Filed 10/21/15 P. v. Hoffman CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN


THE PEOPLE,                                                          B255536

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA097198)
         v.

STEPHEN DOUGLAS HOFFMAN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas
C. Falls, Judge. Affirmed.
         Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Susan Sullivan Pithey
and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.




                                     _____________________________
       Appellant Stephen Douglas Hoffman appeals from his judgment of conviction of
second degree murder (Pen. Code,1 § 187, subd. (a)) and assault causing the death of a
child under the age of eight (§ 273ab, subd. (a)). Hoffman contends that the trial court
prejudicially erred in failing to instruct the jury on witness testimony with CALJIC Nos.
2.20 and 2.27, instructing the jury on the fabrication of evidence with CALJIC No. 2.04,
and instructing the jury on evidence of other child abuse offenses with modified versions
of CALJIC Nos. 2.50.04 and 9.37. He also claims that the trial court erred in denying his
motion for a new trial based on newly discovered evidence. We affirm.

            FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.     The Charges
       In an information filed by the Los Angeles County District Attorney, Hoffman
was charged with the murder of a child, Malaikye (“Kye”) Payne, in violation of section
187, subdivision (a). Hoffman also was charged with the assault of a child under the age
of eight resulting in his death in violation of section 273ab, subdivision (a). Following
Hoffman’s plea of not guilty to each count, the case was tried to a jury.

II.    The Prosecution Evidence
       A.     Hoffman’s Relationship with Kye and His Mother2
       Kye was born on March 29, 2010 to Jazmin Payne. Jazmin ended her relationship
with Kye’s biological father a few months after the birth and did not have any regular
contact with him. In or about January 2011, Jazmin met Hoffman while they were both
working at Disneyland; the two began dating soon thereafter. In March 2011, Jazmin
introduced Hoffman to her son. Hoffman got along well with Kye from the beginning,




1      Unless otherwise stated, all further statutory references are to the Penal Code.
2      For clarity and convenience, and not out of disrespect, we shall refer to Kye and
other members of the Payne family by their first names.


                                             2
and he soon assumed the role of a father in the child’s life. Kye became very attached to
Hoffman and called him “Dada.”
       Jazmin and Kye initially lived with Jazmin’s mother, Kimberly Payne, and her
stepfather, David Payne. In April 2011, Jazmin and Kye moved into the home of her
biological father. Two months later, in June 2011, Hoffman also moved into the home.
Jazmin’s father occupied one bedroom of the home, and Hoffman, Jazmin, and Kye
occupied the other bedroom. Kye slept in a toddler bed with a safety guard that was
approximately one foot off the ground, while Hoffman and Jazmin slept in an adult-sized
bed that was approximately three feet off the ground. The bedroom floor was carpeted.
       In or about June 2011, Jazmin began working nights from 10:30 p.m. to 6:00 a.m.
Kimberly and her husband would babysit Kye a few nights a week, and Hoffman would
care for Kye on his own the other three to four nights that Jazmin was at work. Jazmin’s
new work schedule seemed to disrupt Kye’s sleep schedule, and he began waking up
more frequently during the night. Jazmin also had difficulty putting Kye to bed at night
and it could take up to two hours for the child to fall asleep. Hoffman, on the other hand,
was able to get Kye to sleep without any trouble. Jazmin felt that Hoffman was more
patient with Kye than she was, and he was able to calm the child down at times when she
could not.
       After Hoffman moved in, Jazmin asked him to help discipline Kye by lightly
spanking his hand or swatting his buttocks over the diaper when he misbehaved. Brittany
Adams, Jazmin’s close friend from high school, saw Hoffman spank Kye on the buttocks
four or five times when she was visiting their home. On those occasions, Jazmin asked
Hoffman to discipline Kye because the child was not listening to her and she did not want
to discipline him herself. There were two or three times that Adams saw Hoffman spank
Kye so hard that the child’s knees buckled.




                                              3
       B.     Kye’s Prior Illnesses and Injuries
       Kye was generally a healthy baby. He was crawling at eight months, walking at
10 months, and running at 12 months. He had a brief seizure upon awakening from a nap
when he was 10 months old, and he had a second seizure after a nap when he was 11
months old. Following some testing, Kye’s doctor ruled out a seizure disorder. Kye also
had hemangioma, a small benign mass of blood vessels, surgically removed from his
scalp when he was 12 months old. Kye’s doctor did not order any additional testing or
treatment for these issues.
       By the age of sixteen months, Kye was a rambunctious little boy who loved to run.
At times, he would fall and get small bruises, such as bruises from skidding on his knees;
however, he would get right back up and start running again. There were a few times
when Kye hit his head on an object and sustained a bruise on his forehead while in the
care of Jazmin’s family. On those occasions, Kye would simply get back up and resume
playing. Because of Kye’s frequent bruising, Jazmin asked to have him tested for
anemia. Kye’s doctor agreed to order the test, but Jazmin never took Kye to have the test
performed because she was busy with work. No doctor ever told Jazmin that Kye bruised
easily or might be anemic.
       On one occasion in the summer of 2011, Jazmine observed three small round
bruises on the bottom of Kye’s thigh as she was changing his diaper. Jazmin’s friend,
Adams, also saw the bruises on Kye’s thigh. Jazmin told Adams that the bruises were the
result of Hoffman spanking Kye too hard and that she was going to ask him to stop the
spankings. On another occasion, Jazmin noticed that Kye had a pair of long purple
bruises on the side of his face that extended from his chin to his eye. Hoffman told
Jazmin that Kye had fallen off the couch and onto a dog bone while they were playing in
the living room and she was asleep in the bedroom. A few weeks later, in July 2011,
Jazmin again left Kye in Hoffman’s care while she slept in the other room. Jazmin later
saw that Kye had two black eyes and a cut on his lip. Hoffman told Jazmin that he had
fallen asleep with Kye on the couch and that the child had accidentally rolled off the



                                             4
couch and landed on his face. At the time, Jazmin did not consider any of these injuries
to be suspicious in nature.
       On the night of August 11, 2011, Jazmin’s mother, Kimberly, and her stepfather,
David, babysat Kye at their home. Kye woke up in the middle of the night and refused to
go back to sleep. Kimberly tried to get Kye back to sleep by holding him, rocking him,
and singing to him, but he stayed awake for several hours. Later that day, August 12,
2011, Jazmine picked Kye up from Kimberly’s house. When Jazmin arrived, Kye went
outside to greet her and fell on a porch step. Kye hit his forehead on the grass, but he
immediately got back up and did not appear to be hurt.

       C.     Kye’s Death While In Hoffman’s Care
       On the night of August 12, 2011, Jazmin gave Kye a bath before putting him to
bed. At the time, Kye had a small scrape on the left side of his head from falling on a
cardboard book a few nights earlier. He also had a bruise on the middle of his forehead
from running into a chair at his great grandmother’s house earlier in the week. He did not
have any other bruises on his face or head, and the wounds he had appeared to be healing.
As Jazmin was bathing Kye, he slipped in the tub and bumped the back of his head, but
he did not seem to be hurt. After putting Kye to bed, Jasmin got ready for work.
       Shortly before 10:00 p.m., Jazmin’s friend, Nicole Morones, arrived to babysit
Kye while Jazmin and Hoffman were both at work. When Jazmin left for work around
10:30 p.m., Kye was asleep on his back on a toddler-sized sofa bed in the living room.
Kye woke up once while Morones was babysitting, but went back to sleep when she gave
him a pacifier. Kye was breathing normally as he slept and Morones did not observe any
unusual marks on his face or head. Around 1:00 a.m., Morones’s boyfriend stopped by to
keep her company as she babysat. When Hoffman arrived home a few minutes later, he
picked up Kye from the sofa bed and carried him into the bedroom. Kye woke up at that
time, but he did not cry and appeared to be okay. Morones and her boyfriend then left.
       At around 2:30 a.m., Hoffman sent Jazmin a text message that Kye had fallen off
his toddler bed, along with a photograph of a bruise that was forming on Kye’s forehead.


                                             5
Jazmin immediately called Hoffman and asked him how hard Kye had fallen. Hoffman
told her that Kye had fallen off the toddler bed and landed on a toy alligator, but he was
unsure how hard the fall was because he had been dozing off himself. Jazmin told
Hoffman to keep Kye awake in case he had a concussion, but Hoffman said that Kye
was already asleep. When Jazmin called back an hour later to check on Kye, Hoffman
assured her that the child was fine.
       Jazmin returned home from work around 6:00 a.m. At that time, Kye was asleep
on his back in his toddler bed and appeared to be fine. After giving Kye a kiss on his
forehead, Jazmin went to sleep. Later that morning, Jazmin heard Hoffman trying to
wake up Kye by calling his name. Hoffman told Jazmin that Kye was not waking up.
Jazmin also tried calling Kye’s name and shaking him a bit, but he did not respond.
When Jazmin picked Kye up from his bed, she realized that his body was limp and that
he was struggling to breathe. She immediately called 911.
       Azusa Police Officer John Wachowski was the first officer to respond to the scene.
He arrived at the home shortly after 9:30 a.m. and was met at the front door by Hoffman.
After entering the bedroom, Officer Wachowski saw Kye lying motionless on an adult-
sized bed. He had multiple bruises on his forehead. He also had a small purple bruise on
the left side of his neck just below the jaw line, and small bruises along his left ear.
There was dried blood on Kye’s mouth and tongue and blood stains on the bed where he
was lying. Kye had a pulse at that time, but was unresponsive.
       Officer Wachowski carried Kye outside as emergency medical personnel arrived
on the scene. Los Angeles County Firefighter/Paramedic Matthew Heard immediately
began administering oxygen to Kye, who was limp and not breathing. While examining
Kye, Paramedic Heard observed that the child’s eyes were closed and his pupils were
fixed and dilated. His heart rate was elevated and he had substantial bruising over his
entire forehead. Paramedic Heard believed that Kye’s injuries were consistent with head
trauma, but were not consistent with a fall from a foot-high toddler bed onto a plastic toy,
or with a fall from an adult-sized bed onto a carpeted floor. Kye was transported by
ambulance to Los Angeles County USC Medical Center.

                                              6
       Based on the severity of his injuries, Kye was admitted to the pediatric intensive
care unit on the morning of August 13, 2011. At the time of his admission, Kye had
multiple bruises of varying ages on his head and body. He had bruises on both sides of
his face and head that were only a few hours old. A CAT scan of his brain showed
multiple subdural hemorrhages on both sides of his head over a large area of his brain.
An eye examination revealed numerous retinal hemorrhages in both eyes. Kye was
unresponsive, immobile, and unable to breathe on his own. He had multiple system
failure and no brain function.
       On August 15, 2011, Kye was declared brain dead. When the family gathered to
say their goodbyes, Hoffman initially refused Jazmin’s requests to see Kye one last time.
Hoffman eventually agreed and approached Kye’s bedside with Jazmin, but he would not
look at Kye and showed no emotion.

       D.     The Police Investigation
       Los Angeles County Sheriff’s Detective Ronald Duval was the lead investigating
officer on the case. On the afternoon of August 13, 2011, Detective Duval interviewed
Jazmin and Hoffman at the hospital. Hoffman told the detective that he and Kye had
been asleep when he heard a thud and then saw that Kye had fallen off his toddler bed
and landed on a toy. Hoffman also said that, after helping Kye back into his bed, he
collected all of the toys that were on the floor and put them in a toy chest next to the bed.
       Later that day, during a search of the house, Detective Duval saw a green plastic
alligator on the floor beside Kye’s toddler bed. When Hoffman arrived at the house later
that night, Detective Duval conducted a second interview with him. Hoffman told the
detective that he had placed the toy alligator on the floor that morning to show the
officers who questioned him at the scene how the fall occurred. Hoffman maintained that
Kye had fallen off his toddler bed onto the toy.
       On August 19, 2011, an autopsy was performed on Kye. The autopsy showed that
Kye had 20 to 21 bruises that had been recently inflicted. He had numerous red or purple
bruises on his head and face, including both sides of the forehead, the right chin, the right


                                              7
eye, the left ear, and the tongue. He also had several oval-shaped purple bruises along
the left chin consistent with finger marks. In addition to 19 recently inflicted bruises on
his head, Kye had two older injuries – a scrape on the left forehead and a bruise on the
middle of the forehead – that were both healing. The autopsy further showed several
large subcutaneous hemorrhages underneath the scalp on both sides of the frontal skull,
and retinal hemorrhaging in both eyes. Kye did not have a skull fracture or any injury to
the back of the head or the spine. Some hemorrhaging was observed at the C-3 vertebrae,
but the medical examiner did not find any evidence of a spinal cord injury and attributed
the blood in that area to the child’s brain injuries and the autopsy procedure. The medical
examiner also did not find any evidence that Kye suffered from a pre-existing seizure
disorder or blood clotting disorder.
       According to the medical examiner, Kye’s injuries were not consistent with a child
falling off a one-foot high bed onto a plastic toy or even falling headfirst off a three-foot
high bed onto a carpeted floor. Kye’s injuries were consistent with force being applied to
the head multiple times, such as a repeated punching of the head with a fist or striking of
the head against another object. Even if emergency medical treatment had been provided
to Kye as soon as the injuries occurred, it is unlikely that he would have survived such
devastating injuries. The medical examiner determined the cause of death to be multiple
blunt force injuries to the head inflicted by another.
       On August 21, 2011, Detective Duval interviewed Hoffman a third time when he
and Jazmin came to the sheriff’s station to retrieve their cell phones. Hoffman continued
to claim that Kye had fallen off his bed and landed on a toy alligator. Detective Duval
told Hoffman that Kye had suffered multiple head injuries that were not consistent with a
single fall from a toddler bed onto a toy or carpeted floor. Hoffman did not offer any
other explanation for Kye’s injuries at that time.
       On October 4, 2011, Detective Duval conducted a fourth interview with Hoffman
at the sheriff’s station while Jazmin waited outside. During the first part of the interview,
Hoffman repeated his account that Kye was injured when he fell off his toddler bed onto
the toy alligator. At some point, Detective Duval stopped the interview and asked Jazmin

                                              8
to speak with Hoffman alone. Detective Duval told Jazmin that Hoffman’s story was not
consistent with the injuries that Kye had suffered and she deserved to know the truth. He
also told her that she would be investigated by the district attorney’s office in connection
with the case.
       Once Jazmin was alone with Hoffman in the interview room, she dropped to her
knees and pleaded with him to tell her what happened to Kye. Hoffman told Jazmin that
he had been playing with Kye on their bed and that Kye had fallen off the bed as he was
jumping. Hoffman also told her that he had lied before about how the fall occurred
because he was afraid. Jazmin did not ask Hoffman for any further explanation and she
believed at that time that he was telling her the truth.
       After Detective Duval returned to the interview room, Hoffman recounted this
new version of events in more detail. According to Hoffman, after the babysitter left, he
was playing with Kye on the adult-sized bed because the child had woken up and did not
want to go back to sleep. Hoffman was sitting on his knees and bouncing Kye up and
down on the bed. As Kye was bouncing, he accidentally fell headfirst off the bed and
landed awkwardly on the back of his head onto the carpeted floor. Hoffman did not see
whether Kye hit any object as he was falling and found him face up on the floor next to
the bed. Kye screamed when he fell, but then became quiet and drowsy. Hoffman put
Kye back into his bed and saw a red mark forming on the child’s head. Hoffman decided
to send a photograph of the mark to Jazmin, along with a text message stating that Kye
had fallen off his toddler bed. Hoffman did not tell Jazmin the truth then because he was
afraid of being blamed for the fall and he thought that Kye would be fine in the morning.
       Detective Duval also conducted interviews with Jazmin’s family and friends. All
of the witnesses that were interviewed commented that Kye was clumsy and easily
bruised himself. They also consistently stated that Kye was a happy child.




                                               9
       E.     Hoffman’s Behavior After Kye’s Death
       In the days following Kye’s death, there were times when both Hoffman and
Jazmin seemed detached from the situation. Jazmin was not involved in arranging Kye’s
funeral, and instead left the responsibility to Kimberly and her friend, Heidi Marshman.
On one occasion, Marchman noticed that both Hoffman and Jazmin appeared to be more
concerned about retrieving their cell phones, which had been confiscated by the police,
than helping with the funeral arrangements. Marchman also observed that Hoffman did
not interact much with Jazmin’s family or friends and instead retreated to the bedroom
holding a stuffed animal that had belonged to Kye.
       During Kye’s funeral, Hoffman generally stayed by Jazmin’s side but appeared
expressionless. At a reception held after the funeral, however, Hoffman became angry at
Jazmin because she was spending time with her friends rather than with him. Hoffman
told Jazmin that she should not be with her friends trying to forget about what had
happened. He also said to Jazmin, “This is about me today.”
       In the months following Kye’s death, Jazmin believed that Hoffman was telling
her the truth about how Kye’s injuries occurred. She believed Hoffman’s initial account
that Kye had fallen off his toddler bed onto a toy alligator, as well as his later account
that the child had fallen off the adult-sized bed onto the carpeted floor. Jazmin first
began to question the veracity of Hoffman’s version of events during a conversation
between Hoffman and her parents. As Jazmin was holding Hoffman’s hand, her father
said to him, “If it was an accident, come clean. We’ll still support you.” In response,
Hoffman squeezed Jazmin’s hand tightly and she could feel his heart racing. Although
Jazmin began to have doubts about Hoffman’s story at that time, she still loved him and
wanted to believe that Kye’s death was an accident. She also was afraid that, if Hoffman
had hurt her son, then he could hurt her as well.
       One day in January 2012, Hoffman sent a text message to Jazmin, along with a
photograph of a cut across his wrist. He told Jazmin in the message that she was the
cause of his actions. Hoffman and Jazmin were still living together at that time, but they
were having ongoing problems in their relationship. Jazmin called Hoffman’s family

                                             10
when she received the text and photograph, and they in turn contacted the police. A few
hours later, Jazmin returned home and found a letter on the computer that Hoffman had
written to his parents, which suggested that he had intended to harm himself. Hoffman
later told Jazmin that he had cut his wrists because she was seeing someone else and their
relationship was ending, but he made no reference to Kye. Because Jazmin still loved
Hoffman, she continued to believe that Kye’s death was an accident through the July
2012 preliminary hearing.

       F.     The Prosecution’s Medical Experts
       Dr. Cynthia Stotts, a pediatric hospitalist at Los Angeles County USC Medical
Center, was the attending physician who treated Kye in the intensive care unit. Dr. Stotts
had treated hundreds of toddlers with head trauma and considered the injuries suffered by
Kye to be among the most severe she had ever seen. In Dr. Stotts’s opinion, Kye’s
injuries were caused by severe forces and were not consistent with a one-foot fall onto a
plastic toy or a three-foot headfirst dive onto a carpeted floor. Kye’s injuries were
consistent with a child being struck multiple times on both sides of his head rather than
suffering a single massive blow. None of the actions taken by the medical personnel who
treated Kye would have caused his severe head trauma. Even if Kye had received
emergency medical care as soon as he was injured, it is unclear that he could have
survived because his injuries were devastating.
       Dr. Jeffrey Johnson was the director of the pediatric intensive care unit at Los
Angeles County USC Medical Center and Dr. Stotts’s clinical supervisor. Dr. Johnson
had treated over a hundred toddlers with severe head trauma, and oversaw the medical
treatment of Kye when the child was in the intensive care unit. Kye had substantial
bruising to his head and face when he was admitted to the hospital, and there was no
indication that he suffered any secondary injury while being treated. In Dr. Johnson’s
opinion, the hemorrhaging observed on both sides of Kye’s brain was consistent with
non-accidental or abusive head trauma, caused by a rapid movement of the head in a back
and forth manner. The multiple hemorrhages found in Kye’s retinas also were consistent


                                             11
with repetitive head trauma. Kye’s injuries were not consistent with a fall from a three-
foot bed onto a carpeted floor or even a single severe fall from a higher distance. A
single severe fall or other serious accident was more likely to result in a focal injury at
the point of impact than the diffuse pattern of injury observed in Kye. The laboratory
tests that were performed on Kye upon his admission to the hospital showed blood
clotting abnormalities, but these types of clotting issues were a common byproduct of
severe head trauma and were not indicative of a pre-existing condition. There was no
evidence in Kye’s medical history that he had a pre-existing clotting disorder that could
have caused or contributed to the severity of his injuries.
       Dr. Donald Minckler was an eye pathologist at the University of California at
Irvine. He also performed work for the Los Angeles County Coroner’s Office and would
examine the eyes of deceased babies in suspected cases of abusive head trauma or shaken
baby syndrome. Following the autopsy, Dr. Minckler examined Kye’s eyes and found
that Kye had extensive hemorrhaging in both retinas. There was also evidence of retinal
detachment in both eyes and a completely detached retina in the left eye. Dr. Minckler
explained that there was a strong correlation between abusive head trauma and retinal
hemorrhaging, and that a retinal detachment usually was caused by significant blunt force
such as a punch to the face or head. Based on the damage to Kye’s retinas, Dr. Minckler
suspected that the child’s head was forcibly shaken, but also noted that shaking alone
probably would not result in a retinal detachment. In Dr. Minckler’s opinion, the retinal
damage in Kye’s eyes was not consistent with a fall from a height of one to three feet
onto a toy or carpeted floor, nor could it be explained by a blood clotting disorder.
Instead, Kye’s eye injuries were consistent with non-accidental head trauma, such as a
child being punched with a fist on both sides of the head and forcibly shaken.
       Dr. Carol Berkowitz, a pediatrician specializing in child abuse, reviewed the
medical records concerning Kye’s death. Based on her review, Dr. Berkowitz found that
Kye had suffered multiple bruises on his face and head, multiple subdural hemorrhages in
his skull, and massive retinal hemorrhaging in both eyes. Kye’s severe head injuries
caused his brain to swell, which deprived him of oxygen and rendered him unable to

                                              12
breathe. Kye’s abnormal clotting tests while in the hospital were consistent with severe
head trauma and were not indicative of a pre-existing clotting disorder. There also was
no evidence that Kye suffered a spinal cord injury. In Dr. Berkowitz’s opinion, the cause
of death was abusive head trauma. Kye’s injuries were not consistent with a one to three
foot fall onto a toy or carpeted floor. While a short distance fall could result in a focal
head injury at the area of impact, it would not cause multiple bruises and hemorrhages
on both sides of the head, multiple retinal hemorrhages, or a retinal detachment. The
external bruising on Kye’s face and head was consistent with his head being repeatedly
struck, and the retinal hemorrhaging in his eyes was consistent with the child being
forcibly shaken. Kye’s injuries could have been caused by someone punching his head or
slamming his head into an object, but not by the medical treatment that he received at the
scene or in the hospital.

III.   The Defense Evidence
       A.     Hoffman’s Relationship with Jazmin and Kye
       Michael Adkins, Jazmin’s father, was called as a witness for the defense. Adkins
testified that Kye was a rambunctious little boy who liked to run around the house. There
were times when Kye ran into objects such as walls or furniture, but he would get back
up and continue running. When Jazmin began working at night, Hoffman spent more
time taking care of Kye on his own. Hoffman would watch Kye at night after he returned
home from work between 11:00 p.m. and 2:00 a.m. He also would watch Kye in the
morning while Jazmin was asleep. Adkins recalled one occasion where Hoffman showed
him a mark that Kye had on his mouth after falling off the couch.
       Hoffman’s grandmother and cousin testified on his behalf. His grandmother was a
registered nurse in maternal child care. She first met Jazmin and Kye in May 2011 when
Hoffman brought them to her home for a visit. As Kye ran around the home, she noticed
that he kept slamming his head into the wall and the dining room table. Kye would
whine for a moment when he hit his head and then would get back up and start running
again. During Kye’s subsequent visits to the home, she also observed that Kye often


                                              13
pinched himself on his neck and upper chest, leaving small marks on his skin. Hoffman’s
grandmother and cousin went to the hospital as soon as they learned that Kye had been
injured. They recalled that Hoffman was distraught at the hospital and cried on his
mother’s shoulder when his family arrived. He was also visibly upset at the funeral
services for Kye and fought back tears. Hoffman spent a lot of his time at the hospital
and the funeral comforting and supporting Jazmin.

       B.     The Defense Medical Expert
       Dr. Ronald Gabriel was a pediatric neurologist specializing in the diagnosis and
treatment of brain and spinal cord conditions in children. According to Dr. Gabriel,
medical research has shown that retinal hemorrhages and significant subdural hematomas
are not caused by shaking alone, but also require impact. As a result, the condition
previously known as “shaken baby syndrome” has been reclassified as “shaken impact
syndrome” in the medical community. Research also has shown that falls of less than
five or six feet can produce fatal injuries in children depending on the nature of the fall.
In Dr. Gabriel’s opinion, it was possible for a short fall to cause retinal hemorrhaging and
even retinal detachment in children.
       Dr. Gabriel reviewed Kye’s complete medical history. Based on the laboratory
tests that were performed upon Kye’s admission to the hospital, Dr. Gabriel opined that
Kye had a blood clotting disorder that contributed to the amount of bruising on his skin,
hemorrhaging in his retinas, and bleeding over the surface of his brain. Dr. Gabriel noted
that his opinion that Kye had a clotting disorder was consistent with child’s history of
frequent bruising as reported by his family. Dr. Gabriel further opined that Kye suffered
an impact injury to the front right side of his head that caused significant bruising in that
area and led to the retinal hemorrhaging and intracranial hemorrhaging in both the right
and left sides of the brain. Dr. Gabriel explained that when there is an impact injury to
the head, a clotting disorder can cause the skin to bruise more easily and can make
intracranial and retinal bleeding more significant. Although Kye’s bruising and bleeding
originated from an impact injury, his clotting disorder made such bruising and bleeding


                                              14
worse than it otherwise would have been. Additionally, due to the clotting disorder, the
medical treatment that Kye received at the scene or in the hospital could have caused
some of the bruising that was observed on his head and face, including the long finger-
like bruises on his left chin.
       Dr. Gabriel concluded that the cause of death was a spinal cord injury at the C-3
vertebrae which deprived Kye of oxygen to his brain. The damage to the spinal cord was
evidenced by the hemorrhaging found in the C-3 vertebrae, and there was no indication
that such hemorrhaging was a post-mortem artifact of the autopsy. Kye’s injuries were
consistent with a child jumping and falling headfirst from a three-foot bed, although they
were not consistent with a shorter fall from a one-foot bed. Dr. Gabriel could not opine
whether Kye’s death was intentional or accidental. However, he strongly disagreed with
the medical examiner’s conclusion that the cause of death was multiple blunt force head
injuries. While Dr. Gabriel found that Kye suffered some type of blunt force impact that
caused a spinal cord injury, he disagreed with the medical examiner’s opinion that Kye
had 19 separate impact injuries to the head and had been beaten to death.
       Dr. Gabriel did not believe that the prior seizures or hemangioma that Kye had
during his first year of life were related to his death. He also did not believe that any of
the bruises or scrapes that Kye sustained in the days or weeks before his hospitalization
were contributing factors in his fatal injuries. Instead, the injuries that caused Kye’s
death occurred about six to eight hours prior to his admission to the hospital. Dr. Gabriel
opined that, if Kye had received immediate medical treatment for his injuries, there was a
good chance that he would have survived.

IV.    Verdict and Sentencing
       At the conclusion of the trial, the jury found Hoffman guilty of second degree
murder and assault causing the death of a child. Following the denial of his motion for a
new trial, Hoffman was sentenced to a total term of 25 years to life in state prison.
Hoffman filed a timely notice of appeal from his judgment of conviction.




                                             15
                                        DISCUSSION
I.     Alleged Instructional Error
       On appeal, Hoffman contends the trial court committed four instances of prejudicial
instructional error. He specifically claims the trial court erred in (1) failing to instruct the
jury on witness credibility with CALJIC No. 2.20, (2) failing to instruct the jury on the
testimony of a single witness with CALJIC No. 2.27, (3) instructing the jury on the
fabrication of evidence with CALJIC No. 2.04, and (4) instructing the jury on evidence
of other child abuse offenses with modified versions of CALJIC Nos. 2.50.04 and 9.37.

       A.     Standard of Review
       “‘It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by
the evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.’ [Citations.]” (People v. Diaz (2015)
60 Cal.4th 1176, 1189.) “An instructional error that improperly describes or omits an
element of the crime from the jury’s consideration is subject to the ‘harmless error’
standard of review set forth in Chapman v. California (1967) 386 U.S. 18, 24,” which
requires reversal unless it “appears beyond a reasonable doubt that the instructional error
did not contribute to the jury’s verdict.” (People v. Lamas (2007) 42 Cal.4th 516, 526.)
However, “‘not every ambiguity, inconsistency, or deficiency in a jury instruction rises
to the level of a due process violation. . . . “‘[A] single instruction to a jury may not be
judged in artificial isolation, but must be viewed in the context of the overall charge.’”
[Citation.]’” (People v. Huggins (2006) 38 Cal.4th 175, 192.) “‘“[M]isdirection of the
jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do
not amount to federal constitutional error are reviewed under the harmless error standard
articulated” in [People v.] Watson [(1956) 46 Cal.2d 818, 836].’ [Citations] ‘[U]nder
Watson, a defendant must show it is reasonably probable a more favorable result would
have been obtained absent the error.’ [Citations.]” (People v. Beltran (2013) 56 Cal.4th


                                              16
935, 955.) The arguments of counsel also must be considered in “assessing the probable
impact of the instruction on the jury.” (People v. Young (2005) 34 Cal.4th 1149, 1202.)

       B.     Failure to Instruct the Jury with CALJIC No. 2.20
       Hoffman first claims that the trial court erred in failing to sua sponte instruct the
jury on witness credibility with CALJIC No. 2.20. The Attorney General concedes the
instruction should have been given, but contends that the failure to do so was harmless.
       CALJIC No. 2.20 instructs the jurors that they are “the sole judges of the
believability of a witness and the weight to be given the testimony of each witness,” and
identifies certain factors that the jurors may consider as having “a tendency reasonably
to prove or disprove the truthfulness of the testimony of the witness.” The instruction
comports with section 1127, which requires the court to “inform the jury in all cases that
the jurors are the exclusive judges of all questions of fact submitted to them and of the
credibility of the witnesses.” (§ 1127.) The trial court has a sua sponte duty to instruct
the jury on witness credibility with CALJIC No. 2.20 or its equivalent. (People v.
Horning (2004) 34 Cal.4th 871, 910 [“court should give the substance of CALJIC No.
2.20 in every criminal case, although it may omit factors that are inapplicable under the
evidence”]; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883 [“the substance of the
instruction set forth as CALJIC No. 2.20 should . . . always be given”].)
       In this case, we conclude that the trial court erred in failing to give CALJIC No.
2.20 or an equivalent instruction, but the error was harmless. When the record is
considered as a whole, the other instructions given by the trial court, along with the
arguments of counsel, provided sufficient guidance to the jury on how to assess the
credibility of the witnesses. CALJIC No. 0.50 informed the jurors that they “must
determine the facts from the evidence received in the trial,” and that they “are the judges
of the believability of witnesses.” CALJIC No. 2.21.1 advised that “[d]iscrepancies in a
witness’s testimony or between a witness’s testimony and that of other witnesses . . . do
not necessarily mean that a witness should be discredited,” and that the jury “should
consider whether a discrepancy relates to an important matter or only to something


                                              17
trivial.” CALJIC No. 2.22 instructed the jury that, in weighing conflicting testimony, it
“must not decide an issue by the simple process of counting the number of witnesses who
have testified on the opposing sides,” but instead must consider “the convincing force of
the evidence.” CALJIC No. 2.13 explained that the jury could consider prior inconsistent
or consistent statements made by a witness “not only for the purpose of testing the
credibility of the witness, but also as evidence of the truth of the facts as stated by the
witness on that former occasion.” CALJIC No. 2.81 told the jury that “[i]n determining
the weight to be given to an opinion expressed by any [lay] witness, . . . you should
consider his [or] her believability, the extent of his or her opportunity to perceive the
matters upon which his or her opinion is based and the reasons, if any, given for it.”
       In addition to these standard evidentiary instructions, the trial court instructed the
jury on how to evaluate the credibility of expert witnesses. CALJIC No. 2.80 informed
the jury that, “[i]n determining what weight to give any opinion expressed by an expert
witness, you should consider the qualifications and believability of the witness, the facts
or material upon which each opinion is based, and the reasons for each opinion.”
CALJIC No. 2.83 likewise advised that, “[i]n resolving any conflict that may exist in the
testimony of expert witnesses, you should weigh the opinion of one expert against that of
another” by considering “the qualifications and believability of each witness, the reasons
for each opinion, and the matter upon which it is based.” The overall charge to the jury
thus made clear that the jurors were the exclusive judges of the credibility of witnesses
and the weight to be given the testimony of each witness.
       Here, the central factual issue before the jury was whether Kye’s death was the
result of an accidental fall or abusive head trauma. Because Hoffman did not testify at
trial and no one else was present when Kye sustained his fatal injuries, there were no
percipient witnesses who could describe how those injuries occurred. Instead, the
principal evidence before the jury on the cause of Kye’s death was the testimony
provided by the medical experts. As Hoffman acknowledges, the jury was instructed
specifically on the factors to consider in weighing the opinions of the expert witnesses
and resolving any conflicts in their testimony with CALJIC Nos. 2.80 and 2.83. Hoffman

                                              18
nevertheless asserts that the lay witness testimony also may have contributed to the jury’s
verdict because it supported the theory that he had a propensity for child abuse based on
the witnesses’ observations that Kye had sustained prior injuries while in Hoffman’s care.
However, the instructions that were given by the trial court adequately informed the
jury how to evaluate the testimony of both lay and expert witnesses. Based on these
instructions, the jury was aware that it should evaluate the credibility of each percipient
witness by considering such factors as prior consistent or inconsistent statements made
by the witness, discrepancies in his or her testimony, and the convincing force of the
testimony given. The jury also was aware that, in weighing the opinions of the percipient
witnesses about the suspicious nature of Kye’s prior injuries, it should consider each
witness’s believability, the extent of his or her opportunity to perceive how those injuries
occurred, and the reasons for any belief that those injuries were inflicted by Hoffman.
       Moreover, during closing arguments, both the prosecution and the defense
reminded the jury of its exclusive role in judging witness credibility. Defense counsel
told the jurors that “[y]ou’re the impartial judges of the facts,” and that “you’re the one
that decides what is true and what is false.” The prosecutor advised the jurors that it was
their duty to “evaluate witnesses,” and that they were “the only judges of the believability
of the witnesses.” The prosecutor also explained that, in evaluating the percipient
witness testimony about Kye’s prior injuries, “it is up to you to decide the nature of how
those were inflicted” and “whether there is enough evidence that the defendant inflicted
those injuries.”
       Based on the instructions as a whole, the argument of counsel, and the evidence
presented at trial, it is not reasonably probable that Hoffman would have obtained a
more favorable result at trial had CALJIC No. 2.20 been given. Contrary to Hoffman’s
contention, the omission of the instruction did not constitute structural error requiring the
reversal of his convictions, nor did it rise to the level of a federal constitutional violation.
(See People v. Carter (2003) 30 Cal.4th 1166, 1221 [“the lack of evidentiary instructions
. . . [does] not constitute structural error”]; People v. Carpenter (1997) 15 Cal.4th 312,
393, superseded by statute on another ground as stated in Verdin v. Superior Court (2008)

                                               19
43 Cal.4th 1096, 1106 [“[m]ere instructional error under state law regarding how the jury
should consider evidence does not violate the United States Constitution”].) The failure
to instruct the jury with CALJIC No. 2.20 was therefore harmless.

       C.     Failure to Instruct the Jury with CALJIC No. 2.27
       Hoffman further argues that the trial court erred in failing to sua sponte instruct the
jury on the testimony of a single witness with CALJIC No. 2.27. He also asserts that the
error was prejudicial because his version of events about the cause of Kye’s death was
supported by the testimony of a single expert witness, which, if believed by the jury,
could have resulted in an acquittal.
       CALJIC No. 2.27, entitled “Sufficiency of Testimony of One Witness,” states
in pertinent part: “You should give the [uncorroborated] testimony of a single witness
whatever weight you think it deserves. Testimony concerning any fact by one witness,
which you believe, . . . is sufficient for the proof of that fact. You should carefully
review all the evidence upon which the proof of that fact depends.” CALJIC No. 2.27
“focuses on how the jury should evaluate a fact . . . proved solely by the testimony of a
single witness. It is given with other instructions advising the jury how to engage in the
fact-finding process.” (People v. Gammage (1992) 2 Cal.4th 693, 700.) Contrary to the
Attorney General’s claim, however, the language of CALJIC No. 2.27 does not apply
solely to prosecution witnesses. (People v. Turner (1990) 50 Cal.3d. 668, 696 [rejecting
argument that CALJIC No. 2.27 does not apply to defense witnesses].) Instead, the trial
court has a sua sponte duty to give the instruction “‘in every criminal case in which no
[independent] evidence [corroborating a single witness] is required. . . .’” (Ibid.; see also
People v. Rincon-Pineda, supra, 14 Cal.3d at p. 885 [single-witness instruction “should
be given in every criminal case in which no corroborating evidence is required”].)
       In this case, the principal evidentiary conflict was between the five medical
experts presented by the prosecution and the one medical expert presented by the defense
concerning the cause of Kye’s death. Because Hoffman offered the testimony of a single
expert witness, Dr. Gabriel, to support his claim that Kye’s fatal injuries were caused by


                                             20
an accidental fall rather than abusive head trauma, the trial court erred in failing to
instruct the jury with CALJIC No. 2.27. However, based on the totality of the record,
we conclude that the erroneous omission of CALJIC No. 2.27 was harmless.
       First, the other evidentiary instructions given by trial court sufficiently informed
the jury how to evaluate expert witness testimony, including the testimony of the single
expert presented by the defense. As discussed, CALJIC Nos. 2.80 and 2.83 instructed
the jury on the factors to consider “[i]n determining what weight to give any opinion
expressed by an expert witness” and “[i]n resolving any conflict that may exist in the
testimony of expert witnesses.” CALJIC No. 2.80 also explained that the jury was “not
bound by an opinion” of an expert and should “[g]ive each opinion the weight you find it
deserves.” CALJIC No. 2.22 advised the jury that it was “not required to decide any
issue of fact in accordance with the testimony of a number of witnesses, which does not
convince you, as against the testimony of a lesser number or other evidence, which you
find more convincing.” CALJIC No. 2.22 further cautioned the jury: “You must not
decide an issue by the simple process of counting the number of witnesses who have
testified on the opposing sides. The final test is not in the relevant number of witnesses,
but in the convincing force of the evidence.” Based on these instructions, the jury was
informed that Dr. Gabriel’s status as the sole defense expert did not preclude it from
crediting his opinion over that of the prosecution’s experts if it found his testimony more
convincing. CALJIC No. 2.22, in particular, told the jury that “it is the convincing force
of testimony, not the number of witnesses that is of critical importance.” (People v.
Reyes (2007) 151 Cal.App.4th 1491, 1497.)
       Second, it was never suggested to the jury during closing arguments that an
expert’s opinion had to be corroborated by other experts before it could be credited. To
the contrary, defense counsel told the jurors that they were not bound by the opinion of
any expert, and argued that they should reject the opinions expressed by the prosecution’s
experts as speculative and unreasonable. Defense counsel also urged the jurors to credit
Dr. Gabriel’s testimony on the cause of Kye’s death over that of the prosecution’s experts
because he was the only expert witness who specialized in pediatric neurology and had

                                              21
reviewed Kye’s complete medical history in rendering an opinion. While the prosecutor
argued that Dr. Gabriel’s testimony was flawed in many respects and should be rejected,
she never advised the jury to weigh the evidence by comparing the number of experts
presented by each side, or to disregard Dr. Gabriel’s opinion merely because it was not
supported by other defense experts.
       Third, there was compelling evidence of Hoffman’s guilt. At the time Kye was
admitted to the hospital, he had multiple external bruises on both sides of his face and
head, multiple subdural hemorrhages on both sides of his frontal skull, and massive
retinal hemorrhaging in both eyes. There was no dispute that the injuries that caused
Kye’s death occurred a few hours prior to his admission to the hospital while he was
alone in Hoffman’s care. While Dr. Gabriel testified that Kye’s death could have been
caused by a single fall from a short distance, he stated that he could not offer an opinion
as to whether the death was accidental or intentional. In contrast, there was consistent
testimony from the prosecution’s experts that Kye’s fatal injuries were caused by non-
accidental abusive head trauma. There was also strong evidence of consciousness of
guilt. After Kye sustained an indisputably severe head injury, Hoffman did not seek
emergency medical treatment for the child or even notify anyone that the child had been
seriously injured. Instead, he fabricated a story about Kye falling off his toddler bed
onto a toy alligator. He told that story to Jazmin in a text message and subsequent
telephone call later that night while falsely reassuring her that Kye was fine. He then
repeated that story to the police on several occasions and did not offer a different version
of events until it was made clear to him that Kye’s injuries were not consistent with his
account. In his second version of events, Hoffman claimed that Kye had fallen off the
adult-sized bed and landed awkwardly on the back of his head. However, there was no
evidence of any injury to the back of Kye’s head, and even Dr. Gabriel agreed that the
child’s injuries were not consistent with a single impact to the back of the head.
       On this record, there was no reasonable probability that the jury would have
returned a verdict more favorable to Hoffman had it received the single-witness
instruction. Consequently, the omission of CALJIC No. 2.27 did not constitute reversible

                                             22
error. (People v. Carpenter, supra, 15 Cal.4th at p. 393.) In reaching this conclusion, we
do not suggest that a failure to instruct the jury on how to evaluate certain evidence can
never result in prejudice. Although the omission of both CALJIC Nos. 2.20 and 2.27
were harmless in this case, we strongly caution the trial courts to ensure that each of the
required evidentiary instructions is given. As our Supreme Court has observed, “[t]he
cost in time of providing such instructions is minimal, and the potential for prejudice in
their absence surely justifies doing so.” (People v. Carter, supra, 30 Cal.4th at p. 1222.)

       D.     Instructing the Jury with CALJIC No. 2.04
       Hoffman next contends that the trial court prejudicially erred in instructing the
jury on his alleged efforts to fabricate evidence with CALJIC No. 2.04. He claims the
evidence was insufficient to support the instruction because the jury could not reasonably
infer that he attempted to fabricate evidence concerning the cause of Kye’s injuries.
       The trial court instructed the jury with CALJIC No. 2.04 as follows: “If you find a
defendant attempted to or did fabricate evidence to be produced at the trial, that conduct
may be considered by you as a circumstance tending to show a consciousness of guilt.
However, that conduct is not sufficient by itself to prove guilt and its weight and
significance, if any, are for you to decide.” As the Supreme Court has explained, the
facts giving rise to an inference of consciousness of guilt need not be conclusively
established before CALJIC No. 2.04 may be given. (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 102.) Instead, “there need only be some evidence in the record that,
if believed by the jury, would sufficiently support the suggested inference.” (Ibid.)
Additionally, although the instruction refers to evidence to be produced at trial, “CALJIC
No. 2.04 does not require judicial proceedings to actually be in progress when the attempt
. . . to fabricate evidence is made. It [is] sufficient that the jury could reasonably infer
from the incident that [the] defendant . . . sought to fabricate evidence in anticipation of a
trial.” (People v. Rodriguez (1994) 8 Cal.4th 1060, 1139.)
       In this case, the prosecution presented sufficient evidence to support an inference
that Hoffman attempted to fabricate evidence concerning the cause of Kye’s injuries to


                                              23
deflect culpability from himself. When Detective Duval first interviewed Hoffman at the
hospital, Hoffman told him that, after Kye fell off his toddler bed onto a toy, he collected
all of the toys that were on the floor and put them away in a toy chest. However, when
Detective Duval conducted a search of the home later that day, he found a toy alligator on
the floor next to Kye’s bed. In a follow-up interview with Detective Duvall, Hoffman
then stated that he had taken the toy alligator out of the toy chest and placed it on the
floor so that he could show the officers at the scene how Kye’s fall occurred. Hoffman
continued to claim that Kye had fallen off his toddler bed onto the toy alligator. It was
not until several months later that Hoffman admitted that Kye never fell from his toddler
bed and that he had fabricated the story about the toy alligator because he was afraid of
being blamed for Kye’s injuries. From this evidence, the jury rationally could have
inferred that Hoffman positioned the toy on the floor next to Kye’s bed to support his
false version of events about how the child was injured.3
       Even assuming that the evidence was insufficient to support instructing the jury
with CALJIC No. 2.04 based on Hoffman’s conduct in placing the toy on the floor, any
error in giving the instruction was harmless. CALJIC No. 2.04 merely instructs “the jury
to infer that a particular defendant had a consciousness of guilt only if that defendant had
engaged in the described conduct. Thus, if . . . the prosecution presented no evidence that
[the defendant] tried to . . . fabricate evidence, and no evidence that he authorized anyone


3       Contrary to Hoffman’s claim on appeal, it is not clear from Detective Duval’s
testimony or Hoffman’s recorded interview that Hoffman took out the toy alligator and
placed it on the floor in the presence of the officers. At trial, Detective Duval testified
that Hoffman had told him that he took the toy alligator out of the toy chest, placed it on
the floor, and directed the officers to the toy to show them where Kye had fallen. In his
recorded interview with the detective, Hoffman said that he took the toy alligator out of
the toy chest and showed the officers “more or less what I had seen.” Hoffman also told
the detective, “[Q]uite a few of them wanted to see exactly what had happened . . ., so I
just kind of – in a rush kinda just grabbed it and said, ‘Okay. It was kinda laying in this,
um area, um, that I must’ve left behind like that.” Hoffman never explicitly stated
whether he placed the toy alligator on the floor in the officers’ presence, or did so
privately and then directed the officers to the toy.


                                             24
else to do so, we presume that the jury concluded that the instructions did not apply to
him and it should not infer a consciousness of his guilt.” (People v. Nunez and Satele
(2013) 57 Cal.4th 1, 49; see also People v. Cole (2004) 33 Cal.4th 1158, 1223 [“‘“[a]t
worst, there was no evidence to support the instruction and … it was superfluous”’”].)
       Furthermore by the time of trial, it was undisputed that Hoffman had gone to
considerable lengths to fabricate a story about the cause of Kye’s injuries. As discussed,
shortly after Kye was injured while in Hoffman’s care, Hoffman sent a text message to
Jazmin indicating that Kye had fallen off his toddler bed. He also sent her a photograph
of a bruise forming on Kye’s head, but did not disclose the severity of the child’s head
injury. Hoffman then falsely told Jazmin that night and for several months thereafter that
Kye was injured when he fell off his toddler bed onto the toy alligator. Hoffman repeated
that story to the police in three separate recorded interviews before finally admitting that
it was a fabrication. He also admitted that he had lied to the police in the past because
he was afraid of being blamed for Kye’s injuries. Accordingly, apart from Hoffman’s
placement of the toy on the floor, there was ample evidence before the jury tending to
show a consciousness of guilt. Hoffman has failed to show any prejudicial error in the
giving of CALJIC No. 2.04.

       E.     Instructing the Jury with CALJIC Nos. 2.50.04 and 9.37
       Hoffman also asserts that the trial court committed prejudicial error in instructing
the jury on evidence of other child abuse offenses with modified versions of CALJIC
Nos. 2.50.04 and 9.37. Hoffman argues that these modified instructions erroneously
allowed the jury to infer that he had a propensity to commit a crime of child abuse if it
found that he committed prior acts of child abuse or neglect as defined in section 273a,
rather than willful corporal punishment or injury on a child as defined in section 273d.
       The admissibility of evidence concerning other child abuse offenses is governed
by Evidence Code section 1109, subdivision (a)(3). It provides that “in a criminal action
in which the defendant is accused of an offense involving child abuse, evidence of the
defendant’s commission of child abuse is not made inadmissible by Section 1101 if the


                                             25
evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd.
(a)(3).) “Child abuse” for purposes of this subdivision is defined as “an act proscribed by
Section 273d of the Penal Code.” (Evid. Code, § 1109 subd. (d)(2).) Section 273d
makes it a felony to “willfully inflict[] upon a child any cruel or inhuman corporal
punishment or an injury resulting in a traumatic condition . . . .” (§ 273d, subd. (a).) A
“traumatic condition” has been defined as “‘a condition of the body such as a wound or
external or internal injury, whether of a minor or serious nature, caused by a physical
force.’” (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1160; see also People v.
Gutierrez (1985) 171 Cal.App.3d 944, 951, fn. 6; § 273.5, subd. (d).) The physical
manifestation of a traumatic condition can be shown by bruising or redness. (People v.
Beasley (2003) 105 Cal.App.4th 1078, 1085; People v. Wilkins (1993) 14 Cal.App.4th
761, 771.)
       At the close of the evidence in this case, the prosecutor asked the trial court to
instruct the jury on evidence of other child abuse offenses. The prosecutor argued that
there was circumstantial evidence that Hoffman had committed four “prior bad acts”
against Kye, and that the jury should be allowed to determine by a preponderance of the
evidence whether those acts occurred. Defense counsel objected to the instruction on the
ground that there was insufficient evidence that Hoffman had committed any prior child
abuse crimes. After conferring with counsel off the record, the trial court decided that it
would give a modified version of CALJIC No. 2.50.04 that specifically informed the jury
that the determination of whether Hoffman committed other child abuse offenses was a
matter within its discretion. While preserving her objection to the instruction as a whole,
defense counsel stipulated to the modified language.
       Following a further discussion with counsel off the record, the trial court asked
the prosecutor: “The other crimes you’re alleging are child abuse crimes under [section]
273a(a)?”4 The prosecutor answered, “Correct.” The court then indicated that, after



4      Under section 273a, subdivision (a), “[a]ny person who, under circumstances or
conditions likely to produce great bodily harm or death, willfully causes or permits any

                                             26
reviewing the instruction on a violation of section 273a, subdivision (a) with both parties,
it had “deleted everything relating to negligence” from the instruction at the request of
the defense. The court asked defense counsel: “And with your initial objection to the
instruction as a whole, that is, the other crimes and this, noted for the record, do we agree
on this instruction?” Defense counsel responded, “Correct.”
       The trial court thereafter instructed the jury with a modified version of CALJIC
No. 2.50.04, which provided, in relevant part: “You have heard evidence of prior injuries
the victim has sustained. Whether or not these injuries were caused by the defendant are
matters within your discretion to decide. You should consider all relevant evidence
including whether the defendant committed any other child abuse acts, whether charged
or uncharged, about which evidence has been received. The term ‘child abuse’ as used in
this instruction means conduct that a person engages in that violates Penal Code section
273d. If you find by a preponderance of the evidence that the defendant committed a
violation of Penal Code section 273d, you may, but are not required to, infer that the
defendant has a disposition to commit another offense involving child abuse. If you find
that the defendant had this disposition, you may, but are not required to, infer that he was
likely to commit and did commit the crime or crimes of which he is accused.”
       A violation of section 273d was not defined in CALJIC 2.50.04 or elsewhere in
the instructions. Instead, the jury was instructed on the definition of a violation of section
273a with CALJIC No. 9.37. The modified version of CALJIC No. 9.37 given by the
trial court stated that “[e]very person who, under circumstances or conditions likely to
produce great bodily harm or death, willfully inflicts unjustifiable physical pain or mental
suffering on a child, or willfully causes or, permits a child to suffer unjustifiable physical
pain or mental suffering, or has care or custody of a child and willfully causes the child’s
person or health to be injured, is guilty of a violation of Penal Code section 273a,

child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or
having the care or custody of any child, willfully causes or permits the person or health
of that child to be injured, or willfully causes or permits that child to be placed in a
situation where his or her person or health is endangered,” is guilty of a felony.


                                              27
subdivision (a), a crime.” The term “unjustifiable physical pain or mental suffering” was
defined in the instruction as “pain or suffering which is not reasonably necessary or is
excessive under the circumstances.” The term “great bodily harm” was defined as a
“significant or substantial injury.” The instruction further provided that, “in order to
prove this crime, each of the following elements must be proved: 1. A person willfully
inflicted unjustifiable physical pain or mental suffering on a child; or 2. [A] person . . .
had care or custody of a child and willfully caused the child to be injured.”
       On appeal, Hoffman does not challenge the trial court’s decision to instruct the
jury that it could infer a propensity to commit child abuse in accordance with CALJIC
No. 2.50.04. He acknowledges that CALJIC No. 2.50.04 correctly informed the jury that
“child abuse,” as used in the instruction, “means conduct that a person engages in that
violates Penal Code section 273d.” Hoffman contends, however, that the trial court erred
in giving CALJIC No. 9.37 because that instruction incorrectly defined “child abuse” for
purposes of inferring propensity as an act proscribed by section 273a rather than section
273d. Hoffman further claims that the error was prejudicial because it allowed the jury to
infer that he had a propensity to commit child abuse if it found that Kye’s prior injuries
while in Hoffman’s care were caused by mere negligence.
       We conclude that the trial court erred in instructing the jury on evidence of other
child abuse offenses. As discussed, the Evidence Code expressly limits the admissibility
of prior child abuse crimes to support a propensity inference to “an act proscribed by
[s]ection 273d.” (Evid. Code, § 1109, subd. (d)(2).) In requesting that a propensity
instruction be given in this case, however, the prosecutor did not allege that any of the
prior child abuse crimes committed by Hoffman were violations of section 273d. Rather,
when asked by the trial court, the prosecutor affirmed that the other child abuse offenses
being alleged by the People were “child abuse crimes under [section] 273a(a).” Because
the prosecutor never contended that Hoffman had committed a violation of section 273d,
defense counsel’s objection to the propensity instructions as a whole should have been
sustained. We conclude, however, that the trial court’s error in giving the propensity



                                              28
instructions with a modified definition of a violation of section 273a was harmless under
the circumstances of this case.5
       Sections 273a and 273d “have been described as ‘related statute[s].’” (People v.
Sargent (1999) 19 Cal.4th 1206, 1219). Section 273d, subdivision (a) proscribes the
willful infliction of corporal punishment or injury on a child resulting in a traumatic
condition, which includes both minor and serious injuries. (People v. Cockburn, supra,
109 Cal.App.4th at p. 1160.) Section 273d does not require “‘a deliberate intent to cause
a traumatic condition, but only the more general intent to inflict upon a child any cruel or
inhuman corporal punishment or injury.’” (People v. Sargent, supra, at p. 1220.) Section
273a, subdivision (a) “proscribes essentially four branches of conduct” consisting of
(1) willfully inflicting unjustifiable physical pain or mental suffering on a child,
(2) willfully causing or permitting a child to suffer unjustifiable physical pain or mental
suffering, (3) willfully causing or permitting a child in one’s care or custody to be
injured, or (4) willfully causing or permitting a child in one’s care or custody to be
placed in an endangering situation. (People v. Valdez (2002) 27 Cal.4th 778, 783.)
While the first category of conduct is a general intent crime, the mens rea for the other
three categories is criminal negligence. (In re L.K. (2011) 199 Cal.App.4th 1438, 1445.)


5      The Attorney General argues that Hoffman invited the alleged instructional error
because his trial counsel requested the modification to CALJIC No. 9.37 about which
he now complains. We disagree. While some of the discussion about the instruction
was held off the record, it is clear that defense counsel objected to the jury receiving any
instruction on evidence of other child abuse offenses, and only agreed to the modified
language in CALJIC No. 9.37 after the trial court ruled that it would give a propensity
instruction. The record also reflects that the prosecutor specifically informed the trial
court that the other child abuse offenses alleged by the People were crimes under section
273a. There is no indication in the record that the defense requested that the alleged prior
offenses be defined as acts proscribed by section 273a rather than section 273d, or that
the application of 273d was ever addressed by the parties or the court. On this record,
defense counsel’s objection to the propensity instructions as a whole was sufficient to
preserve the issue for appeal. (People v. Moon (2005) 37 Cal.4th 1, 29, fn. 4 [rejecting
invited error claim where “defense counsel merely acquiesced to the instruction, and
the record does not show whether counsel’s decision was a tactical one”].)


                                              29
Although there is no requirement that a child actually suffer a great bodily injury, section
273a, subdivision (a) is “‘“intended to protect a child from an abusive situation in which
the probability of serious injury is great.”’” (People v. Valdez, supra, at p. 784.)
       In giving CALJIC No. 9.37, the trial court did not instruct the jury on each of the
four categories of conduct proscribed by section 273a. Instead, the trial court modified
the instruction to remove from the jury’s consideration evidence of negligent conduct
toward a child that did not involve a direct infliction of harm. As modified, CALJIC No.
9.37 limited a violation of section 273a to “willfully inflict[ing] unjustifiable physical
pain or mental suffering on a child,” or “hav[ing] care or custody of a child and willfully
caus[ing] the child to be injured.” The effect of these modifications was to make the
mens rea for the conduct proscribed by section 273a, as set forth in the instruction,
substantially similar to the mens rea for the conduct proscribed by section 273d. It is
true, as Hoffman points out, that the trial court failed to excise every reference related to
negligence from the version of CALJIC No. 9.37 that was given to the jury. The term
“willfully,” for instance, continued to be defined in the instruction as “with a purpose or
willingness to commit the act or make the omission in question.” However, when the
modified instruction is considered as a whole, it did not permit the jury to infer a
propensity for child abuse merely by finding that Kye had been injured in the past due to
Hoffman’s negligence. Instead, it required the jury to find that Hoffman intentionally
had caused the child’s prior injuries.
       Consistent with the modified version of CALJIC No. 9.37 that was given by the
trial court, both the prosecutor and the defense counsel informed the jury during closing
arguments that it could only infer that Hoffman had a propensity to commit child abuse
if it found that he had inflicted Kye’s prior injuries. In describing the prior injuries that
Kye had sustained while in Hoffman’s care, the prosecutor told the jury, “[I]t is up to you
to decide the nature of how those were inflicted” and “whether there is enough evidence
that the defendant inflicted those injuries.” The prosecutor also explained that the jury
had heard evidence of “four different instances where Kye turned up injured when the
defendant was watching him,” and that if the jury found by a “preponderance of the

                                              30
evidence . . . that the defendant inflicted those, [it] could use that evidence to say that he
has a propensity for hitting Kye.” Although defense counsel did not specifically address
the propensity instructions in her closing argument, she did assert that the prior injuries
suffered by Kye were not consistent with physical abuse and noted that the child had
sustained similar bumps and bruises while in the care of Jazmin and her family. Defense
counsel also told the jury, “You can’t say that every time an injury happened in
[Hoffman’s] care it’s intentional, but if it happened with somebody else, it’s not
intentional. You can’t say that.” The arguments of both counsel made clear that the jury
had to find that Hoffman intentionally inflicted the prior injuries before it could infer
from such evidence that he had a propensity to commit child abuse.
       Moreover, based on the evidence presented at trial, the prior injuries that Kye
sustained while in Hoffman’s care consisted of suspicious bruises on his face and thigh
and a cut on his lip. If the jury had been instructed on a violation of section 273d with
CALJIC No. 9.36, as was required, it would have been informed that “an injury resulting
in a traumatic condition” includes any “wound or external or internal injury, whether
of a minor or a serious nature, caused by a physical force.” A properly instructed jury
thus could have inferred a propensity for child abuse if it found that Hoffman willfully
inflicted any prior physical injury on Kye, even if such injury was minor in nature.
The modified version of CALJIC No. 9.37 that was given by the trial court similarly
allowed the jury to infer a propensity for child abuse if it found that Hoffman willfully
caused Kye to be injured in the past, but also required the jury to find that such injury
occurred under circumstances that were likely to produce great bodily harm. Given this
language, there is no reasonable probability that the jury could have reached a result more
favorable to Hoffman if it had been instructed with CALJIC No. 9.36 rather than the
modified version of CALJIC No. 9.37 that was provided in this case.
       Finally, as discussed, there was ample evidence that the fatal injuries suffered
by Kye while in Hoffman’s care were the result of abusive head trauma. Kye’s head
injuries were devastating in nature and were described by the child’s attending physician
as among the most severe she had ever seen. Each of the prosecution’s medical experts

                                              31
similarly testified that the injuries were consistent with multiple blunt force trauma
inflicted by another, and were not consistent with a single impact fall from a height of
one to three feet. It was undisputed that Hoffman did not seek immediate medical aid for
Kye after the child was seriously injured, and he later repeatedly lied to the police about
how the injuries occurred. Based on the totality of the record, the error in instructing the
jury on evidence of other child abuse offenses was harmless.

II.    Denial of Motion for a New Trial
       Hoffman contends that the trial court violated his constitutional rights when it
denied his motion for a new trial. Hoffman specifically claims that he was entitled to a
new trial based on newly discovered evidence that Dr. Minckler, the prosecution’s eye
pathology expert, sought the payment of expert witness fees after the trial concluded.

       A.     Relevant Background
       At trial, Dr. Minckler testified that he found extensive retinal hemorrhaging as
well as evidence of retinal detachment in both of Kye’s eyes, and that the child’s eye
injuries were consistent with non-accidental head trauma. On redirect examination, the
prosecutor asked him, “Dr. Minckler, our office didn’t pay you any money to come here,
right?” Dr. Minckler replied, “No, unfortunately.”
       On April 7, 2014, the prosecutor informed both the trial court and defense counsel
in writing that, after the trial had concluded, Dr. Minckler submitted a $1,275 bill to the
District Attorney’s office for 4.25 hours of work, consisting of 2.25 hours of travel time,
0.5 hours in a pretrial meeting with the prosecutor, and 1.5 hours of trial testimony. In a
subsequent telephone call with the prosecutor, Dr. Minckler explained that, when he
examined Kye’s eyes at the request of the coroner’s office, he was on salary at the
University of California at Irvine; however, he had since retired and now charged $300
per hour for his time. Dr. Minckler also indicated that he was willing to waive his fee
altogether in this case. The prosecutor advised the trial court and defense counsel that the
her office had decided to reimburse Dr. Minckler for his travel time only.



                                             32
       On April 9, 2014, the trial court held a hearing on a written motion for a new trial
filed by Hoffman. At that time, defense counsel orally requested that the newly disclosed
evidence regarding Dr. Minckler’s fee be added as an alternative ground for the motion.
Defense counsel pointed out that Dr. Minckler had testified that “he was not going to be
paid knowing that he was the one that was going to submit the order for payment.” The
trial court noted that, when Dr. Minckler performed his eye pathology analysis, “he was
an employee for U.C.I., which, apparently was the medical facility that was contracted
out by the coroner’s office to handle these examinations.” The court then stated: “So I
think it could simply have been a misunderstanding. . . . I’m going to deny the motion
for new trial. I don’t believe that it was a material fact that affected the jury’s decision
whether or not he was paid. . . . And in the end, he’s not getting paid. He’s getting
reimbursed for mileage, which . . . we would do for any witness.”

       B.     Standard of Review
       The trial court may order a new trial when “new evidence is discovered material to
the defendant, and which he could not, with reasonable diligence, have discovered and
produced at trial.” (§ 1181, subd. 8.) “‘In ruling on a motion for new trial based on
newly discovered evidence, the trial court considers the following factors: “‘1. That the
evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not
cumulative merely; 3. That it be such as to render a different result probable on a retrial
of the cause; 4. That the party could not with reasonable diligence have discovered and
produced it at the trial; and 5. That these facts be shown by the best evidence of which
the case admits.’” [Citations.]’ [Citation.]” (People v. Howard (2010) 51 Cal.4th 15, 43.)
“‘In addition, “the trial court may consider the credibility as well as materiality of the
evidence in its determination [of] whether introduction of the evidence in a new trial
would render a different result reasonably probable.” [Citation.]’ [Citation.]” (Ibid.) The
trial court’s decision to deny a new trial motion based on newly discovered evidence is
reviewed for an abuse of discretion. (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.)
Indeed, “‘“[t]he determination of a motion for a new trial rests so completely within the


                                              33
court’s discretion that its action will not be disturbed unless a manifest and unmistakable
abuse of discretion clearly appears.”’” (People v. Carter (2005) 36 Cal.4th 1114, 1210.)

       C.     The Trial Court Properly Denied the Motion for a New Trial
       In this case, the trial court did not abuse its discretion in denying Hoffman’s
motion for a new trial because it is not reasonably probable that the newly discovered
evidence concerning Dr. Minckler’s post-trial fee request would lead to a different result
on retrial. As Hoffman acknowledges, there was no evidence that Dr. Minckler expected
to be provided with a certain sum of money from the District Attorney’s office when he
rendered an expert opinion on the cause of Kye’s injuries. At the time he performed his
eye pathology analysis for the coroner’s office, he was employed by the University of
California at Irvine and did not expect to receive any payment for his work other than his
regular salary. Dr. Minckler accordingly had no financial incentive to render an opinion
favorable to the prosecution when he concluded in his report that Kye’s eye injuries were
consistent with non-accidental head trauma. In addition, Dr. Minckler’s opinion about
the cause of Kye’s death was consistent with the opinions offered by the prosecution’s
four other medical experts, each of whom received no more than his or her regular salary
in connection with their testimony.
       Moreover, there is no evidence that Dr. Minckler ever received any compensation
from the District Attorney’s office for his testimony at trial other than reimbursement
for his travel time. Indeed, when the prosecutor contacted Dr. Minckler about his fee
request, he told her that “he did not care if he got paid in this case” and “asked [her] to
tear up the bill.” While a jury on retrial would hear that Dr. Minckler had submitted a bill
to the District Attorney’s office in anticipation of being compensated for his time, it also
would hear that he had expressed a willingness to forego any payment of fees. Under
these circumstances, the newly discovered evidence that Dr. Minckler’s sought payment
for his expert witness testimony could not have “render[ed] a different result probable on
a retrial.” (§ 1181, subd. 8.) The trial court accordingly did not abuse its discretion or
violate Hoffman’s constitutional rights in denying the new trial motion.


                                              34
                                    DISPOSITION
      The judgment is affirmed.




                                         ZELON, Acting P.J.



We concur:




      SEGAL, J.



                      
      BECKLOFF, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                           35
