Filed 1/23/20 P. v. Smith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CLIFFORD PAUL SMITH, JR.,

Defendant and Appellant.

E073299

(Super.Ct.No. SWF025150)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed.

Clifford Paul Smith, Jr., in pro. per.; Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

 

A jury found defendant and appellant, Clifford Paul Smith, Jr., guilty of second degree murder (Pen. Code, § 187, subd. (a), count 1) and assault on a child causing death (§ 273ab, count 2). The court sentenced defendant to 15 years to life on count 1 and 25 years to life on count 2, staying punishment on count 1 pursuant to section 654. Defendant filed a petition for resentencing pursuant to section 1170.95, which the superior court denied.

After defendant filed this appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a statement of the facts, and identifying one potentially arguable issue: whether the court erred in denying defendant’s petition.

Defendant was offered the opportunity to file a personal supplemental brief, which he has done. Defendant attacks the underlying judgment. He maintains that his trial counsel rendered constitutionally ineffective assistance of counsel. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

During the summer of 2007, the victim’s mother lost her job and accepted defendant and his wife’s invitation for the victim’s mother and her three children to stay at defendant’s home. Defendant was placed in charge of potty training the two-year-old victim. The People adduced evidence that “defendant initiated a strictly regimented potty training schedule that kept [the victim] on the potty training toilet for periods exceeding an hour in some instances.” (People v. Smith, supra, E047485.)

Witnesses testified that the victim became fearful around defendant, and that defendant physically disciplined the victim if she went to the bathroom on herself. A couple weeks prior to the victim’s death, her mother “noticed horizontal bruises down [the victim’s] back that may have been caused by strikes across her back with a belt.” (People v. Smith, supra, E047485.)

On October 9, 2007, the victim’s mother left defendant and the victim alone in the home around 1:45 p.m. “According to defendant, [the victim] had ‘the runs’ on his bed at approximately 2:00 p.m., messing her clothes and the comforter of the bed. After cleaning everything up, defendant and [the victim] took a nap.” (People v. Smith, supra, E047485.)

Sometime thereafter, another resident discovered defendant “holding [the victim] close to his chest while rocking her back and forth.” Defendant told the other individual that the victim “was not waking.” That resident also noticed that the victim’s “lips were a ‘black and blue’ or ‘grayish’ color,” and the victim did not appear to show “any signs of life.” Defendant then began to perform CPR on the victim. (People v. Smith, supra, E047485.)

At some point thereafter, defendant called 911. The paramedics found the victim “unconscious, lying face up on a couch in the living room, with yellow-green mucus surrounding her nose.” “Though [the victim’s] body was still warm, she had no pulse and was not breathing.” “After attempts to revive her were unsuccessful, [the victim] was transported by ambulance to a hospital,” where she “was pronounced dead shortly after arrival at the hospital.” (People v. Smith, supra, E047485.)

A forensic pathologist from the coroner’s office testified that the victim had sustained injuries to her heart, liver, and adrenal gland. He opined that the victim had sustained the injuries from blunt force trauma to the chest and abdomen, which led to “massive internal bleeding” causing “her death within seconds of their infliction.” The forensic pathologist also opined that the injuries “could not have been inflicted by CPR.” (People v. Smith, supra, E047485.)

Defense counsel introduced statements purportedly made by the forensic pathologist in a report compiled by a detective who was present during the victim’s autopsy. In the report, the pathologist was quoted as saying that “it would not be uncommon to see lacerations to the heart or liver during chest compressions while performing CPR, but in this case the laceration to the heart was determined antemortem because of the large amount of blood present in the heart cavity.” (People v. Smith, supra, E047485.) On cross-examination, the forensic pathologist denied making the statement.

Defendant testified at trial that he and a couple other residents all found the victim at the same time, and she was coughing and choking. “Defendant applied three sets of chest compressions” after which fluid exited the victim’s mouth and nose. (People v. Smith, supra, E047485.)

On appeal, defendant contended that insufficient evidence supported the jury’s finding that he had committed any act against the victim with the requisite criminal intent required for either of the crimes for which he was convicted. We affirmed, holding that there was “sufficient circumstantial evidence to support a reasonable inference that defendant performed an act against [the victim], the natural consequence of which was dangerous to her life.” “The prosecution presented the jury with a series of factual circumstances that logically lead to defendant’s culpability. The jury could have logically inferred that defendant had previously struck [the victim] when she failed to meet his potty training expectations, that he struck her in a moment of frustration, and that such force killed her prior to the application of CPR.” (People v. Smith, supra, E047485.)

Defendant has previously filed three petitions for writ of habeas corpus with respect to his conviction in this case. (See In re Smith (Oct. 6, 2008, E046730), petn. den.; In re Smith (Jan. 6, 2017, E067339), petn. den.; and In re Smith (May 5, 2017, E068114), petn. den.)

On February 1 and 11, 2019, defendant filed petitions for resentencing pursuant to section 1170.95. The People filed a response contending section 1170.95 was unconstitutional and, regardless, defendant was not entitled to any relief because he was the “actual killer.”

Defendant was represented by counsel at the hearing on the petition on May 24, 2019. The People reiterated that defendant “was the actual killer of a two-year-old child.” Defense counsel agreed: “That’s what the opinion states. And I believe that would be binding on this Court.” The court denied the petition finding that defendant was “the actual killer and the new law would not apply to him.”

II. DISCUSSION

Defendant concedes that if he were the actual killer, section 1170.95 would provide him no relief. However, defendant contends that his conviction was “a miscarriage of justice,” which was the product of prejudicial ineffective assistance of counsel provided by his trial counsel, essentially maintaining that he is not the actual killer because he was wrongly convicted. Instead of substantively arguing the issue in his brief, defendant attached a motion for new trial and petition for writ of habeas, which he avers will be filed in the superior court contemporaneously with his supplemental brief in this case. We will assume that defendant intended to incorporate his arguments in his motion for a new trial and petition for writ of habeas corpus in the supplemental brief.

In the motion for new trial and petition for writ of habeas corpus, defendant asserts that defense counsel rendered prejudicial ineffective assistance of counsel by failing “to obtain the opinion of an expert forensic pathologist to analyze the autopsy report; ma[king] no attempt to have such a witness testify in an attempt to impeach the only witness which convicted [d]efendant; did not have the investigating officer testify as to what was in his official report that included a statement by [the pathologist] that, indeed, the [victim’s] death could have been caused by the misapplication of CPR by the [d]efendant, a statement [the pathologist] claims he never made.”

First, defendant’s current appeal is from the order on his petition for resentencing, not the original judgment. Thus, defendant forfeited the argument that his prior conviction was the result of ineffective assistance of counsel at trial. “California law prohibits a direct attack upon a conviction in a second appeal . . . .” (People v. Senior (1995) 33 Cal.App.4th 531, 535, 538 [“[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay.”]; see In re Harris (1993) 5 Cal.4th 813, 829 [“Proper appellate procedure thus demands that, absent strong justification, issues that could be raised on appeal must initially be so presented . . . .”].) Defendant could, and should, have raised ineffective assistance of counsel claims in his prior appeal or prior petitions.

Second, defendant presents no record showing that there were experts who would have testified that the victim’s death “could have been caused by the misapplication of CPR by the defendant.” Third and finally, as this court found in defendant’s first appeal, the People adduced sufficient evidence from which the jury could find that defendant killed the victim prior to using CPR. Thus, because sufficient evidence supports the jury’s finding that defendant was the actual killer of the victim, as defendant concedes, defendant was not entitled to relief pursuant to section 1170.95. (§ 189, subd. (e)(1) [A participant is liable for murder if the person was the actual killer.].)

 

III. DISPOSITION

The superior court clerk is directed to correct the May 24, 2019 minute order to correctly show the judge presiding over the hearing and the deputy district attorney appearing for the People. In all other respects, the order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.