Opinion
B290351
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL VANEK, Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. VA108590 APPEAL from a judgment of the Superior Court of Los Angeles County, Debra Cole-Hall, Judge. Affirmed. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Samuel Vanek of felony child abuse. On appeal, he contends the trial court erred in permitting the prosecution to introduce evidence of three earlier incidents involving the victim in this case as well as Vanek's own son under Evidence Code section 1101, subdivision (b). We find no error and affirm Vanek's conviction.
FACTS AND PROCEDURAL BACKGROUND
1. The three-month-old victim suffers serious injuries while in Vanek's care
In May 2008, Rebecca Haro was caring for her three-month-old nephew Madden. Madden's mother (Haro's sister), Cassandra M., and her husband were in the military and had been deployed. Madden was a "[n]ormal, healthy baby" with "[n]o health issues."
Madden's family calls him by his middle name; we do as well.
Vanek was Haro's boyfriend; they had been in a relationship for a couple of months. When Haro told Vanek she was going to take care of Madden in his parents' absence, Vanek "didn't want [her] to do it." "He let [her] know that . . . he wanted nothing to do with it; that it would be completely [her] responsibility." "Basically, that it was all on me . . . and that he wasn't going to alter anything going on in his life or what he was doing."
On the morning of May 26, 2008, Madden went to sleep; Haro put him on the couch and left to get her nails done. Vanek was outside playing football with Haro's two sons—Juan, age nine, and Devon, age six—and her nephew Austin, age eight. When Haro left, she told Vanek that Madden was sleeping and she "should be back before he wakes up."
About 45 minutes after Haro left the house, Vanek called her. Vanek told Haro she "need[ed] to come home because . . . there was something wrong with the baby that he wasn't acting right." Haro "figured that the baby was just crying or being fussy and he didn't want to deal with it." Vanek "wouldn't really like it too much" "when the baby would cry." "He would go in a different room or ask [Haro] to take the baby into a different room."
A few minutes later, Vanek called Haro again and told her to hurry up. He said "the baby wasn't breathing right." Haro asked Vanek if he'd called 9-1-1 and he said he hadn't. Vanek was "just frantic and yelling."
When Haro got home five to 10 minutes later, Madden was "very, very, very pale" and "barely breathing." "[H]is whole body was just limp." Haro called 9-1-1 right away. Paramedics arrived and took Madden and Haro to the hospital.
Vanek told a responding officer he'd been outside playing football with the boys and heard Madden crying. Vanek said he came inside, picked Madden up, laid him in his crib, and gave him his pacifier. Five or 10 minutes later, Vanek walked back into Madden's room and "it appeared that the baby was trying to gasp for air." Vanek told the officer he had picked Madden up, Madden was "unresponsive," and Vanek "shook the baby approximately two times." (Juan testified at trial that Vanek shook Madden three or four times, and the shaking was neither "gentle" nor "overly aggressive.") Vanek said "the head rolled back as he shook the baby, and his eyes were closed." Vanek "got scared," laid Madden on the couch, and called Haro. Vanek "began CPR": that consisted of giving "the baby three breaths into his mouth."
After Haro left with the paramedics, Vanek took Juan, Devon, and Austin to get ice cream. On the way, Vanek told the boys "there was going to be an investigation, that somebody had to take the blame for what happened." Vanek "selected" Devon, the youngest, "to say that he dropped the baby." Vanek told the boys that, because Devon was the youngest, it would be more believable as an accident. Devon protested that he had not dropped the baby. Vanek responded, "Well, somebody's got to take the blame." Devon then said, "I'll take the blame."
Vanek told a social worker who came to the hospital that Devon had dropped Madden. Later, Vanek admitted that was untrue. Vanek also told Haro that Devon had dropped the baby.
Haro called Cassandra, who flew home immediately. She found Madden in a medically-induced coma in the hospital. His head was very swollen and he was on a respirator. A CT scan showed "his brain was very badly damaged." He was "[e]xtremely critical" and doctors didn't think he would survive.
A pediatrician at the hospital who specialized in child abuse, Dr. Sandra Murray, concluded "Madden had suffered abusive head trauma," meaning it was caused by "something other than an accident." According to Dr. Murray, the damage to Madden's brain was caused by an "acceleration/deceleration rotational injury"—something had happened to Madden "so that [his] head [had been] bouncing around."
At the time of trial, Madden was 10 years old. He is legally blind, has cerebral palsy, wears leg braces, and can stand with assistance. He "will require life-long care."
2. The charges and the hearing on the prosecution's motion in limine
In an information filed June 30, 2009, the People charged Vanek with felony child abuse in violation of Penal Code section 273a, subdivision (a). The People also alleged Vanek had personally inflicted great bodily injury on the victim, who was under the age of five. The case proceeded to a third trial in May 2018.
Vanek was convicted in a bench trial in 2010 and sentenced to ten years in the state prison. We affirmed Vanek's conviction but remanded the case for the trial court to reconsider his ability to reimburse the government for his court-appointed counsel. (People v. Vanek (Apr. 2, 2013, B227789) [nonpub. opn.].) In November 2016, a federal district judge conditionally granted Vanek's petition for a writ of habeas corpus, ordering a new trial. The record before us in this appeal contains almost no information about the writ proceeding beyond the federal judge's statement that Vanek's bench trial "was pretty much a trial in name only," "really a slow plea," and referring to his counsel's "abject failure to investigate."
Vanek's second trial in September 2017 ended in a mistrial due to juror misconduct.
At the outset of trial, the prosecutor filed a motion to admit six "prior acts of child abuse and domestic violence" under Evidence Code section 1101, subdivision (b) (1101(b)) and section 1109. The prosecutor's brief stated she sought to introduce the prior acts evidence "to prove motive, opportunity, intent, identity, and absence of mistake." The prosecutor argued, "In child abuse cases, evidence of previous child abuse is admissible under section 1101(b) to show the victim's injuries did not arise from accidental means. [Citations.] In addition, section 1101(b) can also be applied in the People's case-in-chief to show motive, intent, and a deliberate plan and preparation."
Statutory references are to the Evidence Code.
Even though in her motion the prosecutor asserted section 1109 as an additional ground for admitting the prior acts evidence, she did not pursue that theory. The court based its ruling on section 1101(b) only and instructed the jury with CALCRIM No. 375, the 1101(b) instruction.
Defense counsel filed a brief in opposition. Counsel argued the prior acts were "not substantially similar to the present offense and their prejudicial effect outweighs any probative value."
The court heard argument on the motion. The prosecutor listed six incidents she sought to introduce. She told the court, "[E]vidence of previous child abuse is admissible under section 1101(b) to show the victim's injuries did not arise from accidental means." She added, "Also, it would go to . . . prove . . . motive and intent." When the court asked "what exactly" were the reasons the prosecutor sought to introduce the prior incidents, she responded, "A lack of mistake . . . ."
Defense counsel argued the prior child abuse incidents were "distinguishable" from the conduct charged in the case, the domestic violence incidents did not involve children and impermissibly showed only that Vanek "ha[d] a propensity to do violence," "and the probative value is outweighed by prejudice."
Initially, the court excluded one incident (in which Vanek threw a cheeseburger at Haro) and granted the prosecutor's motion to admit evidence of the other five incidents:
Later, during trial, the prosecutor realized Vanek had mentioned this cheeseburger incident when the investigating officer interviewed him. The prosecutor told the court, "[T]he one sentence [in the recorded statement and accompanying transcript] is that the defendant said that [Haro] threw some French fries at him, and so he threw a cheeseburger at her. Period. That's it." The trial court overruled defense counsel's objection to the admission of Vanek's statement and his request that the transcript be redacted. The prosecutor said she would not ask Haro about the cheeseburger incident and she did not.
• Vanek, frustrated that his young son was crying, yanked him up from the floor by his arm;
• Vanek hit his son in the head with his hand after the child pushed another child down;
• A week before the charged offense, Haro found bloody marks on the side of Madden's mouth after she left him alone in a car with Vanek;
• While stationed in Germany, Vanek pushed his wife and took their children's passports away so she couldn't leave the country with the children;
• Vanek chased his wife with a hammer.
The prosecutor's motion stated Vanek's son was two years old at the time. The child's mother—Vanek's ex-wife Sara Aston—testified at trial that the child, Anthony, was six months old at the time.
The prosecutor's motion stated this incident involved Vanek's other son. Aston testified at trial that this incident involved the same son, Anthony, when he was about two years old.
The prosecutor's motion stated this incident was one week earlier. Haro testified at trial it was two days earlier.
Later, upon reconsideration, the court ruled it would not permit the prosecution to bring up the "chasing with a hammer" incident. The prosecutor withdrew her request to admit evidence of the pushing incident in Germany. 3. The trial , verdicts , and sentence
At the May 2018 trial, the prosecutor called Vanek's ex-wife Sara Aston to testify about the two incidents involving their son Anthony. Aston told the jury that, when Anthony was six months old, he was "sick, colicky." Aston and Vanek had been up all night and were exhausted and frustrated. Anthony was fussy and crying, and Vanek grabbed Anthony's arm and yanked him up from the ground. Aston was alarmed because she'd "never seen anybody do that before."
Aston also testified that when Anthony was about two, he was "playing with the neighbor girls." Anthony "did something to the girl, either pulled her hair or hit her," and Vanek "walked over to him and smacked him in the back of the head and told him no." Again asked if she was alarmed, Aston said she was "[b]ecause growing up I never got hit, so I didn't think that I would ever hit my kids."
The prosecutor also called Haro to testify about the incident two days before the events of May 26. Haro told the jury she and Vanek had gone to pick up a U-Haul. Madden was sleeping in his car seat in the back seat. Haro went inside the office; when she returned to the car about 10 minutes later Madden was crying. The nipple of his bottle was in his mouth "but he wasn't really drinking it." His lip was "a little bit bloody and . . . busted . . . as if he had hit his mouth on the bottle, like if he went forward and hit hi[m]self." Haro asked Vanek what had happened; Vanek said, "I don't know, he just started crying and I gave him the bottle. He must have moved his head forward and hit his mouth on the bottle."
Both the prosecutor and defense counsel asked Haro about a time a couple of weeks earlier when she had taken Madden with her on a go-kart on the grassy part of her front yard for "not even a minute." Haro testified she had held Madden securely on her lap, with her arm around his chest. Haro said, "I didn't even give it any gas. I just took my foot off the gas and just let it kind of go on its own."
The prosecution called Dr. Murray to testify about Madden's injuries. The defense called a forensic pathologist, Dr. David Posey. Dr. Posey, having read Madden's medical records, testified the subdural hematomas in his brain were caused by a vascular abnormality called arteriovenous malformation. Dr. Posey said he had "rule[d] out trauma as a cause or potential cause."
The defense also called Dr. Suzanne Dupee, an expert on posttraumatic stress disorder, who testified Vanek suffered from PTSD as a result of three tours of duty in Iraq. Given a hypothetical, Dr. Dupee explained why a person in Vanek's position might not call 9-1-1. In addition, the defense called a friend of Vanek's who testified Haro often left her own two boys with Vanek. Vanek chose not to testify.
The court, using CALCRIM No. 375, instructed the jury it could consider the prior acts evidence in deciding whether Vanek "acted with the general intent in this case" or whether his "alleged acts were not the result of mistake or accident."
In closing, the prosecutor briefly mentioned the two incidents with Vanek's own son. The prosecutor noted the jury instruction permitted the jurors to consider that evidence "for the limited purpose of deciding whether the defendant acted with general intent in this case and whether or not his actions were the result of any mistake or accident." The prosecutor told the jury, "There is no mistake or accident about this violent shaking, or throwing, or slamming to cause Madden's injuries. . . . In evaluating this evidence, you can consider the similarity of how he is rough, not only with his own kids, but how rough he must have had to be with Madden."
Defense counsel addressed the two incidents in his closing as well. Counsel noted Vanek had "reprimanded" his son, "hit[ting] [him] with an open hand," after the child pushed a little girl down, "telling him he shouldn't hit girls." Defense counsel also cited testimony by Aston that Vanek was "a good father."
The jury found Vanek guilty and found true the allegation that he personally inflicted great bodily injury on the victim. The court sentenced Vanek to 10 years in the state prison. The court chose the midterm of four years, plus the midterm of six years for the great bodily injury. Because of the passage of time, Vanek already had served his prison sentence. (The court had released him on his own recognizance in September 2017.)
DISCUSSION
Character evidence—sometimes described as evidence of a propensity or disposition to engage in a type of conduct—is generally inadmissible to prove a person's conduct on a specified occasion. (People v. Villatoro (2012) 54 Cal.4th 1152, 1159; § 1101, subd. (a).) Character evidence includes evidence of specific instances of a person's conduct. (People v. Jones (2018) 28 Cal.App.5th 316, 323.) Section 1101(b), however, "substantially qualifie[s]" this rule. (People v. Evers (1992) 10 Cal.App.4th 588, 598 (Evers).) Section 1101(b) "clarifies that evidence of a person's conduct is admissible when that evidence is relevant to demonstrate a fact other than character or propensity, 'such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.' " (Jones, at p. 323; § 1101(b); People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) We review the trial court's decision to admit evidence, including prior bad acts evidence, for abuse of discretion. (People v. Rocha (2013) 221 Cal.App.4th 1385, 1393 (Rocha); People v. Harris (2013) 57 Cal.4th 804, 841.)
In a child abuse case, prior acts of abuse are admissible under section 1101(b) to show (among other things) that the victim's "injuries arose from nonaccidental means." (Evers, supra, 10 Cal.App.4th at p. 598.) However, Vanek contends the trial court abused its discretion in admitting evidence of his prior acts because "[n]o claim of accident or mistake formed any part of appellant's trial defense." This argument overlooks the fact that—at the beginning of the trial, when the court heard argument and ruled on the motion—neither the prosecution nor the court knew what Vanek's "trial defense" would be. In a criminal case, the defense of course has no obligation to tell the prosecution what the defenses will be.
As Vanek correctly notes, the Attorney General misunderstands the law on section 1101(b) evidence to prove an absence of accident or mistake. The Attorney General argues the prior incidents were admissible because the defense contended Madden might have been injured "accidentally rather than intentionally" when Haro took him on the go-kart. But the evidence of the go-kart incident goes to the identity of the person who inflicted Madden's injuries, not to whether that other perpetrator's conduct was accidental. Section 1101(b) evidence is admissible to show that the actions of the charged defendant were accidental rather than intentional.
In Vanek's first trial, his key defense was accident. In his closing argument there, Vanek's counsel told the court, "There is no disagreement that the child has suffered a traumatic injury. . . . What is not so clear . . . is what actually caused the injury. Was it an intentional act by the defendant, or was it an accidental act?" Counsel noted there was no bruising on the victim. Counsel argued, "What we have here, Your Honor, is a very horrible, tragic accident. That's what we have here." (People v. Vanek, supra, B227789 [p. 7].)
The record on appeal does not include whatever briefing took place on the section 1101(b) issue during Vanek's second trial in 2017. Counsel submitted on their briefs and the court ruled, admitting the same three prior incidents that came into evidence in the third trial.
Vanek's argument proceeds entirely from hindsight. Neither in defense counsel's written opposition to the prosecutor's motion in limine, nor in his oral argument on the motion, did counsel ever tell the prosecutor or the court, "We don't plan to argue accident." Instead, defense counsel argued the incidents were not "substantially similar" to the charged offense and their admission would be unduly prejudicial, consume time, and confuse and mislead the jury.
Nor would such a representation, promise, or offer to stipulate by the defense necessarily render erroneous the admission of the prosecution's prior acts evidence. "Where the prosecution must establish an element of the crime, a statement by counsel for the defendant that no issue will be made as to this element does not necessarily preclude its proof." (1 Witkin, Cal. Evidence (5th ed. 2019) Circumstantial Evidence, § 14. Cf. People v. Archerd (1970) 3 Cal.3d 615, 638-639 [rejecting argument that, until defense puts matter in issue, prosecution cannot anticipate it and present other acts evidence in its case in chief]; People v. Valdez (2012) 55 Cal.4th 82, 128-131 [defense counsel's indication defense might stipulate did not preclude prosecution from admitting evidence of defendant's gang membership].) Here, the prosecution was required to prove (among other things) that Vanek intentionally injured Madden and that his rocking or shaking of the baby was violent and intentional, not an accident or a mistaken attempt to revive the child. The defense theory seems to have been (1) Vanek shook Madden only twice, (2) Madden suffered from a preexisting vascular abnormality, and (3) Madden's brief ride on a go-kart with Haro a couple of weeks earlier somehow caused his brain damage. The prosecution was entitled to anticipate and rebut this theory.
The three prior acts also were admissible to show intent. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (Ewoldt, supra, 7 Cal.4th at p. 402. Cf. People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610, 1613-1614 [not guilty plea puts into issue all elements of charged offense, including intent; prior incidents of "marital discord" and prior assaults properly admitted in murder case].)
Even though Dr. Posey testified he had ruled out trauma as a cause of Madden's injuries, defense counsel talked to the jury about the go-kart ride. In his opening statement, counsel said, "[Haro] took this kid, this baby[,] on a go-kart over a rocky road. The baby wasn't in a baby seat, wasn't strapped in or anything. The baby was on her lap, she was holding the baby with her arm and driving the go-kart with the other arm. [¶] Now, that had an impact on the baby." In closing argument, defense counsel told the jurors Haro was lying, "the go-kart was obviously going faster than she said," and "[i]t was over a bumpy road not a smooth road."
Finally, Vanek contends that, even if the prior acts evidence were admissible, the trial court should have excluded it under Evidence Code section 352. We disagree.
Evidence is not inadmissible under section 352 unless the probative value is substantially outweighed by the probability of a substantial danger of undue prejudice. (People v. Fruits (2016) 247 Cal.App.4th 188, 205 (Fruits).) Again, we review a trial court's decision to admit evidence over a section 352 objection for abuse of discretion. (Rocha, supra, 221 Cal.App.4th at p. 1397.)
None of the three incidents here was particularly inflammatory. The prior acts evidence "was about as innocuous as evidence of uncharged crimes can ever be." (Rocha, supra, 221 Cal.App.4th at p. 1397. See Fruits, supra, 247 Cal.App.4th at pp. 206, 209 [no abuse of discretion in admitting evidence of prior threats; evidence was not more inflammatory than charged conduct].) Vanek's son wasn't injured in the arm pulling and head slapping incidents, and Aston went on to describe the pressures she and Vanek were under at the time and to emphasize Vanek was a good father. Nor did the bloody lip incident result in any significant injury to Madden. Haro described seeing "a little bit of blood" and there is no indication in the testimony that she even took him to the doctor.
Finally, any abuse of discretion in admitting the prior acts evidence was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Vanek was the only person in the residence during Haro's absence capable of inflicting Madden's injuries; he persuaded a six-year-old to take the blame for him, showing guilt; and Dr. Murray—an expert in child abuse—testified Madden's "very badly damaged" brain must have resulted from "very forceful" "trauma."
DISPOSITION
We affirm Samuel Vanek's conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P. J.
DHANIDINA, J.