People v. Estrada CA2/1 ( 2016 )

Filed 6/24/16 P. v. Estrada CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
THE PEOPLE, B262224
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA103873)
v.
JESUS VEGA ESTRADA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert M. Martinez, Judge. Reversed with directions.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne,
Supervising Deputy Attorney General, and Ana R. Duarte, Deputy Attorney General, for
Plaintiff and Respondent.
_________________________________
Jesus Vega Estrada appeals from the judgment entered following a jury trial in
which he was convicted of one count of second degree murder, in violation of Penal Code
section 187, subdivision (a), and one count of assault on a child causing death, in
violation of section 273ab, subdivision (a).1 He was sentenced to 25 years to life in state
prison.
We conclude that the trial court prejudicially erred in omitting accomplice
instructions, in light of substantial evidence that the child’s mother might have been
involved in the child’s death. We therefore reverse appellant’s conviction and remand the
matter for a new trial.
FACTUAL BACKGROUND
Eric Cervantes (Eric), the child of appellant and Araceli Cervantes (Cervantes),
died on November 28, 2013. He was 19 months old. Although initially ruled the result of
natural causes, the death was later determined to be a homicide due to blunt force trauma.
Both parents came under suspicion, but ultimately only appellant was charged with Eric’s
murder.
1. Events Prior to Eric’s Death
Appellant and Cervantes became romantically involved in May 2012, and
Cervantes became pregnant with Eric in August 2012. Appellant tried to persuade
Cervantes to have an abortion and offered to pay for it, but Cervantes refused. Appellant
then ceased contact with her for the duration of the pregnancy.
Eric was born on April 13, 2012. Appellant called Cervantes while she was in the
hospital and spoke with her for two to three minutes, asking about the child’s weight,
height, and condition. He did not offer financial assistance to Cervantes for the baby, and
Cervantes did not hear from appellant again until she filed paperwork to obtain child
support when Eric was 10 months old. After receiving the paperwork, appellant went to
Cervantes’s home and asked her to cancel her request for child support, promising to
1 Undesignated statutory references are to the Penal Code.
2
move in and help her. Cervantes agreed, and on February 20, 2013, both she and
appellant signed a cancellation of the request for child support, indicating that both
parents and the child would be living together.
That day, appellant gave Cervantes $200 and assured her they would begin living
together in about a month. But a month passed and appellant did not move in with her.
In telephone conversations over the next three months, Cervantes repeatedly asked
appellant whether they would move in together. Appellant told her he had a lot of
expenses and she needed to be patient. Although appellant was supporting his four
children from a previous marriage, he never gave Cervantes any more money to help with
Eric. In October 2013, Cervantes received a letter “from child support” in the mail.
When she raised the subject with appellant, he threatened to get an attorney and take Eric
away from her if she reopened the case. Cervantes did not renew her request for child
support.
After Eric was born, Cervantes lived with Victoria Ayala, who, along with her
daughter, Nathali Perez, looked after the baby when Cervantes returned to work. In
August 2013, Cervantes and Eric moved to a new apartment, and appellant began visiting
once or twice a month. Ayala continued to take care of Eric while Cervantes was at work.
Ayala noticed that after the move Eric became sad and withdrawn, and he cried more.
Lorena Aguilar, Cervantes’s friend of 16 or 17 years, also noticed a change in Eric’s
behavior. Whereas he had always been a tender, loving child, after the move he became
nervous and frightened, and was standoffish with Aguilar. Nevertheless, Aguilar told the
investigator after Eric’s death that he had been a happy baby and was responsive to her.
Aguilar never noticed bruises on Eric.
In October and November 2013, Eric had temper tantrums during which he would
throw himself to the ground and hit his head on the floor. During one tantrum a week or
two prior to his death, Eric hit the back of his head on the floor, and on November 27,
2013, he twice hit his forehead on the ground during another temper tantrum. Cervantes
3
did not observe any bruises on Eric as a result of these tantrums. Ayala never saw Eric
have a tantrum or throw himself down and hit his head on the ground at her house.
In early October 2013, after appellant had spent the night with Cervantes,
Cervantes heard Eric crying. When Cervantes asked appellant what was wrong with the
child, appellant explained that as he was picking Eric up from his crib the baby hit his
mouth with the baby bottle. Cervantes saw the inside of Eric’s lower lip was bleeding
and cleaned it. After that, according to Cervantes, Eric cried every time he heard
appellant’s voice.
Dr. Emil Dominguez was Eric’s pediatrician at the Los Niños Medical Clinic from
the time Eric was seven months old until his death. Dr. Dominguez was assisted by
Stephen Gichuru, a licensed physician’s assistant, who also examined and treated Eric on
occasion. Eric suffered from asthma and presented with frequent wheezing and
infections, which required treatment with a nebulizer and antibiotics. Eric did not gain
weight well, which can be consistent with frequent illness, but he had no unusual medical
conditions. When asked specifically, Dr. Dominguez noted that Eric’s hemoglobin and
platelet count were in the normal range, suggesting he did not have any type of blood
coagulation disorder.
On November 14, 2013, Cervantes took Eric to the doctor for a cough and sore
throat. Dr. Dominguez prescribed asthma medication as well as an antibiotic to be given
once a day for 10 days. On November 26, 2013, Gichuru saw Eric for a routine physical
exam. Gichuru noted that the child was underweight but appeared otherwise healthy.
Gichuru conducted a complete head-to-toe examination and did not observe anything
unusual. Eric did not have any bruising or other injuries to his body. He was not having
any problems breathing. Gichuru checked Eric’s stomach and reflexes and found nothing
unusual. Had Gichuru noticed any injuries or abnormalities, he would have described
them in his notes.
4
2. Eric’s Arm Is Broken
On October 19, 2013, appellant spent the night with Cervantes and took Eric in his
truck to get breakfast the next morning. He did not take the child safety seat. He returned
45 minutes later with doughnuts and coffee. When appellant returned, Cervantes found
Eric lying on the floorboard of appellant’s truck, and appellant wiping the baby’s nose
with a towel that had blood on it. At some point Eric began to cry.2 Cervantes asked
appellant what had happened, and he told her that Eric had almost fallen out of the truck
when appellant opened the door, but he had managed to catch him. Cervantes did not
notice anything wrong with Eric’s arm at that time. Later that day, however, as she was
changing Eric’s clothes, Cervantes noticed bruises on Eric’s back and on the left side of
his head above his ear.
The next day, Monday, Eric was crying during his bath and Cervantes noticed his
arm was swollen. She called appellant, but he did not answer his phone. Cervantes
texted photos of Eric’s apparent injuries to appellant and asked him what had happened.
Appellant said that Eric had fallen and denied that he hit the child. On Tuesday
Cervantes went to work and left Eric with Ayala. Ayala noticed bruising on Eric’s left
cheek, and when she changed him his arm seemed to be hurting. When Cervantes picked
Eric up at 4:00 p.m. that day, Ayala told her that Eric’s left arm was swollen and needed
medical attention. Cervantes talked to appellant about taking Eric to the doctor, and
appellant told her to wait two or three days so he could accompany her.
Cervantes did not wait, but took Eric to Dr. Dominguez on October 23, 2013.
Concerned that a “social worker could come and they could take [her] child away,”
Cervantes told Dr. Dominguez that Eric had hurt his arm falling from a step. X-rays
2Cervantes initially testified that when she first saw Eric on the floor of the truck
he was crying and appellant was wiping blood from his mouth or nose. But on cross-
examination Cervantes explained that Eric did not begin to cry until she picked him up,
and she did not see him bleeding, but only saw blood on the towel appellant was using to
wipe his nose.
5
revealed a fracture near the elbow of Eric’s left arm, along with soft tissue swelling and
fluid in the elbow joint.3 Eric was referred to the Orthopedic Institute for Children in Los
Angeles for treatment, where he was seen by Dr. Tigren Avoian, an orthopedic physician,
on October 25, 2013. The arm was placed in a cast, which was removed approximately
four weeks later.
Dr. Avoian observed that the fracture was “fresh.” Cervantes told Dr. Avoian that
Eric had fallen on a step and landed on his elbow five days earlier. Although the type of
fracture Eric suffered is very common in children,4 Dr. Avoian noted an upward spiral
component to the fracture, which is sometimes associated with child abuse. While “not
highly suspicious,” Dr. Avoian felt this made the case “a little bit different,” meriting
further investigation by a social worker to determine whether there was a lack of
supervision or negligence. However, Dr. Avoian’s full body examination of Eric did not
reveal any other injuries or bruises, and he deemed Eric’s physical development normal
for his age.
Dr. Arnold Hageman, the radiologist at Orthopedic Institute for Children who
reviewed Eric’s X-rays, explained that the type of injury Eric had would have been very
painful, and he would expect a child with this fracture to show immediate objective signs
of pain. While each person has a different tolerance to pain, Dr. Hageman opined that it
would be unlikely that a child with a fracture like Eric’s could go for two days without
exhibiting signs of pain. Dr. Avoian agreed that it would be very unlikely that a child
with Eric’s fracture would have no pain or swelling, but acknowledged that, especially
with children, “you never know because [I’ve] seen somebody with minimal pain walking
on the broken leg next day.”
Eric’s broken arm was a simple oblique (angled) hairline fracture to the
3
humerus—the bone that extends from the shoulder to the elbow.
4 Indeed, according to Dr. Avoian, “When you land on your elbow, this is what
usually happens.”
6
After Cervantes learned that Eric had a broken arm, she called appellant and asked
him how his arm had been broken. Appellant responded that he would not hit his own
child, but Cervantes did not believe him. Sometime after Eric broke his arm, Cervantes
told her friend Aguilar that “the dad had dropped the child when he went to buy
doughnuts.”
With his left arm in a cast, Cervantes noticed that Eric tended to fall more than
usual. And in early November when Eric still had the cast on his arm, Nathali Perez,
Ayala’s daughter, noticed three bruises on Eric’s face on the same side as the cast.
3. November 27–28, 2013
On November 27, 2013, Cervantes changed and dressed Eric in the morning before
taking him to Ayala’s house. Eric no longer had the cast on his arm, and he had no
bruising on his body or injury to his testicles. Ayala also did not see any bruises on Eric’s
body when she changed him that day. Cervantes picked Eric up after work, put him in his
car seat, and drove home. Eric ate rice pudding in the car, and they reached their
apartment about 4:10 p.m. Once home, Eric played and Cervantes changed him twice.
She did not see any bruises on his body or head, nor did he have any injuries to his
testicles.
Cervantes gave Eric a bottle of milk about 7:00 p.m. and put him to bed between
7:30 and 8:00 p.m. She added Nestles strawberry Quik flavoring to the milk, which made
it pink. She took a picture of him in his crib at 8:53 that night. No injuries to Eric’s head
were visible in the photo.
Cervantes called appellant at 9:50 p.m., but he did not answer. Approximately
10:30 p.m., after Cervantes was in bed asleep, appellant called her back. Appellant told
7
Cervantes he was on his way over, and they spoke until appellant said he was outside the
apartment.5
While Cervantes was on the call with appellant, she got up and changed Eric’s
diaper. She also gave him more milk with strawberry flavoring, but he did not finish it.
As Eric was falling asleep, appellant came in, and Eric began to cry when he heard
appellant’s voice. After Eric was calm, appellant took him in his arms, and the child put
his head on appellant’s shoulder and gave appellant his hand.
Appellant told Cervantes he wanted to take Eric to the store with him because it
had been a long time since he had last seen him. Cervantes objected, saying it was too
cold out, but appellant insisted. Appellant took a blanket and left with Eric. He did not
ask Cervantes for the child safety seat from her car. Cervantes called appellant twice
while he was gone—shortly after appellant had left, at 11:42 p.m., and again at 11:55
p.m., because he had been gone a long time and the store was only two minutes away.
Appellant did not answer either call.
Appellant returned after 15 or 20 minutes and told Cervantes Eric was vomiting
because she had given him too much milk. Cervantes saw Eric lying motionless on the
bed. Appellant performed CPR, and Eric vomited but remained otherwise unresponsive.
The vomit was pink, and it was on the baby’s clothing, blanket, and Cervantes’s
bedspread. Photographs taken later showed a substance resembling pinkish vomit on the
bed and a blanket in Cervantes’s home, as well as in appellant’s truck on the driver’s seat,
the middle seat, passenger seat, floorboard, glove compartment, and passenger door and
window. Cervantes wanted to call 9-1-1, but appellant told her not to call because the
child was responding.
5Cell phone records showed that Cervantes called appellant at 9:50 p.m., and
appellant called Cervantes at 10:34 p.m. Appellant’s call to Cervantes lasted 41 minutes,
ending at 11:15 p.m.
8
Five to eight minutes after appellant had returned with Eric, Cervantes decided
they should take Eric to the nearby hospital rather than wait for an ambulance. Appellant
drove them in his truck. Cervantes sat in the front seat holding Eric in her arms.
Appellant lowered the window to see if Eric would react, but he did not. Eric did not
vomit on the way to the hospital, and Cervantes did not notice any bruises on his face.
When they arrived at the hospital, appellant took Eric from Cervantes and handed him to
the doctors.
Dr. David Gutkin, the attending emergency physician at Queen of the Valley
Hospital, treated Eric when he was first brought into the emergency room. Eric arrived at
the hospital at approximately 12:05 a.m. “in critical status in cardiac pulmonary arrest,”
meaning he had no heartbeat and was not breathing. Dr. Gutkin immediately placed a
breathing tube to provide respiration; at the same time, chest compressions were begun,
and epinephrine was given intravenously to try to jump-start the heart. At approximately
12:43 a.m., after prolonged resuscitation, Eric responded and some basic body
functions—including a heartbeat—were restored. Eric remained on mechanical
respiration and in critical condition as arrangements were made to transfer him to Miller
Children’s Hospital. While he was treating Eric, Dr. Gutkin did not observe any
indication that Eric suffered from any blood coagulation disorder such as disseminated
intravascular coagulation, or “D.I.C.”
Dr. Gutkin’s shift ended shortly after Eric’s initial resuscitation, and Dr. Sam
Thurber, who had participated in the resuscitation efforts when Eric was admitted, took
over for Dr. Gutkin. At approximately 2:02 a.m., Eric lost spontaneous circulation.
Resuscitation failed, and Eric was pronounced dead at 2:30 a.m.6
6At some point, Cervantes was asked to speak to her child to see if he would
respond. She did so, and Eric cried when she caressed him. There was no other reaction,
however, and Eric died.
9
Dr. Thurber initially reported the cause of Eric’s death as natural causes, based on
information that Eric had vomited while in his car seat and had likely inhaled the vomit
into his lungs. When Dr. Thurber later examined Eric’s body, however, he observed Eric
“was covered with bruises”—there were multiple bruises around the top of his head, four
bruise marks on the lower abdomen in a fingertip pattern, grip marks on either side of his
body, and one of his testicles was three times the size of the other and was black from
bruising.7 A chest X-ray showed Eric had two or possibly three fractured ribs. After
examining Eric’s body and viewing the X-ray, Dr. Thurber revised his opinion about the
cause of Eric’s death, concluding that Eric died from blunt force trauma. He did not see
any indication that Eric suffered from any blood coagulation disorder, such as D.I.C.
After Eric’s death, Cervantes and appellant sat with him. Cervantes was in shock
and crying. Appellant told her to tell the police that Eric had been in the child safety seat
in his truck, but they had left it at the house when they came to the hospital. When Los
Angeles County Deputy Sheriff Pedro Castillo tried to find out from Cervantes what had
happened with Eric, appellant repeatedly interrupted Cervantes, spoke over her, and
answered the questions posed to her. Appellant told the deputy that he had retrieved the
car seat from Cervantes’s car, mounted it in his truck, and had driven with Eric toward a
nearby convenience store. About halfway to the store, however, the child had started
vomiting what appellant believed to be milk. Although the baby was conscious, he did
not appear to be breathing, and appellant made a U-turn to return to Cervantes’s home.
Appellant told Castillo that he took the child in the car seat into the house. Eric was not
breathing and appeared to be unconscious, and appellant started CPR. But the child was
not responding, and appellant decided to drive him to the hospital himself rather than wait
for emergency services, which might take too long. Cervantes gave Castillo “pretty much
7 Dr. Thurber observed that none of the bruises looked “fresh,” and both Drs.
Gutkin and Thurber denied that these injuries would have been caused by the treatment
Eric received at the hospital.
10
the same” account.8 Castillo noted that appellant seemed calm and relaxed, and
Cervantes did not appear emotional or distraught.
Cervantes was shown photos of Eric that had been taken at the hospital, which
showed injuries and bruising to his lips, right eye, the left side of his head, his chest, and
his testicles. Cervantes stated that Eric had not had any of these injuries before appellant
took him in his truck that night, and she denied inflicting any injuries on her child.
Denise Bertone, an investigator for the Los Angeles County Coroner, conducted an
external examination and took photographs of Eric’s body. Although Eric seemed to be
in generally good health, she noticed a considerable amount of bruising, including bruises
along his ribs the size of a quarter, and bruises on his right hip, forehead, left and right
temporal areas, and the left side of his chest. Eric’s left testicle was bruised and swollen.
Bertone asked the parents if Eric had any underlying medical problems such as blood-
clotting issues that might explain the bruising. Cervantes said that Eric did not have
“hemophilia or anything like that.” While bumps or bruises on the forehead and lower
legs are considered normal for an active child, the other bruises and injuries Eric had are
not. Bertone also observed that Eric was unusually pale even after death, causing her to
wonder if he had been bleeding internally and where his blood had gone. Bertone spoke
with Dr. Thurber and viewed the X-ray of Eric’s chest, which showed what appeared to
be broken ribs. Based on her observations, Bertone decided to process Eric’s death as a
homicide.
After further interviews with police detectives, Cervantes and appellant went to the
sheriff’s station, where they were told they would both be arrested for murder. Following
several more interviews, Cervantes and appellant were arrested at approximately 11:30
a.m. on the day Eric died.
8 Cervantes admitted lying to the deputy about appellant taking Eric in the car seat.
She explained that she was upset and lied because she did not know what was going on.
When Castillo spoke to Cervantes a second time, however, she told him that appellant did
not take the car seat.
11
4. Prosecution Expert Testimony
Dr. James Ribe, a forensic pathologist and the senior deputy medical examiner for
the County of Los Angeles Coroner’s Office, conducted Eric’s autopsy. Eric’s external
injuries included bruises to his right upper and lower eyelid, a bruise to his right cheek, a
thin cut inside his left ear, and some blood in the left ear canal. He also had several
bruises on his lower forehead, left temple and left cheek, and an abrasion to the right
lower lip, which was slightly swollen, indicating Eric was alive when he received the
“blow to that part of the mouth.” In Dr. Ribe’s opinion, these bruises indicated multiple
blunt force blows, most likely from an adult’s hand or fist. A large bruise extending over
a wide area of the top of Eric’s head indicated multiple blunt force impacts to the top of
the head. Dr. Ribe opined this injury was the result of recent blows to the head or the
head striking some kind of hard flat surface.
Dr. Ribe observed a large number of bruises on both the left and right sides of
Eric’s torso, beginning below the armpit and extending almost down to his hip, as well as
a large bruise or cluster of bruises in the right lower abdomen flank area. The injuries to
Eric’s left chest, flank, and upper and middle abdomen and toward the back were
“indicative of blows to the chest and abdomen by an assailant who struck multiple blows
to the child’s torso.”
Dr. Ribe observed multiple bruises to the right chest wall and right flank, including
a large—approximately two-and-a-half-inch—cluster of bruises on the right lower
abdomen. Dr. Ribe noted the multiple bruises were scattered and widely dispersed; their
distribution suggested to Dr. Ribe that they had resulted from multiple separate impacts
and were characteristic of bruises from blows by a human hand or fist. The examination
also revealed a large area of bleeding and swelling to the left side of the scrotum.
During the autopsy dissection Dr. Ribe found three broken ribs on the left rib cage,
which had caused a large amount of chest wall bleeding while Eric was alive. Dr. Ribe
also found a large amount of free blood in the peritoneal cavity, which is the inside of the
abdomen. This indicated that Eric had suffered internal injuries which caused him to
12
bleed heavily inside his abdomen. The blows to both sides of Eric’s abdomen, as
indicated by the areas of bruising, were sufficient to account for the internal abdominal
injuries.
Dr. Ribe collected approximately 200 cubic centimeters of blood from the
peritoneal cavity. This blood had not clotted, suggesting “a slower bleed rather than an
extremely fast bleed.” Eric’s liver had two large subcapsular hematomas or contusions,
caused by blunt force injury to the right flank. The liver was also pale, which meant it
had suffered blood loss, and it had two large lacerations to the underside, which Dr. Ribe
opined accounted for the blood in the peritoneal cavity. According to Dr. Ribe, these
lacerations to the liver would have required a very powerful blow from the side or at an
upward angle to penetrate the abdominal wall, causing the capsule on the underside of the
liver to tear.
The mid-portion of Eric’s small intestine was gray-purple and extremely dilated,
indicating ischemia—that is, it had completely lost its blood supply and had died,9
probably a few hours before the child’s death. Dr. Ribe explained that during the process
of dying from internal bleeding, the body goes into shock and the nervous system diverts
the blood supply to the chest and head and away from the intestines, which are not
required for immediate survival. At this point, the ischemia process begins.
Dr. Ribe also found a large dark red hematoma in the left inguinal canal and
around the left testicle. He attributed this injury to a blow to the left scrotum, which
caused severe bleeding into the tissues around and within the left testicle. Although it is
possible for blood from an abdominal injury to drain down into the scrotum, Dr. Ribe
explained that did not occur here because such drainage occurs on both sides, and the
blood would drain on the outside of the tissues around the testicle and spermatic cord. In
Eric’s case, however, only the left testicle was affected while the right testicle was
9 According to another expert, “ischemia is just simply lack of blood supply to an
organ.”
13
normal, and the hematoma was contained within the membrane around the left testicle
and the spermatic cord.
Dr. Ribe opined that the cause of Eric’s death was blunt force trauma inflicted by
an adult. He explained that the multiple injuries Eric had suffered were consistent with a
person much larger and stronger than Eric slamming him against something. Eric’s
injuries also involved multiple blows to his face and on both sides of his body, against
which he was helpless to defend himself. In particular, the injuries inside the abdomen
indicated a large degree of force consistent with fatal internal bleeding and sufficient to
break bones. While all of the injuries contributed to Eric’s death, in Dr. Ribe’s opinion, it
was the lacerations to the liver that killed him.
Dr. Ribe was unable “to determine with scientific certainty exactly when the injury
occurred,” but opined that Eric had sustained his injuries “probably a few hours before”
he was admitted to the emergency room. The shortest amount of time possible between
infliction of the fatal injury and death was “probably about two hours.” In his opinion,
Eric was “effectively dead” when he arrived in the emergency room at 12:10 a.m. because
he never recovered a “significant heartbeat” the whole time. Dr. Ribe did not believe that
resuscitation efforts, including pressing on his stomach or abdominal area, would have
increased the rate of bleeding from the liver lacerations, but he could not say what effect
the resuscitation process would have on the two-hour time frame he had given. He also
could not say whether it was possible that the injuries Eric sustained could have occurred
within 30 to 45 minutes before his arrival at the hospital.
Dr. Aaron Miller, a board certified physician in general pediatrics and child abuse
pediatrics, reviewed Eric’s birth and medical records, including those from his
pediatrician for well child care and sick visits, and the X-rays and records related to the
broken arm. He also reviewed the hospital records from Eric’s admission on
November 28, the medical examiner’s reports, the photographs from the hospital and the
autopsy, the X-rays from the autopsy, and the reports from the defense experts. Based on
his review of all of these records, it was Dr. Miller’s opinion that Eric died as a result of
14
child abuse. Dr. Miller explained that his opinion was “based upon the number of
injuries, the severity of injuries, and the location of the injuries, and the lack of any other
medical causes that could reasonably explain these findings.”
Dr. Miller found no clear signs of any health problems from the records of Eric’s
well child check-up on November 26, 2013. But the broken arm in October did raise
cause for concern. The three-day period between the injury and seeking medical
treatment indicated neglect, and the nature of the fracture suggested possible abuse.
While the specific fracture Eric had could have resulted from a fall from a step, Dr. Miller
opined that this was not very likely because the curve of the fracture was indicative of
“some sort of twisting component when the force was applied to cause the facture,”
which would be inconsistent with the child falling from a six-inch step.
Dr. Miller also found the marks on Eric’s stomach and his split upper lip to be
suspicious types of injuries on a child. Specifically, Dr. Miller opined that the marks on
Eric’s abdomen appeared to have been “inflicted by some sort of slapping of the hands or
knuckle or something else with a similar shape.” These marks did not look like an
infectious or allergic rash; they looked like finger marks. And according to Dr. Miller,
“you don’t get rashes that do these weird shapes that look like the outline of fingers.”
Dr. Miller expressed concern over the unusually high number of different injuries
documented in the autopsy, citing the three broken ribs, “bruises all over the head on two
different sides,” multiple other bruises and bleeding under the connective tissue layers
under the scalp, lacerations to the liver, which caused severe bleeding into the abdomen,
and the necrosis from lack of oxygen from injury to the connective tissue fat around the
abdomen and parts of the intestines. Based on his training, experience, and background,
Dr. Miller opined that CPR would not have caused the broken ribs, “[e]ven poorly done
CPR.” Given the child’s small size, the rib fractures could have been the result of one
severe blow. Dr. Miller also explained that Eric’s eyelids and upper gums had petechial
hemorrhages—“little bursted blood vessels”—which might suggest direct trauma or
possible strangulation. Dr. Miller was also concerned by the injuries to Eric’s forehead
15
and on both sides of his head, which were consistent with multiple blunt force blows, not
from a child’s fall. In Dr. Miller’s opinion, there were “too many different bruises in
different planes [of the head] to be accidental.”
Dr. Miller opined that the lacerations to the liver, which resulted in serious
bleeding into the abdomen, were caused by severe blunt trauma inflicted sometime within
a “few hours” of Eric’s death. “But I can’t tell you if it happens a half hour ago or two
hours ago.” Dr. Miller explained that he could not be more precise about the time of
injury because “you’re dealing with multiple different blood vessels of different sizes and
thickness and being able to be compressed and, with the heart beating a hundred times a
minute, that’s a hundred gushes a minute of more blood coming out.” While “it would be
pure conjecture” to say how long it took for the blood, which was about a quarter of
Eric’s total blood volume, to fill his abdomen, Dr. Miller stated that the blood loss from
the liver lacerations would have caused Eric to be faint and then lose consciousness. Dr.
Miller added that a child who is injured so severely as to result in death would be
“symptomatic within minutes.”
Dr. Miller reviewed the defense expert’s report and disagreed with its conclusion
that the cause of Eric’s death was a blood clot in the superior mesenteric artery (the artery
that supplies the blood to all of the small intestine), which deprived the intestine of
oxygen and caused ischemia. Dr. Miller noted that there was no finding of a superior
mesenteric artery thrombus (a blood clot that forms in the artery, as opposed to a clot that
forms elsewhere and travels through the bloodstream) in the autopsy report, and none of
Eric’s medical records suggested any bleeding disorder or coagulopathy. Moreover, even
if Eric had such an undiagnosed condition, in Dr. Miller’s opinion, it was not the cause of
Eric’s death, nor did it explain the severe trauma to the liver, the broken ribs, or the
broken arm.
Dr. Miller explained that D.I.C. is an “end stage process right before death,”
commonly caused by sepsis (a severe bacterial infection that completely overwhelms the
immune system) or brain trauma. D.I.C. does not cause lacerations to the liver or broken
16
bones. One of the symptoms of D.I.C. is bleeding from the mucus membranes of the eyes
and nose, and blood in the stool and urine. Eric did not present with any of these
symptoms,10 nor was there any evidence of sepsis or brain trauma.
5. The Defense
Dr. Marvin Pietruszka is a board certified pathologist, toxicologist, clinician, and
professor with over 40 years’ experience. Based on his review of extensive literature, the
medical records, coroner’s report, pathology slides from the autopsy, X-rays, and
photographs of the child, Dr. Pietruszka concluded that Eric’s death was caused by
disease, not inflicted trauma. Specifically, in Dr. Pietruszka’s opinion, the cause of death
was ischemic bowel. Dr. Pietruszka opined that a mild trauma to the head or abdomen
triggered a fatal coagulation process (D.I.C.) that produced a blood clot, which cut off
circulation to a portion of the bowel, resulting in necrosis of intestinal tissue or ischemic
bowel, and, ultimately, death.
Dr. Pietruszka described D.I.C. as a complicated and life-threatening disease of the
body’s blood coagulation system in which the body has an abnormal production and
breakdown of blood clots. He explained: “Normally, if we cut ourselves, we form a
blood clot and the wound heals. In [D.I.C.], the process continues on and on with a risk
of death of over 57 %.” D.I.C. is usually a secondary condition resulting from some other
event, such as trauma, infection, sepsis, cancer, or an abdominal problem. It can even
result from a mild trauma such as hitting the head or falling on the abdomen.
In Dr. Pietruszka’s opinion, the coagulation process could have been triggered by
the child hitting his head or abdomen during a temper tantrum, movement in a car seat, or
twisting of the bowel. Over many hours after the initial trauma, a clot or blockage would
have occurred in one of the branches of the superior mesentery artery or the superior
mesenteric vein, blocking circulation and causing necrosis of the intestinal tissue. The
10 The left ear showed some crusting of blood, but Dr. Miller attributed this to the
slight cut above the ear, indicating trauma rather than a symptom of D.I.C.
17
fact that only one section of the intestine was affected indicated that the necrosis was
caused by blockage of a blood vessel and not a loss of circulation due to shock. Had the
loss of blood supply been due to shock, the entire intestine would have been black and it
would not have had normal-appearing and slightly hemorrhagic portions as Eric’s did.
The coagulation process would also produce hematomas in other areas of the body,
including the face, chest, hips, thighs, and extremities, which would appear as bruises.
Dr. Pietruszka did not believe that all of Eric’s hematomas were necessarily related to
D.I.C., and conceded that a bruise to Eric’s eye could be related to falling.
Dr. Pietruszka further opined that the lacerations to the liver and the lateral rib
fractures resulted not from inflicted trauma, but from the aggressive resuscitation efforts
undertaken at the hospital. He explained that CPR puts pressure on the sides of the ribs,
sometimes causing them to fracture, but fractures from inflicted trauma generally occur to
the back of the ribs. Similarly, the only traumatic injury to the abdomen occurred during
resuscitation. Finally, Dr. Pietruszka stated that blood draining from the inguinal canal
into the scrotum accounted for the hematoma on the child’s left testicle.11 If an injury
had been inflicted, both testicles would have been involved, not just the tissue around one
of them.
According to Dr. Pietruszka, the necrotic intestinal tissue caused death in six to
eight hours, not ten minutes or one to two hours. Based on the time of death pronounced
by Dr. Thurber, 2:30 a.m., the vascular event that resulted in the child’s death must have
occurred between 6:30 and 8:30 p.m. the night before.
Dr. John Lipham, a surgeon and division chief of general surgery at the Keck
Medical Center at the University of Southern California, reviewed Eric’s medical records,
the autopsy report, photos, and the preliminary hearing transcript in this case. In his
opinion, the cause of Eric’s death was the ischemic bowel. Dr. Lipham opined that Eric
11Dr. Gutkin agreed on cross-examination that the hematoma on the left scrotum
could have resulted from abdominal bleeding tracking down into the testicle.
18
was dead when he arrived at the emergency room without a pulse, and the condition that
caused the ischemia could not have occurred less than an hour before death. In Dr.
Lipham’s experience, it would take five to six hours from the time the blood supply was
cut off to that section of the bowel for it to become as black as Eric’s bowel.
Dr. Lipham noted that if blood loss were responsible for the ischemic bowel, the
entire bowel would have become ischemic, but in this case, other areas of the intestine
had not been compromised. Dr. Lipham explained that a segmental ischemia, where just
a portion of bowel has died from lack of blood supply, has several possible causes: One
is when a blood clot cuts off the blood supply. Such clots are of two kinds: A thrombotic
event, wherein a blood clot forms in the blood vessel; and an embolic event, in which a
blood clot forms elsewhere in the body, travels through the bloodstream, and lodges in a
narrow portion of the blood vessel. A condition seen especially in children, in which the
intestines rotate or twist on their main blood vessel, can also cause a segment of the
bowel to become ischemic. Finally, D.I.C., where coagulation of the blood “gets all out
of kilter,” can lead to segmental ischemia. Head trauma, infection, sepsis, and other
trauma can lead to D.I.C., and the condition can bring about blood clots, bleeding, or both
at the same time.
The two lacerations to Eric’s liver were fairly small and not very deep, leading Dr.
Lipham to conclude that they “probably would have bled fairly slowly, more of an ooze.”
In his opinion, it would have taken hours for these lacerations to bleed enough to become
clinically significant, and they were not the cause of death. In Dr. Lipham’s experience
performing emergency surgeries over the years, liver lacerations from CPR are fairly
commonplace occurrences. So too are rib fractures. In fact, Dr. Lipham explained that
“it’s not too terribly difficult to break a rib or two” during CPR, and he confessed he had
done it himself. Dr. Lipham had also seen fractured ribs and liver lacerations from CPR
in small children like Eric.
19
DISCUSSION
The Trial Court’s Omission of Accomplice Instructions
Constituted Prejudicial Error
Appellant contends that, assuming Eric’s death resulted from abuse, there was
substantial evidence the fatal blow was inflicted on Eric at or before 10:00 p.m. on
November 27, 2013, during which time it was undisputed that Cervantes had sole care of
the child. Appellant further points out that Cervantes was initially suspected in the
child’s killing and was arrested along with appellant. Accordingly, there being
substantial evidence from which the jury could conclude that Cervantes was responsible
for the child’s death, appellant asserts that the trial court erred in accepting appellant’s
agreement that the jury not be instructed pursuant to CALCRIM No. 334. (“Accomplice
Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice.”) Appellant
contends that the error was prejudicial under any standard, and his conviction should
therefore be reversed.
A. Relevant Background
According to Dr. Ribe, Eric was “effectively dead” by 12:10 a.m. when he arrived
at the emergency room. In his opinion, the lacerations to the liver were fatal, and resulted
in death “a few hours” after the injury was inflicted. Dr. Ribe opined that the shortest
interval between the trauma causing lacerations to the liver and Eric’s death was two
hours, meaning infliction of the fatal injury could not have occurred later than 10:00
p.m.12 Both experts opined that it would take five to six hours from the time the blood
supply was cut off to a section of the bowel for it to become as black as Eric’s was, thus
placing the vascular event that resulted in the partial ischemic bowel between 6:30 and
12Dr. Miller, who concurred in Dr. Ribe’s conclusion about the cause of death,
could only say that the blunt trauma that caused the liver lacerations was inflicted
sometime within “a few hours” of Eric’s death. But Dr. Miller stated that “it would be
pure conjecture” to say how long it took for the blood loss to result in death, and it was
impossible to pinpoint the time of injury with any precision.
20
8:30 p.m. the night before. The evidence was undisputed that Cervantes had sole care of
the child until appellant arrived at the apartment at 11:15 p.m., and she was arrested with
appellant in connection with the child’s death. Nevertheless, Cervantes was ultimately
released and was never charged with any crime. She testified at length at trial.
The trial court’s packet of instructions included CALCRIM No. 334, which
required corroboration of Cervantes’s testimony implicating appellant with the crime if
the jury found her to be an accomplice. The court observed it had a sua sponte duty to
give the instruction. However, apparently during an off-the-record discussion, both
defense counsel and the prosecutor asked that the instruction not be given, and confirmed
that request on the record. In response, the court stated: “And it’s understood that the
objection to [the accomplice instruction] eliminates the necessity of corroboration of Ms.
Cervantes’s statement and testimony if the jury were to determine that she was an aider
and abettor. With that understanding, does the defense still request that that instruction
not be given?” Defense counsel responded affirmatively, and appellant joined the
request.
B. Accomplice Instructions Were Required in Light of Substantial
Evidence that the Child’s Mother Was Involved in his Death
As a preliminary matter, respondent contends that the doctrine of invited error bars
appellant from raising this claim. We disagree. “ ‘When a defense attorney makes a
“conscious, deliberate tactical choice” to [request or] forego a particular instruction, the
invited error doctrine bars an argument on appeal that the instruction was [given or]
omitted in error.’ ” (People v. McKinnon (2011) 52 Cal.4th 610, 675; People v. Russell
(2010) 50 Cal.4th 1228, 1250 [“the doctrine of invited error applies when a defendant, for
tactical reasons, makes a request acceded to by the trial court and claims on appeal that
the court erred in granting the request”].) “ ‘[T]he doctrine . . . is “ ‘an “application of the
estoppel principle” . . . . [Citation.] . . . At bottom, the doctrine [aims] . . . to prevent a
party from misleading the trial court and then profiting therefrom in the appellate
21
court.’ ” ’ ” (People v. Mason (2013) 218 Cal.App.4th 818, 823, quoting Transport Ins.
Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000.)
The invited error doctrine does not preclude review of a party’s claim in all
instances where the party seeks to challenge an instructional omission that his action or
inaction helped to bring about. A claim is barred under the doctrine “if trial counsel both
‘ “intentionally caused the trial court to err” ’ and clearly did so for tactical reasons.
[Citation.] Invited error will be found, however, only if counsel expresses a deliberate
tactical purpose in resisting or acceding to the complained-of instruction.” (People v.
Souza (2012) 54 Cal.4th 90, 114.) The invited error concept is thus limited to the narrow
circumstance in which “the record indicated a ‘deliberate’ or ‘expressed’ tactical decision
by counsel to forego a particular instruction which the court was otherwise obliged to
render to the jury.” (People v. Graham (1969) 71 Cal.2d 303, 318; People v. De Leon
(1992) 10 Cal.App.4th 815, 823–824.)
Respondent argues that a tactical decision to omit the accomplice instructions may
be inferred because appellant’s “main defense” was that Eric died not as a result of
homicide, but from an undiagnosed blood disorder, and accomplice instructions would
have conflicted with that defense. To the contrary, no tactic or strategic reason appears in
the record to explain the decision to forgo such instruction, particularly since a critical
part of appellant’s defense was that whatever the cause of Eric’s death, the event
triggering it occurred hours before the undisputed evidence placed him alone with the
child. As we discuss below, based on the evidence presented at trial, the court had a sua
sponte duty to give the accomplice instruction, and given the absence of an express
tactical purpose for forgoing the instruction on the record, we conclude the invited error
doctrine does not bar our consideration of the claim in this case.13 (See People v. Najera
(2008) 43 Cal.4th 1132, 1136–1137; People v. Mason, supra, 218 Cal.App.4th at p. 824.)
13 In any event, a claim may be reviewed despite an invited error where the
instructional error affected the defendant’s substantial rights so as to effect a miscarriage
22
“ ‘It is settled that in criminal cases, even in the absence of a request, the trial court
must instruct on the general principles of law relevant to the issues raised by the evidence.
[Citations.] The general principles of law governing the case are those principles closely
and openly connected with the facts before the court, and which are necessary for the
jury’s understanding of the case.’ ” (People v. Diaz (2015) 60 Cal.4th 1176, 1189;
People v. Najera, supra, 43 Cal.4th at p. 1136.) “Section 1111 does not affect the
admissibility of accomplice testimony but rather ‘reflects a legislative determination of
how accomplice testimony must be treated.’ ” (People v. Romero and Self (2015) 62
Cal.4th 1, 32 (Romero and Self).) Our Supreme Court has recognized that the accomplice
corroboration requirement constitutes a general principle of law vital to the jury’s
consideration of the evidence, and the trial court’s sua sponte instructional duty extends to
instruction on this principle. (People v. Najera, supra, 43 Cal.4th at p. 1137; People v.
Warren (1940) 16 Cal.2d 103, 117.) Accordingly, “ ‘[w]hen there is sufficient evidence
that a witness is an accomplice, the trial court is required on its own motion to instruct the
jury on the principles governing the law of accomplices,’ including the need for
corroboration.” (People v. Tobias (2001) 25 Cal.4th 327, 331.)
We review appellant’s claim of instructional error de novo, and conclude that the
trial court erred in omitting the accomplice instruction in this case. (People v. Waidla
(2000) 22 Cal.4th 690, 733; People v. Cole (2004) 33 Cal.4th 1158, 1210.)
An accomplice is subject to prosecution for the identical offense charged against
the defendant by reason of being a direct perpetrator, aider and abettor, or coconspirator.
(§ 1111; People v. Houston (2012) 54 Cal.4th 1186, 1224.) The definition encompasses
all principals to the crime, but does not include accessories. (People v. Valdez (2012)
of justice (§ 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249), or where, in
choosing to forgo a particular instruction, counsel rendered ineffective assistance. (See
People v. Cooper (1991) 53 Cal.3d 771, 831 [if counsel acted incompetently in making
deliberate choice for express tactical reason in requesting instruction not be given,
defendant may claim he received ineffective assistance of counsel].)
23
55 Cal.4th 82, 145; People v. Boyer (2006) 38 Cal.4th 412, 467.) Whether a witness is an
accomplice is a question of fact for the jury. (People v. Hayes (1999) 21 Cal.4th 1211,
1271.) “ ‘When the evidence at trial would warrant the jury in concluding that a witness
was an accomplice of the defendant in the crime or crimes for which the defendant is on
trial, the trial court must instruct the jury to determine if the witness was an
accomplice.’ ” (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) The jury must further
be instructed that if it finds by a preponderance of the evidence that the witness was an
accomplice, the witness’s testimony should be viewed with distrust, and no conviction
may be had on the basis of the uncorroborated testimony of the accomplice. (People v.
Hinton (2006) 37 Cal.4th 839, 879.)
There was abundant evidence in this case from which the jury might have
concluded that Cervantes could have been subject to prosecution as a direct perpetrator,
aider and abettor, or coconspirator in the identical offense for which appellant was
charged. Dr. Ribe, the coroner who performed the autopsy, opined that the fatal injury
was inflicted two hours or more before death—at or before 10:00 p.m.—during which
time it was undisputed that Cervantes was alone with Eric. Cervantes had sole care of the
child until 11:15 p.m. And between 11:15 p.m. and 12:10 a.m., Cervantes and appellant
then had joint care of the child, except for a 15- to 20-minute period when appellant had
the child alone with him in his truck. Indeed, Cervantes was arrested along with appellant
as a suspect in the child’s murder. The evidence also established that Cervantes and
appellant were together when Eric received injuries possibly indicating child abuse or
neglect in October 2013—when Eric hit his mouth on a baby bottle, causing his lip to
bleed, and the day Eric broke his arm. Cervantes claimed she had lied when she had told
the pediatrician, her friends, and the police that the child had broken his arm in a fall from
a step at home. According to Cervantes, Eric broke his arm when appellant dropped him
24
on October 20, but she did not immediately notice anything was wrong, and did not seek
medical attention for him until three days later.14
Given her intimate involvement in all of the events leading up to Eric’s death and
her arrest for the murder, Cervantes had an “obvious interest in avoiding or minimizing
prosecution for the charged offense.” (People v. Guiuan (1998) 18 Cal.4th 558, 575,
(conc. opn. of Kennard, J.).) Accordingly, this evidence was more than sufficient to
warrant submission of the question of whether Cervantes was an accomplice to the jury,
and if the jury so found, to require corroboration of Cervantes’s testimony. The trial court
erred in failing to so instruct the jury.15
C. The Error Was Not Harmless
“Instructional error is subject to harmless error review. [Citation.] Because the
omitted instruction is based on section 1111, the asserted error is one of state law, subject
to the reasonable probability standard of harmless error under People v. Watson (1956) 46
Cal.2d 818, 836–837.” (People v. Whisenhunt, supra, 44 Cal.4th at p. 214.)
The corroboration requirement of section 1111 is based on the Legislature’s
determination that “ ‘ “because of the reliability questions posed by” ’ accomplice
testimony, such testimony ‘ “by itself is insufficient as a matter of law to support a
conviction.” ’ ” (Romero and Self, supra, 62 Cal.4th at p. 32.) “Thus, for the jury to rely
14Expert testimony that a broken arm such as Eric’s would have caused
considerable pain and the child would likely have been very vocal about it cast doubt on
Cervantes’s claim that the incident causing Eric’s broken arm occurred on October 20.
15 Respondent also contends that if Cervantes committed any crime, it was as an
accessory after the fact, not as an accomplice. The contention lacks merit. As defined by
statute, an accessory includes “[e]very person who, after a felony has been committed,
harbors, conceals or aids a principal in such felony, with the intent that said principal may
avoid or escape from arrest, trial, conviction or punishment, having knowledge that said
principal has committed such felony or has been charged with such felony or convicted
thereof.” (§ 32.) Here, while the evidence supports the conclusion that Cervantes was a
principal or aider and abettor, nothing in the record suggests that she assisted appellant
only after Eric’s death with knowledge that he was responsible for killing the child.
25
on an accomplice’s testimony about the circumstances of an offense, it must find
evidence that ‘ “without aid from the accomplice’s testimony, tend[s] to connect the
defendant with the crime.” ’ [Citations.] ‘The entire conduct of the parties, their
relationship, acts, and conduct may be taken into consideration by the trier of fact in
determining the sufficiency of the corroboration.’ [Citations.] The evidence ‘need not
independently establish the identity of the victim’s assailant’ [citation], nor corroborate
every fact to which the accomplice testifies [citation], and ‘ “may be circumstantial or
slight and entitled to little consideration when standing alone.” ’ ” (Id. at pp. 32–33;
People v. Hinton, supra, 37 Cal.4th at p. 880.)
The failure to instruct on accomplice liability under section 1111 is harmless if the
record contains sufficient corroborating evidence which “ ‘tends to connect the defendant
with the crime in such a way as to satisfy the jury that the accomplice is telling the
truth.’ ” (People v. Lewis (2001) 26 Cal.4th 334, 370; People v. Hinton, supra, 37 Cal.4th
at p. 880.) However, “ ‘ “corroborating evidence must do more than raise a conjecture or
suspicion of guilt.” ’ ” (People v. Szeto (1981) 29 Cal.3d 20, 27.) Our Supreme Court
has held that “section 1111 provides that an accomplice’s testimony is not corroborated
by evidence that ‘merely shows the commission of the offense or the circumstances
thereof.’ In other words, an accomplice’s testimony is not corroborated by the
circumstance that the testimony is consistent with the victim’s description of the crime or
physical evidence from the crime scene. Such consistency and knowledge of the details
of the crime simply proves the accomplice was at the crime scene, something the
accomplice by definition admits. Rather, under section 1111, the corroboration must
connect the defendant to the crime independent of the accomplice’s testimony.” (Romero
and Self, supra, 62 Cal.4th at p. 36.) After examining the long history of section 1111,
the high court concluded, “Our cases continue to refer to the requirement that the
corroborating evidence ‘ “must, without aid from the accomplice’s testimony, tend to
connect the defendant with the crime.” ’ ” (Id. at p. 37.)
26
Thus, “[t]o determine if sufficient corroboration exists, we must eliminate the
accomplice’s testimony from the case, and examine the evidence of other witnesses to
determine if there is any inculpatory evidence tending to connect the defendant with the
offense.” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543; People v. Shaw (1941)
17 Cal.2d 778, 803–804.) Here, all of the evidence implicating appellant with the killing
of this child came from the uncorroborated testimony of Cervantes, who was alone with
Eric during the critical time when the prosecution’s own experts believed the fatal injury
was inflicted. Moreover, not only did Cervantes have reason to lie about her involvement
with the child’s death, but she demonstrated a willingness to prevaricate on multiple
occasions throughout the investigation and trial of this case.
In these circumstances, we are particularly mindful of Justice Kennard’s
admonition in People v. Guiuan: “[S]pecial caution is warranted because an
accomplice’s firsthand knowledge of the details of the criminal conduct allows for the
construction of plausible falsehoods not easily disproved. This court has previously
described the problem in these words: ‘[A]ccomplice testimony is frequently cloaked
with a plausibility which may interfere with the jury’s ability to evaluate its credibility.
“ ‘[A]n accomplice is not merely a witness with a possible motive to tell lies about an
innocent accused but is such a witness peculiarly equipped, by reason of his inside
knowledge of the crime, to convince the unwary that his lies are the truth.’ ” ’ ” (People
v. Guiuan, supra, 18 Cal.4th at p. 575 (conc. opn. of Kennard, J.), quoting People v.
Tewksbury (1976) 15 Cal.3d 953, 967.)
Had the jury been afforded the opportunity to determine whether Cervantes was an
accomplice and weigh her testimony accordingly, we conclude it is reasonably likely
appellant would have obtained a more favorable result in this case. (People v. Watson,
27
supra, 46 Cal.2d at pp. 836–837.) The trial court’s instructional omission therefore
cannot be deemed harmless.16
DISPOSITION
The judgment is reversed and the matter is remanded for a new trial.
NOT TO BE PUBLISHED.
LUI, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
16 Our conclusion that the trial court’s failure to give the accomplice instruction
constituted prejudicial error is not to be construed as holding that Cervantes was an
accomplice as a matter of law. To the contrary, we emphasize that any such
determination is a question of fact for the jury, which should be instructed that if it finds
by a preponderance of the evidence that the witness was an accomplice, the witness’s
testimony should be viewed with distrust, and no conviction may be had on the basis of
the uncorroborated testimony of the accomplice. (People v. Hayes, supra, 21 Cal.4th at
p. 1271; People v. Hinton, supra, 37 Cal.4th at p. 879.)
28