People v. Jones

Filed 8/21/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B279694
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA133291)
v.
ASHLEY DEBRA JONES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Raul A. Sahagun, Judge. Reversed.
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Ashley Debra Jones appeals from a judgment entered after
her conviction following a court trial for second degree murder and
child abuse arising from the death of her four-month-old daughter,
Savannah.1 The trial court found true as to the murder count the
allegation that Jones personally inflicted great bodily injury on
Savannah. Jones was tried with codefendant Johnathan Lucero,
Jones’s boyfriend and Savannah’s father. The trial court found
Lucero not guilty of murder but guilty of child abuse.2 The trial
court found as to the child abuse count that both Jones and Lucero
willfully caused and permitted Savannah to suffer physical pain
and injury under circumstances likely to produce great bodily
injury or death.
On appeal, Jones contends her waiver of her right to a jury
trial was not knowing, intelligent, and voluntary. We agree. The
trial court’s two-question inquiry of Jones, as to whether she
“underst[ood] [her] right to a jury trial” and whether she agreed to
waive that right and have the trial judge “sitting alone, decide the
case” does not affirmatively show that Jones understood the
nature of the right to a jury trial she was relinquishing. Although
there is no rigid formula for what a jury advisement must include,
the record does not show whether Jones understood that a jury is
1 The victim’s name is spelled both “Savanah” and “Savannah”
in the record. We use “Savannah,” the spelling used in the
reporter’s transcript and the parties’ appellate briefs.
2 Lucero is not a party to this appeal. Jones has filed a
petition for writ of habeas corpus asserting ineffective assistance
of counsel based on, inter alia, her trial counsel’s failure to
investigate and present evidence to show that Lucero physically
abused both Jones and Savannah. Because we reverse Jones’s
conviction, by a separate order we deny Jones’s petition for writ for
habeas corpus as moot.
2
comprised of individuals from the community instead of, for
example, a collection of judges. We reverse on this basis.
We also review the sufficiency of the evidence to determine
whether Jones may be tried again for the offenses. We conclude
there was sufficient corroboration of Lucero’s accomplice testimony
and that substantial evidence supports the convictions. We
remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information and Jury Waiver
The information alleged that on December 31, 2013 Jones
committed the crimes of murder (Pen. Code,3 § 187, subd. (a);
count 1) and child abuse (§ 273a, subd. (a); count 2). The
information charged Lucero with the same offenses. The
information alleged as to count 1 that in the commission of the
offense Jones personally inflicted great bodily injury on Savannah
(§ 1203.075, subd. (a)). The information alleged as to count 2 that
Jones and Lucero willfully caused and permitted Savannah to
suffer physical pain and injury under circumstances or conditions
likely to produce great bodily injury or death (§ 12022.95).
Jones entered a plea of not guilty and denied the special
allegations. On October 13, 2015 Jones and Lucero waived their
right to a jury trial. A court trial commenced as to Jones and
Lucero on September 26, 2016.
B. The Evidence at Trial
In December 2013 Jones, Lucero, and their three daughters,
four-year-old Amiah, two-year-old Janelle, and four-month-old
3 Further statutory references are to the Penal Code.
3
Savannah, shared a bedroom in an apartment in Downey.
Lucero’s sister Lourdes Cazares and other members of Cazares’s
family also lived in the apartment.4 Jones stayed home to care for
Savannah. Lucero typically left for work between 1:00 and
1:30 p.m. and returned between 10:30 and 11:00 p.m.
Between 10:00 and 10:30 a.m. on December 31, 2013 Amiah
ran into Cazares’s room screaming. She looked scared and said
her little sister had blood in her eyes. About a minute later,
Cazares heard Gloria Aguirre, Jones’s grandmother, screaming.
Cazares came out of her room and saw Aguirre in the hallway,
holding Savannah. Aguirre then sat on the living room couch and
rubbed Savannah’s chest in a circular motion. Jones was standing
in the dining room; Lucero was there, but Cazares could not recall
where.
Cazares called 911. The 911 operator told her to place
Savannah on the floor and check for a pulse. Cazares did this, but
was unable to find a pulse. Savannah was cold to the touch.
Cazares saw bruises “just popping up on her.”
Downey Police Officer Blanca Reyes arrived at Cazares’s
apartment at 10:25 a.m. Downey Police Officer Angel Villegas
arrived a few minutes later. Officer Reyes found Savannah lying
on the living room floor, wrapped in a blanket. Savannah had two
circular bruises on her forehead. Her skin was pale; her eyes were
open and had a glossy film over them. She was not breathing.
Officers Reyes and Villegas performed CPR on Savannah. Jones
then walked into the living room from the hallway and said that
4 Cazares and the responding police officers testified to the
events of December 30 and 31, 2013. Neither Jones nor Lucero
testified or called any witnesses.
4
she had just woken up. Officer Villegas yelled at her, “Who was
watching the baby?” Jones did not respond.
The paramedics took Savannah to the hospital. Officer
Reyes followed, and spoke to Jones and Aguirre at the hospital.
Jones told Officer Reyes that Savannah had been constipated.
Savannah had a bowel movement about midnight; Jones changed
her diaper and put her back to sleep. Savannah awoke later and
was crying. Jones gave her a pacifier, and Savannah went back to
sleep. Jones woke up about 10:00 a.m. She took Savannah from
the co-sleeper on the floor and put her on the bed. Jones noticed
that Savannah’s eyes were open and she was nonresponsive.
Jones called Aguirre because she believed something was wrong
with Savannah. Officer Reyes asked Jones about her feeding of
Savannah. Jones said she did not breastfeed Savannah, and
instead gave her a soy milk formula with iron.
Denise Bertone, coroner investigator with the County of Los
Angeles Department of Medical Examiner-Coroner, examined
Savannah at the hospital. Bertone observed multiple injuries,
including a small bruise under Savannah’s jaw, bruises on her
head, chest, hip, legs, and ribs, and discoloration of her abdomen.
Savannah was also underweight. Bertone observed and was able
to feel a “callous formation” bump on Savannah’s rib, indicating
that Savannah had a fractured rib that was healing.
In response to Bertone’s questions, Jones stated that
Savannah had no known history of any medical problems. Jones
“volunteered that . . . she is careful, she is always with the baby
and keeps the siblings away from the child.” Jones admitted
Savannah had some bruises, but added that “they quickly went
away.” Because Savannah was underweight, Bertone also
inquired about her feeding schedule. Jones responded that she fed
Savannah every three hours with a soy-based formula. Jones last
5
fed her on December 30 between 11 and 11:30 p.m. Savannah did
not have difficulty feeding.
Dr. James Ribe, a senior deputy medical examiner with the
County of Los Angeles Department of Medical Examiner-Coroner,
supervised Savannah’s autopsy. He concluded Savannah’s death
was caused by blunt force trauma from blows to Savannah’s
abdomen and body, which caused fatal internal injuries, with a
contributing cause of malnutrition. He noted that Savannah was
emaciated and had, among other injuries, bruises on her forehead,
face, chin, chest, abdomen, back, and knees. The autopsy revealed
multiple contusions caused by blows to the head, two skull
fractures, and contusions on her pancreas, lungs, and diaphragm.
There was “advanced healing” of a fracture to the left side of
Savannah’s skull, consistent with the injury having healed for a
period of weeks. Dr. Ribe found “early healing” of a fracture to the
right side of the skull, meaning the fracture had healed for a
period of days before Savannah’s death.
Dr. Ribe opined that Savannah’s injuries were caused by an
adult striking the baby and could not have been caused
accidentally. Savannah’s malnutrition would have weakened her
ability to heal and survive her injuries. A sample from Savannah’s
blood was analyzed, and the toxicology report showed she had been
exposed to methamphetamine prior to her death.
Dr. Sandra Murray, a pediatrician specializing in child
abuse pediatrics, also opined that Savannah’s injuries were not
accidental. She testified that Savannah weighed 9 pounds, 12
ounces at the time of the autopsy and that Savannah had lost
weight during the six weeks before her death. Dr. Murray opined
that the failure to take Savannah to a doctor to address her weight
loss contributed to her death.
6
Downey Police Homicide Detective Steven Aubuchon
interviewed Jones at the hospital. Jones said that on the evening
of December 30 she was in her room with Lucero and Savannah.5
When Jones woke up the next morning about 10:30 a.m.,
Savannah was cold to the touch. Jones picked her up and listened
for a heartbeat, but did not hear one. Jones yelled for Lucero.
Lucero also checked for a heartbeat and told Jones to call 911.
Jones called Aguirre instead. When Aguirre arrived, she said
there was something wrong with Savannah, and told Jones to call
911. However, it was Cazares who called 911. Jones told
Detective Aubuchon she did not call 911 because she was confused
and scared and had not gone through this before.
Jones told Detective Aubuchon that she was Savannah’s
primary caregiver and that Savannah had “not been out of her
sight for more than 20 minutes at a time.” Jones said she fed
Savannah with soy milk formula every two hours. She saw the
bruising on Savannah’s hip and abdomen for the first time the
morning of December 30 while she was changing Savannah’s
diaper. Jones saw Savannah naked on December 29 while Lucero
gave her a bath, but Jones did not see bruising on Savannah at
that time. Jones denied knowing how the bruises got there. At
the end of the interview, Jones was allowed to leave.
After the autopsy on January 1, 2014, Jones and Lucero
were arrested. Detective Aubuchon then interviewed Jones and
5 Jones initially told Detective Aubuchon that she was in her
room with Lucero and all three daughters, but later told him that
Amiah and Janelle were at Aguirre’s home, not with Jones. Jones
also had told Officer Reyes that Lucero was at work the morning of
December 31, which was contradicted by her later statement to
Detective Aubuchon and Cazares’s testimony.
7
Lucero, after reading each of them their Miranda6 rights. Lucero
stated that when he arrived home about 10:30 p.m. on
December 30, he heard Savannah “breathing funny.” He woke up
about 10:00 a.m. the following morning when he heard Jones
yelling that there was something wrong with Savannah. He
checked Savannah for a heartbeat and could not hear one. He told
Jones, “I’m not responsible for this bullshit.”
Lucero told Detective Aubuchon he saw a bruise on
Savannah’s abdomen on December 29 when he was bathing her.
He asked her, “What is this? Take her to the doctor.” He said to
Jones, “What the fuck?” In response to his inquiry about the
bruise, Jones said Savannah had been constipated, so she was
giving her suppositories and massaging her stomach. Lucero had
purchased suppositories to help Savannah with the constipation.
But at some point when Savannah requested more suppositories,
Lucero told her, “No, I’m not getting any more suppositories. Take
the baby to the damn doctor.”
Lucero had observed Savannah was underweight and
blamed it on Jones for not taking her to the doctor. It was Jones’s
responsibility to take Savannah to the doctor because he was
always at work. Lucero said Jones was overwhelmed with the
children, so Amiah and Janelle would frequently stay at Aguirre’s
home. After Savannah was born, Jones would often become angry
and aggressive and cursed at Amiah and Janelle for no apparent
reason.
6 Under Miranda v. Arizona (1966) 384 U.S. 436, law
enforcement officers must advise a suspect before a custodial
interrogation of his or her right to remain silent, to the presence of
an attorney, and, if indigent, to appointed counsel.
8
Lucero also “saw that Savannah’s head was kind of big, and
when he touched [her] head, it felt kind of squishy around the—
the opening.” He could feel her brain through the opening. Lucero
stated that he had no doubt that Jones “would have done this,”
because Jones did not take Savannah to the doctor. However, this
statement was admitted as to Lucero only.
C. The Trial Court’s Ruling and Sentencing
The trial court found Jones guilty of second degree murder
based on implied malice as alleged in count 1 and child abuse as
alleged in count 2. As to count 1 the court found the allegation
true that Jones personally inflicted great bodily injury on
Savannah. As to count 2 the court found the allegation true that
Jones willfully caused and permitted Savannah to suffer physical
pain and injury under circumstances likely to produce great bodily
injury or death (§ 12022.95).
The court sentenced Jones to 15 years to life on count 1,
second degree murder. On count 2, child abuse, the trial court
imposed and stayed a 10-year term (the upper term of six years
plus four years for the sentencing enhancement) pursuant to
section 654. Jones timely appealed.
DISCUSSION
A. Jones Did Not Provide a Knowing and Intelligent Waiver of
Her Right to a Jury Trial
1. Proceedings below
Prior to trial, Jones and Lucero waived their rights to a jury
trial. The prosecutor took their waivers as follows:
“[Prosecutor]: Ms. Jones, Mr. Lucero, your attorneys have
indicated that you wish to waive jury and have this case decided
9
by Judge Sahagun sitting alone. In order to do that, you each have
to waive your right to a jury trial. Ms. Jones, do you understand
your right to a jury trial?
“Defendant Jones: Yes, sir.
“[Prosecutor]: Do you agree to waive that right and have
Judge Sahagun, sitting alone, decide the case?
“Defendant Jones: Yes, sir.
“[Prosecutor]: Mr. Lucero, do you also understand your right
to a jury trial?
“Defendant Lucero: Yeah.
“[Prosecutor]: Do you agree to waive that right and agree
that Judge Sahagun, sitting alone, would make the decision on
this case?
“Defendant Lucero: Yes.”
The attorneys for both Jones and Lucero joined in the
waiver.
2. A defendant’s waiver of the right to a jury trial
A defendant in a criminal prosecution has a right to a trial
by jury under both the federal and state Constitutions. (People v.
Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay); People v.
Cunningham (2015) 61 Cal. 4th 609, 636 (Cunningham).)
“Although trial by jury is a fundamental constitutional right, a
criminal defendant may waive the right.” (Cunningham, at p. 636;
accord, Sivongxxay, at p. 166.) However, “‘a defendant’s waiver of
the right to jury trial may not be accepted by the court unless it is
knowing and intelligent, that is, “‘“made with a full awareness
both of the nature of the right being abandoned and the
consequences of the decision to abandon it,”’” as well as voluntary
“‘“in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception.”’”’”
10
(Sivongxxay, at p. 166; accord, Cunningham, at pp. 636-637.) The
denial of a defendant’s constitutional right to a jury trial
constitutes structural error that requires reversal regardless of the
strength of the evidence supporting the conviction. (People v.
French (2008) 43 Cal. 4th 36, 52, fn. 8; People v. Collins (2001) 26
Cal. 4th 297, 311.)
“‘[W]hether or not there is an intelligent, competent, self-
protecting waiver of jury trial by an accused must depend upon the
unique circumstances of each case.’” (Sivongxxay, supra, 3 Cal.5th
at p. 166.) However, the courts have “not mandated any specific
method for determining whether a defendant has made a knowing
and intelligent waiver of a jury trial in favor of a bench trial. We
instead examine the totality of the circumstances.” (Id. at p. 167.)
However, a jury waiver is only valid “‘“if the record affirmatively
shows that it is voluntary and intelligent under the totality of the
circumstances.”’” (People v. Daniels (2017) 3 Cal.5th 961, 991
(Daniels) (lead opn. of Cuéllar, J.); accord, id. at p. 1018 (conc. &
dis. opn. of Corrigan, J.; People v. Collins, supra, 26 Cal.4th at
p. 310.)
The Supreme Court in Sivongxxay provided “general
guidance to help ensure that a defendant’s jury trial waiver is
knowing and intelligent, and to facilitate the resolution of a
challenge to a jury waiver on appeal.” (Sivongxxay, supra, 3
Cal.5th at p. 169.) Although the Court made clear its guidance
was “not intended to limit trial courts to a narrow or rigid
colloquy” (id. at p. 170), the Supreme Court advised: “Going
forward, we recommend that trial courts advise a defendant of the
basic mechanics of a jury trial in a waiver colloquy, including but
not necessarily limited to the facts that (1) a jury is made up of 12
members of the community; (2) a defendant through his or her
counsel may participate in jury selection; (3) all 12 jurors must
11
unanimously agree in order to render a verdict; and (4) if a
defendant waives the right to a jury trial, a judge alone will decide
his or her guilt or innocence. We also recommend that the trial
judge take additional steps as appropriate to ensure, on the record,
that the defendant comprehends what the jury trial right entails.
A trial judge may do so in any number of ways—among them, by
asking whether the defendant had an adequate opportunity to
discuss the decision with his or her attorney, by asking whether
counsel explained to the defendant the fundamental differences
between a jury trial and a bench trial, or by asking the defendant
directly if he or she understands or has any questions about the
right being waived. Ultimately, a court must consider the
defendant’s individual circumstances and exercise judgment in
deciding how best to ensure that a particular defendant who
purports to waive a jury trial does so knowingly and intelligently.”
(Id. at pp. 169-170.)
In Sivongxxay, the Supreme Court concluded the defendant’s
waiver of his right to a jury trial was knowing and intelligent
where the trial court had advised him “that he had a right to a
jury trial, that a jury consists of 12 people from the community,
that he would have the right to participate in the selection of the
jury, and that waiver of the right to a jury would mean the judge
alone would determine his guilt or innocence and any resulting
punishment.” (Sivongxxay, supra, 3 Cal.5th at p. 167.) The Court
also found significant that the defendant had pleaded guilty to two
prior offenses in which he signed a waiver stating that he fully
understood his right to a jury trial. (Ibid.) The Court concluded,
“Viewed holistically, the circumstances surrounding defendant’s
jury waiver demonstrate that it was knowing and intelligent.” (Id.
at p. 168.)
12
The Court rejected the defendant’s argument that the jury
waiver was deficient because the trial court failed to advise him
that the jury must be impartial and render a unanimous verdict,
explaining, “‘[T]he United States Supreme Court has never held
that a defendant, when waiving the right to a jury,
constitutionally is entitled to be canvassed by the trial court, let
alone to require a specifically formulated canvass’ [citations], and
we have never insisted that a jury waiver colloquy invariably must
discuss juror impartiality, the unanimity requirement, or both for
an ensuing waiver to be knowing and intelligent.” (Sivongxxay,
supra, 3 Cal.5th at p. 168, fn. omitted; accord, Daniels, supra, 3
Cal.5th at pp. 992-993 (lead opn. of Cuéllar, J. [“We continue to
eschew any rigid rubric for trial courts to follow in order to decide
whether to accept a defendant’s relinquishment of this right.”]; id.
at p. 1018 (conc. & dis. opn. of Corrigan, J.) [“We have consistently
eschewed any rigid formula or particular form of words that a trial
court must use to ensure that a jury trial waiver is knowing and
intelligent.”].)
The Supreme Court and Courts of Appeal have consistently
concluded that the failure of a trial court to provide a specific
advisement does not mean there was not a knowing, intelligent,
and voluntary waiver. (See, e.g., People v. Weaver (2012) 53
Cal. 4th 1056, 1072-1073 (Weaver) [jury trial waiver upheld where
defendant was informed he had a right to the unanimous verdict of
12 jurors and his attorney had fully explained the difference
between a jury and a court trial, but he was not advised of his
right to participate in selection of the jury]; People v. Wrest (1992)
3 Cal. 4th 1088, 1105 (Wrest) [jury trial waiver upheld where
defendant was advised that a jury of 12 citizens selected by the
court and his counsel would need to render a unanimous verdict to
find him guilty, but rejecting argument that the trial court was
13
required to ensure defendant understood “‘all the ins and outs’ of a
jury trial in order to waive his right to one”]; People v. Doyle (2016)
19 Cal.App.5th 946, 952 (Doyle) [upholding jury trial waiver where
defendant discussed his rights with his attorney and was advised
that the burden of proof of beyond a reasonable doubt, the right to
subpoena witnesses, the right to testify on his own behalf or
remain silent, and the right to cross-examine witnesses would
apply equally to a jury or court trial, even though the trial court
failed to advise defendant he was entitled to a unanimous verdict
by 12 jurors]; see also U.S. ex rel. Williams v. DeRobertis (7th Cir.
1983) 715 F.2d 1174, 1181 (DeRobertis) [upholding jury trial
waiver where defendant was advised he was giving up his right to
have 12 members of a jury decide his case, but not of his right to a
verdict of a “substantial majority” of jurors or that he could
participate in jury selection]; cf. People v. Blancett (2017) 15
Cal.App.5th 1200, 1206-1207 (Blancett) [concluding defendant’s
jury trial waiver after trial court’s “stark colloquy” in which
defendant only stated he was “okay” with having the trial court
decide his case was not knowing and intelligent].)
Notably, in Sivongxxay, Weaver, Wrest, and DeRobertis, the
trial courts inquired extensively of the defendants before accepting
their jury trial waivers, specifically advising them that they would
be giving up the right to have their case decided by 12 members of
a jury drawn from the community or comprised of citizens. The
trial court in Doyle did not advise the defendant of the fact a jury
is drawn from the community, but did advise him that his other
trial rights applied equally to a jury or court trial.
The Supreme Court addressed the requirements for a
knowing and intelligent jury trial waiver most recently in Daniels.
The Court concluded the defendant David Daniels, who
represented himself, had provided a knowing and intelligent
14
waiver of his right to a jury trial in a death penalty case as to his
guilt and determination of the special circumstances allegation
where “the trial court informed [the defendant] that he had a right
to be tried by a jury made up of members of the community and
that, if he waived jury trial, the court alone would determine the
issues of guilt, special circumstances, and penalty.” (Daniels,
supra, 3 Cal.5th at p. 1011 (con. & dis. opn. of Corrigan, J.).)7 As
7 Justice Cuéllar authored the lead opinion, in which all seven
justices agreed on its resolution of all issues except as to Daniels’s
jury trial waiver. Two justices joined in part II.D of the lead
opinion, which concluded that Daniels’s waiver was invalid as to
all three phases of the trial. Justice Corrigan authored a
concurring and dissenting opinion, joined by two justices, in which
she concluded Daniels made a knowing and intelligent waiver of
his right to a jury trial as to all three phrases of the trial.
(Daniels, supra, 3 Cal.5th at p. 1010.) Justice Kruger cast the
fourth vote, concurring in the judgment affirming the conviction as
to the first two phases of the trial and agreeing with Justice
Corrigan’s conclusion that Daniels had waived his right to a jury
trial as to these phases because he did so “‘with eyes open.’” (Id. at
p. 1029 (conc. & dis. opn. of Kruger, J.).) However, Justice Kruger
raised a concern that “[t]he court never asked defendant whether
he understood the alternative before him—that is, the nature of
the jury right he was waiving.” (Id. at p. 1029.) Justice Kruger
concurred in the lead opinion’s conclusion as to the penalty phase
that Daniels had not made a knowing waiver of his right to a jury
trial. (Id. at p. 1004 (lead opn. of Cuéllar, J.) [“The record is even
more bereft of support for the conclusion that Daniels’s penalty
phase waiver was valid.”]; id. at p. 1030 (conc. & dis. opn. of
Kruger, J.) [the record did not show “that information about the
fundamental attributes of a jury trial would have been irrelevant
to, or merely confirmatory of, defendant’s choice to waive a penalty
phase jury”].)
15
part of its 15-question inquiry, the trial court asked Daniels
multiple times whether he understood what the court was telling
him about his “‘right to proceed by way of jury trial or by way of
court trial,’” asked him, “‘Do you know what you have just done,’”
and confirmed Daniels had not been threatened or coerced to
waive his rights. Daniels consistently confirmed he understood
what the trial court was telling him and knew what he was doing.
(Id. at pp. 986-989 (lead opn. of Cuéllar, J.; id. at pp. 1013-1015
(conc. & dis. opn. of Corrigan, J.).)
Justice Corrigan concluded in her concurrence, citing to the
United States Supreme Court’s holding in Williams v. Florida
(1970) 399 U.S. 78, 100, that Daniels “was advised that he had a
right to be tried by a jury drawn from members of the community,
and that if he waived jury trial, the court alone would determine
the issues of guilt, special circumstances, and penalty. This is the
essence of the jury trial right. ‘The purpose of the jury trial . . . is
to prevent oppression by the Government. “Providing an accused
with the right to be tried by a jury of his peers gave him an
inestimable safeguard against the corrupt or overzealous
prosecutor and against the compliant, biased, or eccentric judge.”
[Citation.] Given this purpose, the essential feature of a jury
obviously lies in the interposition between the accused and his
accuser of the commonsense judgment of a group of laymen, and in
the community participation and shared responsibility that results
from that group’s determination of guilt or innocence.’” (Daniels,
supra, 3 Cal.5th at p. 1019, fn. omitted (conc. & dis. opn. of
Corrigan, J.).)
Justice Corrigan’s concurrence cited approvingly to the
Seventh Circuit decision in DeRobertis, in which the court “upheld
a jury trial waiver as knowing and intelligent where the defendant
‘understood that the choice confronting him was, on the one hand,
16
to be judged by a group of people from the community, and on the
other hand, to have his guilt or innocence determined by a judge.’”
(Daniels, supra, 3 Cal.5th at p. 1020 (conc. & dis. opn. of Corrigan,
J.); see Sivongxxay, supra, 3 Cal.5th at p. 168 [citing DeRobertis].)8
The concurrence noted that “Daniels, too, was told these basic
facts on three separate occasions during the trial, and said that he
understood them no fewer than 15 times. At one point Daniels
declared, ‘Your Honor, I respect and thank you for being
concerned, that you are the Judge James L. Long, and I trust and
have faith in you, whatever your decision is.’ This record amply
demonstrates that Daniels understood the choice he was making:
whether ‘he trusts the judgment of his fellow citizens with his fate,
or if he would rather entrust it to the judgment of a solitary state
judicial officer.’” (Daniels, at pp. 1020-1021.)
The concurring opinion also looked at Daniels’s conduct in
the case after his jury waiver, including that he pleaded guilty to
all allowable charges and presented no defense or argument at the
guilt or penalty phase of the trial on the remaining charges.
(Daniels, supra, 3 Cal.5th at p. 1023 (conc. & dis. opn. of Corrigan,
J.).) The Court observed, “He later explained to the probation
officer that he chose this course for reasons that were significant to
him. He wanted closure, and ‘felt it would be unfair to the victims
and their surviving family members for him to attempt to fight
these charges, knowing he was guilty of each of the crimes.’ The
record shows Daniels had been considering his approach to the
8 The lead opinion distinguished DeRobertis on the basis that
in contrast to Daniels, the defendant in DeRobertis “‘was
represented by competent counsel.’” (Daniels, supra, 3 Cal.5th at
pp. 998-999, italics omitted (lead opn. of Cuéllar, J.).) That
distinction is not at issue here.
17
case for several months and had discussed his wishes with
counsel. . . . [Citations.] Given Daniels’s expressed desire to be
convicted and punished, it strains credulity to suggest that his
jury trial waiver would have been materially more informed had
he been given more detail.” (Id. at pp. 1022-1023; see id. at
p. 1029 (conc. & dis. opn. of Kruger, J.) [“My agreement [that
Daniels had his ‘eyes open’ in waiving his jury trial right] rests
primarily on the indications in the record that defendant’s
overarching aim throughout the proceedings was simply to accept
responsibility for the charged crimes. [Citation.] His choice to
waive his right to jury trial on the substantive charges was of a
piece with his general approach to the trial on guilt that he did not
want in the first place.”].)9
In Blancett, the only published jury waiver case following
the Supreme Court’s decisions in Sivongxxay and Daniels, our
colleagues in Division Six considered whether the defendant in a
mentally disordered offender recommitment hearing made a
knowing, intelligent, and voluntary waiver of his right to a jury
trial where, as the trial court noted, the defendant’s attorney had
represented that the defendant was “‘okay with having a judge
decide [his] case and not a jury.’” The trial court then inquired
9 The concurring opinion also found significant that the
defendant had approximately 10 years earlier pleaded guilty in
three cases in which he was advised that he was entitled to a
unanimous verdict of 12 jurors. (Daniels, supra, 3 Cal.5th at
pp. 1011-1012 (conc. & dis. opn. of Corrigan, J.).) The lead opinion
gave less weight to Daniels’s prior advisements, explaining, “we
find only an attenuated connection, at best, between Daniels’s jury
trial right waivers in this capital case and the oral advice Daniels
received in connection with guilty pleas a decade earlier.” (Id. at
p. 1002 (lead opn. of Cuéllar, J.).)
18
simply, “‘That’s okay with you?’” The defendant responded, “‘Yes,
your honor.’” (Blancett, supra, 15 Cal.App.5th at p. 1203.)
The Court of Appeal concluded the defendant “did not waive
his right to a jury trial with full awareness of the nature of the
right being abandoned and the consequences of the decision to
abandon it.” (Blancett, supra, 15 Cal.App.5th at p. 1206.)
Specifically, the trial court did not advise the defendant of his
right to a jury trial or “explain the significant attributes or
mechanics of a jury trial. [Citation.] Neither did the court inquire
whether [the defendant] had sufficient opportunity to discuss the
decision with his attorney, whether his attorney explained the
differences between a bench trial and a jury trial, or whether [the
defendant] had any questions about the waiver.” (Ibid.) Further,
the defendant had not previously been involved in a similar
proceeding and the record did not show he was aware he was
entitled to a jury trial. (Ibid.)
The Court of Appeal explained, “In view of the trial court’s
stark colloquy, the lack of evidence that [the defendant] discussed
his jury trial right and waiver with counsel, [the defendant’s]
inexperience with the criminal justice system, and [the
defendant’s] lack of familiarity with [the type of] proceedings, we
conclude that his waiver was not knowing and intelligent.”
(Blancett, supra, 15 Cal.App.5th at pp. 1206-1207;10 see U.S. v.
10 The People cite to the holding in People v. Acosta (1971) 18
Cal. App. 3d 895 to support their argument that Jones’s jury waiver
was adequate. In Acosta, the trial court advised the defendant
that he was entitled to a jury trial and inquired whether he
“‘desire[d] to waive the jury and have [his] case heard by a judge
without a jury.’” (Id. at p. 901.) The Court of Appeal rejected the
defendant’s argument that his waiver was not knowing and
intelligent because he did not know what a jury was or what the
19
Delgado (7th Cir. 1981) 635 F.2d 889, 890 [concluding jury waiver
was not adequate where the record did not show that the
defendant understood his right to a jury trial and understood the
consequences of the waiver, instead responding only that he signed
a written waiver and voluntarily gave up his right to a trial by
jury on the advice of his attorney].)11
3. The record does not affirmatively show that Jones
provided a knowing, intelligent, and voluntary waiver
of her right to a jury trial.
Jones contends she did not give a knowing, intelligent, and
voluntary waiver because the trial court did not advise her that in
a jury trial, 12 members of a jury would decide her case, the jurors
would need to be unanimous to render a verdict, she could assist
with the selection of the jury, and the same standard of proof of
waiver of a jury trial meant, observing, “[a]s far as the record is
concerned, there is nothing to indicate that defendant did not
understand his right to a jury trial, or that he did not knowingly
waive that right . . . .” (Ibid.) To the extent the court in Acosta
was shifting the burden to the defendant to show that his waiver
was not knowing and voluntary, it is contrary to the Supreme
Court’s recent holding in Daniels that “‘the record [must]
affirmatively show[] that [the waiver] is voluntary and intelligent
under the totality of the circumstances.’” (Daniels, supra, 3
Cal.5th at p. 991 (lead opn. of Cuéllar, J.); see id. at p. 1018 (conc.
& dis. opn. of Corrigan, J.).)
11 The holding in U.S. v. Delgado is cited approvingly by the
court in Sivongxxay for its conclusion that the trial court “‘should’”
explain to a defendant that the jury is comprised of 12 members of
the community, the defendant can participate in selection of the
jury, and the verdict of the jury must be unanimous. (Sivongxxay,
supra, 3 Cal.5th at p. 169.)
20
beyond a reasonable doubt would apply. She also argues she did
not make a knowing waiver because she was not advised that the
trial court would hear her codefendant Lucero’s statements that
incriminated her, whereas in a jury trial the jury would not.12
The record shows that Jones had some discussion with her
attorney before the waiver was taken in that it was her attorney
who indicated to the trial court that Jones wanted to waive her
right to a jury trial. However, the record does not show whether
Jones’s attorney ever discussed with her the nature of a jury trial,
including for example, that the jury would be comprised of 12 of
12 Under People v. Aranda (1965) 63 Cal. 2d 518 and Bruton v.
United States (1968) 391 U.S. 123, a “nontestifying codefendant’s
extrajudicial statement that incriminates the other defendant is
inadmissible at a joint trial.” (People v. Penunuri (2018) 5
Cal.5th 126, 154.) Although Jones is correct that the trial court
heard the potentially incriminating statements made by Lucero,
the trial court ruled the statements were admitted only as to
Lucero. “We presume the trial court’s training and experience
enabled it to confine its consideration of [inadmissible] evidence
to the case in which it was properly admitted.” (People v. Taylor
(2001) 26 Cal. 4th 1155, 1175.) Because we conclude the record
does not show that Jones’s waiver was knowing and intelligent,
we need not reach whether a defendant’s lack of knowledge about
this type of a consequence should be considered as part of the
totality of the circumstances affecting the validity of a jury trial
waiver. We likewise do not consider Jones’s argument that her
trial counsel improperly assured her that “the only way she had
any possibility of a defense and fair trial was to forego her right
to a jury trial.” This argument goes beyond the record, and
therefore we do not consider it in our analysis. (People v. Hannon
(2016) 5 Cal.App.5th 94, 104 [“it is well established that on
appeal we generally consider only evidence presented to the court
below”].)
21
her peers from the community. Further, the trial court did not
specifically advise Jones that she had a right to a jury trial,
instead only asking her, “do you understand your right to a jury
trial?” She responded, “Yes, sir.” The only real advisement by the
trial court was that, as a result of Jones’s waiver, the trial judge
“sitting alone” would “decide the case.” Jones agreed, again
responding, “Yes, sir.”
The question before us is whether this sparse record
“‘“affirmatively shows that it is voluntary and intelligent under the
totality of the circumstances.”’” (Daniels, supra, 3 Cal.5th at
p. 991 (lead opn. of Cuéllar, J.); see id. at p. 1018 (conc. & dis. opn.
of Corrigan, J.).) It does not. There is no showing from this record
that Jones understood the nature of the right to a jury trial she
was relinquishing. While the Supreme Court in Sivongxxay made
clear there is no precise formulation for a valid jury waiver
advisement, the Court recommended that the trial court advise the
defendant that in a trial by jury, the jury is comprised of 12
members of the community, the defendant through his or her
attorney may participate in jury selection, 12 jurors must
unanimously agree to render a verdict, and in a court trial, the
judge alone will decide the defendant’s guilt or innocence.
(Sivongxxay, supra, 3 Cal.5th at p. 169.) Of this list, the trial court
here only advised Jones that it alone would decide whether Jones
was guilty or innocent.
Neither did the trial court take steps to ensure Jones
“comprehend[ed] what the jury trial right entails.” (Sivongxxay,
supra, 3 Cal.5th at pp. 169-170.) The trial court did not inquire
whether Jones understood the nature of her right to a jury trial,
whether she discussed her decision with her attorney, or whether
she had any questions. While the trial court’s inquiry need not be
a specific “narrow or rigid colloquy,” the record must show that the
22
waiver was knowing, intelligent, and voluntary. (Id. at p. 170.)
Because the trial court did not advise Jones as to the specific
rights she would be giving up or inquire if her attorney explained
those rights to her, her bare acknowledgment that she understood
her right to a jury trial was inadequate.
Significantly, although the Supreme Court in Sivongxxay
and Daniels concluded it was not necessary that the defendant be
advised specifically that the jury is comprised of 12 jurors, the
Court has consistently emphasized the importance of the
defendant’s knowledge that he or she has “‘“the right to be tried by
a jury of his [or her] peers.”’” (Daniels, supra, 3 Cal.5th at p. 1019
(conc. & dis. opn. of Corrigan, J.) [rejecting challenge to jury
waiver, noting that “Daniels was advised that he had a right to be
tried by a jury drawn from members of the community”]; accord,
id. at p. 994 (lead opn. of Cuéllar, J.) [trial court should explain
“what constitutes a jury”]; Sivongxxay, supra, 3 Cal.5th at pp. 167-
168 [“the presence or absence of a reference in a colloquy to [a
requirement of unanimity among 12 jurors for a guilty verdict] is
not necessarily determinative of whether a waiver meets
constitutional standards,” but noting that the trial court advised
the defendant “that a jury consists of 12 people from the
community”]; see DeRobertis, supra, 715 F.2d at p. 1180
[defendant “understood that the choice confronting him was, on
the one hand, to be judged by a group of people from the
community, and on the other hand, to have his guilt or innocence
determined by a judge”].)
Nothing in the record suggests that Jones was aware that a
jury is comprised of individuals drawn from the community.
Moreover, unlike the defendants in Sivongxxay and Daniels, who
had previously waived their rights in connection with guilty pleas
(see Daniels, supra, 3 Cal.5th at pp. 1011-1012 (conc. & dis. opn. of
23
Corrigan, J.); Sivongxxay, supra, 3 Cal.5th at p. 167), Jones had no
experience with the criminal justice system. Neither the
information nor the probation report reveals a prior criminal
charge.
Rather, this case is more similar to Blancett, in which the
trial court’s entire inquiry was whether the defendant was “okay”
with having his case decided by a judge instead of a jury. The
additional statement by Jones that she understood her right to a
jury trial does not change the fact that, as in Blancett, Jones “did
not waive [her] right to a jury trial with full awareness of the
nature of the right being abandoned and the consequences of the
decision to abandon it.” (Blancett, supra, 15 Cal.App.5th at
p. 1206.)
We conclude the record does not “‘“affirmatively show[] that
[Jones’s jury waiver was] voluntary and intelligent under the
totality of the circumstances.”’” (Daniels, supra, 3 Cal.5th at
p. 991 (Daniels) (lead opn. of Cuéllar, J.); see id. at p. 1018 (conc. &
dis. opn. of Corrigan, J.).)
Although we conclude that Jones’s convictions must be
reversed because of the lack of a valid waiver of her right to a jury
trial, we also must consider the sufficiency of the evidence to
determine whether she may be tried again on the charges. (People
v. Morgan (2007) 42 Cal. 4th 593, 613 [“Although we have
concluded that the kidnapping conviction must be reversed
because it was presented to the jury on both a legally adequate
and a legally inadequate theory, we must nonetheless assess the
sufficiency of the evidence to determine whether defendant may
again be tried for the kidnapping offense.”]; People v. Hayes (1990)
52 Cal. 3d 577, 631 [“Although we have concluded that the robbery
conviction must be reversed for instructional error, we must
nonetheless assess the sufficiency of the evidence to determine
24
whether defendant may again be tried for this offense.”]; see
People v. Story (2009) 45 Cal. 4th 1282, 1295 [“‘an appellate ruling
of legal insufficiency is functionally equivalent to an acquittal and
precludes a retrial’”].)
B. Sufficient Evidence Corroborated Lucero’s Accomplice
Testimony
1. Accomplice testimony must be corroborated.
Jones contends there was insufficient evidence to
corroborate the accomplice testimony of Lucero. Section 1111
provides: “A conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as
shall tend to connect the defendant with the commission of the
offense; and the corroboration is not sufficient if it merely shows
the commission of the offense or the circumstances thereof.”
Under section 1111, an accomplice is “defined as one who is liable
to prosecution for the identical offense charged against the
defendant on trial in the cause in which the testimony of the
accomplice is given.” The People concede that Lucero was an
accomplice because he was charged with the identical offenses as
Jones.
Further, Lucero’s statements to Detective Aubuchon
constituted “testimony” for purposes of section 1111.
“‘“[T]estimony” within the meaning of . . . section 1111 includes all
oral statements made by an accomplice or coconspirator under
oath in a court proceeding and all out-of-court statements of
accomplices and coconspirators used as substantive evidence of
guilt which are made under suspect circumstances. The most
obvious suspect circumstances occur when the accomplice has been
arrested or is questioned by the police.’” (People v. Williams (1997)
25
16 Cal. 4th 153, 245; accord, People v. Jeffery (1995) 37 Cal. App. 4th
209, 211.)
Section 1111 “reflects 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.”’” (People v. Rodriguez (2018) 4
Cal.5th 1123, 1128; accord, People v. Romero and Self (2015) 62
Cal. 4th 1, 32 (Romero and Self).) “The requirement that
accomplice testimony be corroborated is an ‘“exception[]” to the
substantial evidence’ rule. [Citation.] . . . [Citations.] Section
1111 does not affect the admissibility of accomplice testimony but
rather ‘reflects a legislative determination of how accomplice
testimony must be treated.’” (Romero and Self, at p. 32; accord,
People v. Najera (2008) 43 Cal. 4th 1132, 1137.)
As the Supreme Court explained in People v. Najera,
“[A]ccomplice testimony requires corroboration not because such
evidence is factually insufficient to permit a reasonable trier of
fact to find the accused guilty beyond a reasonable doubt, but
because ‘[t]he Legislature has determined that because of the
reliability questions posed by certain categories of evidence,
evidence in those categories by itself is insufficient as a matter of
law to support a conviction.’ [Citations.] That is, even though
accomplice testimony would qualify as ‘substantial evidence’ to
sustain a conviction . . . [citation], the Legislature has for policy
reasons created an ‘exception[]’ to the substantial evidence test
and requires accomplice testimony to be corroborated.” (People v.
Najera, supra, 43 Cal.4th at pp. 1136-1137.)
“‘The trier of fact’s determination on the issue of
corroboration is binding on the reviewing court unless the
corroborating evidence should not have been admitted or does not
reasonably tend to connect the defendant with the commission of
26
the crime.’” (Romero and Self, supra, 62 Cal.4th at pp. 32-33;
accord, People v. McDermott (2002) 28 Cal. 4th 946, 985; People v.
Szeto (1981) 29 Cal. 3d 20, 26-27 [upholding jury’s “implied finding”
that accomplice testimony was sufficiently corroborated because
the corroborating evidence was properly admitted and “did
reasonably tend to connect defendant with the crimes”].)
Section 1111 “require[s] ‘evidence tending to connect
defendant with the crimes “without aid or assistance from the
testimony of”’ the accomplice. [Citation.] . . . [E]vidence
corroborating accomplice testimony ‘“need not . . .” [citation] . . .
corroborate every fact to which the accomplice testifies [citation],
and “‘may be circumstantial or slight and entitled to little
consideration when standing alone.’”’ [Citation.] But the evidence
must nonetheless connect the defendant to the crime itself, rather
than simply connect the accomplice to the crime.” (People v. Perez
(2018) 4 Cal.5th 421, 452; id. at pp. 428-429, 453 [sufficient
evidence connected defendant to the crime, including witness
testimony placing defendant near the murder location and
describing his efforts to sell stolen jewelry, as well as evidence that
the victim’s vehicle was abandoned near the motel where
defendant and his accomplices checked in after the killing]; accord,
People v. Rodriguez, supra, 4 Cal.5th at p. 1128 [corroborating
evidence was not sufficient to connect defendant to commission of
the crime where Attorney General conceded the evidence was
insufficient and the only evidence against defendant was that he
was a member of the gang responsible for the murder]; Romero
and Self, supra, 62 Cal.4th at pp. 32-36 [corroborating evidence
sufficient as to crimes committed by defendant Self with shotgun
where Self admitted he owned a shotgun and purchased shotgun
shells, shotgun wadding was found in the victim’s car, and Self
committed a similar crime a month later; evidence was insufficient
27
as to robbery where evidence showed codefendant was holding the
shotgun]; People v. Valdez (2012) 55 Cal. 4th 82, 147-148
[corroborating evidence was sufficient, including ballistics
evidence connecting defendant to the murder, witness testimony
that defendant exited a vehicle before gunshots were fired, and
that defendant was a member of the gang responsible for the
murder, because “‘it tend[ed] to connect the defendant with the
crime in such a way as to satisfy the jury that the accomplice [was]
telling the truth’”].)
“‘“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.”’” (People v.
Rodriguez, supra, 4 Cal.5th at p. 1128.) A defendant’s own
conduct or statements may provide adequate corroboration for
accomplice testimony. (People v. Williams, supra,16 Cal.4th at
p. 680; accord, People v. Mohamed (2016) 247 Cal. App. 4th 152, 163
[“a defendant’s own testimony and the reasonable inferences
therefrom may supply the necessary corroboration for an
accomplice’s testimony”]; see People v. Hartsch (2010) 49 Cal. 4th
472, 499 [“Defendant’s own statements to the police mirrored [the
accomplice’s] description of the events leading to the shootings.”].)
“False and contradictory statements of a defendant in relation to
the charge are themselves corroborative evidence.” (People v.
Santo (1954) 43 Cal. 2d 319, 327; accord, In re B.D. (2007) 156
Cal. App. 4th 975, 985.)
2. Jones’s own conduct and statements provided sufficient
corroboration of Lucero’s testimony.
Jones contends there was insufficient corroboration of
Lucero’s statements to Detective Aubuchon. The trial court
considered Lucero’s statements that when he arrived home the
28
night before Savannah’s death she was “breathing funny”; he woke
the next morning to Jones yelling that something was wrong with
Savannah; he told Jones, “I’m not responsible for this bullshit”; he
saw a bruise on Savannah on December 29 when he bathed her;
Jones told him in response to his questions about the bruises that
Savannah was constipated; Savannah’s nutrition was Jones’s
responsibility; and he urged Jones to take Savannah to the doctor,
but she refused.13 We review the evidence without considering
Lucero’s testimony to determine whether the evidence standing
alone connects Jones to commission of the crime. (People v. Perez,
supra, 4 Cal.5th at pp. 452-453; People v. Rodriguez, supra, 4
Cal.5th at p. 1128.) We conclude that it does.
As the trial court found, Jones “acted in a fashion which [the
court] thought showed consciousness of guilt. She was evasive to
the police, she didn’t call 911.” Jones told Officer Reyes and
Detective Aubuchon that on the day of Savannah’s death, Jones
woke up about 10:00 a.m. or 10:30 a.m.14 and saw that Savannah
was nonresponsive and cold to the touch, with no apparent
heartbeat. Yet Jones called Aguirre instead of 911. Both Aguirre
and Lucero told Jones to call 911, but she still failed to do so.
When Officers Reyes and Villegas were performing CPR on
Savannah, Jones came into the living room and falsely said she
had just woken up. Officer Villegas asked Jones who was
13 Jones also points to Lucero’s statement to Detective
Aubuchon that he had no doubt Jones “would have done this,” but
the statement was admitted only as to Lucero. Similarly, Lucero’s
statement to Detective Aubuchon that Jones told him Savannah
was dead was only admitted as to Lucero.
14 Jones told Officer Reyes she woke up at 10:00 a.m. and
Detective Aubuchon that she woke up at 10:30 a.m.
29
watching the baby, to which Jones did not respond. Jones made
other inconsistent statements to Officer Reyes, including that
Lucero was at work the morning of December 31 and that Jones’s
two older children were in her room the night of December 30,
although she later stated the children stayed with their
grandmother.
In addition, although Jones admitted she was Savannah’s
primary caregiver and Savannah was never out of her sight for
more than 20 minutes, Jones denied she had seen any bruises on
Savannah prior to the day before her death when Jones changed
her diaper. This was not credible given that at the time of her
death Savannah had bruises all over her body. Further, Dr. Ribe
testified that one skull fracture had been healing for weeks and
another for days. Jones tried to minimize Savannah’s condition by
telling Bertone that Savannah had some bruises, but “they quickly
went away.”
Evidence of a defendant’s consciousness of guilt, including
false or misleading statements about the crime, is admissible to
prove the crime. (See People v. Watkins (2012) 55 Cal. 4th 999,
1028 [jury may consider consciousness of guilt although it is not
sufficient by itself to prove guilt]; People v. Holt (1997) 15 Cal. 4th
619, 678 [trier of fact “may rationally infer that false statements
about a crime reflect consciousness of guilt”]; People v. McGehee
(2016) 246 Cal. App. 4th 1190, 1206 [concluding it was a reasonable
inference that defendant was aware of his guilt when he made
false statements to his sister following the murder of their mother
to prevent his sister from discovering she was dead].)
Jones’s conduct and statements corroborate Lucero’s
statements to Detective Aubuchon placing responsibility for
Savannah’s death on Jones. Although this evidence connecting
Jones to the killing of Savannah “‘“‘may be circumstantial or slight
30
and entitled to little consideration when standing alone,’”’” it is
sufficient to connect Jones to the unlawful killing of Savannah.
(See People v. Perez, supra, 4 Cal.5th at p. 452.)
C. Substantial Evidence Supported Jones’s Murder Conviction
1. Standard of review
“‘“[T]he court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”’”
(People v. Ghobrial (2018) 5 Cal.5th 250, 277; accord, People v.
Mora (2018) 5 Cal.5th 442, 488 [“Although we assess whether the
evidence is inherently credible and of solid value, we must also
view the evidence in the light most favorable to the jury verdict
and presume the existence of every fact that the jury could
reasonably have deduced from that evidence.”].)
“‘“‘The standard of review is the same in cases in which the
prosecution relies mainly on circumstantial evidence. [Citation.]
“‘Although it is the duty of the [trier of fact] to acquit a defendant
if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other
innocence [citations], it is the [trier of fact], not the appellate
court[,] which must be convinced of the defendant’s guilt beyond a
reasonable doubt. “‘If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary
finding does not warrant a reversal of the judgment.’”’”’”’” (People
v. Ghobrial, supra, 5 Cal.5th at pp. 277-278; accord, People v.
Casares (2016) 62 Cal. 4th 808, 823-824.)
31
2. There was substantial evidence to support the trial
court’s finding of implied malice.
Murder is the unlawful killing of a human being or fetus
“with malice aforethought.” (§ 187, subd. (a).) At trial the People
relied on a theory of implied malice to support a conviction for
second degree murder. Second degree murder is “‘the unlawful
killing of a human being with malice aforethought but without the
additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree
murder.’ [Citation.] . . . [Citation.] ‘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.
Chavez (2018) 22 Cal.App.5th 663, 682.)
The Supreme Court has “‘interpreted implied malice as
having “both a physical and a mental component. The physical
component is satisfied by the performance of ‘an act, the natural
consequences of which are dangerous to life.’ [Citation.] The
mental component is the requirement that the defendant ‘knows
that his conduct endangers the life of another and . . . acts with
conscious disregard for life.’”’” (People v. Soto (2018) 4 Cal.5th 968,
974; accord, People v. Jimenez (2015) 242 Cal. App. 4th 1337, 1358
[“‘Implied malice is determined by examining the defendant’s
subjective mental state to see if he or she actually appreciated the
risk of his or her actions.’ . . . ‘[L]ike all other elements of a crime,
implied malice may be proven by circumstantial evidence.’”
[Citations omitted.]].)
Jones contends substantial evidence did not support her
conviction for murder because there was no evidence that she
32
“abused, mishandled, or assaulted” Savannah or that Savannah’s
injuries were caused in her presence. We disagree. In deciding
whether substantial evidence supports Jones’s convictions, we
consider the evidence corroborating Lucero’s statements to
Detective Aubuchon in addition to Lucero’s statements.15 Dr. Ribe
testified that the cause of Savannah’s death was blunt force
trauma to Savannah’s abdomen and body. Dr. Ribe and Bertone
described Savannah as having bruises on her forehead, face, chin,
chest, abdomen, back, and knees. The fractures to Savannah’s
skull had been healing for days or weeks. Dr. Ribe opined that
Savannah’s injuries were caused by an adult striking the baby and
were not caused accidentally.
As we discuss above, there was significant evidence of
consciousness of guilt. Jones admitted she was Savannah’s
primary caregiver and had not let Savannah out of her sight for
more than 20 minutes. Yet Jones denied seeing Savannah’s
bruises prior to the day before her death when she changed
Savannah’s diaper. Jones admitted to Bertone that she had seen
15 We consider all the evidence in deciding whether there was
substantial evidence to support Jones’s convictions for purposes of
a retrial. “[W]hen reviewing the sufficiency of the evidence for
purposes of deciding whether retrial is permissible, the reviewing
court must consider all of the evidence presented at trial,
including evidence that should not have been admitted. ‘[W]here
the evidence offered by the State and admitted by the trial court—
whether erroneously or not—would have been sufficient to sustain
a guilty verdict, the Double Jeopardy Clause does not preclude
retrial.’ [Citation.] Accordingly, ‘a reviewing court must consider
all of the evidence admitted by the trial court in deciding whether
retrial is permissible under the Double Jeopardy Clause . . . .’”
(People v. Story, supra, 45 Cal.4th at pp. 1296-1297; accord, People
v. Lara (2017) 9 Cal.App.5th 296, 328, fn. 17.)
33
some bruises, but added, “they quickly went away.” This was not a
credible statement given the severity of the bruising all over
Savannah’s body. Lucero stated that he confronted Jones about
the bruises on December 29, but Jones only responded that
Savannah was constipated. Jones denied that she saw Savannah’s
bruises that day, even though she observed Lucero bathe
Savannah. Jones also denied she knew what caused Savannah’s
bruises.
Although Jones found Savannah unresponsive and cold to
the touch when she woke up on December 31, she failed to call
911, even after Aguirre and Lucero directed her to do so. When
Officers Reyes and Villegas attempted to resuscitate Savannah,
Jones walked into the room and falsely stated she had just woken
up. Jones later provided inconsistent statements to Officer Reyes
and Detective Aubuchon as to where Lucero was the morning of
December 31 and whether Jones’s two older children were in the
house the night before Savannah’s death.
Savannah’s malnutrition also contributed to her death.
Although Jones stated to multiple people that she regularly fed
Savannah, Savannah had lost weight in the six weeks before her
death and, as Dr. Murray opined, Jones’s failure to take her to a
doctor was a contributing cause of death. Lucero asked Jones to
take Savannah to the doctor—both for the malnutrition and the
bruises, but she did not. Given the severity of Savannah’s injuries
and her weight loss, the urgent need for medical attention would
have been apparent. It is a reasonable inference that Jones did
not take Savannah to the doctor or call 911 because she did not
want a doctor or the police to see Savannah’s injuries.
As the trial court concluded, it is reasonably inferable that
Jones, who “had virtually sole possession and custody of that
child” and “showed a consciousness of guilt,” caused Savannah’s
34
injuries. The severe nature of the injuries, inflicted over a period
of weeks while Savannah was in the primary care of Jones,
coupled with Jones’s failure to take Savannah to a doctor and later
to call 911, support the trial court’s finding that Jones inflicted the
injuries deliberately with knowledge “‘“‘that [her] conduct
endanger[ed] the life of another and [she acted] with conscious
disregard for life.’”’” (People v. Cravens, supra, 53 Cal.4th at
p. 507.) Substantial evidence supports the trial court’s finding
beyond a reasonable doubt that Jones committed second degree
murder.16 (People v. Ghobrial, supra, 5 Cal.5th at p. 277; accord,
People v. Mora, supra, 5 Cal.5th at p. 488.)
DISPOSITION
The judgment is reversed.
FEUER, J.
We concur:
PERLUSS, P. J.
16 Jones does not assert an argument that there was
insufficient evidence to support her conviction for child abuse. In
any event, the same evidence that supports her conviction for
second degree murder provides substantial evidence to support her
conviction for child abuse.
35
ZELON, J.
36