Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. SWF003768, RIF138731. Bernard Schwartz, Judge.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia, Arlene A. Sevidal, Lise Jacobson, and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
In December 2006, defendant Audrey Leigh Arriola gave birth to a son, I.A., at Riverside Community Regional Medical Center (RCRMC). They both tested positive for methamphetamine. As a result, Riverside County Child Protective Services (CPS) was called and took legal custody of I.A. on December 24. I.A. was not ready to be discharged from the hospital, so he remained in the hospital’s care and was scheduled to be released to CPS on December 25. On December 24, defendant, who was still at the hospital and was allowed to feed I.A, took off I.A.’s hospital wristband, which had a security chip attached, and fled the hospital with him. I.A. was found at a remote property in Lake Elsinore with defendant’s friend the following day; defendant was apprehended in the same area several days later.
Defendant was convicted of kidnapping and child abduction. Defendant contends:
1. Insufficient evidence was presented to support that she had an illegal purpose or intent when taking I.A. to support her kidnapping conviction.
2. Insufficient evidence was presented to support her conviction for child abduction.
3. The trial court erred by admitting evidence of uncharged prior misconduct, that defendant had another child taken by CPS, under Evidence Code section 1101, subdivision (b).
We find that substantial evidence supports defendant’s convictions and that there were no prejudicial trial errors. We affirm the judgment; however, we will order correction of a clerical error in the minute order and abstract of judgment (see part VI, post).
I
PROCEDURAL BACKGROUND
Defendant was found guilty of kidnapping (Pen. Code, § 207, subd. (a)) and child abduction (§ 278) in Riverside County Superior Court Case No. RIF138731. Defendant was also found by the trial court to have violated her probation in Riverside County Superior Court Case No. SWF003768, a prior case involving petty theft with a prior (§ 666). The trial court sentenced defendant to five years in state prison on the kidnapping conviction and stayed the sentence on the child abduction conviction. The sentence on the probation violation was ordered to run concurrently with the sentences in case No. RIF138731.
Defendant was originally charged with her mother, Debra Ann Harrell. The trial court dismissed the charges against Harrell prior to trial, finding that, based on the preliminary hearing, Harrell did not have knowledge that defendant had lost custody of I.A. at the time he was taken from the hospital.
All further statutory references are to the Penal Code unless otherwise indicated.
A child endangerment charge under section 273a, subdivision (a) was dismissed by the trial court prior to trial pursuant to section 1385.
II
FACTUAL BACKGROUND
Joseph Bergman was a social worker employed by CPS. In December 2006, Bergman received information that a woman, later identified as defendant, had given birth to a baby at RCRMC and that the mother had tested positive for methamphetamine. Further, the woman had a prior history with CPS. When Bergman arrived at the hospital, he was informed by one of the nurses that the baby, I.A., had tested positive for methamphetamine as well. Defendant denied that she had taken methamphetamine during her pregnancy. Bergman determined that it was necessary to take immediate legal custody of I.A. Bergman explained to defendant the reasons CPS was taking custody of I.A., including that she had tested positive for methamphetamines, she had had prior involvement with CPS, and she had failed to benefit from prior services.
Bergman advised defendant about 11:00 a.m. on December 24 that she was going to be released that day (based on information he had received from the nurses on duty) but that I.A. would be released the following day. Bergman would be taking I.A. when he was released. He advised defendant that she would need to appear at a hearing on December 28 in order to get I.A. back. He did not have to go into as much detail about the process as he normally would have due to her prior involvement with CPS. He gave defendant a packet of information regarding community services, e.g. drug treatment, parenting classes, Alcoholics Anonymous/Narcotics Anonymous meetings, that she would need to complete in order to get I.A. back. Defendant signed that she had received the packet of information. Before Bergman left defendant’s room, she became very emotional and was crying and sobbing.
Before leaving the hospital, Bergman gave a form to the nurse at the nurse’s station indicating that CPS had taken legal custody of I.A. The form was never shown to or discussed with defendant. Bergman advised the nurse that the hospital could follow the normal visitation policy between I.A. and defendant but that I.A. was not to leave the hospital with defendant. If I.A. had been ready for discharge on December 24, CPS would have taken physical custody at that time. Bergman did not distinguish between physical and legal custody with defendant but made it clear to her that she would not be taking I.A. from the hospital. Bergman made it clear that CPS was taking I.A. and that defendant would need to appear in court to get him back.
On December 24, 2006, Rosita Santos was the nurse in charge of the obstetrics unit at RCRMC. During her rounds that evening, she spoke with defendant. Defendant had a visitor. I.A. was with defendant for feeding. Defendant asked Santos if she could go home. Santos informed her that since she had just delivered, she could not go home until the following day. Santos told them I.A. could not go home. Santos never mentioned that there was a CPS hold on I.A. during her interaction with defendant and her visitor.
Although the visitor was apparently defendant’s mother, Harrell, she was never identified for the jury.
Santos testified that it was not unusual to allow a mother to feed her own baby even if there was a CPS hold.
Santos originally testified that she said nothing about I.A.
At 8:00 p.m., Santos announced that visiting hours were over. Just prior to that time, she observed defendant’s visitor acting suspiciously in the hallway. Sometime after 8:00 p.m., another nurse in charge of taking care of I.A. went to the room to get him. It was discovered that both I.A. and defendant were missing. Defendant had taken all of her personal belongings from the room. Neither defendant nor I.A. had been properly discharged.
Every baby born at RCRMC is given a sensor on a security wristband that sets off an alarm if the baby is taken from the hospital. The security tag for I.A. was found inside a bedside drawer wrapped in two towels. Santos contacted the Moreno Valley Police Department.
On December 24, 2006, Silvia Gomez had just delivered a baby at RCRMC. She was roomed with defendant. Defendant had a visitor at approximately 5:30 p.m. on that day. Gomez overheard a conversation between defendant and her visitor. I.A. was in the room with them. Defendant asked the visitor about the exits at the hospital. The visitor then left, and defendant got dressed and packed her things. The visitor returned and told defendant to leave in five to 10 minutes. Defendant then left the room carrying her suitcase. Gomez did not see if defendant was carrying a baby.
Gomez told police prior to trial that defendant was carrying a baby when she left her room.
On December 25, about 1:00 or 2:00 a.m., defendant knocked on Silvia Aguirre’s door. Defendant had I.A., so Silvia allowed her to stay at her house. Defendant told Silvia that she thought the police were following her. Defendant had been staying in a trailer next door to Aguirre. I.A. started crying, so defendant went back to her trailer to get a bottle. Defendant fed the baby, and they all went to sleep.
Defendant told Silvia that I.A. had not been discharged to her. She said she took I.A. from the hospital because CPS was going to take him from her. Silvia called the hospital while defendant was visiting Silvia’s sister, Carmen Aguirre, who lived nearby. The police came to Silvia’s house about 4:30 p.m. on December 25.
Carmen and defendant saw the police approaching the property. Defendant asked who had betrayed her and started crying. Carmen convinced defendant to give her I.A. Defendant then left. The police did not find defendant, but they took custody of I.A. In a truck nearby, police found some damp baby clothing, ladies clothing, and baby food inside a bag. In the glove compartment of a nearby van, the CPS forms and a hospital band in defendant’s name were also found.
Videotaped surveillance from the hospital was shown to the jury. It showed defendant’s visitor in the hallways at 7:47 and 8:16 p.m. on December 24. At 8:23 p.m., the video showed defendant going down the elevator and walking out of the hospital with I.A. Defendant’s visitor met up with defendant in the parking lot, and they walked away at a fast pace.
On December 28, police found defendant at the same location where I.A. was found, ducked down on the floorboard in front of the passenger’s seat of a van parked at the property.
A hospital employee testified that defendant and I.A. had tested positive for methamphetamines. In order to test positive for methamphetamines, the substance would have to be ingested by the person testing positive. Amphetamines found in the urine (either the mother or a newborn baby) is usually based on use in the prior three to four days by the mother; the test would not be positive if ingested one or two months prior.
Evidence was also presented that defendant had previously been involved with CPS in 2004, losing custody of her eight-week-old daughter due to her admission of taking methamphetamine, which will be set forth in more detail, post.
III
INSUFFICIENT EVIDENCE OF KIDNAPPING
Defendant contends that insufficient evidence was presented to support that she had the intent to commit kidnapping, as she was unaware that CPS had taken legal custody of I.A. when she took him from the hospital.
A. Standard of Review
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) Rather, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime... beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
B. Analysis
“Generally, to prove the crime of kidnapping, the prosecution must prove three elements: (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. [Citation.]” (People v. Jones (2003) 108 Cal.App.4th 455, 462.) The California Supreme Court has stated that in the situation involving an infant or child, “the amount of force required to kidnap an unresisting infant or child is simply the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.” (In re Michelle D. (2002) 29 Cal.4th 600, 610.) As such, illegal purpose or intent is an element of the crime of kidnapping an infant (id. at p. 612) and is now codified in section 207, subdivision (e).
Here, in accordance with the above, the jury was instructed with Judicial Council of California Jury Instructions (CALCRIM) No. 1201 that they must find that at the time defendant took I.A., she had “an illegal intent or for an illegal purpose.” They were also instructed with CALCRIM No. 252 that kidnapping requires a finding of specific intent to intentionally commit the prohibited act.
Defendant’s sole contention as to the insufficiency of the evidence of kidnapping is that on the day she took I.A. from the hospital, she had no knowledge that CPS had taken custody of I.A., and therefore she did not take I.A. with an illegal purpose or intent. The People proceeded on a theory that defendant’s illegal purpose and intent was shown by all the surrounding circumstances proving she knew that she had lost custody of I.A. at the time she took him from the hospital. We believe the jury could reasonably infer that at the time that defendant took I.A. from the hospital on December 24, she was aware she no longer had legal custody of him based on all the surrounding circumstances.
Initially, defendant was told by Bergman that they were taking custody of I.A. Bergman did not clarify for defendant between physical and legal custody, nor did he show her the form that he gave the nurses at the hospital that established legal custody with CPS. It is undisputed that after CPS took legal custody, defendant was allowed to feed and take care of I.A., a normal hospital procedure. Hence, we must look to the surrounding circumstances to determine whether the evidence supported that defendant had knowledge she no longer had custody of I.A. on December 24.
Defendant was clearly advised that in order to get back custody of I.A., she would have to attend the detention hearing on December 28. That evening, after Bergman left without I.A. because I.A. was not ready to be discharged, defendant had her visitor check all of the exits at the hospital. She then took off I.A’s wristband with the security device and concealed it in two blankets shoved into the bedside drawer, took all of her belongings, and fled the hospital without going through the proper discharge procedure. Defendant went to a remote location where she informed her friend that she believed the police were following her. She admitted that I.A. had not been discharged to her.
If defendant truly believed that she had custody of I.A. on December 24, she would have had no reason to leave the hospital. She was able to feed I.A. and was spending time with him. The only reasonable inference from the evidence presented was that defendant removed the security device from I.A., secreted it in a bedside drawer, and immediately fled the hospital with him because she was well aware she did not have lawful custody of him. This is further evidenced by the fact that she told Silvia she thought she was being chased by the police. If defendant thought that she had lawful custody of I.A. until the following day, she would not have believed the police were chasing her. Finally, when the police arrived, defendant knew she had been caught and accused Carmen and Silvia of betraying her. This evidence supports that she did not believe she had lawful custody of I.A., as she would have no reason to conceal I.A. from the police if she still had custody.
Further, defendant’s defense was implausible. She argued to the jury that she merely took I.A. overnight out of the hospital and then handed the child back over the next day. There was nothing illegal about leaving the hospital without discharge. However, if this were true, as previously stated, defendant had no reason to leave the hospital, because she was allowed to feed I.A. and spend time with him.
Finally, the fact that defendant had previously been involved with CPS, as will be discussed in part V, post, was strong evidence that she knew that, when she used drugs, she was going to lose her baby.
We believe the jury could reasonably infer from the evidence that defendant was aware that she had lost custody to I.A. at the time she took him from the hospital to support the kidnapping charge.
IV
INSUFFICIENT EVIDENCE OF CHILD ABDUCTION
Defendant contends that, for “similar reasons,” the evidence was also insufficient to support her conviction for child abduction (§ 278). Specifically, she claims she had no knowledge that CPS had custody of I.A. at the time she took him from the hospital to support that she abducted him.
Section 278 provides, “Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished....” Section 278, as set out above, is concerned with custody in two respects. First, the statute only applies to a person “not having a right to custody.” Second, a violation of section 278 requires specific intent to detain or conceal the child “from a lawful custodian.” Accordingly, the People had to prove that defendant knew that she did not have lawful custody of I.A.
We have outlined the evidence supporting that defendant had knowledge that CPS had taken custody of I.A. in part III, ante. There is no dispute that she was concealing and keeping I.A. from the lawful custody of CPS. As such, we conclude that substantial evidence supported defendant’s conviction of child abduction under section 278.
V
INTRODUCTION OF EVIDENCE OF PRIOR CPS INVOLVEMENT
Defendant also contends that the trial court erred by admitting evidence of a prior case involving CPS under Evidence Code section 1101, subdivision (b). She claims that there was not enough similarity between defendant’s prior incident involving CPS in 2004 and the current instance to show her intent to kidnap I.A. She also claims that admission of the evidence was more prejudicial than probative under Evidence Code section 352.
A. Additional Factual Background
In a written pretrial brief filed by the People, they sought to admit evidence that defendant had a prior incident involving CPS. According to the offer of proof in the brief, defendant was at a house where drugs were being sold when a search warrant was executed at the location. Defendant, who had her infant daughter with her, admitted to being under the influence of methamphetamine. CPS immediately took defendant’s daughter into custody. The People contended the evidence was highly probative of defendant’s intent in the instant case.
At the hearing on the matter, the People offered the evidence of defendant’s prior incident involving CPS to show there was not a mistake of fact as to custody and to show her intent. In the prior case, when she was also under the influence of illicit drugs, her child was taken, and she was advised as to the services she would have to complete in order to get her child back. Further, she had had her parental rights to her daughter terminated, and she may have feared it would happen to this child, as well.
Defendant argued that they were not similar situations because defendant’s daughter had been immediately taken from her; here I.A. had not been. The evidence therefore did not go to establishing that she had no mistake of fact or intent. The two situations were “fundamentally different,” and admitting the evidence would result in “massive prejudice, where [defendant] becomes a woman who, in the eyes of the jurors, just has her children taken away from her every few years.”
The trial court noted that in both cases narcotics were involved. It felt that defendant was motivated by the fact that she knew that narcotics could lead to her losing her child and was what motivated her to take I.A. It went to her intent because she knew before that when she was found with narcotics she lost her child. The trial court felt that although it was prejudicial, it was probative of her intent. It would go to the fact that defendant could not say she thought it was permissible to take the child.
Erika Tucker, who worked for CPS, testified regarding defendant’s prior involvement with CPS. On April 6, 2004, Tucker received a referral to check on alleged child abuse by defendant on her eight-week-old baby daughter. Defendant admitted to Tucker that she was abusing methamphetamine. This was adequate grounds for taking her baby. Tucker took immediate physical custody of defendant’s daughter.
Tucker indicated that the normal practice by CPS when taking a child was, if a parent was present, that he and/or she would be given verbal notice that CPS had taken custody. In this particular case, defendant was notified of the time and place of the detention hearing. In addition, defendant was given a packet of community service referrals. She was made aware that she would have to go to court to regain custody. Tucker gave defendant her card and told her to contact her with any questions. Defendant was crying and very upset.
B. Analysis
The prior conduct evidence was clearly relevant. Evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant and admissible. (Evid. Code, §§ 210, 351; People v. Garceau (1993) 6 Cal.4th 140, 177.) The trial court is vested with wide discretion in determining the relevancy of evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
However, even relevant evidence can be excluded. Evidence Code section 1101, subdivision (a) generally prohibits the admission of evidence of a person’s character or a trait of his or her character when offered to prove his or her conduct on a specified occasion. Evidence Code section 1101, subdivision (b), however, provides that evidence of a person’s prior criminal act is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge...) other than his or her disposition to commit such an act.”
“To be relevant to prove identity, the uncharged crime must be highly similar to the charged offenses, while a lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent. [Citations.]” (People v. Lenart (2004) 32 Cal.4th 1107, 1123.) “A trial court’s decision to admit or exclude evidence is a matter committed to its discretion ‘“and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 585.)
Based on the record in this case, we cannot say the trial court abused its discretion in admitting relevant evidence tending to prove a material fact. Here, the two instances were decidedly similar. In both situations, defendant had been using methamphetamine. Both times defendant was given referrals to community services. She was also advised that she must attend the detention hearing in order to get her children back. The two situations were sufficiently similar and certainly relevant to defendant’s intent. She was well aware that her drug use would lead to the immediate loss of custody of her child. As such, in the instant case, she would be aware, without Bergman telling her outright, that she no longer had custody of I.A.
Defendant’s attempt to distinguish the prior offense by the fact that CPS took immediate custody of defendant’s daughter in the prior offense is unavailing. As stated, the least amount of similarity is required for proving intent. (People v. Lenart, supra, 32 Cal.4th at p.1123.) The only reason that CPS did not take physical custody of I.A. was because he was not able to be discharged from the hospital.
Evidence admissible under section 1101, subdivision (b) may still be excluded if potential prejudice outweighs the probative value. “‘Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]’ [Citation.] A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 374.) Prejudicial evidence is evidence that tends to evoke an emotional bias against the defendant. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) “A trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
We have already established that the evidence was highly probative to show defendant’s intent. Against the probative value, we must weigh the danger of undue prejudice, confusing the issues, and misleading the jury. Here, the prior incident evidence was certainly less inflammatory than the current case. In the prior case, there was no evidence that the daughter had been exposed to drugs, as opposed to here. In the prior incident, defendant did not try to conceal her daughter from CPS. We cannot say that prior misconduct evidence was more inflammatory than the evidence of the current offense.
Also, the jury was instructed with CALCRIM No. 375 that they were only to consider this evidence for a limited purpose and could not convict defendant relying on the prior incident alone. The jury is presumed to have followed the court’s instructions (People v. Pinholster (1992) 1 Cal.4th 865, 919) and considered the evidence for its limited purpose.
Finally, even if it was error for the trial court to admit the evidence, there was no miscarriage of justice that would require the judgment to be reversed. It is not reasonably probable that the jury would have reached a more favorable verdict had the evidence been excluded. (See, e.g., People v. Scheer (1998) 68 Cal.App.4th 1009, 1021.)
Even without the evidence of defendant’s prior involvement with CPS, the remaining evidence strongly supports defendant’s convictions. We reject defendant’s contention that the trial court erred by admitting into evidence that defendant had prior involvement with CPS, and even if it did err, there was no miscarriage of justice.
VI
CORRECTION OF ABSTRACT OF JUDGMENT
Although not raised by the parties, our review of the record reveals that the abstract of judgment in the instant case does not reflect the orally pronounced sentence. At the time of sentencing on case No. RIF138731, the trial court imposed a $1,000 restitution fine pursuant to section 1202.4, subdivision (b). It also imposed and then stayed an attendant parole revocation fine in the same amount, pursuant to section 1202.45. However, the minute order for the sentencing hearing on April 11, 2008, and the abstract of judgment reflect that a $200 parole revocation fine was imposed. Any discrepancy between the oral pronouncement of sentence and the minute order is presumed to be clerical error in the minute order (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471, superseded on other grounds as stated in People v. Turner (1998) 67 Cal.App.4th 1253, 1267-1268), which can be corrected at any time to reflect the court’s oral pronouncement. (See People v. Mitchell (2001) 26 Cal.4th 181, 183, 185-188.) Accordingly, we will order the minute order and the abstract of judgment be corrected in order to properly reflect the parole revocation fine of $1,000.
It is possible the clerk became confused because a $200 parole revocation fine was imposed on the probation violation case. We believe that the oral pronouncement of sentence is clear that the court intended a $1,000 parole revocation fine be imposed in case No. RIF138731.
VII
DISPOSITION
The judgment is affirmed. The superior court is directed to correct the minute order for April 11, 2008, and prepare and forward to the Department of Corrections and Rehabilitation a corrected abstract of judgment reflecting the properly imposed and stayed parole revocation fine of $1,000 pursuant to section 1202.45 in case No. RIF138731.
We concur: KING, J., MILLER, J.