Opinion
E078994
05-18-2023
THE PEOPLE, Plaintiff and Respondent, v. KENDALL EUGENE BUTLER, Defendant and Appellant.
Reed Webb, 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, Collette C. Cavalier, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF1900364, Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Reed Webb, 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, Collette C. Cavalier, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant and appellant Kendall Eugene Butler and L.W. (Mother) were the parents of a nine-week-old infant, Jane Doe. Doe was admitted to the hospital on September 26, 2018, suffering from a collapsed lung. Doe was examined and found to have 62 bone fractures, some recent, and others in various stages of healing. One such fracture was to the mandible bone in her jaw, which was believed to have been caused by a single blow to the right side of her jaw. Doe was removed from the care of defendant and Mother. Doe was examined three months later and had suffered no new fractures. A medical examiner concluded the only explanation for the injuries was child abuse while in the custody of defendant and Mother. Mother pleaded guilty to child abuse prior to trial and agreed to testify against defendant. Defendant and Mother appeared in juvenile court on custody issues and defendant attempted to assault her and threatened her because he found out Mother was going to testify against him. At trial, defendant's wife, E.B., testified that in 2011 defendant had threatened to kill her, forced her to have sexual intercourse, and told her he had previously choked their child, A.B., to get her to sleep.
Defendant was convicted of child abuse likely to cause great bodily harm, witness intimidation, resisting a peace officer, contempt of court and simple assault. The jury was unable to reach a verdict on a torture charge. Defendant eventually pleaded guilty to an additional charge of child abuse likely to cause great bodily injury and the torture charge was dismissed.
Defendant makes one claim on appeal that the admission of his prior uncharged acts of domestic violence admitted pursuant to Evidence Code sections 1101, subdivision (b), and 1109 should have been excluded as more prejudicial than probative under Evidence Code section 352.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged by the Riverside County District Attorney with torture (Pen. Code, § 206; count 1) of Doe; child abuse likely to cause great bodily injury (Pen. Code, § 273a, subd. (a); count 2) against Doe; witness intimidation (Pen. Code, § 136.1, subd. (a)(1); count 3) against Mother; assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); count 4) against Mother; misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1); count 5); and misdemeanor contempt of court (Pen. Code, § 166, subd. (a)(1); count 6). It was additionally alleged as to count 2 that defendant personally inflicted great bodily injury on a child under the age of five (Pen. Code, §§ 12022.7, subd. (d), 1192.7, subd. (c)(8)).
The jury found defendant guilty of counts 2, 3, 5, and 6. The jury found defendant not guilty of the greater offense of assault with force likely to produce great bodily injury on count 4, but found defendant guilty of the lesser offense of simple assault (Pen. Code, § 240). The jury found the special allegation for count 2 to be true. The jury was unable to reach a verdict as to the torture charge in count 1, and a mistrial was declared. The People's motion to set count 1 for retrial was granted.
Prior to the retrial, the People amended the information to add a count 7 charging defendant with child abuse likely to cause great bodily injury (Pen. Code, § 273a, subd. (a)) with the special allegation that he personally inflicted great bodily injury on a child under the age of five (Pen. Code, § 12022.7, subd. (d)). Defendant pleaded guilty to count 7 and the special allegation. The torture charge in count 1 was dismissed. Defendant was sentenced to 17 years to be served in state prison.
B. FACTUAL HISTORY
1. ABUSE OF DOE-COUNT 2
a. Discovery of Doe's Injuries
Mother had four children: Doe, (a girl born July 2018) and E.W. (a boy born June 2019) with defendant; and Me.W. (a girl born January 2008), Mi.W. (a girl born May 2015) from previous relationships. Defendant and Mother met in April 2016. After dating for some time, they moved in together in a house in Moreno Valley. The house they lived in consisted of four bedrooms and each of the bedrooms was rented out to different tenants. Defendant, Mother, Me and Mi all shared one bedroom. The tenants all shared the common areas in the house. Defendant and Mother discussed having a baby, and she got pregnant with Doe.
When Mother gave birth to Doe in July 2018, she took two months off from her work at an assisted living facility. She was the primary caregiver for Doe. Defendant was working during this time but also took care of Doe. During these first two months, Mother left Doe alone with defendant during times that she had to take Mi or Me to school when she had to go to the store, or out to do laundry. Doe had trouble eating during this time; she was constantly spitting up. Doe mostly stayed in their room. She did not go into the other parts of the house.
Defendant stopped working at the end of August 2018, and they had no money. She had to ask her mother for money. Defendant repeatedly complained there was no money for food or beer. Defendant and Mother never asked anyone else to watch Doe for them. For the first two months, only she and defendant cared for Doe.
Mother returned to work on Sunday, September 23, 2018. In the morning, she gave Doe a bath; she had no visible injuries or marks. Mother left Doe with defendant. She worked for 10 hours that day. When she got home, Mother noticed that Doe had a bump on her chin. Defendant told her he did not know where it came from. The next morning, Mother changed Doe's diaper but did not take off all of her clothes. The lights were not on in the room. She did not observe any injuries. She worked another 10-hour day. She called defendant several times during the day to make sure that Doe was okay, and he said she was fine. When she arrived home, Mother noticed that the bump on Doe's chin was getting bigger. Defendant told her he did not know what had happened to cause the bump on Doe's chin.
The next day, Tuesday, September 25, Mother changed Doe in the morning but did not take off Doe's clothes; she did not notice any injuries. Mother worked another 10-hour day. When she returned home, Mother decided to take Doe to the doctor based on the bump on her chin getting bigger. Her mouth was also swollen. Doe had not eaten that day. Mother did not inspect the rest of Doe's body.
When Mother left with Doe, defendant told her they were going to take Doe away from them. When she arrived at the emergency room at Riverside University Health System Medical Center (RUH), they took her and Doe to a room. RUH staff took off Doe's clothes, and for the first time, Mother saw that Doe had bruises on her body. The bruises were not present on Sunday when she bathed Doe. She did not know where Doe had obtained the bruises. Doe had bruises on her chest, back of her leg, knee, shoulder and foot. The right side of her jaw was swollen and bruised.
Mother called defendant and he came to RUH early the next morning. She did not talk to defendant because she was afraid they would get into an argument. Doe returned home to care for Mi and Me. When Mother arrived home, defendant was there and she asked him what had happened to Doe; he said he did not know. Mother returned to RUH and was there until the next morning, Thursday, September 27, when they moved Doe to Loma Linda. Mother was told by child protective services that she could no longer visit Doe. Mother had not seen Doe since September 29, 2018. Mi and Me were also removed from her custody.
This was defendant's only visit to either hospital.
b. Medical Examinations of Doe
Michael Bermudez was a resident nurse in the emergency department at RUH. He was working in the emergency room on September 25, 2018, at approximately 7:45 p.m. He helped treat Doe. Doe was brought to a room because she was having trouble breathing. Doe was taken to have a CT scan conducted. She had to have a chest tube inserted because she had a collapsed lung. Bermudez observed bruises on Doe's chest. Doe was admitted into the pediatric intensive care unit.
Dr. Renee Park was a head and neck surgeon who contracted to work on pediatric patients at RUH. Her specialty was working with breathing problems in babies and children. Doe had a completely separated jaw fracture that had to be repaired by surgery. The bones had to be pinned together. This type of fracture was unusual for an infant; Dr. Park had never seen this type of injury in an infant. In her opinion, it would have taken a significant amount of force to separate the bone.
Dr. Mark Massi was a pediatrician who specialized in child abuse evaluations. He was working at RUH on September 26, 2018. He examined Doe. He first spoke with Mother. Mother advised him that she first saw swelling on Doe's face on Sunday. The swelling got worse on Monday and Tuesday, and bruising started to show. Mother thought it was some type of infection. Doe had not eaten the day she brought her to the hospital. There was no history of other hospital visits where fractures were present for Doe, Mi or Me. Defendant also spoke with Dr. Massi. Defendant had not noticed any injuries to Doe except for something being wrong with her throat on Monday.
Dr. Massi performed a physical examination on Doe. He discovered bruises on her body and an abrasion on the inside of her mouth on the right side. Her jaw was swollen and firm to the touch. The tube to help her breathe was still in her chest. He also felt what appeared to be rib fractures. She had a light bruise under one of her eyes. She had two bruises on her left calf. She had bruises on the back of her right arm. Blood tests revealed Doe was anemic, which required her to be given blood. The anemia could have been caused by either external or internal bleeding. Other tests revealed that she may have had trauma to her muscles and liver.
The CT scans revealed a jawbone fracture. Dr. Massi surmised it was caused by a single forceful blow to the jaw. Both collarbones had been injured but it was not clear when the injuries occurred. There were fractures to her upper arm bone that were likely related. These injuries could have been caused by pulling or twisting the upper arm. There were 43 small fractures on Doe's ribs, all in different stages of healing. Eleven of the fractures would have occurred in the prior one or two weeks. There were fractures to her forearms. There were fractures apparent on Doe's right hand. There were fractures on her thigh and shin bones. The collapsed lung was probably a result of the ribs being fractured. There was a fracture to her shoulder which would have required the application of a "great deal of force." She had a laceration on her spleen. Dr. Massi surmised it had been caused by blunt force trauma. The liver also appeared to have been injured. The injuries to her jaw could have impacted her ability to eat. In total, Doe had 62 fractures.
Dr. Massi indicated that Doe was tested for possible genetic defects, which could cause such fractures or vitamin deficiencies that would make her susceptible to injury. Nothing was found that would explain the fractures. Doe remained at Loma Linda until October 11, at which time she was returned to RUH. She was then placed in a foster home. Doe was again examined on November 8, 2018. All of her blood tests had returned to normal. She had gained weight. A bone scan was performed on December 26, 2018, and she had no new fractures. The 62 fractures were healing. Dr. Massi opined that based on no new fractures being present, the 62 fractures were not a result of an underlying medical condition. Doe being dropped would not have caused the multiple fractures, which occurred at different times. He concluded that Doe's injuries were the result of physical child abuse. It was the most severe case he had seen based on the number of fractures.
c. Police Investigation
Riverside County Deputy Sheriff Hardin was dispatched to the hospital during the early morning hours of September 26, 2018. He met with Mother. She was willing to answer all of his questions. She seemed "down" and "depressed." Mother told Deputy Hardin that defendant had never been physically aggressive with her or any of the children.
Riverside County Sheriff's Department Investigator Gary Bowen primarily investigated child abuse and sexual assaults. He arrived at the hospital to assist with the investigation of Doe's injuries. He observed Doe. He spoke with defendant who was present. Defendant told Investigator Bowen that he and Mother were the only caregivers for Doe. Defendant denied that there had been any accidents involving Doe, and he had no idea how she sustained her injuries.
A timecard from Mother's work showed that on Sunday, September 23, 2018, she worked 7:32 a.m. to 5:30 p.m.; she worked 7:32 a.m. to 5:32 p.m. on Monday, September 24; and she worked 7:30 a.m. to 4:31 p.m. on Tuesday, September 25.
Several family members and friends testified they never were allowed to care for Doe. Defendant and Mother were the only persons who cared for Doe prior to her going to the hospital. Defendant was oftentimes alone with Doe in their bedroom. Some family members had observed defendant get angry and had seen him throw items.
Me, who was 12 years old at the time of trial, was living with Mi and Doe in a foster home. When Doe was born, it was summer and she was at home. She spent most of her time downstairs watching television or at her aunt's house. Mother never left Doe alone with her; Doe was always left with defendant. Me had heard Doe "screaming crying" when she was alone upstairs with defendant; it was different from her regular crying. When she went upstairs to check on Doe, defendant would assure her that Doe was fine. Me had seen defendant discipline Mi by spanking her really hard on the buttocks until she cried. She had witnessed defendant and Mother get into a fight and defendant had thrown the television on the ground, breaking it.
Mother was charged with child abuse of Doe and she pleaded guilty. She agreed as part of the case to testify against defendant. Mother had pleaded guilty because she felt she had failed to protect Doe and should have taken her to the hospital sooner.
Mother had to stay living with defendant until November 2018 because she did not have another place to live. He never told her what happened to Doe. Mother got pregnant with another child, E.W., in October 2018; defendant was the father. She was upset because she knew that the baby would be taken from her by child protective services. She stayed in contact with defendant until January 2019. Defendant sent her a letter stating that she was a good mother and thanking her for having E.W. He also stated that he did not hate her, but he hated himself.
2. DEFENDANT'S ACTIONS AGAINST MOTHER-COUNTS 3 THROUGH 6
Mother indicated that she and defendant had to appear together in juvenile court on a case for their new baby, E.W. It was either in 2019 or 2020. Defendant was in handcuffs and was shackled. Despite this, defendant had come after her while they were waiting in court. He said to her, "You think I'm playing." He got within one foot of her but she was able to move away. She was afraid that he was going to kill her.
Riverside County Sheriff's Deputy Howell was assigned as a bailiff in a courtroom at the juvenile court on November 7, 2019. Mother and defendant had a case in the courtroom. Defendant was in custody and had to be brought into the courtroom. He was placed at counsel table and Mother was behind defendant on a bench that was approximately six feet from him. Deputy Howell had to answer her telephone. As she did, defendant stood up, turned around, and lunged forward toward Mother. Deputy Howell grabbed defendant's waist chains to slow him down but it did not stop him. Mother's attorney stood between Mother and defendant. Another sheriff's deputy was able to subdue defendant by punching defendant in the face. Defendant fell to the floor but was still fighting, trying to get at Mother. Defendant finally complied with their demands to stop fighting after a few minutes.
The judge in the courtroom had to leave the bench for her safety. Other sheriff's deputies had to respond to the courtroom to assist. Defendant was moved into a cell and required medical attention for a scrape on his lip. Defendant told Deputy Howell that he was sorry. He had found out that day that Mother was going to testify against him in the instant case.
3. PRIOR DOMESTIC VIOLENCE AGAINST MOTHER
Mother testified that she and defendant were outside arguing one day and defendant "pushed the crap" out of her. Defendant was upset because he thought that Mother had sex with their landlord. This was after Doe was born but before she went to the hospital. He pushed her in the ribs and it hurt. She admitted she lied to the law enforcement officers at the hospital that defendant had never touched her. She was trying to protect him because she did not believe at the time that he could have hurt Doe.
4. PRIOR UNCHARGED DOMESTIC VIOLENCE AGAINST E.B.
E.B. had three children. One of her children, A.B., was fathered by defendant. She and defendant had met in 2010-E.B. was 26 years old and defendant was 19 years old. E.B. had two other children. Defendant and E.B. got married in June 2010. Defendant was a good stepdad to her children. Defendant was in the Army and they lived on an Army base once they were married. Defendant was very protective of her. He constantly called her and would not let her go out to places by herself. Whenever she spoke with other men, defendant accused her of wanting to have sex with them.
Defendant told E.B. that he wanted to have a son. When they found out that A.B. was a girl, defendant was happy but said he wanted a boy. After A.B. was born, defendant changed. He was very short-tempered. He started getting a lot of tattoos. He hung out with friends more than spending time at home. Defendant did not hold A.B. very often; she would cry when he held her.
In 2011, arguments between E.B. and defendant became physical. He broke a picture frame during one incident. He pushed her in the chest and called her a "bitch" during another incident. After the incident, a no-contact order was issued and he lived in another location on the Army base.
While the no-contact order was in place, defendant came to her house unannounced. One of her children let him in the house. Her two children went upstairs. A.B., who was five months old, stayed in the living room with them. She was in a swing. E.B. went into the kitchen to make A.B. a bottle, but "everything that [E.B.] would try to grab, he would take it from [her] and throw it." Defendant told her that she had ruined his career and life. E.B. got scared and tried to leave the house. He grabbed her and dragged her back into the house. He made her sit down and he held a box cutter to her throat. He threatened to kill her.
Defendant took E.B. into the bathroom. He wrapped his hand around her neck and squeezed her neck until she lost consciousness. When she came to, she was on the floor in the bathroom and defendant was throwing things. He punched her multiple times in the side. He kept telling her that he loved her. He took her back to the living room and put the box cutter to her throat. A.B. was crying and E.B. tried to hold her but defendant would not let her. Defendant then told E.B. sometimes when he would put A.B. to sleep, he would choke her.
E.B. thought that defendant was going to kill her. Defendant took her into A.B.'s room and forced E.B. to have sex with him. E.B. felt that if she refused to have sex with him, he would kill her. She did not resist. He told her that someone was looking after her because he did not kill people during the day. He told her that he was going to get his son. Defendant left the house.
E.B. reported the incident to the military police on base and defendant received a less-than-honorable discharge from the Army. No charges were brought against defendant. She filed for divorce in 2013 but it was not final. E.B. allowed defendant to stay with her after the incident for two months but her mother was present in the house with the children. She did not leave the children alone with defendant.
Defendant presented no evidence on his behalf.
DISCUSSION
Defendant contends his conviction in count 2 for child abuse causing great bodily injury and the special enhancement that he caused great bodily injury to a child under the age of five must be reversed on the ground that his trial was unduly affected by the admission of E.B.'s testimony. The evidence should not have been admitted pursuant to either Evidence Code sections 1101, subdivision (b), or 1109. He insists that the evidence was not relevant to the instant charges and was more prejudicial than probative pursuant to Evidence Code section 352.
A. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, defendant brought a motion to exclude evidence of the prior uncharged acts of domestic violence alleged to have been committed by him against E.B. Defendant argued the evidence was highly prejudicial and was being used solely to show that he had a disposition to commit violent acts. Further, to the extent that the acts involving E.B. were admissible as Evidence Code section 1109 evidence, they should be excluded under relevance grounds because the current case did not involve domestic violence.
At the same time, the People filed a motion to admit the prior uncharged violent acts pursuant to Evidence Code sections 1109 and 1101, subdivision (b). The People set forth the facts of the incident, which included that defendant pinned E.B. to the floor, dragged her through the house, strangled her until she lost consciousness, punched and kicked her, held a box cutter to her throat, threatened to kill her and raped her. The prosecutor also sought to admit defendant's statement to E.B. with respect to A.B. that, "you know all those times I put her to sleep. Ya, I choked her a little bit and that's how I got her to sleep."
The People argued that the prior acts of violence against E.B. were clearly admissible under Evidence Code section 1109. The evidence showed how defendant reacted when frustrated or angry; it showed he had a propensity for violence. It was also relevant because the People anticipated that defendant would blame Mother for Doe's injuries. Choking A.B. was also admissible under Evidence Code section 1109. The People also argued the evidence was admissible pursuant to Evidence Code section 1101, subdivision (b). Evidence that he previously assaulted children was relevant and would show his acts were not due to mistake or accident. It was also relevant to show that when he was angry, he became violent. Under Evidence Code section 352, the probative value greatly outweighed any potential prejudice.
The trial court heard the matter prior to trial. The trial court found that the statement about choking A.B. was relevant. The trial court would leave it up to the jury to assess E.B.'s credibility. The trial court also found that it was extremely probative and was not to be excluded as too prejudicial. The trial court then addressed Evidence Code section 1109. It found it applied to all child abuse. As for these incidents, the trial court also found that they were more probative than prejudicial. The acts against E.B. were probative as to whether defendant hurt Doe for a sadistic purpose, to support the torture charge.
The jury was instructed as to the uncharged acts, which were described as (1) that defendant threatened, assault, and had nonconsensual intercourse with E.B.; (2) that defendant choked A.B.; (3) he pushed Mother, and; (4) he spanked Mi in a manner that was not a "reasonable discipline." The jury was instructed that these acts were "only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant[ is] guilty of torture or child abuse likely to produce great bodily harm or that the allegation of personally inflicting great bodily injury on a child under the age of five has been proved. [¶] The People must still prove each charge and allegation beyond a reasonable doubt." It was also instructed that defendant could not be convicted on any crime based on his out-of-court statements. Finally, it was instructed, "In deciding whether [the] People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial."
Defendant does not raise on appeal that the prior incidents involving pushing Mother and spanking Mi were improperly admitted.
B. ANALYSIS
1. EVIDENCE WAS ADMISSIBLE UNDER EVIDENCE CODE SECTION 1109
Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's propensity to commit such acts (Evid. Code, § 1101), but there is an exception in cases involving domestic violence (Evid. Code, § 1109). Evidence Code section 1109, subd. (a)(1) provides in part, "In a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
Evidence Code section 1109, in effect," 'permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes.'" (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.) Domestic violence includes acts of violence against an adult spouse or cohabitant of the defendant and a child who regularly resides in the household. (People v. Dallas (2008) 165 Cal.App.4th 940, 952-953.)
Moreover, "[S]ubject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant's commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101." (Evid. Code, § 1109, subd. (a)(3).)
Here, the incidents involving E.B. and A.B. qualified as domestic violence within the meaning of Evidence Code section 1109, subdivision (a)(1). As the court found in People v. Dallas, supra, 165 Cal.App.4th 940, 942-943, "because defendant lived with the baby, this was not only a prosecution for 'child abuse' . . . but also a prosecution for 'domestic violence' so that prior acts of domestic violence were likewise admissible under Evidence Code section 1109, subdivision (a)(1)." Further, the acts against A.B. were admissible under Evidence Code section 1109, subdivision (a)(3). These acts could only be excluded pursuant to Evidence Code section 352.
"Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." '" (People v. Riggs (2008) 44 Cal.4th 248, 290.)"' "[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." '" (People v. Scott (2011) 52 Cal.4th 452, 491.)
"On appeal, we review the trial court's rulings concerning the admissibility of the evidence for abuse of discretion." (People v. Riggs, supra, 44 Cal.4th at p. 290; see also People v. Gray (2005) 37 Cal.4th 168, 202.)
This case is similar to People v. Thomas (2021) 63 Cal.App.5th 612. In Thomas, the defendant had 22-month-old twins, K and B. They all lived with the defendant's boyfriend who was a codefendant. The defendant went out to buy heroin and left the twins with codefendant. K stopped breathing and died after being taken to the hospital; an autopsy revealed the cause of death was strangulation and blunt force trauma. B also had injuries that were both recently inflicted and several weeks old. (Id. at pp. 619-621.) The defendant and codefendant were tried together and each blamed the other for the injuries. The trial court allowed the admission of evidence that the defendant had told a friend in 2004 that she had strangled her oldest child until he stopped breathing, as propensity evidence under Evidence Code section 1109 to show that the defendant was responsible for the injuries to B and the death of K. (Id. at pp. 624-625.)
On appeal, the defendant argued that the propensity evidence should have been excluded because the prejudice of its admission outweighed the probative value. (People v. Thomas, supra, 63 Cal.App.5th at p. 630.) The appellate court found, "[The d]efendant argues the propensity evidence should have been excluded under section 352 because the prior act was remote, may not have occurred, and [the] defendant was never convicted of child abuse. As described ante, the similarity between [the] defendant's prior act and the charged offense against K. is great. Further, the prior act, while remote, occurred at a time when [the] defendant was in similar circumstances as she was at the time of K.'s death. True, it is unclear whether [the] defendant actually strangled her oldest child in 2004; however, the child protective services officer testified as to its uncertainty, thus reducing the potential prejudice. [¶] Further, admission of the evidence did not unduly consume time. This was a long trial and only two of the many witnesses were devoted to [the] defendant's prior bad act. Finally, it is not likely the jury would have punished [the] defendant for her past conduct by finding her guilty in this trial. [Citation.] [The d]efendant was a young and new parent at the time of the 2004 incident, her oldest child was not permanently injured and did not suffer any lasting effects. On balance, the trial court did not abuse its discretion when admitting the propensity evidence." (Ibid.)
Here, the prior acts against E.B. and defendant's statement about A.B., while certainly disturbing, were not more prejudicial than the 62 fractures and collapsed lung suffered by Doe in this case. As in Thomas, A.B. did not have any lasting injuries and the jury was advised that there was no corroboration of the statement. E.B. also did not suffer any lasting physical injuries. Further, defendant was only 19 or 20 years old at the time of the prior offenses. While in this case the injuries to Doe did not include choking, as defendant claimed to have done to A.B., it did show that defendant was willing to commit violent acts against helpless infants.
Additionally, the prior acts evidence did not unduly consume time as a majority of the time at trial was spent on detailing Doe's injuries and establishing that defendant and Mother were the primary caregivers. The evidence was highly probative as to who caused Doe's injuries, and the trial court did not err by admitting the propensity evidence as being more probative than prejudicial. As such, E.B.'s testimony was properly admitted under Evidence Code section 1109, and we need not consider if it was also admissible pursuant to Evidence Code section 1101, subdivision (b).
2. PREJUDICE
Even if this court were to conclude that the trial court erred by admitting E.B.'s testimony pursuant to Evidence Code section 1109, the erroneous admission of prior acts evidence is reviewed under the state law error test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Gomez (1999) 72 Cal.App.4th 405, 419, disapproved of on other grounds in People v. Brown (2004) 33 Cal.4th 892.) "We review evidentiary errors for prejudice by determining whether it was reasonably probable that a jury would have returned a more favorable verdict for defendant had the court not admitted the evidence." (People v. Felix (2019) 41 Cal.App.5th 177, 187.)
We conclude that it is not reasonably probable that the jury would have reached a more favorable result for defendant had E.B.'s testimony been excluded.
The jury was instructed that some evidence was admitted for a limited purpose and it could only consider that evidence for that limited purpose and no other. The jury was admonished that it could not find defendant guilty of the current incident based solely on his commission of the prior crimes; and that all of the prior uncharged acts still had to be proven by the People by a preponderance, whether they were considered under Evidence Code section 1101, subdivision (b), or as propensity evidence under Evidence Code section 1109.
We must presume the jurors followed the given instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Based on these instructions, the jury could not convict defendant solely on the grounds that he had committed the prior uncharged acts. The jury reviewed the evidence in its entirety and concluded that defendant was responsible for Doe's injuries.
Further, there is nothing in the record to support that the jury convicted defendant of injuring Doe based on E.B.'s testimony. The jury could not reach a verdict on the torture charge. The prosecutor argued at length in closing argument that the torture charge was supported by the prior acts of violence committed against E.B., a person defendant loved, and that he choked A.B. This was evidence that defendant enjoyed hurting people that he loved; it showed he did these acts for a sadistic purpose. The prosecutor argued that defendant committed the acts against Doe for a sadistic purpose supporting the charge of torture in count 1. The jury was hung on the torture charge showing that it looked at all of the evidence in the case and did not focus solely on the evidence provided by E.B. The evidence was not so prejudicial as to cause the jury to convict defendant based on E.B.'s testimony.
Moreover, there was other evidence presented that showed defendant's violent nature. Mother testified that defendant had pushed her hard in the chest when defendant thought she was having sex with the landlord. Defendant had hit Mi hard on the buttocks. Defendant's violent behavior was evident not only from E.B.'s testimony, but also from several other sources.
Finally, there was strong evidence, other than E.B.'s testimony, that defendant was responsible for Doe's injuries. Defendant was alone with Doe on numerous occasions. Me testified that she heard Doe screaming when she was alone with defendant, which was different from her regular crying. Defendant stated-when Mother decided to take Doe to the hospital-that Doe was going to be taken away from them. Mother stayed at the hospital until child protective services would no longer let her see Doe; defendant came to the hospital only once and never returned. This was an indication defendant was aware that there was something wrong with Doe. Mi and Me had not suffered these types of injuries while in Mother's care when they were infants. Based on all the evidence presented, and the instructions to the jury, the jury properly determined that defendant was responsible for Doe's injuries. Any conceivable error in admitting E.B.'s testimony was harmless.
DISPOSITION
The judgment is affirmed in full.
We concur: McKINSTER Acting P. J. MENETREZ J.