P. v. Bernal

Filed 8/19/09 P. v. Bernal CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant Erika Bernal of second degree murder ( 187, subd. (a))[1] and assault on a child under the age of eight years causing death ( 273ab). The victim was defendants 21-month old son Jose. The trial court imposed a sentence of 25 years to life on count 2 ( 273ab) and imposed, but stayed pursuant to section 654, a sentence of 15 years to life on count 1 ( 187, subd. (a)).

In this appeal, defendant contends primarily that the trial court committed reversible error by failing to instruct sua sponte on the theory of voluntary manslaughter. She argues that [a] reasonable interpretation of the evidence from [her] perspective was that for one tragic moment the heavy demands of raising two small children in a single room without the support of a husband or adequate money caused [her] to reach the breaking point and lash out with unexpected force from this provocation. We disagree. As a matter of law, the evidence defendant relies upon does not constitute reasonably adequate provocation within the well-settled meaning of the law. We therefore conclude that the trial court had no sua sponte duty to instruct upon voluntary manslaughter.

Secondarily, defendant attacks the trial courts decision to permit the prosecutor to introduce evidence that she had previously abused her other child. In that regard, defendant contends that Evidence Code section 1109, the statute permitting admission of such evidence, is unconstitutional. Alternatively, she argues that the trial court abused its discretion in allowing the evidence. We are not persuaded by any of these arguments. We therefore affirm the judgment.

STATEMENT OF FACTS

1. The Prosecutions Case

a. Jose Is Injured and Taken to the Hospital

Defendant lived with Ruben Rivera (the father of her two children), her son Jose (the victim) and her daughter Luz. The four lived together in the room of a four-bedroom house. They shared the house with another family and a single woman. When the crimes were committed, Jose was 21-months old and Luz was three-years old.

Rivera left the house in the early hours of August 18, 2006. Defendant and the two children were asleep. Later that morning, defendant telephoned Maria Brera (one of her housemates). Defendant was panicking and told Brera that Jose was unconscious and . . . not reacting. Brera told defendant to call the paramedics but defendant refused to do so, stating she was afraid that they would take her children away once again. Very soon thereafter, the paramedics received a 911 call (in all likelihood from defendant) and went to defendants residence. Defendant was holding Jose in her arms. The child was unresponsive. Defendant then gave the first of what was to be multiple inconsistent explanations for Joses injuries. She told the paramedics that had Jose had been jumping on the bed, had fallen between the bed and the wall, and had then struck his head on what she falsely claimed was a tile floor. (The floor was, in fact, carpeted.) The paramedics transported Jose to the emergency trauma room at Long Beach Memorial Hospital.

At the hospital, three physicians examined Jose. Dr. Graham Tse, a pediatric critical care specialist, reviewed a CT scan of Joses brain. It disclosed significant swelling on the left side of his brain. Dr. Tse opined that the swelling had been caused by shaking the child and by high impact with another force. Dr. William Roberts, a pediatric hematologist oncologist, examined Jose and found extensive cranial bleeding caused by severe trauma, not a fall. Dr. Robert Clark, a pediatric ophthalmologist, examined Joses eyes and found extensive and severe retinal hemorrhaging. He concluded that the cause of these injuries was a prolonged, repetitive motion of violent vigorous shaking.

b. Defendants Conflicting Explanations for Joses Injuries

While at the hospital, defendant gave conflicting explanations for Joses injuries. Defendant told Dr. Roberts that she saw the accident. According to her, Jose had been jumping on the bed, turning flips in the air when he flipped off of the bed and hit his head on the beds side rail. Dr. Roberts did not find this explanation credible because a 21-month old child such as Jose lacks the developmental abilities to jump and turn flips on the bed.[2] Defendant told Carol Lerma, a social worker at the hospital, that Jose had been bouncing on the bed, fell backwards, and hit his head on the tile floor but law enforcement subsequently determined that Joses bedroom had no tile flooring. Rather, it had one-half inch carpet with one-half inch padding underneath. Defendant told Deputy Sheriff Gilbert Ramirez that Jose had been jumping on the bed when he fell off and hit his head on the side of the bed frame. Lastly, defendant gave Detective Sean Van Leeuwen inconsistent explanations. First, she said Jose did a somersault, hit his head on the footboard of the bed, and fell between the footboard and wall. But when questioned, defendant replied that she had not actually seen that happen but, instead, had heard a thud, turned, and saw that Jose had slid headfirst down between the footboard and wall. She told the detective that she immediately called 911 and denied calling Brera before first calling 911.

Later that day, several detectives accompanied defendant and Rivera back to the residence. There, defendant continued to switch between two versions of the events: the first being that she saw Jose do a somersault and fall and the second being that she first heard a thud and then saw that he had fallen between the footboard and wall. The detectives saw bags on the bedroom floor where defendant had claimed that Jose had fallen. When asked if Jose had fallen on the bags, defendant appeared startled by the question and said that she had put the bags there after Jose had fallen. However, Rivera told the detective that he had placed the bags there the day before his son was hurt. The detectives also saw that the side railing of Joses crib was broken, the brackets having been dislodged by force. According to Rivera, the crib was not broken when he left on the morning of August 18.

c. The Autopsy

Jose died the next day (August 19) after undergoing surgery to remove a portion of his skull to relieve the pressure on his brain. Dr. Louis Pena performed the autopsy. He determined the cause of death to be blunt force trauma to the head. Jose had a very large linear skull fracture extending from the top of his head to the base. Joses brain had widespread hemorrhaging and was severely swollen. The bleeding was caused by significant shaking. Joses extensive injuries (fracture, bleeding and swelling) could not have been caused by falling under his own weight. Instead, the injuries were consistent with having been vigorously shaken and hitting the back of his head against a hard object such as a crib. In addition, Jose had fresh bruises, consistent with having been punched, slapped or grabbed.

Dr. Imagawa (see fn. 2, ante) reviewed the medical reports, including the coroners. In her opinion, Jose had suffered significant and serious head trauma. His injuries were consistent with violent shaking. The injuries were not consistent with any of the explanations given by defendant.

d. Evidence of Prior Child Abuse

In May 2004, defendant brought her then eight-month old daughter Luz to the hospital for examination. Dr. Imagawa examined the child and found a large bump on the upper left side of her head. The doctor described it as a contact injury, either the head hit something or something hit the head. Defendant denied knowing the cause of the bump although she had earlier told a former neighbor that it was caused by Luz drinking too much Pedialyte fluid. An X-ray disclosed that Luz had bone fractures in each arm, approximately 14 to 21 days old. In Dr. Imagawas opinion, the fractures clearly indicated child abuse. She explained that the fractures were caused either by an adult grabbing the childs arm in a twisting manner or by an adult vigorously shaking the child and allowing its arms to flail about. The injuries were not consistent with Luz simply falling. Defendant offered no explanation to Dr. Imagawa for the fractures in Luzs arms although she had told one person that Luz had hit herself with the window and another that Luz had fallen off the bed.

2. The Defense Case

Defendant did not testify but did present two expert witnesses to challenge the prosecutions theory of the case. Isaac Nasirikram, a forensic consultant in accident reconstruction, opined that Joses injuries were consistent with an accidental fall from a short distance (e.g., from a bed) and not shaking. In addition, he believed that it was highly improbable that a person could administer sufficient force through shaking to have caused Joses retinal hemorrhaging. Dr. John Plunkett, a forensic pathologist, testified that there is no experimental evidence to support the assertion that retinal hemorrhaging indicates a shaken baby or that shaking can cause brain injury. He also testified that a short fall by a child can be fatal.

3. The Jury Instructions

In regard to count 1 ( 187, subd. (a)), the trial court submitted the pattern instructions about second degree murder and the lesser included offense of involuntary manslaughter. (CALCRIM Nos. 500, 520, 580, & 641.) In regard to count 2 ( 273ab), the trial court submitted the pattern instructions about child abuse homicide and its lesser included offenses of assault with force likely to produce great bodily injury and simple assault. (CALCRIM Nos. 820, 875, 915, 3518.)

4. Defendants Theory of the Case

As set forth in defense counsels closing argument, defendants theory of the case was that this was nothing more than a tragic accident, . . . the injuries that young Jose sustained were attributed to an accident. He attacked the credibility of the prosecutions experts and, relying upon the testimony of the defense experts, argued that defendant could not have injured Jose in the manner testified to by the prosecutions medical witnesses. In addition, he urged that it was physically impossible for defendant (this little lady) to have shaken Jose with sufficient force to cause the injuries. In regard to the charged offenses, he argued that there was no evidence either of murder or assault on a child causing death because there was no proof of an intentional act by defendant (e.g., shaking).

Defense counsel applied the same reasoning to argue against a guilty verdict on any of the lesser included offenses: no proof that defendant had shaken Jose and the events were simply an accident.

DISCUSSION

A. INSTRUCTIONAL ERROR

Defendant contends that in regard to count 1, the trial court had a sua sponte duty to instruct on voluntary manslaughter and that its failure to do is prejudicial.[3] We disagree.

Voluntary manslaughter is a lesser included offense of murder.[4] (People v. Lee (1999) 20 Cal.4th 47, 59.) As we explained in People v. Johnston (2003) 113 Cal.App.4th 1299, [t]he essence of the sudden quarrel/heat of passion voluntary manslaughter is that the killer is so provoked by acts of the victim that [s]he strikes out in the heat of passion, an emotion that obliterates reason that would prevail in the mind of a reasonable person. That circumstance negates malice aforethought, and reduces the crime from second degree murder, which otherwise would be its classification. (Id. at p. 1311, italics added.)

When a defendant is charged with murder, the trial court is required to sua sponte instruct about voluntary manslaughter only if the record contains substantial evidence of the lesser included offense. (People v. Breverman, supra, 19 Cal.4th at pp. 154-162.) Substantial evidence in this context is evidence from which a jury composed of reasonable [persons] could . . . conclude[] that the lesser offense, but not the greater, was committed. [Citations.] (Id. at p. 162.)

The heat of passion requirement for [voluntary] manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . [T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because no defendant may set up [her] own standard of conduct and justify or excuse [her]self because in fact [her] passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable [person]. [Citation.] (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)

To support her argument that the record contained substantial evidence of provocation, defendant claims that the evidence . . . painted a picture of [her] as a tragic, lonely woman forced by poverty, isolation, and a lack of marketable skills to raise two infants virtually alone in a single room of a rented house. The jury might well have concluded that [she] injured Jose in a single episode while she was under the emotional force of an unendurable moment. When viewing the evidence from the perspective of [voluntary] manslaughter, it was consistent with a finding that, for one terrible moment, the heavy demands placed on [her] took [her] to the breaking point.

Assuming arguendo that defendant has accurately characterized her home-life circumstances,[5] this situation does not suggest voluntary manslaughter. There must be substantial evidence of both the subjective and objective components before the trial court is required to instruct on voluntary manslaughter. (People v. Steele, supra, 27 Cal.4th at p. 1252.) Hence, even if there was evidence that defendants passions were aroused, the trial court was not required to instruct on voluntary manslaughter unless there was also substantial evidence that defendants passion was induced by reasonably adequate provocation. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144.) Here, no rational juror could have found that a reasonable person in defendants situation would have been provoked to kill her child. Sound policy considerations militate against even adopting the premise of defendants contention: that aggravation caused by a vulnerable and defenseless child posing no threat to a defendant could create feelings of homicidal rage or passion in an ordinarily reasonable person so as to negate the malice component of murder. (See People v. Ogen (1985) 168 Cal.App.3d 611, 622 [there are substantial policy reasons to restrict the application of the heat of passion defense to cases where the circumstances are sufficiently provocative to trigger violent reactions in a reasonable person. As members of society, each of us is constantly in contact with family members, friends, acquaintances and strangers under countless circumstances. No social interaction is so placid as to be utterly devoid of interpersonal stress and friction including, we speculate, monastic existence short of becoming a hermit. . . . However, society has a strong interest in deterring violent and homicidal conduct by not allowing individuals to justify their acts by their own standard of conduct].)

To a certain extent, defendant attempts to avoid this conclusion by relying upon decisional law providing that extended physical or psychological abuse by a spouse can negate malice and therefore reduce the killing of the abusive spouse from murder to voluntary manslaughter. (In re Walker (2007) 147 Cal.App.4th 533, 545-546; see also People v. Humphrey (1996) 13 Cal.4th 1073, 1084-1089.) From this, she argues that there was sufficient evidence at trial in the present case to support a conclusion that a series of provocative events over a long period of time culminated in a single act of [defendant] shaking Jose while she was in the throes of uncontrollable emotion because [t]he circumstances of [her] life were marred by extreme hardship. . . . [] . . . [She] lost her temper and shook her son while acting in the heat of passion created by her unendurable circumstances. She did not have the requisite express or implied malice to commit murder. Rather, her ability to reason was replaced by angry passion. The argument fails because the touchstone of the on-going provocation theory is that the victim has engaged in continual psychological and physical abuse of the defendant, resulting in a homicide. Here, that clearly never happened. Jose did nothing to provoke, within the meaning of the law of voluntary manslaughter, defendant to kill him.

In sum, nothing in the evidence required the trial court to sua sponte instruct on voluntary manslaughter. Or stated another way, the record contains absolutely no evidence to suggest that defendant killed her 21-month old son in response to objectively reasonable provocation or under circumstances which would arouse an objectively reasonable person to a killing passion.

B. ADMISSION OF PRIOR INSTANCES OF CHILD ABUSE

As set forth earlier, the prosecutor introduced evidence that in 2004, defendant had abused her daughter Luz. Defendant attacks the introduction of that evidence on several grounds, none of which has merit.

1. Evidence Code Section 1109 is Constitutional

Evidence Code section 1109, subdivision (a)(3) provides, in relevant part: [S]ubject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendants commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible to Section 352.[6]

Defendant contends the statute is unconstitutional because the admission of propensity evidence renders a defendants trial fundamentally unfair. This contention (including several variations on the claim that the statute is unconstitutional) has been consistently rejected by the courts of appeal. There is no reason for us to repeat those analyses. It is sufficient to note that we agree with them. (People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81 Cal.App.4th 1343, 1352-1353; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1313; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1030; and People v. Johnson (2000) 77 Cal.App.4th 410, 416-420.)

Defendant concedes these precedents but urges they are incorrect in light of Cooper v. Oklahoma (1996) 517 U.S. 348 (Cooper), a case decided before section 1109 was even enacted. Cooper did not address the constitutionality of a statute permitting admission of propensity evidence. Instead, it addressed the constitutionality of a state statute requiring a criminal defendant to establish incompetency to stand trial by clear and convincing evidence. Cooper examined the historical and contemporary procedures for determining competency and found that the vast majority of states apply a standard requiring a defendant to prove incompetence by only a preponderance of the evidence. (Id. at pp. 355-362.) Given that context, Cooper held that the statute requiring a heightened burden of proof offended a principle of justice that was deeply rooted in the traditions and conscience of our people and did not exhibit[] fundamental fairness in operation. (Id. at p. 362.)

Using Coopers analytical framework, defendant contends that section 1109 is unconstitutional because there is a long history prohibiting the use of propensity evidence in a criminal prosecution so that permitting its use now offends traditional notions of due process and fair play. We are not persuaded. Several courts of appeal have rejected that argument (even though it did not specifically rely upon Cooper). (People v. Cabrera, supra, 152 Cal.App.4th at pp. 703-704; People v. Hoover, supra, 77 Cal.App.4th at pp. 1026-1028.) Those cases, in turn, relied upon People v. Falsetta (1991) 21 Cal.4th 903 which upheld the constitutionality of section 1108 (permitting use of propensity evidence in sexual offense cases) against an essentially identical constitutional attack. We agree with the reasoning of all of those authorities. No more need be said.

2. The Trial Court Did Not Abuse Its Discretion

Defendant next contends that even if section 1109 is constitutional, the trial court abused its discretion in permitting the prosecution to introduce evidence about defendants abuse of Luz which occurred slightly more than two years before Joses death. We disagree.

a. Factual Background

Prior to trial, the prosecutor filed a motion to admit evidence of prior uncharged acts of child abuse committed by defendant upon her daughter Luz. The admissibility of the evidence was litigated in a pretrial hearing. The trial court directed the prosecutor to address whether a preponderance of the evidence established: (1) Luz was the victim of child abuse and (2) defendant was the abuser. Dr. Imagawa testified at length about her examination of Luz in May 2004 which included, as set forth earlier, her findings that Luz had a bump on her head and fractures in her arms. In addition, Dr. Imagawa testified that Luz had a skull fracture and a wrist fracture but conceded that she could not identify when those injuries were inflicted. After reviewing the various medical and police reports, the trial court indicated that it needed additional evidence to determine whether defendant was responsible for any of the injuries testified to by Dr. Imagawa. Thereafter, six witnesses, including defendants family members and friends, testified about who cared for Luz at various times.

Over defense objection, the court ruled that evidence of the arm fractures would be admissible. It made the specific finding that at least by [the] preponderance of the evidence that there were no other adults that were caring for Luz during the time that she suffered these bilateral metaphyseal fractures, which are indicative of child abuse.^[[7]] [] . . . Therefore, the court will allow the People to introduce evidence of the . . . fractures under [section] 1109. Im making a [section] 352 determination that the prejudicial factor is not going to be outweighed by its probative nature. And also under [section] 1101 (b) show the absence of any kind of mistaken injury. In addition, the court ruled that evidence of the bump on Luzs head would be admissible because it occurred while Luz was in defendants care and because defendant had made inconsistent statements about its cause. However, the court disallowed evidence about the skull and wrist fractures.

Two pattern instructions were submitted to the jury setting forth how it could use the evidence of prior child abuse. Each instruction explained that the jury first had to find by a preponderance of the evidence that defendant had committed the child abuse. CALCRIM No. 375 then explained, among other things, that the jury could, but was not required to, consider the evidence in deciding whether defendant knew the potential danger of shaking a child when she allegedly acted in this case and whether her alleged actions were the result of mistake or accident. CALCRIM No. 852 explained that if the jury decided defendant had committed the uncharged abuse, it could, but was not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit Murder and Assault on a child under 8 causing death or great bodily injury, as charged.

b. Analysis

Section 1109 expressly permits a trial court to admit or exclude evidence of prior uncharged abuse under section 352. The latter section gives the trial court broad discretion to assess whether the probative value of the evidence is outweighed by the probability of undue prejudice, confusion, or consumption of time. (People v. Brown, supra, 77 Cal.App.4th at p. 1337.) The trial courts exercise of its discretion will not be disturbed on appeal unless it exercised it in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (Ibid.)

In this case, defendant has failed to establish an abuse of discretion. Before admitting the evidence, the trial court held a lengthy hearing at which seven witnesses testified. The trial judge was particularly aware that the evidence was relevant only if the People could establish defendant was responsible for Luzs injuries. Based upon the testimony offered, the trial court limited the evidence of prior child abuse to the bump on Luzs head and her fractured arms but excluded evidence of a fractured skull and fractured wrist.

Given the care with which the judge treated the evidence, we see no abuse of discretion in the trial judges conclusion that the probative value of the evidence was not substantially outweighed by the danger of undue prejudice. (People v. Brown, supra, 77 Cal.App.4th at p. 1338.) The prior incidents were sufficiently similar to be relevant to prove propensity. Luzs arm fractures were likely caused by shaking as were Joses fatal injuries and the bump on Luzs head was likely

caused by blunt force trauma as was Joses skull fracture.[8] Defendants claim that the incident involving Luz brings to mind a more emotionally inflammatory image [given] [t]he brutality of those facts, falls flat in light of the strong evidence that she murdered her 21-month old son by severely shaking him and banging his head against the crib. Further, the evidence about Luzs injuries (which were not remote in time) did not, comparatively, consume much time at trial. The trial courts decision to admit the evidence about Luzs injuries was not an abuse of discretion.

Defendant relies upon People v. Harris (1998) 60 Cal.App.4th 727 (Harris) to support a contrary conclusion. The reliance is misplaced. As explained by one of the many courts of appeal that have rejected an appellants reliance on that case,[9] its relevant facts are the following:

In Harris, the defendant, a mental health nurse, was charged with several sexual offenses after he allegedly took advantage of two emotionally and physically vulnerable women in his care. (Id. at pp. 730-731.) At trial, the prosecutor introduced evidence of the defendants prior violent criminal behavior through the testimony of two police officers. (Id. at p. 733.) They described finding a woman who had been severely beaten, was covered in blood, and appeared to be unconscious. (Id. at pp. 734-735.) The defendant, whose crotch was bloody, was found hiding nearby. (Ibid.) It was also stipulated that the defendant had been convicted of burglary with great bodily injury. (Id. at p. 735.) The reviewing court [in Harris] stated that the evidence was inflammatory in the extreme, and would have allowed the jury to speculate as to the defendants role in the crime in light of his conviction for burglary. (Id. at p. 738.) It also noted that the jury could have concluded that the defendant was never punished for the prior rape, and thus might have been inclined to punish him by convicting him of the charged offenses. (Ibid.) The Harris court further found that the remoteness of the evidence weighed heavily in favor of exclusion, since the prior offense had occurred 23 years earlier. (Id. at p. 739.) Though recognizing that admission of the evidence would not consume much time during trial (ibid.), the court concluded that evidence that the defendant was a violent sex offender had little relevance to the breach of trust sex crimes. (Id. at pp. 740-741.) Thus, the Harris court found an abuse of discretion in the admission of the evidence of the prior conviction conduct. (Id. at p. 741.) (People v. Wesson (2006) 138 Cal.App.4th 959, 970.)

Harris, supra, is clearly distinguishable. The evidence about defendants abuse of Luz was sufficiently similar to be relevant to prove propensity; the abuse was markedly less inflammatory than the charged crimes; the incident was not remote in time; the evidence about the uncharged abuse did not consume undue court time; and nothing in defendants abuse of Luz would have improperly inclined the jury to convict simply to punish her for the prior uncharged abuse.[10] On this record, we find that the trial court properly exercised its discretion to admit some (but not all) of the evidence about Luzs prior abuse. As such, the use of the propensity evidence did not deny defendant due process and a fair trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1] All undesignated statutory references are to the Penal Code unless noted otherwise.

[2] Dr. Roberts opinion about the inability of a child of Joses age to turn flips in the air was confirmed by Dr. Karen Imagawa, a pediatrician and child abuse expert. In addition, Rivera (Joses father) testified that while Jose occasionally jumped on the bed, he could not do flips in the air.

[3] It is not clear from this record whether defense counsel requested this instruction. In a discussion about instructions held before the defense case was completed, the following exchange occurred:

THE COURT: . . . Youre going to be asking for lesser included?

[DEFENSE COUNSEL]: Yeah, I think I am on this case.

THE COURT: Like a

[DEFENSE COUNSEL]: Im going to ask for a vol. Id be asking for vol or vol vol or invol. Im entitled to both. Thats a lesser. I feel with a vol there has to be heat of passion. I dont know.

THE COURT: The only conceivable vol, when you get it downgraded to a vol, is a heat of passion.

[DEFENSE COUNSEL]: I understand that. Am I entitled to invol as well? Arent I arguing two different things that are consistent with one another?

THE COURT: The use note for voluntary, I have to tell you that I havent worked a homicide for quite some time.

But you used to have to have express malice in order to get a vol; right?

I think the state of the law is you do not have to have express malice anymore. I think you can be committing an act that is I forget what the exact wording is with the coupled with the heat of passion, okay.

[DEFENSE COUNSEL]: In other words, thats what does away with the express malice?

THE COURT: You dont have to have express malice for a vol, assuming you had heat of passion. I think I need to hear argument from each side, see whether or not this is appropriate. So thats sort of what one of the issues is.

The next day, the trial court stated that an (unreported) chambers conference about instructions had been held and indicated which instructions it would submit. Voluntary manslaughter was not included. The court asked: Would either side like to put anything on the record before we have the jury come out? Defense counsel replied: No, sir. Regardless of what transpired in the chambers conference, the issue is preserved for appeal. As long as there is substantial evidence to support an instruction on a lesser included offense, the trial court is obligated to instruct even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.] (People v. Breverman (1998) 19 Cal.4th 142, 154.)

[4] Defendants contention fails to acknowledge that voluntary manslaughter is not a lesser included offense in child abuse homicide ( 273ab). Section 273ab contains no requirement of malice; hence, there is no malice to negate through finding a heat of passion killing prompted by legally adequate provocation. (See People v. Malfavon (2002) 102 Cal.App.4th 727 [neither murder nor child abuse homicide is a lesser included offense within the other].) Consequently, even were defendants contention about a sua sponte duty to instruct correct (which, as we shall explain above, it is not), the voluntary manslaughter instruction would have addressed only the murder charge. But the jury also convicted defendant of child abuse homicide (instead of its lesser included offenses) and the greater sentence was for that conviction. Thus, defendant could not have been prejudiced by any failure to instruct on voluntary manslaughter.

[5] In her opening brief, defendant claims that [t]here was evidence at trial suggesting that she, herself, was the victim of spousal abuse and that her family condoned spousal abuse as a form of spousal control. Defendants characterization of the record is inaccurate. None of the portions of the trial transcript cited by her supports a claim of spousal abuse.

[6] All undesignated statutory references in part B of our opinion are to the Evidence Code.

[7] The court explained that after hearing from a number of other caregivers that would have been in charge of Luz during this period, it found that [i]n fact, the defendant . . . was the person who was caring for Luz during that window period . . . 14 to 21 days from the date of the original X rays in May 2004. Defendant does not challenge the sufficiency of the evidence to support this finding.

[8] Defendant essentially concedes the probative value of the evidence. Her brief explains: Luzs combination of shaking and impact injuries strongly mirrored those sustained by Jose. By admitting [this] evidence . . . , the court destroyed any doubts the jury may have had that the injuries to Jose were caused by an accidental fall.

[9] See, e.g., People v. Branch (2001) 91 Cal.App.4th 274, 282-286, People v. Callahan (1999) 74 Cal.App.4th 356, 369-371 and People v. Soto (1998) 64 Cal.App.4th 966, 990-992.

[10] Defendants brief contains the passing argument that [t]he overarching theme of the prosecutors closing argument was that [defendant] had abused a child in the past and should not go unpunished for this again. (Italics added.) We disagree. We have read the prosecutors opening and rebuttal arguments. He did nothing more than argue the facts as permitted by law.