People v. Collins CA2/5 ( 2023 )

Filed 3/30/23 P. v. Collins CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B322744
Plaintiff and Respondent, (Kern County
Super. Ct. No.
v. MF013183B)
BRITTNEY COLLINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern
County, Charles R. Brehmer, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Senior Assistant
Attorney General, Louis M. Vasquez, Supervising Deputy
Attorney General, and Amanda D. Carey, Jennifer Oleksa, and
Ian Whitney, Deputy Attorney Generals, for Plaintiff and
Respondent.
Defendant and appellant Brittney Collins’s (defendant’s)
two-month-old son, Abel Norwood (Abel), died of blunt force head
trauma. A jury convicted defendant of second degree murder for
failing to protect her son from his father Matthew Norwood
(Norwood), a methamphetamine addict who inflicted the fatal
injuries on the infant. The trial court sentenced defendant to 15
years to life in state prison. Defendant asks us to decide: (1)
whether her trial attorney was constitutionally ineffective
because he did not present a defense of intimate partner
battering (IPB),1 (2) whether the trial court had a sua sponte duty
to instruct the jury on the lesser included offense of voluntary
manslaughter, (3) whether there is sufficient evidence defendant
failed to act with the intent to facilitate Abel’s killing, and (4)
whether the court erred by imposing various fines and
assessments without first determining defendant’s ability to pay.
I. BACKGROUND
A. Abel’s Hospitalization and Death
On October 17, 2018, defendant was at home in Tehachapi,
California, with Abel and her 78-year-old grandmother Shirley
Collins (Shirley). Earlier that morning, defendant and Norwood
had argued over his drug use: she told him to move out, and he
1
“Although often referred to as ‘battered women’s syndrome,’
‘intimate partner battering and its effects’ is the more accurate
and now preferred term. (See, e.g., Stats. 2004, ch. 609, §§ 1, 2
[changing references in Evid. Code, § 1107 and Pen.
Code, § 1473.5 from ‘battered women’s syndrome’ to ‘intimate
partner battering and its effects’]; see also People v. Humphrey
(1996) 13 Cal.4th 1073, 1083-1084, fn. 3 [(Humphrey)].)” (In re
Walker (2007) 147 Cal.App.4th 533, 536, fn. 1 (Walker).)
2
broke her cellular phone. During most of that day, Norwood had
been Abel’s primary caregiver because Collins was not feeling
well; she was still suffering from the effects of her caesarian
section weeks earlier and was at the time suffering from an
infection and the side effects of an antibiotic.
Norwood left the family home that day between 3:30 and
4:00 p.m. to go to Home Depot. According to Norwood, Abel was
“fine” when he left the house. At approximately 5:00 p.m.,
defendant went to check on Abel. Moments later, she began
screaming “Something’s wrong with my baby.” She brought Abel
to Shirley, who saw that her grandson was “not in good shape”
because he “twitch[ed]” and only the whites of his eyes were
visible.
Defendant assumed Abel was having a seizure. As Shirley
held Abel, defendant rushed outside and called for help from two
neighbors. The neighbors found Abel to be “burning up” and
“lifeless” with his eyes rolling up into the back of his head. The
neighbors, one of whom called 911, tried to lower Abel’s
temperature by putting cool water on him. Paramedics were
called.
The responding emergency personnel found Abel pale,
lethargic, and unresponsive to stimulus. After concluding Abel
“needed help immediately,” the paramedics rushed him to Kern
Medical Center in Bakersfield, California. During the drive to
the hospital, Abel exhibited “seizure-like activity” and remained
unconscious.
At the medical center, one of the emergency room nurses
observed bruising and swelling below Abel’s left knee indicative
of a possible bone fracture. The nurse ordered an x-ray of Abel’s
leg in addition to a computerized tomography (CT) scan of his
3
head. The x-ray of Abel’s left leg showed a recent fracture of the
left tibia; the fracture was also angulated, i.e., the tibia was not
merely broken but also bent out of its normal orientation. The
CT scan revealed multiple bilateral parietal skull fractures and
small scalp hematomas; the head injuries were so “profound” that
in the radiologist’s opinion Abel’s brain was at the time either
“already dead or in the process of dying.”
After consulting with the radiologist, the emergency room
nurse contacted Kern County’s child protective services agency.
Later that night, because the medical center did not have a
pediatric intensive care unit, Abel was airlifted by helicopter to
Valley Children’s Hospital (Valley Children’s) in Madera,
California.
The following day, a pediatric radiologist at Valley
Children’s reviewed various diagnostic imaging studies of Abel.
The CT scan of the pelvis and abdomen and a bone survey
showed multiple rib fractures, some of which were quite recent,
while others were older. The x-rays of Abel’s head showed
displaced skull fractures, an occurrence which is uncommon in
infants as it requires major trauma, such as a high-speed
automobile accident. In each of Abel’s four extremities, the
radiologist found evidence of metaphyseal corner fractures, “a
very uncommon fracture type,” one which is “only seen in child
abuse.”2 In the radiologist’s opinion, the imaging studies taken
2
In addition, a pediatric ophthalmologist at Valley
Children’s examined Abel’s eyes. Using RetCam, a high
resolution digital imaging system, the ophthalmologist found
retinal hemorrhages “too many to count” where “there should not
be any.” The number of hemorrhages were, in the view of the
ophthalmologist, indicative of trauma.
4
together were diagnostic of “severe” or “pure” child abuse, “unless
the child had been in a car accident at 75 miles per hour [and]
ejected” from the vehicle. Due to the different ages of his
injuries, Abel would have had to suffer multiple incidents of
trauma to account for all the injuries.
A week after being hospitalized, Abel died. An autopsy was
subsequently performed by a forensic pathologist.
The autopsy revealed that almost all of the rib fractures
displayed callus formations, which meant the injuries occurred
seven to 10 days before Abel was hospitalized and were the result
of “extreme” or “severe” chest compressions: “the child’s chest and
torso [we]re grasped between . . . two hands and then the infant’s
body [was] markedly[,] violently shaken . . . .” In contrast to the
rib fractures, the leg fracture was “fresh,” with no signs of
healing. The autopsy also revealed that, in addition to retinal
hemorrhages, Abel suffered retinal detachments, a finding which
came as a “surprise” to the pathologist because such injuries are
usually found only in infants who suffered violent head trauma
as a result of traffic accidents.
In the pathologist’s opinion, the cause of Abel’s death was
“blunt head injuries” and “the manner of death was homicide.”
The pathologist opined Abel’s head and leg injuries occurred at
the same time; “the leg was used as a handle to pick the infant up
and then sw[u]ng . . . into a wall or down into the
ground . . . causing death.” The pathologist concluded there was
no possibility of recovery from such a head injury; Abel was
“dying from the time of the injury.”
5
B. Defendant’s Pre-Trial Statements to Law Enforcement
Because there was no room for them in the helicopter that
transported Abel from Kern Medical Center to Valley Children’s,
defendant, Norwood, and Shirley drove to Madera. After they
arrived at Valley Children’s, a Madera County Sheriff’s deputy,
acting in response to a request from the Kern County Sherriff’s
Office for assistance in a possible child abuse investigation,
questioned Abel’s parents.
Norwood told the Sheriff’s deputy that before he left the
family home, he changed Abel’s diaper and attempted to feed
him; Abel was, as usual, “fussy” during the changing but went
back to sleep before Norwood could feed him. Defendant
explained that sometime after Norwood left the home, she heard
Abel make a noise and when she went to check on him, she found
him pale in color and warm to the touch. Both parents denied
Abel had been struck or dropped. Both parents also stated
Shirley would occasionally watch Abel for short periods,
anywhere from 30 minutes to two hours, but, as defendant
explained, Shirley would not carry the baby due to her limited
mobility (she used a walker to move from place to place).
When defendant and Norwood arrived back in Tehachapi
on October 18, they found deputies from the Kern County
Sheriff’s Office conducting a search of the family home. In one of
the bathrooms, deputies found a hypodermic needle with a
“blackish substance” inside of it. In the bedroom used by
defendant and Norwood, deputies found an open suitcase laying
on the bed half-filled with what may have been men’s clothes.
Following the search, defendant and Norwood agreed to be
interviewed at the Sheriff’s Tehachapi substation. While waiting
for the interviews to begin, defendant and Norwood remained in
6
the backseat of a patrol car. The car was equipped with an audio
recording device and their conversation was recorded. As soon as
they were left alone in the patrol car, Norwood told defendant,
“Don’t be tryin’ to add anything extra to your story, okay”?
During their conversation, which they recognized could be subject
to recording, Norwood repeatedly affirmed to defendant that he
loved her and repeatedly stated he would not incriminate
defendant or anyone else. Defendant replied, “Babe, I’m not
going to throw you under the bus.” Defendant and Norwood also
repeatedly made statements suggesting Shirley may have been
responsible for Abel’s injuries. Defendant also told Norwood she
saw the law enforcement officers recover the aforementioned
hypodermic needle.
The detectives interviewed defendant and Norwood
separately. At several points during her interview, defendant
made inconsistent statements.
For example, defendant initially claimed the hypodermic
needle found by law enforcement at the family home was hers,
which she used for insulin injections. Later, she claimed she
used the needle for methamphetamine. Eventually, she admitted
the needle was not hers but Norwood’s. Defendant told the
detectives Norwood asked her to claim the needle as hers.
In another instance, defendant first stated Norwood did not
use any drugs only to later reveal Norwood used
methamphetamine on a “daily basis,” which was “more than he
should” because it made him paranoid. Defendant also initially
stated she thought Shirley had dropped Abel accidently, got
scared, and lied to cover up the accident. But after further
questioning, defendant admitted Norwood had told her to blame
Shirley for Abel’s injuries.
7
When asked whether Norwood was the one who injured
Abel, defendant conceded that was the “first thing” that had gone
through her mind because Norwood was the last one with Abel.
She said Norwood might have had a “lapse in judgment” as a
result of his drug use and knocked the bassinet over “on accident
or something.” Defendant claimed, however, that she had never
seen Norwood hit Abel.
The following day, October 19, detectives interviewed
defendant again, this time after arresting and Mirandizing her.
After initially denying she ever saw Norwood abuse Abel,
defendant admitted she had seen Norwood mistreat their son in
different ways before the events on October 17 when he was
rushed to the hospital. Among other things, defendant said
Norwood would roll Abel over by his leg “all the time” and had
bumped Abel’s head “on stuff” on more than one occasion.
Although Norwood claimed the bumps were accidental, defendant
did concede “you don’t – don’t – don’t accidentally bump your
baby’s head.” In addition, defendant admitted she saw Norwood
push down hard on Abel as he lay on a bed and squeeze him hard
enough to break a rib while shaking his head. When Abel cried,
Norwood would get mad and bounce Abel “too hard” and cover
the infant’s mouth with his hand “a lot.” Defendant told the
detectives Norwood had “rage” inside of him “[be]cause he’s a
drug addict.” In her view, Norwood abused their child because he
was “just too high to deal with [Abel].”
When questioned specifically about the events on the day
Abel was transported to the hospital, defendant explained
Norwood cared for Abel most of the day while she napped on the
couch and periodically checked on Abel, who appeared to be
breathing normally. At approximately 3:30 p.m., she heard Abel
8
make a noise from the room where he was sleeping. In a “pretty
insistent” manner, Norwood refused defendant’s offer to feed Abel
and left the room to tend to Abel himself. At the time, defendant
thought Norwood’s behavior was “kinda weird” because she was
“always” the one who fed Abel and changed his diaper. From the
room where Norwood was tending to Abel, defendant heard the
sound of a loud bang. The sound was similar to what she had
heard on at least five other occasions when Norwood was caring
for Abel by himself in another room. On those prior occasions,
Abel had always made an “exclamation” noise or cried louder in
response, but on that day he made no sound following the “big
bang.” Previously, Norwood would explain away the banging
noises by saying he bumped into the bassinet by accident—an
explanation defendant did not credit, because when she tried to
recreate the noise by bumping the bassinet herself the sound she
made was “nowhere near . . . as loud” as the sound she heard.
When Norwood reappeared from the nursery, he told defendant
Abel did not want a bottle and had gone back to sleep. To
defendant, Norwood appeared “real antsy,” which she attributed
to him being “high.” Norwood then left the house quickly but,
instead of sitting in his car for a minute or two as was his usual
custom, he drove away from the house immediately. An hour
later, when defendant went to check on Abel, she found him pale
and foaming at the mouth, which led her to immediately scream
for help. Later, when she was first interviewed by police at
Valley’s Children and was told someone had hurt her son,
defendant’s first thought was that Norwood was responsible.
During the course of her custodial interview, defendant also
claimed Norwood had acted violently toward her. On a number of
occasions, she said, Norwood would vent his frustration by yelling
9
and raising his fist at defendant and also punching her in the
arm hard enough to leave a bruise. In addition, Norwood pushed
her down and pinned her to the bed “quite a bit,” kneed her in the
stomach once while she was pregnant, choked her a “couple of
times,” and kicked her in the face once during an argument over
his drug use (which required her to get a fake tooth). Defendant
said that when she was eight months pregnant, Norwood pushed
her down, “got in [her] face, and threatened to make her lose the
baby.” In defendant’s opinion, “it was the drugs” that made
Norwood abuse her. Defendant explained that prior to Abel’s
hospitalization, including while she was pregnant, she was afraid
to call the police on Norwood because he might retaliate by
hurting her, or even killing her. She added that after they were
interviewed by police on October 18 and returned home, she was
scared of Norwood because she had told the truth to the
detectives. In retrospect, defendant acknowledged she should
have told Norwood to leave the family home earlier or called the
police the first time she saw him cover Abel’s mouth or the first
time he hit her when she was pregnant.
C. Criminal Charges and Additional Statements by
Defendant
On October 23, 2018, while Abel was still being cared for at
Valley Children’s, defendant and Norwood were charged by
felony complaint with causing their son’s injuries. On that same
day, defendant was again interviewed by the police. At that time,
she told the police she felt like she failed to protect Abel because
if she would have “told [Norwood] to leave sooner or called the
police sooner, Abel wouldn’t be hurt. . . . And I regret ever
meeting [Norwood] and getting with him.”
10
After Abel died, defendant and Norwood were charged by
information with second degree murder (Penal Code,3 § 187, subd.
(a)) (count one) and assault on a child under eight years old by
means of force reasonably likely to produce great bodily injury,
which results in the child’s death (§ 273ab, subd. (a)) (count two).4
The charges against each defendant were tried to separate juries.
D. Defendant and Norwood’s Testimony at Defendant’s
Trial
During defendant’s direct examination testimony, she
acknowledged she knew Norwood was a drug addict but she
maintained she had no idea Norwood would harm Abel.
According to defendant, Norwood “always” took “pretty good” care
of her son whenever she was watching and she never thought
Norwood would harm her son behind her back.
Defendant testified neither she nor the nurse practioner
who examined Abel at his well-baby visits ever observed any
bruising on Abel prior to October 17. She stated she “never” saw
Norwood abusing Abel and, if she had, she “definitely” would
have called the police. Defendant claimed she only told the police
3
All undesignated statutory references that follow are to the
Penal Code.
4
While awaiting trial in a Kern County pre-trial detention
facility, defendant was taken from her cell to the infirmary
because she was crying hysterically and had cut her wrist with a
razor. According to the detention officer who escorted her to the
infirmary, defendant said her “husband killed my son and my
cellmate keeps talking about people killing their babies. I
couldn’t take it being in there anymore.”
11
Norwood abused Abel because she thought that was what they
wanted to hear and if she told them that she would be released.
Although defendant and Norwood had arguments, she denied he
ever hurt her physically and she said she “[m]ore than likely”
would have called the police if he had.
On cross-examination, defendant admitted she knew
Norwood used drugs on the day of Abel’s fatal injury and on the
days prior, and she explained Norwood would sometimes become
“weird,” “antsy,” “mean,” and “angry” when using. Defendant
admitted she lied to the police about who owned the hypodermic
needle and when suggesting Shirley may have dropped Abel; she
said she lied at Norwood’s request and was afraid of him.
When asked who killed her son, defendant acknowledged it
had to be Norwood because she did not do it and he was the last
one with Abel. Defendant also conceded she “stood up for
[Norwood] at every turn” and Abel would still be alive if she had
called the police sooner. Although defendant recognized Norwood
could be violent and admitted she lied to the detectives about
Norwood abusing Abel prior to October 17, defendant persisted in
the view that she “never saw [Norwood] actually do anything” to
Abel. Defendant specifically denied what she admitted in her
interviews with law enforcement: seeing Norwood push or shake
Abel, bump his head into objects, or cover his mouth to get him to
stop crying.5 As for the loud noises she heard when Norwood and
Abel were alone in another room, defendant testified she lied
5
Defendant said she made these incriminating interview
statements because she wanted to be with Abel and told the
detectives what she thought they wanted to hear.
12
when she told detectives the noises could not have been made by
Norwood accidentally bumping into the bassinet.
Defendant, while testifying, also minimized the events she
had previously described for the police about her relationship
with Norwood. For example, she described him kneeing her in
the stomach as just “one of the little things he did.” Instead of
choking her more than once while pregnant, as she told the
detectives, defendant testified it was only once. And when
Norwood kicked her in the face, she testified it was an accident
because she startled him while he was asleep. Although she
testified on direct Norwood never hurt her, she did admit on
cross-examination that she was afraid to return home with
Norwood after their police interviews on October 18 and did so
only because she had nowhere else to go. On re-direct,
defendant’s attorney did not ask her about any of the abuse she
purportedly suffered at Norwood’s hands; instead, he confined his
questions to whether she used any drugs during her pregnancy,
which she testified she had not.
Norwood also testified at defendant’s trial. He
acknowledged he struggled with controlling his anger and
admitted that at the time of Abel’s fatal injury he was on
probation for misdemeanor domestic violence and enrolled in a
court-ordered domestic violence program. Norwood also admitted
he was addicted to methamphetamine. Norwood conceded
methamphetamine made him irritable, which made it more
difficult to control his anger, and acknowledged that his son’s
“grumpiness” irritated him. Norwood claimed, however, he was
“never angry with his son no matter what.”
According to Norwood, Abel was “more fussy than normal”
and “screaming” on October 17, but Norwood was not irritated
13
because he recognized his son had cause to be fussy having
received immunization shots the day before. Later in his
testimony, however, Norwood admitted he was caring for Abel
that day and was irritated because he found his infant son to be
“fussy and grumpy.”
Norwood continued to assert it was possible Shirley
inflicted some of Abel’s injuries, but he conceded other injuries,
such as the broken left leg and the retinal detachments, could
only have been inflicted by himself or defendant. Norwood
denied ever physically abusing defendant, denied killing Abel,
and specifically denied picking his son up and slamming his head
into the ground or a wall, or swinging him by his leg into the
ground.
When defendant’s attorney cross-examined Norwood, he
did not ask about Norwood’s physical abuse of his client. Instead,
trial counsel pursued three different topics: defendant’s diligence
in attending every prenatal doctor’s appointment and always
testing negative for drugs at those appointments; Norwood’s
efforts to prepare for the birth of his son by, among other things,
attending parenting and anger management classes; and the
specific events on October 17 when Abel was rushed to the
hospital.6
6
In addition to defendant and Norwood, the defense also
called Shirley as a witness. She testified that although it was not
unusual for defendant and Norwood to argue, she did not regard
their arguing as abusive, just “two young people trying to know
each other and work things out.” With regard to Abel, she
testified she did not see or hear either parent mistreat Abel
(though she admitted she was hard of hearing) and did not
observe any injuries to Abel prior to October 17. Although she
14
E. Jury Instructions, Closing Argument, Verdict, and
Sentencing
In connection with the murder charge, the trial court
instructed the jury using CALCRIM Nos. 401 (aiding and
abetting), 500 (homicide), and 520 (second degree murder), as
well as with the following special instruction: “The word ‘act,’ as
used in these instructions, includes an omission or failure to act
in those situations where a person is under a legal duty to act.
[¶] A parent has a legal duty to his or her minor child to take
every step reasonably necessary under the circumstances in a
given situation to exercise reasonable care for the child to protect
the child from harm, and to obtain reasonable medical attention
for the child.” The record indicates the defense did not request
instructions on voluntary manslaughter or imperfect self-defense,
or object to the absence of such instructions.
During closing argument, the prosecution acknowledged
Norwood’s abuse of defendant but emphasized defendant’s failure
to protect Abel in light of her knowledge of Norwood’s
methamphetamine use and his physical abuse of Abel. As the
prosecution put it, Abel died “[b]ecause of what [Norwood] did
and because of what [defendant] didn’t do.”
The defense argued defendant was innocent of both charges
(murder and assault on a child resulting in death) because she
took out restraining orders against both defendant and Norwood
following Abel’s hospitalization, she could not remember why—
other than to say she was advised to do so by law enforcement.
The defense also called four character witnesses to testify
(defendant’s college friend, an uncle, an aunt, and a foster
mother), all of whom attested to defendant’s penchant for
honesty.
15
never saw any actual abuse of Abel. According to the defense,
defendant could not have prevented Abel’s death because
Norwood, after being a good father for two months, unexpectedly
“went berserk” and “snap[ped]” during a “very stressful day.”
The defense argued defendant was a responsible mother who “did
everything right, made [every prenatal and well-baby]
appointment.” The defense also urged the jury to give little
weight to reports of arguing and domestic violence between
defendant and Norwood: “Like a lot of young couples, they say
and do mean things, [and] regret it later. That’s what I think
happened here.”
On October 21, 2020, the jury found defendant guilty of
second degree murder and not guilty of assault on a child
resulting in death as charged in count two—but guilty of the
lesser included offense of assault with force likely to cause great
bodily injury.7
At sentencing, defendant’s attorney urged the trial court to
be lenient on the following ground: “I don’t know if the Court
knows but I was the first attorney in California to bring about
Batter[ed] Wife Syndrome as a defense. Not that I’m saying that
in this case; however, a common thread with young women is
they tend to accept some forms of abuse only to try and make the
marriage work and only to keep a family together. [¶] That’s
what I think [defendant] is guilty of, if that. I would ask the
Court to consider felony probation.” The court declined and
sentenced Collins to 15 years to life in prison. The court also
imposed various fines and assessments without objection.
7
Norwood’s jury found him guilty as charged and the trial
court sentenced him to 25 years to life in prison.
16
II. DISCUSSION
Defendant’s three challenges to her convictions are
unavailing. There is no basis for reversal on direct appeal for
asserted ineffective assistance of counsel because there are easily
hypothesized tactical reasons for counsel’s decision not to present
an IPB defense—most prominently, a strategic decision to pursue
an outright acquittal (on the theory defendant was oblivious to
Norwood’s proclivity for harming Abel) rather than conviction on
some lesser offense based on the effects of IPB. An instruction on
voluntary manslaughter was not required because the theory
defendant advances on appeal is one of duress, not imperfect self-
defense (she aided and abetted Norwood in the killing of an
innocent third party, her infant son, not Norwood), and the
existence of duress (even if proven) is not a defense to murder.
And as for the sufficiency of the evidence, there was enough to
permit a rational juror to find beyond a reasonable doubt that
defendant knew of Norwood’s abuse of Abel but intentionally
failed to take any reasonable steps to protect the baby—including
on the day in question when defendant knew Norwood was high
and still angry from their earlier argument.
Defendant’s lone sentencing contention, that fines and
assessments were improperly imposed under the reasoning of
People v. Dueñas (2019) 30 Cal.App.5th 1157, is forfeited for lack
of an objection in the trial court.
A. Ineffective Assistance of Counsel Has Not Been Shown
1. Expert evidence on IPB
For many years, criminal defendants accused of committing
violent crimes against their batterers were denied the ability to
use expert testimony to assist the trier of fact in understanding
17
the psychological effects of intimate partner battering to negate
the malice element of murder. (People v. Brown (2004) 33 Cal.4th
892, 902 (Brown).) To address that problem, the Legislature
added section 1107 to the Evidence Code, effective January 1,
1992 (Stats. 1991, ch. 812, § 1, 3612-3613), which authorizes
admission of expert testimony regarding intimate partner
battering and its effects. (Brown, supra, at 902.) By negating the
element of malice, “evidence of intimate partner battering and its
psychological effects can reduce an intentional killing from
murder to voluntary manslaughter.” (Walker, supra, 147
Cal.App.4th at 546; accord, Humphrey, supra, 13 Cal.4th at 1086[expert testimony on effects of IPB is relevant to support
imperfect self-defense, i.e., that defendant genuinely but
unreasonably believed she was in imminent danger of serious
bodily injury].) Expert testimony on IPB can also be relevant to a
victim’s credibility “‘by dispelling many of the commonly held
misconceptions about battered women’” and “‘“the ordinary lay
person’s perception that a woman in a battering relationship is
free to leave at any time . . . .”’ [Citation.]” (Id. at 1087.)
2. Ineffective assistance of counsel on direct appeal
“‘In assessing claims of ineffective assistance of trial
counsel, we consider whether counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome. (Strickland v. Washington
(1984) 466 U.S. 668, 694[ ]; People v. Ledesma (1987) 43 Cal.3d
171, 217 [ ].)’” (People v. Carter (2005) 36 Cal.4th 1114, 1189
(Carter).) We presume “‘counsel’s performance fell within the
18
wide range of professional competence and that counsel’s actions
and inactions can be explained as a matter of sound trial
strategy. Defendant thus bears the burden of establishing
constitutionally inadequate assistance of counsel.
[Citations.]’” (Ibid; see also People v. Scott (1997) 15 Cal.4th 1188,
1212 [a reviewing court “should not second-guess reasonable, if
difficult, tactical decisions in the harsh light of hindsight”].) “‘If
the record on appeal sheds no light on why counsel acted or failed
to act in the manner challenged, an appellate claim of ineffective
assistance of counsel must be rejected unless counsel was asked
for an explanation and failed to provide one, or there simply could
be no satisfactory explanation.’ [Citation.]” (Carter, supra, at
1189; accord, People v. Mickel (2016) 2 Cal.5th 181, 198 [“[A]
reviewing court will reverse a conviction based on ineffective
assistance of counsel on direct appeal only if there is affirmative
evidence that counsel had ‘“‘no rational tactical purpose’”’ for an
action or omission”].)
3. There is no basis in the record to conclude trial
counsel’s performance was objectively
unreasonable
The appellate record does not reveal why defendant’s trial
counsel declined to pursue an IPB defense. That fatally
undermines defendant’s ineffective assistance of counsel claim on
appeal because there are readily hypothesized rational tactical
reasons to forgo such a defense.
Here is but one example. Defendant’s trial attorney, in
argument and in the selection and questioning of witnesses
(including defendant), appears to have pursued a strategy of
portraying his client as an honest person and a responsible
19
mother, who, on October 17, 2018, had no inkling that Norwood
would beat and kill Abel. On direct examination, defendant
testified Norwood was a “pretty good” young father. She asserted
she never witnessed Norwood abuse their son nor saw any after-
effects of such abuse, such as bruising. Defendant also testified
that she herself had never suffered any abuse at Norwood’s
hands.8 Defendant’s testimony was bolstered by her four
character witnesses, each of whom testified defendant was
truthful and trustworthy and none of whom contradicted
defendant or Shirley’s testimony about the absence of any child
abuse or domestic violence. The defense argued that the fatal
injuries inflicted on Abel were therefore entirely unexpected, and
if believed, that would have likely resulted in an outright
acquittal rather than conviction of a lesser manslaughter
offense.9 That sort of all-or-nothing strategic judgment has been
8
Defendant’s testimony on direct was consistent with
Shirley’s testimony that, while living with the family for a year in
the relatively close quarters of a mobile home, she never saw any
abuse of Abel by either of his parents or of her granddaughter by
Norwood.
9
Expert testimony about IPB and its psychological effects
would have been at odds with key elements of this approach.
Although it would have offered a possible explanation for
defendant’s contradictory statements to the police and perhaps
salvaged some credibility with the jury, it would also confirm that
defendant was well-aware of Norwood’s violent nature (and the
drug use that fueled it) and, notwithstanding that knowledge, did
nothing to protect her son from Norwood on both October 17 and
on the days preceding Abel’s fatal injury. In any case, as our
Supreme Court has explained, “[f]ailure to argue an alternative
20
routinely held to fall within the wide range of professional
competence (not to mention the range of reasonable strategic
choices for a defendant personally to prefer). (See, e.g., People v.
Wade (1988) 44 Cal.3d 975, 989; see also People v. Cunningham
(2001) 25 Cal.4th 926, 1007 [“counsel does not render ineffective
assistance by choosing one or several theories of defense over
another”].)
B. The Trial Court Had No Sua Sponte Duty to Instruct
on Voluntary Manslaughter Based on Imperfect Self-
Defense
1. Applicable law
“‘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.’ [Citations].” (People v. Diaz (2015) 60 Cal.4th 1176, 1189.)
A trial court has a sua sponte duty to instruct the jury on a
lesser included offense “whenever evidence that the defendant is
guilty only of the lesser offense is ‘substantial enough to merit
consideration’ by the jury.” (People v. Breverman (1998) 19
Cal.4th 142, 162; see also id. at 154 [trial court must provide
“‘instructions on lesser included offenses when the evidence
raises a question as to whether all of the elements of the charged
offense were present [citation], but not when there is no evidence
theory is not objectively unreasonable as a matter of law.”
(People v. Thomas (1992) 2 Cal.4th 489, 531.)
21
that the offense was less than that charged’”].) “This substantial
evidence requirement is not ‘“satisfied by any evidence . . . no
matter how weak,”’ but rather by evidence from which a jury
composed of reasonable persons could conclude ‘that the lesser
offense, but not the greater, was committed.’” (People v. Avila
(2009) 46 Cal.4th 680, 705 (Avila); accord People v. Landry (2016)
2 Cal.5th 52, 96.)
We review de novo a claim the trial court erred by failing to
instruct on a lesser offense, construing the evidence in the light
most favorable to the defendant. (People v. Licas (2007) 41
Cal.4th 362, 366; People v. Brothers (2015) 236 Cal.App.4th 24,
30.)
2. An instruction on voluntary manslaughter was
not required because the evidence at trial
showed defendant acted out of duress, not
imperfect self-defense
Imperfect self-defense applies when “the defendant killed
the victim in the unreasonable but good faith belief in having to
act in self-defense.” (People v. Barton (1995) 12 Cal.4th 186, 201.)
While imperfect self-defense does not justify a homicide, it may
reduce murder to voluntary manslaughter by negating the
element of malice required for murder. (People v. Randle (2005)
35 Cal.4th 987, 994.)
Here, defendant claims the jury should have been
instructed on imperfect self-defense because she feared Norwood
would harm or kill her if she reported his abuse of Abel. This,
however, is not a claim of imperfect self-defense; rather, it is at
best a claim of duress, which, as our Supreme Court has held, can
neither justify nor mitigate murder. (People v. Anderson (2002)
22
28 Cal.4th 767, 780, 783 (Anderson); accord, People v. Hinton
(2006) 37 Cal.4th 839, 882-883 [“‘[D]uress is not a defense to any
murder’ (People v. Maury (2003) 30 Cal.4th 342, 421, [ ]) and, in
particular, does not negate malice”].) “In contrast to a person
killing in imperfect self-defense, a person who kills an innocent
believing it necessary to save the killer’s own life intends to kill
unlawfully,” and “[n]othing in the statutes negates malice in that
situation.” (Anderson, supra, at 783.) Accordingly, even if there
is good evidence defendant feared Norwood, that evidence is not
evidence that could support an imperfect self-defense finding.
Defendant was accused and convicted of aiding and abetting the
killing of Abel, not killing Norwood (the person whom she
assertedly feared).
Defendant recognizes we are bound by our Supreme Court’s
holding in Anderson distinguishing duress from imperfect self-
defense but she cites Justice Kennard’s concurring and dissenting
opinion in that case to argue duress should be a defense to
second-degree murder. Defendant can pursue that argument
with our Supreme Court if she chooses, but we reject it.
C. Sufficient Evidence Was Presented at Trial to
Establish the Requisite Intent for Second Degree
Murder
“When the sufficiency of the evidence to support a
conviction is challenged on appeal, we review the entire record in
the light most favorable to the judgment to determine whether it
contains evidence that is reasonable, credible, and of solid value
from which a trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] Our review must presume in
support of the judgment the existence of every fact the jury could
23
reasonably have deduced from the evidence.
[Citation.] . . . [T]he relevant inquiry on appeal is whether, in
light of all the evidence, ‘any reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt.’
[Citation.]” (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
Murder is the unlawful killing of a human being “with
malice aforethought.” (§ 187, subd. (a).) At trial, the prosecution
relied on a theory of implied malice to support a conviction for
second degree murder. “‘Malice is implied when the killing is
proximately caused by “‘an act, the natural consequences of
which are dangerous to life, which act was deliberately performed
by a person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life.’”’” (People
v. Cravens (2012) 53 Cal.4th 500, 507; accord, People v. Jones
(2018) 26 Cal.App.5th 420, 442-443.)
In People v. Rolon, a different division of this court
explained “parents have a common law duty to protect their
children and may be held criminally liable for failing to do so.”
(People v. Rolon (2008) 160 Cal.App.4th 1206, 1219 (Rolon).)
Thus, “a parent who knowingly fails to take reasonable steps to
stop an attack on his or her child may be criminally liable for the
attack if the purpose of nonintervention is to aid and abet the
attack.” (Ibid.) “[S]uch intentional conduct . . . can support
liability for [second degree] murder.” (Ibid.)
The Rolon court held there was sufficient evidence to
convict the defendant of second degree murder because she “did
not take every step reasonably necessary under the
circumstances to protect her [one-year-old] son” from his father
who beat him to death. (Id. at 1221 [“She made no effort to aid
her son: she did not scream, call 911, ask a neighbor to help or
24
call for help, or do anything else. Instead, she went to sleep and
left her son alone with Lopez although she knew Lopez had
recently punched him and thrown him against a wall. From this
evidence, a reasonable jury could infer that appellant was
capable of taking some action to protect her child and that she
chose not to do so, but to go to sleep and leave her son alone with
Lopez”].) Other courts have also affirmed second degree murder
convictions obtained against parents for the death of their
children. (People v. Latham (2012) 203 Cal.App.4th 319, 327-334
[sufficient evidence supported parents’ second degree murder
conviction for their failure to provide their teenage daughter with
medical care]; People v. Burden (1977) 72 Cal.App.3d 603, 609-
610, 614, 616 [affirming the defendant’s conviction of second
degree murder where he admitted not feeding his child and
knowing his wife was not feeding their child adequately].)
Here, defendant knew from the start of her relationship
with Norwood that he was a methamphetamine addict who got
high frequently even after his son was born. There was also
ample evidence she knew that when he was high, Norwood could
be mean and abusive. Norwood threatened Abel’s life while
defendant was pregnant and, after his birth, there was evidence
defendant witnessed Norwood mistreating her son in a variety of
ways prior to October 17: squeezing Abel hard enough to crack a
rib, shaking his head, banging his head into objects, and covering
his mouth in order to get him to stop crying. In addition, on
multiple occasions she heard loud bangs, which she knew were
not innocent or accidental, coming from the room where Norwood
was caring for Abel unobserved.
Despite this evidence that defendant knew Norwood was
abusing Abel, defendant did nothing to stop the abuse and
25
continued to allow Norwood, while high, to care for her son. On
October 17, the day Abel suffered his fatal injuries, defendant
knew Norwood was high on methamphetamine and angered
because of their argument over his drug use; nonetheless, she
allowed Norwood to be Abel’s primary caregiver that day, even
though there was a likelihood Abel would be more fussy than
usual as a result of his vaccination shots the day before. Even
after she heard a loud and troubling bang from the room where
Norwood was caring for Abel alone and no corresponding cry from
Abel, defendant did nothing; she remained on the couch until
long after Norwood left the family home in an antsy and atypical
manner before belatedly checking on her son’s well-being. Then,
following Abel’s hospitalization, defendant protected Norwood (at
his direction) by lying to the police about sundry matters: the
hypodermic needle, the possibility of Shirley being responsible for
Abel’s injuries, and Norwood’s prior abuse of her and her infant
son. From this and other evidence presented that we find it
unnecessary to summarize, a reasonable juror could find
defendant, by inaction and even some affirmative actions,
knowingly failed to protect her son and thereby aided and abetted
Norwood’s murder of Abel.
D. Defendant Forfeited Her Challenge to the Fees and
Assessments Imposed
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant
argues the imposition of court operations assessments, conviction
assessments, and a restitution fine was improper because the
trial court did not first hold a hearing on her ability to pay.
Defendant was sentenced on November 18, 2020, nearly two
years after the Dueñas Court issued its opinion. Defendant
26
concedes her attorney did not object to any of the fees or
assessments at sentencing. The point is accordingly forfeited.
(People v. Flowers (2022) 81 Cal.App.5th 680, 687; see also In re
Sheena K. (2007) 40 Cal.4th 875, 880-881.)
27
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
28