P. v. Heddings

Filed 7/26/07 P. v. Heddings CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Riverside County, Mark A. Cope, Judge. Affirmed.

Neil Samuel Heddings appeals his conviction of involuntary manslaughter (Pen. Code,^[1]  192, subd. (b)), a lesser included offense of the charged crime of murder ( 187, subd. (a)). The court sentenced him to a six-year term, which was the three-year middle term doubled because Heddings admitted a prior strike conviction.

Heddings contends his conviction must be reversed because (1) the jury's acquittal of the charged count of assault on a child by means of force likely to produce death ( 273ab) necessarily acts as an acquittal of the charged murder/involuntary manslaughter count, and (2) the instructions on aiding and abetting were erroneous. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of November 23, 2002, Heddings discovered his two-and-one-half-year old son, Marcus Heddings, was dead. The cause of death was determined to be abusive head trauma. Both Heddings and his girlfriend, Christine Rams, were charged with murder. The primary issues at trial were the time the head trauma occurred and thus whether it must have been inflicted by Heddings or Rams or could have been inflicted by one of the other people who cared for Marcus in the days and weeks preceding his death.

Marcus was born to Heddings and Susan Moyer in March 2000. Heddings's relationship with Moyer ended and he was given custody of Marcus. Heddings then had a relationship with Christine Rams, who was married and had two children from that relationship. Her younger child, J., lived with her and Heddings. Heddings and Rams had a child together in 2002.

Heddings was a professional skateboarder who traveled in connection with his profession and skateboarding business. He made arrangements with various people to care for Marcus when he traveled. Among the people who cared for Marcus was Janet Rasco. Rasco had noticed Marcus gradually becoming more withdrawn beginning in September 2002, which seemed to correspond with the birth of Rams's and Heddings's child. In October 2002, when she and her husband returned Marcus to Heddings and Rams, Marcus started crying "no," did not want to get out of the car seat, tried to escape from her husband's arms and when Marcus finally accepted that he was being taken inside, he "just kind of shut down." Rasco testified that Rams had told her Marcus did not have any toys in the house; instead, Marcus played with toys belonging to Rams's son. Rams described Marcus as slow and kind of dumb and she thought there was something wrong with him.

Rasco and her husband cared for Marcus from Friday, November 8, to Monday, November 11. Marcus arrived with a black eye. Heddings told her he did not know how it had occurred. Marcus was very subdued and lethargic. Initially, Marcus wanted only to have Rasco hold him, which was very unusual for him. He put his hand to his head and said "ow." He had little scratches all over his body and a bruise behind one of his ears. She had never seen him so sad and hurt. She and her husband discussed calling social services, but decided not to do so because they were afraid that if they did they would never see Marcus again. Over the course of the weekend, Marcus became "much more like himself," with an improved appetite and interest in playing with puzzles and his favorite game.

On Monday, November 11, Rasco brought Marcus to Moyer, as directed by Heddings. Rasco told Moyer that Marcus was not sick, but seemed hurt and sad. Moyer and Marcus seemed happy to see each other.

On November 14, Rasco's son, James Orsborn, picked up Marcus from Moyer. Marcus was happy to see Orsborn. Until early Sunday morning on November 17, Marcus was running around and had a good appetite but then started vomiting as if he had the stomach flu. After consulting with Rasco about whether he should take Marcus to a doctor, Orsborn treated Marcus with Pedialyte and Tylenol. By Monday, November 18, Marcus was much better.

Heddings picked up Marcus on Monday evening. At first, Marcus did not want to leave Orsborn; he "wanted to stay and hang out," he reached and called out to Orsborn, and he cried a little bit. Between Monday, November 18 and Saturday, November 23 when Marcus was found dead, Marcus was in the exclusive care of Heddings and Rams.

On Friday, November 22, 2002, about 2:00 p.m., Rams called her husband. She was crying, stressed about financial matters as well her new baby and said that he needed to take their son, J., who was at her parents' home. She did not mention anything about Marcus. The husband told a police officer the day after Marcus died, that Rams had told him Marcus was "driving her nuts," but at trial the husband denied she said that. Rams's husband described Marcus as a generally lethargic child; he never saw him smile or play but he did see him cry. Marcus was very quiet and slow moving. Rams's husband had seen bruises on Marcus's head, back, shoulder or face and had asked Heddings and Rams about them. They told him that Marcus had fallen. Rams's husband had never seen Marcus fall in a way that would cause an injury and he suspected something else was going on.

On November 23, about 9:00 a.m., Heddings dialed 911 and told the dispatcher that Marcus was dead and he had last seen him alive between 10:30 and 11:00 p.m. the night before. When a deputy sheriff arrived a few minutes later, he first saw Rams in the hallway holding an infant. She was not crying or upset and when the deputy asked if the infant was okay, she pointed toward a back bedroom. Heddings was in a bedroom holding Marcus in his arms. Heddings appeared to be "somewhat shocked." The second deputy sheriff who arrived also described Rams as not appearing to be emotionally upset, while Heddings appeared somber or sad, his eyes were watery and bloodshot as if he had been recently crying and he had a blank stare. Heddings told a deputy sheriff that Marcus had been sick for the past week and said "ouch" whenever anybody touched him. The day before, Marcus had vomited on himself so Rams had given him a bath about 4:30 p.m. and Heddings had last checked on Marcus at about 10:30 p.m. Rams also told a deputy that Marcus had vomited on himself and she had given him a bath at 4:30 p.m. She said Marcus had fallen in the bathtub and hit his head, but she had not told Heddings about the fall. They had both checked on Marcus periodically from the time of the bath to when they went to sleep about 10:30 p.m.

When Heddings and Rams were interviewed on January 27, 2003, both stated that on early Friday morning, November 22, 2002, Marcus had vomited after having been given milk and Heddings gave him a bath. About two hours later, Marcus vomited again and Rams gave him a bath sometime between 10:00 a.m. and noon during which Marcus had fallen. After the fall, Marcus spoke and during the afternoon slept a lot but also visited with Heddings in the office or garage. Heddings put Marcus to bed at about 4:30 p.m. and last checked on him at 10:30 p.m. when he and Rams went to bed.

Heddings and Rams were arrested on March 4, 2003, and placed in a patrol car with a tape recorder. While they were in the car, Rams several times told Heddings not to turn on her. He said he would not. She commented that he had "been acting weird" recently and asked, "Are you in on this?" He denied it. She then said, "God dude, just because the kid has a couple bruises, I don't understand" and expressed concern about what was going to happen to her children. She believed they would release Heddings because "[t]hey don't think you did anything." At one point, she stated, "Fuck I told you Neil, we should have fuckin' ran."

The autopsy determined Marcus died from abusive head trauma. He had 10 to 12 areas of bruising inside his scalp, randomly distributed and on both sides of his head. The head trauma could not have been caused by falling in a bathtub. He had been dead for at least two or three hours before the deputy sheriffs arrived. Marcus also had some older healing injuries, including bruises on his back and under his left armpit. There was testimony that Marcus's earlier black eye was probably not caused by a fall or by Rams's son swinging a plastic toy phone and hitting Marcus; it takes a substantial amount of force to cause a black eye in a child.^[2]

According to the prosecution experts, the head injury was inflicted no more than two days before Marcus died and most likely occurred sometime after he was given a bath on Friday since a child with that type of injury would not have been able to talk or walk. A prosecution expert testified Marcus's lethargy and vomiting in the days prior to his death were unrelated to the traumatic head injury and could have been due to the flu, an ear infection or over-eating.

According to the defense expert, the head trauma did not occur shortly before Marcus died but was at least a week old. According to a defense expert, Marcus's lethargy, crankiness, saying "ow" as he touched his head, and his vomiting were consistent with a head injury and increasing intracranial pressure.

At trial, Heddings testified Marcus had been sick for several days before he died, had been vomiting and sleeping a lot, and had fallen in the bathtub when Rams gave Marcus a bath between noon and 1:00 p.m. on Friday. Heddings had not seen Marcus fall, but heard the fall as he walked down the hall. Heddings walked into the bathroom and asked Marcus if he was okay. Marcus touched the back of his head and said, "Ow, Daddy." Rams said Marcus had fallen. Heddings walked Marcus back to his room and played with him for a little while before Marcus climbed into bed and went to sleep. Marcus came out at one point after the bath and thereafter Heddings did not see him awake that day. Heddings denied seeing Rams do anything to hurt Marcus and had no suspicion she was doing anything to harm him.

Several witnesses testified Heddings was an honest person and a good father.

DISCUSSION

I

Inconsistent Verdicts

The jury acquitted Heddings of assault on a child by means of force likely to produce death ( 273ab) and convicted him of involuntary manslaughter, a lesser included offense of the charged offense of murder. Heddings argues acquittal of the assault charge requires reversal of the manslaughter conviction because he was convicted based on an aiding and abetting theory and the assault was a required element for a voluntary manslaughter conviction on an aiding and abetting theory.

The Legislature has provided that "[a]n acquittal of one or more counts shall not be deemed an acquittal of any other count." ( 954; People v. Panah (2005) 35 Cal.4th 395, 490.) When there are inconsistent verdicts, it may be that " 'error' " has occurred " 'in the sense that the jury has not followed the court's instructions,' " but " 'it is unclear whose ox has been gored.' [Citation.] It is possible that the jury arrived at an inconsistent conclusion through 'mistake, compromise, or lenity.' [Citation.] Thus, if a defendant is given the benefit of an acquittal on the count on which he was acquitted, 'it is neither irrational nor illogical' to require him to accept the burden of conviction on the count on which the jury convicted." (People v. Avila (2006) 38 Cal.4th 491, 600, quoting United States v. Powell (1984) 469 U.S. 57, 65, 69.) The courts will not assume that inconsistent verdicts are acts of stupidity or confusion rather than acts of leniency, compromise or mistake, situations that do not undermine the validity of a verdict. (People v. O'Connor (1992) 8 Cal.App.4th 941, 948; People v. Lewis (2001) 25 Cal.4th 610, 656.) A criminal defendant is afforded protection against jury irrationality or error by the trial and appellate court's independent review of the sufficiency of the evidence to support convictions. (People v. Avila, supra, at p. 601; People v. Lewis, at p. 656.)

Limited judicial exceptions exist to this rule of allowing inconsistent verdicts to stand. It has been broadly stated that "where all of the essential elements of the crime of which the defendant was acquitted are identical to some or all of the essential elements of the crime of which he was convicted, and proof of the crime of which the defendant was acquitted is necessary to sustain a conviction of the crime of which the defendant was found guilty," then the acquittal of the one crime requires acquittal of the crime of which the defendant was convicted. (People v. Hamilton (1978) 80 Cal.App.3d 124, 130, disapproved on other grounds in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12.) However, despite this broad language, this exception has been narrowly applied only to conspiracy cases. (People v. Pahl (1991) 226 Cal.App.3d 1651, 1658; People v. O'Connor, supra, 8 Cal.App.4th 941, 948.) Under this exception, if the jury has acquitted the defendant of all the overt acts alleged for a conspiracy, then a conviction for conspiracy will not be allowed to stand. (In re Johnston (1935) 3 Cal.2d 32, 34-37; contrast People v. Hamilton, supra, 80 Cal.App.3d 124, 130 [noting exception would apply in conspiracy case but was not applicable where the defendant was acquitted of engaging in a speed contest but convicted of felony hit-and-run driving].)

Another exception exists when the jury convicts the defendant of two inconsistent offenses. In People v. Womack (1995) 40 Cal.App.4th 926, the court ruled guilty verdicts for both attempted murder and attempting to persuade the victim to give false or untrue testimony involving the same victim could not both stand. The court held the two verdicts were inconsistent because the two crimes involved irreconcilable mental states. The attempted murder charge required an intent to kill the individual while the other count required an intent to persuade the individual to remain alive and give false or untrue testimony. (Id. at pp. 929-930.) The Womack court resolved the issue by striking the witness tampering conviction. (Id. at p. 934.)

Neither exception applies here. None of the counts involved a conspiracy or overt acts. Nor does this case involve conviction of multiple counts involving irreconcilable mental states Heddings was convicted only of involuntary manslaughter. This case falls under the usual rule that inconsistent verdicts will be allowed to stand and an acquittal of one count will not act as an acquittal of any other count. Although, as Heddings argues, it may be possible that the jury's acquittal of the section 273ab assault charge reflects a finding that he neither inflicted nor abetted the assault, a fact that would undermine his involuntary manslaughter conviction, it is also possible that the acquittal of the section 273ab count merely reflects an act of leniency or compromise and that any mistake that might have existed would have been in their conviction of the involuntary manslaughter count rather than the section 273ab count. Additionally, as we explain below, Heddings was not necessarily convicted based on an aiding and abetting theory.

That Heddings received the benefit of an acquittal on the section 273ab count does not mean he is entitled to reversal of his involuntary manslaughter conviction.

II

Instructional Error

Heddings contends the prosecution's theory was that he was liable as an aider and abettor based on his failure to protect his son. He contends the aiding and abetting instructions, which derived from People v. Culuko (2000) 78 Cal.App.4th 307 (Culuko), were erroneous and misleading because they allowed the jury to find he was an aider and abettor based on a criminal negligence standard rather than based on his having the specific intent to aid or facilitate Rams in the commission of a crime. He contends the error was prejudicial under either the Chapman or Watson standard,^[3] arguing:

"Had the jury found [he] intentionally aided and abetted Rams in her mistreatment of Marcus, a second degree murder conviction would have flowed from the natural and probabl[e] consequences theory. Thus, it is more likely that the jury found that [he] was negligent in the way he reacted to what Rams was doing and that that negligence was insufficient to convict appellant of murder but would support an involuntary manslaughter conviction."

Instructions Given to the Jury

The court instructed the jury generally on aiding and abetting, telling it that "[s]omeone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." (CALCRIM No. 401.)

The court also instructed the jury on the natural and probable consequences doctrine with an instruction derived from Culuko which, in pertinent part, stated:

"One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a perpetrator which is a natural and probable consequence of the crime originally aided and abetted.

"In order to find a defendant guilty of the crime of murder as charged in Count 1, or of involuntary manslaughter, which is a lesser included offense to murder, based upon a theory of aiding and abetting, you must be satisfied beyond a reasonable that:

"1. The crime of felony child endangerment was committed;

"2. The defendant aided and abetted the crime of child endangerment;

"3. A co-perpetrator in the crime of felony child endangerment committed the crime of murder or the crime of involuntary manslaughter;

"AND

"4. The crime of murder or involuntary manslaughter was a natural and probable consequence of the commission of the crime of felony child endangerment.

"In determining whether the crime of murder or involuntary manslaughter was a natural and probable consequence, you must determine whether a reasonable person in the defendant's position would have known that the crime was a reasonably foreseeable consequence of the act aided and abetted. In making this determination, you must consider those circumstances which the defendant knew, taking into account all the facts and circumstances surrounding the particular defendant's conduct."

The court defined felony child endangerment as follows:

"To prove that a defendant is guilty of the crime of felony child abuse or endangerment, the People must prove:

"1. The defendant, while having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child's person or health was endangered;

"2. The defendant caused or permitted the child to be injured or to be endangered under circumstances or conditions likely to produce great bodily harm or death;

"AND

"3. The defendant was criminally negligent when he or she caused or permitted the child to be injured or be endangered. . . ."

The felony child endangerment instruction also defined for the jury the terms "willfully," "great bodily injury," "unjustifiable physical pain or mental suffering," and "criminal negligence."

Finally, the court instructed the jury on involuntary manslaughter:

"When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.

"The difference between murder and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.

"The defendant committed involuntary manslaughter if:

"1. The defendant committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed or committed a lawful act, but with criminal negligence;

"AND

"2. The defendant's acts unlawfully caused the death of another person.

"The People allege that the defendant committed the crime of child endangerment.

"Other instructions tell you what the People must prove in order to prove that defendant committed child endangerment.

"The People also allege that the defendant committed the following lawful act with criminal negligence: fulfilment of the duty to protect Marcus Heddings from abuse or assault.

"Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

"1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;

"AND

"2. A reasonable person would have known that acting in that way would create such a risk.

"In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

"You are instructed elsewhere how to determine whether an act causes death. Great bodily injury is defined elsewhere.

"The People allege that a defendant committed the following lawful act with criminal negligence: fulfilment of the duty to protect Marcus Heddings from abuse or assault. You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one of these alleged acts and you all agree that the same act or acts were proved."

Discussion

When reviewing jury instructions, we review the instructions as a whole to determine whether the jury was correctly instructed. (People v. Guerra (2006) 37 Cal.4th 1067, 1148; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) Further, we presume, in the absence of any evidence to the contrary, that the jurors understood the instructions and followed them. (People v. Holt (1997) 15 Cal.4th 619, 662.)

Heddings does not dispute the jury was correctly instructed on the general standard for aiding and abetting liability, that is, that he could not be held liable as an aider and abettor unless he knew of Rams's unlawful purpose and he specifically intended to, and did in fact, aid, facilitate, promote, encourage, or instigate her commission of the crime. (CALCRIM No. 401; see also People v. Campbell (1994) 25 Cal.App.4th 402, 409.) Nonetheless, he contends that since an individual may be found guilty of felony child endangerment based on a negligence theory, an individual could be found to have been an aider and abettor without the requisite knowledge and intent to aid a crime "and then found guilty of homicide on a natural and probable consequences theory."

This argument was raised and rejected in Culuko. The Culuko court recognized "that, at least ordinarily, mere failure to prevent a crime falls short of aiding and abetting" since "[a]iding and abetting requires that the defendant 'by act or advice, aids, promotes, encourages or instigates[] the commission of the crime,' " but noted that the jury in Culuko was instructed on the requirements for aiding and abetting liability. (Culuko, supra, 78 Cal.App.4th at p. 331, fn. omitted.) The court also observed the jury "was instructed that, to find a defendant guilty of murder under the natural and probable consequences doctrine, it had to find that that defendant aided and abetted the crime of felony child abuse. Thus, arguably the jury could have convicted either defendant of felony child abuse as a principal based solely on inaction. However, it could not have convicted him or her of felony child abuse as an aider and abettor based solely on inaction. It follows that it could not have convicted him or her of murder, under the natural and probable consequences doctrine, based solely on inaction." (Ibid., italics omitted.)

In this case, as in Culuko, the jury was instructed on the requirements for aiding and abetting liability. Additionally, unlike the Culuko case, Heddings was not found guilty of aiding and abetting a murder, the crime Rams was found to have committed. Instead, the jury found Heddings guilty of involuntary manslaughter. Contrary to Heddings's contention, the jury did not necessarily find him guilty on an aiding and abetting theory. As an aider and abettor, Heddings was liable not only for a crime he intended to facilitate, which in this case was identified as felony endangerment, but also for a crime that was actually committed by the perpetrator if that crime was a natural and probable consequence of the crime he intended to aid and abet. (See People v. Prettyman (1996) 14 Cal. 4th 248, 254 ["[A] person who aids and abets a confederate in the commission of a criminal act is liable . . . for any other offense (nontarget crime) committed by the confederate as a 'natural and probable consequence' of the crime originally aided and abetted"].) Since the crime actually committed by Rams in this case was murder, logically, had the jury convicted Heddings solely based on an aiding and abetting theory, they also would have convicted him of murder.

Furthermore, even presuming that the jury ignored the instructions and found Heddings guilty as an aider and abettor based on a criminal negligence standard, we would not reverse. Heddings's complaint is that he might have been convicted of involuntary manslaughter based on a theory of criminal negligence in failing to protect Marcus. Criminal negligence, however, is a proper basis for an involuntary manslaughter conviction. In this case, the jury was specifically instructed that Heddings could be convicted of involuntary manslaughter based on criminal negligence in failing to fulfill his duty to protect Marcus from abuse or assault. Thus, even if the jury arrived at the involuntary manslaughter conviction by way of an aiding and abetting theory and a reliance on criminal negligence, it did not result in any lessening of the prosecutor's burden of proof or any failure to find all the necessary elements of the crime since the crime of involuntary manslaughter in this case was proper upon proof of Heddings's criminal negligence in failing to protect Marcus from Rams's abuse and assault. In sum, there is not the slightest possibility that the verdict would have been different had the Culuko instructions not been given.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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^[1] All statutory references are to the Penal Code.

^[2] Heddings and Rams suggested that Marcus's black eye may have been caused by her son. They said her son used to "whack" Marcus with "stuff," including a plastic toy phone that he swung around by its cord and a "play bat."

^[3]Chapman v. California (1967) 386 U.S. 18, People v. Watson (1956) 46 Cal.2d 818, 836.