Opinion Bank # O-249 (Re: F 3.41 n3 [Intervening Cause: Need Not Be Committed By Third Party].)
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent,
Defendent and Appellant.
John Doe appeals from a judgment of conviction of second degree murder of J in count one (Pen. Code, § 187), [Footnote 1] l corporal injury on a cohabitant, Ms. S, in count two (§ 273.5), and assault on a child under the age of eight, J, resulting in death in count three (§ 273ab).
Appellant contends: (1) The trial court erred when it allowed the case to be submitted to the jury on two theories of the cause of death when one theory, as a matter of law, could not constitute a legal cause of death; (2) the trial court erred when it refused to give the standard unanimity instruction (CALJIC No. 17.01) with regard to count three, assault on child causing death; (3) the trial court erred in allowing appellant’s ex-wife to testify that it was her opinion that appellant had abused their two sons; (4) tile trial court erred when it permitted the jury to see portions of a videotaped police interview of appellant in which a police officer described hearsay statements made by appellant’s two sons, then aged two and four; (5) the trial court erred in admitting Officer Krastof’s trial opinion testimony that appellant was lying; (6) the trial erred ed in permitted tile jury to consider, as substantive evidence, Officer Krastof’s opinions and accusatory questions in the videotape that appellant was lying; (7) the trial court erred in allowing Mr. P to testify about his opinion that appellant was violent toward women and children and in denying discovery and full cross-examination of Mr. P; (8) the trial court erred in excluding testimony from Ms. H; and (9) the murder and assault on a child convictions should be reversed for cumulative error.
Appellant has also filed a motion for disclosure of prosecution witness Mr. P’s “rap sheet” and for an in camera review of it. The purpose of the motion is to determine whether any of Mr. P’s arrests or convictions would have tended to show dishonesty or moral turpitude and therefore would have been usable for impeachment of him.
For reasons explained hereafter, we reverse counts one and three and affirm the judgment as to count two.
The murder victim, 19-month-old J, and her mother Ms. S were living with appellant, his 2 and 4-year-old sons, his aunt Ms. G and her son, and appellant’s friend Mr. O. Paramedic Robert Duvall responded to a call at appellant’s apartment in San Pablo around 10:30 p.m. on February 19, 1996. He found a freighter performing CPR on a 19-month old girl who had no pulse, no blood pressure, and was not breathing. She was cyanotic, and her eyes were fixed and dilated, indicating she had been without oxygen for about 10 minutes. J was already dead when they transported her to the hospital. The girl had a large “goose egg” on her forehead, substantial bruising on the left side of her face and on her chest and sternum all the way down to her stomach area. Appellant told Duvall the girl had fallen out of bed about 4:00 p.m.
Dr. Brian Peterson, who performed the autopsy on J, testified that the cause of death was blunt force injuries to the chest and abdomen. The right atrium had ruptured and sent blood into the pericardial sac surrounding the heart. Such an injury would require a significant amount of force. Dr. Peterson had seen similar injuries in adults resulting from highway-speed crashes while not wearing seatbelts. It was not the force that would be commonly associated with giving CPR. J had lavender bruises on her face, the right side of her chest, and her shoulder blade and back that were more recent than the blue-green and yellow bruises around her left nipple.
There was another set of injuries in J’s abdomen where peritonitis had developed. Either the chest injury or the abdominal injury could have been the cause of death, but there was no doubt that the rupture of the heart was “rapidly lethal” and was the “primary cause of death.” According to Dr. Peterson: “Had the heart not ruptured and had there only been the injury to the abdomen, that could also have been fatal but it would have taken longer. The fact that she had peritonitis indicated to me she probably suffered an injury at least a day or two prior to the fatal injury. And had that been neglected or left untreated, that could have been fatal too.” The abdominal injury was consistent with a punch by an adult to the midsection.
Dr. Peterson believed J was a victim of child abuse. His opinion was based on the pattern of injuries, with some older and some more recent, and the inconsistency of them with the history given. Dr. Peterson had never seen a heart rupture caused by CPR. J would have died within a minute or so after the injury to the heart.
Officer Craig Matecki arrived at appellant’s apartment on February 19 in response to a call by the fire department. Appellant told him he noticed a lump on J’s forehead about 7:30 p.m., which Ms. S said was from J falling and hitting her head. J was fine until about 8:45, when she lay down in her bed and vomited a clear liquid. Appellant wiped off her face, and J went to sleep. The next tiling appellant knew was that Ms. S had picked up J because she was wheezing. J was moaning. Appellant wiped her down, and J wanted a drink. He gave her water. She wanted more, and appellant gave her more. J’s eyes rolled back in her head. Appellant lay her on the coffee take and began CPR. She stopped breathing, but appellant did CPR until the ambulance arrived. The table came apart when appellant put J on it to perform CPR. Appellant did not mention anything about accidentally stepping on or kicking J or fighting with Ms. S.
Detective David Krastof interviewed appellant at the police station on February 20, after Krastof had met with Dr. Peterson. In his first interview, appellant denied having a fight with Ms. S and then admitted they had an argument about getting diapers. Appellant said he had performed CPR on J in a “soft” manner. Appellant stopped the interview after Krastof confronted him with contradictory facts from the pathologist.
About three hours later, appellant notified Krastof that he wanted to resume the interview. This interview was videotaped and shown to the jury. At the end of the second interview, appellant signed a statement in which he admitted having a violent fight with Ms. S after she objected when he was throwing J up in the air and catching her. He pulled Ms. S by her hair into the bedroom, hit her in the face, and kicked her. He then went in the kids’ room and began chasing a rat he had seen earlier in the day. As he was running, appellant accidentally kicked J’s chest, and his foot landed on her chest when he came down from kicking her. She screamed. Later, Ms. S came into the room and noticed J was having problems breathing and was limp. Appellant told the others to hold off calling the police and tried to revive J with water. That did not work, so he gave her CPR. Appellant said he had lied in earlier statements because he didn’t want to be seen as a murderer.
Ms. S testified that she and appellant began living together, along with J, in August 1995. J’s father was Mr. P. At first the relationship was good, but then appellant began hitting Ms. S. Appellant beat Ms. S at least once a week. On the night J died, appellant had struck Ms. S, bruising her eye and her foot.
There was a prior incident in November 1995 when J had a breathing problem. Appellant gave J CPR. An ambulance was called, and the child was taken to the hospital. Ms. S thought it was asthma because Ms. S herself had asthma, and J wheezed frequently.
On the night of J’s death, Ms. S and appellant had an argument in which appellant accused Ms. S of spoiling J. Appellant hit Ms. S in the eye and kicked her while she lay on the ground. After the fight, Ms. S fell asleep. Ms. S awoke when she heard J cry like she had been hurt or fallen. A few minutes later, Ms. S went into J’s room and discovered she was not breathing right and was limp. Appellant said he did not know what was wrong and urged Ms. S to wait before calling 911. J drank some water and then stopped breathing. Appellant’s aunt, Ms. G, called 911. Appellant then put J on the coffee table and started breathing into her mouth. Appellant said nothing to Ms. S about kicking J by mistake when he was chasing a rat. The first time he mentioned that was after he was in custody. A day or two before J’s death, appellant had hit J in the stomach with a closed fist and told her to stop crying.
Ms. S admitted that she had testified untruthfully at the preliminary hearing when she denied appellant had beaten her. She thought at that time that appellant could not have injured or killed J. Ms. S admitted on cross-examination that after the preliminary hearing she learned that appellant had fathered a child with a woman named Ms. K during the time appellant and Ms. S were living together. She denied that caused her to change her testimony. Ms. S attributed the change in her belief about appellant having caused J’s death to information she had learned from reviewing the autopsy pictures and report.
The prosecution presented testimony by other women regarding appellant’s abusive behavior toward them. Ms. K testified that when she was living with appellant’s ex-wife Ms. E, appellant became angry because Ms. E was not home, began throwing furniture around and urinated on the dirty dishes in the sink. Ms. R testified that she dated appellant between 1992 and 1994. Appellant got angry and choked her after learning that she had an abortion.
Ms. E testified that she was married to appellant from 1993 through 1995. She divorced him because he was physically and mentally abusive. He would hit and kick her on the average of three times a week. Ms. E testified that even though appellant was an abusive spouse, she did not think he was abusive to their two children. When she got her two children back after appellant’s arrest, she noticed a bruise on Justin’s thigh and a scratch on his back. The children had also had bruises on them when she had seen them three weeks earlier. After she got the children back, she had conversations with them that led her to believe they had been abused.
Appellant testified in his own defense and admitted that he had been abusive to Ms. E and Ms. S. He denied ever abusing his sons or J.
Appellant testified that on the night of February 19, after the fight with Ms. S, he had been trying to catch a rat that was in the children’s closet. When the rat ran out of the closet, appellant and his sons jumped and ran. Appellant then heard J scream and discovered she was under his foot. J looked scared but not hurt. Appellant put J back on the bed and went about cleaning the room. Later Ms. S came in the room, picked up J, and said she was having problems breathing. Ms. S took J in the living room. Appellant followed. He held J, sprinkled her face with water and gave her water to drink. J stopped breathing and became unconscious. Appellant put J on the table and “mashed on her chest” three times and breathed into her mouth three times. Appellant figured that was how to do CPR, but he had never had formal training in it. Appellant put his head on J’s chest, heard no heartbeat, so he hit her in the chest, hard, thinking it would jump start the heart. He had seen this done on TV. According to appellant, the police officer who arrived shortly after the paramedics told him J was still breathing.
Appellant admitted that he told a number of lies in his statements to the police. Appellant denied abusing J or punching her in the stomach. Appellant said he thought CPR was the same on adults and children.
The defense also presented testimony by appellant’s aunt Ms. B and his mother Ms. W that appellant interacted well with his children and J and was not abusive with them.
Ms. G, appellant’s aunt, testified that she saw appellant’s kids chasing a mouse on February 19, and that she had previously seen mouse feces in the apartment. Later that evening, about 9:45, Ms. S brought J into the living room and said she wasn’t breathing right. J was listless and looked like she was coming out of a seizure. A few minutes later, appellant came in and picked up J. He gave J some water, which she threw up, and then had trouble breathing. Appellant began to give J CPR and hit her in the chest with his fist.
Mr. P, J’s father, testified in rebuttal that he had noticed bruises on Ms. S and J when he had seen them about two weeks before J’s death. Although Ms. S wouldn’t say who had caused the bruises, she did tell Mr. P earlier in a phone conversation that she was ready to leave “him” because “he” was beating her up, as well as J. Mr. P testified that based on his conversations, he thought appellant had the character trait for violence toward women and children.
1. Cause of Death
Appellant contends the trial court erred in allowing the case to be submitted to the jury on two theories of the cause of death when one theory, as a matter oil’ law, could not be the cause of death. Dr. Peterson, the pathologist, testified that there were two injuries, one to the heart that was “rapidly lethal,” and the other to the abdomen inflicted a day or two earlier that would also have resulted in death if left untreated. The prosecutor argued both causes of death, and the court instructed under CALJIC No. 17.01 that the evidence tended to show more than one act upon which a homicide conviction may be based and that the jurors had to be unanimous as to which act they relied on.
Appellant argues that the abdominal injury, as a matter of law, was not a proximate cause of J’s death. He relies primarily on People v. McGee (1947) 31 Cal.2d 229, which rejected a claim that the trial court erred by excluding evidence that would have tended to show the proximate cause of the victim’s death was not the bullet wound but the manner in which the wound was treated. The court recited the general rule that a person who inflicts a wound “which is dangerous or calculated to destroy life” is not relieved of liability for homicide when the negligence, mistake, or lack of skill of an attending physician or surgeon contributes to the death. (Id. at p. 240.) It also recited the exception to the rule upon which appellant relies: “‘Where a person inflicts on another a wound not in itself calculated to produce death, and the injured person dies solely as a result of the improper treatment of the wound by an attending physician or surgeon, the fact that the death was caused by medical mistreatment is a good defense to a charge of homicide…”(Ibid.)
The court in McGee held the defendant was not prejudiced because even the most favorable view of the evidence sought to be introduced still showed liability. The defendant fired a pistol in the victim’s direction without due caution and circumspection, thereby wounding the victim. The wound resulted in a profuse hemorrhage that would be sufficient to cause death if not promptly controlled. The surgeon negligently delayed treating the victim for 10 hours. “The factual situation is in legal effect the same, whether the victim of a wound bleeds to death because surgical attention is not available or because, although available, it is delayed by reason of the surgeon’s gross neglect or incompetence. The delay in treatment is not in fact an intervening force; it cannot in law amount to a supervening cause.” (Id. at p. 243.)
Appellant pins his argument on the previously quoted exception to liability, namely, when the wound inflicted “is not itself calculated to produce death, and the injured person dies solely as a result of the improper treatment of the wound.” (Id. at p. 240.) Appellant argues as follows: The blow to the abdomen was not itself calculated to cause death and was not a contributing factor at the time of death. The blow to the chest was the actual cause of death. The blow to the chest was not a natural or foreseeable consequence of the earlier blow to the abdomen and thus was a supervening cause. Therefore, the blow to the abdomen was not a proximate cause of J’s death.
Appellant’s argument is supported by dicta in Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337 (overruled on other grounds in Santamaria v. Horsley (9th Cir. 1998) 133 F.3d 1242). There the victim was shot in the arm and, while en route to the hospital, stopped to confront his rival gang members and was shot again. While he lay on the ground, a car driven by rival gang members intentionally ran over him, crushing his chest. The court found the evidence insufficient to support the defendant’s conviction on an aiding and abetting theory either as to the gunshot wounds or the car running over the victim. The court observed that it was doubtful in any event that liability could be based on the gunshot wounds because the victim did not die of them. The undisputed cause of death was the crushing of the victim’s chest by the car. The gunshot wounds would only have been fatal had they been left untreated for a matter of days or weeks. “To convict appellant of murder because he inflicted a wound that could have been fatal subverts the general rule that causation is interrupted by an unforeseen event. Professor Focht described a case in which ‘the defendant wounded the deceased and the latter died of scarlet fever contracted from the physician who treated the wound. It was held that proximate causation was lacking, because the disease, while the defacto result of the wound, was unforeseeable.’ James L. Focht, Jr., Proximate Cause in the Law of Homicide — With Special Reference to California Cases, 12 S. Cal. L. Rev. 19, 31-32 (1938)(citing Bush v. Commonwealth, 78 Ky. 268 (1880)).” (Mitchell v. Prunty, supra, 107 F.3d at p. 1341, fn. 8.)
Appellant maintains that the present situation is directly comparable to that in Mitchell v. Prunty. There the victim could ultimately have died from the initial gunshot injuries if left untreated, but before that could happen, he was. killed by a different and unforeseen event. Likewise, J could have died from the abdominal injury, but before that could happen, she was killed by an unforeseen blow to the chest that ruptured her heart.
The People argue there was no error in submitting both causes of death to the jury. They view the case solely as one involving a failure to provide medical care for the abdominal injury. In their view, the case is indistinguishable from the claim rejected in People v. McGee, supra, 31 Cal.2d 229, where the defendant claimed the victim’s death was proximately caused not by the bullet wounds inflicted by the defendant but by the 10 hour delay in commencing surgery. (Id. at pp. 240-24 1.) The McGee court held the fact that the victim might have been saved by prompt and proper surgical treatment did not absolve the defendant of liability for the natural and foreseeable consequence of his act. (See also People v. Roberts (I 992) 2 Cal.4th 271, 3 12 [“If a person inflicts a dangerous wound on another, it is ordinarily no defense that inadequate medical treatment contributed to the victim’s death.”].)
The People’s argument, however, fails to address the effect of the in’ .jury causing the heart rupture. The evidence was clear that this was the injury that caused J to die that night. The pivotal question is whether this injury was a supervening cause, thereby negating the abdominal injury as a legal cause of death. Appellant is not relying on the delay in medical care as the intervening cause. He instead relies on the chest injury, which he maintains was not a natural or foreseeable consequence of the abdominal injury. Defendant’s argument has merit.
Under the principles of proximate causation, a defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause so long as the contributing cause is a normal and reasonably foreseeable result of the defendant’s original act. (People v. Schmies (1996) 44 Cal.App.4th 38, 50.) “If the intervening act or other cause is reasonably foreseeable, it will not supersede. As in tort law: (1) The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. (2) The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.” (I Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 132, p. 150.) If, on the other hand, the intervening act is not a reasonably foreseeable or normal response to the defendant’s wrongful act, such intervening act is a superseding cause. (Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 809-810.)
The blow to J’s chest was not a consequence that would normally or reasonably be contemplated. It was in no way an expected result of the punch to her stomach two days earlier. Accordingly, it was a superseding cause which negated the blow to the stomach as a proximate cause of J’s death. (Compare People v. Armitage (1987) 194 Cal.App.3d 405 [felony drunken boating based on passenger’s death by drowning after boat overturned; victim’s abandonment of boat and attempt to swim to shore not abnormal response and thus not superseding cause]; People v. Alitry (1995) 37 Cal.App.4th 351 [in prosecution for second degree murder by drunken driver, failure to provide barrier that might have prevented defendant from striking highway workers not intervening or superseding cause]; People v. Schmie, supra, 44 Cal.App.4tli 3 8[defendant fled attempted traffic stop; resulting high-speed chase by CHP in which another car was hit and the driver killed was reasonably foreseeable consequence that did not absolve defendant of liability for vehicular manslaughter] People v. Funes (1994) 23 Cal.App.4th 1506 [victim of beating sustained severe head injury and remained in vegetative state for 46 days until death; decision to withhold antibiotics was reasonably foreseeable as matter of law and not independent of defendant’s criminal act].)
The People assert that the chest injury is not a superseding cause because only acts committed by third parties or by some other force may constitute a superseding cause. They rely on language from People v. Schmies, supra, 44 Cal.App.4th at p. 49, fn. 6, which refers to superseding cause as being an act “of a third person or other force.” They observe that no case has been cited or found in which the superseding cause was an act committed by the same person who committed the earlier wrong. The absence of authority, however, does not transform it into a rule. Nor is the People’s position supported by a discussion by Professors LaFave and Scott, which involves a factual scenario that is completely distinguishable from the present case. The situation posited is as follows: “Assume that A, with intent to kill B, strikes B and renders him unconscious, and then, mistakenly believing B to be dead, hangs B to give the appearance of suicide; B actually dies of strangulation.” (I LaFave and Scott, Substantive Criminal Law (1986) § 3.12(f)(6), p. 4 1 0.) The posited situation is analyzed as one involving a reasonably foreseeable consequence such as medical negligence, which does not break the causation chain. (Ibid.) Nothing in the discussion addresses the question of whether there may be superseding cause when a subsequent unforeseeable and unconnected act is committed by the same actor.
We conclude, as a matter of law, that the abdominal injury cannot be deemed a proximate cause of J’s death. Accordingly, it was error to allow the jury to consider appellant’s punch to J’s stomach as a cause of death. We are not persuaded by the Attorney General’s argument that the giving of CALJIC No. 3.40 eliminated the problem by directing the jury not to consider the abdominal injury as a cause of death. CALJIC No. 3.40, as given, told the jury that a “cause of the death is an act that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act the death and without which the death would not have occurred.” The instruction is ambiguous at best and certainly does not compel the construction given it by the Attorney General. The reference to “chain of events” could easily have been interpreted as applying to the stomach punch, especially in light of the prosecutor’s arguments to that effect (see fn. 2, infra) and the pathologist’s testimony characterizing the stomach punch as a cause of death.
The effect of submitting an invalid alternative theory to the jury depends upon how the error is characterized. “If the inadequacy of proof is purely factual, or a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in Green, the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
The question of what constitutes a legally incorrect theory was addressed in People v. Harris (1994) 9 Cal.4th 407, where any one of four distinct takings could have supported a robbery conviction, but the trial court’s misinstruction on the “immediate presence” element was potentially applicable to two of the four possible factual bases. The court observed: “In using the terminology `legally incorrect theory’ in Green, we were therefore referring specifically to instructional error, or a legally incorrect theory of the case which, if relied upon by the jury, could not as a matter of law validly support a conviction of the charged offense.” (People v. Harris, supra, 9 Cal.3d at p. 419.) Harris concluded that misinstruction on the “immediate presence” element of robbery as to two of four possible factual theories did not come within the Green rule because the four “taking theories” did not as a matter of law violate the standards defining “immediate presence.” The court then applied the Chapman test (Chapman v. California (1967) 386 U.S. 18.) of prejudice since the error involved misinstruction on the elements of the offense. (People v. Harris, supra, 9 Cal.4th at p. 424.)
Under the Guiton/Harris analysis, we must determine whether the submission of an erroneous cause of death constitutes “a ‘legally incorrect… theory of the case, which, if relied upon by the jury, could not as a matter of law validly support a conviction. (People v. Harris, supra, 9 Cal.4th at p. 419.) The instant error does appear to be a legal rather than factual error. The inadequacy of proof is not factual; it is instead a legally incorrect theory which, under Green, would generally require reversal since it cannot be determined whether the valid or invalid theory was the basis of the jury’s verdict. (People v. Green (1980) 27 Cal.3d 1, 70.)
Doubts have been raised, however, about the continuing validity of the Green rule of reversal. Although the Supreme Court has not yet directly addressed the issue, it raised the question in both Guiton and Harris. In Guiton, the court observed that the Green rule of reversal had always been subject to the Sedeno exception (People v. Sedeno (1974) 10 Cal.3d 703, 72 1) when it was “possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.” (People v. Guiton, supra, 4 Cal.4th at p. II 3 0.) In Harris, the court commented even more ominously: “In light of the many decisions of the United States Supreme Court ….which were handed down after Green was decided and elaborate on the full nature of the inquiry an appellate court undertakes when conducting Chapman harmless error review, the continued validity of Green’s rule of reversal could be questioned, to the extent it conflicts with the principles announced in those cases.” (People v. Harris, supra, 9 Cal.4th at p. 424, fn. I 1.)
Classifying the error as legal rather than factual thus does not end the inquiry. It is not possible to determine from the instructions and the jury’s verdict that it did not rely on the abdominal injury as the cause of death. The People argue, however, that the jury could not have relied on the abdominal injury under the instructions given on causation, CALJIC Nos. 9.55, 3.40, which state: “To constitute murder or manslaughter, there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death. [T] The law has its own particular way of defining cause. A cause of the death is an act that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act the death and without which the death would not have occurred.” The People’s argument is hard to credit in light of the prosecutor’s heavy emphasis during closing argument on appellant’s commission of the abdominal injury as the malicious act and causation for a second degree murder verdict. [Footnote 2]
The defense, on the other hand, argued that the chest injury was the cause of death and was negligently inflicted by an accidental kick or in an attempt to administer CPR. Although appellant had denied punching J in the stomach, there was clear testimony to the contrary by J’s mother Ms. S. The evidence of appellant’s intent on that occasion was much clearer than on the occasion of his blow to J’s chest. Appellant admitted hitting J in the chest, but he claimed it was done with the intention of saving her. Given the murkiness of the evidence relating to when and how chest injury was inflicted, it cannot be concluded that the jury necessarily relied on it as the proximate cause of death.
Even if we were to apply the standards of more recent Unite States Supreme Court cases, as suggested in People v. Harris, supra, 9 Cal.4th at p. 424, we would still find the error prejudicial. In Yates v. Evatt (1991) 500 U.S. 391, the Supreme Court refined the nature of the inquiry a reviewing court must undertake in applying the Chapman harmless error standard to cases in which the jury was misinstructed on some aspect of an element of the charged offense. Instead of focusing on whether the evidence was overwhelming, Yates directs us to determine what evidence the jury actually considered under the instructions and to decide whether a reasonable jury would have come to the verdict without consideration of the erroneous portion of the instruction. (Yates v. Evatt, supra, 500 U.S. at pp. 403-4,’.)5; see also People v. Harris, supra, 9 Cal.4th at pp. 424-43 1.)
We are unable to find the error harmless under those standards. The prosecutor’s heavy emphasis on the stomach punch, coupled with the ambiguity regarding the circumstances of the blow to the chest, make it impossible to conclude that the jury reached its verdict without considering the abdominal injury as a proximate cause of J’s death. The error in submitting the abdominal injury as a proximate cause requires reversal of the conviction for murder as well as the conviction for assault on a child resulting in death since the latter conviction involved the same causation issue.
2. Other Contentions
The remainder of appellant’s contentions are aimed at his convictions for murder and assault on a child resulting in death. Our reversal of those convictions on the causation issue renders it unnecessary to address appellant’s other contentions.
3. Discovery Motion
The discovery motion sought disclosure and in camera review of Mr. P’s “rap sheet” for determination of whether there were any arrests or offenses that would have been admissible to impeach him. Our reversal of counts one and three makes it unnecessary to rule on this motion. Accordingly, the motion is denied as moot.
The judgment of conviction is reversed as to counts one and three; it is affirmed as to count two.
Kline, P. J.
Footnote 1: All statutory references hereafter are to the Penal Code unless otherwise indicated.
Footnote 2: The prosecutor argued in pertinent part: “Implied malice. That’s different…. [¶] But if you punch somebody that’s a small child in the stomach, do you know that is dangerous? Is there anybody who would say punching a small child isn’t dangerous? … Yeah, you know that’s dangerous. You know it and you do it anyhow with conscious disregard for it…. [¶] Now, we know that according to the pathologist, either of a couple of blows could have killed J. He said before that one blow that had happened days earlier would have killed her but for the other blow that ended her life. Well, the law also says if you do something that starts in motion the facts that someone is going to die and some other intervening fact happens,:-,that doesn’t take you off the hook. You are still responsible…. [¶] You punch a child two days before and they actually die because you punched them again, you’re responsible for the first punch and you’re responsible for the second punch. You’re responsible for the kicks and you’re responsible for the death. It doesn’t make a difference whether or not the person would have died anyhow. [¶] If a person unlawfully inflicts a physical injury upon another person and that injury is the cause of the later death, such conduct constitutes an unlawful homicide even though the injury inflicted was not the only cause of the death. [¶] Moreover, that conduct constitutes unlawful homicide even if the person injured had already been weakened by disease or injury or is probable that a person in sound physical condition would not have died from the injury; it is probable that the injury only hastened the death of the injured person; that the injured person would have died soon thereafter from another cause or other causes. Right there. Even if the person would have died from something else, if you cause that injury and the person would have died, you are responsible.”