Petition for Writ of Certiorari — Dannie Joe Farnum, Petitioner v. Scott Frauenheim, Warden

Supreme Court briefSep 27, 2019

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No. _______

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________

DANNIE JOE FARNUM,

Petitioner,

SCOTT FRAUENHEIM, Warden,

Respondent.

________________________

On Petition For Writ of Certiorari

To The United States Court of Appeals

For the Ninth Circuit

_________________________

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

TARIK S. ADLAI

LAW OFFICES OF TARIK S. ADLAI

65 No. Raymond Avenue

Suite 320

Pasadena, California 91103

(626) 578-7294

Counsel for Petitioner

INDEX TO APPENDICES

Appendix A

Memorandum, Ninth Circuit Court of Appeals, No.

16-56719, filed Apr. 23, 2019. . . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B

Order Accepting Findings, Conclusions, and

Recommendations of United States Magistrate Judge,

United States District Court for the Central District

of California, No. ED CV 15-2078-GW(E), filed

Oct. 25, 2016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6a

Appendix C

Report and Recommendation of United States Magistrate

Judge, United States District Court for the Central

District of California, No. ED CV 15-2078-GW(E), filed

Feb. 29, 2016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8a

Appendix D

Order denying petition for rehearing, Ninth Circuit

Court of Appeals, No. 16-56719, filed Jul. 2, 2019. . . . . . 68a

Appendix E

Opinion, California Court of Appeal, No. D066353,

filed Jan. 28, 2015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69a

Appendix F

Order denying petition for review, California Supreme

Court, No. S224998, filed Oct. 29, 2015.. . . . . . . . . . . . . 111a

Appendix A

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App. 1a

FILED

NOT FOR PUBLICATION

APR 23 2019

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

DANNIE JOE FARNUM,

No.

Petitioner-Appellant,

U.S. COURT OF APPEALS

16-56719

D.C. No.

5:15-cv-02078-GW-E

SCOTT FRAUENHEIM, Warden,

MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted April 10, 2019

Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District

Judge.

Dannie Farnum appeals the denial of his petition for relief from his

conviction under 28 U.S.C. § 2254. Farnum was convicted by a California state

jury of second-degree murder and inflicting injury upon a child under eight years

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The Honorable Jed S. Rakoff, United States District Judge for the

Southern District of New York, sitting by designation.

Appendix A

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App. 2a

old causing death for the death of his girlfriend’s 7-month-old son, “Baby John.”

His conviction was affirmed on direct appeal by the California Court of Appeal.

After his section 2254 petition was denied and dismissed with prejudice by the

district court, we granted a certificate of appealability (COA) as to two issues: (1)

whether Farnum was deprived of his rights to due process and a fair trial as a result

of the admission of a child witness’s testimony and prior statements at trial, and (2)

whether the evidence was sufficient to support Farnum’s conviction.

We review de novo a district court’s denial of a habeas corpus petition,

reviewing any underlying factual findings and credibility determinations for clear

error. Jones v. Taylor, 763 F.3d 1242, 1245 (9th Cir. 2014). Under the AntiTerrorism and Effective Death Penalty Act (“AEDPA”), a federal court may not

grant a habeas petition filed by a person in state custody with respect to any claim

adjudicated on the merits in a state court proceeding unless the state court decision

was “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” or “was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d). “When more than

one state court has adjudicated a claim, we analyze the last reasoned

decision.” Fox v. Johnson, 832 F.3d 978, 985-86 (9th Cir. 2016). In this case, the

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last reasoned state court decision is the California Court of Appeal’s decision on

direct review.

Due Process Claim

Farnum argues that the admission at trial of the testimony and prior

statements of his daughter, “Jane Doe,” violated his due process rights because

Jane Doe, who was seven years old at the time of trial and four years old at the

time of the prior statements, was not properly found competent to testify. Farnum

argues that de novo review should apply to this claim as the Court of Appeal did

not address it on the merits. We need not decide this issue as we may “deny writs

of habeas corpus under § 2254 by engaging in de novo review when it is unclear

whether AEDPA deference applies,” Fox, 832 F.3d at 986, and, even under de

novo review, Farnum’s claim cannot prevail.

While “failure to conduct an appropriate [competency] hearing implicates a

defendant’s due process rights,” upon review “our concern is solely whether the

trial court conducted a meaningful hearing.” Walters v. McCormick, 122 F.3d

1172, 1176-77 (9th Cir. 1997) (rejecting claim that the admission of a child

witness’s testimony violated due process). As the Court of Appeal recognized, the

trial court conducted an adequate hearing into Jane Doe’s competency and then

exercised its discretion in admitting her testimony and prior statements. Moreover,

the jury “remained free to assess the truthfulness and the significance of [the

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challenged] testimony, and petitioner had the opportunity to refute it.” Dowling v.

United States, 493 U.S. 342, 352-53 (1990) (rejecting a due process challenge to

the admission of testimony). Accordingly, there was no due process violation.

II.

Sufficiency of the Evidence

On habeas review, we may overturn a state court decision rejecting a

sufficiency of the evidence challenge “only if the state court decision was objectively

unreasonable.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (internal quotations

omitted). On direct appeal, the reviewing court is required to uphold a conviction if

it finds that “after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original); see also United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010).

To prove Farnum guilty of second-degree murder, the Government was

required to establish that Farnum killed Baby John “with malice aforethought,”

which may be express if “there is manifested a deliberate intention to take away the

life of a fellow creature,” or implied if the defendant acted in “conscious disregard

for life.” People v. Knoller, 41 Cal. 4th 139, 151-52 (2007) (citing Cal. Penal Code

§ 187(a)). To prove Farnum guilty of assault on a child resulting in death, the

Government needed to establish that Farnum: (1) had the care or custody of a child

under the age of eight; (2) assaulted the child; (3) by means of force that to a

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reasonable person would be likely to produce great bodily injury; (4) resulting in the

child's death. See People v. Malfavon, 102 Cal. App. 4th 727, 735 (2002) (citing Cal.

Penal Code § 273ab).

Farnum argues that, if Jane Doe’s testimony is either excluded or “properly

discount[ed],” there is insufficient evidence to convict him on either count. The

Court of Appeal found that there was sufficient evidence that Farnum inflicted

Baby John’s fatal injuries with the requisite mens rea regardless of whether Doe’s

testimony, which the Court of Appeal found was properly admitted, was

considered. In addition to Jane Doe’s testimony and prior statements that she

witnessed Farnum hit Baby John on the head, the jury heard testimony from a

pathologist that Baby John died as a result of severe head injuries that could be

inflicted only by an adult using an adult’s force, testimony from Baby John’s

mother that Farnum was the only adult present with Baby John before he lost

consciousness, testimony from an emergency responder that Farnum behaved

suspiciously when emergency personnel arrived, and testimony that Farnum

offered multiple conflicting explanations for Baby John’s injuries. Accordingly,

the Court of Appeals was reasonable to conclude that there was sufficient evidence

to convict Farnum on both counts.

AFFIRMED.

Appendix B

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App. 6a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DANNIE JOE FARNUM,

) NO. ED CV 15-2078-GW(E)

)

Petitioner,

)

ORDER ACCEPTING FINDINGS,

)

CONCLUSIONS AND RECOMMENDATIONS

JEFFERY BEARD, SEC CDCR,

)

OF UNITED STATES MAGISTRATE JUDGE

)

Respondent.

)

______________________________)

Pursuant to 28 U.S.C. section 636, the Court has reviewed the

Petition, all of the records herein and the attached Report and

Recommendation of United States Magistrate Judge.

has engaged in a de novo review of those portions of the Report and

Recommendation to which any objections have been made.

accepts and adopts the Magistrate Judge’s Report and Recommendation.

Further, the Court

The Court

IT IS ORDERED that Judgment be entered denying and dismissing

the Petition with prejudice.

///

Appendix B

Case 5:15-cv-02078-GW-E Document 25 Filed 10/25/16 Page 2 of 2 Page ID #:1823

App. 7a

IT IS FURTHER ORDERED that the Clerk serve copies of this Order,

the Magistrate Judge’s Report and Recommendation and the Judgment

herein on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED:

October 25, 2016.

_____________________________________

GEORGE H. WU

UNITED STATES DISTRICT JUDGE

Appendix C

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 1 of 60 Page ID #:1738

App. 8a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DANNIE JOE FARNUM,

) NO. ED CV 15-2078-GW(E)

)

Petitioner,

)

) REPORT AND RECOMMENDATION OF

)

JEFFERY BEARD, SEC CDCR,

) UNITED STATES MAGISTRATE JUDGE

)

Respondent.

)

______________________________)

This Report and Recommendation is submitted to the Honorable

George H. Wu, United States District Judge, pursuant to 28 U.S.C.

section 636 and General Order 05-07 of the United States District

Court for the Central District of California.

PROCEEDINGS

Petitioner, proceeding pro se, filed a “Petition for Writ of

Habeas Corpus By a Person in State Custody” on October 8, 2015.

Respondent filed an Answer on October 27, 2015.

Traverse on January 21, 2016.

Appendix C

Petitioner filed a

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App. 9a

BACKGROUND

On September 28, 2011, a Superior Court jury found Petitioner

guilty of second degree murder (Cal. Penal Code § 187(a)) (Count 1),

and of inflicting injury upon a child under eight years old causing

death (Cal. Penal Code § 273ab) (Count 2) (Reporter’s Transcript

[“R.T.”] 618-23; Clerk’s Transcript [“C.T.”] 331-32).

received a sentence of 25 years to life in state prison (R.T. 635;

C.T. 418-20).

Petitioner

The California Court of Appeal affirmed in a reasoned decision

(Respondent’s Lodgment 8; People v. Farnum, 2015 WL 351928 (Cal. App.

Jan. 28, 2015)).

Petitioner’s petition for review (Respondent’s Lodgment 12).

The California Supreme Court summarily denied

SUMMARY OF TRIAL EVIDENCE

The following summary is taken from the opinion of the California

Court of Appeal in People v. Farnum, 2015 WL 351928 at *3-7.

See

Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert.

denied, 133 S. Ct. 2766 (2013) (presuming correct statement of facts

drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749

n.1 (9th Cir. 2009) (taking factual summary from state appellate

decision).

Delice Preston testified she gave birth to Baby John

Doe (sometimes, Baby John or baby) in mid-March 2008.

John was healthy at birth.

Baby

Baby John’s father was Johnny,

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App. 10a

Preston’s common law husband of 15 years.

Preston and

Johnny also had a son together, Ricky, and Preston had a

daughter, Kelly, from another relationship.

unexpectedly died in May 2008.

Johnny

In or about August 2008, Preston and Farnum met and

began dating.

Preston often took Baby John when she visited

Farnum.

to care for Baby John when they were together.

Over time, Preston grew to trust Farnum in helping

Preston testified she had no plans to marry Farnum and

had begun to question their relationship because she

believed Farnum was cheating on her and was taking advantage

of her financially.

borrowed Preston’s car for days at a time.

testified she continued in the relationship with Farnum

because at that time she “needed somebody” both

“emotionally” and “physically.”

Farnum had little money and often

Preston

According to Preston, in late October 2008 Baby John

developed a medical condition called “infantigo” that led to

a rash on his face, arms and buttocks.

Baby John was fussy.

was constipated and teething.

by holding him, using a warm washcloth to clean the “crusty

stuff” near his eyes and putting antibiotic cream on a sore

near his ear.

Because of the rash,

Baby John was also fussy because he

Preston comforted Baby John

///

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App. 11a

Preston testified she was using marijuana and

methamphetamine during this period of time.

The night

before Baby John died, Preston and Farnum together used

methamphetamine.

Preston got up about 6:00 a.m. and fed Baby John.

and his two children from another relationship – Doe, then

aged four, and JoJo, his son, then aged two – had stayed

over with Farnum at Preston’s home.

gave Baby John a bottle and put him down for a nap.

The following day, November 10, 2008,

Farnum

After lunch, Preston

Later that afternoon, Preston left Baby John in

Farnum’s care when she went to buy groceries for dinner

after Farnum refused to go.

little fussy but according to Preston, was nonetheless fine,

and Farnum was in the process of giving him a bottle and

putting him down for another nap.

gave Baby John pain medication for teething and some

medication for “gas.”

When she left, Baby John was a

Before leaving, Preston

Preston recalled her car’s clock read 4:22 p.m. when

she left for the store, which was located less than five

miles from her home.

25 minutes.

away and then went into the bedroom where Farnum was

watching television.

Preston glanced over and saw Baby John in the crib on his

stomach.

to be sleeping.

She was at the store for about 20 to

When she returned, Preston put the groceries

Farnum seemed slightly agitated.

Baby John was covered by two blankets and appeared

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App. 12a

While cooking dinner, Preston heard Farnum yell from

the bedroom that the baby was not breathing.

Preston ran to

the bedroom and saw Farnum giving Baby John CPR.

laid Baby John on the bed, started massaging Baby’s John

chest, pinched the baby’s nose and started breathing into

his mouth.

Panicked, Preston asked Farnum what had

happened.

Farnum in response said nothing.

911.

her step children, Chris Gonzalez and Johnny Gonzalez, who

lived on the same property, a short distance away.

Farnum

Farnum dialed

Preston ran outside and began screaming for help from

Johnny Gonzalez came to help out.

When he saw Farnum

giving Baby John CPR, Johnny pushed Farnum aside and began

giving the baby CPR.

she believed he was being too violent with the baby.

Although inexperienced, Preston also tried to give the baby

CPR.

personnel arrived.

Preston told Johnny to stop because

About 20 minutes after 911 had been called, emergency

Cal Fire Paramedic Greg Murphy testified he responded

to the 911 call involving Baby John.

Preston and Baby John were living was very rural, Murphy

said it took a while to locate the home.

arrived about 5:30 p.m., a man later identified as Farnum

came running outside to meet Murphy.

The man was holding a

baby, later identified as Baby John.

The man was attempting

to perform CPR while carrying the baby.

///

Because the area where

When Murphy

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App. 13a

Murphy directed the man to take the baby back inside

the home.

Once inside, the man began asking Murphy a lot of

questions.

Murphy subsequently noted in his report that he

found the man nervous, but not frantic, and found it odd the

man was both “extremely inquisitive” regarding the baby and

unwilling to leave the baby alone with paramedics.

Murphy examined the baby and found him lifeless.

The

baby’s pupils were dilated and fixed, his core was semi-warm

and his extremities were cold to the touch.

showed the baby had no heartbeat.

The monitor

On questioning, the man told Murphy that about 40

minutes before 911 had been called, he fed the baby and then

laid the baby down to sleep.

man checked on the baby and found the baby facedown, wrapped

in blankets and not breathing.

baby had been teething and had conjunctivitis of the eye.

Once inside the well-lit ambulance, Murphy testified that he

saw periorbital bruising around the baby’s right eye, which

was indicative of head trauma.

About 10 minutes later, the

The man also told Murphy the

Farnum drove Preston to the hospital where Baby John

had been transported.

On the way, Preston asked Farnum,

“What happened? Why wasn’t he [i.e., Baby John] breathing?”

Farnum responded he did not know.

Preston was informed that Baby John had died, possibility of

“SIDS” (i.e., sudden infant death syndrome).

Once at the hospital,

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App. 14a

Farnum later told Preston he was fearful he would be

blamed for Baby John’s death because Farnum had been in the

bedroom when the child stopped breathing.

Preston the child’s face was “in the mattress” when Farnum

discovered the child not breathing.

Farnum also told

A few days later, Preston and her daughter were in the

car with Farnum when Preston’s daughter brought up the issue

of “shaking a baby.”

seemed surprised that a child could die from being shaken.

During that conversation, Farnum

Preston testified that initially she believed Farnum’s

children may have harmed Baby John because Farnum told her

“one of his kids had maybe hit [Baby John] or maybe pushed

him or something.”

there was a Mag flashlight, the big ones that the police

carry.

saber and swinging it around and stuff.

have hit him [i.e., Baby John].”

testified that when she returned from buying groceries at

the store, Farnum then had said nothing about Baby John

being accidently hit by Farnum’s children, including with a

flashlight.

Specifically, Farnum told Preston “that

They [i.e., his children] were using it as a light

And one of them may

However, Preston also

A few days after Baby John’s death, the police

contacted Preston and asked her to come to the station for

an interview.

on the night Baby John died, but she testified she could not

The police previously had interviewed Preston

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App. 15a

recall much of that interview because she was then “high.”

Before the interview at the police station, Preston

testified she was aware that Farnum’s daughter, Doe, had

already spoken to a social worker about Farnum harming Baby

John.

Farnum was potentially responsible for the baby’s death.

Preston told police during the interview at the station that

she did not believe Farnum would hurt Baby John and that she

never saw Farnum strike his own children.

testified she was not then truthful because she wanted to

protect Farnum.

“flick” his own children.

At that time, Preston did not want to believe that

At trial, Preston

In fact, Preston had seen Farnum “hit” and

After police discussed the results of [Baby] John’s

autopsy with Preston, she recalled Farnum had told her that

earlier on the day Baby John died, he saw the baby fall out

the sliding glass door in Preston’s home and bump his head.

Preston also recalled during the interview that Farnum also

had told her that on the day Baby John died, Farnum saw the

baby fall and hit his head on a toy while standing in his

crib.

The autopsy showed Baby John died of “blunt force

trauma to his head.”

The police told Preston during the

interview that Baby John’s head trauma could not have been

caused from Baby John falling and hitting his head or from a

blow by a two- or four-year-old child, such as Doe or JoJo,

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App. 16a

as Farnum theorized.

Detective Randall Wortman testified he was assigned to

investigate the death of Baby John after the autopsy

concluded the cause of death was blunt force trauma and was

ruled a homicide.

asked her to come down to the station.

Wortman told Preston the cause of death, he questioned

Preston.

did not want to be blamed for the death even though it

“looked bad” and Farnum was the “last one with the baby.”1

At the same time police were interviewing Preston, they were

interviewing Farnum in a separate room of the station.

Detective Wortman contacted Preston and

Before Detective

During the questioning, Preston said that Farnum

When asked how Baby John died, Preston initially told

Detective Wortman the baby likely suffocated because Farnum

had reported finding the baby face down on the mattress.

Preston also told police during the interview, “No, he

[i.e., Farnum] said or we said together that we found or he

found the baby face[ ]down in his mat — in his crib

mattress.”

this statement during the interview, she was referring to

“speaking with the paramedics and the initial law

enforcement the night it happened.”

Detective Wortman noted that, when Preston made

///

The record shows Preston testified she could not

remember making this and other statements to police during the

stationhouse interview.

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App. 17a

Preston also told Detective Wortman, “He [i.e., Farnum]

told me that if we talked to the cops or whatever that he

most likely was going to be the one blamed for this.

didn’t tell me what he did.

happened.”

her that he likely would be charged with manslaughter or

murder as a result of the baby’s death.

He didn’t tell me what had

Preston told the police that Farnum confided in

Detective Wortman was present when Detective Steven

Fredericks asked Preston, “Okay.

After you had an initial

conversation with [Farnum] about how you guys were gonna get

your stories straight so that he wouldn’t get blamed, did

you have any second guesses in your mind about that?

you have any thoughts in your head that this is the wrong

thing to do?”

“Yes.”

“short fuse” with his children and that she saw Farnum

“flick them on the forehead.”

Did

According to Detective Wortman, Preston said,

Preston also told the detectives that Farnum had a

Initially, Preston told the detectives that she saw

Baby John alive when she got back from buying groceries.

However, as the interview continued, she changed her story

and said that she put the groceries away and began making

dinner after she got home from the store.

detectives that Farnum had told her that, earlier on the day

Baby John died, Farnum saw the baby fall and hit his head on

the sliding glass door in Preston’s home.

disclosed that Farnum had said he saw Baby John that same

Preston told the

Preston also

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App. 18a

day hit his head on a toy after falling inside the crib.

Finally, Preston disclosed that Farnum reported he might

have tripped over some steps when he took Baby John outside

to meet the paramedics, and that is how the baby sustained

the head trauma.

Detective Wortman testified Preston became “extremely

visibly shaken up and upset” after they discussed the

results of Baby John’s autopsy.

that Baby John’s death was not accidental and that the baby

died of blunt force head trauma.

The detectives told Preston

Detective Wortman testified they next put Preston and

Farnum in a room together and recorded their conversation,

which was played for the jury.

conversation shows Preston immediately confronted Farnum and

asked what happened to Baby John, because, according to

Preston, the pictures from the autopsy showed Baby John’s

brain covered in blood.

theorized that Baby John died as a result of being shaken or

being hit on the head with an object.

The transcript of their

Preston told Farnum the police

The record shows Farnum then denied any wrongdoing,

stating the only time he touched the baby while Preston was

at the store was to give the baby a bottle.

stated that he had not been in the room with Baby John when

Preston was at the store and that when Preston returned from

the store, she went to the bedroom where the baby was

Farnum also

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App. 19a

sleeping and saw the baby was “okay.”

The record shows

Preston did not agree that the baby was “okay” when she

returned from the store, as Farnum suggested, and that she

instead responded, “What happened?”

they discussed certain events that may have occurred earlier

on the day Baby John died that led to his death, including,

as noted, Farnum’s report of seeing the baby fall back and

hit his head on a toy; and Farnum’s additional report that

his son JoJo was playing with a Mag flashlight and swinging

it around like a “light saber” shortly before the baby died.

The record also shows

With regard to the flashlight, Preston told Farnum his

son must have been playing with it while she was at the

store because she did not remember “anything about him

[i.e., JoJo] having a flashlight.”

she did not find a flashlight when picking up the bedroom.

The record shows Preston repeatedly asked Farnum if his

children were capable of hitting Baby John on the head with

a flashlight that would lead to such trauma.

responded, “Yes.

it’s really hard and it really hurts, but yes.”

point, the record shows Farnum told Preston he was at the

police station “because of” JoJo.

Preston also told Farnum

Farnum

And for me to say that about my children,

At another

At some point during their discussion, the record shows

Preston asked Farnum why his daughter Doe was saying Farnum

was the one that killed Baby John.

his children like to tell stories and “someone told [Doe] to

In response, Farnum said

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 13 of 60 Page ID #:1750

App. 20a

say some of that shit.”

Farnum told Preston that when he

asked Doe who told her to say he was responsible for the

attack, Doe shrugged her shoulders and refused to identify

the person or persons.

At the time of trial, Doe was six years 11 months old.

Doe testified she saw the baby “got shooked” by “Dannie”

(i.e., Farnum) because he “was mad.”

that the baby was seated in a stroller when the shaking

occurred and that Dannie then dropped the baby “in the

street.”

Shannon Garcia, also told her that Dannie shook the baby and

then dropped him in the street.2

Doe also testified

Doe further testified that her birth mother,

Doe testified that she did not like talking about what

happened to the baby and that, other than her birth mother,

she had not spoken to anyone else about what had happened.

When asked again, Doe testified that she could not remember

if she had spoken to anyone else in the past about what had

happened to the baby; that she remembered a “little bit”;

and that she saw Dannie shake the baby and then drop him in

the street.

thus not present when Dannie shook and dropped the baby.

Doe said that her birth mother was with her when the

incident occurred.

Doe testified Preston was inside her home and

The record shows that sometime after Baby John’s death,

Doe and JoJo were removed from the care of their birth mother.

At the time of trial, they were living in a new home with a

prospective adoptive family.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 14 of 60 Page ID #:1751

App. 21a

The record shows after Doe testified, the court granted

the prosecution’s motion to admit Doe’s statements to

Francisca Russo, a social worker with Riverside County Child

Protective Services, made the day after Baby John’s death.

Russo testified that she interviewed Doe at Doe’s birth

mother’s house.

and Doe’s maternal grandmother.

Also present during the interview was JoJo

The first thing Doe told Russo during the interview was

that the baby “was sad and stopped crying.”

Doe also told

Russo the baby was “sick” and when the baby died, “[her] dad

was there and [her] brother was there.”

brother was sleeping on the couch and Preston, who Doe then

referred to as “Tink,”3 was not home when the attack took

place.

Doe told Russo her

Russo testified that during the interview Doe

repeatedly said, “The baby was crying; my dad was mad; my

dad – my dad hurt the baby.”

“frog” (ostensibly a stuffed animal) to show how her dad

hurt the baby.

initially cradled it to provide comfort.

making a “shaking motion” using the frog while saying the

baby “would not stop crying, my dad was mad.”

Russo that, “he hurt the baby, he put it on the bed hard”

Russo next asked Doe to use a

Russo testified Doe took the frog and

Doe next started

Doe told

Preston testified that Doe called her “Tink” because

Preston had a tattoo of “Tinkerbell” on her right shoulder. The

record shows that Russo appears to have misspoke when she

subsequently referred to Preston as “Tiki.”

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 15 of 60 Page ID #:1752

App. 22a

and that he “hurt his head.”

Russo testified that during this initial interview, Doe

did not mention the baby being dropped in the street or her

birth mother being present during the shaking incident, as

Doe had just testified.

the interview with Doe because that was not allowed.

Russo testified she did not record

Detective Kim Judge of the Riverside Sheriff’s

Department testified that based on Russo’s interview with

Doe, a Riverside County Child Assessment Team (RCAT)

conducted a video interview of Doe a day or two after her

in-person interview with Russo.

conducted by Denise Bowman and was played for the jury.

The RCAT interview was

The record shows in that interview, Doe recalled

speaking to Russo and in response to Bowman’s question,

“What did you [i.e., Doe] tell her [i.e., Russo],” Doe said,

“I telled her ah, ah, my dad shaked the baby and, and

grabbed his feet and hurt him on his head.”

she saw her dad shake and hurt the baby after Preston had

left.

brother,” Doe quickly corrected Bowman, telling her, “Not my

brother,” and reiterated several times that her father shook

the baby and that the baby lived with “Tink.”

Doe reiterated

When Bowman again asked Doe who did this to “your

Doe then used a doll to show Bowman what Farnum had

done to the baby.

Doe told Bowman that her dad was hitting

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 16 of 60 Page ID #:1753

App. 23a

the baby’s head on “his crib.”

Doe said she saw her dad

shaking and hurting the baby in “Tink’s” room, where the

crib was located.

his hand to hit the baby on the “butt.”

Bowman’s question, “[W]hen he [i.e., Farnum] was done

hurting him [the baby], what did he do with [the baby]?

Where did he put him?”

Doe also told Bowman that her dad used

In response to

Doe said, “In, back in his crib.”

Bowman next asked Doe where her “daddy” went

afterwards.

Doe said, “He didn’t go in jail.”

When asked

if she spoke to her mother (i.e., birth mother) about what

had happened to the baby, Doe said she had and that her

mother had said, “Bad baby, bad baby!”

that her mother did not take the baby away and before Bowman

could finish asking her next question, Doe added, “Only the

Cops,” ostensibly in response to the question who took the

baby away.

Doe then told Bowman

Pathologist Aaron Gleckman testified as an expert on

behalf of the People.

He opined there was no evidence Baby

John suffocated on his own.

upper frenulum, which he described as the connection between

the lip and upper jaw, torn.

“fresh” and was likely caused by past abuse, either by a

“hard slap or a punch to the face.”

Dr. Gleckman found Baby John’s

He noted that injury was not

Dr. Gleckman found a half-inch by quarter-inch red

abrasion on Baby John’s left temple.

Dr. Gleckman described

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 17 of 60 Page ID #:1754

App. 24a

the abrasion as a “circular-shaped area of redness” and

opined it was likely caused by “blunt trauma from some sort

of object that had that sort of [a] circular shape.”

Because the injury showed no signs of healing, Dr. Gleckman

opined the injury was of recent origin.

Dr. Gleckman testified there was a “large . . . light

purple/pinkish” bruise or a contusion to the back of Baby

John’s head that appeared to be “fresh” given its color.

further examination, Dr. Gleckman found a large area of

redness and areas of purple under the inner surface of Baby

John’s scalp, which Dr. Gleckman referred to as “subgaleal

hemorrhage” caused by trauma.

injury was large and was the result of “fresh bleeding.”

Dr. Gleckman opined this

Dr. Gleckman next examined the area below the skull

bone.

Dr. Gleckman found not only areas of redness but also

a “crack” in Baby John’s skull.

the skull crack or fracture was “extensive” and that it was

“actually harder to break an infant’s skull than an adult’s

skull because as people get older their bones get more

brittle.”

infant’s skull “is pliable; they’re kind of elastic.

this case it actually would take more force to fracture or

break an infant’s skull than an adult’s.”

Dr. Gleckman testified that

In contrast, according to Dr. Gleckman an

So in

Dr. Gleckman also found “massive” bleeding under the

fibrous covering of Baby John’s brain.

In fact, Dr.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 18 of 60 Page ID #:1755

App. 25a

Gleckman determined these purple areas took up about “half

of the whole size of [Baby John’s] brain.”

indicative of trauma “from either a hard impact to the head,

or sometimes from very vigorous shaking of an infant.”

Gleckman could not definitely determine whether Baby John

died from shaking, although he also could not rule it out as

the cause of death.

fracture and the amount of force Dr. Gleckman said would be

necessary to cause [Baby] John’s extensive injuries, he

opined Baby John died of “[a]busive head trauma” caused by

an “intentional” act.

light of the seriousness of Baby John’s head injuries, the

baby could have gone from being a “completely normal infant”

to unconscious in a matter of seconds or minutes.

The bleeding was

Dr.

Given the size of the injury, the skull

Dr. Gleckman further opined that in

PETITIONER’S CONTENTIONS

Petitioner contends:

The evidence allegedly was insufficient to support

Petitioner’s convictions (Petition, Ground One);

The trial court allegedly erred and violated due process by

admitting Jane Doe’s testimony and statements (Petition, Grounds Two

and Three);

The trial court allegedly erred and violated due process by

failing to instruct the jury with a lesser included offense

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 19 of 60 Page ID #:1756

App. 26a

instruction for manslaughter and with a corpus delecti instruction

(Petition, Ground Four);

The cumulative effect of the trial court’s alleged errors

assertedly violated due process (Petition, Ground Five); and

The admission of Jane Doe’s statements allegedly violated

the Confrontation Clause (Traverse, pp. 2-6).

STANDARD OF REVIEW

Under the “Antiterrorism and Effective Death Penalty Act of 1996”

(“AEDPA”), a federal court may not grant an application for writ of

habeas corpus on behalf of a person in state custody with respect to

any claim that was adjudicated on the merits in state court

proceedings unless the adjudication of the claim:

decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme

Court of the United States”; or (2) “resulted in a decision that was

based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.

Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09

(2000).

(1) “resulted in a

28 U.S.C. §

“Clearly established Federal law” refers to the governing legal

principle or principles set forth by the Supreme Court at the time the

state court renders its decision on the merits.

Greene v. Fisher, 132

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 20 of 60 Page ID #:1757

App. 27a

S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

A state court’s decision is “contrary to” clearly established Federal

law if:

Court law; or (2) it “confronts a set of facts . . . materially

indistinguishable” from a decision of the Supreme Court but reaches a

different result.

omitted); Williams v. Taylor, 529 U.S. at 405-06.

(1) it applies a rule that contradicts governing Supreme

See Early v. Packer, 537 U.S. at 8 (citation

Under the “unreasonable application prong” of section 2254(d)(1),

a federal court may grant habeas relief “based on the application of a

governing legal principle to a set of facts different from those of

the case in which the principle was announced.”

538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537

U.S. at 24-26 (state court decision “involves an unreasonable

application” of clearly established federal law if it identifies the

correct governing Supreme Court law but unreasonably applies the law

to the facts).

Lockyer v. Andrade,

“In order for a federal court to find a state court’s application

of [Supreme Court] precedent ‘unreasonable,’ the state court’s

decision must have been more than incorrect or erroneous.”

Smith, 539 U.S. 510, 520 (2003) (citation omitted).

court’s application must have been ‘objectively unreasonable.’”

at 520-21 (citation omitted); see also Waddington v. Sarausad, 555

U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th

Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).

habeas court must determine what arguments or theories supported,

. . . or could have supported, the state court’s decision; and then it

Wiggins v.

“The state

Id.

“Under § 2254(d), a

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 21 of 60 Page ID #:1758

App. 28a

must ask whether it is possible fairminded jurists could disagree that

those arguments or theories are inconsistent with the holding in a

prior decision of this Court.”

101 (2011).

This is “the only question that matters under §

2254(d)(1).”

Id. at 102 (citation and internal quotations omitted).

Habeas relief may not issue unless “there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts with

[the United States Supreme Court’s] precedents.”

for obtaining habeas corpus from a federal court, a state prisoner

must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.”

Harrington v. Richter, 562 U.S. 86,

Id.

“As a condition

Id. at 103.

In applying these standards, the Court looks to the last reasoned

state court decision.

See Delgadillo v. Woodford, 527 F.3d 919, 925

(9th Cir. 2008).

presented to it without expressly addressing the claim, a federal

habeas court generally must presume that the state court decided the

claim on the merits.

(2013).

summarily denies a claim, Section 2254(d) still applies and this Court

must determine what arguments or theories could have supported the

state court’s decision.

(2011) (citing Harrington v. Richter, 562 U.S. at 98, 102).

Petitioner’s case, the California Court of Appeal issued the last

reasoned decision rejecting Grounds One through Four on the merits.

See Respondent’s Lodgment 8, pp. 16-42.

Where a state court rejects a federal claim

Johnson v. Williams, 133 S. Ct. 1088, 1094-96

Where no reasoned decision exists, as where the state court

See Cullen v. Pinholster, 563 U.S. 170, 188

The state courts summarily

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 22 of 60 Page ID #:1759

App. 29a

denied Ground Five.

See Respondent’s Lodgment 5, pp. 23-34, and

Respondent’s Lodgment 11, p. 40 (raising cumulative error claim); see

also Respondent’s Lodgment 8 and 12 (summarily denying relief on this

claim).

Appeal or to the California Supreme Court the Confrontation Clause

claim Petitioner argues in his Traverse.

Petitioner never fairly presented to the California Court of

Additionally, federal habeas corpus relief may be granted “only

on the ground that [Petitioner] is in custody in violation of the

Constitution or laws or treaties of the United States.”

2254(a).

of whether the petition satisfies section 2254(a) prior to, or in lieu

of, applying the standard of review set forth in section 2254(d).

Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

28 U.S.C. §

In conducting habeas review, a court may determine the issue

DISCUSSION4

Petitioner’s Challenge to the Sufficiency of the Evidence Does

Not Merit Federal Habeas Relief.

Petitioner challenges the sufficiency of the evidence to show

that Baby John died as the result of an injury intentionally inflicted

by Petitioner.

there was no evidence that Petitioner intended to injure or kill the

baby.

See Petition, pp. 8A-1 - 8A-2.

Petitioner argues

He suggests that Preston had an equal opportunity to inflict

The Court has read, considered and rejected on the

merits all of Petitioner’s arguments. The Court discusses

Petitioner’s principal arguments herein.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 23 of 60 Page ID #:1760

App. 30a

the fatal injuries and that Preston exhibited consciousness of guilt.

See Petition, pp. 8A-1 - 8A-3; Traverse, pp. 11, 13.

argues the evidence was insufficient to support a finding that the

assault on the baby was committed by means of force that, to a

reasonable person, would be likely to produce great bodily injury.

See Petition, p. 8A-2.

Doe’s allegedly incompetent testimony and statements, there assertedly

was insufficient evidence to support Petitioner’s convictions.

Traverse, pp. 1, 10-11; Respondent’s Lodgment 3, pp. 29-30.

Petitioner also

Petitioner further argues, that without Jane

See

The California Court of Appeal rejected Petitioner’s

insufficiency claims, finding that the evidence was sufficient with or

without Jane Doe’s testimony and statements.

emphasized:

with the baby before the baby’s death; (2) Petitioner’s varying and

false stories purporting to explain why the baby died during

Petitioner’s watch, which suggested a consciousness of guilt; and

(3) the pathologist’s testimony concerning why and how the death must

have occurred.

The Court of Appeal

(1) Petitioner’s admission that he was the last adult

See Respondent’s Lodgment 8, pp. 35-36.

Governing Legal Principles

On habeas corpus, the Court’s inquiry into the sufficiency of

evidence is limited.

Evidence is sufficient unless the charge was “so

totally devoid of evidentiary support as to render [Petitioner’s]

conviction unconstitutional under the Due Process Clause of the

Fourteenth Amendment.”

1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations

Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 24 of 60 Page ID #:1761

App. 31a

omitted).

A conviction cannot be disturbed unless the Court

determines that no “rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

v. Virginia, 443 U.S. 307, 317 (1979).

was “so unsupportable as to fall below the threshold of bare

rationality.”

Jackson

A verdict must stand unless it

Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012).

Jackson v. Virginia establishes a two-step analysis for a

challenge to the sufficiency of the evidence.

United States v.

Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).

reviewing court must consider the evidence in the light most favorable

to the prosecution.”

Brown, 558 U.S. 120, 133 (2010).5

usurp the role of the trier of fact by considering how it would have

resolved the conflicts, made the inferences, or considered the

evidence at trial.”

United States v. Nevils, 598 F.3d at 1164

(citation omitted).

“Rather, when faced with a record of historical

facts that supports conflicting inferences a reviewing court must

presume - even if it does not affirmatively appear in the record -

that the trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution.”

internal quotations omitted); see also Coleman v. Johnson, 132 S. Ct.

at 2064 (“Jackson leaves [the trier of fact] broad discretion in

deciding what inferences to draw from the evidence presented at trial,

requiring only that [the trier of fact] draw reasonable inferences

“First, a

Id. (citation omitted); see also McDaniel v.

At this step, a court “may not

Id. (citations and

The Court must conduct an independent review of the

record when a habeas petitioner challenges the sufficiency of the

evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.

1997). The Court has conducted such a review.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 25 of 60 Page ID #:1762

App. 32a

from basic facts to ultimate facts”) (citation and internal quotations

omitted); Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam) (“it

is the responsibility of the jury — not the court — to decide what

conclusions should be drawn from evidence admitted at trial”).

State need not rebut all reasonable interpretations of the evidence or

“rule out every hypothesis except that of guilt beyond a reasonable

doubt at the first step of Jackson [v. Virginia].”

Nevils, 598 F.3d at 1164 (citation and internal quotations omitted).

The

United States v.

At the second step, the court “must determine whether this

evidence, so viewed, is adequate to allow any rational trier of fact

to find the essential elements of the crime beyond a reasonable

doubt.”

internal quotations omitted; original emphasis).

“may not ask itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt.”

internal quotations omitted; original emphasis).

United States v. Nevils, 598 F.3d at 1164 (citation and

A reviewing court

Id. (citations and

In applying these principles, a court looks to state law for the

substantive elements of the criminal offense, but the minimum amount

of evidence that the Constitution requires to prove the offense “is

purely a matter of federal law.”

2064.

///

Coleman v. Johnson, 132 S. Ct. at

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 26 of 60 Page ID #:1763

App. 33a

Sufficient Evidence Supports the Conviction for Second

Degree Murder.

Under California law, second degree murder is defined as “the

unlawful killing of a human being with malice aforethought but without

the additional elements, such as willfulness, premeditation, and

deliberation, that would support a conviction of first degree murder.”

People v. Knoller, 41 Cal. 4th 139, 151, 59 Cal. Rptr. 3d 157, 158

P.3d 731 (2007) (citations omitted).

the crime was committed, the defendant subjectively knew he was

engaging in conduct that was dangerous to human life but deliberately

acted with conscious disregard for life.

v. Watson, 30 Cal. 3d 290, 296-97, 179 Cal. Rptr. 43, 637 P.2d 279

(1981) (citations omitted); see also Cal. Penal Code § 188 (malice may

be express or implied).

Malice may be implied if, when

Id. at 152; see also People

As Petitioner appears to concede, the evidence plainly was

sufficient to support the conclusion that Baby John died as the result

of head injuries inflicted by an adult (R.T. 60, 588; Traverse, pp.

11, 13-14).

sufficient for a rational jury to conclude beyond a reasonable doubt

that it was Petitioner who intentionally inflicted Baby John’s fatal

injuries.

jury could have concluded that Petitioner was the only adult present

with Baby John during the only time the fatal injuries could have been

inflicted.

///

Contrary to Petitioner’s arguments, the evidence also was

The prosecution produced evidence from which a rational

Preston testified that she left Baby John, then alive and

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 27 of 60 Page ID #:1764

App. 34a

only slightly fussy, in Petitioner’s care (R.T. 245-49, 251-57).6

Preston also said that, after the baby died, Petitioner told her he

might get blamed because Petitioner was the last one in the bedroom

with the baby (R.T. 271-73, 275, 377, 380).

testified that she was with Petitioner, her brother, and Baby John –

but not Preston – when Petitioner injured Baby John (R.T. 133-34, 146;

but see R.T. 134, 146 (Doe testifying that her mother Shannon also was

present)).7

Similarly, Jane Doe

In Petitioner’s own recorded interview with the police and during

a subsequent conversation with Preston, Petitioner claimed that he was

with the baby, gave the baby a bottle and put him down for a nap in

his crib, then left the room (R.T. 386-91, 453-54, 481-83, 492-93,

500-02; C.T. 279-80).

Preston returned from the store and was preparing dinner in the

kitchen when Petitioner went to the bedroom and supposedly found the

baby unresponsive in the crib (C.T. 282, 309-10).

the cause of death, Petitioner also told police that, after Petitioner

supposedly gave the baby the bottle, Preston went “back there,”

possibly to the bedroom (C.T. 286, 288, 311-12, 315).

conversation with Preston, Petitioner did not deny – and rather

admitted – that he was the last adult to be with the baby before the

baby died (C.T. 240-43, 246, 251-52).

During his interview, Petitioner claimed that

After being told of

Yet, in his

Certain of Petitioner’s

In the week prior to his death, the baby had been fussy

– he was teething, had a rash, had eye infections, and was

constipated (R.T. 223-25, 302-05, 308).

As noted above, in her prior interviews days after Baby

John died, Doe did not say that Shannon was present. See C.T.

183-84; R.T. 184-85, 200.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 28 of 60 Page ID #:1765

App. 35a

statements also demonstrated his consciousness of guilt.

Multiple

times, Petitioner changed his stories concerning finding Baby John and

the injuries Baby John supposedly might have suffered during the day

of his death.

313-15).

See C.T. 244, 246-50, 253, 277, 283-84, 292-93, 309-10,

In a recorded interview played for the jury, Jane Doe stated what

she claimed to have seen happen to Baby John:

Doe: I telled her ah, ah, my dad shaked the baby and, and

grabbed his feet and hurt him on his head.

[Interviewer]: Did you see that?

Doe: Yeah

[Interviewer]: Where were you guys when you saw that?

Doe: I was up in my house

[Interviewer]: Oh, and where was ah, ah, [Preston] when that

happened?

Doe: Um. . .

[Interviewer]: Was she there or did she leave?

Doe: Her leaved * * *

[Interviewer]: Who did this to your brother?

Doe: Not my brother

[Interviewer]: Oh I’m sorry.

Doe: It’s [Baby John]

[Interviewer]: Oh it’s [Baby John], is that [Baby John]?

Who shaked [Baby John]?

Doe: Ah, my dad did

[Interviewer]: Your dad . . . your dad Dannie or someone

Who shaked JoJo?

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 29 of 60 Page ID #:1766

App. 36a

different?

Doe: My dad

[Interviewer]: Your dad Dannie or somebody else?

Doe: My dad * * *

[Interviewer]: Um, so you saw with your eyeballs, you saw

daddy shake [Baby John]?

Doe: yeah, yeah

[Interviewer]: And what else did he do to him?

Doe: Shaked the baby

(C.T. 183-85; R.T. 169, 207).

saw, and the interviewer asked, “and where was he hitting his head

on?”

(C.T. 185).

Doe demonstrated with a doll what she

Doe replied, “on his crib” (C.T. 185).

The pathologist described the “extensive fracture” to Baby John’s

skull and explained that is even more difficult to break an infant’s

skull than an adult’s skull because an infant’s skull is “pliable

. . . kind of elastic” (R.T. 416).

order to fracture an infant’s skull, the infant would have to fall

from several feet or higher onto a very hard surface, or the fracture

would be “intentional” in that the infant’s “head would have to be

slammed so hard that . . . any adult watching [the infant’s] head

slammed would know that this is enough force that could kill an

infant.

force to cause a fracture like this” (R.T. 417).

subdural hemorrhaging over half of his brain surface which is

indicative of trauma from either a hard impact or vigorous shaking

(R.T. 418).

The pathologist opined that in

And it usually would take any adult . . . almost their full

Baby John also had

The pathologist concluded that Baby John died of “abusive

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 30 of 60 Page ID #:1767

App. 37a

head trauma” which was “done by an adult and was intentional” (R.T.

421, 423).

could have been caused by Baby John hitting his head on a toy or being

hit on the head with a flashlight or that a four-year-old could create

enough force to cause the injury (R.T. 423-24).

however, that the baby was shaken and then slammed against something

by an adult (R.T. 424).8

The pathologist rejected any suggestion that the injuries

It was possible,

Viewing the evidence (with or without Jane Doe’s testimony and

statements) in the light most favorable to the prosecution, a rational

jury could have found beyond a reasonable doubt that Petitioner

inflicted Baby John’s injuries, that Petitioner’s acts were

intentional and dangerous to human life, and that Petitioner acted

with conscious disregard for Baby John’s life.

651 F.3d 1112, 1114-15 (9th Cir. 2011) (circumstantial evidence and

the inferences drawn therefrom can be sufficient to sustain a

conviction); see also Jackson v. Virginia, 443 U.S. 307, 324-25 (1979)

(same); compare Perodin v. Miller, 2013 WL 5818565, at *7 (C.D. Cal.

Oct. 29, 2013) (evidence sufficient to show that the petitioner shook

her baby with conscious disregard for the baby’s life based on expert

testimony regarding the degree of force necessary to cause the baby’s

brain injuries, and the petitioner’s own admission that she shook her

baby “very hard”); Nha Dac Ho v. Tilton, 2011 WL 4852328, at *8 (C.D.

Cal. Sept. 1, 2011), adopted, 2011 WL 4852320 (C.D. Cal. Oct. 12,

2011) (sufficient evidence of implied malice where the injury to the

See Ngo v. Giurbino,

At the time the pathologist originally opined that Baby

John died of abusive blunt force trauma, he was not aware that

anyone had said that the baby was shaken, slammed and hit (R.T.

424-25).

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 31 of 60 Page ID #:1768

App. 38a

two year old victim was non-accidental and the victim died of blunt

force trauma to his head or shaken baby syndrome; the prosecution did

not need to prove that the petitioner subjectively intended to kill

his victim); Garcia v. Giurbino, 2010 WL 1610209, at *14-15 (C.D. Cal.

Mar. 4, 2010), adopted, 2010 WL 1609943 (C.D. Cal. Apr. 19, 2010)

(agreeing with state court that evidence supported a finding that the

petitioner acted with implied malice where, inter alia, the nature of

the force used to inflict the infant’s fatal injuries by “violent”

shaking was sufficient for the jury to infer that petitioner knew his

conduct endangered the infant’s life).

Petitioner’s trial counsel attempted to persuade the jury that it

was Preston, not Petitioner, who killed Baby John (R.T. 568-69, 571,

577-80, 585, 594-96).9

had entered a plea to being an accessory to Baby John’s murder and

assertedly had admitted in an April 2009 letter to Petitioner that she

///

Counsel highlighted for the jury that Preston

Preston admitted to using methamphetamine and marijuana

around the time the baby died (R.T. 228). She admitted she used

methamphetamine along with Petitioner the night before the baby

died (R.T. 228-29). Preston also admitted that the baby had

medical issues for a matter of days but she had not taken the

baby to the doctor for treatment (R.T. 302-05, 340-41). Preston

assertedly was overwhelmed, living off welfare and her mother,

had just lost her husband, felt used by Petitioner, and she

admittedly was agitated due to her use of methamphetamine (R.T.

339).

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 32 of 60 Page ID #:1769

App. 39a

caused the baby’s death.10

testimony concerning her own actions on the day Baby John died had

been a lie (R.T. 582, 586-88, 591-92).

been convicted of being an accessory to Baby John’s murder for which

she served five months in jail (R.T. 342).

Petitioner, there arguably was evidence of Preston’s own consciousness

of guilt in that she too offered varying explanations to the police

for how Baby John may have died.11

Counsel also suggested that Preston’s

Preston admitted that she had

Additionally, as with

Preston maintained communications with Petitioner

during his incarceration and wrote letters to Petitioner

professing her love for him (R.T. 315). When the defense began

asking Preston about letters in which she may have acknowledged

some responsibility for the baby’s death, Preston, on the advice

of counsel, invoked her Fifth Amendment privilege against selfincrimination (R.T. 316-19, 328-29). The trial court granted

Preston use immunity for her testimony regarding her letters

(R.T. 330-33). Although she claimed she did not recall writing

it, Preston reportedly had said in a letter dated April 24, 2009,

“I can’t do anything right; if I could, you would be here with

me, or you would be here and I would or should be in there. . . .

I really hate myself and you should hate me, too. . . . I’ve got

you into trouble; haven’t I?” (R.T. 334-35). Preston explained

that she thought she should be in jail instead of Petitioner

because Preston put her son in the situation, and said that at

the time she wrote the letter she did not think Petitioner had

hurt the baby (R.T. 350, 361).

When Preston went to the police station to discuss the

baby’s autopsy, she said that she believed that one of

Petitioner’s kids had harmed the baby (RT 282-83). Preston said

she thought that Jane Doe was a little jealous of the baby (R.T.

306). When police confronted Preston with the autopsy results,

Preston said that the baby may have had a bump on his head from

falling out the sliding glass door – something that Petitioner

reportedly had told Preston but that Preston did not see (R.T.

283, 312, 384). Preston also told the police that the baby was

learning how to stand in his crib and had fallen back and hit his

head (R.T. 283-84, 384-85). She also suggested to the police

that the baby may have been hurt by Johnny performing CPR on the

baby “too hard” (R.T. 313-14). Preston admitted that she did not

(continued...)

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App. 40a

Defense counsel also argued that Jane Doe’s testimony at trial,

particularly her demonstration of Petitioner shaking the baby,

actually resulted from having seen Petitioner give the baby CPR (R.T.

572-73, 577).

unreliable, pointing out certain of Doe’s responses that were

demonstrably false (R.T. 573-76, 593).

prior statements that incriminated Petitioner, counsel argued that the

investigator supposedly had pointed Doe in the direction of giving

those statements (R.T. 576-77).

Defense counsel argued that Doe’s prior statements were

In regard to those of Doe’s

By its verdict, the jury rejected the thrust of defense counsel’s

arguments.

Given the evidence presented at trial, such was the jury’s

prerogative.

inference, we ‘must respect the exclusive province of the jury to

determine the credibility of witnesses, resolve evidentiary conflicts,

and draw reasonable inferences from proven fact[s].’”

616 Fed. App’x 336, 337-38 (9th Cir. 2015), petition for cert. filed

(U.S. Feb. 3, 2016) (No. 15-8001) (quoting Gonzalez v. City of

Anaheim, 747 F.3d 789, 795 (9th Cir.) (en banc), cert. denied, 135 S.

Ct. 676 (2014)).

conflicts in the evidence, or reevaluate the credibility of witnesses.

See Cavazos v. Smith, 132 S. Ct. 2, 4, 7 (2011) (declining to reweigh

evidence where jury was presented with conflicting views of how a baby

died; noting: “Doubts about whether Smith is in fact guilty are

understandable.

“Even if evidence presented at trial could yield another

Britt v. Davey,

The Court may not reweigh the evidence, resolve

But it is not the job of this Court, and was not that

(...continued)

want to believe that Petitioner hurt the baby and that she was

trying to protect Petitioner (R.T. 355-56, 358).

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 34 of 60 Page ID #:1771

App. 41a

of the Ninth Circuit, to decide whether the State’s theory was

correct.

supported by the record.”); McDaniel v. Brown, 558 U.S. 120, 131-34

(2010) (ruling that the lower federal court erroneously relied on

inconsistencies in trial testimony to deem evidence legally

insufficient; the reviewing federal court must presume that the trier

or fact resolved all inconsistencies in favor of the prosecution, and

must defer to that resolution).

The jury decided that question, and its decision is

Sufficient Evidence Supports the Conviction for Assault on a

Child Resulting in Death.

For similar reasons, the evidence was sufficient to support

Petitioner’s conviction for assault on a child resulting in death.

“The elements of assault on a child, resulting in death, are:

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

eight; (2) assaults this child; (3) by means of force that to a

reasonable person would be likely to produce great bodily injury; (4)

resulting in the child’s death.”

4th 727, 735, 125 Cal. Rptr. 2d 618 (2002) (citations omitted); see

also Cal. Penal Code § 273ab.

Here, the first and last elements

unquestionably are satisfied.

Baby John was less than one year old

when he died and he was in Petitioner’s care.

Petitioner helped her take care of Baby John and that she left the

baby in Petitioner’s care to go to the store on the day the baby died

(R.T. 217, 244-46).

injuries Baby John received resulted in his death (R.T. 421, 423).

///

People v. Malfavon, 102 Cal. App.

Preston testified that

Additionally, as the pathologist testified, the

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App. 42a

The gravamen of the second and third elements is that the child

is assaulted with such force that a reasonable person would know of

the grave danger of serious injury.

evidence that the defendant acted ‘with awareness of facts that would

lead a reasonable person to realize that great bodily injury would

directly, naturally, and probably result from his act.’”• People v.

Wyatt (“Wyatt II”), 55 Cal. 4th 694, 702, 148 Cal. Rptr. 3d 508, 287

P.3d 78 (2012) (quoting People v. Wyatt, 48 Cal. 4th 776, 781, 108

Cal. Rptr. 3d 259, 229 P.3d 156 (2010)); see also People v. Williams,

26 Cal. 4th 779, 788, 111 Cal. Rptr. 2d 114, 29 P.3d 197 (2001).

“Consistent with its meaning in analogous statutory contexts, ‘great

bodily injury’ refers to ‘significant or substantial physical injury.

It is an injury that is greater than minor or moderate harm.’”

Wyatt II, 55 Cal. 4th at 702 (quoting CALCRIM No. 820 (listing

elements of § 273ab); citations omitted).

‘need not know or be subjectively aware that his act is capable of

causing great bodily injury,’ the requisite mens rea may be

established ‘even when the defendant honestly believes his act is not

likely to result in such injury.’”• Id. (citation omitted).

“[T]he assault . . . requires

See

“Because the defendant

Given the pathologist’s testimony concerning the amount of force

it would have taken to inflict Baby John’s injuries, a rational jury

could have found that a reasonable person would have known that great

bodily injury would directly, naturally, and probably result from the

actions that were taken to inflict the injuries.

Miller, 2013 WL 5818565, at *7 (evidence sufficient to show that a

reasonable person would recognize that great bodily injury would

likely result where the baby died of “abusive head trauma,” and expert

Compare Perodin v.

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App. 43a

testified that the “extreme force” (i.e., “the greatest force that an

adult is capable of inflicting upon that baby”) was necessary to cause

the baby’s brain injury); People v. Stewart, 77 Cal. App. 4th 785,

794-95, 91 Cal. Rptr. 2d 888 (2000) (evidence sufficient to support

Section 273ab conviction where it was opined that two year old baby

died of injuries to his brain, and expert testified that the baby died

either of violent shaking or “the cumulative effect of rapid, repeated

blows with one or two ‘tremendous’ ones,” leaving multiple bruises on

the back of the baby’s head; a reasonable person would know that such

actions would likely produce great bodily injury on a small child).

Conclusion

For the foregoing reasons, the California Court of Appeal’s

rejection of Petitioner’s challenge to the sufficiency of the evidence

was not contrary to, or an objectively unreasonable application of,

any clearly established Federal law as determined by the United States

Supreme Court.

U.S. 86, 100-02 (2011).

on Ground One of the Petition.

See 28 U.S.C. § 2254(d); Harrington v. Richter, 562

Petitioner is not entitled to habeas relief

II.

Petitioner’s State Law and Due Process Challenges to the Trial

Court’s Admission of Jane Doe’s Testimony and Prior Statements Do

Not Merit Federal Habeas Relief.

In Ground Two, Petitioner contends that the trial court erred by

assertedly:

(1) acknowledging that, at the time of trial, Jane Doe

did not recall her prior statements to investigators; and (2) failing

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App. 44a

to make the foundational findings assertedly necessary to admit Jane

Doe’s prior out-of-court statements.

Petitioner argues that the trial court’s alleged errors under state

law denied him due process and a fair trial.

See Petition, p. 8B-1.

Id.

Similarly, in Ground Three, Petitioner contends that the trial

court erred by assertedly making “basically no inquiry” into Jane

Doe’s supposedly numerous outside influences to reach a “learned

opinion” that Jane Doe’s testimony concerning what she allegedly

witnessed was based on Jane Doe’s personal observations.

Petition, p. 8C-1.

Jane Doe’s competency to testify, and that she assertedly was not

mature enough to understand the difference between a truth and a lie,

to testify that it was Petitioner and not Preston who inflicted the

fatal injuries, to testify whether the injuries where intentional or

accidental, or to testify whether Petitioner’s alleged actions were

those of a person having an intent to kill.

pp. 6-9.

See

Petitioner argues there was no evidence supporting

Id.; see also Traverse,

The California Court of Appeal reviewed Petitioner’s claims and

found no error in admitting Jane Doe’s testimony or prior statements.

See Respondent’s Lodgment 8, pp. 29-35.

Background

Prior to trial, the defense requested a hearing to determine Jane

Doe’s competency to testify under California Evidence Code section 700

///

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 38 of 60 Page ID #:1775

App. 45a

et seq. (C.T. 145-47).12

know the difference between the truth and a lie, and had not known the

difference when investigators interviewed her at age four (C.T. 146-

48).

years old, she had said the following:

The defense argued that Doe then did not

In Doe’s RCAT interview, which had occurred when Doe was four

[Interviewer]: Alright, um, so if I said you were a girl, is

that a truth or a lie?

Doe: Um, a truth

[Interviewer]: And if I said you’re a boy, is that a truth

or a lie?

Doe: A truth

[Interviewer]: So if I said you’re a boy, is that right or

wrong?

Doe: A girl . . .

[Interviewer]: So if I said you’re a girl, is that right or

wrong?

Doe: Right

[Interviewer]: And if I said um, you’re a boy, is that right

or wrong?

Doe: Wrong

[Interviewer]: Wrong . . . if I said I’m a boy, is that

right or wrong?

Section 700 provides: “[E]very person, irrespective of

age, is qualified to be a witness and no person is disqualified

to testify to any matter.” Cal. Evid. Code § 700. A person may

be disqualified as a witness if he or she is “incapable of

understanding the duty of a witness to tell the truth.” See Cal.

Evid. Code § 701(a)(2).

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 39 of 60 Page ID #:1776

App. 46a

Doe: Right

[Interviewer]:

tell the truth or to tell a lie?

Doe: A lie

Okay, right?

Okay . . . um, is it better to

(C.T. 171, 175).

After telling the interviewer that her mother had

hurt herself and died, Doe was asked by the interviewer “did anyone

else die?”

(C.T. 179, 181).

(C.T. 181).

Doe said her mother had told her that her dad had died

(C.T. 182).

The interviewer asked Doe, “Any of the kids get hurt?

What kids got hurt?” (C.T. 182).

herself, and JoJo (her brother) “jumped down and hurt himself and he

got died” (C.T. 182).

but she did not know how she hurt him (C.T. 183).

interviewer then asked about what Doe had told to Russo in her earlier

interview, Doe gave statements describing Petitioner as shaking the

baby and hurting the baby’s head by hitting it against the crib.

C.T. 183-85.

Doe said that her dad died “yesterday”

Doe said that she fell and scraped

When asked who hurt JoJo, Doe said that she did

When the

See

During the competency hearing, the trial court questioned Jane

Doe at length before finding her competent to testify (R.T. 33-45).

Doe reportedly had given a statement to the prosecutor days before

trial which appeared to be consistent with the statement she had given

when she was four years old (R.T. 28).

questioned Doe, she was able to answer the court’s questions and, with

some explanation by the court, acknowledged that it would be lying if

the court were to tell Doe that there was snow outside the building

when, in fact, there was no snow (R.T. 34-38).

When the trial court

She also stated that

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 40 of 60 Page ID #:1777

App. 47a

she would tell the truth and would say she did not know if asked a

question as to which she did not know the answer (R.T. 39-42).

court asked Doe if she remembered what happened to the baby, whether

it was something Doe saw, and whether Doe would tell the truth of what

she remembered happening to the baby (R.T. 40-4).

question, Doe replied “yes” (id.).

The court found Doe “to be sharp,”

and competent to testify (R.T. 43).

The court indicated that any

issue regarding the admissibility of Doe’s prior statements (as prior

inconsistent statements) would be addressed separately based on Doe’s

trial testimony (R.T. 30-31, 45).

The

To each such

At trial, Doe testified that she remembered that the baby “got

shooked” by Petitioner (R.T. 131).

She said that Petitioner shook the

baby because Petitioner was mad (R.T. 131).

was in the stroller next to Petitioner’s house when he was shaken

(R.T. 132).

baby “in the middle of the street” (R.T. 132-33).

reportedly was mad (R.T. 133).

the baby, but “still remember[ed] a little bit” that Petitioner shook

the baby (R.T. 133).

shook the baby (R.T. 133).

and just Doe and her mother Shannon were with Petitioner when the baby

was shaken (R.T. 134, 146).

baby was dropped in the street (R.T. 134).

Doe said that the baby

Doe said she saw Petitioner shake the baby and drop the

Again, Petitioner

Doe said she “forgot” what happened to

Doe said Preston was not present when Petitioner

She said that Preston was “in her house”

Doe said that Shannon told her that the

On cross examination, Doe said the events took place outside and

she did not see any police or hear any sirens (R.T. 140).

said that Shannon was standing next to her and her little brother was

She then

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 41 of 60 Page ID #:1778

App. 48a

sleeping in the crib when Petitioner shook the baby (R.T. 146).

Doe

said she did not remember talking to anyone concerning what happened

to the baby a couple of days after the incident, and said she did not

remember telling the person that Petitioner hit the baby on the crib

(R.T. 141-43).

saw Petitioner put the baby on the bed hard (R.T. 142).

she did not remember police officers coming to the house (R.T. 144).

Doe said she did not remember being in the room where the crib was

kept (R.T. 150).

happening in that room (R.T. 150-51).

She said she did not remember telling anyone that she

Doe also said

Doe then said she did not remember anything

The prosecution sought to introduce Doe’s RCAT interview and the

testimony of Social Worker Russo for the purposes of putting Doe’s

prior inconsistent statements before the jury.

1235 (R.T. 153-55).13

should not be played because Doe’s prior statements assertedly were

incompetent and not sufficiently corroborated, and also because

introduction assertedly would violate Petitioner’s right to confront

and cross-examine Doe (R.T. 158-59).

the statements to see if there was “some additional reliability” (R.T.

159).

See Cal. Evid. Code §

The defense argued that the RCAT interview

The trial court agreed to review

Section 1235 provides: “Evidence of a statement made by

a witness is not made inadmissible by the hearsay rule if the

statement is inconsistent with his testimony at the hearing and

is offered in compliance with Section 770.” See Cal. Evid. Code

§ 1235. Section 770 requires that evidence of a prior

inconsistent statement be excluded unless the witness is given an

opportunity to explain or deny the prior statement, or the

witness has not been excused from giving further testimony. See

Cal. Evid. Code § 770. At the end of Doe’s testimony, she was

free to leave, but was expressly subject to recall by either side

(R.T. 152).

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 42 of 60 Page ID #:1779

App. 49a

After the trial court reviewed the RCAT interview video, the

court stated its agreement with the prosecution that there is no

competency requirement for admission of a prior inconsistent statement

under California Evidence Code section 1235 (R.T. 160-61, 167-68).

The court noted that, in any event, it appeared during the interview

that Doe had a “pretty good degree of understanding” – she was able to

answer questions and was “pretty quick” to point out that it was not

JoJo who died (R.T. 168).

the court believed Doe was consistent during the interview in

describing what she said happened and that she was not influenced by

her interviewer (R.T. 168).

suggestive, and Doe appeared to have the ability to comprehend what

was asked of her (R.T. 168).

some difficulty “maybe” with the definition of a truth and a lie, the

court found that Doe had no motive to fabricate and her statements

appeared trustworthy (R.T. 169).

“indicia of reliability” and permitted the playing of the interview as

a prior inconsistent statement (R.T. 169; see also R.T. 204-07 (RCAT

investigator testimony authenticating Doe’s recorded interview and the

interview being played for the jury)).

Social Worker Russo to testify concerning what Doe had said to Russo.

See R.T. 183-86, 200-01 (Russo testifying that Doe had said that the

baby would not stop crying, Petitioner was mad, and Petitioner hurt

the baby; to Russo, Doe did not mention a crib, say anything happened

to the baby outside, say that the baby was dropped, or say that

Shannon was present).

///

Based on the totality of Doe’s statements,

The interviewer’s questions were not

While it appeared that Doe may have had

Accordingly, the court found

The trial court also permitted

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App. 50a

Analysis

To the extent Petitioner argues merely that the trial court’s

evidentiary rulings violated state law, habeas relief is unavailable.

See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“it is only

noncompliance with federal law that renders a State’s criminal

judgment susceptible to collateral attack in the federal courts”)

(original emphasis); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(mere errors in the application of state law are not cognizable on

federal habeas review).

witness is competent to testify is a matter of state law and does not

raise a cognizable federal question.

482 U.S. 730, 742 n.12 (1987) (per curiam) (noting that some states

explicitly allow children to testify without requiring a prior

competency qualification, while others provide that all persons,

including children, are deemed competent unless otherwise limited by

statute; citations omitted).

Generally, the decision regarding whether a

See, e.g., Kentucky v. Stincer,

The California Court of Appeal’s ruling that the trial court did

not violate state law in finding Doe competent to testify or in

admitting Doe’s prior statements is binding on this federal habeas

court.

have repeatedly held that it is not the province of a federal habeas

court to reexamine state-court determinations on state-law questions”)

(citation and internal quotations omitted); Bradshaw v. Richey, 546

U.S. 74, 76 (2005) (“we have repeatedly held that a state’s

interpretation of state law, including one announced on direct appeal,

binds a federal court sitting in habeas corpus”); Mullaney v. Wilbur,

See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“we

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App. 51a

421 U.S. 684, 691 (1975) (“state courts are the ultimate expositors of

state law”).14

The United States Supreme Court has indicated that evidence which

“is so extremely unfair that its admission violates fundamental

conceptions of justice” may violate due process.

United States, 493 U.S. 342, 352 (1990) (internal quotations and

citation omitted).

admission of evidence of the type challenged in the present case

violates due process.

Court law, the state courts’ rejection of Petitioner’s due process

claims raised in Grounds Two and Three cannot merit federal habeas

relief.

Cal. Sept. 8, 2014), adopted, 2014 WL 6065942 (C.D. Cal. Nov. 13,

2014) (rejecting similar claim in the absence of clearly established

federal law).15

See Dowling v.

However, the Supreme Court has never held that the

In the absence of clearly established Supreme

See, e.g., Morrison v. Beard, 2014 WL 6065939, at *7-8 (C.D.

Petitioner does not contend, and the record does not

show, that this is the “highly unusual case” in which a state

court’s interpretation of state law was “clearly untenable and a

subterfuge to avoid federal review of a constitutional

violation.” See Butler v. Curry, 528 F.3d 624, 642 (9th Cir.),

cert. denied, 555 U.S. 1089 (2008) (citations and internal

quotations omitted).

The Court also observes that in Walters v. McCormick,

122 F.3d 1172 (9th Cir. 1997), cert. denied, 523 U.S. 1060

(1998), a pre-AEDPA decision, the Ninth Circuit rejected a

similar due process claim based on the admission of a child’s

testimony. See Walters v. McCormick, 122 F.3d at 1176-77

(citing, inter alia, Kentucky v. Stincer, 482 U.S. at 745-47

(assuming due process right for defendant to be present at a

child competency hearing “to the extent that a fair and just

hearing would be thwarted by his absence,” but finding no

violation on the record; citation omitted)); cf. Wheeler v.

(continued...)

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 45 of 60 Page ID #:1782

App. 52a

For the foregoing reasons, the California Court of Appeal’s

rejection of Petitioner’s challenges to the trial court’s admission of

Jane Doe’s testimony and prior statements was not contrary to, or an

objectively unreasonable application of, any clearly established

Federal law as determined by the United States Supreme Court.

U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-02 (2011).

Petitioner is not entitled to habeas relief on Grounds Two or Three of

the Petition.

See 28

III. Petitioner’s Unexhausted Confrontation Clause Claim Does Not

Merit Federal Habeas Relief.

Petitioner raises in his Traverse an unexhausted claim that the

trial court’s admission of Jane Doe’s prior statements violated the

Confrontation Clause.

testified at trial in 2011, her supposed lack of memory of having been

interviewed in 2008 rendered her “unavailable” for cross examination.

Petitioner alleges that, even though Jane Doe

(...continued)

United States, 159 U.S. 523, 524-25 (1895) (“[T]here is no

precise age which determines the question of competency. This

depends on the capacity and intelligence of the child, his

appreciation of the difference between truth and falsehood, as

well as of his duty to tell the former. The decision of this

question rests primarily with the trial judge, who sees the

proposed witness, notices his manner, his apparent possession or

lack of intelligence, and may resort to any examination which

will tend to disclose his capacity and intelligence, as well as

his understanding of the obligations of an oath.”). According to

the Ninth Circuit, all that due process requires is “a reasonable

exploration of all the facts and circumstances concerning

competency.” Walters v. McCormick, 122 F.3d at 1176 (internal

quotation marks and citation omitted). As detailed above, the

trial court held such a hearing on Doe’s competency. The court

questioned Doe at length and found her competent to testify, with

Doe acknowledging her duty to tell the truth.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 46 of 60 Page ID #:1783

App. 53a

See Traverse, pp. 2-6 (citing, inter alia, Crawford v. Washington, 541

U.S. 36 (2003) (“Crawford”)).

claim is not “colorable,” so the Court should deny the claim on the

merits.

cert. denied, 546 U.S. 1172 (2006) (habeas court may deny on the

merits an unexhausted claim that is not “colorable”).

For the reasons discussed below, this

See Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005),

Contrary to Petitioner’s argument, there was no Crawford

violation.

The Confrontation Clause of the Sixth Amendment guarantees

a criminal defendant the right “to be confronted with the witnesses

against him.”

“means more than being allowed to confront the witness physically.”

Davis v. Alaska, 415 U.S. 308, 315 (1974).

essential purpose of confrontation is to secure for the opponent the

opportunity for cross-examination.”

marks and citation omitted); accord Melendez-Diaz v. Massachusetts,

557 U.S. 305, 309 (2009) (“[The Confrontation Clause] guarantees a

defendant’s right to confront those ‘who bear testimony’ against

him.”) (quoting Crawford, 541 U.S. at 51).

U.S. Const. amend. VI.

The right of confrontation

Rather, “[t]he main and

Id. at 315-16 (internal quotation

“[W]hen the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of [her]

prior testimonial statements.”

California v. Green, 399 U.S. 149, 158 (1970) (defendant’s

confrontation rights not violated by admitting a declarant’s

out-of-court statement “as long as the declarant is testifying as a

witness and subject to full and effective cross examination”).

Jane Doe testified at trial and was available to “defend or explain”

Crawford, 541 U.S. at 59 n.9; see also

Here,

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 47 of 60 Page ID #:1784

App. 54a

her prior statements.

Crawford, 541 U.S. at 59 n.9.

Consequently,

there can be no colorable claim that the admission of Doe’s prior

statements violated the Sixth Amendment.

bar admission of a statement so long as the declarant is present at

trial to defend or explain it.").

Id. (“The Clause does not

The possibility that Doe really did not remember being

interviewed in 2008 does not alter this conclusion.

Doe’s professed

inability to recall the circumstances of her interview or what she

told the interviewers did not deny Petitioner the opportunity to

cross-examine Doe.

opportunity for effective cross-examination, not cross-examination

that is effective in whatever way, and to whatever extent the defense

might wish.’”

(“Owens”) (quoting Kentucky v. Stincer, 482 U.S. at 739 (internal

quotation marks omitted)).

“violated by admission of an identification statement of a witness who

is unable, because of his memory loss, to testify concerning the basis

for the identification.”

App’x 997, 998 (9th Cir. 2011) (“On several occasions the [United

States] Supreme Court has upheld the introduction of the prior

inconsistent statement[s] of witnesses who claimed at trial not to

remember the relevant events”); Gilliam v. Marshall, 2011 WL 4543047,

at *8 (C.D. Cal. March 29, 2011), adopted, 2011 WL 2682641 (C.D. Cal.

July 7, 2011) (“Neither the Supreme Court nor the Ninth Circuit have

recognized memory loss or ‘feigned memory loss’ as cognizable bases

for a Confrontation Clause claim”).

present at trial and subject to unrestricted cross-examination, “the

“The Confrontation Clause guarantees only ‘an

United States v. Owens, 484 U.S. 554, 559 (1987)

Thus, the Confrontation Clause is not

Id. at 564; see Beltran v. Runnels, 409 Fed.

When a hearsay declarant is

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 48 of 60 Page ID #:1785

App. 55a

traditional protections of the oath, cross-examination, and

opportunity for the jury to observe the witness’ demeanor satisfy the

constitutional requirements.”

399 U.S. at 158-61).

Id. at 560 (citing California v. Green,

Here, as in Owens, the trial court provided Petitioner an

opportunity for effective cross-examination.

The trial court placed

no limits on the scope or duration of cross-examination.

testified under oath, and the jury was able to observe her demeanor in

assessing her credibility.

confronted challenges in questioning Jane Doe, such challenges did not

approach the deprivation of an opportunity for effective cross-

examination.

on the day the baby died, who was present, and what she had told

police.

facts from which jurors, as the sole triers of fact and credibility,

could appropriately draw inferences relating to the reliability of the

witness.”

for effective cross-examination was considerably greater than that in

Owens, where the witness’s memory impairment left virtually no

possibility that the defense could cross examine the witness

effectively concerning the attack or his identification of the

defendant.

baby was hurt and that it was Petitioner who hurt the baby.

details and discrepancies between her testimony and her prior

statements went to the weight of Doe’s testimony, not the

///

Jane Doe

While defense counsel undoubtedly

Defense counsel questioned Doe concerning what happened

Petitioner had ample opportunity “to expose to the jury the

Davis v. Alaska, 415 U.S. at 318.

Petitioner’s opportunity

In Petitioner’s case, Jane Doe claimed a memory that the

The

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App. 56a

constitutionality of its admission.16

For the foregoing reasons, Petitioner is not entitled to federal

habeas relief on his Confrontation Clause claim.

IV.

Petitioner’s Jury Instruction Claims Do Not Merit Federal Habeas

Relief.

In Ground Four, Petitioner contends that the trial court erred by

failing sua sponte to give the jury:

(1) instructions regarding the

lesser included offense of manslaughter, and (2) a corpus delecti

instruction (Petition, p. 8D-1; Traverse, p. 8; see also Respondent’s

Lodgment 5, pp. 8-23 (raising same contentions with the California

Court of Appeal)).

relief.

Neither of these contentions merits federal habeas

The Trial Court’s Failure to Give Lesser Included Offense

Instructions Does Not Merit Federal Habeas Relief.

In regard to Count 1, the trial court offered to instruct on the

lesser included offense of voluntary manslaughter (R.T. 522).

However, defense counsel said that the defense would not be asking for

Petitioner’s counsel examined Doe concerning the

version of the events that she gave at trial and argued

extensively how that version supposedly fit with the defense

theory that what Doe claimed to have seen may have been

Petitioner trying to give the baby CPR. As for Doe’s former

statements, Petitioner’s counsel challenged the statements’

reliability by pointing out the number of times Doe made

apparently inaccurate statements during her interview.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 50 of 60 Page ID #:1787

App. 57a

any lesser included offense instructions other than second degree

murder (R.T. 522).

See R.T. 542-46, C.T. 370-75.17

The trial court instructed the jury accordingly.

The United States Supreme Court expressly has declined to rule

whether relief is available for a trial court’s failure to instruct on

a lesser included offense in a noncapital case.

447 U.S. 625, 638 n.14 (1980); Powell v. Hatcher, 407 Fed. App'x 226,

227 (9th Cir.), cert. denied, 563 U.S. 998 (2011) (denying habeas

relief, noting that in Beck the Supreme Court expressly declined to

rule on the issue); Huynh v. Hernandez, 2007 WL 186307, at *1 (9th

Cir. Jan. 22, 2007) (failure to instruct on lesser offense of

involuntary manslaughter did not merit habeas relief; “there is no

‘clearly established’ Supreme Court law that requires giving a

lesser-included offense instruction in a non-capital case”) (citations

omitted); see also Dansby v. Trombley, 369 Fed. App'x 657, 660 (6th

Cir. 2010) (“the Supreme Court has never held that due process

requires the giving of jury instructions on lesser-included offenses

in noncapital cases”).

See Beck v. Alabama,

Under Ninth Circuit law, “the failure of a state trial court to

instruct on a lesser included offense in a non-capital case does not

present a federal constitutional question.”

F.3d 1092, 1106 (9th Cir. 1998); accord Koering v. Gonzalez, 516 Fed.

Windham v. Merkle, 163

The defense evidently made the tactical decision to

pursue an all-or-nothing strategy, forcing the jury to choose

between convicting Petitioner of murder and acquitting Petitioner

of any criminal wrongdoing. As discussed herein, the defense

argued that it was Preston, not Petitioner, who killed the baby.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 51 of 60 Page ID #:1788

App. 58a

App’x 665, 666 (9th Cir.), cert. denied, 134 S. Ct. 287 (2013); Powell

v. Hatcher, 407 Fed. App’x at 227.

that the trial court erred in failing sua sponte to instruct the jury

on the lesser included offense of voluntary manslaughter does not

raise an issue cognizable on federal habeas review.18

Accordingly, Petitioner’s claim

The Trial Court’s Failure to Give a Corpus Delecti

Instruction Does Not Merit Federal Habeas Relief.

Petitioner contends that the trial court had a sua sponte duty to

instruct the jury with a corpus delecti instruction, which provides:

The defendant may not be convicted of any crime based on

(his/her) out-of-court statement[s] alone.

the defendant’s out-of-court statements to convict (him/her)

only if you first conclude that other evidence shows that

the charged crime [or a lesser included offense] was

committed.

only be enough to support a reasonable inference that a

crime was committed.

You may rely on

¶ That other evidence may be slight and need

See CALCRIM No. 359; see also CALJIC 2.72 (“No person may be convicted

Under some circumstances, a defendant may be entitled

to a lesser included offense instruction when required as part of

the defendant’s theory of defense. See Mathews v. United States,

485 U.S. 58, 63 (1988); Bashor v. Risley, 730 F.2d 1228, 1240

(9th Cir.), cert. denied, 469 U.S. 838 (1984). Petitioner’s

theory of defense, however, was that Preston killed Baby John.

This theory of defense plainly did not require an instruction on

voluntary manslaughter.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 52 of 60 Page ID #:1789

App. 59a

of a criminal offense unless there is some proof of each element of

the crime independent of any [confession] [or] [admission] made by

[him] outside of this trial. . . .”).

The California Court of Appeal found “ample” evidence to support

Petitioner’s conviction, quite apart from Petitioner’s extrajudicial

statements.

Doe’s trial testimony and prior statements.

found that any error from failing to give a corpus delecti instruction

was harmless.

This evidence included Dr. Gleckman’s testimony and Jane

The Court of Appeal also

“[I]nstructions that contain errors of state law may not form the

basis for federal habeas relief.”

Gilmore v. Taylor, 508 U.S. 333,

342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991)

(“the fact that the instruction was allegedly incorrect under state

law is not a basis for habeas relief”); Dunckhurst v. Deeds, 859 F.2d

110, 114 (9th Cir. 1988) (instructional error “does not alone raise a

ground cognizable in a federal habeas corpus proceeding”).

federal habeas petitioner challenges the validity of a state jury

instruction, the issue is “whether the ailing instruction by itself so

infected the entire trial that the resulting conviction violates due

process.”

F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006).

court must evaluate the alleged instructional error in light of the

overall charge to the jury.

(2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v.

Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S.

1079 (1998).

When a

Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450

The

Middleton v. McNeil, 541 U.S. 433, 437

“The relevant inquiry is ‘whether there is a reasonable

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App. 60a

likelihood that the jury has applied the challenged instruction’ in an

unconstitutional manner.”

1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v.

California, 494 U.S. 370, 380 (1990)).

give an instruction, a habeas petitioner faces an “especially heavy”

burden.

Houston v. Roe, 177 F.3d 901, 909 (9th Cir.

In challenging the failure to

Henderson v. Kibbe, 431 U.S. at 155.

Here, the trial court instructed the jury regarding the elements

of each of the charged crimes and the prosecution’s burden of proof.

See C.T. 366, 370-78 (instructions).

and of the evidence adduced at trial, the trial court’s omission of a

corpus delecti instruction did not “so infect the entire trial that

the resulting conviction violate[d] due process.”

the jury need not have relied on Petitioner’s statements to find him

guilty.

with Baby John before he died.

Petitioner hurt the baby.

nature of the baby’s injuries were such that only an adult could have

inflicted them.

In light of these instructions

As discussed above,

Preston testified that Petitioner was the last person to be

Jane Doe testified that she saw

And the pathologist testified that the

Conclusion

For the foregoing reasons, the California Court of Appeal’s

rejection of Petitioner’s instructional error claims was not contrary

to, or an objectively unreasonable application of, any clearly

established Federal law as determined by the United States Supreme

Court.

100-02 (2011).

See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86,

Petitioner is not entitled to habeas relief on Ground

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 54 of 60 Page ID #:1791

App. 61a

Four of the Petition.

Petitioner’s Claim of Cumulative Error Does Not Merit Federal

Habeas Relief.

In Ground Five, Petitioner contends that the “cumulative” effect

of the errors alleged in Grounds One through Four prejudiced him.

Petition, p. 8E-1; Traverse, pp. 9-10.

error claim in his Supplemental Opening Brief and Reply Brief filed

with the California Court of Appeal, and in his Petition for Review

filed with the California Supreme Court.

pp. 23-24; Respondent’s Lodgment 7, p. 26; Respondent’s Lodgment 11,

p. 40.

cumulative error claim (Respondent’s Lodgment 8), and the California

Supreme Court summarily denied review (Respondent’s Lodgment 12).

Court therefore has considered what arguments or theories could have

supported the state court decisions, and has asked whether fairminded

jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior United States Supreme Court

decision.

Petitioner’s cumulative error claim fails under this standard.

Harrington v. Richter, 562 U.S. at 103.

could have found that there were no constitutional errors to cumulate.

Petitioner raised a cumulative

See Respondent’s Lodgment 5,

The Court of Appeal’s reasoned decision did not mention the

The

Cullen v. Pinholster, 563 U.S. 170, 188 (2011).

See

The state courts reasonably

See

Moreover, “[w]hile the combined effect of multiple errors may

violate due process even when no single error amounts to a

constitutional violation or requires reversal, habeas relief is

warranted only where the errors infect a trial with unfairness.”

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 55 of 60 Page ID #:1792

App. 62a

Payton v. Cullen, 658 F.3d 890, 896-97 (9th Cir. 2011), cert. denied,

133 S. Ct. 426 (2012).

is appropriate when there is a “‘unique symmetry’ of otherwise

harmless errors, such that they amplify each other in relation to a

key contested issue in the case.”

1001 (9th Cir. 2011), cert. denied, 133 S. Ct. 424 (2012) (citation

omitted).

Accordingly, the state court’s rejection of Petitioner’s cumulative

error claim was not contrary to, or an objectively unreasonable

application of, any clearly established Federal Law as determined by

the Supreme Court of the United States.

Harrington v. Richter, 562 U.S. at 100-03.

to federal habeas relief on Ground Five of the Petition.19

///

Habeas relief on a theory of cumulative error

Ybarra v. McDaniel, 656 F.3d 984,

Here, no such symmetry of otherwise harmless errors exists.

See 28 U.S.C. § 2254(d);

Petitioner is not entitled

Petitioner’s cumulative error claim would also fail

under a de novo standard of review.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 56 of 60 Page ID #:1793

App. 63a

RECOMMENDATION20

For the foregoing reasons, IT IS RECOMMENDED that the Court issue

an Order: (1) accepting and adopting this Report and Recommendation;

and (2) denying and dismissing the Petition with prejudice.

DATED:

February 29, 2016.

/S/

CHARLES F. EICK

UNITED STATES MAGISTRATE JUDGE

In light of this recommended disposition, Petitioner’s

request for an evidentiary hearing is denied. Except with

respect to the unexhausted and non-colorable Crawford claim, the

state court adjudicated Petitioner’s claims on the merits and

such adjudication was not “unreasonable” under section 2254(d).

As to these claims, habeas relief is unavailable regardless of

the nature of any additional evidence Petitioner might present in

federal court. See Cullen v. Pinholster, 563 U.S. at 185 (“if a

claim has been adjudicated on the merits by a state court, a

federal habeas petitioner must overcome the limitation of §

2254(d)(1) on the record that was before the state court,” even

where the state court denied the petition summarily) (footnote

omitted); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir.

2013), cert. denied, 134 S. Ct. 2823 (2014) (Pinholster’s

preclusion of a federal evidentiary hearing applies to section

2254(d)(2) claims as well as to section 2254(d)(1) claims).

Moreover, Petitioner has failed to demonstrate that an

evidentiary hearing would reveal anything material to any of the

claims adjudicated herein, including the Crawford claim.

Finally, Petitioner’s renewed request for appointment of

counsel also is denied. See Knaubert v. Goldsmith, 791 F.2d 722,

728-30 (9th Cir.), cert. denied, 479 U.S. 867 (1986).

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 57 of 60 Page ID #:1794

App. 64a

NOTICE

Reports and Recommendations are not appealable to the Court of

Appeals, but may be subject to the right of any party to file

objections as provided in the Local Rules Governing the Duties of

Magistrate Judges and review by the District Judge whose initials

appear in the docket number.

No notice of appeal pursuant to the

Federal Rules of Appellate Procedure should be filed until entry of

the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the

District Judge will, at the same time, issue or deny a certificate of

appealability.

Within twenty (20) days of the filing of this Report

and Recommendation, the parties may file written arguments regarding

whether a certificate of appealability should issue.

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 58 of 60 Page ID #:1795

App. 65a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DANNIE JOE FARNUM,

) NO. ED CV 15-2078-GW(E)

)

Petitioner,

)

ORDER ACCEPTING FINDINGS,

)

CONCLUSIONS AND RECOMMENDATIONS

JEFFERY BEARD, SEC CDCR,

)

OF UNITED STATES MAGISTRATE JUDGE

)

Respondent.

)

______________________________)

Pursuant to 28 U.S.C. section 636, the Court has reviewed the

Petition, all of the records herein and the attached Report and

Recommendation of United States Magistrate Judge.

has engaged in a de novo review of those portions of the Report and

Recommendation to which any objections have been made.

accepts and adopts the Magistrate Judge’s Report and Recommendation.

Further, the Court

The Court

IT IS ORDERED that Judgment be entered denying and dismissing

the Petition with prejudice.

///

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 59 of 60 Page ID #:1796

App. 66a

IT IS FURTHER ORDERED that the Clerk serve copies of this Order,

the Magistrate Judge’s Report and Recommendation and the Judgment

herein on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED:

_____________________________, 2016.

_____________________________________

GEORGE H. WU

UNITED STATES DISTRICT JUDGE

Case 5:15-cv-02078-GW-E Document 21 Filed 02/29/16 Page 60 of 60 Page ID #:1797

App. 67a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DANNIE JOE FARNUM,

) NO. ED CV 15-2078-GW(E)

)

Petitioner,

)

JUDGMENT

)

JEFFERY BEARD, SEC CDCR,

)

Respondent.

)

______________________________)

Pursuant to the Order Accepting Findings, Conclusions and

Recommendations of United States Magistrate Judge,

IT IS ADJUDGED that the Petition is denied and dismissed with

prejudice.

DATED:

____________________________, 2016.

_____________________________________

GEORGE H. WU

UNITED STATES DISTRICT JUDGE

Appendix D

Case: 16-56719, 07/02/2019, ID: 11351739, DktEntry: 54, Page 1 of 1

App. 68a

FILED

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANNIE JOE FARNUM,

No.

Petitioner-Appellant,

JUL 2 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

16-56719

D.C. No. 5:15-cv-02078-GW-E

Central District of California,

Riverside

SCOTT FRAUENHEIM, Warden,

ORDER

Respondent-Appellee.

Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,* District

Judge.

The panel has voted to deny the Petition for Rehearing. Judges Rawlinson

and Murguia voted, and Judge Rakoff recommended, to deny the Petition for

Rehearing En Banc.

The full court has been advised of the Petition for Rehearing En Banc, and

no judge of the court has requested a vote.

Petitioner-Appellant’s Petition for Rehearing and Rehearing En Banc, filed

June 6, 2019, is DENIED.

The Honorable Jed S. Rakoff, United States District Judge for the

Southern District of New York, sitting by designation.

Appendix D

Appendix E

Case 5:15-cv-02078-GW-E Document 14-12 Filed 10/29/15 Page 1 of 42 Page ID #:1535

App. 69a

Filed 1/28/15

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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

or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

D066353

Plaintiff and Respondent,

(Super. Ct. No. SWF027707)

DANNIE JOE FARNUM,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside, Albert J. Wojcik,

Judge. Affirmed.

Carl Fabian, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Angela M. Borzachillo and Peter

Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

Appendix E

Case 5:15-cv-02078-GW-E Document 14-12 Filed 10/29/15 Page 2 of 42 Page ID #:1536

App. 70a

A jury found defendant and appellant Dannie Joe Farnum guilty of second degree

murder of Baby John Doe (Pen. Code,1 § 187, subd. (a); count 1) and of inflicting injury

on a child under eight years of age causing death (§ 273ab; count 2). The court sentenced

Farnum to state prison for the indeterminate term of 25 years to life on count 2 and

stayed, under section 654, subdivision (a), his sentence for the indeterminate term of 15

years to life on count 1.

On appeal, Farnum contends the prosecutor allegedly admitted during closing

argument that witness Jane Doe (Doe), Farnum's daughter, was incompetent in November

2008 due to her age and, thus, her then statements to authorities—that she saw her dad

shake the baby and hurt the baby's head because the baby would not stop crying—should

have been excluded from evidence. Farnum further contends the September 2011 trial

testimony of Doe also should have been excluded because the prosecutor, again in

closing, allegedly disavowed that testimony by arguing Doe's birth mother allegedly

influenced Doe. Without the November 2008 statements or the September 2011 trial

testimony, Farnum contends the evidence remaining against him is legally insufficient to

support his conviction.

Farnum alternatively contends the court erred both in admitting under Evidence

Code section 1235 Doe's November 2008 statements and in failing to satisfy its threshold

duty to ensure Doe was then competent when she made those statements. Finally, he

contends reversal is required because the court erred by failing to instruct the jury sua

Unless otherwise noted, all further statutory references are to the Penal Code.

Case 5:15-cv-02078-GW-E Document 14-12 Filed 10/29/15 Page 3 of 42 Page ID #:1537

App. 71a

sponte on (1) causation, (2) the lesser included offense of involuntary manslaughter, and

(3) the corpus delicti rule. Affirmed.

FACTUAL AND PROCEDURAL BACKGROUND2

Delice Preston testified she gave birth to Baby John Doe (sometimes, Baby John

or baby) in mid-March 2008. Baby John was healthy at birth. Baby John's father was

Johnny, Preston's common law husband of 15 years. Preston and Johnny also had a son

together, Ricky, and Preston had a daughter, Kelly, from another relationship. Johnny

unexpectedly died in May 2008.

In or about August 2008, Preston and Farnum met and began dating. Preston often

took Baby John when she visited Farnum. Over time, Preston grew to trust Farnum in

helping to care for Baby John when they were together.

Preston testified she had no plans to marry Farnum and had begun to question their

relationship because she believed Farnum was cheating on her and was taking advantage

of her financially. Farnum had little money and often borrowed Preston's car for days at

a time. Preston testified she continued in the relationship with Farnum because at that

time she "needed somebody" both "emotionally" and "physically."

According to Preston, in late October 2008 Baby John developed a medical

condition called "infantigo" that led to a rash on his face, arms and buttocks. Because of

the rash, Baby John was fussy. Baby John was also fussy because he was constipated and

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

Osband (1996) 13 Cal.4th 622, 690.) Portions of the factual and procedural history

related to certain of Farnum's contentions are discussed post.

Case 5:15-cv-02078-GW-E Document 14-12 Filed 10/29/15 Page 4 of 42 Page ID #:1538

App. 72a

teething. Preston comforted Baby John by holding him, using a warm washcloth to clean

the "crusty stuff" near his eyes and putting antibiotic cream on a sore near his ear.

Preston testified she was using marijuana and methamphetamine during this period

of time. The night before Baby John died, Preston and Farnum together used

methamphetamine. The following day, November 10, 2008, Preston got up about 6:00

a.m. and fed Baby John. Farnum and his two children from another relationship—Doe,

then aged four, and JoJo, his son, then aged two—had stayed over with Farnum at

Preston's home. After lunch, Preston gave Baby John a bottle and put him down for a

nap.

Later that afternoon, Preston left Baby John in Farnum's care when she went to

buy groceries for dinner after Farnum refused to go. When she left, Baby John was a

little fussy but according to Preston, was nonetheless fine, and Farnum was in the process

of giving him a bottle and putting him down for another nap. Before leaving, Preston

gave Baby John pain medication for teething and some medication for "gas."

Preston recalled her car's clock read 4:22 p.m. when she left for the store, which

was located less than five miles from her home. She was at the store for about 20 to 25

minutes. When she returned, Preston put the groceries away and then went into the

bedroom where Farnum was watching television. Farnum seemed slightly agitated.

Preston glanced over and saw Baby John in the crib on his stomach. Baby John was

covered by two blankets and appeared to be sleeping.

While cooking dinner, Preston heard Farnum yell from the bedroom that the baby

was not breathing. Preston ran to the bedroom and saw Farnum giving Baby John CPR.

Farnum laid Baby John on the bed, started massaging Baby's John chest, pinched the

Case 5:15-cv-02078-GW-E Document 14-12 Filed 10/29/15 Page 5 of 42 Page ID #:1539

App. 73a

baby's nose and started breathing into his mouth. Panicked, Preston asked Farnum what

had happened. Farnum in response said nothing. Farnum dialed 911. Preston ran

outside and began screaming for help from her step children, Chris Gonzalez and Johnny

Gonzalez, who lived on the same property, a short distance away.

Johnny Gonzalez came to help out. When he saw Farnum giving Baby John CPR,

Johnny pushed Farnum aside and began giving the baby CPR. Preston told Johnny to

stop because she believed he was being too violent with the baby. Although

inexperienced, Preston also tried to give the baby CPR. About 20 minutes after 911 had

been called, emergency personnel arrived.

Cal Fire Paramedic Greg Murphy testified he responded to the 911 call involving

Baby John. Because the area where Preston and Baby John were living was very rural,

Murphy said it took a while to locate the home. When Murphy arrived about 5:30 p.m., a

man later identified as Farnum came running outside to meet Murphy. The man was

holding a baby, later identified as Baby John. The man was attempting to perform CPR

while carrying the baby.

Murphy directed the man to take the baby back inside the home. Once inside, the

man began asking Murphy a lot of questions. Murphy subsequently noted in his report

that he found the man nervous, but not frantic, and found it odd the man was both

"extremely inquisitive" regarding the baby and unwilling to leave the baby alone with

paramedics.

Murphy examined the baby and found him lifeless. The baby's pupils were dilated

and fixed, his core was semi-warm and his extremities were cold to the touch. The

monitor showed the baby had no heartbeat.

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App. 74a

On questioning, the man told Murphy that about 40 minutes before 911 had been

called, he fed the baby and then laid the baby down to sleep. About 10 minutes later, the

man checked on the baby and found the baby facedown, wrapped in blankets and not

breathing. The man also told Murphy the baby had been teething and had conjunctivitis

of the eye. Once inside the well-lit ambulance, Murphy testified that he saw periorbital

bruising around the baby's right eye, which was indicative of head trauma.

Farnum drove Preston to the hospital where Baby John had been transported. On

the way, Preston asked Farnum, "What happened? Why wasn't he [i.e., Baby John]

breathing?" Farnum responded he did not know. Once at the hospital, Preston was

informed that Baby John had died, possibility of "SIDS" (i.e., sudden infant death

syndrome).

Farnum later told Preston he was fearful he would be blamed for Baby John's

death because Farnum had been in the bedroom when the child stopped breathing.

Farnum also told Preston the child's face was "in the mattress" when Farnum discovered

the child not breathing.

A few days later, Preston and her daughter were in the car with Farnum when

Preston's daughter brought up the issue of "shaking a baby." During that conversation,

Farnum seemed surprised that a child could die from being shaken.

Preston testified that initially she believed Farnum's children may have harmed

Baby John because Farnum told her "one of his kids had maybe hit [Baby John] or maybe

pushed him or something." Specifically, Farnum told Preston "that there was a Mag

flashlight, the big ones that the police carry. They [i.e., his children] were using it as a

light saber and swinging it around and stuff. And one of them may have hit him [i.e.,

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App. 75a

Baby John]." However, Preston also testified that when she returned from buying

groceries at the store, Farnum then had said nothing about Baby John being accidently hit

by Farnum's children, including with a flashlight.

A few days after Baby John's death, the police contacted Preston and asked her to

come to the station for an interview. The police previously had interviewed Preston on

the night Baby John died, but she testified she could not recall much of that interview

because she was then "high."

Before the interview at the police station, Preston testified she was aware that

Farnum's daughter, Doe, had already spoken to a social worker about Farnum harming

Baby John. At that time, Preston did not want to believe that Farnum was potentially

responsible for the baby's death. Preston told police during the interview at the station

that she did not believe Farnum would hurt Baby John and that she never saw Farnum

strike his own children. At trial, Preston testified she was not then truthful because she

wanted to protect Farnum. In fact, Preston had seen Farnum "hit" and "flick" his own

children.

After police discussed the results of Baby's John's autopsy with Preston, she

recalled Farnum had told her that earlier on the day Baby John died, he saw the baby fall

out the sliding glass door in Preston's home and bump his head. Preston also recalled

during the interview that Farnum also had told her that on the day Baby John died,

Farnum saw the baby fall and hit his head on a toy while standing in his crib.

The autopsy showed Baby John died of "blunt force trauma to his head." The

police told Preston during the interview that Baby John's head trauma could not have

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App. 76a

been caused from Baby John falling and hitting his head or from a blow by a two- or

four-year-old child, such as Doe or JoJo, as Farnum theorized.

Detective Randall Wortman testified he was assigned to investigate the death of

Baby John after the autopsy concluded the cause of death was blunt force trauma and was

ruled a homicide. Detective Wortman contacted Preston and asked her to come down to

the station. Before Detective Wortman told Preston the cause of death, he questioned

Preston. During the questioning, Preston said that Farnum did not want to be blamed for

the death even though it "looked bad" and Farnum was the "last one with the baby."3 At

the same time police were interviewing Preston, they were interviewing Farnum in a

separate room of the station.

When asked how Baby John died, Preston initially told Detective Wortman the

baby likely suffocated because Farnum had reported finding the baby face down on the

mattress. Preston also told police during the interview, "No, he [i.e., Farnum] said or we

said together that we found or he found the baby face[]down in his mat -- in his crib

mattress." Detective Wortman noted that, when Preston made this statement during the

interview, she was referring to "speaking with the paramedics and the initial law

enforcement the night it happened."

Preston also told Detective Wortman, "He [i.e., Farnum] told me that if we talked

to the cops or whatever that he most likely was going to be the one blamed for this. He

didn't tell me what he did. He didn't tell me what had happened." Preston told the police

The record shows Preston testified she could not remember making this and other

statements to police during the stationhouse interview.

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App. 77a

that Farnum confided in her that he likely would be charged with manslaughter or murder

as a result of the baby's death.

Detective Wortman was present when Detective Steven Fredericks asked Preston,

"Okay. After you had an initial conversation with [Farnum] about how you guys were

gonna get your stories straight so that he wouldn't get blamed, did you have any second

guesses in your mind about that? Did you have any thoughts in your head that this is the

wrong thing to do?" According to Detective Wortman, Preston said, "Yes." Preston also

told the detectives that Farnum had a "short fuse" with his children and that she saw

Farnum "flick them on the forehead."

Initially, Preston told the detectives that she saw Baby John alive when she got

back from buying groceries. However, as the interview continued, she changed her story

and said that she put the groceries away and began making dinner after she got home

from the store. Preston told the detectives that Farnum had told her that, earlier on the

day Baby John died, Farnum saw the baby fall and hit his head on the sliding glass door

in Preston's home. Preston also disclosed that Farnum had said he saw Baby John that

same day hit his head on a toy after falling inside the crib. Finally, Preston disclosed that

Farnum reported he might have tripped over some steps when he took Baby John outside

to meet the paramedics, and that is how the baby sustained the head trauma.

Detective Wortman testified Preston became "extremely visibly shaken up and

upset" after they discussed the results of Baby John's autopsy. The detectives told

Preston that Baby John's death was not accidental and that the baby died of blunt force

head trauma.

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App. 78a

Detective Wortman testified they next put Preston and Farnum in a room together

and recorded their conversation, which was played for the jury. The transcript of their

conversation shows Preston immediately confronted Farnum and asked what happened to

Baby John, because, according to Preston, the pictures from the autopsy showed Baby

John's brain covered in blood. Preston told Farnum the police theorized that Baby John

died as a result of being shaken or being hit on the head with an object.

The record shows Farnum then denied any wrongdoing, stating the only time he

touched the baby while Preston was at the store was to give the baby a bottle. Farnum

also stated that he had not been in the room with Baby John when Preston was at the store

and that when Preston returned from the store, she went to the bedroom where the baby

was sleeping and saw the baby was "okay." The record shows Preston did not agree that

the baby was "okay" when she returned from the store, as Farnum suggested, and that she

instead responded, "What happened?" The record also shows they discussed certain

events that may have occurred earlier on the day Baby John died that led to his death,

including, as noted, Farnum's report of seeing the baby fall back and hit his head on a toy;

and Farnum's additional report that his son JoJo was playing with a Mag flashlight and

swinging it around like a "light saber" shortly before the baby died.

With regard to the flashlight, Preston told Farnum his son must have been playing

with it while she was at the store because she did not remember "anything about him [i.e.,

JoJo] having a flashlight." Preston also told Farnum she did not find a flashlight when

picking up the bedroom. The record shows Preston repeatedly asked Farnum if his

children were capable of hitting Baby John on the head with a flashlight that would lead

to such trauma. Farnum responded, "Yes. And for me to say that about my children, it's

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App. 79a

really hard and it really hurts, but yes." At another point, the record shows Farnum told

Preston he was at the police station "because of" JoJo.

At some point during their discussion, the record shows Preston asked Farnum

why his daughter Doe was saying Farnum was the one that killed Baby John. In

response, Farnum said his children like to tell stories and "someone told [Doe] to say

some of that shit." Farnum told Preston that when he asked Doe who told her to say he

was responsible for the attack, Doe shrugged her shoulders and refused to identify the

person or persons.

At the time of trial, Doe was six years 11 months old. Doe testified she saw the

baby "got shooked" by "Dannie" (i.e., Farnum) because he "was mad." Doe also testified

that the baby was seated in a stroller when the shaking occurred and that Dannie then

dropped the baby "in the street." Doe further testified that her birth mother, Shannon

Garcia, also told her that Dannie shook the baby and then dropped him in the street.4

Doe testified that she did not like talking about what happened to the baby and

that, other than her birth mother, she had not spoken to anyone else about what had

happened. When asked again, Doe testified that she could not remember if she had

spoken to anyone else in the past about what had happened to the baby; that she

remembered a "little bit"; and that she saw Dannie shake the baby and then drop him in

the street. Doe testified Preston was inside her home and thus not present when Dannie

The record shows that sometime after Baby John's death, Doe and JoJo were

removed from the care of their birth mother. At the time of trial, they were living in a

new home with a prospective adoptive family.

Case 5:15-cv-02078-GW-E Document 14-12 Filed 10/29/15 Page 12 of 42 Page ID #:1546

App. 80a

shook and dropped the baby. Doe said that her birth mother was with her when the

incident occurred.

The record shows after Doe testified, the court granted the prosecution's motion to

admit Doe's statements to Francisca Russo, a social worker with Riverside County Child

Protective Services, made the day after Baby John's death. Russo testified that she

interviewed Doe at Doe's birth mother's house. Also present during the interview was

JoJo and Doe's maternal grandmother.

The first thing Doe told Russo during the interview was that the baby "was sad and

stopped crying." Doe also told Russo the baby was "sick" and when the baby died, "[her]

dad was there and [her] brother was there." Doe told Russo her brother was sleeping on

the couch and Preston, who Doe then referred to as "Tink,"5 was not home when the

attack took place.

Russo testified that during the interview Doe repeatedly said, "The baby was

crying; my dad was mad; my dad -- my dad hurt the baby." Russo next asked Doe to use

a "frog" (ostensibly a stuffed animal) to show how her dad hurt the baby. Russo testified

Doe took the frog and initially cradled it to provide comfort. Doe next started making a

"shaking motion" using the frog while saying the baby "would not stop crying, my dad

was mad." Doe told Russo that, "he hurt the baby, he put it on the bed hard" and that he

"hurt his head."

Preston testified that Doe called her "Tink" because Preston had a tattoo of

"Tinkerbell" on her right shoulder. The record shows Russo appears to have misspoke

when she subsequently referred to Preston as "Tiki."

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App. 81a

Russo testified that during this initial interview, Doe did not mention the baby

being dropped in the street or her birth mother being present during the shaking incident,

as Doe had just testified. Russo testified she did not record the interview with Doe

because that was not allowed.

Detective Kim Judge of the Riverside Sheriff's Department testified that based on

Russo's interview with Doe, a Riverside County Child Assessment Team (RCAT)

conducted a video interview of Doe a day or two after her in-person interview with

Russo. The RCAT interview was conducted by Denise Bowman and was played for the

jury.

The record shows in that interview, Doe recalled speaking to Russo and in

response to Bowman's question, "What did you [i.e., Doe] tell her [i.e., Russo]," Doe

said, "I telled her ah, ah, my dad shaked the baby and, and grabbed his feet and hurt him

on his head." Doe reiterated she saw her dad shake and hurt the baby after Preston had

left. When Bowman again asked Doe who did this to "your brother," Doe quickly

corrected Bowman, telling her, "Not my brother," and reiterated several times that her

father shook the baby and that the baby lived with "Tink."

Doe then used a doll to show Bowman what Farnum had done to the baby. Doe

told Bowman that her dad was hitting the baby's head on "his crib." Doe said she saw her

dad shaking and hurting the baby in "Tink's" room, where the crib was located. Doe also

told Bowman that her dad used his hand to hit the baby on the "butt." In response to

Bowman's question, "[W]hen he [i.e., Farnum] was done hurting him [the baby], what did

he do with [the baby]? Where did he put him?" Doe said, "In, back in his crib."

Case 5:15-cv-02078-GW-E Document 14-12 Filed 10/29/15 Page 14 of 42 Page ID #:1548

App. 82a

Bowman next asked Doe where her "daddy" went afterwards. Doe said, "He

didn't go in jail." When asked if she spoke to her mother (i.e., birth mother) about what

had happened to the baby, Doe said she had and that her mother had said, "Bad baby, bad

baby!" Doe then told Bowman that her mother did not take the baby away and before

Bowman could finish asking her next question, Doe added, "Only the Cops," ostensibly

in response to the question who took the baby away.

Pathologist Aaron Gleckman testified as an expert on behalf of the People. He

opined there was no evidence Baby John suffocated on his own. Dr. Gleckman found

Baby John's upper frenulum, which he described as the connection between the lip and

upper jaw, torn. He noted that injury was not "fresh" and was likely caused by past

abuse, either by a "hard slap or a punch to the face."

Dr. Gleckman found a half-inch by quarter-inch red abrasion on Baby John's left

temple. Dr. Gleckman described the abrasion as a "circular-shaped area of redness" and

opined it was likely caused by "blunt trauma from some sort of object that had that sort of

[a] circular shape." Because the injury showed no signs of healing, Dr. Gleckman opined

the injury was of recent origin.

Dr. Gleckman testified there was a "large . . . light purple/pinkish" bruise or a

contusion to the back of Baby John's head that appeared to be "fresh" given its color. On

further examination, Dr. Gleckman found a large area of redness and areas of purple

under the inner surface of Baby John's scalp, which Dr. Gleckman referred to as

"subgaleal hemorrhage" caused by trauma. Dr. Gleckman opined this injury was large

and was the result of "fresh bleeding."

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App. 83a

Dr. Gleckman next examined the area below the skull bone. Dr. Gleckman found

not only areas of redness but also a "crack" in Baby John's skull. Dr. Gleckman testified

that the skull crack or fracture was "extensive" and that it was "actually harder to break

an infant's skull than an adult's skull because as people get older their bones get more

brittle." In contrast, according to Dr. Gleckman an infant's skull "is pliable; they're kind

of elastic. So in this case it actually would take more force to fracture or break an infant's

skull than an adult's."

Dr. Gleckman also found "massive" bleeding under the fibrous covering of Baby

John's brain. In fact, Dr. Gleckman determined these purple areas took up about "half of

the whole size of [Baby John's] brain." The bleeding was indicative of trauma "from

either a hard impact to the head, or sometimes from very vigorous shaking of an infant."

Dr. Gleckman could not definitely determine whether Baby John died from shaking,

although he also could not rule it out as the cause of death. Given the size of the injury,

the skull fracture and the amount of force Dr. Gleckman said would be necessary to cause

Baby's John's extensive injuries, he opined Baby John died of "[a]busive head trauma"

caused by an "intentional" act. Dr. Gleckman further opined that in light of the

seriousness of Baby John's head injuries, the baby could have gone from being a

"completely normal infant" to unconscious in a matter of seconds or minutes.

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App. 84a

DISCUSSION

Sufficiency of the Evidence

A. Judicial Admission

1. Additional Background

The record shows in closing, the prosecutor relied on Doe's November 2008

statements both to Russo and Bowman in arguing Farnum was guilty of counts 1 and 2.

The prosecutor highlighted Doe's statements that she saw her dad shake the baby and hurt

him on his head; that "Tink" (i.e., Preston) was not present when her dad shook the baby;

that her dad shook the baby and hurt the baby's head on the bed and/or crib because her

dad got mad when the baby would not stop crying; and that after her dad hurt the baby,

the baby was sad and stopped crying. The prosecutor argued to the jury that Doe made

many of these statements before the autopsy was completed, confirming that Baby John

died of "intentional abusive head trauma."

The record further shows that the defense during its closing aggressively attacked

the credibility of Doe. The defense noted that in the 2008 interview with Bowman, Doe

was asked, "So if I said you are a girl, is that a truth or a lie?" to which Doe responded,

"Um, truth." Bowman, in a follow up question, asked Doe, "[I]f I said you're a boy, is

that a truth or a lie?" to which Doe responded, "A truth." The defense noted that Doe was

then only four years old; that during the interview with Bowman, Doe also said her birth

mother and dad (i.e., Farnum) had both died; and that she referred to her younger brother,

JoJo, then aged two, as being bigger than her. The defense contended Doe was not to be

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App. 85a

believed, as she "says many things and then says maybe one thing that they [i.e., the

People] all want to hear."

In rebuttal, the prosecutor addressed the defense's credibility attack of Doe: "And

you know, oh, well, she didn't know the color of blue versus yellow [from the Bowman

interview].[6] You know, she hadn't even been to school yet. She didn't know the

concepts between truth and a lie. And the fact of the matter is, she doesn't even know the

concept of death at this point in her life. But, you know, we're now asking her to come in

here two years later and talk about what happened. And that's -- you know -- a good

chunk of her life has gone by. She's moved on. She has a new name. She has a new

family.

"She remembers that the baby died. She remembers that her father shook the

baby. And you know what else she remembers? What her mom told her. That her mom

told her that the baby was dropped outside. She was told by her mother -- and you saw in

the RCAT interview -- that the baby was bad, it was a bad, bad baby, this woman who

still to this day has contact with the defendant, her [i.e., Doe's birth] mother.

"And, you know, attacking her about little things like that -- what do you expect

from a four-year-old girl? What do you expect from a six-year-old girl? But the heart of

the matter is that she has no motive to lie. She doesn't even know what's going on in

here, that her father's been charged with murder. That he killed this baby and he's never

The record is inconsistent on the issue of whether Doe knew her colors, as pretrial

the People contended Doe had in fact correctly identified the colors shown to her during

the RCAT interview, which the court appeared to confirm after watching the RCAT

interview.

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App. 86a

coming back. That by coming in here to testify -- what that means. She doesn't know

any of that.

"And when she makes the statements that she makes to the CPS worker [i.e.,

Russo] and in the RCAT interview, it's at the time of the event, fresh in her mind. She

knew exactly what happened before her mother had a chance to tell her that it was

actually the baby was dropped outside, before, you know, she's moved on, before she's

had a chance to forget and live with foster parents who are actively pushing her forward

in life. It's at the time of the event when[] these things are fresh in her mind. And she

described something that no child would have any concept of. Most adults don't even

know about shaking a baby. But she did.

"And, so, yeah, she may not know the difference between truth and a lie. She may

not know the difference between life and death. But she knew what she saw. And she

knew that [Preston] wasn't there. And she knew that JoJo was sleeping. And she knew

where it happened. And she knew why it happened -- because the baby wouldn't stop

crying." (Italics added.)

2. Guiding Principles and Analysis

Farnum initially attacks indirectly Doe's qualification as a witness by contending

the above italicized statements, made in rebuttal by the prosecutor during closing

argument, constitute a "judicial admission" that Doe was not competent in 2008. He thus

further contends that without this evidence, there allegedly "is no remaining evidence of

either an intentional nor [sic] a negligent act on the part of [Farnum] causing the death of

the baby."

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App. 87a

It is axiomatic that a prosecutor is free to give an opinion on the state of the

evidence and has "wide latitude" to comment on its quality and the credibility of

witnesses as long as it is a fair comment on the evidence and reasonable inferences or

deductions therefrom. (People v. Bonilla (2007) 41 Cal.4th 313, 336–337; People v.

Martinez (2010) 47 Cal.4th 911, 957 [noting a prosecutor is allowed a "'wide range of

descriptive comment'" and his or her "'"'argument may be vigorous as long as it amounts

to fair comment on the evidence'"'"].) Courts "accord counsel great latitude at argument

to urge whatever conclusions counsel believes can properly be drawn from the evidence."

(People v. Cash (2002) 28 Cal.4th 703, 732.)

"A judicial admission is a party's unequivocal concession of the truth of a matter,

and removes the matter as an issue in the case." (Gelfo v. Lockheed Martin Corp. (2006)

140 Cal.App.4th 34, 48; Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446,

452 [noting a judicial admission is "ordinarily a factual allegation by one party that is

admitted by the opposing party," with the result being the "allegation is removed from the

issues . . . because the parties agree as to its truth"].) "'[A]n oral statement by counsel in

the same action is a binding judicial admission if the statement was an unambiguous

concession of a matter then at issue and was not made improvidently or unguardedly.

[Citations.]'" (Physicians Committee for Responsible Medicine v. KFC Corp. (2014) 224

Cal.App.4th 166, 180, quoting with approval Fassberg Construction Co. v. Housing

Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752 (Fassberg); Irwin v.

Pacific Southwest Airlines (1982) 133 Cal.App.3d 709, 714 [noting a counsel's statement

may not be treated as a judicial admission if "it is made improvidently or

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App. 88a

unguardedly, . . . is in any way ambiguous . . . [or] lacks the gravity of a complete

relinquishment of rights on the issue"].)

Accordingly, "statements of counsel in argument are not deemed judicial

admissions unless they have the formality of an admission or a stipulation." (People v.

Kiney (2007) 151 Cal.App.4th 807, 815, citing with approval Coats v. General Motors

Corp. (1934) 3 Cal.App.2d 340, 350 [noting "[m]ere incidental or ambiguous statements

by counsel" will not be binding or admissible "where there is no such formality in the

making of the statements as to indicate an intention that they should be taken as

admissions"]; People v. Darden (1927) 87 Cal.App. 181, 182-183 [rejecting contention of

defendant that prosecutor's statement when original criminal complaint was filed was a

binding admission because that statement was "only so shown in a running argument and

does not rise to the dignity of a specific admission"].)

Here, we conclude the prosecutor's statements during rebuttal argument that Doe

may not have known the difference between the truth and a lie cannot be fairly construed

as a formal, unambiguous and deliberate admission that Doe was not qualified as a

witness either in 2008, when she made the statements to Russo and Bowman a few days

after Baby John's death, or in 2011 when she testified at trial.

In fact, the record shows that when the prosecutor made these two statements, she

was actually imploring the jury to believe Doe's testimony. In context, the record

supports the conclusion that when the prosecutor made these statements, it was in

response to the defense's contention that Doe was not to be believed as a witness after

Doe said it was a "truth" that she was a boy in response to a question posed by Bowman

during the RCAT interview. Far from an unequivocal concession that Doe was not

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App. 89a

competent as a witness, the record supports the exact opposite conclusion: namely, that

the prosecutor was attempting to persuade the jury that Doe was a competent witness and

that her statements to Russo and Bowman—that she saw her dad shake the baby and hurt

the baby's head, including hitting the baby on the bed/crib, after her dad got mad because

the baby would not stop crying—were credible and truthful.

Farnum's reliance on Fassberg, supra, 152 Cal.App.4th 720 is unavailing. There,

a project manager of defendant testified on direct examination that plaintiff was owed

about $400,000 in credit for work performed, which finding was also confirmed by one

of defendant's trial exhibits. During closing argument, counsel for defendant

acknowledged that plaintiff was entitled to about $400,000 in credit. (Id. at pp. 750-751.)

The jury, however, failed to include the $400,000 credit in calculating its verdict. (Id. at

p. 751.)

In reversing on this issue, the Fassberg court concluded there was "no substantial

conflict in the evidence" that defendant was entitled to a credit of about $400,000.

(Fassberg, supra, 152 Cal.App.4th at p. 752.) The court based its conclusion on the

testimony of defendant's witness, the trial exhibit and defense counsel's

acknowledgement of this fact during closing. With respect to the acknowledgement, the

court noted defense counsel's statement that plaintiff was entitled to a credit was "clear

and deliberate" and was based on the response counsel elicited from defendant's own

witness. (Ibid.)

Here, as we have already noted, there was no concession by the prosecutor, much

less one that was "clear and deliberate," that Doe was incompetent at the time she made

the November 2008 statements to Russo and Bowman regarding the cause of the baby's

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App. 90a

death. In addition, there also was no evidence proffered at trial establishing the fact

allegedly conceded by the prosecutor (i.e., that Doe was incompetent), in contrast to the

situation in Fassberg where counsel of defendant merely reiterated in closing the

testimony of defendant's own witness that plaintiff was entitled to a credit. We thus

conclude Fassberg is factually and legally inapposite in the instant case.

B. Disavowing 2011 Trial Testimony

Farnum next contends the prosecutor effectively conceded during closing

argument that Doe's 2011 testimony could not be considered because Doe was allegedly

coached and/or improperly influenced by her birth mother. Specifically, Farnum

contends the prosecutor in rebuttal told the jury not to rely on Doe's September 2011

testimony because according to Farnum, that testimony "only" accused Farnum of

dropping the baby and did not describe an intentionally inflicted injury as was charged in

the case.

First, Farnum misstates the record when he contends that Doe's 2011 trial

testimony only established that Farnum had dropped the baby. The record instead shows

Doe testified that "Dannie" "shooked" the baby because he was mad. When asked in

follow up questioning what she saw with her own eyes, Doe said, "I seen him [i.e.,

Farnum or Dannie] shook him [i.e., Baby John]."

Second, the record shows Doe testified her birth mother, who Doe referred to as

her "old mom," told her that the baby was bad, as Doe had also noted in her November

2008 RCAT interview with Bowman. The record shows the prosecutor during closing

argued to the jury that the birth mother allegedly had attempted to influence Doe and alter

her testimony by telling Doe the baby was bad; that the baby had been hurt after being

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App. 91a

dropped in the street; that the birth mother and Farnum were then still in contact; and that

the birth mother's alleged attempt to influence Doe had been unsuccessful because Doe

also testified she saw "Dannie" "shooked" the baby because he was mad. Thus, the

record shows the prosecutor, far from disavowing the trial testimony of Doe, actually

relied on it to corroborate Doe's statements to Russo and Bowman in November 2008 in

arguing Farnum was guilty of counts 1 and 2.

Third, we note that even if the prosecutor sought to disavow Doe's 2011 trial

testimony, there was still sufficient evidence in the record to support Farnum's conviction

on counts 1 and 2, and, thus, any error was harmless under any standard of review. (See

Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818,

836.)

Here, the record shows Doe made statements to Russo the day after Baby John

died that were consistent with the statements she gave Bowman during the recorded

RCAT interview, namely that when she, JoJo and her dad (i.e., Farnum) were alone in

Preston's home with the baby, she saw her dad shake the baby and hurt the baby's head

because her dad was angry when the baby would not stop crying. The record shows that

Doe told Russo she saw her dad shake the baby and put the baby "on the bed hard,"

which Doe demonstrated for Russo using a stuffed animal (i.e., a frog). Doe recognized

her dad had hurt the baby because she told Russo the baby was "sad" and "stopped

crying" after the attack.

The record shows the next day Doe used a doll to demonstrate to Bowman what

her dad had done to the baby. Doe told Bowman that Farnum was hitting the baby's head

on "his crib." Doe said she saw Farnum shaking and hurting the baby in "Tink's" room,

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App. 92a

where the crib was located. Doe also confirmed in her interview with Bowman that her

dad hurt the baby after Preston had left.

We conclude this evidence, when considered in conjunction with the testimony of

Dr. Gleckman, who opined Baby John suffered a skull fracture and died of abusive

trauma to the head intentionally inflicted by an adult, is sufficient to support Farnum's

convictions on counts 1 and 2.

That there was other evidence and argument in the record from which a jury could

have reached a different result does not change our conclusion in this case. Indeed, the

record shows Farnum aggressively argued during closing that Preston murdered Baby

John because she was "overwhelmed" and was under the influence of methamphetamine,

which the record shows she and Farnum had used the night before the baby died. Farnum

also argued during closing that Preston allegedly admitted in a letter she wrote to Farnum

while he was incarcerated that she was responsible for his incarceration and that Doe's

statements in November 2008 and her trial testimony in September 2011 could not be

believed given her responses to certain questions, which Farnum further argued

undermined her credibility.

As the fact finder, the jury was entitled to accept one or more of these arguments

proffered by Farnum and the evidence in support thereof. By the same logic, the jury

also was entitled to reject these arguments and any such evidence, as turned out to be the

case here. (See People v. Smith (2005) 37 Cal.4th 733, 739 [a court of review is bound to

accept the factual and credibility determinations of the trier of fact]; see also People v.

Mejia (2007) 155 Cal.App.4th 86, 93 [if substantial evidence exists to support a verdict, a

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App. 93a

court of review must accord due deference to the trier of fact and not substitute its

evaluation of the facts or of a witness's credibility for that of the fact finder].)

Farnum also contends his conviction must be overturned because Dr. Gleckman

opined the skull fracture and substantial head trauma Baby John sustained could have

been the result of "very vigorous shaking" or a "hard impact to the head." Because Doe

testified at trial the baby was dropped onto the street and because, according to Farnum,

Dr. Gleckman neither from a medical nor factual basis ruled out a fall as the cause of

Baby John's death, Farnum contends Dr. Gleckman's testimony is insufficient to support

his conviction.

Initially, we reject this contention because as noted ante, we conclude Dr.

Gleckman's testimony that Doe died of nonaccidental trauma caused by either shaking or

blunt force trauma corroborated the statements of Doe that she saw her dad shake the

baby, as demonstrated by her use of both a stuffed animal and a doll, and then saw the

baby's head being struck hard against the bed and/or crib. We also note Dr. Gleckman

reached the conclusion Baby John died of intentional abusive blunt force trauma before

he was made aware of any statements that the baby had been "shaken, slammed and hit."

Moreover, we reject this contention because other than Doe's testimony that

"Dannie" dropped the baby in the street, there is no evidence in the record that the baby

in fact suffered a "significantly high fall onto a very hard surface, meaning several feet or

higher" (italics added), which Dr. Gleckman in his testimony noted could potentially

cause an infant's skull to fracture.

Indeed, the record here shows that before Farnum's arrest, he was repeatedly asked

by Preston what happened to Baby John. The record further shows Farnum came up with

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App. 94a

several theories to suggest how the baby might have received blunt force head trauma,

including hitting his head on the sliding glass door; falling in his crib and hitting his head

on a toy; or hitting his head when Farnum ran outside with the baby, after the baby

stopped breathing, to meet paramedics dispatched after the 911 call. Farnum also

suggested to Preston that his then two-year-old son JoJo might have inflicted the injury

while using a flashlight as a "light saber." At no point, however, did Farnum ever tell

Preston or the authorities that he or anyone else had dropped Baby John on the street, or

dropped the baby at all, much less from "several feet or higher."

Our conclusion on this issue is also buttressed by the defense's closing argument.

The defense did not argue Farnum or anyone else accidently dropped Baby John, much

less onto a street. Instead, it argued such statements by Doe showed she was unreliable

as a witness. Moreover, during closing the defense argued Dr. Gleckman was lacking in

credibility not because he failed to rule out a fall as the medical or factual cause of Baby

John's death, as Farnum now contends for the first time on appeal, but because he

rejected the defense's contention that a "Mag flashlight couldn't cause that kind of

damage" suffered by Baby John.

As before, although Farnum disputes the factual basis on which Dr. Gleckman

opined that Baby John died from a nonaccidental abusive head injury caused by an adult,

that factual basis was presented to the jury for determination. That the jury ultimately

rejected Farnum's multiple theories regarding how Baby John died and accepted the

theory presented by the People, as supported by Dr. Gleckman, does not afford Farnum

the relief he now seeks. (See People v. Smith, supra, 37 Cal.4th at p. 739; People v.

Mejia, supra, 155 Cal.App.4th at p. 93.)

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C. Evidence Code section 1235

Farnum alternatively contends the court abused its discretion and erred in

admitting under Evidence Code section 1235 Doe's November 2008 statements because

Doe allegedly testified at the September 2011 trial she could not remember making these

statements, and, therefore, her trial testimony allegedly was not "inconsistent" for

purposes of this statute.

1. Additional Background

The record shows the court, in response to Farnum's motion in limine, held an

Evidence Code section 402 hearing outside the presence of the jury to determine whether

Doe was competent to testify at trial. It further shows the court extensively questioned

Doe and, as a result, concluded she was "sharp" and competent to testify. Farnum does

not dispute this finding on appeal.

At trial, as noted Doe testified she saw "Dannie" "shooked" the baby, which

testimony was consistent with her November 2008 statements to Russo and Bowman.

However, Doe also testified, as noted, that her birth mother told her Dannie dropped the

baby in the street and that she saw Dannie drop the baby in the street.

At the conclusion of Doe's testimony, as noted ante, the prosecutor sought to

admit under Evide

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