P. v. Brown

1
Filed 7/16/19 P. v. Brown CA3
Opinion following rehearing
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
HEATHER ROSE BROWN,
Defendant and Appellant.
C085998
(Super. Ct. No. 15F2440)
OPINION ON REHEARING
This is our second opinion deciding defendant Heather Rose Brown’s direct
appeal of her murder conviction in this case. During her pregnancy, and then while she
fed breast milk to her baby, defendant used heroin, methamphetamine, and marijuana.
She chose to give birth in a hotel because she knew that if she had the baby in a hospital,
authorities would take the baby from her. She ignored warnings from her midwife and
others to get help for the baby girl, who died five days after her birth.

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The jury found defendant guilty of first degree murder by poison, child abuse, and
possession of heroin and marijuana for sale, and found true an allegation the child abuse
involved the infliction of injury resulting in death. (Pen. Code, §§ 187, 273a, subd. (a),
12022.95; Health & Saf. Code, §§ 11351, 11359, subd. (b).1) The trial court sentenced
defendant to a total unstayed determinate term of three years in prison, followed by an
indeterminate term of 25 years to life. Defendant timely filed this appeal.
On appeal, defendant contends: (1) no substantial evidence supports causation,
i.e., that poison was a contributing cause of death; (2) in a murder by poison case, the
jury must be instructed on and the People must present substantial evidence of
willfulness, premeditation, and deliberation in administering the poison; (3) the abstract
of judgment and sentencing minutes conflict with the reporter’s transcript regarding some
fines; and (4) she is entitled to a remand for a hearing at which she can present evidence
relevant to a future youthful offender parole hearing.
Our original opinion affirmed the judgment in a manner that defendant claimed in
her petition for rehearing misconstrued her arguments related to the elements of first
degree murder by poison. We granted her petition and vacated our original opinion. We
now issue a new opinion but reach the same conclusion as we did in the original, for
reasons we explain in our Discussion, post. Accordingly, we affirm the judgment.
BACKGROUND
Because of the issues raised it is not necessary to detail all the trial evidence;
evidence relating to causation will be described in the relevant part of the Discussion.
Trial Evidence
The parties agree in their briefs as to the basic evidence. Defendant used heroin,
methamphetamine, and marijuana while pregnant. She knew her sister-in-law’s baby was
1 Further undesignated statutory references are to the Penal Code.

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taken away by the authorities for drug use and had her baby in a hotel to avoid a similar
scenario. After her baby was born, defendant fed it breast milk, knowing she was passing
heroin into the baby’s system; she researched the Internet for remedies for addicted
babies. Her midwife, relatives, and at least one of her friends, all told her to get medical
help for the baby, but she did not do so. The baby died five days after its birth, on
November 3, 2014. Under interrogation defendant said she thought the baby suffocated
due to co-sleeping between herself and the baby’s father (Daylon Michael Reed),2 and
the baby may have been turned towards a pillow. But she also said she was afraid the
baby would be taken away if she sought help; by the time Reed made a 911 call, it was
too late.
The defense rested without presenting further evidence.
Closing Arguments
The People argued that during the victim’s life, defendant consciously disregarded
the harm she caused her baby. The midwife, defendant’s mother, and others told her to
take the baby to get medical attention. She admitted feeding the baby breast milk while
using heroin. She knew if she sought help she would lose both access to heroin and to
her baby, and she instead did online research about home remedies for newborn
withdrawal from opiates. The baby died from multiple drugs, including heroin and
methamphetamine. Baby bottles were contaminated with those drugs. Heroin (converted
to morphine by the body) can suppress breathing, and the cause of death was most likely
a combination of co-sleeping, heroin, and face-down positioning. Death was no accident
because defendant did not act with due caution. Implied malice was shown by her
knowledge of the dangers of her actions and failure to take steps to help her baby. The
murder was of the first degree because she used heroin and methamphetamine; both were
2 Reed reached a bargain on lesser charges before trial.

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poisons as they each could kill. The fact other causes may have combined to produce
death did not change the fact that the poisoning was a contributing factor.
Defense counsel conceded defendant was guilty of child abuse “by failing to take
her to medical care and for passing along controlled substances through her body.”
Causation was not proven because of the confusing nature of the evidence of what did
cause death, including the lack of marijuana found in the baby’s system. Because many
people use heroin and methamphetamine recreationally without dying, they are not
poisons. Defendant did not understand the risk of her behavior, and when she saw the
baby was not breathing, she promptly summoned aid, but it came too late.
In rebuttal, the People argued defendant didn’t even bother to ask law enforcement
about the cause of her baby’s death, because she knew. Any lack of urgency on the part
of the people who told defendant to take her baby in for medical care was because they
did not know the baby had ingested drugs. Any lack of marijuana in the baby’s system
was a “red herring” because that was not a contributing cause of her death. Heroin and
methamphetamine were most certainly poisons; there was no safe level of heroin for a
baby.
The jury convicted defendant as charged, except for an acquittal on a charge of
possessing methamphetamine (count 5).
DISCUSSION
I
Contributing Cause of Death
Defendant contends no substantial evidence shows that exposure to drugs caused
her baby’s death. Although there may have been some ambiguities or even conflicts in
the expert testimony, defendant’s contention is not persuasive given our standard of
review.

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A. Expert Testimony
Apart from non-expert testimony about the circumstances of the pregnancy, the
birth, and defendant’s actions after birth, three relevant experts testified.
Ayako Chan-Hosokawa, a forensic toxicologist, testified the baby’s system
contained Naloxone (Narcan), methamphetamine and amphetamine, morphine (the
“breakdown of heroin”), and acetaminophen. There are no clear toxicity levels for
babies. Because morphine breaks down in less than a day, heroin was necessarily given
to the baby after birth. Methamphetamine breaks down into amphetamine and is
detectable for one to three days, so it, too, was introduced post-birth. Both heroin and
methamphetamine can be found in breast milk, as can marijuana. Marijuana was not
detected, but the active ingredient (THC) can dissipate quickly. The toxicologist did not
find the “marker” for heroin-derived morphine and therefore could only say that
morphine was found.
Dr. Ikechi Ogan, who performed the autopsy, testified he had done some 6,000
autopsies, about 300 on infants, and had been working in pathology since 1991.
Collecting information from law enforcement and others is part of the autopsy process,
and he did so in this case, learning that the baby was found dead in a hotel room with the
parents, who were drug users. The victim was unclean, jaundiced, dehydrated, had a
vaginal fungal infection (candida), and had such a severe diaper rash that medical
attention should have been sought. She had blood pooling (lividity) indicating she had
been in a face-down position at some point after death. A preliminary urine screening
test he performed was positive for opiates.
In Dr. Ogan’s opinion the cause of death was polypharmacy, meaning abuse by
multiple classes of drugs, in this case morphine (derived in the body from heroin) and
methamphetamine. Based on what he learned from law enforcement he added to his
report that the polypharmacy was due to “maternal polysubstance abuse during
pregnancy.” Methamphetamine can cause seizures and cardiac arrest; heroin can slow

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breathing potentially to the stopping point, and it “can cause you to die when you have an
overdose from breathing problems. So both of these drugs used in the wrong context and
wrong doses can lead to death, especially in the pediatric population,” which is more
sensitive. Each drug on its own can kill someone, and there is no safe amount of either
drug for infants. This was not a case of SIDS (Sudden Infant Death Syndrome), which is
a diagnosis indicating no other cause can be found. Dr. Ogan agreed that co-sleeping can
kill, but he found no indications of co-sleeping death, and ruled it out as a cause of death,
in part because he did not see marks in the eyes or on the face typically found in such
cases. He conceded there were some marks on the baby’s cheek and temple, but he found
no injuries around the nostrils, gums, or lips. Nor was jaundice a contributing factor in
the baby’s death.
Dr. James Crawford-Jakubiak is a pediatrician and professor and has worked at the
UCSF Children’s Hospital in Oakland (as the medical director for the Center for Child
Protection) for over 20 years. He is board certified in both general pediatrics and in a
sub-specialty known as child abuse pediatrics. He has testified hundreds of times.
Heroin “makes people basically stop breathing” and can kill. Infants exposed to heroin in
utero can experience “neonatal abstinence syndrome,” which can cause vomiting,
diarrhea, seizures, and difficulty feeding and sleeping. Although morphine may be given
to a baby, there is no therapeutic level of heroin. Heroin is a poison because there is no
“upside” to it and it can hurt or kill people. A baby going through withdrawal requires
hospitalization and might need small amounts of morphine to wean off the opiate
addiction. Methamphetamine makes the heart race, increases blood pressure, and can
also cause seizures. There is no therapeutic dosage of methamphetamine, but one
byproduct of it, amphetamine, can be prescribed for certain conditions, such as attention
deficit disorder. Methamphetamine is a poison because “it can hurt or kill someone
without a therapeutic purpose.”

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Dr. Crawford-Jakubiak reviewed the records in this case, showing that other than a
prenatal visit in February, there was no other prenatal care; the baby died on the fifth day
of life. The baby had a diaper rash that usually occurs in older babies; he had not seen
one in a baby this age in his 25 years as a physician, and thought it was caused by using
Clorox bleach wipes of the kind that he saw in photographs of the hotel room. These
wipes were not designed for cleaning skin.
In Dr. Crawford-Jakubiak’s view, the baby died from respiratory failure. Lividity
showed she had been face down after death; a face-down position is dangerous at that
age, as is co-sleeping. Morphine in her system could have been “enough to knock her
over the edge.” Other factors could be seizures from heroin withdrawal, or a very high
bilirubin level (from jaundice), or an infection (possibly from a non-sterile Buck knife
used to cut the umbilical cord), possible hypothermia, and hypoglycemia from feeding
problems associated with heroin withdrawal. He understood the baby tested positive for
opiates and marijuana, with the opiate use continuing through pregnancy and after birth.
On cross-examination he explained that he thought the baby had withdrawal in part based
on what he was told, that the mother used heroin and methamphetamine before and after
birth of the baby. SIDS was not an answer here, as that is a term for the unexplained
death of a baby who is otherwise healthy and normal.
When asked what most likely contributed to death, Dr. Crawford-Jakubiak
answered: “To me, the most likely explanation is something that caused respiratory
arrest. Again, the three things that are most problematic are the face down position, the
presence of the morphine in her body and the co-sleeping.” The baby had been born
close to term and “died five days later face down with morphine onboard, sleeping with
an adult.” On cross-examination he testified that any one of those three factors alone
could have killed the baby.

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B. Burden and Standard of Review
“When there are multiple concurrent causes of death, the jury need not decide
whether the defendant’s conduct was the primary cause of death, but need only decide
whether the defendant’s conduct was a substantial factor in causing the death.
[Citations.] [¶] Further, proximate causation requires that the death was a reasonably
foreseeable, natural and probable consequence of the defendant’s act, rather than a
remote consequence that is so insignificant or theoretical that it cannot properly be
regarded as a substantial factor in bringing about the death.” (People v. Butler (2010)
187 Cal.App.4th 998, 1009-1010.) But-for causation is not required and as “ ‘long as the
jury finds that without the criminal act the death would not have occurred when it did, it
need not determine which of the concurrent causes was the principal or primary cause of
death.’ [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 643-644 (Jennings); see
People v. Catlin (2001) 26 Cal.4th 81, 155.)3
“ ‘On appeal we review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Abilez (2007)
41 Cal.4th 472, 504.) Sufficient evidence “ ‘ “reasonably inspires confidence” ’ . . . and
is ‘credible and of solid value.’ [Citations.]” (People v. Raley (1992) 2 Cal.4th 870,
3 The jury was instructed with CALCRIM No. 240 as follows: “An act or omission
causes injury or death if the injury or death is the direct, natural, and probable
consequence of the act or omission and the injury or death would not have happened
without the act or omission. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In deciding
whether a consequence is natural and probable, consider all the circumstances established
by the evidence. [¶] There may be more than one cause of injury or death. An act or
omission causes injury or death, only if it is a substantial factor in causing the injury or
death. A substantial factor is more than a trivial or remote factor. However, it does not
have to be the only factor that causes the injury or death.”

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891.) Generally, as defendant concedes, the testimony of a single witness is sufficient to
prove any fact. (See People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) But an expert
opinion based on speculation or unsupported assumptions cannot provide substantial
evidence. (See People v. Wright (2016) 4 Cal.App.5th 537, 545-546; Pacific Gas &
Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1134-1136.)
C. Analysis
Defendant points to ambiguities and inconsistencies in the testimony of the three
experts whose testimony we have summarized, ante. The toxicologist (Chan-Hosokawa)
testified no marijuana was detected, while Dr. Crawford-Jakubiak understood marijuana
had been detected. Although Crawford-Jakubiak listed three factors causing death,
including morphine in the baby’s system, he then testified that any one of those factors
could alone have caused death, including co-sleeping and the position of the baby. Dr.
Ogan testified that the cause of death was polypharmacy by morphine (derived from
heroin) and methamphetamines. Although he mentioned the face-down position, he did
not include that as a likely cause of death, and he found no obvious signs of co-sleeping.
Defendant contends that no medical expert clearly testified that death was caused
by drugs. Defendant discounts Dr. Crawford-Jakubiak’s testimony because he admitted
that any of three things could alone have killed the baby, co-sleeping, position, or
morphine in the system, and had also indicated there were other possibilities, including
jaundice, infection, hypothermia, hypoglycemia, and low blood pressure. Defendant
contends Dr. Ogan’s opinion was speculative because he testified either drug could kill,
not that either drug would kill, or did kill, and he did not clearly rule out co-sleeping that
might not leave marks, did not clearly explain why he rejected dehydration as a cause,
and did not credibly rule out SIDS.
But we must look to all the evidence, including the non-expert evidence, and draw
all reasonable inferences therefrom in the light most favorable to the verdict to determine
whether there is substantial evidence of causation. There is no requirement that causation

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be proven conclusively by any one witness or by expert testimony. Although Dr.
Crawford-Jakubiak listed several possible factors, when asked what most likely killed the
baby, he answered “the three things that are most problematic are the face down position,
the presence of the morphine in her body and the co-sleeping.” Although he conceded
any one of those could kill, his testimony corroborates Dr. Ogan’s opinion that the cause
of death was drugs. His testimony was also sufficient to exclude various other theoretical
contributory causes of death (jaundice, dehydration, etc.).
Dr. Ogan’s opinion narrowed down to one--drugs--the three likely causes of death
as described by Dr. Crawford-Jakubiak. We are not persuaded by defendant’s
contention, repeated in her petition for rehearing, that Ogan’s opinion was speculative
and therefore unworthy of credence. Ogan had the training and experience to determine
the cause of death and performed a thorough autopsy, including collecting information to
learn the circumstances surrounding the death. He tested the victim’s urine and found it
was positive for opiates. He learned the toxicology results from the samples he sent in.
He knew the effects on the body of both heroin and methamphetamine; he testified each
of those drugs can kill on its own, and there was no safe amount for an infant. He ruled
out SIDS, co-sleeping, and jaundice. There were some marks on the baby’s face and
perhaps not all co-sleeping deaths leave marks, but that does not show that Ogan’s
opinion that co-sleeping was not a cause was speculative, as defendant contends. The
fact that Ogan found no conclusive objective sign to prove which drug or drugs caused
death does not mean he simply reasoned that the presence of drugs in the baby’s system
meant the drugs must have caused death, as defendant continues to contend on rehearing.
As explained, he ruled out other causes. Nor does the fact that he did not testify either
heroin or methamphetamine always kills mean his opinion was speculative. Ogan
explained the effects of both drugs and testified neither was safe for administration to a
baby.

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Defendant argues Dr. Ogan assumed the presence of drugs meant the cause of
death was drugs. She points to a passage of cross-examination where defense counsel
went over the testimony about marks on the face, which Ogan conceded “sometimes”
occur in co-sleeping deaths, and asked Ogan whether the baby could have been
smothered by being face down on a pillow, i.e., something soft enough so that it would
not leave facial marks. Then Ogan was asked:
“Q. Would you expect to see bruising if a child was pushed into a pillow
during [co-sleeping]?
“A. Sir, I am not quite sure about what you want me to answer. But what I
do have here is a child who had significant levels of two very toxic drugs. I could
not ignore those drugs.
“Q. You, sir, are not a toxicologist; is that right?
“A. But I know enough of that subject to do my job competently.”
Contrary to defendant’s continued view, we do not interpret this passage to mean
Ogan blindly reasoned that the mere presence of drugs meant drugs caused the baby’s
death. As we have explained, Ogan testified why he considered and rejected other
possible causes. Although he may not have definitively ruled out every conceivable
alternative explanation for the baby’s death, his medical opinion as to the cause of death
was not speculative. Its weight was for the jury to determine.4
Viewing all reasonable inferences in favor of the verdict, there was substantial
evidence to show that drugs administered by defendant caused her baby’s death.
4 We note the jury also heard that defendant told officers the baby had been on her back
in the bed before defendant woke up and found her not breathing.

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II
Murder by Poison
In two separate but connected arguments, defendant contends no substantial
evidence shows that she willfully and deliberately administered poison to the victim in a
premeditated manner, and that the trial court should have included these elements in the
jury instructions. She reiterates these arguments in her petition for rehearing.
The People argue that defendant forfeited this claim by not objecting or proposing
other instructions in the trial court. But if defendant’s claim had merit, it would mean the
jury had not been told it had to find all the elements of the offense. “Instructions
regarding the elements of the crime affect the substantial rights of the defendant, thus
requiring no objection for appellate review.” (People v. Hillhouse (2002) 27 Cal.4th 469,
503.) We reach the merits, but find no error, as we explain.
A. The Law
“Murder is the unlawful killing of a human being, or a fetus, with malice
aforethought.” (§ 187, subd. (a).) Malice may be express or implied. “Malice is express
when there is manifested a deliberate intention to unlawfully take away the life of a
fellow creature. [¶] . . . Malice is implied when no considerable provocation appears, or
when the circumstances attending the killing show an abandoned and malignant heart.”
(§ 188, subd. (a)(1) & (2).)
At the time of the killing in this case (November 3, 2014), the first paragraph of
section 189 read as follows:
“All murder which is perpetrated by means of a destructive device or
explosive, a weapon of mass destruction, knowing use of ammunition designed
primarily to penetrate metal or armor, poison, lying in wait, torture, or by any
other kind of willful, deliberate, and premeditated killing, or which is committed
in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery,
burglary, mayhem, kidnapping, train wrecking, or any act punishable under
Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means
of discharging a firearm from a motor vehicle, intentionally at another person

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outside of the vehicle with the intent to inflict death, is murder of the first degree.
All other kinds of murders are of the second degree.” (Stats. 2010, ch. 178, § 51.)5
People v. Rodriguez (1998) 66 Cal.App.4th 157 carefully parsed this statute and
explained as follows:
“Section 189 establishes three categories of first degree murder. . . .
Section 189 . . . first establishes a category of first degree murder consisting of
various types of premeditated killings, and specifies certain circumstances (use of
explosives or armor-piercing ammunition, torture, etc.) which are deemed the
equivalent of premeditation. Section 189 secondly establishes a category of first
degree felony murders (murders perpetrated during felonies or attempted felonies
such as arson, rape, carjacking, etc.). Finally, section 189 establishes a third
category consisting of only one item, intentional murder by shooting out of a
vehicle with intent to kill.” (People v. Rodriguez, supra, 66 Cal.App.4th at pp.
163-164, italics added, fn. omitted.)
“Thus, if a killing is murder within the meaning of sections 187 and 188, and is by
one of the means enumerated in section 189, the use of such means makes the killing first
degree murder as a matter of law.” (People v. Mattison (1971) 4 Cal.3d 177, 182.)
In Jennings, supra, 50 Cal.4th 616, defendant argued insufficient evidence
supported his poison-murder conviction because the jury found the poison-murder special
circumstance not true and because another person, who did not have intent to kill,
administered the poison. (Id. at p. 639.) Our Supreme Court distinguished the special
circumstance allegation from poison-murder because the special circumstance allegation
requires intent to kill, whereas first degree poison-murder only requires implied malice.
(Ibid.) It concluded, “even if we were to assume the jury rejected the murder-by-poison
special circumstance because it was not persuaded beyond a reasonable doubt that
[defendant] intended to kill [the victim] by means of the drugs, the jury still could have
reasonably found defendant guilty of first degree murder by poison if it found that either
codefendant acted with implied malice. [Citation.]” (Id. at pp. 639-640 (italics added).)
5 That paragraph was slightly rewritten and designated as subdivision (a) in the current
version (Stats. 2018, ch. 1015, § 3), but those changes are not significant for this appeal.

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This passage of the opinion that we have italicized requires only implied malice to prove
poison-murder; it does not require that the administration of poison be undertaken as
defendant argues, in a willful, deliberate, and premeditated manner.
In the similar context of lying-in-wait murder which, like poison-murder, is
specifically set forth as first degree murder in section 189, we observed, “The Legislature
could have concluded that an unlawful killing of a human being with implied malice
aforethought (i.e., an unintended killing which results from an intentional act inherently
dangerous to human life committed with knowledge of the danger to, and with conscious
disregard for, human life [citation] is more deplorable than second degree murder when it
is perpetrated by means of lying in wait.” (People v. Laws (1993) 12 Cal.App.4th 786,
793.) And “as defined in section 189, murder perpetrated by means of lying in wait is not
the definitional equivalent of premeditated murder. An accused who committed murder
perpetrated by means of lying in wait is guilty of first degree murder even if the accused
did not have a premeditated intent to kill the victim.” (Ibid.)
Laws held that there is nothing in section 189 that requires lying in wait to have
been done with the intent to injure. (Laws, supra, 12 Cal.App.4th at p. 794.) “To impose
such a requirement would, in effect, add an additional element to the crime of first degree
murder when the murder perpetrated by lying in wait is committed with implied malice.
It would require that the killing result from an intentional act, the natural consequences of
which are dangerous to human life, deliberately performed with knowledge of the danger
to, and with conscious disregard for, human life and performed with the intent to kill or
injure. We have no authority to add such an element; imposition of a requirement of
independent proof of intent to kill or injure ‘would be a matter for legislative
consideration.’ [Citation.] [¶] All that is required of lying in wait is that the perpetrator
exhibit a state of mind equivalent to, but not identical to, premeditation and deliberation.”
(Id., at pp. 794-795.)

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B. Analysis
The cases discussed above reject the view that, to be guilty of first degree murder
by poison, the administration of poison itself must be willful, deliberate, and
premeditated. Rather, it appears the People need only prove that the killing was caused
by administration of poison, and that the killing was done with malice. Such a killing is
first degree murder as a matter of law.
Defendant’s view to the contrary rests in part on cases involving torture-murder.
In People v. Steger (1976) 16 Cal.3d 539, our Supreme Court discussed the justification
for the rule requiring that torture be willful, deliberate, and premeditated to support first
degree murder. (Id. at pp. 545-547.) The court observed that torture-murder is punished
as aggravated murder because “it is the state of mind of the torturer -- the cold-blooded
intent to inflict pain for person gain or satisfaction -- which society condemns. Such a
crime is more susceptible to the deterrence of first degree murder sanctions and
comparatively more deplorable than lesser categories of murder.” (Id. at p. 546.) In
People v. Cook (2006) 39 Cal.4th 566, our Supreme Court summarized the elements of
torture-murder as follows: “The elements of torture murder are: (1) acts causing death
that involve a high degree of probability of the victim’s death; and (2) a willful,
deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of
revenge, extortion, persuasion, or another sadistic purpose. [Citing, inter alia, § 189.]
The defendant need not have an intent to kill the victim [citation], and the victim need not
be aware of the pain. [Citations.]” (Id. at p. 602.) Thus, we agree with defendant that in
the context of torture-murder, the People must prove a premeditated intent to inflict
extreme and prolonged pain, i.e., to prove that torture (as defined) was used. However,
defendant points to no authority explicitly extending this intent requirement to murder by
poison, and we have found none.
We decline to extend the requirement merely because the two methods of killing--
by torture and by poison--are specifically classified as first degree murder within the

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same code section. First, as explained above, in Laws we made clear the requirement did
not extend to lying in wait, which was also classified as first degree murder by the same
statute. Adding a willful, deliberate, and premeditated requirement to the administration
of poison is equivalent to adding an intent to injure element to lying-in-wait murder.
Second, we agree with Laws that the Legislature could have concluded that an
unlawful killing of a human being by poison, with malice aforethought, was more
deplorable than second degree murder.
Third, where a torture-murderer is subject to aggravated punishment due to her
state of mind, the cold-blooded intent to inflict pain described in Steger, in the context of
poison the defendant is subject to aggravated penalties due to only the method by which
the implied malice murder is perpetrated. We thus conclude the court instructed the jury
in a manner consistent with the law and did not commit instructional error.
As for the sufficiency of the evidence that defendant committed first degree
murder as charged, Jennings, supra, 50 Cal.4th 616, bears factual similarities to this case.
In Jennings, the parents gave their five-year-old child over-the-counter sleeping pills
from a box warning that those pills were not for children under 12 and gave him Vicodin
and Valium--prescription drugs not prescribed for the child. (Id. at pp. 631, 633-634,
640-641.) In rejecting the father’s claim of insufficient evidence of first degree murder,
the court explained: “Defendant does not dispute that the natural consequences of
administering three powerful sedatives to a five-year-old child are dangerous to human
life, or that furnishing the drugs to [the child] was a cause of his death. The only issue in
terms of implied malice, therefore, is whether there was sufficient evidence for a
reasonable jury to have found that defendant ‘ “had full knowledge that his conduct
endangered the life of decedent, but that he nevertheless deliberately administered the
poison with conscious disregard for that life.” [Citation.]’ [Citation.]” (Id. at p. 640,
partly quoting People v. Blair (2005) 36 Cal.4th 686, 745, overruled on another point by
People v. Black (2014) 58 Cal.4th 912, 919-920.) The evidence in this case is similar,

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with defendant knowingly and repeatedly transmitting heroin and methamphetamine to
her baby, while aware of the risk and ignoring warnings from others to seek medical
attention for her baby.
Accordingly, we again reject defendant’s contentions as to the adequacy of the
jury instructions and proof.
III
Clerical Errors
The abstracts of judgment and the minutes of sentencing must fully and accurately
capture all components of a defendant’s sentence as pronounced by the trial court. (See
People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th
380, 385-389.) Defendant identifies a discrepancy between the reporter’s transcript and
clerk’s transcript regarding the parallel restitution and parole revocation restitution fines
(§§ 1202.4, 1202.45), and contends the lower amount reflected by the reporter’s
transcript controls. Given all the circumstances, we disagree.
The probation report recommended the fines be set at the maximum, $10,000. The
determinate abstract of judgment shows both fines as $10,000. The clerk’s minute orders
both from the original and the amended sentencing hearings each show both fines as
$10,000.6
The reporter’s transcript from the only hearing that addresses this issue shows that
after the trial court imposed the prison sentence and inquired about any trailing cases, the
following occurred:
“THE COURT: [D]o Counsel waive formal reading and advisement of all
code sections that go along with the fines and fees?
“[Defense counsel]: So waived.
6 A new sentencing order issued and signed by the trial court on January 30, 2019, also
shows the fines at issue here to be $10,000.

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“THE COURT: The Defendant will be ordered to pay a restitution fine in
the amount of $1,000 pursuant to . . . section 1202.4.
“There is an additional parole revocation restitution fine in the same
amount and that will be stayed pending service of the sentence.”
It is clear there is an inconsistency as defendant contends.
But our Supreme Court rejects the view that “inconsistency must necessarily be
resolved in favor of the reporter’s version” (People v. Smith (1983) 33 Cal.3d 596, 599),
and holds that “a record that is in conflict will be harmonized if possible. [Citation.] If it
cannot be harmonized, whether one portion of the record should prevail as against
contrary statements in another portion of the record will depend on the circumstances of
each particular case. [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 226.)
Here, it is possible the trial court meant to impose and did impose a fine of $1,000
but the clerk assumed the court would impose the recommended $10,000 and
inaccurately recorded the judgment multiple times. It is also possible that the court said
and meant to say “$10,000” but the court reporter incorrectly transcribed what the court
said. The latter possibility best harmonizes the conflict in this record.
First, although a trial court has discretion, the amount of the fines “shall be . . .
commensurate with the seriousness of the offense.” (§ 1202.4, subd. (b)(1) [as to
restitution fine]; see § 1202.45, subd. (a)(1) [parole revocation restitution fine to be in the
“same amount” as restitution fine].) Counsel does not point to any reason the court
would have imposed less than the maximum fine for first degree murder, the most serious
of offenses. Second, as the Attorney General points out, although there was a second
sentencing hearing a week after this hearing, defense counsel did not claim that there was
an error in the minutes from this hearing. Third, the trial judge (rather than the clerk)
signed both the original and the two amended minute orders.

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All of the circumstances indicate that the court reporter mistranscribed what the
trial court said, and that the final minute order (one of three signed by the court) and the
determinate abstract of judgment correctly reflect the fines imposed by the court.
IV
Youthful Offender Remand
Defendant contends that because of her age (21 at the time of the murder) she is
entitled to a limited remand for a hearing to make a factual record that can be used at a
future youth offender parole hearing pursuant to section 3051. (See People v. Franklin
(2016) 63 Cal.4th 261, 276-284.) Defendant concedes that statute was amended to
include persons of her age (at the time of the crime) and that Franklin was decided before
the sentencing hearing, but argues that no reference to that statute was made at sentencing
and that her trial counsel did not submit relevant information at sentencing. The People
in part reply that evidence about defendant’s difficult youth and other circumstances was
presented in a detailed probation report and the interrogations introduced at trial. The
People argue: “It is understandable . . . why appellant did not endeavor to expand the
record. For it is hard to image what more appellant could have added to the record in this
case.” Defendant does not contest the People’s summation of the sentencing evidence in
her reply brief. We agree that much evidence about defendant’s youth and circumstances
is already in the record below. Defendant does not explain what more she would add.
Thus, this case is controlled by our opinion in People v. Woods (2018)
19 Cal.App.5th 1080. In Woods we declined to order a Franklin remand to a defendant
who was sentenced after youth offender parole hearings became a part of California law.
We reasoned that although Woods was sentenced before our Supreme Court decided
Franklin, “that makes no difference given that it was not the decision in Franklin that
gave rise to defendant’s right to a youth offender parole hearing. Instead, as we have
explained, it was the amendment to . . . section 3051 that took effect months before
defendant’s sentencing hearing that gave rise to that right, and on the record here there is

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no reason to believe that defense counsel did not have every reasonable opportunity and
incentive to make an adequate record for defendant’s eventual youth offender parole
hearing.” (Id. at p. 1089.)
Sentencing in this case was held on November 13, 2017, both after the relevant
statutory amendments expanded coverage to embrace defendant and more than a year
after Franklin was decided. Therefore, as in Woods, defendant had a “sufficient
opportunity to make a record of information relevant to [her] eventual youth offender
parole hearing.” (People v. Franklin, supra, 63 Cal.4th at p. 284.) She appears to have
done just that.
Accordingly, no Franklin remand is required in this case.
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Butz, J.

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