P. v. Scott

Filed 11/24/09 P. v. Scott CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Kathy Jean Scott was found guilty of the second degree murder of four-month-old Eduardo while he was a foster child in her home. In addition, she was found guilty of assault on a child under the age of eight years old resulting in death. She appeals, claiming the evidence is insufficient to support the verdicts, the court erred in instructing the jury regarding how to view any false statements she made, and the court erred when it refused to appoint new counsel to prepare a motion for new trial based on ineffective assistance of trial counsel. We affirm.

FACTS

Defendant began working as a foster parent in March of 2002. By March of 2004, she had five children in her care, all under the age of five. In addition, she ran a day care business out of her home. The youngest child, the victim in this case, Eduardo, was born on November 2, 2003. Defendant was paid $656 per month for each foster child in her care.

The social worker who supervised defendants foster care stated he had some difficulty getting defendant to attend training meetings outside of her home, as defendant rarely left her home. It was the social workers opinion that defendant was a good foster parent. Her home was clean, neatly organized, and had pleasant play areas for the children in the garage and backyard. There were no toys in the living room, dining room, or den area of the home.

Eduardo was drug exposed at birth and originally placed with foster parent Karen Miller. Eduardo was in Millers care until January 23, 2004. Eduardo had a seizure on one occasion while in Millers care. She took him to the hospital and he was released after Miller was given seizure medication to give him. Miller testified that Eduardo was a sweet baby and he slept a lot. He had diaper rash because he suffered from runny bowels.

When Eduardo was moved from Millers home to defendants foster home, Miller sent his medications with him. Defendant called Miller the evening after Eduardo was moved. Miller explained to defendant that between 8 and 11 p.m. Eduardo was usually awake and this was the time Miller would spend special time with him. To this, defendant replied that he would not get that here. Miller said defendant explained she could not do that because she had other demands, but the tone of defendants voice when she made the comment bothered Miller.

Marques Bones worked for defendant and provided supervision and some schooling during the time the day care children were in the home from Monday through Friday.

Nineteen-year-old Keyana Snodgrass used to date defendants son, Arnold. In late February or early March 2004, Snodgrass came to live with defendant to help with the children. She was to be paid a monthly stipend as well as receive room and board. Defendant told Snodgrass that she was there to help her during the day with the children. Snodgrass understood that she was required to work from 7 a.m. to approximately 7 p.m.

Defendant instructed Snodgrass that the children were to stay in certain areas of the home. The children were not allowed in the main living areas of the home, even after the day care children went home. The children were always fed outside or in the garage, never inside the house. The children were not allowed in defendants bedroom. On the weekends the children were kept primarily in one of the childrens bedrooms to watch television. All clothes and diapers were changed outside, in the garage, or in the childrens bedrooms. Although Eduardos diaper was not always wet or soiled, it was unusual for it to stay dry overnight. After a diaper was changed, it was taken outside to the garbage immediately.

When the children woke up in the morning, Snodgrass would get them ready for the day and then take them outside or into the garage. Snodgrass and Bones would play with the children. Defendant told Snodgrass that Eduardos mom did drugs and there was something wrong with him; she told Snodgrass that Eduardo previously had a seizure. Eduardo had birthmarks on his lower back and had diaper rash.

Defendants home was a four-bedroom home. Defendants master bedroom was to the left from the entryway. The other bedrooms were to the right. The first room to the right was a den with a couch and television; this was where Snodgrass slept. The second room (the bunk bed room) was where three of the foster children slept. The final bedroom was occupied by Eduardo and his sister.

Although Snodgrass had weekends off from working, on Sunday, March 7, 2004, Snodgrass took three or four of the children to the park. After their outing she returned home and went to bed at approximately 7:30 or 8:00 p.m. She fell asleep with the television on.

Snodgrass did not wake up during the night and awoke on March 8, 2004, at approximately 5:45 a.m. The television was off when she woke up. She went to the bathroom and showered for approximately 30 minutes. After her shower, she got dressed and put her dirty clothes in the washing machine. She headed toward the kitchen and saw defendant in the hall. Defendant told Snodgrass to get the children ready.

Snodgrass got the three children from the bunk bed bedroom dressed and ready for the day. She took them to the garage, sat them down, and got toys out for them. Snodgrass returned inside the house and headed towards Eduardos room. Defendant met her at Eduardos room and handed Eduardos sister to Snodgrass. Snodgrass took the sister to the bunk bed room, dressed her, changed her, and took her to the garage. The diapers and diaper wipes were kept inside the bunk bed room.

Snodgrass returned to the house. Defendant was in the hall holding Eduardo. She told Snodgrass that Eduardo was not breathing. They went to defendants bedroom and defendant put Eduardo on her bed. Snodgrass remarked that Eduardo had a mark on his cheek and asked defendant what happened. Defendant said she did not know what happened.

Eduardo, wearing only a diaper, was placed on the floor. Snodgrass kneeled over him while defendant stood by doing nothing. Snodgrass began attempting to give cardiopulmonary resuscitation (CPR) to Eduardo. During her attempt she touched Eduardos arm; it became cold and stiff and Snodgrass realized that Eduardo had been dead for a while. Snodgrass told defendant to call 911. Snodgrass freaked out and went outside to wait for emergency personnel to arrive.

Captain Brian McBride from the Bakersfield Fire Department was one of the first to arrive at defendants home, having received a call for help before 7 a.m. When he arrived, a younger woman was in the front yard waving her arms trying to get their attention. McBride entered the house and was motioned to the child in the master bedroom. Defendant was very calm, considering the situation. Eduardo was on the tile floor. McBride requested that defendant move Eduardo to the bed; she did so. It was clear to McBride that Eduardo was dead. He was exhibiting signs of rigor mortis^[1]and lividity.^[2] McBride told defendant that Eduardo was dead. Defendant was not upset and remained very calm. When McBride asked defendant about Eduardos name, age, and medical history, defendant told him that Eduardo was a drug baby. McBride thought defendant looked like she was in shock. Steven Tingley, also from the Bakersfield Fire Department, arrived with McBride. He described defendant as real calm and not upset.

Police officer Sally Temple was dispatched to defendants house. When she arrived, she spoke to Captain McBride and was informed that Eduardo was dead. She then spoke to defendant, who identified herself as the foster mother. She said she was a foster mother to five children in her home and had four children in day care at her house. Defendant told Temple that Eduardo was a drug baby and that he was fussy. Defendant said that Eduardo was sleeping later than usual, so defendant took advantage and got the other children ready. When defendant went to wake up Eduardo, he was face down in the bassinet with the blanket pulled up to his head. He was unresponsive.

Defendant told Temple that Eduardo was cold and stiff. She set him down on the tile floor and tried to wake him up by lightly shaking him. She then picked Eduardo up and ran to her bedroom where she called 911. She gave Eduardo CPR with the 911 operator giving her instructions. Defendant told the 911 operator that Eduardo had stopped breathing and had a seizure in November. She continued doing CPR until personnel from the fire department arrived. Defendant told Temple that Eduardo had a blue sleeper on and she had removed it. The last time defendant saw Eduardo alive was at 10 p.m. when she put him in the bassinet on his back.

Temple testified that defendant stated that Eduardo had a chest cold, he was sick when she became his foster mother, and he had previously had a seizure. Defendant stated that Eduardo had been prescribed seizure medication, but defendant never gave it to him. Defendant said that she had noticed the small scratch on Eduardos cheek the day before.

Temple described defendants house as immaculate. The blue sleeper was found in the washing machine. There was a box of baby wipes on the bed in the master bedroom. Defendant reported to another of the responding police officers that Eduardo had a cold and cried all the time because he was a drug baby.

Sometime before 7:30 a.m. on March 8, 2004, defendant called the parent of one of the children who came to day care and left a voice message that one of the children in her care was not breathing and she was waiting on the paramedics for him. In the message she also stated that the child had previously had seizures. Defendant told the parent that his daughter would not be able to come to day care that day. Defendant also called the social worker at 7:17 a.m. and told him that she was having trouble with Eduardo not breathing.

Crime lab technician Sherrie Hill arrived at defendants home around 9:30 a.m. She took photographs and seized items from the home. She removed Eduardos diaper. It was clean and not wrinkled. She seized items from the inside of the washing machine and from the trash can outside of the house. Inside the trash can she found a sleeper that had fecal staining on the back and legs. In addition, there were soiled diapers in the trash. There were no trash cans or diaper pails inside of the house except one trash receptacle in the kitchen. The changing pad in Eduardos bassinet had possible fecal matter on it that looked fairly fresh. The blue sleeper that was photographed on the bed in the master bedroom had been found in the washing machine and placed on the bed.

Joe Aldana, the lead officer investigating the case for the Bakersfield Police Department, arrived at defendants home at approximately 9:36 a.m. He interviewed defendant at her residence that morning. In this interview, defendant said that Eduardo had had a seizure and was taking medication for the seizures. She said she put Eduardo in his bassinet on his back at approximately 10 p.m. He was wearing a blue sleeper. The next morning she thought Eduardo was asleep, so she took his sister to the other room to get her ready. When she returned, Eduardo was cold and stiff. She picked Eduardo up and took him to her room. She removed his sleeper, called 911, put Eduardo on the floor, and performed CPR.

Later, defendant was interviewed at the police station by Aldana. Defendant stated that she changed Eduardos diapers and put him to bed at 10 p.m. the previous evening. She said that Eduardo usually had loose bowels. She thought that the scratches on Eduardos face were probably self-inflicted, but on further reflection she said she could have accidently scratched him. Eduardo was normally fed every three hours up until bedtime. Defendant said that Eduardo usually slept all night but if he woke up she could hear him. Defendant told Aldana that Snodgrass is her godsons girlfriend and that she, defendant, does not have any children of her own. Defendant reported that Eduardo did not cry a lot, but he had been crying more lately because he was sick. Defendant did not cry during the interview and was allowed to leave after the interview was concluded.

Aldana also interviewed Snodgrass. During the initial interview, Snodgrass said she did not give CPR to Eduardo. In her third interview with Aldana, all on March 8, 2004, Aldana confronted Snodgrass with reports that others said Snodgrass had performed CPR on Eduardo. Snodgrass then admitted she had performed CPR but lied about doing it because she had not been properly trained.

At the urging of Aldana, Snodgrass called defendant. During the call defendant told Snodgrass she should not speak with the police.

Dr. Thomas Volk performed the autopsy. Eduardo had a superficial scratch or wound on his face that was fresh, within 24 hours of death, and one on his arm. He also had an abrasion over his left check that had occurred within 12 hours prior to death. He had bruising on his back that was splotchy. In addition, he had birthmarks below his diaper line. He had multiple abrasions on his scrotum and around his anus that were consistent with diaper rash. When Eduardos scalp was peeled back, Dr. Volk could see multiple areas of hemorrhage from one ear across the head to the other ear. Eduardo had four skull fractures. He had a small amount of hemorrhage on the surface of the brain and some fluid buildup throughout the brain. It was Dr. Volks conclusion that Eduardo died from blunt force trauma to his head producing fractures of the skull and injuries to his brain. The fractures did not occur from sharp edges, but from a flat surface such as a floor.

Dr. Volk did not attempt to determine the time of death. It is possible Eduardo died within seconds or within two hours of suffering his injuries. It was his opinion that the bruises on Eduardos back could have been caused by his back hitting the tile floor, or by squeezing.

Frank Sheridan, a forensic pathologist and the chief medical examiner for the County of San Bernardino, testified as an expert for the prosecution regarding Shaken Baby Syndrome and Shaken Impact Syndrome. Dr. Sheridan reviewed materials relating to Eduardos death.

Shaken Baby Syndrome occurs when a young child is violently shaken. The shaking results in certain injuries, such as hemorrhages in the eyes and subdural hemorrhage. Shaken Impact Syndrome occurs when a child is shaken and then slammed against a hard surface. The slamming abruptly stops the motion of the brain, causing injury to the brain.

In this case Eduardo did not suffer hemorrhage in the eyes and had minimal subdural hemorrhage. It was Dr. Sheridans opinion that the impact to the back of Eduardos head caused the fractures and bleeding and the entire function of his brain was immediately disrupted. He believed that Eduardo died rapidly, within seconds to minutes. The injuries usually found in Shaken Baby Syndrome were not present because death occurred quickly.

The injuries suffered by Eduardo could have occurred from force equal to a 20-foot fall or a car accident. It was Dr. Sheridans opinion that Eduardos head was in motion when it was slammed against a flat surface. He did not believe that Eduardos prior seizure or drug exposure had anything to do with his death. Dr. Sheridan believed that Eduardo had been dead since at least 5 a.m. the morning of March 8, 2004. He did not believe that the scratches on Eduardos face were self-inflicted.

On cross-examination Dr. Sheridan said that the perpetrators of Shaken Baby Syndrome are often caretakers who lose their temper, and the perpetrators tend to be younger, because they are more inexperienced and overwhelmed. He also testified that babies born to mothers who used methamphetamine are generally finicky and irritable.

The parties entered into many stipulations. The parties stipulated that Eduardo tested positive for amphetamines at birth, was taken from his birth mother, and defendant was aware of this. It was stipulated that there were no complaints regarding defendant as a foster parent. The parties stipulated that Snodgrass was not bleeding on either March 7 or March 8, 2004.

It was stipulated that if Marques Bones was called to testify he would say that he arrived at defendants home between 8 and 9 a.m. the morning of March 8, 2004. He asked Snodgrass what happened. Snodgrass told him that she was sleeping when something told her to get up. She got up, went into the hall, and saw defendant holding Eduardo. Eduardo was not bleeding. It was further stipulated that Bones would testify that Snodgrass told him she told defendant to call 911 and that Snodgrass performed CPR on Eduardo. After Bones was interviewed by the police, he was told by defendant to not make further statements because she wanted attorney involvement.

It was additionally stipulated that N., a four-year-old foster child residing in defendants home, told his next foster mother that he hit Eduardo with a bat and a shovel. Aldana was informed of this and N. was questioned. The stipulation provided details of when and how the defense became aware of this information. The jury was instructed that they could consider the late delivery to the defense of the information regarding N. in evaluating the integrity of the investigation. It was agreed that N. did not cause any injuries to Eduardo.

Defense

The defense re-called crime lab technician Hill to detail the items seized in the trash can outside defendants home. Hill could not recall where the soiled sleeper was located in the trash can.

Criminalist Brenda Smith was called by the defense. She conducted a DNA analysis on five items removed from the washing machine that appeared to have bloodstains. None of the bloodstains belonged to Eduardo. Two towels and a blanket in the washing machine had blood from an unknown female. An additional blanket had bloodstains with a female profile, but further identification was not possible. The childs T-shirt had a bloodstain with a female profile different from the others. Smith was not provided with DNA samples from defendant or Snodgrass; she was only provided a sample from Eduardo.

In addition to the witnesses presented by the defense, the defense spent a great deal of time cross-examining Snodgrass regarding inconsistencies in her statements to police and also inconsistencies between her pretrial statements and her trial testimony. Such inconsistencies included when she got up in the morning, how long her shower was, her activities with the children the morning of Eduardos death, whether she heard defendant call 911, and her trip to the park with the children. The defense also emphasized that Snodgrass slept in the room closest to Eduardo and that some of her testimony at trial (such as she had seen defendant discipline the children by hitting them on the palm of the hand or bottom of the feet) had never been revealed during her police interviews.

DISCUSSION

I. Substantial Evidence

There was no dispute at trial that whoever killed Eduardo was guilty of second degree murder and guilty of assault on a child under the age of eight resulting in death. The only issue to be resolved was the identity of the person who killed Eduardo. There was also no allegation that a stranger entered defendants home and committed the murder. The case centered on the question of whether it was defendant or Snodgrass who murdered Eduardo.

The Peoples theory was as follows: Defendant was running a business from her home; the business was foster care and day care. Defendant kept an immaculate home and the children were not allowed into most places in defendants sanctuary. All diapers were immediately taken outside. The People argued to the jury that there was no place in defendants home for messy diapers such as the ones Eduardo frequently produced. When defendant went to Eduardo sometime in the early morning hours of March 8, 2004, he had a horribly dirty diaper, as evidenced by the very stained sleeper found in the trash. Defendant became angry and slammed Eduardos head into the floor. Eduardo immediately became unconscious and defendant cleaned him up and put him to bed. The empty box of baby wipes found on defendants bed when emergency personnel arrived supported the theory that defendant cleaned Eduardo up and put him back to bed. In addition, the People relied on defendants calm demeanor in the face of Eduardos death; her description of Eduardo as fussy, when he was not; her lie that she had no children; her lie that Snodgrass was dating her godson when in fact it was her son; her advice to Snodgrass and Bones to not talk to the police; her failure to begin CPR even though she was certified; her statement to fire personnel that she gently shook Eduardo, setting up her alibi; and her tone with Eduardos prior foster mother, as well as several other inferences from the record.

The defense relied on inconsistencies in Snodgrasss story, the fact that her room was closer to Eduardos than defendants room, Snodgrasss inexperience and young age as making her the more likely candidate to lose her temper, her lie to Aldana that she did not give CPR to Eduardo, defendants clean record of caring for foster children, as well as other problems with the evidence, to support the theory that it was Snodgrass and not defendant who killed Eduardo.

Defendant argues the evidence is insufficient to support her convictions because it did not prove that she, rather than Snodgrass, killed Eduardo. She claims the inference of who killed Eduardo cannot logically and reasonably be drawn from her conduct or Snodgrasss behavior because that inference was rank speculation. Defendant asserts no inference of who killed Eduardo can rationally be drawn from her motivation for being a foster parent and her performance as a foster parent. Next, defendant argues an inference of who killed Eduardo cannot be sensibly arrived at from the facts about the state of her home. The next unsupported inference, as argued by defendant, is that no inference about who killed Eduardo can be drawn from her statements to emergency personnel about Eduardos medical condition. Defendants explanations about the bruises on Eduardos back and superficial scratches on his face cannot create a credible inference that she killed him. Finally, defendant claims the fact that she did not immediately perform CPR on Eduardo because she knew he was already dead does not support an inference that she killed him.

In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)

This standard of review applies equally in cases in which the prosecution relies primarily on circumstantial evidence. [I]f the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v.Farnam (2002) 28 Cal.4th 107, 143.) We do not reweigh evidence or reevaluate a witnesss credibility. (People v. Guerra, supra, 37 Cal.4th at p. 1129.)

Defendant relies primarily on People v. Blakeslee (1969) 2 Cal.App.3d 831 to support her position that her convictions are not supported by substantial evidence. In People v. Blakeslee, the evidence established only that the defendant and her brother had both quarreled with the victim, who was their mother (the brother having done so on the night of the killing), that both had access to a rifle (belonging to the brother), and that the defendant had offered police a false account of her movements (intended, she testified, to protect the brother). The evidence was thus at least as consistent with the brothers guilt as with the defendants. (People v. Snow (2003) 30 Cal.4th 43, 68.)

While we agree with defendants argument that each inference here standing alone would not be enough to support her conviction, the combination of inferences is enough. Unlike Blakeslee, the evidence here is more consistent with defendants guilt than with the guilt of Snodgrass. Also, unlike Blakeslee, the question was whether Snodgrass or defendant killed Eduardo; in Blakeslee the killing could have been perpetrated by someone other than the defendant or her brother. Also, unlike in Blakeslee, if the jury believed Snodgrass the inferences of guilt fell squarely on defendants shoulder. In Blakeslee the jury could have believed the brother when he said he was not home at the time his mother was killed, yet that would not result in finding that his sister was the guilty party.

We begin our analysis of the evidence of defendants guilt guided by the above principle that [I]f the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Farnam, supra, 28 Cal.4th at p. 143.) Defendant was unusually calm about the situation; this leads to an inference that she did not care about Eduardo and/or already knew much earlier in the morning that he was dead. Defendant did not even attempt to give Eduardo CPR until instructed to do so by the 911 dispatcher, even though she was required to be CPR proficient. This again implies she did not care about Eduardo and/or already knew he was dead.

Defendant was paid for the five foster children in her care, as well as for four children in her day care business. The inference that defendant treated the children in her care as a business is further emphasized by the unusual facts that the children were relegated to only certain areas of the house and precluded from the common areas of the house, even when the day care children were not in the house. The children were never allowed to eat in the house. There were no trash cans in the house except for one in the kitchen. In addition, when Eduardos prior foster mother told defendant about her special time every evening with Eduardo, defendant replied she would not have time for that, in a tone that bothered the prior foster mother.

Although clean homes are desired for foster homes, defendants home went beyond clean. We have reviewed the pictures of defendants house and find that the areas where the children were not allowed are pristine in condition.

Inferences can be drawn from defendants statements to emergency personnel and law enforcement regarding Eduardos medical condition. It could be inferred that she was trying to divert attention from his actual injuries to a different possible scenario for his death. Stating that Eduardo was a fussy baby who cried a lot could also be viewed as a diversionary tactic from which one could reasonably infer guilt.

In addition to all of the above inferences, in our opinion the most telling pieces of evidence are the box of baby wipes on defendants bed the morning of Eduardos death and the facts that Eduardo was in a completely clean, wrinkle-free diaper when he was discovered by defendant in the morning, Eduardo was not wearing a sleeper when defendant was holding him in the hall, and a very soiled sleeper was found in the trash. It was not disputed that Snodgrass slept in a different room and got all of the children except Eduardo dressed and changed on the morning of March 8, 2004. Diapers and baby wipes were normally kept in the bunk bed room. According to Snodgrass, children were not allowed in defendants bedroom, yet the morning of the killing there was a box of baby wipes on her bed. In addition, defendants house was in an immaculate condition, with everything in its place. We have viewed the pictures, and the baby wipes are out of place for the rooms in the house where the children were not allowed. In addition, there was no reason for Eduardo to not be dressed in a sleeper when defendant found him, particularly since she did not begin any emergency treatment until much later when instructed to do so by the dispatcher.

From this evidence the jury could reasonably conclude that defendant went to Eduardo in the early morning hours of March 8, 2004. He had a very messy diaper. She got angry and slammed his head against a hard object. Eduardo became unconscious immediately. Realizing what she had done, defendant brought Eduardo to her room, cleaned him up with the baby wipes, threw his soiled sleeper in the trash can, put a clean diaper on him and put him back in his bassinet, waiting for Snodgrass to get up and begin the days normal routine--keeping Snodgrass out of Eduardos room until the last moment. The baby wipes would not have otherwise been in defendants bedroom, a place off limits to the children under normal circumstances.

In addition, the jury is the sole determiner of credibility. Having found Snodgrass to be credible and having found inference upon inference to support defendants guilt, the jury could reasonably have found defendant guilty of the second degree murder of Eduardo and assault upon a child under the age of eight resulting in death. The evidence is by no means overwhelming, but it is sufficient to support the convictions beyond a reasonable doubt.

II. Instruction on False or Misleading Statements by Defendant

Over defense counsels objection, the trial court instructed the jury pursuant to CALCRIM No. 362 as follows: If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show she was aware of her guilt of the crime and you may consider it in determining her guilt. If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.

In addition, the jury was instructed that there is evidence that defendant made oral statements before trial and the jury must decide whether she made those statements and, if she made the statements, how much importance to give to such statements. The jury was instructed to view defendants statements with caution unless they were written or otherwise recorded. The jury was told that defendant may not be convicted of any crime based on her out-of-court statements alone.

Defendant claims the trial court erred when it instructed the jury pursuant to CALCRIM No. 362. Defendant attacks the giving of this instruction on several fronts. First, she claims the instruction should not have been given because it lacked evidentiary support. Next, she argues the instruction permitted the jury to draw an impermissible inference concerning her mental state at the time of the homicide. She argues the erroneous giving of this instruction was prejudicial and claims that the instruction singled out her credibility for extra scrutiny, while Snodgrasss credibility was not earmarked in the same way.

a. Sufficiency of Evidence to Support the Instruction

The above instruction should be given when there is evidence that a defendant fabricated a story to explain her conduct. The false or misleading statement should be relevant to the defendants liability for the crime charged. (People v. Rankin (1992) 9 Cal.App.4th 430, 436.)

Defendants claim that the evidence does not support the giving of this instruction is based solely on defendants statement that she did not have any children of her own (she has a son) and her statement that Snodgrass was dating her godson (Snodgrass was dating defendants son). Defendant argues that these two statements were not directly relevant to her liability for the crime. Defendant fails in her opening brief to mention her statements to responding emergency personnel and law enforcement that Eduardo was a fussy baby who cried a lot. In her reply brief defendant claims that her statements regarding Eduardos disposition were irrelevant to her guilt for the offenses charged.

We disagree. The jury could quite reasonably conclude that defendant made a series of false statements regarding Eduardos disposition to deflect suspicion from herself. These statements might mislead those responding to the scene to believe that Eduardo had a medical condition that caused his fussiness and death and/or that Eduardos cries would have been heard by and responded to by Snodgrass since she slept closest to him. The evidence supported the giving of this instruction.

b. The instruction as it relates to defendants mental state

CALCRIM No. 362 is the successor to CALJIC No. 2.03, which provided as follows: If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crime or crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide. (People v. McGowan (2008) 160 Cal.App.4th 1099, 1103, emphasis added.)

The inference of consciousness of guilt from willful falsehood ... is one supported by common sense, which many jurors are likely to indulge even without an instruction. (People v. Holloway (2004) 33 Cal.4th 96, 142.) The California Supreme Court has repeatedly rejected arguments attacking CALJIC No. 2.03, the predecessor to CALCRIM No. 362.^[3] (People v. Howard (2008) 42 Cal.4th 1000, 1024.)

One such case is People v. Crandell (1988) 46 Cal.3d 833. In Crandell, the defendant made several challenges to CALJIC No. 2.03. Pertinent to our discussion is his challenge regarding the effect this instruction had on the jurys determination of his mental state. Defendants remaining arguments focus on the phrase consciousness of guilt. A defendants guilt being the ultimate determination of the truth or falsity of the criminal charges, the jury might, according to defendant, view consciousness of guilt as equivalent to a confession, establishing all elements of the charged murder offenses, including premeditation and deliberation, though defendant might be conscious only of having committed some form of unlawful homicide. The instructions thus permitted the jury, defendant maintains, to draw an impermissible inference, without foundation in reason or experience, concerning his mental state at the time of the homicides, thereby violating his federal due process rights. [Citations.] (People v. Crandell, supra, 46 Cal.3d at p. 871.)

The Supreme Court rejected this argument as follows: Defendants fear that the jury might have confused the psychological and legal meanings of guilt is unwarranted. A reasonable juror would understand consciousness of guilt to mean consciousness of some wrongdoing rather than consciousness of having committed the specific offense charged. The instructions advise the jury to determine what significance, if any, should be given to evidence of consciousness of guilt, and caution that such evidence is not sufficient to establish guilt, thereby clearly implying that the evidence is not the equivalent of a confession and is to be evaluated with reason and common sense. The instructions do not address the defendants mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard thereto. (People v. Crandell, supra, 46 Cal.3d at p. 871.)

Defendant contends that CALJIC No. 2.03 limited the permissive inference that might logically be drawn from the evidence to the defendants consciousness of guilt of some wrongdoing rather than consciousness of guilt of the specific crimes charged. But she claims the language changes made in CALCRIM No. 362 do not reflect this distinction and instead modify the instruction in a way that permits the jury to draw an impermissible inference about defendants mental state at the time of the offenses, violating her federal due process rights. Defendant argues that because the language of the instruction was changed from the earlier version of tending to prove consciousness of guilt to the current version of aware of her guilt of the crime the example set forth in Crandell--that the jury might be misled by the instruction to believe the defendants misleading or false statements are proof of a mental state for first degree murder, when in fact the defendant might be conscious of only committing some lesser form of homicide--may occur under the CALCRIM instruction and violate a defendants due process rights.

We need not determine if the differences between CALJIC No. 2.03 and CALCRIM No. 362 run counter to the Crandell decision, because in this case the mental state of the perpetrator was not in issue. Defense counsel here told the jury that whoever committed this crime was guilty of the crimes as charged, and defense counsel made a tactical decision to not have any lesser included offense instructions read to the jury. This case was not about the mental state of the perpetrator; the sole issue for the jury to decide was the identity of the perpetrator. There is no scenario presented here where the perpetrator of the killing of Eduardo might have a consciousness of guilt of a lesser crime and not the mental state of the greater charged crime.

The jury thus could not have utilized the instruction in the manner criticized by defense counsel based on her reliance on Crandell. We reject defendants argument that there was inferential evidence that Eduardos injuries were accidently caused. There was no such evidence, and defense counsel conceded this in his closing argument to the jury.

We also reject defendants argument that the instruction allowed the jury to jump straight from her falsehoods to actual guilt of the crime charged. The instruction clearly set forth that evidence of such a statement cannot prove guilt by itself, and the jury was also instructed that defendant may not be convicted based on her out-of-court statements alone. The instruction did not allow the jury to use defendants false or misleading statements as the sole evidence of guilt.

Although raised in her prejudice section of this argument, defendant contends that the instruction singled out her credibility for extra scrutiny, yet Snodgrasss credibility was not earmarked in the same way. Defendant does not argue that CALCRIM No. 362 differs in this respect from CALJIC No. 2.03. The court in People v. Jurado (1981) 115 Cal.App.3d 470 rejected the argument that the instruction impermissibly singles out a defendants testimony for juror scrutiny. (Id. at pp. 495-496.) The jury here was instructed that in determining the credibility of a witness it should consider whether the witness made a statement in the past that is consistent or inconsistent with his or her testimony and was also told that if it believes a witness deliberately lied about something significant in this case, the jury should consider not believing anything that witness says. Thus the testimony of Snodgrass was placed under scrutiny by the general instructions relating to witnesses.

Defendant has failed to show that instructing the jury pursuant to CALCRIM No. 362 resulted in error requiring reversal of her convictions.

III. Motion for New Trial

The trial court held a series of hearings on the question of whether Snodgrasss prior drug use would be admitted at trial for impeachment purposes and as evidence of third party culpability.

Testimony was taken at the hearing to determine if evidence of Snodgrasss drug problem would be presented to the jury. Defendants son, Arnold, testified that he dated Snodgrass in 2003. In February of 2004, Snodgrass called Arnold and asked him to come get her. Snodgrass told Arnold that her father was being abusive to her. Arnold picked up Snodgrass. When he picked up Snodgrass, he noticed that she was antsy, her eyes were dilated, she was not acting normal, she moved around quickly, and she was not able to sit still. He had seen her act that way before. One such occasion was when Arnold received a call from either Snodgrasss mother or friend asking him to take Snodgrass to the hospital under a ruse so she could get help because she was under the influence. In the car Snodgrass admitted she had just used methamphetamine. Snodgrass left the hospital without getting help, refusing to be admitted.

After Arnold picked up Snodgrass in February of 2004 and brought her to his house, she told him that she wanted to get away from the drug life and her drug buddies. Snodgrass wanted to work for defendant to get away from the drugs. Snodgrass spent one or two nights at Arnolds house and then he took her to defendants house. The day Arnold and Snodgrass were leaving to go to defendants, Snodgrass asked Arnold if she could smoke some marijuana for the last time. He told her no. Arnold did not tell defendant that Snodgrass had a drug problem.

Arnold testified that Snodgrass did not use drugs while she was at his house and he had no idea if she used drugs while she was at defendants house.

Snodgrass testified at the hearing. She admitted that she used methamphetamine two to three times a month in 2003 and did the same in 2004. She did not feel that she was addicted to methamphetamine.

When Snodgrass called Arnold to pick her up at her house, she had engaged in an argument with her father over her drug use and the fact that she was dating Arnold. Snodgrass testified that Arnold picked her up a week or two before she went to live at defendants house. She said she was not under the influence when Arnold picked her up. She admitted that she had used methamphetamine a couple of days before she argued with her father. Snodgrass testified that she did not use methamphetamine at defendants house, she did not have any money while at defendants house, she did not know anyone in the area of defendants house, and she did not have transportation available to her while at defendants house.

Police investigator Aldana testified he had no information indicating he needed to determine whether Snodgrass was under the influence of any drugs on the day of Eduardos death. Aldana did not see any signs that Snodgrass was under the influence of drugs when she was interviewed at the police station that day and observed no signs of recent use. Aldana admitted he was not a drug recognition expert.

The People argued that all evidence of Snodgrasss drug use should be excluded because there was no evidence that she was using methamphetamine at the time the crime was committed or within 10 days prior to Eduardos death. The People claimed the evidence was not relevant and was unfairly prejudicial to the Peoples case.

Defense counsel replied that the defense can establish that she was an addict. We can establish that she used shortly before she went to Miss Scotts [defendants] home. Defendant argued that there were proven questions about Snodgrasss whereabouts when she claimed to be at the park and her answers to law enforcement were false, indicating that she was trying to conceal something with regard to her activities. Defense counsel stated, we know we have an addict here. We know that shes recently used. And we know that there [are] some rather strange things with regards to her whereabouts the night before.

The court reviewed the evidence and found no evidence that Snodgrass had any drugs when she came to defendants home and no evidence that she used any drugs while she was in defendants home. The court found there was no nexus between her past ingestion or use of methamphetamine to the events of March 7 or 8 of 2004. The court ruled that the prejudicial impact outweighed any probative value and ordered the evidence excluded. The courts ruling was made without prejudice if the defense could produce some indication of relevancy of her prior drug use such that the probative value would outweigh the prejudicial impact and undue consumption of time.^[4] While excluding evidence of Snodgrasss drug use, the trial court allowed the defense to present third party culpability evidence implicating Snodgrass as the person who murdered Eduardo.

The issue came up again after trial. The matter was scheduled for sentencing on March 11, 2008. Defense counsel filed a motion for a continuance because the defense needed additional time to prepare for the sentencing. The court granted the motion and continued sentencing to April 7, 2008. At the hearing, defense counsel represented to the court that prior to trial the defense did not thoroughly investigate the background of Snodgrass and stated that on Friday, April 4, 2008, a defense investigator began to investigate her background more thoroughly. Based on the reports of the investigator, defense counsel questioned whether defendant might assert ineffective assistance of counsel for the failure to thoroughly investigate Snodgrass.

Defense counsel then proposed the following course of action: Now, I have those reports. What I would propose to do is simply have the Court review those reports this morning. If the Court thinks that there is potential merit with regards to evidence that might have allowed the introduction of testimony with regards to Keyana Snodgrass drug use at time of trial, if the Court finds from these reports that that is a possibility, it seems to me it then becomes an issue with regards to ineffective assistance of counsel.

It the Court finds that based upon the reports that I would propose to submit to the Court that there is some merit with regards to presenting that evidence, then I would ask a short continuance for purposes of bringing a motion to withdraw and have other counsel appointed to bring a new trial motion based upon that issue.

But what I guess Im saying is this: Im not doing it in a very straightforward way.

As I say, an issue has arisen in my mind based upon the investigation that I was provided with yesterday. Whether it meets the threshold with regards to a meritorious showing that there was ineffective assistance with regards to failure to investigate this information in a more timely manner, it seems to me that perhaps the Court might initially review these reports and determine whether, in fact, we get to that point. If we dont get to that point, theres not much point in my withdrawing or making a motion to continue.

So thats my proposal, to simply supply the Court with these reports, have the Court review those reports, and review the issue as to whether this investigation arguably supports a claim of [ineffective assistance of counsel].

The People stated that they had reviewed the reports and there was nothing in them that would merit a new trial and they all contain multiple layers of hearsay.

Defense counsel responded that he had no information that Snodgrass used drugs at defendants house, but the reports could prove that she was an addict at the time she came to live with defendant.

The court reviewed the investigators reports. After reading the reports, the court found there was no indication in any of the reports of any knowledge by anyone of drug use by Snodgrass while she was in defendants home. The reports were marked and kept in the record. The court never made an explicit ruling on the matter, but the matter proceeded to sentencing, clearly implying the court denied defense counsels request.

Defendant claims the trial court erred when it failed to permit the withdrawal of retained counsel and to appoint conflict-free counsel to prepare a new trial motion based on ineffective assistance of counsel. Defendant argues the court should have refused counsels invitation to evaluate his performance based on the skimpy investigators report and should have instead accepted counsels invitation to permit him to withdraw. It is defendants assertion that the trial court should have done this without evaluating whether or not counsel was providing effective assistance at trial. As a second contention and fallback position, defendant posits the trial court erred in its evaluation of the merits of counsels performance.

Defendant was represented by retained counsel at trial. Even though represented by retained counsel, [a] defendant has a constitutional and statutory right to counsel of his choice, and his interest in discharging a retained attorney is included within the right to counsel of ones choice. (People v. Lara (2001) 86 Cal.App.4th 139, 152.) [A] defendant may discharge his retained counsel of choice at any time with or without cause. (Ibid.)

[W]hen a criminal defendant makes a timely motion to discharge his retained attorney he should not be required to demonstrate the latters incompetence, as long as the discharge will not result in prejudice to the defendant or in an unreasonable disruption of the orderly process of justice. [Citation.] (People v. Hernandez (2006) 139 Cal.App.4th 101, 108.)

The Sixth Amendment guarantees competent representation by counsel for criminal defendants, [and we] presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions. [Citations.] [I]n appropriate instances, trial judges ... have the power to grant a new trial based on ineffective assistance of counsel. [Citation.] (People v. Johnson (2003) 114 Cal.App.4th 284, 301.)

When a defendant represented by appointed counsel asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. (People v. Smith (1993) 6 Cal.4th 684, 692.) If the defendant represented by appointed counsel makes a colorable claim of inadequacy of counsel, then the trial court may, in its discretion appoint new counsel to assist the defendant in moving for a new trial. [Citation.] (Id. at p. 693.)

Defendant relies on Smith and argues that the rules set forth in Smith should apply equally to a defendant represented by retained counsel. The simple answer to defendants claim is that defendant never asked the court to provide her with new counsel. Having failed to make a motion to discharge her retained counsel, she is in no position to complain of any failure of the trial court to not discharge her counsel or take any other action relating to her counsels performance.

Assuming for the sake of argument only that the Smith case applies to the situation here, defendant is not entitled to relief. Under Smith a defendant is not entitled to substitute counsel unless he or she has made a proper showing. The trial court must exercise its discretion and determine if the defendant has shown that a failure to replace counsel would substantially impair the right to the assistance of counsel. (People v. Smith, supra, 6 Cal.4th at pp. 695-696.)

Again, proceeding under the assumption that Smith applies here, defendant failed to make a proper showing. We have reviewed the report prepared by the investigator. The investigator obtained statements from family, neighbors, friends, and acquaintances of Snodgrass and her parents. Many of the statements include multiple levels of hearsay, but even if the hearsay problems are overlooked, the statements do not contain any information sufficient to call into question counsels performance at the motion to admit evidence of Snodgrasss drug problem. The investigators reports contain statements that Snodgrass was using methamphetamine for more than a year prior to Eduardos death. Snodgrass admitted this at the hearing during trial, and at the hearing Arnold testified to Snodgrasss drug use. The trial courts ruling during trial excluding the evidence of Snodgrasss drug use was based on the fact that there was no evidence that Snodgrass used any drugs from the time she arrived at defendants home until the time of Eduardos death. In addition, the trial court found no nexus between her drug use and the killing of Eduardo. The reports, even if believed and even if investigated further, offer no prospect that the defense could show that Snodgrass used drugs while in defendants home or that her drug use prior to coming to defendants home had any possible effect on her actions at the time of Eduardos death. Thus, there was no showing that counsels failure to thoroughly investigate Snodgrass resulted in a possibility that Snodgrass was denied the effective assistance of counsel. On this point we note that defendants contention on appeal that counsel failed to investigate the key witness against her before trial is groundless. Defense counsel did not state that he did not investigate Snodgrass, and he clearly did, as shown by the evidence presented at the motion made during trial. He stated at the motion before sentencing that he did not investigate thoroughly the background of Snodgrass.

Finally, defendant contends that defense counsels acknowledgement of the deficiencies of the investigation of Snodgrass should have led the trial court to the related question about whether other evidence or experts should have been explored to ensure admissibility of Snodgrasss drug use evidence. In particular, defendant argues that an expert should have been consulted on methamphetamine use, which could have led to admissible evidence that Snodgrasss use showed addiction and, in turn, would have shown that she would have sought out drugs and/or the effects of withdrawal might have caused her to be angry, violent, or irritable.

While we follow the logic of defendants argument that an expert could possibly have provided a nexus between Snodgrasss drug use and her possible actions at the time of Eduardos killing, the trial court was not presented with this contention as a basis for determining if counsel may have been ineffective. We therefore have no ruling to review on this subject and, in addition, there is no evidence regarding an expert from which we could even begin to determine whether counsel should or should not have called an expert. Appellate counsel has formulated this portion of her argument out of thin air.

Defendants prejudice argument is that prejudice is presumed when an indigent criminal defendant is forced to proceed with a retained attorney she has sought to discharge in favor of court-appointed counsel. The flaws in defendants argument are clearly apparent. It was not shown that defendant was indigent and, more important, defendant did not seek to discharge her retained counsel.

Defendant has not shown error when the trial court did not order a continuance or the discharge of retained counsel.

DISPOSITION

The judgment is affirmed.

_________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

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LEVY, J.

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HILL, J.

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^[1]Rigor mortis occurs after death. The muscles of the body begin to tighten up. Rigor mortis is slower to become obvious in a child and usually appears two to four hours after death.

^[2]Lividity is a discoloration of the skin that occurs after death. There is a pooling of bodily fluid in the portion of the decedents body i