Filed 9/3/14 P. v. Kruzik CA4/1 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOSHUA ALAN KRUZIK, 

 Defendant and Appellant. 

 D065945 

 (Super. Ct. No. FMB1000476) 

 APPEAL from a judgment of the Superior Court of San Bernardino County, 

Rodney A. Cortez, Judge. Affirmed. 

 Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland, 

Assistant Attorneys General, Charles C. Ragland and Kimberley A. Donohue, Deputy 

Attorneys General, for Plaintiff and Respondent. 

 Michael B. McPartland, under appointment by the Court of Appeal, for the 

Defendant and Appellant. 
2 

 A jury convicted Joshua Alan Kruzik of one count of second degree murder (Pen. 

Code,1 § 187, subd. (a); count 1) and one count of assault on a child with force likely to 

produce great bodily injury resulting in death (§ 273ab; count 2). The court sentenced 

Kruzik to 25 years to life on count 2, and stayed under section 654 the 15 year-to-life 

term on count 1. Kruzik contends the court prejudicially erred by failing to instruct the 

jury that if it was convinced he was guilty of homicide, but had a reasonable doubt about 

whether the crime was murder or manslaughter, it had to give him the benefit of the 

doubt and return a verdict finding him guilty of manslaughter rather than murder. We 

conclude the court adequately instructed the jury on application of the reasonable doubt 

standard in determining whether Kruzik committed murder or manslaughter. 

Accordingly, we affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND 

Prosecution Evidence 

 On November 19, 2010, Timothy Allen and Melissa Marnell asked Kruzik to 

babysit their 19-month-old daughter, A.A., while they went to a tattoo parlor. Kruzik 

planned to stay at Allen and Marnell's home for two nights before leaving town. 

 At approximately 10:00 that evening, Kruzik went to Allen and Marnell's house to 

babysit A.A., who was already asleep in her crib. Allen knew Kruzik had had at least one 

or two drinks but did not believe him to be drunk or very intoxicated and felt comfortable 

 

1 All statutory references are to the Penal Code unless otherwise stated. 
3 

leaving him with A.A. He told Kruzik to call him and Marnell if any issues arose, and 

left. 

 Allen and Marnell returned home the next morning at about 12:30 a.m. and woke 

Kruzik up from their bed, telling him to go sleep on the couch. At about 9:00 a.m., Allen 

checked on A.A. and saw that she appeared to be sleeping. He checked on A.A. an hour 

later, this time approaching her crib. A.A. did not appear to be breathing, was very cold, 

and her face was visibly blue and bruised. Allen yelled for Kruzik to call 911 and, with 

the instructions of the 911 operator, Kruzik performed CPR on A.A. 

 Shortly after the 911 call, paramedics arrived and took over A.A.'s medical care. 

They noted she had no pulse, was not breathing, and was "gray ash" in color as she was 

being transported to a hospital. A.A. died on November 21, 2010. 

 An autopsy of A.A.'s body revealed evidence of three impacts to the head: one on 

the top of her head, one to the side of her head, and one to her right forehead. The 

forensic pathologist opined that A.A.'s death was a homicide caused by blunt force 

trauma to the head. A.A. exhibited signs of brain swelling, subdural hemorrhaging, and 

retinal hemorrhaging. She also had an abdomen injury that the forensic pathologist 

believed was likely caused by a blow. 

 At trial, the People introduced audio recordings of several interviews of Kruzik, 

including one conducted on December 1, 2010, by a sergeant from the San Bernardino 

County's Sheriff's Department in the presence of a Naval special agent. During this 

interview, Kruzik explained that his friend gave him a ride to Allen and Marnell's house 

at approximately 10:30 p.m. on the night of the incident. Kruzik then spoke briefly with 
4 

Allen before he left. Later that evening, A.A. started crying, which led Kruzik to wake 

up. While trying to calm her down, Kruzik was holding A.A. and "stumble[d] over . . . a 

big pile of toys . . . [and] fell right on her." He said she stopped crying instantly. He 

claimed A.A.'s eyes became "puffy" and that "she had blood in her lip and in her nose." 

He noted that she was still breathing. He tried to wake A.A. by shaking her, smacking 

the side of her head, putting his hand over her mouth and nose, choking off her airway to 

get her to gag, and trying to force her to throw up. When all of his attempts failed, he 

laid her back in her crib and fell asleep in Allen and Marnell's bed. 

 Kruzik told the sergeant that he consumed alcohol at a bar before arriving at Allen 

and Marnell's house. In total, he drank eight 16-ounce beers, some Goldschläger, and a 

shot of bourbon. After the sergeant expressed his doubts regarding Kruzik's story that he 

fell onto A.A., Kruzik admitted he was getting mad when she would not take toys or 

drink water, and he struck A.A. on her head four or five times. He explained that she fell 

to the ground after each blow and he propped her back up. 

Defense Evidence 

 Kruzik testified in his defense mostly consistently with his interview. He testified 

that on the night of November 19, 2010, when he left the bar, he felt intoxicated because 

his "balance was off" and "vision was shaky at best." At approximately 10:30 p.m., when 

he got to Allen and Marnell's house to babysit A.A., he still felt "pretty intoxicated." He 

testified that he had injected anabolic steroids from July 2010 through most of October 

2010. He stopped injecting the steroids about three or four weeks before A.A.'s death but 
5 

continued to take oral steroids and other illegal substances. He claimed the steroids 

caused him to have a short temper. 

 In his defense to the second degree murder charge, Kruzik claimed that he had not 

actually formed either express malice or implied malice because he was intoxicated 

and/or had mental impairments. He presented defense expert Veronica Thomas, a 

forensic psychologist, who evaluated Kruzik and diagnosed him with alcoholic 

dependence disorder, body dysmorphic disorder, and borderline personality disorder. Dr. 

Thomas explained that alcohol dependence refers to someone who has a physiological 

dependence on alcohol in order to mediate and smooth out their moods. Body 

dysmorphic disorder refers to someone who has a distorted and sometimes irrational 

perception about himself. A person with borderline personality disorder has emotional 

instability and may have low self-esteem, depression, and anxiety, along with 

problematic interpersonal relationships. 

 Dr. Thomas stated that alcohol impairs judgment and volitional behavior. She 

explained that a certain level of intoxication can affect one's ability to form intent and 

mental capacity in general. It would affect sorting out data and making appropriate 

assessments on how to use that data. Dr. Thomas noted that steroids can also impact 

one's mood, behavior, and judgment. 
6 

Jury Instructions 

 The trial court instructed the jury with CALCRIM No. 220,2 which articulated the 

presumption of innocence and its requirement that the People prove a defendant guilty 

beyond a reasonable doubt. The court also instructed the jury with CALCRIM No. 520,3

which explained that second degree murder is the unlawful commission of an act that 

caused the death of another person committed with malice aforethought, and that malice 

aforethought was express or implied. 

 The court also instructed the jury with CALCRIM No. 5804 as to involuntary and 

voluntary manslaughter. It gave the jury direction about the relationship between second 

 

2 The court read CALCRIM No. 220 in part as follows: "A defendant in a criminal 

case is presumed to be innocent. This presumption requires that the People prove a 

defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove 

something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a 

reasonable doubt is proof that leaves you with an abiding conviction that the charge is 

true. The evidence need not eliminate all possible doubt because everything in life is 

open to some possible or imaginary doubt. [¶] In deciding whether the People have 

proved their case beyond a reasonable doubt, you must impartially compare and consider 

all the evidence that was received throughout the entire trial. Unless the evidence proves 

the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you 

must find him not guilty." 

3 The court read CALCRIM No. 520 in part as follows: "To prove that the 

defendant is guilty of [murder], the People must prove that: [¶] 1. The defendant 

committed an act that caused the death of another person; and 2. When the defendant 

acted, he had a state of mind called malice aforethought. [¶] . . . [¶] If you find the 

defendant guilty of murder, it is murder of the second degree." 

4 The court read CALCRIM No. 580 as follows: "When a person commits an 

unlawful killing but does not intend to kill and does not act with conscious disregard for 

human life, then the crime is involuntary manslaughter. [¶] The difference between 

other homicide offenses and involuntary manslaughter depends on whether the person 

was aware of the risk to life that his or her actions created and consciously disregarded 
7 

degree murder, voluntary manslaughter, and involuntary manslaughter, and how the jury 

should consider these three types of homicides with CALCRIM No. 642 as follows: 

 "You will be given verdict forms for guilty and not guilty of second degree 

murder, voluntary manslaughter, and involuntary manslaughter. [¶] You may consider 

these different kinds of homicide in whatever order you wish, but I can accept a verdict 

of guilty or not guilty of voluntary manslaughter or involuntary manslaughter only if all 

of you have found the defendant not guilty of second degree murder. [¶] As with all the 

charges in this case, to return a verdict of guilty or not guilty on a count, you must all 

agree on that decision. [¶] Follow these directions before you give me any completed 

and signed final verdict forms. Return the unused verdict forms to me, unsigned. [¶] . . . 

If all of you agree that the People have proved beyond a reasonable doubt that the 

defendant is guilty of second degree murder, complete and sign that verdict form. Do not 

complete or sign any other verdict forms for the homicide, count 1. [¶] If all of you 

cannot agree whether the defendant is guilty of second degree murder, inform me that 

you cannot reach an agreement and do not complete or sign any verdict forms. [¶] . . . If 

 

that risk. An unlawful killing caused by a willful act done with full knowledge and 

awareness that the person is endangering the life of another, and done in conscious 

disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting 

from a willful act committed without intent to kill and without conscious disregard of the 

risk to human life is involuntary manslaughter. [¶] The defendant committed involuntary 

manslaughter if: [¶] 1. The defendant committed a crime; [¶] 2. The defendant 

committed the crime with criminal negligence; and [¶] 3. The defendant's acts 

unlawfully caused the death of another person. [¶] . . . [¶] In order to prove murder or 

voluntary manslaughter, the People have the burden of proving beyond a reasonable 

doubt that the defendant acted with intent to kill or with conscious disregard for human 

life. If the People have not met either of these burdens, you must find the defendant not 

guilty of murder and not guilty of voluntary manslaughter." 
8 

all of you agree that the defendant is not guilty of second degree murder, complete and 

sign the form for not guilty of second degree murder. [¶] If all of you agree on a verdict 

of guilty or not guilty of voluntary manslaughter or involuntary manslaughter, complete 

and sign the appropriate verdict form for each charge on which you agree. Do not 

complete or sign any other verdict forms. You may not find the defendant guilty of both 

voluntary and involuntary manslaughter. [¶] If you cannot reach agreement as to 

voluntary manslaughter or involuntary manslaughter, inform me of your disagreement. 

Do not complete or sign any verdict form for any charge on which you cannot reach 

agreement." 

 During deliberations, the jury asked the trial court whether the implied malice 

theory only applied to the period during which the beating occurred, or whether it 

extended through the night and into the next morning. In response, the court referred the 

jury to CALCRIM No. 252.5

DISCUSSION 

 Kruzik contends the trial court erred when it failed to instruct the jury sua sponte 

with instructions such as CALJIC Nos. 8.72 or 17.10, which would have told the jurors 

that if they were convinced that A.A.'s killing was unlawful, but had a reasonable doubt 

about whether the crime was murder or manslaughter, they had to give Kruzik the benefit 

 

5 CALCRIM No. 252 reads in part: "The following crime requires a specific intent 

or mental state: Murder, as charged in count 1. For you to find a person guilty of this 

crime, that person must not only intentionally commit the prohibited act, but must do so 

with a specific intent and mental state. The act and the specific intent and mental state 

required are explained in the instruction for that crime." 
9 

of the doubt and return a verdict finding him guilty of manslaughter rather than murder. 

Pointing to the evidence of his mental impairments, as well as the effect his alcohol and 

steroid use had on his temper, Kruzik maintains there was sufficient evidence to support a 

finding that he had not actually formed malice aforethought, and was only guilty of the 

lesser offense of involuntary manslaughter, thus warranting such an instruction. He also 

argues that the jury's question shows this was a "close case" as to whether he should be 

found guilty of murder or involuntary manslaughter, and that his conviction must be 

reversed because it is reasonably probable that a more favorable result would have been 

reached but for the trial court's instructional error. 

 The People counter on two grounds: (1) Kruzik forfeited his contentions, and (2) 

the trial court's instructions were proper because CALCRIM No. 580, like CALJIC No. 

8.72, instructs the jury as to the People's burden of proof beyond a reasonable doubt. 

I. Forfeiture

 We reject the People's cursory forfeiture argument. They concede that absent an 

objection, a defendant may challenge on appeal an instruction that affects his or her 

"substantial rights." (§ 1259.) However, the People rely on the principle that "a party 

may not complain on appeal that an instruction correct in law and responsive to the 

evidence was too general or incomplete unless the party has requested appropriate 

clarifying or amplifying language." (People v. Andrews (1989) 49 Cal.3d 200, 218, 

overruled on other grounds in People v. Trevino (2001) 26 Cal.4th 237, 243-244.) They 

point out Kruzik did not object to the court's instruction with CALCRIM No. 580 or 
10 

argue it was incorrect in law, and he did not request the court to give CALJIC No. 8.72 or 

any other "clarifying" instructional language. 

 We disagree with the People's framing of Kruzik's claims. Kruzik's appeal is 

premised on error under People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry), that is, 

that the court's instructions failed to tell the jury that if it entertained a reasonable doubt 

whether a greater or lesser offense was committed, it had to convict him of the lesser 

offense. (Id. at p. 555.) If Kruzik were correct in this contention (though we conclude 

below he is not), Dewberry error would affect his substantial rights. Under these 

circumstances, an objection is not required. (See, e.g., People v. Cleveland (2004) 32 

Cal.4th 704, 749.) Therefore, even absent an objection, Kruzik has not waived the right 

to appeal the alleged instructional error. 

II. Claim of Instructional Error

A. Applicable Law 

 In a criminal trial, the court must give instructions to the jury sua sponte on the 

general principles of the law relevant to the issues raised by the evidence, that is, 

" ' "those principles of law commonly or closely and openly connected with the facts of 

the case before the court." ' " (People v. Michaels (2002) 28 Cal.4th 486, 529-530, italics 

omitted; see also People v. Whalen (2013) 56 Cal.4th 1, 68; People v. Barajas (2004) 120 

Cal.App.4th 787, 791.) But the court has no duty to give repetitious instructions (People 

v. Fuentes (2009) 171 Cal.App.4th 1133, 1138) and the correctness of the jury 

instructions given " ' "is to be determined from the entire charge of the court, not from a 

consideration of parts of an instruction or from a particular instruction." ' " (People v. 
11 

Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Solomon (2010) 49 Cal.4th 792, 

822; see Barajas, at p. 791.) When a defendant challenges instructions as being subject 

to the jury's erroneous interpretation, he must demonstrate a reasonable likelihood that 

the jury understood the instructions in the way asserted by the defendant. (People v. 

Solomon, at p. 822.) 

 Section 1097 provides in part: "When it appears that the defendant has committed 

a[n] . . . offense, . . . and there is reasonable ground of doubt in which of two or more 

degrees of the crime . . . he is guilty, he can be convicted of the lowest of such degrees 

only." In Dewberry, the court addressed this section, stating it "presupposes that the jury 

has concluded that the defendant is guilty of some . . . offense embraced within the 

pleadings but is in doubt as to the degree of the offense proved. . . . [T]he words 

'offense' and 'degrees' [in section 1097] . . . refer to all the degrees of criminality . . . 

involved in a criminal act. . . . [¶] . . . [W]hether reasonable doubt exists as between 

degrees of the same offense or as between the inclusive and included offense, the jury can 

only convict of the crime whose elements have been proved beyond a reasonable doubt." 

(Dewberry, supra, 51 Cal.2d at pp. 555-556.) 

 In Dewberry, a murder case, the trial court instructed the jury that there were two 

degrees of murder and that if the jurors were convinced beyond a reasonable doubt the 

defendant had committed the crime of murder but entertained a reasonable doubt as to the 

degree, they should give him the benefit of the doubt and find him guilty of second 

degree murder. (Dewberry, supra, 51 Cal.2d at p. 554.) The court also instructed the 

jury that if there was any doubt as to whether the killing was manslaughter or justifiable 
12 

homicide, the defendant was to be acquitted. (Ibid.) The court refused a general defense 

instruction that would have told the jury that if it found the defendant was " 'guilty of an 

offense included within the charge . . . , but entertain a reasonable doubt as to the degree 

of the crime of which he is guilty, it is your duty to convict him only of the lesser 

offense.' " (Ibid.) The defendant argued that since the instructions on manslaughter were 

not accompanied by that further instruction, the jury was given the impression that the 

rule requiring a finding of guilt of the lesser offense applied only as between degrees of 

murder. (Id. at p. 555.) 

 The California Supreme Court agreed, explaining that the defendant's proposed 

instruction went to the defense of reasonable doubt of defendant's guilt of second degree 

murder, was responsive to issues raised by the evidence, and was essential to cure the 

misleading effect of its absence in light of the other instructions given. (Dewberry, 

supra, 51 Cal.2d at p. 557.) "The failure of the trial court to instruct on the effect of a 

reasonable doubt as between any of the included offenses, when it had instructed as to the 

effect of such doubt as between the two highest offenses, and as between the lowest 

offense and justifiable homicide, left the instructions with the clearly erroneous 

implication that the rule requiring a finding of guilt of the lesser offense applied only as 

between first and second degree murder." (Ibid.) The case was close on the facts; there 

was evidence equally warranting a finding that the offense was manslaughter, and thus 

the error was prejudicial. (Id. at pp. 557, 558.) 

 In People v. Musselwhite, supra, 17 Cal.4th 1216, the California Supreme Court 

rejected a claim of Dewberry error where the defendant contended the trial court erred by 
13 

failing to specifically instruct the jury that if it had a reasonable doubt whether he was 

guilty of attempted murder, but believed he was guilty of assault with a deadly weapon, 

the jury should give him the benefit of the doubt and find him guilty of the lesser offense. 

(Musselwhite, at p. 1261.) The defendant argued the omission confused the jurors 

because the trial court gave "benefit of the doubt" instructions for murder and 

manslaughter charges. (Ibid.) The Supreme Court disagreed. It pointed out the court 

had given the jury "generally applicable instructions governing its use of the reasonable 

doubt standard," which required the jury to find the defendant guilty of lesser included or 

related offenses where it had reasonable doubt as to any included or related offenses or 

degrees. (Id. at p. 1262.) Though the trial court had not instructed the jury specifically 

with respect to attempted murder and assault with a deadly weapon, that did not bring the 

case within Dewberry because the trial court gave another instruction that "fulfilled the 

same function" as the defendant's proffered instruction, that is, it obligated the jury to 

adopt an interpretation of the evidence pointing to the absence of specific intent where 

the evidence was susceptible to two reasonable interpretations. (Musselwhite, at pp. 

1262-1263.) 

 In People v. Barajas, supra, 120 Cal.App.4th 787, the appellate court rejected the 

defendant's claim that the trial court's failure to instruct the jury with CALJIC No. 8.72 

was prejudicial error under Dewberry. (Barajas, 120 Cal.App.4th at p. 794.) It held 

Dewberry was satisfied by the court's instruction: " '[I]f you . . . are not satisfied beyond 

a reasonable doubt that the defendant is guilty of the crime charged, you may, 

nevertheless, convict on a lesser crime, if you are convinced beyond a reasonable doubt 
14 

that the defendant is guilty of the lesser crime. (Barajas, at p. 792.) As to this instruction 

(CALJIC No. 17.10), the court in Barajas stated, "[W]hen its blanks are filled in for 

murder and manslaughter, [it] is logically equivalent to CALJIC No. 8.72. If a jury is 

convinced beyond a reasonable doubt that a defendant is guilty of either a greater or 

lesser offense, this can only be because it has a reasonable doubt about elements of the 

greater offense and no reasonable doubt about any elements of the lesser. CALJIC No. 

8.72 does the same." (Barajas, 120 Cal.App.4th at p. 793.) 

B. Analysis 

 None of the CALCRIM instructions provided to the jury stated the law using the 

same "benefit of the doubt" language as CALJIC No. 8.72, nor did they specifically 

describe the circumstance of the jury having a reasonable doubt between greater and 

lesser offenses. But jury instructions require no particular form. (See People v. Fiu 

(2008) 165 Cal.App.4th 360, 370.) And the absence of such language does not result in 

Dewberry error. As the foregoing authorities instruct, we review the entirety of the jury 

instructions to ascertain whether the jury was properly advised of the principles expressed 

in Dewberry: in short, that the prosecution must prove guilt beyond a reasonable doubt. 

(Dewberry, supra, 51 Cal.2d at p. 556.) More specifically in this context, Dewberry is 

satisfied when the jury is instructed that if it finds the prosecution has not proven the 

elements of the greater offense beyond a reasonable doubt, then the defendant can be 

found guilty of the lesser offense if that offense has been proven beyond a reasonable 

doubt. (See People v. Barajas, supra, 120 Cal.App.4th at p. 794.) 
15 

 Applying these standards, we reject Kruzik's claim that the jury was not given any 

instruction that explained the effect of reasonable doubt on the choice between murder 

and manslaughter. Rather, the trial court gave the jury generally applicable instructions 

that made clear the burden of proof required to establish either second degree murder or 

the lesser included offenses of voluntary and involuntary manslaughter, and directed the 

jury what to do if it entertained reasonable doubts as to Kruzik's guilt as to second degree 

murder. 

 As stated above, the trial court instructed the jury on second degree murder, 

voluntary manslaughter, and involuntary manslaughter. Before instructing the jury as to 

three homicide crimes and their respective elements, the court explained the reasonable 

doubt standard, telling the jury the People had to prove Kruzik guilty beyond a 

reasonable doubt, and he was entitled to an acquittal if the evidence did not prove him 

guilty beyond a reasonable doubt. It specifically told the jury that to prove murder or 

voluntary manslaughter, as opposed to involuntary manslaughter, the prosecution had 

"the burden of proving beyond a reasonable doubt that the defendant acted with an intent 

to kill or with a conscious disregard for human life. If the People have not met either of 

these burdens, you must find the defendant not guilty of murder and not guilty of 

voluntary manslaughter." The jurors were aware of their obligation to acquit Kruzik of 

second degree murder or voluntary manslaughter if they did not believe, beyond a 

reasonable doubt, that he had the requisite intent. 

 Additionally, in connection with the verdict forms, the court explained to the jury 

it "can accept a verdict of guilty or not guilty of voluntary manslaughter or involuntary 
16 

manslaughter only if [the jury has] found the defendant not guilty of second degree 

murder." CALCRIM No. 642, like CALJIC No. 17.10 in Barajas, told the jury if it 

found Kruzik not guilty of the greater crime (second degree murder), it could find him 

guilty of manslaughter. We observe that the drafters intended CALCRIM No. 642 to 

satisfy Dewberry in homicide cases as this one, in which second degree murder is the 

greatest offense and one or more lesser offenses is submitted to the jury. (Bench Notes to 

CALCRIM No. 642 (2014 ed.) p. 405.) 

 Thus, the instructions given to the jury taken as a whole adequately covered 

defendant's point. The combined CALCRIM instructions6 did not leave misleading 

impressions nor did they restrict the jury's ability to consider the lesser offense of 

manslaughter, and they provided the jury with sufficient information to comply with 

Dewberry's principles. There was no instructional error. 

III. Kruzik Has Not Demonstrated Prejudice

 Even if Kruzik was somehow able to establish Dewberry error, we would 

conclude it was harmless. We look to the standard set forth in People v. Watson (1956) 

46 Cal.2d 818, 836: whether it is reasonably probable that, in the absence of the error, the 

result would have been more favorable to the defendant. (Dewberry, supra, 51 Cal.2d at 

p. 558; see also People v. Crone (1997) 54 Cal.App.4th 71, 78.) Here, there is no 

indication the jury entertained reasonable doubt as to whether Kruzik committed second 

 

6 We agree that CALJIC instructions do not serve as a benchmark by which to 

adjudicate the correctness of CALCRIM instructions. (See People v. Lawrence (2009) 

177 Cal.App.4th 547, 554.) 
17 

degree murder, and the evidence is abundant to support its verdict. The autopsy of A.A.'s 

body revealed evidence of three impacts to the head. The forensic pathologist opined that 

A.A.'s death was a homicide caused by blunt force trauma to the head. Kruzik admitted 

to striking A.A. four times to her head, causing her to lose consciousness after the final 

blow. 

 At trial, the jury considered Kruzik's defenses and found beyond a reasonable 

doubt that he acted with malice aforethought. Kruzik does not explain how the jury's 

question concerning implied malice reflects confusion about that matter, and we conclude 

it does not. We conclude that even if the jury had been instructed with CALJIC No. 8.72 

or some other similar instruction, it is not reasonably probable it would have convicted 

Kruzik of the lesser offense of manslaughter. 

DISPOSITION 

 The judgment is affirmed. 

O'ROURKE, J. 

WE CONCUR: 

BENKE, Acting P. J. 

IRION, J.