Filed 2/27/13 P. v. Kovacevich CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. DANA KOVACEVICH, Defendant and Appellant. H037257 (Santa Clara County Super. Ct. No. CC756864)

An information filed on May 16, 2008, charged Dana Kovacevich (appellant) with one count of assault on a child with force likely to produce gr eat bodily inju ry resulting in death (Pen. Code, § 273ab, count one , hereafter child abuse homicide) 1 and one count of murder (§ 187, count two). 2 Following a jury trial, appellant was f ound guilty as charged. Subsequently, the court sentenced him to 25 years to life in prison on count one an d 15 years to life on count two. The court stayed the sentence on count two pursuant to section 654. Appellant filed a timely notice of appeal. On appeal, appellant raises numerous issues related to the trial court proceedings, which we will outline later. In addition, he asks that we independently review the

1 Penal Code "[s]ection 273ab defines th e offense of child abuse homicide." ( People v. Wyatt (2010) 48 Cal.4th 776, 780 ( Wyatt ).) 2 All unspecified statutory references are to the Penal Code.2 material considered by the tr ial court at an in camera Pitchess hearing. 3 For reasons that follow, we affirm the judgment. Evidence Adduced at Trial Joby Bayas met appellant in 2000 or 2001 . Ms. Bayas and appellant began a long term relationship resulting in the birth of th eir son Justin on December 21, 2006. Due to the fact that Justin was in a breech position and the doctors could not turn him, he was delivered by Cesarean section. There were no complications with the delivery, but, initially, Justin was not breathing properly and so he was taken to the intensive care unit for five minutes. After Justin was returned to Ms. Bayas, th ey stayed in the hospital for three days; Justin was slightly ja undiced when he arrived home. Around the end of December 2006, Ms. Ba yas took Justin to the doctor to check on the jaundice; she was told that Justin was fine. Ms. Bayas was Justin's primary caregiver at this time. However, appellant would help care for Justin by feeding him, changing his diapers and giving him baths. Justin was never left in the care of anyone else. Sometimes, Ms. Bayas w ould leave Justin for about 30 minutes in appellant's care while she went to the grocery store. On occasion, appellant 's eight year old daughter Karina would stay with Ms. Bayas and appe llant. However, she did not take care of Justin. Ms. Bayas testified that Justin ha d never been dropped, nor had he fallen from furniture or his crib. Justin appeared to be a normal, h ealthy and happy baby; he did need his head supported when held an d could not roll over on his own. On the morning of January 31, 2007, when Justin was fi ve and one half weeks old, appellant woke before Ms. Ba yas and fed Justin. Ms. Baya s awoke between 9 a.m. and 9:30 a.m. She got ready to visit appellant's mother Barbara Martin in Hayward. Ms. Bayas and appellant, along with Justin, left th e house around 10:30 a. m. Justin seemed happy. While at Ms. Martin's house the adults spent their time talking and playing with

3 Pitchess v. Superior Court (1974) 11 Cal.3d 531.3 Justin; nothing unusual happened. Justin was fed and napped. Befo re appellant and Ms. Bayas left Ms. Martin's house at between 5:30 p.m. and 6 p.m., Ms. Bayas fed Justin one more bottle and changed his diaper. On the way home, Justin slept in the car until they hit some stop-and-go traffic near Milpitas. Justin cried every time the car stopped and would stop crying when the carmoved again. Justin crie d intermittently for about 30 minutes and spat out the pacifier that Ms. Bayas gave him. Around 7 p.m. the family arrived home. Justin was asleep but woke up crying when Ms. Bayas and appellant took him inside. Ms. Bayas th ought that Justin might be tired or hungry. She told a ppellant that she was going to go to the grocery store to get some more formula and some breakfast items. She handed Justin to appellant. Again, Justin was crying on and off. Ms. Bayas deni ed that Justin had be en crying all day. Ms. Bayas went to Safeway and Longs Drugs , which were five to 10 minutes from the house. While at the drug store, Ms. Bayas received a cellular telephone call from appellant. Appellant sounded scared and told her to hurry home because something was wrong with Justin. It took Ms. Bayas about five to six minutes to get home. Ms. Bayas could hear a siren as she near ed the house, but she arrived home before the ambulance. The first thing that she saw when she entered the house wa s Justin on the couch not breathing with his face turnin g purple. Ms. Bayas asked ap pellant what had happened, but he was on the telephone and did not respond. A telephone call to 911 was played for the jury. Ms. Bayas could be heard screaming and crying in the background. She testified that appellant was calm, but appeared scared. Appellant tried to breathe into Justin as instructed by the 911 operator. After around a minute, the fire department arrived. When the paramedics came they placed Justin in an ambulance. Ms. Bayas and appellant followed the ambulance to the hospital. At the hospital, Justin was not responding and a ppeared lifeless. On or about February 3, 2007, Jus tin was declared brain dead and was disconnected from life su pport on February 6.4 Emergency Personnel When fire department personnel arrive d at the Kovacevich home, appellant was performing CPR on Justin following directions from the 911 operator. The paramedics arrived sometime thereafter; appellant and Ms . Bayas told them th at Justin had been crying on and off all day and was not acting appropriately; then, he stopped breathing. The paramedics took over admi nistering CPR and gave him oxygen. They could not detect a pulse. They did not see any visibl e signs of trauma to Justin's body. The paramedics took Justin to Good Samaritan Hospital by ambulance. Medical Testimony Dr William Silva assisted the attending physicians in attemp ting to resuscitate Justin in the emergency room. Justin app eared lifeless and gray and was not moving or breathing; there were no signs of life. Dr. Silva noted extensive re tinal hemorrhaging of Justin's eyes, which he explained was a ruptur e of blood vessels around the center of the eye. Dr. Ghelik, who was th e first doctor to attend to Ju stin in the emergency room, confirmed the retinal hemorrhaging. Justin's pupils were widely d ilated and nonreactive, suggesting severe brain dysfunction. Dr. Silv a testified that retinal hemorrhaging is often associated with Shaken Baby Syndrome. Along with the re tinal hemorrhaging, Dr. Silva saw that Justin's anterior fontanel (soft s pot) was "bulging like an egg off the top of the baby's head and firm as a rock" which sugg ested to him that there was a "tremendous amount" of brain swelling. The combination of these two things su ggested to Dr. Silva that Justin's injuries were ca used by non-accidental trauma. No evidence of bruising or "bony" injury was apparent. As he continue d his attempt to resusc itate Justin, Dr. Silva asked the paramedics to notify the police, who were at the hospital, of his concerns that Justin was the victim of child abuse. Very briefly, Dr. Silva spoke with Ms. Bayas and appellant. They told Dr. Silva that Justin had been healthy be fore this event and that they had spent the day at the house of Justin's grandmother. Ms. Bayas and appe llant told Dr. Silva that Justin had been5 irritable, but they reported nothing unusual. They said that when they got home, Justin seemed to hold his breath and then stop breathing. Dr. Silva's examination of Justin showed that he was comatose. Dr. Silva did not detect a heart murmur. Nor could he see anything abnormal or unusual on Justin's extremities except the blo od flow into Justin's palms and soles was not normal. Dr. Silva saw no signs of neurologic functioning—no voluntary movement, no evidence of awareness—nothing that Dr. Silva would attribut e to brain functioning. Justin's skin was cyanotic or blue. A CT scan of Justin's he ad showed multiple ar eas of hemorrhaging and swelling of the brain. Dr. Silva explained th at in a six week old baby it is possible for brain swelling to occur rapidly. Chest X-rays showed that Justin's lungs were clear with no evidence of pneumonia or congestion. Ju stin had a high white blood cell count, which at the time, Dr. Silva attribut ed to either a stress response or a possible infection. Based on his examination of Justin and a ll the test results, Dr. Silva concluded that Justin had "sustained severe brain injury of undetermined cau se." Based on the totality of the circumstances presented to him, Dr. Silv a suspected Shaken Baby Syndrome. In fact, he documented his suspicions in his re port—"probable Shaken Baby Syndrome." At trial, Dr. Joseph DiCarlo, a pediatric and critical care specialist at Good Samaritan Hospital, was qualified as an expert in pediatric in tensive care and in the area of child abuse. Dr. DiCarlo cared for Justin for four days. Dr. DiCarlo noted that there were no external signs of injury on Justin's body, but he did observe the bulging fontanel and retinal hemorrhaging. The initial CT scans showed small areas of bleeding in Justin's brain, but the X-rays showed no fractures on the body. Justin was given broad spectrum antibiotics because tests showed there were two types of ba cteria in his body. Dr. DiCarlo attributed Justin's initial high white blood cell count to the large amounts of epinephrine used in resuscitation attempts; hi s white blood cell count returned to normal a few hours later.6 Within a day or two of his admission to the hospital, an EEG showed that Justin had no brain function. As noted, he was declared brai n dead on February 3, 2007. Preliminarily, Dr. DiCarlo concluded that th e cause of death was non-accidental trauma, sepsis or a combination of both. He suspec ted child abuse; all th e signs showed that Justin was shaken or hit. However, he was uncertain whether Justin sustained a mild trauma and bled more due to his blood's very poor ability to clot. Dr. DiCarlo thought that Justin was a sick baby who just got sicker; he had a "nagging doubt" about Justin's clotting ability. Nevertheless, Dr. DiCarlo acknowledged that when he examined Justin and formed his conclusion he di d not have the benefit of the autopsy findings that Justin had subarachnoid hemorrhaging, a subdural hematoma, and axonal damage. Dr. DiCarlo explained that the axonal damage could have not been caused by sepsis because it is caused by rapid movement, motion and impact, acceleration or decele ration. Dr. DiCarlo agreed that the pathologist would be in a be tter position to determine the cause of Justin's death. He agreed that in th e absence of shaking and blunt force trauma, Justin would not have presented the "constellation" of injuries that he did. Dr. Christopher Happy was the Santa Clar a County Medical Ex aminer in 2007. At trial, he was qualified as in expert in pediatric pathology, neuropathology and anatomic pathology. Dr. Hap py observed Justin while he wa s still on life-support at the hospital; he performed an examination of Jus tin's body. Subsequently, he performed the autopsy on Justin. During Justin's autopsy, Dr. Hap py discovered two areas of sub scalp hemorrhaging (deep bruising under Justin's sc alp), which had gone through both the skin and scalp into the underlying ligament. He a ttributed these injuries to blunt force head injury. In addition, he obs erved bleeding in the subara chnoid membrane; bleeding was found on all sides of Justin's brain, whic h was extremely swollen. The brain was so swollen that the brain ridges were flattened and the brain was beginn ing to herniate or7 push down into the hole at the base of the brai n. He noted hemorrhaging around the optic nerve of Justin's eyes and there was hemo rrhaging along Justin's spinal cord. A microscopic examination of Justin's brain tissue and organs, as well as a microbiological study, revealed no evidence of disease, abnormaliti es or infection; no viral or bacterial organisms were found. The microscopic examination confirmed subarachnoid hemorrhaging, sheath hemorrhag ing and retinal hemorrhaging. Dr. Happy discovered shearing damage to the axons thatconnect the brain nerve cells, which he attributed to blunt head inju ry involving sudden acceleration and deceleration. He noted that a person rarely surviv es this kind of injury. Dr. Happy concluded that the cause of Justin's death was "[b]lunt force head injury" caused by a forcible impact against an "object that does not have a sharp edge." He opined that in "ord er for that hemorrhage to go through all the layers of the scalp and then into the firm ligament ous tissue underneath, a signifi cant amount of force would have had to have been applied." Outside of child ab use, Dr. Happy had seen head injuries similar to Justin's in juries only from falls from great heights, such as 20-30 feet and from motor vehicle accidents in volving great forces. The a xonal injury indicated that great forces were involved. Dr. Happy conc luded that Justin's death was the result of child abuse because the two different areas of bruising could not have been caused by a fall and at least two blows would have had to have been inflicte d. He testified that due to the fact that there were two impact sites on the scalp, vigorous sh aking alone would not have resulted in Justin's severe brain injury. Although Dr. Happy found an unusually high blood alcohol level in Justin's blood, he attributed it to the postmo rtem process where naturally oc curring bacteria in the body can ferment sugars into alco hol. In examining Justin's postmortem cultures Dr. Happy determined that Justin did not have sepsis an d the bacteria that had been detected at the hospital were likely contaminants. He added that even if Justin had sepsis it did not explain his injuries, which could no t have been caused by sepsis.8 Dr. Happy opined that if Justin's injuri es had been sustained approximately an hour and a half before Justin arrived at the hospital such a time frame was consistent with his findings. Further, there was no evidence Ju stin died of falling a short distance or from Sudden Infant D eath Syndrome. Dr. Michelle Jordan was qualified as an expert on anatomic and neuroforensic pathology at trial. At the request of the prosecution, she prepar ed at report regarding Justin's death. She did not examine his bo dy, but did review Dr. Happy's report and all pertinent medical records and laboratory data. Dr. Jordan agreed with Dr. Happy that the cause of Justin's death was "blunt impact of the head." Dr. Jo rdan did not find any evidence th at Justin suffered any trauma during his birth; she rejected the theory that the cause of death was sepsis because the CT scan showed brain swelling from massive head injuries. Further examination showed that Justin had flame-shaped retinal hemorrhages that occur in child abuse cases and not as a result of CPR. Dr. Jordan did not ex clude the possibility th at someone had given Justin alcohol before he died ; she ruled out the possibility that his high blood alcohol level was the result of postmortem decomp osition because his body had not been decomposing. After examining samples of Justin's brain under the microscope, Dr. Jordan concluded that Justin died from massive cer ebral head trauma; Justin had a stroke because of the massive brain swe lling. There was evidence in Justin's brain of significant acceleration and deceleration injuries. Howe ver, she was unable to say what kind of force was needed to cause Justin 's injuries. Dr. Jordan conf irmed that Justin's injuries were not consistent with just shaking, but co ncluded that there was some type of impact that occurred to his head, wh ich caused the scalp bruising. In other words, he suffered a combination of shaking and impact—blunt tr auma to the head fro m being thrown. Dr. Jordan opined that the manner of death was a homicide.9 Dr. Katherine Albin was qualified as an e xpert in pediatric me dicine and diagnosis of physical child abuse. Again, Dr. Albi n was not involved in Justin's treatment, but independently reviewed Justin's entire histor y, medical records, diagnostic tests and autopsy results in order to determine if Justin's traumatic brain injuries were accidental or not. Based on her review of all the evidence, Dr. Albin concluded that the types of injury seen in Justin at the autopsy were a result of non-accidental abusive head trauma. She explained that the two areas of hemorrhagin g on the inner layers of Justin's scalp suggested that there was impact to Justin's head. She opined that ther e was not one single mechanism associated w ith Justin's injuries; rather, there was shaking and perhaps impact or both. She agreed that th ere was evidence of blunt for ce trauma and that there was some impact against a firm surface and perhap s occlusion of Justin's airway. She opined that non-trivial force was used. Dr. Albin rule d out the notion that sepsis played any part in Justin's death, or was the result of a difficult birth. Furt her, there was no evidence that Justin sustained injury earlier in the day and then sudd enly deteriorated; nor was there evidence that he had a prior head inju ry or older subdural hemorrhage. A recording of a police interview of appe llant was played for the jury. In the interview, appellant admitted to having shak en Justin hard beca use he was crying.
Discussion I. Alleged Error in Admitting Appe llant's Statement to the Police Appellant moved in limine to suppress evid ence of an intervie w he had given to Detectives Manion and Randol on February 2, 2007, on the ground that the interview was coerced and involuntary. 4 The court held an Evidence Code section 402 hearing at which Detective Randol testified about the circumst ances of the interview. After watching a DVD of the interview, the court ruled that it was admissible. The court stated, "I just

4 In addition, appellant sought suppression of the interview on the ground that he had not been given Miranda warnings. ( Miranda v. Arizona (1966) 384 U.S. 436.) Appellant does not raise that issue on appeal.10 don't see the coerciveness the ca ses talk about, nor do I see any promises of leniency. The only promise that the officers seem to be making was the promise of how telling the truth would unburden Mr. Kovacevich; sort of the-truth-shall-set-you-free type of thought. . . . [¶] . . . I didn't hear or see anything even implied with respect to that there was going to be punishment or leniency if M r. Kovacevich didn't turn his story around." During the trial, appellant objected to the playing of the recording for the jury, but the court overruled the objection "on the same ground as noted by the Court during the pretrial proceedings." Appellant argues that the court's analysis of the interview was flawed. He asserts that the detectives employed a variety of improper coercive interrogation techniques to a degree that rendered his admissions involuntary as a matter of law and mandated that the interview be excluded fro m evidence. He contends that because of the importance of his admissions to the prosecution's case, he was prejudiced by the erroneous admission of the interview and that this court mu st reverse his convictions. Due process requirements prohibit the use at trial of involuntary statements obtained by coercive police questioning. ( Colorado v. Connelly (1986) 479 U.S. 157, 167; People v. Benson (1990) 52 Cal.3d 754, 778.) Accordingly, under both federal and state law, before a defendant's pretrial st atement may be admitte d into evidence, the prosecution has the burden of proving by a preponderance of the evidence that the statement was voluntary. ( Lego v. Twomey (1972) 404 U.S. 477, 489; People v. Sapp (2003) 31 Cal.4th 240, 267.) We apply a "totality of circumstances" test to determine the voluntariness of a confession. ( Withrow v. Williams (1993) 507 U.S. 680, 693; People v. Williams (1997) 16 Cal.4th 635, 660.) Among the factors to be considered ar e " 'the crucial element of police coercion [citation]; the le ngth of the interrogation [cita tion]; its loca tion [citation]; its continuity' as well as 'the defendant's maturity [citation] ; education [citation]; physical11 condition [citation]; and mental health.' [Citation.]" ( People v. Williams , supra , 16 Cal.4th at p. 660.) In other words, no single factor is dispositive. A confession is voluntary if the suspect 's decision to speak is entirely "selfmotivated" because he freely and voluntarily chooses to sp eak without any form of compulsion or promise of reward. ( People v. Thompson (1980) 27 Cal.3d 303, 327-328.) Lies told by the police to a suspect under questioning do not render the confession involuntary per se. The court must look to see whether the deception is reasonably likely to procure an untrue confession. ( People v. Farnam (2002) 28 Cal.4th 107, 182.) Similarly, police trickery, by itself, does not render a confession involuntary ( People v. Thompson (1990) 50 Cal.3d 134, 167), because subt erfuge is not necessarily coercive. ( People v. Felix (1977) 72 Cal.App.3d 879, 885-886.) A trial court's determination of the volunt ariness of a confession is reviewed de novo, while the trial court's historical findi ngs of fact surrounding the confession are reviewed under the deferential su bstantial evidence standard. ( People v

. Williams, supra , 16 Cal.4th at pp. 659-660.) To the extent the facts conflict, we accept the version favorable to the People if suppor ted by substantial evidence. ( People Weaver (2001) 26 Cal.4th 876, 921.) If the defendant is led to believe he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, the prosecution, or the court, in consideration of making the statement, even if truthful, such motivation is deemed to render the statement involuntary. ( People v. Holloway (2004) 33 Cal.4th 96, 115.) However, mere advice or exhortation that it would be better to tell the truth, when unaccompanied by either a th reat or a promise does not re nder a subsequent confession involuntary when the benefit pointed out is merely that which flows naturally from a truthful statement. ( Ibid .) During the interview, after steadfastly main taining that he may have shaken Justin because he was limp and making a loud snoring noise, appellant finally admitted that he12 shook Justin out of frustration because he wa s crying. Appellant maintains that this damaging admission was coerced because Detective Randol and Manion employed psychological coer cion to overbear his will. Appellant argues that the detectives used a three pronged approach in extracting his confession. First, the detectives assure d him that it made no di fference what he said because the forensic ev idence had already told them ev erything they need ed to know. Second, they made a succession of veiled promis es that in return for telling them what they wanted they would use their influence w ith the criminal justic e system to improve his position. Third, they assured him repeat edly that a confession that he had shaken Justin out of frustration would make things better for him, not worse. " ' "The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear up on the accused were 'such as to overbear petitioner's will to resist and bring aboutconfessions not freely selfdetermined.' [Citation.]" [Citation.] In de termining whether or not an accused's will was overborne, "an examination must be made of 'all the surrounding circumstances—both the characteristics of the accuse d and the details of the in terrogation.' [Citation.]" [Citation.]' [Citation.] [¶] A finding of coercive police activ ity is a prerequisite to a finding that a confession was involuntary under the federal a nd state Constitutions. . . . [Citations.] [¶] . . . Alth ough coercive police activity is a necessary predicate to establish an involuntary confession, it 'doe s not itself compel a finding that a resulting confession is involuntary.' [Citation.] The statement and the inducement must be causally linked. [Citation.]" ( People v. Maury (2003) 30 Cal.4th 342, 404-405.) The Circumstances of the Interview At the Evidence Code section 402 heari ng, Detective James Randol testified that he had interviewed appellant in February 2007. 5 On February 2, Detective Randol met

5 At the time of the 402 h earing Detective Randol held the rank of Lieutenant. However, we refer to him as Detective fo r consistency and to avoid confusion.13 with appellant at Good Samaritan Hospital in the ICU unit around mid-day and asked if he would go with him and De tective Manion to the police department to clarify some things. Appellant agreed to go with the o fficers; appellant was not handcuffed nor was he under arrest. The officers had received prelim inary information about Justin's injuries from medical personnel relayed to them by th e "Night Detective Unit." Further, the officers had spoken with an officer from the Family Violence Unit. Once at the police station, appellant was taken to a small interview room; appellant was offered water. The officers le ft the room to make sure their recording equipment was working, then returned and st arted to interview appellant. Although the officers were direct and firm with appellant, there was no "yelling." Appellant was told that he was not under arrest and was free to leave at any time; appellant was told that after the interview he would be taken back to the hospital. In the middle of the interview, appellant was left alone in the room with the do or unlocked. Detective Randol testified that they did not make up evidence or confront appellant with anything that was false. Appellant was offered food and water twice; appellant did not request water at any time or request to take a break. The interview lasted approximately two hours. At the end of the interview appellant was taken back to the hospital. Our review of the DVD of the interview confirms these facts. Appellant points to the following stat ements in arguing the officers used psychological coercion to extract a confession from him. Implied Benefit and Prom ises of Leniency The detectives told appellant "Every tim e a baby come[s] into the hospital, they document every sign and symptom. Every last minute detail. Okay? And what happened to Justin, uh [unint elligible] we know exactly whathappened. . . . But what you're telling us, doesn't fit the science. Okay? It's just, it 's impossible." Then, later, "It's about science and it's about you can't . . . dispute science in this case. The injuries that he has are not from his breathing. They 're from being shaken. Period." Then, "In a14 shaken baby case, abso lutely 100%, they kn ow what happened. Everyone knows what happened." Later they told hi m, "I think Dana's trying to . . . outsmart science. There's certain things you . . . can't do. It's like . . . if you leave your D NA on this doorknob and leave this room and then lie to somebody and say you were never here. Well, the DNA is gonna say you're here. The injuries this child has, paint the picture for us, okay?" Appellant argues that these assertions were entirely deceptive, since no forensic examination had been conducted yet. Neither detective had spoken directly to any doctors at this point and Justin was still alive at this time and so no autopsy findings were available. Appellant asserts that as deceptive as the officer's statemen ts were, the officers appeal to " 'the science' plainly communicat ed to appellant that there was no hope, as demonstrated by his comments in respons e to them that 'you guys have already condemned me then' and 'you're gonna lo ck me up and throw away the key.' " We do not agree with appellant thatthe aforementioned statements were deceptive. The officers had information from both the Fa mily Violence Unit and the night detectives working the case, who had relayed information from the medical personnel. A reasonable inference to be dr awn from this is that the officers were informed that the medical pers onnel suspected that Justin ha d been shaken and that was the cause of his injuries. 6 More importantly, appellant was well aware that Justin's injuries were caused by him being shaken as evidenced by his statem ent, "[unintelligible] uh, they've already they told me that the majority of it was from me shaking him." Even so, "the use of deceptive comment s does not necessarily render a statement involuntary. Deception does not undermine th e voluntariness of a de fendant's statements to the authorities unless the d eception is ' " 'of a type re asonably likely to procure an untrue statement.' " ' [Citations .] ' "The courts have proh ibited only those psychological

6 At trial, Detective Randol testified that in fact he had spoken to Dr. Smyklo and possibly Dr. DiCarlo on the day before the in terview with appellant and the information they relayed to him was that Justin's injuries indicated that he had been shaken.15 ploys which, under all the circumstances, are so coercive that th ey tend to produce a statement that is both involuntary a nd unreliable." ' [Citation.]" ( People v. Williams (2010) 49 Cal.4th 405, 443.) In this case, it is eviden t that the officers' comments did not overcome appellant's will. During this part of the interview, ap pellant did not exhibit a ny signs of distress. Significantly, it was not until late r in the interview that appe llant made his incriminating statements that he shook Justin because he was frustrated with his crying. Appellant asserts that after leading him to believe they knew all the details of how he had shaken Justin, the officers began prom ising him that if he would only say how he had done it they would help him avoid a prison term. Appellant contends that the following statements fr om the officers illustrate his point. "We want you to tell us the complete truth, cuz you told us about 95[%]. Okay? And we want to take it, and then present it . . . ." Later, they told him "We want to, we want to help you out dude." Appellant maintains that the following passage makes his point particularly clear. "It was a mistake, and we'll walk you through it dude. This; we'll help you through this process. This is a tough time. You already have one child who's 11, thank God. But we will walk you through this bro, but you've gotta take responsibility for what you did. You gotta be a man now, yo u gotta be a man, and quit trying to outthink everything, and just get if o ff your chest. Now. This is the time to do it. Cuz you're gonna have no other opportunity to do it bro. This is the opportunity we're giving you. We told you to come down here, speak to us; this is your chance to get it off your chest. And then . . . we'll take care of it from there bro." Appellant points out that one of the officers added, "Y ou weren't thinking, but right now you're trying to think too much. Okay? We are actually on your side. We didn't come ther e with handcuffs and arrest you or anything like that. We believe that you had a story to tell, that you were gonna tell us the truth. And I'm glad you came down here to talk to us, but you need to16 take advantage of this opportunity we're pres enting to you right now . . . and tell us what happened." Appellant argues that the "clear implica tion" of the foregoing is that the officers were promising him that things would go better for him if he confessed. Again, we disagree with appellant. The implication of the police advice was that it would be better for him to tell the truth; nothing in the fore going remotely suggests that the officers were promising appellant that if he told the truth he would not be arrested and prosecuted for a crime. ( People v. Carrington (2009) 47 Cal.4th 145, 174.) Appellant asserts that the officers assured him that if he had shaken Justin out of frustration rather than in a de liberate attempt to k ill him, it would be a dvantageous to him to admit it. Appellant asse rts that the following statem ents illustrate his point. "The two choices we have to come up with; did you plan to go over there and shake him? Or was it just frustration? (finger snap) That's; that is reasonable. That's a reasonable explanation. It happens to pare nts all over this country, probably on a daily basis. We get frustrated with our kids. Yo u were frustrated." Later, one officer told appellant, "Now all we want to find out from yo u is if, you're an evil person, or you were just a frustrated parent. I believe you're a good guy, and I believe you're a frustrated parent. I don't believe you're the evil pers on"; and "you shook yo ur baby for thirty seconds out of your life. Shou ld people judge you for that the rest of your life?" In response to appellant's assertion that it was an accident and he di d not mean to shake Justin so hard, one officer sa id, "Yeah but it was an accident cuz you lost, or temporarily lost control of what was going on. It's frustration man. We all, we experience it. There's nothing wrong with that. It doesn't make you a bad person. Okay?" Later, one officer stated, "It's not a big deal. You shook the ba by. Okay? You pick up a two year old and you shake it, nothing happe ns. [Unintelligible] [B]ut it’s a baby; you didn't know that. You didn't know that would happen. If yo u had known that woul d have happened, and you would have picked the baby up and shook him, I'd say . . . this is the most evil person17 I've ever met in my life. But you didn't know that if you picked up a baby and shook him, that this would cause this kind of in juries; otherwise you wouldn't have done it. Right? . . . Am I correct?" Again, we disagree with appellant that the foregoing illustrates that the officers were promising him leniency if he confessed. It is entirely permissible for police to suggest possible explanations of the events and offer the suspec t an opportunity to provide the details of the crime. ( People v. Holloway (2004) 33 Cal.4th 96, 115 [questioning may include exchanges of info rmation, summaries of evidence, outline of theories of events, confrontation with contra dictory facts, even debate between police and suspect].) Certainly, the offi cers played to appellant's se nse of guilt in having shaken Justin, but we see no reasonable person in appellant's position—someone who having steadfastly maintained that he shook his baby only after he discovered him limp and breathing strangely—suddenly co nfessing falsely to having sh aken him out of frustration based on the officers' exhortations to tell the truth about how the incident happened. Similar to the foregoing, appellant c ontends that the follo wing was an implied promise of a benefit to him in that the jury would feel sorry for him. "[J]ust like you put a bunch of citizens in a room, you tell em the two versions; your version where your child's in [unintelligible] distre ss, and you shake him. Or the other version of what really happened. What sounds more reasonable and who you gonna feel more compassion for? You're not gonna feel compassion for the pe rson who says yeah, my child was in distress so I shook it. You might feel compassi on and most likely will for a person whose [ sic ] frustrated, and going through tough times." The distinction that is to be drawn be tween permissible police conduct on the one hand and conduct deemed to have induced an involuntary statement on the other "does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speak s the truth, as represented by the police." ( People v. Hill (1967) 66 Cal.2d 536, 549, italics added.) Thus, "[w]hen the benefit18 pointed out by the police to a su spect is merely that which fl ows naturally from a truthful and honest course of conduct," the subs equent statement will not be considered involuntarily made. ( Ibid .) On the other hand, "if . . . the defendant is given to understand that he might reas onably expect benefits in the nature of more lenient treatment at the hands of the police, prosecu tion or court in consideration of making a statement, even a truthful one, such motivation is deem ed to render the statement involuntary and inadmissible. . . ." ( Ibid .) As can be seen, the statement upon which ap pellant relies to argue that the officers made an implied promise of a benefit to hi m was not a benefit in the nature of more lenient treatment at the hands of the police, prosecution or the court. Appellant relies primarily on People v. Hogan (1982) 31 Cal.3d 815 ( Hogan ) (disapproved on another point in People v. Cooper (1991) 53 Cal.3d 771, 836) in support of his position that the office rs repeatedly promised him leniency and benefits if he confessed. In Hogan, the defendant was convicted and sentenced to death for murdering two members of a coworker's family. ( Hogan, supra , at pp. 820-822.) The defendant had been interviewed three tim es by police and denied culp ability during the first two interrogations. ( Id. at p. 836.) Police interrogators had advised the defendant: " 'if there is a particular problem why this thing could have been committed let me know and if it's a mental problem, whatever it might be, maybe we can help you with this part of the treatment or you know what might happen.' " ( Id. at p. 838.) By this and similar assertions, the police implied something wors e would happen to the defendant if he did not admit a mental problem he did not have . Further, the officer s instructed, " ' "Why don't you just tell us that you did it [and] then we'll get help for yo u," ' " which suggested that he would receive their help only if he confessed to committing the crime, whether he had actually committed it or not. ( Id. at p. 839.) In addition, the officers repeatedly misrepresented that eye-witn esses had identified the defendant as the perpetrator, and repeatedly suggested he had a "mental problem." After several interrogations, they19 finally convinced him that he had blacked out and perpetra ted the homicide, prompting him into making incriminating statements while vomiting and sobbing uncontrollably. ( Id. at pp. 838-840.) The nature, intensity, and dura tion of the police conduct in Hogan, as well as the defendant's extreme emotional state at the time of his confession, are not comparable to the circumstances in appellant's case. Alt hough in this case, unde rstandably, appellant was concerned about his baby, the officers in Hogan repeatedly exploited defendant's weakness by promising him psychiatric treatment. ( Hogan, supra, 31 Cal.3d at pp. 836- 838.) The officers' comments here fall well short of the egregious misconduct in Hogan, where the defendant repeatedly expressed anxi ety that he might be "crazy" and the police exploited that weakness by promising psychiatric treatment. (Id . at pp. 836–838.) None of the comments made by the officers can reasonably be characterized as coercive, or be said to constitute a motivating cause of appellant's subse quent confession. Finally, appellant argues that under a to tality of the circumstances analysis, this court must take into consideration that appe llant was escorted out of the intensive care unit where his infant son lay dying; that the officers ruthlessly exploited appellant's vulnerability resulting from this ci rcumstance; that the officers repeatedly suggested that Justin would think better of appe llant if he confessed; and th at the officers exploited his concern that his relationship with Ms. Baya s was going to crumble as a result of what happened by telling him Ms. Bayas might forg ive him if he confessed, but would never do so if he maintained his innocence. Appellant maintains the following statem ents suggested that Justin would think better of him if he confessed. "What are you doing to Justin?" Plus, "your baby was there[ ;] your baby knows what happened. Right? [D]oes that mean anything to you? Th at you're basically . . . not telling the truth and Justin knows the truth. As weird as that sounds, he does. He knows he was crying and he knows you picked him up and shook him. Maybe to death." Later,20 one officer said, "That is your boy. And your boy deserves better. You're speaking for Justin too. You're speaking for that child cuz the child cannot speak." Finally, one officer told him, "Be a man, and tell the truth. For Justin. He deserves it; right? Doesn't he? Can you do th at for Justin?" Any statement about a susp ect's children during interro gation will certainly cause stress and worry to the suspect-parent, given the "primordial" relati onship between parent and child. ( United States v. Tingle (9th Cir.1981) 658 F.2d 13 32, 1336.) Accordingly, bringing the issue of children in to an interrogation is to be done with caution and care, if attempted at all. Nevertheless, we must as k here, based on the totality of circumstances, whether the foregoing statements were likely to have overborne appellant's will such that he made a false confession. We cannot say they did. "No constitu tional principle forbids the suggestion by authorities th at it is worse for a defendant to lie in light of overwhelming incriminating evidence." ( People v. Carrington , supra , 47 Cal.4th at p. 174.) Appellant points to the fo llowing to argue that the officers exploited his concern that his relationship with Ms. Bayas was goi ng to crumble as a result of what had happened to Justin; and the "thrust of their interrogation on this point was that [she] might forgive him if he confessed, but would never do so if he persisted in maintaining his innocence." "I never felt clean lying. For me I'd justsay man I fucked up. Okay? But you're going back in that hospital one of two ways. That's straight up bro. You're either; you're either a liar, a cold calloused liar who . . . probably's . . . killed your s on. Or you're gonna be the guy that says hey man; I fucked up. I fucked up and I s hook my baby when I shouldn't. I didn't; I never knew; I, I just, I'd never thought, I just lost it but I never thought I would hurt my baby to that extent. I wasn't trying to hu rt your, your baby." Appellant argues that the detectives were "clearly" telling him what he needed to say to Ms. Bayas to earn her forgiveness; and told him if he chose not to confess "We'll21 write that bullshit story down. And it; you kn ow what in the end? I'm gonna go over there and I'm gonna say hey you know what? Dana's a liar." However, after he expressed concern that he "want[ed] to be th ere for Joby," the officers told him "there's nothing to stop" it, that "Joby would want [h im] to tell the truth." Then, after appellant said that he was not worried about the ramifi cations of what was go ing to happen next, one of the officers said that if appellant wa s going to explain things "with . . . this little cover-up" he would be "devastating" his relationship with Ms. Bayas. Appellant argues that foregoing combined with the implication that he could avoid a prison sentence if he confessed, sugges ted that Ms. Bayas would never agree to continue her relationship with him unless he confessed. Certainly, interrogations in which the po lice exploited a defendant's fear of losing his family to coerce a confession ha ve been condemne d. (See, e.g., Lynumn v. Illinois (1963) 372 U.S. 528, 534 [oral confession made on ly after the police told the defendant that state financial aid for her infant child ren would be cut off, and her children taken from her if she didn't cooperate was involuntary]; United States v. Tingle, supra, 658 F.2d at p. 1334 [where the object of the in terrogation was to cause the defendant to fear that, if she failed to cooperate, she would not see her young child for a long time, confession was coerced].) However in People v. Kelly (1990) 51 Cal.3d 931, an officer's statement, " 'I think it's . . . going to be a foregone conclusion you're going to be in prison for a lot of years. I don't know if your wife is going to stick around and wait for you. Okay. That's something you're going to have to work ou t with her' " was not coercive. ( Id . at p. 952.) Viewed in context, we do no t find the officers' statem ents were an implied threat that appellant's family would suffer adverse consequenc es if he did not confess or that the officers would keep him from his family unless he confessed. At most, the statements encouraged appellant to tell the tr uth for the sake of Justin and Ms. Bayas. It is important to remember that a ppellant took full responsibility for shaking Justin from the beginning of th e interview; the only question was whether his version of22 events fit the medical evidence. Although appellant was c onfronted by the officers with the evidence, their appeal to him that Justin and Ms. Bayas would want him to tell the truth was on the lines of it would be better fo r him to unburden himself; they would think better of him if he did. None of the techniqu es used by the officers was so coercive as to result in a statement that was involuntary or unreliable. "No single event or word or phrase ne cessarily determines whether a statement was voluntary." ( People v. Kelly, supra, 51 Cal.3d at p. 950.) Given the totality of the circumstances, nothing in the record, including the DVD of th e interview, suggests that appellant's will was overborne by the substance or manner of the interview. The officers spoke in calm even voices. Th ey never raised their voices ; and we see no evidence of threatening behavior by the o fficers. The interview lasted approximately two hours, with a break in the middle. "The business of polic e detectives is investigation, and they may elicit incriminating information from a suspect by any legal means." ( People v. Jones (1998) 17 Cal.4th 279, 297.) In sum, we find that appellant's confessi on that he shook Justin out of frustration because he was crying was volunt ary and was not the result of police coercion such that his will was overborne by the ci rcumstances. We find the crucial element of coercive police conduct to be missing in this case. As such, at trial, it was not error to admit appellant's statements to the officers. II. Sufficiency of the Evidence to Prov e All Elements of Either Offense Appellant contends that the evidence adduc ed at trial was insufficient to prove all the elements of both offenses. He points out that he was convicted of second degree murder which requires proof that he acted with " 'malice aforethought.' (§187)" In addition, he was convicted of child abuse ho micide, which requires that when he acted "he was aware of facts that would lead a reas onable person to realize that his act by its nature would probably result in great bodily inju ry to the child." Appellant argues that23 because there was no evidence befo re the jury that demonstrat ed that he had either of these mental states at the time of the offense, this court should reverse his convictions. In reviewing a defendant's challenge to th e sufficiency of the evidence, we review the whole record in the lightmost favorable to the judg ment to determine whether it discloses substantial evidence. Substantial evidence is evidence that is credible, reasonable, and of solid value, such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. ( People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The federal standard of review is to the same effect. ( Ibid .) We do not reassess the credibility of witnesses, and we draw all infe rences from the eviden ce that support the jury's verdict. ( People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient to support a conviction. ( People v. Young (2005) 34 Cal.4t h 1149, 1181.) i. Child Abuse Homicide At the time appellant committed his crim e section 273ab prov ided: "Any person who, having the care or custody of a child w ho is under eight years of age, assaults the child by means of force thatto a reasonable person would be likely to produce great bodily injury, resu lting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life." (Stats. 1993- 94, 1st Ex. Sess., ch. 47, § 1, eff. Nov. 30, 1994. Amended by Stats. 1996, ch. 460 (A.B. 2258), § 2.) 7 "The elements of the offense are: '(1) A person, having the care or custody of a child under the age of eight; (2) assaults this child; (3) by means of force that to a reasonable person would be likely to produce great bodily injury; (4) resulting in the child's death.' [Citations.]" ( Wyatt , supra , 48 Cal.4th at p. 780.)

7 Currently, section 273ab, subdivision(a) provides "Any person, having the care or custody of a child who is under eight years of age, who assaults th e child by means of force that to a reasonable pers on would be likely to produce great bodily in jury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life." (Stats.2010, ch. 300, § 1.)24 "[A] defendant may be guilty of an assau lt within the meaning of section 273ab if he acts with awareness of facts that would lead a reasonable person to realize that great bodily injury would directly, naturally, and probably result from his act. [Citation.] The defendant, however, need not know or be s ubjectively aware that his act is capable of causing great bodily injury. [Citation.] This means the requisite mens rea may be found even when the defendant honestly believes his act is not likely to re sult in such injury. [Citation.]" ( Wyatt , supra , 48 Cal.4th at p. 781.) Appellant argues that the evidence was insufficient to prove that he knew any facts that would lead a reasonable person to believe that the acts would result in great bodily harm to Justin. Appellant maintains that in Wyatt , our Supreme Court acknowledged that there is a subjective componen t to the mens rea element of the offense of child abuse homicide. Specifically, appella nt cites to the following in Wyatt to support his argument. "[T]he assault element of a section 273ab offense requires an intentional act and the actual knowledge of those facts that would lead a r easonable person to realize that great bodily injury would dir ectly, naturally, and probabl y result from the act." ( Wyatt , supra , 48 Cal. 4th at p. 786, italics a dded.) Appellant contends that this means that he cannot be convicted based on facts he did not know but should have know n, and there is no evidence in the record that he actually subjectively kn ew facts from which a reasonable person would infer that his conduct was likely to injure Justin. He argues that all that was before the jury on the point of what facts were known to him was his simple admission that he had shaken Justin; and the evidence strongly suggests that he did not know that he was shaking Justin hard eno ugh to warrant a reasonable person's conclusion that it might result in harm. In essence, appellant's claim is that the evidence we recited above does not show that he was aware of the nature of his act of shaking Justin with respect to the amount of force he employed. We are not pe rsuaded by appellant's argument.
In People v. Williams (2001) 26 Cal.4th 779 ( Williams ), the court held that a defendant was not guilty of an assaultive crime unless he or she was "aware of the facts25 that would lead a reasonable person to realiz e that a battery would directly, naturally and probably result from his conduct." ( Id. at p. 788.)
In Wyatt , the Court of Appeal had acknowledged Williams's articulation of the mens rea standard was pertinen t to the sufficiency-of-the-evide nce inquiry. Specifically, the Court of Appeal had framed the issue as follows: " '[W]hat is in question here is whether there was substantial ev idence that [defendant] "was aware of facts that would lead a reasonable person to realize that [his ] act by its nature woul d directly and probably result in great bodily injury to the child." ' (Italics added.) But in finding the evidence insufficient on this point, the court empha sized that there was no evidence showing defendant had actual knowledge he was wrestling far too hard with his son, and that 'it never occurred to [defendant] that he was hu rting Reginald.' As for defendant's taperecorded statements that he wa sn't thinking or paying attention while play-wrestling with Reginald, the court interpreted them as mere ly demonstrating defendant's 'attempt to understand how he could have struck his son hard enough to fatally injure him without knowing he was doing it.' " ( Wyatt , supra , at p. 785.) Our Supreme Court found that "[t]his re asoning cannot be reconciled with the long-standing rule, reiterated in Williams, that 'assault does not requi re a specific intent to cause injury or a subjective awar eness of the risk that an inju ry might occur.' [Citations.] Thus, [the Supreme Court concluded] any failu re on defendant's part to realize he was hurting and fatally injuring Regi nald is of no consequence to the issue at hand." ( Wyatt,

supra, at p. 785.) Appellant's argument simply restates that which Williams and Wyatt declared irrelevant: a subjective awareness of the risk of injury. ( Williams , supra , 26 Cal.4th at p. 790; Wyatt , supra , at p. 785.) Without doubt, a ppellant was guilty of assault under Williams. He committed an act that would probabl y and directly result in the application of force to the victim. Child abuse homicide is simply an assault with a more egregious injury than th e mere battery of which a defendant doe s not need to be subjectively aware26 under Williams. As a result, the amount of force is not among the circumstances relating to the nature of his action of which a defend ant must actually be aware at the time he undertakes the act of shaking a child. Appellant's own statements furnished subs tantial evidence that he intentionally acted to shake Justin; by hi s own account, appellant was fully aware he had shaken Justin. On this reco rd, we have no difficulty conclu ding that there was substantial evidence that when appellant acted he was aw are of facts (he was shaking his baby) that would lead a reasonable person to realize that his act by its nature would probably result in great bodily in jury to Justin. Similar to Wyatt , the record contains substantial testimonial and medical evidence that appellant intentionally shook his son in a manner that would lead a reasonable person to realize great bodily inju ry would likely result. ( Wyatt , at p. 786.) Contrary to appellant's argument, he did not need to know that he was applying extreme and prolonged physical force to Justin. The nature of Justin's injuries shows that significant force was used. This is suffi cient to establish th at, when appellant acted, "he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly, and probably result in great bodily in jury to the child." (CALCRIM No. 820.) Accordingly, we conclude that there wa s substantial evidence that appellant had the requisite mental state for child abuse homicide. ii. Murder "Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) Malice may be either express or implied. ( People v. Taylor (2010) 48 Cal.4th 574, 623.) Express malice is an intent to kill. (§ 188; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) "Malice will be implied 'when th e killing results from an intentional act, the natural consequences of which are danger ous to life, which act was deliberately performed by a person who knows that his co nduct endangers the life of another and who27 acts with conscious disregard for lif e. [Citations.]' [Citations.]" ( People v. Taylor,

supra, 48 Cal.4th at pp. 623–624.) "In short, implied malice requires a defendant's awareness of engaging in conduct that e ndangers the life of another—no more, and no less." ( People v. Knoller (2007) 41 Cal. 4th 139, 143 ( Knoller).) Appellant argues that there was insuffi cient evidence to support a finding of malice to support his second de gree murder conviction. As our Supreme Court pointed out in Knoller , the great majority of that "court's decisions establish that a killer acts with implied malice . . . when acting with an awareness of endangering human life. " ( Knoller , supra , 41 Cal.4th at p. 153.) We find such evidence in this case. A ppellant admitted to the police that he was aware that shaking a baby could endanger that baby as evidenced by the following conversation: "Q [Detective]: Okay. So you didn't know what to do. So yo u were, and you, and you were a newer father again. Okay? Did you know that shaking a baby could kill him? A [Appellant]: I've heard of it, yeah. Q Where did you hear of it? A TV." Accordingly, we conclude that the mental component of implied malice was satisfied—i.e. appellant knew that his conduct in shaking Justin enda ngered Justin's life, but nevertheless he acted in conscious disregard for Justin's life. ( People v. Chun (2009) 45 Cal.4th 1172, 1181 [mental co mponent of implied malice is satisfied if the defendant knows that his conduct endangers the life of another and acts with a conscious disregard for life].) III. Failure to Instruct on Voluntary Manslaughter The court instructed the jury on invol untary manslaughter as a lesser included offense of murder. However, th e jury was not instructed on voluntary manslaughter, in fact they were specifically in structed that "voluntary manslaughter is not for you to28 consider in this case." Appella nt contends that he was deprived of his due process rights under the Sixth and Fourteenth Amendments . Appellant argues that there was ample evidence to support a jury find ing that he had acted without the appropriate mental state to support a conviction of either mu rder or child abuse homicide. As noted, "Murder is the unlawful k illing of a human being . . . with malice aforethought." (§ 187, subd . (a).) When an unlawful killing occurs "upon a sudden quarrel or heat of passion" (§ 192, subd. (a )) the killer lacks malic e, and the crime is voluntary manslaughter, a lesser offense necessar ily included within the crime of murder. (See People v. Moye (2009) 47 Cal.4th 537, 549.) A tr ial court is obliged to instruct on lesser included offenses so lo ng as they are supported by substantial evidence. ( People v.
Breverman (1998) 19 Cal.4t h 142, 162.) Last year, the California Supreme Court summarized the rules applicable to this issue: " 'The trial court is obligat ed to instruct the jury on all general principles of law relevant to the issues raised by the evidence , whether or not the defendant makes a formal request.' [Citations.] 'That obligation en compasses instructions on lesser included offenses if there is evidence that, if accepted by the trie r of fact, would absolve the defendant of guilt of the greater offense but no t of the lesser.' [Cita tions.] 'To justify a lesser included offense instruc tion, the evidence supporti ng the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts unde rlying the particular instruction exist.' [Citations.] [¶] ' "Conversely, even on requ est, the court 'has no duty to instruct on any lesser offense unless there is substantial ev idence to support such instruction.' " [Citation.] This substantial evidence requirement is not satisfied by " ' any evidence . . . no matter how weak,' " but rather by evidence from which a jury composed of reasonable persons could conclude "that the lesser o ffense, but not the greater, was committed." [Citation.] "On appeal, we review independ ently the question whether the trial court29 failed to instruct on a lesser included o ffense." [Citation.]' [Citation.]" ( People v. Souza (2012) 54 Cal.4th 90, 115–116.) It has been said that "[w]here [as here ] a defendant 'denies any complicity in the crime charged, and thus lays no foundation for any verdict intermediate between "not guilty" and "guilty as charged" . . . [¶] . . . it is erro r to so instruct [o n the lesser offense] because to do so would vi olate the fundamental ru le that instructions must be pertinent to the evidence in th e case at bar.' [Citation.]" ( People v. Trimble (1993) 16 Cal.App.4th 1255, 1260.) Due to the fact that jurors "are not requir ed to make a binary choice between the prosecution evidence and the defe nse evidence," howeve r, "if the evidence as a whole would support a third scenario, the trial court may be required to give instructions on that scenario. [Citation.]" ( People v. Hernandez (2003) 111 Cal.App.4th 582, 589–590; see People v. Sinclair (1998) 64 Cal.App. 4th 1012, 1016–1017 [examining whether de fendant was entitled to instructio ns on voluntary manslaughter based on circumstantial evidence , even though defendant deni ed shooting victim or even being armed].) Malice is presumptively absent, and th e crime constitutes voluntary manslaughter, when a defendant, "kills 'upon a sudden qua rrel or heat of passi on' [citation], provided that provocation is sufficient to cause an or dinarily reasonable person to act rashly and without deliberation, and from passion rath er than judgment. [Citation.]" ( People v. Koontz (2002) 27 Cal.4th 1041, 1086.)
In People v. Garcia (2008) 162 Cal.App.4th 18 ( Garcia ), the appellate court stated "[a]n unlawful killing during the commi ssion of an inherently dangerous felony, even if unintentional, is at l east voluntary manslaughter." ( Id. at p. 22.) Relying on this conclusion, appellant contends that as to th e child abuse homicide ch arge, the jury should have been instru cted on voluntary manslaughter.
In Garcia, the victim and defendant were involved in a confrontation. The victim moved toward or lunged at the defendant, wh o was then holding a shotgun. Concerned30 the victim might try to take the shotgun, th e defendant swung at th e victim with the butt of the gun in order to make th e victim back up, but the gun st ruck the victim in the face. This caused the victim to fall and hit his he ad on the sidewalk, causing him to die from the injuries sustained in the fall. ( Garcia, supra, 162 Cal.App.4th at pp. 22–23, 25.) The defendant asserted he did not purposefully hit the victim in the face and did not intend to kill him. The jury was instru cted on the crimes of murder and the lesser included offense of voluntary manslaughter, and the jury acqu itted the defendant of murder but found him guilty of voluntary manslaughter. ( Id. at pp. 23–26.) On appeal, the defendant in Garcia claimed the trial court committed prejudicial error in refusing to instruct the jury on involuntary manslaughter as a lesser offense of murder. The defendant ar gued such instruction was required because there was substantial evidence the killi ng "was committed without ma lice and without either an intent to kill or conscious disregard for huma n life and, therefore, was neither murder nor voluntary manslaughter." ( Garcia, supra, 162 Cal.App.4th at p. 26.) The argument in
Garcia was limited to whether ev idence showing an unintenti onal killing without implied malice during commission of an inherently dange rous felony could support an instruction for involuntary manslaughter. The Garcia court rejected that claim, concluding an "unlawful killing during the commission of an inherently dangerou s felony, even if unintentional, is at least voluntary manslaughter." ( Id . at p. 31, italics added.) The statement from Garcia upon which appellant relies was dictum, because the holding was that the defendant in Garcia was not entitled to an involuntary manslaughter instruction. ( Id . at p. 32.) 8

8 Whether voluntary mansla ughter may be premised on a killing without malice that occurs during commission of an inherently dangerous assaultive felony is an issue pending before the California Supreme Court. ( People v. Bryant (2011) 198 Cal.App.4th 134, review granted Nov. 16, 2011, S196365.)31 Even if the theo ry articulated in Garcia is ultimately recognized as a valid basis for a voluntary manslaughter instruction, the Garcia theory of voluntary manslaughter requires the killing be committed without malice. 9 ( Garcia , supra , at p. 32.) Here, the evidence demonstrated appellant shook Justin with su ch great force that his brain was so badly damaged that the ridge s were flattened from the swelling and there was extensive deep bruising unde r the scalp. Even if the Garcia theory surv ives Supreme Court review, there was no evidence from whic h a rational jury could have concluded appellant's intentional act of shaking Justin was done without appellant harboring at least implied malice because there was no evidence that such a forceful act was not an intentional act whose natural consequences are dangerous to human life; nor was there any evidence appellant did not act with a conscious disregard for human life posed by such an act when he vi olently shook Justin. ( Knoller, supra, 41 Cal.4th at p. 157.) Accordingly, as to the child abuse homicide charge, the trial court had no sua sponte duty to instruct the jury with the theory of voluntary manslaughter referred to in Garcia

. As to the murder charge, "[a]lthough sec tion 192, subdivision (a ), refers to 'sudden quarrel or heat of passion,' the factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provoca tion. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The prov ocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocativ e that it would cause an ordinary person of

9 Well established principles limit voluntary manslaughter to an unlawful killing upon sudden quarrel or heat of passion or in an actual, but unreasonable, belief in the need to defend against imminent death or great bodily injury. (§ 192, subd. (a); In re Christian S. (1994) 7 Cal.4th 768, 78 3.) The trial court in Garcia so instructed, and the jury convicted the defendant of voluntary manslaug hter, apparently based upon one of the two recognized theories ( Garcia , supra , at pp. 23, 25); we do not believe that the appellate court intended to add a new category of offense constituting voluntary manslaughter.32 average disposition to act rashly or without due deliberation an d reflection. [Citations.] 'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." ' [Citation.]" ( People v.
Lee (1999) 20 Cal.4th 47, 59.) "Thus, '[t]he heat of passion requireme nt for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But th e circumstances giving rise to the heat of passion are also viewed objectively. As [ our Supreme Court] explained long ago in interpreting the same language of section 192, "this heat of passion must be such a passion as would naturally be aroused in th e mind of an ordinar ily reasonable person under the given facts and circumstances," because "no defendant may set up his own standard of conduct and jus tify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordina rily reasonable man." [Citation .]' [Citations.] [¶] ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " [Citation.]' [Citation.]" ( People v. Manriquez (2005) 37 Cal.4th 547, 584.) As to the murder charge, appellant's argument that a voluntary manslaughter instruction should have been given is based on the prem ise that it was for the jury to decide whether Justin's crying was suffici ent provocation to redu ce that crime to manslaughter. Appellant asserts that the speci fic question of whether a baby's crying can constitute provocation sufficient to reduce murder to manslaughter is one of first impression in California. Appellant cites to a 1986 English case, Regina v. Doughty (1983) 83 Cr.App.R. 319, for the proposition that the question of whether a baby's crying is sufficient33 provocation is a jury question. ( Id . at p. 326.) Appellant's argument ignores the fact that before the issue of sufficient provocation goes to the jury, ther e must be evidence "substantial enough to merit consideration" by the jury. ( Breverman , supra , 19 Cal.4th at p. 153.) The determination of whether there is evidence substantia l enough to merit jury consideration is vested in the trial court. ( People v. Prince (2007) 40 Cal.4th 1179, 1265 [it is the court that is vested with authority to determine whether to instruct on a lesser included offense and instructi ons on lesser included offenses are required on ly when the evidence that the defendant is guilty of the le sser offense is substantial enough to merit consideration by the jury].) As respondent points out, the record is de void of evidence that Justin's crying was sufficient to provoke appellant to kill him in the heat of pa ssion. There was no evidence that appellant was exhausted, or mentally broken down, or that the baby's crying had been persistent and unbearable. To the contrary, the evidence showed that Justin had not been crying all day, but napped and ate norma lly throughout the day. It was only on the drive home that Justin began to cry, but that was just inte rmittently. Appellant was alone with Justin for less th an an hour while Ms. Bayas was at the store; and appellant knew that she was due to return with in a short amount of time. On this record, we cannot say that an ordinary person of average disposition in the same situation would have reacted rashly or without due deliberation and reflection—from passion rather than from judgment. ( Manriquez , supra , 37 Cal.4th at pp. 583-584.) Even if we were to assume for the sake of argument that ther e was evidence that appellant's passions were aroused, no ra tional juror could have found that a reasonable person in appellant's situati on would have been provoked to kill his child; sound policy considerations militate agains t even adopting the premise of appellant's contention that aggravation caused by a vulnerable and defens eless child posing no th reat to a defendant could create feelings of homicidal rage or pa ssion in an ordinarily reasonable person so as to negate the malice component of murder.34 In sum, nothing in the ev idence required the trial court to instruct on voluntary manslaughter. Or stated another way, the r ecord contains absolu tely no evidence to suggest that appellant killed his five-week-ol d son in response to objectively reasonable provocation.
IV. Denial of Defense Request to Clarify the Mens Rea Requirem ent for Child Abuse Homicide in Clos ing Argument With regard to the child abuse homicide charge, the jury wa s instructed pursuant to CALCRIM No. 820 that "When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in great bodily inju ry to the child." Defense counsel proposed to point out to the jury that while this element does not require a defendant to be subjectively aware that his ac tions will harm the child, "it does require that he be aware of facts that woul d lead a reasonable person to realize how dangerous his conduct can be." Specifically, defense counsel wanted to show a slide to the jury during summation that stated, among ot her things, that "[a] defendant may not be convicted [based on] facts he did not know, but should have known." The court refused to allow defense counsel to use this language on the slide or argue this to the jury. 10 Appellant maintains that the court's refusa l to clarify a complicat ed legal issue that went directly to the heart of his case deprived him of his Sixth and Fourteenth Amendment right to counsel. Appellant's claim of constitutiona l error is based primarily on Herring v. New York (1975) 422 U.S. 853, 859 ( Herring ), which held that "a total de nial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense." As th e high court explained in Herring ,"closing argument for the defense is a basic element of the adversary fa ctfinding process in a criminal trial" and

10 Appellant concedes that he did not request that the cour t instruct the jury with the disputed passage.35 "counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge." ( Id. at p. 858.) Here, of course, there was no such total denial. Moreover, as the high court cautioned, the Herring rationale was not intended to prevent trial courts from controlling the scope of closing arguments: "This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when conti nuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all thes e respects he must have broad discretion." ( Herring, supra, 422 U.S. at p. 862; see also People v. Marshall (1996) 13 Cal.4th 799, 854-855 [a criminal de fendant has a well-established cons titutional right to have counsel present closing argument to the trier of fact but this right is not unbounded, the trial court retains discretion to impose reasonable time lim its and to ensure th at argument does not stray unduly from the mark].) The defense theory in this case was that appellant was coerced into saying that he shook Justin, that it was, in fact, Ms. Bayas th at assaulted Justin. A defendant's right to counsel is denied where the court serious ly limits defense closing argument, as by precluding reference to an entire theory of defense ( Conde v. Henry (9th Cir.1999) 198 F.3d 734, 739), or preventing counsel from arguing the signifi cance of evidence critical to a theory of defense ( United States v. Kellington (9th Cir.2000) 217 F.3d 1084, 1099- 1100). Contrary to appellant's argument, such a denial did not occur in this case. The court did not limit counsel's argument on the crux of the defense theory: that appellant did not cause Justin's inju ries and Ms. Bayas was in fact the perpetrator.36 Conde v. Henry , supra , 198 F.3d 734, cited by ap pellant, does not require a contrary finding. In Conde, the defendant was charged w ith robbery, kidnapping for robbery, kidnapping for extortion, reside ntial burglary, and commercial burglary. Apparently, the defendant had two inconsistent theories of the case: first, that he was innocent of all charges; second, that he wa s guilty of kidnapping for burglary but not kidnapping for robbery. ( Id. at p. 739.) At the conclusi on of the prosecution's case, the trial court granted the defendant's motion for acquittal on robbery and on kidnapping for extortion. In dismissing the robbery charge , the court stated that it did not see any evidence that there was an intent to take anything from the victim. ( Id. at p. 737.) In addition, the court stated that it believed th at the prosecution's ev idence would support a conviction of kidnapping for robbery, but it wo uld not support a conviction of kidnapping for burglary or of simple kidnapping. Acco rdingly, the court proh ibited defense counsel from presenting any evidence that the defendan t was innocent of any intent to rob and further denied a defense request for instruction on the lesser offense of simple kidnapping. ( Id. at pp. 739-740.) The jury found the defendant guilty of kidnapping for robbery, residential burglary, and commercial burglary. ( Id. at p. 738.) The federal court held in part that "[b]y preventing Conde fro m arguing [his theory of the case] that no robbery had occurred and that he lacked the requisite intent to rob, the trial court's order violated the defendant's fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt." ( Id. at p. 739.)
In Conde, the defense had two inconsistent theo ries of the case and the trial court's ruling erroneously precluded defense counse l from presenting evidence on and arguing one of his alternative theories. ( Conde, supra, 198 F.3d at p. 739.)
In contrast to Conde , in this case, the court did no t preclude defense counsel from arguing that appellant did not have the requisite mental st ate to sustain a conviction on child abuse homicide. In fact, in closing, de fense counsel pointed out to the jury that to37 find that his client committed child abuse ho micide they were required to find that appellant "was aware of facts that would lead a reasonable person to realize that his act, by its nature, would directly and probably result in great bodily injury to the child. This requires an actual awareness or knowledge of those facts." Appellant had a fair opportunity to present whatever evidence he had that would indicate the absence of the required mental state, a nd he had a fair opportunity to have the facts in the case argued to the jury. As such, we conclude that appella nt was not denied the right to counsel during closing argument by the court's limita tion on counsel's cl osing argument. V. Alleged Deficient Reas onable Doubt Instruction Before the court instructed the jury, defense counsel asked the court to modify CALCRIM No. 220, the instructi on on reasonable doubt, to incl ude an instruction that as to both offenses "every elem ent has to be proven by proof beyond a reasonable doubt." The court declined the request. Appellant argues that by failing to instru ct that a defendant may not be convicted of an offense unless each element of it ha s been proved beyond a reasonable doubt, the court deprived appellant of his right to du e process under the federal Constitution. We reject appellant's assertion th at there was a federal due process violation in this case. We determine whether a jury instructi on correctly states the law "under the independent or de novo standard of review." ( People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 ( Ramos ).) "Review of the adequacy of in structions is based on whether the trial court 'fully and fairly instructed on the applicab le law.' [Citation.] " ( Ibid. ) As the Third District Court of Appeal has explained "[w]hether an instruction correctly conveys this [reasonable doubt] standard must be dete rmined by examining th e instruction in the context of all the instruc tions given the jury." ( People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601, citing Victor v. Nebraska (1994) 511 U.S. 1, 5.) Certainly, the United States Supreme Court in U.S. v. Gaudin (1995) 515 U.S 506, 522-523, stated: "The Constitu tion gives a criminal defendant the right to have a jury38 determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." Nevertheless, the United St ates Supreme Court has concluded that "the Constitution does not require that any particular form of wo rds be used in advising the jury of the government's burden of proof." ( Victor v. Nebraska, supra, 511 U.S. at p. 5.) The Ramos court noted that the defendant had not cited "any California or United States Supreme Court authority holding" that the "each element" language in a reasonable doubt instruction "is cons titutionally required." ( Ramos, supra, 163 Cal.App.4th at p. 1090, fn. omitted.) The Ramos court explained: " ' "[W]e must. . . assume th at the jurors are intelligent persons and capable of unders tanding and correla ting all jury instructions which are given." [Citation.]' " ( Ramos supra, 163 Cal.App.4th at p. 1088.) Recent California case law on this exact issue upholds the revised version of CALCRIM No. 220 as legally adequate when, as in the present case, the jury was also instructed regarding the need to prove each element of the underlying offense. (See People v. Riley (2010) 185 Cal.App.4th 754, 770 ( Riley ); People v. Henning (2009) 178 Cal.App.4th 388, 405-406 ( Henning ); Ramos, supra, 163 Cal.App.4th at pp. 1088-1089; and People v. Wyatt, supra, 165 Cal.App.4th at p. 1601.) In 2010 the Court of Appeal in Riley cited Ramos in support of its ruling: "The CALCRIM No. 220 instruction—wh ich informs the jury that wh en the court says that the People must prove somethi ng, the People must prove it beyond a reasonable doubt, combined with the court's in struction that the People mustprove each element of the offense (which is given whenever the court instructs on the elements of an offense), adequately informs the jury th at it must find that each element has been proved beyond a reasonable doubt." ( Riley, supra, 185 Cal.App.4th at p. 770.) In Riley, the trial court gave an instruction enumerating the elements of the underlying offense, in addition to CALCRIM No. 220. ( Id. at pp. 768-769.)
In Henning the court affirmed its decision in People v. Wyatt that CALCRIM No. 220 " 'viewed together with other instructi ons, correctly informed the jury that the39 prosecutor was obliged to prove each element of the crimes beyond a reasonable doubt.' " ( Henning, supra, 178 Cal.App.4t h at p. 406; People v. Wyatt, supra, 165 Cal.App.4th at p. 1601.) The trial court in Ramos gave the CALCRIM No. 220 instruction, and, as in the present case, gave an additional instruction that "enumerate[d] each of the elements of the charged crime and the special allegation, and stated that the People were obligated to prove each of those elements in order for defendant to be found guilty." ( Ramos, supra, 163 Cal.App.4th at p. 1089, fn. omitted.) The Ramos court found the "instructions, taken as a whole, adequately inform ed the jury that the prosecu tion was required to prove each element of the charged crime be yond a reasonable doubt." ( Ramos, supra, 163 Cal.App.4th at p. 1089.) In the present case, the trial court ga ve CALCRIM No. 220 (the reasonable doubt instruction) as well as CALCRIM No. 520 , which enumerated the elements the prosecution was required to prove to find appellant guilty of murder (§ 187) and CALCRIM No. 820, which enumerated the el ements the prosecution was required to prove to find appellant guilty of ch ild abuse homicide (§ 273ab). Examining the adequacy of the instructions in this ca se, in the context of all of the instructions given the jury, we conclude the jury was properly instructed that the prosecution was required to prove every element of the charged offense beyond a reasonable doubt. We are not persuaded by appellant's reliance on People v. Vann (1974) 12 Cal.3d 220 ( Vann ); People v. Mayo (2006) 140 Cal.App.4th 535 (Mayo ) and People v. Flores (2007) 147 Cal.App.4th 199 ( Flores ). The Ramos court correctly found Vann and Flores inapposite because they "reverse d criminal convictions based on the trial court's failure to instruct the jury at the conc lusion of the trial regarding th e presumption of innocence, and its omission from the posttrial jury instructio ns of any instruction defining reasonable40 doubt. [Citation.] Neither of these defects is present in this case." ( Ramos, supra, 163 Cal.App.4th at p. 1089.) Nor is either defect present here. If anything, Mayo is less supportive of appellant's position. In Mayo , the Court of Appeal concluded that other instructions adeq uately instructed the jury on the reasonable doubt standard despite the court' s inadvertent failure to give a specific instruction on the definition of reasonable doubt. ( People v. Mayo, supra, 140 Cal.App.4th at pp. 539, 541– 545.) As noted in Ramos, while the use of language in forming the jurors that the prosecution must prove each el ement of the charges beyond a reasonable doubt may be appropriate, apparently no case has held that it is mandatory. To the contrary, our Supreme Court has said: "It would be correct to instruct that the People must prove every element of the offense beyond a reasonable doubt, but a defe ndant is not entitled to that instruction." ( People v. Ochoa (2001) 26 Cal.4th 398, 444, fn. 13, disapproved on another point in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; accord, People v. Osband (1996) 13 Cal.4th 622, 678.) Appellant attempts to distinguish Ramos , and then asserts that it was wrongly decided. Appellant's attempt to distinguish Ramos is unavailing. Citing to footnote four from the Ramos opinion, 11 appellant argues that in Ramos , it was the giving of CALCRIM No. 220 in addition to the court te lling the jury the enumerated elements of the crimes that the prosecution had to pr ove, in addition to "AND" between the enumerated elements that the court found adequately informed the jury that they had to find each element proven beyond a reasonable doubt. Here, in contrast, the court did not separate the elements of either of the two o ffenses with "AND" with the exception of the penultimate and final elements . We find this argument to be bordering on being frivolous. Nothing in the Ramos opinion remotely suggests th at the decision rose and fell on the presence of "AND" in the enumera tion of the elements of the crimes.

11 In footnote four, the Ramos court gave an "example" of how the jurors were instructed. ( Ramos , supra , at p. 1089.)41 Furthermore, we do not believe that Ramos was wrongly decided. We agree with the Ramos court that "While we do not doubt that the use of [the] language [that appellant requested here] is appropriate [citation], defendant has not cited any California or United States Supreme Court authority holding th at it is constitutionally required." ( Ramos,

supra, 163 Cal.App.4th at p. 1090, fn. omitted.) We note that in closing argument defe nse counsel, while discussing the concept of reasonable doubt, explained to the jury that the reasonable standard not only applied to the case as a whole, but also to "every elem ent in the case." Defense counsel explained "So not just to the case as a w hole, but when you look at di fferent elements, for example, for the main child abus e charge in CALCRIM 820, the ca usation of death, death would not have occurred except for the defendant's acti ons. [¶] When you look at that and look at the other evidence, you ha ve to find that element true by proof beyond a reasonable doubt. You have to do that for each and every element of th e crimes." Given that neither the court nor the prosecutor challenged defens e counsel on this pro position, any doubt in the jurors' minds that the "something" in the phrase—whenever I tell you the People must prove something, I mean prove it beyond a reasonable doubt—did not apply to the elements of the crimes woul d have been dispelled. Moreover, appellant's assertion that "som ething" could be understood to mean the crime as a whole, rather than the elements of each crime, stra ins credulity in light of the common meaning of the language. No other r easonable interpretation could be placed on the court's instructions that "whenever" th e People were required to prove "something," coupled with the "People mu st prove" followed immediately with a laundry list of elements, that each such elem ent was a "something" to be proved beyond a reasonable doubt. Accordingly, we reject appellant's argum ent that there was a federal due process violation.42 VI. Cumulative Error Under some circumstances, several errors that are each harmless on their own should be viewed as prejudicial when considered together. ( People v. Hill (1998) 17 Cal.4th 800, 844, overruled on a different ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13).) Since we have found none of appellant's claims of error meritorious, a cumulative error argument can not be sustained. No serious errors occurred, which whether viewed individually or in combination, could possibly have affected the jury's verdict. ( People v. Martinez (2003) 31 Cal. 4th 673, 704; People v. Valdez (2004) 32 Cal.4th 73, 128 .) To put it another way, since we have found no substantial error in any respect, appellant's cl aim of cumulative prejudicial error must be rejected. ( People v. Butler (2009) 46 Cal.4th 847, 885.)
VII. Restitution Fine In sentencing appellant, the court imposed a "restitution [fu nd] fine of $10,000 . . . under the formula permitted by . . . section 1202 .4 (b)." Appellant asserts that in applying this formula it is qu ite apparent that the court violated section 654; and the correct value of the restitution fine under this formula is $5000. Initially, we note that the lack of an obj ection by trial counsel to the amount of the restitution fund fine does not constitute a forfe iture of the section 654 issue. "It is well settled . . . that the court acts 'in excess of its jurisdiction' and impo ses an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654" and therefore a claim of error under sect ion 654 is not forfeited by failure to object. ( People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) 12

12 Having determined that this issue is c ognizable on appeal despite the lack of an objection below, we need not address appe llant's claim that hi s trial counsel was ineffective in failing to challenge the amount of the fine.43 Under the formula permitted by section 12 02.4, subdivision (b) a restitution fund fine " may " be calculated as "the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonm ent the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (§ 1202.4, subd. (b )(2), italics added.) 13 We recognize that the ban on multiple punishments under section 654 applies to restitution fines under section 1202.4. ( People v. Le (2006) 136 Cal. App.4th 925, 933 ( Le ), citing People v. Hanson (2000) 23 Cal.4th 355, 361 [the Legislature intended restitution fines as punishment].) In Le, this court held the trial court erred when it used a felony conviction for burglary that was stayedunder section 654 to calculate the amount of the restitution fine under sec tion 1202.4, subdivision (b)(2). ( Le, supra, 136 Cal.App.4th at p. 933.) Respondent concedes that th e court erred in using the st ayed murder count in the formula to calculate the fine, but requests th at we remand this case to the trial court because "it cannot be concluded" that the court would have imposed a restitution fine of $5000 ($200x25x1) if the court had been aware that the use of the murder conviction for which the sentence was stayed was barred by section 654. We are not persuaded by eith er appellant's or responde nt's position. We believe that appellant relies too much on the trial court's invocation of th e word "formula." Section 1202.4 provides that th e trial court enjoys discretion to set the fine amount based on the offense's seriousness. (§ 1202.4, subd. (b)(1).) Not many offenses are more serious than a child abuse homicide. The re cord makes plain that the court meant to sentence appellant under subdivision (b)(1) of Penal Code section 1202.4 because the

13 At the time appellant committed his crime in 2007 the minimum fine referred to in section 1202.4, subdivision (b)( 1) was $200. (Stats. 2005, ch . 240, § 10.5.) Applying the formula in section 1202.4, subd ivision (b)(2) the only way to get to $10,000 would be the 25 years on count one, multip lied by $200, multiplied by the num ber of counts (two) to arrive at a calculation of $200x25x2.44 court made no effort to engage in any years-based calcula tion of the type offered in subdivision (b)(2) of that section. Mo reover, the probation report recommended a $10,000 fine while making a brief reference to the "formula" 14 but made no attempt to calculate the amount according to the specif ic formula set forth in section 1202.4, subdivision (b)(2). Although in Le we found, as we do here, th at section 654 applied in the defendant's favor and, having done so, we reduced the re stitution fine according to the reduction in years of sentence and the number of felonies to which the fine applied ( Le,

supra, 136 Cal.App.4th at pp. 935-936), in Le the trial court "relied on the formula provided by section 1202.4, su bdivision (b)(2) . . . ." ( Id. at p. 935.) We find no evidence of a similar reliance here. VIII. Pitchess Motion On December 9, 2008, appellant filed a Pitchess motion for inspection of material in the personnel files of Detectives Ra ndol and Manion, the two detectives who interviewed appellant on February 2, 2007, fo r any material that would show misconduct amounting to moral turpitude. 15 At the hearing on the mo tion held on December 30, 2008, the court conducted an in camera revi ew of the records of the San Jose Police Department related to Randol and Manion. The court found no di scoverable material

14 The probation officer's re port simply recommends a res titution fine "of $10,000 be imposed under the formula permitted by Penal Code Section 1202.4(b)." 15 Appellant sought "any and all sources re lating to acts of falsifying police reports, writing misleading police reports , lying, dishonesty, cond uct unbecoming an officer, obstruction of justice, failure to [adequately] investigate cases, ba d faith investigation, attempts to influence witness testimony, attempts to improperly influencing the investigation of other officers, failure to document exculpatory evidence, coercive conduct, violation of constitu tional rights, incl uding but not limited to intentionally failing to provide advisement of Miranda rights to suspects, fabrication of charges, fabrication of reasonable suspic ion and/or probable cause, fals e arrest, perjury, false or misleading internal reports including but not limited to false overtime or medical reports, or disability reports, and any other ev idence of misconduct amounting to moral turpitude . . . ."45 related to Randol, but did identify discoverable material related to Manion, which the court ordered turned over to the defense. The court ordered the transcript of the in camera proceeding sealed. Appellant asks us to perform our obligation to review the record of the trial court's denial of his Pitchess motion, including the sealed reporte r's transcript and the materials examined by the trial court to determine whether any undi sclosed portion of Detective Randol's file was discoverable. Respondent has no objection.
In Garcia v. Superior Court (2007) 42 Cal.4th 63, the California Supreme Court explained: "In Pitchess, supra, 11 Cal .3d 531, 'we recognized that a criminal defendant may, in some circumstances, compel the disc overy of evidence in [a] law enforcement officer's personnel file that is relevant to the defendant's ability to defend against a criminal charge. "In 1978, the Californi a Legislature codified the privileges and procedures surrounding what ha d come to be known as ' Pitchess motions' . . . through the enactment of . . . sections 832.7 and 832.8 and Evidence Co de sections 1043 through 1045." [Citation.] By providing that the trial court should conduct an in camera review, the Legislature balanced the accused's need fo r disclosure of releva nt information with the law enforcement officer's legitimate expectation of priv acy in his or her personnel records.' ( People v. Mooc (2001) 26 Cal.4th 1216, 1219–1220 ( Mooc ).)" ( Garcia v. Superior Court, supra, 42 Cal.4th at pp. 69 -70, fns.omitted.)
In Warrick v. Superior Court (2005) 35 Cal.4th 1011, our Supreme Court clarified that "The trial court may not disclose co mplaints more than five years old, the 'conclusions of any officer' who investigates a citizen complaint of police misconduct, or facts 'so remote as to make [their] disclosure of little or no practical benefit.' (§ 1045, subd. (b); [citation].) Typically , the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar mi sconduct by the officer." ( Id . at p. 1019.)46 The Mooc court explained in detail how an in camera hearing should be conducted. "When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring to the trial court all 'potentially relevant' documents to permit the trial court to examine them for itself. [Citation.] A law enforcement officer's personnel record will commonly contain many documents that would, in the no rmal case, be irrelevant to a Pitchess motion, including those describing marital status and id entifying family members, employment applications, letters of recommendation, pr omotion records, and health records. [Citation.] Documents clearly irrelevant to a defendant's Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premis e of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. The cust odian should be prep ared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete pers onnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion. A court reporter should be present to document the custodi an's statements, as well as any questions the trial court may wish to ask the custodian regarding the co mpleteness of the record . [Citation.] [¶] The trial court should then ma ke a record of what docume nts it examined before ruling on the Pitchess motion. Such a record will perm it future appellate review." ( Mooc,

supra, 26 Cal.4th at pp. 1228–1229.) The Mooc court rejected a suggestion that th e custodian of records must always produce the entire personnel file in response to a Pitchess motion, noting that the custodian's obligation is to produce only those documents from the file "that were47 potentially responsive to [the] defe ndant's specific request." ( Mooc, supra, 26 Cal.4th at p. 1230.) A reviewing court "routinely independently examines the sealed records of such in camera hearings to determine whether the tria l court abused its discretion in denying a defendant's motion for disclosure of police personnel records." ( People v. Prince, supra, 40 Cal.4th at p. 1285.) At the in camera hearing in this case, th e Custodian of Records for the City of San Jose Police Department was placed under oath and described the records he had brought to the hearing, which consisted of the internal affairs file (I.A. file) for both detectives and their entire personnel files. Detective Ra ndol had no citizen initiated complaints in his file. Detective Manion had two compla ints. After reviewing the documentation in Detective Manion's I.A. file, the court found that one was not discoverable; the other was discoverable and as noted the court ordered th at it be turned over to the defense. As to the official personnel files, the custodian of records described how the files were set up. The files included a page showi ng who viewed the file. There was a section for performance appraisals, work permits, le tters of commendation and reprimand and a miscellaneous section. The custodian of reco rds highlighted anything in the files that he felt was relevant. The court examined bo th files and found that there was nothing discoverable in Detective Randol's file and th at the court had already ordered discovery of the citizen complaint, which was also re flected in Detective Manion's personnel file; the court found nothing else th at was discoverable with re spect to Detective Manion. Appellant notes that he filed a motion be low to augment the appellate record with the documents the trial court reviewed during the in-chambers proceeding. Subsequently, the superior court clerk indicated she was un able to locate these doc uments. The absence of these documents, while unfortunate, is not problematic. Meaningful appellate review is still possible because the tr ial court sufficiently described the contents of the personnel file and the documents it reviewed. (See People v. Prince, supra, at pp. 1285–1286,48 [concluding that although the trial court did not copy the personnel file, it adequately stated for the record the cont ents of that file sufficient to permit meaningful appellate review].) Having reviewed the sealed transcript of the in-chambers proceeding, independently, we conclude that the trial cour t did not abuse its discretion in ruling upon appellant's Pitchess motion. Disposition The judgment is affirmed.

______________________________ ELIA, J.

WE CONCUR:

____________________________ RUSHING, P. J.

____________________________ PREMO, J.