Filed 3/28/18 P. v. Jones CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

OLABAKU NORMAN JONES,

Defendant and Appellant.
C077248

(Super. Ct. No. CM039073)




Olabaku Norman Jones beat his girlfriend Mary Abigail Tucker, who died two days later “due to cranial cerebral injury.” A jury found Jones guilty of second degree murder, a lesser included offense of the charged first degree murder. In a bifurcated proceeding, the jury found true allegations Jones had one prior serious felony conviction (Pen. Code § 667, subd. (a)(1)), one prior strike conviction (§§ 667, subd. (d); 1170.12, subds. (b)-(i)), and four prison priors (§ 667.5, subd. (b)).
Sentenced to 38 years to life in state prison, Jones appeals, contending the trial court prejudicially erred in refusing to instruct the jury on involuntary manslaughter as a lesser included offense of murder. We shall conclude that there was no substantial evidence to support such an instruction and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2013, Jones was living with Tucker and his 19-year-old son Olabaku Jones, Jr., (Baku) in Oroville.
On Friday, June 21, 2013, Baku and his girlfriend stayed up all night watching movies at Jones’s house. When they arrived around midnight, Tucker was sleeping outside in a truck. Around 3:00 a.m., Tucker knocked on the window of the house, but Jones refused to let her inside.
Baku and his girlfriend left Jones’s house the following morning, Saturday, June 22, 2013. About 8:00 a.m. that same morning, Jones called the Oroville Police Department’s nonemergency number and told the dispatcher that he and his girlfriend were having “a little verbal confrontation,” he was “tired of her,” and he wanted to know how to prevent her from “bothering” him and coming to his home. The dispatcher explained that the police could not force her to leave the residence if she lived there, but that Jones could go to the courthouse on Monday and apply for a restraining order.
Around 10:00 or 11:00 a.m. the next morning, Sunday, June 23, 2013, Baku and his girlfriend returned to Jones’s house. Jones would not let them inside and told them to go away. As they were leaving, Jones rode up on a bike and said he needed to talk to Baku alone. Baku returned to the house and spoke to his father in the living room. Jones told Baku that he “beat the shit out of Abby [Tucker].” When Baku asked why, Jones replied that he did not know. Jones stated that it happened earlier that morning, around 5:00 or 6:00 a.m. After speaking to Jones, Baku went to his room to get some clothes. On his way to his room, he heard Tucker cough, as if she were struggling to breathe. He also noticed that the bathroom was “destroyed” -- the shower curtain was broken, everything was on the floor, and there was blood “here and there.” Around 10:00 p.m. that evening, Jones called Baku at his girlfriend’s house. Jones was crying and said that he needed Baku to come over and help him with something, but he did not say what it was. Baku remained at his girlfriend’s house.
Around 1:35 a.m. the following morning, Monday, June 24, 2013, Jones called 911 and reported that his “girl” was “hurt,” she “just fell in the shower” and needed medical attention. Firefighters responded to Jones’s residence and contacted Jones. Jones said that Tucker had a seizure, slipped in the bathtub, and hit her head a couple of hours earlier. He told one of the firefighters that he laid Tucker on the bed and another firefighter that she went to the bedroom herself. He later told one of the paramedics that Tucker had fallen in the shower a couple of times. He said he called 911 because she wasn’t acting normal. He also volunteered that he did not move or hit Tucker.
The firefighters made their way to the back bedroom where they found Tucker lying on the bed. She was naked and her hair was soaking wet, while the rest of her body was dry. She was unconscious and had difficulty breathing. She had numerous bruises on the left side of her body and several wounds to her head. One of the firefighters began administering first aid. Shortly thereafter, paramedics arrived and assisted.
Tucker was taken by ambulance to Oroville Medical Center. She was unconscious and presented with several wounds to her head and bruising down the left side of her body. Part of her left ear was missing. A CT scan revealed that she had suffered a severe brain injury.
Tucker was airlifted to Mercy San Juan Medical Center in Carmichael and was treated by neuro-intensive critical care doctor Alex Nee. When she arrived, she did not have any pupil or cornea reflexes, important brain stem reflexes. Severe brain swelling had resulted in injury to her brain stem. The day after she was admitted, she lost her respiratory drive, and the next day, June 26, 2013, it was determined that she was brain dead.
Dr. Nee opined that Tucker’s injuries were not consistent with multiple falls in the bathroom, explaining that her injuries were too “diffuse” and “pervasive.” There were bruises all over Tucker’s skin, injuries to different areas of her head, and her entire brain was swollen. On cross-examination, Dr. Nee allowed that the injury to any one of the areas on Tucker’s head could have been caused by a fall in the bathroom. He also reiterated that the extent of Tucker’s injuries, in particular the amount of brain swelling, was something normally seen when a person is struck by a car, and not as the result of a simple ground level fall. Dr. Nee also testified that about 25 to 30 percent of people who have severe traumatic brain injuries experience seizures, and that people who fall in the bathroom normally do not suffer such injuries.
An autopsy was performed by forensic pathologist Thomas Resk. The autopsy revealed three lacerations to Tucker’s scalp, a fourth to her inner lip, skull fractures, and contusions and abrasions over her face, scalp, and left side of her body. In addition, part of her left ear was missing. The lacerations to her scalp were behind her left ear, one of which was three inches in length. There were at least two skull fractures, one on the left side of her head that was much larger than the three-inch laceration seen externally, and a second on the right side of her head and extending to the back of her head. There also was a contused abrasion on the back, right area of her head. An examination of the brain itself revealed “very significant traumatic brain injuries.”
Dr. Resk testified that the injuries were the result of at least three separate applications of blunt force trauma to the head, all of which were inflicted about the same time. He explained that the bone at the base of the skull is rather thick and a fracture at that location “[r]equires really substantial force like a motor vehicle accident, motorcycle accident, someone getting thrown off a motorcycle and impacting the ground or . . . a guard rail . . . .” He also stated that “it would be some sort of a crushing injury,” requiring “sustained [and] substantial pressure like . . . a person being kicked [or] being stepped on in an industrial setting.” He also opined that Tucker’s injuries were “[n]ot at all” consistent with slipping and falling in a bathtub.
Police found a bent shower curtain rod and many broken shower curtain hooks in the bathroom. There were numerous blood stains on the bathroom walls, on the vanity and toilet, and on the outside of the bathroom door. Some of the stains appeared to be dripping downward along the wall. Many of the blood stains were unusually light in color, as if they had been diluted by water.
Police found additional blood stains on the walls in the hallway and just inside the door from the hall to the bedroom. Unlike the stains in the bathroom, these blood stains appeared undiluted. The prosecution’s forensic expert believed that the pattern of the stains suggested they originated just inside the master bedroom. Police found two nearly-empty bottles of hydrogen peroxide at the scene – one near the bathroom trash can, another on the dresser near the bed. A purple, blood-soaked towel, found in the bedroom, smelled of hydrogen peroxide.
Jones did not testify at trial. The defense called Baku’s former schoolmate who testified that she and Baku had sex once or twice when he was 18 years old and she was 15 years old.
The jury was instructed on first and second degree murder. The defense requested that the court instruct the jury on involuntary manslaughter, based on the grossly negligent commission of a noninherently dangerous felony – infliction of corporal injury on an intimate partner (§ 273.5). The trial court refused to give the instruction, finding legally insufficient evidence to support it.
The jury acquitted Jones of first degree murder, and found him guilty of second degree murder.
DISCUSSION
Jones claims that the trial court prejudicially erred in refusing to instruct the jury on involuntary manslaughter as a lesser included offense of murder. We are not persuaded. Involuntary manslaughter is the unlawful killing of a human being without malice. (§ 192.) As we shall explain, there was no substantial evidence in the record that would support a finding that Jones acted without malice in connection with Tucker’s killing. That is, there is no evidence that would support a finding that he did not engage in conduct that was dangerous to human life or appreciate the risk his conduct posed to Tucker’s life. (§ 188; People v. Bryant (2013) 56 Cal.4th 959, 965 (Bryant).)
A trial court is required “ ‘ “to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.” ’ ” (People v. Avila (2009) 46 Cal.4th 680, 704.) This includes the duty “to instruct fully on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) If there is “ ‘ “substantial evidence” [citation], “ ‘which, if accepted . . . , would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser,” ’ ” then the trial court must give an instruction on the lesser included offense. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) “We review de novo a trial court’s failure to instruct on a lesser included offense [citation], and in doing so we view the evidence in the light most favorable to the defendant.” (Ibid.)
“Murder is ‘the unlawful killing of a human being . . . with malice aforethought.’ (§ 187, subd. (a).) ‘[M]alice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.’ (§ 188.) It is implied when the defendant engages in conduct dangerous to human life, ‘ “knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.” ’ (People v. Bryant (2013) 56 Cal.4th 959, 965 (Bryant); accord, People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun).)” (People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers).)
Involuntary manslaughter is a lesser included offense of murder. (Brothers, supra, 236 Cal.App.4th at p. 30.) In contrast to murder, it is the unlawful killing of a human being without malice. (§ 192.) It is defined by statute as “the unlawful killing of a human being without malice” while engaged in the commission of either (1) “an unlawful act, not amounting to a felony” or (2) “a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192; id., subd. (b).) A person is guilty of involuntary manslaughter under the first statutory theory when he or she commits a misdemeanor that “was dangerous to human life or safety under the circumstances of its commission.” (People v. Cox (2000) 23 Cal.4th 665, 675.) “[W]hile a killing in the course of commission of a noninherently dangerous felony does not appear to be precisely within one of these descriptions,” our Supreme Court has held that “an unintentional homicide committed in the course of a noninherently dangerous felony may properly support a conviction of involuntary manslaughter, if that felony is committed without due caution and circumspection.” (People v. Burroughs (1984) 35 Cal.3d 824, 835.) In addition, the Second District Court of Appeal has held that “an unlawful killing in the course of an inherently dangerous assaultive felony without malice” also constitutes involuntary manslaughter. (Brothers, supra, 236 Cal.App.4th at p. 33.) Relying on Justice Kennard’s concurring opinion in Bryant (56 Cal.4th at p. 973, conc. opn. of Kennard, J.), Jones asserts that “involuntary manslaughter is the appropriate crime in any case where the defendant kills without malice, but in the commission of some underlying felony which does not automatically transform the killing to murder via the felony-murder doctrine.”
Even assuming for argument’s sake that involuntary manslaughter is as broad as Jones contends, the trial court was not required to instruct the jury on that offense because there was no substantial evidence that would support a finding that Jones acted without malice. (§ 192.)
“[W]hen the evidence presents a material issue as to whether a killing was committed with malice, the court has a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense, even when the killing occurs during the commission of an aggravated assault. [Citations.] However, when . . . the defendant indisputably has deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law, and no material issue is presented as to whether the defendant subjectively appreciated the danger to human life his or her conduct posed, there is no . . . duty to instruct on involuntary manslaughter.” (Brothers, supra, 236 Cal.App.4th at p. 35.)
Here, there is no question that Jones deliberately engaged in the type of aggravated assault the natural consequences of which are dangerous to human life, and that he subjectively appreciated the danger to human life his conduct posed. There is no dispute that Jones beat Tucker, who died two days later as a result of catastrophic brain injuries. Dr. Resk testified that Tucker’s injuries were the result of at least three separate applications of blunt force trauma to the head. The force used to cause such injuries was “very substantial.” Both Drs. Resk and Nee testified that Tucker’s injuries were consistent with being struck by or thrown from a motor vehicle, and were inconsistent with a fall in the bathtub. Tucker’s injuries were too diffuse and severe to have been caused by a simple fall. She had contusions and abrasions all over her head and fractures on both sides of her skull, and her entire brain was swollen. On the record before us, no jury reasonably could conclude that Jones’s conduct was not dangerous to human life, or that he did not appreciate the danger his conduct posed to Tucker’s life.
Jones contends that “the nature of the assault, and [his] more than 19-hour delay in seeking help, created a material issue about whether the elements of implied malice were satisfied or whether [he] merely acted with gross negligence.” Specifically, he asserts that “[t]he jury could reasonably have found that even a severe assault was not so inherently likely to result in death or serious bodily injury as to satisfy the objective element of implied malice second degree murder.” As defendant acknowledges, “[a]n act is dangerous to human life . . . when the ‘defendant does an act with a high probability that it will result in death.’ (People v. Watson (1981) 30 Cal.3d 290, 300.)” As detailed above, the nature of the assault, as testified to by Drs. Nee and Resk, established that Jones’s conduct was dangerous to human life. While evidence was presented that Jones told emergency personnel that Tucker had fallen in the shower once or twice, no evidence was presented that would support a finding that she died as a result of such a fall or falls, and not as a result of the beating. To the contrary, both Dr. Resk and Dr. Nee testified that Tucker’s injuries were not consistent with a fall in the bathtub. While Dr. Nee allowed on cross-examination that an injury to one of the areas to Tucker’s head could have been caused by a fall, such a fall or falls would not account for either the severity or pervasiveness of Tucker’s injuries. Contrary to Jones’s assertion, the fact that Tucker “remained alive for some one to two days after her admission to the hospital” does not suggest that the assault was not dangerous to human life, and there was no evidence that Jones’s delay in seeking help contributed to Tucker’s death.
Jones also contends that “[a] jury could reasonably have found that [he] did not act with conscious disregard for the risk to human life created by the assault.” He claims that “[a] juror could reasonably find that [the] element of wantonness is missing in a weaponless assault, undertaken by a single person.” While this may be true in the abstract, it is not the case here. As previously discussed, the uncontested evidence concerning the severity of Tucker’s injuries and the amount of force required to cause them precluded such a finding.
For all the foregoing reasons we conclude that there was no substantial evidence to allow a reasonable jury to find that Jones was guilty of the lesser offense of involuntary manslaughter but not the greater offense of second degree murder. (People v. Millbrook, supra, 222 Cal.App.4th 1122, 1137.) Accordingly, the trial court did not err in refusing to instruct the jury on involuntary manslaughter.
In any event, any error in failing to instruct the jury on involuntary manslaughter was harmless. “The failure to instruct on a lesser included offense in a noncapital case does not require reversal ‘unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.’ [Citation.] ‘Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.’ ” (People v. Thomas (2012) 53 Cal.4th 771, 814, fn. omitted, italics omitted.) Given the uncontested evidence concerning the extent and severity of Tucker’s injuries and the force used to inflict them, there is no reasonable probability that Jones would have obtained a more favorable result had the jury been instructed on involuntary manslaughter.
DISPOSITION
The judgment is affirmed.



/s/
Blease, Acting P. J.


We concur:



/s/
Butz, J.



/s/
Mauro, J.