Culuko

I respectfully dissent. I disagree with nearly every aspect, published and unpublished, of the majority opinion. However, I will not elaborate on each of the many ways in which I disagree with the majority. In my view, the approach the majority *Page 336 sanctions in this case absolved the prosecution of its duty to present evidence that proves each defendant's guilt beyond a reasonable doubt. That, simply stated, is my primary disagreement and the focus of this dissent. The facts of this case are distressing, to say the least. Joey Galindo, in his short and tragic life, was unquestionably subjected to severe physical abuse and ultimately died as a result of that abuse. The fact of the abuse is clear and undisputed. What is not clear is who was responsible, either directly or indirectly, for Joey's injuries and ultimately for his death. Because the prosecutor could not prove which defendant inflicted the injury that killed Joey or the circumstances under which that injury was inflicted, the prosecutor relied on the theory that one defendant must have punched Joey and, therefore, was guilty as the actual perpetrator of second degree murder, and that the other defendant was an aider…

Somebody killed seven-month-old José ("Joey") Galindo, Jr. by hitting him in the stomach. The blow was so hard that it ruptured an artery at the back of his abdomen, and he died of internal bleeding. At various earlier times, somebody had broken his leg and four of his ribs, smashed him in the face, and shaken his head so violently that the resulting bleeding in his brain might have killed him if the bleeding from the ruptured artery had not killed him first.

The person who hit and killed Joey had to be either defendant Karen Lois Culuko, who was his mother, or defendant Leslie Eugene Garcia, who had moved in with Culuko two months earlier. The person who inflicted Joey's other injuries could have been the one who killed him, the other one, or both.

Defendants were charged with murder (Pen. Code, §§ 187 , subd. (a)), fatal assault on a child under eight (Pen. Code, § 273ab ), and felony child abuse (Pen. Code, § 273a , subd. (a)). The jurors were instructed that if (1) one defendant aided and abetted the commission of felony child abuse by the other, (2) the defendant who committed felony child abuse committed murder, and (3) murder was a natural and probable consequence of the…

Somebody killed seven-month-old José (Joey) Galindo, Jr., by hitting him in the stomach. The blow was so hard that it ruptured an artery at the back of his abdomen, and he died of internal bleeding. At various earlier times, somebody had broken his leg and four of his ribs, smashed him in the face, and shaken his head so violently that the resulting bleeding in his brain might have killed him if the bleeding from the ruptured artery had not killed him first.

The person who hit and killed Joey had to be either defendant Karen Lois Culuko, who was his mother, or defendant Leslie Eugene Garcia, who had moved in with Culuko two months earlier. The person who inflicted Joey’s other injuries could have been the one who killed him, the other one, or both.

Defendants were charged with murder (Pen. Code, §§ 187, subd. (a)), fatal assault on a child under the age of eight (Pen. Code, § 273ab), and felony child abuse (Pen. Code, § 273a, subd. (a)). The jurors were instructed that if (1) one defendant aided and abetted the commission of felony child abuse by the other, (2) the defendant who committed felony child abuse committed murder, and (3) murder was a natural and probable…