Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County, No. FVI700087 Eric N. Nakata, Judge.
O'ROURKE, J.
A jury convicted Kenneth Brown, Jr. of second degree murder (Pen. Code, § 187, subd. (a) ) and assault causing death of a child under eight years old (§ 273ab). The court sentenced him to 25 years to life on count 2, and 15 years to life on count 1 stayed under section 654.
All statutory references are to the Penal Code unless otherwise stated.
Brown contends the trial court improperly denied his section 1118.1 motion for a judgment of acquittal on grounds insufficient evidence supported his convictions. He further contends: (1) his constitutional rights to due process and a fair trial were violated because the medical expert provided improper opinion testimony, thus usurping the jury's factfinding function; (2) the jury was improperly permitted to hear a recording of his interview with detectives that included a discussion regarding his amenability to taking a polygraph test; and (3) he received ineffective assistance of counsel. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
In December 2006, Maricia Tinsley gave birth to Brown's daughter, named Unique. The family, including Tinsley's other children, lived in Apple Valley.
Tinsley testified that approximately 40 days later, on February 2, 2007, the family went to a mall in Victorville, and Tinsley did not notice anything wrong with Unique. They returned home between 9:00 p.m. and 10:00 p.m. Approximately one hour later, Tinsley left for an errand with Danielle Stanley, leaving Brown to babysit Unique. Tinsley telephoned home and asked an older daughter about Unique and was told, "She's okay." Tinsley telephoned again, asked to speak to Brown, but was told he did not wish to speak with her. She returned home at approximately midnight, and from outside saw someone running from the bathroom. She asked Brown if it was him and he initially denied it, but he did not satisfactorily explain why his heart was beating fast. He later admitted running from the bathroom, but denied her suggestion that he had brought a woman into the house. Tinsley remained unconvinced by his answer and told him he had to leave the house. Brown then told her, "[S]omething bad happened." Tinsley immediately grabbed Unique, who was lying face down on the bed, a position she disapproved of because of the risk of death. She noticed Unique's color was blue and her body was lifeless, and she began to scream that Unique was dead.
Stanley, who was residing at Tinsley's house, testified Unique had not been crying or fussy that night before she and Tinsley left for their errand. When they returned home and discovered Unique's problems, Stanley called 911. Brown told the operator he thought Unique had vomited, and afterwards she inexplicably stopped breathing. The operator instructed Brown on how to perform CPR. Brown told the operator that after he blew into her mouth she breathed but later she became pale. Tinsley drove Brown and Unique towards the hospital. En route, paramedics met them and took Unique into an ambulance. She had no heartbeat and no respiratory rate, and they performed CPR. Brown told the paramedics Unique had choked, he had cleared her airway, she seemed okay and he put her on the bed, but later she became unresponsive. Tinsley told them that Unique had no history of problems relating to her heart, breathing, asthma, seizure activity or medication use.
Dr. Hiachi Lin testified that Unique arrived at the emergency room in full arrest. His team worked on her for approximately an hour and revived her briefly but her heart stopped and she died from what he concluded was sudden infant death syndrome (SIDS). Dr. Lin questioned Brown regarding Unique's medical problems, but Brown did not say she had fallen or was dropped.
San Bernardino County Deputy Sheriff Thomas Levan interviewed Brown while Unique was in the emergency room. Brown said that Unique had stopped breathing and he suctioned her nose, cleaned her, and put her on the bed. She started having difficulty breathing another time and he again used the suction. He later could not find a pulse and started breathing into Unique's mouth and applying compressions on her chest. He felt a pulse, took her back to the bedroom and placed her on the bed. He did not feel a need to call 911.
Dr. Steven Trenkle of the San Bernardino County Coroner's office performed an autopsy on Unique. In his external examination of her body, the only unusual thing he noted was redness on her abdomen. During the internal examination, he discovered extensive laceration of the liver and severe hemorrhaging from several of her vital organs, including her kidneys, pancreas and lungs, resulting in a loss of approximately one-third of her blood. The bleeding also affected her psoas muscles and the back wall of her abdominal cavity. Dr. Trenkle testified that the bleeding of those parts was significant because, "this is a relatively protected part of the abdomen. So to get hemorrhage this far back, the force of the injury had to go through all of the organs which were between the stomach or the skin and the backbone.... So all of this hemorrhage is due to an injury directed from the front."
Dr. Trenkle testified Unique had multiple rib fractures on the front side of both the right and left sides of the fifth through ninth ribs. He explained, "Children, particularly infants, their bones are still forming, particularly their ribcage is very pliant and so it's hard to fracture a child's ribs with the kind of force that's generally done with CPR as opposed to an adult." The autopsy also disclosed subdural hemorrhage, which "occurs when blood vessels that travel between the dura and the brain are stretched or torn." Unique's brain injury resulted from a "moving head injury rather than a stationary head injury that was struck with something." Unique also had hemorrhage around the optic nerve.
Dr. Trenkle testified that Unique's injuries to her organs were from a blow while the body was stationary. He added that such force would also be produced if the body is moving and the abdomen lands on something with enough force. He determined that the main cause of death was blunt force injuries that caused a lacerated liver and in turn "extensive intraabdominal hemorrhage, " but her other injuries also contributed to her death.
When the prosecutor asked Dr. Trenkle to clarify the amount of force he was referring to, the doctor compared it to a high speed "freeway-type" accident where an infant is unsecured and thrown out of the car. Dr. Trenkle ruled out a fall from a baby swing, being held by an adult, tossed in the air and falling on the ground or any normal adult-infant interactions as causes of Unique's multiple injuries.
On February 5, 2007, San Bernardino County Sheriff Homicide Detective John Gaffney investigated Unique's death and interviewed Brown, who was hospitalized. Brown stated he had been babysitting her that night, and used a suction bulb to remove phlegm from her mouth. He lay next to her and they both slept. He awoke at about 1:30 a.m. and she was not responsive. He breathed on her mouth and was "hitting on the baby's chest." He "freaked out" but thought he had fixed the problem and therefore he did not call 911.
On February 6, 2007, Detective Gaffney interviewed Brown at the sheriff department headquarters, and a video recording of it was played for the jury. Brown initially maintained the same version of events he had related the previous day. Detective Gaffney eventually told Brown that he was not telling the entire truth because the autopsy had showed Unique's injuries were serious, and moreover the pathologist had stated Unique died shortly after receiving the injuries. Brown asked what those injuries were. Detective Gaffney replied the injuries could not have been caused like Brown had explained. Brown then said he had omitted to mention that he had placed Unique in the swing and was playing with her without buckling her in. She fell out and hit a rail and then the ground. He admitted, "To tell you the truth that's when I tried to kill myself and I did play with her rough."
Detective Gaffney recognized Brown's new version of the incident was closer to the truth, but still incomplete. He told Brown about Unique's specific injuries as stated in the autopsy report. Brown changed his story again: "[O]kay, she really wasn't really in the swing. I played with her in a different sort of way and I tried, you know, I dropped her when she was in the air and she did hit the floor kind of hard and she did hit the swing but she wasn't inside the swing." Brown added, "It probably was when I was catching, I was throwing her in the air, I probably caught her too hard from grabbing her and when the second time I, I didn't really catch her really good and she did hit the ground." After that incident, "She was not breathing right." Brown accepted that he had lied by not previously relaying this information, admitting, "But I left parts out. And I tried to rearrange it just a little bit so, if you call that lying that is lying 'cause leaving parts out of the story, that's lying. So I did that." He continued, "I did, I know I hurt her rather bad that's why she was breathing like she was.... I dropped her the wrong way and she, she landed real hard you could hear when she landed. Now I was, I was, I was scared out, my my my fucking mind to call the police and the paramedics.... I didn't know how her momma was going to come home and say to me. I didn't, know, know, know what was wrong with her. I knew she was injured but I didn't know how bad."
Detective Gaffney countered that even if Brown had dropped Unique, it would not have caused her injuries, including the fractured ribs. Brown elaborated, "[I]t could have been, I was squeeze, I know I was squeezing 'cause I bit the shit out of my lip so have to be squeezing the stuff out of her." He added, "So I, I probably did break her ribs." The detective asked why Brown had bitten his lip, and Brown answered, "Cause I, was pressure. The more pressure I put into it." Brown then admitted that Unique had not fallen from the swing as he had earlier asserted.
The following morning, the detective again disputed Brown's version of the incident and Brown again explained Unique's injuries:
"Detective: She didn't die from breathing problems. That's not how she died.
"[Brown:] So how, how...
"Detective: I told you how she died!
"[Brown:] I don't know how it happened.
"Detective: She died from an injury to her brain...
"[Brown:] And that was...
"Detective:... a massive, a massive injury to her liver.
"[Brown:] And I was...
"Detective: And broken ribs.
"[Brown:] And all that could have happened when I was doing CPR.
"Detective: We told you...
"[Brown:] Cause I did uh, uh, CPR a gang of times, when she was not breathing. That all could of happened during that time. Now every time you ask me, I told you that."
At the close of the People's case-in-chief, Brown unsuccessfully moved for a judgment of acquittal on grounds of insufficient evidence under section 1181.1.
Defense Case
On March 15, 2007, jail authorities confiscated Brown's letter written to his cousin. Brown testified he wrote it knowing it would be diverted to the prosecutor. Brown offered a new version of the incident in the letter: It got late and Tinsley had not returned home, therefore, he decided to leave Tinsley, taking Unique with him to the home of either her godfather or his mother. He walked to the home of a friend, "Mr. T., " but nobody was there. He then changed his mind about leaving Tinsley and thought he should at least to talk to her about their differences. As he was walking back home he saw two men walking and thought he recognized one of them. One of them grabbed Brown's sweater and tried to pull him, and they got in an altercation. One of them asked Brown what he was carrying. Brown replied that it was a baby, and one of the men punched Brown in the back of his head and he fell forward and Unique also fell. He got up and ran home.
At trial, Brown testified in accord with his version of the incident in the letter and disavowed his previous versions. During cross-examination, the prosecutor asked him if he thought Unique was injured in the fight. He replied, "This is probably a good probability that she was because he was punching quite a while." He testified that when he got home he checked Unique for injuries but found none, and instead she was breathing and appeared to be sleeping. He put her on the bed, covered her with a sheet and cleaned his face in the bathroom. Tinsley arrived home shortly afterwards. He admitted that he had lied to Detective Gaffney about the incident, stating, "I basically thought that Ms. Tinsley wasn't going to be with me if I told [Gaffney] the truth so I just — he said, how did this happen? So I basically gave him an accident and I didn't want to tell him the truth so I just gave him accident."
DISCUSSION
I.
Brown contends the trial court erred in denying his motion to acquit on grounds insufficient evidence supported his convictions, arguing, "The problem in the present case is the utter lack of evidence as to how Unique's injuries actually occurred. Here, there was no evidence of any type of act that resulted in injuries to Unique."
A trial court's evaluation of a motion for acquittal is governed by the same substantial evidence test used in an appellate challenge to the sufficiency of the evidence, that is, the trial court determines "whether from the evidence then in the record, including reasonable inferences to be drawn therefrom, there is substantial evidence of every element of the offense charged." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89.) If the record can reasonably support a finding of guilt, a motion for acquittal must be denied even if the record might also justify a contrary finding. (See People v. Holt (1997) 15 Cal.4th 619, 668.) We independently review the trial court's ruling. (People v. Harris (2008) 43 Cal.4th 1269, 1286.)
Section 273ab provides: "Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 189." Thus, to be guilty of this crime, one must willfully and unlawfully, while having care or custody of a child under eight years old, assault the child by means of force that to a reasonable person would be likely to produce great bodily injury and which results in the child's death. (CALCRIM No. 820; People v. Stewart (2000) 77 Cal.App.4th 785, 794.)
The jury was instructed with CALCRIM No. 820, which states in relevant part:
Here, the trial court did not err in denying Brown's motion for acquittal. Brown was Unique's caretaker that night and the evidence pointed to his responsibility for her injuries. The physical evidence showed that Unique suffered extensive injuries, including internal bleeding at multiple sites and extensive laceration of the liver, and fractured ribs and brain injury. Dr. Trenkle testified that Unique's bodily injuries were likely caused by blunt force trauma and her brain injuries were caused by some movement. He also testified her injuries were similar to injuries seen only in the most serious events, such as when children are in car crashes. Consequently, although Unique's body lacked external signs of significant trauma, the nature and extensiveness of her internal injuries provided sufficient evidence that Brown used an amount of force a reasonable person would believe was likely to result in great bodily injury on a young child. (See People v. Wyatt (2010) 48 Cal.4th 776, 785; People v. Stewart, supra, 77 Cal.App.4th at pp. 794-795.) Brown gave varying accounts of the incident to detectives, but one constant in all versions is that during Tinsley's absence he was in charge of her and she never was under another person's control. He admitted he had lied to the detectives about the incident, evincing consciousness of guilt. He changed his versions when he realized the detectives knew the extent of Unique's injuries. Further, he appeared to accept responsibility for Unique's injuries when he told the detectives: "I know I hurt her rather bad that's why she was breathing like she was.... I dropped her the wrong way and she, she landed real hard you could hear when she landed. Now I was, I was, I was scared out, my my my fucking mind to call the police and the paramedics."
Section 273ab requires that the defendant caretaker commit an assault with force such that a reasonable person would know it was likely to inflict great bodily injury. Brown contends he did not have the requisite mens rea to commit the section 237ab crime because "there was no substantial evidence that [he] was 'aware of facts that would lead a reasonable person to realize that [his] act (whatever that might have been) by its nature would directly and probably result in great bodily injury to the child' " within the meaning of CALCRIM No. 820. He adds, "The evidence must show actual knowledge on his part, and the record is void of [sic] this evidence. Unique had no external injuries. Indeed, no one appreciated the full extent of Unique's injuries from the paramedics who took her to the hospital to the emergency room doctor who tried to save her and diagnosed a SIDS death."
During the pendency of this appeal, the California Supreme Court ruled adversely to Brown regarding section 237ab's mens rea requirement, holding in People v. Wyatt, supra, 48 Cal.4th 776 that, "[A] defendant may be guilty of an assault within the meaning of section 273ab if he acts with awareness of facts that would lead a reasonable person to realize that great bodily injury would directly, naturally, and probably result from his act. [Citation.] The defendant, however, need not know or be subjectively aware that his act is capable of causing great bodily injury. [Citation.] This means the requisite mens rea may be found even when the defendant honestly believes his act is not likely to result in such injury." (Id., at p. 781.) Under Wyatt, any failure by Brown to realize he was hurting or fatally injuring Unique is of no consequence to the issue at hand. (Id. at p. 785.)
II.
Brown contends Dr. Trenkle provided improper expert testimony regarding Unique's cause of death, usurping the jury's factfinding function in violation of his constitutional rights to counsel, due process and a fair trial. Specifically, Brown argues the trial court abused its discretion in admitting into evidence the following italicized portions of Dr. Trenkle's testimony regarding the force necessary to cause Unique's injuries: "Well, it would take considerable force to crush the liver and lacerate the liver and fracture the ribs and the extensive amount of hemorrhage and the diffuse pattern involving multiple organs. So if it were a blow, it would be very hard and something that any of us if we saw it happen would realize that that is likely to cause serious injury. It wouldn't be a mild blow." (Emphasis added.) Dr. Trenkle also testified, "By the same token if the child fell and landed on its head or abdomen or what whatever... it wouldn't be a trivial sort of childhood kind of fall off of low surfaces. It would be something that — to cause this amount of injury, the fall would have to be from a height great enough to cause this kind of injury, and it would be if anybody witnessed it you would be aghast and call 911. You would assume that there would be severe injuries from that." (Emphasis added.)
The trial court has broad discretion in admitting expert testimony and making evidentiary decisions, particularly in determining the relevance of proposed evidence. (People v. Prince (2007) 40 Cal.4th 1179, 1222; People v. Scheid (1997) 16 Cal.4th 1, 14.) Under Evidence Code section 801, subdivision (a), the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert testimony would assist the jury. (People v. Prince, at p. 1222.) We review the trial court's evidentiary rulings under the abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) Expert testimony is admissible even though it encompasses the ultimate issue in a case. (Evid. Code, § 805.)
Dr. Trenkle's testimony regarding the amount of force necessary to produce the kinds of injuries Unique had suffered was necessary to help the jurors understand a topic that is beyond their common experience. This testimony also was relevant in light of Brown's claims to the detectives that Unique fell and hit a swing when he was playing with her. In emphasizing the amount of force necessary to cause Unique's injuries, Dr. Trenkle mentioned that the blows inflicted on her were not mild, but rather so severe that anyone would instantly recognize they were likely to cause serious injury. It was not error to admit that statement, which merely explained that Unique's injuries were caused by force far exceeding those a child might suffer in ordinary interactions with an adult. The same analysis applies to Dr. Trenkle's statement that if Unique had fallen, it would have been with such force that anyone seeing it would be aghast and call 911. That statement was a guide to the jury regarding the possible effect on a bystander of seeing the extent of force applied to Unique. In any event, the fact the jury could infer guilt of the charged offenses from Dr. Trenkle's testimony does not make the challenged testimony inadmissible. (See, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 619 [expert opinion concerning whether incident was "gang-related activity" and whether primary purpose of a particular gang was to commit specified offenses properly admitted].)
Accordingly, Brown's reliance upon People v. Torres (1995) 33 Cal.App.4th 37, for the proposition that a witness cannot express an opinion as to the defendant's guilt or that a crime had been committed, is misplaced. In Torres, the witness, after providing the jury with definitions of robbery and extortion, testified that a robbery "is what happened in this particular case." (Id. at p. 44.) The Torres court held a witness's testimony about the meaning of a statute was improper because it is the duty of the court, not a witness, to instruct on matters of law. The court also held that an opinion that the defendant was guilty of a crime or that a crime had been committed was improper, not because the testimony went to the ultimate issue of fact, but because such an opinion would not be helpful to the trier of fact. (Id. at pp. 46-47.) By contrast, Dr. Trenkle did not testify regarding the meaning of a statute, and his testimony was helpful to the jury.
Even if it was error to admit the challenged portions of Dr. Trenkle's testimony, such error did not constitute a due process violation. This evidentiary issue is analyzed in the same manner as other evidentiary claims, namely, under the state harmless error standard articulated in People v. Watson (1956) 46 Cal.2d at page 836. (People v. Gomez (1999) 72 Cal.App.4th 405, 419, disapproved on other grounds as stated in People v. Brown (2004) 33 Cal.4th 892, 908.) Here, as noted, the evidence separate from the challenged portions of Dr. Trenkle's testimony established the severe harm caused to Unique, who was in Brown's constant care at all relevant times. Further, Brown testified he lied in his various versions of the incident. Therefore, it is not reasonably probable a different result would have been obtained had the trial court excluded the challenged portions of Dr. Trenkle's testimony.
Brown contends he received ineffective assistance of counsel, because his trial counsel did not object to Dr. Trenkle's testimony on constitutional grounds. This claim lacks merit in light of our conclusion Brown has failed to establish any merit to his substantive claims or prejudice from the alleged error. (People v. Price (1991) 1 Cal.4th 324, 440.) A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings. (People v. Fosselman (1983) 33 Cal.3d 572, 584; see also Strickland v. Washington (1984)466 U.S. 668, 687-696 (Strickland).) It is not necessary to determine whether counsel's challenged action was professionally unreasonable in every case, however. If the reviewing court can resolve the ineffective assistance claim by first deciding whether there is a reasonable probability that the outcome would have been different absent counsel's challenged actions or omissions — it may do so. (Strickland, at p. 697.) Because Brown has not satisfied the second part of the test, we need not consider whether trial counsel's performance was professionally unreasonable.
III.
Brown contends he was denied his constitutional rights of due process and a fair trial because the jury was permitted to hear a recording of his discussion with detectives about his amenability to taking a polygraph test. Recognizing that he failed to object to the admission of the recording, Brown alternatively contends he received ineffective assistance of counsel. The People contend the issue is waived and, alternatively, any error was harmless.
Absent a stipulation by the parties, Evidence Code section 351.1 prohibits the introduction of polygraph evidence in a criminal case. This exclusion extends beyond the results of a polygraph test to also prohibit "any reference to an offer to take, failure to take, or taking of a polygraph examination." (Evid. Code, § 351.1.) The admission of evidence of polygraph examinations is barred because of concerns that the jury will assign too much credence to the results of those examinations. (People v. Kegler (1987) 197 Cal.App.3d 72, 89; People v. Basuta (2001) 94 Cal.App.4th 370, 390.)
At the close of Brown's February 6, 2007 interview, this exchange took place:
"[Detective:] Here's what we're going to do, I think we have beat this thing to death tonight dude.
"Brown: Okay[.]
"[Detective] We have beat it to death. All right, I do appreciate you being cooperative enough now to at least to explain more of the event that had occurred. I'm not necessarily certain that you told us everything. I want to believe that dude but I really don't. So here is the deal, um, it's late tonight, it is already it's 7:30 right now. Um, one of the ways that we sometimes um are able [to] gauge someone's truthfulness is to take a polygraph test. Remember that[.]
"Brown: Yeah, lie detector[.]
"[Detective:] Lie detector[.]
"Brown: Okay[.]
"[Detective:] What do you think about that?
"Brown: That's, that's good[.]
"[Detective:] All right, so maybe um if all the stars line up maybe we will do that tomorrow, tomorrow night[.]
"Brown: Okay.
[¶]... [¶]...
"[Detective:] Go over and get you to bed, let you sit on this tonight and tomorrow we'll come revisit that. Okay[.]"
It is undisputed that the detective's reference to the polygraph test was improper under Evidence Code section 351.1. We must thus determine whether the error was prejudicial. An error in admission of evidence is prejudicial only if it is reasonably probable the defendant would have obtained a more favorable outcome had it not occurred. (Watson, supra, 46 Cal.2d at p. 836; People v. Schiers (1971) 19 Cal.App.3d 102, 109.) We conclude that any error was harmless. The only reference to the polygraph test was in the recording. Neither the prosecutor nor any witness mentioned it during trial. In the context of Brown's interview with the detectives which lasted approximately three and a half hours, the reference was fleeting. In particular, the detective stated "if all the stars line up maybe we will do that tomorrow." Because there was nothing from which the jury could infer any result of such a test, we cannot say the brief reference likely affected its deliberations. Moreover, in light of the overwhelming evidence of Brown's guilt as noted, it is not reasonably probable that Brown would have received a different outcome absent the reference to the polygraph test. Therefore, we conclude Brown suffered no prejudice from the admission of the unredacted recording into evidence.
Brown contends his trial counsel provided ineffective assistance of counsel by not redacting the transcript of Brown's interview with the detectives to eliminate the polygraph reference. Having concluded that Brown has not shown prejudice arising from admission of the unredacted recording of the interview, we need not address the first prong of the Strickland test, and the contention fails. (Strickland, supra, 466 U.S. 668.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. McINTYRE, J.
"To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant had care or custody of a child who was under the age of eight; 2. The defendant did an act that by its nature would directly and probably result in the application of force to the child; 3. The defendant did that act willfully; 4. The force used was likely to produce great bodily injury; 5. When the defendant acted he was aware of facts that it would lead a reasonable person to realize that his act by its nature would directly and probably result in great bodily injury to the child."