People v. Webster CA1/2 ( 2021 )

Filed 9/30/21 P. v. Webster CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A157407
v.
SARA ELIZABETH WEBSTER, (Contra Costa County
Super. Ct. No. 5-180948-2)
Defendant and Appellant.
On May 24, 2018, the Contra Costa County District Attorney filed an
information charging defendant Sara Elizabeth Webster with elder or
dependent adult abuse resulting in death (Pen. Code, § 368, subd. (b)(1))1
(count 1), and involuntary manslaughter (§ 192, subd. (b)) (count 2), following
the death of her father, Henry Webster.
On February 14, 2019, three days before the commencement of trial,
the court granted defendant’s motion to represent herself in accordance with
Faretta v. California (1975) 422 U.S. 806.2 Defendant represented herself
1 All statutory references are to the Penal Code.
Defendant invoked her Faretta right after denial of her Marsden
2
motion (People v. Marsden (1970) 2 Cal.3d 118) at a hearing on October 7,
2018. At that hearing, defendant claimed that the public defender failed to
talk to the coroner, failed to subpoena her father’s medical records, had
talked to her only once during the 10 months he had been representing her,
failed to return her phone calls, and never described the basis of his defense
1
throughout trial and during all sentencing proceedings. Although defendant
cross-examined virtually all of the prosecution witnesses, she was the only
witness who testified on her behalf and did so in a narrative format. A great
deal of her testimony was successfully objected to as irrelevant or hearsay.
Defendant was found guilty on both counts and the allegation her victim was
over the age of 70 at the time of his death (§ 368, subd. (b)(3)) was found true.
Defendant’s motion for new trial was heard and denied on May 3, 2019.
Defendant was sentenced to state prison for a term of two years, the
mitigated term on count 1. The identical term imposed on count 2 was stayed
pursuant to section 654. The section 368, subdivision (b)(3) enhancement
was stricken pursuant to section 1385.
The sole issue presented by this appeal is whether the judgment of
conviction must be reversed because the prosecutor committed prejudicial
error during closing argument by improperly appealing to the passions of the
jury, as defendant claims.
The trial court determined there was no such prejudice and we shall
affirm that ruling.
FACTUAL BACKGROUND
The Evidence Produced by the Prosecution
Around 6:00 p.m. on December 14, 2016, Daniel Skilling, a paramedic,
was dispatched to defendant’s Concord home in response to her 911 call.
When he arrived Skilling found Henry Webster, defendant’s father, near
or identified witnesses on her behalf, although she had suggested several.
Defendant told the court that she felt assigned counsel was “trying to move
me into prison.” After hearing from the public defender, who impressively
described the details of his professional diligence and devotion to defendant’s
case, the court concluded he was “performing to the standards of a reasonable
attorney” and denied defendant’s Marsden motion. Almost immediately,
defendant asserted her right to represent herself pursuant to Faretta.
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death. His eyes were open, but he was unresponsive, barely breathing, and
his blood sugar level was comparable to that of a diabetic. He was unable to
stand or talk and was wearing a diaper soaked with urine and fecal matter.
Skilling transported Webster to John Muir Medical Center.
Katie Woodside, the emergency room nurse at John Muir, observed
dried stool on Webster’s lower back and one of his legs, and a large bed sore
on one leg and on his shoulder. The stool in his diaper was dark and “tarry,”
indicating the presence of blood. His mouth was dry, and his lips cracked
indicating extreme dehydration, and his scrotum and penis were red and raw,
apparently because he had been sitting in urine for an extended period.
Webster was suffering from flexion contractures that prevented him from
straightening his legs, an affliction caused by lack of movement during a long
period of time. When questioned by Woodside about her father’s condition,
defendant said she had bathed and fed him that morning.
Webster died the morning after he arrived at John Muir. Shortly after
his death, Woodside contacted the police and reported that Webster’s death
resulted from negligent care.
Webster, who suffered from dementia, had been living alone in Oakley
prior to 2016. He was receiving a pension from Amtrak of over $1900 per
month and also receiving assistance from Lucretia Keys, his daughter and
defendant’s half sister, and Lester Webster (Lester), defendant’s brother.
As Webster’s dementia worsened, Keys and Lester hired Brenda Green
to assist him as a home health care worker. Green provided assistance five
days a week and Keys for the remaining two days. Keys paid Green $800 per
month. At some point, Keys replaced Green with Lester’s daughter, Shinice
Calhoun, who accepted $400 per month when Keys and Lester “were having a
tough month.”
3
In April 2016, after Webster was hospitalized for two or three days due
to a medical emergency, the manager of his apartment told Keys her father
could not return to the apartment unless the family provided around the
clock care. After it became clear Webster could not continue to live alone, he
moved in with Calhoun. Keys testified that at that point, defendant “actually
begged me” to let her take their father from Calhoun’s home into her own
home, where she would care for him when she was not working, and her son,
Baboucar Daffeh, would care for him when she was at work. Keys tried to
talk defendant out of this, because she did not think defendant appreciated
the difficulties in caring for their father, but Keys ultimately relented and
Webster moved into defendant’s home.
Increasingly concerned about his father living in defendant’s house,
Lester went there in October 2016 to see how he was doing. No one answered
the door, but Lester knew his father was there and called out to him.
Webster answered and said he had fallen to the floor and was unable to open
the door. After entering the house through a window, Lester found his father
on the floor wearing only a diaper and underwear and lifted him back on the
bed. Lester also saw that the house was “tore up” and dirty. That was the
last time Lester saw or spoke with his father.
Keys testified that she never saw her father after he moved in with
defendant and her son. She and Lester periodically called defendant and
tried to talk to Webster, but defendant always said he was not available to
speak with them. After April 2016, neither Keys nor Lester was contacted by
defendant indicating she was unable to care for Webster or needed
assistance. Lester and Keys did not learn anything about Webster’s
condition from defendant until after Webster died. Nor did they ever hear
4
from the hospital although both were listed as contact persons on Webster’s
medical chart.
During the evening of May 25, 2016, defendant’s neighbor, Antonio
Juarez, saw an elderly man who lived in defendant’s house on the ground,
helped him get up, provided him a chair from defendant’s front porch, and
called 911. When the paramedics arrived and knocked on defendant’s door,
no one responded. Later, when defendant returned home, Marilyn Fontana,
Juarez’s wife, told defendant what had happened. Defendant did not inquire
whether Webster was hurt, but quickly went into her house. Neither Juarez
nor his wife had ever seen nurses or other caregivers in defendant’s house
during 2016.
Defendant’s other next-door neighbor, Heidi Duffy, knew Webster had
moved into defendant’s house during 2016, but never saw defendant or her
son take him on outings, and never saw other caregivers come to the house.
Duffy had previously been inside defendant’s house and considered its
interior a “disaster.” Another neighbor, Lauren Isaacson, was at home full-
time with a newborn child from June to December 2016. She assumed
defendant worked full-time because she never saw defendant, nor did she
ever see nurses or other caregivers present at the house.
At some point, Keys had arranged to meet defendant at Webster’s
previous apartment in Oakley to obtain his personal belongings, but
defendant never showed up. Later, defendant explained she had already
taken what she wanted and told Keys to give what was left to other residents
of the building. She also told Keys she had cancelled Webster’s credit cards
and checks and obtained new ones so she could have access to his funds.
During the summer of 2016, defendant told Keys she had replaced
Webster’s nurses and doctors, but did not make clear that Webster was no
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longer being taken to Dr. Yogesh Trehan, his long term primary care
physician. After Webster moved in with defendant, Lester ceased taking him
to his appointments with Dr. Trehan and other caregivers. Defendant never
told Keys (who had move to Sacramento) or Lester that a week after she
commenced caring for Webster, he became very sick and had to be taken to
the hospital in an ambulance.
After April 2016, defendant never told Keys or Lester she was unable to
meet Webster’s needs and needed assistance. Nor did she ever tell them she
was returning to work full-time, and Webster would therefore frequently be
left alone. Keys testified that if defendant had passed on this information,
she would have removed her father from defendant’s home and secured
proper care for him even if she had to pay for it.
In October 2016, after Keys filed a neglect claim against defendant,
Sabina Robertson, a social worker with Contra Costa County Adult Protective
Services, went to defendant’s home to investigate. When no one answered
the door, she shouted into a window. She heard Webster’s faint response that
he was not in any distress, and told him she would return when defendant
was present, and she could speak with him directly. He said that was fine.
When Robertson was finally able to reach defendant by phone, their
conversation was unpleasant, as defendant was rude and abrasive.
Nevertheless, after learning Robertson might be able provide some
supportive services, defendant agreed to meet with Robertson.
When they met at defendant’s house, Robertson found it difficult to
breathe due to the strong odor of urine and cigarette smoke. The condition of
the house was the messiest Robertson had ever seen; clothes were piled
everywhere and there was no place to sit. Robertson found defendant
unfriendly and defensive. Defendant said the bad smell resulted from
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Webster’s incontinence and smoking, and noted that taking care of the house
was “not her thing,” as her priority was her work. Defendant told Robertson
that Webster was left alone only for two or three hours at a time, when she
and her son had to be at work at the same time. After a conversation with
Webster, Robertson concluded he required round-the-clock care.
Defendant objected, saying no doctor had ordered 24-hour care and she
lacked the money for that level of care. Robertson said she would send
defendant information about day programs, transportation assistance, and
other resources available through home care agencies. Robertson also offered
to send information concerning mediation services, as she was aware
defendant had resisted the efforts of Keys and Lester to see their father.
Officer Mike Von Savoye also investigated Keys’s claim of elder abuse
and interviewed defendant. She told him the reasons she and Webster’s
other children decided he should move in with her in June 2016, and noted
that at that time she was not working. However, she returned to work four
months later. She told Von Savoye that before going to work at 6:00 a.m., she
changed Webster’s diaper, remade his bed if needed, and fed him breakfast.
After that, her son took care of him until noon when he left for work.
Webster would then be alone until she returned home from work, around 5:30
or 6:00 p.m. She then changed Webster’s diaper and fed him dinner.
Defendant admitted that despite her awareness that Webster’s health
was steadily deteriorating during the previous two month and he had stopped
eating, she did not seek immediate medical attention for him. She did not
call 911 on December 14, 2016 until she returned from work that day and
found him barely conscious, wet, and unresponsive, and saw a bruise on his
chest after removing his shirt. She attributed Webster’s bedsores to the fact
that he always positioned himself in the same way.
7
Officer Von Savoye testified that Webster’s bedroom contained a bare
mattress on the floor and bedding inside a garbage can. The house was
untidy, and Webster’s mattress was stained by urine. Defendant told him
she was treating Webster’ bedsores with pads and antibiotics.
Concord Police Officer Davis Mattila took photographs of Webster’s
body at the hospital after his death, which showed sores below his right and
left shoulder and a large wound on his right hip. Fecal matter was found
smeared on his left buttock. The photos were shown to the jury.
When interviewed by Concord Police Detective Kevin Giacoletto,
defendant acknowledged she was Webster’s only caregiver and that he was
not receiving any in-home services from the county. She also stated that she
went back to work full-time because she had exhausted her savings. She
used Webster’s pension to pay part of her rent, which was $2,200 per month.3
Defendant denied noticing blood in Webster’s stools but reluctantly admitted
awareness of his large bedsore, which she said she treated with ointment. At
no point did defendant tell Detective Giacoletto that Webster received
medical treatment after August 2016, although Dr. Trehan remained his
primary care physician until Webster’s death. Defendant said Webster
experienced changes around Thanksgiving, when he began eating less and
had digestive issues, which included vomiting. She sought assistance from
county in-home health services, but was told Webster did not qualify for
assistance due to his income level.
3 Defendant testified that her bills “started at $2200 a month. When it
got to the point where I knew that I was gonna run out of money, the only
thing I could actually do was get a job. [¶] So what did I do? [¶] I went and
got a job to actually supplement the income. [¶] I, you know, I hated . . .
taking money from my father. You know, he said it was okay but, you know,
I didn’t think it was okay so I . . . started working.”
8
Defendant told Giacoletto that when she left home for work on the
morning of December 14, 2016, she was concerned about the way Webster
looked. Later, when she arrived home from work, she found him wet and
nonresponsive and called 911. She also admitted she has been in denial of
the seriousness of Webster’s condition and regretted her failure to get him
medical care earlier.
Detective Giacoletto also interviewed Baboucar Daffeh, defendant’s son,
and a recording of the interview was played for the jury. Daffeh said his
assistance consisted primarily of moving Webster from one room in the house
to another. He did not say he had been trained as a caretaker, or was paid
for his services, or that trained caretakers came to the house to assist
Webster.
Dr Trehan, who was Webster’s only primary care physician since 2008,
testified that Webster had diabetes controllable through medication, had a
pacemaker that kept his heart condition under control, and suffered from
moderate to severe dementia, which allowed him to feel pain. Webster was
hospitalized for hypoglycemia on April 3, and again on April 27, 2016.
Because his blood level on those occasions was dangerously low, and could
cause seizures and/or a coma, Dr. Trehan told Keys and Lester that Webster
required full-time care.
Dr. Trehan last saw Webster in August 2016. At that time, he did not
notice excoriation or open ulcers, but Webster was incontinent and wearing a
diaper. Nor did Trehan detect flexion contractures, which occur in persons
with advanced dementia or Parkinson’s disease if their limbs aren’t moved
for extended periods. Such contractures place a patient at high risk of falling
and make it difficult to walk, but these dangers can be prevented by physical
therapy. Dr. Trehan stated that at the time of Webster’s death, the albumin
9
level of his blood was 1.5, indicating severe malnourishment, and his dark or
“tarry” stools were an indication of intestinal bleeding.
Dr. Trehan’s records showed he ordered home health services for
Webster from May 26 to July 24, 2016, but there was no indication Webster
received such visits after July 24. If home health care providers saw that a
patient was declining, they would contact the authorizing doctor for
additional orders. No home health care provider ever contacted Dr. Trehan
reporting bedsores, bruising on his chest, or flexion contractures.
Dr. Arnold Josselson, the county medical examiner, conducted an
autopsy of Webster that revealed several pressure ulcers or bedsores on his
body, and ulcerations on his exterior genitalia. His teeth were in very poor
repair, he had flexion contractures in both legs, and a deep ulcer on his right
leg descended into muscle, making it “a stage 4,” which led to sepsis and
which Dr. Josselson believed contributed to his death. Dr. Josselson also
noticed a large contusion on the left side of Webster’s chest. He was unable
to determine its cause, but said the amount of force necessary to cause such
an injury would be a direct blow to the chest or a fall. The low level of protein
in Webster’s blood and his appearance led Dr. Josselson to conclude Webster
was malnourished, and his dry mouth indicated dehydration. Although
Webster had a pacemaker, smoked, and was diabetic, his death was not
caused by heart or lung disease or diabetes, but by anemia and dehydration.
If he had been hospitalized sooner, he would likely have survived.
Defendant’s Defense
In her opening brief, defendant succinctly describes her defense as
follows: Defendant “took the witness stand on her own behalf and testified
she took Webster into her home because he was unable to care for himself.
Thereafter, he not only received care from defendant and her son, but from
10
an in-home caretaker, who visited three times a week, as well as nurses and
a therapist.” Defendant “returned to work, in part, because Webster’s
monthly pension payments did not cover all of his expenses. When she
returned to work full time, she tailored her schedule so that she could take
care of her father. Her son, Daffeh, helped out as well.” Her plan was to pay
for full time care for her father. Defendant “noticed a change in her father’s
health after Thanksgiving 2016. His dementia seemed to worsen. He also
began developing bedsores due to immobility.” Defendant “cared for the
wounds.”
Defendant “took well care of Webster, buying him fresh fruits and
vegetables primarily from the farmer’s market. She also did not prevent
family members from contacting her father. “On December 13, 2016,
defendant called 911 after noticing a spot of [sic] Webster’s chest and that his
health had deteriorated. Later, at the hospital, defendant asked the treating
physician to do everything they could to save her father.
“Brenda Greene was Webster’s caretaker from January 2013 until
June 2014. She attended to his needs seven days a week.
“Alva Evans held Thanksgiving in 2016 at her home and defendant and
Webster were among the guests. Webster was able to partake in the feast.”
Defendant’s description of her defense, which relies entirely on her own
testimony, emphasizes the many difficulties defendant confronted in caring
for her father, and the sacrifices she made; but it ignores the inconsistent
testimony of virtually every other witness regarding the many deficiencies in
the care she provided and her failure to seek medical care while her father’s
health was obviously deteriorating rapidly.
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DISCUSSION
I.
As we have said, the sole issue before us is whether, as defendant
claims, the prosecutor’s closing argument to the jury so “inflamed the jury
against defendant by leading them to believe she was not being held fully
responsible for her acts and omissions” that it resulted in a denial of
defendant’s federal and state constitutional rights to due process of law under
the Fifth and Fourteenth Amendments to the United States Constitution and
article I, sections 7 and 15 of the California Constitution. (See Darden v.
Wainwright (1986) 477 U.S. 168, 181 (Darden); Donnelly v. DeChristoforo
(1974) 416 U.S. 637, 642 (Donnelly).) According to defendant, the prosecutor
made clear that defendant was, in fact, guilty of second degree murder, not
merely elder abuse; and this misinformation induced the jury to return guilty
verdicts, not because she was guilty of the charged offenses, but because she
was culpable of a more serious crime. The statements at issue relate to the
prosecutor’s stated concern that jurors might conclude that she failed to
prove defendant actually knew her conduct would result in the death of her
father or specifically intended it, though such knowledge and specific intent
were not elements of the charged offenses. As the prosecutor prefaced the
questioned remarks, “I’m a little bit nervous that you as jurors, because you
have good hearts, [a]re going to want to say, I’m not sure the DA proved she
knew or intended this, and [i]f you hold me to that standard, all 12 of you
may not get there.”
Addressing the perceived problem, the prosecutor embarked upon an
expansive disquisition regarding “the law of homicide,” stating as follows:
“So, I’m going to stack this criminal negligence right up to the law of
homicide and show you what we’re doing here. This is the law of
12
homicide. . . . What is murder? Murder is the unlawful killing of a human
being with malice [a]forethought. That’s important. You hear about malice
in the movies. That’s with malice [a]forethought. When you kill somebody
with malice unlawfully, that’s murder.
“Unlawful is a pretty important word in there, right? What if you’re a
warden in a prison executing under a lawful death penalty order? What if
someone breaks into the home at night tries to kill your family and you kill
that human being? That’s lawful. So, there are types of lawful killings with
malice [a]forethought.
“For second degree murder, you have malice. And there’s two different
types of malice; express and implied. Express malice is, I don’t like you, I
have a motive to kill you, and I’m going to kill you. A lot of times people kill
someone, they don’t spell it out for us, but we can infer when they shoot
someone in the head that they had express malice.
“Implied malice—and this is what I want you to know—implied malice
murder is no intent to kill. The type of implied malice murder that we see
most often is truly tragic. We see it in the drunk driving cases. Somebody
who drinks too much, takes to the road, crashes because of the alcohol, and
kills a whole family minivan. Did that person have any intent to kill people
that night? No. Are they devastated and remorseful? Yes. Did the person
have any animosity toward that family? No. But the problem is that if you
are aware of a risk to human life and you consciously disregard that known
risk, under the eyes of the law, that’s called implied malice. You didn’t
actually have malice, but we’re going to apply it based on your conduct and
hold you liable for murder.
“So, let me give you a couple examples of cases where second degree
murder could be found. There was a five-month-old baby who died of
13
malnutrition and dehydration. Sound familiar? The defendant was a parent
and he had passive conduct. He didn’t do anything to the baby; he just didn’t
feed it or hydrate it. The baby died. Because the evidence showed that the
baby was starving to death the last two weeks, nobody could remember the
baby getting anything to eat. The colored photographs showed that he must
have appreciated that his baby was in a state of starvation. That was
implied malice. It was a conscious disregard of a known fact. That’s an
example of implied malice murder. Because it was shown that that
defendant knew about the baby looking starved.
“Another case, a teenager who had a form of diabetes and she died of
diabetic ketoacidosis and the parents were charged. You’ve known her for 17
years. You knew she had diabetes. You were schooled in what that looked
like. The neighbors told you she’s not looking good; you should get medical
help. And they showed some indifference. Convicted of implied malice
murder, because they constantly disregarded. They knew and they didn’t do
anything.
“Nobody is accusing this defendant of murder. I’m not proving to you
that she knew how sick he was. It’s really important that you realize that.
I don’t expect all 12 of you to find that. So, quickly, that’s what second degree
murder is.
“In order to go up to first degree murder, you have to have something
extra like premeditation and deliberation, killing by poisoning, killing while
raping someone. And then it gets worse from there. For a special
circumstances murder you have to have something more special to get to that
level of murder. But that’s neither here nor there for this trial. I want to
cycle down now from second degree murder and get down to the family of
manslaughter where we are. There’s two different types of manslaughter;
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voluntary and involuntary. Voluntary manslaughter is known as your
sudden heat of passion. For in the eyes of the law, when you intentionally
kill somebody that you didn’t have time to form malice because it was so
sudden, the law will kind of give you a pass and say, okay that wasn’t murder
because you didn’t have time to form malice. We’re just going to call that a
voluntary manslaughter.
“And then we get finally to us and the law of homicide but not murder;
involuntary manslaughter. And the instructions told you it’s not the
defendant’s standard. It’s not, . . . did the defendant know? It is, would a
reasonable person have noticed the bruising, the hole in the hip, the hole in
the shoulder, the emaciation, the massive weight loss, the dehydration, the
caked stools, the ulcers on the scrotum and the penis. Would a reasonable
person have done something? Not a reasonable person under those
circumstances. Not the defendant. I don’t have to prove to you that the
defendant knew about it and consciously disregarded the risk. That is the
elements of murder. Please don’t hold me to that standard. It’s just criminal
negligence and that’s why I went through that law.
“For involuntary manslaughter there’s no malice. I told you in jury
selection, mom leaves the baby in the hot car. Forgets. I don’t know what
happened. She left that baby in the hot car for 12 hours. There’s no evidence
she wanted that baby to die. That’s involuntary manslaughter. There’s no
requirement that the defendant knew or appreciated the risk and then
consciously disregarded it. That’s the murder standard. And I already told
you about laden and burdened [sic] to make sure you understand and don’t
hold me to a higher standard.”
Defendant’s theory is that “[r]ather than urge the jury to decide the
case against defendant based on the evidence presented at trial, the
15
prosecutor offered examples of second degree murder that hewed closely to
the facts of defendant’s case. The prosecutor did so to inflame the jury
against defendant by leading them to believe that defendant was in fact
guilty of murdering her father. Thus, the prosecutor sought to have the jury
convict defendant ‘for reasons wholly irrelevant to [her] own guilt or
innocence.’ ” (Quoting United States v. Koon (9th Cir. 1994) 34 F.3d 1416,
1443.)
Defendant did not timely raise this issue at the time of trial, when it
could have been cured, but she did raise it belatedly at the hearing on her
motion for a new trial. Referring to the district attorney’s closing argument
as her “instructions,” defendant argued that “when the prosecutor gave the
instructions to the jury, she constantly put up murder, murder. Inundating
the jury with the term ‘murder.’ You know, this actually . . . when the jury
looks at that . . . [i]f I was, you know, being the lay person, wow, you know,
murder, murder. It has to be a murder case over all the information, the
barrage of information that was given, well, it has to be murder. Although
there was no murder given [i.e., charged]—there was no murder indicated.
But in the jury instruction, that is what she inundated [sic] -- inundated the
jury with the term murder, murder, murder. She used -- she said ‘willfully’
and she blatantly . . . . She uses -- she said ‘willfully’ does not mean done on
purpose. . . . And the example she used was having a baby left in the car, but
they really didn’t mean . . . to do it so that means they didn’t do it on purpose.
That is not willfully. She said that you would actually be charged with
manslaughter because of doing that.” Defendant contended that the facts of
the case involving the leaving of the baby in the car was used by the
prosecutor to distort the use of the word “willfully” and give the jury “false
information.” “[S]aying that willfully does not mean done on purpose when
16
willfully means done on purpose. Yes, the instructions that were given to the
jury [by the prosecutor], yes, they were very prejudicial and very, very
inflammatory.”
The prosecutor responded as follows: “I did talk about what the
difference between malice was and this voluntary manslaughter had an
absence of malice so they could compare and contrast the different
concepts . . . because it’s very easy for a jury to get confused and want some
sort of specific intent or maliciousness for a voluntary [sic] manslaughter that
is simply criminal negligence. . . . I don’t think it was objectionable in any
way”; “[t]he People never accused the defendant of murder.”
The fact defendant was never accused of murder seems to us beside
defendant’s point. The problem presented by the prosecutor’s convoluted
closing statements is not that they accused defendant of a greater offense
than those charged but, as defendant argues, that she was not being held as
fully responsible for her criminal acts and omissions as she could and should
have been. For example, the prosecutor pointed out that “if you are aware of
a risk to human life and you consciously disregard that known risk, under the
eyes of the law, that's called implied malice,” and you could thereby be held
liable for murder. This statement was followed by the example of a five-
month-old baby who, like Webster, died of malnutrition and dehydration.
Tendentiously inquiring whether those causes of death “[sounded] familiar,”
the prosecutor pointed out that though the child’s parent “didn’t do anything
to the baby . . . he just didn’t feed it or hydrate it,” “the baby died,” and the
parent was—presumably—convicted of murder on the basis of an implied
malice theory.
The prosecutor drove the point home by adding, “[f]or involuntary
manslaughter there’s no malice. . . . [M]om leaves the baby in the hot car.
17
Forgets. I don’t know what happened. She left that baby in the hot car for 12
hours. There’s no evidence she wanted that baby to die. That’s involuntary
manslaughter. There’s no requirement that the defendant knew or
appreciated the risk and then consciously disregarded it. That’s the murder
standard.” According to defendant, these statements suggested defendant
could have been guilty of second degree murder, and she therefore should
certainly be convicted of involuntary manslaughter, the most serious offense
charged. Defendant believes the prosecutor’s example could have provided
the jury incentive to find defendant guilty not because she was guilty of the
crimes charged, but because she was culpable of a crime more serious than
those charged.
We are unimpressed with the Attorney General’s argument that the
fact patterns employed by the prosecutor usefully illustrated the difference
between criminal negligence and implied malice. First of all, the convoluted
remarks of the district attorney were not just confusing but unnecessary, as
the instructions given jurors by the court made eminently clear the specific
findings necessary to convict defendant of elder abuse resulting in death4 and
4 The court’s instructions told the jury that to convict defendant of the
lesser included crime of elder abuse charged in count 1 and involuntary
manslaughter as charged in count 2, “the evidence must prove that the
defendant not only committed the prohibited act or failed to do the required
act, but also that the defendant acted with wrongful intent . . . when he or
she intentionally does a prohibited account [sic] or intentionally fails to do a
required act. However, it is not required that he or she intends to break the
law. The act or failure to act required to be proved are explained for each
crime in Instructions 830, 831 and 582 -- those instructions come later --
which are set forth in these instructions.”
Instruction No. 830 told the jury that defendant was charged with elder
abuse likely to produce great bodily harm or death and that to prove guilt of
that offense “the People must prove beyond a reasonable doubt five things:
First, the defendant, (a) willfully caused or permitted Henry Webster to
18
involuntary manslaughter,5 the most serious offense at issue in this case.
Clarity was not advanced by statements lay jurors could have interpreted as
suggesting that defendant could and perhaps should have been charged with
“murder.” Moreover, clarification of the difference between the findings that
support implied malice and those necessary to support criminal negligence, if
suffer unjustifiable physical pain or mental suffering; or (b) while having care
and custody of Henry Webster, willfully caused or permitted him to be placed
in a situation where his person or health was in danger.
“Number two, the defendant willfully caused or permitted Henry
Webster to suffer unjustifiable physical pain or to be endangered under
circumstances or conditions likely to produce great bodily harm or death.
Three, Henry Webster was an elder adult. Four, when the defendant acted or
failed to perform a required act, she knew or reasonably should have known
that Henry Webster was an elder adult. And five, the defendant was
criminally negligent when she caused unjustifiable physical pain or mental
suffering or to be in danger.”
The jury was told that “[s]omeone commits an act willfully when he or
she does it willingly or on purpose,” and “[g]reat bodily injury or great bodily
harm means significant or substantial physical injury . . . that is greater than
minor or moderate harm.”
The jury was also instructed that “[a] person acts with criminal
negligence when, Number one, he or she acts in a reckless way that creates a
high risk of death or great bodily injury harm; and number two, a reasonable
person would have known that acting in that way would create such a risk.
In other words, a person acts with criminal negligence when the way he or
she acts is so different from the way an ordinarily careful person would act in
the same situation, that his or her act, or failure to act, amounts to a
disregard for human life or indifference to the consequences of that act.”
5 The jury was told that to convict defendant of involuntary
manslaughter “the People must prove beyond a reasonable doubt four things.
Number one, the defendant had a legal duty to Henry Webster. Number two,
the defendant failed to perform that legal duty. Number three, the
defendant[’s] failure was criminally negligent. Number four, the defendant’s
failure caused the death of Henry Webster.” The court then provided the jury
the same definition of criminal negligence that it provided in connection with
elder abuse.
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any was needed, certainly did not require reference to factual patterns
confusingly coincidental with those in this case, which appears to have been
intentional.
Defendant acknowledges she made no timely objection to the
prosecutor’s confusing closing statements on “the law of homicide,” but
justifies the omission on the ground that “an admonition from the court
would not have eliminated the prejudicial impact of the identified
misconduct.” As defendant sees it, the prosecutor’s statements were “so
egregious that [they] infect[ed] the trial with such unfairness as to make the
conviction a denial of due process.” (Citing Darden, supra, 477 U.S. at p. 181;
Donnelly, supra, 416 U.S. at p. 642.) Defendant claims the prosecutor’s
statements were “deceptive” and “reprehensible” attempts “to shortcut the
[criminal justice] process, and thereby circumvent [defendant’s]
constitutional rights by inflaming the jury against her through an improper
argument.” Because “the prosecutor sought to have the jury convict
[defendant] ‘for reasons wholly irrelevant to [her] own guilt or innocence’ ”
(quoting United States v. Koon, supra, 34 F.3d at p. 1443), defendant claims
she suffered a denial of due process warranting judicial consideration despite
her failure to make a timely objection.
II.
While we find the prosecutor’s statements unnecessary and somewhat
confusing, we cannot say they comprised a pattern of conduct so egregious
that it infected the trial with such unfairness as to make the conviction a
denial of due process. (Darden, supra, 477 U.S. at p. 181; Donnelly, supra,
416 U.S. at p. 642.) Defendant points out that “ ‘[c]onduct by a prosecutor
that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves “ ‘the use of deceptive or
20
reprehensible methods to attempt to persuade either the court or the
jury’ ” ’ ” (People v. Harris (2005) 37 Cal.4th 310, 341, quoting People v.
Benavides (2005) 35 Cal.4th 69, 108), and under this standard the defendant
need not show that the prosecutor acted in bad faith or with appreciation for
the wrongfulness of the conduct, nor is a claim of prosecutorial misconduct
defeated by a showing of the prosecutor’s subjective good faith. (People v.
Ochoa (1998) 19 Cal.4th 353, 427; People v. Bradford (1997) 15 Cal.4th 1229,
1333.) As noted, defendant believes the statements made by the prosecutor
here were both deceptive and reprehensible.
We believe that is too far a stretch. The statements were clearly
inartful, but their purpose—explanation of those homicides that require the
prosecution to show express or implied malice and those, like criminal
negligence, which do not—cannot fairly be described as deceptive or
reprehensible, nor can those adjectives be attached to the factual scenarios
employed by the prosecutor, none of which likely inflamed the jury.
Moreover, even if one indulges defendant’s assumptions that the
statements were deceptive, reprehensible, and inflammatory, they were not
objected to, and a claim of prosecutorial misconduct is not preserved for
appeal where the defendant failed to make a specific and timely objection
unless it would have been futile. (People v. Brown (2003) 31 Cal.4th 518, 553.)
“A failure to timely object and request an admonition will be excused if doing
either would have been futile, or if an admonition will not have cured the
harm.” (People v. Linton (2013) 56 Cal.4th 1146, 1205.) Defendant claims she
is relieved of the need to have objected because here an admonition would not
have cured the harm of prosecutorial statements suggesting defendant’s
culpability was commensurate with that of defendants who, like her,
consciously disregarded a known risk to their victim but, unlike her, were
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charged and found to have acted with implied malice and therefore exposed
to conviction of more serious homicides than was defendant.
As the Attorney General points out, however, relevant case law shows
that more overt and odious comparisons than those suggested by the
prosecutor here, have been found not to be misconduct when they relate
primarily to the operation of the law, and the failure to timely object resulted
in forfeiture of the claim. For example, in People v. Ghobrial (2018) 5 Cal.5th
250, in which the defendant, an Egyptian immigrant, was convicted of first
degree murder during the commission of a lewd and lascivious act on a child,
the prosecutor referred to Osama bin Laden, Al Qaeda, and the terrorists
who perpetrated the September 11 attacks. The defendant objected to the
prosecutor’s statement that Osama bin Laden was an “evil man” only on the
ground of relevance, and it was sustained, but sought no admonition. In
concluding that the there was no reasonable possibility the prosecutor’s
comments affected the jury’s verdict, the court observed that “while we have
advised prosecutors generally to ‘ “refrain from comparing defendants to
historic or fictional villains, . . .” ’ we have also held that it is not misconduct
for a prosecutor to invoke examples to illustrate a general point about the
operation of the law.” (Id. at pp. 290–291, citing People v. Jones (1997)
15 Cal.4th 119, 180.) It was clear, the court said, “that the prosecutor was not
referring to defendant’s emigration from Egypt in an effort to inflame the
jury’s biases, but instead to minimize the mitigating impact of defendant’s
lack of criminal history and evidence concerning his mental health.”
(Ghobrial, at p. 291.) The prosecutor did not suggest that the defendant was
culpable for his crimes because of any connection with September 11, the
terrorists, or their racial background. The references “were instead designed
to illustrate general legal points relevant to the prosecutor’s argument—
22
namely, that a defendant’s mental illness does not always negate criminal
liability.” (Id. at p. 290.)
In this case, first, it is undisputed that the jury was properly
instructed by the court on the elements of the charged offenses. In the
absence of any reason to think the jury failed to understand and follow
the court’s instructions, we must presume they understood and followed
those instructions. (People v. Frederickson (2020) 8 Cal.5th 963, 1026;
People v. Sattiewhite (2014) 59 Cal.4th 446, 475.)
Furthermore, the evidence of defendant’s guilt was overwhelming.
(See, e.g., People v. Booker (2011) 51 Cal.4th 141, 186 [where jury was
properly instructed and evidence of defendant’s guilt was overwhelming, any
alleged prosecutorial misconduct in closing argument was harmless under
either federal or state standard of error].) As the trial court observed when it
denied defendant’s motion for a new trial: “The defendant took care and
custody of Mr. Webster and the evidence established that she willfully
engaged in grossly negligent conduct that was the primary reason why
Mr. Webster died. . . . [¶] Dr. Josselson’s evaluation made it quite clear what
he died of, which is anemia dehydration. . . . [A]s Mr. Webster became less
mobile, it became more incumbent upon the defendant to make sure that he
was adequately hydrated and had adequate nourishment and it is clear from
the testimony of Dr. Josselson that he died from lack of food and lack of
hydration. . . . [T]here was nothing in the evidence suggest[ing] that there
were independent reasons for that other than the defendant’s negligent
behavior.” As the trial court justifiably found, “the jury must have concluded
here that the defendant’s testimony was not correct in significant respects.”
23
Accordingly, even assuming the prosecutor committed error during
closing argument, defendant suffered no prejudice as a result. (See
People v. Booker, supra, 51 Cal.4th at p. 186.)
DISPOSITION
The judgment is affirmed.
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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
People v. Webster (A157407)
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