Filed 12/16/14 P. v. Cheam CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CHANTHA CHEAM,

Defendant and Appellant.

B251610

(Los Angeles County

Super. Ct. No. NA093626)

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

Arthur Jean, Jr., Judge. Affirmed.

Lenore De Vita, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael C. 

Keller, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

In a jury trial, Chantha Cheam (appellant) was convicted in count 1 of attempted 

voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)),1 with true findings of the 

personal use of a deadly and dangerous weapon, a knife, and of the personal infliction of 

great bodily injury (§§ 12022, subd. (b)(1), 12022.7, subd. (a)), and in count 2 of felony 

child abuse (§ 273a), with a true finding of the personal use of a deadly and dangerous 

weapon, a knife (§ 12022, subd. (b)(1)).

At sentencing, the trial court imposed a total term in state prison of seven years, 

consisting of a three-year middle term for the offense of attempted voluntary 

manslaughter, enhanced by three years for the personal infliction of great bodily injury 

and by a consecutive one-year term for the use of the knife, plus a concurrent four-year 

middle term for the felony child abuse.

CONTENTIONS

1. The trial court prejudicially erred by charging the jury with an instruction on 

felony child abuse that was flawed and incomplete. In the alternative, trial counsel was 

constitutionally ineffective as he failed to request definitions of, and/or the amplification 

of, the terms “criminal negligence” and “great bodily harm.”

2. Appellant was entitled to a sua sponte lesser included jury instruction on

misdemeanor child endangerment. In the alternative, appellant contends trial counsel’s 

failure to request such an instruction constitutes the ineffective assistance of counsel.

3. The evidence is insufficient to support appellant’s conviction of attempted 

voluntary manslaughter.

4. The evidence is insufficient to support appellant’s conviction of felony child 

abuse.

5. Appellant requests this court to conduct an independent review of the in camera 

Pitchess hearing. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)

None of the contentions requires a reversal, and we will affirm the judgment.

 

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

BACKGROUND

We view the trial evidence in the light most favorable to the judgment. (People v. 

Ochoa (1993) 6 Cal.4th 1199, 1206.) 

At approximately 5:30 p.m. on October 9, 2012, Long Beach Police Officer Daniel 

Mendoza received a call to respond to 1030 Grand Avenue concerning a battery. On the 

ground level, next to an apartment complex, the officer found a wounded woman and a 

female teenager with an injury to her leg. A number of persons were standing with them 

outside the complex. No one spoke English. Sunra Sorn (Sorn), the occupant of 

apartment No. 8, pointed upstairs to her apartment. About twenty minutes later, appellant 

surrendered himself to the police and came downstairs from apartment No. 8.

The officers recovered two knives from the unit: one covered with dried blood in 

a kitchen drawer and another folding utility knife, which was located behind the couch in 

the living room. Sorn pointed out the knives for the officers.

After the uniformed officers responded, Long Beach Police Officer Udom Sawai

(Officer Sawai), a detective who spoke Khmer, also responded.2 Initially, he spoke to the 

victims who were sitting outside apartment No. 8 with the other onlookers. Officer 

Sawai discovered the assailant was refusing to emerge from the apartment. Officer Sawai

obtained the telephone number for the apartment and spoke to appellant, the assailant, by 

telephone. After six or seven requests over ten minutes, appellant complied with the 

officer’s requests to surrender. Appellant walked downstairs unarmed and was taken into 

custody.

After the arrest, appellant showed officer Hector Gutierrez (Officer Gutierrez) a 

small stab wound he had in his abdomen.

M.S (S.), the victim, testified at the trial on October 9, 2012, she and her teenage 

daughters, C. and Ch., met her former husband, appellant, at Sorn’s apartment. S. wanted 

to obtain her daughters’ birth certificates from appellant.

 

2 Khmer, or Cambodian, is the language of the Khmer people, an aboriginal people 

of Cambodia, and the official language of Cambodia.
4

S. said she and appellant were sitting on the furniture in Sorn’s living room to talk. 

Soy and appellant were divorced. S. wanted their daughters, who had been living in 

California with appellant, to come to live with her. S. and appellant were discussing the 

teenagers’ birth certificates in the presence of Sorn and her daughters, who were sitting in 

close proximity to S.3 In the discussion, appellant changed the subject and asked S. to 

come back to live with him. S. replied, “No.” Appellant became insistent. Suddenly, 

appellant leapt up from his position on the sofa and approached S. and “wrestled” with 

her. S.’s knees buckled, and she fell onto her knees on the floor. She felt numb in the 

abdomen and hand. Her daughters shouted and pulled at appellant, attempting to separate 

them. Sorn also attempted to pull appellant away from S.

To get away from appellant, S. ran out of the apartment and downstairs. As she 

opened the front door, she saw blood on her hand. A crowd gathered, and three minutes 

later, her daughters emerged from the apartment and joined her downstairs. Her younger 

daughter, C., was wounded in the knee. S. was having difficulty breathing, and the 

ambulance arrived.

At the hospital, S. discovered she had been stabbed in the abdomen and arm by 

appellant. The wounds required surgery, and she spent three days in the hospital. During 

the attack, she never saw the knife.

During cross-examination, S. explained she had immigrated from Cambodia and 

had divorced appellant in Cambodia. She came to the United States and married a man 

who lived in Kentucky. She had since divorced that man. Appellant had also immigrated 

and was raising their two daughters in Los Angeles. S. was sorting out her immigration 

status at the time she visited Los Angeles. She wanted her two daughters to be living 

 

3

In her opening statement, the prosecutor explained the photographs taken of 

Sorn’s living room would show a large sofa, a smaller one and an ottoman. She claimed 

the testimony would show Sorn and appellant were sitting on the smaller sofa, C. and Ch.

were sitting on the larger sofa and S. sat on ottoman. In S.’s testimony, the prosecutor 

had S point out in the photograph where everyone was sitting. Sorn testified the 

teenagers were seated on the couch about four feet from location of the attack.
5

with her partially for reasons of improving her chances of immigrating. However, she 

also wanted her daughters to live with her.

At the time of the stabbing, S. and appellant were arguing about whether both 

daughters would go with S. to Kentucky or whether, as appellant wished, they should

split up the daughters. Appellant also asked S. to resume family life with him. S. told 

appellant she did not want to live with him anymore, and she had another relationship.

C., age 12, testified that prior to the stabbing, she was sitting on the sofa between 

her parents. Her parents were talking normally, and she was talking to her sister and 

playing with a mobile phone. Suddenly, appellant rushed in as if to give S. a kiss. S. told 

appellant, “Stay away.” C. grabbed appellant to prevent him from moving forward. 

When C. did so, she felt a numbness in her leg. Later, C. looked down, and her knee was 

bleeding. All C. saw concerning the stabbing was wrestling after appellant had hugged S. 

C. never saw a knife.

C. identified the photograph of the stab wound to her knee. She explained she was 

in the hospital overnight, but was released in the early morning hours of the following 

day. The doctor sutured her wound. The stabbing left a scar on her knee.

Ch., age 14, testified that after S. stated she would refuse to live with appellant, 

appellant rushed at S. Ch. had believed appellant was going to hug or to kiss S. When 

appellant hugged S., Sorn and C. grabbed appellant and pulled him away from S. After 

the wrestling, Ch. saw blood, and S. ran out the front door. There was blood on S.’s

back.

Ch. got a towel from the bathroom and wrapped it around her sister’s wounded 

knee. Ch. said she felt sorry for appellant as Ch. was going to Kentucky to live with S. 

She also felt bad as S. had been hurt. Ch. did not bring a knife to the meeting. When she 

saw appellant after the stabbing, she saw no blood on his clothing.

Ch. testified she did not recall telling a police officer that after the stabbing, she 

had returned upstairs to get her purse. When Sorn entered the apartment, appellant -- was 

sitting there crying. She did not recall telling the officer she had observed her father 
6

stabbing himself. She denied telling the officer at the hospital that during the melee, she 

had seen appellant swinging a knife.

Sorn testified she was a friend of appellant. She had agreed to permit appellant to 

meet with his former wife and children at her apartment. At the meeting, appellant was 

behaving normally, and appellant told her he loved his former wife and children. During 

the conversation, appellant asked S. to stay with him “for the time.” He pled with 

S. to do so, but S. replied, “No.” Sorn had been concerned there would be an altercation. 

So when appellant moved in S.’s direction, Sorn grabbed him.

Sorn saw appellant shout at S. and grab S. by the hair. Sorn tried to separate them. 

Sorn told S. to leave. Sorn did not see the knife, but saw the blood on the door when 

Sorn walked downstairs. Sorn was present after the stabbing when appellant stabbed

himself. At that time, appellant instructed Sorn to go downstairs and to take care of S. 

Before Sorn did so, Sorn took the knife from him as she was concerned he would stab 

himself again. When she went downstairs, the police had already arrived. She put the 

knife away.

Sorn explained she had observed two knives before she went downstairs, one in 

appellant’s stomach, a wood knife, and another on the carpet where S. had been sitting on 

the sofa. Appellant had told her he wanted the knife to kill himself. Sorn picked up the 

knife on the carpet and tossed it behind the sofa to prevent appellant from using it to stab

himself. One of the knives belonged to her. But the other one was not hers. Then she 

contradicted herself and said, “I don’t know what knives I have at home.”

During cross-examination, Sorn admitted that prior to the stabbing, appellant had 

gotten down on his knees and was pleading with S. to stay with him. He was crying.

When S. refused, appellant stood up. That was when Sorn grabbed his legs. She pulled 

appellant and S. away from one another so there would be no contact and S. could leave 

the apartment.

Officer Jayson Torres (Officer Torres) testified he spoke to Ch. at the hospital. 

Ch. replied to him in broken English, but the officer had no difficulty understanding her. 

Ch. told the officer she saw her father swing a knife at S. and stab S. When Ch. went 
7

upstairs to get her purse, her father had a knife in hand and was using it on himself. He 

was upset because their mother wanted to take the girls with her to live in Kentucky. Ch.

said in the melee, she also saw appellant swing his knife at C.

Dr. Mauricio Heilbron (Dr. Heilbron) testified he was a surgeon who worked at 

various hospitals in Long Beach. When S. arrived at the hospital, it was determined S.

had a “level one trauma” wound and multiple stab wounds. He examined S. She had an 

extremely deep laceration to the abdomen which was so deep, it required exploratory 

surgery. Initially, he inserted a camera to determine the depth of the wound; he said the 

wound went all the way through the abdomen. So he performed surgery. 

Dr. Heilbron described there was a large amount of bleeding. The knife had cut 

the rib and the subcostal artery, which can bleed torrentially. Dr. Heilbron had to stop the 

internal bleeding. Then he had to go outside and open the wound to stop further bleeding 

from the muscle. He then explored inside S.’s abdomen to ensure the internal bleeding 

had stopped. S. had less serious cuts on her arm and hands. Dr. Heilbron used sutures 

and stitches to repair the surgery wound and the knife wounds. Without surgery, S.

would have bled to death.

In defense, appellant produced no evidence and declined to testify on his own 

behalf.

DISCUSSION

1. The contention the trial court delivered an incomplete and flawed jury instruction on 

felony child abuse.

Appellant contends the jury instruction on felony child abuse was flawed and 

incomplete and the errors are of federal dimension and structural error, requiring a per se

reversal.
8

a. Background.

(i) The jury instructions.

The trial court charged the jury as to attempted deliberate and premeditated 

murder, attempted murder without deliberation and premeditation, and attempted 

voluntary manslaughter, the personal infliction of great bodily injury, felony child abuse 

and the use of the deadly or dangerous weapon, the knife.

With respect to felony child abuse, the trial court charged the jury with a modified 

version of CALJIC No. 9.37. It charged the jury initially in the general language of the 

statute. But in its specifics, at the end of the instruction, the charge was limited to that 

part of section 273a, subdivision (a), prohibiting a person having the care or custody of a 

child, under circumstances or conditions likely to produce great bodily harm or death,

from willfully causing or permitting the person or health of the child to be injured, or 

willfully causing or permitting that child to be placed in a situation where his or her 

person or health is endangered.

The trial court also delivered to the jury a set of written instructions for its use 

during deliberations.4

 

4

Section 273a, subdivision (a), is an omnibus statute that proscribes essentially four 

branches of conduct. It provides: “Any person who, under circumstances or conditions 

likely to produce great bodily harm or death, willfully causes or permits any child to 

suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the 

care or custody of any child, willfully causes or permits the person or health of that child 

to be injured, or willfully causes or permits that child to be placed in a situation where his 

or her person or health is endangered, shall be punished by imprisonment in a county jail 

not exceeding one year, or in the state prison for two, four, or six years.”

The trial court charged the jury orally with a modified version of CALJIC 

No. 9.37, as follows.

“Mr. Cheam is accused in count 2 of having violated § 273a, subdivision (a), of 

the Penal Code of our state, involving the alleged victim C., the younger of the two of the 

girls who testified.

“Every person who, under circumstances or conditions likely to produce great 

bodily harm or death, willfully inflicts unjustifiable physical pain or mental suffering on a 

child, or willfully causes or, willfully and as a result of criminal negligence, permits a 

child to suffer unjustifiable physical pain or mental suffering, or has care or custody of a 
9

(ii) The prosecutor’s comments to the jury with respect to felony child 

abuse.

In commenting during final argument on felony child abuse, the prosecutor 

explained to the jury the prosecution was not asserting appellant had the specific intent to 

 

child and . . . willfully causes or, willfully and as a result of criminal negligence, permits 

a child to be placed in a situation where his or her person or health may be endangered, 

is guilty of a violation of this code section. [(Cont. on page 9)]

“The word ‘likely’ as used in this crime means that the circumstances or 

conditions are such that they present a substantial danger, that is, a serious and wellfounded risk of great bodily harm or death.

“The word ‘willfully’ as used in this instruction, means with a purpose or 

willingness to commit the act. 

“The word ‘willfully’ does not require any intent to violate the law or to injure 

another or to acquire any advantage. 

“In the crime charged, there must [exist] a union or joint operation of act or 

conduct and general criminal intent. 

“To establish general criminal intent it [is not] necessary that there should exist an 

intent to violate the law. A person who intentionally does that which the law declares to 

be a crime, is acting with general criminal intent even though he may not know that his 

act or conduct is unlawful.

“Unjustifiable physical pain or mental suffering is pain or suffering which is not 

reasonably necessary or is excessive under the circumstances.

“ ‘Great bodily harm’ refers to significant or substantial injury and does not refer 

to trivial or insignificant injury.

“If a child is placed in a situation likely to produce great bodily harm or death, it is 

not necessary that actual bodily injury occur in order to constitute the offense. 

“However, if great bodily injury does occur, its nature and extent are to be 

considered in connection with all the evidence in determining whether the circumstances 

were likely to produce great bodily harm or death. 

“In order to prove this crime, each of the following elements must be proved: [¶]

“1. That a person who had care or custody of a [child] willfully caused or, 

willfully and as a result of criminal negligence, permitted the child to be injured; or 

willfully caused or, willfully and as a result of criminal negligence, permitted the child to 

be placed in a situation where his or her person or health may be endangered; and

“2. The person’s conduct occurred under circumstances likely to produce great 

bodily harm or death.”

The No. 2 element set out immediately above was crossed out in the written set of 

instructions delivered to the jury. However, the trial court had placed a notation, “IN,” 

on the written instructions in the left margin next to the paragraph specifically describing 

the No. 2 element of the offense.
10

kill C., the intent with which he had attacked her mother, S. The prosecution’s theory of 

felony child abuse was appellant had “created a dangerous and hazardous environment by 

welding [sic] a knife toward his ex-wife, in front and around his daughters. And in the 

process, his daughter, [C.], was cut.” The prosecutor argued: “So, element No. 1, a 

person willfully caused or willfully and as a result of criminal negligence, permitted a 

child to suffer unjustifiable physical pain and mental suffering.”

The prosecutor then described how the evidence showed C. had to have sutures to 

her knee at the hospital, which amounted to the infliction of “undue physical pain.” The 

prosecutor argued: “And as a result of criminal negligence, welding [sic] and swaying 

[sic] a knife in the air around your ex-wife in close proximity to your children, four feet . 

. . .welding [sic] a knife with your children in the way. That’s the child abuse in this 

case. [¶] Two, the person’s conduct occurred under circumstances likely to produce 

great bodily injury.” 

b. The relevant legal principles.

“We determine whether a jury instruction correctly states the law under the 

independent or de novo standard of review. [Citation.] . . . ‘Instructions should be 

interpreted, if possible, so as to support the judgment rather than defeat it if they are 

reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos (2008) 

163 Cal.App.4th 1082, 1088.) 

“ ‘It is settled that in criminal cases, even in the absence of a request, the trial 

court must instruct on the general principles of law relevant to the issues raised by the 

evidence. [Citations.] The general principles of law governing the case are those 

principles closely and openly connected with the facts before the court, and which are 

necessary for the jury’s understanding of the case.’ [Citation.]” (People v. Sedeno

(1974) 10 Cal.3d 703, 715 (Sedeno).) 

“In reviewing a claim of instructional error, the ultimate question is whether ‘there 

was a reasonable likelihood the jury applied the challenged instruction in an 

impermissible manner.’ [Citation.] ‘[T]he correctness of jury instructions is to be 

determined from the entire charge of the court, not from a consideration of parts of an 
11

instruction or from a particular instruction.’ [Citation.] ‘Moreover, any theoretical 

possibility of confusion [may be] diminished by the parties’ closing arguments . . . .’ 

[Citation.] ‘ “ ‘Jurors are presumed to be intelligent, capable of understanding 

instructions and applying them to the facts of the case.’ ” ’ [Citation.]” (People v. Hajek 

and Vo (2014) 58 Cal.4th 1144, 1220 (Hajek).)

c. The elements of the offense of child abuse.

In People v. Valdez (2002) 27 Cal.4th 778, 782-783 (Valdez), the court discussed 

the elements of the offense of felony child abuse. Concerning the direct infliction of 

unjustifiable pain or mental suffering on a child, “essentially a battery,” it said the mens 

rea was “the intent to perform the underlying injurious act on a child.” (Id. at p. 786, 

citing People v. Sargent (1999) 19 Cal.4th 1206.) It is a general intent crime. (Valdez, at 

p. 787.) 

However, for indirect abuse, the other prongs of the statute, the court in Valdez 

determined the proper mens rea is criminal negligence. The court explained. “. . . [U]se 

of a general intent standard is appropriate when the statute criminalizes commission of a 

battery, or direct infliction of unjustifiable pain or suffering. By contrast, criminal 

negligence is the appropriate standard when the act is intrinsically lawful, such as leaving

an infant with a babysitter, but warrants criminal liability because the surrounding 

circumstances present a high risk of serious injury. Criminal negligence is not a ‘lesser 

state of mind’; it is a standard for determining when an act may be punished under the 

penal law because it is such a departure from what would be the conduct of an ordinarily 

prudent or careful person under the same circumstances. When that departure endangers 

the person or health of a child and is ‘under circumstances or conditions likely to produce 

great bodily harm or death,’ it constitutes a felony violation of the child endangerment 

statute. (§ 273a, subd. (a).)” (Valdez, supra, 27 Cal.4th at pp. 789-790.)

The court defined the term “criminal negligence” as follows: “Criminal 

negligence is ‘ “aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a 

departure from what would be the conduct of an ordinarily prudent or careful [person] 

under the same circumstances as to be incompatible with a proper regard for human life 
12

. . . .” ’ [Citation.] ‘Under the criminal negligence standard, knowledge of the risk is 

determined by an objective test: “[I]f a reasonable person in defendant’s position would 

have been aware of the risk involved, then defendant is presumed to have had such an 

awareness.” ’ [Citations.] Under section 20, criminal negligence ‘may be sufficient to 

make an act a criminal offense, without a criminal intent.’ [Citation.]” (Valdez, supra, 

27 Cal.4th at p. 783.)

Criminal negligence is not accidental conduct. It is a gross departure from the 

conduct of an ordinarily prudent person. (Valdez, supra, 27 Cal.4th at p. 790.) 

d. The analysis.

As nearly as we can ascertain, appellant makes a general claim the jury instruction 

was flawed, confusing and failed to define key legal terms. He argues: “As given, it was 

impossible for the jury to have complied with the instruction and have concluded 

appellant was guilty of felony child abuse.” He asserts the statute is complex as it 

contains several ways in which a person might violate its prohibitions, and “[i]n order for 

it to be ‘instructive,’ it must properly be tailored to [the] circumstances of the case. This 

the trial court failed to do [so].” He also concedes the trial court’s instruction charged 

the jury as to both direct and indirect child abuse and then claims surplusage in the 

instruction likely confused or inflamed the jury.5 He complains the trial court reneged on 

an agreement to charge the jury only as to the child endangering and omitted a definition 

of “bodily harm.” 

He then makes the following specific complaints of error: (1) The court erred by 

omitting an instruction felony child abuse is required to be committed under 

circumstances and conditions likely to produce great bodily harm or death; (2) the jury 

instruction failed to contain a complete definition of the term, “bodily harm,” and, as 

 

5

In discussing his surplusage claim, appellant conceded the following in briefing: 

“The trial court instructed the jury with every option, direct and indirect, and with both 

mental states when it should have instructed the jury consistent with the People’s theory 

of the case. As such, the jury was allowed to chose from a multitude of inapplicable 

options and mental states to find appellant guilty.” 
13

given, impermissibly allowed the jury to find great bodily harm was done even if it had 

concluded . . . the injury was moderate”; and (3) the jury instruction improperly failed to 

define the technical term, “criminal negligence.”

He argues the failings above constituted prejudicial per se error as the “deficient 

and confusing instruction relieved the prosecution of the burden of proving beyond a 

reasonable doubt each element of the” offense, thereby depriving him of due process 

under the state and federal constitutions, as well as his constitutional right to a jury trial.

We discuss these claims below.

(i) The general complaints of error.

Appellant’s general complaint the jury instruction given was hopelessly confusing 

does not rise to a showing of error, much less reversible error. Cases are frequently tried 

on multiple theories of liability. Absent a showing of error, we presume jurors 

comprehend and accept the trial court’s directions. The crucial assumption underlying 

our constitutional system of error of trial by jury is that jurors generally understand and 

faithfully follow instructions. (Hajek, supra, 58 Cal.4th at p. 1216.) 

Appellant generally complains of surplusage and that the instructions were not 

tailored to the prosecution’s theory of the case. However, “ ‘It is settled that in criminal 

cases, even in the absence of a request, the trial court must instruct on the general 

principles of law relevant to the issues raised by the evidence. [Citations.]” (Sedeno, 

supra, 10 Cal.3d at p. 715.) The trial court’s duty to instruct is grounded in its evaluation 

of the charges and the trial evidence in the case, not in the theories the prosecutor selects 

as those most likely to secure a conviction.

Furthermore, “ ‘[t]he language of a statute defining a crime or defense is generally 

an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the 

defendant fails to request amplification. If the jury would have no difficulty in 

understanding the statute without guidance, the court need do no more than instruct in

statutory language.’ ” (People v. Estrada (1995) 11 Cal.4th 568, 574 (Estrada).)

Here, appellant concedes the jury instructions were complete, except as he 

specifies. We conclude, in this particular case, the trial court’s charge evaluated as a 
14

whole, set out all the applicable elements of the offense on theories of the direct infliction 

of injury and child endangering. It also informed the jury the direct infliction of injury 

required willfulness, which was defined, and that child endangering required a willful act 

permitting or placing the child in circumstances that risk injury or death with criminal 

negligence. 

“Giving an instruction that is correct as to the law but irrelevant or inapplicable is 

error. (People v. Rowland [(1992) 4 Cal.4th 238,] 282.) Nevertheless, giving an 

irrelevant or inapplicable instruction is generally ‘ “only a technical error which does not 

constitute ground for reversal.” ’ (Ibid.)” (People v. Cross (2008) 45 Cal.4th 58, 67.) 

Given appellant’s outrageous conduct, appellant cannot complain instructing on alternate 

but inapplicable theories of the case was so inflammatory as to prejudice him. Moreover, 

the jury was charged that “[w]hether some of the instructions apply will depend upon 

what you find the facts to be. Disregard any instruction which applies to facts determined 

by you not to exist.”

Insofar as appellant complains the trial court reneged on an agreement to charge 

the jury only as to child endangering, the claim in part rests on a misrepresentation of the 

import of the trial court’s comments in discussing the jury instructions. The trial court 

agreed only to charge the jury as to the last two subparts of the pattern instruction 

CALJIC No. 9.37. As phrased in that pattern instruction, the language encompasses the 

direct infliction of injury, as well as indirect child abuse. There appears to be no error in 

such a charge as appellant’s conduct properly could be prosecuted as either direct or 

indirect child abuse. The prosecutor made no explicit election here, and none was 

required. The prosecutor’s comments during final argument appear to conflate theories 

of direct and indirect conduct. The trial court’s comments in discussing jury instructions 

suggest it agreed only to give the latter two charges as set forth in the pattern instruction, 

which is exactly what the trial court did. If trial counsel believed the trial court had 

reneged on its representations as to the charge given to the jury, trial counsel would have 

objected to the instruction and requested the trial court reinstruct the jury as agreed. Trial 
15

counsel in this instance made no objection to the jury instructions after the trial court had 

completed its charge.6

We conclude the trial court did not err by failing to tailor the instruction to the 

elements at issue, and any surplusage in the trial court’s instructions was nonprejudicial.

(ii) The specific complaints of error.

(a) The complaint the written instruction was incomplete.

In the modified CALJIC No. 9.37, the trial court charged the jury in pertinent part 

the prohibited child abuse must occur “under circumstances or conditions likely to 

produce great bodily harm or death.” Appellant argues the omission of this element of 

the offense in the trial court’s written instructions likely confused the jury and prejudiced 

him, thereby denying him due process and his right to a jury trial. We disagree. 

Appellant never objected to the jury instructions on this ground. Consequently, 

there is a forfeiture. However, we will address this claim on the merits to forestall his 

claim of ineffective trial counsel. (Strickland v. Washington (1984) 466 U.S. 668, 697; 

People v. Kipp (1998) 18 Cal.4th 349, 366-367 [“If a defendant has failed to show that 

the challenged actions of counsel were prejudicial, a reviewing court may reject the claim 

on that ground without determining whether counsel’s performance was deficient.”].)

On the merits, in the second and third paragraphs of the instruction, the trial court 

charged the jury in the statutory language of the offense and informed the jury a 

conviction required a finding the child abuse must occur “under circumstances or 

conditions likely to produce great bodily harm or death.” The trial court also charged the 

jury as to this element twice during its oral charge, particularly citing the element in the 

latter part of its instructions where it was specific concerning the elements of child abuse. 

In its written instructions, this latter advice was crossed off. However, next to the 

 

6 We note the newer pattern instruction for felony child abuse in CALCRIM 

No. 821 employs a different interpretation of the terms of section 273a. As those pattern 

instructions apply here, we find no error in either interpretation of the statute. We were 

unable to find any case authority holding CALJIC No. 9.37’s interpretation of section 

273a is error where the conduct involved in the case fairly can be prosecuted as both 

direct and indirect child abuse.
16

crossed-off text, the trial court had written, “IN,” in the left margin, indicating that it had 

erred by crossing out that portion of the instruction. In addition, the prosecutor 

commented in final argument, the abuse must take place “under circumstances likely to 

produce great bodily harm or death.”

Appellant informs us when there is a discrepancy between the oral and written 

instructions, we must presume the jury was guided by the written instructions. (People v. 

Sparks (2002) 28 Cal.4th 71, 75, fn. 3.) However, we find the principle does not apply 

here. There were no significant discrepancies between the trial court’s written and oral 

instructions. We view the jury instructions as a whole and in the light of the trial court’s 

oral instructions and the prosecutor’s final argument. In the circumstances, the jury 

would have been well aware the abuse must take place “under circumstances likely to 

produce great bodily harm or death.” There was no error or constitutional violation.

(b) Providing a further explanation as to the term “great 

 bodily harm.”

The trial court charged the jury, “Great bodily harm refers to significant or 

substantial injury and does not refer to trivial or insignificant injury.” On appeal, 

appellant complains the trial court failed to add to its charge the further phrase “great 

bodily harm does not include moderate injury.” The claim is forfeited as no request was 

made at trial for such an instruction.

Nevertheless, we address appellant’s claim on the merits to forestall appellant’s 

claim of ineffective trial counsel, notwithstanding his substantial rights are not affected 

thereby. (See People v. Lucas (2014) 60 Cal.4th 153, 300 [finding appellant’s failure to 

be present at the readback of testimony did not affect the defendant’s substantial rights].) 

On the merits, a trial court properly could have declined to modify the existing 

definition of “bodily harm” by the reference to “moderate injury.” The charge given, 

“Great bodily harm” requires more than an insignificant or trivial injury and is a correct 

and complete statement of law requiring no further definition. (People v. Wolcott (1983) 

34 Cal.3d 92, 108-109; § 12022.7, subd. (f) [“As used in this section, ‘great bodily 

injury’ means a significant or substantial physical injury”]; see People v. Clark (2011) 
17

201 Cal.App.4th 235, 243-245 (Clark) [addressing a similar issue in the context of 

substantial evidence]; see also People v. Escobar (1992) 3 Cal.4th 740, 750, overruling 

People v. Caudillo (1978) 21 Cal.3d 562; People v. Le (2006) 137 Cal.App.4th 54, 58-

60.) 

Also, adding language to the instruction indicating no moderate injury is included 

within “great bodily harm” might have confused the jury. The additional amplification 

might cause an undue focus on whether an injury actually occurred and its specific 

nature. “Section 273a does not focus upon actual injury produced by abusive actions but 

‘rather upon whether or not the attendant circumstances make great bodily injury likely. 

Occurrence of great bodily injury is not an element of the offense.’ [Citation.] It is the 

likelihood of foreseeable injury, rather than whether such injury in fact occurs, that is 

relevant. [Citation.]” (People v. Lee (1991) 234 Cal.App.3d 1214, 1220.) 

Moreover, this point was not at issue. No reasonable juror would have believed 

appellant’s conduct risked only moderate injury when appellant had stabbed S. when S.

was only four feet from the daughters.

(c) The failure to further define “criminal negligence.” 

Appellant contends the trial court’s instruction failed to further define for the jury 

the term “criminal negligence,” which is required with charges of indirect child abuse, 

i.e., child endangerment. The Attorney General concedes error as the court in Valdez, 

supra, 27 Cal.4th at page 783, settled the issue. Defining “criminal negligence” is 

required so the jury knows the standard by which it must judge the breach of the duty of 

care to the child. (See also People v. Peabody (1975) 46 Cal.App.3d 43, 48-49 [where 

endangerment is at issue the jury must be informed “the defendants’ conduct must 

amount to a reckless, gross or culpable departure from the ordinary standard of due care; 

it must be such a departure from what would be the conduct of an ordinarily prudent 

person under the same circumstances as to be incompatible with a proper regard for 

human life.”].)
18

“In general the trial court has a sua sponte duty to give amplifying or clarifying 

instructions ‘ “where the terms used [in an instruction] have a technical meaning peculiar 

to the law.” ’ ” (People v. Richie (1994) 28 Cal.App.4th 1347, 1360.)

“When . . . the federal constitutional error involves the trial court’s failure to 

instruct on a necessary element, reversal is required under the Chapman test when ‘the 

defendant contested the omitted element and raised evidence sufficient to support a 

contrary finding” (Neder v. United States (1999) 527 U.S. 1, 19); but the error is not 

prejudicial when it is clear ‘beyond a reasonable doubt that the omitted element was 

uncontested and supported by overwhelming evidence’ (id. at p. 17).” (People v. 

Huggins (2006) 38 Cal.4th 175, 259; see also People v. Gonzalez (2012) 54 Cal.4th 643, 

666 (Gonzalez).)

This court concludes it was error in this instance to fail to define the term, 

“criminal negligence.” The courts in Valdez and Peabody found error in the failure to 

define this term without discussing whether the error is Watson or Chapman error. 

(People v. Watson (1956) 46 Cal.2d 818 (Watson); Chapman v. California (1967) 

386 U.S. 18, 24 (Chapman).)

But regardless of whether the failure to define this term is mere state error or 

federal constitutional error, the result is the same -- the error is harmless. The verdicts 

and findings for count 1 indicate the jury concluded appellant attacked his wife viciously 

with a knife. It also concluded in count 2 appellant personally inflicted injury by the use 

of a knife. The witnesses agreed on one scenario: during the melee, appellant 

approached his wife, stabbing at her. Despite some contrary testimony, the jury resolved 

the issue of the use of the knife against appellant in both charged offenses. The children, 

who were four feet away, predictably jumped in to assist their mother. There could be no 

dispute at trial appellant’s conduct was reckless. No reasonable parent would plan or 

make a knife attack on his or her spouse within an arm’s reach of his children. The 

teenagers were reasonably likely to be physically injured by their proximity to, or in an 

attempt to stop, the fray. The evidence of criminal negligence was overwhelming, and 

appellant introduced no contrary evidence on the issue of whether his conduct constituted 
19

criminal negligence at trial. (Gonzalez, supra, 54 Cal.4th at p. 666.) The trial court 

charged the jury criminal negligence was an element of indirect child abuse. The 

prosecution referred to that element in its final comments to the jury and referred 

specifically to the undisputed conduct described by the witnesses as constituting criminal 

negligence. Given this one scenario, the jury necessarily determined appellant acted 

recklessly, i.e., with criminal negligence.

In the alternative, appellant argues his trial counsel was constitutionally 

ineffective. But it is apparent here appellant suffered no prejudice from trial counsel’s 

failure to bring to the trial court’s attention the need to define the term “criminal 

negligence.” Making a proper request to define the term “criminal negligence” would not 

have assisted appellant. The undisputed evidence overwhelmingly established that 

element of the offense.

c. Cumulative instructional error.

Appellant also argues that the cumulative errors in the trial court’s jury 

instructions require a per se reversal. (E.g., Sullivan v. Louisiana (1993) 508 U.S. 275, 

277-278.) In People v. Mil (2012) 53 Cal.4th 400, 409-417, our Supreme Court set out 

the test for determining whether structural error, or harmless error, has occurred: “The 

critical inquiry, in our view, is not the number of omitted elements but the nature of the 

issues removed from the jury’s consideration. Where the effect of the omission can be 

‘quantitatively assessed’ in the context of the entire record (and does not otherwise 

qualify as structural error), the failure to instruct on one or more elements is mere ‘ “trial 

error” ’ and thus amenable to harmless error review.”

Appellant raises only one possible technical error with respect to surplusage and 

one instructional error, the latter of which this court finds on the facts presented is 

harmless beyond a reasonable doubt. There is no structural error. (People v. Mil, supra, 

53 Cal.4th at p. 416.) Even if viewed cumulatively, the errors are merely harmless 

beyond a reasonable doubt.
20

2. The trial court should have instructed the jury as to a lesser included offense.

Appellant contends the trial court had a sua sponte duty to instruct the jury on a 

lesser included offense of misdemeanor child abuse, the offense stated in section 273a, 

subdivision (b). He cites the decision in Beck v. Alabama (1980) 447 U.S. 625, 637, 

claiming the court must evaluate the error under Chapman, in lieu of the decision in 

Watson.

The elements of felony child abuse under subdivision (a) of section 273a and the 

misdemeanor provision, subdivision (b) of that section, are identical, with one exception. 

To prove felony child abuse, the prosecution must demonstrate the abuse occurred under 

“circumstances or conditions likely to produce great bodily harm or death.” (§ 273, 

subd. (a); People v. Burton (2006) 143 Cal.App.4th 447, 454, fn. 4.) 

A trial court’s obligation to give a sua sponte instruction has been held to include 

giving instructions on lesser included offenses only where the evidence raises a question 

as to whether all of the elements of the charged offense are present. However, the court 

has no obligation to charge as to a lesser included offense where there is no evidence the 

offense is less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154 

(Breverman).)

Here, there is no substantial evidence supporting an instruction on the lesser 

included misdemeanor offense of child abuse. The circumstances under which appellant 

sliced C. on the knee in the melee posed a substantial danger of producing great bodily 

harm or death. No rational jury would find otherwise. Consequently, there is no error. 

Nor is there federal error. As is pointed out in Breverman, supra, 19 Cal.4th 142, 

at pages 166 to 169, the United States Supreme Court’s decisions leave substantial doubt 

the federal Constitution confers any right to lesser included offense instructions in 

noncapital cases. They provide no basis for a conclusion the federal charter would 

require such instructions. The right to sua sponte instructions on all lesser necessarily 

included offenses supported by the evidence derives exclusively from California law. 

(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1144 & fn. 10.) 
21

3. Sufficient evidence supports the jury’s verdict of guilty of attempted voluntary 

manslaughter.

Appellant contends the evidence is insufficient to support the guilty verdict in

count 1, attempted voluntary manslaughter. 

Appellant makes the following argument. At trial, the prosecutor commented 

during final argument appellant had the requisite specific intent required for a conviction 

of attempted voluntary manslaughter as he brought a knife to the meeting and became 

angry. Rather than punching S. in the stomach, appellant stabbed S. in a manner 

calculated to cause death. On appeal, appellant argues the evidence supporting the 

prosecutor’s theory was insufficient to show beyond a reasonable doubt appellant acted 

with the specific intent to kill.

a. The standard of review.

In People v. Whisenhunt (2008) 44 Cal.4th 174, the California Supreme Court 

summarized the well-established standard of review. “ ‘In reviewing a challenge to the 

sufficiency of the evidence, we do not determine the facts ourselves. Rather, we 

“examine the whole record in the light most favorable to the judgment to determine 

whether it discloses substantial evidence—evidence that is reasonable, credible and of 

solid value—such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.” [Citations.] We presume in support of the judgment the existence of 

every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same 

standard of review applies to cases in which the prosecution relies primarily on 

circumstantial evidence . . . . [Citation.] “[I]f the circumstances reasonably justify the 

jury’s findings, the judgment may not be reversed simply because the circumstances 

might also reasonably be reconciled with a contrary finding.” [Citation.] We do not 

reweigh evidence or reevaluate a witness’s credibility. [Citation.]’ [Citation.]” (Id. at 

p. 200.)

“ ‘ “Although an appellate court will not uphold a judgment or verdict based upon 

evidence inherently improbable, testimony which merely discloses unusual circumstances 

does not come within that category. [Citation.] To warrant the rejection of the 
22

statements given by a witness who has been believed by the [trier of fact], there must 

exist either a physical impossibility that they are true, or their falsity must be apparent 

without resorting to inferences or deductions. [Citations.] Conflicts and even testimony 

which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is 

the exclusive province of the trial judge or jury to determine the credibility of a witness 

and the truth or falsity of the facts upon which a determination depends. [Citation.]”. . . .’ 

[Citation.]” (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 306.) 

The uncorroborated testimony of a single witness is sufficient to sustain a 

conviction unless it is physically impossible or inherently improbable. (People v. Young

(2005) 34 Cal.4th 1149, 1181.) Indeed, “ ‘[t]he testimony of a single witness is sufficient 

to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as 

to other portions. [Citations.]’ ” (In re Robert V. (1982) 132 Cal.App.3d 815, 821.)

b. Other relevant legal authorities.

Voluntary manslaughter is the unlawful killing of a human being “upon a sudden 

quarrel or heat of passion.” (§ 192, subd. (a).) “Voluntary manslaughter is a lesser 

included offense of murder when the requisite mental element of malice is negated by a 

sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the 

necessity of self-defense.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) 

The completed crime of voluntary manslaughter may be committed with either an 

intent to kill or implied malice, i.e., a conscious disregard for life. (People v. Lasko

(2000) 23 Cal.4th 101, 104; People v. Blakeley (2000) 23 Cal.4th 82, 91.) However, 

attempted voluntary manslaughter requires proof of an intent to kill, not of only a 

conscious disregard for life. (People v. Montes (2003) 112 Cal.App.4th 1543, 1546-

1547.)

c. The analysis.

Appellant argues the evidence is insufficient to support appellant’s conviction of 

attempted voluntary manslaughter as “there was no competent reliable evidence 

supporting the prosecutor’s theory” appellant brought the folding knife with him to 

Sorn’s apartment. It is irrelevant to the validity of the verdict whether the evidence is 
23

sufficient to support the prosecution’s theory of the case. When an appellant raises an 

issue of insufficient evidence, the question this court addresses is not whether the 

evidence is consistent with the prosecutor’s and trial counsel’s closing arguments or 

theories of the case. We address whether the trial evidence is of solid and credible value 

in supporting a rational conclusion by the jury that appellant committed the charged 

offenses.

Here, the jury rejected the prosecution’s claim of attempted deliberate and 

premeditated murder and found appellant guilty of the lesser included offense of 

attempted voluntary manslaughter. The trial court orally and in its written instructions 

informed the jury the specific intent to kill was necessary for a finding of guilt of 

attempted voluntary manslaughter.

7

 

7

 In its oral instructions, the trial court charged the jury as to the elements of 

attempted murder, explaining both malice aforethought and the specific intent to kill were 

necessary elements. It told the jury the lesser included offense, attempted voluntary 

manslaughter, had the following elements. “Voluntary manslaughter is the attempted 

killing of a human being without malice aforethought. There is no malice aforethought if 

the killing or attempted killing occurred upon a sudden quarrel or heat of passion or in the 

act -- Let me start that again. [¶] There is no malice aforethought if the killing or 

attempted killing occurred upon the sudden quarrel or heat of passion. [¶] In order to 

prove this crime, each of the following elements must be proved: [¶] 1. A direct but 

ineffectual act was done by one person toward killing another human; 2. That person had 

the specific intent to kill; [¶] 3. The actions taken to kill were unlawful. [¶] Notice there 

is no malice aforethought. [¶] In deciding whether a direct but ineffectual act was 

committed -- and that’s the definition of the attempt that I have already read to you. I am 

not going to read that portion again. [¶] To reduce an unlawful killing from murder to 

manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must 

be of the character and degree as naturally would excite and arouse the passion, and the 

assailant must act under the influence of that sudden quarrel or heat of passion.”

The written instructions given to the jury charged it with CALJIC No. 8.41, as 

follows: “Every person who unlawfully attempts without malice aforethought to kill 

another human being is guilty of the crime of attempted voluntary manslaughter in 

violation of sections 664 and 192, subdivision (a) of the Penal Code, a crime. [¶] 

Voluntary manslaughter is the unlawful killing of a human being without malice 

aforethought. [¶] There is no malice aforethought if the killing or attempted killing

occurred upon a sudden quarrel or heat of passion. [¶] In order to prove this crime, each 

of the following elements must be proved: [¶] 1. A direct but ineffectual act was done 
24

Appellant’s conduct circumstantially supports the jury’s finding of the specific 

intent to kill. Appellant apparently had anticipated his wife would not be compliant with 

his wishes, and in that event, he planned to fatally stab her in order to keep his children 

with him in California. The evidence supported a jury conclusion appellant brought at 

least one knife with him to the meeting with his former wife. Furthermore, the manner of 

his attack demonstrated the specific intent to kill. Appellant suddenly rushed at S., 

stabbing her several times, and at least once deep in the abdomen. The intentional blow 

with the knife into her abdomen supports a strong inference he intended to kill S. by 

fatally damaging her internal organs. 

It is settled such conduct demonstrates sufficient evidence of an intent to kill. (See 

People v. Smith (2005) 37 Cal.4th 733, 741-742, citing People v. Arias (1996) 13 Cal.4th 

92, 162, [an intent to kill can be inferred from a defendant’s purposeful use of a lethal 

weapon with lethal force, even if the act was done without advance consideration and 

only to eliminate a momentary obstacle or annoyance]; People v. Bolden (2002) 

29 Cal.4th 515, 561 [there was no doubt the perpetrator had the intent to kill where the 

victim died from a single stab wound to the back that penetrated the victim’s lungs and 

spleen and was five inches long and five to six inches deep and there was no evidence of 

 

by one person towards killing another human being; and [¶] 2. That person had the 

specific intent to kill the other person; and [¶] 3. The actions taken to kill were 

unlawful. [¶] In deciding whether a direct but ineffectual act was committed, it is 

necessary to distinguish between mere preparation, on the one hand, and the actual 

commencement of the doing of the criminal deed, on the other. Mere preparation, which 

may consist of planning the killing or of devising, obtaining or arranging the means for 

its commission, is not sufficient to constitute an attempt. However, acts of a person who 

intends to kill another person will constitute an attempt . . . where those acts clearly 

indicate a certain, unambiguous intent to kill. The acts must be an immediate step in the 

present execution of the killing, the progress of which would be completed unless 

interrupted by some circumstances not intended in the original design.” (Italics added.)

The trial court also charged the jury with CALJIC Nos. 8.42, 8.43 and 8.44, 

concerning Sudden Quarrel or Heat of Passion and Provocation Explained, Murder or 

Manslaughter -- Cooling Period, and Specific Emotion Alone Constitutes Heat of 

Passion.
25

a struggle].) The evidence adduced at trial amply supports appellant’s conviction of 

attempted voluntary manslaughter. 

4. Sufficient evidence supports the jury’s verdict of guilty of felony child abuse.

Appellant contends the trial evidence is insufficient to support the jury’s verdict he 

was guilty of felony child abuse. 

a. The relevant legal authority.

The standard of review is the same as that set out in contention 3 of this opinion, 

ante.

We have previously set out the elements of the offense of child abuse in its 

statutory terms and also quoted extensively from Valdez, supra, 27 Cal.4th 778, which 

fully explains the elements of the offense.

b. The analysis.

Appellant contends the evidence is insufficient to support his conviction of felony 

child abuse. He argues there is an absence of evidence establishing beyond a reasonable 

doubt appellant acted either willfully or was criminally negligent or that his conduct was 

committed under circumstances likely to produce great bodily harm. 

At the outset, we must clarify six points. 

One, this court does not evaluate the sufficiency of the evidence based on the 

theory the prosecutor articulates during his or her final comments to the jury. The 

question this court addresses is whether the trial evidence supports a rational conclusion 

appellant committed the offense within the limitations of the charges in the information 

and delineated by the trial court’s jury instructions.

Two, in this case, the trial court charged the jury on theories of direct and indirect 

child abuse with the following: “In order to prove this crime, each of the following 

elements must be proved: [¶] 1. A person who had care or custody of a child [¶] 

willfully caused or, willfully and as a result of criminal negligence, permitted the child to 

be injured; or [¶] willfully caused or, willfully and as a result of criminal negligence, 

permitted the child to be placed in a situation where his or her person or health may be 
26

endangered; and [¶] 2. The person’s conduct occurred under circumstances likely to 

produce great bodily harm or death.”

Three, regardless of the trial court’s or the prosecutor’s intent in drafting such 

instructions, the instructions encompass theories of direct and indirect felony child abuse. 

Therefore, for purposes of assessing the sufficiency of the evidence, we shall evaluate the 

trial evidence against the language of section 273a, subdivision (a), keeping in mind child 

endangerment requires criminal negligence.

Four, the word “willfully” as used in the child endangerment provisions of section 

273 “ ‘when applied with the intent to which an act is done or omitted, implies simply a 

purpose or willingness to commit the act or make the omission referred to. It does not 

require an intent to violate [the] law, or to injure another, or to acquire any advantage.’ ” 

(Valdez, supra, 27 Cal.4th at pp. 787-788.) Criminal negligence is not accidental 

conduct, nor does it constitute ordinary negligence. It is a gross departure from the 

conduct of an ordinarily prudent person. (Id. at p. 790.)

Five, the act here of willfully causing a child to be injured has elements similar to 

battery of an unintended victim. (See Valdez, supra, 27 Cal.4th at p. 787; People v. 

Trujillo (2010) 181 Cal.App.4th 1344, 1354 [“a defendant who harbors the requisite 

mental state for assault while committing one or more acti rei such that a direct, natural,

and probable result is a battery against two persons may be convicted of assault against 

each”]; see also People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1189 [the test for 

whether the battery also occurred on the unintended victim of an assault “is whether an 

objectively reasonable person with knowledge of these acts would appreciate that . . . a 

battery would directly and probably result from his actions”].)

Six, we note the phrase “circumstances likely to produce great bodily harm or 

death” in section 273a means “ ‘the probability of serious injury is great.’ ” (Sargent, 

supra, 19 Cal.4th at p. 1223; People v. Chaffin (2009) 173 Cal.App.4th 1348, 1351-1353; 

contra, People v. Wilson (2006) 138 Cal.App.4th 1197, 1204 [holding that “likely” as 

used in section 273a means there likely is a substantial danger, i.e., a serious and wellfounded risk, of great bodily harm or death].)
27

Here, while the adults were talking, C. and Ch. were not paying attention, but 

talking among themselves and playing on their mobile phones. They were four feet from 

S. when appellant suddenly jumped up, rushed at S. and hugged S. to him, swinging the 

knife wildly in order to stab at S. with sufficient force to cause a fatal wound. S. and 

appellant fell to the ground and wrestled.

Predictably, when Sorn and the teenagers realized appellant was attacking S., they 

jumped up and attempted to hold appellant back and pull him away so S. could escape 

from the apartment. In the melee, appellant sliced C. in the knee, as well as landed the 

potentially fatal stab wound to S.’s abdomen and stabbed S. several times on the arms 

and hands.

The above evidence is sufficient to support appellant’s conviction of indirect child 

abuse in circumstances likely to produce great bodily harm or death. Appellant 

endangered his two daughters when he attacked his former wife in close proximity to 

them. The daughters were in range of the attack as their mother was sitting within four 

feet. It was reasonably foreseeable the teenagers and Sorn would come to S.’s aid upon 

the attack. The attack demonstrates criminal negligence. A reasonable person would not 

have engaged in such conduct in such close proximity to his own teenagers. And, 

a reasonable person would have realized the attack in such close quarters was likely to 

result in serious bodily harm or death to the teenagers. 

Apparently, appellant did not seriously injure C. However, the circumstances of 

his flailing around with the knife while his daughters grabbed him bodily to prevent the 

stabbing made it likely he might cause a more serious injury to the other participants in 

the melee. In this melee, one of the girls could have lost an eye, been disfigured or had a 

body part severed resulting in a serious handicap. Even the apparently shallow cut 

suffered by C. on a knee might easily have severed critical tendons, leaving her crippled.

Appellant argues there is no evidence of direct child abuse. However, here, 

appellant was well aware of his children’s presence four feet from S. and that probably, 

Sorn and the teenagers would intervene once they realized appellant was attempting to 

injure S. In the circumstances, appellant’s course of conduct amounted to willfully 
28

causing injury to C. A reasonable person would have been aware a battery of the others 

in the room might directly and probably result from wildly flailing away at his wife with 

the knife.

We also reject appellant’s claim Officer Torres’s testimony is insubstantial in 

supporting the verdict insofar as the officer claimed at the hospital Ch. told him she saw 

appellant swing the knife and cut C. C. testified she felt numbness in her knee during the 

melee, and immediately afterwards, she looked down and discovered she was bleeding. 

This evidence is sufficient circumstantial evidence to support appellant’s conviction of 

felony child abuse without reference to Ch.’s out-of-court statement to Officer Torres. 

Nevertheless, Evidence Code section 1235 permits the use of prior inconsistent 

statements at trial as substantive evidence of guilt. (People v. Guerra (2006) 37 Cal.4th 

1067, 1144, overruled in part on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 

151; People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4.) At trial, it was apparent the 

witnesses, appellant’s friend and family, attempted to ameliorate appellant’s punishment 

by denying appellant brought a knife to the meeting or that they had observed him with a 

knife during the melee. Based on the officer’s testimony, it was reasonable for the jury to 

conclude Ch. told the truth to the officer at the hospital, but at trial, Ch. hedged 

concerning her observations of the knife in order to reduce appellant’s punishment. This 

court does not reweigh evidence or reevaluate witness credibility. (People v. Alexander

(2010) 49 Cal.4th 846, 917.) It was up to the jury to determine whether the officer’s 

testimony was credible in supporting a conclusion C. was injured by appellant’s flailing 

knife.

To support his claim of insufficient evidence, appellant cites several cases 

involving severe neglect. Then he argues, by contrast, the facts in this case are not severe 

enough to demonstrate criminal negligence. However, the trial evidence here was 

sufficient for a rational jury to conclude appellant acted recklessly and in a gross 

departure from the way an ordinarily careful person would act in the same situation. The 

infliction of injury did not amount to mere negligence or accident. 

5. The Pitchess motion.
29

Appellant has requested an independent review of the in camera Pitchess

proceedings conducted by the trial court. (Pitchess, supra, 11 Cal.3d 531.)

a. Background. 

On June 11, 2013, appellant filed a Pitchess motion. He requested the names and 

addresses and contact information for all witnesses to any prior complaints filed against 

Officer Gutierrez for acts involving moral turpitude. He requested any records of 

statements or testimony given in relation to such complaints given by any witnesses. 

Specifically, the supporting affidavit claimed appellant was charged with attempted 

deliberate and premeditated murder and felony child abuse. On the date of the alleged 

offense, Officer Gutierrez had spoken to appellant after a Miranda waiver. (Miranda v. 

Arizona (1966) 384 U.S. 436.) The officer indicated in his report appellant told him he 

was angry because his former wife wished to take the children with her to Kentucky. He 

wanted the children to remain in Long Beach where he lives. Appellant admitted he had 

stabbed his wife. Trial counsel claimed in the motion’s supporting affidavit that the 

defense might well deny appellant made those statements at the trial.

On June 24, 2012, the trial court held a Pitchess hearing. At the hearing, trial 

counsel argued even if appellant admitted making a statement to Officer Gutierrez, he 

may well claim at trial the officer’s description in the arrest report concerning appellant’s 

statement was incorrect and inaccurate. The trial court granted appellant’s motion for 

disclosure. It later held an in camera review of any complaints Officer Gutierrez had that 

were related to moral turpitude. The trial court ruled the scope of the hearing would be 

limited to whether there were any allegations of filing a false police report against Officer 

Gutierrez.

After an in camera review, the court ordered disclosure of certain discoverable 

information.
30

b. The relevant authority.

The California Supreme Court in its decision in People v. Mooc (2001) 26 Cal.4th 

1216, 1228, authorized appellate courts to review in camera Pitchess proceedings for 

error. During an in camera hearing pursuant to Pitchess, the “trial court should then 

make a record of what documents it examined before ruling on the Pitchess motion. 

Such a record will permit future appellate review. If the documents produced by the 

custodian are not voluminous, the court can photocopy them and place them in a 

confidential file. Alternatively, the court can prepare a list of the documents it 

considered, or simply state for the record what documents it examined.” (Mooc, at 

p. 1229.) The standard for review is an abuse of discretion. (Id. at p. 1228; People v. 

Samayoa (1997) 15 Cal.4th 795, 827 [trial courts have wide discretion when ruling on 

motions to discover police officers’ personnel records].)

We have independently reviewed the sealed reporter’s transcripts of the in camera 

hearings, and the trial court’s decision regarding the discoverability of material it found 

in the officer’s personnel files. The transcripts constitute an adequate record of the 

documents provided to, and reviewed by, the trial court in the hearings. Based on our 

review of the court’s findings, we conclude the court fulfilled its responsibilities and 

properly exercised its discretion with regard to any discovery it denied. (People v. Mooc, 

supra, 26 Cal.4th at pp. 1228-1229.) The trial court conducted a diligent and thorough 

review of pertinent documents in the deputies’ personnel files before concluding that only 

certain evidence was properly discoverable. There was no error.
31

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

EDMON, J.*

 

*

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

article VI, section 6 of the California Constitution.