Filed 10/21/20 P. v. Clark CA2/3

Opinion following transfer from Supreme Court

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARKESE DEWON CLARK,

Defendant and Appellant.

 B279396

 (Los Angeles County

 Super. Ct. No. MA058334)

In re

MARKESE DEWON 

CLARK

on Habeas Corpus.

 B291549

 (Los Angeles County

 Super. Ct. No. MA058334)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Frank M. Tavelman, Judge. Affirmed.

ORIGINAL PROCEEDINGS; petition for writ of habeas 

corpus, Frank M. Tavelman, Judge. Petition denied.
2

James Koester, under appointment by the Court of Appeal, 

for Defendant, Appellant and Petitioner.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Steven D. Matthews, Ryan M. Smith and John 

Yang, Deputy Attorneys General, for Plaintiff and Respondent.

——————————

Two-year-old King J.

1 died from blunt force head trauma 

inflicted while in Markese Devon Clark’s (Clark) care. At his 

trial, Clark contended that King, unbeknownst to Clark, had a 

prior, unrelated head injury that left his head susceptible to 

reinjury. Thus, even a minor event, such as playfully tossing 

King in the air or administering what Clark calls “old school” 

punishment of hitting the baby on his head, could have caused 

King’s death. Based on that theory, Clark contended on appeal 

that the trial court should have instructed the jury on assault 

with force likely to produce great bodily injury as a lesser 

included offense to assault on a child causing homicide, on which 

the jury was instructed and of which Clark was found guilty. 

In our original opinion filed in 2019, we rejected that 

contention because there was insufficient evidence to instruct the 

jury on the lesser included offense. We also rejected Clark’s 

remaining contentions concerning, for example, Sanchez2 error, 

and denied his related petition for writ of habeas corpus. 

Accordingly, we affirmed the judgment.

1 To avoid confusion, we identify individuals who share the 

same surname by their first names. No disrespect is intended.

2 People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
3

Clark petitioned for review. The California Supreme Court 

granted review and transferred the matter with directions to 

vacate our decision and to reconsider the cause in light of People 

v. Perez (2020) 9 Cal.5th 1. Perez at page four held that the 

failure to object to case-specific hearsay pre-Sanchez did not 

forfeit the issue on appeal. Because our original opinion did not 

find that the Sanchez issue was forfeited, Perez does not affect 

that opinion. Accordingly, on reconsideration, we affirm our 

original decision in its entirety.

BACKGROUND

I. King

Ericka and Donald had three children, two daughters and 

King. In the summer of 2012, the girls were eight years old (Joy) 

and five years old. King, who was born on December 29, 2010,

was almost two years old. With respect to King, Ericka had a 

normal pregnancy and delivery, and his checkups, the last of 

which was in July 2012, were normal. 

However, in July 2012, King fell down 15 or 16 concrete or 

tiled stairs, resulting in a bump to his head, although he did not 

lose consciousness. Emergency room doctors examined and 

released him that same day. Although Ericka remembered the 

one fall, Joy remembered King falling down stairs a second time, 

which also prompted a trip to the emergency room. Ericka, 

however, said that while King got other bumps on his forehead 

from falling or running into something, this all happened before 

July 2012. 

Around August 2012, Ericka and Donald separated. Soon 

thereafter, in September 2012, Ericka resumed a relationship 

with Clark, whom she had dated in the past. Clark and his two 

children—three and one-year old girls—moved into a two-
4

bedroom apartment in Long Beach with Ericka and her three 

children. Ericka worked as a personal banker for Wells Fargo, 

while Clark cared for the children and worked on his music at 

home. 

Caring for five children at times frustrated and 

overwhelmed Clark. Once, a neighbor heard King “crying, crying, 

crying,” and Clark yelling, “ ‘Sit the fuck down. Shut the fuck 

up.’ ” The neighbor heard Joy say she knew how to quiet King. 

Another time, the neighbor saw Clark come outside to “pull 

himself together.” When the neighbor told him the kids were 

crying, he went back inside.

As to discipline, Ericka and Clark agreed he would not 

spank Ericka’s children to avoid problems with Donald. Ericka

never saw Clark hit her children, and he never told her he had 

done so. Even so, Clark complained that Ericka and Donald 

babied King, who Clark called a “crybaby.” When King cried, 

Clark would tell him to “man up.” Clark fantasized that he and 

Ericka would have a son who Clark would teach to be “tough” and 

to “really be a boy.” Clark’s notion of how to really be a boy 

included telling King not to play with “girl stuff,” like his sister’s 

toys. 

King thus never warmed to Clark. And, after Donald left, 

King lost his “spunk” and was sad. Ericka attributed this to King 

missing his father, to whom he was close, and she considered 

taking King to a psychologist.

In mid-October 2012, Ericka and Clark moved to a fourbedroom house in Lancaster, where Ericka continued to work for 

Wells Fargo and Clark continued to stay at home caring for the 

children, although King’s sisters were in school during the day. 
5

II. The events leading to King’s death

On Christmas Eve 2012, the family celebrated, King

perhaps too much, for he ate a lot of sweets. The next day, he 

threw up and was weak, although he didn’t have a fever. Over 

the next few days, he seemed better, although he was mopey and 

not himself. On the day of his second birthday, December 29, he 

uncharacteristically ate his cake slowly and moved slowly. 

Concerned, Ericka considered taking him to the doctor. 

On January 2, 2013, Ericka worked all day, and Clark did 

not say anything was wrong with King. When Ericka got home 

that night at 8:45 p.m., King was already asleep. Thinking it was 

too early for King to go to bed, Ericka woke him. When she put 

him down, he wasn’t able to hold his balance. Although King ate 

slowly, at “not his normal pace,” he otherwise seemed fine.

The next morning, January 3, 2013, Ericka went to work.

The children remained at home with Clark. At 11:00 a.m., Clark 

called Ericka and said that King had fallen and was being rushed 

to the hospital. When a responding paramedic arrived, King was 

not breathing, and his heart was not beating. King was also 

“extremely cold” and damp. The paramedics took King to 

Antelope Valley Hospital, but he was later transported to Kaiser. 

Doctors drilled burr holes into his head to drain fluid that had 

accumulated on his brain. When King’s neurologic function 

didn’t improve, he was removed from life support on January 17. 

Two days later, he died. 

At the time of his death, King weighed 25 pounds and was 

39 inches tall. 
6

III. Joy’s testimony

Soon after King died, eight-year-old Joy gave a recorded 

statement on January 21, 2013 about what happened to her baby 

brother. She said that Clark had been throwing King “in the air 

and pulling him down and they fell back, and then he picked him 

up and went to go put him in the shower.” “[H]e put him down,” 

“[h]e fall back, and he was crying, he just fell back, fell out.” A 

few minutes later, Clark said King hit his head in the bathtub. 

When Clark later said King fell down the stairs, Joy tried to say 

that didn’t happen, but Clark shushed her. Joy also reported 

that Clark would “pop[ ]” King on the behind and send King 

upstairs when he got mad at King. Also, Clark “makes King hit 

his head.” Clark would take King into a bedroom and Joy could 

hear “head bumps” every time Clark “whoop[ed]” King, who cried. 

At trial, Joy, who was now 11 years old, testified she never 

saw Clark spank King, but Clark did “pop him in the head 

sometimes. He popped him in the behind and his head.” On the 

day King went to the hospital, Clark was playing with the kids in 

the carpeted living room. When Clark threw King into the air, 

King vomited onto Clark’s shirt. Clark took King upstairs to 

bathe him. Clark came back downstairs, crying and saying,

“ ‘King’s not breathing.’ ” 

IV. Medical testimony

Two experts testified for the prosecution: Dr. Jason Tovar 

and Dr. Carol Berkowitz.

A. Dr. Tovar

Deputy Medical Examiner Jason Tovar autopsied King. He 

also reviewed King’s medical records, the coroner’s investigator 
7

report, a post autopsy ophthalmologist report, and a post autopsy

neuropathology report. 

Dr. Tovar’s internal examination of King’s head revealed 

contusions on the scalp’s undersurface in the frontal regions 

toward the forehead and across the top of the head and 

hemorrhage on the back of the head on the bone. More 

specifically, King had hemorrhages in the subcutaneous,

subgaleal, and subdural regions of his brain. The subcutaneous 

hemorrhage was diffuse (spread out) and located to the left side 

of his head just above the ear and into the back, indicating 

unnatural trauma. King also had diffuse subgaleal hemorrhage 

to the back of his head, on the left side of his scalp over a fairly 

large area. Because the subgaleal region is below the skin and 

subcutaneous regions, hemorrhage to the subgaleal area 

suggested application of a “larger,” “harder” or “significant” force. 

The presence of hemorrhaging to the back, top, and side of King’s 

head indicated multiple applications of force. A hand striking the 

head or the head hitting a hard, flat surface could cause the

subcutaneous and subgaleal hemorrhages. 

In addition to the subcutaneous and subgaleal 

hemorrhages, King had a subdural hemorrhage on his right 

posterior parietal region. Disruption of the small veins running 

from the brain’s surface to the central portion of the dura3 caused 

the hemorrhage. Such disruption occurs “through force and 

acceleration, deceleration, or stretching or sheering effects.” 

Acceleration and deceleration can cause bleeding into the retinas. 

Dr. Tovar therefore dissected King’s eyes and sent them to an 

3 The dura is the layer of fibrous tissue on the inside of the 

skull.
8

ophthalmologist, who found retinal hemorrhages. Dr. Tovar also

sent King’s brain to a neuropathologist, who found no indication 

of “natural disease process.” Dr. Tovar relied on these reports to 

form his opinion about cause of death. 

In addition to the hemorrhages to King’s head, he had an 

older (weeks or longer) hemorrhage and calcification to the 

mesentery, suggesting prior injuries to that area, “probably” from 

some form of blunt force trauma. 

Notwithstanding his internal injuries, King had no 

external bruising. However, a child struck hard enough on the 

head to cause internal damage might not exhibit external signs of 

the injury. 

Dr. Tovar could not ascribe the blunt force injuries to 

anything natural, and nothing else in the known circumstances 

“corroborate[d]” multiple injuries in different sites. However, 

shaking a baby so that the baby’s head hits a flat surface like a 

bathtub could cause the hemorrhaging, including the retinal 

hemorrhaging King suffered. Striking a baby with an open hand 

could also cause those injuries. But falling back onto a carpeted 

surface could not cause them. Dr. Tovar therefore determined 

that nonaccidental blunt head trauma caused King’s death and 

that the mode of death was homicide. 

On cross-examination, Dr. Tovar agreed that veins on the 

brain that had once bled and then healed could “[p]otentially” be 

more susceptible to reinjury, depending on “when we are talking 

about, what time interval, and the amount of the injury.” 

Bleeding veins on the brain could cause sudden severe headache, 

seizures, nausea or vomiting, and loss of coordination and 

balance. Tossing a child into the air a couple of times and then 

putting him on carpeted floor onto which the child falls back and 
9

hits it head would not be enough force to cause the veins to bleed. 

But falling down stairs could cause that type of injury. If a child 

fell down stairs, causing the veins on his brain to bleed, that 

location could be more susceptible to reinjury.

4 And, if five 

months later “I give this kid a little pop on his head, even though 

it’s not with tremendous force and even though it doesn’t even 

leave bruising on the outside,” it might be enough to cause that 

vein to start bleeding again. 

However, a microscopic review of King’s dura showed no 

prior injury. None of the hemorrhages could have resulted from 

an injury occurring five months before January 3, 2013—that is, 

the fall down the stairs. Also, there was no evidence of any prior 

injury that could have caused or contributed to the subdural 

hemorrhage. 

B. Dr. Berkowitz

Dr. Carol Berkowitz is board-certified in pediatric 

emergency medicine and in child abuse pediatrics. She reviewed 

King’s medical records from Antelope Valley and Kaiser 

hospitals, paramedic reports, his well-child visits, and the 

ophthalmology report. 

King’s condition when paramedics arrived—fixed and 

dilated pupils, lack of a pulse, and cold to the touch—suggested 

that “this event had gone on for a bit of time.” His low rectal 

temperature, which was taken at Antelope Valley, also suggested

that King’s inability to maintain body temperature had been 

4 The doctor had only become aware of King’s prior falls 

and emergency room visit after he’d formed his opinion about 

cause of death. Dr. Tovar did not have King’s medical history 

prior to January 3, 2013. 
10

ongoing for a while. Although a CT scan of King’s head taken 

when he was admitted showed no abnormalities such as subdural 

bleeding, that could be because his heart had stopped circulating 

blood to the site of the bleed. Thus, when doctors were able to get 

King’s heart beating, another CT scan showed the hemorrhages.

Also, when King was admitted, he had petechiae—tiny 

hemorrhages present in the back of the eye. Later, an 

ophthalmologist examined King and confirmed he had multiple 

retinal hemorrhages in all four eye quadrants, indicating a 

shaking or an acceleration and deceleration. Shaken baby 

syndrome occurs when the brain is subjected to “whiplash, like 

acceleration, deceleration,” and it “swooshes back and forth 

within the skull.” Veins separate from the dura and they bleed, 

causing edema or an inability to regulate breathing. Retinal 

hemorrhages are also associated with shaken baby syndrome.

In Dr. Berkowitz’s opinion, King suffered nonaccidental 

head trauma occurring around the time he became symptomatic, 

meaning when he stopped breathing and his heart stopped 

beating. The catastrophic event that caused King to stop 

breathing could not have occurred several days before January 3, 

2013, because the CT scan at Antelope Valley where King was 

first admitted would have shown the presence of blood. She 

agreed with Dr. Tovar that hitting a child does not necessarily 

leave external bruising or swelling. 

On cross-examination, Dr. Berkowitz admitted she had

only recently learned of King’s earlier fall down stairs. However, 

it was her understanding that the emergency department did not 

order imaging studies, which indicated there was no evidence of 

intracranial injury. If King had such an injury, he would not 
11

have been in such great health until the time of the event on 

January 3, 2013. 

Still, Dr. Berkowitz generally agreed that if a child hit his 

head causing veins to bleed, that area would be susceptible to 

nonfatal “rebleeding.” But, if King had such rebleeding, then a 

CT scan five months after the event would not have been normal 

and instead would have shown hygroma, which is the fluid that 

persists after a prior bleed. King had no hygroma. Stated 

otherwise, if King had a bleeding caused by his fall down stairs 

and if some minor trauma occurred five months later on 

January 3, 2013 that caused a rebleed, then he would not have 

had a normal CT scan on January 3. Thus, King’s fall down 

stairs did not affect her opinion that King suffered nonaccidental 

head trauma on or about January 3. 

V. Clark’s statement to the police and trial testimony

Clark gave a recorded statement to Detective Scott Mitchell 

on January 3, 2013, after King had been taken to the hospital. 

Clark denied hitting or shaking King that day; all he did was pick 

up King and toss him in the air. But, he had, prior to January 3, 

“smacked” King across the back of his head with an open hand. 

Clark estimated he had hit King “ballpark” 15 times, “max” 

20 times. On a one to 10 scale, with 10 being the hardest he 

could hit, he hit King at a seven. Once or “a few times” Clark 

“got a little bit” “too much” and “exceeded [his] . . . power” and hit 

King at a nine or 10. Still, Clark never knocked King out; King 

would just fall to the ground and cry. Around the holidays, Clark 

did not hit King, who was under the weather, so he got a “pass.”5 

5 Clark’s statements on this point were a bit vague, because 

he later indicated he might have hit King after Christmas. 
12

Clark had “no doubt” he caused King’s injuries. Clark knew “it 

was a head injury because I know he hit his head a couple times.” 

Clark testified at trial and continued to deny hitting or 

shaking King on January 3, 2013. He also tried to minimize his 

prior statements to Detective Mitchell, saying they were 

inaccurate, prompted by fear and the hope that if he just said

“something” he could get back to his kids faster. Thus, he denied 

spanking or, as he called it, “pop[ping],” King on the head while 

they lived in Long Beach. However, Clark, who weighed 245

pounds in contrast to King’s 25 pounds, admitted he did hit King 

on the head with an open hand when they moved to Lancaster. 

This happened not “very often,” “like eight times.” When he did 

hit King, “it wasn’t at a seven or eight or nine. It was not every 

single time at that force.” Even so, Clark admitted he did 

“sometimes” hit King at a seven and exceeded his power once. 

King would cry for a few minutes, but Clark never knocked King 

off balance and he never saw any resulting bruises or swelling. 

The last time he could recall hitting King was before Christmas. 

On New Year’s Eve, Clark found King on the floor, crying 

and grunting and seeming not to have control of his body. He 

told Ericka they should take King to the emergency room, but she 

didn’t want to incur the cost of an ambulance. The next morning, 

January 1, King was much better. 

Two days later, on January 3, 2013, Clark was playing with 

the kids in the living room. He tossed King into the air three 

times, catching him as he came down. The last time, King fell 

back when Clark put him down and landed straight on his back 

and on his head. Clark picked him up, and King threw up, 

dirtying himself and Clark’s shirt. Clark took King to the 

bathroom, where he stripped him, put him into the tub, and 
13

washed him with cold water. Clark did not see King hit his head 

in the tub. After washing King, Clark took him upstairs and 

dressed him. That was when Clark noticed King was 

unresponsive. He ran downstairs with King and called 911, 

telling the operator that King “had hit his head.” 

He did not know about King’s prior fall down the stairs. 

VI. Trial and sentencing

An information charged Clark with assault on a child 

causing death, which is commonly known as child assault 

homicide6 (Pen. Code, § 273ab, subd. (a); count 1)7 and with 

murder (§ 187, subd. (a); count 2). A jury found Clark guilty of 

count 1 and found true a great bodily injury enhancement

(§ 12022.7, subd. (d)). The jury found Clark not guilty of murder 

but guilty of the lesser offense of involuntary manslaughter 

(§ 192, subd. (b); count 2).

On October 21, 2016, the trial court sentenced Clark to 

25 years to life on count 1. The trial court imposed but stayed a 

three-year sentence on count 2 and struck the enhancement. 

CONTENTIONS

Clark raises the following issues: (1) The trial court should 

have instructed the jury on assault with force likely to produce 

great bodily injury as a lesser included offense to count 1;

(2) expert witness doctors relied on impermissible hearsay in 

violation of Sanchez, supra, 63 Cal.4th 665; (3) admitting Clark’s 

statement to the detective violated Miranda v. Arizona (1966) 

6 People v. Wyatt (2012) 55 Cal.4th 694, 697, footnote 2 

(Wyatt II).

7 All further statutory references are to the Penal Code.
14

384 U.S. 436 (Miranda); (4) the trial court should have given a 

unanimity instruction; (5) prosecutorial misconduct;

(6) cumulative error; and (7) ineffective assistance of trial 

counsel. 

DISCUSSION

I. Failure to instruct on a lesser included offense 

Clark’s first contention is the trial court prejudicially erred 

by failing to instruct the jury on assault with force likely to 

produce great bodily injury as a lesser included offense to child 

assault homicide.8 We disagree.

A. The duty to instruct on lesser included offenses

Even in the absence of a request, a trial court must instruct 

on the general principles of law, including lesser included 

offenses, relevant to the issues raised by the evidence. (People v. 

Smith (2013) 57 Cal.4th 232, 239; People v. Breverman (1998) 

19 Cal.4th 142, 154.) Instruction on a lesser included offense is 

required when there is evidence the defendant is guilty of the 

lesser offense, but not the greater. (People v. Whalen (2013) 

56 Cal.4th 1, 68.) Substantial evidence is evidence a reasonable 

jury could find persuasive. (People v. Williams (2015) 61 Cal.4th 

1244, 1263.) The “testimony of a single witness, 

including . . .[the] defendant, may suffice.” (Wyatt II, supra,

55 Cal.4th at p. 698.) In determining whether substantial 

8 The trial court reasoned that the “facts really don’t 

support that, and, in fact, if [Clark] had been convicted of 875 

[assault with force likely to produce great bodily injury] because 

the individual didn’t die in this case, I think it would lead to a 

conviction in the greater.” 
15

evidence existed, we do not evaluate the credibility of the 

witnesses, a task for the jury. (Ibid.) However, the existence of 

any evidence, no matter how weak, will not justify an instruction. 

(Whalen, at p. 68.) Thus, the “obligation to instruct on a lesser 

included offense does not arise when there is no evidence that the 

offense was less than that charged.” (Wyatt II, at p. 702.)

A “primary reason for requiring instructions on lesser 

included offenses is ‘ “to eliminate the distortion of the factfinding 

process that is created when the jury is forced into an all-ornothing choice between [guilt] and innocence” ’—that is, to 

eliminate ‘ “the risk that the jury will convict . . . simply to avoid 

setting the defendant free.” ’ ” (People v. Majors (1998) 

18 Cal.4th 385, 410.)

We independently review whether the trial court erred by 

failing to instruct on a lesser included offense. (People v. Nelson 

(2016) 1 Cal.5th 513, 538; People v. Trujeque (2015) 61 Cal.4th 

227, 271.) Reversal is not warranted unless it appears 

“ ‘reasonably probable’ the defendant would have achieved a more 

favorable result had the error not occurred.” (People v. 

Breverman, supra, 19 Cal.4th at p. 149.)

B. Assault

As a general matter, assault crimes are ones of general 

intent that do not require a specific intent to cause injury. 

(People v. Williams (2001) 26 Cal.4th 779, 782, 788; see People v.

Albritton (1998) 67 Cal.App.4th 647, 658 [child assault homicide 

is a general intent crime].) To be guilty of assault, a defendant 

must be aware of facts that would lead a reasonable person to 

realize that a certain consequence would directly, naturally and 

probably result from his or her actions. (Williams, at p. 788.) 
16

However, a defendant may not be convicted based on facts he did 

not know but should have known. (Ibid.) 

As to child assault homicide specifically, its elements are: 

“(1) a person, having the care or custody of a child under the age 

of eight; (2) assaults the 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.”

9 (People v. Wyatt (2010) 

48 Cal.4th 776, 780–781; Wyatt II, supra, 55 Cal.4th at p. 702.) 

The jury here was accordingly instructed as to the third element 

regarding mens rea that the prosecution had to prove that when 

Clark “acted, he was aware of facts that would lead a reasonable 

person to realize that his act by its nature would directly and 

9 The trial court instructed the jury that child assault 

homicide required the prosecution to prove: 

“1. The defendant had care or custody of a child who was

under the age of 8;

“2. The defendant did an act that by its nature would 

directly and probably result in the application of force to the 

child;

“3. The defendant did that act willfully;

“4. The force used was likely to produce great bodily injury;

“5. 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 injury 

to the child; 

“6. When the defendant acted, he had the present ability

to apply force likely to produce great bodily injury to the child;

“7. The defendant’s act caused the child’s death.

[¶] . . . [¶]

“Great bodily injury means significant or substantial 

physical injury. It is an injury that is greater than minor or 

moderate harm.” (Italics omitted.)
17

probably result in great bodily injury to” King. (Italics added.) In 

contrast to child assault homicide, assault with force likely to 

cause great bodily injury, with which the jury was not instructed, 

requires proof that when 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 the application of 

force to someone.”10 

The difference between the two crimes is thus one of three 

words about what defendant knew his act would directly and 

probably result in: either “great bodily injury” (child assault 

homicide) or the “application of force” (assault with force likely to 

produce great bodily injury). “Great bodily injury” is “significant 

or substantial physical injury. It is an injury that is greater than 

10 Assault with force likely to produce great bodily injury 

requires the People to prove: (1) The defendant did an act that by 

its nature would directly and probably result in the application of 

force to a person; (2) The defendant did that act willfully; (3) The 

force used was likely to produce great bodily injury; (4) 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 the application of force to 

someone; and (5) When the defendant acted, he had the present 

ability to apply force likely to produce great bodily injury to a 

person. The terms application of force and apply force mean to 

touch in a harmful or offensive manner. The slightest touching 

can be enough if it is done in a rude or angry way. Making 

contact with another person, including through his or her 

clothing is enough. The touching does not have to cause pain or 

injury of any kind. The touching can be done indirectly by 

causing an object to touch the person. Great bodily injury means 

significant or substantial physical injury. It is an injury that is 

greater than minor or moderate harm. (See, e.g., CALCRIM 

No. 875.)
18

minor or moderate harm.” (CALCRIM No. 820, italics omitted.) 

In contrast, the “terms application of force and apply force mean 

to touch in a harmful or offensive manner. The slightest touching 

can be enough if it is done in a rude or angry way. Making 

contact with another person, including through his or her 

clothing is enough. The touching does not have to cause pain or 

injury of any kind. [¶] The touching can be done indirectly by 

causing an object . . . to touch the other person.” (CALCRIM 

No. 875, brackets omitted.) Thus, arguably the difference

between child assault homicide and assault with force likely to 

produce great bodily injury is one between “great bodily injury” 

and battery.

Clark thus argues that given the “ambiguous and 

contradictory evidence regarding multiple assaultive acts that 

could have caused the fatal injury and the quantum of force 

related to those assaultive acts” and King’s prior falls down stairs 

“that made him more susceptible to a traumatic brain injury, 

there could be a reasonable doubt that [Clark] would objectively 

appreciate that his ‘old school’ popping the back of King’s 

head . . . or his tossing King up into the air and catching him 

would likely result in” great bodily injury. As we therefore 

understand the argument, because Clark did not know of King’s 

prior falls down stairs, Clark did not realize that hitting King on 

the back of the head or tossing him into the air could result in 

great bodily injury. Hence, the trial court should have instructed 

the jury on the lesser included offense of assault with force likely 

to produce great bodily injury. 

This argument rests on the notion that a fall or falls down 

stairs left King’s brain so susceptible to reinjury that a minor 

event, such as being playfully tossed into the air or falling back 
19

onto carpet, caused multiple, diffuse hemorrhages to the 

subcutaneous, subgaleal, and subdural regions of his head. 

However, what, specifically, was the evidence that King suffered 

a subdural bleed in or about July 2012? The evidence relevant to 

this notion was limited to the following. In July 2012, King fell 

down 15 or 16 concrete or tiled stairs, resulting in a bump to his 

head. Emergency room doctors examined and released him 

without ordering a CT scan. Eight-year-old Joy recalled a second 

fall down stairs and trip to the emergency room. Five months 

later, around Christmas, King was ill and not himself. The 

prosecution’s experts agreed with the general ideas that a fall 

down stairs could cause veins on a child’s brain to bleed, and 

veins, having once bled and healed, could “potentially” be more 

susceptible to reinjury. And, according to Dr. Tovar, if months 

later someone gives the child a “little pop” on the head, that 

might be enough to cause the veins to bleed again or, as 

Dr. Berkowitz said, a nonfatal rebleed. 

To be sure, this was substantial evidence King fell down 

stairs and had a bump to the head. It is not substantial evidence 

that King’s fall down stairs resulted in bleeding in the veins on 

his brain.11 Rather, substantial evidence requires evidence and 

not mere speculation. In any given case, one could “speculate

about any number of scenarios that may have occurred,” but a 

reasonable inference “ ‘may not be based on suspicion alone, or on 

imagination, speculation, supposition, surmise, conjecture, or 

11 This point leads to the writ, which faults Clark’s trial 

counsel for failing to call a defense expert witness to testify that 

the earlier fall could have caused King’s veins to bleed and 

rendered his brain susceptible to reinjury. We discuss that issue 

post.
20

guess work. . . . A finding of fact must be an inference drawn 

from evidence rather than . . . a mere speculation as to 

probabilities without evidence.’ ” (People v. Morris (1988) 

46 Cal.3d 1, 21; see People v. Crew (2003) 31 Cal.4th 822, 835 

[speculation is not substantial evidence].) It is speculative to 

draw a line from King’s fall down stairs to a subdural injury so 

extensive that a minor event such as tossing King in the air or 

hitting his head on carpet could cause his death.

And, to the extent Clark argues that his “pops” to King’s 

head were mere “applications of force” amounting only to a 

battery, we disagree. King was only about 19 months old when 

Clark began caring for him and two years old when he died. 

Notwithstanding the fragility of such a young child’s head, Clark 

admitted he hit King on the back of his head at least eight times. 

Although Clark contends there was ambiguity about the level of 

force he used, citing, for example, that he left no external marks 

on the child, he unambiguously said in his interview with 

Detective Mitchell and at trial that he sometimes hit King at a 

“seven” on a scale of one to 10, with a 10 being the hardest he 

could hit. At trial, he admitted he exceeded his power, albeit just 

“once.” A reasonable person would have appreciated that hitting 

a baby on the back of the head would result in great bodily injury. 

Stated otherwise, to the extent Clark’s argument the trial court 

should have instructed the jury on the lesser is based on his “old

school” style of “discipline” which included “sometimes” hitting a 

baby on the head at a power level of seven, Clark, if guilty at all,

was guilty of the greater offense. (See Wyatt II, supra, 55 Cal.4th 

at pp. 702–704 [forceful play-wrestling with 14 month old not 

simple assault].)
21

II. Sanchez error

Clark next contends that Drs. Tovar and Berkowitz’s 

reliance on the ophthalmologist and neuropathologist reports

violated Sanchez, supra, 63 Cal.4th 665.

12 As we now explain, we 

reject his contention that any prejudicial error occurred.

Sanchez, supra, 63 Cal.4th 665 addressed the manner in 

which expert witnesses—specifically in that case a gang expert—

may refer to hearsay they relied on to support their opinion. The 

court thus considered the extent to which the confrontation 

clause and our state hearsay rules preclude expert witnesses

from relating “case-specific” hearsay in explaining the basis for 

an opinion. Case-specific facts are those relating to the 

particular events and participants in the case being tried. (Id. at 

p. 676.) “Generally, parties try to establish the facts on which 

their theory of the case depends by calling witnesses with 

personal knowledge of those case-specific facts. An expert may 

then testify about more generalized information to help jurors 

understand the significance of those case-specific facts. An 

expert is . . . allowed to give an opinion about what those facts 

may mean.” (Ibid.) When an expert relates case-specific facts

and treats the content of those statements as true and accurate 

to support the expert’s opinion, the statements are hearsay. And, 

if the “prosecution expert seeks to relate testimonial hearsay,[

13]

12 Clark cursorily argues that the experts’ reliance on police 

reports and King’s well-child visits was also Sanchez error, but 

the thrust of his argument concerns the ophthalmologist and 

neuropathologist’s reports.

13 Testimonial statements are ones made with some degree 

of formality or solemnity and having the primary purpose of 
22

there is a confrontation clause violation unless (1) there is a 

showing of unavailability and (2) the defendant had a prior 

opportunity for cross-examination, or forfeited that right by 

wrongdoing.” (Id. at p. 686.)

We have no occasion here to consider whether the expert 

doctor witnesses violated Sanchez by relying on inadmissible 

hearsay, namely, the ophthalmologist and neuropathologist 

reports. Even if the information in those reports—that King had 

retinal hemorrhages and that he did not die of natural causes—

were case-specific facts requiring the ophthalmologist and 

neuropathologist to testify as them, no prejudice accrued to 

Clark.

First, King’s medical records otherwise established he had 

retinal hemorrhaging.

14 Dr. Tovar referred to “reports of retinal 

hemorrhages from the documentation,” which prompted him to 

send King’s eyes to an external consultant. Dr. Tovar then 

referred to a “report of retinal hemorrhages in the hospital 

setting.” Dr. Berkowitz similarly reviewed King’s medical 

records. Those records, and in particular the ones from Antelope

Valley Hospital, showed “evidence of bleeding within the back of 

the eye . . . . I think the comment was that they were petechiae 

establishing or proving past events relevant in a later criminal 

prosecution. (People v. Edwards (2013) 57 Cal.4th 658, 705.)

14 Dr. Tovar testified that an individual’s medical records 

reflecting treatment before death factored into his ultimate 

determination of cause of death: “If an individual is in the 

hospital for an extended amount of time, such as this case here, 

we would use some of that medical information to go back to 

identify what was happening immediately at the time of 

presentation to assess those findings, because some of the 

findings may be altered or different at the time of autopsy.” 
23

eye, little tiny hemorrhages that were present in the back of the 

eye” when King was at the hospital. By this, it is reasonably 

clear that the medical records were made by, for example, King’s 

treating physicians. Therefore, to the extent the experts’

conclusions that King was violently shaken or suffered blunt 

force head trauma relied on the presence of retinal 

hemorrhaging, the medical records established that fact. 

However, the admissibility of those medical records is not 

before us. Clark concedes, properly, they are not testimonial and

their admission did not violate his confrontation rights. 

Therefore, if the medical records are hearsay, they are 

nontestimonial hearsay. Experts “may . . . rely on nontestimonial 

hearsay properly admitted under a statutory hearsay exception.” 

(Sanchez, supra, 63 Cal.4th at p. 685.) Clark did not object to 

King’s medical records. And he does not argue on appeal that 

they were inadmissible under state evidentiary rules. Any issue 

as to admissibility under state law is therefore forfeited. 

As to the neuropathologist’s report, Dr. Tovar’s reliance on 

it was harmless beyond a reasonable doubt. (See generally 

Sanchez, supra, 63 Cal.4th at p. 698.) The report merely 

confirmed Dr. Tovar’s personal observation King did not die of 

natural causes. That is, Dr. Tovar’s external and internal 

examinations of King’s body revealed no congenital, 

cardiovascular or respiratory abnormalities. King’s major organs 

similarly showed no abnormalities. The case-specific fact that 

King had no disease or natural condition that could explain his 
24

death was therefore based on Dr. Tovar’s personal observations.15 

The neuropathologist similarly ruled out, at a gross and 

microscopic level, any natural process that might have caused

hemorrhages. Thus, the neuropathologist’s report merely 

confirmed and buttressed Dr. Tovar’s finding. Moreover, that 

finding—that a two-year-old child did not die from natural 

causes—was hardly a controversial one. The defense did not 

contend King died of natural causes. Rather, the defense theory 

was King died because some minor event on January 3, 2013

exacerbated a prior head injury.

III. Miranda

Before trial, Clark moved, under Miranda to exclude his

statements to Detective Mitchell. After setting forth additional 

facts regarding those statements, we conclude Clark was not in 

custody and therefore Miranda warnings were not required.

A. Additional facts

To determine the admissibility of Clark’s statements, the 

trial court held a hearing at which four law enforcement officers 

and Clark testified. The officers’ testimony established that 

when deputies arrived at Clark’s home, he was getting ready to 

leave for the hospital. A deputy put him in the back of a patrol 

car and another deputy stood watch nearby. When Detective 

Laura Bruner arrived, she asked Clark if he was willing to take a 

polygraph test. Clark said he would, so the officers moved Clark 

from the patrol car to an unmarked vehicle which had no internal 

15 Dr. Berkowitz similarly could think of no natural event 

in a healthy two year old that could account for the hemorrhaging 

in the brain, the retinal hemorrhaging, and the cardiac arrest.
25

cage. A deputy sat next to Clark in the backseat en route to the 

station. At the station, Clark was taken to an interview room

where he signed a consent to take a polygraph. Detective 

Mitchell told Clark that he was not in custody, “nobody’s put 

handcuffs on you, nobody’s detained you, nobody’s held you 

against your will. I’m not going to make you stay or force you to 

stay or trick you to stay or anything like that. That’s not how we 

do it, okay? We keep it on a very professional level, very low 

key.” Although Clark and the detective talked, Clark was never 

given a polygraph test.

Three of the officers testified that Clark was not 

handcuffed, and the fourth could not remember. All officers said 

that Clark did not ask for an attorney. None of the officers gave 

Clark his Miranda rights.

Clark, however, said he was handcuffed on the way to the 

patrol car, although he sat without handcuffs in the car, and he 

immediately asked for an attorney. Although he was told he was 

not under arrest, he never felt free to leave. He sat in the patrol 

car for about an hour before being moved to the unmarked 

vehicle.

In issuing its ruling, the trial court expressly resolved

discrepancies between the officers’ and Clark’s testimony in the 

officers’ favor, particularly whether Clark was handcuffed. The 

trial court found that if Clark was in custody when he was put in 

the back of the patrol car for an hour, that custody or detention 

was “lifted” when he was taken out of the car. Also, if Clark was

in custody, “that was more than cured by” the detective’s 

statement at the interview that Clark was free to leave. Based 

on the totality of the circumstances, the trial court found that 
26

Clark was not in custody, and therefore his statements were 

admissible. 

B. Clark was not in custody

Miranda, supra, 384 U.S. 436 requires a suspect to a 

custodial interrogation to be advised of certain rights. (People v. 

Mickey (1991) 54 Cal.3d 612, 648.) The test for whether a suspect 

is in custody is objective; the question is whether there was a 

formal arrest or a restraint on the freedom of the suspect’s 

movement to the degree associated with a formal arrest. (People 

v. Leonard (2007) 40 Cal.4th 1370, 1400; People v. Kopatz (2015) 

61 Cal.4th 62, 80 (Kopatz).) Stated otherwise, would a reasonable 

person have felt at liberty to end the interrogation and to leave? 

(People v. Ochoa (1998) 19 Cal.4th 353, 401–402.)

Whether a suspect is in custody depends on the totality of 

the circumstances. (People v. Pilster (2006) 138 Cal.App.4th 

1395, 1403.) Although no single factor is controlling, we consider 

“ ‘(1) [W]hether the suspect has been formally arrested; (2) absent 

formal arrest, the length of the detention; (3) the location; (4) the 

ratio of officers to suspects; and (5) the demeanor of the officer, 

including the nature of the questioning.’ [Citation.] Additional 

factors are whether the suspect agreed to the interview and was 

informed he or she could terminate the questioning, whether 

police informed the person he or she was considered a witness or 

suspect, whether there were restrictions on the suspect’s freedom 

of movement during the interview, and whether police officers 

dominated and controlled the interrogation or were ‘aggressive, 

confrontational, and/or accusatory,’ whether they pressured the 

suspect, and whether the suspect was arrested at the conclusion 

of the interview.” (Id. at pp. 1403–1404.)
27

“Whether a [suspect] was in custody for Miranda purposes 

is a mixed question of law and fact.” (Kopatz, supra, 61 Cal.4th 

at p. 80.) We apply a substantial evidence standard to the trial 

court’s factual findings regarding the circumstances surrounding 

the interrogation, but we independently decide whether, given 

those circumstances, a reasonable person in the defendant’s 

position would have felt free to end the questioning and to leave.

(Ibid.)

Here, Clark argues he was in custody beginning when 

officers put him in the patrol car, where he sat for about an hour. 

Other than that, there is no indicia of custody. Clark was not 

searched, handcuffed or arrested. Notwithstanding that he sat in 

a patrol car for about an hour or more, there is no evidence he 

could not have left the car had he asked. (See People v. Moore

(2011) 51 Cal.4th 386, 395–396 [defendant who agreed to talk to 

deputy in patrol car was not in custody].) Moreover, once 

Detective Bruner arrived, she asked Clark whether he would be 

willing to take a polygraph test. Clark confirmed that the 

detective “asked [him] would [he] take a polygraph test, and the 

first thing [he] asked, [he would] like to speak to an attorney. 

[Detective Bruner] told [him] [he was] not under arrest, . . . [w]e 

just want to talk to you, to take the poly to clear your name, and 

we will get you back to your kids. And [he] said, okay, because 

[he] wanted to get back to [his] kids.” (Italics added.) 

Then, at the station, Detective Mitchell told Clark “you are 

not in custody, nobody’s put handcuffs on you, nobody’s detained 

you, nobody’s held you against your will. I’m not going to make 

you stay or force you to stay or trick you to stay or anything like 

that.” Further, Clark signed a consent-waiver for polygraph 

examination form stating that he “voluntarily” agreed to submit 
28

to the examination and understood he was free to terminate it 

any time. Signing such a form strongly supports the 

voluntariness of an interview. (People v. Ochoa, supra,

19 Cal.4th at p. 402.) Under such a circumstance, a reasonable 

individual would know “that he or she can end a voluntary 

association with other individuals at will. This is so despite the 

location of defendant’s questioning: the fact that he was 

questioned in the police station’s polygraph examination room 

does not necessarily require a finding of custody, even if the room 

was in a secure area.” (Id. at p. 403.) 

Nothing in the other circumstances surrounding Clark’s 

interview shows that he was in custody. He waited in the patrol 

car for only about an hour before Detective Bruner asked if would 

take a polygraph test. The record also suggests that law 

enforcement officers drove Clark to the station as a matter of 

convenience, because he did not have car. (See Kopatz, supra, 

61 Cal.4th at p. 81 [inference was defendant needed a ride to 

station].) There is no evidence that Detective Mitchell or any 

other law enforcement officer behaved aggressively toward Clark. 

To the contrary, the transcript of Clark’s interview indicates that 

Detective Mitchell behaved in a congenial, nonaggressive, and 

respectful manner. The totality of the circumstances thus show 

that Clark was not in custody.

IV. Unanimity instruction

Clark argues that the trial court should have given a 

unanimity instruction because the prosecution presented the 

following three discrete factual theories regarding the assault 

causing Clark’s death: (1) Clark disciplined King by “popping” 

him on the head, (2) Clark somehow knocked King’s head against 

the bathtub, and (3) Clark violently shook King. As a 
29

preliminary matter, the prosecution did not present three 

discrete factual theories causing Clark’s death. Clark’s history of 

hitting King—or, as appellant’s counsel characterizes it, “oldschool punishment”—was relevant to show that Clark, in keeping 

with his practice, hit King on January 3, 2013 as well.16 But, it 

was not the prosecution’s theory that those prior assaults killed 

King on January 3. Rather, the prosecution’s theory was Clark 

did something—hit King on the head and/or shook him violently 

perhaps causing King to hit his head on the bathtub—on 

January 3 that caused King’s death.17

This leads us to the next problem with Clark’s argument 

that a unanimity instruction was required. Such an instruction 

is necessary if there is evidence more than one crime occurred, 

“each of which could provide the basis for conviction under a 

single count” (People v. Grimes (2016) 1 Cal.5th 698, 727), 

because the jury must agree on the same criminal act (People v. 

Russo (2001) 25 Cal.4th 1124, 1132). However, there are 

exceptions to this general rule. One is the continuous-course-of 

conduct exception, which applies “ ‘when the acts are so closely 

connected in time as to form part of one transaction.’ ” (People v. 

16 It also could have been relevant to rebut any argument 

that to the extent King’s susceptibility to injury was due to some 

prior event—that event was not the fall down the stairs: it was 

Clark’s practice of hitting King at a level of seven, and sometimes 

at a nine or 10.

17 It also was not the prosecutor’s theory that King hitting 

his head on the carpet caused the subdural hemorrhage. 
30

Jennings (2010) 50 Cal.4th 616, 679.)18 This exception also 

applies “ ‘[w]here . . . the evidence establishes a pattern of 

physical trauma inflicted [on] a child [over] a relatively short 

period of time [and] a single course of conduct is involved.’ ” 

(People v. Napoles (2002) 104 Cal.App.4th 108, 116, italics 

omitted.) Where, for example, the cumulative result or effect of 

the conduct is great bodily injury, a unanimity instruction is not 

required. (Jennings, at p. 680.)

The exception applies here. The prosecution theory was 

something catastrophic happened to King on January 3, 2013 

over a short period of time. The prosecutor did not argue, nor 

was there evidence, that hitting King’s head or shaking him were 

separate, discrete acts. The prosecutor therefore repeatedly 

argued in closing that the “head trauma was inflicted on 

January 3, 2013”; “based on the medical science and the evidence, 

it’s undisputed that all that trauma that baby King had to endure 

and die from, it all happened on January 3”; “[Clark] inflicted the 

head trauma on January 3, 2013”; and Clark took King to the 

bathroom and gave him a “couple blows to the head . . . [a]nd 

after he did the blows, he shook baby King and baby King’s head 

hit the bathtub. That’s why there’s the subgaleal hemorrhage, 

and the rotation, the acceleration, deceleration, and the blows to 

the head from the head going forward and back and hitting the 

tub, the retinal hemorrhaging.” However, even if the jury could 

have believed that Clark’s months-long history of hitting King, 

culminating in the fatal event on January 3, 2013, caused King’s 

18 Another exception is when the defendant offers the same 

defense or defenses to the various acts constituting the charged 

crime. (People v. Jennings, supra, 50 Cal.4th at p. 680.)
31

heart to stop beating, that abuse could only have happened over a 

brief period of time, given that Clark and Ericka began living 

together in September 2012 and King stopped breathing on 

January 3, 2013.

19 (See, e.g., People v. Ewing (1977) 

72 Cal.App.3d 714, 717 [unanimity instruction not required 

where physical abuse occurred over period of time].) Thus, 

where, as here, the evidence is that trauma was inflicted on a 

child within a relatively short period of time, the continuous 

course of conduct exception applies. (People v. Napoles, supra,

104 Cal.App.4th at pp. 115–116.) No unanimity instruction was 

required.

V. Prosecutorial misconduct

While conceding there “was no single instance of egregious 

misconduct,” Clark argues there nonetheless was a “pattern of 

subtle instances of prosecutorial misconduct.”20

“The applicable federal and state standards regarding 

prosecutorial misconduct are well established. ‘ “A 

prosecutor’s . . . intemperate behavior violates the federal 

Constitution when it comprises a pattern of conduct ‘so egregious 

that it infects the trial with such unfairness as to make the 

19 Indeed, Clark said he didn’t start hitting King until the 

family moved to Lancaster, in October 2012.

20 The Attorney General fails to respond meaningfully to 

this issue. Instead, the respondent’s brief appears to have been 

cut and pasted from another case. That is, the Attorney General 

argues the issue has been forfeited, but defense counsel did object 

to the instances of alleged misconduct. Also, the respondent’s 

brief refers to firearms possession, but firearms possession is not 

at issue. 
32

conviction a denial of due process.’ ” ’ [Citations.] Conduct by a 

prosecutor that does not render a criminal trial fundamentally 

unfair is prosecutorial misconduct under state law only if it 

involves ‘ “ ‘the use of deceptive or reprehensible methods to 

attempt to persuade either the court or the jury.’ ” ’

[Citation.] . . . [Citation.] Additionally, when the claim focuses 

upon comments made by the prosecutor before the jury, the 

question is whether there is a reasonable likelihood that the jury 

construed or applied any of the complained-of remarks in an 

objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 

841.)

Here, the prosecutor’s alleged pattern of misconduct 

consisted of, first, objecting during defense counsel’s crossexamination of Dr. Berkowitz on the ground counsel was “almost 

yelling” at the witness. The trial court overruled the objection 

and found that counsel was not yelling at the doctor but was 

instead “putting emphasis in his example and maybe some 

indignation” into the question. The trial court, however, 

cautioned the prosecutor: “[S]o while I don’t think your objection 

is misplaced now, what I don’t want to see is, for any strategic 

reasons—and I have no reason to believe you’d do this, but to be 

interrupting counsel’s method of cross-examination absent it just 

being obviously berating the witness or being argumentative.”

The trial court found that the objection, while overruled, was not 

“misplaced” and then simply informed the prosecutor it did not 

want to see interruption of cross-examination purely for 

“strategic reasons,” which the court acknowledged had not 

occurred. No misconduct occurred. 

Second, Clark contends that the prosecutor impugned his 

trial counsel’s integrity by asking about how Clark and his 
33

counsel discussed that trial would be about emotion overriding 

the evidence, and his counsel was “brillian[t]” at that. Defense

counsel objected, and the trial court warned the prosecutor he 

was “walking on very dangerous ground. I understand why you 

want some of it to come in, but what I cannot and will not allow is 

for this to be manipulated in some way impugning the integrity 

of the defense.” The trial court’s warning was fair, because it is 

misconduct for a prosecutor to impugn defense counsel’s integrity 

or to suggest defense counsel fabricated a defense. (People v. 

Cash (2002) 28 Cal.4th 703, 732.) Even so, it was a warning. As 

the trial court acknowledged, the prosecutor had not yet crossed 

the line. No misconduct occurred.

Next, during his closing argument, the prosecutor returned 

to this theme and said defense counsel “is brilliant at getting the 

jury to forget about the evidence and just look at the emotion, feel 

sorry for him [Citation.] . . . [Citation.] . . . and find him not 

guilty.” The trial court overruled the defense objection. 

Although, as we have said, a prosecutor may not cast aspersions 

on defense counsel (People v Hill (1998) 17 Cal.4th 800, 832), a 

prosecutor may vigorously attack the defense case and focus on 

deficiencies in counsel’s tactics and factual account. (People v. 

Redd (2010) 48 Cal.4th 691, 735; see, e.g., People v. Medina

(1995) 11 Cal.4th 694, 759.) This was nothing more than a 

vigorous comment on defense tactics.

Finally, the prosecutor analogized conscious disregard for 

life to driving under the influence, where “someone goes out, 

drinks, drives, and murders someone” even though the person did 

not “intend to murder someone that night.” Defense counsel 

objected to the prosecutor’s reference to a “Watson murder D.U.I.
34

situation.”21 The trial court sustained an objection, finding that 

the prosecutor oversimplified the law and, in doing so, misstated 

it. However, the trial court told the prosecutor that the analogy 

was relevant and, if he intended to continue with it, to state the 

full elements of malice. The prosecutor took the court’s advice, 

telling the jury that a Watson murder is “where a person is 

advised of the dangers of driving through the courts, through the 

D.M.V., or through the sheriff’s department, goes out drinking, 

knows about that, but yet still exercises complete disregard and 

does what they do . . . . So the implied malice is nothing that’s 

foreign here.” Thus, even if the prosecutor’s misstatement was 

misconduct, reversal is not warranted because the prosecutor 

corrected his misstatement of law. That correction mitigated any 

prejudice. (See, e.g., People v. Redd, supra, 48 Cal.4th at p. 752 

[no prejudice when prosecutor corrects his misstatement of fact].)

VI. Cumulative error

As “ ‘[w]e have . . . found any assumed errors to be 

nonprejudicial[,] [w]e reach the same conclusion with respect to 

the cumulative effect of any [purported] errors.’ ” (People v. Cole

(2004) 33 Cal.4th 1158, 1235–1236; People v. Butler (2009) 

46 Cal.4th 847, 885.)

VII. Petition for writ of habeas corpus

In his writ petition, Clark contends his trial counsel 

provided ineffective assistance by failing to consult with and to 

present a medical expert to support the defense theory that a 

21 In short, a Watson murder is one based on implied 

malice. (People v. Watson (1981) 30 Cal.3d 290.)
35

contributing cause of King’s fatal injury was his “compromised 

brain structure” from the earlier fall down stairs. 

A. Additional background

To support his writ petition, Clark submitted the 

declaration of Dr. Marvin Pietruszka, a forensic pathologist. 

Dr. Pietruszka had been retained in April 2013 to review King’s 

medical records in connection with a dependency matter 

concerning Clark’s children. In a letter to counsel in that matter, 

the doctor noted that, based on King’s subdural hematoma, 

retinal hemorrhage, and that he was in full arrest but was 

resuscitated, “an argument can be made that throwing a child up 

in the air can cause retinal hemorrhages and that falling onto the 

head can cause subdural hematomas. The absence of a skull or 

cervical spine fracture suggests that there was no trauma with 

an object and that the fall could be accidental. However, other 

factors must be considered as well and these include the 

numerous times that the child’s head was hit with the caretaker’s 

hand.” 

Thereafter, Clark’s appellate counsel asked Dr. Pietruszka

to review additional records concerning King, including the trial 

testimony of Drs. Tovar and Berkowitz. In Dr. Pietruszka’s view, 

forensic evidence showed that King had an earlier traumatic 

brain injury. Specifically, the January 3, 2013 CT scan of King’s 

brain found “mild atrophy,” and the neuropathologist confirmed 

this finding. Because atrophy takes months or longer to occur, 

Dr. Pietruszka reasoned that King’s fall down stairs may have 

caused it. However, the doctor also noted that “slapping or

tapping of King[’s] . . . head, with only minor or moderate force as 

described by . . . Clark, could certainly contribute to a worsening 

of the prior injury and may reasonably have contributed to the 
36

catastrophic event that led to King[’s] . . . death.” Likewise, 

tossing King in the air and/or hitting his head on the carpet could 

have “aggravated some brain structure weakness and triggered 

the catastrophic event.” 

Dr. Pietruszka’s opinion was King suffered an earlier 

trauma to his brain, “possibly from the falls down the stairs, or 

possibly from the repeated popping” of his head by” Clark, or a 

combination of both. The catastrophic event that caused King’s 

death may have been the result of the application of a less than 

normally expected lethal application of force, such as tossing him 

into the air and catching him, which aggravated an earlier injury. 

“[T]he fall down the stairs likely caused the most serious 

underl[y]ing injury” and “the repeated blows to the head 

by . . . Clark may have been a contributing factor.” “The presence 

of cerebral atrophy increases the risk of brain hemorrhage with 

even minor trauma.” 

Clark’s trial counsel elected not to call a medical expert 

because based on the medical reports and Clark’s statements to 

law enforcement, counsel instead chose to cross-examine the 

prosecution’s medical witness.

B. Counsel made a reasonable tactical decision

“To establish ineffective assistance of counsel, a defendant 

must show that (1) counsel’s representation fell below an 

objective standard of reasonableness under prevailing 

[professional] norms[;] and (2) counsel’s deficient performance 

was prejudicial.” (People v. Scott (1997) 15 Cal.4th 1188, 1211; 

Strickland v. Washington (1984) 466 U.S. 668, 687.) Prejudice is 

shown when there is a reasonable probability that but for 

counsel’s error the result of the proceeding would have been 

different. “ ‘A reasonable probability is [one] . . . sufficient to 
37

undermine confidence in the outcome.’ ” (Scott, at pp. 1211–

1212.)

We must defer to trial counsel’s reasonable tactical 

decisions and indulge the “ ‘ “strong presumption that counsel’s 

conduct falls within the wide range of . . . professional 

assistance.” ’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925.) 

Courts should not “second-guess reasonable, if difficult, tactical 

decisions in the harsh light of hindsight.” (People v. Scott, supra,

15 Cal.4th at p. 1212.) “Tactical errors are generally not deemed 

reversible, and counsel’s decisionmaking must be evaluated in 

the context of the available facts.” (People v. Bolin (1998) 

18 Cal.4th 297, 333.) There are countless ways to assist a 

defendant effectively, and we must be mindful that even the best 

criminal defense attorneys would not defend the same client the 

same way. (Strickland v. Washington, supra, 466 U.S. at p. 689.)

Here, Clark concedes his trial counsel made a tactical 

decision not to call Dr. Pietruszka as an expert. He just contends 

it was an unreasonable one. The record, however, shows it was 

more than reasonable. The doctor certainly could have opined—

as did Drs. Tovar and Berkowitz—that a fall down stairs can 

cause brain injury and that the brain might be susceptible to 

reinjury. What Dr. Pietruszka could not have done was rule out 

that Clark—rather than the fall down stairs—caused any prior 

brain injury by repeatedly hitting King at a level of seven and 

sometimes a nine or 10. In fact, Dr. Pietruszka opined that King 

suffered an earlier trauma to his brain, “possibly from the falls 

down the stairs, or possibly from the repeated popping of his head 

by . . . Clark, or a combination of both.” (Italics added.)

Thus, trial counsel had to weigh the value of having his 

own expert concede in front of the jury that Clark could have 
38

caused any mild brain atrophy by hitting King on multiple 

occasions, thereby highlighting one of the more devastating facts 

to the defense case. It is understandable that counsel might have 

decided he did not like those optics. Instead, defense counsel 

made the reasonable, tactical decision to elicit the reinjury theory 

via the prosecution’s experts. To that end, counsel crossexamined Drs. Tovar and Berkowitz on the theory King had been 

injured in the fall down stairs, rendering his brain susceptible to 

reinjury or to a rebleed. Even Clark’s appellate counsel concedes 

that trial counsel did an “admirable” job on that score. The 

defense theory was therefore fully and effectively presented to 

the jury.

DISPOSITION

The judgment is affirmed. The petition for writ of habeas 

corpus is denied.

NOT TO BE PUBLISHED.

DHANIDINA, J.

I concur:

EGERTON, J.
LAVIN, Acting P. J., Dissenting:

The California Supreme Court vacated our prior opinion 

and directed us to reconsider the cause in light of People v. Perez

(2020) 9 Cal.5th 1. Perez held that failure to object to preSanchez1 expert testimony that related case-specific hearsay does 

not forfeit the issue on appeal. On reconsideration, the majority 

restates its prior opinion without any substantive change.

As I stated before, the prosecution’s expert witnesses, 

Doctors Jason Tovar and Carol Berkowitz, based their opinions 

on case-specific hearsay. Because their testimony was improperly 

admitted under Sanchez, and that testimony was central to

defendant’s conviction for assault on a child causing death in 

violation of Penal Code section 273ab, I would reverse count 1 

and remand for retrial of that count. Therefore, and once again, I 

respectfully dissent.

1. The experts related case-specific hearsay to the jury.

Essentially, “[t]his case presents the following issue: May 

an expert relate as true the case-specific content of documents 

which were neither admitted into evidence nor shown to be 

covered by a hearsay exception?” (People v. Yates (2018) 25 

Cal.App.5th 474, 476.) Here, the prosecution’s experts, Tovar, the 

medical examiner, and Berkowitz, an expert in child abuse 

pediatrics, testified about the case-specific content of documents 

that were not admitted into evidence, including reports prepared 

1 People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
2

by an ophthalmologist and neuropathologist.2 In my view, this 

was error. (See Sanchez, supra, 63 Cal.4th at p. 677 [citing 

hemorrhaging in the eyes of a murder victim noted during 

autopsy as a case-specific fact that would need to be established 

by the autopsy surgeon]; People v. Burroughs (2016) 

6 Cal.App.5th 378, 404 [trial court improperly admitted expert 

testimony relating to documents, such as police reports, 

probation reports, and hospital, that which formed the basis of 

their opinions].)

For example, in reaching his conclusion that King J. died 

from blunt-force trauma (as opposed to a natural cause or some 

underlying condition), Tovar testified that based on a drug screen 

of the child’s urine and blood, there was no evidence of any drugs 

in his system. And based on the “U.C. Ophthalmology Report,” 

there were “findings of retinal hemorrhages” and no indication of 

any natural disease process; the retinal hemorrhaging was 

therefore the result of “blunt force injuries.” Tovar also testified 

that he submitted the child’s brain and dura for microscopic 

analysis by the neuropathologist. Importantly, based on the 

neuropathologist’s finding that the dura indicated no prior injury, 

Tovar opined there was no evidence the child had any prior injury 

that would have caused or contributed to the subdural 

hemorrhaging.

For her part, Berkowitz testified at length about certain 

“concerning” symptoms reflected in medical or paramedic reports 

(e.g., the child’s fixed and dilated pupils were “a sign that there’s 

been significant brain injury,” E.K.G. results showing the 

2 Sanchez defined “case specific” facts as those “relating to the 

particular events and participants alleged to have been involved in the 

case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.)
3

“electricity rate of 32,” and low body and rectal temperatures). 

Notably, she also testified that based on observations by hospital 

staff, there “was evidence of bleeding within the back of the eye, 

what we call the fundi.” And based on a CT scan from Kaiser 

Medical Center—which was done after the normal CT scan at 

Antelope Valley Hospital— she noticed there was a “lateral 

subdural hemorrhage.” Towards the end of her direct 

examination, and after reviewing those reports, Berkowitz opined 

King suffered from “non-accidental abuse of head trauma” around 

the time he “became symptomatic.”

In sum, the prosecution neither presented nor did the trial 

court admit into evidence the records or other documents that 

were the sources of the case-specific hearsay the experts related 

to the jury.

2. The error was prejudicial.

We review the erroneous admission of expert testimony 

under the state standard of prejudice. (People v. Watson (1956) 46 

Cal.2d 818, 836; People v. Stamps (2016) 3 Cal.App.5th 988, 997.)

Under that standard, it is reasonably probable defendant would 

have obtained a more favorable outcome had the error not 

occurred.

First, the error went to the heart of the defense that King’s 

previous head trauma made him more susceptible to serious 

injury from relatively minor applications of force. (See People v. 

Neidinger (2006) 40 Cal.4th 67, 79.) For example, in his opening 

statement, counsel emphasized that there was no sign King had 

been beaten and none of the bruising one would expect to see on 

an abused child. Counsel’s cross examination of Tovar focused 

exclusively on whether minor force could have killed King—

namely, the prosecution’s failure to reveal information about 
4

King’s prior injuries to Tovar; the possible medical consequences 

of King’s earlier falls; how any trauma from those falls could have 

dovetailed with later, minor applications of force; and whether 

the lack of external, visible injuries provided evidence of that 

minor force. Counsel focused on these same issues in closing 

argument. And the jury agreed with that defense—at least in 

part. Jurors acquitted defendant of murder but convicted him of 

the lesser-included offense of involuntary manslaughter based on 

simple battery.

Second, the jury plainly struggled with count 1. For 

example:

◦ The jury deliberated for three days. (See People v. 

Cardenas (1982) 31 Cal.3d 897, 907 [six hours of 

deliberations is evidence of a close case].)

◦ The jury asked several questions—including one 

seeking clarification of the reasonable-person 

element of count 1. (See People v. Hernandez

(1988) 47 Cal.3d 315, 352–353 [“request[s] to the 

court for further instructions or the rereading of 

particular testimony” indicate jury 

disagreement].)

◦ The jury requested readback of testimony given 

by Tovar, the medical examiner—particularly his 

testimony “regarding when he was aware of Baby 

King falling down stairs on two occasions and if it 

would affect his opinion on cause of death.” (See 

People v. Pearch (1991) 229 Cal.App.3d 1282, 

1295 [“Juror questions and requests to have 
5

testimony reread are indications the deliberations 

were close. [Citations.]”].)

◦ The jury requested readback of testimony given 

by the paramedic. 

◦ The jury requested readback of defendant’s 

testimony. 

◦ The jury asked for a DVD player and monitor to 

view interview testimony. 

◦ The jury notified the court that it could not reach 

a verdict for count 1. (See People v. Soojian (2010) 

190 Cal.App.4th 491, 520–521 [hung jury is a 

more favorable result than a guilty verdict for 

Watson purposes].) 

◦ The jury reported on Juror No. 5’s financial 

hardship and asked if that juror could be replaced 

with an alternate, indicating a desire to continue 

deliberating.3

To summarize, the prosecution’s experts improperly related

as true case-specific facts contained in hearsay statements, and 

that testimony was prejudicial. Because I would reverse the 

conviction for count 1 under Sanchez, I do not address 

defendant’s other claims of error.

LAVIN, Acting P. J.

3 The jurors reached a verdict shortly after the court responded 

that Juror No. 5 could not be replaced with an alternate.