Filed 7/25/14 P. v. Valencia CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047798

         v.                                                            (Super. Ct. No. 09CF3144)

JUANA PEREZ VALENCIA,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Carla
Singer, Judge. Reversed.
                   Anthony J. Dain, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
              A jury convicted defendant Juana Perez Valencia of second degree murder
(count 1) and assault on a child with force likely to produce great bodily injury causing
death (count 2). The trial court sentenced defendant to 15 years to life on count 1, and
dismissed count 2 for sentencing purposes.
              Defendant contends the trial court erred by improperly restricting one of her
expert witness’s testimony; and by failing to instruct the jury on misdemeanor assault in
relation to involuntary manslaughter as a lesser included offense to count 1, and as a
lesser included offense to count 2. We agree with both contentions and reverse.
                                          FACTS
Prosecution Evidence
              Defendant came to the United States in 2006 when she was 16 years old.
She lived with her sister, her sister’s husband, and their two children, and her brother, his
wife, and their two children in a two bedroom apartment in Anaheim. Defendant and her
sister worked at Sombrero’s restaurant.
              In the fall of 2009, defendant was 19 years old and in 11th grade. In
September, defendant’s dance teacher noticed she had gained weight in her abdomen.
Suspecting defendant might be pregnant, the teacher notified a school counselor and sent
defendant to the office. Defendant returned to dance class the next day, but started
wearing a hooded sweatshirt in class.
              In October, a school counselor, who had known defendant for over two
years, asked defendant if she was pregnant. Defendant denied being pregnant and
attributed her appearance to a summer weight gain. Defendant said she had taken a
pregnancy test and the results were negative.
              In November, defendant’s English teacher suspected defendant might be
pregnant. The teacher offered to help defendant find resources if she was expecting, but
she denied it. Around the same time, a school health technician asked defendant if she
was pregnant, and again she denied it.

                                              2
              On December 11, the health technician and the counselor once more talked
to defendant about being pregnant. They both told defendant she needed to obtain
prenatal care for herself and the baby if she was pregnant. They also told her she could
continue her education and receive free nutrition services from the school during her
pregnancy and after delivery. They encouraged her to talk to her sister and to seek
medical care. She denied being pregnant, but promised to see a doctor that weekend.
              Four days later, the counselor called defendant into her office to find out
what she had done. Defendant reported she had not seen a doctor over the weekend, but
had scheduled a doctor’s appointment for December 17.
              On December 18, the counselor learned defendant had not talked to her
sister or seen a doctor. The counselor again tried to persuade defendant to seek medical
treatment as soon as possible. Defendant yet again denied the pregnancy to the
counselor, and also to her sister and a coworker.
              On December 22, defendant worked at Sombrero’s. Employees noticed she
made repeated trips to the bathroom throughout her shift, and her final trip lasted several
hours. When the restaurant manger knocked on the bathroom door to check on her,
defendant said she was fine.
              Defendant emerged from the bathroom hours later, carrying a trash bag, and
she took it out the back door to a dumpster in the alley behind the restaurant. This was
out of the ordinary because defendant usually put the trash she collected from the
bathrooms in a trash can in the kitchen for one of the male workers to carry out to the
dumpster. She also had blood on her pants, and there was blood on one of the toilet seats
in the bathroom.
              The restaurant manager called defendant’s sister, Yuliana, to come and help
defendant, and Yuliana and her husband responded. Defendant sat in their truck while
Yuliana finished cleaning the restaurant. Yuliana asked defendant what had happened,
and defendant told her she was menstruating and had gotten blood on her pants.

                                             3
              Defendant continued to bleed heavily the following day, and her brother
took her to a hospital emergency room. At the emergency room, defendant repeatedly
denied she had been pregnant or delivered a baby. Nevertheless, the physician who
treated defendant concluded she had just given birth to a full-term baby. The physician
contacted the police because he was concerned for the baby’s welfare.
              Investigating officers went to the restaurant and searched the bathroom and
dumpster. In the dumpster, the officers found a clear plastic bag that contained the body
of a baby girl, a placenta, and an umbilical cord. In the women’s bathroom, the officers
found a spot of blood underneath a toilet seat. DNA testing established it was
defendant’s blood underneath the toilet seat and in the bag with the discarded baby, and
that defendant was the baby’s mother.
              When interviewed by the officers, defendant repeatedly denied knowing
she was pregnant or that she had delivered a baby. She told them a ball of blood had
come out of her vagina while she was at work, and that she got scared and threw the ball
of blood into the trashcan.
              At trial, the prosecution called Dr. Anthony Juguilon, a forensic
pathologist. He opined defendant gave birth to a live, full-term and viable baby girl. The
baby had numerous ante-mortem abrasions to her forehead, neck and chest, with the
majority to her neck. The baby’s lungs had aerated, which means she took some breaths
before dying. The umbilical cord appeared to have been torn rather than cut. In his
opinion, the baby died of asphyxia within minutes of birth.
Defense Evidence
              Two witnesses testified defendant did not appear pregnant to them, and an
emergency room nurse testified defendant cried when told she had been pregnant. Dr.
Jody Ward, a clinical psychologist testified about pregnancy denial, the phenomena of a
woman being pregnant but refusing to believe it. A woman who has pregnancy denial
does not believe she is pregnant.

                                             4
              Dr. Paul Sinkhorn, a licensed and board certified OB/GYN who has either
delivered or supervised the delivery of approximately 7,000 babies, testified that
sometimes the baby’s shoulders become arrested, which causes the baby to become stuck
in the birth canal after the head has been delivered. If this happens, it is considered a
medical emergency because the baby can die in a matter of minutes. This type of
delivery also causes the mother significant pain and physical injury.
              Dr. Sinkhorn also noted that according to the medical records in this case
the baby’s lungs were partially aerated, but also partially collapsed, which is consistent
with a delivery involving arrested shoulders. And defendant suffered lacerations to her
vulva and vagina during the delivery. He explained the presence of defendant’s blood in
the baby’s mouth and nasal passages could have made it more difficult for the baby to
breath.
              Dr. Sinkhorn testified the baby’s liver suffered lacerations consistent with
an arrested shoulders delivery, and these injuries could be explained if the baby’s chest
was compressed while in the birth canal. He described the abrasions on the baby’s body
as superficial and consistent with fingernail scratches, which could have happened if the
mother clawed at the baby’s head and neck to free her from the birth canal. In Dr.
Sinkhorn’s opinion, the evidence was consistent with defendant having had a traumatic
and difficult delivery without assistance.
              Finally, Dr. Terri Haddix, a forensic pathologist testified the abrasions
found on the baby’s body were consistent with the mother having difficulty delivering the
baby’s shoulders after the head and neck were exposed. The baby’s injuries were also
consistent with an upward pulling from the base of the baby’s neck up toward her chin.
              Dr. Haddix agreed with Dr. Juguilon’s conclusion the cause of death was
asphyxiation due to compression of the neck. However, Dr. Haddix testified the totality
of the circumstances supported a conclusion the baby’s injuries were the result of
pressure being exerted on her neck while the mother tried to pull her from the birth canal.

                                              5
                                       DISCUSSION
1. Expert Testimony and Penal Code Section 29
              This case was actually tried twice. Judge Thomas M. Goethals presided
over the first trial, which ended in a mistrial after the jury was unable to reach a verdict.
In that trial, defense counsel asked Dr. Sinkhorn the following question: “Is [sic] the
findings that you saw in this case, are they consistent with accidental physical injuries to
a fetus occurring during a traumatic and difficult birth without the mother having any
help?” The prosecutor objected citing Penal Code section 29 (section 29), and Judge
Goethals sustained the objection.
              Judge Singer presided over the second trial, which resulted in this appeal.
In this trial, defense counsel wanted to ask Dr. Sinkhorn: “Is the evidence in this case
consistent with accidental physical injuries to a fetus occurring during a traumatic and
difficult delivery without the mother having any help?” Since this question was
essentially the same as the question to which Judge Goethals had sustained the
prosecutor’s objection, defense counsel asked Judge Singer to reconsider that ruling.
              Judge Singer responded, “I see the problem in the same context that Judge
Goethals saw [it]. And that is that that reference to accidental does then allow the expert
to opine that this was a deliberate act on the part of the defendant or a non-deliberate act
on the part of the defendant. And that would be improper for him to do with the jury.”
Judge Singer clarified, “Just to be clear on this record, if you did ask the question the
same way as it appears [in the first trial transcript], and there was an objection to that
question, I would sustain the objection.”
              We review rulings under section 29 for abuse of discretion. (People v. San
Nicolas (2004) 34 Cal.4th 614, 663.) Defendant argues the court erred, because the
proposed question did not concern defendant or her mental state. The Attorney General
argues the court did not err, because the proposed question concerned defendant’s mental
state at the time the fetus was injured. Defendant is correct.

                                               6
              Section 29 states in relevant part, “In the guilt phase of a criminal action,
any expert testifying about a defendant’s mental illness, mental disorder, or mental defect
shall not testify as to whether the defendant had or did not have the required mental
states, which include, but are not limited to, purpose, intent, knowledge, or malice
aforethought, for the crimes charged.”
              Both parties cite cases which discuss the parameters of permissible expert
testimony under section 29, when a mental health expert is testifying about a defendant’s
mental illness, mental disorder, or mental defect. But in this case, the only expert
testifying about any mental illness, mental disorder, or mental defect was Dr. Ward, the
clinical psychologist who testified about pregnancy denial.
              Dr. Sinkhorn, the OB/GYN expert, was testifying about arrested shoulder
delivery, and whether the evidence in this case was consistent with a traumatic and
difficult delivery, without any assistance. Besides, the proposed question sought Dr.
Sinkhorn’s opinion about the baby’s physical injuries not defendant’s mental state.
Consequently, the proposed question did not contravene section 29.
              Additionally, the section 29 ruling constituted an abuse of discretion, since
it transgressed the confines of the applicable principles of law. (Sargon Enterprises, Inc.
v. University of Southern California (2012) 55 Cal.4th 747, 773.) But we need not decide
whether the erroneous section 29 ruling alone was prejudicial, because we reverse based
on instructional error and cumulative prejudice which are discussed infra.
2. Lesser Included Offense Instructions
              Regarding count 1, “Involuntary manslaughter is a lesser offense of murder,
distinguished by its mens rea. [Citation.] The mens rea for murder is specific intent to
kill [express malice] or conscious disregard for life [implied malice]. [Citation.] Absent
these states of mind, the defendant may incur homicide culpability for involuntary
manslaughter. [Citations.]” (People v. Butler (2010) 187 Ca1.App.4th 998, 1006.)



                                              7
              There are two theories of involuntary manslaughter which are relevant in
this case. Both of these theories are codified in Penal Code section 192, subdivision (b),
which states the offense is (1) a killing “in the commission of an unlawful act, not
amounting to felony,” or (2) a killing “in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and circumspection.” The
first theory is commonly referred to as “misdemeanor” involuntary manslaughter, while
the second theory is sometimes referred to as “lawful act” involuntary manslaughter.
              Both of these theories of involuntary manslaughter as a lesser included
offense to murder are covered by the standard form of CALCRIM No. 580, which states
in relevant part: “The defendant committed involuntary manslaughter if: [¶] 1. The
defendant committed (a crime/ [or] a lawful act in an unlawful manner); [¶] 2. The
defendant committed the (crime/ [or] act) with criminal negligence; AND [¶] 3. The
defendant’s acts caused the death of another person.” (CALCRIM No. 580.)
              In this case, the court instructed the jury on second degree murder using
CALCRIM No. 520, and the lesser included offense of involuntary manslaughter on a
lawful act theory using a modified form of CALCRIM No. 580, but not the lesser
included offense of involuntary manslaughter on a misdemeanor theory.
              The modified form of CALCRIM No. 580 actually given on the lesser
included offense of involuntary manslaughter states in relevant part: “The defendant
committed involuntary manslaughter if: [¶] 1. The defendant committed a lawful act in
an unlawful manner; [¶] 2. The defendant committed the act with criminal negligence;
and [¶] 3. The defendant’s act unlawfully caused the death of another human being.”
              Regarding count 2, simple assault (Pen. Code, § 240) is a lesser included
offense of assault on a child with force likely to produce great bodily injury causing death
(Pen. Code, § 273ab(a)). (CALCRIM No. 820, Lesser Included Offenses.) For count 2
the court instructed the jury on the charged offense, but not the lesser included offense.



                                             8
              Defendant argues the court erred by failing to instruct sua sponte on
involuntary manslaughter on a misdemeanor assault theory, as a lesser included offense
to count 1; and on misdemeanor assault, as a lesser included offense to count 2. The
Attorney General acknowledges the court’s sua sponte duty to instruct on all lesser
included offenses supported by substantial evidence (People v. Breverman (1998) 19
Cal.4th 142, 154-155), but argues the evidence does not support giving either of the
omitted lesser included offense instructions in this case.
              We review failure to instruct on lesser included offenses de novo (People v.
Licas (2007) 41 Ca1.4th 362, 366), and consider the evidence in the light most favorable
to the defendant. (People v. Millbrook (2014) 222 Ca1.App.4th 1122, 1137.) “To justify
a lesser included offense instruction, the evidence supporting the instruction must be
substantial . . . .” (People v. Blair (2005) 36 Cal.4th 686, 745, overruled on other
grounds in People v. Black (2014) 58 Cal.4th 912, 920.) Substantial evidence is evidence
from which a jury of reasonable persons could conclude the defendant committed the
lesser offense but not the greater. (People v. Breverman, supra, 19 Cal.4th at p. 162.)
              Applying these principles here, we believe the evidence was sufficient for
the jury to have concluded defendant committed both of the omitted lesser offenses, but
not the charged greater offenses. “As noted, the trial court did not instruct on
misdemeanor manslaughter—an unlawful killing without malice in the commission of an
unlawful act not amounting to felony.” (People v. Lee (1999) 20 Cal.4th 47, 60-61.) The
misdemeanor act is simple assault, which is also a lesser included offense to count 2.
              The elements of simple assault are: (1) defendant did an act that by its
nature would directly and probably result in the application of force to a person; (2)
defendant did that act willfully; (3) when defendant acted, she was aware of facts that
would lead a reasonable person to realize that her act by its nature would directly and
probably result in the application of force to someone; and (4) when defendant acted, she
had the present ability to apply force to a person. (CALCRIM No. 915.)

                                              9
              All of the elements of simple assault are supported by substantial evidence
here. Again Dr. Sinkhorn testified the injuries to the baby’s neck appeared to be
fingernail scratches, consistent with defendant clawing at the baby’s head and neck while
trying to pull her out of the birth canal. Similarly, Dr. Haddix testified the cause of death
by asphyxiation was consistent with defendant exerting pressure on the baby’s neck by
pulling upward from the base while defendant tried to free her from the birth canal.
              Based on this evidence, a reasonable jury could have concluded that by
applying force to the baby’s head and neck during a difficult delivery, defendant was
guilty of simple assault, but not second degree murder or assault on a child with force
likely to produce great bodily injury causing death. Under these circumstances, the court
erred by failing to instruct the jury on involuntary manslaughter on a misdemeanor
assault theory, as a lesser included offense to count 1; and on misdemeanor assault, as a
lesser included offense to count 2.
              We assess erroneous misdirection of a jury, including failure to instruct on
one of several lesser included offense theories, on the basis of the entire cause, including
the evidence, to determine if the error resulted in a miscarriage of justice. (People v.
Breverman, supra, 19 Cal.4th at p. 174.) The error does so only if it appears reasonably
probable a result more favorable to the defendant would have been reached absent the
error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
              In this case, it appears reasonably probable a result more favorable to
defendant would have been reached on both counts absent the error. As discussed, there
is substantial evidence defendant simply assaulted the baby by applying force to the head
and neck. Moreover, the prosecution’s own expert, Dr. Juguilon, could not conclusively
state whether the baby died during or after delivery. Plus the first jury heard essentially
the same evidence and almost evenly deadlocked on both counts. The second jury might
not have convicted her either if they had been properly instructed.



                                             10
              Regarding count 1, the Attorney General responds that because the jury
found defendant guilty of second degree murder and rejected involuntary manslaughter
on a lawful act theory, it is also reasonably probable the jury would have rejected
involuntary manslaughter on a misdemeanor assault theory. We disagree for two reasons.
              First, whether the jury would have rejected involuntary manslaughter on a
misdemeanor assault theory is the wrong standard of review. Even if it was reasonably
probable the jury would have rejected the misdemeanor assault theory, reversal is still
required under Watson as long as there is also a “reasonabl[e] probab[ility]” that it
affected the verdict. (People v. Watson, supra, 46 Cal.2d at p. 836.) Our Supreme Court
has “made clear that a ‘probability’ in this context does not mean more likely than not,
but merely a reasonable chance, more than an abstract possibility. [Citations.]”
(College Hospital Inc. v. Superior Court (1994) 8 Ca1.4th 704, 715.)
              Second, while the mens rea for involuntary manslaughter on both the lawful
act and misdemeanor theories is criminal negligence (People v. Butler, supra, 187
Ca1.App.4th at pp. 1006-1008), criminal negligence is insufficient to establish the mental
state required for assault. (People v. Williams (2001) 26 Cal.4th 779, 788.) Rather, “a
defendant is only guilty of assault if he intends to commit an act ‘which would be
indictable [as a battery], if done, either from its own character or that of its natural and
probable consequences.’ [Citation.]” (Id. at p. 787, italics added.)
              And that mental state is problematic in this case, because we cannot tell
whether the second degree murder verdict here was based on express or implied malice.
The prosecutor argued both theories. As a result, we do not know whether the jury found
defendant actually “intended to kill,” or only “intentionally committed an act;
[¶] . . . [t]he natural and probable consequences of [which] were dangerous to human
life.” (CALCRIM No. 520, italics added.) Of course, the former would necessarily be
inconsistent with involuntary manslaughter on either a lawful act or misdemeanor assault
theory, but the latter would not.

                                              11
              What’s more, the implied malice theory of second degree murder presents a
close question relative to involuntary manslaughter on a misdemeanor assault theory,
because the natural and probable consequences doctrine is a feature of both offenses. But
the implied malice theory presents no such close question relative to involuntary
manslaughter on a lawful act theory, because the natural and probable consequences is
not a feature of both offenses. (Compare CALCRIM Nos. 520 and 580.)
              Regarding count 2, the Attorney General merely argues there is substantial
evidence to support a conviction for assault with force likely to produce great bodily
injury causing death, but not simple assault. Again we disagree. Viewing the evidence in
the light most favorable to defendant as we must, there is also substantial evidence to
support a conviction for simple assault. And once more, there is a reasonable chance
(i.e., more than an abstract possibility) the jury would have reached that result if given the
opportunity to do so.
3. Cumulative Prejudice
              Finally, defendant contends even if the evidentiary and instructional errors
individually do not require reversal, the cumulative prejudice resulting from those errors
does require reversal. Again we agree.
              Defendants are entitled to “‘fair trials’” not “‘perfect ones.’” (People v.
Hill (1998) 17 Cal.4th 800, 844, overruled on other grounds in Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069, fn. 13.) However, individual errors which might otherwise
be harmless can “rise by accretion to the level of reversible and prejudicial error.” (Hill,
at p. 844.)
              This is precisely what happened here. The evidentiary and instructional
errors together had a “negative synergistic effect, rendering the degree of overall
unfairness to defendant more than that flowing from the sum of the individual errors.”
(People v. Hill, supra, 17 Cal.4th at p. 847.) Collectively, the errors limited defendant’s
ability to fully present a defense which was otherwise viable based on the evidence.

                                             12
(People v. Cortes (2011) 192 Cal.App.4th 873, 891-913.) As a result, defendant did not
receive a fair trial. Accordingly, the judgment must be reversed.
                                     DISPOSITION
             The judgment is reversed.




                                                 THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.




                                            13
