Summary
In Thomas, the defendant had 22-month-old twins, K and B. They all lived with the defendant's boyfriend who was a codefendant.
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C090172
04-27-2021
The PEOPLE, Plaintiff and Respondent, v. Rebecca THOMAS, Defendant and Appellant.
Randy S. Kravis, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts IC through VI (i.e., IC, II, III, IV, V, and VI) of the Discussion.
Randy S. Kravis, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
Robie, J. Defendant Rebecca Thomas lived with her boyfriend codefendant Taylor Montgomery-Gutzman and her 22-month-old twins K. and B. In the late afternoon and early evening hours of October 13, 2016, while defendant was out trying to buy heroin, K. stopped breathing and ultimately died. An autopsy of K. revealed he was strangled to death. B. also exhibited signs of distress and, upon a physical examination, it was revealed B. suffered from extensive internal injuries. Most of B.’s injuries were recently inflicted but some were several weeks old.
Defendant and Montgomery-Gutzman were tried together for the murder of K. and abuse of B. Defendant claimed Montgomery-Gutzman inflicted all the injuries and she was unaware of his treatment of the twins. Montgomery-Gutzman claimed defendant was responsible. In his effort to show defendant was responsible, Montgomery-Gutzman introduced evidence defendant had a propensity to commit child abuse. Over defendant's objection, the court admitted propensity evidence and instructed the jury it could use the propensity evidence to raise a reasonable doubt as to Montgomery-Gutzman's guilt. In the published portion of this opinion, we conclude the trial court did not err by admitting propensity evidence nor did it confusingly instruct the jury on how it could consider the evidence.
In the unpublished portion of this opinion, we reject defendant's remaining instructional error claims and her ineffective assistance of counsel claim regarding her attorney's performance at sentencing. We agree, however, that defendant's abstract of judgment must be corrected to accurately reflect the trial court waived the court security fee and criminal conviction assessment. Thus, we affirm defendant's convictions for the second degree murder of K., for assault with force likely to cause great bodily injury of K., and for permitting both K. and B. to suffer unjustifiable physical pain and mental suffering, which she willfully caused or permitted as to K. that resulted in his death.
FACTUAL AND PROCEDURAL HISTORY
I
Facts Underlying The Crimes
Defendant hated children and never wanted to have them. Despite that fact, defendant had several children and a history of involvement with child protective services. Her first interaction with child protective services occurred in 2004 when defendant's oldest child was three weeks old and defendant told a friend not to comfort the infant when he cried because defendant did not want him to be spoiled. Soon thereafter, defendant called the same friend and told her the baby was not having a good day, and he was crying uncontrollably. Defendant said she had "already tried killing the kid; I strangled him until he stopped breathing." Defendant's friend reported the incident to child protective services. The report was determined to be unfounded and defendant was given information about a crisis nursery and family resource center. Defendant's oldest child went to live with defendant's parents at six months old and continued to do so, except for a year when he was five years old. While the living arrangement was prompted by child protective services, there was no official order requiring defendant's oldest child to live with defendant's parents.
Defendant's second child was born eight years after her first. At that point, defendant had a methamphetamine and heroin addiction, as did the father of defendant's second child. The two were violent with each other, and their child never lived with them. Instead, the child lived with defendant's parents. In the years that followed, their child sometimes stayed with defendant overnight, but defendant's parents raised the child.
Sometime after her second child was born, defendant stopped doing drugs, except for marijuana and prescription methadone. While taking methadone, she became pregnant with twin boys, K. and B. The twins were born eight weeks premature and tested positive for methadone and marijuana at birth but did not suffer from withdrawals. Unrelated to their positive drug tests, both K. and B. had breathing issues due to their premature lungs. Further, their intestines were premature, requiring them to be fed through a gastric tube. K. and B. remained in the hospital for four months because they had trouble eating by mouth and eating and breathing simultaneously. They also suffered from apnea prematurity, which meant they did not always remember to breathe, but outgrew that condition before being discharged.
Although the twins progressed in the hospital, they each required insertion of a gastric tube directly into their stomachs for nutrition. Defendant was often hard to contact during the twins’ hospital stay, but she was trained on how to feed the twins via the gastric tube before their release. Upon discharge, defendant was told not to orally feed the twins and to only use the gastric tube. She was given a feeding schedule and a pump to deliver their meals through the gastric tube slowly over time. If their meals were delivered too quickly, the twins were in danger of vomiting, thus failing to receive their required nutrition. During feedings, it was required that someone be attentive to the twins throughout the process. Defendant was offered the assistance of a home nurse because feeding two infants with a gastric tube was difficult. Defendant declined the assistance of a nurse.
Two days after the twins were released, defendant rushed B. back to the hospital because he was having trouble breathing. He was admitted to the hospital for several weeks. During the admission process, defendant was seen feeding K. with a bottle in an elevator. Child protective services intervened and took the twins from defendant's care. The twins were placed back in her care six months later. After the twins returned to defendant's custody, she lived with them and her older children at her parents’ home.
When the twins were nearly a year and one-half old, defendant moved from her parents’ home and into an apartment complex where Montgomery-Gutzman lived. Montgomery-Gutzman was in his early 20's, nine years younger than defendant, and did not have children of his own. He lived with friends and defendant often saw him playing with children who lived in the apartment complex. He appeared kind and gentle with them, and the children appeared to like him. After a short time of being neighbors, Montgomery-Gutzman moved in with defendant. Their relationship was somewhat romantic. Defendant had sexual intercourse with Montgomery-Gutzman two or three times during their entire relationship and thought of him as more of a roommate.
Indeed, defendant used Montgomery-Gutzman predominantly for childcare. He was "helpful" and "obedient," appeared "calm" and "soft," but "evasive." He did anything defendant needed him to do, including watching the twins when she ran errands. Defendant jokingly described Montgomery-Gutzman as her babysitter to several friends. She further said she was with Montgomery-Gutzman only out of convenience because he watched her children. Defendant said having Montgomery-Gutzman around allowed her to come and go as she pleased. Defendant acted "rude" and "mean" toward her children and was not a comforting mother. Defendant gave the impression that K. and B. were an inconvenience to her.
Montgomery-Gutzman smoked marijuana and purported to suffer from various mental health conditions requiring medication. While he had used heroin before moving in with defendant, Montgomery-Gutzman's use increased and he began taking the drug intravenously with defendant.
Shortly after Montgomery-Gutzman and defendant moved in together, B. was rushed to the hospital again for breathing issues. He stayed in the hospital for a month where he had more breathing issues, so a tracheotomy was inserted to help him breathe. B.’s breathing issues were due to a floppy airway that did not always stay open to provide adequate support for breathing and eating. Montgomery-Gutzman visited B. in the hospital and learned from defendant how to care for and clean B.’s tracheotomy. When B. was released from the hospital, defendant accepted the assistance of a home nurse, who came to the house every weekday for multiple hours to assist with B.’s care. Because of the tracheotomy, B.’s breathing was audible and raspy sounding. It annoyed defendant to hear B. breathing and to clean his tracheotomy. By the time the twins were 22 months old, defendant, the twins, and Montgomery-Gutzman had moved to a new apartment. While he still required a gastric tube, K. put on quite a bit of weight and was bigger than his brother. He held most, if not all, of his food down and was active and able to walk. B. was not thriving to the same degree as K. B. continued his nutrition via his gastric tube and would often vomit after feedings. Defendant usually fed B. by manually injecting nutrition into his gastric tube over a short amount of time, while the home nurse devoted to B.’s care, fed him through a machine that would deliver nutrition slowly. B. could not walk or talk and always appeared low in energy, although happy. The twins would play and climb on each other.
While living in the new apartment, defendant occasionally used methamphetamine with the apartment manager, sometimes after sneaking out of the apartment in the middle of the night. She lost weight, leading defendant's mother to suspect defendant was using methamphetamine. Defendant also met up with the father of her second child on several occasions to buy and use heroin.
In late September or early October of 2016, defendant noticed an oblong burn mark on K.’s foot. Defendant told her mother she believed it was caused by K. stepping on a lit cigarette Montgomery-Gutzman left on the ground outside the apartment. Defendant's mother told defendant to take K. to the doctor. Also around this time, the apartment manager saw K. and B. all alone walking and crawling, respectively, toward the main street outside the apartment complex. He stopped them and took them back to the apartment, where defendant and Montgomery-Gutzman were sleeping on the couch.
The apartment manager thought Montgomery-Gutzman was a clingy and jealous boyfriend and was rude to the manager and other men with whom defendant associated. Montgomery-Gutzman often borrowed the apartment manager's phone to contact defendant when she failed to answer Montgomery-Gutzman's calls. In early October, Montgomery-Gutzman approached the manager and told him he felt like "he was going to explode, that he was going to lose it." Montgomery-Gutzman also referenced needing to go to a mental hospital.
On October 12, 2016, defendant took the twins to the park to meet a friend, who also brought her children. The friend noticed a large bruise and scratches on B.’s face. B. was also acting "sad" and appeared to have lower energy than usual. The friend jokingly asked defendant if she was beating her children. Defendant responded that she did not know how the injury to B. occurred because she was not home when it happened. Defendant said she did not know if Montgomery-Gutzman inflicted the injury, but that it was likely K. who inflicted the injury. The friend did not believe K. inflicted the injury because it was too serious of an injury to have been inflicted by a child.
Defendant's mother also saw the injury to B.’s face that day. Defendant told her mother K. probably caused the injury and that it happened while she was at the hairdresser and that Montgomery-Gutzman was watching the twins. When defendant's mother told defendant she should take B. to the doctor, defendant said she did not want to because she did not want child protective services to open a case on her.
On October 13, 2016, defendant left in the morning to go to a methadone clinic. She left the twins with Montgomery-Gutzman. She returned around 1:00 p.m. and then Montgomery-Gutzman left to go to the methadone clinic to get his daily dose. When he returned home, defendant fed the twins and gave each of them melatonin to help them sleep. He and defendant then rested together on the couch. Defendant left around 3:30 p.m. to get heroin.
While defendant was gone, Montgomery-Gutzman went to a neighbor's apartment to borrow a cigarette rolling machine. Montgomery-Gutzman appeared agitated and said he was "very upset" because somebody was trying to take his family. Montgomery-Gutzman further said he wanted to beat up somebody. The neighbor encouraged Montgomery-Gutzman to calm down, and then Montgomery-Gutzman went home.
At 5:08 p.m., Montgomery-Gutzman called defendant and told her K. was not breathing and she needed to come home. She told him to stimulate K. to make him responsive and that she was coming home. Montgomery-Gutzman responded, "that would be nice" and abruptly hung up the phone. Thereafter, defendant attempted to call Montgomery-Gutzman multiple times to no avail. She also texted him twice inquiring about K.’s status. Montgomery-Gutzman ultimately called defendant back at 5:18 p.m., right as defendant was driving into the apartment complex. When she got into the apartment, defendant saw Montgomery-Gutzman performing chest compressions on K. K.’s complexion was gray and his lips were blue. Defendant called 911 and took over doing chest compressions and mouth-to-mouth resuscitation. Montgomery-Gutzman went outside to flag down emergency responders.
Eventually, police and fire personnel arrived and were able to regain K.’s pulse before taking him to the hospital. Defendant and Montgomery-Gutzman were initially questioned at the apartment. During defendant's questioning, she tended to B. who was making loud and raspy sounds while breathing. When asked by a police officer if B. was alright, defendant responded that he always sounded like that. Both defendant and Montgomery-Gutzman were transported to the Citrus Heights Police Department for further questioning. While there, officers again raised concern about B.’s breathing and general inactivity. Defendant again assured officers that B. was fine and always sounded that way. Regardless, officers had B. transported to the hospital.
K. died at 5:48 p.m. His death was caused by strangulation and blunt force trauma. The blunt force trauma likely occurred before K. was strangled because the trauma produced bruising, which could have occurred only while K. had a pulse. It was further unlikely K. had a pulse after being strangled. K. had bruising and scraping on the front of his chest and deep bruising throughout his neck region. He also had bruising on both eye lids and the backside of his head. K. further had bruising to the tissue underneath the bones in his chest, which was likely not the result of chest compressions because of the amount of blood present during the autopsy, suggesting K. was breathing at the time the injury was inflicted. Similarly, there were injuries to K.’s liver that could be associated with chest compressions but for the fact that blood was present suggesting the injury was inflicted while K. was breathing. K.’s death was not accidental and "the results of the injuries that he sustained would have resulted in death at or about the time that they were inflicted."
B. had extensive and numerous injuries, both old and new, indicating he was the victim of ongoing child abuse. His old injuries included four rib fractures and a fracture to his right clavicle. These fractures were at various stages of healing. B. also had a healing injury inside of his mouth. Further, X-rays taken of B. when he underwent a tracheotomy showed he had a healing rib fracture at the time.
B.’s new injuries included red lines and swelling across his cheek appearing to indicate a slap mark. B. also had a tear to one of his ears, suggesting his ear was stretched so far that it tore. This was likely the product of a punch, slap, kick, or pull. B. also had three signifiers of abusive head trauma, which was consistent with some sort of whiplash or shaking injury. First, B. had retinal hemorrhages or blood vessels that had burst and bled in his eyes. Second, B. had subdural hemorrhages, or blood on his brain, and intraventricular bleeding, meaning bleeding in the brain. The blood in B.’s brain was such a critical problem that it required placement of a drain for a week to release the blood and relieve pressure in B.’s skull. With such an injury, children typically present with vomiting, irritability, change in cry, fussiness, apparent pain, sleepiness, or refusing to sleep because of pain. Due to this injury, B. suffered from widespread low oxygen throughout his brain that killed brain cells and altered his brain permanently. This injury also caused B. to experience problems with his breathing. Third, B. had vitreous hemorrhages, meaning blood in the middle or "jelly" of the eye. This manifested itself in B. through swelling, broken blood vessels, and a blood blister in his eye. The most common cause of this type of injury is blunt force trauma to the eye.
Also new were external and internal injuries to B.’s torso and abdomen. He had several bruises to the front of his chest overlying his sternum and ribs. Internally, B. had fractures along the front ends of his right and left ribs that met his sternum, meaning his sternum had detached from his rib cage. This was an incredibly unusual and significant break that likely resulted from a significant push or blunt force trauma to the sternum and would have been extremely painful. The broken ribs caused a small laceration to B.’s heart. This resulted in his heart not being able to pump properly and a significant amount of blood to accumulate in and around B.’s heart that required draining. The rib fractures also caused two liver lacerations and a laceration to the spleen, resulting in further bleeding into B.’s abdomen and pelvis. Because of the significant bleeding, B. required multiple blood transfusions. The trauma causing the rib fractures also caused bruising to B.’s lungs. A common accidental cause of these injuries would be a car crash, where the victim was not restrained and had been thrown from the car. Another accidental explanation would be that B. had been trampled by a horse.
B. was in the hospital for several months. At first, he was in a sleepy state and then progressed to a very low-energy limp state. He did not react to visual stimulation, leading medical personnel to believe his brain injuries resulted in blindness. At the time of his injuries, B.’s development was equivalent to that of a five-month-old child. With time, B. improved and he learned to walk with the assistance of a walker. He was able to speak and see.
II
Defendant's Statements
Defendant gave multiple statements to police and testified at trial. In each instance she stressed that she loved and cared for her children and would never hurt them. She believed Montgomery-Gutzman treated her children well. She had never seen him act aggressively toward them or injure them in any way. If she had seen him hurt the twins, she would have never left them alone with him or been in a relationship with him.
Defendant also repeatedly stated that she feared child protective services and worried that any interaction with child protective services would result in her children being taken from her. Much of this fear stemmed from defendant's past interactions and removal of all her children at one point or another. For instance, B. and K. were removed from her care when they were infants and shortly after they were released from the intensive care unit. Their removal was because a nurse saw defendant feed K. with a bottle in an elevator. Defendant believed she was allowed to feed the twins in this way because that was how the twins were fed while in the intensive care unit and a nurse had told her it was acceptable when the twins were discharged. The twins were returned once defendant had completed drug and alcohol classes, which included biweekly drug tests, and training on how to properly feed them.
Although Montgomery-Gutzman had mentioned to her that he suffered from various mental health conditions and took medication, she had never seen him have any breakdowns or episodes that would lead her to believe he posed a risk to the twins. She believed he was exaggerating. Montgomery-Gutzman also began using drugs more heavily once he met defendant and she introduced him to people who could get him drugs.
As for the old injuries to K. and B., defendant claimed none of those injuries happened in her presence and that she always believed they happened through rough play with each other or because the children climbed on furniture in the house. She always encouraged K. and B. to play rough with each other. She did this because she wanted them to grow up strong. During police interviews, defendant claimed that K. would often hold his breath until his lips turned blue and spots appeared on his face. When she asked doctors about this, they told her K.’s behavior was likely a stress response. She claimed she gave K. and B. melatonin on the day of the incident because they had both been sick for several days and had not slept well the night before. While the twins’ doctors never recommended she give them melatonin, her friend told her that a doctor recommended its use for her child as a sleep aide.
III
Montgomery-Gutzman's Statements
Montgomery-Gutzman gave several statements to police and made several unsolicited statements in their presence. While in the apartment after officers first responded to the 911 call, Montgomery-Gutzman expressed fear he would be blamed for K.’s injuries and death because he was the only person around when K. became unresponsive. He expressed these same fears during several police interviews.
During his police interviews, Montgomery-Gutzman claimed that after defendant left to get heroin, he buckled the twins in chairs. He sat in the living area of the apartment and looked in on them occasionally. Later in the afternoon, he let them out of the chairs to walk around. He made coffee and went outside to have a cigarette and did not pay attention to the twins for nearly 15 minutes. When he came inside, K. was on the floor of the twins’ bedroom and appeared to be in severe distress. Montgomery-Gutzman put B. in his crib and called defendant to tell her K. was not breathing. Montgomery-Gutzman then began giving K. chest compressions but did not call 911. He did not answer defendant's phone calls and texts because he was busy giving K. chest compressions.
IV
Trial Proceedings
At trial, the prosecutor's theory of the case was that Montgomery-Gutzman strangled K. to death and that defendant left K. with a person she knew to abuse her children. Because the injuries to B. were of varying ages, the prosecution pursued a theory that either defendant or Montgomery-Gutzman was responsible for the infliction of those injuries.
Montgomery-Gutzman's defense was that defendant inflicted all the injuries on the twins and that he was innocent of the crimes charged. As to K., he argued defendant strangled him before she left to get heroin and the strangulation did not cause K. to be in distress until Montgomery-Gutzman was alone with K. Montgomery-Gutzman elicited from the pathologist the concept of delayed strangulation, meaning that a person could be strangled in a way that did not immediately result in death. Instead, the strangulation would cause an internal injury, such as a damaged artery, or condition, such as a blood clot, that would take time to materialize and cause death. The pathologist believed K. died at the time he was strangled and was not the victim of delayed strangulation. While studies purporting to credit delayed strangulation as a cause of death found an internal injury or condition in the subjects of their studies, the pathologist did not find any internal injury or condition in K. other than the strangulation itself. The jury found Montgomery-Gutzman not guilty of the first degree murder of K., but guilty of second degree murder. It also found Montgomery-Gutzman guilty of assault of K., a child under eight years old, by means of force likely to produce great bodily injury resulting in death, and of permitting B., a minor child, to suffer unjustifiable physical pain and mental suffering.
The jury found defendant not guilty of the first degree murder of K., but guilty of second degree murder. The jury further found defendant not guilty of the assault of K. resulting in death, but guilty of the lesser included offense of assault of K. with force likely to cause great bodily injury. It found, as to both K. and B., defendant guilty of permitting a minor child to suffer unjustifiable physical pain and mental suffering. Specifically as to K., it further found the allegation true that defendant, while having the care and custody of K., and under circumstances likely to cause great bodily harm or death, willfully caused or permitted K. to be injured or harmed and that injury or harm resulted in death.
The trial court sentenced defendant to a total of 21 years to life in prison. This sentence consisted of 15 years to life for K.’s second degree murder and the upper term of six years for the abuse of B. The court imposed, then stayed pursuant to Penal Code section 654, one year for assault with force likely to cause great bodily injury to K. and two years eight months for permitting K. to suffer unjustifiable physical pain and mental suffering resulting in death. When imposing the upper term of six years on the conviction involving B., the court found as "the aggravating circumstances that [d]efendant as the victims’ mother held a position of trust. There were extensive, prolonged injuries over time. This was not an isolated incident." The court waived the various fines and fees, except for the restitution fine.
Defendant appeals.
DISCUSSION
I
Defendant's Contentions Related To The Propensity Evidence Offered By Montgomery-Gutzman
Defendant raises multiple issues concerning her statement in 2004 that she strangled her oldest child until he stopped breathing. She argues the trial court erred by admitting this evidence, which was offered by Montgomery-Gutzman, because it did not amount to third-party culpability evidence and was inadmissible under Evidence Code section 1109. She also argues the trial court's instructions regarding how the jury could consider this evidence were confusing in one respect and unsupported by substantial evidence in another. We disagree.
Further section references are to the Evidence Code unless otherwise indicated.
A
Background
The trial court admitted defendant's 2004 admission to a friend regarding her oldest child, then an infant, that she "already tried killing the kid; I strangled him until he stopped breathing." Further, the trial court admitted the testimony of the child protective services officer who investigated the friend's report of defendant's admission. That officer testified she conducted an emergency response, which was aimed at answering the question of whether the infant was safe. She made contact with defendant, who was at home with several people also present, and asked questions about the friend's report. When the officer made contact with defendant's oldest child, the infant was alive and sleeping peacefully in bed. She saw no signs of injury or abuse to the infant. The officer gave defendant information about a crisis nursery and family resource center before concluding the report of physical and emotional abuse was unfounded.
The officer's report, however, indicated defendant "did not say that she choked the baby, had not choked the baby, and had no intention of choking the baby." The officer testified her notation was unclear and poorly written, and that she had no knowledge of the event outside of her report. To the officer, her report could reflect that defendant said she had not strangled her oldest child, but did not know from what was written if that was actually what she meant to convey. If defendant denied strangling her oldest child, the officer probably would have written that in the report and that may have been what the officer did, but the report was unclear. She suspected that she wanted to convey defendant said she did not strangle her baby, but again she was not sure of her intent when writing the statement. Ultimately, to the officer "the proof [is] in the pudding" and the infant was not taken into protective custody, meaning the officer had no indication the infant was in danger. If she had suspected defendant strangled the infant, she would have taken the infant into protective custody. The officer's typical practice when investigating reports such as these would be to thoroughly investigate whether the infant was in danger. The officer acknowledged her report indicated defendant had no interaction with the infant while the officer was in the home performing an investigation.
When deciding whether to admit evidence defendant strangled her oldest child until he stopped breathing as third-party culpability evidence to show it was defendant who strangled K. and not Montgomery-Gutzman, the trial court said the evidence was admissible as propensity evidence under section 1109 and was not unduly prejudicial. The court found the evidence inadmissible under section 1101, as well as other evidence tending to show defendant was a neglectful parent. Specifically, the trial court believed the evidence directly linked defendant to the commission of the crime charged against Montgomery-Gutzman and was sufficient to raise a reasonable doubt as to his guilt. Further, although no party flagged the issue, the trial court believed this theory of admissibility -- section 1109 -- was available to Montgomery-Gutzman even though the court was unaware of any case law allowing a codefendant to introduce evidence under that section. The trial court also recognized the child protective services officer's testimony of the event was ambiguous and her recollection nonexistent. The trial court, however, thought the record was sufficient for Montgomery-Gutzman to argue defendant admitted to strangling her oldest child by not denying that she had done so to the officer. Thus, the trial court agreed to instruct the jury on adoptive admissions.
B
The Propensity Evidence Was Admissible
Defendant argues the propensity evidence offered by Montgomery-Gutzman was inadmissible as propensity evidence and failed to establish third-party culpability. Generally, we review a trial court's decision to admit or exclude evidence for an abuse of discretion. ( People v. Herrera (2016) 247 Cal.App.4th 467, 475, 202 Cal.Rptr.3d 187.) An abuse of discretion occurs when a court makes a decision in an "arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ( People v. Jordan (1986) 42 Cal.3d 308, 316, 228 Cal.Rptr. 197, 721 P.2d 79.) In other words, the decision " ‘ "exceed[ed] the bounds of reason, all of the circumstances before it being considered" ’ [citation] or its decision [was] ‘so irrational or arbitrary that no reasonable person could agree with it.’ " ( Wade v. Superior Court (2019) 33 Cal.App.5th 694, 708, 245 Cal.Rptr.3d 435.) When the trial court's decision rests on a question of law, however, we review its decision de novo. ( People v. Gonzales (2018) 6 Cal.5th 44, 49, 237 Cal.Rptr.3d 193, 424 P.3d 280.)
1
Section 1109Section 1109 provides in relevant part: "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. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101. [¶] (b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code. [¶] ... [¶] (e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice."
Defendant argues the propensity evidence offered by Montgomery-Gutzman was inadmissible under section 1109 for three reasons: first, Montgomery-Gutzman, as a codefendant, was precluded from introducing evidence under this section; second, the evidence was inadmissible under this section because it occurred over 10 years prior; and third, the evidence was inadmissible because it was more prejudicial than probative. We reject each of defendant's contentions in turn.
First, we consider whether a codefendant in a criminal action may introduce propensity evidence under section 1109. The People argue defendant forfeited this claim by not objecting. We disagree. While defendant never objected on these grounds, the trial court considered that this theory of admissibility may not be available to a codefendant but found that the theory was available. Given the trial court considered and ruled on the theory now presented on appeal, defendant did not forfeit her claim. ( People v. Abbott (1956) 47 Cal.2d 362, 372-373, 303 P.2d 730.)
Whether a codefendant may introduce propensity evidence tending to show a defendant committed the crime instead of himself or herself is an issue of first impression. Here, the prosecution chose not to introduce the propensity evidence because it undercut its theory that Montgomery-Gutzman was the person to have strangled K. to death. Defendant's assertion boils down to an argument that while the prosecution could have pursued this theory of guilt against her, Montgomery-Gutzman is prohibited from doing so simply because the prosecution deemed it unworthy. We cannot conclude this is the law.
All defendants have the constitutional right to present a defense. ( California v. Trombetta (1984) 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413, 419.) That right does not encompass the ability to present evidence unfettered by evidentiary rules. ( People v. Brown (2003) 31 Cal.4th 518, 538, 3 Cal.Rptr.3d 145, 73 P.3d 1137.) Indeed, application of the ordinary rules of evidence does not impermissibly infringe on a defendant's right to present a defense. ( People v. Mincey (1992) 2 Cal.4th 408, 440, 6 Cal.Rptr.2d 822, 827 P.2d 388.) In the context of this case, however, the application of the ordinary rules of evidence would have allowed for the admission of this propensity evidence. While section 1109 contemplates it is the prosecution that introduces propensity evidence ( § 1109, subd. (b) ["the people shall disclose the evidence to the defendant"]), the availability of a defense cannot be left to the whim of a prosecutor instead of the application of the Evidence Code and constitutional principles of fairness in trial proceedings. Here, the plain language of section 1109 allows for propensity evidence to be admitted against a defendant. It is of no consequence that a codefendant offered the evidence instead of the prosecution; for both are often in adversarial positions to a defendant. (See People v. Thompson (2016) 1 Cal.5th 1043, 1080-1081, 210 Cal.Rptr.3d 667, 384 P.3d 693 [recognizing conflicting and antagonistic defenses between codefendants is common].)
For these reasons, defendant's reliance on People v. Rhoades (2019) 8 Cal.5th 393, 255 Cal.Rptr.3d 453, 453 P.3d 89 is misplaced. In Rhoades , our Supreme Court held that exclusion of a witness's prior act of sexual misconduct was inadmissible under section 1108 when offered by the defendant to prove third-party culpability. ( Rhoades , at pp. 416-417, 255 Cal.Rptr.3d 453, 453 P.3d 89.) Our Supreme Court reasoned that "[b]y its terms, Evidence Code section 1108 applies only to a criminal defendant's prior sexual offenses. [Citation.] As [the witness] was not on trial, his conviction could not be admitted to show a propensity to commit sexual offenses." ( Ibid. ) This is also true when the propensity evidence is offered by the prosecution. Our Supreme Court's reasoning in Rhoades is not applicable to defendant's case. Defendant was on trial, thus by the terms of section 1109, her prior act of child abuse was admissible to show a propensity to commit child abuse. Given this fact and Montgomery-Gutzman's constitutional right to present a defense, we conclude Montgomery-Gutzman was entitled to introduce propensity evidence against defendant under section 1109.
Section 1108 mirrors section 1109 and provides an identical exception for the admission of evidence of other sexual offenses in a prosecution for a sexual offense.
Second, we address defendant's claim the trial court abused its discretion by admitting the propensity evidence. While evidence of past domestic violence is presumptively admissible under section 1109, subdivision (e) of that section establishes the opposite presumption for evidence of conduct more than 10 years old: "Evidence of acts occurring more than 10 years before the charged offense is inadmissible, unless the court determines that the admission of this evidence is in the interest of justice." Here, the trial court made such a finding. Specifically, the trial court found the prior act of child abuse showed defendant's propensity to commit abuse when under stress.
Defendant argues the trial court's determination was an abuse of discretion because there was no indication she engaged in a pattern of child abuse. She contends this "is the basis for the admissibility of prior acts of child abuse" when the prior abuse is remote in time. Not so. While multiple incidents may create a stronger showing of propensity, nothing in the language of section 1109 or related case law suggests evidence of a defendant's prior act of child abuse is only admissible if there is a pattern of child abuse consisting of multiple incidents. Indeed, appellate courts have affirmed the admission of remote evidence under section 1109, subdivision (e), where the evidence of the prior acts was similar to the charged offenses. (See People v. Johnson (2010) 185 Cal.App.4th 520, 537-540, 110 Cal.Rptr.3d 515 [affirming admission of evidence defendant shot two of his prior girlfriends several years prior to the charged offense involving the defendant's shooting of a girlfriend]; People v. Culbert (2013) 218 Cal.App.4th 184, 192-193, 159 Cal.Rptr.3d 853 [affirming admission of evidence defendant threatened his ex-wife 11 years before the charged offense, since "[i]n both incidents, appellant confronted family members in a small room and threatened to kill them"].)
Here, the prior act showed defendant's treatment of a young child in her full-time custody was to strangle him until he stopped breathing. K., a young and medically needy child in defendant's full-time custody, died by strangulation. The fact that defendant did not engage in a pattern of child abuse by strangulation is of no consequence. It is enough that defendant's prior act of child abuse was significantly similar to her current act. However, the evidence tended to show more of a pattern than defendant acknowledges. Defendant's statements indicated K. previously exhibited spots on his face from a lack of oxygen, which she attributed to K. holding his breath until his lips turned blue or crying so hard he could not breathe. While defendant provided an explanation for the presence of the spots, their presence on K.’s face due to a lack of oxygen also suggests defendant caused them herself by strangling him on an ongoing basis until he stopped breathing as a method of managing his care.
Moreover, the evidence showed defendant did not have full-time custody of young children such that the circumstances of her prior offense repeated until she had full-time custody of K. and B. a year and one-half after their birth. Indeed, defendant's mother raised her oldest child after the 2004 strangulation, except for a year when he was five, and raised her second child after that child's birth. Neither of these children lived with defendant as infants on a full-time basis such that she had full-time custody and care of them. Similarly, K. and B. were in the hospital for four months after their birth and then taken out of defendant's custody for six months soon after their release from the hospital. Once returned to defendant's care, she lived with her parents before moving with K. and B. when they were a year and one-half. Altogether, defendant did not have full-time custody and care of her children, such that the circumstances of the 2004 strangulation repeated until she had full-time custody of K. and B. a year and one-half after their birth. When defendant did have full-time custody of a young child, however, the evidence suggested she strangled them as an abusive method of managing their care. Thus, the trial court did not abuse its discretion by determining the admission of remote propensity evidence was in the interest of justice.
Third, we address defendant's contention the propensity evidence should have been excluded because the prejudice of its admission outweighed the probative value and thus also violated her right to due process. Section 352, which section 1109 "expressly incorporates" ( People v. Kerley (2018) 23 Cal.App.5th 513, 532, 233 Cal.Rptr.3d 135 ), gives the trial court discretion to exclude or admit evidence of past domestic violence after the court weighs the probative value of the evidence against "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" (§ 352). The law requires " ‘the probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses.’ " ( People v. Culbert , supra , 218 Cal.App.4th at p. 192, 159 Cal.Rptr.3d 853.) " ‘The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.’ " ( People v. Hollie (2010) 180 Cal.App.4th 1262, 1274, 103 Cal.Rptr.3d 633.)
Defendant argues the propensity evidence should have been excluded under section 352 because the prior act was remote, may not have occurred, and defendant was never convicted of child abuse. As described ante , the similarity between defendant's prior act and the charged offense against K. is great. Further, the prior act, while remote, occurred at a time when defendant was in similar circumstances as she was at the time of K.’s death. True, it is unclear whether 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 defendant's prior bad act. Finally, it is not likely the jury would have punished defendant for her past conduct by finding her guilty in this trial. ( People v. Scott (2011) 52 Cal.4th 452, 490-491, 129 Cal.Rptr.3d 91, 257 P.3d 703 [" ‘ "evidence [is] 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" ’ "].) Defendant 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. For the same reasons, defendant's due process right was not violated. 2
Third-Party Culpability
Our inquiry into whether the propensity evidence was admissible when offered by Montgomery-Gutzman does not end simply because the evidence qualified as propensity evidence -- the evidence still must be relevant. ( People v. Lewis (2001) 26 Cal.4th 334, 372, 110 Cal.Rptr.2d 272, 28 P.3d 34.) Montgomery-Gutzman alleged the evidence was relevant because it tended to show third-party culpability -- that is, defendant and not Montgomery-Gutzman strangled K. Defendant argues the trial court abused its discretion by agreeing with Montgomery-Gutzman that the propensity evidence was relevant to show third-party culpability. We disagree.
In a criminal case, a defendant is entitled to present evidence of third-party culpability for the charged offense, provided such evidence is sufficient to raise a reasonable doubt as to his or her guilt. ( People v. Lewis, supra , 26 Cal.4th at p. 372, 110 Cal.Rptr.2d 272, 28 P.3d 34.) However, evidence that a third party merely had a motive or an opportunity to commit the charged offense, without more, does not raise a reasonable doubt about a defendant's guilt; rather, a defendant must present direct or circumstantial evidence linking the third person to the actual perpetration of the crime. ( Ibid. , citing People v. Hall (1986) 41 Cal.3d 826, 833, 226 Cal.Rptr. 112, 718 P.2d 99.)
Defendant argues this standard was not met here because defendant's 2004 strangulation of her oldest child until he stopped breathing did nothing to link her to the strangulation death of K. in 2016, especially since the evidence did not establish she engaged in a pattern of child abuse. We have already rejected defendant's argument that relevance only lies if the remote propensity evidence established a pattern of child abuse. The propensity evidence was relevant to show how defendant treated and abused young children in her full-time custody and care. The evidence showed defendant did not have full-time custody of her infant or toddler children after her oldest child went to live with her parents until a year and one-half after K. and B. were born. Thus, the relevance of the 2004 incident is not in establishing the abuse was ongoing, but that defendant acted similarly when presented with similar circumstances.
Further, defendant's 2004 strangulation did more than " ‘merely ... show that the third party was the more likely perpetrator,’ " contrary to defendant's argument. (Citing People v. McWhorter (2009) 47 Cal.4th 318, 373, 97 Cal.Rptr.3d 412, 212 P.3d 692.) Montgomery-Gutzman's defense was that defendant strangled K., but not to death, before she left to get heroin. He argued the injury caused to K. by defendant's act of strangulation did not materialize until Montgomery-Gutzman was alone with the children and it caused K.’s death. While this theory was undercut by the pathologist who performed K.’s autopsy, the theory was supported by evidence demonstrating defendant had a propensity to strangle young children in her full-time custody until they stopped breathing and before death as a method of handling their care. This theory was also supported by the spots defendant said K. often exhibited due to a lack of oxygen intake. Not only did defendant have the opportunity and motive to murder K. under this theory, but it showed she had the propensity to do so because of her prior act. If believed, this theory had the potential to raise a reasonable doubt as to Montgomery-Gutzman's guilt. Thus, it was not an abuse of discretion for the trial court to admit the 2004 propensity evidence as third-party culpability evidence.
See footnote *, ante .
See footnote *, ante .
DISPOSITION
The trial court shall correct defendant's abstract of judgment to reflect the court security fee and criminal conviction assessment were not imposed. The court shall forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur:
Blease, Acting P. J.
Krause, J.