P. v. Fields

Filed 8/24/09 P. v. Fields CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

A jury convicted defendant Johnnie Lee Fields of the second degree murder and child homicide of his four-month-old daughter. (Pen. Code, 187, 273ab; see People v. Norman (2003) 109 Cal.App.4th 221, 224.) The trial court sentenced defendant to 25 years to life for child homicide and imposed but stayed a sentence of 15 years to life for murder. Defendant timely filed this appeal.

Defendant contends the trial court improperly allowed an excessive break during jury deliberations, made inconsistent evidentiary rulings, and failed to instruct the jury on involuntary manslaughter; he also contends his trial counsel was incompetent in several respects. We shall affirm.

FACTS

Although appellate counsel contends there was no direct evidence or strong circumstantial evidence to show who beat defendants four-month-old daughter to death, the evidence at trial overwhelmingly shows that defendant did so.

Kimberly Linares, the mother of victim Kaysha F., testified her daughter was born on September 6, 2003. Defendant was Kayshas father. Once when they lived in Kennewick, Washington, she and defendant were engaging in horseplay, but when she accidentally hurt him, he kneed her in the nose three times by grabbing her hair and putting her head to his knee. While defendant was serving a jail sentence for that incident, she learned she was pregnant with Kaysha. Kaysha was healthy at birth. Shortly after leaving the hospital, Kimberly was breastfeeding Kaysha and turned on the television, but defendant smacked her on the back of the head and called her an inconsiderate bitch because I turned on the TV and woke him up.

Kimberly took Kaysha for regular medical check-ups, including one a couple of days before she moved to California, and apart from a respiratory issue treated with steroids, Kaysha was healthy. A couple of weeks before Christmas 2003, the family, including defendant and Kimberlys son Andreas moved to live with Kimberlys mother in Woodland. It was stipulated that just before then, defendant had been in jail in Washington, from December 3-13, 2003.

Defendant became aggravated with Kaysha when she cried, and he would scream in the babys face. He withdrew from the family and kept to himself, and Kimberly did not have him watch the baby as much. On January 9, 2004, Kimberly bought a mobile phone, and as she walked back home with Andreas and Kaysha, defendant walked up to her quickly and called her a bitch. Because of this, her mother threw defendant out of the house, but then allowed him to return; after that, he became very quiet and withdrawn. Once when Kimberly and her mother went shopping, they returned home to find Kaysha had a big bruise and huge knot on her forehead. Defendant said Kaysha hit her head on a swing, an event Kimberly had witnessed earlier that day, but she had not seen this cause a bruise.

Kimberly testified that January 11, 2004, a Sunday, was a good day and the family played at a park. At dinner, Kaysha ate mashed potatoes and gravy for the first time and was not fussy. After dinner Kimberly and defendant walked to a store to buy diapers, and defendants mood was fine. At about 11:00 p.m., Kimberly changed Kayshas diaper and put her in her crib. After watching Jay Leno, or a similar late night program, Kimberly went to sleep. She woke up when she heard Kaysha make a really short cry and she realized Kaysha had been taken to the living room. She then heard a weird noise that sounded like a big long, long burp, lots of air coming out of her, and I could hear [defendant] patting her back. She got up and asked him what the noise was and he told her its nothing, go back to bed. She went back to bed, but then heard a snuffling noise and asked defendant what the noise was, but she then fell asleep.

Defendant later woke Kimberly up, saying something was wrong with Kaysha. Kimberly found Kaysha on the couch, not breathing. She picked the baby up and screamed at defendant to call 911, but he just stood there and stared at me, so she woke her mother, again screamed at defendant to call 911, then called 911 herself.

Kimberly testified she had a misdemeanor petty theft conviction from Washington.

Kimberlys mother testified that she had seen defendant rocking the baby improperly and warned Kimberly not to let him babysit. When she awoke to Kimberlys screaming on the night in question, she saw defendant was very calm, very nonchalant, very laid back.

Kimberlys stepfather testified he told defendant to stop rocking the baby by pulling her towards his chest. Between the cell phone incident and Kayshas death, defendant became ruder and did not speak to the family. When Kaysha was put in the ambulance, defendant did not seem upset and was just standing there on the sidewalk. The stepfather admitted a voluntary manslaughter conviction.

Woodland Police Officer John Perez testified that at about 3:15 a.m. on January 12, 2004, he responded to a call of a baby not breathing. Kimberly and her mother were hysterical, but defendant appeared not concerned really what was going on and did not follow anyone to the ambulance. Defendant told Officer Perez he had been up and down with the baby all night and [a]bout twenty minutes before we arrived he said he had woke up with the baby, had given the baby a pacifier and wrapped her in the blanket and put her back to sleep on the couch in the living room and he went to bed back in the bedroom. [] Approximately ten minutes later he woke up because he said something didnt seem right or feel right, so he went and checked on the baby, and when he did he told me that the baby didnt appear to be breathing. So he went and woke up Kimberly and told her that. Defendant also said he shook the baby to try to wake her up and called 911. While giving Officer Perez this information, defendant showed little emotion, didnt ask about the welfare of his daughter at that time. When defendant asked about her 10 to 20 minutes later, and was told she was at the hospital, he didnt show a whole lot of emotion.

Defendant did not go to the Woodland hospital, nor, after the baby was taken to the UC Davis Medical Center, did he go there. Kaysha was then taken off life support and died.

The next morning, defendant called Kimberly, and said he didnt know where he was, but he was never coming back. When Kimberly told defendant he was wanted for murder, he screamed and hung up the phone.

Former Woodland Police Detective Jack Scoggins testified that he watched defendant being interviewed while Kaysha was in the hospital, and defendant did not react when an officer gave him news about Kayshas condition. Later, during an approximate two-hour period he spent with defendant by the apartment while it was being searched, defendant made small talk and did not express concerns about Kaysha.

On the night of January 12, defendant left Detective Scoggins a message stating he was going to San Jose to stay with his brother, and he had nowhere else to stay. Kimberly called Detective Scoggins the next morning to say defendant had called her, and Detective Scoggins traced the call to a bus station in San Jose. Defendant was arrested at a Los Angeles bus station.

A Los Angeles police sergeant testified that defendant gave him a false name at the bus station.

Several treating and expert witnesses described Kayshas injuries. Dr. Jordan Kramer, an emergency room doctor at Woodland Memorial Hospital, testified that when Kaysha was brought in at 3:30 that morning, although she eventually regained a pulse, she had no signs of brain activity. She was sent to UC Davis Medical Center because it has a pediatric intensive care unit. There, Kaysha was treated by Dr. Negar Sheibani, who confirmed that Kaysha had no brain activity. The family consented to withdraw life support, and Kaysha died within minutes.

Dr. Sandra Gorges, a pediatric radiologist with training in child abuse, testified Kaysha had separate fractures on both sides of the skull, and a swollen brain. The injuries were caused both by shaking and blunt force or major trauma. A short fall would not cause such injuries, but possibly a fall down a flight of stairs could. An X-ray revealed 17 rib fractures on both sides, of two separate ages; 15 were healing and had been inflicted at least a couple of weeks before death, the others were fresh, less than a week old. These rib fractures were not caused by CPR, but by squeezing. The left arm had a healing fracture, at least two weeks old. The right calf bone (tibia) had a corner fracture which is highly suspicious for nonaccidental trauma and results from the twisting mechanism, and there was an adjacent fracture of the smaller bone in the calf, the fibula, adjacent to the tibia fracture on the right. Kayshas abdomen was swollen, which could have been from a soft-tissue injury.

Dr. Kevin Coulter, an expert in child abuse, also had the opinion that Kaysha had been battered.

Forensic pathologist Dr. Stephany Fiore conducted the autopsy. Kayshas skull had extensive fractures. Her healing rib fractures had been caused about a week to a month before.

The defense introduced a tape, purportedly showing some inconsistent statements by Kimberly, but no transcript is in the record on appeal.

DISCUSSION

I.

Defendant contends the trial court improperly allowed the jury to take a long break during deliberations. This claim is forfeited, and even if it were not forfeited, defendant has failed to demonstrate prejudice. The background to this claim is involved, but necessary to relate in detail.

During jury selection, the trial court explained that the courtroom would be dark the week of Thanksgiving and the following week, so that if the trial continued beyond Friday, November 16, it would resume on December 3, 2007 (further dates are to 2007). This was again mentioned during trial, when defense counsel expressed the hope that the trial would finish before the anticipated two-week break. The trial judge said that although he would be on vacation, the jury might be able to deliberate Thanksgiving week with another judge covering for him.

The jury began deliberations late on Thursday, November 15, deliberated all day on Friday, November 16, and was instructed to return on Tuesday, November 27. November 22 and 23 were judicial holidays, Thanksgiving Day and the Friday after Thanksgiving. (Code Civ. Proc., 135.) Thus, although the jury was not going to return for 11 calendar days, the jury was going to miss only four court days: Monday through Wednesday, November 19 to 21, and Monday, November 26.

The record reflects no objections to this break.

Further, the jury had sent the court the following note at 3:15 p.m., on Friday, November 16: The jury deliberations will continue beyond today. We wish to reconvene Tuesday, November 27^th at 9:00AM. The jury continued deliberating and sent in a final note that day asking that the court reporter be prepared on November 27 to read back certain testimony. Thus, the jury had asked to come back earlier than the date that had already been planned, December 3.

As the trial judge (Johnson, J.) had suggested, another judge (Mock, J.), covered for him during his vacation. The jury deliberated on Tuesday, November 27, requested readbacks of testimony and the Peoples closing argument, and asked if the jury could convict defendant of child homicide but acquit him of murder. The jury deliberated for a couple of hours on November 28 before acquitting defendant of first degree murder but finding him guilty of second degree murder and child homicide.

Defense counsels declaration in support of a new trial motion stated in part: On November 16, 2007, I was told by the clerk in Department 5 that the jury had broken at approximately 4:00 p.m. but had announced they would not be back until November 27th! This statement implies that defense counsel did not know of or acquiesce in the jurys request. At the hearing on the motion, defense counsel asserted that something happened the day the break was requested, but he had had no chance to object.

The trial court denied the new trial motion, in part observing, correctly, that the parties and the jury had been told during voir dire about a long break.

On appeal, defendant renews the claim of prejudicial error.

There is nothing inherently improper about a break during deliberations, and such breaks are within the discretion of the trial court. The jurors sworn to try an action may, in the discretion of the court, be permitted to separate or be kept in charge of a proper officer. (Pen. Code, 1121; see People v. Santamaria (1991) 229 Cal.App.3d 269, 276-277 (Santamaria).)

Defendants failure to object to the break, announced at and anticipated by the parties since jury selection, forfeits the claim that the trial court improperly exercised its discretion in this matter. (People v. Ochoa (2001) 26 Cal.4th 398, 440 (Ochoa), disapproved on another point as explained in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; People v. Johnson (1993) 19 Cal.App.4th 778, 792-794 (Johnson).) Indeed, the break was scheduled to be longer,but Judge Mock covered for Judge Johnson to allow the jury to resume deliberations earlierthan planned.

Defendant claims the magnitude of the error makes the lack of objection irrelevant[.] But the length of the break is not unique among cases applying forfeiture analysis, and does not show that any error occurred or that the lack of objection is irrelevant. (See Ochoa, supra, 26 Cal.4th at p. 440 [nine day break, including five court days, claim forfeited]; Johnson, supra, 19 Cal.App.4th at pp. 791-794 [17 days, including nine court days, claim forfeited].)

Defendant relies on Santamaria, supra, 229 Cal.App.3d 269 for the proposition that no objection was necessary. That case has a potentially misleading passage in a footnote that has been explained as follows:

In Santamaria, as opposed to the present case, the parties did not previously agree to and consent to an adjournment during deliberations; since the adjournment was caused by the fact that the trial judge was leaving town, the parties sought to have another judge take the verdict, so that the jury could continue its deliberations as allowed by section 1053. The trial court irrationally denied this request for no good reason, thus abusing its discretion. [Citation.] []  The actual holding in Santamaria, thus, provides no comfort to appellants here. . . . []  Appellants, however, rely upon problematic and ambiguous language contained in a dictum, in a footnote to the Santamaria decision. Following the argument and submission for decision of the appeal in Santamaria, the People sought permission to vacate the submission and file new evidence with the Court of Appeal regarding the issue of the defendants supposed failure to object. [The Santamaria court] . . . refused this untimely request: . . . We have denied this belated request; the courts abuse of discretion here was of such magnitude that whether or not appellant objected is irrelevant. [Citation.] []  We agree with [the Santamaria courts] denial of the belated request to produce additional evidence, which was clearly untimely. . . . We also agree the trial court in Santamaria abused its discretion by not allowing another judge to take the jurys verdict under section 1053. However, the ambiguous statement in dictum, which comprises the final seven words which close the Santamaria footnote quoted above, is problematic and has given rise to concern. Appellants for instance quote it, out of context, as a statement of law that any time a defendant agrees to any break in deliberations at trial, he can nevertheless complain about the matter for the first time on appeal. []  Appellants interpretation of the ambiguous Santamaria dictum is clearly wrong. The jury often breaks its deliberations, with the consent of counsel for the parties, for lunch or dinner, or to return home to sleep. Deliberations often do not continue on Sundays and holidays. The Santamaria court never intended to call such practices into question. Nor does the Santamaria court opine, even in dicta, that an appellant who has affirmatively agreed to even a long break in deliberations may bide his time and later complain about the matter on appeal, as appellants seek to do here. (Johnson, supra, 19 Cal.App.4th at pp. 792-793; see Ochoa, supra, 26 Cal.4th at pp. 440-441 [Santamaria did not purport to abrogate the duty to object generally].)

In sharp contrast to Santamaria, in this case the trial judge did arrange for another judge to cover his calendar, thereby shortening the planned break. Further, the fourcourt days actually lost as a result of the break were Monday through Wednesday, November 19 to 21, and Monday, November 26. Thanksgiving was on Thursday, November 22 that year. Contrary to appellate counsels apparent view, we do not think forcing the jury to deliberate in a child murder case in the days before Thanksgiving was necessary, but instead view it as a logical respite for the jurors, allowing them to have a normal holiday week with their families. The break here does not reflect an abuse of discretion under state law, and does not come close to showing a federal due process violation.

Appellate counsel asserts there was no tactical reason for not objecting, and claims trial counsel was incompetent. Where the reasons for trial counsels failure to object to an alleged error are not revealed by the record, the claim of incompetence must be rejected on appeal unless counsel was asked for an explanation and failed to provide one or there can be no satisfactory explanation. (People v. Mitchell (2008) 164 Cal.App.4th 442, 467 (Mitchell).) In this case, trial counsel could rationally have concluded that the jurors would be unhappy at any curtailment of the promised break around the holiday. (See Johnson, supra, 19 Cal.App.4th at p. 792 [Tactically, there would be no reason why a defendant would necessarily want to force the jury to continue to deliberate without ceasing, against a Christmas holiday deadline; this could lead to a very quick and unfavorable verdict].)

Nor can defendant show prejudice, another element of a claim of incompetent counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218 (Ledesma); Mitchell, supra, 164 Cal.App.4th at pp. 466-467.) Despite his efforts at parsing what the jury may have been thinking, there is no indication the break affected deliberations.

For example, trial counsel attested during the new trial proceeding that he had been getting nods of affirmation from several jurors during closing arguments. On appeal, defendant would have us infer this meant the jurors were leaning towards the defense, but then, during the break, changed their minds. Even if jurors were nodding, at best that may show they understood the defense argument, but we cannot conclude it meant they agreed with the defense argument. Further, even if they did, it is speculation to infer the break caused them to change their minds. Until the jury is polled and the verdicts are recorded, every juror is free to change her or his mind. (Pen. Code, 1163-1164; see Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 256.) Appellate counsel also parses the sequence of jury questions, readback requests and so forth, in an effort to divine what the jurors thought before, as opposed to after, the Thanksgiving break. The jurors ultimate thoughts were revealed by their verdict. It is speculation to infer the break induced them to conclude defendant murdered his daughter.

Defendants theory of prejudice also hinges on his view that the case was close and the defense proffered the viable theory that the injury could have been suffered when [Kimberly] Linares had access to the child at about 2:00 a.m. The earlier injury to the victims ribs could have been suffered when [he] Johnnie was in custody.

This was not a close case. Defendants theory fails to explain: his lack of interest in his four-month-old daughters well-being after it was clear she was seriously ill; his abrupt departure from the home; his flight to Los Angeles, showing his consciousness of guilt; and the utter lack of motive for Kimberly to kill her daughter. This failure to explain is highlighted by the evidence that defendant had been rough with his daughter before she was killed by heavy blows to both sides of her head.

Accordingly, we reject defendants claim that the break during jury deliberations compels reversal in this case.

II.

Defendant contends the trial court made inconsistent evidentiary rulings, allowing evidence of his past bad conduct, but limiting such evidence against Kimberly, arguing the scales of justice were egregiously imbalanced thereby.

Defendant first contends the trial court wrongly excluded evidence of Kimberlys theft convictions. This claim is not supported by the record on appeal.

Defendant moved in limine to preclude the People from impeaching him with prior convictions. He also moved to impeach Kimberly with fourprior theft convictions. The trial court indicated defendants convictions for assaults, possession of a firearm and harassment, if a felony, were admissible to impeach him. However, the trial court deferred a final ruling on Kimberlys priors, in part because the documentation was incomplete. At trial Kimberly admitted one theft conviction.

On appeal, defendant asserts the trial court should have allowed him to impeach Kimberly with her other convictions, and trial counsel was incompetent in failing to press the issue or obtain a ruling on the record. However, there is nothing in the record to show that Kimberly had more than one admissible theft conviction. The most plausible scenario is that when additional documentation about her criminal records was obtained, it revealed this fact. On this record we will not infer that admissible impeachment evidence was excluded, nor that trial counsel was incompetent. Nor, in any event, and contrary to appellate counsels claim, would Kimberly have had a false aura of veracity because only one of four hypothetical theft convictions had been introduced.

Defendant next contends the trial court improperly permitted the prosecutor to introduce evidence of his physical and verbal abuse of Kimberly. Defendant appears to refer to the testimony that he became enraged when Kimberly bought a cell phone and called her a bitch, and her testimony that before she knew she was pregnant with Kaysha, defendant kneed her in the nose, leading to jail time; it is not clear whether he also refers to the incident where defendant smacked Kimberly on the head while she was breastfeeding Kaysha. In any event, his general point is that evidence of domestic disharmony was irrelevant and prejudicial.

As the People point out, at least part of this contention is forfeited because the trial court reserved ruling on the incident resulting in defendants jail sentence, and trial counsel did not thereafter lodge an objection.

In any event, defendant frames this as a due process violation, claiming the errors deprived him of a fair trial. Even if we assumed this evidence was inadmissible, the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.] Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida).)

Contrary to defendants view, this was not a close case, nor was it a credibility contest between defendant and Kimberly, as he asserts. Defendant did not testify; his guilt was abundantly shown by his having had the last known live contact with Kaysha, and as stated above, the absence of evidence of anyone elses motive, his lack of emotion regarding his daughters condition, and his flight to Los Angeles. That the jury deliberated for about two and a half days, asked for readbacks, and asked questions, does not show it was torn between conviction and acquittal, as defendant speculates. It just shows the jury was taking the evidence and instructions seriously, as it was supposed to do.

With this understanding of the case, we fail to see how the evidence of domestic disharmony resulted in a fundamentally unfair trial. Accordingly, assuming the evidence was not admissible, we conclude it is not reasonably probable the verdict would have been more favorable to the defendant absent the error. (Partida, supra, 37 Cal.4th at p. 439.)

III.

The trial court instructed on murder and voluntary manslaughter. During argument, the prosecutor conceded the crime was no higher than second degree murder. On appeal, defendant contends the trial court should have given his requested instruction on the lesser offense of involuntary manslaughter. We disagree.

The fact that involuntary manslaughter is an offense included within murder did not justify instruction thereon. A trial court should not instruct on a lesser offense unless there is evidence from which a rational jury could find that the lesser offense, and not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 177.)

The requested instruction, taken from CALCRIM No. 580, in part would have told the jury that An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.

Defendant argues as follows: If the jury concluded that the infant was not accidentally injured, then presumably the injury was the result of an assault and/or battery. The jury was entitled to consider, and Johnnies defense required consideration of, whether Johnnie committed an assault and/or battery realizing the risk to human life involved and acted in total disregard of that danger or whether he acted without realizing the risk involved. . . . If it was the latter, he was guilty [only] of involuntary manslaughter.

We agree with defendants legal claim: [T]he essential distinction between second degree murder based on implied malice and involuntary manslaughter is the subjective versus objective criteria to evaluate the defendants state of mindi.e. if the defendant commits an act which endangers human life without realizing the risk involved, he is guilty of manslaughter, whereas if he realized the risk and acted in total disregard of the danger, he is guilty of murder based on implied malice. (People v. Cleaves (1991) 229 Cal.App.3d 367, 378.) But we strongly disagree that there was any substantial evidence defendant killed his daughter by committing an act dangerous to human life without realizing the risk involved[.] (Ibid.)

This case is factually and procedurally similar to People v. Evers (1992) 10 Cal.App.4th 588 (Evers). In that case the two-year-old victim was killed by either violent shaking, or a substantial impact, equivalent at least to a 10-foot drop and possibly a 20- to 30-foot fall. (Id. at p. 593.) The court rejected the claim that Evers had been entitled to involuntary manslaughter instructions, as follows:

Involuntary manslaughter is the unlawful killing of a human being without malice. . . . [] . . . in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. . . . ([Pen. Code,] 192.) []  Severe physical abuse, such as occurred in this case, is a felony. (See 273a, subd. (1).) Notwithstanding the text of section 192, subdivision (b), our Supreme Court in People v. Burroughs (1984) 35 Cal.3d 824 [], has construed lawful act to include noninherently dangerous felonies. [Citation.] Burroughs reasoned this interpretation was necessary to avoid the anomalous result that while one who kills in the course of a lawful act without due caution and circumspection is guilty of involuntary manslaughter, [another person] who allegedly commits a homicide while committing a noninherently dangerous felony, is guilty only, perhaps, of a battery. [Citations.] Thus, because child endangerment under section 273a, subdivision (1) is not a felony inherently dangerous to human life, [citations], the court should have given an instruction on involuntary manslaughter provided there was sufficient evidenceevidence which was not minimal or insubstantialshowing Evers acted without due caution and circumspection. []  The words without due caution and circumspection refer to criminal negligenceunintentional conduct which is gross or reckless, amounting to a disregard of human life or an indifference to the consequences. [Citation.] If a defendant commits an act endangering human life, without realizing the risk involved, the defendant has acted with criminal negligence. By contrast[,] where the defendant realizes and then acts in total disregard of the danger, the defendant is guilty of murder based on implied malice. [Citation.] Thus the pivotal question here was whether there was sufficient evidence for a reasonable juror to find Evers acted without consciously realizing the risk to Michaels life. [Citation.] [] . . . [] The severity of Michaels injuries on this occasion makes clear that whoever abused Michael had to know such abuse would likely cause serious injury or death. The undisputed evidence showed Michael was physically abused with major force causing injuries equivalent to those resulting from a 10- to 30-foot fall. (Evers, supra, 10 Cal.App.4th at pp. 596-597; see also People v. Parras (2007) 152 Cal.App.4th 219, 228 [no evidence supported involuntary manslaughter instruction; The undisputed evidence showed that Ms. Lomberas injuries were inflicted by the use of great, violent force. Her head was hit with a portable radio and possibly a chair as well. Her injuries included a compound fracture to her jaw, four teeth being knocked out, and 12 to 15 distinct head wounds. Infliction of these injuries did not involve a simple misdemeanor battery, as appellant seems to contend, but an aggravated felony assault with a deadly weapon or by means of force likely to produce great bodily injury].)

The evidence in this case is quite similar to the evidence in Evers. According to the expert testimony, which was not contested, the babys skull was broken on either side by heavy blows, and two of her 17 rib fractures were fresh. No rational jury could conclude defendant inflicted such a beating on a four-month-old baby without being aware it would cause serious injury or death. Accordingly, no substantial evidence supported an instruction on involuntary manslaughter.

IV.

Defendant contends his trial attorney was incompetent in several respects. To prevail, defendant must show both that trial counsel failed to act within professional norms and that the error or omission caused prejudice, that is, that there was a reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result at trial. (Ledesma, supra, 43 Cal.3d at pp. 217-218.)

We already addressed defendants claims of incompetence regarding the break in jury deliberations and the admission of impeachment evidence against Kimberly and abuse evidence against defendant, and concluded the record failed to support the claim of prejudice from trial counsels purported failings.

Defendant claims trial counsel gave an incompetent opening statement. The style and content of an opening statement is inherently tactical. In this case, trial counsel gave a seven-page outline of the expected trial evidence. Appellate counsel faults it because it did not give a witness by witness summary. He cites no authority that such is required, or even desired, in all cases. He also claims a fact was misstated, specifically, that Kimberly had told her mother she did not want defendant left alone with Kaysha. Trial counsel mentioned this during closing argument, as well. But at trial, there was testimony Kimberlys mother told Kimberly not to let defendant babysit the victim, and testimony from Kimberly that she did not let him do so as much as she had before. Putting aside the fact that an opening statement is neither evidence nor argument, we fail to see any significant variance between the trial evidence and the opening statement on this point. Nor would such misstatement cause prejudice.

Appellate counsel faults trial counsel for not objecting or moving for a mistrial at various points where the prosecutor referred to defendants physical conduct against Kimberly, because the prosecutor had conceded that Johnnies previous physical conduct was not admissible. (RT 105) Page 105 of the Reporters Transcript includes a passage where the prosecutor states there may be some legitimate argument as to the earlier domestic violence since the child wasnt present . . . . This is not a concession, but reflects the musings common in colloquy with the court. The prosecutor did not concede the evidence was inadmissible, as defendant asserts.

Appellate counsel faults trial counsels closing argument, because he failed to point out a substantial inconsistency in the Peoples case. The claimed inconsistency is that, if defendant killed his daughter, why would he wake Kimberly up, instead of going to sleep and letting someone else make the discovery so that he would not be so closely linked to the event? This raises an inference that could have been argued. But Kimberly testified she woke up earlier in response to a noise from Kaysha, but defendant told her its nothing, go back to bed. In light of this testimony, trial counsel could rationally conclude the purported inconsistency posed on appeal would not be persuasive to the jury.

Finally, defendants argument for prejudice is not that this was a close case, as he argued earlier in his brief, but that [t]his was an extremely weak case. We disagree. This was a solid case, for the reasons we have stated before.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

RAYE , Acting P. J.

BUTZ , J.

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