Opinion
A145292
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. UNICEASENET SAAVEDRA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51502889)
A jury acquitted Uniceasenet Saavedra of inflicting corporal injury on a child (count one) and child abuse (count 2) and convicted her of a simple assault and a battery as lesser included offenses of count one. Saavedra contends the court should have excluded as irrelevant evidence that her parental rights over another child were terminated because there was no showing the child was removed due to her physical abuse. Alternatively, she asserts the evidence should have been excluded as unduly prejudicial. The evidentiary challenge is without merit. But we agree with Saavedra, as do the People, that her assault conviction cannot stand because assault is a lesser included offense of battery. Accordingly, we affirm Saavedra's battery conviction and reverse her conviction for assault.
BACKGROUND
On February 2, 2015, while stopped at a red light, Sonia Bourema saw a woman later identified as Saavedra with a small boy in a stroller near the El Cerrito BART station. Saavedra was slapping her four-year-old son D. all over his face and body and pushing him down as he was trying to stand. Saavedra slapped D. for two or three minutes as he cried and yelled. As Bourema watched, the stroller fell over and the boy's head hit the ground. Saavedra righted the stroller, continued to strike and yell at her son, and said "[t]oday I am going to kill you."
Bourema's husband pulled the car over. Bourema approached Saavedra and told her to stop. Saavedra stopped hitting D., pulled him out of the stroller and held him. Three or four other passersby had gathered and were talking to Saavedra as well. Bourema saw a red mark on D.'s head and called 911. Saavedra walked away.
When El Cerrito Police Officer Jacob Reed responded, Saavedra was arguing loudly with a woman in a parked car. D. was in the stroller. Officer Reed observed bruising near his right eye, a scratch on the left side of his forehead and another on the back of his neck.
Saavedra was arrested and charged with inflicting corporal injury on a child (count 1) and child abuse (count 2). Following a jury trial she was acquitted of all charges except for a simple assault and a battery as lesser included offenses of count 1. The court imposed a six-month jail term for the battery and imposed and stayed a six-month term for the assault pursuant to Penal Code section 654. Saavedra got sentence reduction credits covering the full term imposed, with excess credit satisfying all fines and fees. She timely filed this appeal.
DISCUSSION
Evidence of The Prior CPS Proceeding
A. Background
The People moved in limine to admit evidence that in 2008 Saavedra physically abused her three-year old daughter and lost her parental rights over the girl as a result. The prosecutor argued the evidence was admissible to prove a propensity for child abuse under Evidence Code sections 1101 and 1109, subdivision (a)(3), and to impeach Saavedra and her character witnesses 'should there be any sort of this testimony." Saavedra opposed the motion and moved to exclude any evidence of alleged prior criminal or bad acts. The court ruled the evidence admissible under section 1109, subject to the parties' rights to make specific objections during trial.
Further statutory citations are to the Evidence Code. Section 1109, subdivision (a)(3) provides: "Except as provided in subdivision (e) or (f) and subject 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."
In a discussion of anticipated jury instructions before the defense case, defense counsel argued that, while it might be permissible under section 1109 for the prosecutor to ask Saavedra about prior child abuse, any CPS proceeding was irrelevant "because the child can be taken away for a whole host of reasons." The court declined to preclude questioning about the CPS proceeding because "we know what the basis for taking away the child was . . . . The defendant herself said why, although she denied that she did it."
In a recorded conversation, Saavedra told officers at the scene involving D. that a daughter was previously taken from her because of allegations that she slapped her and shoved food down her throat, which Saavedra denied was true. It appears that neither this statement nor other evidence of the reason Saavedra's daughter was removed was presented in evidence. --------
The following exchange occurred after the prosecutor asked Saavedra on cross-examination whether she had abused another child:
I didn't physically abuse my daughter. I had a daughter. She's nine years old. She is about to be ten. No. I did not physically abuse her.After an unsuccessful defense objection on relevance grounds, Saavedra answered "Yes." When the prosecutor then asked "were the allegations, with respect to your daughter, that you slapped her and forced food down her throat," the court sustained defense objections on grounds of hearsay and lack of personal knowledge. The prosecutor then asked Saavedra whether she was worried about losing her parental rights as to D. Saavedra said "yes, I am worried about it. I care—I care about it a lot."
Q. All right. Did the court in Alameda County take your parental rights away from your daughter?"
Jennifer Stephens Pierre had known Saavedra for over 10 years and was involved in D.'s care since his birth. She described D. as a very active and rambunctious child who was difficult to control and often unresponsive to adult directions. It was often difficult to get him into a car seat or stroller; "It's not a positive experience." Until about a year ago D. "did a lot of head banging and falling out like without bracing himself, so it was always an issue. When he gets angry, he doesn't really have a regulator to really be able [to] calm down easily." Stephens Pierre had frequently seen D. scratch and pick at himself when he was upset or being redirected.
The prosecutor cross-examined Stephens Pierre on the subject of Saavedra's daughter:
Q. And you are aware that the defendant had a prior child, correct?
A. Yes, I am.
Q. And you are aware that child was taken away from her because of allegations of physical abuse, correct?
[Defense Counsel]: Objection. Relevance, calls for hearsay.
[The Court]: Overruled.
[A.] I am aware. I was in her life when that situation happened, and she was a minor. And . . . she required a lot of support that was not available to her.
[¶] . . . [¶]
Q. Are you aware that her child was taken from her by the Alameda court system because of allegations because of physical abuse?
A. I am aware that [T.] was removed from her.
Q. Are you aware of the basis for the removal?
A. I'm—I'm—I can recall that when she was removed.
Q. Was it physical abuse?
A. You know, I don't—
[Defense Counsel]: Objection, hearsay.
[The Court]: Your question changed just now. You asked now if it was because of physical abuse, but all other formulations of the question in the past were allegations of physical abuse.
[The Prosecutor]: I'll re-ask it then.
[¶] . . . [¶]
Q. In terms of the basis for [T.] being removed from the defendant's custody, was it because of allegations of physical abuse?
A. You know, I can honestly not say yes or no to that. I can—I can explain to you what my understanding was at that time because I did not have a lot of contact with [Saavedra] at that time, but I can explain to you what my understanding of what I observed that was going on at that time when she was, I want to say, 16, 17."
Before closing arguments, the court instructed the jury under CALCRIM No. 316 that "[i]f you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."
The prosecutor argued to the jury that Bourema was a disinterested witness with no incentive to fabricate her testimony: "[A]t this point in time you are left with one of those he said she said type of situations, though one person has no motive, no [stake] in the case. Ms. Bourema doesn't know the defendant, doesn't have any agenda against the defendant, doesn't have any motive against her. She was a concerned citizen who saw something she thought was wrong and called 911." In contrast, Saavedra was "concerned about [D.] getting taken from her. . . . Of course, that's another reason for her to lie, right, because it's clear bias. She's concerned about what might happen if this case comes out a certain way. That's a clear import of that testimony from the defendant." Neither party argued, and the trial court did not instruct, that the jurors could consider the evidence that Saavedra had lost custody of another child as evidence of a propensity to commit child abuse.
During deliberations, the jury sent the court the following question: "Is the fact that the defendant has another child taken away evidence?" Defense counsel urged the court that it was not. "And I believe I've stated before, and I'll state it again, that I don't think that the fact that her child--previous child was taken away is relevant to anything under 1109. It would be [an] act of child abuse with which Ms. Saavedra denied and Ms. Stephens Pierre did not testify to. So I think the result of any CPS proceeding is irrelevant. So while there is testimony in that regard, I would ask the jury to be admonished not to consider that as evidence." The trial court disagreed. It explained: "I have already decided for purposes of the trial that it was proper for that question to be asked given the nature of the case and the nature of 1109." The court advised the jury that "[T]he fact that the defendant had another child taken away is evidence."
B. Analysis
Saavedra contends there was no evidence that the previous termination of her rights to her daughter was because of physical abuse, so the testimony that her daughter was taken away was not relevant to show a propensity for child abuse under section 1109. For the same reason, she asserts the testimony lacked any impeachment value because "a termination of rights does not amount to criminal conviction" and is not reflective, without more, of moral turpitude. Alternatively, she contends the testimony should have been excluded under section 352 as unduly prejudicial.
Under section 780, "[e]xcept as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to . . . [¶] (f) The existence or nonexistence of a bias, interest or other motive." (§ 780, subd. (f); see People v. Carpenter (1999) 21 Cal.4th 1016, 1054 [" 'Evidence showing a witness's bias or prejudice or which goes to his credibility, veracity or motive may be elicited during cross-examination' "].) During cross-examination, the trial court should allow parties great latitude to explore a witness's bias or prejudice. (Kelley v. Bailey (1961) 189 Cal.App.2d 728, 736.) "A trial court's ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld 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. Ledesma (2006) 39 Cal.4th 641, 705.)
Here, as the prosecutor argued in closing, Saavedra's prior experience of the removal of her daughter supplied an additional motive to deny she physically abused her son. Although it was not established at trial whether or not the prior removal was due to physical abuse, the jury could reasonably infer from Saavedra's prior loss of custody that she would be afraid D. could be taken away as well if she were convicted of abusing him. The evidence about the prior proceeding was thus admissible to show bias or interest.
Nor are we persuaded that the evidence about the removal of Saavedra's daughter was unduly prejudicial. Preliminarily, we note the absence from the record of a clear objection on this ground. In any event, Saavedra's section 352 argument is unpersuasive. "Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that 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.)
Here the court permitted the prosecutor to question witnesses about Saavedra's loss of her daughter, but the prosecutor was unable to elicit any potentially damaging evidence that the CPS action was predicated on child abuse. On the other hand, the testimony that Saavedra's daughter was removed from her custody was relevant to show her awareness that child protective authorities could take D. from her, and thus tended to demonstrate her incentive to lie on the stand about slapping, pushing and threatening him on the day in question. The jury was instructed that evidence of prior bad acts was admissible only for credibility, and the record suggests no reason to believe they disregarded that instruction. Indeed, they acquitted Saavedra of child abuse and inflicting corporal injury on a child. Absent a showing to the contrary, we assume the jury understood and followed the instructions given. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions"].) The determination that the evidence was not more prejudicial than probative was well within the court's discretion.
The Assault Conviction
As noted, the jury acquitted Saavedra of corporal injury to a child but convicted her of lesser included offenses of misdemeanor assault and misdemeanor battery. Saavedra correctly asserts that the assault conviction must be reversed because it is a lesser included offense of battery. The People concede the point. "It is well settled that an assault is an attempt to commit a battery [citations] and that a battery is simply a consummated assault. [Citations.] Whenever an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense, and the accused cannot be convicted for both. [Citations.] Since every completed battery includes an assault, assault is an included offense of battery." (In re Ronnie N. (1985) 174 Cal.App.3d 731, 734.) The assault conviction must therefore be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763.)
DISPOSITION
Saavedra's assault conviction is reversed. The judgment is otherwise affirmed.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Pollak, J.