People v. Norwood CA2/5

Filed 3/30/23 P. v. Norwood 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, B322743
Plaintiff and Respondent, (Kern County
Super. Ct. No.
v. MF013183A)
MATTHEW NORWOOD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern
County, Charles R. Brehmer, Judge. Affirmed.
Tracy A. Rogers, 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 Lewis A. Martinez and Ian Whitney,
Deputy Attorneys General, for Plaintiff and Respondent.
Abel Norwood (Abel), defendant and appellant Matthew
Norwood’s (defendant’s) two-month-old son, died of blunt force
head trauma. A jury found defendant inflicted the fatal injuries
and convicted him of second degree murder and assault on a child
resulting in death. The trial court sentenced defendant to 25
years to life in prison. We consider defendant’s various
challenges to the judgment: (1) whether the assault on a child
statute, section 273ab of the Penal Code,1 is unconstitutional
because it imposes a penalty for an assault equal to the sentence
for first degree murder, (2) whether the trial court’s modification
to the pattern instruction for second degree murder that
addressed the duty of parents to protect their children led the
jury to misapply the instruction, (3) whether the trial court erred
by admitting evidence about defendant’s eyelid tattoos, 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, Abel, and Abel’s mother
Brittney Collins (Collins) were living in the home of Collins’s 78-
year-old grandmother Shirley Collins (Shirley). Early that
morning, defendant and Collins argued about his drug abuse;
Collins told him to move out of the family home and defendant
broke Collins’s mobile phone. In the hours after the argument,
defendant was Abel’s primary caregiver because Collins was not
feeling well; she was still recovering from the effects of her
1
Undesignated statutory references that follow are to the
Penal Code.
2
caesarian section weeks earlier and she was at the time suffering
from an infection and the side effects of an antibiotic.
At approximately 4:00 p.m., defendant left the family home
to go to Home Depot. According to defendant, Abel was “fine”
when he left the house. Less than an hour after leaving the
family home, defendant received a telephone call from Collins
saying something was wrong with Abel. When defendant arrived
home, Shirley and Collins were crying and two neighbors, who
found Abel to be “burning up” and “lifeless” with his eyes rolling
up into the back of his head, were trying to lower Abel’s
temperature by putting cool water on him. One of the neighbors
had called 911.
The responding paramedics and firefighters 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. Defendant told the nurse the bruising
was largely self-inflicted because Abel would move around as he
slept in his bassinet which had a plywood-like base. The nurse
ordered an x-ray of Abel’s leg, in addition to a computerized
tomography (CT) scan of his 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 axis. 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
3
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 from the bone
survey 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
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.
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
by any.” The number of hemorrhages were, in the view of the
ophthalmologist, indicative of trauma.
4
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 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.” There was no possibility of recovery
from such a head injury; Abel was “dying from the time of the
injury.”
B. Defendant’s 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, Collins, 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
5
Office for assistance in a possible child abuse investigation,
questioned Abel’s parents.
Defendant said that before he left the family home, he
changed Abel’s diaper and attempted to feed him. According to
defendant, Abel was “fussy” as usual during the changing but
went back to sleep before defendant could feed him. Defendant
then went to Home Depot. Collins told the deputy that after
defendant left to go to Home Depot, she heard Abel make a noise;
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 Collins explained, due to Shirley’s limited mobility
(she used a walker) she would not carry the baby.
When defendant and Collins arrived back home the
following day (October 18), they found deputies from the Kern
County Sheriff’s Office conducting a search. In one of the home’s
bathrooms, deputies found a hypodermic needle with a “blackish
substance” inside of it. In the bedroom used by defendant and
Collins, deputies found an open suitcase laying on the bed half-
filled with what may have been men’s clothes.
Following the search, defendant and Collins agreed to be
interviewed at the Sheriff’s Tehachapi substation. While waiting
for the interviews to begin, defendant and Norwood remained in
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, defendant told Collins,
“Don’t be tryin’ to add anything extra to your story, okay”?
During their conversation, which they recognized could be subject
to recording, defendant repeatedly told Collins he loved her and
6
stated he would not incriminate Collins or anyone else. Collins
replied, “Babe, I’m not going to throw you under the bus.”
Defendant and Collins also repeatedly made statements
suggesting Shirley may have been responsible for Abel’s injuries.
Collins also told defendant she saw the law enforcement officers
recover the aforementioned hypodermic needle.
Upon arriving at the stationhouse, detectives interviewed
defendant and Collins separately. During defendant’s interview,
he recounted the events on the day of Abel’s hospitalization in a
manner that was consistent with the account he gave to the
deputy at Valley Children’s, adding only that Abel was a “very
grumpy baby,” had been “grumpy since day one,” and on that
particular day was “extra grumpy.” In addition, defendant said a
bruise on Abel’s left knee predated his hospitalization and was
brought to the pediatrician’s attention twice at recent well-baby
visits. Defendant said the pediatrician had ruled out the bassinet
as a cause of the bruising but advised that Abel’s leg was “fine.”
When asked whether he thought Shirley caused Abel’s
injuries, defendant replied, “I do, 100% I do. . . . [¶] . . . [¶]
Because I’ve caught her many times walking around with [Abel]
and again, she can’t even get in the car ‘cause she’s not able to
walk with[out] a cane. I mean, you saw her walk today. You
know? A lot of trouble walking even with a cane by herself and
we have to help her walk with a cane, let alone carrying a child
and I mean, these injuries are kind of in line with an infant being
dropped. I mean, he falls hits his leg, cracks his leg and then
what’s next is his head.” Even after the detectives walked
defendant through Abel’s injuries and their severity, which
indicated his hospitalization was not due to “a simple fall to the
ground,” defendant persisted in blaming Shirley: “Again, I think
7
it was [Shirley]. . . . [S]he’s a spiteful person, very spiteful.
[¶] . . . [¶] [Shirley] has been caught doing things she wasn’t
supposed to be doing already. And she was specifically told by
my wife’s aunt don’t pick him up and don’t carry him and walk
with him and she[’s] still doing it . . . . [¶] . . . [¶] . . . [Shirley]
has been caught by both of us multiple times carrying [Abel].”
Defendant admitted using methamphetamine since he was
16 years old but he denied that the hypodermic needle found in
the family home belonged to him; he claimed his preferred
method of ingestion was inhaling, not injection. After detectives
noted needle track marks on his arms, defendant said they were
old marks. Defendant also described himself as a “functioning
tweeker,” but claimed he quit a week before Abel’s
hospitalization. The results from defendant’s urine sample taken
on the day of his interview were positive for methamphetamine
and indicated ingestion incurred anywhere from one to seven
days before the sample was taken.
C. Defendant’s Arrest and the Evidence at Trial,
Including Testimony by Defendant and Collins
While Abel was still being cared for at Valley Children’s,
defendant and Collins were arrested and charged with causing
their son’s injuries. After Abel died, defendant and Collins were
charged by information with murder (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). The charges against each
defendant were tried to separate juries.
At trial, Shirley testified she carried Abel only once shortly
after he was born and never changed any of his diapers. She
8
testified further that she attended the well-baby visit on October
16, defendant did not attend, and she did not observe any bruises
on Abel.3 On the following day, the day of Abel’s hospitalization,
she woke to find defendant and Collins arguing. Throughout
much of October 17, Shirley did not see Abel and was given
reasons by defendant, who was caring for him, not to see the baby
(e.g., Abel had either just been fed and was falling asleep or was
asleep). Shirley recounted for the jury how Collins, who looked
“sad,” told her she had earlier that day asked defendant to move
out of the family home. Shirley stated defendant was in a “bad
mood” that day and appeared “angry” when he left the house that
afternoon—so angry he “kind of scared” her.
Timothy Frieson (Frieson), a good friend of defendant’s who
spent time with him “pretty much every day,” testified that in
2018 defendant on more than one occasion “slammed”
methamphetamine, i.e., injected the drug into his body with a
needle. Frieson also testified further that on the day of Abel’s
hospitalization, he and defendant went to Home Depot together
and attempted to purchase methamphetamine from some of
Frieson’s friends. Frieson opined, however, that defendant was
an appropriate parent and Frieson said he never saw defendant
use methamphetamine around Abel.
Collins testified defendant used methamphetamine on the
day Abel was hospitalized, and, she believed, on the two previous
3
The nurse practitioner who examined Abel during his two
most recent well-baby visits similarly testified defendant did not
attend either visit. She also testified she did not observe or
record any bruising anywhere on Abel or discuss bruising with
Collins.
9
days as well. According to Collins, defendant “slammed dope all
the time.” When defendant ingested methamphetamine, he
became “mean” and “angry.”4
Collins also testified defendant abused her while pregnant
with Abel: among other things, he choked her “a couple of times,”
he pushed her down when she was seven or eight months
pregnant and hit her stomach, and when she was eight or nine
months pregnant he pushed her during an argument and told her
“he would make sure Abel wasn’t born.”5 Collins disavowed,
however, her out-of-court admissions to detectives about
defendant’s earlier abuse of Abel, claiming she never saw
defendant mistreat his son prior to October 17 and just told the
detectives what she thought they wanted to hear.6 On October
17, the day Abel suffered his fatal injury, Collins testified she
4
A forensic toxicologist testified one of the side effects of
methamphetamine is “aggressive violent behaviors.”
5
A neighbor testified that prior to Abel’s birth he witnessed
defendant make a jabbing motion with a screwdriver toward a
pregnant Collins’s midsection while stating he did not want to be
a father, which caused Collins to flee toward the family home
vowing to keep the baby.
6
Collins agreed she told the detectives she had seen
defendant mistreat her son prior to his hospitalization by putting
a hand over Abel’s mouth to quiet him, squeezing him too hard,
shaking his head, bumping his head, and patting his head too
hard. Collins told detectives that on five or six occasions prior to
October 17, when defendant was caring for Abel in another room,
she heard loud bangs followed by the sound of Abel crying; when
she would ask defendant what happened, his explanations for the
noises and crying would not “add up.”
10
heard a loud bang from the room where defendant was caring for
Abel before he left for Home Depot, but no resulting cry from
Abel.
Collins admitted that when she talked to the detectives on
October 18 she lied on a number of occasions. Among other
things, she falsely claimed, at defendant’s direction, that the
hypodermic needle recovered from the family home was hers; she
did so in order to protect defendant. She also testified that she
falsely claimed Shirley dropped Abel and did so at defendant’s
direction in order to protect him. According to Collins, Shirley
“never” dropped Abel. Collins maintained, however, that she
never saw any visible injuries or trauma on Abel’s body prior to
his hospitalization.
Defendant testified in his own defense. He said Collins’s
pregnancy with Abel was planned and he took various steps to
prepare for Abel’s arrival, such as attending Collins’s prenatal
medical appointments, painting Abel’s room, child-proofing the
family home, and buying toys, clothes, and baby furniture.
Defendant conceded he struggled with controlling his
anger, and he admitted that at the time of Abel’s hospitalization
he was on probation for misdemeanor domestic violence and
enrolled in a court-ordered domestic violence program.
Defendant also admitted he was addicted to methamphetamine.
But defendant continued to deny the hypodermic needle found in
the family home was his. He also denied he tried to buy drugs
with his friend Frieson on October 17. Defendant claimed he
would never use methamphetamine directly around Abel; he
would go into another room to ingest the drug and then return to
care for his son.
11
Defendant acknowledged methamphetamine made him
irritable and made it more difficult to control his anger, and he
admitted his son’s grumpiness irritated him but testified he was
“never angry with his son no matter what.” Although Abel was
“more fussy than normal” and “screaming” on October 17,
defendant was not irritated with him because he recognized his
son had cause to be fussy because he received immunization
shots the day before.
Defendant continued to insist it was possible Shirley
inflicted some of Abel’s injuries, but defendant conceded other
injuries, such as the broken left leg and the retinal detachments,
could only have been inflicted by himself or Collins. Defendant
denied ever physically abusing Collins. He also 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.
Over defense counsel’s relevancy objection and repeated
objection that the subject was beyond the scope of the direct
examination, defendant testified he had tattoos on his eye lids
that spelled “fuck you.” Defendant explained he got the tattoos
shortly after Abel’s death when he was in a “very dark place.”
D. Jury Instructions, Closing Argument, Verdict, and
Sentencing
Although the trial court understood the prosecution was
proceeding against defendant on the theory he beat Abel to death,
not that he failed in his duty to care for Abel by leaving him in
the care of Collins, the court, for reasons not revealed by the
record, instructed the jury on count one with a modified version
of CALCRIM No. 520, the pattern instruction for murder. The
12
modified instruction deleted language about the failure to
perform a duty which results in death and added the following
language: “If you conclude that the defendant owed a duty to
Abel N., and the defendant failed to perform that duty, his failure
to act is the same as doing a negligent or injurious act.” The
defense did not object to the modified version of CALCRIM No.
520.
On the assault on a child resulting in death charge, the
trial court instructed the jury with CALCRIM No. 820. To find
defendant guilty under the instruction, the jury was required to
find defendant acted “willfully” and “was aware of facts that
would lead a reasonable person to realize that his act by its
nature would directly and probably result in great bodily injury
to the child” and his act “caused” Abel’s death. The defense
raised no objection to this instruction either.
During closing argument, the prosecution did not argue
defendant failed to care for Abel; rather, it argued he was guilty
of implied malice murder for essentially clubbing his son to
death. The prosecution mentioned defendant’s eyelid tattoos once
during closing, remarking the tattoos were indicative of how
defendant treated other people. During the defense closing,
counsel reiterated the prosecution was proceeding with a theory
that defendant beat his son to death, not that he failed to care for
him.
The jury found defendant guilty as charged.7 The trial
court sentenced defendant to 25 years to life for the assault on a
7
Collins’s jury found her guilty of second degree murder and
guilty of the lesser included offense of assault with force likely to
cause great bodily injury. The trial court sentenced Collins to 15
years to life in prison.
13
child conviction and 15 years to life for murder, with that
sentence stayed pursuant to section 654. Without objection, the
court also imposed various fines and assessments.
II. DISCUSSION
Defendant contends his assault on a child resulting in
death conviction should be reversed because the statue of
conviction, section 273ab, is an unconstitutional strict liability
statute in which a murder-like sentence is imposed for an offense
without a mental state element. In the alternative, he argues the
merger doctrine, which bars conviction of felony-murder based
upon a death occurring as a result of a felonious assault, should
preclude a first degree murder penalty for a death from an
assault. Neither point is persuasive. Section 273ab is not a strict
liability statute; rather, as our Supreme Court and prior Court of
Appeal decisions have recognized, it is an assault statute with
different elements than murder (and, in any event, the
Legislature has the power and the prerogative to impose the
same penalty for different offenses). The merger doctrine is
inapplicable because defendant’s murder conviction was based on
malice, not a theory of felony murder, and his section 273ab
conviction was not based on his murder conviction.
Defendant’s remaining contentions are also unavailing. He
argues CALCRIM No. 820 should, but does not, include a
requirement that a defendant know (or a reasonable person
would know) his or her act would result in death, but this
argument fails because CALCRIM No. 820 accurately reflects the
elements of child abuse homicide as defined by section 273ab and
14
governing case law.8 The modified CALCRIM No. 520 instruction
given to the jury does not warrant reversal because, when
considered in light of the other instructions given to the jury, the
parties’ closing arguments, and the evidence presented at trial,
there is no reasonable probability the jury misapplied the
instruction. Defendant forfeited his claim that testimony about
his eyelid tattoo was improper character evidence by failing to
object on that ground at trial and, regardless, defendant was not
prejudiced by the evidence. Finally, defendant’s challenge to the
financial components of his sentence under People v. Dueñas
(2019) 30 Cal.App.5th 1157 is forfeited for lack of a
contemporaneous objection.
A. Section 273ab Is Not Unconstitutional and
Defendant’s Section 273ab Conviction Does Not
Violate the Merger Doctrine
Section 273ab, subdivision (a) defines an offense sometimes
referred to in shorthand as “child abuse homicide.” (People v.
Wyatt (2010) 48 Cal.4th 776, 779 (Wyatt).) In relevant part, the
statute provides for punishment of “[a]ny person, having the care
or custody of a child who is under eight years of age, who assaults
the child by means of force that to a reasonable person would be
8
The Attorney General contends defendant forfeited this
argument by failing to object to the jury instruction at trial. A
claim of instructional error that affects a defendant’s substantial
rights, however, can be made whether or not trial counsel
objected. (§ 1259; People v. Burton (2018) 29 Cal.App.5th 917,
923.) The same holds true for the CALCRIM No. 520 instruction
that was not objected to by the defense. We opt to address both
instructional error claims on the merits.
15
likely to produce great bodily injury, resulting in the child’s
death.” (§ 273ab, subd. (a); see also Wyatt, supra, at 780 [the
elements of the offense are “‘(1) [a] person, having the care or
custody of a child under the age of eight; (2) assaults this child;
(3) by means of force that to a reasonable person would be likely
to produce great bodily injury; (4) resulting in the child’s death.’
[Citations.]”].) Although the elements of child abuse homicide are
different from murder and section 273ab expressly disclaims any
effect on California’s murder statutes (§ 273ab, subd. (a)
[“Nothing in this section shall be construed as affecting the
applicability of subdivision (a) of Section 187 or Section 189”]),
section 273ab imposes the same penalty as for first degree
murder: 25 years to life.9
Because the offense codified in section 273ab is a form of
assault, it “does not require a specific intent to injure the victim.”
(Wyatt, supra, 48 Cal.4th at 780.) “[T]he criminal intent required
for assault is ‘the general intent to willfully commit an act the
direct, natural and probable consequences of which if successfully
completed would be the injury to another.’ [Citation.]” (Ibid.)
Consequently, “a defendant may be guilty of an assault within
the meaning of section 273ab if he acts with awareness of facts
that would lead a reasonable person to realize that great bodily
injury would directly, naturally, and probably result from his act.
[Citation.] The defendant, however, need not know or be
9
The Legislature increased the punishment for child abuse
homicide from 15 years to life to 25 years to life in 1996. (Stats.
1996, ch. 460, § 2.) The punishment for first degree murder
without any special circumstance has been 25 years to life since
1978. (In re Jeanice D. (1980) 28 Cal.3d 210, 215, 218 & fn.6.)
16
subjectively aware that his act is capable of causing great bodily
injury. [Citation.] This means the requisite mens rea may be
found even when the defendant honestly believes his act is not
likely to result in such injury. [Citation.]” (Id. at 781; see also
People v. Albritton (1998) 67 Cal.App.4th 647, 658 (Albritton)
[“The mens rea for the crime is willfully assaulting a child under
eight years of age with force that objectively is likely to result in
great bodily injury—that is, the assault must be intentional”].)
1. Section 273ab is constitutional
Over the years, a number of courts have considered and
rejected defendant’s argument that section 273ab infringes on
constitutional due process rights because it imposes a murder-
like punishment for an assault. For example, in People v.
Norman (2003) 109 Cal.App.4th 221, a jury found the defendant
guilty of second degree murder under section 187 and child abuse
homicide under section 273ab. (Id. at 224.) On appeal, Norman
argued his section 273ab conviction must be reversed because the
statute imposed the same penalty as for first degree murder.
(Ibid.)
The Court of Appeal affirmed the conviction, rejecting
Norman’s claim that section 273ab was unconstitutional. (Id. at
229.) Based on the plain language of the statutes defining both
offenses, the Norman court concluded section 273ab “is not a
murder statute”; it establishes a different crime, with different
elements. (Id. at 227, 229.) Unlike murder, which requires proof
of an unlawful killing and a showing of malice aforethought, the
child abuse homicide statute requires proof of three other
elements that are not required for murder: (1) an assault on a
child under the age of eight, (2) by a person having care or
17
custody of the child, (3) with force that a reasonable person would
know was likely to inflict great bodily injury. (Id. at 228-229.)
The Norman court found “it immaterial that the punishment for
a violation of section 273ab is the same as first degree murder,”
explaining that “[t]he Legislature exercised its prerogative in
selecting the range of punishment, and there is no principle of
law that precludes the same punishment for different crimes.”
(Id. at 228.) Other courts have similarly rejected constitutional
challenges to the statute. (See, e.g., People v. Malfavon (2002)
102 Cal.App.4th 727, 738-741 [because child abuse homicide and
murder are separate crimes, there was no constitutional reason
why the Legislature could not define a new homicide crime
without the element of malice and set a 25-year-to-life penalty for
such crime] (Malfavon); People v. Basuta (2001) 94 Cal.App.4th
370, 399 [element of care and custody creates a “meaningful
distinction” between child abuse homicide and murder];
Albritton, supra, 67 Cal.App.4th at 659-660.)
Defendant, however, argues section 273ab has remained
“static” despite changes in the law governing murder and felony
murder and, in view of those changes, we should now hold the
statute unconstitutional. Specifically, defendant contends recent
decisions by our Supreme Court in People v. Chun (2009) 45
Cal.4th 1172 (Chun) and People v. Chiu (2014) 59 Cal.4th 155(Chiu), plus passage of Senate Bill No. 1437, provide reason to
depart from prior precedent rejecting constitutional challenges.
In our view, defendant is mistaken, both about the relevance of
recent changes in murder law to section 273ab and, more broadly,
about which branch of government is responsible for defining
crimes and their punishment.
18
The central concern in Chun was the constitutional validity
of the common law second degree felony murder rule. Our
Supreme Court held an assaultive felony cannot serve as the
underlying felony for a second degree felony murder conviction.
(Chun, supra, 45 Cal.4th at 1180, 1200.) In the later Chiu case,
our Supreme Court was focused on aider and abettor liability for
murder and held the natural and probable consequences doctrine
cannot support a first degree premeditated murder conviction
because “reasonable concepts of culpability” are inconsistent with
first degree murder liability for someone who is not the actual
killer or did not harbor an intent to kill. (Chiu, supra, 59 Cal.4th
at 161, 165-166.)
Neither Chun nor Chiu addresses section 273ab or the
Legislature’s power to impose the same punishment for different
crimes. The same holds true for Senate Bill 1437, which was
enacted to “amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure
that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f).)
In our view, these legal developments have no material
bearing on the well-established rule that applies: “‘The matter of
defining crimes and punishment is solely a legislative function.’
[Citation.] ‘The Legislature also has the authority to change the
penalties, or separate them by degree.’ [Citation.] ‘Prescribing
punishment for various forms of homicide is distinctly within the
police power of the states, as is the definition of the elements of
crimes and the delineation of their punishments.’ [Citation.]
19
‘Evils in the same field may be of different dimensions and
proportions, requiring different remedies. Or so the legislature
may think.’ [Citations.] ‘“‘[S]ubject to the constitutional
prohibition against cruel and unusual punishment, the power to
define crimes and fix penalties is vested exclusively in the
legislative branch.’ [Citations.]” [Citation.]’ [Citations.]” (People
v. Rhodes (2005) 126 Cal.App.4th 1374, 1385.) Ordinarily, so
long as the Legislature acts rationally, the punishment imposed
for a particular form of homicide will not offend due process. (Id.
at 1386; see also People v. Wilkinson (2004) 33 Cal.4th 821, 838,
840; Malfavon, supra, 102 Cal.App.4th at 739 [“‘“Where . . . there
are plausible reasons for [the Legislature’s] action, our inquiry is
at an end”’”].)
Here, the Legislature acted rationally in enacting section
273ab. There is a rational basis to set the penalty for child abuse
homicide as the Legislature did in order to deter a particularly
egregious type of homicide in which the victims are young,
defenseless children who are forcefully abused by those who have
custody of them and are entrusted to protect them. (Albritton,
supra, 67 Cal.App.4th at 659-660 [“Considering the purpose of
the statute—to protect children at a young age who are
particularly vulnerable—there can be no dispute of the gravity of
the governmental interest involved. As our Supreme Court put
it, it is ‘an interest of unparalleled significance: the protection of
the very lives of California’s children, upon whose “healthy, well-
rounded growth . . . into full maturity as citizens” our “democratic
society rests, for its continuance”’”]; see also People v. Lewis
(2004) 120 Cal.App.4th 837, [term of 25 years to life was not cruel
and unusual punishment for defendant convicted of violating
§ 273ab; although defendant was a relatively young man without
20
a criminal record, the amount of force required to cause a four-
month-old child’s fatal head injuries and the amount of anger and
loss of control that led to the assault, the punishment was not
disproportionate to defendant’s culpability].)
2. The merger doctrine does not bar defendant’s
section 273ab conviction
Section 273ab is not a felony murder statute and the
merger doctrine only controls cases in which the felony murder
rule applies. (Chun, supra, 45 Cal.4th at 1188-1189 [describing
the merger doctrine as a restriction on the second degree felony
murder rule].) Here, defendant’s second degree murder
conviction was based on malice instructions, not on a felony
murder theory. Moreover, defendant’s child abuse homicide
conviction was separate from, and not dependent on, his murder
conviction. Accordingly, the merger doctrine is inapplicable.
(Norman, supra, 109 Cal.App.4th at 227 [“because section 273ab
is not a murder statute, the so-called merger rule has no
application to this case]; Malfavon, supra, 102 Cal.App.4th at
743-744 [neither murder nor child abuse homicide is a
necessarily included offense within the other].)
B. The CALCRIM No. 820 Instruction Was Not Error
CALCRIM No. 820 provides as follows: “To prove that the
defendant is guilty . . . , the People must prove that: [¶] 1. The
defendant had care or custody of a child who was under the age of
8; [¶] 2. The defendant did an act that by its nature would
directly and probably result in the application of force to the
child; [¶] 3. The defendant did that act willfully; [¶] 4. The force
used was likely to produce great bodily injury; [¶] 5. When the
21
defendant acted, (he/she) was aware of facts that would lead a
reasonable person to realize that (his/her) act by its nature would
directly and probably result in great bodily injury to the child; [¶]
6. When the defendant acted, (he/she) had the present ability to
apply force likely to produce great bodily injury to the child;
[AND] [¶] 7. The defendant’s act caused the child’s death.”
CALCRIM No. 820 correctly states the elements of section
273ab as defined by the language of the statute and construed by
our Supreme Court in Wyatt, supra, 48 Cal.4th at page 780.
There is no requirement, as defendant would have it, that there
must be proof that someone charged with a section 273ab offense
know (or a reasonable person would know) his or her act would
result in death. There was accordingly no error in instructing the
jury with CALCRIM No. 820.10
C. The Modified CALCRIM No. 520 Murder Instruction
Does Not Warrant Reversal of Defendant’s Murder
Conviction
In reviewing a claim of instructional error, the “challenged
instruction is viewed ‘in the context of the instructions as a whole
and the trial record to determine whether there is a reasonable
likelihood the jury applied the instruction in an impermissible
manner.’ [Citation.]” (People v. Mitchell (2019) 7 Cal.5th 561,
579.) Here, the trial court instructed the jury using CALCRIM
10
Insofar as defendant also contends an instruction given to
the jury that classified crimes as requiring general or specific
intent contributed to instructional error, we do not believe the
jury would have been led to misapply the more specific CALCRIM
No. 820 by that general instruction.
22
No. 520, an instruction whose language our Supreme Court has
repeatedly approved. (See, e.g., People v. Knoller (2007) 41
Cal.4th 139, 151-152; People v. Nieto Benitez (1992) 4 Cal.4th 91,
104.)
CALCRIM No. 520 requires the prosecution to prove the
following: “[1A. The defendant committed an act that caused the
death of (another person/ [or] a fetus);] [¶] [OR] [¶] [1B. The
defendant had a legal duty to (help/care for/rescue/warn/maintain
the property of . . . [the decedent or other person to whom duty is
owed] and the defendant failed to perform that duty and that
failure caused the death of (another person / [or] a fetus);] [¶]
[AND] [¶] 2. When the defendant (acted / [or] failed to act),
(he/she) had a state of mind called malice aforethought.” As later
cases have recognized (see, e.g., People v. Latham (2012) 203
Cal.App.4th 319, 327), element 1B of CALCRIM No. 520 is
consistent with the leading case of People v. Burden (1977) 72
Cal.App.3d 603 (Burden).
In Burden, defendant’s five-month-old child died of
malnutrition and dehydration. (Burden, supra, 72 Cal.App.3d at
607-608.) Burden admitted knowing that his wife (who was
developmentally disabled) was not feeding the child adequately;
he also admitted that he did not feed the child. (Id. at 609-610.)
The jury was instructed “‘that 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,’ and that
‘the parent of a minor child has a duty to furnish necessary
clothing, food, shelter and medical attention for his minor child.’”
(Id. at 614.) The jury found Burden guilty of second degree
murder (id. at 606) and the Court of Appeal affirmed, holding the
“instructions correctly stated the law. The omission of a duty is
23
in law the equivalent of an act and when death results, the
standard for determination of the degree of homicide is identical.”
(Id. at 616.)
The Bench Notes to CALCRIM No. 520, however, advise
that element 1B should be given only “[i]f the prosecution’s
theory of the case is that the defendant committed murder based
on his or her failure to perform a legal duty.” Although the trial
court knew the prosecution was not proceeding on a failure to
care theory and deleted part 1B of the pattern instruction, the
court retained, with modification for the facts of this case, an
optional sentence in the pattern instruction about legal duties to
another (“A parent has a legal duty to care for a child”) and added
the following: “If you conclude that the defendant owed a duty to
Abel N., and the defendant failed to perform that duty, his failure
to act is the same as doing a negligent or injurious act.”
The trial court’s modification to CALCRIM No. 520 was
unnecessary and could in theory cause confusion. But we are
confident on the record here that the jury did not apply the
instruction in an impermissible manner. The unmodified portion
of CALCRIM No. 520 discussed the concept of malice
aforethought and how a finding of implied malice requires
defendant intentionally commit an act which is dangerous to
human life and how an act causes death if death is the natural
and probable consequence of defendant’s act. During their
closing arguments, both parties expressly recognized the
prosecution was proceeding on a theory defendant beat his son to
death, not that he failed to care for him. The conviction under
section 273ab required the jury to find defendant “willfully”
performed an act the force of which was “likely to produce great
bodily injury” and “caused the child’s death.” The medical
24
evidence showed Abel was swung by his left leg with sufficient
force to break and misalign the tibia, as well as cause displaced
skull fractures, retinal detachments, and retinal hemorrhages too
numerous to count. Defendant admitted on the witness stand he
had the physical strength to inflict the fatal injuries suffered by
Abel; had problems controlling his anger; was addicted to a drug
whose effects could lead to violent, aggressive behavior; and
found Abel to be “extra grumpy” on the day he was transported to
the hospital. In addition, the jury convicted defendant on the
child abuse homicide offense in count two without instructions on
aiding and abetting, which indicates the jury believed defendant
was the perpetrator of the abuse. In view of all of the following,
there is no reasonable probability the jury was misled by the
instruction into relying on a failure to care theory of murder
rather than the implied malice theory of physical abuse the
parties argued.
D. Defendant Forfeited His Improper Character Evidence
Claim and His Related Ineffective Assistance of
Counsel Claim Fails
As defendant concedes, there was no contemporaneous
objection to the eyelid tattoo evidence on the ground now
asserted: that it was improper character evidence. The claim
raised on appeal is therefore forfeited. (People v. Valdez (2012)
55 Cal.4th 82, 130 [“Here, in objecting to the gang-related
evidence, defense counsel neither mentioned Evidence Code
section 1101 nor asserted that the evidence constituted
inadmissible character evidence. Defense counsel did make
various other objections to some of the evidence in question,
including that it was irrelevant, cumulative, lacking in
25
foundation, or prejudicial. However, these objections were
insufficient to preserve for appeal the claim that the evidence
was inadmissible under Evidence Code section 1101, subdivision
(a)”]; People v. Partida (2005) 37 Cal.4th 428, 431 [“defendant
may not argue on appeal that the court should have excluded the
evidence for a reason not asserted at trial”].)
Understanding the grounds to find forfeiture, defendant
briefly argues the absence of an objection on the ground now
urged means he was denied effective assistance of counsel
because there was no tactical reason for not making “the proper
objection.”11 We reject the ineffective assistance of counsel claim
for lack of prejudice. (Strickland v. Washington (1984) 466 U.S.
668, 697 [“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which . . . will often be
so, that course should be followed”].)
There is no reasonable probability of a different result had
defendant’s trial counsel objected to the tattoo evidence as
improper character evidence. The discussion of defendant’s
tattoos during cross-examination was brief and, contrary to
defendant’s assertion, the prosecution did not “hammer” on this
evidence during closing argument; it mentioned the tattoos once
and only fleetingly in a single sentence. There was also very
strong evidence of guilt—evidence which undoubtedly had a far
11
Defendant also argues the asserted error in admitting the
eyelid tattoo evidence affects his substantial rights, which
provides a basis for this court to exercise its discretion to decide
the issue on the merits. For reasons that follow, we do not
believe admission of the evidence affected defendant’s substantial
rights and, in any event, we decline to exercise our discretion to
resolve the forfeited issue on the merits.
26
stronger impact on the jury than an expletive eyelid tattoo. The
medical evidence showed Abel died from extreme physical
injuries, injuries which, as defendant conceded at trial, could not
have been inflicted by a 78-year-old woman who could not stand
unassisted, which left him and Collins as the only two other
possible assailants. On October 17, Collins spent the day on the
couch recovering from the effects of both surgery for a caesarian
section and an infection; as a result, defendant, who testified he
had the strength to inflict the fatal injuries, was Abel’s primary
caregiver that day, a day on which Abel was being “extra
grumpy” according to defendant. Collins testified she heard on
that day, as she had in the past, a loud bang coming from the
room where defendant was alone with Abel. Defendant admitted
to having difficulty managing his anger (at the time, he was on
probation for domestic violence) and to being addicted to
methamphetamine, which he conceded could trigger violent,
aggressive behavior. The results from defendant’s drug test
taken the day after Abel was hospitalized were also positive for
methamphetamine. Collins testified defendant had acted
violently toward her during the later stages of her pregnancy,
and a neighbor testified he had seen defendant threaten Collins
(and her then-unborn child) with a screwdriver pointed at her
abdomen while she was pregnant.
E. Defendant Forfeited His Dueñas Argument
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant
argues the imposition of court operations assessments, conviction
assessments, and restitution fines was improper because the trial
court did not consider his ability to pay. Defendant was
sentenced on November 11, 2020, nearly two years after the
27
Court of Appeal issued its opinion in Dueñas. Defendant
concedes his trial attorney did not request an ability to pay
determination and the record shows his attorney did not object to
any of the fees or assessments. 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.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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