Opinion
D080293
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. JOEL DWAYNE BROWNELL, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE393829, John M. Thompson, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
INTRODUCTION
In August 2018, seven-month-old baby J.J. died from profound non-accidental injuries. The evidence suggested that one or both of his parents, Joel Brownell and Jalena Rodriguez, caused his death.
The People charged both parents, but Brownell proceeded to trial separately. On the murder charge, the prosecution argued three distinct theories by which Brownell could be found guilty: (1) that he was the direct perpetrator, (2) that he failed as a parent to protect his child, and (3) that he aided and abetted Rodriguez.
On February 2, 2022, a jury found Brownell guilty of second degree murder (Pen. Code, § 187, subd. (a); count 1), assault by means of force likely to produce great bodily injury on a child under eight years old, resulting in death, by a person having the care or custody of the child (§ 273ab, subd. (a); count 2), and felony child abuse (§ 273a, subd. (a); count 3) with a finding that he personally inflicted great bodily injury on a child under the age of five years (§ 12022.7, subd. (a)). The court sentenced him to an indeterminate term of 25 years to life and a determinate term of 12 years.
Statutory references are to the Penal Code.
Brownell raises four contentions of error on appeal. First, he contends the trial court abused its discretion and violated his right to due process by failing to grant his motion for a mistrial after a prosecution witness testified, in violation of a pretrial order excluding evidence of domestic violence between the parents, that Rodriguez was afraid to leave Brownell. Second, Brownell argues the trial court violated his state and federal constitutional rights by excluding evidence to counter the unexpected testimony. Third, to the extent the jury found Brownell guilty of aiding and abetting implied malice murder, he contends the decision must be reversed because it is not a legally valid theory of murder. Finally, he argues he was prejudiced by the cumulative effect of the errors.
We conclude the trial court did not abuse its discretion or violate Brownell's constitutional rights in denying the mistrial motion or excluding the rebuttal evidence. We further confirm that aiding and abetting implied malice murder is a valid theory of murder. As a result, we find no basis for concluding that cumulative errors were made that prejudiced Brownell. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Prosecution Witnesses
Brownell and Rodriguez were homeless and members of a church, which offered outreach to the homeless community and free Friday night dinners. Many members of the church knew the family and, after J.J.'s death, recalled injuries they had observed.
We refer to individuals involved in the events by first names and last initial to protect personal privacy interests. (See Cal. Rules of Court, rule 8.90(b).)
Pastor Timothy, who founded the church, first met Brownell and Rodriguez, whom he initially knew as "Sunshine," in around 2017. The couple attended every Friday night dinner and Saturday service offered by the church in 2018 and 2019. Pastor Timothy helped them obtain housing after J.J. was born.
Once they had housing, a man named Bryan N. would sometimes give them rides to church. Bryan was known as "Dr. N[.]," and Pastor Timothy thought Bryan considered himself to be a doctor. Pastor Timothy did not believe Bryan actually was a medical doctor, but he thought most of the parishioners believed Bryan was a doctor.
According to Pastor Timothy, different people from the community would often take turns holding J.J. during Friday night dinners. The pastor did not ever notice bruises on J.J. He said Brownell was the predominant caretaker of the baby and took care of his needs. He never noticed any parental neglect by Brownell.
On August 16, 2019, the Friday before J.J. died, Pastor Timothy said J.J. was wrapped in a blanket in Rodriguez's arms most of the time, and he did not think anyone else held J.J., which was unusual.
B. Abby C.
Pastor Timothy's wife, Abby, described the couple as "inseparable" and J.J. as "[v]ery calm and sometimes fussy" but "[m]aybe more calm than normal." Although both parents held J.J., Abby said Brownell held him more often. She never saw either parent behave negligently towards J.J.
Abby once saw a bite mark large enough to have been inflicted by an adult on J.J.'s forearm. She did not recall if Brownell was there that day, but she asked Rodriguez about the bite mark. Rodriguez told her she thought it was from another child at the park, but Abby did not think the mark looked child-sized and said Rodriguez did not seem "concerned enough."
At the August 16, 2019 Friday night dinner, Abby noticed bruises across J.J.'s forehead and said Rodriguez would not let anyone hold him. She asked about the bruises, and Rodriguez told her they were due to tummy time. Abby described this as a "red flag that was alarming" and said that, because "it escalated things" she would have made a report had J.J. not been hospitalized the next day. She also said J.J. was lethargic and was "not really engaging or looking around."
C. Regina B.
A longtime friend of Rodriguez's, Regina, said that whenever J.J. would cry, Brownell would always be "right there to comfort him, to see what he needed, you know, pick him up, give him love, give him a bottle, change his diaper." She described Rodriguez, on the other hand, as "a little bit more standoffish in that regard of taking care of him." Regina further described Brownell as "very caring and loving and always wanting to make sure that [J.J. was] okay," but said she did not remember Rodriguez ever taking the baby out of the car seat carrier. Regina saw Brownell bend J.J.'s knees to relieve gas, but she did not think he did so roughly and said Brownell never did anything to the baby that made her concerned.
D. Suzanne A.
A longtime member of the church, Suzanne, confirmed that J.J. was frequently in the carrier, and said that Brownell mostly took on the role of taking J.J. outside and tending to him when he cried during church services. She did not think Rodriguez was very good at consoling the baby.
Suzanne once observed two bite marks on J.J.'s arm and one on his neck; all of which showed both the upper and lower portion of the bite. She asked Rodriguez about the bite marks, and Rodriguez told her they were from some children that had played with J.J. Suzanne felt that the explanation was reasonable because she knew the family associated with some "rowdy" "street kids" and the marks were small enough to be from a child's mouth. She said Rodriguez did not seem concerned, and she did not talk to Brownell about it.
E. Grace T.
Grace, a former church member who was friends with the couple, reported seeing a bump "[a]bout the size of a golf ball" on J.J.'s forehead. Brownell was not there, but Rodriguez told her J.J. had bumped his head during tummy time. In a photograph taken a week or two later, there was still visible bruising on J.J.'s forehead, and he had an eye injury. Rodriguez said J.J. had scratched his eye, and Grace believed both explanations. She viewed both parents as being equally present for the baby and said Rodriguez had a motherly instinct and Brownell was "just loving [J.J.], spending quality time." She said that the Friday before J.J. passed away, she noticed that he was not making any noises.
F. Bryan N.
Bryan identified himself as a medical doctor and said he attended Cambridge for premed and Oxford for medical school. He claimed to have graduated from medical school when he was 12 and a half years old and to have attended an international studies program through other prestigious schools.
Bryan described Rodriguez as the primary caretaker. He said that during the summer he noticed a bruise on the baby's cheekbone area, and Brownell said J.J. had punched himself. Bryan did not believe this explanation, but Rodriguez did not say anything. About a month later, Bryan saw a bruise on the baby's forehead so he asked the parents to pose with J.J. at the church so he would have an opportunity to take a photograph of the bruise. He then asked the parents about it and Brownell said J.J. was a "tough guy" and had punched himself in the forehead. He described Brownell as almost proud, and Bryan did not believe him. Rodriguez did not comment. Sometime in between those incidents, Bryan also asked about J.J. having a black eye. Rodriguez again did not say anything, but Brownell said J.J. had "a mean left hook." According to Bryan, he was concerned and "did pass on information to [his] authorities," who he described as "no specific person with the Department of Defense."
On August 17, 2019, Rodriguez called Bryan and told him J.J. was "non-responsive." Bryan told her to call 911, but Rodriguez said she would prefer not to and asked for a ride instead. He again told her to call 911 and immediately headed to their home.
When he arrived, the parents were standing "relatively calm[ly]" on the front porch with the baby in the car seat. Rodriguez said J.J. was not responsive, but Bryan rubbed the bottom of his left foot, and the baby turned his head and smiled. Bryan noticed bruises on J.J.'s forehead and told the parents to call the baby's pediatrician. They started driving towards Rady Children's Hospital (Rady) and then, after speaking with someone at the pediatrician's office, turned around and went to the pediatric clinic.
Bryan dropped them off, but then received a call from Rodriguez soon afterward asking him to drive them to Rady. J.J. had been taken to Rady via ambulance and the parents had not been allowed to ride along.
G. Tanya B.
Tanya owned the home the family lived in and rented them a bedroom. Her understanding was that Rodriguez cared for J.J. while Brownell worked, and that both parents took care of him at night.
She testified that she never saw bruising or bite marks on J.J., but admitted, "I guess I didn't pay enough attention to him." She remembered the couple bathing J.J. together, but she never saw either of them shake him dry afterwards. She was present on one occasion when the three adults were sitting outside and heard J.J. cry over the baby monitor. Rodriguez eventually went in to check on him and then reported that he had rolled off the bed onto the floor. She said J.J. seemed fine.
When asked, "In the time that they were living in the house with you, did you ever see Mr. Brownell act in a way that concerned you with him and the baby?" she responded, "No. Absolutely not." In response to the follow-up question, "What about Sunshine?" she said, "Yes, absolutely." She then explained that Rodriguez "did not seem very gentle with J.J. She seemed kind of, like, maternally incompetent." She described Brownell, on the other hand, as "a great dad" and said she never saw him yell at or hit the baby.
The morning that J.J. went to the hospital, Tanya said J.J. had defecated on himself, and the parents gave him a bath. Later, she saw Brownell walking with J.J. lying on his arm. Thirty to 45 minutes later, Rodriguez told her, "Hey, we're going to the hospital with J.J., he has been throwing up." She did not know anything was seriously wrong until a police officer came to her door.
H. Tracy B.
A fellow church member, Tracy, said she held J.J. at the Friday night service before he died and noticed three or four bruises on his forehead. Rodriguez had told her J.J. was sick and had been vomiting, but Tracy indicated he seemed normal while she was holding him. She said he cried when Rodriguez handed him to her, but then stopped and watched the other children playing. She did not see anyone else hold the baby that night. Her family drove Rodriguez and J.J. home and noticed Brownell did not seem like his normal happy, welcoming self when he came out to help bring the baby's equipment into the house.
I.
J. P.
Another church member, J.P., described J.J. as fussy and said he would cry really, really hard during diaper changes and also cry during church. She did not feel Rodriguez reacted appropriately when J.J. cried. When J.P. started noticing bruises on the baby, she would ask to hold him so she could check over his body. She asked Rodriguez about the bite marks she observed, but the mother denied any knowledge of the source, and J.P. found the whole interaction "very odd."
II.
The Investigation
Sergeant Jose Gaytan interviewed Brownell three times. The first time was at the hospital after speaking with Rodriguez and a Rady physician. Brownell told Sergeant Gaytan that J.J. was asleep when he came home the night before, and that the baby woke up at 5:45 a.m. Brownell tried to give J.J. a bottle but said he did not want it and fussed until he fell back to sleep. The baby woke up again at "8-something," took his bottle, but then burped up a little of the food. Brownell said he changed J.J. then left him in the room while he went outside to smoke marijuana.
Before he could even start smoking, he heard J.J. crying over the baby monitor and went to check on him. Brownell said when he picked up J.J., the baby was "too flimsy" and "[h]is breathing was starting to lower." Brownell took J.J. outside and put him in his baby chair to see if he would be okay but said J.J.'s head fell backwards and hit the chair. Brownell then took him out and handed him to Rodriguez. He said she put her finger in J.J.'s mouth to see if there was anything caught in his throat. According to Brownell, they then called Bryan for a ride, and he took them to the pediatric clinic.
As the prosecution noted, J.J. appears to have been unconscious for some time before the parents obtained treatment for him. Brownell reported that he awoke at "8-something," Tanya saw Brownell carrying what she thought was a sleeping J.J. between the back porch and the house sometime between 8:00 a.m. and 9:00 a.m., and she said 30 to 45 minutes passed between then and when Rodriguez told her they were going to the hospital. Nelson's phone indicated that he arrived at 10:03 a.m. to pick up the couple and drive them to the clinic.
Sergeant Gaytan told Brownell about some of J.J.'s injuries and asked how they happened. Brownell told him Rodriguez had reported that J.J. fell off the bed onto some clothing one day when he was at work. He also mentioned that Rodriguez would sometimes grab J.J.'s legs as he lay on the bed and tug him towards her. Four or five days prior, Brownell said he was trying to carry J.J., the stroller, and some groceries through the door and accidentally banged J.J.'s head going through the doorway. He said that had happened twice.
When Sergeant Gaytan inquired as to how J.J. might have sustained rib fractures, Brownell said maybe it was when they "gassed" the baby. He explained that they would hold his legs up, fold his stomach, and roll the gas out, and he opined that maybe they did it too hard.
Having consulted with the doctors, Sergeant Gaytan also asked about any instances of shaking. Brownell said after they gave the baby a shower, they would hold him under his armpits and shake him up and down to get the excess drips of water off. He also acknowledged that he sometimes shook J.J. up and down to try to calm him down when he was crying. He said, "maybe I can get out of hand a little bit with my temper," but that "if things get out of hand, yes, my wife tells me, hey, why don't you pass him to me? I'm human."
Near the end of the interview, Brownell confirmed that he was the only one in the room with J.J. "[f]or a matter of two seconds" when he went to retrieve him after he heard J.J. cry over the monitor. Officers arrested both parents about an hour after the first interview.
During the second interview, while J.J. was still alive, Brownell changed his story slightly and said he was asleep when Rodriguez and J.J. came home from the church dinner Friday night, but that he heard them come in. When Sergeant Gaytan told him his wife had said that when he shook J.J., the baby's head went up and down, Brownell responded, "Yeah, I shook my fucking son, dude, to try to calm him down. I never meant for him to get hurt, dude." He also acknowledged that when he found J.J. limp on the bed, he freaked out and shook him for "[n]ot even 30 seconds" to try to bring him "back to reality." He further admitted that both he and his wife had picked the baby up by his hands in the past and said that a couple of days to a week prior, he had picked J.J. up by his arms and heard his arm "pop."
Both explanations contradicted Tracy's testimony that Brownell greeted them when her family dropped Rodriguez and J.J. off and helped carry the baby's equipment into the house.
When asked about the bruise behind J.J.'s ear, Brownell explained that they sometimes grabbed him by the back of the neck to hold him still while they gave him gripe water for constipation. As for the ribs, Brownell said every once in a while, he heard J.J.'s bones pop when he was rolling the gas out.
After J.J. passed away, Sergeant Gaytan interviewed Brownell a third time. Brownell clarified that the last time he rolled the gas out of J.J. and heard the pop was two or three days before they took him to the hospital. He also confirmed that he shook the baby to the get the water off about every two days when they bathed the baby. He said Rodriguez shook the baby sometimes too, and Sergeant Gaytan told him she admitted hitting the baby's head on two occasions.
Sergeant Gaytan searched the home where the family was living and found marijuana and a camera. The camera contained photographs from January to June 2019, depicting J.J. with injuries such as bruises on his temples, facial scratches, and eye bruising. In his review of the photographs taken from each parent's phone, he noticed that Brownell had many, but Rodriguez did not.
Investigator Brian Zmijewski searched the parents' mobile phones and Facebook accounts and produced photographs of J.J. with injuries and transcripts of conversations between the parents. In the days leading up to J.J.'s death, they discussed the fact that he had been throwing up, and Rodriguez said she thought he had the stomach flu. Zmijewski said Brownell had posted many pictures of his son online, but Rodriguez had not posted that many.
III.
Medical Testimony
When the parents arrived at the clinic, Brownell went next door to buy Rodriguez a drink. They then waited in line like regular patients. But when a staff member noticed that the baby appeared limp when Brownell pulled him out of the stroller, she called for immediate medical assistance. The responding doctor said the baby's breathing pattern and response to stimulation were abnormal. A staff member had called 911 and emergency medical personnel took over at that point.
A responding paramedic reported that when she entered the examination room, the baby was gray and lying unconscious on the table, and the parents were across the room, not interacting with the baby. Two paramedics who arrived at the clinic as J.J. was being rolled out to the ambulance noted that the baby was "posturing," which they explained was common with a head injury and involved rotating the extremities outward and becoming stiff and then relaxing. One explained that he was suspicious about the baby's injuries, so he did not allow the parents in the ambulance. On the way to the hospital, he noted bruising across J.J.'s forehead, a deformity and bumps on the back of his head, and dried blood in his mouth and nostrils.
Upon initial assessment at Rady, doctors noted a facial droop on J.J.'s left side indicative of a neurological injury. They assessed him with a Glasgow Coma Score of three, which is the lowest score there is and indicates the patient is not responding to anything. He had priapism, an erection, and was posturing-both of which suggested neurological injury. He also had petechia, little red dots from burst blood vessels indicative of a crush injury or squeezing, on his neck.
A child abuse pediatrician, Shalon Nienow, M.D., met with Rodriguez and said she frequently contradicted herself. Dr. Nienow indicated that Brownell provided the same explanation as Rodriguez-that J.J. hit his head on the hardwood floor during tummy time. She opined that J.J. could not have sustained the bruises on his forehead from banging his head on the floor and that the bruises on the sides of his head could not have been selfinflicted.
Dr. Nienow opined that J.J.'s injuries were the result of multiple episodes of physical abuse over time and that the injuries that led to his death were the result of abusive head trauma. She explained that abusive head trauma can include "a person slamming a child's head against an object, it can be a person repetitively shaking a child, it can be a person using an object and striking the child in the head with that object." She also said that you can grab children with a good deal of force and not cause bruising so bruising requires impact with a lot of velocity or forces outside the realm of normal care. As for the rib fractures, she made clear that "posterior rib fractures are pretty specific to inflicted injury, especially in infants" and typically are caused by squeezing. And, as with all fractures, she said they would have been excruciatingly painful at the time they happened.
Turning to the arm fracture, she said transverse fractures are caused by "extreme bending forces." She explained that the fracture would cause continuous pain while healing anytime the fragments moved against each other, so "[a]ny time that arm [wa]s manipulated, so putting it into clothing, picking the child up by the arm, that would be an extraordinarily painful event and should [have] be[en] readily apparent to caregivers."
Dr. Nienow opined that the complex, branching skull fracture J.J. sustained was caused by a high force mechanism, unlike linear fractures that result from children falling off the bed. She further explained that the particular pattern of retinal hemorrhage J.J. had is only seen in cases of inflicted or accidental trauma. The pediatric ophthalmologist who examined J.J. agreed. He said the hemorrhages were consistent with someone violently shaking a baby.
J.J. also had retinoschisis, which is only seen in trauma. As reported by his primary physician, J.J. was diagnosed with bilateral subconjunctival hemorrhage and referred to an ophthalmologist at his eight-week checkup. Looking back at his prior records, Dr. Nienow said that there were very limited ways J.J. could have gotten subconjunctival hemorrhages in a non-traumatic fashion; most are caused by direct trauma to the eyeball (which infants cannot cause themselves) or, more rarely, suffocation or strangulation events. Again, the pediatric ophthalmologist came to the same conclusion.
The medical examiner who conducted the autopsy concluded it was a homicide, and that the cause of death was blunt head and neck trauma. He said J.J. had a "large, complex, branching, slightly displaced fracture" in his skull that crossed a suture line, indicating that it was "caused by more significant forces than a simple linear fracture." In other words, he said these types of complex fractures are caused by force that is outside of normal activities of daily living. He also found fractures on three ribs, which were at different stages of healing and could have been caused by blunt trauma or squeezing. J.J. had a healing fracture in a forearm bone, and the medical examiner said an injury that resulted in this type of snapping of the bone would not be something consistent with normal activities of daily living. He also had a subdural hemorrhage, or bleeding in the brain, which caused swelling and compression significant enough that they moved parts of the brain into other compartments. The medical examiner explained that the hemorrhaging could be caused by violently slamming the baby's head against an object or violently shaking the baby. He said they knew there had been an impact because of the skull fracture and scalp bleeding, but they could not rule out shaking.
He said, and Dr. Nienow and the pediatric ophthalmologist agreed, that J.J.'s fatal injuries were not consistent with a fall from the bed, striking his head on the back of a metal chair, or banging his head on the doorway. Likewise, he indicated that burping J.J. or trying to relieve gas would not have resulted in the rib fractures. He said these probably were caused by "forces outside of activities of daily living." He could not say with any medical certainty when the fatal impact happened though.
DISCUSSION
I.
The Trial Court Did Not Abuse its Discretion in Denying Brownell's Motion for a Mistrial and Excluding Evidence That Rodriguez Was Not Afraid of Brownell
Brownell contends the trial court abused its discretion and violated his rights to due process and a fair trial by denying his motion for a mistrial after Bryan testified that Rodriguez felt she could not leave Brownell. He further argues the trial court abused its discretion and violated his state and federal constitutional rights by refusing to allow him to introduce evidence from Rodriguez's friend to counter Bryan's statement.
A. Additional Facts
During a pretrial discussion of various motions in limine, the prosecutor objected to the defense eliciting character evidence suggesting that Rodriguez was the killer because she had hit and yelled at Brownell in the past. The defense wanted to be able to counter any evidence by the prosecution implying that Rodriguez feared Brownell. The prosecutor said that was not her theory because she had no evidence that Rodriguez was somehow a victim to Brownell. Ultimately, the court precluded any references to domestic violence in the opening statements and advised counsel that it would see how the evidence unfolded and rule on the issue if it arose.
When Bryan subsequently testified about the bruises he observed on J.J., the prosecutor asked follow-up questions regarding the parents' responses when Bryan asked about the injuries. Bryan indicated Brownell responded with the comment about J.J. having a "mean left hook," and said, "I didn't notice any concern more than just being sort of seemingly what I would say proud." The prosecutor then asked, "What about Sunshine, did she express any concern?" Bryan responded, "Sunshine, she tended not to say too much about it. She had provided that she had concerns for her health and well-being, that if she ever wanted to leave, she couldn't leave." At that point, defense counsel objected and requested a sidebar. After the sidebar, the court stated that the previous question was withdrawn, and the answer stricken. The court ordered the jury to disregard the previous answer and the prosecutor asked Bryan a question on a different topic.
The court took a recess after Bryan's testimony concluded and addressed defense counsel's motion for a mistrial. Counsel argued that "[t]here are certain bells that cannot be un-rung" and that "while the question by [the prosecutor] was not direct[ed] at what [Bryan] said, what he said insinuated very strongly that Ms. Rodriguez was the victim of some sort of violence, and that she was afraid of her husband and that she was afraid of getting help." She went on to say, "We all know in this room that that is not true, that everything a very delusional and mentally ill man just testified to is inaccurate and false. But when the prosecution puts up a delusional and mentally ill witness, these are the types of things that can happen, and the only remedy is a mistrial." In her view, the entire defense of the case "ha[d] just been completely annihilated."
The prosecutor argued that the question was not responsive and noted that she did not advise Bryan not to discuss domestic violence issues because she was unaware of any evidence that Brownell was an abuser. Nonetheless, she believed the appropriate remedy was to revisit the court's ruling about abusive acts by Rodriguez and allow that evidence in to show she was not a domestic violence victim. Defense counsel disagreed, arguing that the jury could be left believing that was the one time Rodriguez fought back. The trial court then denied the motion for a mistrial and indicated it would not disturb its prior ruling regarding Rodriguez's history of domestic violence.
This was a potential pitfall the trial court had pointed out in originally forbidding any reference to domestic abuse by Rodriguez.
During a later break, defense counsel requested to call Regina to respond to Bryan's surprise comment. She wanted to ask Regina whether she believed Rodriguez was afraid of Brownell. The court initially granted the request but then reconsidered, explaining, "[i]t seems [t]o me that if I allowed you to put this in, I am giving credence to the argument that the question and answer had a greater impact on the panel than I believe [they] did." In the court's view, allowing this tangential testimony would imply the court deemed the point relevant, which the court had tried to avoid. Further, by asking the question, defense counsel would end up "highlighting an issue that [the court did not] think ha[d] been highlighted."
B. Mistrial Motion and Order
Brownell asserts that the parties agreed during pretrial motions that no evidence of domestic violence between Brownell and Rodriguez could be presented at trial, and that the unexpected statement by Bryan violated this ruling. Because the jury had to decide whether Brownell or Rodriguez, or both of them, killed the baby, Brownell argues the admission of evidence suggesting that he was a wife abuser sharply increased the probability that the jury would believe he was the dangerous one and thus, more likely to have abused and murdered his son. For this reason, he contends the court abused its discretion in denying the motion for a mistrial. Moreover, he submits the error so infused the trial with unfairness that it deprived him of due process of law. We disagree.
1. Applicable Legal Standards
" 'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged.'" (People v. Clark (2011) 52 Cal.4th 856, 990 (Clark); People v. Dunn (2012) 205 Cal.App.4th 1086, 1094 (Dunn).) Determining whether a particular incident resulted in prejudice that is" 'incurable by admonition or instruction'" (People v. Jenkins (2000) 22 Cal.4th 900, 986) "requires a nuanced, fact-based analysis," which is best performed by the trial court. (People v. Chatman (2006) 38 Cal.4th 344, 369-370.)
We review a trial court's order denying a motion for mistrial under the abuse of discretion standard. (Clark, supra, 52 Cal.4th at p. 990.) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Wilson (2021) 11 Cal.5th 259, 304; Dunn, supra, 205 Cal.App.4th at p. 1094.)
2. Analysis
We disagree with Brownell's contention that Bryan's comment was incurably prejudicial. When Bryan volunteered that Rodriguez did not feel she could leave Brownell, the prosecutor had been asking questions about the parents' responses to Bryan's inquiries about the injuries he observed. Thus, his comment was entirely out of context. And, before the jury had much time to ponder what he had said and what relevance it had to J.J.'s injuries, the court had stricken the answer and ordered the jury to disregard the comment. Jurors are" 'presumed to have followed the court's instructions'" (People v. Thomas (2023) 14 Cal.5th 327, 382), and there is no indication the jurors disregarded the instruction not to consider Bryan's unsolicited statement. (People v. Leonard (2007) 40 Cal.4th 1370, 1413 [confirming that "[w]hen, as here, there are no indications to the contrary, we assume that the jurors followed the trial court's instructions"]; see also People v. Kocontes (2022) 86 Cal.App.5th 787, 859 ["Juries frequently hear unsolicited and inadmissible statements and for trials to continue, it is axiomatic trial courts may cure any prejudice by admonishing the jury"].)
Furthermore, for a jury that had heard zero testimony regarding domestic violence between the couple, this statement was fairly oblique. The jury would have had to infer that "if she ever wanted to leave, she couldn't leave" indicated Rodriguez was afraid of Brownell and then further infer that her fear stemmed from past physical abuse. As even defense counsel acknowledged, Bryan's comment only "insinuated" that "Rodriguez was the victim of some sort of violence." And then, of course, the jury would have had to go one step further in concluding that because Brownell apparently was a wife abuser, he also abused and killed his son. Generally, something more than an inference from an inference is required to warrant a mistrial. (See, e.g., People v. Wharton (1991) 53 Cal.3d 522, 566 [denying mistrial motion where witness's volunteered statement that the defendant" 'got the word out'" did not directly implicate the defendant in the beating of the witness and thus "require[ed] the jury to draw the further inference that 'the word' led to the injuries"].) As the trial court explained, although counsel and the court had discussed at length whether evidence of Rodriguez's domestic violence should be admitted, the jury had not heard even a whiff of evidence on that issue. Thus, it was reasonable for the court to conclude that the issue had not really been highlighted by Bryan's one offhand statement and that the jury had not been significantly impacted by it.
Brownell does not point us to any analogous cases, but we note that the California Supreme Court has routinely upheld trial court orders denying mistrial motions in comparable cases involving volunteered, nonresponsive, brief comments that were addressed in a timely manner. (See, e.g., People v. Lewis (2008) 43 Cal.4th 415, 500-502; People v. Bolden (2002) 29 Cal.4th 515, 554-555; People v. Price (1991) 1 Cal.4th 324, 428.) For example, in Lewis, a deputy sheriff mentioned during testimony about executing a search warrant that the officers "had information that [the apartment's occupants] were excons." (Lewis, at p. 501.) The defendant moved for a mistrial based upon the inference that he was an "ex-con." (Ibid.) The trial court denied the motion but issued a cautionary instruction. (Ibid.) On review, the high court concluded the testimony was not incurably prejudicial because it was offered out of context, was not followed by any other evidence regarding the defendant's prior record, did not identify which of the occupants were ex-cons, and was timely addressed with a curative instruction. (Id. at pp. 501-502.)
For those reasons, the court concluded the officer's testimony was likely "inconsequential in the minds of the jurors when compared to the strong evidence supporting defendant's guilt of the multiple murders and other crimes with which he was charged in this case." (Id. at p. 501.)
Similarly, Bryan's statement during the trial was made out of context, was not followed by any other testimony regarding spousal abuse by Brownell, and did not specifically state that Brownell physically abused Rodriguez. Additionally, although Brownell contends he otherwise had a very strong defense that Rodriguez was the killer because witnesses described him as a great father and Rodriguez as a terrible mother, the jury also heard Brownell admit during police interrogations that he regularly shook J.J. after baths and shook him for nearly 30 seconds on the morning they took him to the hospital; that he shook J.J. to calm him down; that his temper sometimes got out of hand; that he had rolled J.J. to relieve gas until he heard his ribs pop; and that he had heard J.J.'s arm pop recently when he picked him up by his arms. Evidence further showed that both he and Rodriguez delayed in taking their son to the hospital after finding him unconscious. As a result, the vague insinuation that he was a spousal abuser likely also was "inconsequential in the minds of the jurors" when compared to these admissions of harm to J.J.
Finally, the testimony came from a witness universally acknowledged to be delusional. The prosecution's first witness, Pastor Timothy, testified that he did not think Bryan was a doctor, but that he thought Bryan believed he was a doctor. Dr. Nienow actually looked Bryan up but could not find any evidence that he was a licensed physician. And in defense counsel's closing argument, she referred to Bryan as "the make-believe doctor." Thus, the jury had significant reason to question any statements made by Bryan.
Accordingly, we find that the trial court properly exercised its considerable discretion in denying the defense motion for a mistrial.
On a final note, the authority cited by Brownell supporting his due process and fair trial rights does not address mistrial motions. All of the cases involved federal habeas review and instances where the objectionable evidence was admitted (see McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378; Estelle v. McGuire (1991) 502 U.S. 62, 75; Terrovona v. Kincheloe (9th Cir. 1988) 852 F.2d 424, 428-429; and Bryson v. State of Alabama (5th Cir. 1981) 634 F.2d 862), unlike this case where the court promptly struck Nelson's statement and issued a curative instruction. Thus, we are not persuaded that the situation presented in this case is analogous or rose to the level of a constitutional violation.
C. Exclusion of Evidence
Brownell's next contention is that the trial court erred by refusing to allow testimony by Regina to counter Bryan's statement.
We review the court's decisions regarding admission of evidence for abuse of discretion under Evidence Code section 352, weighing its probative value against the undue consumption of time or the danger of undue prejudice, confusing the issues, or misleading the jury. (People v. Williams (2008) 43 Cal.4th 584, 634-635 (Williams).)
As an initial matter, because the court struck the challenged testimony and directed the jury not to consider it, technically there was no admitted evidence to rebut. But, as even the trial court initially acknowledged that some response might be warranted, the question becomes whether the trial court abused its discretion in impliedly finding that the danger of confusing the issues, misleading the jury, and wasting time outweighed the probative value of the evidence. (Evid. Code, § 352.)
The trial court's comment that "If I allow you to ask this question, then I am tangentially allowing you to argue that point because I've deemed it to be relevant" implies the court viewed this evidence as both irrelevant and tangential to the main issues in the case. These are the type of concerns the court appropriately may consider in determining whether to allow the presentation of evidence." 'Although we recognize that a criminal defendant has a constitutional right to present all relevant evidence of significant probative value in his favor [citations], "[t]his does not mean that an unlimited inquiry may be made into collateral matters; the proffered evidence must have more than 'slight-relevancy' to the issues presented." [Citation.]'" (People v. Homick (2012) 55 Cal.4th 816, 865.) In this case, had the court allowed the evidence, the jury may have been confused as to why Regina was testifying that Rodriguez was not afraid of Brownell; particularly given that they were specifically instructed to ignore Bryan's comment. Further, her testimony would open the door to the prosecution presenting contrary evidence it had obtained from another witness suggesting that Rodriguez was afraid of doing anything that was against Brownell's wishes. This would take the case further afield on a collateral issue at the expense of consuming additional time, all while risking confusing and misleading the jury with testimony of only slight relevance to the murder and child abuse charges. Accordingly, we conclude the trial court's decision to exclude Regina's testimony was a reasonable exercise of its discretion. (Williams, supra, 43 Cal.4th at pp. 634-635.)
We also are not persuaded by Brownell's constitutional argument. Brownell contends the exclusion of Regina's testimony violated his rights under the state and federal constitutions to confront witnesses and to present a defense. But Brownell had the ability to impeach evidence that he abused or murdered J.J., he had the opportunity to attack Bryan's credibility, and he had the option to present evidence that Rodriguez was the one who harmed J.J. Thus, the trial court's ruling did not completely preclude him from confronting witnesses or pursuing a defense. (See People v. Masters (2016) 62 Cal.4th 1019, 1079.) As our high court has explained, "the routine application of provisions of the state Evidence Code law does not implicate a criminal defendant's constitutional rights." (People v. Jones (2013) 57 Cal.4th 899, 957.) Accordingly, for these reasons in addition to those set forth above, we disagree that the trial court's ruling deprived Brownell of his constitutional rights.
II.
Aiding and Abetting Implied Malice Murder Is a Valid Theory of Murder Brownell argues that, to the extent the jury found him guilty of aiding and abetting implied malice murder, its decision must be reversed because aiding and abetting implied malice murder is not a legally valid theory of murder. We disagree.
At trial, the primary question was whether Brownell or his wife caused J.J.'s death. In the event the jury did not believe Brownell was the one who inflicted the fatal blows, the prosecutor argued the jury could still find him guilty under an aiding and abetting theory of second degree murder. Specifically, the prosecutor explained in her closing argument:
"So what [doe]s aiding and abetting require? What it does not require is he does not need to intend the crime of murder. So often people get confused, well, was the aiding and abetting the murder? But for an implied malice murder, he does not need to contend that when mom went into that room, she intended to kill J[.]J., or that she intended the results of her shaking or slamming, if you decide that he's not the one who did it.
"What he needed to intend was her commission of the life-endangering act. So what she did, right. And we know what happened was slamming J[.]J. We know that that is
the mechanism of injuries for J[.]J. So under an aiding and abetting theory, he has to have intended that mom do the act, not the result of that act.
"He had to have appreciated the risk involved, right. So if someone goes in, and out of the blue shakes the baby to death, and you don't appreciate that behavior that you have been encouraging has that risk to human life, you can't be held liable under this theory. Mr. Brownell must have aided the act with a conscious disregard to human life, which is what we have been talking about, right?"
The court gave corresponding instructions regarding aiding and abetting murder and implied malice.
Just after completion of the briefing on appeal, the California Supreme Court decided People v. Reyes (2023) 14 Cal.5th 981 (Reyes), in which the court affirmed the continuing validity of aiding and abetting implied malice murder as a theory of murder. The court explained that, "In [People v. Gentile (2020) 10 Cal.5th 830], we observed that 'notwithstanding Senate Bill 1437's elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.'" (Reyes, at p. 990.) Subsequently, numerous courts of appeal "have held that a defendant may directly aid and abet an implied malice murder." (Ibid.) In reviewing these decisions, the Reyes court found "no basis to abrogate [this theory]." (Ibid.)
We are bound by this precedent and Brownell has provided no basis for us to conclude otherwise. Accordingly, we affirm the judgment.
Although neither party notified us of the filing of Reyes, supra, 14 Cal.5th 981 (see Cal. Rules of Court, rule 8.254, subd. (a)), we independently located this authority. As the parties had an opportunity to fully brief the issue decided herein, and because Reyes squarely resolves the issue, supplemental briefing is not required in this instance. (C.f. Gov. Code, § 68081 [before a court of appeal renders a decision "based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing" (italics added)]; People v. Alice (2007) 41 Cal.4th 668, 679 ["We do not suggest, of course, that the parties have a right under [Gov. Code] section 68081 to submit supplemental briefs or be granted a rehearing each time an appellate court relies upon authority or employs a mode of analysis that was not briefed by the parties. The parties need only have been given an opportunity to brief the issue decided by the court, and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of [Gov. Code] section 68081" (italics added)]; Mark v. Spencer (2008) 166 Cal.App.4th 219, 228, fn. 4 [same].)
III.
Cumulative Error
Brownell contends the cumulative impact of all the individual errors amounted to a violation of due process and requires reversal. Because we do not find merit to any of the preceding contentions of error, we conclude there is no basis for finding cumulative error. (See People v. Duff (2014) 58 Cal.4th 527, 562 ["In the absence of error, there is nothing to cumulate"]; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068 ["A predicate to a claim of cumulative error is a finding of error"].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BUCHANAN, J., RUBIN, J.