PEOPLE v. LEE

No. F069840.

THE PEOPLE, Plaintiff and Respondent, v. NICOLE MARIE LEE, Defendant and Appellant.

Court of Appeals of California, Fifth District.


Attorney(s) appearing for the Case

Susan K. Shaler , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Michael P. Farrell , Assistant Attorney General, Daniel B. Bernstein and Craig S. Meyers , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

PEÑA, J.

INTRODUCTION

After a jury trial, defendant Nicole Marie Lee was found guilty on June 9, 2014, of felony child abuse of her three-year-old daughter, Natalynn Miller (Pen. Code, § 273a, subd. (a); count 1), after Lee's boyfriend, Ryann Lynn Jones, beat Natalynn to death.1 The jury also found true a special circumstance that defendant committed willful harm resulting in her daughter's death (§ 12022.95). On July 15, 2014, the trial court sentenced defendant to prison for the midterm of four years on count 1 plus a consecutive term of four years for the special allegation. The court granted total custody credits of six days.

On appeal, defendant contends: (1) the trial court erred in admitting autopsy evidence and photographs of Natalynn, (2) the court erred in permitting evidence of Natalynn's statements that Jones had injured her in the past and she was afraid of him because they were hearsay and violated the confrontation clause of the Sixth Amendment, (3) identification procedures used by an investigator for witnesses who observed incidents in a public restaurant were unduly suggestive, (4) the court improperly excluded the testimony of Jones's brother as a witness to an innocent explanation for why Natalynn called Jones "a monster," as well as to the quality of Jones's relationship with Natalynn, (5) the court did not act fairly and impartially during the trial, and (6) the combination of these errors resulted in cumulative error. We reject these contentions and affirm the judgment.

FACTS

Report of Child in Respiratory Arrest

On Sunday, March 22, 2009, at 5:41 p.m., Visalia police detective Jared Hughes was dispatched to investigate a report of a nonbreathing child. Hughes arrived at the location two minutes later and saw a man, Jones, running out of an apartment complex holding a child, Natalynn, in his arms. Jones followed Hughes's instruction to place the child down on the grass. Hughes found Natalynn's skin cool to the touch and her face was pale. Natalynn had no pulse, was soaking wet from head to toe, and had bruising on her head, shoulder, and both wrists. Sergeant Randy Lentzner arrived and performed CPR using a breathing mask to cover Natalynn's face. Neither Hughes nor Lentzner used chest compressions. They achieved a faint pulse.

Lentzner gave a few breaths to Natalynn until he saw her chest rise. Paramedics arrived within a minute and took over her care. When the paramedics cut off Natalynn's clothing, Hughes saw further bruising on her chest, forehead, back, thighs, ankles, and left nostril. Hughes spoke with Jones and followed the ambulance to the hospital. Hughes stayed with Natalynn until the doctors declared her dead at 6:13 p.m. Hughes took photographs of Natalynn to document her injuries.

Hughes talked with defendant at the hospital. Defendant was upset with Hughes because she believed Jones was being detained at the residence. When Hughes asked defendant about Natalynn's bruising, she said Natalynn had stuck a seashell up her nose. Defendant was aware of a bruise to her head and shoulder. Defendant could not account for the additional bruises and said that prior to her death, Natalynn was "perfectly healthy" and was not under a doctor's care.

Jones arrived at the hospital and Hughes took defendant and Jones to the room to see Natalynn. Defendant was very distraught when she first saw Natalynn's body, and she carefully examined Natalynn's head. She turned to Jones and asked, "`What's this?'" Jones redirected defendant's question to a nurse. After talking to Jones, defendant viewed Natalynn a second time and told Hughes Natalynn had run into a countertop 20 minutes prior to Jones finding her.

Detective Osvaldo Dominguez was dispatched to the hospital at 5:50 p.m. on March 22. He observed multiple bruises on Natalynn, an abrasion on one of her nostrils, and a bump and bruise on her forehead. Dominguez took statements from Jones and Troy Miller, Natalynn's father. Miller was visibly upset; he was crying and very emotional. Dominguez attended Natalynn's autopsy on Tuesday, March 24.

Police Questioning of Defendant

Dominguez contacted defendant on Wednesday, March 25, and questioned her on that date at police headquarters. A video recording of the questioning was played for the jury. A transcript of the questioning was also provided to the jury.

Defendant told Dominguez Jones had been staying with her and Natalynn in their residence. Before defendant left for work at 4:30 p.m. on Sunday, March 22, 2009, she worked with Natalynn in making a going away card for a friend; Jones had been watching television. Defendant said when she left, Jones and Natalynn were relaxing in the living room watching television.

Jones called defendant at 5:45 p.m. to tell her to come home immediately because Natalynn hurt herself, she had stopped breathing, and Jones had called for an ambulance. When defendant asked Jones what happened, he replied he thought Natalynn fell. Defendant arrived home just as the ambulance was transporting Natalynn to the hospital. Defendant proceeded to drive to the hospital and called Jones, who told her he was being detained because there was bruising on Natalynn. Jones told defendant Natalynn had been running around just fine when he heard a thud. Jones told defendant he thought Natalynn jumped off the bed or dropped a toy. Jones waited a minute and then checked on Natalynn.

Jones told defendant he placed Natalynn's face in water and Natalynn started sucking in water. Defendant said he noticed Natalynn's stomach was hard, so he pushed on her stomach and she spit up something. According to defendant, Jones told her he tried to perform CPR and then called 911. Natalynn started spitting up more. Jones brought Natalynn outside to the paramedics. Defendant told Dominguez that Natalynn had not injured herself while playing outside that day and had not fallen or hit herself. Defendant told Dominguez Natalynn had run into a sliding glass door and had also fallen off a bed a week before she died. Also about a week earlier, Natalynn had stuck a clamshell up her nose.

Defendant told Dominguez that Jones was good with kids and it was not unusual for him to watch Natalynn. When Dominguez asked defendant about Natalynn's multiple bruises, defendant replied that she saw a bruise on the side of Natalynn's temple in the hospital and Jones told defendant Natalynn had been running around before she hit her head on the wall or on the corner of a table or door.

Dominguez showed defendant photographs of Natalynn taken before and after she died. Defendant explained the bruising from an incident occurring earlier in the day when Natalynn died; Natalynn fell while standing on her bed and trying to pull socks out of a high dresser drawer. Another incident involved Natalynn running into a patio door a few days earlier. Defendant could not explain what happened to Natalynn when shown photographs of bruises to her chin. Defendant said Natalynn bumped into something three days before she died, causing bruising or a scab to her shoulder. Defendant said on another occasion, defendant had discovered a bump on the top of Natalynn's head while doing her hair. Natalynn said she did not know how it happened.

Defendant told Dominguez Natalynn had not complained about injuries to her legs, back, or stomach. Defendant would discipline Natalynn with warnings, time-outs, and the occasional light spankings on Natalynn's bottom with her hand over Natalynn's clothes. Natalynn had been spanked the week before she died. Jones spanked Natalynn when he was watching her, and he told defendant he had spanked Natalynn the day she died.

Defendant told Dominguez that Jones was used to playing rough with boys, but not with girls. Natalynn had complained to defendant and Miller that Jones played too rough with her. According to defendant, Jones denied Natalynn's allegations. Natalynn complained to defendant of not wanting to stay at home but instead asking to go to work with defendant. Defendant believed Natalynn's death was an accident and she suspected no wrongdoing. Defendant believed Miller was just trying to place blame on someone.

Dominguez informed defendant the coroner had found Natalynn died from multiple blunt force trauma to the head, body, and stomach. Dominguez showed defendant autopsy photographs of fresh injuries to Natalynn's head and stomach and told defendant the doctor found bleeding in Natalynn's brain. Dominguez told defendant the subdural hematoma—bleeding between the scalp and skull—was recent, within 24 hours of Natalynn's death, and her injuries were not caused by the paramedics. Defendant had no explanation for how the injuries were caused and explained Jones never yelled at Natalynn and was always controlled. Defendant insisted she could not see Jones intentionally doing something to Natalynn.

Autopsy

Dr. Burr Hartman was the forensic pathologist who conducted Natalynn's autopsy on March 24, 2009. Natalynn was 37 inches tall and weighed 30 pounds. Dr. Hartman observed many bruises on Natalynn's body and explained what he saw using photographs of her external injuries. People's exhibit 1 showed most of Natalynn's body on the autopsy table before Dr. Hartman conducted the procedure. People's exhibit 2 depicted Natalynn's face, showing her mouth and injury to her nose and bruising to her cheeks and forehead. People's exhibit 6 depicted an injury above the right elbow. People's exhibits 7 and 8 depicted Natalynn's shaved head, revealing multiple bruises, especially on the left side of her head. People's exhibits 9, 10, and 11 showed more bruising to Natalynn's face and head with parallel patterning marks Dr. Hartman could not identify. People's exhibit 12 depicted Natalynn's right shoulder, right ear, and the right side of her chest. People's exhibit 32 is a compact disc with exhibits 1 through 12 depicted digitally and published to the jury.

The injuries depicted in the photographs were all from separate impacts. Natalynn was still alive at the time her body was being bruised. There was no trauma to Natalynn's neck or heart. There was no evidence of strangulation. Dr. Hartman found small amounts of aspirated blood and vomit in her lungs. This occurred before or at the time of death. There was significant evidence of trauma in the form of blood and internal bruising to Natalynn's colon, bowel, abdomen, and the spine along her colon. There was bleeding into her tissues. These injuries could not have been inflicted by Natalynn to herself because of the force required to produce them. The abdominal trauma required a sharp blow.

There was also trauma to Natalynn's brain. There was substantial subgaleal bleeding between Natalynn's scalp and skull. Inside Natalynn's skull there was extensive bleeding under the dura matter. There was bleeding to the thin membrane surrounding Natalynn's brain and to her occipital lobe. The bleeding was red, indicating fresh wounds. The hemorrhaging to Natalynn's brain was acute and was not caused by old subdural hematomas. There was no evidence of brain swelling. It was unlikely Natalynn caused these injuries to herself. Natalynn suffered multiple blunt force trauma to her head. Her cause of death was multiple blunt force trauma and abdominal trauma. Natalynn also suffered exterior chest trauma. Natalynn was alive when she received these injuries, which occurred within minutes or a few hours of each other.

Prior Injuries to Natalynn

Troy Miller and defendant started dating between 2000 and early 2001 and later became engaged. Natalynn was born the summer of 2005. Miller and defendant ended their relationship in 2007 when Natalynn was a year and a half or two years old. Defendant and Natalynn moved in with Jessica Rosales and Miller moved to a separate house. Miller shared custody of Natalynn and had her with him for two weekdays and every other weekend.

Defendant began dating Andrew Rose. Natalynn talked to Miller about Rose and said she liked him. When Miller learned defendant and Natalynn had moved in with Rose, Miller confronted defendant and the two argued. In October 2008, Natalynn began to mention defendant had a new boyfriend, whom Natalynn called "RyRy." Miller learned from defendant that she was dating Jones. At the beginning of defendant's relationship with Jones, Natalynn did not express an opinion about Jones one way or the other.

Toward the end of 2008, Miller began to notice Natalynn had bruises and other injuries. Natalynn complained of pain and told Miller that Jones fought with her. Miller became angry when Natalynn demonstrated punching motions to him. When Miller touched the bruise to make sure there were no underlying lumps, Natalynn "wrenched in pain." The bruises were brown, appearing to be a couple of days old. Miller called defendant to raise his concerns. Defendant told him Jones and Natalynn were just playing. Miller replied that if Jones could not control his strength playing with a child and causing her painful injuries, Jones should stop playing with her. Defendant said she would "`check into it.'"

Miller also noticed Natalynn had little red bumps and bruising on her bottom. This baffled him because Natalynn had been potty trained since she was two years old and at that point she was three. Miller could not get Natalynn to tell him what happened. She became upset when Miller raised the subject and refused to talk about it. Defendant told Miller Natalynn soiled herself but Miller did not believe her.

In October or November 2008, Miller observed knuckle marks on Natalynn's chest. When asked about these, Natalynn told Miller that RyRy fights with her, and she again demonstrated the punching motions. Natalynn described an incident in which Jones had thrown her into a "safety sink."2 Natalynn demonstrated this using a throwing motion. When Miller asked defendant about the incident, defendant said Natalynn had been twirling and fell into a box. As Natalynn was describing the incident, she would put her head down and start bawling. When Miller told Natalynn they had to talk to defendant together about the incident, she told Miller he had to do it. Miller convinced Natalynn she had to be brave and they would talk to defendant together.

Miller and Natalynn confronted defendant. Miller told defendant about Natalynn's complaints about the bruises and that Natalynn was afraid of Jones and did not want him to watch her anymore. Miller said defendant's response was to give "Natalynn the most evilest stare." Miller could tell defendant was not taking the situation seriously. Natalynn left with tears streaming down her face as defendant drove off with her. Miller called defendant and told her to take the matter seriously. He told defendant to act or he would call child protective services. Defendant's demeanor changed and she became nice and polite, telling Miller she understood the seriousness of the situation and she would not leave Natalynn alone with Jones again.

In December 2008, Miller saw a strawberry mark on Natalynn's right shoulder blade. Natalynn told him she fell off her bike when she was with Jones. Two weeks later, Natalynn told Miller that Jones did not like defendant anymore. Miller thought this meant Jones and defendant had broken up. Natalynn appeared to be very happy as she told Miller.

At the beginning of March 2009, Natalynn told Miller defendant and Jones were dating again. Miller was worried about Natalynn's safety. Defendant told Miller that Jones was not watching Natalynn. After this, Natalynn did not want to leave Miller's apartment.

On March 18, 2009, defendant called Miller and told him she was bringing Natalynn over with a bruise on her head. Natalynn told Miller she got the bruise by running into a door. After spending the day with Miller, Natalynn told Miller she wanted to live with him and not live with defendant anymore. Miller received a text from defendant asking if Natalynn could spend the night with him. Miller agreed. Natalynn became very excited when he told her. Miller helped Natalynn with her bath that evening and saw no injuries.

The next morning, on March 19, Natalynn begged Miller to let her stay with him. When defendant arrived for her, Natalynn ran and hid. Miller eventually picked up Natalynn and put her in defendant's car. Defendant told Miller that because her friend Jessica Rosales was moving to Texas, Natalynn would be spending time with Rosales and Rosales would return Natalynn to Miller. Natalynn told Miller she was leaving her stuffed rabbit at his home "to be safe with daddy." Miller blew Natalynn a kiss. Natalynn would not look at him and cried the entire time. It was the last time Miller saw Natalynn alive.

On March 22, defendant's mother called Miller to inform him Natalynn had died. Miller called defendant to ask her if Jones had been watching Natalynn when she died. Defendant said she did not need Miller asking those kinds of questions, Miller was making it worse, and she hung up the telephone. When Miller viewed Natalynn at the hospital, he saw bruises over her body including her chest, head, and back. Miller believed someone killed his daughter.

Jessica Rosales first met defendant in 2001 at a coffee shop near Miller's tae kwon do studio. Rosales once considered defendant to be her best friend. Rosales was also Miller's friend. Rosales had known Natalynn since her birth and considered herself to be like a second mother to her. Not long after defendant began dating Jones, she and Natalynn moved in with him. About a month after defendant began dating Jones, Natalynn told Rosales she did not want to go to Jones's house. Defendant sometimes let Natalynn stay with Rosales but told Natalynn "she would have to get used to [Jones]."

After Rosales began a second job, defendant began to leave Natalynn with Jones when she went to work. After defendant started dating Jones, Rosales noticed bruising on Natalynn. Natalynn told Rosales she was with Jones when she was injured. Rosales saw a bruise and a cut on Natalynn's left cheek in December 2008. Rosales's photograph of the injury was admitted as People's exhibit 25. When Rosales noticed another bruise to Natalynn's cheek, she asked Natalynn about it. Natalynn put her head down and said she was with Jones but could not remember how she got hurt. Defendant and Jones broke up in December 2008 because Jones said Natalynn was a spoiled brat. The two reunited a week or two later.

On December 29, 2008, Rosales noticed Natalynn had another bruise on her face, a cut on her cheek, and a swollen lip. When Rosales asked Natalynn how she was injured, Natalynn told Rosales, "`I can't tell you because mommy will get mad.'" Natalynn then said she could not remember how she was hurt. Natalynn later said Jones injured her. Rosales took photographs of Natalynn's injuries, admitted into evidence as People's exhibits 24 and 25B.

On February 26, 2009, Rosales noticed Natalynn's ears were red and crusty. Natalynn would not tell Rosales how it happened. Rosales took a picture of the injury, admitted as People's exhibit 25C. Rosales texted defendant to find out what happened but defendant never replied. Natalynn later told Rosales she and Jones were playing rough. Rosales took Natalynn to a family clinic to have her ears examined. After communicating this to defendant, defendant told Rosales that Jones had burned Natalynn's ears while blow-drying her hair. Defendant said she would talk to Jones about the injuries.

There were times when Rosales would observe defendant forcing Natalynn to go to Jones's house. Natalynn would start to cry so Rosales would offer to have Natalynn stay with her. On one occasion, defendant grabbed Natalynn, told Natalynn to go with her, and said Natalynn needed "`to get used to him.'" Natalynn replied she did not "want to go to the monster's house."

Beatrice Manriquez was the medical assistant who examined Natalynn's ears at the family clinic. Manriquez described Natalynn's injuries as very red, like fresh wounds on the top part and along the back of both ears. Manriquez found a fresh wound on the back of Natalynn's shoulder. When asked about her injuries, Natalynn looked very scared and said she did not know how they happened.

Rosales began to observe more injuries on Natalynn after defendant would take her to stay with Jones and as Natalynn spent more times with Jones. Rosales told defendant she could leave Natalynn with her. Natalynn was present when Rosales made this offer. Natalynn would start to cry and protest that she did not "want to go to the monster's house." Natalynn would jump on Rosales's back and say she wanted to stay with Rosales. Rosales told defendant not to leave Natalynn with Jones because she always came back with injuries. Defendant replied that Natalynn would have to get used to Jones because Rosales was moving to Texas. Defendant and Jones broke up again in February 2009. Defendant told Rosales that Jones was jealous of Rosales's relationship with Natalynn.

Because Rosales was moving to Texas, defendant and Natalynn moved into their own apartment in early March 2009. Jones started living with them. On March 7, defendant was going to bring Natalynn over to Rosales's but called and said Natalynn had fallen off her crib. Jones brought Natalynn to Rosales's apartment at 12:30 p.m. on March 7. Natalynn had a large bruise on the right side of her head; she was lethargic and looked tired. Natalynn said she did not remember what happened. Rosales took a picture of an injury to Natalynn's head, admitted as People's exhibit 21. Rosales saw a bump and bruising to Natalynn's head. A photograph of Rosales and Natalynn taken the following day was admitted as People's exhibit 23.

When Rosales texted defendant to ask whether Natalynn should be taken to the emergency room, defendant replied no, it was okay, and Rosales should not let Natalynn sleep for more than 30 minutes. When defendant picked up Natalynn later that day, Rosales told her she was very worried about Natalynn's safety and could watch her until Rosales moved to Texas.

On March 19, Rosales did not notice any bruises on Natalynn. On March 20, 2009, the weekend before Rosales was moving, Rosales took Natalynn to a friend's house to watch a movie. Defendant sent a text message to Rosales saying she wanted to pick up Natalynn. Rosales thought Natalynn was staying with her that evening. Rosales met defendant and Jones at her home and "had words" with Jones. Defendant later sent a text to Rosales stating that Natalynn was her daughter.

Natalynn went home with defendant. The following Monday morning, March 23, 2009, Rosales learned Natalynn was dead. Rosales called defendant and asked why she had not called Rosales. Defendant replied it was because Rosales would blame Jones. Defendant told Rosales Natalynn fell down in her room and Jones found her on the floor with her eyes rolled back.

Incidents at McDonald's

In late February 2009, Sabina Cardenas worked as a cashier at the McDonald's restaurant on East Cross Street in Tulare. At about noon one day, Cardenas saw defendant, Natalynn, and Jones sitting in a booth. Cardenas noticed the little girl was crying and Jones yelled at her multiple times to shut up. The first four times, Jones told Natalynn "`to shut the fuck up.'" Jones pounded the table and leaned forward toward Natalynn in a confrontational manner. Defendant sat quietly, saying nothing to Jones. Natalynn cried for another five to ten minutes. Cardenas never saw defendant move to comfort Natalynn.

Cardenas was cleaning a table when the incident occurred. She walked over and cleaned the table next to defendant and her companions. Cardenas got a good look at them all. Cardenas reported the incident to her supervisor but did not contact the authorities. Cardenas identified defendant as the woman she saw with the little girl that day.

Cardenas did not reach out to investigators immediately after Natalynn died because she assumed her supervisor had. A year after Natalynn died, on March 22, 2010, Detective Frank Arnold interviewed Cardenas and showed her photographs of defendant, Jones, and Natalynn. On cross-examination, Cardenas explained Arnold did not ask for physical descriptions of the three patrons prior to showing Cardenas single photographs of defendant, Jones, and Natalynn. Cardenas was able to identify defendant from the photograph Arnold showed her. Cardenas admitted that, during the Jones trial, she did not attempt to identify defendant, who apparently was present in the gallery. Cardenas explained that at Jones's trial, she did not want to look at defendant, so she did not identify her.

In the early evening sometime in February 2009, Debra Bentz took her three grandchildren to McDonald's in Tulare. Bentz and her grandchildren were sitting in a booth next to and facing the booth occupied by defendant, Natalynn, and Jones. Jones's hand was almost touching Natalynn's head. Bentz feared Jones was going to strike the child and nearly called the police. Natalynn looked very scared. Defendant did nothing during the incident and did not try to comfort Natalynn.

Detective Arnold was given information about Bentz from Miller and Rosales, who had heard about the McDonald's incident involving Bentz. On cross-examination, Bentz said Arnold told her he was investigating a death and showed her single photographs of defendant, Jones, and Natalynn prior to questioning her about what she witnessed. Arnold did not ask for descriptions of the three patrons prior to showing Bentz the photographs.

Prior to speaking to Arnold on April 2, 2009, Bentz had seen Jones's picture on the news. Bentz admitted that when Detective Arnold first showed her defendant's photograph, she responded the picture kind of looked like defendant. If a witness makes an identification, Arnold has them sign the photograph; Arnold never forces a witness to sign a photograph. Bentz saw defendant from the back and got a side view of her as she walked out of the restaurant. Bentz did not see the front of defendant's face. Bentz reiterated that the woman she saw at McDonald's looked like defendant.

On redirect examination, Bentz explained the photograph she saw of Natalynn was not just of her face, "[i]t was a complete photograph." Bentz could not remember the exact date she saw the trio in McDonald's, but it was between the middle and late February of 2009.

Tracy Griffin (formerly Dysart) testified that in January 2010, defense investigator Robert Gonzales questioned her about an incident she witnessed at McDonald's. Griffin could not identify defendant in one 6-pack photographic identification sheet prepared by Gonzales and could not identify any of the males in a second sheet. Griffin explained the pictures of the males were too blurry for her to identify anyone. Griffin could not positively identify defendant because the photographs of the women were too dark.

The photograph identification sheets Gonzales showed to Griffin were admitted into evidence. Griffin was able to identify defendant, Jones, and Natalynn from clear color photographs Detective Arnold showed her. Griffin did see coverage of the case on television. Pictures of Jones and Natalynn were shown on television, but not pictures of defendant. Gonzales conceded the pictures of the males on the identification sheet were blurry.

Jail Conversations

Investigators recorded three jail conversations between Jones and defendant after his arrest. The recordings were played for the jury and the jury was provided with a transcript of the conversations, which were admitted into evidence, respectively, as People's exhibits 27 and 46. During the first conversation, defendant talked to Jones about Natalynn's funeral, which he could not attend. Defendant told Jones he was represented at the funeral with photographs of him with Natalynn. Defendant professed her love for Jones multiple times during their conversation. Defendant told Jones she was "so sorry that you're going through this" and "everybody is pulling for you . . . please, please just stay positive."

During the second conversation between defendant and Jones, defendant told Jones she loved him. During the third conversation, defendant and Jones discussed defendant's upcoming visit to the jail. Defendant told Jones she missed him. Defendant told Jones, "I am with you 100 percent. I love you."

Testimony of Defendant's Coworkers

Lisa Narcisse worked with defendant at a clothing store in Visalia. The two women discussed with each other their personal lives. Defendant told Narcisse that Natalynn did not want to stay with Jones. Defendant did not know what to do. Defendant told Narcisse that Jones wanted to break up with her because she would not let him babysit Natalynn. Defendant told Narcisse that on one occasion when she was with Jones, Natalynn kept her diaper on all day, even though she had had diarrhea. Narcisse told defendant "little girls . . . don't sit in their poop" all day, and defendant should be alarmed. Once, Narcisse saw a bruise on Natalynn's cheek and the inside of her mouth was cut. When Narcisse asked defendant what happened, defendant replied that Natalynn had had a nightmare.

In December 2008, Narcisse was watching a news program reporting a young mother had been imprisoned because her son was killed by her boyfriend. Narcisse told defendant about the program. Defendant told Narcisse that Jones was a good person and she was not worried about Natalynn. Narcisse told defendant she did not trust Jones and defendant needed "to wake up." Defendant came to work one day upset that Jones had broken up with her because defendant would not let him babysit Natalynn. Defendant felt she had a conflict. Narcisse asked defendant what 26-year-old-man would want to babysit a child? Narcisse told defendant it was a good thing she finally saw the light and would not leave Natalynn with Jones.

Jennifer Anderson also worked with defendant at the clothing store. Anderson met Jones a few times and was defendant's friend. In December 2008, defendant reported to Anderson that Natalynn was having accidents. Natalynn was peeing in her pants. Anderson thought this was strange for a child who had been potty trained. Anderson thought this could have been a sign Natalynn was under stress.

One time during the holidays, Jones dropped off Natalynn at the clothing store and Anderson saw a small bruise on Natalynn's cheek and a gash on the inside of her lip. Jones said he did not know how Natalynn was injured. At first, Natalynn did not respond to defendant's question about how she was injured. Later, defendant told Anderson Natalynn told her she had a dream about a monster. Anderson did not believe defendant. Defendant told Anderson that Natalynn did not like Jones. Defendant thought it strange a child so young would dislike someone.

Defendant told her supervisor, Nancy Phillips, that Jones once broke up with her because he was jealous of the amount of time defendant spent with Natalynn. The day after Natalynn died, defendant called Phillips and told her Natalynn had been running around, ran into a wall, and Jones had found her unconscious.

Defense Witnesses

Jones's mother, Maria Jones, testified on behalf of defendant.3 Maria met defendant in August 2008. Jones was living with his parents, Maria and Kenneth Jones. Defendant and Natalynn spent a lot of time at Maria's home. Jones cared for Natalynn when defendant was not home. Jones was not working at that time.

In the fall of 2008, Maria heard Natalynn crying. Natalynn told Maria she hit her head on a safe after spinning around and making herself dizzy. Natalynn had a little red mark on her head. Another time, Maria saw scratches on Natalynn's legs after Natalynn reported she fell off a toy tractor. Natalynn hurt her leg in September 2008, after falling off a bicycle. When Maria saw Jones wrestling with her grandsons, Natalynn always joined in, and Maria never heard Natalynn complain about being injured.

In explaining the atmosphere in her home when Natalynn, defendant, Jones, and other family members were present, Maria described her family as being "very close" and "a regular family" that watched television together. Jones and defendant would join them in the living room and would ask Maria and her husband to watch Natalynn. She would sit on their laps and share a recliner with them. Maria described Natalynn as their little entertainer who would dance and sing.

Jones brought Natalynn to Maria's home the day before she died. Natalynn appeared disoriented and dizzy. Maria laid Natalynn down for a one-hour nap. Natalynn woke up from the nap, looked fine, and Jones took her home. The next day, the day Natalynn died, Maria saw a bruise on Natalynn's forehead. Natalynn told Maria she had run into a sliding glass door at home. Natalynn also told Maria she stuck a seashell up her nose. Natalynn seemed to Maria to be very quiet and not herself that day.

One of Natalynn's preschool teachers, Nadine Kelly, stated she was a mandated reporter and did not see any injuries to Natalynn during the weeks preceding her death. Margott Delatorre, another preschool teacher, said she once saw a large bruise or knot on Natalynn's forehead. When Delatorre asked Natalynn about the injury, defendant replied and told her Natalynn had tripped and hit her head on the sidewalk. Because Delatorre's grandson had fallen off a chair resulting in a similar knot on his head, Delatorre believed defendant at the time. Natalynn never told Delatorre that anyone abused her.

Lacy Blozack, defendant's friend and former coworker, said defendant never expressed concern for Natalynn's safety when she left Natalynn with Jones. Blozack never saw injuries to Natalynn and never saw Jones act abusively toward Natalynn or witness Natalynn being afraid of Jones. Robert and Nancy Lee, defendant's parents, testified defendant and Natalynn never complained to them about Jones. Both parents denied seeing any injuries leading them to believe Natalynn was being abused.

Detective Arnold had shown to both Cardenas and Bentz single photographs of Jones, Natalynn, and defendant. Defendant called an expert in identification procedures and eyewitnesses, who asserted it was suggestive to show a witness a single photograph. The normal procedure was to show a witness a six-pack of photographs with the subject in one of the photographs.

Defendant's Testimony

Defendant explained when Natalynn was younger and defendant was dating Andrew Rose, Natalynn slipped and bumped herself playing at Rose's home. Natalynn would also get scrapes, bumps, and bruises playing outside in Rose's backyard. During 2007 and 2008, Natalynn had other childhood accidents while riding her tricycle. Defendant said prior to meeting Jones, Natalynn would play outside and get scrapes. She would also slip and fall on the wooden floors of the home. Defendant started dating Jones in early August 2008.

Other than normal childhood injuries, defendant remembered Natalynn falling off a child's battery-operated riding tractor at the end of November or in December 2008. Defendant noticed a diaper rash on Natalynn between July and December 2008. Natalynn complained to defendant that Jones played too rough and did "bad things to her." Defendant asked Natalynn if Jones hit her. Natalynn replied Jones did not, but he tickled her on her stomach and neck, which she did not like.

On March 6, 2009, the day defendant and Natalynn were moving into their apartment, Natalynn ran into a sliding glass door, hitting her head. The following day, Natalynn fell off her bed and bumped her head. Natalynn told defendant she was getting socks out of her dresser and fell off her bed. One time, after defendant broke up with Rose, Natalynn had a small cut underneath her lip and a bruise on her cheek. Natalynn said she had been spinning and crashed into a safe. According to defendant, Natalynn liked to spin.

Defendant explained that on the day she died, Natalynn bumped her head on the underside of a table. Defendant denied Rosales thought Jones was abusing Natalynn or had warned her to not leave Natalynn with Jones. Defendant saw Jones spank Natalynn once on the bottom but did not consider that abuse. Defendant also denied having an agreement with Miller to prevent Jones from watching Natalynn. Defendant stated the other witnesses' assertions that they warned her about Jones were not true and had she actually been warned, defendant would have taken the matter more seriously.

Defendant said when she saw Natalynn in the hospital, she was not covered from head to toe in bruises and her nose was not pushed to the side. Defendant described small bruises on Natalynn. There was a small scab on Natalynn's nose from the seashell incident, but it was healing.

Defendant had no reservations about leaving Natalynn with defendant. Defendant thought Natalynn and Jones loved each other. Natalynn told defendant she loved Jones. Defendant would find Natalynn asleep on Jones. Defendant never saw Jones abuse Natalynn and did not think he intentionally hurt Natalynn. Defendant denied ever being in the McDonald's in Tulare and denied being there with Natalynn and Jones.

Defendant had told Jones to stay strong during jail conversations because she was concerned he was suspected of foul play. Defendant denied Natalynn would beg defendant to let her stay with Rosales instead of going to Jones's house. Defendant described the contrary evidence from other witnesses as incorrect or exaggerated, and she asserted Miller lied several times in his testimony.

Defendant admitted she was aware after she started dating Jones that he had a history of violence and had to attend anger management classes. Defendant insisted Jones did not know what happened to Natalynn and tried his best to resuscitate her. Defendant admitted visiting Jones in jail about 10 times and telling him in jail conversations that she loved him. Defendant stated Natalynn did not look like a child who had been beaten to death.

DISCUSSION

I. Autopsy Photographs

Defendant contends the autopsy photographs were irrelevant to the People's case against her because she was not Natalynn's actual killer. Defendant argues the photographs were inflammatory to the jury, inadmissible under Evidence Code section 352, and violated her due process rights. The People respond the photographs were relevant to disputed factual issues involving (1) whether defendant was aware of Jones's past abuse of Natalynn, and (2) to refute defendant's assertion Natalynn's death was accidental. We find the photographs relevant to the People's case and no error in their admission into evidence.

A. Motions to Exclude Autopsy Evidence and Photographs

During pretrial proceedings, defendant objected to the introduction of any evidence of Dr. Hartman's autopsy results of Natalynn because defendant argued they were irrelevant. Defense counsel offered to stipulate Natalynn died in the care of Jones. The trial court ruled Dr. Hartman could testify about Natalynn's autopsy results.

The People filed a motion, opposed by defendant as prejudicial pursuant to Evidence Code section 352, to admit Natalynn's autopsy photographs. The trial court conducted an in limine hearing to examine several photographs the People sought to have admitted into evidence. Ultimately, the court found 12 photographs admissible as described in Dr. Hartman's testimony.

The admitted pictures did not depict the autopsy itself and only showed Natalynn's external injuries. The court found prejudicial and inadmissible photographs showing Natalynn's open skull as Dr. Hartman performed the autopsy, a close-up of Natalynn's face depicting vomit and blood, Natalynn's abdomen opened up during the autopsy, and injury to Natalynn's lung. The court ruled Dr. Hartman could testify to the extent of Natalynn's internal injuries without photographs showing incisions and internal organs. People's exhibits 1 through 12 were also published as a compact disc.

B. Analysis

Only relevant evidence is admissible. All relevant evidence is admissible unless it is excluded under the United States or California Constitution or by statute. (People v. Scheid (1997) 16 Cal.4th 1, 13-14.) Evidence Code section 210 defines relevant evidence as "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The test of relevance is whether the proffered evidence tends to logically, naturally, or by reasonable inference establish material facts such as identity, intent, or motive. (People v. Scheid, supra, at p. 13.)

Under Evidence Code section 352, the trial court may exclude evidence if its probative value is substantially outweighed by the probability its admission will create substantial danger of undue prejudice. The admission of photographs of a victim lies within the broad discretion of the trial court when a defendant asserts the pictures are unduly gruesome or inflammatory. The trial court's exercise of discretion will not be disturbed on appeal unless the probative value of the pictures is clearly outweighed by their prejudicial effect. (People v. Montes (2014) 58 Cal.4th 809, 862; People v. Ramirez (2006) 39 Cal.4th 398, 453-454.) Prejudicial evidence is evidence that uniquely tends to evoke an emotional bias against a party as an individual with only slight probative value. (People v. Virgil (2011) 51 Cal.4th 1210, 1248; People v. Carey (2007) 41 Cal.4th 109, 128.)

Autopsy photographs are very probative where they assist the jury in understanding the pathologist's testimony, provide circumstantial evidence of the defendant's intent to kill, or show the nature and placement of wounds to indicate circumstances leading to the victim's death. (People v. Montes, supra, 58 Cal.4th at p. 862; People v. Howard (2010) 51 Cal.4th 15, 33; see People v. Virgil, supra, 51 Cal.4th at p. 1248.) Photographs depicting a victim's wounds confirm that murder is seldom pretty but are admissible if they are not of a nature as to overcome the jury's rationality. (People v. Montes, supra, at p. 862.) Although autopsy photographs of a murder victim are always unpleasant, they are relevant and admissible if their probative value is not clearly outweighed by their prejudicial effect. (People v. Carey, supra, 41 Cal.4th at p. 128.)

Photographs depicting the victim's body on the medical examiner's table are relevant to establish the defendant could have overpowered the victim with little struggle. Pictures depicting the victim's bloody wounds are relevant to document the breadth and depth of a wound as well as the viciousness of the assault to show the defendant acted with malice. Photographs are also relevant to refute the defendant's assertion that an intoxicated third party who could barely stand or sit up could have inflicted the wound. (People v. Lewis (2009) 46 Cal.4th 1255, 1283.)

Even if photographs are cumulative to medical testimony about the autopsy, a trial court does not abuse its broad discretion in admitting them into evidence. Prosecutors do not have to prove a case with evidence solely from live witnesses, and a jury is entitled to see details of the victim's body to determine if the evidence supports the People's theory of the case. (People v. Roldan (2005) 35 Cal.4th 646, 713, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Garcia (2008) 168 Cal.App.4th 261, 294.)

Defendant argues that because she did not kill Natalynn or aid and abet Jones, the autopsy photographs were irrelevant to the prosecution's case. We disagree. Defendant maintained throughout police questioning and during her trial testimony that Natalynn was an accident-prone child who frequently hurt herself. These alleged injuries were often to Natalynn's head, including an injury to her head the day she died before defendant left the home. Defendant's depictions of the accidents Natalynn suffered were corroborated by other defense witnesses. Defendant discounted the contrary testimony of Miller and Rosales that Natalynn was an agile little girl.

Defendant further discounted observations and concerns expressed to defendant by Miller and Rosales that they found Natalynn with significant bruises and other injuries after she was left in Jones's care. Defendant underplayed the extent of Natalynn's injuries after seeing her body in the hospital. Defendant explained the damage and bleeding to Natalynn's nose as resulting from Natalynn putting a seashell in her nose. Several other eyewitnesses to the state of Natalynn's body in the hospital described the extent of her bruising and other injuries in a very different way.

The 12 autopsy photographs corroborated prosecution witnesses, including Dr. Hartman, who observed massive bruising over most of Natalynn's body. The photographs were not duplicative and showed both the number and extent of Natalynn's external injuries. The photographs demonstrated Natalynn could not have caused such extensive injuries to herself in the days and hours prior to her death and refuted defendant's persistent assertion that Natalynn's death was accidental. Jones had abused Natalynn on prior occasions. Defendant ignored the observations and pleas of Miller and Rosales to keep Natalynn out of Jones's care. The autopsy photographs demonstrated the extent to which defendant failed to see the impending risk to her daughter although she continued to maintain the injuries were self-inflicted or accidental even after Jones inflicted lethal blows.

The trial court carefully weighed the admissibility of each photograph used as evidence, excluding several photographs depicting internal bleeding and ruptured organs and limiting Dr. Hartman's observations of internal injuries to far less graphic verbal descriptions. The court did not abuse its broad discretion in allowing People's exhibits 1 through 12 into evidence to assist the pathologist in his testimony as to the cause of death, which was disputed by defendant, and to aid the jury in its deliberations. The autopsy photographs and evidence were relevant to defendant's case and not unduly prejudicial. The admission of relevant evidence that we have determined was not unduly prejudicial also did not violate defendant's right to due process because it did not render defendant's trial fundamentally unfair. (People v. Hamilton (2009) 45 Cal.4th 863, 930; People v. Partida (2005) 37 Cal.4th 428, 439.)

II. Admissibility of Natalynn's Statements

Defendant challenges the admissibility of statements by Natalynn indicating her fear of Jones or that Jones hurt her. Defendant argues these statements were irrelevant and inadmissible hearsay not subject to exceptions for spontaneous utterances or Natalynn's state of mind. Defendant argues the prejudice of the evidence outweighed its probative value. In a supplement brief, defendant further contends the evidence was so unreliable given Natalynn's young age that defendant was denied her constitutional right to due process and a fair trial. Without citation to any authority, defendant argues in a caption that this testimony violated her right to confrontation. We find there was no error and, alternatively, even if there was error, it was harmless.

A. Procedural History

The People filed a pretrial motion to introduce Natalynn's statements to Miller, Rosales, and defendant. The People contended Natalynn's statements were not hearsay and, if they were hearsay, they were subject to exceptions because they were spontaneous and showed Natalynn's state of mind. Defendant opposed the People's motion because the statements were unreliable hearsay and were not subject to any hearsay exceptions.

The trial court held a pretrial hearing on the People's motion, finding the statements admissible. The court further found the statements were not more prejudicial than probative.

Defendant complains the following statements were irrelevant hearsay not subject to the spontaneous utterance and state of mind exceptions to the hearsay rule: (1) Natalynn's complaints to Rosales that Jones caused her injuries; (2) Natalynn's statement to Rosales that defendant would get angry if Natalynn told Rosales about Jones hurting her; (3) Natalynn's statement to Rosales that she did not want to go to the monster's house; (4) Natalynn's statements to Miller of originally a neutral opinion of Jones; (5) Natalynn's statement to Miller that Jones fought with her; (6) Natalynn's statement to Miller that Jones threw her into a "safety sink"; Natalynn's statement to Miller that a bruise on her chest was from Jones fighting with her; and (8) defendant's statement to Anderson that Natalynn blamed an injury she had in December 2008 on the monster in her dreams, a statement Anderson and her coworkers thought was odd.

B. Hearsay and the State of Mind Exception

When a party seeks admission of out-of-court statements on the basis of the state-of-mind exception to the hearsay rule, courts undertake a multistep analysis to determine the admissibility of the proffered evidence. The evidence must be relevant to prove a matter at issue and trustworthy.

Any objection to an out-of-court statement on hearsay grounds may not be overruled simply by identifying a nonhearsay purpose for admitting the statement. The trial court must further find the nonhearsay purpose is relevant to an issue in dispute. Evidence Code section 1250 authorizes the admission of out-of-court statements to prove the declarant's state of mind. Such evidence is only admissible if the declarant's state of mind is itself an issue in the case or if the evidence is offered to prove or explain acts or conduct of the declarant. (People v. Riccardi (2012) 54 Cal.4th 758, 814, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Riccardi, at p. 815; Evid. Code, § 210.)

Evidence is generally admissible if it tends logically or by reasonable inference to establish material facts such as identity, intent, or motive. Although motive is not normally an element of any crime that must be proved by the People, the crime becomes understandable and inferences regarding the defendants intent are more reasonable where there is evidence of motive. Evidence tending to establish prior quarrels between a decedent and the defendant, including the making of threats, is admissible to show the motive and state of mind of the defendant. The trial court's relevance determination is reviewed under the abuse of discretion standard. (People v. Riccardi, supra, 54 Cal.4th at p. 815, citing People v. Jablonski (2006) 37 Cal.4th 774, 821.)

Under Evidence Code section 1250, "a victim's out-of-court statements expressing fear of a defendant are relevant only when the victim's conduct in conformity with that fear is in dispute." (People v. Riccardi, supra, 54 Cal.4th at p. 816; see People v. Jablonski, supra, 37 Cal.4th at pp. 819-820.) Admission of the victim's state of mind has been upheld by our Supreme Court, as explained in Riccardi, when the victim's fearful state of mind rebutted the defendant's assertions the victim's death was accidental (citing People v. Lew (1968) 68 Cal.2d 774, 778-779); provoked the defendant (citing People v. Spencer (1969) 71 Cal.2d 933, 945-946); the victim voluntarily disappeared (citing People v. Crew (2003) 31 Cal.4th 822, 840); or when the victim's state of mind is relevant to an element of an offense (citing People v. Sakarias (2000) 22 Cal.4th 596, 629). (Riccardi, supra, at p. 816.)

In Jablonski, the defendant's estranged wife and her mother were assaulted and killed inside their home. Both victims made statements to third parties describing their fear of the defendant. The Jablonski court distinguished statements by the mother, who expressed her fears to the defendant, from those of her daughter, for which there was no evidence to show they were also made to the defendant. The mother's statements were not admissible for the nonhearsay purpose of showing the mother actually feared the defendant. Jablonski held the statements communicated by the mother to the defendant were relevant on the issue of whether the defendant premeditated the murders because it had bearing on the defendant's mental state in visiting the two women and his stealthy confrontation of them; these were indicia of premeditation. (People v. Jablonski, supra, 37 Cal.4th at pp. 820-821.) Jablonski was cited with approval by Riccardi, which found that whether the defendant was aware of the victim's fear is a foundational fact to the admissibility of the evidence. (People v. Riccardi, supra, 54 Cal.4th at pp. 816-819.)

As noted by the People, Natalynn's fear of Jones and her statements indicating he caused her injuries were relevant to show Natalynn's death was not an accident as defendant contended. The jury had to determine if defendant was criminally negligent in leaving Natalynn in Jones's care. Natalynn's fear of Jones and the injuries she said he caused were directly communicated to defendant in a number of ways over the course of months. After Miller found knuckle marks on Natalynn's chest in November 2008, Natalynn told Miller how Jones fought her, and she demonstrated the punching to Miller. When asked by Miller about Natalynn's report, defendant said she would look into it. Natalynn also reported Jones had thrown her into a safe. Defendant denied Natalynn's report and told Miller Natalynn was twirling around and fell into a box.

When Miller and Natalynn later confronted defendant about Natalynn's complaints, defendant gave Natalynn what Miller described as an evil stare. Although Natalynn had tears rolling down her face, Miller could tell defendant was not taking the situation or Natalynn seriously. When Miller threatened to contact social services, defendant's demeanor changed and defendant told Miller she would not leave Natalynn with Jones again. After defendant and Jones broke up and got back together, defendant told Miller that Jones was not watching Natalynn. Miller's concerns for his daughter and Natalynn's fear of Jones were communicated directly to defendant, who persisted in leaving Natalynn under Jones's supervision and lying to Miller about Natalynn's care.

After defendant started dating Jones, Rosales noticed bruises on Natalynn, who told Rosales she was with Jones when she was injured. Natalynn told Rosales she did not want to go to Jones's house. Rosales began to photograph and document Natalynn's injuries. When Natalynn's ears appeared to have burns on them in February 2009, Rosales sent defendant a text message to ask her what had happened. Defendant initially replied that Jones played rough with Natalynn, then later admitted Jones burned Natalynn's ears with a blow dryer. This evidence demonstrates defendant was aware of Natalynn's mental and physical state but continued to allow Jones to care for Natalynn.

Rosales also observed defendant forcing Natalynn to go to Jones's home. Natalynn would cry and ask to stay with Rosales. On one occasion, defendant grabbed Natalynn and told her she had to stay with Jones and to get used to him. Natalynn responded that she did not want to go to the monster's house. Sometimes defendant would let Natalynn stay with Rosales, but not always. Natalynn clearly and unequivocally communicated her fear of Jones directly to defendant. Rosales was observing injuries to Natalynn after she was in Jones's care. The jury could reasonably infer from Natalynn's mental state as communicated to defendant that any reasonable observer would be on notice Natalynn was not merely harming herself by accident.

Rosales told defendant she could leave Natalynn with her. Natalynn was present when Rosales made this offer. Natalynn jumped on Rosales's back, clinging to her and saying she wanted to stay with Rosales. Defendant told Natalynn she would have to get used to Jones because Rosales was moving to Texas. After breaking up with Jones a second time, defendant told Rosales defendant was jealous of Rosales's relationship with Natalynn. The two did not remain separated for long.

These facts directly show defendant's knowledge of Natalynn's fear of Jones, Natalynn's stated desire to not stay with Jones, and Natalynn's state of mind. The hearsay statements are not admissible to prove Natalynn actually feared Jones or was injured by him. The statements demonstrate Natalynn's communicated fear to defendant after defendant kept leaving Natalynn with Jones.

Defendant argues that Natalynn did not fear her, so Natalynn's fear was not relevant on the claim of accident. Defendant argues she did not accidentally cause Natalynn's injuries or death. A "victim's out-of-court statements expressing fear of a defendant are relevant only when the victim's conduct in conformity with that fear is in dispute." (People v. Riccardi, supra, 54 Cal.4th at p. 816; see People v. Jablonski, supra, 37 Cal.4th at pp. 819-820.) Natalynn's communicated fear to defendant about Jones included Natalynn's fear that defendant kept leaving Natalynn with Jones. Natalynn did not express fear defendant would physically harm her, but Natalynn did communicate her fear to defendant concerning defendant's continuous use of Jones as a babysitter. Natalynn also expressed these concerns to Miller and Rosales, as well as her worry that defendant would do nothing about the situation and get angry with Natalynn for complaining about Jones as a caregiver. All of Natalynn's conduct with defendant, Miller, and Rosales was in conformity with her stated fears.

Natalynn's state of mind and her conduct in conformity with that state of mind were admissible to defeat defendant's defense based on accident. The prosecution bore the burden of proving defendant acted in a willfully neglectful manner and with criminal negligence.4 We therefore reject defendant's argument that because she was not the perpetrator of Natalynn's injuries, Natalynn's fear of Jones was irrelevant. Natalynn communicated her fears to defendant, and Natalynn's state of mind was directly related to defendant's ongoing neglectful conduct. Defendant continued to assert Natalynn died accidentally, which necessarily placed defendant's alleged neglect into contention.

There was substantial evidence at trial that Natalynn's fear of Jones had been conveyed to defendant directly by Miller and Rosales. It was further conveyed directly by Natalynn to her mother. Defendant had knowledge Natalynn was in fear of Jones after she had visible injuries on her person. On multiple occasions, Natalynn's fear of Jones—her state of mind—was communicated to defendant, who continuously attributed Natalynn's injuries to accident. Natalynn's state of mind was relevant to the contested issue of whether defendant was willfully neglectful and criminally negligent, or whether Natalynn died accidentally after a series of unfortunate accidents. (People v. Riccardi, supra, 54 Cal.4th at pp. 816-819; People v. Jablonski, supra, 37 Cal.4th at pp. 820-821.)

For the state of mind evidence to be admissible, it must also be trustworthy. Defendant contends Natalynn's statements were untrustworthy because she was only three years old when she made her statements. Statements that are otherwise admissible under Evidence Code section 1250 may be rendered inadmissible by the requirement in Evidence Code section 1252 that the evidence be trustworthy. The requirement of trustworthiness applies to the statement made by the hearsay declarant, not to the testimony of the witness relating the hearsay statement to the trier of fact. The declarant's statements must be made in a natural manner and not under circumstances of suspicion to carry a probability of trustworthiness. They must be made at a time when there is no motive to deceive. (Evid. Code, § 1252; People v. Riccardi, supra, 54 Cal.4th at p. 821.)

Natalynn's statements to her father, her mother, and to Rosales reflecting her state of mind were made close in time to when bruises, cuts, burns, and other injuries appeared on her and were conveyed in a natural manner. Natalynn's injuries are consistent with her reports of abuse and her stated fear of Jones. There is no evidence in the record indicating Natalynn had any motive to deceive. We reject defendant's argument that Natalynn's age showed she could not understand the difference between truth and falsity. Natalynn's statements were trustworthy and therefore not rendered inadmissible under Evidence Code section 1252.

We find all the hearsay statements by Natalynn challenged by defendant to be admissible under Evidence Code section 1250: Natalynn's statements to Rosales complaining about Jones and stating Jones caused her injuries; Natalynn's statement to Rosales that defendant would get mad if Natalynn reported to Rosales that Jones hurt her; Natalynn's statement to Rosales that she did not want to go to the monster's house; Natalynn's statements to Miller that Jones had fought with her; and Natalynn's statement to Miller that Jones threw her into a "safety sink."5 These statements were usually made at the same time Natalynn expressed fear of Jones and were communicated by Miller and Rosales to defendant. Except for the incident involving the blow dryer, defendant attributed each incident to an accident or horseplay.

We reject defendant's challenge to Natalynn's statements to Miller that she originally had a neutral opinion of Jones when defendant and Jones started dating. In reviewing Miller's testimony on this point, we find he did not attribute any statement or comment to Natalynn. In his testimony, Miller stated he observed no reaction from Natalynn to Jones as they first encountered each other. Miller was conveying his observations of Natalynn's demeanor and it was not, therefore, an out-of-court statement.

We also reject defendant's attack on defendant's statement to Anderson that the monster caused Natalynn's injuries.6 A careful reading of Anderson's testimony demonstrates Anderson stated defendant went into the restroom with Natalynn after Natalynn came into the store with an injury. Anderson was not present in the restroom. When defendant returned to Anderson from the restroom, defendant told Anderson that Natalynn reported her injury was caused by a "monster in her sleep or the monster in her dream or something." Although the statement is two layers of hearsay as pointed out by defendant in her reply brief, it does not implicate Jones. More importantly, the statement does not inculpate defendant and is therefore harmless beyond a reasonable doubt.

C. Evidence Code Section 352

As discussed above, when a claim is made that photographs of the victim are unduly gruesome or inflammatory, Evidence Code section 352 accords the trial court broad discretion to admit or exclude such evidence. On appeal, the court's exercise of that discretion will not be disturbed unless the probative value of the evidence is clearly outweighed by its prejudicial effect. (People v. Montes, supra, 58 Cal.4th at p. 862.)

In pretrial hearings, the trial court expressly found Natalynn's state of mind hearsay statements were more probative than prejudicial. Natalynn's state of mind in communicating her fears to other adults were probative of defendant's willful and criminally negligent conduct in continually leaving Natalynn in Jones's care. The physical evidence of Natalynn's injuries was evident to all who saw her and was documented by Rosales's photographs. Although Miller, Rosales, and Natalynn herself conveyed Natalynn's fears to defendant, she ignored everyone's concerns and attributed Natalynn's injuries to accident or harmless horseplay. Natalynn's state of mind was more probative than prejudicial.

D. Harmless Error

Even assuming Natalynn's statements were inadmissible hearsay not subject to the state of mind exception, we find there was overwhelming nonhearsay evidence demonstrating defendant was on notice her daughter's life was at risk when she left Natalynn in Jones's care. Between late October 2008 and March 7, 2009, Natalynn was observed by Miller, Rosales, and defendant's coworkers with serious bruises, cuts, bumps on her head, and burns to her ears. Natalynn did not suffer injuries like these prior to defendant dating Jones. Rosales observed these injuries after Jones had cared for Natalynn. Rosales was defendant's friend and helped defendant at times with Natalynn's daily care. Rosales was able to more consistently observe Natalynn than Miller, who had only limited physical custody of her.

Rosales documented with photographs the injuries Natalynn suffered on several occasions after defendant began dating Jones. Rosales's pictures were admitted into evidence. Miller and Rosales confronted defendant about Natalynn's injuries on multiple occasions. During these confrontations with adults, defendant consistently dismissed Natalynn's injuries as not serious or accidentally caused by Natalynn herself. Had the trial court excluded Natalynn's out-of-court statements, the prosecution's case that defendant neglected her daughter was very strong and convincing. On two different occasions at McDonald's, independent witnesses observed Jones nearly hitting Natalynn and defendant passively looking on. The evidence supporting defendant's accident defense was implausible, and defendant's explanations of what happened to Natalynn the day she died were inconsistent.

The trial court did not abuse its discretion in admitting the statements identified by defendant. Defendant has failed to demonstrate prejudice under either state law (People v. Watson (1956) 46 Cal.2d 818, 836) or the federal Constitution (Chapman v. California (1967) 386 U.S. 18, 24). (People v. Riccardi, supra, 54 Cal.4th at p. 827.)

E. Further Constitutional Challenges

In supplemental briefing, defendant challenges Natalynn's state of mind evidence as in violation of defendant's rights to due process, a fair trial, and to confront witnesses. Defendant asserts Natalynn's statements were inherently untrustworthy because there was no evidence she understood the difference between telling the truth and lying. However, the standard for a violation of due process under the United States Constitution is the introduction of evidence that produces a fundamentally unfair trial. (People v. Hamilton, supra, 45 Cal.4th at p. 930; People v. Partida, supra, 37 Cal.4th at p. 439.) As noted above, we find no fundamental unfairness to the introduction of evidence of Natalynn's state of mind.

Defendant does not cite to any argument or authority for her claim of confrontation error. This assertion of error is one clause in a caption in defendant's supplemental brief. Because there is no argument or authority concerning this point, it is deemed to be without foundation and does not require discussion by the reviewing court. (In re S. C. (2006) 138 Cal.App.4th 396, 408.)

In any event, the confrontation clause issue fails on its merits. In Crawford v. Washington (2004) 541 U.S. 36, 68-69, the United States Supreme Court held the right of confrontation applies only to out-of-court testimonial statements, and such statements are admissible at trial only when the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Subsequently, the court articulated the corresponding rule that the confrontation clause does not apply to nontestimonial hearsay. (See Whorton v. Bockting (2007) 549 U.S. 406, 420; Davis v. Washington (2006) 547 U.S. 813, 821-822 [testimonial character of a statement separates it from other hearsay subject to traditional limitations but not subject to confrontation clause].)

Testimonial statements "have two critical components. First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution." (People v. Dungo (2012) 55 Cal.4th 608, 619.) There is nothing in the record to indicate Natalynn's out-of-court statements were made with some degree of formality or solemnity. The record is also devoid of any evidence showing the primary purpose of Natalynn's statements pertained in any fashion to a criminal prosecution. We therefore reject defendant's constitutional challenges to Natalynn's out-of-court, state-of-mind statements.

III. Identification Procedures

Defendant contends Cardenas and Bentz—the witnesses who identified defendant as being at McDonald's with Jones and Natalynn—were subjected to suggestive identification procedures because Detective Arnold showed them single photographs of each subject prior to asking them for descriptions of each person. Defendant argues the trial court erred in failing to grant her pretrial motion to exclude this testimony, and she was prejudiced by its admission. Under the totality of the circumstances, we do not find error.

A. Procedural Background

Defendant filed a motion in limine to exclude any identification from the two incidents at McDonald's. During the pretrial hearing, defense counsel specified that a single photograph identification procedure was improper and unduly suggestive. Defense counsel argued a defense investigator subsequently showed the same two witnesses a six-pack photographic lineup and they could not identify defendant. The trial court found the evidence admissible and defendant could cross-examine the witnesses on their later inability to identify defendant.

B. Analysis

When challenging a lineup as suggestive or tainted, the defendant bears the burden of showing unfairness as a demonstrable reality, not just by speculation. (People v. DeSantis (1992) 2 Cal.4th 1198, 1221-1222; People v. Ochoa (1998) 19 Cal.4th 353, 412.) The question of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances. In making the second determination, courts evaluate factors such as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his or her prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. "`If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.'" (People v. DeSantis, supra, at p. 1222.)

A due process violation occurs only if the identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States (1968) 390 U.S. 377, 384; People v. Cook (2007) 40 Cal.4th 1334, 1355.) A single person showup is not inherently unfair. A procedure is unfair if it suggests in advance of the witness's identification the identity of the person suspected by the police. (People v. Ochoa, supra, 19 Cal.4th at p. 413.)

Although a single-suspect identification procedure generally is not the ideal or preferred method and can pose a danger of suggestiveness, it is not necessarily unfair. (People v. Clark (1992) 3 Cal.4th 41, 136, abrogation on other grounds recognized in People v. Pearson (2013) 56 Cal.4th 393, 462; see People v. Medina (1995) 11 Cal.4th 694, 753.) Having a witness view a single photograph of the defendant is no more impermissibly suggestive than an in-court identification of the defendant sitting at the defense table in the courtroom. (People v. Yonko (1987) 196 Cal.App.3d 1005, 1008-1009.) Other than the use of single photographs for each subject, there is nothing else in the record to suggest Detective Arnold encouraged Cardenas or Bentz to identify defendant. (People v. Nguyen (1994) 23 Cal.App.4th 32, 39.) On the other hand, the single photograph procedure has been criticized. (See People v. Contreras (1993) 17 Cal.App.4th 813, 820.) Assuming arguendo that the procedure used here was "unduly suggestive and unnecessary," we review the identification process under the totality of the circumstances to determine if it was unfair.

Bentz was questioned less than two weeks after Natalynn died and approximately six weeks after the McDonald's incident. Bentz apparently had a clearer view of Jones and Natalynn than she did of defendant. Bentz did see defendant from behind while she sat but saw her profile as she left the restaurant. It is reasonable to infer Bentz also saw defendant's body at the same time. Because Bentz did not see the front of defendant's face during the McDonald's incident, she forthrightly told Arnold and testified at trial that defendant looked like the woman in the restaurant the day of the incident.

Cardenas was contacted by Arnold a year after Natalynn died. Cardenas, however, paid close enough attention to the incident she witnessed that she had reported it to her supervisor. This incident was noteworthy because Jones told Natalynn to "shut the fuck up" four different times and left Natalynn crying at the table. Cardenas also cleaned the table next to defendant, Jones, and Natalynn and got a good look at all three of them before they left the restaurant. Cardenas was certain of her identification at the time she made it to Arnold and at defendant's trial. As for Cardenas's reluctance to identify defendant at Jones's trial, she explained this was because she could not look defendant in the eye at that time.

The unique circumstances of Jones's behavior—yelling at and nearly hitting a small child only three and a half years old—made both encounters memorable and noteworthy. The witnesses were not identifying a single suspect to a crime occurring at evening in a dark alley. Jones's conduct occurred inside a restaurant with presumably good lighting. The witnesses were identifying a mother, her daughter, and the mother's boyfriend who were dining together. It is far less probable that two independent witnesses to two separate events would misidentify defendant at the same restaurant in Tulare, a small community. As noted above, Detective Arnold did nothing to encourage Cardenas or Bentz to positively identify defendant. Under the totality of the circumstances, we find the identifications of defendant by Bentz and Cardenas were reliable.

IV. Alleged Exclusion of Defense Evidence

Defendant contends the trial court enforced discovery procedures prejudicially because the court's orders effectively excluded exculpatory testimony of Kenneth Jones, Jr., Jones's brother. Kenneth Jones, Jr., was going to testify that Jones and Natalynn had an innocent explanation why Natalynn called Jones a monster. Defendant argues the trial court's restrictions on Kenneth Jones, Jr.'s ability to testify violated her evidentiary rights as well as her constitutional rights to confront witnesses, to present a defense, and her right to due process.

The People respond that the trial court was willing to allow Kenneth Jones, Jr., to testify, he was never called by the defense, and defense counsel never objected to the discovery requirement imposed by the trial court. Defendant responds the trial court's requirements for Kenneth Jones, Jr., to testify were unreasonable because they required an interview with an investigator, a written report of the interview, and submission of the report to the prosecutor. We find no error.

A. Procedural Background

In the middle of the People's case, defense counsel called Kenneth Jones, Jr., to conduct an Evidence Code section 402 hearing. Counsel proffered that Kenneth Jones, Jr., would testify to the relationship between defendant, Jones, and Natalynn; that he was a mandated reporter and received no complaints from Natalynn; he witnessed Natalynn playing with his son, and saw an injury Natalynn received while playing on a tractor. The People objected to Kenneth Jones, Jr.'s testimony because he had not cooperated with police who had attempted to question him and he was trying to protect his brother.

In order to comply with the People's right to discovery, the trial court asked if there was a way for the People to question Kenneth Jones, Jr. The court ordered the People could question Kenneth Jones, Jr., prior to his testimony to the jury. Kenneth Jones, Jr., agreed to be questioned by investigators. During questioning during the Evidence Code section 402 hearing outside the jury's presence, Kenneth Jones, Jr., testified he never received complaints from Natalynn regarding his brother's treatment of her. Kenneth Jones, Jr., never saw injuries to Natalynn and was not aware of any issue regarding his brother prior to Natalynn's death.

Kenneth Jones, Jr., remembered Natalynn telling him she called Jones a monster in the context of Jones hiding at a window. The trial court ruled Kenneth Jones, Jr., could testify to these points over the prosecutor's objection that Kenneth Jones, Jr., said something different in a prior interview. The court noted the prosecutor could impeach Kenneth Jones, Jr., with his prior statement. The court advised Kenneth Jones, Jr., he had to submit to an interview with an investigator prior to testifying at trial.

Later in the proceedings, the prosecutor informed the court her investigator had received a call from Kenneth Jones, Jr., who informed the investigator he would not speak to him. The court noted the evidentiary hearing was not completed because the witness had agreed to an interview and had now made himself unavailable. The court further noted if Kenneth Jones, Jr., chose to testify, the court would address the matter when he was called as a witness.

The trial court later asked defense counsel for a time estimate on the defense case. The court stated it could no longer conduct Evidence Code section 402 hearings with respect to witnesses for whom the defense failed to provide discovery. The court explained the defense had to comply with discovery rules and noted Kenneth Jones, Jr., had not made himself available. Further, if counsel prepared a report from his own investigator as to what Kenneth Jones, Jr., would be testifying about, the court would take it into consideration. The court explained that if Kenneth Jones, Jr., was an important defense witness, then defense counsel should have had his own investigator interview him so the People could conduct their own investigation. Kenneth Jones, Jr., was never called as a witness.

B. Forfeiture

Reviewing courts will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. The purpose of this rule is to encourage parties to bring errors to the attention of the trial court so they may be corrected. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Exceptions to the forfeiture rule are permitted, but should be exercised rarely. (Ibid.; People v. McCullough (2013) 56 Cal.4th 589, 593.) Even where the defendant claims the trial court's rulings demonstrated an asymmetrical application of the rules of evidence in violation of the defendant's due process rights, failure to raise the issue with the trial court subjects the claim to forfeiture for appellate review. (People v. Blacksher (2011) 52 Cal.4th 769, 842; People v. Halvorsen (2007) 42 Cal.4th 379, 414.)

Defendant never objected to any part of the trial court's discovery order regarding Kenneth Jones, Jr. Nor did defense counsel object on the basis the evidentiary posture of the witnesses called by each party was asymmetrically biased toward the People. Finally, any supposed constitutional infirmity in the trial court's ruling was never raised. This issue was forfeited for appellate review.

C. Alternative Analysis

Alternatively, we find no merit to defendant's contention. Although Kenneth Jones, Jr., was interviewed by Detective Arnold, he was apparently very uncooperative and revealed little. The court conducted a brief Evidence Code section 402 hearing in which the witness stated he never saw any indication Natalynn suffered injury other than an accident involving a tractor. He also stated Natalynn called Jones a monster when he was hiding behind a window, an innocent explanation of her description of Jones. The trial court ruled that Kenneth Jones, Jr., could testify to these matters.

From defense counsel's offer of proof, it appeared Kenneth Jones, Jr., had much more to say, including the quality of defendant's family life with Jones. To the extent the defense sought to go beyond the matters Kenneth Jones, Jr., presented in the hearing, the trial court required only that he make himself available to the prosecutor's investigator. When Kenneth Jones, Jr., later refused to talk to the prosecutor's investigator, the trial court only required he talk to a defense investigator and a written report of his proffered testimony be provided to the prosecutor.

The trial court's discovery ruling was not unreasonable. It was designed only to give the People notice of a witness's testimony, not to exclude the testimony. There is no explanation in the record as to why the defense failed to call Kenneth Jones, Jr., on the matters covered in the Evidence Code section 402 hearing. Defense counsel never sought to call Kenneth Jones, Jr., as a witness for the trial court to consider the extent to which he could testify without providing the prosecution with discovery, a procedure suggested at one stage by the trial court. Because the record is silent as to why Kenneth Jones, Jr., was not called as a witness, we cannot rule out the possibility the defense chose not to comply with the court's discovery ruling or chose not to call him as a witness for tactical reasons. Given the procedural posture of the proceedings, defendant has failed to demonstrate any error by the trial court and we find none.

V. Alleged Bias by the Trial Court

Defendant contends the trial court committed prejudicial misconduct against her by favoring the prosecution in its rulings throughout the trial. Defendant asserts constitutional error undermining her Sixth and Fourteenth Amendment rights to counsel and a fair trial before an impartial judge. Defendant argues the trial judge was biased against her because the court (1) made several sua sponte objections to defense evidence, (2) treated the defense disparately from the prosecution in ruling on evidentiary objections, (3) became an adversary to defendant, (4) forced the defense to rush its case, and (5) excluded Kenneth Jones, Jr., as a witness. The People again raise forfeiture and challenge each of defendant's issues on the merits. We do not find forfeiture except as already noted. We do not find error.

A. Forfeiture

As noted above, failure to raise the issue with the trial court subjects the claim to forfeiture for appellate review. (People v. Blacksher, supra, 52 Cal.4th at p. 842; People v. Halvorsen, supra, 42 Cal.4th at p. 414.) We found defendant has forfeited her claim Kenneth Jones, Jr., was excluded as a witness. We found no error on the merits of this issue and do not reexamine it. Defendant's allegation of favoritism by the trial court toward the prosecution presents a claim of systematic bias that likely would have made objections by defense futile. A defendant does not forfeit his or her claim of judicial misconduct for failure to object to the trial court's conduct where the hostility between the court and defense counsel is evident. (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) The cumulative effect of the trial court's comments throughout the penalty phase of a capital case could be so fundamentally unfair and biased as to require reversal. (Id. at pp. 1243-1244.)

In Sturm, the judge made numerous and extensive disparaging remarks about defense counsel in front of the jury. (People v. Sturm, supra, 37 Cal.4th at pp. 1233-1236.) The trial court must avoid comments conveying a message to the jury that the judge does not believe the testimony of a witness. (Id. at pp. 1237-1238.) People v. Houston (2012) 54 Cal.4th 1186, 1220, however, applied forfeiture to issues concerning alleged bias by the trial court because the circumstances evidencing hostility by the judge toward counsel were not present there. (Ibid.)

We do not find the trial court's conduct toward defense counsel to be one-sided, nor do we find anything approaching the hostility shown by the trial judge toward defense counsel in Sturm. We therefore find forfeiture of the issues raised by defendant concerning judicial bias. Alternatively, we find no merit to the issues raised by defendant concerning judicial bias.

B. Legal Principles

A fair tribunal is a basic requirement of due process. The due process clause guarantees a criminal defendant the right to a fair and impartial judge. (People v. Freeman (2010) 47 Cal.4th 993, 1000.) The public policy in California codified in the Code of Civil Procedure is concerned both with the rights of the parties and to ensure public confidence in the judiciary. (Freeman, supra, at pp. 1000-1001.) In evaluating due process, the United States Supreme Court focuses on actual bias. Due process guarantees an impartial adjudicator. Although actual bias need not be demonstrated, the probability of bias by a judge must be so great as to become constitutionally intolerable. The standard is an objective one. (Caperton v. A. T. Massey Coal Co. (2009) 556 U.S. 868, 880-881; Freeman, supra, at p. 1001.)

The court in Caperton found due process was violated by a West Virginia high court justice's refusal to recuse himself from a case involving a $50 million damage award against a coal company whose chairman contributed $3 million to the justice's election campaign. The justice cast the deciding vote overturning the award. (Caperton v. A. T. Massey Coal Co., supra, 556 U.S. at pp. 886-887; People v. Freeman, supra, 47 Cal.4th at p. 1001.) Caperton noted that states have moved to adopt judicial conduct codes with standards more rigorous than due process requires. (Caperton, supra, at pp. 888-890; Freeman, supra, at p. 1005.) The due process clause provides a constitutional floor in matters involving judicial disqualification. Because codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution, which will be confined to rare cases. (Ibid.)

The protection afforded a litigant under the due process clause in the realm of judicial disqualification extends beyond the narrow common law concern of a direct, personal, and pecuniary interest in a case to a more general concept of interests that tempt adjudicators to disregard neutrality. (Capertonv. A. T. Massey Coal Co., supra, 556 U.S. at pp. 877-878; People v. Freeman, supra, 47 Cal.4th at p. 1005.) Where such interests are present, a showing of actual bias is not required. Courts ask not whether a judge is actually, subjectively biased, but whether the average judge in his or her position is likely to be neutral, or whether there is an unconstitutional potential for bias. (Caperton, supra, at p. 881; Freeman, supra, at p. 1005.)

Due process should not be routinely invoked as a ground for judicial disqualification, but is confined to the exceptional case presenting extreme facts. Less extreme cases, including those involving the mere appearance but not the probability of impropriety, should be resolved under more expansive disqualification statutes and codes of judicial conduct. (Capertonv. A. T. Massey Coal Co., supra, 556 U.S. at pp. 889-890; People v. Freeman, supra, 47 Cal.4th at p. 1005.) In rejecting the defendant's assertion his due process rights were violated, the California Supreme Court in Freeman found none of the matters implicated by due process: pecuniary interest, enmeshment in contempt proceedings, or the amount and timing of campaign contributions. (Freeman, supra, at p. 1006.)

The Freeman decision noted four cases relied upon by the defendant involved judicial conduct rendering a fair trial impossible. (Catchpole v. Brannon (1995) 36 Cal.App.4th 237 [bias against women]; Hall v. Harker (1999) 69 Cal.App.4th 836 [bias against lawyers]; In re Marriage of Iverson (1992) 11 Cal.App.4th 1495 [bias against women]; Hernandez v. Paicius (2003) 109 Cal.App.4th 452 [bias against noncitizens].) Our Supreme Court noted these decisions showed actual bias by the judge in comments directed to litigants or their counsel. Freeman disapproved all four cases to the extent they contain language inconsistent with the Freeman and Caperton decisions. (People v. Freeman, supra, 47 Cal.4th at p. 1006, fn. 4.)

In subsequent cases, the California Supreme Court has not found actual bias or a valid due process violation based on other grounds. (People v. Banks (2014) 59 Cal.4th 1113, 1175-1176 [trial court's frustration with defendant's repeated absences from trial not evidence of bias based on defendant's mental health condition; judge's pretrial comments did not impact the jury], overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Houston, supra, 54 Cal.4th at pp. 1220-1221 [using the term "`mumbo jumbo'" in reference to an objection by defense counsel to a question asked of an expert witness by the prosecutor did not demonstrate trial court harbored scornful opinion of defendant's case to extent that judge became a partial arbiter].)

Adverse rulings by a trial judge, especially those subject to review, do not establish judicial bias. (People v. Guerra (2006) 37 Cal.4th 1067, 1112, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)

C. Alleged Sua Sponte Objections by Trial Court

Defendant argues the trial court acted as an advocate for the prosecution by making its own sua sponte evidentiary objections to examination of witnesses by defense counsel. We disagree.

In response to a question from defense counsel, Debra Bentz explained she did not make notes about the incident at McDonald's although she did keep a personal diary of her appointments. Counsel then asked Bentz why she did not note the incident in her appointment book. The trial court told defense counsel the question was argumentative. The prosecutor objected that the question was argumentative and had been asked and answered. The court sustained both objections. Defense counsel's question was argumentative and had already been asked and answered.

During questioning of Maria Jones, there was a long sidebar discussion between the trial court and counsel after defense counsel asked Maria about seeing scratches on Natalynn's leg after she injured herself on a battery-operated tractor. The prosecutor objected the question was outside the scope of the trial court's in limine rulings. During the sidebar discussions, the court voiced its concerns the trial was taking a long time and defense counsel was treating examination of witnesses as though he was in a deposition. The court permitted defense counsel to ask Maria about the tractor incident and any other incident in which there had been testimony, but not an alleged incident that occurred at church. Defense counsel complained he had limited contact with Maria. Maria proceeded to testify about the injury she saw on Natalynn's leg and what Natalynn told her about how she was injured. Defense counsel was not unduly restricted by the trial court in his questioning, and the trial court's observation about defense counsel treating examination as though it was a deposition was a fair and accurate observation of how defense counsel was examining witnesses.

Three other times defense counsel asked Maria Jones and Nadine Kelly leading questions that were objected to by the prosecutor, sustained as to the form of the question, and defense counsel was permitted to continue with his line of questioning. During examination of Maria, the court noted her answers to defense counsel's questions were not responsive. Defense counsel focused his questions and continued with his line of questioning. When defense counsel asked Kelly if the daycare facility was set up to keep children closer to the ground, the trial court advised counsel the question was sounding like a deposition and to set up a foundation for the witness. In each colloquy between defense counsel and the trial court, the court was respectful but clearly trying to move the case forward. The court did not treat defense counsel disrespectfully.

During questioning of defendant, defense counsel asked defendant generally if she had complaints about the care provided at preschool. The court asked counsel the relevance and to get to the issues. Defense counsel focused his question to whether defendant received any complaints from daycare about Natalynn being injured or having difficulties there. Similarly, when defense counsel asked defendant about how many conversations she had with Miller regarding Jones and how many discussions she had concerning Natalynn's complaints about Jones, the court advised counsel to focus on the complaints, not general discussion unrelated to the incident. Defense counsel continued his line of questioning.

When defense counsel asked defendant to start with the first injury defendant saw on Natalynn, the trial court reminded counsel he had already asked this question and defendant had answered it. The court noted defendant had also testified about Natalynn's second injury and permitted defense counsel to proceed questioning defendant about Natalynn's third injury. The court struck a statement by defendant she had already answered. And the court told defense counsel to direct his witness when her answer to a question veered off topic about how she learned what was happening to Natalynn. The court advised defense counsel defendant's response to a question concerning whether she talked to an investigator became unresponsive when she included a statement about wanting her lawyer present. Defense counsel again repeated a question concerning Natalynn's injuries that defendant had already answered.

We find no indication of judicial bias in any these interchanges individually or cumulatively.

D. Alleged Disparate Treatment of Counsel

During redirect examination of Troy Miller, the prosecutor was questioning Miller about a phone conversation he had with defendant prior to defendant dropping Natalynn off with Miller. The prosecutor then directly asked Miller if defendant talked about any injury to Natalynn. Defense counsel's objection the question was leading was sustained and defense counsel requested a sidebar. Defense counsel objected to the trial court allowing the prosecutor to continue using the style of repeating testimony by the witness and following up with a new question. The prosecutor noted she was only refreshing the witness's prior testimony.

The court explained it was sustaining defense objections to leading questions by the prosecutor. Repeating an answer by a witness, the court explained, is a style of direct examination the court permits for continuity, but not when it is leading. If a witness testifies he or she does not remember prior testimony, the court advised both counsel to refresh the witness's recollection. The prosecutor stated she would use transcripts when a witness could not recollect prior testimony. The court admonished the prosecutor not to refresh a witness's testimony by telling the witness what he or she stated before. The prosecutor took exception to the admonishment, noting defense counsel conducted himself in this manner throughout the trial. The court stated it understood.

During the defense case, and outside the jury's presence, the court admonished defense counsel he was getting into extraneous matters, they needed to get through witnesses as efficiently as possible, and the trial was not a deposition. The court explained it had difficulty understanding the relevance of the testimony of the prior witness, daycare worker Kelly. The court explained it permitted the questioning because there was no objection from the prosecution. After Kelly had answered defense counsel's questions about whether she ever saw injuries to Natalynn and her general emotional state, counsel had launched into broad inquiries about the daycare facility, its attention to safety, and whether it ever reported to child protective services that Natalynn was injured or abused. The trial court accurately observed defense counsel's questions were going afield from the issues presented at trial.

The court explained the problem with Maria Jones's testimony was she was more interested in setting out a defense for her son, explaining what he said or did, rather than getting to the principal issues concerning her observations of injuries to Natalynn. Defense counsel's questioning of Maria concerning how Detective Arnold treated her was in the context of serving a search warrant. It was irrelevant to defendant's case and was more appropriate to defense counsel's closing argument. The court also pointed out defense counsel needed to stop his style of asking a question to affirm what a witness had already said.

Read in context, it is clear the trial court was not favoring one party over the other. The court admonished the prosecutor to use transcripts to help a witness refresh recollection rather than repeating the witness's prior testimony. The court told defense counsel to stop repeating a witness's prior testimony in the context of asking a new question. Both attorneys essentially were advised to stop the same tedious questioning technique in the interest of judicial economy.

Defendant goes through a one-sided review of objections by defense counsel to prosecution questions that were overruled, but prosecution objections to questions asked by defense counsel that were sustained. The opposite also occurred throughout the trial. The trial court's evidentiary rulings were consistent, well considered, and fair to both parties.

E. Alleged Time Limits on Defense Case

Defendant contends that although the prosecutor exceeded her time estimate for trial, defense counsel had not done so. According to defendant, the trial court treated the defense harshly for its time management during trial. The record does not support this claim.

The trial commenced on May 19, 2014. The trial court stated its understanding the case could extend until June 3. After in limine motions, the prosecution began its case on May 21, 2014. On May 30, 2014, defense counsel informed the court the prosecutor had exceeded her time estimate by a day-and-a-half. Defense counsel stated his concern about finishing by afternoon on June 3, 2014, because he had 13 witnesses to call. The court asked both counsel to be efficient so they could finish the trial on time. The prosecutor stated she estimated she would finish her case by 11:30 on June 2, 2014.

On June 2, 2014, there was discussion between the court and the parties concerning whether the prosecutor would play just one jail recording of a conversation between Jones and defendant or all three. Defense counsel said they were two days past the prosecution's time estimate and he was worried he would not have time to call all 13 of his witnesses. Defense counsel described the task as impossible and argued his client would be prejudiced if he could not put on her defense. The court contested defense counsel's statement that he had not been allowed to put on his case, noting he was given time to cross-examine the People's witnesses, an important part of defendant's case.

The court went into recess for lunch at 12:05 p.m. on June 2, 2014. A hearing outside the jury's presence was conducted between 1:05 p.m. and 1:25 p.m. The People rested at 2:12 p.m. The first defense witness was called at 3:20 p.m. and questioned until the evening recess at 4:30 p.m. Between June 3d and 5th, 13 defense witnesses, including defendant, testified for the defense. The defense rested at 3:23 p.m. on June 5, 2014.

We have analyzed the length of testimony by the key witness for the People, Troy Miller. Miller was questioned on direct examination by the People for approximately 100 pages of reporter's transcript. He was cross-examined by defense counsel for about 84 pages. Miller's redirect and recross examinations were, respectively, five and 12 pages long. Miller was questioned by the prosecutor for over 105 pages of reporters transcript and cross-examined by defense counsel for over 104 pages. This illustrates that a key part of the defense was to cross-examine witnesses, and defense counsel did so vigorously for each witness called by the People.

There is no objective basis for defendant's contention the trial court unduly rushed her defense, impaired her ability to call 13 witnesses, or for her counsel to carefully cross-examine all of the People's witnesses. Defendant's argument in her reply brief that she called only 13 witnesses and the prosecution called two more witnesses does not establish the trial court provided insufficient time for defendant to present her case. Although the trial was originally scheduled to end on June 3, 2014, the defense did not rest until midafternoon on June 5th. The jury deliberated on June 6th and June 9th and reached a verdict on the 9th. We find no merit to defendant's argument the trial court unduly rushed her defense or otherwise limited it, and we reject this contention.

VI. Alleged Cumulative Error

Where, as here, nearly all of defendant's assignments of error are rejected, there is no cumulative error. (People v. Jenkins (2000) 22 Cal.4th 900, 1056; People v. Bradford (1997) 15 Cal.4th 1229, 1382; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)

DISPOSITION

The judgment is affirmed.

GOMES, Acting P.J. and DETJEN, J., concurs.

FootNotes


1. Unless otherwise designated, all statutory references are to the Penal Code.

In a separate jury trial, Jones was convicted of second degree murder and assault of a child causing the child's death. (§ 273ab, subd. (a).)

2. At trial, Miller testified he later found out Natalynn was referring to "a metal box which was a safe."
3. Because she shares the same last name as her son, we refer to Maria Jones by her first name.
4. Section 273a, subdivision (a) can be violated several ways by a person who (1) willfully and directly inflicts unjustifiable physical pain or mental suffering on a child, (2) willfully permits the infliction of such pain, suffering, or injury on the child's person or health, or (3) having care or custody of the child, willfully places or permits the child to be placed in such situation that the child's person or health is endangered. All types of conduct governed by the statute require willful conduct and conduct committed under circumstances or conditions likely to produce great bodily injury. (People v. Lee (1991) 234 Cal.App.3d 1214, 1220-1221.) The term willful does not require intent to injure the child, but implies a purpose or willingness to commit the act, or make an omission. (Id. at p. 1221.) Cases involving indirect abuse, such as this, require a showing of criminal negligence. (People v. Sargent (1999) 19 Cal.4th 1206, 1218-1224; People v. Toney (1999) 76 Cal.App.4th 618, 622.) The jury was instructed with CALCRIM No. 821, which included all of these elements.
5. Because we find Natalynn's out-of-court statements admissible under Evidence Code section 1250, we do not reach the issue of whether Natalynn's statements were also spontaneous declarations under Evidence Code section 1240.
6. In her opening brief, defendant attributes Natalynn as the person making the monster statement to defendant. Plaintiff clarifies, and defendant accepts the clarification, that Natalynn made a statement to defendant outside Anderson's presence, which defendant then conveyed to Anderson.

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