Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F11022
BUTZ, J.Following a 10-day jury trial, defendant Raul Padilla Rodriguez was convicted of corporal injury upon a child with great bodily injury (Pen. Code, § 273d, subd. (a)--count one), and child endangerment (§ 273a, subd. (a)--count two). The jury found true the enhancement allegation that defendant inflicted great bodily injury upon the victim who was under five years of age (§ 12022.7, subd. (d)). Sentenced to 10 years four months in state prison, defendant appeals his conviction claiming evidentiary error and prosecutorial misconduct. Defendant also claims the abstract of judgment contains a clerical error, which the People concede.
Undesignated statutory references are to the Penal Code.
With the exception of clerical errors in the abstract of judgment, we find defendant’s claims lack merit. We shall order the abstract of judgment modified and affirm the judgment as modified.
A detailed recitation of the facts underlying defendant’s conviction is unnecessary. The relevant facts are thus incorporated within the discussion.
I. Evidentiary Error
Prior to trial, defendant filed a motion in limine to exclude evidence of the long-term effects of the abuse suffered by the infant victim. The trial court ruled the testimony was admissible.
In support of his motion, defendant presented the following facts: On December 5, 2005, defendant and his wife brought their two-month-old daughter to a Kaiser facility because she was lethargic and “not responding to stimuli.” Believing she may be suffering from meningitis, doctors transferred the infant to another Kaiser facility where doctors discovered she had a fractured skull.
The infant was transferred again, this time to UC Davis Medical Center, where she was examined by Dr. Kevin Coulter. Dr. Coulter determined the victim had multiple skull fractures, a subdural hematoma, and several rib fractures, some older than the skull fractures. The sheriff’s department was notified.
In order to explain the child’s injuries, defendant recounted an incident three days prior to their arrival at the UC Davis Medical Center, when he and his wife were grocery shopping with their daughter. According to defendant, the child was “crying persistently” inside the store. Defendant, “under stress,” took the child outside to the family van to change her diaper, where he “let the infant drop approximately 12 inches onto the rear bench seat of the van.” He thought she also may have hit her head on the handle of an umbrella, hidden under a towel on the seat, or on the base of her car seat.
Evidence Code section 350 states: “No evidence is admissible except relevant evidence.”
Defendant contends here, as he did in the trial court, that evidence regarding the lasting effect of the injuries suffered by the victim was irrelevant, as the evidence was not “required” to prove defendant inflicted great bodily injury upon the victim. We agree the prosecution was not “required” to present evidence the victim suffered permanent brain damage in order to convict defendant of inflicting great bodily injury upon the victim. (People v. Escobar (1992) 3 Cal.4th 740, 750 [“no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function”].) That does not, however, mean the evidence was irrelevant.
“[A]ll relevant evidence is admissible at trial and . . . the trial court ‘has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence.’ [Citations.] Relevant evidence includes all ‘evidence . . . having any tendency in reason to prove . . . any disputed fact that is of consequence to the determination of the action.’ [Citation.] . . . On appeal, we review the trial court’s rulings concerning the admissibility of the evidence for abuse of discretion.” (People v. Riggs (2008) 44 Cal.4th 248, 289-290.)
To convict defendant of inflicting great bodily injury upon the victim, the prosecution was required to prove the victim suffered “significant or substantial physical injury” as a result of defendant’s abuse. (§ 12022.7, subd. (f).) Whether defendant inflicted great bodily injury is a question of fact for the jury to decide. (People v. Wolcott (1983) 34 Cal.3d 92, 107; People v. Nava (1989) 207 Cal.App.3d 1490, 1496-1498.)
Accordingly, as aptly noted by the trial court, “Assume for the moment, that notwithstanding a skull fracture, there would be medical evidence that the child was performing normally in regular life situations. That fact would be highly significant and probative for the jury to make that determination, whether or not, notwithstanding the skull fracture, it is, in fact, a significant or a substantial injury in light of the current state of the child, that is, the child was acting normally.” This is particularly true when the injuries sustained were to the victim’s brain, where the magnitude of the injury is often determined by its long-term effects (i.e., permanent or long-term paralysis is a more substantial injury than a headache or short-term vertigo). We find no abuse of discretion.
Defendant further contends the evidence should have been excluded under Evidence Code section 352, because its prejudicial effect outweighed any probative value.
Evidence Code section 352 permits the exclusion of relevant evidence where “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’” (People v. Yu (1983) 143 Cal.App.3d 358, 377.) Prejudice refers to possible misuse of evidence, i.e., use for a purpose for which the evidence is not properly admissible. (People v. Hoze (1987) 195 Cal.App.3d 949, 954.)
Again, the trial court has broad discretion in assessing whether the probative value of particular evidence is substantially outweighed by concerns of undue prejudice, the exercise of which must not be disturbed on appeal except upon a showing the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
In the trial court, defendant argued the evidence was cumulative and unduly prejudicial because “[o]nce the jury is presented with evidence of multiple skull fractures and the subdural hematoma it seems . . . highly unlikely that the jury would need to hear about the long[-]lasting effects of the injuries in order to find that the infant . . . suffered great bodily injury.” The trial court disagreed, denying defendant’s motion in limine. Under the circumstances, we cannot say the court’s decision was “arbitrary, capricious, or patently absurd.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Accordingly, we find no error.
II. Prosecutorial Misconduct
Defendant also claims he was denied his right to a fair trial because the prosecutor “committed misconduct by shifting the burden of proof to [defendant] to prove his innocence.” Specifically, defendant complains of statements made by the prosecutor during closing arguments:
In his closing argument at trial, defendant argued the inculpatory statements he made to the investigating detectives were unreliable because they were coerced. In rebuttal, the prosecutor argued that defendant failed to present evidence to support his claim of coercion. In that context, the prosecutor made the following remarks, to which defendant now objects:
“[PROSECUTOR]: It’s also reasonable to believe that Detective Hidalgo wasn’t doing it in an inappropriate, in that room because of the two folks in there, he’s the one who we know for sure, knew it was being videotaped. He wasn’t yelling at him, screaming at him. He wasn’t doing anything wrong. He knew he was on camera. He knows what happens to these tapes. We all see them. He never hit him, never screamed at him. And I--I guarantee you that even though the tape was in Spanish, if there was ever a time if there was ever--a time that Detective Hidalgo raised his voice or threatened defendant or was mis
“[DEFENSE COUNSEL]: I object.
“[PROSECUTOR]: In any manner.
“THE COURT: I’ll sustain that.
“[PROSECUTOR]: What my point is, and I submit to you, that if there was anything on that tape that suggested anything inappropriate about the demeanor of Detective Hidalgo, [defense counsel] would have played it for you. [¶] . . . [¶]
“So there’s nothing to indicate, other than speculation on the part of the defense, that anything wrong happened in that interview whatsoever. What benefit does it give Detective Hidalgo to get somebody to confess to something if that person didn’t do it?
“Oh, good job, Detective Hidalgo. The real person is out on the street and you got this guy. He has got no desire to do that. That doesn’t help him. He, in this case, was trying to deal with the guy who kept changing his story. And unfortunately, that meant a longer interview, which meant bigger transcripts for us to go through. And what I’ll tell you also, is that when [defense counsel] was up here flipping the pages, when he was questioning Detective Hidalgo and asking him portions of questions, sometimes giving you the answer, sometimes not, he flipped through a lot more pages that he did not ask about.
“[DEFENSE COUNSEL]: Objection, not evidence, Your Honor.
“The Court: Overruled.
“[PROSECUTOR]: What you can assume then, based on how thorough that cross-examination was, and all those pages that he went through, that there wasn’t a darn thing wrong with any of those other pages, if there’s anything wrong with the ones that there were.”
“‘[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper.’” (People v. Panah (2005) 35 Cal.4th 395, 463, quoting People v. Lewis (1990) 50 Cal.3d 262, 283.) However, “[w]hen a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.” (Panah, at p. 462.)
The crucial issue is not the good faith of the prosecutor, but the potential injury to the defendant. (People v. Clair (1992) 2 Cal.4th 629, 661.) We review the prosecutor’s remarks to determine whether there is a reasonable likelihood that the jury misconstrued or misapplied them. (Id. at p. 663.)
Considered in light of this standard of review, defendant’s claims of error fail.
“‘To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’” (People v. Earp (1999) 20 Cal.4th 826, 858.)
Here, defendant did not object to all of the statements he now claims rendered his trial unfair, and for those to which he did object, he did not cite prosecutorial misconduct as a ground for the objection, nor did he request an admonition. Hence, the claim of error is forfeited. (People v. Earp, supra, 20 Cal.4th at pp. 858-859.)
In any event, there was no prosecutorial misconduct. The prosecutor was simply arguing that defendant failed to present sufficient evidence to support his claim that his inculpatory statements were coerced by the detectives interviewing him. Such argument is permissible. (People v. Bemore (2000) 22 Cal.4th 809, 846-847, citing People v. Medina (1995) 11 Cal.4th 694, 755 [prosecutors allowed to comment on the state of the evidence or on the defense’s failure to call logical witnesses, introduce material evidence, or rebut the People’s case], 759 and People v. Fierro (1991) 1 Cal.4th 173, 212 & fn. 9 [misconduct claim rejected where prosecutor criticized the defense theory of the case because it lacked evidentiary support].)
III. Errors in the Abstract of Judgment
A. Restitution Fines
Defendant and the People agree the abstract of judgment erroneously indicates defendant was ordered to pay two $200 restitution fines under section 1204.4 and two parole fines under section 1202.45. The abstract of judgment also incorrectly identifies two case numbers (02F08924, 06F01587) on which those fines were imposed. The relevant case number here is 05F11022.
Having reviewed the record, we accept the People’s concession and shall order the abstract of judgment amended accordingly.
B. Count Two--Relevant Dates
Under item 1, count two does not reflect the year the crime was committed (2005) or the date of conviction (01/10/07). The abstract must be amended to add this information to count two.
C. Section 12022.7(d) Enhancement
Under item 2 of the abstract, the enhancement pursuant to section 12022.7, subdivision (d) is set forth as “12022.7(d)(5)” when it should read “12022.7(d).” We shall order the trial court to make this correction.
D. Court Security Fee
Our review of the record revealed another error in the judgment. At sentencing, the trial court indicated it would “strike” the court security fee in the “interest of justice.” Section 1465.8 requires the court to impose a $20 court security fee for every conviction. The court had no authority to strike the mandatory court security fee. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865 [section 1465.8 “unambiguously requires a fee to be imposed for each of defendant’s convictions. Under this statute, a court security fee attaches to ‘every conviction for a criminal offense’”].)
We shall modify the judgment accordingly. Any party aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The judgment is modified as follows: (1) to impose a $40 court security fee, (2) to impose a single $200 restitution fine under section 1202.4 on trial court case No. 05F11022, (3) to impose a single $200 parole revocation restitution fine under section 1202.45 on trial court case No. 05F11022, (4) to add the year the crime was committed and the date of conviction for count two, and (5) to correct the reference to the section “12022.7(d)” enhancement.
As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J. SIMS, J.