IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,

Case No. C077516

v.
JESSICA NICOLE BRADFORD,
Defendant and Appellant.

Shasta County Superior Court, Case No. 11FF6931
The Honorable Cara Beatty, Judge
RESPONDENT’S BRIEF

KAMALA D. HARRIS
Attorney General of California
GERALD A. ENGLER
Chief Assistant Attorney General
MICHAEL P. FARRELL
Senior Assistant Attorney General
CARLOS A. MARTINEZ
Supervising Deputy Attorney General
CATHERINE TENNANT NIETO
Deputy Attorney General
State Bar No. 179182
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 323-6307
Fax: (916) 324-2960
E-mail:
Catherine.TennantNieto@doj.ca.gov
Attorneys for Plaintiff and Respondent

1

 TABLE OF CONTENTS
Page
Statement of the Case ................................................................................... 9
Statement of Facts ........................................................................................ 9
A.

Discovery of baby’s body ........................................... 9

B.

Appellant’s interview with detectives ....................... 10

C.

Jovan Castillo ............................................................ 19

D.

Subsequent investigation........................................... 22

E.

Expert testimony ....................................................... 28

F.

Appellant’s prior pregnancy...................................... 29

G.

Defense ...................................................................... 33

Argument .................................................................................................... 37
I.

II.

III.

IV.

The trial court properly exercised its discretion in
dismissing Juror 761446....................................................... 37
A.

Background ............................................................... 37

B.

Discussion ................................................................. 43

The court properly instructed the jury on felony
murder and kidnapping......................................................... 46
A.

Kidnapping and felony murder instructions.............. 46

B.

Discussion ................................................................. 48
1.

Felony murder ................................................ 48

2.

People v. Green .............................................. 49

3.

Kidnapping instructions ................................. 52

4.

Ineffective assistance of counsel .................... 57

Appellant invited any error associated with the court’s
instructions on how the jury could use evidence of her
earlier pregnancy; appellant cannot show counsel was
ineffective ............................................................................. 58
A.

Background ............................................................... 58

B.

Discussion ................................................................. 61

Overwhelming evidence showed that the baby died as
a direct result of appellant’s actions ..................................... 63

2

 TABLE OF CONTENTS
(continued)
Page
V.

There was no cumulative error ............................................. 65

Conclusion .................................................................................................. 66

3

 TABLE OF AUTHORITIES
Page
CASES
In re Fields
(1990) 51 Cal.3d 1063 ........................................................................... 62
In re Hitchings
(1993) 6 Cal.4th 97 ................................................................................ 45
In re Michele D.
(2002) 29 Cal.4th 600 ............................................................................ 53
People v. Ainsworth
(1988) 45 Cal.3d 984 ........................................................... 48, 49, 50, 51
People v. Bean
(1988) 46 Cal.3d 919 ............................................................................. 63
People v. Benavides
(2005) 35 Cal.4th 69 .............................................................................. 57
People v. Billa
(2003) 31 Cal.4th 1064 .......................................................................... 48
People v. Bolin
(1998) 18 Cal.4th 297 ............................................................................ 65
People v. Bonin
(1989) 47 Cal.3d 808 ............................................................................. 50
People v. Booker
(2011) 51 Cal.4th 141 ............................................................................ 48
People v. Brown
(1976) 61 Cal.App.3d 476 ..................................................................... 45
People v. Burden
(1977) 72 Cal.App.3d 603 ..................................................................... 64
People v. Burton
(1971) 6 Cal.3d 375 ............................................................................... 48

4

 TABLE OF AUTHORITIES
(continued)
Page
People v. Campos
(1982) 131 Cal.App.3d 894 ............................................................. 55, 56
People v. Cissna
(2010) 182 Cal.App.4th 1105 ................................................................ 45
People v. Cleveland
(2001) 25 Cal.4th 466 ............................................................................ 44
People v. Coffman and Marlow
(2004) 34 Cal.4th 1 ................................................................................ 61
People v. Combs
(2004) 34 Cal.4th 821 ............................................................................ 63
People v. Cooper
(1991) 53 Cal.3d 771 ............................................................................. 45
People v. Enraca
(2012) 53 Cal.4th 735 ............................................................................ 61
People v. Fuiava
(2012) 53 Cal.4th 622 ............................................................................ 43
People v. Green
(1980) 27 Cal.3d 1 ............................................................... 49, 50, 51, 52
People v. Hajek
(2014) 58 Cal.4th 1144 .......................................................................... 52
People v. Harris
(1993) 19 Cal.App.4th 709 .................................................................... 57
People v. Harris
(2008) 43 Cal.4th 1269 .......................................................................... 61
People v. Hill
(2000) 23 Cal.4th 853 ............................................................................ 53

5

 TABLE OF AUTHORITIES
(continued)
Page
People v. Jennings
(2010) 50 Cal.4th 616 ............................................................................ 65
People v. Johnson
(1980) 26 Cal.3d 557 ............................................................................. 63
People v. Jones
(1990) 51 Cal.3d 294 ............................................................................. 63
People v. Jones
(2003) 108 Cal.App.4th 455 ................................................ 53, 54, 55, 56
People v. Ledesma
(2006) 39 Cal.4th 641 ............................................................................ 45
People v. Little
(2004) 115 Cal.App.4th 766 .................................................................. 63
People v. Lomax
(2010) 49 Cal.4th 530 ............................................................................ 44
People v. Martin
(2000) 78 Cal.App.4th 1107 .................................................................. 48
People v. Mendoza
(2000) 24 Cal.4th 130 ...................................................................... 44, 45
People v. Moore
(2011) 51 Cal.4th 1104 .......................................................................... 53
People v. Oliver
(1961) 55 Cal.2d 761 ....................................................................... 53, 54
People v. Price
(1991) 1 Cal.4th 324 .............................................................................. 57
People v. Raley
(1992) 2 Cal.4th 870 .................................................................. 50, 51, 52

6

 TABLE OF AUTHORITIES
(continued)
Page
People v. Robertson
(2004) 34 Cal.4th 156 ............................................................................ 64
People v. Schmeck
(2005) 37 Cal.4th 240 ............................................................................ 46
People v. Seaton
(2001) 26 Cal.4th 598 ............................................................................ 65
People v. Senior
(1992) 3 Cal.App.4th 765 ...................................................................... 54
People v. Stamp
(1969) 2 Cal.App.3d 203 ....................................................................... 49
People v. Thompson
(1990) 50 Cal.3d 134 ............................................................................. 49
People v. Virgil
(2011) 51 Cal.4th 1210 .......................................................................... 43
People v. Wader
(1993) 5 Cal.4th 610 .............................................................................. 61
People v. Washington
(1965) 62 Cal.2d 777 ............................................................................. 48
People v. Williams
(2001) 25 Cal.4th 441 ............................................................................ 44
Strickland v. Washington
(1984) 466 U.S. 668 ......................................................................... 57, 62
STATUTES
Evidence Code
§ 352....................................................................................................... 59
§ 1101..................................................................................................... 58
§ 1101, subd. (b) .............................................................................. 58, 59
§ 1109..................................................................................................... 58

7

 TABLE OF AUTHORITIES
(continued)
Page
Penal Code
§ 187, subd. (a)................................................................................... 9, 63
§ 188................................................................................................. 63, 64
§ 189....................................................................................................... 48
§ 207....................................................................................................... 54
§ 207, subd. (a)....................................................................................... 53
§ 278....................................................................................................... 55
§ 1089..................................................................................................... 44
OTHER AUTHORITIES
CALCRIM
No. 375 ................................................................................. 59, 60, 61, 62
No. 540A .......................................................................................... 46, 49
No. 1201 ................................................................................................. 47

8

 STATEMENT OF THE CASE
On May 8, 2014, the district attorney filed amended information
number 11F6931 in the Shasta County Superior Court, charging appellant
Jessica Nicole Bradford with one count of first degree murder (Pen. Code §
187, subd. (a)). 1 (1 CT 212-213.) Following a trial, on June 6, 2014, the
jury found appellant guilty as charged. (2 CT 333-334.)
On October 3, 2014, the court sentenced appellant to 25 years to life
in prison. (3 CT 935.) On that same date, appellant filed a timely notice of
appeal. (3 CT 937.)
STATEMENT OF FACTS
While most mothers have a strong instinct to care for and protect their
child, appellant did not. Rather, her actions prevented her newborn baby
from having any chance of survival and led directly to the baby’s death.
A.

Discovery of Baby’s Body

In November of 2011, Alexandra Valencia worked as a staff member
at the Julian Youth Academy (“the Academy”), a Christian camp in
Whitmore, located about an hour outside of Redding. (1 RT 370.)
Valencia made sure the girls attending the Academy got up for school, and
she watched over them throughout the day. (Ibid.) The Academy had
several large dormitories with four rooms in each, and two girls typically
shared a room inside the dormitories. (1 RT 370-371.)
Valencia lived in dormitory B2 with six girls, as well as appellant,
who was also an adult staff member. (1 RT 371-372.) Late one night
Valencia went into appellant’s room to grab some extra blankets for Kori

1

Hereafter, all statutory references are to the Penal Code, unless
otherwise noted.

9

 Alugas, who was moving into the bedroom next to Valencia. (1 RT 373374.) As she was searching a bin full of blankets in appellant’s room,
Valencia noticed an awful smell, as if something had died. (1 RT 375-376.)
Valencia grabbed one of the blankets, and the body of a baby girl rolled
out. (1 RT 375.) At first, Valencia did not think it was real. (1 RT 376.)
She called Alugas from the other room. (Ibid.) Valencia showed Alugas
the baby, and Alugas also did not think she was real. (1 RT 377, 392.) The
two left the baby where Valencia had found her because they knew
appellant would be back soon. (Ibid.)
The next day, on Saturday, November 6, 2011, Valencia had to help
prepare breakfast. She had a difficult time sleeping the night before based
on what she had seen. (1 RT 378.) After appellant left to drive some girls
to the airport, Valencia and Alugas went back to search for the baby where
they had found her, but the baby was no longer there. (Ibid.) Valencia
reported what she had seen to her supervisor, Tiffany Morgan. (Ibid.)
That day Shasta County Sheriff’s Deputy Craig Tippings contacted
appellant, and she nervously led him to the utility room adjacent to her
dormitory. (1 RT 296-298.) Appellant directed the deputy to a laundry
basket. Under a pink pillow inside the basket, Deputy Tippings found a
dead baby. (1 RT 297, 299, 347.)
B.

Appellant’s Interview with Detectives

At 11:00 p.m. that night until approximately 2:30 a.m. the next
morning, Shasta County Sheriff’s Detectives Brian Jackson and Eric
Magrini interviewed appellant. 2 (1 RT 411; 2 RT 535.) Appellant
informed the detectives that she was 23 years old, 5’5” tall and weighed

2

The prosecutor played a video of the interview for the jury (Exh.
76). (1 RT 412-413.)

10

 170 pounds. (2 CT 425.) She had been dating her boyfriend Jovan Castillo
for the last three years, and their relationship was good. (2 CT 426-427.)
Appellant met Castillo through a mutual friend in San Diego, and he had
also moved to Whitmore to work at the Academy. (2 CT 427.)
Appellant did not see a doctor on a regular basis because she did not
have health insurance. (2 CT 428.) When asked when she last saw a
doctor, appellant replied, “Mmm…long time ago. I don’t remember
when.” (Ibid.) Appellant denied taking any illegal drugs, but admitted
drinking alcohol every weekend. She remarked, “It’s a tough job.” (2 CT
430.)
Detective Jackson asked about the dead baby. Appellant informed the
detective that the baby was a girl and that she had not named the baby. (2
CT 435-436.) Appellant denied that Castillo knew she was pregnant, even
though the baby was his. Appellant explained that Castillo had asked her
several times why her stomach was getting big, but appellant would reply
that she did not know. (2 CT 436.) Appellant had tried to hide the
pregnancy by wearing bigger clothes. (2 CT 459.) Appellant claimed she
did not know she was pregnant until she started showing, and the baby
started to kick. (2 CT 436-437.) Appellant did not tell Castillo she was
pregnant because she was scared she would lose her job. (2 CT 437.)
Appellant also did not want to disappoint anybody. She explained that she
had been raised in a Christian home and had been taught not to have sex
until she was married. (Ibid.)
Appellant gave birth to the baby on September 19. (2 CT 438.)
Appellant remembered the date because it was windy and cold, and the
Chargers had played the Patriots that Sunday. 3 Appellant gave birth early
3

The court took judicial notice of an announcement of a game
between the Chargers and the Patriots (Exh. 68) on that date. (2 RT 660.)

11

 Monday morning at around 1:00 a.m. (2 CT 439.) She had woken up and
experienced “really bad cramps so I guess . . . like contractions.” (2 CT
440.) The contractions kept getting worse. To relieve the pain, appellant
took some prescription pain medicine she had previously received from a
dentist earlier that summer. (2 CT 440, 441.) She described, “And I took
that and then I woke and I couldn’t go to sleep ‘cause the pain was so bad
and um, like I was like timing the contractions and then I like just started
pushing I guess….” (2 CT 440.) No one was around in the dormitory
when appellant was in labor. (Ibid.) Appellant went back and forth from
her car to inside the dormitory because she was having such bad pain. She
also took “like eight showers” to calm herself down. (2 CT 444.)
Appellant gave birth under the outside deck. She did not remember
screaming, but she swore a lot because she was in so much pain. (2 CT
444.) Appellant went outside “’cause I didn’t know if anyone else was in
…the building or anything.” (2 CT 463.) Castillo had gone to the casino
that night with Tiffany Morgan and her husband Blaize Morgan. Appellant
had stayed behind to watch Alexandra Valencia, who had broken her pelvis
and was in a wheelchair. (2 CT 463.)
Appellant described that when the time came to deliver the baby, she
stood up and the baby dropped out of her. (2 CT 444.) Appellant stated:
And then I didn’t hear her breathing or anything and I was
like oh, what do I do? So I was like, like kinda like hitting her
back. Not like hard. But just like trying to get her to breathe or
something and nothing happened. So then um, I just like sat
there and like held her and then I got in my car and I [was] just
like holding her in there. And then I like, then I like showered
and…I just spent the night in my car with her ‘cause I was like
so devastated. I couldn’t tell anyone….
(2 CT 445.) Appellant wiped the baby down with towels. When the baby
fell out, the umbilical cord was no longer attached to the baby. (Ibid.)
Appellant showered, and the umbilical cord was hanging out of her, so

12

 appellant tried to pull it out. She sat on the toilet and a “bunch of blood”
came out, so appellant flushed it all down the toilet. (Ibid.)
Appellant’s vaginal area hurt for two weeks afterwards. (2 CT 446.)
She informed the detectives that she kept the baby in the back of her car for
three days. Appellant was going to bury the baby, but then she decided to
keep her in appellant’s room in a basket under some blankets and other
stuff. (2 CT 447.) Appellant acknowledged smelling some odors coming
from the baby. She stated, “And I was like…What am I gonna do?...And I
just…I don’t know what I was thinking. I wasn’t thinking.” (Ibid.)
Detective Jackson asked appellant why she did not call for help when she
realized the baby was not breathing. Appellant replied, “I [was] just scared
I guess. I don’t really…have an explanation….” (2 CT 450.)
Appellant claimed the baby was not moving at all after being born. (2
CT 455.) She told the detectives that the baby’s eyes were open, and the
baby expelled a substance on the blanket. (Ibid.) Appellant described
searching on Google for answers to the questions she had. She explained,
“I Googled am I gonna like get milk and then I Googled how to handle it
‘cause my boobs hurt so bad. And then I Googled how long I’m gonna
bleed for. And just stuff like that.” (Ibid.) Appellant informed the
detectives that she had also searched for information on adoption and safe
surrender sites before the baby was born. (2 CT 456.)
The detectives asked appellant if she had ever helped deliver a baby
before, and appellant replied no. (2 CT 441-442.) Appellant denied being
in a hospital where a baby had been born. She said, “I’ve seen [the movie]
‘Knocked Up’ though. As close as I’ve come.” (2 CT 442.) Detective
Jackson asked her if she had any other children, and appellant replied no.
(Ibid.)
In response to questioning, appellant informed the detectives that she
was first sexually active with Castillo two years earlier. She denied taking

13

 birth control pills, but relied on condoms. (2 CT 442-443.) When asked if
she ever had an earlier pregnancy scare with Castillo, appellant responded,
“Yeah, I thought I was but then I wasn’t,” and that this had happened a year
earlier. (2 CT 443.) When the detectives asked if Castillo would have been
excited if he learned appellant was pregnant with his child, appellant
responded, “…I think he would have been bummed because like it’s both
of our jobs and …we both moved up here … to do this and stuff like
that….” (2 CT 460.) Appellant advised that she and Castillo had stopped
having sex the summer before she gave birth. She explained, “So, we were
still together but we just weren’t, we were more like friends than boyfriend
and girlfriend.” (Ibid.)
Later in the interview, after the detectives continued to question her,
appellant admitted that she had given birth to another baby in March of
2010. (2 CT 466.) She explained:
…I went to the hospital and …I …had a stillbirth I guess
then. That’s why …I didn’t want to tell Jovan ‘cause he …did
take me to the hospital and he was …so heartbroken…. I just
…didn’t wanna put him through that again. That’s why I
…didn’t wanna get help or tell him or anything. And, I just felt
like such a horrible person ‘cause I feel like that’s not me at all.
(2 CT 466.) Appellant acknowledged that Castillo had known about her
first pregnancy, and the first baby had been born in the hospital. (2 CT
483.) The baby had come out stillborn, and appellant had named her Bella.
(2 CT 484.)
Detective Jackson asked appellant what had happened to the most
recent baby. (2 CT 467.) Appellant replied, “I’ve been honest the whole
time with that.” (Ibid.) The detective told her that he was concerned the
baby had been born alive, and evidence would show appellant had not been
honest. (Ibid.) Appellant then admitted that the baby had been born alive.
(2 CT 468.) She told the detectives:

14

 …I just like held her as long as I could and I . . . tried to
breastfeed but like nothing was coming out and, and … so I
…got in my car so many times to take her to…Chico but I
couldn’t. Like I couldn’t get myself to do it. And then…it said
…only a forty eight hour so it was like well, she’s mine and…I
didn’t know what to do….do I take her to the ER?...should I go
to Wal-Mart, get formula? And then I didn’t know what to do.
(Ibid.)
The detective asked, “Jessica, tell me. What’d you do?” (2 CT 468.)
Appellant replied, “I just like took care of her with, tried to feed her and I
guess she just starved. But I didn’t like harm her or anything. Like it
wasn’t intentional….” (Ibid.) Appellant explained that she tried to feed the
baby with her breast milk, but appellant was not producing any. (2 CT
469.) The following discussion took place:
Detective Jackson: Well how many days did this go on?
Appellant: Um, like four.
Detective Jackson: Where’d you go? Let’s talk about it.
Where? I mean this is the stuff I need to understand. Where’d
you go? How’d you hide out?
Appellant: …[T]here’s like… an empty apartment on
campus and I had her in there like with blankets and heat and
…I slept in there with her. And I was just like doing [the] best I
could.
Detective Jackson: So how [did]... you get through that
with your work schedule?....
Appellant: I would just go and check on her and stuff.
Work and, and stay there as late as I could and stuff like that.
Detective Jackson: Try to give her like regular milk? Did
you give [her] bottles? I mean…
Appellant: Uh, I yeah, I tried to give her, I didn’t have any
bottles so I just like putting [sic] my finger like you know like
whatever you do and….

15

 Detective Jackson: Why didn’t…you just step up and say I
have a baby and I need help?
Appellant: I don’t fucking know.
(2 CT 469.)
Appellant told the detectives that she went to check on the baby on
Thursday, and the baby was dead. (2 CT 470, 481.) Detective Jackson
asked how no one heard the baby crying. Appellant replied that the persons
that lived next to where she kept the baby were out of town, so no one was
around to hear the baby cry. (2 CT 470.) Appellant was surprised at how
infrequently the baby cried. She explained, “She really didn’t and I was
like so surprised…I tried …giving her water and stuff. I knew like no
nutrition …was in it or anything.” (Ibid.) Detective Jackson asked, “So
why didn’t you just call for help?” Appellant responded, “I don’t know. I
regret it so much.” (Ibid.)
Detective Jackson asked appellant if she thought she would be better
off without the baby. Appellant replied, “The only reason …I think like
that is because if I had a baby then I don’t have a job. And…I don’t have a
place to live…and then Jovan doesn’t have a job and he doesn’t have a
place to live….” (2 CT 472.) When the detective continued to ask
appellant why she did not get help for the baby, appellant replied:
Well…she was born on like Monday and then I was like hanging
out with her or whatever. And then I went back to work on
Wednesday and I was like okay, if she makes it ‘til like Sunday
then I’ll try and do something like find something for her but she
didn’t. Then I just kept making all these excuses. And then I
was like I’ll call in sick to work tomorrow. And then it was just
like busy days so like I can’t do that. It was just like excuses
after excuses I was making for myself that like, I don’t know.
(2 CT 477-478.) The detective asked what appellant was searching for on
Google that day. Appellant responded, “Like…how to make your milk
come faster…and what, everything was like take her to your doctor. Take

16

 her to your, take it to the doctor….” (2 CT 478.) Appellant denied that she
had suffocated or strangled the baby. (2 CT 479.)
Detective Jackson interviewed appellant a second time the next day,
November 7, 2011, at 12:50 p.m. 4 (2 RT 535.) Appellant did not have any
diapers for the baby. She would bathe the baby when the baby pooped,
then wrap the baby in a new blanket. Appellant believed the baby pooped
two or three times. (3 CT 740.)
Appellant admitted that she drank alcohol throughout her pregnancy.
(3 CT 742.) She claimed she did not know she was pregnant until five
months in. By that time, she had already been drinking, so she did not
change her pattern. (3 CT 729.)
Detective Jackson asked appellant to walk him through how she took
care of the baby. Appellant explained that, after the baby was born, she
spent the night in the car with the baby. Appellant woke up and went to
sleep in her dormitory for a couple hours, leaving the baby in the car.
Appellant returned to her car with the baby and stayed there until 12:00 or
1:00 p.m. (3 CT 754.) Appellant then took the baby to the Pasture 2
duplex and tried to breastfeed her, but breastfeeding was not working.
Appellant tried to feed the baby water. She left the baby at the duplex
alone at 3:00 p.m. while appellant returned to campus to do her laundry and
shower. Appellant returned again, and the baby had pooped, so appellant
bathed her in the sink and tried to give her water again. (Ibid.) Appellant
kept the baby in the Pasture 2 duplex the entire time because she did not
want anyone to see the baby. (3 CT 755.)
That Monday night appellant went down the mountain to Redding at
5:00 p.m. and left the baby at the Pasture 2 duplex. (3 CT 755.) Appellant
4

The prosecutor played the audio recording of the second interview
(Exh. 77) for the jury. (2 RT 536.)

17

 went to Winco with Castillo, but she did not buy anything for the baby. (3
CT 756.) Appellant returned to the Academy at 2:00 or 3:00 a.m. She
went to visit the baby from that time until 6:00 a.m. (Ibid.)
Appellant returned to her dormitory to sleep. Appellant was pretty
sure that she woke up and went back to visit the baby in the Pasture 2
duplex. She told the detective that the baby was sleeping and appellant
tried to breastfeed her again. The baby would “just like latch on and like
fall asleep kinda.” (3 CT 756.) Appellant tried to squeeze her breast to let
milk come out, but nothing was coming out so appellant tried to give the
baby water again with either her finger or with a cup. (3 CT 756-757.)
Appellant explained that the water would go in the baby’s mouth and the
baby would make a “sucky noise.” However, appellant knew the baby was
not getting the water because there was still water in the cup. (3 CT 757.)
On Tuesday afternoon/evening, appellant went back to Redding with
Castillo to get groceries, leaving the baby in the Pasture 2 duplex. (3 CT
757.) Appellant claimed that the door to the duplex was unlocked so
anybody walking by could have entered. (3 CT 757-758.) Detective
Jackson asked her if she was worried about anyone finding the baby when
appellant was gone. Appellant replied, “No, ‘cause no one usually goes in
there.” (3 CT 758.) Appellant knew that the people that lived in the other
side of the duplex were on vacation in Riverside, and the next closest
apartment to the Pasture 2 duplex was not nearby. (3 CT 761.) Appellant
kept the baby away from the window in an open closet area. (Ibid.)
By that time, appellant knew that 48 hours were up for her to be able
to safely surrender the baby. She explained:
And I was like okay, what am I gonna do? And then I was like
it’s Wednesday tomorrow and I have to work. I was like I’ll just
take a sick day and I’ll take her and um, so I like went to work
and I was like acting like I didn’t feel good. And um, Tiffany
[Morgan] was just like well just stick it out or whatever. So I

18

 didn’t take the day off. So then I was just like, I was like okay,
what am I, I’ll just wait ‘till my days off and hopefully she’ll
make it.
(3 CT 758.)
Detective Jackson confronted appellant, “You know that wasn’t gonna
happen. I mean how many times a day do you eat?” Appellant replied, “I
know.” (3 CT 758.) The detective continued:
…[Y]ou didn’t do anything to help her. Okay. You have …
you’re smart enough. You know what you needed to do. You…
knew that. Why didn’t you? I have the answer. You didn’t
wanna affect Jovan’s life. You didn’t wanna affect your life.
You were more concerned about those things than hers. Okay.
So you let her die. How loud did she scream at times the days
before she passed, from hunger?
(3 CT 759.) Appellant responded, “…[S]he was just like crying. She
didn’t really scream and I comforted her.” (Ibid.)
The detective asked appellant why she did not name the baby.
Appellant replied, “Because I felt like if I named her then it was like real.”
(3 CT 750.) She also explained, “…I didn’t feel like I could name her after
like what I did to her.” The detective asked, “What’d you do to her?”
Appellant replied, “I … didn’t take care of her….” (Ibid.)
C.

Jovan Castillo

Jovan Castillo met appellant in San Diego when they were introduced
through a mutual friend. (1 RT 431.) The two began dating shortly
thereafter. (1 RT 432.) Eventually, Castillo moved to Whitmore to work at
the Academy where appellant was also working. (Ibid.) He worked there
for a little over two years. (1 RT 433.) Castillo knew that one of the rules
was no sex before marriage. (1 RT 435.) He admitted that he and appellant
were sexually active while he was working there. Castillo wore condoms
periodically. (Ibid.)

19

 Castillo found out that appellant was pregnant the first time when he
drove her to the hospital in March of 2010. (1 RT 435.) Appellant was
complaining about severe cramps, and Castillo insisted that he take her to
the hospital. (1 RT 436.) Several months earlier, appellant had informed
Castillo that she was pregnant. They had discussed that she needed to get
an abortion so that the two would not lose their jobs. (1 RT 436-437.)
Castillo believed appellant had taken the Plan B pill and terminated her
pregnancy. (Ibid.)
When Castillo took appellant to the hospital, he learned that she was
still pregnant. (1 RT 438.) Appellant delivered a baby girl in the hospital,
but the hospital staff removed the baby shortly after she was born. (1 RT
439.) The baby was placed on life support. Castillo and appellant made the
decision to take the baby off life support because they had been told she
had been deprived of oxygen and would likely be mentally handicapped. (1
RT 440.) Castillo and appellant kept the birth a secret, and they both
returned to work at the Academy. (Ibid.)
After this time, appellant and Castillo continued to have sex, but it
was “[f]ar and few in between.” (1 RT 441.) Castillo believed appellant
was on birth control pills because she had showed him pills she obtained
from Planned Parenthood. (Ibid.) Castillo shared a 2007 FJ Cruiser truck
with appellant. (1 RT 434.) In 2011, Castillo and appellant took several
short trips on their days off. They traveled to Reno and San Francisco.
Castillo commonly drank alcohol on his days off, and appellant also drank
with him. (1 RT 442.) Castillo and appellant also spent a lot of time with
Tiffany and Blaize Morgan on their days off. (1 RT 433.) The two couples
would either hang out at Castillo’s house or drive to Redding to watch
movies or go bar hopping. (1 RT 434.) They also sometimes went skate
boarding or bike riding in Redding. (Ibid.)

20

 In the months leading up to September 2011, Castillo noticed that
appellant was gaining weight. He remembered telling her that she should
walk the track or exercise instead of watching television all day. (1 RT
444.) Castillo did not suspect that appellant was pregnant again. (Ibid.)
He first found out that she had been pregnant a second time and given birth
when the detectives questioned him. (Ibid.) Castillo spent the night at a
hotel with appellant the night after she was first questioned. Appellant did
not say a word to him about what had happened. (1 RT 445.) Had
appellant given birth to a child, Castillo would have stayed with her and
helped her raise the baby. (1 RT 447.)
When Sheriff’s Deputy Caleb MacGregor informed Castillo on
November 7, 2011, that the second baby had potentially been born alive,
Castillo was shocked. He broke down and started crying. (1 RT 460.)
Deputy MacGregor recorded his interview with Castillo, as well as a phone
call made between Castillo and his father. (1 RT 460-461.) The prosecutor
played the recording (Exh. 83) for the jury. (1 RT 461.) The deputy
recorded a subsequent conversation between Castillo and appellant (Exh.
78), which the prosecutor also played for the jury. (1 RT 462.)
During the conversation with appellant, Castillo asked her what had
happened to the baby, and appellant responded, “Just, she didn’t make it.”
(3 CT 719.) Castillo asked, “How?” Appellant replied, “I didn’t take good
[care of her] and go to the hospital and …I didn’t have my milk and I
didn’t…I don’t know. I just didn’t. Doesn’t fucking make any sense. I am
sorry. And I’m, I don’t deserve anything. I don’t, I’m sorry.” (Ibid.)
When Castillo asked her if she neglected the baby, appellant responded, “I
didn’t …feed her. But not on purpose. Like I just didn’t go and buy stuff
for her….” (Ibid.) Castillo asked appellant why she did not take the baby
to safe surrender, and appellant told him, “’Cause I couldn’t let her go.
She’s so beautiful.” (3 CT 720.)

21

 D.

Subsequent Investigation

Tara Berger was a former student at the Julian Youth Academy who
became a staff member in March of 2011. (1 RT 422-423.) When Berger
had been a student, appellant mentored her and helped Berger resolve any
issues or problems. (1 RT 422.) After becoming a staff member herself,
Berger lived in the B2 dorm with appellant. (1 RT 423.) The two shared a
common wall that did not go all of the way to the ceiling. (1 RT 424.) A
glass door led to the outside deck from Berger’s room, and she and
appellant shared a common bathroom. (Ibid.)
Berger enjoyed a close relationship with appellant when Berger was a
student, as well as when they were both staff members. (1 RT 425.) They
worked the same Wednesday-through-Saturday shift, along with Tiffany
and Blaize Morgan. (Ibid.) In 2010, Berger never noticed that appellant
was pregnant. (1 RT 426.) Appellant commonly drank alcohol on her days
off and never acted as if she were pregnant. (Ibid.) Appellant acted the
same way in 2011. (1 RT 426-427.) At one point during the fall of 2011,
appellant brought a fan into her bedroom. Berger thought this was strange
because the dormitories were already quite cold. (1 RT 427-428.)
When Alexandra Valencia visited the Academy in late August 2011,
before starting work there, she thought appellant looked pregnant. 5 (1 RT
380.) Valencia asked Tara Berger if appellant was pregnant, and Berger
replied no. Both were aware that one could not work at the Academy and
be pregnant without being married. (1 RT 380, 384.) On September 18th,
2011, Valencia, appellant, and several other people were at Tiffany

5

In September of 2011, Valencia’s mother saw appellant in the
bathroom wearing only a spaghetti-strap shirt, and she noticed appellant’s
stomach looked noticeably pregnant. (1 RT 381.)

22

 Morgan’s house watching the Charger’s game. Everyone was drinking
beers, including appellant. (1 RT 383.)
Kori Alugas worked at the Academy on multiple occasions. (1 RT
387.) Alugas stopped working there when she got pregnant. (Ibid.) After
informing the staff that she was pregnant, Alugas was treated in a kind and
loving manner. However, Alugas was not allowed to continue work while
she was pregnant. (1 RT 388, 397.) After Alugas delivered her baby, she
returned to work at the Academy in January of 2011, and she brought her
baby with her. (1 RT 388.) The persons at the Academy treated her as if
she was part of their family. Alugas regularly brought her baby to work.
If she could not do this, other staff members would watch the baby. (1 RT
388-389.)
Alugas lived in the Pasture 2 duplex. The staff gave her a Buick to
drive from there to the main campus. (1 RT 394.) In August of 2011,
Alugas moved to Phoenix. (1 RT 389.) Alugas left several items behind at
the duplex, including a couple blankets, a bed, a playpen, and a breast
pump and plastic nipples. (1 RT 395-396.) Alugas returned to the
Academy in October of 2011. (1 RT 390.)
In September of 2011, Ann Mace worked Wednesdays through
Saturdays at the Academy. (1 RT 400-401.) Mace was aware that
appellant drove the silver truck shown in People’s Exhibit 2. (1 RT 401402.) One afternoon on her day off, Mace pulled up next to appellant’s
truck, and she heard the cry of a very young infant coming from somewhere
in the middle of the truck. (1 RT 402, 406-407.) Mace looked through the
windows on the driver’s side of the truck, but she could not see anything.
(1 RT 407.) She also looked around in the vicinity, but she could not pin
down where the cry had come from. (1 RT 402.) Mace did not report what
she had heard to anybody because she rationalized that it was not possible
that a newborn baby had been in the truck. (1 RT 408.)

23

 The prosecutor introduced into evidence a record of climate
observations for Whitmore the week of September 19, 2011 (Exh. 67). (1
RT 403.) On September 19, 2011, the maximum temperature was 94
degrees Fahrenheit; on September 20, it was 96 degrees; on September 21,
it was 98 degrees; on September 22, it was 99 degrees; and on September
23, it was 100 degrees. (1 RT 404.) The prosecutor also introduced
appellant’s time card from September 1 through 30, 2011, into evidence. (2
RT 661.)
Early one September morning in 2011, Dwayne Smith was irrigating
near the Pasture 2 duplex. (1 RT 464.) As Smith walked by the window
that was closest to the front porch, he heard an infant crying. (1 RT 465466.) Smith walked to the front of the duplex and noticed that there were
no cars parked there, which also seemed strange. (1 RT 467.) Smith got in
his truck and drove towards the office to see if anybody knew if someone
was staying in the Pasture 2 duplex. (Ibid.) On the way, he spoke to Blaize
Morgan. Blaize did not know that anyone was living in the Pasture 2
duplex, and he was surprised to hear that Smith had heard a baby crying.
(Ibid.) Blaize called his wife, Tiffany, over the radio to ask if anyone was
staying in the Pasture 2 duplex. A female voice responded over the radio
that no one was staying there. 6 (1 RT 467; 2 RT 486.)
Smith knew something was not right. He walked to the staff room to
obtain the key to the Pasture 2 duplex, but the key was not there. (1 RT
468.) He then drove to the maintenance shed where there was a second set
of keys. Smith grabbed the key to the Pasture 2 duplex and started driving
towards it. As he was heading in that direction, Smith passed appellant,

6

Each staff member had his or her own walkie/talkie radio and could
hear anything said over the radio. (2 RT 513.)

24

 who was driving in the opposite direction in her silver truck. (Ibid.) Smith
arrived at the Pasture 2 duplex and unlocked the door, but the duplex was
empty and there was no baby inside. (1 RT 469.) Smith’s timesheet
showed that he worked Monday through Friday the week of September 19,
2011. (1 RT 470-471.) Smith was aware that Blaize Morgan worked
Wednesday through Fridays, and Blaize was at work when Smith stopped
to talk to him that morning. (1 RT 471.) Smith later learned that a coworker had found a key to the Pasture 2 duplex in appellant’s room. (2 RT
476.)
Blaize Morgan confirmed that appellant was with him, his wife
Tiffany, and Castillo when they went bike riding in Redding on the night of
September 19, 2011. (2 RT 483-484.) Appellant was wearing a long dark
skirt. (2 RT 483-484, 491.) The group would typically meet up with others
in Redding at 9:00 to 10:00 p.m. and ride their bikes through the town,
stopping at various bars along the way. (2 RT 512.) That night the group
returned to the Academy at about 1:30 a.m. the next morning. (2 RT 483484.) Blaize did not suspect appellant was pregnant. She drank with the
group when they went out, and she sometimes drank hard liquor. (2 RT
488.)
Shasta County Sheriff’s Deputy Lisa Lozada measured the distance
from where the baby had been found in the dormitory utility room to the
Pasture 2 duplex as .42 miles. (1 RT 303.) Deputy Lozada located a box
on a shelf in appellant’s apartment (Exh. 66) that contained several pages of
a Mercy Medical Center billing statement reflecting a $2,559 bill relating to
a March 20, 2010, date of service. (1 RT 304, 308, 320.)
Deputy Lozada took photographs of the Pasture 2 duplex. (1 RT 308309.) Exhibit 58 was a photograph of the second bedroom in the duplex
that contained a bed with no bedding materials on it and a closet. (1 RT
312.) Exhibit 59 showed a portable crib in the same bedroom. (1 RT 313.)

25

 On the kitchen counter of Apartment 2, Deputy Lozada located baby bottles
and miscellaneous plastic ware, including baby bottle nipples. (1 RT 315.)
The deputy found a blanket and a breast pump in the laundry room of the
Pasture 2 duplex. (1 RT 327.)
Senior investigative technician Samantha Cheney described
appellant’s room on November 6, 2011, as “a complete disarray, not
organized and unkempt.” (1 RT 336.) Appellant had a hamster in her
room, and the room smelled of soiled clothing and cedar shavings for the
hamster. (Ibid.) The hamster had food and water, and there was extra food
for the hamster in the room. (1 RT 336-337.) Cheney located an
“Application and Permit for Disposition of Human Remains” in the top
drawer of a dresser. The document listed appellant as the requesting party,
the decedent as Bella Castillo, and March 20, 2010, as the date of the fetal
death. (1 RT 337-338.) Cheney identified People’s Exhibit 65 as a
multiple page fold-out pamphlet provided by Mercy Hospital relating to
maternity services that was also found in appellant’s room. (1 RT 339340.) On appellant’s bedroom floor, Cheney found a fleece zebra-print
blanket, with a reverse side in hot pink. (1 RT 340-341.) Cheney
photographed a staircase that ascended to the deck that was hooked onto the
back side of Dorm B2 (Exh. 6). The area underneath the deck was
approximately four feet high, but it became taller as one walked farther
along the deck. (1 RT 362.)
A November 7, 2011, search of appellant’s truck uncovered a Winco
receipt for chocolate chip cookies dated September 19, 2011, at 7:15 p.m.
(Exh. 72). (1 RT 366-367.) The parties stipulated that Exhibit 73 was the
surveillance video from Winco that showed appellant and Castillo
purchasing cookies at 7:15 p.m. on September 19, 2011. (1 RT 415-416.)
Appellant was wearing a coral colored top and a long, black summer-type
skirt. (1 RT 416-417.)

26

 A search of appellant’s phone revealed in excess of 22,000 texts that
were placed on a CD then printed out (Exh. 92). 7 (2 RT 595.) Exhibit 85
contained more of the same text messages that were highlighted in different
colors. (2 RT 596.) On September 19, 2011, the same date appellant had
given birth, she sent a text message to Tiffany Morgan asking, “Are you
guys mashing tonight?” (2 RT 664.) Another text message sent from
appellant’s phone at 11:36 p.m. stated, “Riding your bike. Thanks BZ!” (2
RT 665.) A text message sent from appellant to Alexandra Valencia at 1:57
p.m. on September 20, 2011, stated, “I’m at Jovan’s.” (Ibid.) A text from
appellant to Tara Berger at 6:28 p.m. stated, “I dunno, I’m riding bikes.
Don’t know what time I’ll be back.” (Ibid.) A text message from appellant
to “Paige” on September 21, 2011, at 7:01 a.m., stated, “So I wake up this
morning and Tara has the same exact hair as me now.” (2 RT 666.)
Detective Jackson noticed that there was a large gap in text messages on
appellant’s phone between the later hours of September 18, 2011, into early
September 19, 2011. (Ibid.)
Sheriff’s Deputy Chris Rathbun, who received specialized training in
computer and cellular telephone forensics, conducted a search of
appellant’s Macbook laptop. (2 RT 581.) Using specific programs, the
deputy searched the laptop for the word “breastfeeding,” but was unable to
find that the computer had ever searched for that word. (2 RT 586.)
Exhibit 88 showed that the laptop had searched for: “abortion pill for
cheap,” “Planned Parenthood,” “at home abortions,” “abortion pill for
cheap, “abortion pill,” and “babies in the first trimester.” (2 RT 589.)

7

Deputy Rathbun verified that the time and date of the text
messages were accurate by conducting a conversion from Greenwich Mean
Time and taking into account daylight savings time. (2 RT 596.)

27

 Specifically, on January 10, 2011, the laptop had searched for
“always hungry, Plan B” and “Plan B, One Step pharmacists, side effects
and tolerability.” (2 RT 591.) On January 14, 2011, the laptop had
searched for “How to use vitamin C to bring on a delayed period” and
“home abortion remedy vitamin C.” (2 RT 592.) On January 17, 2011, the
laptop had searched for “Vitamin C abortions. (Ibid.) Deputy Rathbun
agreed that it was possible for someone to delete the history of computer
searches and for such data to be permanently deleted if written over in the
unallocated space by other data. (2 RT 593.) The deputy noticed that there
were data files in both appellant’s phone and her laptop that had been
deleted. (2 RT 600.)
E.

Expert Testimony

Investigative Technician Darlene Perea collected some debris from
the back of the baby at the time of the autopsy. The debris consisted of two
pieces of a brown substance. The larger piece was oval and approximately
an inch long. (1 RT 365.) Senior criminalist Sara Lawson examined
material sent to her that had been obtained at the autopsy and labeled
suspected meconium as shown in Exhibit 38. (2 RT 517-518.) The
material tested positive for fecal material or feces. (2 RT 518.) Lawson
also tested a bright pink and zebra striped blanket (Exh. 80) that had brown
chunks of material on it. Those chunks had physical characteristics
consistent with fecal material, and they also tested positive for fecal
material. (2 RT 519-520.)
Dr. Anthony Phillips is a professor of pediatrics and a neonatologist at
the Newborn Intensive Care Unit at U.C. Davis. (2 RT 525.) Dr. Phillips
reviewed the records from the autopsy, which showed that the baby
weighed about five pounds at the time of the autopsy. (2 RT 527.) The
doctor believed that a newborn baby could live for about four days without

28

 food or water. (Ibid.) If the temperature were warm, death would be
accelerated due to dehydration. (2 RT 528.)
Dr. Phillips explained that a healthy baby that was not given any food
or water would continue to pass meconium over the first 24 hours. (2 RT
534.) After that time, the baby would try to conserve water, but the baby’s
blood pressure would start to fall and the urine output would fail after a day
or two. In turn, the baby’s blood sodium would increase, resulting in
hypernatremic dehydration, in which the baby would lose 15 to 20 percent
of its body weight. (Ibid.) After three or four days, the doctor would not
expect the baby to survive. (Ibid.)
On November 7, 2011, forensic pathologist Susan Comfort performed
an autopsy on the baby, who was named Lilly at the time of the autopsy.
The baby’s body was decomposed and partially mummified—a type of
decomposition where the tissues dry out and harden. (2 RT 551.) Dr.
Comfort explained that the baby’s body shriveled up and became smaller as
it mummified. (2 RT 552.) Exhibit 33 showed a piece of the baby’s
umbilical cord that was shriveled up and mummified. (2 RT 553.) Based
on her weight, height, length, head circumference, chest circumference and
foot length, Dr. Comfort concluded that the baby was 38.5 to 40 weeks
gestation, or full term and fully developed, when she was born. (2 RT 553554.) Dr. Comfort did not notice any abnormalities on any of the baby’s
organs, and everything looked normally developed. (2 RT 556-557.) The
pathologist was unable to exclude starvation, dehydration or asphyxia as a
cause of death, but she did determine that the baby did not die from obvious
trauma. (2 RT 557.)
F.

Appellant’s Prior Pregnancy

On March 20, 2010, obstetrician/gynecologist, Dr. Samuel Van Kirk,
delivered Bella Castillo at Mercy Hospital in Redding. (2 RT 606.) Dr.

29

 Greg Greenberg, the Emergency Department physician at Shasta Regional
Medical Center, brought appellant via ambulance to Mercy Hospital at
approximately 1:30 a.m. (2 RT 606-607.) Appellant arrived with a high
fever. Dr. Kirk ascertained that her pregnancy was full term at 41 weeks
and five days. (2 RT 607.) Appellant reported that her water had broken
on March 18 at 11:00 p.m. (Ibid.)
Within 15 minutes after appellant arrived at Mercy Hospital, Dr. Kirk
delivered the baby by applying a vacuum extractor to the back of the baby’s
head and pulling her out while appellant pushed. (2 RT 609.) The baby
was not breathing when she came out and had to be resuscitated by the
neonatal intensive care team that was present for the delivery. (2 RT 610.)
Dr. Kirk noted that the baby was blue and flaccid when she came out, and it
appeared that the baby had been under stress. Other factors pointing to the
baby being under stress included her not having a discernible heartbeat,
appellant having a fever, and meconium staining in the amniotic fluid.
(Ibid.) Dr. Kirk explained that appellant’s fever, along with her water
breaking a couple of days earlier, pointed to chorioamnionitis, or infection
in the amniotic fluid around the baby. (2 RT 611.)
Dr. Kirk further pointed out that when a woman is a week or so past
her due date, the baby’s intestines wake up. Any baby at that point can
have a bowel movement while still in the womb. He noted that a dangerous
situation arises when there is prolonged time with the meconium inside the
amniotic fluid and the baby breathes the meconium into its lungs, resulting
in meconium aspiration. (2 RT 611-612.) The best way to prevent this, Dr.
Kirk instructed, is for the mother to come into the hospital soon after her
water breaks. (2 RT 612.) The longer the woman waits after her water
breaks, the higher the risk of developing chorioamnionitis. (Ibid.) The
doctor explained that when a bag of water breaks, it is not a subtle event,
but the liquid tends to be a big gush down the legs. (2 RT 632.)

30

 When Dr. Kirk spoke to appellant, she told him that she had tried to
abort the baby two months before coming to the hospital. (2 RT 614.) The
doctor referred appellant for a mental health evaluation after the baby was
born. He explained that the delay from the time her water broke until she
came to the hospital and her statement that she had not wanted the baby and
tried to abort it, made the doctor want to get her some help. (2 RT 615.)
The doctor described appellant as having a relatively flat effect. She had
directly told Dr. Kirk, “I did not want the baby,” approximately fifteen
minutes before the baby was born. (2 RT 618, 623.) Dr. Kirk believed it
was likely that the baby would have lived had appellant come into the
hospital when her water broke. (2 RT 619.)
Dr. Hemant Saini is a neonatologist, a doctor that specializes in taking
care of small, sick or premature babies, at Mercy Hospital in Redding. (2
RT 635.) Dr. Saini was present at the delivery of Bella based on the
obstetrician’s concern that there could be an infection present. (2 RT 636637.) He noted that the baby was born “completely lifeless,” without a
heart tone and no spontaneous breathing. Dr. Saini started resuscitating the
baby. He first placed a face mask on her, but when she did not respond, he
inserted an endotracheal tube and gave her several doses of epinephrine. (2
RT 637.) Dr. Saini next placed an umbilical line in the umbilical cord
blood vessels and inserted fluid to improve the baby’s circulation. In the
meantime, the nurses were compressing the baby’s heart and giving her
full-blown cardiopulmonary resuscitation. (Ibid.)
Dr. Saini noted that a normal Apgar score was 8 or 9. Bella’s Apgar
score was 0, the lowest it could be. (2 RT 637.) At five minutes after birth,
it was again 0. (Ibid.) At 20 minutes after birth, the baby had some heart
rate above 100, and she received an Apgar score of 3. (2 RT 638.) After
several doses of adrenaline, the baby had a response. (Ibid.) Once the baby
was moved into the neonatal intensive care unit, she had a heart rate above

31

 100, but her neurological responses were extremely poor, and there was no
response to any painful stimulus. (2 RT 638.) After approximately three
hours had passed and Dr. Saini had consulted with appellant and Castillo,
he pulled the breath support tube out and the baby passed away. (2 RT 639,
644-645.)
Dr. Saini explained that meconium ingestion by a baby in utero can
often be treated after the baby is born, and the baby will make a full
recovery. (2 RT 642.) Bella’s skin and umbilical cord were stained from
meconium when the baby was handed to Dr. Saini. (Ibid.)
Batina Balma, a social worker at Mercy Medical Center in Redding,
met with appellant after she gave birth to Bella. (2 RT 651.) Balma had
been informed that appellant was sitting in her Labor and Delivery room
smiling. This did not seem appropriate behavior based on what had just
happened to her. (Ibid.) Balma explained that typically, if a woman lost
her baby, the nursing staff would give the mother a special box with the
baby’s footprints and other special memories. But in appellant’s case, she
had acted as if the baby’s death was no big deal. (2 RT 657-658.)
Balma spent about an hour with appellant, who reported that she did
not receive any prenatal care. (2 RT 652.) Appellant explained that there
would be a stigma attached to being pregnant because she and her
boyfriend worked at a Christian camp, and they were not supposed to have
any sexual relations. (Ibid.) Appellant found out she was pregnant on July
8, 2009. She obtained three abortion pills and took them six weeks later.
(2 RT 652-653, 656.) Appellant informed Balma that she hid the
pregnancy by sucking in her stomach. She described being in pain and
experiencing bloody spotting with yellowish-green mucus four days before
coming to the hospital, as well as experience lots of cramping. (2 RT 653.)
Before she came to the hospital, appellant felt feverish, with hot and cold
chills. (Ibid.) Appellant denied that she wanted to harm herself or anyone

32

 else. (2 RT 654.) She told Balma that she was bored and tired, and she
wanted to leave the hospital. (Ibid.)
Dr. Comfort performed an autopsy on Bella, who weighed eight
pounds and one ounce. (2 RT 559.) The doctor concluded that Bella died
of complications of acute chorioamnionitis and funisitis, which the doctor
described as infection of the amniotic membranes surrounding the fetus and
infection of the umbilical cord. (2 RT 560.) Dr. Comfort found that Bella
had inhaled her own meconium while in the amniotic sac, which had made
it difficult for her to get enough oxygen. (2 RT 571, 575.) During the
autopsy, Dr. Comfort removed most of the meconium the baby had inhaled
from the large intestine. (2 RT 575.)
G.

Defense

Appellant’s parents, David and Robin Bradford, adopted her when she
was 21 months old and living in foster care. (3 RT 769, 782.) Appellant
attended regular elementary school and middle school, but when she got to
high school, her progress began to slow down. (3 RT 771.) Robin and
appellant argued a lot because appellant was extremely disorganized. (3
RT 783.) Homework was also a battle with appellant because she did not
like to do it. (Ibid.) In January 2004, the second semester of appellant’s
junior year, the Bradfords enrolled appellant at the Julian Youth Academy
in Julian, near San Diego. The Academy’s functional purpose was to help
teens, who were facing difficult issues at home, work through their
problems and finish their schooling. (3 RT 774.)
Appellant finished the program and moved back in with her parents
for a year. (3 RT 774-775.) The directors of the program asked her to
come back and work as a counselor, which appellant did in July of 2006.
(3 RT 775.) At one point, the Academy moved from San Diego to
Whitmore. (Ibid.) Neither David nor Robin knew that appellant was

33

 pregnant during either pregnancy. (3 RT 776.) The Bradfords learned
about the pregnancies when sheriff deputies came to their house the first
week of November 2011. (3 RT 776.)
On cross-examination, Robin recalled that, in the spring of 2009, she
thought appellant was pregnant, but appellant did not tell Robin anything
and Robin did not push it. (3 RT 788.) The second time appellant was
pregnant, Robin saw her in August of 2011. (3 RT 788-789.) Robin asked
appellant, “Are you sure you’re not pregnant? You look like you are.”
Appellant denied that she was pregnant. (3 RT 789.)
Dr. Steven Pine is a board-certified obstetrician/gynecologist, who is
professor of obstetrics at the University of Southern California and UCLA
Medical Center and has been practicing obstetrics for almost 40 years. (3
RT 809-810.) On voir dire by the prosecutor, Dr. Pine conceded that he
cared for newborn babies only through the delivery process, and he had no
training in pediatrics, autopsies or pathology. (3 RT 811-812.) Based on
the materials he reviewed in this case, Dr. Pine believed that appellant had
delivered the baby precipitously, meaning that there was not a long labor of
pushing before the baby was born. (3 RT 816.) The doctor believed there
was traction on the baby when the baby was born, and he noted that the
umbilical cord was ripped, not cut. (Ibid.)
Dr. Pine explained that, in such a case as this where the cord was
ripped, the baby would bleed potentially for several minutes until the cord
was clamped down. Here, where the cord was not clamped down, the
doctor observed that the baby could have bled for a while and become
severely anemic. He also noted that anemia could lead to dehydration and a
weakened state. (3 RT 816.) The doctor found that appellant had made
some attempt to feed her baby, and this was evidenced from meconium
changing to real poop. (3 RT 816-817.) Dr. Pine believed that the baby
could have had an infection. He explained that frequently babies who are

34

 delivered precipitously come out with thick meconium, and they sometimes
ingest meconium at the time they are delivered. (3 RT 817.) Dr. Pine
thought the baby probably had pneumonia or some sort of lung aspiration
because of the nature of the amniotic fluid. (Ibid.)
Dr. Pine also pointed out that when the baby’s cord avulsed, it could
have caused severe damage of internal organs, in particular the liver. He
determined that the baby would not have been able to feed well if it had
severe anemia and had been damaged by infection upon being born. (3 RT
817.)
On cross-examination, Dr. Pine admitted that Dr. Comfort’s report
showed that there was still meconium in the baby’s bowel at the time of the
autopsy. (3 RT 822.) The doctor had based his opinion that the meconium
had changed to real poop on his review of a motion filed by the prosecutor.
(3 RT 823.) Dr. Pine was paid $8500 plus expenses for his work and
testimony in this case. (3 RT 834.)
Diana Barnes has a doctorate in clinical psychology and is a
psychotherapist in Sherman Oaks, California, who specializes in women’s
reproductive mental health. (3 RT 838.) Dr. Barnes interviewed appellant
and reviewed her psychosocial history starting from birth to the present.
The psychotherapist also reviewed appellant’s medical history, her
interviews with the detectives, the autopsy report, and she spoke with
appellant’s parents. (3 RT 839.) Dr. Barnes was aware that appellant was
adopted, and appellant’s birth mother used methamphetamine,
amphetamines, crack, cocaine and marijuana. At the time appellant was
born she had a positive toxicology screen for methamphetamine,
amphetamine and marijuana. (Ibid.) Dr. Barnes also noted that in the first
two years of appellant’s life, her attachment relationships or emotional
connection with primary caregivers was disrupted four different times,
which the doctor found to be significant. (3 RT 840.) The psychotherapist

35

 explained that, by taking drugs, appellant’s birth mother affected
appellant’s brain development. Appellant’s emotional development was
disrupted when she was sent to a foster home at birth. A month later, it was
disrupted when appellant was sent to another foster home. Dr. Barnes
opined that such continual disruptions in the attachment relationship would
have profound effects on a person’s cognitive and social-emotional
development. (Ibid.) The doctor believed that by the time appellant
reached the Bradfords’ home, her brain chemistry and psychological health
had already been compromised. (3 RT 841.)
Dr. Barnes’s was aware that appellant did not speak until she was two
years old, which the doctor found unusual. An evaluation of appellant in
high school showed indications of impulsivity, which the doctor found
might suggest attention deficit disorder. The doctor noted that appellant
had also been described as distractible, impulsive and having difficulty
organizing her thinking. (3 RT 841-842.) In addition, appellant had
performed poorly in school. (3 RT 842.)
Dr. Barnes believed there was a significant psychological connection
between the birth of appellant’s first child and the subsequent pregnancy
and events that followed. (3 RT 844.) The psychotherapist opined that it
was clear to her appellant did not want to give up her first pregnancy
because she led her boyfriend to believe that she had terminated it, when
she had not done so. (Ibid.) The doctor noted that it was common for a
woman who had suffered a pregnancy loss to try to replace the loss by
having another child. (Ibid.)
The doctor opined that appellant exhibited maternal behavior when
she tried to care for the baby by holding, cleaning, and trying to feed her.
(3 RT 847.) Dr. Barnes also pointed out that there were disruptions in
appellant’s attachment to the baby. She explained that when a person is in
denial about being pregnant, the denial is broken by the birth of the baby.

36

 In such a case, the woman would try to preserve the denial at all cost. For
instance, the woman would go back to work and resume her daily activities
as if nothing had happened. (3 RT 848.) In such cases, Dr. Barnes did not
believe the woman had an evil intent toward the baby. Rather, where a
woman experienced pregnancy denial, she would be operating on fear of
losing a connection with important people in their life. For appellant,
losing such a connection was particularly significant because of her
adoption history. (3 RT 849.)
On cross-examination, Dr. Barnes agreed that appellant had
undergone a school psychological report and was extensively tested by a
psychologist at that time. (3 RT 861.) The testing reported that appellant’s
motor skills, attention span, and concentration skills were of average
functioning. (3 RT 863.) The psychologist concluded that appellant was
not eligible for any special education services, finding that she excelled in
her ability to process new information and problem-solve. (3 RT 864.) Dr.
Barnes’s charged $2500 to review the case, and $350 thereafter for her
testimony. (3 RT 873.)
ARGUMENT
I.

THE TRIAL COURT PROPERLY EXERCISED ITS
DISCRETION IN DISMISSING JUROR 761446
Appellant maintains that her conviction should be reversed because

the trial court improperly dismissed a juror. (AOB 13-20.) Respondent
disagrees because the juror made a derogatory comment about the
prosecutor, thus violating the court’s instructions.
A.

Background

Following the prosecutor’s closing argument and before defense
counsel made his closing argument, the court excused the jury for a recess

37

 then alerted the parties that there was a matter that needed to be discussed.
(3 RT 925.) The court directed the clerk to locate Juror 796658. (3 RT
925-926.) When Juror 796658 arrived, the court asked if the juror had
reported an incident to juror services about something the juror overheard,
and the juror replied, “Yes.” (3 RT 926.) The court then asked the juror to
repeat what the juror had heard, and the juror stated:
[Juror 796658]: Yesterday, I overheard a juror make
repeated comments about the District Attorney as she was
questioning …the male OB/GYN. One of the jurors was making
comments, didn’t make me feel very comfortable. He was
calling her a bitch.
(3 RT 926.) Juror 796658 reported that the juror who had called the
prosecutor a bitch sat catty-corner to Juror 796658 and was a male. (Ibid.)
The court asked how many times the juror had made a comment about the
prosecutor, and Juror 796658 replied, “Multiple times.” (3 RT 927.) In
response to the court’s questions, Juror 796658 noted that the other juror
had used the word “fuck” and then “bitch,” when referring to the way the
prosecutor was questioning the witness. (Ibid.)
The court asked Juror 796658 how the comments of the other juror
made Juror 796658 feel, and Juror 796658 replied, “I thought, for heaven’s
sake, he’s not paying attention.” (3 RT 927.) The court asked if Juror
796658 believed any other jurors had heard the other juror’s comments, and
Juror 796658 was “pretty sure” that Juror 772906 had also heard the
comments. (Ibid.)
Juror 796658 observed that the juror had not made the comments to
Juror 796658, but the juror made the comments to Juror 772906. (Ibid.)
Juror 796658 informed the court that the juror had felt troubled by the other
juror’s comments, noting, “I did. I’m visibly shaking.” (3 RT 928.) The
court ordered Juror 796658 not to discuss the matter with anyone and to
completely put it aside. (3 RT 927-928.) Juror 796658 agreed to do this.

38

 (Ibid.) The court asked if either the prosecutor or defense counsel wanted
to question Juror 796658, but both declined. (3 RT 928.) The court then
excused Juror 796658. (Ibid.)
At that point, the court reported informed the trial judge:
THE REPORTER: Your Honor, may I say something? I was
talking to the other court reporter yesterday. She thought she
heard him call her a bitch, but she wasn’t sure so she didn’t say
anything.
(3 RT 928.)
The court then called Juror 761446 into the room, and the following
discussion ensued. (3 RT 929.)
THE COURT: [Juror 761446], it’s been reported to me
that you may have made some comments yesterday when Ms.
Kafel was …examining a doctor, Dr. Pine. During Mr. Kafel’s
examination of Dr. Pine, did you make any comments about Ms.
Kafel?
[JUROR 761446]: I know I made a comment. I don’t
think it was about her. I think it was about going after
credibility.
THE COURT: In other words, you made a comment about
the fact that she was questioning—
[JUROR 761446]: I mean, it’s, like, enough already. The
guy’s got all kinds of, you know, credentials, so I don’t think we
have to beat everybody up, just assume they’re lying right off
the get-go.
THE COURT: What did you say about Ms. Kafel after you
assumed that she was beating up...Dr. Pine?
[JUROR 761446]: I don’t remember, honestly.
THE COURT: Did you call her a derogatory word?
[JUROR 761446]: I don’t remember.
THE COURT: Did you call her a bitch?

39

 [JUROR 761446]: I don’t remember.
THE COURT: Do you remember if you said anything
other than what you may have called her? Did you say anything
about what she was doing to other jurors?
[JUROR 761446]: I think I would be more apt to say she
was a “witch” than a “bitch.” I usually use that saying if I’m
referring to somebody that I’m disagreeing with.
THE COURT: Do you ever use the word “bitch”?
[JUROR 761446]: Bitch?
THE COURT: Bitch.
[JUROR 761446]: Not very often.
THE COURT: Did you use that word yesterday?
[JUROR 761446]: I don’t think so. I think I might have
said she’s a witch. I don’t think I said she’s a bitch.
THE COURT: Did you say anything else?
[JUROR 761446]: No, I don’t think so.
THE COURT: Did you use the “F”word?
[JUROR 761446]: No. I rarely do.
THE COURT: Who did you say that to?
[JUROR 761446]: Nobody. Just, wow, you know.
THE COURT: Did you say it loud enough that other
people may have heard it?
[JUROR 761446]: I didn’t realize I said it loud enough for
anybody to hear. I was just thinking it.
THE COURT: You think you didn’t say anything out
loud?

40

 [JUROR 761446]: I didn’t mean to say anything out loud.
I mean, obviously, it wouldn’t go over too good. I mean, you
know.
THE COURT: Right.
[JUROR 761446]: I didn’t mean to make a bunch of noise.
I was just going, “wow.”
THE COURT: You were going what?
[JUROR 761446]: She was being rather severe. That’s all.
THE COURT: What did you think about that? How did
you take that?
[JUROR 761446]: I think it’s overdoing it to ask a doctor
with 14 degrees where he got each one of them. It doesn’t really
matter.
(3 RT 929-931.) The court next asked counsel to approach. (3 RT 931.)
After a discussion with counsel, the court asked Juror 761446 to tell her
how loudly he was speaking to the other jurors. Juror 761446 replied, “I
can’t because I didn’t know I was speaking them out loud. I was thinking
out loud, evidently. And I didn’t realize I was doing it.” (Ibid.) The court
asked the juror if he was attempting to influence another juror. Juror
761446 responded, “No. I would assume they would have their own
opinions.” (Ibid.)
The court asked Juror 761446 if he could deliberate fairly with the
rest of the jury “despite the fact that you labeled Ms. Kafel the bitch word?”
(3 RT 931.) Juror 761446 answered, “I don’t think that really has anything
to do with the facts of this case.” (Ibid.) The juror assured the court that he
could be fair to the prosecutor as well as to defense counsel. (Ibid.) The
court then asked Juror 761446 to step outside and not discuss the matter
with anyone. (Ibid.)

41

 Thereafter, the court called in Juror 772906, and advised the juror,
“It’s come to my attention the juror sitting next to you, [Juror 761446 ],
may have made some comments yesterday at the time that Ms. Kafel was
cross-examining Mr. Pine. Did you overhear him?” (3 RT 932.) Juror
772906 responded in the affirmative. When the court asked what the juror
heard Juror 761446 say, the juror replied, “What a bitch.” (Ibid.) The juror
confirmed that Juror 761446 was referring to the prosecutor. (Ibid.) Juror
772906 did not believe Juror 761446 had intended to make the comment to
other jurors, but had spoken louder than he intended. (Ibid.) Juror 772906
believed Juror 761446 was “kind of hard of hearing.” (Ibid.) In response
to the court’s questions, Juror 772906 represented that Juror 761446’s
comment did not influence the juror, and Juror 772906 could completely
disregard it. (3 RT 933.)
The court next separately questioned Jurors 815498, 800627, and
753744 about the incident, but none of the jurors had heard anything the
day before. (3 RT 933-934.) The court then placed the following
observations on the record after all jurors had left the room:
…Here is the scenario that we have. We have a juror that I
was watching yesterday. He was very animated, mostly during
the time that Dr. Pine was on the witness stand. I got the
impression that he was excited about the examination. That was
the impression I got. But he said something loudly enough that
it was overheard by a juror that’s seated a little distance away
from him, and the juror right next to him, and the court reporter,
who was seated in front of me….
Oftentimes people are concentrating on the back and forth
between a lawyer and a witness, not to pay attention to utterings
around them, but it really bothers me that he decided to outright
make a comment. And I believe the alternate juror, who brought
it to our attention first, that he said it more than once. I saw his
animation at the time, and …I saw his mouth moving, but I
never thought he was saying anything out loud.

42

 In addition, he denied using the word “bitch.” He says
he’s more likely to use the word “witch.” And in other words,
he’s not telling the truth about his nomenclature, number one.
And he doesn’t remember any of that happening, which I’m
having a hard time believing as well.
(3 RT 935.) The court had the court report read back the comments Juror
761446 had made. After receiving input from both the prosecutor and
defense counsel, the trial court determined that she needed to remove Juror
761446. (3 RT 935-937.) Referring to Juror 761446’s conduct, the court
stated:
He’s expressed an opinion, and he’s actually articulated
that opinion, which means that he has an opinion that he’s
expressed. And he lied to me, Mr. Jordan (defense counsel). He
lied. He sat there and lied to me about what he had said and
what his intentions were. And then you want me to believe him
now, that he actually won’t allow that to affect the way he
perceives the evidence? ….
(3 RT 937.) Without objection, the court subsequently excused Juror
761446 from the case. (Ibid.)
B.

Discussion

As an initial matter, appellant forfeited her complaint on appeal
because she failed to object to the court’s ruling. (See People v. Fuiava
(2012) 53 Cal.4th 622, 655 [“To the extent defendant contends the manner
in which the trial court questioned the prospective jurors erroneously
resulted in “a jury that was prone to impose the death penalty,” he forfeited
any such challenge by not objecting below.”]; People v. Virgil (2011) 51
Cal.4th 1210, 1242 [Capital defendant’s failure to object at trial forfeited
the argument on appeal that the trial court should have dismissed a juror
after the close of evidence in the guilt phase.].) In any event, the court
properly exercised its discretion in discharging Juror 761446.

43

 “The trial court may discharge a juror for good cause at any time,
including during deliberations, if the court finds that the juror is unable to
perform his or her duty.” (§ 1089.) When a court is informed of
allegations which, if proven true, would constitute good cause for a juror’s
removal, a hearing is required. (People v. Lomax (2010) 49 Cal.4th 530,
588 (Lomax).) Grounds for investigation or discharge of a juror may be
established by his statements or conduct. (Ibid.) The California Supreme
Court has consistently held, “‘We review for abuse of discretion the trial
court’s determination to discharge a juror and order an alternate to serve.
[Citation.] If there is any substantial evidence supporting the trial court’s
ruling, we will uphold it. [Citation.]” (People v. Williams (2001) 25
Cal.4th 441, 447-448, fn. omitted (Williams); accord, People v. Cleveland
(2001) 25 Cal.4th 466, 474.)
The Court has held that the basis for a juror’s removal must appear on
the record as a “demonstrable reality.” (Lomax, supra, 49 Cal.4th at p. 589;
Williams, supra, 25 Cal.4th at pp. 447-448.) This standard involves “a
more comprehensive and less deferential review” than simply determining
whether any substantial evidence in the record supports the trial court’s
decision. (Lomax, supra, at p. 589.) It must appear ‘“that the court as trier
of fact did rely on evidence that, in light of the entire record, supports its
conclusion that bias was established.”’ (Ibid., citation omitted.) However,
in applying the demonstrable reality test, the appellate court does not
reweigh the evidence. The inquiry is whether “‘the trial court’s conclusion
is manifestly supported by evidence on which the court actually relied.’”
(Ibid.) The appellate court accepts the trial court’s credibility
determinations and findings on questions of historical fact if supported by
substantial evidence. (People v. Mendoza (2000) 24 Cal.4th 130, 194.)
The evidence fully supports Juror 761446’s removal. During the trial
judge’s preliminary instructions, she instructed the jurors not to talk about

44

 the case or about any of the people or any subject involved in the case with
anyone. (1 RT 281.) The court instructed the jurors, “You must not talk
about these things with other jurors, either, until after you begin
deliberating.” (Ibid.) The trial court also instructed the jurors to “[k]eep an
open mind throughout the trial. Do not make up your mind about the
verdict or any issue until after you discussed the case with the other jurors
during deliberations.” (Ibid.)
Juror 761446 broke both of these rules when he audibly called the
prosecutor a bitch during her cross-examination of Dr. Pine. In People v.
Ledesma (2006) 39 Cal.4th 641, 738, the court observed that “a trial judge
may conclude, based on a juror’s willful failure to follow an instruction,
that the juror will not follow other instructions and is therefore unable to
perform his or her duty as a juror.” By calling the prosecutor a “bitch” in a
loud enough voice that the juror’s remarks were heard by two other jurors,
as well as the court reporter, Juror 761446 violated the court’s
admonishment against discussing the case with other jurors, as well as
against forming opinions about the case. A juror who refuses to follow the
court’s instructions is unable to perform his duty within the meaning of
section 1089, and violations of a juror’s duty constitutes serious
misconduct. (In re Hitchings (1993) 6 Cal.4th 97, 118; People v. Brown
(1976) 61 Cal.App.3d 476, 480.)
Moreover, as the court noted in People v. Cooper (1991) 53 Cal.3d
771, 835-836, “[w]hen a person violates his oath as a juror, doubt is cast on
that person’s ability to otherwise perform his duties.” (See People v.
Cissna (2010) 182 Cal.App.4th 1105, 1118 [A juror’s failure to comply
with repeated admonitions not to discuss the case casts serious doubts on
his willingness to follow the court’s other instructions].) In this case, Juror
761446 exacerbated his misconduct by exposing Juror 772906 and

45

 Alternate Juror 796658 to his prejudicial opinion when he called the
prosecutor a “bitch” during her cross-examination.
In its credibility call, the trial court additionally found that Juror
761446 had lied to the court when he denied calling the prosecutor a
“bitch,” but claimed have used the word “witch” instead. It is axiomatic
that the trial court is in the best position to observe and evaluate a juror’s
words and demeanor. (People v. Schmeck (2005) 37 Cal.4th 240, 298.)
The court found Juror 761446 untruthful in his denial. On this record, the
trial court’s decision to excuse Juror 761446 was supported by evidence on
which the court relied and met the “demonstrable reality” standard. For
these reasons, the trial court did not abuse its discretion in excusing Juror
761446.
II.

THE COURT PROPERLY INSTRUCTED THE JURY ON
FELONY MURDER AND KIDNAPPING
In Argument II, appellant contends that the court erred by instructing

the jury on felony murder because the kidnapping was merely incidental to
the killing. (AOB 21-25.) In Argument III, she asserts that the court
erroneously instructed the jurors on kidnapping by specially defining the
terms “illegal purpose or with an illegal intent.” (AOB 26-28.) She further
argues that defense counsel was ineffective in failing to object to the court’s
instructions. (AOB 29-30.) These arguments lack merit and should be
rejected.
A.

Kidnapping and Felony Murder Instructions

The court instructed the jurors on felony murder pursuant to
CALCRIM No. 540A, as follows:
The defendant is also charged with murder under a theory
of felony murder. To prove that the defendant is guilty of felony
murder under this theory, the People must prove that:

46

 One, the defendant committed the crime of kidnapping;
Two, the defendant intended to commit murder and/or
child abuse;
And three, while committing the crime of kidnapping,
the defendant caused the death of another person.
A person may be guilty of felony murder even if the
killing was unintentional, accidental or negligent.
(3 RT 907-908.)
The court defined kidnapping for the jurors pursuant to CALCRIM
No. 1201:
For the theory of murder committed in the commission of a
kidnapping, the crime of kidnapping is defined as follows:
To prove the crime of kidnapping, the People must prove
that:
One, the defendant used physical force to take and carry
away an unresisting child;
Two, the defendant moved the child a substantial distance;
Three, the defendant moved the child with an illegal intent
or for an illegal purpose; and
Four, the child was under 14 years old at the time of the
movement.
(3 RT 907-908.)
The trial court further instructed:
A parent who’s entitled to custody is liable for kidnapping
if she exercises custodial rights for an illegal purpose. In this
case, an illegal purpose or intent is defined as follows:
One, to commit the crime of murder; and/or
Two, to commit the crime of child abuse.
A victim must be alive to be kidnapped.

47

 (3 RT 909.)
B.

Discussion

A trial court is required to instruct the jury on the law applicable to
each particular case. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
A claim that the trial court failed to do so is reviewed de novo. (Ibid.)
1.

Felony Murder

All murder that is committed in the perpetration of, or attempt to
perpetrate, certain enumerated felonies, including kidnapping, is murder of
the first degree. (§ 189.) “For felony murder, the required mental state is
the specific intent to commit the underlying felony. [Citation.] The killing
is considered to be committed in the perpetration of the underlying felony if
the acts were part of a continuous transaction. [Citation.]” (People v.
Booker (2011) 51 Cal.4th 141, 175.) “Under the felony-murder rule, ‘the
evidence must establish that the defendant harbored the felonious intent
either prior to or during the commission of the acts which resulted in the
victim’s death....’ [Citation.]” (People v. Ainsworth (1988) 45 Cal.3d 984,
1016 (Ainsworth).)
The purpose of the felony-murder rule is “to deter felons from killing
negligently or accidentally by holding them strictly responsible for killings
they commit.” (People v. Washington (1965) 62 Cal.2d 777, 781; see
People v. Billa (2003) 31 Cal.4th 1064, 1069.) “Once a person perpetrates
… one of the enumerated felonies, then in the judgment of the Legislature,
he … will be deemed guilty of first degree murder for any homicide
committed in the course thereof.” (People v. Burton (1971) 6 Cal.3d 375,
388.) Consequently, a conviction of first degree felony-murder does not
require proof of a strict causal relationship between the underlying felony
and the homicide so long as the killing and the felony are part of one

48

 continuous transaction. (People v. Thompson (1990) 50 Cal.3d 134, 171;
Ainsworth, supra, 45 Cal.3d at p. 1016.) “There is no requirement that the
killing occur, ‘while committing’ or ‘while engaged in’ the felony, or that
the killing be ‘a part of’ the felony, other than that the few acts be a part of
one continuous transaction.” (People v. Stamp (1969) 2 Cal.App.3d 203,
210.) “As long as the homicide is the direct causal result of the [underlying
felony], the felony-murder rule applies whether or not the death was a
natural or probable consequence of the [underlying felony].” (Ibid.) These
concepts were properly addressed by CALCRIM No. 540A.
2.

People v. Green

Appellant relies on People v. Green (1980) 27 Cal.3d 1 (Green), to
support her argument that felony murder was an improper theory because
the kidnapping was merely incidental to appellant’s purpose of killing the
baby and the sole object of the kidnapping was to conceal the primary
crime of murder. (AOB 22-23.) In Green, the Supreme Court set aside the
jury’s robbery special circumstance finding. Although the trial court had
properly instructed the jury that to find the robbery special allegation true,
it must first find defendant guilty of the underlying robbery, it did not
instruct the jury that the murder must have been committed “‘during the
commission’” of the robbery. (Id. at p. 60.) Green found that failure to so
instruct was reversible error. It reasoned that such instruction
ignored key language of the statute: it was not enough for the
jury to find the defendant guilty of a murder and one of the listed
crimes; the statute also required that the jury find the defendant
committed the murder “during the commission or attempted
commission of” that crime. (Former § 190.2, subd. (c)(3).) In
other words, a valid conviction of a listed crime was a necessary
condition to finding a corresponding special circumstance, but it
was not a sufficient condition: the murder must also have been
committed “during the commission” of the underlying crime.

49

 (Green, supra, at p. 59.) Thus, Green held that if the felony was merely
incidental to the murder, no separate felony-based special circumstance
existed. (Id. at pp. 61-62.)
In People v. Raley (1992) 2 Cal.4th 870, 902 (Raley), the California
Supreme Court discussed the same contention appellant raises here in the
context of a kidnapping special circumstance. The defendant in Raley
argued that the kidnapping of two victims was incidental to one of the
victim’s murder and had no felonious purpose independent of the
defendant’s intent to kill. For these reasons, he maintained that the kidnapmurder special circumstance was invalid under Green, supra, 27 Cal.3d at
pages 61-62. In response, the Supreme Court determined, “We must
examine the evidence in the light most favorable to the prosecution and
decide whether a rational trier of fact could find beyond a reasonable doubt
that defendant had a purpose for the kidnapping apart from murder.” (Ibid.,
citing People v. Bonin (1989) 47 Cal.3d 808, 850.)
Raley observed that “[t]he jury was not bound to accept the
prosecutor’s argument that defendant’s plan from the beginning was to kill
his victims.” (Raley, supra, 2 Cal.4th at p. 902.) It explained,
This is not a case like People v. Weidert (1985) 39 Cal.3d 836,
218 Cal.Rptr. 57, 705 P.2d 380, in which it was overwhelmingly
clear that the defendant formed a plan to kill a particular victim
to prevent his testimony in a subsequent criminal proceeding,
and that the kidnapping of the victim was wholly incidental to
the planned murder. Nor is it a case like Green, supra, 27
Cal.3d 1, 62, 164 Cal.Rptr. 1, 609 P.2d 468, in which the
defendant’s primary purpose was the murder of his wife, and his
subsequent removal of her personal property to avoid her
identification was purely incidental to the murder.
(Ibid.)
Rather, Raley determined that the case before it was more like
Ainsworth, supra, 45 Cal.3d at page 984. (Raley, supra, 2 Cal.4th at pp.
902-903.) In Ainsworth, the defendant kidnapped the victim, put her in his

50

 car, and let her bleed to death over a period of hours. On such facts, the
Court in Ainsworth concluded that there was substantial evidence from
which the jury could have determined that the kidnapping was not merely
incidental to the murder. (Ainsworth, supra, at p. 1043.) Similar to
Ainsworth, Raley noted that analogous facts in the case before it
demonstrated that the defendant did not immediately dispose of his victims,
but brought them to his home where he kept them in the trunk of his car.
(Raley, supra, at p. 903.) Raley observed, “[Defendant] may have been
undecided as to their fate at that point. It could reasonably be inferred that
defendant formed the intent to kill after the asportation, so that the
kidnaping could not be said to be merely incidental to the murder.” (Ibid.)
Raley rejected defendant’s suggestion that, if the jury found he had
any intent to kill at the time he kidnapped the victims, there could be no
kidnap-murder special circumstance. It noted, “Concurrent intent to kill
and to commit an independent felony will support a felony-murder special
circumstance. [Citation omitted.] It is when the underlying felony is
merely incidental to a murder that we apply the rule of Green….” (Raley,
supra, 2 Cal.4th at p. 903.) The Raley Court found that, not only did the
evidence support the determination that the defendant had a purpose for the
kidnapping apart from the murder, but the trial court’s instructions were
consistent with Green in requiring this finding. (Id. at p. 902.)
The same conclusion should be reached here. Although this case
involves felony murder and not a kidnapping special circumstance, the
same analysis applies. The trial court’s instructions directed that, in order
to find appellant guilty of felony murder, the jury had to find her guilty of
kidnapping. In addition, the court instructed the jurors that they had to find
that appellant caused the baby’s death while committing the crime of
kidnapping. (3 RT 907-908.)

51

 Substantial evidence supported the kidnapping charge because
appellant admitted purposefully placing the baby in a location where no one
would find her. (See 2 CT 470; 3 CT 755, 758, 761.) Particularly
damaging evidence showed that appellant moved the baby from the Pasture
2 duplex after Blaize Morgan inquired over the radio whether anyone was
staying there. (1 RT 467-468; 2 RT 486.) As Dwayne Smith drove to the
Pasture 2 duplex, he passed appellant, who was driving in the opposite
direction—after presumably moving the baby out of the duplex. (1 RT
468.) The jury could reasonably infer that, had appellant not moved the
baby, Smith likely would have found her and taken her to a hospital.
Therefore, appellant’s kidnapping of the infant was an integral part of the
prosecution’s case and properly served as the target crime for the felony
murder charge. Similar to Raley, substantial evidence showed that
appellant had a purpose for the kidnapping apart from murder. She needed
to conceal the baby so that no one would find her and find out that
appellant had been pregnant. Unlike the circumstances of Green, where the
underlying felony of robbery was a mere afterthought to the murder,
appellant’s kidnapping of the baby was the gravamen of the charge. The
kidnapping here also enabled appellant to carry out the murder of the baby
by failing to feed and otherwise take care of her.
3.

Kidnapping Instructions

Appellant asserts that the court erred in defining “illegal intent or
purpose” in the kidnapping instructions as “intent to commit the crime of
murder and/or intent to commit the crime of child abuse” (3 RT 909).
(AOB 26-28.) Appellant forfeited this argument by failing to object below.
(See People v. Hajek (2014) 58 Cal.4th 1144 [Capital murder defendant
forfeited claim on appeal that trial court’s instruction to jury that Satanism
evidence applied only to co-defendant and did not “flop over” to defendant

52

 was inadequate, as defendant’s counsel did not request a clarifying
instruction]; People v. Moore (2011) 51 Cal.4th 1104, 1133-1134
[Defendant failed to object to modified jury instruction, and thus forfeited
any claim of error on appeal].) In any event, appellant’s argument is
contrary to the following authority.
In People v. Jones (2003) 108 Cal.App.4th 455, 462 (Jones), the court
explained that generally, to prove the crime of kidnapping, the prosecution
must prove: (1) a person was unlawfully moved by the use of physical force
or fear; (2) the movement was without the person’s consent; and (3) the
movement of the person was for a substantial distance. (Citing § 207, subd.
(a).) The Jones court pointed out, however, that California courts
recognized the first two elements raised an analytical problem when the
victim was an infant or a very young child because the victim would be
incapable of giving consent and could be unlawfully moved without resort
to physical force or fear. (See Jones, supra, at p. 462, citing In re Michele
D. (2002) 29 Cal.4th 600, 607; People v. Hill (2000) 23 Cal.4th 853, 855;
People v. Oliver (1961) 55 Cal.2d 761, 764-765.) Jones observed that these
courts also recognized that to eliminate the lack-of-consent and force
elements would potentially permit a kidnapping conviction of an adult who
forcibly transported a child for a good or innocuous purpose, which would
be inconsistent with legislative intent in enacting the kidnapping statute.
(Jones, supra, at p. 462.)
Jones noted that, to resolve this conceptual problem, “the California
Supreme Court created an additional ‘intent’ element applicable to the
kidnapping of infants or very young children to substitute for the lack-ofconsent element.” (Jones, supra, 108 Cal.App.4th at p. 462, citing People
v. Oliver, supra, 55 Cal.2d at pp. 766-768.) Jones explained, “Although the
defendant’s purpose or motive is generally not an element of a kidnapping
crime, the Oliver court held that as to minors or others incapable of giving

53

 consent a person is guilty of kidnapping under section 207 ‘only if the
taking and carrying away is done for an illegal purpose or with an illegal
intent.’” (Jones, supra, at p. 462, quoting Oliver, supra, at p. 768.) The
court observed that this additional element “precludes a kidnapping
conviction against a person who forcibly, but with lawful intentions, moves
a child.” (Jones, supra, at p. 462.) Jones further pointed out that California
courts have recognized that where the prosecution proves this unlawful
purpose element, a parent who has rightful custody of her child may be
convicted of kidnapping the child. (Id. at pp. 462-463, citing People v.
Senior (1992) 3 Cal.App.4th 765, 781.)
Similar to this case, in Jones the defendant complained on appeal that
the trial court erred in instructing the jury that if the person moved was
incapable of giving consent, ‘“the person moving that person is guilty of
kidnapping only if the act was done for the purpose of child abduction or
for the purpose of murder after moving.’” (Jones, supra, 108 Cal.App.4th
at p. 465, italics added.) The defendant maintained that this specific
instruction should not have been given because it informed the jury that the
illegal purpose element could be met by a showing he moved the victim for
the purpose of abducting him in violation of the child abduction law. The
defendant argued that ‘“[t]o hold that the taking of a child for the purpose
of a child abduction is kidnapping defeats the statutory distinction the
Legislature has drawn between the offenses of kidnapping and child
abduction’” and would ‘“improperly bootstrap the crime of child abduction
into kidnapping in cases in which both the act and criminal purpose amount
only to child abduction.”’ (Jones, supra, at p. 465.)
The Jones court found that this argument was unsupported by any
legal authority and was inconsistent with the function of the “illegal
purpose or intent” element. (Jones, supra, 108 Cal.App.4th at p. 465.)
Jones reiterated that the illegal purpose or intent element

54

 was created by our Supreme Court to ensure that an innocent
carrying away of a very young victim would not result in a
kidnapping conviction. (See In re Michele D., supra, 29 Cal.4th
at p. 612, 128 Cal.Rptr.2d 92, 59 P.3d 164.) This problem is
avoided if the prosecution proves the purpose of the asportation
of the victim was to detain or conceal the child from the lawful
custodial parent. By showing this illegal intent, the prosecution
has met its burden to show the carrying away was not for a
proper or innocent purpose, and therefore the Legislature would
have intended the statute to apply under the circumstances.
The fact that child abduction is similar to the kidnapping crime
does not undermine the logic of this chain of reasoning.
Although in other areas of criminal law, the prosecution may not
rely on one crime to establish the predicate for another similar
crime (see, e.g., People v. Ireland (1969) 70 Cal.2d 522, 538539…), this concept has no applicability here where the other
crime’s function is merely to eliminate the possibility of
convicting an individual for moving a child with a “proper”
purpose.
(Jones, supra, at p. 466.)
Jones noted that People v. Campos (1982) 131 Cal.App.3d 894
(Campos), reached the identical conclusion in response to a similar
argument made by the defendant. (Jones, supra, 108 Cal.App.4th at p.
466.) In Campos, the defendant was convicted of kidnapping after she took
an 11-month old boy from the mother’s custody, transported him to
Mexico, and then abandoned the child. (Campos, supra, at p. 897.) The
jury was instructed that the defendant could be found guilty of kidnapping
only if she moved the child for “the purpose of ‘concealing the child.’” (Id.
at p. 898.) On appeal, the defendant argued that “if her intent to conceal the
child, an element of the charge of violating Penal Code section 278, is the
same intent which renders the moving of the child unlawful, then there is
no separate crime of kidnapping.” (Ibid.) The Campos court rejected this
argument, explaining that the Supreme Court created the intent element to
avoid a conviction “where a child is moved for a good or innocent purpose.

55

 Here, of course, the evidence amply supports the conclusion that appellant
took the child for base antisocial purposes, not for a good or innocent
reason. Such a taking is kidnapping....” (Id. at p. 899.)
Under Jones and Campos, the trial court properly defined “illegal
intent or purpose” in the kidnapping instructions as intent to commit the
crime of murder and/or intent to commit the crime of child abuse. (3 RT
909.) The court’s specific instructions on this element ensured that
appellant could not be convicted of kidnapping if she had a lawful purpose
in moving the baby where here the baby was too young to consent.
Appellant claims that the court’s specific instructions were harmful to
the defense because they “reinforced the idea … that under the prosecution
theory of the case, the kidnapping was ancillary to appellant’s ‘main’ intent
to harm the child.” (AOB 27.) Respondent disagrees. The prosecutor’s
theory was that appellant kidnapped the baby by moving her to a location
where she could not be found and continuing to move her to conceal her
from others. (See prosecutor’s closing argument at 3 RT 915-916 [Hiding
of the baby began when appellant gave birth under deck and continued
when she placed the baby in her truck, then moved the baby to the Pasture 2
duplex.].) That appellant kidnapped the baby and made it difficult for
anyone to discover her was a central part of the prosecution’s theory that
appellant murdered the baby by purposefully starving her during the course
of a kidnapping.
Contrary to appellant’s contention, the court’s specific instructions
defining illegal intent or purpose inured to appellant’s benefit because they
required the jury to find appellant possessed the specific intent to commit
the crime of murder and/or specific intent to commit the crime of child
abuse in order to find her guilty of kidnapping.

56

 4.

Ineffective Assistance of Counsel

Appellant contends that, to the extent the Court finds that she forfeited
the previous argument, defense counsel was ineffective in failing to object
to the trial court’s specific instruction defining illegal intent or purpose in
the kidnapping instruction. (AOB 29-30.)
The reviewing court exercises deferential scrutiny when reviewing
claims of ineffective assistance of counsel and considers the reasonableness
of conduct based on circumstances as they stood at the time of counsel’s
actions or omissions. (People v. Harris (1993) 19 Cal.App.4th 709, 714715.)
To prevail on a claim of ineffective assistance of counsel, a defendant
must show both that counsel’s performance was deficient and that the
deficient performance prejudiced the defense. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688.) Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under
prevailing professional norms. (Ibid.) Prejudice exists where there is a
reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. (Ibid.; People v. Benavides (2005)
35 Cal.4th 69, 92-93.)
As set forth above, the court’s instructions defining illegal intent or
purpose in this case were an accurate and sufficient statement of the law.
For this reason, any objection by appellant’s trial counsel would have been
fruitless. Therefore, because “[c]ounsel does not render ineffective
assistance by failing to make motions or objections that counsel reasonably
determines would be futile” (People v. Price (1991) 1 Cal.4th 324, 387),
appellant cannot show she was denied the effective assistance of counsel at
trial.

57

 III. APPELLANT INVITED ANY ERROR ASSOCIATED
WITH THE COURT’S INSTRUCTIONS ON HOW THE
JURY COULD USE EVIDENCE OF HER EARLIER
PREGNANCY; APPELLANT CANNOT SHOW COUNSEL
WAS INEFFECTIVE
Appellant complains that the court incorrectly instructed the jury
about how it could use evidence of her other pregnancy and the other
baby’s birth. (AOB 31-38.) To the extent appellant forfeited this argument
by failing to object below, she contends that defense counsel was
ineffective in failing to object. (AOB 39-40.) Appellant is barred from
challenging the court’s instructions under the invited error doctrine, and she
cannot establish that counsel was ineffective.
A.

Background

In limine, the prosecutor sought to admit evidence of appellant’s prior
pregnancy and the prior birth under Evidence Code sections 1101 and
1109. 8 (1 CT 189-197.) The prosecutor asserted that both the defense and
the prosecution intended to introduce evidence of the prior birth, but for
different purposes. (1 CT 189.) The prosecutor moved to introduce the
evidence as circumstantial proof of appellant’s guilt, as well as to show her
intent, common plan or scheme, motive, knowledge and lack of mistake in
killing the second baby under Evidence Code section 1101, subdivision (b).
(1 CT 190-193.)
The trial court found that evidence regarding appellant’s pregnancy
and the first baby’s birth was admissible under Evidence Code section

8

Appellant was originally charged in count two with child abuse (1
CT 41-42), but that charge was later dismissed. (1 CT 212-213.)
Consequently, the court never ruled on whether the evidence was
admissible under Evidence Code section 1109.

58

 1101, subdivision (b), and the probative value of the evidence outweighed
any prejudicial effect under Evidence Code section 352. (1 RT 249, 252.)
During the conference on jury instructions, the parties agreed that the
court should instruct the jurors that the evidence of the prior birth and
pregnancy could be considered by the jurors for any purpose, since the
defense was also relying on this evidence to support its defense theory of
the case. (Supp. RT 18-22.) The court and the parties reviewed a
shortened version of CALCRIM No. 375 after a discussion off the record as
follows:
MR. JORDAN (defense counsel): I’m ready. It sure is a
shortened version of what you had, Judge.
THE COURT: Yes. I think it’s more apt because she’s
right, Ms. Kafel is basically opening it. She’s coming in from
the reverse angle and telling them [the jury] they can consider
the evidence in its entirety, but they may also consider it for the
limited purpose of blah, blah, blah. She could say that. She
used the word limited purpose.
MR JORDAN: Now that we got what I’m not going to say,
I can say is I can argue about this [the prior pregnancy] even
being considered a charged offense. I mean, I’m not going to
say that they didn’t prove this, this, or this with what we talked
about a few minutes ago. But they’re saying they could have
charged this as a crime.
MS. KAFEL (the prosecutor): That’s not what that says.
MR. JORDAN: No, no. The People presented evidence of
other behavior by the defendant that was not charged in this
case, so why can’t I argue there’s nothing here to be charged?
THE COURT: Let’s get rid of the charged thing.
MS. KAFEL: Alleged?
MR. JORDAN: No, the first sentence.
THE COURT: Let’s put …“Regarding the pregnancy,
birth, and death of Baby Bella….” Is it Bella?

59

 MR. JORDAN: B-e-l-l-a.
THE COURT: It would be, “…you are not required to but
you may consider the evidence for any purpose, including”—
MR. JORDAN: Right. The charged part where I was—
MS. KAFEL (the prosecutor): No problem. I’ve emailed it
to the Court. Can the court put it in so it matches, or do you
want me to resubmit it?
THE COURT: I’ll just go ahead and type this up.
(Supp. RT 22.)
The court instructed the jurors with CALCRIM No. 375 as follows:
The People presented evidence of other acts by the
defendant regarding the pregnancy, birth, and death of her Baby
Bella, baby No. 1. You are not required to, but you may
consider this evidence for any purpose including,
One, intent. The defendant acted with the intent to kill;
Two, motive. The defendant had a motive to commit the
offense alleged in this case;
Three, knowledge. The defendant had knowledge on
birthing a child;
Four, common plan or scheme. The defendant had a plan
or scheme to commit the offense alleged in this case.
In evaluating this evidence for the purposes mentioned
above, consider the similarity or lack of similarity between the
acts and the charged offense. If you conclude that the defendant
committed the acts and for purposes mentioned above, that
conclusion is only one factor to consider along with all the other
evidence. It is not sufficient by itself to prove that the defendant
is guilty of murder or manslaughter. The People must still prove
the charge beyond a reasonable doubt.
(3 RT 903-904.)

60

 B.

Discussion

Appellant contends that CALCRIM No. 375 as given improperly
permitted the jury to use evidence of the prior pregnancy, birth and death as
evidence that appellant was a person of bad character. (AOB 37.)
Respondent submits that the doctrine of invited error bars appellant from
raising this complaint.
“The doctrine of invited error bars a defendant from challenging an
instruction when the defendant has made a conscious and deliberate tactical
choice to request it.” (People v. Enraca (2012) 53 Cal.4th 735, 761; People
v. Harris (2008) 43 Cal.4th 1269, 1292-1294.) The doctrine is designed to
prevent an accused from gaining a reversal on appeal because of an error
made by the trial court at his behest. (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 49.) If defense counsel intentionally caused the trial
court to err, appellant cannot be heard to complain on appeal. (Ibid.) It
also must be clear that counsel acted for tactical reasons and not out of
ignorance or mistake. (Ibid.; see also People v. Wader (1993) 5 Cal.4th
610, 657-658.) In cases involving an action affirmatively taken by defense
counsel, the high court has found a clearly implied tactical purpose to be
sufficient to invoke the invited error rule. (People v. Coffman and Marlow,
supra, at p. 49.)
The above excerpt from the records shows that trial counsel
affirmatively requested CALCRIM No. 375 and agreed to the modified
language that was ultimately presented to the jury. As the parties discussed
during the conference on jury instructions and also in limine, the defense
wanted evidence of appellant’s prior pregnancy and the first baby’s birth
introduced into evidence. (Supp. RT 18-22.) These circumstances formed
the basis for the defense expert’s theory that appellant had a significant
psychological connection between the first birth and the second pregnancy,

61

 and she experienced feelings of wanting to replace the loss of the first baby,
as well as being in denial about having a baby. (See 3 RT 847-848.)
Moreover, contrary to appellant’s argument, CALCRIM No. 375 did
not invite the jury to use evidence of the prior pregnancy, birth and death as
proof that appellant was a person of bad character or had a propensity to
murder her babies. Nothing in the instruction labeled the prior birth and
pregnancy as bad acts or misconduct, nor was there any language in the
instruction educating the jurors on the concept of propensity evidence.
Rather, the instruction highlighted permissible ways the jury could view the
evidence that were consistent with the People’s theory of the case. The
instruction also informed the jury that it was not required to consider the
evidence for those purposes, and if it did find that appellant committed the
acts for a purpose mentioned, this was only one factor to consider in
determining appellant’s culpability. Finally, the instruction reinforced the
concept that the People had the burden of proving the current charge
beyond a reasonable doubt. (3 RT 903-904.)
Accordingly, appellant cannot show that she suffered any prejudice
from the version of CALCRIM No. 375 given by the trial court. For this
same reason, appellant cannot show that defense counsel was ineffective by
agreeing to the court’s modifications to the instruction. (See Strickland v.
Washington, supra, 466 U.S. at pp. 687-688 [To establish ineffective
assistance, a defendant must show counsel’s deficient performance
prejudiced the defense.]; In re Fields (1990) 51 Cal.3d 1063, 1079 [a
reviewing court need not determine “‘whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.... If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed’” (quoting
Strickland v. Washington, supra, at p. 697).].)

62

 IV. OVERWHELMING EVIDENCE SHOWED THAT THE
BABY DIED AS A DIRECT RESULT OF APPELLANT’S
ACTIONS
Next, appellant maintains that the evidence was insufficient to show
that she caused the baby’s death. (AOB 41-44.) Appellant attempts to
restate the facts to suggest that the evidence also could have supported a
finding that she did not act with malice, but the baby died of other causes.
Appellant, however, fails to appreciate the role of the appellate court.
In evaluating a claim of insufficiency of the evidence, the court must
review the whole record in the light most favorable to the judgment and
determine whether it discloses substantial evidence--i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find appellant guilty beyond a reasonable doubt. (People v. Combs
(2004) 34 Cal.4th 821, 849; People v. Johnson (1980) 26 Cal.3d 557, 576578.) Because it is the exclusive province of the trier of fact to determine
the witnesses’ credibility and resolve factual conflicts, the appellate court
must not reweigh the evidence and substitute its own factual
determinations. (People v. Jones (1990) 51 Cal.3d 294, 314.) Moreover,
even if there is evidence in the record that reasonably supports a contrary
finding, the reviewing court must affirm the conviction if substantial
evidence supports the trier of fact’s finding and verdict. (People v. Little
(2004) 115 Cal.App.4th 766, 771; People v. Bean (1988) 46 Cal.3d 919,
932-933.)
First degree murder is an unlawful killing committed with malice
aforethought, with premeditation and deliberation. (§ 187, subd. (a).)
Malice may be express or implied. Malice is express “when there is
manifested a deliberate intention unlawfully to take away the life of a
fellow creature.” (§ 188.) It is implied “when no considerable provocation
appears, or when the circumstances attending the killing show an

63

 abandoned and malignant heart.” (Ibid.) More specifically, “malice is
implied ‘when the killing results from an intentional act, the natural
consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life.’ [Citation.]”
(People v. Robertson (2004) 34 Cal.4th 156, 164; see also People v. Burden
(1977) 72 Cal.App.3d 603, 620 [A defendant’s lack of concern as to
whether the victim lived or died, expressed or implied, has been found to be
substantial evidence of an “abandoned and malignant heart” by the
appellate courts of this state.].)
Here, the prosecution’s evidence showed that appellant gave birth to a
baby girl who lived for four days, but appellant failed to properly take care
of the baby by feeding her or obtaining care for the baby. Appellant was
well aware that her actions resulted in the baby’s death. She admitted to
Detective Jackson, “I guess she just starved.” (2 CT 468.) Appellant
acknowledged that if she would need to eat after missing several meals, a
baby would also need to eat. (3 CT 758.) When appellant spoke to Castillo
and was unaware that she was being recorded, she confessed that she did
not take good care of the baby and failed to take the baby to a hospital. (3
CT 719.)
Appellant’s misconduct went beyond failing to take care of the baby.
Appellant purposefully kept the baby in a location where no one would find
her. (3 CT 755-758, 761.) Appellant left the baby alone for hours while
appellant went to Redding to drink and have fun with her friends and while
she worked a long shift. (3 CT 756, 758.) Appellant deliberately moved
the baby from the Pasture 2 duplex just before Dwayne Smith would have
found the baby and presumably rescued her. (1 RT 468.) Appellant also
left the baby alone in a locked car on a hot day. (1 RT 402, 404, 406-407.)

64

 In addition, appellant admitted to the detectives that she knew the
baby was not getting nutrition (3 CT 757), but appellant did not buy any
formula for the baby when she went to the store on two different occasions
while the baby was still alive. (3 CT 756-757.) Appellant’s callous
disregard for the baby’s welfare was also evidenced by her text messages to
various people during the time that the baby would have been alive, in
which she inquired about going out at night and described riding her bike
and spending time with her boyfriend. (2 RT 664-665.) All the while,
appellant’s baby was alone and starving.
Evidence of appellant’s preexisting motive of not wanting the baby so
appellant would not lose her job (2 CT 472; 2 RT 591-592) and her
attempts at ending the pregnancy (2 RT 652-653, 656) supported a finding
of premeditation and deliberation. (See People v. Jennings (2010) 50
Cal.4th 616, 646.) It was also clear from appellant’s interview with the
detectives that she had considered what she should have done—i.e., take
the baby to a hospital or a safe surrender location—but appellant chose not
to take either course of action. (2 CT 478; 3 CT 758.)
These facts and circumstances pointed to the inescapable conclusion
that appellant knew her conduct endangered her baby’s life, but she acted
with conscious disregard for the baby’s life. Therefore, the evidence
overwhelmingly established that the baby died as a direct result of
appellant’s actions, and the jury appropriately found she was guilty of first
degree murder.
V.

THERE WAS NO CUMULATIVE ERROR
Finally, appellant assets that the cumulative effect of the errors

requires reversal. (AOB 45.) However, because appellant has failed to
show error, her claim of cumulative error fails. (See People v. Seaton
(2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)

65

 CONCLUSION
Based on the foregoing, the judgment should be affirmed.
Dated: September 18, 2015

Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
GERALD A. ENGLER
Chief Assistant Attorney General
MICHAEL P. FARRELL
Senior Assistant Attorney General
CARLOS A. MARTINEZ
Supervising Deputy Attorney General

/s/ Catherine Tennant Nieto
CATHERINE TENNANT NIETO
Deputy Attorney General
Attorneys for Plaintiff and Respondent
CTN:sra
SA2014119187
32214195.doc

66

 CERTIFICATE OF COMPLIANCE
I certify that the attached RESPONDENT’S BRIEF uses a 13-point
Times New Roman font and contains 19,212 words.
Dated: September 18, 2015

KAMALA D. HARRIS
Attorney General of California

/S/ CATHERINE TENNANT NIETO
CATHERINE TENNANT NIETO
Deputy Attorney General
Attorneys for Plaintiff and Respondent

67

 DECLARATION OF SERVICE BY MAIL

Case Name:

People v. Bradford

No.: C077516

I declare:
I am employed in the Office of the Attorney General, which is the office of a
member of the California State Bar which member’s direction this service is
made. I am 18 years of age or older and not a party to this matter. I am familiar
with the business practice at the Office of the Attorney General for collection and
processing of correspondence for mailing with the United States Postal Service.
In accordance with that practice, correspondence placed in the internal mail
collection system at the Office of the Attorney General is deposited with the
United States Postal Service with postage thereon fully prepaid that same day in
the ordinary course of business.
On September 17, 2015, I served the attached RESPONDENT’S BRIEF by
placing a true copy thereof enclosed in a sealed envelope in the internal mail
collection system at the Office of the Attorney General at 1300 I Street, Suite 125,
P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows:
Matthew H. Wilson
Attorney at Law
17 Bird Street
San Francisco, CA 94110

Stephen Carlton
Shasta Co. District Attorney
1355 West Street
Redding, CA 96001

Attorney for Appellant (2 copies)

Honorable Cara L. Beatty
Shasta Co. Superior Court
1500 Court Street, Rm. 219
Redding, CA 96001

CCAP
2150 River Plaza Dr., Ste. 300
Sacramento, CA 95833

I declare under penalty of perjury under the laws of the State of California the
foregoing is true and correct and that this declaration was executed on September
18, 2015, at Sacramento, California.
/s/ Catherine Tennant Nieto
Declarant

68