Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. LA048003, Martin L. Herscovitz, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason Tran and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
A jury convicted defendant Saul Viera Vazquez of assault on a child causing death (Pen. Code, § 273ab) and involuntary manslaughter (§ 192, subd. (a)), a lesser included offense of murder. It also found that in committing involuntary manslaughter, he inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). He was sentenced to 25 years to life on the assault; the sentence on involuntary manslaughter was stayed. He appeals from the judgment of conviction, contending: (1) that his trial counsel was ineffective for failing to object to certain testimony; (2) that Evidence Code section 1109, subdivision (a)(3), is unconstitutional; and (3) that the abstract of judgment must be corrected to reflect a conviction of involuntary manslaughter rather than voluntary manslaughter. We order the abstract so corrected and otherwise affirm the judgment.
All undesignated section references are to the Penal Code.
FACTUAL BACKGROUND
Anthony Carrillo, then two-and-a-half years old, died on January 10, 2005, from blunt trauma to his abdomen. Since November 2004, defendant had been the live-in boyfriend of Anthony’s mother, Noelia Villanueva. Defendant would sometimes watch Anthony while Villanueva was at work. According to Villanueva, defendant believed that she was not strict enough with Anthony. He was also jealous of Anthony, believing that Villanueva spent too much time with him.
In November 2004, Villanueva took Anthony to the emergency room because his penis was swollen and purple-colored. At the time, the treating pediatrician, Dr. Kyu Kim, believed that the condition was caused by an infection. Later, after Anthony’s death, Dr. Kim changed his opinion, and believed that the condition was caused by pressure applied to the penis cutting off the circulation.
Around Thanksgiving 2004, when defendant picked up Villanueva from work, Anthony was in the car and Villanueva noticed that he felt extremely cold. Defendant said that he did not know what had happened to Anthony. Villanueva had defendant drive to the hospital, where Anthony was diagnosed with hypothermia. A spinal tap was administered, and Anthony remained in the hospital for more than a week. Thereafter, he never wanted to take a bath, and began to suffer stress-related hair loss.
In December 2004, defendant picked Anthony up from the home of Villanueva’s sister, Elva. Anthony became upset and did not want to go with him. Defendant grabbed him and took him to the car. That evening, Villanueva noticed a bruise on Anthony’s leg.
On January 9, 2005, the evening before Anthony’s death, Anthony was alone with defendant. Villanueva heard Anthony crying. The next morning, January 10, Villanueva took Anthony to see Dr. Kim. Anthony had several bruises on his stomach. Dr. Kim ordered blood and urine tests.
That afternoon, Villanueva obtained a urine sample from Anthony at home (Anthony had given a blood sample at the lab, but not a urine sample). Villanueva left to take the urine sample to the lab, leaving Anthony napping. When she returned perhaps 15 minutes later, she asked defendant if Anthony was still sleeping. Defendant said yes. Later, Villanueva started to go check on Anthony. Defendant said he would do so. When he returned, he said that Anthony had asked for juice. When Villanueva went to check on Anthony again, defendant interrupted her, just as she was about to open Anthony’s door, with a question about birth control, something that he had never inquired about before. Still later, after showering with defendant, Villanueva told defendant to wake Anthony. Defendant went into Anthony’s room and screamed. Villanueva found Anthony unresponsive and not moving. They took him to the hospital, where, shortly after arriving, Villanueva was informed that Anthony had died. Villanueva observed Anthony’s body, and saw large bruises on his abdominal area, different from the ones she had observed earlier that day. According to Dr. Kim, these bruises were larger and fresher than the ones he had earlier observed on Anthony.
The day Anthony died, Villanueva’s sister Elva rode with defendant to pick up Elva’s daughter. Defendant complained that Villanueva was “cold with him.” Elva said that Anthony had just died. Defendant responded “like what about me?” He also said that Villanueva thought that the death was his fault.
Dr. James Ribe performed an autopsy on Anthony’s body. He observed that the penis and scrotum were swollen, and that there was a laceration in the foreskin. He also observed severe bruising to the abdominal area. The cause of death was “blunt abdominal trauma,” meaning “blows to the abdomen causing . . . internal tears.” The “mechanism of trauma” was that Anthony “was either kicked or punched in the abdomen multiple times.” The fatal injury was a three-inch tear to the mesentery, which connects the intestine to the back wall of the abdomen. The fatal injury would have immediately incapacitated Anthony. He would have been in shock, unable to function, and unable to ask for juice. Anthony had also suffered a tear in the liver. The results of the blood and urine tests ordered by Dr. Kim revealed highly elevated liver enzymes suggestive of severe damage to the liver.
Reviewing medical records of the hypothermia incident, Dr. Ribe explained that Anthony’s body temperature had been 91.2 degrees, low enough to be life-threatening. Only an ice bath for an hour or two, or being outside in cold weather for a few hours, could cause such a drop in temperature.
Los Angeles Police Officer Daniel Aguirre attended the autopsy, but did not actually see Anthony. Rather, before the autopsy, he saw photographs of Anthony’s injuries. Examining one photograph (People’s Exh. No. 1), Officer Aguirre testified: “What I observed is multiple bruises on the abdomen of Anthony Carrillo, which appeared to me looking like knuckle marks or fist marks.” On cross-examination, he conceded that he was not a physician and not an expert on bruising.
After defendant waived his Miranda rights, Officer Aguirre interviewed him on January 12, 2005 (after which he arrested defendant) and again on January 14, 2005. In the January 12 interview, defendant admitted caring for Anthony on the day his penis became swollen and discolored. Regarding the hypothermia incident, defendant said that Anthony had been vomiting. Defendant gave him a bath, and then picked up Villanueva. Defendant did not notice that Anthony was cold. As to the January 10 injuries, defendant said that when he went to Anthony’s bedroom, Anthony asked for juice, which defendant gave him. Anthony drank the juice and remained lying in his crib. Defendant told the Officer that too many people babied Anthony, and defendant wanted to show him how to be a man.
In the January 14 interview, Officer Aguirre told defendant of the autopsy findings. Defendant explained that in the hypothermia incident, he put Anthony in the tub, and left him there for perhaps six minutes to talk on the phone. The water was very cold. When he returned, Anthony was shivering. Regarding the January 10 injuries, defendant said that when Villanueva left to drop the urine sample at the lab, Anthony got out of his crib and sat on the couch. Anthony asked for his mother. Defendant told him several times to go back to bed, and finally grabbed him by the arm. Anthony struck the coffee table with his stomach, and began crying. Defendant noticed no injury, and put Anthony back in his crib.
On January 17, 2005, defendant wrote and signed a four-page statement consistent with his statements on January 14. He ended with a statement addressed to Villanueva, asking for forgiveness.
In his defense, defendant called Eva Tirado (defendant’s cousin by marriage) and two of his brothers, Octavio and Samuel Vazquez. They testified that defendant was a good parent to Anthony and never saw him abuse Anthony.
DISCUSSION
Ineffective Assistance of Counsel
Officer Aguirre testified that he saw photographs of Anthony’s injuries, but did not view Anthony. Examining one photograph (People’s Exh. No. 1), Officer Aguirre testified: “What I observed is multiple bruises on the abdomen of Anthony Carrillo, which appeared to me looking like knuckle marks or fist marks.” On cross-examination, he conceded that he was not a physician and not an expert on bruising.
Defendant contends that Officer Aguirre’s testimony constituted improper expert opinion, and that his trial counsel was ineffective for failing to object to it. We disagree. “[T]he question whether counsel is constitutionally ineffective comprises two inquiries: (1) Was counsel’s performance deficient? and (2) was there prejudice?” (People v. Weaver (2001) 26 Cal.4th 876, 961.)
Here, counsel’s performance was not deficient, because the testimony was not objectionable. Officer Aguirre simply described the appearance of the bruises depicted in the photograph. It requires no special expertise to observe that a bruise depicted in a photograph appears to have the marks of a fist or knuckles.
In any event, defendant suffered no prejudice. “‘[P]rejudice must be affirmatively proved; the record must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Citation.]’” (People v. Hart (1999) 20 Cal.4th 546, 624.) Officer Aguirre conceded that he was not an expert in bruising. Because the photograph was introduced into evidence, the jury could examine it to determine whether Officer Aguirre’s description was accurate. Moreover, the only rational explanation for the severe internal injuries that caused Anthony’s death was, as Dr. Ribe testified, that Anthony “was either kicked or punched in the abdomen multiple times.” Further, the evidence pointed to only one person who could have inflicted the injuries: defendant. Thus, it is not reasonably probable that in the absence of trial counsel’s failure to object, the result of the trial – convictions of involuntary manslaughter and assault on a child causing death – would have been different.
Evidence Code section 1109Evidence 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. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101.”
In support of its case, the prosecution introduced evidence from which the jury could infer that in the months before Anthony’s death, defendant abused Anthony by, inter alia, cutting off the circulation to his penis so that it became discolored and swollen and giving him a bath so cold that it caused hypothermia. Relying on Evidence Code section 1109, subdivision (a)(3), the court instructed the jury that it could infer from this evidence (though it was not required to do so) “that the defendant was disposed or inclined to commit child abuse and, based on that decision, also conclude that the defendant was likely to commit and did commit the crimes as charged here.”
The full instruction was as follows:
Defendant contends that Evidence Code section 1109, subdivision (a)(3), violates due process because it unfairly permits the jury to infer that a defendant has a propensity to commit child abuse. As defendant notes, similar Evidence Code provisions allowing consideration of propensity evidence have been upheld against identical challenges: Evidence Code section 1108, allowing consideration of propensity evidence in sex crime prosecutions (People v. Falsetta (1999) 21 Cal.4th 903, 917); Evidence Code section 1109, subdivision (a)(1), relating to domestic violence (People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704); and Evidence Code section 1109, subdivision (a)(2), relating to elder abuse (People v. Williams (2008) 159 Cal.App.4th 141, 147). The same procedural safeguards present in these other provisions are also present in Evidence Code section 1109, subdivision (a)(3): the propensity evidence is limited to a specific class of offenses, and the trial court retains discretion under Evidence Code section 352 to exclude evidence that is unduly prejudicial or time consuming, and likely to mislead or confuse the jury. Thus, like these other provisions, Evidence Code section 1109, subdivision (a)(3), does not violate due process. We note, too, that in the present case, the incidents of prior abuse were extremely probative of the charged crimes, because they were prior acts committed against Anthony (not some other victim), and occurred in the short period from November 2004 when defendant moved in with Anthony’s mother to January 2005 when Anthony died from severe abdominal trauma. Thus, the trial court properly permitted he jury to consider the evidence under Evidence Code section 1109, subdivision (a)(3).
Abstract of Judgment
Defendant notes that the abstract of judgment erroneously reflects a conviction on count 1 of voluntary manslaughter rather than involuntary manslaughter. Respondent agrees. We order the abstract corrected.
DISPOSITION
The clerk of the superior court is ordered to prepare a modified abstract of judgment reflecting a conviction on count 1 of involuntary manslaughter, and to forward the modified abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
We concur:
EPSTEIN, P. J. SUZUKAWA, J.
“The People presented evidence that the defendant committed child abuse that was not charged in this case.
“Child abuse means abuse committed against a child in violation of Section 273d of the Penal Code as defined elsewhere in these instructions.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged child abuse. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged child abuse, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit child abuse and, based on that decision, also conclude that the defendant was likely to commit and did commit the crimes as charged here. If you conclude that the defendant committed the uncharged child abuse, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged crimes. The People must still prove each element of every charge beyond a reasonable doubt.
“Do not consider this evidence for any other purpose except as permitted by other instructions.”