Services worker that she spanked Yessenia occasionally, that Osuna had begun disciplining Yessenia with a belt in October or November, and that Osuna had a case with Child Protective Services for child abuse. Ponce told the police he did not want to question Yessenia’s injuries while Osuna was involved in a child abuse case. Osuna’s counsel posed no objections.
No evidence was presented at trial showing Osuna was the subject of a child protective services investigation. During pretrial proceedings, Ponce’s counsel obtained an order to have Yessenia’s juvenile court records transferred to the trial court and reviewed in camera. The trial court reviewed the juvenile court records and advised the parties it found nothing discoverable. As we will explain in part I of the section entitled “Ponce’s Appeal,” we have reviewed Yessenia’s juvenile court records and conclude the trial court did not err in finding those records contained nothing that was discoverable.
To prevail on a claim of ineffective assistance of counsel, the defendant must prove (1) his or her attorney’s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his or her attorney’s deficient representation subjected him or her to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice necessary to establish ineffective assistance of counsel means a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694; People v. Salcido (2008) 44 Cal.4th 93, 170.) A reasonable probability means a “probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.)
We turn directly to the second prong. “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697; accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)
To be sure, as Osuna argues, Ponce’s counsel mentioned the interview and child protective services involvement at several points in closing argument. But both Osuna’s counsel and the prosecutor emphasized to the jury in closing argument there was no evidence of an investigation by child protective services. Osuna’s counsel stated in closing argument: “If there was any CPS [Child Protective Services] previous child abuse, you would have heard it. You better believe. We all have the same subpoena power. You would have heard it.