P. v. Tang















Filed 1/10/13 P. v. Tang
CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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






>

THE PEOPLE, Plaintiff and Respondent, v. NORA TANG, Defendant and Appellant.

E054572 (Super.Ct.No. RIF152165) OPINION

APPEAL from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Harry A.
Staley, Judge. (Retired judge of the
Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Gail Ganaja, under appointment by
the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys
General, for Plaintiff and Respondent.

A jury found defendant guilty of (1)
willfully causing or permitting a child to suffer under conditions likely to
produce great bodily harm or death, inflicting unjustifiable pain or mental
suffering upon a child, or willfully causing or permitting a child to be placed
in a situation where her person or health is endangered (Pen. Code,
§ 273a, subd. (a));href="#_ftn1"
name="_ftnref1" title="">^[1] and (2) willfully inflicting
upon a child cruel or inhuman corporal punishment or an injury resulting in a
traumatic condition (§ 273d, subd. (a)).
As to both counts, the jury found true the allegations defendant
inflicted great bodily injury on a child under the age of five years old. (§§ 12022.7, subd. (d), 1192.7, subd.
(c)(8).) The trial court suspended a
prison sentence of four years, and granted defendant probation with the
condition she be committed to the Riverside County Sheriff’s Department for 360
days. The trial court struck the
punishments for the great bodily injury enhancements. (§ 1385.)
Defendant contends the trial court erred by incorrectly instructing the
jury on the great bodily injury enhancements.
(CALCRIM No. 3162.) We affirm the
judgment.

>FACTUAL AND PROCEDURAL
HISTORY

Defendant gave birth to the victim,
who is female, in December 2007. The
victim was born healthy and was developing normally. On October 26, 2008,
when the victim was less than one year old, City of Riverside Police Detective Stephen Pounds was summoned to Loma Linda University Hospital for a possible case of child abuse involving the victim. At the hospital, Detective Pounds spoke to
defendant. Defendant told the detective
that doctors at Parkview Hospital, where the victim was initially taken, had determined the victim’s
brain was bleeding.

When speaking to Detective Pounds,
defendant said she shook the bed the victim was lying on because she was trying
to change the victim’s diaper, and the victim was fidgeting and moving
around. Defendant also admitted taking
“ahold of the [victim] by the hips and upper thighs while the [victim] was
laying [on her back] on the bed, and shaking the [victim] up and down.” Defendant said she shook the victim to make
her calm down for the diaper change, and that she felt frustrated by the victim
fidgeting and moving around. The shaking
incident occurred during the daytime on Thursday, October 23. Defendant admitted the shaking may have been
severe enough to harm the victim.

Defendant said that “around noon”
on October 25, she noticed the victim crying, throwing her head back, her eyes
rolling “up and to the right,” her right arm becoming rigid, and her fist
shaking. The victim never fully awoke on
October 25, and intermittently continued to suffer the foregoing symptoms
throughout the day. The victim had never
suffered such problems in the past.
Although defendant felt she should take the victim to the hospital on October
25, she chose not to because she did not know where the hospital was located
and there was no one else available to watch her roommate’s children.

The victim fell asleep around noon
on October 25, and by 2:00
a.m. on October 26 she had not awoken. Defendant took the victim to the hospital
around 2:00 a.m. on Sunday, October 26, when the victim began screaming louder than
usual while still asleep. Defendant told
a forensic pediatrician at Loma Linda University Hospital that she became frustrated with the victim during a diaper change
and shook the victim by the hips.

The victim suffered bleeding on her
brain, eyes, and spinal area, as well as a “pretty extensive brain
injury.” Due to the brain injury the
victim suffers from spastic cerebral palsy, which will cause “[s]peech delays,
visual, [and] perhaps learning problems.”
It is also possible the victim will have trouble walking.

During trial, the court took a
recess to discuss the jury instructions.
Thus, the conversation is not included in the record. On the record, the trial court said, “We’ve
gone over instructions, and aside from any objections—which I don’t recall any
at the moment—but the objections—the instructions are to be read without
objection, unless there’s some further objection.” Defense counsel asked a question about the
verdict forms, which the trial court answered, and then the jury was brought
into the courtroom.

The trial court instructed the jury
with CALCRIM No. 3162 as follows: “If
you find the defendant guilty of the crime charged in Count 1, child abuse
likely to cause great bodily harm, in violation of . . . section 273a(a) and or
in Count 2, inflicting on a child injury that caused a traumatic condition in
violation of . . . section 273d(a), then you must decide whether, for each
crime, the People have proved the additional allegation that the defendant
personally inflicted great bodily injury on someone under the age of five
years. You must decide whether the
People have proved this allegation for each crime and return a separate finding
for each crime.

“To prove this allegation, the
People must prove that: [¶] 1. The
defendant personally inflicted great bodily injury on [the victim] during the
commission of the crime, and this includes a failure to act where action is
required; and [¶] 2. That at the time [the victim] was under the age of five
years.

“Great bodily injury means
significant or substantial physical
injury. It is an injury that is
greater than minor or moderate harm. The
People have a burden of proving each element beyond a reasonable doubt. If the People have not met this burden, you
must find that the allegation has not been proved.”

As to both counts, the jury found
true the allegations defendant inflicted great bodily injury on the
victim. (§§ 12022.7, subd. (d), 1192.7,
subd. (c)(8).) However, during
sentencing, the trial court struck the punishment for both great bodily injury
enhancements “in the interest of justice, per . . . Section 1385.” href="#_ftn2" name="_ftnref2" title="">^[2]

>DISCUSSION

Defendant contends the trial court
erred by instructing the jury that it could find defendant personally inflicted
great bodily harm by failing to act. The
People contend (1) defendant forfeited the instruction issue by not raising it
below; (2) the trial court properly instructed the jury; and (3) if the trial
court erred, then the error was harmless.
We agree the trial court did not err, but if it did then the error was
harmless.

In regard to forfeiture, we will
assume defendant has not forfeited the instructional issue on appeal because
(1) it is unclear if an objection was raised during the off-the-record
discussion, and the trial court directed the lawyers not to object during the
reading of the instructions, and (2) the alleged error concerns a description
of how the enhancement may be committed.
A defendant has a right to correct instructions on the elements of an
offense, and an appellate court may review an alleged instructional error on
appeal even if the defendant failed to raise an objection at the trial
court. (People v. Prieto (2003) 30 Cal.4th 226, 268; § 1259.) Thus, we will address the merits of
defendant’s contention.

We now turn to the alleged
instructional error. “‘Errors in jury
instructions are questions of law, which we review de novo.’ [Citation.]”
(People v. Fenderson (2010)
188 Cal.App.4th 625, 642.) In >People v. Warwick (2010) 182 Cal.App.4th
788, 793, the appellate court considered whether “the meaning of ‘personally
inflicts’ requires a ‘personal and direct application of force,” or whether it
can include injuries that result from “‘a passive failure to act.’” The appellate court concluded section
12022.7, subdivision (d), could be violated by failing “to act where action is
required.” (Warwick, at p. 795.)

The >Warwick court analyzed a variety of cases and concluded none of them
precluded a failure to act from falling within the definition of personally
inflicting great bodily harm. For
example, in People v. Cross (2008) 45
Cal.4th 58, our Supreme Court concluded the great bodily injury enhancement was
supported by a pregnancy resulting from “unlawful but nonforcible sexual
conduct.” (Id. at p. 64.) The Supreme
Court wrote, “[B]ased solely on evidence of the pregnancy, the jury could
reasonably have found that 13-year-old K. suffered a significant or substantial
physical injury.” (Id. at p. 66.) The >Warwick court interpreted Cross
as supporting the view that a defendant need not inflict force upon the victim
in order for the great bodily injury enhancement to be found true. (People
v. Warwick, supra, 182
Cal.App.4th at p. 794.)

We agree with the >Warwick court’s analysis of the case law, and conclude a failure to act
where action is required can form the basis for a violation of section 12022.7,
subdivision (d). Thus, we conclude the
trial court did not err in its instruction to the jury.

Defendant asserts the >Warwick court’s comments on a “failure to act” are merely dicta, and thus
the trial court erred by including the “failure to act” information in the jury
instruction because that portion of the >Warwick opinion is not law.
Assuming, for the sake of judicial efficiency, that defendant is
correct, we find the error to be harmless.
In determining whether the assumed error was harmless, we must examine
the record to discover whether we can conclude beyond a reasonable doubt that
the element at issue is supported by overwhelming evidence. (People
v. Mil (2012) 53 Cal.4th 400, 417.)

When speaking to Detective Pounds,
defendant said she took “ahold of the [victim] by the hips and upper thighs
while the [victim] was laying [on her back] on the bed, and sh[ook] the
[victim] up and down.” Defendant said
she shook the victim to make her calm down for a diaper change, and that she
felt frustrated by the victim fidgeting and moving around. Defendant admitted the shaking may have been
severe enough to harm the victim. The
victim told a forensic pediatrician at Loma Linda University Hospital that she
became frustrated with the victim during a diaper change and shook the victim
by the hips.

The forensic pediatrician concluded
the victim’s injuries were intentionally inflicted due to the severity of the
injuries and the fact that “there is no other explanation for them,” such as
spontaneous bleeding or a car accident.
The forensic pediatrician was asked whether the delay in treatment
caused the victim’s injuries to be more severe.
The pediatrician responded, “[I]t’s a difficult question to answer,
because [the victim] did not get timely medical treatment. So we don’t really know what exactly we could
have prevented”; however, the doctor felt the lack of immediate medical
attention “likely contributed to a worse outcome.”

The defense presented the testimony
of Dr. John Goldenring, who stated the victim suffered from shaken baby
syndrome. Dr. Goldenring concluded
defendant’s account of shaking the victim could not have caused the victim’s
injuries because defendant did not lift the victim off the bed when shaking
her. Dr. Goldenring believed the victim’s
head would have needed to be lifted off the changing area during the shaking to
cause the “rotation force” type injuries sustained by the victim. During closing argument, defendant’s trial
counsel asserted defendant “didn’t harm her baby.” Defense counsel argued two other people may
have shaken the victim.

Any error in the instruction was
harmless because defendant affirmatively acted to cause the victim’s severe
injuries. The evidence reflects
defendant twice admitted shaking the victim and that the shaking alone could
have caused serious injuries. Further,
defendant’s witness concluded the victim suffered from shaken baby syndrome and
defendant admitted her act of shaking the victim could have been enough to
cause severe injuries. Thus, the injuries
inflicted by defendant were not merely the result of a “failure to act,”
rather, they were the result of defendant shaking the victim. We conclude beyond a reasonable doubt the
evidence of defendant’s affirmative act of shaking the victim is overwhelming
such that a contrary finding could not be found. In sum, the assumed instructional error on
the part of the trial court is harmless.

Defendant contends the error is not
harmless because the evidence did not “unquestioningly establish that [defendant]
was the only person who could have personally inflicted the injuries, or that
injuries had to [have] been inflicted
on October 25, 2008.” We find
defendant’s argument to be unpersuasive because we are focused on an
enhancement. The jury found defendant
guilty of child abuse likely to produce great bodily harm (§ 273a, subd. (a)),
and inflicting physical punishment on a child (§ 273d, subd. (a)). Thus, to the extent another person may have
also been involved in abusing the victim, the evidence cited >ante, overwhelming supports the
conclusion defendant’s acts caused the victim great bodily harm.

>DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS



MILLER

J.





We concur:





RAMIREZ

P.
J.





KING

J.