Filed 4/22/15 P. v. Barker CA2/1 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

KIANA BARKER, 

 Defendant and Appellant. 

 B254529 

 (Los Angeles County 

 Super. Ct. No. BA373378) 

 APPEAL from a judgment of the Superior Court of Los Angeles County, Sam 

Ohta, Judge. Modified and affirmed with directions. 

 Marilee Marshall, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, and Victoria B. Wilson, 

Supervising Deputy Attorney General, for Plaintiff and Respondent. 

____________________ 
2

 A jury convicted Kiana Barker of murder, assault on a child causing death, and 

child abuse. She appeals, and we modify and affirm with directions regarding Barker’s 

sentence. 

BACKGROUND 

An information filed January 4, 2011 alleged that on March 4, 2010, Barker 

murdered two-year-old Viola V. in violation of Penal Code1 section 187, subdivision (a) 

(count 1); between March 3, 2010 and March 4, 2010, Barker assaulted a child (Viola),2

causing death, in violation of section 273ab (count 2); and between March 3, 2010 and 

March 4, 2010, Barker committed child abuse likely to produce great bodily harm and 

death against Viola, in violation of section 273a, subdivision (a). As to the murder count 

(count 1), the information alleged that Barker personally inflicted great bodily injury 

against Viola. (§ 12022.7, subd. (a).) As to the child abuse count, the information 

alleged that under circumstances likely to produce great bodily harm or death, Barker 

willfully inflicted unjustifiable pain or injury on Viola, resulting in death. (§ 12022.95.) 

As to all three counts, the information alleged that Barker personally used a deadly 

weapon, a belt. (§ 12022, subd. (b)(1).) The information also charged codefendant 

James DeWitt Julian with being an accessory after the fact in violation of section 32 

(count 4), and alleged that Julian had two prior convictions of a serious or violent 

felony.3 Barker pleaded not guilty. 

Prosecution case 

Olivia V. testified that she gave birth to Viola on April 2, 2007. When Viola was 

two days old, she was taken from Olivia V. at the hospital, because Olivia V. was not 

taking her medication (Seroquel). Olivia V. had stopped because she was not sure what 

the effect would be on Viola. Olivia V. knew Barker from church when they were young 

and when Barker was pregnant with her first child. Olivia V. asked Barker to take Viola, 

 1 All further statutory references are to the Penal Code unless otherwise indicated. 

2 We refer to the child victim by her first name for ease and clarity of reference. 

3 Julian entered a plea, and is not a party to this appeal. 
3

and she did. After Olivia V. started taking her medication regularly, Viola was returned 

to her two weeks later. Viola was again removed from Olivia V.’s care a year and a half 

later and was placed with Barker, again at Olivia V.’s request. Viola had sickle cell trait, 

but not diabetes. 

Emergency, police, and medical personnel

 Fire Captain Ronald Harmon testified that on March 4, 2010, he responded to a 

call to go to Barker’s home on East Gage Avenue in Los Angeles, arriving at 2:21 p.m. 

Barker’s boyfriend flagged him down. Once inside, Captain Harmon saw a little girl on 

the living room floor, lying lifeless on her back on a blanket. Barker was standing next to 

the child, talking on the phone to a 911 dispatcher. Captain Harmon could not find a 

pulse and the child was not breathing. He asked what happened, and Barker replied that 

“the baby must have choked on apple juice.” He asked how long the baby had been 

down, and Barker’s boyfriend said 20 minutes; Barker said, “‘Not 20. It hasn’t been 20 

minutes.’” Captain Harmon rolled the baby over and saw bruising on the left side of her 

back and the left hip. Her skin was very cool. 

 Firefighter Michael Pagliuso was on the call, and saw that the baby wasn’t 

breathing. He heard Barker and her boyfriend say that the baby had been drinking apple 

juice. He and another paramedic did cardiopulmonary resuscitation (CPR) on the baby 

until the ambulance arrived two minutes later. He carried the baby to the gurney, and 

paramedics continued the CPR while he drove the ambulance to the hospital. Barker 

rode with him in the front seat. Barker’s demeanor was “very cold . . . not very worried,” 

but nervous. Barker did not cry, but asked several times, “‘Is she going to be OK?’” 

 The paramedics took Viola into the emergency room and laid her on a gurney, 

where Dr. Joshua Partnow shined a light into her eyes and saw they were fixed and 

dilated, which was a bad sign. She did not have a pulse and was not breathing. After 45 

minutes of CPR and the insertion of a breathing tube, he managed to get a faint heartbeat. 

As he worked on Viola he saw a lot of bruising, so he called the trauma doctor for 

backup. Dr. Partnow asked Barker what happened to the baby, and she said Viola had 

not been acting normally that day and had slept late. He later asked Barker about the 
4

bruising. Barker told him that Viola had gotten stuck between the mattress and a bed 

railing, but denied any other trauma. Dr. Partnow suspected child abuse. 

 Dr. David Duarte, a staff surgeon on call for trauma, came down to the emergency 

room and saw Dr. Partnow performing CPR on Viola. Dr. Partnow told him he had been 

able to get a little heartbeat. Dr. Duarte took Viola to the operating room, and opened up 

Viola’s chest to massage her heart, which started to beat but then arrested several times. 

He saw swelling and bruising on her left hip and her buttocks, consistent with child 

abuse. Viola never stabilized, and Dr. Duarte pronounced her dead at 4:26 p.m. 

 Los Angeles Police Department (LAPD) Officer Gabriel Lopez had been called 

out to the hospital and asked Barker what had happened. Barker said Viola hadn’t been 

feeling that well, so she fed her, put her down for a nap, and lay down with her for about 

five minutes. Barker then left the room. When she returned five minutes later Viola 

wasn’t breathing, and Barker called 911. Officer Lopez thought Barker was “pretty 

calm . . . .” “[U]nder the circumstances, I would expect someone to be a little more, I 

don’t know, distraught.” 

 Dr. James Ribe, the coroner, testified that he did an autopsy of Viola on March 6, 

2010. She was two years old, 34 inches tall, and 35 pounds. His opinion was that she 

died from blunt force trauma, meaning blows inflicted by an adult, along with internal 

bleeding, blood loss, and fluid loss. Viola had a large contusion on her right armpit and 

shoulder and several abrasions on her left hip area. Bruises appeared on Viola’s chest 

and right hip. She had multiple small white scars he believed were caused by burns from 

a small, very hot object such as a match. Her buttocks were swollen and red, and there 

were bruises on the back of her right leg and on the front of her left hip, as well as three 

scabbed abrasions on her left lower back area. To produce the deep tissue bleeding he 

saw in Viola’s buttocks, an adult would have to strike Viola with “the most they’re 

capable of with their arm.” The scabbed injuries would have occurred at least a few 

hours before Viola’s death, possibly longer. The abrasion on her left flank was very 

recent and had the pattern of a shoe mark, consistent with someone kicking Viola with a 
5

shod foot. There was also a double red mark on Viola’s left lower abdomen or groin 

which looked like a pinch mark or a mark from a stick. 

 The blow to Viola’s armpit was the result of very severe force, and had caused 

blood to collect in the chest cavity around her lung. As a result of the blood loss into her 

chest, Viola would have gone into shock rapidly, which meant her blood stopped 

circulating, and her brain ceased functioning as well as her heart and other vital organs, 

contributing to her death. The injuries to her buttocks also contributed significantly to 

Viola’s death, with bleeding and fluid loss severe enough to impair her circulation and 

make her more vulnerable to dying from the chest injury. The armpit injury occurred 

very close to her death, because the rapid bleeding “takes a few minutes to kill.” The 

injuries to her buttocks occurred anywhere from a half hour to 24 hours before her heart 

stopped, although it was more likely that they happened from a half hour to four hours 

before. 

 Viola’s injuries could not have been accidentally caused, as the marks were in 

multiple areas of the body and came from different directions, and were not consistent 

with being stuck between metal railings of a bed or being freed with a hammer. Nothing 

that occurred in the emergency room or operating room would have caused her injuries. 

Viola appeared otherwise healthy except for some evidence of sickle cell trait, which 

would make her more vulnerable to the effects of soft tissue injury, stress, and blood loss. 

Dr. Ribe’s opinion was that the cause of death was homicide. 

 Pediatrician Dr. Carol Berkowitz was certified as an expert in trauma in children. 

She had reviewed Viola’s file. Viola was a healthy two and a half year old who, when 

she arrived at the hospital, was in full cardiac arrest. After reviewing the medical records 

and the autopsy report, Dr. Berkowitz’s opinion was that Viola suffered extensive trauma 

and hemorrhagic shock. She showed signs of blunt force trauma consistent with kicking, 

hitting, or striking with an object. Viola’s buttocks showed signs of multiple blows. 

Dr. Berkowitz believed her death was caused by child abuse. Bed railings could not have 

caused her injuries. Dr. Berkowitz did not see a pattern consistent with a belt buckle or a 

hammer. 
6

Barker’s daughter K.

 Barker’s daughter K., nine years old at the time of Viola’s death, testified that in 

2010 she lived in Barker’s house with Barker, Barker’s boyfriend Julian, Julian’s son 

James, and Viola. She and Viola shared a bedroom and slept in bunkbeds, with Viola on 

the bottom bunk. A bed with railings was across the hall in James’s room where Viola 

used to sleep, but K. had no memory of Viola getting stuck in that bed. Viola was pretty 

well-behaved, but if she threw a tantrum Barker would discipline her with a “bop in the 

hand. That’s it.” When K. misbehaved, she “would get whooped” by Barker, who used a 

belt on her buttocks. 

 March 3, 2010 felt like a normal day to K., who went to school and when she 

came back, went into the kitchen to make noodles for herself and Viola, who seemed 

happy and healthy. K. played with Viola before they went to bed at 7:00 p.m. or 8:00 

p.m. The next day, March 4, Viola was asleep when K. left for school, which was 

normal. When she got home from school, Viola was gone. 

 Right after Viola died, Barker told K. not to say certain things to the police. After 

K. talked to the police the day Viola died, Barker yelled at her, saying, “‘I told you not to 

say nothing to these people.’” Barker was upset that K. told the police that Julian and 

James lived in Barker’s house, and told K. that was why she could not come back to live 

with Barker. 

 Julian had “anger issues,” but Barker did not. K. had not talked to her mother 

about her testimony; she loved Barker and wanted to help her. She remembered that she 

had told the detective that she felt safer when Julian was around. A section of K.’s 

interview with the detective was played for the jury. 

Barker’s friend Valerie M. 

 Valerie M. died before trial and therefore was unavailable as a witness under 

Evidence Code section 240, subdivision (a)(3), so her testimony from the preliminary 

hearing in December 2010 was read in court. Valerie M. testified that she was friendly 

with Julian and Barker, and had known Barker for more than 10 years. On March 3, 

2010, Barker picked her up and took her to her house, where Julian was out back in his 
7

“man house” with someone named Leon. Barker and Valerie M. were drinking hard 

alcohol in the house, and Valerie M. was “faded,” but was “still together.” Around 

3:00 p.m. or 4:00 p.m., Viola “got a whooping, but that wasn’t no ordinary whooping.” 

Barker , who was busy around the house, looked into Viola’s room, got upset, and said, 

“‘I’m tired of this shit,’” “‘I can’t handle this,’” and “‘[w]here’s James.’” Barker picked 

up something like a man’s construction belt; Valerie M. grabbed her by the arm, but 

Barker told her to let it go or she would use it on her. Barker went into Viola’s room, and 

Valerie M. heard a beating “like with that belt” (“plau, plau, plau, plau, plau, plau, plau, 

plau”) and heard Viola crying until she gasped to get her breath. The beating went on 

“too long.” She heard Barker yell “‘get your ass up there’” and then a boom, like a swing 

against a wall. Valerie M. tried to get into the room but Barker had her feet against the 

door. Valerie M. told her “that’s too much, quit,” and said she was going to get Julian. 

 Valerie M. ran outside to get Julian, and told him he needed to go inside right 

now; he laughed. Finally she convinced him to go in. She pointed to Viola’s room, and 

Julian went in and picked up Barker from behind. Julian carried Barker, who was furious 

and sweating, back to their room. Valerie M. crept into Viola’s room and saw her on her 

bed, not moving much. Julian asked Barker, “‘What did she [Viola] do?’” and told 

Valerie M. she had to leave, but Barker said, “‘She’s not going anywhere. And will go 

when I take her.’” Several hours later Barker drove Valerie M. home and apologized for 

what had happened, saying, “‘I’m sorry you had to be there to see that.’” Barker called 

later to ask if Valerie M. was all right. 

 When Barker got out of jail, she and Julian visited Valerie M., and Barker told her 

Viola “‘passed the next day after I whooped her.’” Barker told Valerie M. the police 

would come to talk to her, and Barker wanted her not to mention the “whooping.” Barker 

said Viola died because she had diabetes, had a seizure after she had some Similac, and 

Barker had given her the wrong medicine. Viola’s bruises were from her seizure on the 

floor. Julian then came into the room and said to Barker, “‘Baby, let’s forget this. You 

know, you ain’t got to talk to her about nothing because when it comes down to it, if she 

winds up involved in this, we involved in, she going to come up missing, she . . . say 
8

something wrong about me or her.”’ Valerie M. took this as a threat that if she talked to 

the police, something would happen to her. Barker then said, “‘No, it ain’t like that.’” 

Valerie M. thought Viola had died at least in part from the beating, which Julian had 

taken as a joke, and it wasn’t funny: “That’s a two-year-old girl.” 

 Valerie M. denied any romantic interest in Barker. She had never before seen 

Barker behave the way she did on the day she beat Viola. The memory of that day had 

haunted Valerie M. ever since Barker told her that Viola had died. 

Detective DeHesa 

 LAPD Detective Calvin DeHesa was the investigating officer. He went to the 

hospital on March 4, 2010, and spoke with Barker and her daughter K. K. had told him 

that Julian was protective and she felt safe around him; she mentioned no anger issues 

with Julian. 

 When Detective DeHesa interviewed Barker at the hospital on March 4, she had 

just learned that Viola was dead. Her demeanor was “pretty calm,” concerned rather than 

upset. A tape recording of the interview was played to the jury. Barker told Detective 

DeHesa that Julian did not live with her although he had spent the night “when we were 

together.” She explained that the day before Viola died, her lower torso got stuck in the 

bed railings. Barker used a hammer with a blue or grey grip to break some of the railings 

to free Viola. Viola got a few scratches from the metal, and Barker might have hit her in 

the buttocks. Barker threw the bed out in a lot nearby that same day. Barker said, “I’m 

trying not to cry,” and Detective DeHesa told her it was okay to cry. 

 On the morning of March 4 Viola woke up late, around 10:00 a.m. She seemed 

tired and was not her usual “jolly” self. Barker was cleaning house to get ready for her 

monthly inspection by the Department of Children and Family Services (DCFS), and 

gave Viola a burrito and some Pedialyte mixed with water. Because Viola did not seem 

to be feeling well, Barker lay down with her for a while. She got up to clean some more, 

and on her way back to check on Viola she called Julian. When she got to the bedroom 

Viola was not breathing. Barker tried CPR. Viola spit up food and water, tried to 

breathe, and “just stopped.” Barker told Julian (who was on his way over) that Viola 
9

wasn’t breathing, and then called 911. When Detective DeHesa told her that Viola had 

significant bruising, Barker said, “They’ll blame it on me with the railing.” 

 Later that day Detective DeHesa did a walkthrough of Barker’s home with Barker, 

a recording of which was also played for the jury. The bed she had thrown out in the 

alley was no longer there, and the hammer she showed him was yellow. No belt was 

found. At the end of the recording, Barker said, “I know that I’m the prime suspect, but 

we all have to wait on the autopsy report to come back . . . I’ll be that prime suspect until 

y’all find out what happened to her cause I know how it work. Y’all don’t have to blow 

smoke up my pipe. This is reality.” On March 9, Barker was arrested and was released 

two days later. She was arrested again on July 15, 2010.

Defense case 

After being advised of her right to remain silent, Barker testified that she had been 

providing foster care since 2005. She knew Viola’s biological mother, Olivia V., and had 

fostered Viola twice. Viola was a lovable, smiling child who was a little delayed, and 

had been helped by therapy. Olivia V. had weekend visitation. Baker was in the process 

of adopting Viola, and was close to finalizing the adoption. 

 Barker and Julian had a child who was six months old at the time of Viola’s death. 

One of the foster care rules was that anyone with “unexcusable felonies” could not be in 

the household, and she believed Julian had felony convictions. Julian was living with her 

in March 2010, and she knew she wasn’t supposed to have him in the house. Julian could 

be violent and once choked her with a phone cord, and she was afraid of him. 

 Barker had been friends with Valerie M. for 10 years. Valerie M. had a romantic 

interest in Barker and wanted to be with her, but Barker told her, “I’m not that way.” A 

few months after Viola died, Valerie M. was at Barker’s house and she and Julian started 

to argue. Barker and Julian took her home, where her boyfriend also argued with Julian. 

Valerie M. called Barker two weeks later and told Barker that she had ruined her life. 

 On March 3, 2010, Barker was cleaning the house in preparation for the DCFS 

inspection. Viola got stuck in the bed rails and Barker got her out and treated her 

scratches. Barker threw the railings in the vacant lot nearby where people often threw 
10

things out. On March 4, 2010 while the doctors were working on Viola at the hospital, 

Julian arrived and told her to stop asking what was wrong. He sat her down in a chair 

and told her to remember the railing incident, and from then on she kept quiet and didn’t 

tell Detective DeHesa about Julian’s abuse of her. Barker didn’t know what had 

happened to Viola. 

 Barker acknowledged that she did not show emotion during the 911 call and the 

ride to the hospital, and explained that she did not express her emotions because of two 

traumatic incidents when she was eleven. Barker admitted she had used a child’s belt to 

hit K. on the hand and buttocks. She had grown up with corporal punishment although 

she was not proud of that, and she had never used it on Viola. In her phone conversation 

with K., Barker had been angry with K. because K. had told the authorities that Julian 

was living with them, and Barker had been lying to DCFS and saying that he did not. 

She understood that having Julian stay at her house would prevent her from having a 

foster care license. 

 When Viola woke up on March 4, 2010 around 10:00 a.m., Barker turned on the 

television in Viola’s room. She continued to clean for the DCFS inspection, checking 

now and then on Viola, who looked as if she didn’t feel well. Barker took Viola into the 

dining room and gave her some Pedialyte and a burrito. Julian was out back working in 

the yard and coming in occasionally. Barker went outside for about an hour to put some 

things into storage, and when she came back in Julian and Viola were sitting at a 

children’s table in the dining room. Julian told her Viola threw up, and Viola was crying, 

so Barker thought she was sick. She took Viola back into her room, pulled the blanket 

out and spread it on the floor, and lay down with her for a while. When she went back 

into the dining room to clean up the vomit, she heard Viola make a sound like “unnnn, 

unnnn.” Barker returned to the bedroom and picked Viola up; her head lolled back and 

her eyes were rolling. Barker called to Viola and ran to get ammonia for her nose, but 

she didn’t move. Viola had stopped breathing and Barker started CPR, continuing for 

some minutes. Viola spit up some Pedialyte and Barker heard gurgling, but that was all. 

She screamed for Viola to talk to her. 
11

 After a few minutes, Julian came into Viola’s room and Barker called 911. She 

dragged Viola into the living room on the blanket and followed the 911 dispatcher’s 

directions until the paramedics arrived. 

 Barker agreed she did not seem emotional during her testimony, but she felt 

emotional. The small marks on Viola’s body were not burns but places where Viola 

scratched herself and made a sore. The photographs shown at trial were the first time she 

saw the bruises on Viola. 

 On cross-examination, Barker stated she would spank Viola on her hand but had 

done so only once or twice. Julian had lived with her about a year; she married him after 

her release from jail in March 2010, but he had disappeared. She had told no one about 

the time Julian choked her with a phone cord. Barker denied telling the paramedics that 

Viola choked on apple juice, as Viola had only Pedialyte that morning. She had not told 

the officers that Julian was in the house. She admitted that although she told Valerie M. 

that Viola had had a diabetic fit, Viola did not have diabetes. Barker had not told the 

paramedics and hospital staff everything that happened that day because things were 

moving so fast. 

Closing argument 

 In closing, the prosecutor argued that Barker was trying to blame Julian by 

testifying for the first time at trial that he was in the house the day Viola died, although 

she had told Detective DeHesa that she called Julian before she called 911, so Julian was 

not in the house. 

 Defense counsel argued (among many other issues) that the evidence pointed 

toward Julian. Barker did not tell the police that Julian was in the house on March 4, 

because as a convicted felon he was not supposed to be there. Counsel argued that it was 

unnecessary to show the witnesses and the jury Barker’s “mug shot,” and her perceived 

lack of appropriate emotion meant nothing regarding her guilt or innocence. The 

evidence showed that Viola’s injuries were from recent trauma, not from the day before 

when Valerie M. was there, and were not from a belt and buckle. 
12

Verdict and sentencing

 After deliberating for less than a day, the jury convicted Barker on count 1 

(murder), count 2 (assault on a child causing death), and count 3 (child abuse). The jury 

found true as to count 1 that Barker inflicted great bodily injury upon Viola, and found 

not true as to counts 1 and 2 the allegation that she used a deadly or dangerous weapon 

(the belt). On count 3 the jury found true the deadly weapon allegation and the allegation 

that Barker willfully inflicted unjustifiable pain or injury on Viola, resulting in death. 

 Barker made a motion to appoint new counsel to file a motion for a new trial based 

on ineffective assistance of counsel, which the court denied after a hearing. On 

February 21, 2014, the trial court sentenced Barker to 25 years to life on count 2, with the 

sentences on counts 1 and 3 stayed pursuant to section 654. She filed this timely appeal. 

DISCUSSION 

I. Admission of booking photograph 

Before trial began, People’s exhibit 4, a booking photograph of Barker taken on 

the day of her arrest, was admitted into evidence over defense objection. Defense 

counsel argued that the photograph had no probative value and considerable prejudicial 

effect, as it showed Barker “scowling”: “We know what booking photographs often are. 

Miss Barker is sitting right here. There’s no reason . . . to identify her here.” The 

prosecutor argued that Barker looked substantially different today (four and a half years 

later in October 2013), and the booking photograph had probative value as to her 

appearance at the time of Viola’s death on March 4, 2010.4

 The court agreed with the prosecutor, stating that the difference between the 

photograph and Barker’s appearance at trial was substantial, and the photograph had 

probative value as to how she looked at the time of the incident. As for prejudicial effect, 

“no one takes a happy picture when taking a booking photograph,” and Barker was not 

 4 There is no date on the photograph, but given the line of questioning regarding 

how Barker looked around March 4, 2010, we presume that the booking photograph was 

taken when Barker was first arrested on March 9, 2010, rather than when she was 

arrested a second time on July 15, 2010. 
13

scowling, instead looking displeased that a booking photograph was being taken. The 

photograph was not inflammatory. 

 Defense counsel countered that the prosecution would argue that Barker was angry 

when she physically punished Viola and the photograph was consistent with how 

someone would look when they were angry. The defense might try to portray Barker 

otherwise. The court observed that today Barker did look quite different, and defense 

counsel again argued that her former appearance had no probative value. The court 

stated that her appearance in the photograph was important and had probative value: “It 

shows what a person is. That is the first impression that everyone gives.” Barker looked 

different now, and the photograph allowed the jury to see what she looked like at the time 

of the offense; that was probative and not outweighed by prejudice. The court overruled 

the defense objection, and the photograph was admitted into evidence. 

 At trial, the prosecution showed the booking photograph to Fire Captain Harmon, 

who said he was not really sure if on March 4, 2010, Barker looked more like the 

photograph than the way she looked today. Firefighter Pagliuso and Officer Lopez both 

testified that on March 4, 2010, Barker looked more like she did in the photograph. 

Detective DeHesa stated that on March 4, 2010 Barker looked like the booking 

photograph, and he estimated she had weighed around 190 pounds. Now she appeared to 

weigh less. No prosecution witness mentioned her facial expression in the photograph. 

 The defense case opened with trial counsel asking Barker about the photograph, 

whether she now looked different, and why she had a scowl on her face. Barker testified 

that she had lost weight since the photograph was taken. When the photograph was 

taken, Detective DeHesa had just told her she was being charged with murder. She was 

going through a lot of emotions, was not feeling well, and was upset and confused. 

 In closing, the prosecution did not mention the booking photograph. Defense 

counsel argued that “very few people look innocent in a mug shot even if they are in fact 

innocent,” and urged the jury to ignore the “old prosecution device” of repeatedly 

showing a booking photograph. 
14

 We have examined the booking photograph, in which Barker looks directly at the 

camera and appears angry. 

 Barker argues that any difference between her booking photograph and her 

appearance during trial was irrelevant, as her identity was not in issue. Respondent 

argues that the photograph was relevant to show “a more precise account of the size 

differential between [Barker] and Viola,” to help the jury understand how much force 

Barker could inflict on Viola. The photograph had some relevance to show Barker’s size 

was at the time of Viola’s death, when Detective DeHesa testified she weighed around 

190 pounds. Nothing in the record shows us Barker as she appeared at trial, and we 

accept the trial court’s observation that she looked quite different. 

 Barker argues that under Evidence Code section 352, any probative value was 

outweighed by prejudice, as multiple witnesses (Firefighter Pagliuso, Officer Lopez, and 

Detective DeHesa) testified that she showed little emotion throughout the events of 

March 4, 2010. In the booking photograph, taken five days later when Barker was 

arrested, Barker does show emotion to the extent that she looks angry. How this 

prejudices her is unclear. The photograph does appear to show Barker looking angry 

rather than grief-stricken. Nevertheless, the photograph is related to the current offense 

and is thus unlike unrelated prior booking photographs, which “carry the inevitable 

implication that appellant suffered previous arrests and perhaps convictions,” and “may 

well be equivalent to the introduction of direct evidence of prior criminal conduct.” 

(People v. Vindiola (1979) 96 Cal.App.3d 370, 384.) 

 We review the court’s admission of the booking photograph for an abuse of 

discretion, reversing only if the court ruled arbitrarily, absurdly, or capriciously. (People 

v. Hernandez (2011) 200 Cal.App.4th 953, 966.) Evidence Code section 352 provides 

that the court has discretion to exclude evidence if the probative value is “substantially 

outweighed” by its unduly prejudicial effect. “‘Prejudice’ as contemplated by section 

352 is not so sweeping to include any evidence the opponent finds inconvenient. . . . The 

code speaks in terms of undue prejudice.” (People v. Branch (2001) 91 Cal.App.4th 274, 

286.) The photograph was relevant to show Barker’s size on March 9, five days after 
15

Viola died, and was not unduly prejudicial. The trial court did not abuse its discretion 

when it admitted the booking photograph into evidence. 

 Barker also argues that the introduction of inflammatory and irrelevant evidence 

violated her right to due process. As we conclude that the booking photograph was 

neither inflammatory nor irrelevant, we reject her constitutional claim. 

II. Ineffective assistance of counsel 

 To prevail on her claim that trial counsel provided ineffective assistance, Barker 

must first demonstrate that “‘counsel’s representation fell below an objective standard of 

reasonableness . . . under prevailing professional norms.’” (People v. Ledesma (1987) 43 

Cal.3d 171, 216.) Second, Barker must show prejudice resulting from counsel’s 

inadequate performance, that is, a reasonable probability that the outcome of the trial 

would have been different. (People v. Lucas (1995) 12 Cal.4th 415, 436.) We presume 

that counsel’s performance was within the wide range of reasonableness, and that 

counsel’s actions can be explained as a matter of trial strategy. (People v. Carter (2003) 

30 Cal.4th 1166, 1211.) On direct appeal, we “‘“will reverse convictions . . . on the 

ground of inadequate counsel only if the record on appeal affirmatively discloses that 

counsel had no rational tactical basis for [his or her] act or omission.”’” (People v. 

Lucas, supra, 12 Cal.4th at p. 436.) 

 A. Barker’s custody status 

During cross-examination, the prosecutor asked Barker if she had been arrested for 

Viola’s murder on July 15, 2010, and she answered yes. The prosecutor continued: 

“And since then you’ve had a lot of time to think about your testimony, haven’t you?” 

Barker answered yes. Barker also admitted this was the first time she had claimed that 

Julian was at the house the morning of the day Viola died.5

 5 The prosecutor asked whether “this is the first time that we hear that [Julian] was 

at the house the morning of March the 3rd, 2010,” but the context of the continued 

questioning (regarding whether Barker had mentioned Julian’s presence to the 911 

operator, the firefighters, the doctors at the hospital, Officer Lopez, and Detective 

DeHesa) makes it clear that the prosecutor was referring to the morning of March 4, 

2010. 
16

 On redirect, defense counsel asked, “[The prosecutor] asked you whether you had 

a lot of time to think about your testimony. Are you presently in custody right now?” 

Barker answered yes. Counsel asked if it was in the Los Angeles County jail, and Barker 

answered yes. Counsel then asked, “Have you been thinking—when did you make the 

decision to testify?” Barker responded, “Once I heard how the situation was 

misconstrued, I felt that I had to clarify.” There was no subsequent mention of her 

custody status. 

 Repeated reminders of a defendant’s incarceration without her consent may 

negatively influence a jury. For example, when a defendant is required against her will to 

wear jail clothing throughout trial, “the constant reminder of the accused’s condition 

implicit in such distinctive, identifiable attire may affect a juror’s judgment. The 

defendant’s clothing is so likely to be a continuing influence throughout the trial 

that . . . an unacceptable risk is presented of impermissible factors coming into play.” 

(Estelle v. Williams (1976) 425 U.S. 501, 504–505 [96 S.Ct. 1691, 48 L.Ed.2d 126].) 

Nevertheless, “instances frequently arise where a defendant prefers to stand trial before 

his peers in prison garments. . . . [I]t is not an uncommon defense tactic to produce the 

defendant in jail clothes in the hope of eliciting sympathy from the jury.” (Id. at p. 508.) 

In People v. Williams (1991) 228 Cal.App.3d 146, 151, the court rejected a claim of 

ineffective assistance when defense counsel failed to object to the defendant’s appearance 

in prison clothing: “[I]t is reasonable to presume trial counsel evaluated the strengths and 

weaknesses of the case and concluded having appellant appear in jail clothing would gain 

him needed sympathy from the jury.” When an attorney decides based on the 

circumstances of the case not to invoke the defendant’s right to appear in ordinary 

clothing, “courts should be reluctant to interfere with that decision because an attorney 

may waive his client’s rights as to matters involving trial tactics.” (People v. Taylor 

(1982) 31 Cal.3d 488, 496.) 

Barker chose to appear in civilian clothing so there was no constant visual 

reminder of her incarceration. Nothing in the trial record explains why Barker’s counsel 

chose to ask the question that elicited Barker’s custody status. “‘“[If] the record on 
17

appeal sheds no light on why counsel acted or failed to act in the manner 

challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, 

or unless there simply could be no satisfactory explanation,” the claim on appeal must be 

rejected.’ [Citations.] A claim of ineffective assistance in such a case is more 

appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 

15 Cal.4th 264, 266–267.) The prosecutor had just elicited that Barker had a lot of time 

to think about her testimony, and only now was Barker claiming Julian was present on 

the morning of the day Viola died, implying that Barker had, after long contemplation, 

fabricated a story that would inculpate Julian. After hearing the prosecution’s crossexamination, defense counsel might have made a tactical decision to have Barker testify 

she was in custody “right now” and had only recently decided to testify after hearing the 

evidence at trial, instead of making up her story over time. In addition, just as defense 

counsel may occasionally decide for tactical reasons to have the defendant appear in jail 

clothing (and thus constantly remind the jury of the defendant’s custody status), counsel 

may have wished to gain some sympathy from the jury. While we do not have enough 

information to discern counsel’s reasons, we do not conclude that there could be no 

satisfactory explanation for his questioning. 

 In any event, Barker has not shown that she was prejudiced by her own reference 

to her custody status. The jury was fully aware that Barker had been arrested in May 

2010 for Viola’s murder, released two days later, and rearrested in July 2010. There was 

no indication that she had been in custody ever since until trial in October 2013. 

Although counsel expressly asked Barker if she was in custody “right now” and she 

answered in the affirmative, “an isolated comment that the defendant is in custody simply 

does not create the potential for the impairment of the presumption of innocence that 

might arise were such information repeatedly conveyed to the jury.” (People v. Bradford

(1997) 15 Cal.4th 1229, 1336.) There were no further references to her custody status 

and we will not presume the jury was adversely influenced. Given the strength of the 

evidence against Barker, especially Viola’s severe injuries during her care and 

Valerie M.’s damning testimony that Barker beat Viola severely the day before she died, 
18

we see no reasonable probability that the jury would have acquitted Barker if she had not 

been asked about her custody status. 

B. Plea negotiations 

Barker argues that her trial counsel was ineffective during plea negotiations when 

he did not show her the photographs of Viola’s injuries and thus failed to adequately 

show her the risks of going to trial. 

 Before jury selection, the trial court stated that Barker had offered to settle the 

case for a 15-year determinate sentence, and the prosecution countered with an offer of 

15 years to life with a guilty plea to second degree murder. Barker had been brought into 

court to discuss the offer and was given an opportunity to speak to her grandmother. She 

stated that she had had sufficient time to think about it, had conferred with her counsel, 

and wanted to take the prosecution’s offer. The court stated that Barker’s maximum 

sentence was 26 years to life in state prison; explained that the 15-year-to-life sentence 

meant that once she finished the 15-year term she might not be released and might serve a 

life term; informed her of her constitutional rights, which she waived; and detailed the 

other consequences of a guilty plea. After telling Barker that she would be on parole for 

life with conditions such as no travel outside the county, the court commented: “You’re 

giving me sort of a quizzical look. Is this new information for you?” and Barker 

answered, “Yes.” After Barker conferred with her counsel for a half-hour, the court 

stated that it had discussed the case with both counsel to better understand whether 

Barker was entering the plea voluntarily, and asked Barker whether she had any 

questions. Barker replied, “I want to change my mind. I want to go to trial.” After the 

court advised Barker that it would not accept a change of mind after jury selection was 

underway, she conferred again with counsel, who then informed the court that her 

decision was to go to trial. 

 Barker points out that she testified that she had decided to take the stand when she 

“was able to see photos and find out information about what took place. I didn’t know all 

of that information.” Defense counsel asked, “In other words, had you—had I shown you 

those photos before?” and Barker answered no. She now argues that without having seen 
19

the photographs before rejecting the plea offer, she could not adequately evaluate the risk 

she would face at trial, given the extent to which the photographs corroborated Mann’s 

testimony that Barker beat Viola severely on the day before Viola died. 

 The right to effective assistance of counsel extends to the negotiation and 

consideration of plea offers. (Missouri v. Frye (2012) 566 U.S. ___ [132 S.Ct. 1399, 

1405–1407, 182 L.Ed.2d 615].) “Defense counsel has a duty to communicate formal 

offers from the prosecution to accept a plea on terms and conditions that may be 

favorable to the accused,” and it was ineffective assistance when counsel “allowed the 

offer to expire without advising the defendant or allowing him to consider it” and the 

defendant later accepted a less favorable offer. (Id. at p. 1408.) A defendant can show 

prejudice by demonstrating a reasonable probability that he or she would have accepted 

the plea offer, and that there was a reasonable probability the plea would have been 

implemented. (Id. at p. 1409.) In Lafler v. Cooper (2012) 566 U.S. ___ [132 S.Ct. 1376, 

182 L.Ed.2d 398], decided the same day, the Supreme Court found counsel ineffective 

where “all parties agree the performance of respondent’s counsel was deficient when he 

advised respondent to reject the plea offer on the grounds he could not be convicted at 

trial.” (Id. at p. 1384.) Defense counsel had advised the defendant that the prosecution 

would be unable to establish his intent to murder the victim, because she had been shot 

below the waist. (Id. at p. 1383.) Even if his trial was fair, the defendant was prejudiced 

where he received a minimum sentence three and a half times greater than was offered 

him under the plea. (Id. at p. 1386.) 

 It is not in dispute that Barker’s counsel did not show her the photographs of 

Viola’s injuries before trial. Yet Barker was present at the preliminary hearing, where 

she was represented by trial counsel, and heard testimony describing the extent of Viola’s 

injuries. Dr. Partnow, the emergency room physician, testified that Viola’s body had a 

“very large surprising amount of bruising to her left and right hip and the inner aspect of 

her right bicep extending up into her armpit” and “bruising around the buttocks,” and the 

sight of the injuries made him think she had suffered a traumatic event. Dr. Ribe, the 

coroner, testified that he saw eight blunt force injuries in different areas when he 
20

performed the autopsy. There was a large amount of hemorrhage, swelling, and bleeding 

in the buttocks tissue. His opinion was that Viola’s death from blunt force trauma 

“definitely was caused by child physical abuse.” Dr. Ribe also testified that the injuries 

to the buttocks could have been inflicted up to 24 hours before Viola died. There was a 

large pool of blood in Viola’s chest from other injuries that occurred while she was still 

alive. It was possible that Viola could have died from the buttocks injuries alone. Her 

“very, very significant pain” would have contributed to her going into shock, which was 

the cause of her death. This testimony certainly informed Barker of the medical evidence 

regarding Viola’s extensive and severe injuries, alerting her to the likely testimony of the 

doctors at trial and the concomitant effect on the jury. Counsel knew Barker had heard 

the testimony and could reasonably have concluded that Barker was already aware of the 

extent of the injuries without the photographs. We note that Barker does not argue that 

she was not aware that there were photographs or even that photographs would be shown 

at trial, nor does she argue that she was unaware of any other evidence. Barker has not 

demonstrated that simply because counsel did not show her the photographs of those 

fully described injuries during plea discussions, she was unaware of the strength of the 

evidence and its likely impact on the jury. 

 Even if the failure to show her the photographs during plea negotiations did 

constitute deficient performance, Barker has the burden to show prejudice, meaning that 

if counsel had shown her the photographs, there is a reasonable probability that she 

would have accepted the plea offer and the lower sentence. Without having seen them, 

she initially accepted the plea offer and then withdrew her acceptance after the court 

advised Barker of the consequences of a plea, including that she still could serve a life 

sentence and would in any event be on probation for life, and prohibited from leaving the 

county. The court noted that Barker looked quizzical, and Barker said this was new 

information to her. After conferring with counsel, she rejected the plea offer. We do not 

think it is reasonably probable that the photographs, if shown to her after her initial 

acceptance of the plea offer, would have so changed her assessment of the case that she 

would not have changed her mind and gone to trial. 
21

C. Julian’s hearsay statement 

Barker argues that counsel was ineffective in failing to request the redaction of 

Valerie M.’s testimony to eliminate as hearsay Julian’s statement to Barker in 

Valerie M.’s kitchen, which Valerie M. believed was a threat: “‘Baby, let’s forget this. 

You know, you ain’t got to talk to her about nothing because when it comes down to it, if 

she winds up involved in this, we involved in, she going to come up missing, she say 

some—she say something wrong about me or her.’” Barker responded, “‘No, it ain’t 

like that.’” 

 The statement was not hearsay at the preliminary hearing, as Julian was Barker’s 

codefendant at that time and present in the courtroom. (Evid. Code, § 1220.) At trial, 

Julian was no longer a defendant and neither he nor Valerie M. was present at trial, and 

the jury was instructed not to speculate about the reasons for their absence. The 

statement is thus hearsay. Although there is no indication in the record of counsel’s 

reasons not to object, we see an obvious tactical reason. Barker’s defense sought to make 

Julian responsible for Viola’s death, and evidence that Julian made a threat against 

Valerie M. would bolster that theory and cast Julian as a violent person seeking to cover 

up his crime. Allowing in Julian’s statement allowed the jury to hear and understand 

Barker’s immediate repudiation of his threat, which put Barker in a favorable light and 

further bolstered the defense theory that Julian, not Barker, was to blame. 

 We also see no prejudice. Barker argues that the statement likely made the jurors 

believe that Valerie M. was unavailable because Julian had carried out his threat by 

eliminating her, and in turn the jury may also have believed that Barker had “caused the 

disappearance of” both Valerie M. and Julian. We find it implausible that the jury would 

infer that Barker had eliminated both Valerie M. and Julian. Further, the trial court 

instructed the jury not to speculate why either witness was unavailable, and we presume 

that the jury followed this instruction. (People v. Homick (2012) 55 Cal.4th 816, 873.) 

D. Barker’s lack of emotion 

Barker argues her counsel was ineffective when he “abandoned” efforts to explain 

why she appeared relatively emotionless on the day Viola died. When Barker testified at 
22

trial that she appeared emotionless because two traumatic incidents made it difficult for 

her to express emotion, the prosecutor objected that the testimony was not relevant. Out 

of the presence of the jury, defense counsel stated that Barker would testify that she was 

raped and physically abused by a family member. The court stated it needed to know 

more about the incidents. Counsel replied that Barker could tell the court the details. 

This irritated the trial court, which pointed out it was counsel’s job to provide the 

information to the court. Counsel conferred with Barker and told the court that Barker 

had been kidnapped and raped by a family friend, and her mother had said it was 

Barker’s fault; and when her mother was dying, Barker’s older cousin had prevented 

Barker from going to see her mother because Barker was crying. The court asked 

additional questions, counsel was not sure of the answers, and at one point Barker 

interjected information. Counsel then stated that he had made a decision not to introduce 

the testimony about the incidents to avoid a “mini trial . . . . [¶] . . . [¶] I don’t feel 

getting into that depth would even help my case at all.” The court noted that the 

prosecution would want to explore the details of the incidents, and counsel stated he just 

wanted to move the trial forward. Counsel agreed to confine his questioning to whether 

“past incidents” in her life had made Barker an unexpressive person, and Barker’s 

testimony resumed. 

 Counsel made a reasonable strategic decision not to examine Barker in detail 

about the incidents in her past, which would result in a “mini-trial.” Further, Barker has 

shown no prejudice. In closing, defense counsel argued forcefully that the jury should 

not construe Barker’s perceived lack of emotion as evidence of guilt. But the evidence 

against Barker was strong, and we do not believe the jury would have reached a different 

result had they heard more about events in Barker’s past. 

 As we conclude that none of the individual issues identified by Barker constitute 

ineffective assistance, there was no defective performance overall. Finding no error on 

her other claims, we conclude that her trial was not fundamentally unfair. 
23

III. Marsden6 motion 

At the date set for sentencing, the court stated that defense counsel had advised it 

that Barker wanted to argue that counsel was ineffective at trial and she wanted a 

different appointed attorney. The court conducted a hearing pursuant to Marsden. 

Barker stated that exculpatory evidence was not introduced at trial. Her counsel stated 

that she likely referred to evidence presented by the previous prosecutor, mostly reports 

and other documents from DCFS. The pretrial judge had reviewed the documents and 

stated there were four or five relevant incidents, but they were inculpatory (involving 

physical punishment of foster children with a belt). Counsel had “looked over what was 

available,” and concluded that the only useful information was that Barker had been 

engaged in providing foster care for some time. He had made a strategic decision not to 

use it. 

 Barker also stated that counsel had failed to call a witness who could have 

discredited Valerie M. Leon Knight, a family friend, would have testified that he had not 

been at Barker’s home on May 3, 2010, in contradiction to Valerie M.’s testimony that 

“Leon” was in the backyard with Julian. Knight would testify that neither he nor she was 

there that day. Defense counsel explained that he had talked to Knight many times, and 

the theory was that Knight could have said that he did not remember Valerie M. coming 

into the backyard to get Julian. Knight, however, was not articulate, was very forgetful, 

“wasn’t able to connect,” and could not have placed himself at the house the day before 

Viola died. Counsel also stated that Knight had hung up when counsel called to ask him 

to testify, and in any event counsel felt Knight was uncooperative and had he appeared in 

court, he might have inculpated Barker. 

 Finally, Barker stated that counsel never sat down with her to prepare, she knew 

nothing about what would happen at trial, and counsel had not talked to her about 

potential witnesses or expert witnesses. The court reminded Barker that it had initially 

refused to allow the plea offer but had relented, and Barker ultimately decided she did not 

 6 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). 
24

want it and wished to go to trial. Barker had never stated that she needed more time or 

that defense counsel had not gone over the case with her. In the court’s view, her counsel 

had argued the case very well and done as well as possible. Defense counsel stated that 

he had hired an expert, who had told him “you don’t want to call me [the expert] as a 

witness.” The evidence regarding the bed railing was weak, so counsel felt in the face of 

the medical evidence his best choice was to argue that someone else killed Viola. 

Counsel averred there were earlier plea discussions, and the prosecution only made the 

15-to-life offer on the eve of trial; if he had rushed Barker, “that is what I had to deal with 

at that time.” He had visited with Barker at least 20 times over the three years of her 

detainment. 

 The court concluded that Barker had not shown that any of her complaints about 

trial counsel were substantial, and stated, “I don’t believe that anyone else could have 

done better than what he did.” The court denied Barker’s motion to replace trial counsel 

with different appointed counsel. 

 When a defendant claims ineffective representation by appointed counsel and asks 

the court to substitute another appointed attorney, the trial court must allow the defendant 

to explain his request and state specific reasons why current counsel is not providing 

adequate representation. (Marsden, supra, 2 Cal.3d at pp. 123–124.) A defendant is 

entitled to a substitute appointed lawyer if, during an ensuing Marsden hearing, he 

“makes a showing . . . that his right to counsel has been ‘“‘substantially impaired.’”’” 

(People v. Sanchez (2011) 53 Cal.4th 80, 90.) We review the trial court’s denial of the 

motion for an abuse of discretion. (People v. Taylor (2010) 48 Cal.4th 574, 599.) 

 First, trial counsel made a tactical decision not to use the evidence Barker 

complains was lacking at trial, because it was in the main inculpatory. Second, Knight’s 

purported testimony, as described by Barker, was internally contradictory. If Knight was 

not at Barker’s house on March 3, 2010 he could not testify that Valerie M. was not there 

or that she had not come into the backyard to get Julian. Counsel judged Knight to be an 

inarticulate and forgetful witness, and made a legitimate tactical decision that calling him 

would merely disadvantage Barker. Third, counsel stated at the hearing that he had hired 
25

an expert who advised counsel the expert’s testimony would hurt Barker; he had made an 

earlier plea offer, which was rejected, and had to deal with the last offer at the last minute 

just before trial; and he had visited Barker at least 20 times. Barker did not demonstrate 

that her right to counsel was substantially impaired. Counsel provided legitimate tactical 

reasons for his trial decisions. The trial court’s decision to deny the motion was not an 

abuse of discretion. 

 As to the other issues Barker raises regarding her counsel’s performance, she did 

not raise them at the hearing, and they are therefore forfeited. 

IV. Sentencing issues 

 The trial court imposed a sentence of 15 years to life with a possibility of parole 

on count 1, noting that Barker was not eligible for probation because the jury found the 

great bodily injury enhancement true. Respondent correctly points out that the great 

bodily injury enhancement on count 1 (murder) should have been stricken, as section 

12022.7, subdivision (g) states that the enhancement “shall not apply to murder or 

manslaughter.” “‘We must give effect to this plain language.’” (People v. Cook (2015) 

60 Cal.4th 922, 933, 938.) Therefore, the jury’s true finding on the great bodily injury 

enhancement to count 1 must be stricken and the trial court must resentence Barker on 

count 1 without the enhancement. 

 Respondent also states that a criminal conviction assessment of $30 should have 

been imposed on each count. The court imposed the fee only as to one count, presumably 

count 2. Government Code section 70373 states that an assessment fee of $30 “shall be 

imposed on every conviction for a criminal offense.” Although the court stayed the 

sentences on counts 1 and 3 under section 654, mandatory fees must be imposed even if a 

sentence is stayed. (People v. Crittle (2007) 154 Cal.App.4th 368, 370–371.) When a 

fee or penalty is mandatory, we may “properly correct[] the trial court’s omission of 

[such fees or penalties] even though the People raised the issue for the first time on 

appeal.” (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.) The trial court was 

required to impose the $30 assessment on each of the three counts of conviction. 
26

DISPOSITION 

 The jury’s true finding that Kiana Barker inflicted great bodily injury in 

connection with committing murder in count 1 is stricken. The matter is remanded for 

resentencing on count 1. Upon resentencing, the trial court shall impose a $30 criminal 

conviction assessment fee on each of the three counts of conviction. In all other respects, 

the judgment is affirmed. 

 NOT TO BE PUBLISHED. 

 JOHNSON, J. 

We concur: 

 CHANEY, Acting P. J. 

 BENDIX, J.*

 * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.