*1 Dist., G000570. Fоurth [No. Div. Three. Dec. 1984.] PEOPLE, THE Plaintiff and Respondent, DELLINGER,
LELAND ROY Defendant and Appellant.
Counsel the Court of Defender, Denvir, under
Quin State Public appointment Defenders, Powell, Public State Patra Woolum and Therene Deputy Appeal, for Defendant Appellant. Millar, Jr., A. General, K. de Frederick R. Attorney
John Van Kamp, General, for Gonzalez, Attorneys Wells Petersen and M. Deputy Raquel Plaintiff and Respondent.
Opinion de- first WALLIN, Dellinger, Leland guilty found A jury appellant, J. court denied The trial murder his Jaclyn. gree two-year-old stepdaughter, trial, the conviction second motion for new but reduced Dellinger’s *6 by Dellinger preju- out Since of the errors pointed murder. several degree be reversed. trial, must diced his to receive a fair the conviction ability When 29, 1979, a babysitter. from May Jaclyn On Dellinger picked up mother, work (Pena), shortly her home from Diana Pena arrived Dellinger stairs for her to From Dellinger hurry. top after 6 called p.m., who bending Jaclyn, over on the and she saw Dellinger talking telephone was the stove and counter. A on unconscious the kitchen lying pan was was Jaclyn breathing. Pena if above the stairs was asked gate open. fist, said, “Jackie, with his counter cry, banged Dellinger began are this to me?” you doing why admin- was at 6:13 arrived the apartment p.m.
Paramedics to the Jaclyn rushed The paramedics mouth to mouth resuscitation. istering where she died at 7:45 p.m. hospital
The police about questioned Dellinger injuries. He stated that Jaclyn’s after home with returning he dinner and left Jaclyn, her began preparing watching television. He heard a thud and kitchen rushed out to find Jaclyn on the lying first landing staircase. He carpeted immediately moved her to the kitchen admitted counter and called the He paramedics. her giving wine that afternoon. Pena testified that returning upon she apartment, saw a bottle baby much full” of wine. The toxicol- “pretty found no ogist alcohol in Jaclyn’s blood.
After Fukumoto, completing first Dr. Richard a autopsy, pathologist, determined the major cause of death was brain due to blunt swelling head, force trauma to the with a skull fracture. He ruled the cause of death was accidental. There was evidence of a fracture of the lower spiral type left leg caused a probably by motion exerted another twisting by person. Three months later results were received toxicological by coroner show- ing of cocaine in presence Jaclyn’s blood and in her large quantities liver and stomach. Dr. Fukumoto then determined that cocaine was proba- ably cause of her He contributing death. contacted Dr. Thomas Noguchi, Coroner for Ward, Los Angeles who consulted with Dr. a County, Carley biomedical engineer. conducted a further Together they into investigation Jaclyn’s death.
aAs result of her Dr. Ward concluded the investigation, force of a fall down the stairs could not have caused the Dr. Fu- injuries Jaclyn suffered. kumoto thereafter recharacterized the cause of death as criminal and Dr. trial, concurred. At Noguchi Dr. testified the Noguchi injuries were caused a fall down the stairs. A second in June of showed autopsy, a contusion of the cervical cord which resulted from the spinal probably sаme blunt force the head causing injury.
The defense two re- produced testify could have experts Jaclyn ceived her Goldsmith, from a fall injuries down the stairs: Dr. Werner mechanical Root, engineer and Dr. impact specialist, Irving pathol- for the ogist San Bernardino County Coroner’s office.
Jaclyn’s babysitter allowed to that one she testify day April *7 noticed a on lower back. When purplish handprint Jaclyn’s Dellinger picked afternoon, that up Jaclyn he said he had but spanked Jaclyn during night did not realize how hard he hit her until he saw the bruise the next morning.
The death, babysitter also testified that three before her weeks Jaclyn could not walk. The doctor and a babysitter Jaclyn took to the cast was put on her left removed, Ten later but continued leg. days the cast was Jaclyn Pena that testified clumsy. She been always trouble had having walking. because new shoes. could not walk of Jaclyn orthopedic death and Jaclyn’s five before Pena were married months Dellinger and to was allowed tes- Pena Jaclyn. had to Dellinger begun adopt proceedings no knowl- married but she had used before were tify they cocaine Dellinger he She assumed into the using moving apartment. his cocaine since edge before two months no She further testified about was it. longer using she com- death, calm her down after wine to Jaclyn Jaclyn’s Dellinger gave denied ever giving did not cocaine and her Pena use leg. plained pain or narcotics alcohol. Jaclyn into the to move
The had not wanted the manager Dellingers apartment However, for child. dangerous because the stairs were a small apartment a he relented when installed latticework Dellinger gate. at the
In the a examination fall of submitted to Dellinger polygraph Dellinger determined examiner Orange Police Department. polygraph After an evidentiary hearing, truthful in his denial of offense. appeared the trial to testimony. court refused admit the examiner’s
I a biomedical Was a established admission proper for foundation the injury amount needed to sustain engineer’s expert opinion offorce head? child’s opin- Dr. Ward’s objected Carley expert introduction of failed meet their ion as a biomedical He contends the engineer. tech- burden scientific underlying threshold proving reliability field trial court found the After lengthy evidentiary hearing niques. testimony supported biomechanics was not new and introduction of Club, Inc. 112 Cal.App.3d Pineda v. Los Angeles somewhat Turf to determine the Dr. Ward used two techniques 66]. if had fallen down have she amount of force head could sustained Jaclyn’s analysis. finite element dummy experiments the stairs: anthropomorphic Dummy Experiments A. The Anthropomorphic in height similar dummy Jaclyn
Dr. Ward obtained an anthropomorphic occurred and had the injury She went to the where weight. apartment different many posi- from down the stairs officer police drop dummy to incur her fallen backwards tions. Ward determined must have Jaclyn Dr. fallen further than not have Jaclyn head She concluded could injuries. also *8 the fifth without step The fifth being pushed. was selected as the site step of the worst She impact. did not stage any falls from the above the railing stairs. metal,
The dummy metnite, had a special on the back of its head. From metal, indentations Ward Dr. determined the amount of force the head sustained on She impact. measured the indentations and then referred to a chart prepared General Motors. The chart indicated the force from the test falls was However, 17.95 pounds inch per square (p.s.i.). relying criteria,” on “known determined injury she it would take 34 p.s.i. cause the brain and skull damage fracture suffered by Jaclyn. She concluded from the dummy could experiment Jaclyn not have sustained her injuries from a fall down the stairs.
B. The Finite Element Analysis
Dr. Ward verified her with another a finite element findings procedure, The analysis. (the case) characteristics of a structure brain and skull this were fed into a a force computer, and the mathematically applied, then computer predicted and stresses in the brain pressures and skull. The force used in the was the analysis force Ward at impact developed by the apartment. Again Dr. Ward’s work indicated the would Jaclyn stress have received from a fall down the could not have resulted in brain stairs or skull injury fracture.
The seminal case in
the foundational
for intro-
determining
requirements
duction of
based on new
expert opinion
scientific
techniques
People
Kelly (1976)
Pineda v. Los
However,
Angeles
53.
Turf
neither the
of the field of
reliability
biomechanics nor the
qualifications
were
expert
in Pineda and the
never ruled on the foun-
challenged
court
dational
biomechanics,
issues. The
who referred to
expert,
principles
also based his
on the statements of five
and a video-
opinion
eyewitnesses
1The California Supreme
adopted
initially
Frye
Court
enunciated in
the same criteria
(D.C.Cir. 1923)
145],
United States
First, must be “the the method reliability of are 30.) There at p. 17 Cal.3d Kelly, supra, testimony.” (People expert was used dummy in which an California cases anthropomorphic no reported any experiments did not know of in situation. Dr. Ward testified she any and there situation a fall dummy an using anthropomorphic conducted within the this was accepted no corroborative testimony technique was witness only Ward was the Dr. community, Similarly, scientific and the analysis the finite element computer testify applicability forces that applied for predicting acceptability using technique “ witness alone of a testimony single whether brain. questionable [I]t [is] to, an entire scientific the views of sufficient to or attest is ever represent, (Id., at p. of a new reliability technique.” community regarding acceptance. Ward’s work with widespread General credits Attorney However, herself. She testified Ward solely by this acceptance reported Additionally, she universities. model had been used several by skull more with those and consulted her conclusions to various studies compared demonstrating Her diligence about to children. knowledgeable injuries testimony because admissibility for scientific is insufficient acceptance was both and uncorroborated. self-serving of her reliability court of the to assure the only
Dr. Ward was expert to the mo- attached in declarations Other at trial and testimony techniques. she used. and assumptions new criticized both the methods tion for a trial In study her conclusions. contradicted Even the studies she relied upon Research Insti- Safety Michigan Highway by University conducted did warned, dummy tute, anthropomorphic the authors “an instrumented difficult would be at impact orientation to be a simulator good seem since often not are reactions dummy in free fall and since to control situation Dec. Final Rep., (Insurance Safety, Institute for Highway human like.” study In the same Investigation.) Tolerance Through Impact Free-Fall other in this and obtained limits . the tolerance that “. . it was emphasized misinterpreted not be should limited samples, studies involving relatively with- minimum most of population values that can be experienced as Nevertheless, (Ibid.) out serious Dr. Ward’s conclusions consequences.” were predicated such limits of human tolerance.
Dr. Ward verified with her her conclusions from the dummy experiment However, finite element the dummy thе data obtained from analysis. exper- iment was used in Ward that if this data was these calculations. Dr. agreed the result of the be wrong, similarly finite element would flawed. analysis Moreover, finite of the there was substantial evidence that her application element was not within the scientific commu- analysis generally accepted nity.
The final in both the and the finite element anal- step dummy experiment ysis was to the amount of force the child would have sustained compare from the fall to a chart “known criteria.” The “known injury depicting inch) criteria” indicated were nec- injury that p.s.i. (pounds per square However, to essary cause brain Dr. Ward testified that the damage. only determined criteria were and different universi- by unnamed “researchers ties.” Dr. Ward did the validity not test duplicate any experimentation of the criteria and no other scientist attested to its There general acceptance. were no made for it adaptations criteria children. was Dr. injury Again, Ward alone who verified the of hеr own work. acceptance Consequently, method, the first of the of the prong Kelly analysis, reliability sufficiently established by expert testimony.
Nor did Kelly establish the second prong “the witness be as an qualified such must testimony properly furnishing expert Kelly, an on the give opinion subject.” (People 30.) Cal.3d at and Dr. was based on her research p. testimony Ward’s However, with of Michi experience University animals and cadavers. stated data from animals gan study and tolerance “extrapolation injury to humans have not has been subject controversy; scaling techniques cit., (Insurance supra.) been Institute for perfected.” Safety, op. Highway She no or with the variances attribut had medical background experience in fall-related child. She had no expertise able to the brain and skull injuries.
The General her credentials are She has Attorney impressive. out points in the field at several Ph.D. biomedical and has worked engineering the Los Angeles universities and with the Department Transportation, However, Coroner and the County Los Police Angeles Department. “ and fields of knowl of an is relative to competency expert topic ‘[t]he In considering about which the is asked to make a statement. edge person must be care whether a as an the field of person qualifies expertise expert, Kelly, supra, and limited.’ fully distinguished [Citation.]” She above are significant. The deficiencies noted Cal.3d adult cadavers be studies involving well versed head may impact children merits injuries animals her with fall-related but inexperience been fatal. not have may close alone scrutiny. deficiency expertise However, or the without of the reliability techniques corroboration on the of bio- of general principles her acceptability procedures, application for fall is insufficient to this situation a child’s mechanics specific involving admissibility.
Third, demon of the evidence “the Kelly requires proponent [to] *11 that used in the case.” particular strate correct scientific were procedures an 30.) Therе was insuffi Kelly, 17 Cal.3d at (People supra, p. her cient for either of that Dr. Ward used showing acceptable procedures have She could not fallen arrived at the conclusion the victim techniques. a down dummy the fifth beyond instructing drop a officer step by police However, evidence received the stairs from different there was positions. a and in a new trial stating trial declarations attached to the motion for of lack would not as a child because its dummy execute the same trajectory her was used in finite musculature reflexes. Yet the fifth conclusion step element analysis as well. in the and procedures
There were flagrant loopholes the acceptability Dr. Ward calculations used in the In her calculations analysis. finite element factors, mass of the to consider the including several neglected important skull, child’s and and These scalp. the of the body compressibility carpet, impact Jaclyn’s factors were to the calculation of the force of the integral head hitting head on the of the velocity stair. Dr. Ward tried calculate the head, so, the fifth but in the mass of not doing she used step, only admitted would have Dr. Ward of the mass body. body that inclusion Furthermore, used in the figure altered her calculations and results. chart, not head from a from analysis mass of the came representing measurements of head. Jaclyn’s on the compressibility Dr. Ward took measurements
Similarly, although addition, did not have data on of the she not In she did use them. carpet, assumed an average She of the victim’s skull compressibility scalp. if de- measurement, this were conceding compressibility although this creased, slight change Even the force to the head would be greater. as much the results initial distorted significantly could have assumption her basis for a rational or scientific as She failed to offer percent. skull, and scalp. to use compressibility carpet, decision not the actual the scientific conclu- invalidated We conclude these foundational omissions pro- that “correct scientific sions offered to the We are not convinced jury. 30.) at p. 17 Cal.3d cedures were v. Kelly, used.” Although sufficient Kelly foundation for admission of the biomedical engineer’s expert opinion on the amount of force needed to sustain the injury was not presented, this finding does foreclose another to estab attempt lish the reliability circumscribe, “We techniques.2 simply carefully and deliberately, the admission of evidence born of new until the techniques time when there is demonstrated solid scientific approval support new methods.” (People v. Kelly, supra, 17 Cal.3d at
Finally, General Attorney that the admission of argues Dr. Ward’s testimony, erroneous, even if was not It was prejudicial. merely corroborative of Dr. Noguchi’s record, In testimony. of the entire light this argument must Fukumoto, fail. Dr. Coroner, from the Orange County based his conclusions on Dr. Ward’s He he findings. testified would reclassify death as accidental if her conclusion were or erroneous Dr. disregarded. Noguchi’s testimony was short and straightforward, his the ab opinion sence of bruises established that Jaclyn did not fall down the stairs. But another pathologist result, reached the opposite conclusion. As a the Peo case ple’s rested on “the aura of certainty” Dr. Ward’s scientific enveloping *12 (See findings. e.g., People v. Kelly, supra, 31-32.) 17 Cal.3d at The pp. could jury have been unduly the prejudiced by admission of the scientific and, of findings therefore, Dr. Ward the error was not harmless. (People v. (1956) Watson 818, 46 Cal.2d 836 243].) P.2d admission Although [299 of the scientific error, is reversible testimony we address the remainder of the issues raised by of Dellinger because the likelihood of their recurrence on retrial.
II Was evidence conduct and the past victim’s prior injury of defendant’s properly admitted?
Dellinger objects to the (1) admission of on his use of testimony prior cocaine; (2) Jaclyn’s (3) prior leg injury; the bruise handprint-shaped on Jaclyn’s lower back and his admission of her in the having spanked middle of the night.3 2We have not undertaken the inappropriate monumental and evaluating legiti task of cone,
macy (See of Sonеnshine, J., the entire field of opn. post, biomechanics. and dis. at 303.) p. Rather we have throwing restricted our review to the anthropomorph cavalier of an dummy flight confirming ic down a of analysis. stairs and the results with a finite element The here; field of biomechanics only reliability was not on trial procedures of the two em ploying biomechanical principles by used Dr. Ward. effect, any, 3“The if Proposition of question admissibility 8 on the of the of evidence of other offenses is not considered predate here since the offenses in this June case 1982.” (People (1984) 77, 82, 567, v. Tassel 36 Cal.3d fn. 1 Cal.Rptr. 679 P.2d [201
297 a defendant or misconduct of Evidence of other criminal acts com or to disposition to had the inadmissible accused propensity prove 1101, v. (a); Guerrero (Evid. Code, People mit the crime subd. charged. § 366]; v. 166, 719, 548 P.2d 16 724 Cal.3d Cal.Rptr. [129 119, 302].) “The reason (1976) 56 Gibson Cal.App.3d relevant; the contrary, to for rule is not that evidence is never this such ‘The natural much value. it has too probative evidence is excluded because to is to excessive tendency [jury] give weight inevitable ... too exhibited, to it to bear record crime and either allow vicious of thus as justifying take the of it or to strongly present charge, proof condemnation charge.’ irrespective guilt present [Citations.]” Guerrero, 724.) at supra, Cal.3d (People p.
However, is admissible conduct prior evidence defendant’s motive, some fact other mere as prove opportunity, than such propensity intent, or or absence mistake preparation, plan, knowledge, identity, Code, under sub (Evid. (b).) accident. admissible subd. Evidence § (b) exclusion subject division of Evidence Code section remains when under Evidence Code 352. “The have recognized section courts ever great evidence is offered . . there is for always . potential [this] to a as char prejudice jury defendant because of its misuse possible Gibson, acter trait or evidence.” propensity other To minimize the for courts have potential placed prejudice, (b), restrictions on the subdivision evidence. admissibility sеction “ fact ‘actually evidence be ultimate must relevant an proffered *13 Tassell, 77, Moreover, 84.) the dispute.’” supra, v. 36 Cal.3d (People (Id., at be value of defendant’s conduct must substantial. probative past 88; 303, 318 v. 27 Cal.3d p. Thompson to other “If is with respect P.2d evidence cumulative ‘merely issue,’ it is excluded evidence which the the same People may use prove doubt, any If is the evidence under a rule of ... there necessity. [Citations.] 318.) be 27 Cal.3d at should excluded.” v. (People Thompson, supra, p. evi- admissibility challenged Guided by these general principles, now dence is considered. Prior Use Cocaine
A. they had before were married Pena testified that used cocaine Dellinger had been mar They but he to her had discontinued knowledge practice. claims Attorney General Jaclyn’s ried five months at the time of death. had the to commit knowledge use cocaine Dellinger shows prior However, “admission of other crimes by crime of murder poison. evidence cannot be justified an admissible merely by asserting purpose.” Guerrero, (People 724.) v. 16 Cal.3d at supra, p. intent, of mind evidence
Generally, knowledge, or state is admissible act, if there is no doubt that defendant but there some has committed (Id., 726.) as to his or her mental at the at question state time. p. Here denied cocaine to or vehemently furnishing Jaclyn leaving it essence, accessible to In her. General claims that use or Attorney with a narcotic is to kill familiarity indicative of the mental state necessary another with that substance. If this would emasculate the adopted, position other policy crimes evidence unless the value is sub- excluding probative death, stantial. As ingestion cocaine was a cause of there contributory was a tremendous for with of Del- potential prejudicing jury evidence linger’s use of the prior substance. Yet his use had prior only marginal Tassell, value to the probative issues su- “actually (People dispute.” pra, 84.) Cal.3d at p.
“ ‘It has been . . . that because of the sound frequently recognized exclusion, reasons bеhind the rule of of evidence of general relevancy crimes, other and therefore be examined with care. admissibility, its must caution,” The evidence should be received with “extreme and if [Citation.] its connection with the the doubt clearly crime is not charged perceived, ” should be resolved favor of the accused. v. Guer [Citations.]’ rero, 724.) 16 Cal.3d The trial failed to resolve supra, court doubts in any favor of the and abused its discretion under Evidence accused Code section 352 the evidence which was more by admitting substantially Gibson, than prejudicial probative. (People B. The Victim’s Fractured Leg
Jaclyn was taken her to a doctor two weeks before her death by babysitter because she was The doctor a cast on having great difficulty walking. put her The coroner testified there was evidence of a fracture caused leg. spiral someone twisting leg.
The General maintains the was relevant to Dellin Attorney injury mental state in of murder in the commission of ger’s theory relation child The relevant to a fеlony undoubtedly fracture endangering. spiral However, that no evi was abused before her death. there is finding Jaclyn dence that twisted it broke. until Dellinger brutally Jaclyn’s leg “Evidence of other similar crimes linked to no one at all is inad clearly defendant, missible to element of the a crime prove any charged against even the of time and crime occurred within reasonable though proximity
299 655, 254 658 (1967) Jackson place. {People [Citations.]” have may other than Dellinger Since someone Cal.Rptr. [62 the trial court child was so great, the and the chance of injured prejudice the of the fracture. abused its discretion evidence by admitting Back C. The Bruise on the Lower Handprint-shaped a bruise in the shape testified she had noticed Jaclyn’s babysitter child the spanking a lower back. admitted Jaclyn’s handprint realize and said he did not in the middle of He remorse expressed night. was had conduct Dellinger’s past how hard he hit This evidence of her. fracture. leg different his use of cocaine and remarkably from with force. In child еxcessive this admitted episode, Dellinger striking deliberate, wilful, kill- premeditated The were to attempting prove The degree to convince the had first murder. committed ing jury Dellinger death, assault, relevant in the time was prior close to occurring proximity determining It in jury mental state. would assist prove Dellinger’s if found of murder. degree, they him appropriate guilty had sub- testimony The the bruise and admission Dellinger’s regarding evidence. Because stantial value was not of other probative and cumulative conduct, and of the the admitted similarity agency proximity time, value con- the trial court concluded the past properly probative men- duct its outweighed impact. importantly, Dellinger’s Most prejudicial tal assault was relevant state was his “actually dispute” prior first degree and deliberation to a prove necessary finding willfulness murder. Prejudicial
D. Impact than
“The crimes other evidence that involves any admission inflammatory which a a ‘highly those for defendant is tried has being Thompson, effect’ fact.” on the trier of prejudicial {People 314, inherent effect omitted.) Cal.3d at fn. prejudicial [is] “[Substantial (1969) 71 Cal.2d v. Sam {People in evidence of offenses. prior [Citation.]” added.) 804, 700], 454 P.2d italics [77 of the other crimes the admission General contends Attorney was read evidence was not because instruction prejudicial limiting if it is close one. The error reversal requires and the case not a jury a more favorable would have reached jury “reasonably probable P.2d Cal.2d without it. v. Watson result {People *15 Tassell, 89.) in- 36 at Because 243].)” v. Cal.3d {People supra, p. evidence, herently prejudicial nature of other crimes the courts have rec- ognized are limiting instructions frequently inadequate protect Gibson, (See, 130.) accused. v. e.g., People supra, Cal.App.3d p. instruction, however, “No or often limiting thoughtfully phrased repeated, could erase from the minds the of . . .” a “cokehead” bru- jurors’ picture tally twisting of an innocent toddler until it leg (People snapped. Guerrero, 16 Cal.3d at
Moreover, the case was indeed The evidence was very entirely close. circumstantial. The case rested on the of a People’s validity questionable conclusions, biomechanical unverified and the inference that engineer’s tests who had used it child person cocaine would administer to a or past her, leave it accessible to and the inference a child with a frac- prior spiral ture must have been murdered her the defendant. by stepfather, Any poten- tial for was exacerbated references prejudice prosecutor’s repeated cocaine prior use fracture spiral during closing argument. Under these circumstances it is would have reasonably jury probable returned a more favorable verdict if the evidence had been excluded. Con- the error sequently, necessitates reversal.
Ill Was the trial court’s the jury unanimously instruct sua sponte failure (CAUIC 17.01) on which act agree constituted murder reversible error?
The record reflects considerable confusion the causes surrounding of death and the criminal of death alleged acts cause by Dellinger. described as of the brain due to blunt force to the head. swelling trauma However, ingestion cocaine was found to be a cause. The contributing was instructed jury could find the defendant of first mur they degree guilty willful, der if deliberate, found a they or if found killing they premeditated murder by but were not instructed had to poison; they they unanimously on which act agree constituted murder. claims some Dellinger jurors may have decided he cocaine while decided he gave Jaclyn others have may inflicted a death blow to her head. further contends this consti tutionally the trial court’s sua impermissible possibility triggered sponte obligation to instruct the on the He is correct. jury unanimity requirement.
“A trial court must instruct sua on those sponte general principles of law which are closely ‘. . . connected with the facts before openly ’ court, and which are for a of the case. necessary jury’s understanding [Citation.]” Crawford 536].) A court’s sua extends to sponte obligation instructing on certain which
jury of law control how their principles they approach
301 212, 215 Cal.Rptr. (1981) 116 Cal.App.3d [171 task. v. Madden (People must their verdict be informed that must 897].) Specifically, juries (1978) 22 I, 16; Wheeler Const., v. (See People art. be unanimous. Cal. § 748].) To this con 258, 890, protect 583 P.2d Cal.3d 265 Cal.Rptr. [148 the jury, must instruct the court unanimity stitutional guarantee juror consti 17.01,4 the act or acts on agree to CALJIC No. similar language 263, 280-282 31 Cal.3d (1982) Diedrich [182 the offense. v. tuting Madden, 116 supra, 354, 971]; v. People 643 P.2d see also Cal.Rptr. for necessity on the for decisional history at 216-217 pp. Cal.App.3d instruction.) unanimity acts a defendant by criminal
Most of the cases involving multiple reported Diedrich, 31 supra, v. (.People also involve offenses. potential multiple 1059, 280; 1064 (1983) 143 Cal.3d at v. Moore People Cal.App.3d [192 p. at 595- 374]; pp. 131 Crawford, supra, Cal.App.3d v. Cal.Rptr. People 214-215; Madden, 600; People v. at pp. v. 116 People supra, Cal.App.3d 330, 313].) Character (1980) 335 McNeill 112 Cal.App;3d Cal.Rptr. [169 different counts with several a defendant could have been istically, charged McNeill, 112 (See, People but was once. charged only e.g., but and one victim one offense at Here there was Cal.App.3d оnly death. Jaclyn’s there which act or acts caused were several as to hypotheses could consti which jury As as there are acts long multiple presented on unan offense, to an instruction tute the a defendant is entitled charged imity. disclaiming reversal by General’s Attorney attempt prevent unfair fundamentally
reliance on the It is unconvincing. cocaine is theory verdict, then trial, two alternate secure a general theories develop whether the to determine abandon one of them on It is appeal. impossible prosecution one of the acts jury unanimously agreed postulated when a CALJIC No. 17.01 instruction is given. which standard is appropriate
There is no need to add to the literature on (1983) v. Deleito (See People for whether error is harmless. determining 458, 233].) Here the instructional 470-472 [195 (See and Watson standards. under both the Chapman was prejudicial error 705, 710, 87 18, L.Ed.2d 386 U.S. Chapman [17 California (1956) 46 Cal.2d 1065]; v. Watson S.Ct. 24 A.L.R.3d was responsible The evidence suggesting P.2d charged with the offense [murder]. defendant provides: 4CALJIC No. 17.01 “The committed doubt that he beyond reasonable may guilty proof if the shows He be found jurors must acts, guilty, all the defendant any more of but in order to find the one or such particular act or necessary that the It is not agree that he committed the same act or acts. ” agreed upon be in the verdict. acts committed so stated *17 the evidence for different from entirely of cocaine was Jaclyn’s ingestion the jurors It is very plausible he had assaulted her. suggesting physically and way argument could have between the two acts distinguished by Deletto, 473.) Some (Cf. 147 at p. evidence. v. Cal.App.3d child; blow to the have believed administered a death jurors may Dellinger “It this unacceptable he her. may others have been convinced poisoned su Crawford, case.” v. (People which taints the verdict this possibility that 596.) 131 “While it is of course pra, possible Cal.App.3d be for ., necessarily would . . such jurors agreed unanimously agreement Madden, supra, v. tuitous in the absence aof instruction.” proper “ Madden, ‘Since we 116 As the court concluded Cal.App.3d the act constituting cannot that the say jurors unanimously upon agreed did a miscarriage justice offense ... we have no assurance that charged ” {Ibid.) not occur.’ IV held that a of assaultive finding The California Court recently Supreme felony of second degree child abuse cannot a conviction felony support 311, 678 35 (1984) Cal.Rptr. murder. v. Smith Cal.3d 798 {People [201 886].) reversal. P.2d Smith is Dellinger dispositive requires that argues However, child abuse was whether assaultive it is to determine impossible We do not or the trial reduction. judge’s the basis of either the verdict jury Smith. by need new trial will be governed to consider this issue because any V ? results Did the trial court err admit by polygraph refusing defendant’s Supreme of the California The trial court followed the direction with examination Court evidence of defendant’s by disallowing polygraph (1975) 53 out the Adams Cal.App.3d People’s stipulation. {People Superior Witherspoon that Cal.Rptr. Dellinger argues [125 controlling, is now Court 615] however, has The Legislature, even it was decided after his trial. thоugh exclude to totally polygraph the court’s invitation in accepted Witherspoon time of trial is Code, 351.1.) law at the (Evid. evidence. The decisional § exami case, defendant’s polygraph now codified. In either the results of inadmissible. nation were
VI the risk awareness erroneously subjective Did the instructions omit jury malice ? as a element necessary implied life malice required was not advised implied argues jury actions. his by to life created aware of the risk he was finding subjectively He contends the was instructed on the awareness of a jury duty by imposed law rather than the he claims the awareness of risk life. Specifically, malice, two CALJIC Nos. 8.11 and jury instructions explaining implied 8.31, were erroneous as a matter law. inaccurate, had
Although technically the standard instructions jury injected some of a confusing duty unfortunate awareness language However, law. This imposed additional mere verbiage surplusage. *18 both CALJIC Nos. 8.11 and 8.31 have been and now exclude any revised Hence, retrial, and on unnecessary on sоcietal duties. confusing language the instructions will more define the of malice. jury clearly meaning implied
The of admission the evidence the engineer’s of biomedical expert cocaine, opinion, Dellinger’s use of and and the prior Jaclyn’s leg injury, failure to advise the to act jury unanimously on which constituted agree murder, reversal of require Dellinger’s conviction. is judgment reversed.
Trotter, J.,P. concurred.
SONENSHINE, J., Concurring Dissenting.
I “If a is witness testifying testimony as an his the form expert, [or her] of an (b) opinion [fj limited to such an ... on as is: Based opinion . matter . . or or known perceived by known to the witness made personally to admissible, him at or before the whether not that is a type or hearing, reasonably may be relied by an an upon expert forming opinion upon relates, Code, which subject (Evid. to his testimony ...” [or her] 801, added.) italics con- may § controlled be “Frequently, experiment ducted in an effort to have a of a case circumstance particular replicated. results, An expert may then testify about results. Based on those further an expert may offer the actual circumstance opinion regarding how situation, case occurred. In such a relevancy experimental ‘[t]he evidence ex- ordinarily that the conditions depends upon showing were to periment substantially similar those which rise issue gave which the (1980) evidence is offered.’ v. Guillebeau [Citation.]” 550-551
The crux of Dr. con- testimony Ward’s concerned the she experiment ducted the fall of regarding an down the stairs. anthropomorphic dummy Even her verification of this data from the developed relied on experiment or as words, her was as good, In other
stairway expert opinion experiment. were, in and expert opinion as the And her poor, experiment. experiment turn, con- as pathologist crucial evidence caused they prosecution’s clude, the stairs was the fall down his contrary original opinion, accidental. of the fol- depends upon proof evidence
“Admissibility experimental (Evid. be relevant (1) The must foundational items: lowing experiment under Code, been conducted 351); (2) must have experiment §§ [citation]; the actual occurrence similar conditions as those of substantially time, undue con- will not consume evidence of the experiment fuse the issues or mislead jury [citation]. [1] In the case experimental (a)(1)) evidence, (see Code, 403, subd. nec- Evid. fact preliminary § under conducted is that the experiment its essary support relevancy the accident took those when same or similar conditions as existing *19 be in whether the determining proponent standard that must met place. the establishing prelimi- of of of the has met the burden experiment proof is evidence nary admissibility experimental fact essential to the identical, identical. absolutely not substantially whether conditions were America, (1973) 33 Inc. (Culpepper Volkswagen v. [Citation.]” of 510, v. Ford Motor 110]; Hasson 521 see also Cal.App.3d Cal.Rptr. [109 857, 705, 530, 564 P.2d 99 (1977) Co. Cal.Rptr. 19 Cal.3d 548-549 [138 69, 158]; (1974) v. 40 84 Cal.Rptr. A.L.R.3d Law People Cal.App.3d [114 whether 708].) prelim- trial to determine judge is incumbent upon “[I]t established, material upon facts the foundational inary including have been v. (Rodriguez which an makes his expert assumptions. [or [Citation.]” her] 626, 659 (1978) Cal.Rptr. McDonnell 87 Douglas Corp. Cal.App.3d [151 399].) with the
Therefore, the fatal flaw majority’s reasoning, contrary of biomechanics not or the field expertise evidence was Dr. Ward’s lack Rather, substantially similar inability in it was the to recreate general.1 what actually no witnesses to describe conditions. with available Simply put, discipline majority a illegitimate is not as as 1The record shows that biomechanics Goldsmith, issue, Werner suggests. Ironically, Dellinger’s principal witness on this Dr. at testimony was not directed board of “Journal of Biomechanics.” This the editorial biomechanics; methods used Dr. it the biomechanical exposing the frailties of concerned really were not un Similarly, important. That Dr. Ward’s credentials Ward. distinction is event, question any In except by comparison experts. dermined to the defense perhaps 582, (1970) (See Cal.App.3d 10 People v. Stuller qualifications was for the trial court. 253, 158, (1984) Stanley 712]; Cal.3d 36 597 41 see also Cal.Rptr. A.L.R.3d [89 within her realm Cal.Rptr. 5 P.2d Dr. Ward testified fn. 681 Had [203 say as matter of law experiment, I expertise upon properly based conducted could deeming expert witness. the trial court abused its discretion in her an to Jaclyn, there were too crucial variables to render happened entirely many any “conducted under conditions.”2 experiment similar substantially
In Andrews v. Barker Brothers Corp. Cal.App.2d [73 284], the sued plaintiff after a fall from a chair. The defendants to show attempted an ex- plaintiff’s contributory negligence by conducting which periment assumed the chair sound and it in a plaintiff tipped certain way, the fall. The Court of causing Appeal recognized fallacy assume, such an “It was in approach: necessary proving experi- ment, that Andrews was negligent his misuse of chair order he was prove and it was therefore to assume that the negligent, necessary sound, chair was which would mean that Barker was free of If negligence. there had been evidence of those facts there would have been no need for expert testimоny; no one could have doubted that Andrews was negligent, To the admission of approve [f] it would be testimony ... necessary expand rules under which evidence experimental be received so may as to evidence of permit when experiments of conditions could identity only be made to appear by the existence of assuming material facts of which there This, was no course, evidence. would destroy use- completely (Id., fulness of evidence of experiments.”
In a case factually ours, similar to Martin Angel City Baseball Assn. (1935) 3 287], P.2d sued after a fall down a plaintiff at a stairway baseball stadium. The Court of *20 the trial court’s Appeal upheld rejection an recreation experimental of the occurrence: the “During trial offer appellant’s of evidence of experiments made a witness in by approach- and ing the in descending stairway the manner by described was respondent court, refused by the and of this While it is the appellant complains. general rule that experimental evidence is admissible if substantially it tends to es- tablish the fact it is offered to it prove, is nevertheless with discretionary the trial court to limit the received; extent to which such evidence bemay and it is the of the court duty to refuse its admission when it is doubtful whether it is to tend more likely to confusion to or justice than certainty. The results of made an individual chosen for experiments by [Citations.] 2The Dellinger’s objection essence of testimony to Dr. Ward’s embodies this issue. The Indeed, attack was not so much ranging a broad appears assault on biomechanics. it even the defense witnesses relied on methodology. principles biomechanical to attack Ward’s Dr. Similarly, Dellinger demonstrate, did not so much attack Dr. Ward’s credentials as con view, vincingly my in that which purported opinion beyond Dr. Ward to render an on was her expertise and experiment accepted the conducted of bio- was not faithful to methods Granted, Kelly mechanics. reliability the employed aspect analysis the method is an (see People Kelly (1976) 24, 144, 1240]); v. Cal.Rptr. 17 Cal.3d 30 P.2d it is 549 [130 simply embark, done, protracted Kelly unnecessary and majority unwise to on as has analysis. Dellinger experiment fatally claims Dr. Ward’s flawed. He is We was correct. go need no further.
306 in to in or walking demonstrate movements bodily approaching purpose what to be likely things are so in the nature descending stairway doubtful whether extremely
the mind of individual that it is suggests was Clearly such as there no abuse proof. are safe personal experiments of such under the circumstances discretion admission denying proof (Id,., at case.” p. “. of an depends to be to the weight given opinion expert ‘[T]he [Citation]; value its reasons he to assigns opinion.’ support [or [sz'c] she] ‘ “ is which fashioned opinion ‘rests the material from his upon [or her] from his material reasoning which he progresses by [or [or her] she] than an is no better his . . Such conclusion. opinion her] [Citation.] [or (1971) [citation], (White v. State reasons for it ...” given of California 58]; Richard Scott 738, 21 see also v. 759-760 Cal.App.3d Cal.Rptr. [99 57, “An 672].) (1978) expert opinion 63-64 Cal.Rptr. Cal.App.3d [144 (Hyatt nоt be or data. conjectural must based upon speculative [Citations.]” 47].) Boat Sierra Co. [145 its discretion test on is or not the trial court abused review whether “[T]he (Id., be been or could laid.” as whether a foundation has ruling proper 339.) I discretion and evidence the trial court abused its agree not have foundation could should been admitted. Because the required established, be a matter of law. Ward’s inadmissible as Dr. evidence was Dr. Ward’s expert was the fundamental basis for opinion. experiment And, noted, pa- as Ward’s caused prosecution Dr. previously opinion Thus, the of death. evidence his about cause thologist opinion change error; follows a result necessarily as cause it of death infected I agree For this reason more favorable to reasonably probable. (1956) 46 Cal.2d his Watson conviction must be reversed. P.2d *21 II in- use was cocaine Dellinger’s concludes the evidence of majority that I I do not in join portion admissible. do not therefore agree; majority’s opinion.3 ex- rule thеre is a positive
“All evidence is admissible unless relevant ‘any tendency which has it. evidence is that Relevant cluding [Citation.] was crimes evidence majority note the holds erroneous admission other 3I also in the event admissibility the evidence prejudicial consider the appropriate error. It is already it because has unnecessary prejudicial impact it here retrial. But is assess its requires reversal. been admission of Dr. Ward’s evidence determined the 307 reason to or prove fact that disprove any disputed is . . . .’ consequence tends, The test of is whether relevancy the evidence logically, [Citation.] naturally, fact, or by reasonable inference to a establish material not wheth- er it it. conclusively proves (1983) v. Yu {People 143 [Citation.]” “ 358, 376 Cal.App.3d 859].) admissible, be evidence Cal.Rptr. [191 ‘[T]o need not absolutely confirm It is axiomatic that its anything. is for weight ’ the jury. {People (1980) Peggese Cal.App.3d [Citation.]” Cal.Rptr. “The trial [162 court is vested with wide discretion in [1|] Furthermore, determining relevance. . . . the fact that this evidence involved another crime inadmissible does make it se. As a per general rule evidence of offenses is uncharged inadmissible when offered merely a prove defendant’s criminal ‘It is settled disposition. [Citations.] [f] evidence of other crimes is ordinarily admissible despite prejudicial effect where it tends motive, to establish guilty intent or knowledge, pres- ence of Yu, a common or design plan.’ {People [Citations.]”
Toxicological test results showed amounts of significant cocaine Ja- blood, clyn’s liver and stomach. In the prosecution pathologist’s expert opinion toxic effects of cocaine were a cause of probably contributing death. Jaclyn’s mother denied cocaine or ever using the child nar- giving cotics, but testified had used cocaine Dellinger before were they married. had They been only and, married five months when died as far as Jaclyn knew, she he had stopped.
As the majority indicates, opinion in its discussion of particularly CALJIC 17.01,4 No. two People pursued theories of at trial. One culpability theory stairs; Dellinger threw down Jaclyn the other was Dellinger poisoned with Jaclyn cocaine.
To the latter prove it was theory, relevant to show was at least Granted, with the drug. this did not confirm prior usage “absolutely familiar Were anything.” this strictly murder case and narcotic prior poisoning usage only evidence the evidence would inculpating Dellinger, clearly be insufficient. But the issue here is different. Where entirely poisoning cause of contributing death and thus a source murder properly liability (see People v. Ross 783]), *22 4Again, I note in passing majority’s the prejudicial discussion of the effect of the failure give to CALJIC sponte entirely No. 17.01 unnecessary given holding respect sua its with to Dr. Ward’s evidence.
308 with familiarity5
it cannot be said evidence the defendant’s showing simply of as a matter the at issue is irrelevant and inadmissible poison particular the discretion of within sound lay law. determination relevance Yu, 358, 376.) 143 The evidence trial court. v. (People Cal.App.3d relevant; of another crime was the fact it have shown the commission may un- admission of does not render it inadmissible on review. “Since the [citation], of the trial court offenses lies within the sound discretion charged (Ibid..)6 cannot in instant abused its discretion.” say court case [I] “ fact be like other any ‘The state of mind of a is a fact to proved person case; fact when it is an in the and when of a knowledge relevant to issue issues, has is admissible which relates evidence important bearing upon knowledge, to the of the or nonexistence such existence question [cita- 102, 147 (1976) 61 Cal.App.3d v. Manson tions].’ [Citation.]” 265].) Cal.Rptr. [132 243], is (1982) 129 Cal.Rptr. v. Goodall 131
People Cal.App.3d [182 She PCP. instructive. Goodall was with narcotics offenses involving charged she to evidence about which objected during present a incident prior drain. “She urges while another to PCP down sink person attempted pour That is such be her a crime .... evidence would insufficient to convict a crime not not to . . . committed necessary prove It was point. [she] her to establish . . . Her at that scene was relevant presence [citation.] PCP, with not she committed a crime. familiarity whether or [Citations.]” (Id., at p.
It was familiar is much the same here. It was relevant to show weak an with one of the in However death case. agents present its inference of this it was nonetheless relevant7 guilt might permit, knowledge in as the is used prosecution Dellinger’s 5Thus the referred to cocaine term read, 2.50, in given jury present The instruction CALJIC No. which was in the case. knowledge or pertinent part, “the had the evidence could be considered to show defendant necessary of the possessed might for the commission the means that have been useful or willing limiting I am this instruction charged. majority, crime ...” Unlike the not assume 306, People Hill (See (1971) Cal.App.3d 19 jury. did not have its effect on the v. intended 813].) Cal.Rptr. 319 [96 contributing cause of expert cocaine was a toxicological opinion 6Given the tests and the anticipate Dellinger might death, testify he People it was not for the at all unreasonable comparable injest recognize. very that sense case is Jaclyn saw he did not In substance required prove defendant’s possession People to a narcotics case in are which People knowledge of the as element of the offense. But substance’s narcotic nature an (See People Ellers knowledge are required puts not to wait until the defense issue. 888]; (1974) People 943, 42 (1980) Perez Cal.App.3d Cal.Rptr. [166 760, 195].) Cal.Rptr. 766 [117 it insignificant 7I ran afoul do believe the evidence was so remote or (1982) 31 v. Cardenas drug restriction evidence of use or addiction stated People v. Holt 897, 165, 569], (See Cal.Rptr. 647 P.2d also Cal.3d 906 [184 Cal.3d 449-450 P.2d *23 probative was for the weight to determine. jury Peggese, supra, 415, admitted The evidence Dellin- was not show and, ger event, was a “cokehead” it cannot be said as a matter of any law any effect prejudicial value of he was outweighed probative proof familiar with the toxic substance which was a cause to contributing Jaclyn’s death.
A 1985, for petition a rehearing was denied January respondent’s for a petition hearing by Court was denied March 1985. Supreme Lucas, J., was of the be that the should opinion petition granted.