P. v. Ward
Filed 4/25/13 P. v. Ward CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
JAMES V. WARD,
Defendant and
Appellant.
2d Crim. No.
B231332
(Super. Ct.
No. SA066108)
(Los
Angeles County)
James V. Ward appeals the
judgment following his conviction for first degree felony murder while engaged
in the commission of sexual penetration (rape by instrument) (Pen. Code, §§
187, subd. (a), 289),
name="_ftnref1" title="">
assault on a child causing death
(§ 273ab), and child abuse
(§ 273a, subd. (a)). The jury found
to be true a special circumstance allegation that the murder was committed
during the commission of a rape by instrument.
(§§ 190.2, subd. (a)(17)(K), 289.)
Ward was sentenced to life without possibility of parole for the murder,
plus a consecutive three-year term for child abuse and four-year term for
Ward contends there was
murder conviction or finding on the special circumstance allegation, and
admission of surrogate medical testimony violated his Sixth Amendment
erred by admitting evidence of criminal
disposition, failing to give a unanimity instruction, and failing to
instruct the jury on lesser included offenses to first degree murder. He also claims ineffective assistance of
counsel. We affirm.
FACTS
On September 7, 2007, Ward lived with his wife
Deshawn Ward, and three children: his
wife's six-year-old son J. and two-year-old daughter K., and her and Ward's
infant son J.W. At approximately 5:00 a.m., Mrs. Ward awoke and left for
work. Later that morning, Ward walked J.
to school accompanied by K. and J.W. At 1:00 p.m., Ward telephoned his wife and
reported that K. and J.W. were sleeping.
Shortly thereafter, Ward telephoned his wife and told her K. would not
wake up. At his wife's direction, Ward
called 911. Police reached the home at
2:05 p.m. K. was lying on the
floor. An officer could not find a pulse
and began performing CPR. Paramedics
arrived two or three minutes after the police.
K. was taken to a hospital
where she was treated by emergency room physician Sharonda Covington. Dr. Covington restarted K.'s heart and placed
her on a ventilator. Dr. Covington's
examination revealed that K.'s abdomen was large and rigid, and her rectum was
prolapsed. Dr. Covington also noticed
that K.'s vaginal opening was larger than would be expected in a two year old
and she did not see a hymen. Dr.
Covington concluded that K.'s injuries were the result of trauma and reported
to the police that K. had been abused.
K. was sent to another
hospital for surgery. Pediatric surgeon Roman Sydorak concluded
that K. had visible signs of abuse and was critically ill and near death. He reviewed CT scans showing a severe injury
to her brain, a perforation of her abdomen, and severe liver damage. During the ensuing surgery, Dr. Sydorak saw
an almost split liver, two holes in her intestines, and other
been sustained within one to six hours before the operation. K. was removed from the ventilator, and died
on September 9, 2007.
On September 11 and 12, Los
Angeles County Deputy Medical Examiner David Whiteman performed an autopsy of
K. Dr. Whiteman found tearing and
bruising of her liver, pancreas and intestines, as well as fractures in her rib
cage and injuries to her head, neck and spinal cord. He also found lesions just outside of her
hymen and around her anal area, and bruises on the inside of the rectum. Dr. Whiteman opined that the cause of death
was multiple traumatic
injuries, including injuries to her abdomen, rib cage, and head.
In order to determine the age
of K.'s injuries, Dr. Whiteman performed a microscopic examination of the soft
tissue injuries, and took X-rays of the bone injuries. Dr. Whiteman testified that injuries begin to
heal immediately after their infliction, but that healing would have been very
slight during the period of time K. was on a ventilator. Dr. Whiteman concluded that most of K.'s
injuries, including bruises inside her rectum, occurred between six and 12
hours before K. was placed on a ventilator at the hospital.
Dr. Astrid Heger participated
in the autopsy to assist in determining whether there had been injuries to K.'s
anus and vagina. Dr. Heger testified
that acute trauma extended around and across the base of her hymen and in her
rectum. She concluded that the injuries
to K.'s hymen were "fairly recent," and that K. had been penetrated
at least once in the anus and at least once in the vagina. Dr. Heger could not determine what object
made the penetrations.
DISCUSSIOJN
Substantial Evidence
Supports Felony Murder Conviction
And Special
Circumstance Finding
Ward contends there was
insufficient evidence to support a conviction for first degree felony murder or
a true finding of the special circumstance of murder during the commission of
rape by instrument. He argues that there
was no substantial evidence of when K.'s injuries occurred or that Ward had a
purpose independent of the murder for commission of the sexual felony. We disagree.
In assessing a
sufficiency of evidence claim, we consider the entire record in the light most
favorable to the judgment to determine whether it contains substantial
evidence, that is, "'". . . evidence that is reasonable, credible,
and of solid value, from which a rational trier of fact could find the
defendant guilty beyond a reasonable doubt."'" (People v. Burney (2009) 47 Cal.4th 203,
253.) We presume all facts in support of
the judgment which reasonably could be deduced from the evidence, accord the
judgment all reasonable inferences from the evidence, and do not reweigh the
evidence or redetermine credibility. (People
v. Wilson (2008) 44 Cal.4th 758, 806; People v. Martinez (2003) 113
Cal.App.4th 400, 412.)
Under the felony murder
doctrine, a killing is first degree murder whether or not intentional or
premeditated when it is committed in the perpetration
of certain enumerated felonies, including sexual penetration by foreign or
unknown object. (§ 189; People v.
Coefield (1951) 37 Cal.2d 865, 868.)
The requisite mental state is the specific intent to commit the
underlying felony, not the intent to kill.
(People v. Cavitt (2004) 33 Cal.4th 187, 197.)
Felony murder does not
require a strict causal relationship between the underlying felony and the
homicide provided the killing and the felony are part of one continuous
transaction. (People v. Cavitt,
supra, 33 Cal.4th at pp.
197-198.) The
underlying felony must have an independent purpose, however, and cannot be
merely incidental to the murder. (
296.)
Ward argues that prosecution
experts disagreed over the time any vaginal or anal injuries were inflicted
and, therefore, there is no substantial evidence to tie Ward to the
injuries. He also claims the evidence
fails to show an independent purpose for the sexual penetration offense. The evidence does not support Ward's
argument.
The prosecution's theory was
that K. was murdered between the time Ward left J. at school and the 911
call. There was testimony from Dr.
Whiteman and Dr. Heger that K. suffered injuries to her vagina and rectum. Dr. Whiteman testified that these injuries
occurred approximately six hours before K. was placed on a ventilator, and Dr.
Heger testified that the vaginal injuries were "fairly recent." Although less specific, the testimony of Dr.
Covington and Dr. Sydorak was generally consistent with the opinions of Drs.
Whiteman and Heger. There were also
statements by J. regarding events on the morning of September 7, and testimony
that there were no signs of forced entry into the Ward apartment. This evidence establishes that K. sustained
her injuries during the morning of September 7 when she was alone with Ward
(and an infant child), and constitutes substantial evidence supporting the
murder conviction and true findings on the rape by instrument special
circumstance. Such evidence is also
substantial evidence of an independent purpose for the sexual felony.
Ward argues that Dr. Sydorak
and Dr. Covington did not observe all of the injuries to K.'s rectum and vagina
that were observed by Dr. Whiteman and that only Dr. Whiteman and to a lesser
extent Dr. Heger testified to the age of the injuries. The fact that an emergency room doctor and
surgeon trying to save the life of a young child did not closely examine
injuries that were not life-threatening does not undermine the substantial
evidence provided by Dr. Whiteman and Dr. Heger.
No Violation of
Confrontation Clause
Ward
contends the admission of testimony from Dr. Whiteman concerning the opinions
of three other pathologists who participated in the autopsy but did not testify
at trial violated his Sixth Amendment
right to confront and cross-examine witnesses.
We disagree.
Dr.
Whiteman testified that he had consulted with three other pathologists during
or shortly after the autopsy to obtain further information regarding specific
injuries suffered by K. He testified
that he consulted with Dr. Hideo Itabashi regarding
hemorrhaging in K.'s spinal cord. Dr.
Whiteman observed the hemorrhaging during the autopsy and concluded that the
hemorrhaging resulted from a trauma. He
asked Dr. Itabashi to review his observations and testified that Dr. Itabashi
disagreed and believed the hemorrhaging was caused by the respirator and not a
trauma. Dr. Whiteman consulted with Dr.
Narcin Rao regarding hemorrhaging in K.'s optic nerve. After examining the eye, Dr. Rao agreed with
Dr. Whiteman but added that the hemorrhaging consisted of a bilateral
hematoma.
Dr. Whiteman consulted
with Dr. Bolger regarding K.'s x-rays.
Dr. Whiteman and Dr. Bolger examined K.'s x-rays together in Whiteman's
offices. There is no evidence of any
disagreement between the two doctors regarding interpretation of the
x-rays.
Ward argues that reports provided by these doctors
were prepared in contemplation of a criminal prosecution and,
therefore, testimonial statements. As
such, Dr. Whiteman's reliance on the reports during his testimony violated
Ward's right to confront witnesses against him.
We disagree.
Initially, we conclude that Ward's claim has been
forfeited because he failed to object to the challenged testimony during
trial. (People
v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 [requirement of
timely objection in trial court applies to a defendant's Sixth Amendment right
of confrontation].) There is no merit in
Ward's argument that an objection would have been futile based on the state of
the law at the time of trial. Although
two United States Supreme Court cases relevant to the issue had not been
decided at the time of trial,
Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz) was decided more than a year before
trial. Melendez-Diaz would have alerted reasonable counsel to the possible
merit of objections to Dr. Whiteman's testimony regarding the opinions of Drs.
Itabashi, Rao and Bolger. Nevertheless,
we will consider Ward's claim on its merits because of his assertion that trial
counsel's failure to object constituted ineffective assistance of counsel.
the United States Supreme Court held that the Sixth Amendment's confrontation
clause prohibits admission of "testimonial statements" from witnesses
who do not testify at trial unless the declarant is unavailable, and the
defendant has had a prior opportunity to cross-examine. Crawford did not define what
constitutes a "testimonial statement," but concluded that the term
included statements prepared for use in a criminal trial. (Id. at pp. 51–52.)
Since Crawford, the court has considered the "testimonial
statement" standard in three cases, but without reaching agreement on a
comprehensive definition. (See
Cal.4th 608, 617-618 (Dungo).) In Melendez–Diaz, a chemical analyst's
sworn "certificates of analysis" were admitted as a substitute for
live testimony to prove the substance possessed by the defendant was
cocaine. The Supreme Court held that the
certificate was "testimonial" because sworn affidavits are within the
core class of testimonial statements covered by the confrontation clause. (Melendez–Diaz, supra, 557 U.S. at p.
310.) The court stated that the
certificates were "functionally identical" to in-court testimony and
were "'"made under circumstances which would lead an objective
witness reasonably to believe . . . '''" they would be used in a criminal
trial. (Id. at pp. 310–311.)
In Bullcoming, the court again held that a
laboratory analyst's certificate was a testimonial statement. (131 S.Ct. at pp. 2709-2710, 2713.) After a drunk driving arrest, a sample of
defendant's blood was tested for alcohol content at a state laboratory and the
result of the test was set forth in an unsworn "certificate of
analyst." (Id. at pp.
2709-2710.) At trial, a colleague
familiar with the laboratory's testing procedures testified, but the analyst
who performed the blood test did not. (Id.
at p. 2709.) The court concluded that
the analyst's certificate was testimonial.
(Id. at pp. 2709-2710,
2715, 2719.) The court stated that a
document created solely for use in a criminal trial is testimonial. (Id. at p. 2717.)
In Williams, a four justice plurality concluded
that an expert's testimony regarding a DNA profile compiled at an outside
laboratory did not violate the confrontation clause. The plurality held that the laboratory report
was "basis evidence" to explain the expert's opinion and was not
offered for its truth. (132 S.Ct. at pp.
2230, 2235, 2239–2240.) Even if offered
for its truth, its admission would not have violated the confrontation clause
because the report was not a formalized statement whose "primary
purpose" was to accuse a targeted individual for criminal
prosecution. (Id. at pp.
2242–2244.) Justice Thomas agreed that
the report lacked the requisite formality to be testimonial, but rejected any
definition of "testimonial" which reached beyond "formalized
testimonial materials, such as affidavits, depositions, prior testimony, or
confessions." (Id. at p.
2255 (conc. opn. of Thomas, J.).)
After Williams, the California Supreme Court reexamined the meaning of
"testimonial" in light of Melendez–Diaz, Bullcoming,
and Williams. (
v. Lopez (2012) 55 Cal.4th 569 (Lopez);
People v. Rutterschmidt (2012) 55 Cal.4th
650.) Interpreting the United States
Supreme Court's opinions, our Supreme Court held that, to be testimonial, a
statement (1) must be "made with some degree of formality or
solemnity," and (2) its "primary purpose" must pertain "in
some fashion to a criminal prosecution."
(Dungo, at p. 619; Lopez, at p. 582.) A statement prepared for use at trial is not
"testimonial" unless it is also "formalized." ( Lopez, at pp. 581-582, 584.)
In Dungo,
a forensic pathologist performed an autopsy of a murder victim to determine
cause of death. Instead of
calling the pathologist who performed the autopsy, the prosecution presented
the testimony of his employer, Dr. Robert Lawrence, also a forensic
pathologist. (Dungo, supra, 55
Cal.4th at p. 613.) Dr. Lawrence testified that, based on
the autopsy report and autopsy photographs, the victim had died from manual
strangulation. (Id. at p.
614.)
In holding there was no
violation of the defendant's confrontation rights, Dungo concluded that
the autopsy report and photographs were not sufficiently formal or solemn to be
considered testimonial. (Dungo, supra, 55 Cal.4th at p. 619.) Dungo reasoned that Dr. Lawrence was
testifying about objective facts concerning the condition of the victim's body
as recorded in an autopsy report, and not about the non-testifying
pathologist's conclusions. (Ibid.) "[S]tatements, which merely record
objective facts, are less formal than statements setting forth a pathologist's
expert conclusions. They are comparable
to observations of objective fact in a report by a physician who, after
examining a patient, diagnoses a particular injury or ailment and determines
the appropriate treatment. Such
observations are not testimonial in nature.
(Melendez–Diaz, supra, 557 U.S. at p. 312, fn. 2 . . .
.)" (Dungo, at pp. 619–620, fn. omitted.)
Dungo also found the
primary purpose of the autopsy report did not pertain to a criminal
prosecution. (Dungo, supra, 55 Cal.4th at pp. 619,
621.) "The usefulness of autopsy
reports, including the one at issue here, is not limited to criminal
investigation and prosecution; such reports serve many other equally important
purposes. For example, the decedent's
relatives may use an autopsy report in determining whether to file an action
for wrongful death. And an insurance
company may use an autopsy report in determining whether a particular death is
covered by one of its policies." (
Based
upon the cases discussed above, we conclude that the forensic reports or
analyses relied on by Dr. Whiteman were not testimonial statements and Ward's
right to confront witnesses against him was not violated. The consultations and reports from the
nontestifying doctors lacked the formality or solemnity required by
The reports were unsworn and uncertified and covered objective facts
regarding the condition of K.'s body and the extent and nature of particular
injuries. (Dungo, supra, 55
Cal.4th at p. 619.) Drs. Itabashi, Rao
and Bolger provided assistance to Dr. Whiteman in K.'s autopsy which is the
established medical process
and procedure to determine the cause of death.
The consultations were a joint effort on the part of Dr. Whiteman and
the other pathologists. Dr. Whiteman was
not a "surrogate" or conduit for presenting the conclusions of other
pathologists. The nontestifying
pathologists did not present independent findings based on independent testing
or analysis.
In addition, we do
not conclude that the primary purpose of
the autopsy was to assist in a criminal prosecution. The standards for performing an autopsy are
medical and not legal. Clearly, the
results of the autopsy were utilized in a criminal prosecution because they
revealed the presence of traumatic injuries inflicted by another person. The autopsy, however, concerned the condition
of K.'s body and did not purport to connect any particular person to the
crime. In any event, even if the primary
purpose of the autopsy pertained to a criminal prosecution, the reports
generated by the autopsy would not be testimonial statements because they
lacked the formality required by binding California Supreme Court
precedent.
Ward's confrontation rights was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S.
18, 24; see also People v. Geier (2007) 41 Cal.4th 555, 608.) The information provided by the nontestifying
pathologists was of minimal importance to Ward's conviction. The information did not pertain to the
critical issue tying Ward to the offenses, namely, the time the injuries to K.
occurred. The information also confirmed
the conclusions reached by Dr. Whiteman based on his own observations and
analysis. Dr. Itabashi's opinion that
K.'s spinal injury was caused by the respirator was favorable to the defense. Dr. Rao's analysis of the injury to K.'s
optic nerve was consistent with Dr. Whiteman's own findings, and there was
indication that Dr. Bolger's findings were material or inconsistent with Dr.
Whiteman's findings.
No Error in
Admission of Evidence of Prior Discipline
Ward contends evidence
showing that Ward spanked and otherwise disciplined K. prior to the murder was
inadmissible evidence of a disposition or propensity to commit the charged
offenses. (See Evid. Code, § 1101,
subds. (a) & (b).) Ward's claim was
forfeited by failure to object to the evidence in the trial court. (People
v. Thomas (1992) 2 Cal.4th 489, 520.)
We address the merits because he makes the alternate argument that
"failure to object" constituted ineffective assistance of counsel.
Evidence of a person's
character is inadmissible when offered to prove his conduct on a specific
occasion. (Evid. Code, § 1101,
subd. (a).) Evidence that is otherwise
inadmissible, however, may be admitted "when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . .) other than his or her disposition to
commit such an act." (Evid. Code, §
1101, subd. (b); see People v. Ewoldt
(1994) 7 Cal.4th 380, 393.) "'Relevant evidence'
means evidence, including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the
action." (Evid. Code,
§ 210.)
Here, K.'s six-year-old brother
J. told the police that on the morning of the murder, Ward walked him to school
and that K. walked with him holding his hand.
He told police that in the past Ward had "whoop[ed]" him with
a hand or belt. He also told police that
K. regularly got in trouble with Ward for going "pee-pee" and
"poo-poo" in her pants and that Ward sometimes hit K. when she did
so.
At trial, J. testified that
K. was in a stroller during the walk to school, and denied telling the police
that Ward ever gave him a "whooping," or that Ward ever hit K. for
urinating or defecating in her pants. In
response, the prosecutor read the portion of J.'s interview with the police
referred to above which contradicted his trial testimony. An audio recording of the interview was also
played for the jury.
J.'s statements to the police
were admissible for impeachment as prior inconsistent statements. (See Evid. Code, §§ 1235, 770.) J.'s statements to the police were probative
because they were made shortly after the murder before he was subjected to the
influence of family members. In
addition, the evidence was relevant to show that K. was in Ward's care and
custody on the day of the murder which was a critical issue in the murder as
well as an element of the charged offense of assaulting a child causing
death. (§ 273ab; see
Cal.App.4th 727, 735-736.) In addition,
no reasonable person would conclude that the evidence that Ward disciplined K.
by spanking her on occasion rises to the level of showing a criminal
disposition to inflict serious bodily injury.
No Error in
Failing to Give Unanimity Jury Instruction
Ward contends the trial
court's failure to give a unanimity instruction deprived him of his
constitutional right to a unanimous verdict on the felony murder. He argues that a unanimity instruction was
required because there was evidence of two acts of sexual penetration which
could have supported the charge, penetration of the anus and penetration of the
vagina. We disagree.
A criminal defendant has
the right to a unanimous jury verdict on a specific charge. (People
v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Collins (1976) 17
Cal.3d 687, 693.) The unanimity
instruction prevents the jury from reaching a guilty
verdict by "amalgamating evidence of multiple offenses, no one of which
has been proved beyond a reasonable doubt." (People v. Deletto (1983) 147
Cal.App.3d 458, 472.) When evidence
suggests that more than one criminal act may have been committed, the trial
court must instruct the jury that it must unanimously agree on the crime which
has been committed. (Russo, at p. 1132; CALCRIM No. 3500.)
A unanimity instruction,
however, is not required when the evidence shows multiple acts in a continuous
course of conduct. (People v. Jennings (2010) 50 Cal.4th 616, 679.) Also, the instruction is not required
"when the defendant offers essentially the same defense to each of the
acts, and there is no reasonable basis for the jury to distinguish between
them." (People v. Stankewitz
(1990) 51 Cal.3d 72, 100; see also People
v. Benavides (2005) 35 Cal.4th 69, 98.)
"In deciding whether to give the instruction, the trial court must
ask whether (1) there is a risk the jury may divide on two discrete crimes and
not agree on any particular crime, or (2) the evidence merely presents the
possibility the jury may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime.
In the first situation, but not the second, it should give the
p. 1135.)
Here, Ward's assault
consisted of a series of catastrophic acts of abuse in the home during a
relatively short period of time. All of
the acts were so closely connected as to be part of a continuous course of
conduct. And, Ward offered the same
defense to all of the assaultive acts, namely to place blame on the responding
police officer, medical personnel, and others with access to K. Neither the
evidence nor the defense theories presented would have offered the jurors a
reasonable basis in which to disagree on which act the defendant committed and
still convict him of the crime. (See People
v. Champion (1995) 9 Cal.4th 879, 932.)
No Error in
Failing to Instruct on Lesser Included Offenses
Ward contends that the trial court erred by
failing to instruct the jury on second degree murder and voluntary
manslaughter. He argues that, by
alleging murder with malice aforethought in the original information, Ward was required
to defend himself against the lesser included offenses of murder with malice
and entitled him to jury instructions on those offenses. He acknowledges
that the malice-based murder allegation was deleted from the information before
trial, but claims the deletion did not alter the "expectations created by
the original information." We disagree.
A trial court has a duty to instruct on the
general principles of law closely and openly connected with the facts before
the court, and which are necessary for the jury's understanding of the case. (People
v. Breverman (1998) 19 Cal.4th 142, 154-155.) An accusatory pleading gives notice to
the defendant that the prosecution intends to prove all the elements of any
lesser necessarily included offense of the charged offense and that the
defendant must be prepared to defend against such offenses. (People
v. Birks (1998) 19 Cal.4th 108, 118.)
Accordingly, due
process requires a trial court to instruct the jury on lesser necessarily
included offenses when there is a question whether all elements of the charged
offense are present but substantial evidence justifying conviction of a lesser
offense. (People v. Gray (2005) 37 Cal.4th 168, 219.)
Undisputedly,
second degree murder and voluntary manslaughter are lesser included offenses of
first degree murder committed with malice.
(People v. Taylor (2010) 48 Cal.4th 574, 623.) Malice will be implied when the killing
results from an intentional act which is dangerous to life and the killer knows
that his conduct endangers the life of another and acts with conscious
disregard for life. (Id. at pp.
623–624.) Conversely, malice is not
required for first degree felony murder, and there is no authority that second
degree murder or voluntary manslaughter
are lesser included offenses of first degree felony murder. (People v. Cavitt, supra, 33
Cal.4th at p. 197; see also Taylor, supra, at p. 623 [expressly leaving
question open].)
Here, the original
information alleged that Ward had committed murder with malice aforethought
citing section 187. The information also
included a section 190.2, subdivision (a) special circumstance allegation that
the murder was committed while Ward was engaged in the commission of rape by instrument. (§ 190.2, subd. (a)(17).) Prior to trial, the prosecutor informed the
trial court and Ward that the prosecution was proceeding solely under a felony
murder theory and not a first degree malice murder theory. Over Ward's objection, the trial court
amended the information to eliminate the malice-based murder charge. The first sentence of the information which alleged that Ward
murdered K. "unlawfully, and with malice aforethought" was amended to
delete the "with malice aforethought" language so that it read that
Ward murdered K. "unlawfully . . . while the said defendant was engaged in
the commission of the crime of forcible sexual penetration (rape by
instrument), a felony in violation of Penal Code section 289." The separately alleged section 190.2,
subdivision (a)(17) special circumstance remained in the information.
In People v. Anderson
(2006) 141 Cal.App.4th 430 (Anderson),
the defendant was charged with first degree murder with malice but, after the
close of evidence, the prosecution amended the information to charge
with the predicate offense for the felony
at p. 445.) The trial court instructed
the jury on felony murder, but gave no instructions on first degree murder with
malice or second degree murder or voluntary manslaughter. The defendant was convicted of felony
murder.
Anderson held that the defendant was entitled to instructions on
second degree murder and voluntary manslaughter. (Anderson,
supra, 141 Cal.App.4th at p. 445.)
The court stated that, "[i]f the original charge of murder
remained, the sua sponte duty to instruct as to lesser offenses did as
well. Even if felony
murder had been intended to replace the existing charge,
an amendment made at the close of evidence does not satisfy the notice function
that underpins the duty of sua sponte instruction. [Citation.]
Having established the expectation that instruction on lesser
included offenses of murder would be given, if supported
by the evidence, the prosecution could not defeat that expectation by amendment
after the close of evidence." (Id.
at pp. 445–446.)
and the instant case initially charged murder with malice, the malice language
was deleted in the instant case before trial.
In Anderson, the prosecution tried the case on both felony murder
and malice murder theories and the information was not amended until the
conclusion of the evidentiary phase of trial.
And, in Anderson, the defendant was never charged with the
predicate felony to support the felony murder theory as was the case here. In short, Ward knew he was not required to
defend himself against a murder with malice charge and could have had no
expectation that instructions on lesser included
offenses to malice murder would be given.
Furthermore, a second
degree murder instruction was not warranted because the evidence shows that the
murder was committed while Ward was engaged in rape by instrument. "Where the evidence points indisputably
to a killing committed in the perpetration of one of the felonies section 189
lists, the only guilty verdict a jury may return is first degree murder.
. . . Under these circumstances, a trial court 'is justified in withdrawing' the
question of degree 'from the jury' and instructing it that the defendant is
either not guilty, or is guilty of first degree murder." (People v. Mendoza (2000) 23 Cal.4th
896, 908–909.)
the special circumstance coincide, the true finding as to the special
circumstance establishes that the jury would have convicted Ward of first
degree murder under a felony murder theory, regardless of whether more
extensive instructions were given on second degree murder and voluntary
manslaughter. (People v. Castaneda
(2011) 51 Cal.4th 1292, 1328.)
No Ineffective Assistance of Counsel
Ward claims he received ineffective assistance of
counsel with respect to his trial counsel's (1) failure to object to admission
of testimony from Dr. Whiteman concerning the conclusions of other
nontestifying pathologists, (2) failure to object to admission of Ward's prior
acts of disciplining K., (3) failure to request a unanimity instruction, and
(4) failure to request jury instructions on lesser included offenses. Based on our conclusion that there were no
errors, the ineffective assistance claims have no merit.
The judgment is affirmed.
NOT
TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT,
P. J.
YEGAN,
J.
Michael
E. Pastor, Judge
Superior
Court County of Los Angeles
______________________________
Fay Arfa for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Stephanie A. Miyoshi, Daniel C. Chang, David F. Glassman,
Deputy Attorneys General, for Plaintiff and Respondent.
All undesignated
statutory references are to the Penal Code.
S.Ct. 2705, 180 L.Ed.2d 610] (Bullcoming);
Williams v. Illinois (2012) 567 U.S. ____ [132 S.Ct. 2221, 183 L.Ed.2d
89] (Williams).
