Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05HF1371, Frank F. Fasel, Judge.
Quin Denvir for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
I. INTRODUCTION
This tragic case arises out of the death of nine-month-old Nicole Jeong while in the care of her babysitter, Sunyhe Choi, in the late afternoon of August 1, 2005. Choi was subsequently convicted of second degree murder and assault on a child with force likely to produce great bodily injury resulting in death. Choi was sentenced to 25 years to life for the assault charge and 15 years for the second degree murder, albeit the latter sentence was stayed since it arose out of the same facts as the assault charge. (See Pen. Code, § 654.)
There is no question, as we shall soon see, that there was substantial evidence to support the conviction. Dr. Joseph Halka, a contract forensic pathologist who performed the autopsy on Nicole the day after her death, testified that he found six or seven separate points of bleeding on Nicole’s head. Those points of bleeding, he opined, represented “multi-focal” blunt force trauma that could not have been sustained accidentally. That is, Nicole must have been beaten about the head.
This appeal, however, does not challenge the sufficiency of the evidence, but raises only issues of procedure bearing on whether the jury’s verdict might have been tainted by prejudicial error or abuse of discretion. While we reverse because of prejudicial error as to one set of issues, we deal with all issues raised by the babysitter’s appellate counsel for the benefit of the trial court. (See Code Civ. Proc., § 43.) Here are our determinations:
(1) There was no abuse of discretion under Evidence Code section 352 in allowing the jury to hear evidence of bleeding in the child’s vaginal area and in her diaper.
(2) There was no abuse of discretion under Evidence Code section 352 in allowing the jury to hear evidence of a 911 call made by the babysitter’s husband in which he was heard to say to his wife, “what have you done?”
(3) However, foundation objections were not correctly sustained to several questions of the babysitter’s expert witnesses. Those questions, had they been answered, might have explained how a medical condition which the experts believed made the child a bleeder could have caused the several contusions on the child’s head without non-accidental blunt force trauma. Foundation objections were also incorrectly sustained to several questions that would have elicited additional support for the idea that the child was a bleeder in the first place.
(4) Foundation objections were also incorrectly sustained to a series of no less than five other questions put to defense experts.
(5) The evidentiary errors in sustaining those foundation objections were not harmless, because those questions, particularly the ones that offered a potential explanation of the several head contusions independent of blunt force trauma, went to the very core of the defense’s case.
(6) There was no error in allowing evidence from a defense expert character witness that revealed that the babysitter was financially stressed and personally frustrated.
(7) There was no ineffective assistance of trial defense counsel in his withdrawal of jury instruction CALCRIM number 303.
(8) There was ineffective assistance of trial defense counsel in withdrawing CALCRIM number 360, because that jury instruction could only have helped the defense ameliorate the damage created by the financial stress and frustration evidence correctly admitted per conclusion (6) above, but that particular ineffective assistance was harmless since the financial stress and frustration evidence could easily be exploited by the prosecution even with the instruction.
(9) There was no abuse of discretion by the trial court in denying a motion for new trial based on the alleged juror misconduct of not admitting an insufficient capacity to understand English.
(10) It was error for the trial judge to use the fact that the defendant denied her guilt as an aggravating factor in his assessment as to whether to give the defendant probation.
(11) There was no prejudicial cumulative effect to the items (vaginal bleeding, the 911 call, and the autopsy photos) allowed into evidence over Evidence Code section 352 objections.
(12) However, the combined effect of the numerous incorrectly sustained foundation objections did have the effect of denying the defendant a fair trial, particularly in light of the apparent use of at least one of the autopsy photos in closing argument for no other purpose than to inflame the jury’s emotions against the defendant.
Given that the court’s judgment in this case is the product of three separate opinions by members of the panel, the “we” in this “lead” opinion shifts depending on the issue. (See Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1211, fn. 12, quoting Bedsworth, What I Saw and Heard (1994) at p. 94, discussing Arizona v. Fulminante (1991) 499 U.S. 279.) For the benefit of the trial court and attorneys on remand, here are the views of the justices on the various issues in this case raised in the lead opinion:
II. FACTS
A. Uncontroverted Events
The following narrative presents events that were not controverted at trial: On August 1, sometime before 9 a.m., Kyung Hui Min dropped off her daughter, Nicole, at Choi’s Irvine apartment for babysitting. While the Min family also had a four-year-old son, Matthew, he was not dropped off because he was attending a church preschool. And in fact, Min did not allow Matthew to be alone with Nicole without supervision.
That afternoon, around 3:40 p.m., Choi’s husband, Charles Hwang, called 911 from Choi’s apartment in regard to a baby who was not breathing. Hwang spoke to Choi while the call was being transferred by the 911 operator. His comments were recorded. “Hey Sunyhe, be alert right now” and “Sunyhe, don’t leave the child like that. Sunyhe, how did this happen? How -- what did you do?”
Paramedics soon arrived. The door was locked, and it took Charles about a minute to answer the door. They found Nicole lying on a blanket on the floor of a bedroom. She did not appear to be breathing. There was a red mark on her forehead, perhaps the size of a quarter and eye-shaped.
Within eight minutes the ambulance arrived at Irvine Regional Medical Center. Doctors tried to revive Nicole by inserting interosseous lines into parts of her body to administer resuscitation drugs. After trying for about 50 minutes to revive her, doctors pronounced Nicole dead at 4:54 p.m.
B. Uncontroverted Medical Events
Both the prosecution and defense presented expert medical opinions as to the cause of Nicole’s death. However, each expert gave his or her opinion against the background of certain medical or empirical “facts” that were accepted as facts by each expert. Our review of the record shows these facts to be uncontroverted:
(1) On July 25, a week before she died, Nicole -- again in the care of Choi -- sustained an injury to her forehead and a scratch over her left eye, which required Min to bring Nicole to the emergency room of the Irvine Medical Center.
(2) On the way to the hospital on August 1, paramedics observed that a red mark on Nicole’s forehead expanded in size.
(3) Upon arriving at the hospital on August 1, there were at least three distinct areas of underlying hemorrhaging beneath Nicole’s scalp. (There was a dispute over whether there were more than three distinct areas, however.)
(4) Blood was found in Nicole’s diaper, and the autopsy showed blood in the vagina. However, everyone agreed there was no tear or abrasion in the vaginal area, or lacerations in the exterior of the vagina or anus.
(5) When Nicole arrived at the hospital on August 1, she had a temperature of 104.2 degrees.
(6) Nicole had vomited that afternoon. (Food material was found in her throat.)
(7) There was pseudoephedrine in Nicole’s blood, which showed that she was taking some kind of medication for congestion (apparently Sudafed) at the time of her death.
(8) There was no evidence of trauma in the retina or optic nerves.
Other medical facts, however, were disputed by the competing experts. These included: (1) the amount of bleeding sustained about and around the spinal column; (2) whether Nicole might have been suffering from an infection on the day of her death; (3) whether she had sustained an actual head fracture before August 1; (4) the amount of bleeding from the intravenous lines put into Nicole’s arms and legs during her attempted resuscitation, and, of course, (5) the actual cause of death.
A word at the outset on the experts. The prosecution’s expert was Dr. Joseph Halka, as mentioned, a contract forensic pathologist. The defense presented two experts, Dr. Michelle Simon, a neuropathologist and pediatrician, and Dr. Ronald Gabriel, a child neurologist. There is no dispute in this appeal over any expert’s qualifications.
There was, at trial, considerable cross-examination in which each side tried to denigrate the qualifications of the other side’s expert and by implication build up the qualifications of its own, e.g., which expert had done the most autopsies, who had published more, and whose particular field was most suited to the task of ascertaining the cause of Nicole’s death.
C. Medical Terminology
The experts used a number of medical terms, which we now explain. The “occipital” is the back part of the head or brain. The “parietal” is the side part (toward the back), and the “frontal” part is self-explanatory. The jury was also told about the difference between an “abrasion, ” which is bruise where the surface of the skin is lost, and a “contusion, ” where the surface of the skin remains intact.
The jury was also given an overview of the layers of tissue that cover the human brain. First there is the skin. Next there is a membrane over the bone called the aponeurosis. Then comes the bone itself. Next there is the inner lining of the bone, called “dura matter.” After that there is a layer of fine blood vessels that resemble a spider web, hence the layer is called “arachnoid. Finally there is the brain proper.
Certain basic medical points were also undisputed: For example, blood vessels are likely to begin to leak at the time of death. The process begins when the heart stops pumping, blood then begins to stagnate in the vessels and over a period of time the vessels start to leak. The jury also learned that as a hemorrhage (bleeding) ages, it turns darker. Hence a bright red hemorrhage would indicate a recent injury.
III. THE PROSECUTION’S MEDICAL CASE
As noted, the centerpiece of the prosecution’s case was the expert testimony of Dr. Joseph Halka, a contract forensic pathologist who regularly does work for the Orange County District Attorney’s Office. He conducted an autopsy on Nicole at 9:30 in the morning on August 2, the day after Nicole died. His testimony covered several discrete topics:
A. Head Trauma
Dr. Halka noted that Nicole had a deep abrasion across her forehead that was three by one inches. He further found six separate injuries on Nicole’s scalp, which he testified were not connected and separate, hence he opined they were the result of “multi-focal” trauma that could not have been sustained accidentally. More particularly, the six areas were found in the subaponeurosis membrane (the membrane that separates the scalp from the skull). He cataloged the six areas as occurring on the left frontal, left occipital, right parietal, left parietal, mid occipital and right occipital regions. The bleeding was the result of popped blood vessels and could have been the result of contact with a crib, a wood piece of furniture, a headboard or a footboard. He acknowledged on recross examination that another child could have inflicted the injuries with a toy as well.
Based on these six areas of discrete hemorrhaging, Dr. Halka opined that the overall cause of Nicole’s death was brain injury from “Multi-focal non-accidental trauma.” That is, Nicole had been beaten about the head.
B. The Old Head Injury
Dr. Halka recognized that he also found a “remote” -- meaning old -- hemorrhage. In fact, that old wound had been found in the microscopic report on the subject of “re-bleeding.” At one point he characterized the old injury as an “overlapping” one. Dr. Halka’s examination of x-rays, however, revealed no evidence of any previous fractures.
Thus, since Nicole had survived at least a week, Dr. Halka said the previous injury did not contribute to the cause of death. Dr. Halka maintained, during cross-examination, that Nicole had no symptoms after the prior injury and therefore he properly discounted that injury as not contributing to her death. The old injury was simply “not relevant.”
Moreover, Dr. Halka found “new” hemorrhages, which, he explained, were new because of an absence of chronic inflammatory response. Such a response shows a “remote” injury. The six areas of hemorrhaging he found were indeed very new: They showed an inflammatory response indicating they had happened within 30 minutes and 2 hours of death. Furthermore, one prior injury could not have caused the six separate areas of bleeding. And a 10-inch fall onto a soft surface, as might have happened on August 1, could not have caused the kind of injuries Nicole sustained.
On the other hand, as he admitted on cross-examination, Dr. Halka found no “herniation” in Nicole’s brain. Herniation is defined as a “protrusion of the brain into an abnormal location” as might have happened if there had been a battering. Dr. Halka, stressed, however, that the absence of herniation is “often the case in children” anyway.
C. No Eye Trauma
Dr. Halka recognized that trauma in the retina or optic nerves is associated with shaken baby syndrome. It is very common to see retinal hemorrhage and optic nerve sheath hemorrhage when there is a shaken baby. However, Dr. Halka found no evidence of such trauma in Nicole’s case. He admitted this absence “limits the kind of trauma that would be involved.”
D. Spinal Bleeding
Dr. Halka testified that the back of Nicole’s spinal column showed diffuse hemorrhaging. He pointed out that one would expect to find blood in the spinal column if there had been blunt force trauma to the head.
E. 104.2 Degrees and Possible Infection
In his testimony Dr. Halka twice acknowledged that Nicole arrived at the hospital with a 104.2 degree temperature. He noted, however, that injuries or trauma to the brain can cause such a temperature.
In that regard, Dr. Halka found no preexisting natural disease with regard to Nicole’s heart, throat area or respiratory tract. There was no evidence of a lung infection or pneumonia. And in fact, on cross-examination, he ruled out the idea that Nicole was suffering from an infection categorically. He further ruled out the idea, at least based on his autopsy, of any sort of febrile (convulsive) seizure as a cause of death.
On the other hand, Dr. Halka admitted the presence of pseudoephedrine in Nicole’s blood, which he said showed she was taking “some kind of medication for congestion.” And, on cross-examination, he admitted he found bleeding in lung and bronchial passages.
F. Blood in the Lower Abdomen and Genital Areas
As noted, there was blood in Nicole’s diaper when she was brought to the hospital. While Dr. Halka found no direct trauma to the vaginal organs, he found diffuse hemorrhaging on the front and back of the uterus. In fact, he found blood in the upper portion of the uterus and in the vagina. And while Dr. Halka found no excessive gastrointestinal bleeding, there was bleeding “localized” to “the anal ring.”
Dr. Halka testified that the bleeding found in the urethra or anal areas could have been caused by blunt force trauma. On the other hand, he determined there was no tear or abrasion in the vaginal area, or any obvious lacerations in the exterior vagina or anus.
G. Disseminated Intravascular Coagulation
Anticipating future testimony from defense experts, the prosecutor asked Dr. Halka whether “disseminated intravascular coagulation” -- which everyone referred to as “DIC, ” so we will follow suit -- could have caused Nicole’s death. He found no evidence to support a DIC finding.
All acronyms in the testimony listed in this opinion will be given without intervening periods, hence “DIC, ” not “D.I.C.”
A word on DIC at this juncture. We quote Dr. Halka’s definition in the margin, which, to be fair, certainly only hinted to the jury why it would be the primary theory of the defense. We will set forth a more comprehensive explanation in our exposition of the evidence of the defense experts. For the moment, we will attempt this lay definition of DIC: If a person has DIC, it means that his or her blood’s ability to clot has been used up, and that person is thus susceptible to being what is commonly referred to as a “bleeder.”
“Q. What is DIC? “A. Disseminated intravascular coagulation.
There is a “forensic” aspect to DIC that should be noted here (and will be further explained below): A doctor cannot determine whether someone has DIC after death; as Dr. Halka testified, any test must be taken while the patient is still alive. The problem is that upon death blood loses its coagulation factor, so it can no longer clot anyway.
Dr. Halka admitted on cross-examination that a DIC test could have been performed while Nicole was still alive, but wasn’t. Dr. Halka, for example, certainly could not have directly determined whether Nicole suffered from DIC in the course of his autopsy more than 12 hours after her death because any culture obtained after 12 hours of death is misleading as a result of body decomposition. Testing for DIC would certainly not have been within the purview of his job as he undertook it the morning after Nicole’s death.
In any event, during cross-examination Dr. Halka disagreed with the idea that one would find more hemorrhaging from head trauma in an individual with DIC than one would find in an individual without it -- that was “not necessarily” so.
And, to return to his main opinion, Dr. Halka further maintained that in Nicole’s case “DIC is totally irrelevant” because there was no possibility of seeing the type of injuries Nicole sustained without blunt force trauma.
H. Autopsy Photos
During the course of explaining his testimony, Dr. Halka referred to a number of photographs from Nicole’s autopsy. These included photographs of “areas of subaponeurotic hemorrhage at the base of the skull” (Exhibit 39B) and a matching hemorrhage at the back of the skull (Exhibit 39C). Dr. Halka testified that if there had been no blunt force trauma, one would not have seen the blood shown in Exhibit 39C.
Other photos included:
(1) a view from the top of the brain, both hemispheres, which showed parallel lines of subarachnoid hemorrhage following along the membrane that separates both sides of the brain, and hemorrhages on the curvature of the skull to the left of the midline and to the back of the skull. (Exhibit 39D.)
(2) a photo of widespread bleeding in the spinal column area (Exhibit 39I).
(3) a photo of Nicole’s brain. (Exhibit 39F).
Needless to say, these photos are not pleasant to look at, and the fact that they were shown to the jury at all (in some cases -- but certainly not all cases -- over defense objections) is an issue which we address in more detail below.
IV. NONMEDICAL ASPECTS OF THE PROSECUTION’S CASE
A. Dr. Crinella’s Evidence
Remarkably, a significant part of the prosecution’s best nonmedical evidence came from a defense witness, Dr. Francis Crinella, a neuropsychologist who was called to give character evidence of Choi under section 1102 of the Evidence Code. The defense’s object in calling Dr. Crinella was to show that, having evaluated Choi, Dr. Crinella had come to the conclusion that Choi was a mild-mannered person who would never hurt a child.
Evidence Code section 1102 provides:
Dr. Crinella reviewed the police reports, interviewed friends and family, and administered three standardized psychological tests. A Korean-speaking psychologist helped him with two of these tests (the verbal ones), the Minnesota Multiphasic Personality Inventory (given in Korean and evaluated against norms based on a Korean population) and the classic Rorschach ink blot test. It was these tests that formed Dr. Crinella’s opinion that Choi was a loving, caring person who would never harm a child.
But, having performed such an evaluation, Dr. Crinella discovered a few things about Choi’s own psyche that were not necessarily so positive. On cross-examination, but without objection from defense counsel, Dr. Crinella told the jury that Choi was disillusioned with her marriage, saw her husband as weak and indecisive, felt trapped by her marriage, and had undertaken babysitting jobs because of family financial difficulties, with the added stress that her own child had eczema necessitating an exceptionally clean household.
(The absence of any objections by defense counsel to the questions eliciting that information, and the further absence of a request by defense counsel to have the jury be given limiting instructions about the information, forms an ineffective-assistance-of-counsel argument we address in part VIII. D. below.)
B. Statements Made by Choi in the Course of Three Police Interviews
After Nicole was taken to the hospital, an Irvine police officer, assisted by a sheriff’s deputy who spoke Korean, interviewed Choi. Choi told the officer that around 2:30 p.m. she had put Nicole down for a nap, then checked on her about one hour later and found she was not breathing. She then put Nicole down on a blanket in the bedroom, called her husband and asked him to come home and call 911. Everyone in the household had a cold, and Choi had not run the air conditioner on that August afternoon.
A second interview was conducted August 2, the day of the autopsy, also assisted by the same sheriff’s deputy who had helped the Irvine police officer the evening before. In this interview Choi mentioned that Nicole been put down for a nap around 9 a.m. and had vomited afterwards. Nicole was put down for a second nap around 2 p.m., but when Choi checked on her around 4 p.m., she found Nicole was not breathing. Choi said Nicole was lying on her stomach, face down and covered with a blanket.
A third interview took place that night, around 9:30 p.m. Choi (this time apparently with a different interpreter) said that Nicole was whiny and fussy. When she returned to check on Nicole after her second nap, Nicole put a sticker in her mouth. Choi tried to get the sticker out of her mouth, but Nicole kept crying and eventually vomited on her. Choi cleaned herself up and put Nicole down for a nap again. Then, when she checked up on Nicole around 4 p.m., she found Nicole not breathing, flipped her over to take a look at her, and then took her into the bathroom to put cold water on her face. Choi said she did not hit Nicole’s head when she moved the child into the bathroom, and did not recall seeing any bruises on Nicole.
About an hour into this third interview -- it would have been around 10:30 p.m. on the night of August 2 -- the detective asked Choi how Nicole’s injuries could have happened. Choi said that Nicole had fallen off a sofa and onto the floor that morning, before her feeding and her nap. When asked why she hadn’t mentioned the fall before, Choi said she wasn’t lying -- she just hadn’t told the police about it. Though Choi admitted that she could become annoyed when her own daughter was crying, she said she didn’t hit or do anything deliberately to hurt Nicole.
V. THE PROSECUTION’S CLOSING ARGUMENT
We first outline, by way of overview, the basic prosecution narrative as presented to the jury in closing argument: It was a hot afternoon, the apartment was stuffy and not air conditioned, Choi was frustrated with her life and marriage. Choi resented the financial necessity of having to babysit a child not her own. Then, sometime in the afternoon, Nicole vomited not only on herself, but on Choi. That was “the triggering event.” Choi snapped. She picked up Nicole and struck her “against the wall, the crib, the bedframe.” Thus, as the prosecutor told the jury, there was “no weapon.” There was “no gun or knife or bat. Because you don’t need that with a nine month old.”
A. Use of Photos
In his closing, the prosecutor showed the jury the “last photograph that was taken of Nicole when she was alive.” The point was to demonstrate how healthy Nicole was just before the events of August 1. He told the jury: “You don’t need expert testimony. You don’t need witnesses. You can look at that photograph and what you see is a happy, healthy, little girl.”
The prosecutor continued, developing the theme that the photo was Nicole’s own testimony of her demise: “There is no videotape in this case. There are no eyewitnesses. Nicole Jeong can’t get on that witness stand and tell you what was done to her by the defendant. The photographs and the medical testimony, Nicole is speaking to you through that. These six or seven injuries that the pathologist saw, the blood on my brain, that’s not from a slip and fall. She is talking to us from the grave and she is asking for justice.”
A few moments later, the prosecutor did more than show a pre-August 1 photo of a healthy Nicole. Without objection from the defense, the record appears to indicate that he showed a number of autopsy photos to the jury (though the exact exhibits he showed are not referenced). Here is the relevant portion of transcript: “This is the result of violent shaking. I apologize for showing you these photographs, and I know they are not pleasant to look at. But, this is the testimony of Nicole. This is the only way that she can tell you what this defendant did to her. And this is the result of violent shaking. Violent shaking of this child with the impact to the back, side and top of her head.”
In his rebuttal to the defense closing, the prosecutor returned to the theme of the necessity of showing the photos: “The reason that photographs were shown to you wasn’t because I wanted to. It is because justice demands that I do.” He continued: The before and after pictures were not shown “gratuitously, ” but “to show you, the fact finders in this case, what her daughter looked like when she dropped her off.... The only way that we can prove this case is by showing these things. If I didn’t have to, I wouldn’t.”
B. Rebuttal of Infection Theory
Turning to other medical testimony, the prosecutor emphasized that tests for bacterial meningitis “came up clear.” “Sniffles, ” he argued, “do not equal overwhelming infection.”
C. Rebuttal of DIC Theory
DIC causes bleeding. The prosecutor twice pointed to evidence that there was no excessive bleeding in the “six to seven puncture marks in the thigh” and the “puncture marks in the arms” which were created during the efforts to resuscitate Nicole in the ambulance. The prosecutor returned to that argument in his final rebuttal to the jury, again emphasizing that the idea that Nicole suffered from DIC had no support because there was “no excessive bleeding in the different areas. The arms, the groin, the legs.”
Another point made by the prosecutor, however, was that even if Nicole did have a DIC condition, that would not necessarily exonerate Choi. Apparently alluding to evidence put on by the defense (explained more below), he told the jury that a cause of DIC is blunt force trauma itself.
D. Emphasis on the Six Points of Head Injury
It is safe to say, however, that the strongest point of the prosecutor’s argument to the jury was the fact of six (maybe seven) separate areas of hemorrhaging on Nicole’s scalp.
In his main closing, the prosecutor focused on the argument that the nature of these injuries necessarily showed some sort of blunt force trauma: “The blunt force trauma that is inflicted on her head. And not just one area of the head. We have the front, the right side, the left side, the back and the top.”
And again: “This is elevated blood temperature, once again, all going back to one factor. Blunt force trauma to this little girl’s head. One thing that the DIC defense can’t take into account are the six to seven different areas of trauma. Once again, I submit to you you don’t need an expert for that. That’s common sense. That is absolute common sense.”
Elaborating, the prosecutor took on the idea that the injuries might have occurred without blunt force trauma: “Try to imagine this nine-month-old getting these injuries by herself.” And a few moments later: “Then we had Dr. Simon talk about how this injury might have magically appeared because of a prior injury. We have Dr. Halka emphatically, no. That doesn’t happen. It cannot happen.”
In his rebuttal, the prosecutor again returned to the necessity of a conclusion of blunt force trauma because of the six or seven separate areas of hemorrhaging: “And I have listened and waited for an explanation as to the six or seven points of injuries on that head and it never came.” It never came, because even with all the paid experts, the pediatrician, the neurologist, there is no other explanation for the seven focal points of trauma on that child.”
As we are about to see, the prosecutor made these comments after successfully objecting to questions that would have elicited such an explanation from the defense expert.
VI. THE DEFENSE’S MEDICAL CASE
Choi’s medical defense consisted of two expert witnesses, Dr. Michelle Simon, a neuropathologist and pediatrician, and Dr. Ronald Gabriel, a child neurologist.
A. Dr. Simon
1. The nature of DIC
The theme of Dr. Simon’s testimony was DIC. DIC, she explained, is a condition where the clotting ability of the blood is “used up” and “the blood can no longer clot.” Thus, if a person suffers from DIC, one would find “more extensive bleeding than you would expect from a minor episode of trauma” Blood could, for example, leak from a bruise and, moreover, could “leak out of blood vessels without there being any trauma, ” i.e., there would be “constant homeostasis.” Further, if a child with DIC received a “minor bump or minor blunt force trauma” there would be “more extensive” bleeding than would otherwise be the case.
2. Causes of DIC
Dr. Simon told the jury there are many reasons DIC can occur. As the prosecutor himself would later note (see above), DIC can “form from trauma.” (The idea is that the trauma changes the “acid base balance in the blood” as a result of “too little oxygen.”) DIC can also, said Dr. Simon, result from infection.
3. Evidence of DIC
a. testimony
And in that regard, Dr. Simon opined that Nicole definitely did have an infection on the day of her death. The infection was shown by Nicole’s vomiting and her reported fussiness, irritability, loss of appetite, and uncontrollable crying that day.
In addition to the evidence of an infection, Dr. Simon believed that DIC was shown by the “diffuse” hemorrhaging at various points in her body at the time of the autopsy. Then again, on cross-examination, Dr. Simon acknowledged that there was “no bleeding in the gastrointestinal tract.” And such bleeding “may” be a sign of DIC.
Dr. Simon, moreover, did not agree with Dr. Halka in minimizing the bleeding from the various intravenous puncture marks that were made in the course of trying to resuscitate Nicole. She noted an exhibit (Defense R) that showed there was bleeding from areas in the emergency room where Nicole was struck with some sort of needle. On cross-examination, though, Dr. Simon recognized that the emergency room doctor noted nine attempts to get blood out of Nicole’s “inguinal artery or vein” (which is “immediately adjacent to her pubis”) and that the doctor had found “no excessive bleeding” as he was trying to get blood out. Then again, Dr. Simon pointed out that bleeding would depend on how much Nicole’s heart was pumping at the time. Moreover, if the vessels were “tightly shut down, ” little bleeding would be expected. Later in cross-examination, Dr. Simon conceded there had been no excessive bleeding when Nicole got a shot from a pediatrician a week before her death.
A less ambiguous item of evidence in favor of DIC, however, was a picture of Nicole on the autopsy table; the picture showed her with a large bruise on her lower lip and tongue. Dr. Simon testified that the red mark on her mouth showed she was “developing DIC.” And she noted that the redness around the lip and tongue was the same intensity as the bruise on the forehead.
b. objections
There were, however, objections to a line of questions that sought to establish that the redness around Nicole’s mouth was of unusual intensity (hence perhaps indicative of DIC):
“Is the redness that you are seeing [around the mouth] there more extensive than you would ordinarily see when the tape is taken off?”
The prosecutor immediately objected for lack of foundation and speculation and the objection was sustained.
Defense counsel tried again to elicit testimony that the redness was unusual:
“In those patients where you have taken the tape off, was the redness as extensive as is seen there?”
Again the court sustained an objection, based this time on a lack of relevance as well as lack of foundation.
The trial judge, in an out-of-jury colloquy, may have had second thoughts about sustaining the objections, as he recognized he was elevating “form over substance.” The exact nature of the judge’s explanation for his ruling is a bit obscure; we simply quote it verbatim in the margin.
Said the judge: “But, I think that’s subject to cross-examination, that part of it. I don’t think -- it appears to the court that the foundation question is your follow-up question. And I don’t mean to put form over substance, Mr. Riddet [the defense attorney], but that’s kind of the way the court sees it.”
The defense counsel made one more attempt, this one more direct: “Based on your experience in other instances and what you see in this photograph, does the redness around the mouth suggest the onset of DIC?”
Again, an objection was sustained, this one simply for lack of foundation.
However, Dr. Simon was allowed to testify that DIC will cause a body to bleed more than it ordinarily would. But when Dr. Simon was shown a photograph of Nicole on the autopsy table and asked whether “something that bears on your opinion that DIC was present, ” the trial court overruled a foundation objection and Dr. Simon was allowed to answer yes (i.e., “something” did indeed “bear” on Dr. Simon’s opinion that DIC was present).
Dr. Simon was also allowed to testify that the age of the mark around Nicole’s mouth showed the mark occurred in the last hour of her life. Almost the same could be said about the redness on her forehead -- it had occurred in the last hour or two of her life.
4. Could DIC alone explain the six separate points of scalp bleeding?
At this point in Dr. Simon’s testimony, the defense turned to the general problem of whether DIC might have been the cause of conditions -- most notably the six areas of subaponeurotic hemorrhaging -- that might be mistaken for hemorrhaging caused by blunt force trauma. The general issue was raised in two questions, neither of which, however, Dr. Simon was allowed to answer.
First question: “If a pathologist were looking at bleeding that was found in the body is it possible for a pathologist to conclude that that was from trauma when, in fact, it was really from DIC?” The trial court sustained a foundation objection.
Second attempt: “Hypothetically, if you were doing an autopsy -- and, you say you have done some -- and you saw bleeding under the scalp in one of the spaces above the brain, and you were not aware that the patient had DIC, might you conclude, not being aware of the DIC, that the bleeding was caused by trauma?” Again the trial court sustained a foundation objection.
Defense counsel then retreated by asking Dr. Simon the more general question of whether there was any evidence Nicole had DIC in the first place, and Dr. Simon was allowed to answer yes.
And, about 25 pages worth of transcript later, Dr. Simon was allowed to answer this question: “If you were the autopsy forensic pathologist in this case and you saw evidence of massive bleeding in various different areas, would you be interested in exploring the issue of DIC?” (Italics added.) Her yes answer established that if she saw massive bleeding, she would be at least “interested” in exploring the question of DIC; hence the follow up made the point that Dr. Simon, under such circumstances, would want to know if the hospital had done a coagulation study. Echoing Dr. Halka, though, she said a coagulation test can only be done while the heart is still pumping.
5. The significance of the red mark on the forehead
Dr. Simon noted that the paramedics’ statements that the redness on Nicole’s forehead got larger during the ambulance ride to the hospital was consistent with DIC, i.e., there was an “exacerbation of bleeding into an area that was previously damaged.” She would reiterate the point on cross-examination as well.
The bruising on the forehead, plus the red marks on Nicole’s mouth and tongue, said Dr. Simon, were among the reasons for her diagnosis of DIC.
Did the paramedics put pressure on the forehead bruise? On cross-examination, Dr. Simon wondered how it was possible to stabilize Nicole without putting some pressure on her forehead even though the paramedics had testified they had not “put any pressure, any hand or any objects on her forehead.” Dr. Simon went so far as to say they “might be mistaken.” She further said that the cause of the abrasion on Nicole’s forehead was an extension of bleeding into a previously damaged area, the extension of bleeding being caused by DIC.
Moreover, on cross-examination, Dr. Simon conceded that even if a patient had DIC, “some type of traumatic event” was still needed “to get the blood going” to -- as she said -- “start the cascade of events that prevents coagulation.” And, such an event can be either compression or blunt force trauma. It takes “some force, ” after all, to get a re-bleed.
6. The blood in and around the genital area
Dr. Simon testified that the blood in Nicole’s vaginal area was bright red, and not clotted, hence indicating very recent onset. The bright red blood showed that Nicole was developing DIC. Dr. Simon reiterated Dr. Halka’s testimony that there was no evidence of manipulation or laceration in the vaginal area. And in fact, defense counsel then asked a series of questions all to establish that there had been no sexual abuse of Nicole.
Moreover, the blood in the genital area was an affirmative indicator that Nicole had DIC. Dr. Simon testified that such blood was “very likely” caused by the condition.
7. Infection and Vomiting
We have noted that the prosecution argued that Nicole was not suffering from any infection, or at least any substantial infection (“a few sniffles”). Dr. Simon’s testimony was to the contrary. Dr. Simon noted that a 104.2 degree temperature is an indication of possible infection, that Nicole had been reportedly fussy for several days prior to her death, and that she had vomited on the day of her death. (Cross-examination, however, elicited an acknowledgement that a week prior to her death Nicole’s temperature had been quite normal.)
So defense counsel confronted Dr. Simon with the fact of Dr. Halka’s previous testimony that ruled out infection. Dr. Simon was asked: Should Dr. Halka have “addressed the cause of death as having any relationship to infection?” The court, however, sustained the prosecution’s objection for lack of foundation and struck Dr. Simon’s “yes” answer. But then Dr. Simon was allowed to point out the fact of the omission, if not its significance, and testified that there was nothing “in Dr. Halka’s records which indicates that he addressed infection as a possible cause” [of death].”
Dr. Simon was also allowed to testify that she disagreed with Dr. Halka’s opinion to the effect that because there was no indication of infection in the liver, spleen or lungs, infection could be ruled out altogether. Not so, she said. For example, it can take up to 48 hours for an infection to be manifested in the body, and the lack of pneumonia only ruled out a “severe” infection in her lungs. Then again, on cross-examination, Dr. Simon said that the surface of Nicole’s lungs were mottled, presumably meaning that an infection had manifested itself.
Dr. Simon reiterated the fact that Nicole had vomited the day of her death, noting that material found in Nicole’s breathing tubes was consistent with throwing up.
In fact, toward the end of her testimony on direct, Dr. Simon said that Nicole’s vomiting showed “overwhelming infection.” On cross-examination, however, Dr. Simon appeared to back off somewhat from the statement: “I never said overwhelming infection in Nicole.”
On the same subject, Dr. Simon acknowledged that the vomiting might not necessarily have been the result of an infection. One of the reasons she might have thrown up, for example, was having put a sticker in her mouth and then choked on the sticker.
Dr. Simon also acknowledged on cross-examination that there was no evidence of meningitis or encephalitis.
8. Hemorrhaging in the scalp and brain area
Toward the end of her time on the stand in the defense’s case-in chief, the topic returned to the question of the submembrane bleeding. Dr. Simon said the bleeding by itself could not “in any way” have caused the death of Nicole, because what was found was a “very small amount of blood from both the photographs and the descriptions.” Dr. Simon reiterated Dr. Halka’s testimony about the absence of herniation (brain distortion) or brain swelling, though she would later agree on cross-examination that one might not see herniation (after say, a beating) in a child. Dr. Simon testified that both the subdural and the subarachnoid bleeding sustained by Nicole could not have caused her death. In fact, she said, there was not very much bleeding in the subarachnoid space at all.
Moreover, Dr. Simon testified that it was difficult to distinguish bleeding prior to death, from bleeding that could “occur from tearing blood vessels” in the course of removing the brain for examination.
She also testified that DIC made bleeding “on the surface of the brain just as likely as in any other organ in her body.”
The spinal column bleeding came up on cross-examination. Dr. Simon testified that the diffuse bleeding was not in the spinal column but in the “epidural space” around it. She also acknowledged that such bleeding “may be” consistent with violent shaking. On redirect examination, Dr. Simon opined that, based on the blood around the spinal cord, there was not sufficient evidence to show a shaken baby.
9. General summary of evidence of DIC and cause of death
Dr. Simon noted various items of information pointing to DIC: Nicole had diffuse bleeding in the “subarachnoid areas of the surface of her brain, ” blood in her lungs, blood in the serosal surface of her uterus and around the neck of the urethra, and -- and here is where we may note a direct disagreement between her testimony with Dr. Halka’s testimony -- there was blood dripping out of the intravenous puncture sites.
Dr. Simon opined as to several possible causes of death. One was something called “febrile seizure.” In such a seizure, “the electrical activity in the nervous system goes haywire and the child has a convulsion.”
Another possible cause of death was Nicole’s choking on her own vomit as she was covered with a blanket lying facedown, i.e., the death was from suffocation. And Dr. Simon certainly disagreed with Dr. Halka’s opinion that the cause of death was non-accidental blunt force trauma. Rather, there was a “very high probability that she had a febrile convulsion or unwitnessed seizure and stopped breathing, perhaps suffocating, or even vomited and gagged on the contents of her stomach and was unable to breathe.”
On cross-examination, Dr. Simon maintained there was “no evidence of repeated trauma.” When asked by the prosecutor if the “six foci area of injury to the scalp” constituted trauma, she responded, “I can’t answer your question the way you have asked it.” A few moments later, though, she conceded that to establish trauma to each area, there needed to be “contact” with it.
B. Dr. Gabriel
The other defense medical expert was Dr. Ronald Gabriel, a child neurologist.
1. prior fracture
a. prior brain damage
Dr. Gabriel had looked at a full CAT scan of Nicole and found blood both above and below the skull and inside the brain. He suggested that there was a possibility of a fracture and that Dr. Halka, in discounting the idea, had not looked “at the sutures specifically and addressed those specifically.”
Elaborating, Dr. Gabriel noted what he called the “coup-contra-coup” phenomenon, in which there may be bleeding on the opposite side of the brain from where it is struck. Thus, one might be hit on the front and bleed in the back of the brain. Dr. Gabriel found “old” blood in Nicole’s brain, which could have been anywhere from five to eight days old.
From this data, Dr. Gabriel opined that Nicole’s earlier fall from the week before had caused “major brain damage.” This damage made her susceptible to “minor injury” on a later date. Thus, on the day of her death, Nicole had an epileptic fit as a result of the fall about week before. A second fall (on the day of her death) precipitated that “unwitnessed seizure.” The seizure, plus a “high fever and a coagulation defect [apparently referring to DIC], contributed to her heart stopping.”
b. objection
A question put to Dr. Gabriel sought to elicit his opinion that Dr. Halka had not properly taken this prior injury into account in arriving at the opinion that death was caused by blunt force trauma: “And if you were doing an autopsy six days later from a prior injury, would you be interested in carefully reviewing the hospital records, the CAT scan and everything else about that prior injury before you offered an opinion on the cause of death?” A foundation objection prevented an answer.
2. Evidence of DIC
While the prosecutor initially objected (on foundation) to the question, “Tell the jury what the evidence [of DIC] is, ” defense counsel was able to get in the various reasons Dr. Gabriel thought Nicole suffered from DIC in a few more questions: There was “significant, but scattered bleeding in different body organs.” The paramedics saw an “expansion of bleeding underneath the forehead skin from the small area to quite a large area that you see on various pictures.” The expansion, Dr. Gabriel opined, was the “kind of cutaneous or skin dissemination that you see with a coagulation defect.”
Again it was pointed out to the jury that it is impossible to test for DIC after death. Dr. Gabriel suggested that an initial preoccupation in the emergency room with the possibility of child beating or sex abuse had diverted doctors from attempting any “coagulation studies.”
On cross-examination, confronted with the lack of bleeding from the various insertions into Nicole’s arm, Dr. Gabriel basically said that Nicole was “essentially gone” by then, so the lack of blood could be traced to “systolic cardiac arrest.” Then again, on cross-examination Dr. Gabriel also opined that DIC doesn’t necessarily manifest itself in all areas of the body; it can, for example, be “limited to the brain alone.”
3. Fever, infection, and vomiting
Dr. Gabriel was asked a question requiring him to confront Dr. Halka’s point that brain trauma could have caused Nicole’s high temperature. Dr. Gabriel said that one does not see “high temperatures like that due to brain trauma.” Indeed, “high temperatures like that are usually due to an infectious process, ” a process which “contributed to the coagulation defect.”
As to Nicole’s vomiting, on cross-examination Dr. Gabriel conceded that the vomiting might have resulted from swallowing a sticker as much as it had from preexisting injury or high temperature.
4. Head trauma
Dr. Gabriel “strongly” disagreed with Dr. Halka’s position that the cause of death was non-accidental head trauma. Preliminarily, he questioned Dr. Halka’s conclusion that there were six discrete contusions. Dr. Gabriel said that two or three of the areas “are really very close together and would be difficult to separate based on his [Dr. Halka’s] report.” Those areas were “so close together that I am not sure that you can make the distinction.”
He also questioned whether Dr. Halka had properly sent out “the spinal cord or the coverings of the spinal cord” for evaluation, thus preventing “a more detailed evaluation of the spinal cord.”
As to the forehead abrasion, he said, “I have never seen such an area widespread due to trauma alone.”
On cross-examination, however, Dr. Gabriel conceded the possibility of head trauma. When asked by the prosecutor: The “trauma that is seen on the scalp, that’s not the result of trauma?” he answered, “I think combination of trauma and the DIC.”
VII. THE DEFENSE’S CLOSING ARGUMENT
Much of the defense counsel’s closing argument centered on the basics of the prosecution’s burden of proof. In that regard, defense counsel complained to the jury about the prosecutor’s “from the grave” metaphor as well as his use of autopsy photos in closing argument. “Comments like Nicole is speaking from the grave, ” he said, “don’t really assist the prosecutor in meeting his burden.” Defense counsel went on about at least one photo: “The other day one of the few photographs that he put up on the monitor is without question the bloodiest photographs you could possibly see. It is the front area of the child which is completely open.”
In his closing, defense counsel emphasized the existence of the re-bleed of the old injury acknowledged by Dr. Halka, noted that Dr. Halka had discounted the 104.2 degree fever, and stressed Dr. Halka’s continual connection with the district attorney’s office.
As had his medical experts, defense counsel tried to turn the presence of blood in the diaper and in the genital area into an advantage, pointing out that it was consistent with developing DIC.
Defense counsel also emphasized the fever, noting that DIC “can be brought on by fever” and that Nicole’s father had said he believed his “child had had a fever for several days.”
VIII. ISSUES ON APPEAL
The jury deliberated for less than four hours and returned guilty verdicts on both charges.
On appeal, Choi presents eight discrete arguments (or presents at least eight discrete subheadings), which may be grouped into these categories:
(A) Issues centered on Evidence Code section 352, i.e., whether certain prosecution evidence was so disproportionately prejudicial to its probity that it was an abuse of discretion to admit it. Two such items of evidence are claimed to fall into this category: (1) Evidence of the blood found in Nicole’s vaginal area and (2) evidence of Choi’s husband’s statements to her during the 911 call.
(B) Issues centered on the trial court’s sustaining objections to various questions of Choi’s experts.
(C) A corollary to (A) above involves the prosecutor’s use of photos. These include “endearing” pre-injury photos as well as the autopsy photos. Technically, this argument is not framed as a 352-abuse-of-discretion point. Rather the argument is that it was a deprivation of due process for the prosecutor to have shown the photos at all. We divide these issues into two parts: (1) Use of photos as part of the prosecution’s presentation of evidence and (2) use of photos in the prosecution’s closing argument.
All undesignated references to “352” in this opinion are to the Evidence Code.
(D) Issues centered on the admission of incriminating nonmedical evidence against Choi, specifically whether evidence from her own psychologist to the effect that she was frustrated and unhappy in her marriage, should have been excluded. A corollary issue is whether her retained defense counsel rendered ineffective assistance by failing to request jury instructions that would have ameliorated the damage done by the admission of the psychologist’s evidence.
(E) The possibility that one juror did not have sufficient knowledge of the English language to have served as a juror.
(F) Issues centered on Choi’s putative lack of remorse as they relate to sentencing.
(G) The prejudicial cumulative effect of any arguably non-prejudicial errors made by the trial court as regards the admission of evidence.
We will address these issues in the order listed above.
A. The 352 Issues
Some preliminary words on Evidence Code section 352 are now in order. As our high court said in People v. Karis (1988) 46 Cal.3d 612, 638 (Karis), “‘The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’” (Id. at p. 638, italics added.) That is, undue prejudice is itself a function of the relevance of the probativeness of the evidence.
A corollary of the idea that section 352 applies to evidence having “very little effect on the issues” is that courts must be careful to distinguish merely damaging evidence from unduly prejudicial evidence. (Karis, supra, 46 Cal.3d at p. 638 [“‘In applying section 352, ‘prejudicial’ is not synonymous with “damaging”‘“].)
The judicial balancing between probativeness and undue prejudice under section 352 must therefore, if anything, reflect a slight bias in favor of admissibility. As our Supreme Court has put it, the prejudice must substantially outweigh the probativeness before there is any abuse of discretion in admitting the evidence. (People v. Doolin (2009) 45 Cal.4th 390, 439 [“‘Unless the dangers of undue prejudice, confusion, or time consumption ‘substantially outweigh’ the probative value of relevant evidence, a section 352 objection should fail.’”].) With these principles in mind, let us examine the two main section 352 issues, the vaginal blood and the 911 call.
1. Blood in the vaginal area
The defense tried, by virtue of a motion in limine, to have references to blood in Nicole’s vaginal and lower abdominal areas excluded from the evidence altogether. The trial court denied the motion. We conclude that denial cannot be called an abuse of discretion.
The vaginal blood was highly relevant. Indeed, relevant to both sides. Since the blood could, as Dr. Halka testified, have been the result of blunt force trauma, it went directly to the prosecution’s theory that Nicole had been beaten. And, while the prospect of spanking was not specifically raised by the prosecution, it is hard to see how the jury could avoid at least some thought of that natural possibility.
Moreover, in any event, since the vaginal blood could have been the result of blunt force trauma, a reasonable jury could find in that blood corroboration of the prosecution’s main theory that Nicole was literally picked up and knocked against some hard surface, such as a footboard or backboard, resulting in bleeding in diverse areas of Nicole’s body. The blood was also highly relevant to the defense’s theory, since the vaginal and urethral bleeding also corroborated the proposition that Nicole suffered from DIC.
To be sure, even the hint of sexual abuse in a case such as this one must be viewed as highly prejudicial. But the specter of sexual abuse was clearly minimized in the context in which it was presented in this case, and particularly when one steps back and views the evidence as a whole: The prosecution went out of its way to establish that the bleeding did not relate to sexual abuse and, to credit the prosecutor, he did not mention sexual abuse in his closing.
Moreover, the blood in the diaper was one of those medical facts -- like ephedrine in the blood, bleeding around the spinal column, the increase in size of the red mark on Nicole’s forehead as she went to the hospital, and the subaponeurotic bleeding --that each side had to explain in order to present a coherent picture of what might have happened. To have excluded the vaginal blood would have been to, in essence, distort the empirical data that formed the very heart of the case. Thus, under a test of prejudice substantially outweighing its probity, the trial court’s decision fits within the parameters of reason.
2. The 911 call
In contrast to the highly relevant nature of the evidence of the vaginal blood, the 911 call seems of marginal relevance. The statements made by Choi’s husband to her during the wait -- we quote them now again -- seem both ambiguous, and borderline innocuous: “Hey, Sunyhe, be alert right now” and “Sunyhe, don’t leave the child like that. Sunyhe, how did this happen? How -- what did you do?”
In a medical emergency involving the care of a child, even under even the most innocent of circumstances, it is perfectly natural for one spouse to wonder what the other had “done” to allow it to happen. We note that nothing on the tape was directly incriminating, except maybe the sense that Choi was not doing something to the “child” in leaving the child in an undescribed position (“like that”). To construe the 911 call as unduly prejudicial, one must read into the call much more than was there: namely, some sort of history of child abuse or neglect on Choi’s part that predisposed her husband to blame his wife and assume she had affirmatively caused the problem. But words to that effect aren’t there, and we cannot assume that the jury unfairly read some sort of predisposition to child abuse into them.
As the issue comes to us, then, the problem with Choi’s argument concerning the 911 call is that it boils down to marginal relevance being pitted against marginal prejudice. Nothing in the recorded words, for example, could in the longest stretch of the imagination constitute substantial evidence of Choi’s guilt. At most one gathers a vague sense that Choi’s husband tended to the immediately judgmental side of things.
To be sure, the 911 call, because of its marginal relevance, presents a closer issue than the blood in the diaper. Nevertheless, since as a reviewing court we test section 352 issues on an abuse of discretion standard, again we cannot say that any prejudice was “undue” or substantially outweighed any hypothetical probative effect.
B. The Foundation Objections to the Defense Expert Evidence
Preliminarily, it must be noted that the questions to which the prosecution objected were put to expert witnesses, and there was never any dispute about the qualifications of those experts. Moreover, most of those questions were classic “hypothetical” questions asked of an expert. The questions were objected to based on lack of foundation. Our task, then, is to determine whether the hypotheticals were, as our high court put it in People v. Richardson (2008) 43 Cal.4th 959, 1008, “‘rooted in facts shown by the evidence.’” We examine each question individually.
1. The question going to possible pathologist mistake concerning bleeding in the body
The question was: “If a pathologist were looking at bleeding that was found in the body, is it possible for a pathologist to conclude that that was from trauma when, in fact, it was really from D.I.C.?”
The Attorney General posits that the lack of foundation objection was properly sustained -- and here we quote the Respondent’s brief -- “because defense counsel had not established that the bleeding was in fact caused by D.I.C.” (Resp. br. at p. 56.) No other ground of justification for the objection is offered.
On this point, we cannot agree with the Attorney General. Dr. Halka’s own testimony established that a DIC test had to be undertaken while Nicole was still alive, and no such test was undertaken. Indeed, if there is one point of medical evidence that was uncontroverted in this case, it was that it was impossible to definitely ascertain whether Nicole suffered from DIC at trial, because no blood samples were taken while her heart was still bleeding.
To require, then, that the defense establish that Nicole’s bleeding was -- to use the Attorney General’s phrase -- “in fact” caused by DIC was to impose an impossible foundational burden on the defense. The burden amounted to what is commonly known as a “Catch-22.” That is, the defense could not show that Dr. Halka might be mistaken in his opinion that the six contusions were caused by blunt force trauma unless it had definitively established DIC, but it could not definitively establish DIC because of events beyond the defense’s control (the hospital’s failure to obtain a blood sample while Nicole’s heart was still bleeding). The best it could do was present its case that Nicole probably suffered from DIC. And indeed, the probability of Nicole’s bleeding having been caused by DIC formed the core of the defense case.
We note, though, that by the time that the pathology question was asked, Dr. Simon had already recounted much of the evidence on which she would later opine that Nicole did suffer from DIC, including: leakage from blood vessels, the fact that DIC can be caused by trauma or infection, as well as Nicole’s “generalized fussiness, irritability, loss of appetite, lethargy, crying and inability to sleep.”
In People v. Sims (1993) 5 Cal.4th 405, 436, footnote 6, the Supreme Court explained the relevant parameters for a hypothetical question asked of an expert: “Appellant’s counsel appears to argue that a hypothetical question posed by a prosecutor to his or her expert witness, and the witness’s opinion given in response to that question, must be based solely upon the evidence adduced by the prosecution during its case-in-chief on direct examination of the witness. A hypothetical question, however, may be ‘framed upon any theory which can be deduced’ from any evidence properly admitted at trial, including the assumption of ‘any facts within the limits of the evidence, ’ and a prosecutor may elicit an expert opinion by employing a hypothetical based upon such evidence. (3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1848 at p. 1804.).” (Italics added.)
While the Sims statement was framed in terms of a prosecutor’s evidence, we can see no reason for applying a different and more stringent rule against the defense.
And indeed, if one stops to think about it, one can think of several reasons why a more stringent rule should not be imposed on the defense, e.g., it might be unconstitutional as an effective lessening of the prosecution’s burden of proof.
To the same effect is the more recent case of People v. Boyette (2002) 29 Cal.4th 381, where the defendant contended the prosecutor committed misconduct by asking his own expert “a series of hypothetical questions based on facts not in evidence.” (Id. at p. 448.) The idea was that in doing so, the prosecutor surreptitiously placed information not before the jury into evidence. The Supreme Court, however, rejected the argument, noting, after quoting Sims as we have just done, that: “The hypothetical statement of facts posed to an expert witness need not be limited to evidence already admitted into evidence, ‘so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions.’” (Id. at p. 449, italics added.)
The qualification to the rule that a hypothetical question “need not be limited to evidence already admitted into evidence” is, of course, that “‘any material that forms the basis of an expert’s opinion testimony must be reliable.’” (Boyette, supra, 29 Cal.4th at p. 449.) However, there is no challenge here to the reliability of the fundamentals of Dr. Simon’s opinion that Nicole did indeed suffer from DIC: Among the medical “facts” accepted by both sides were: diffuse bleeding in various areas of the body, a 104.2 degree temperature, the fall and trip to the hospital a week before, the vomiting, and (ironically enough) the blood in the diaper. That the prosecution might say all these facts did not necessarily establish DIC is irrelevant; these facts might also have established DIC. The discrepancy would, as trial judges often say, “go to the weight” of the expert evidence.
It was therefore error to sustain the objection to the question that what the pathologist ascribed to trauma might also have been attributable to DIC.
2. The question going to possible pathologist mistake in regard to bleeding under the scalp
The second question in this line, also the subject of a successful foundation objection, was specifically directed at the possibility that the bleeding under the scalp might have been a manifestation of DIC rather than trauma: “Q. Hypothetically, if you were doing an autopsy -- and, you say you have done some -- and you saw bleeding under the scalp in one of the spaces above the brain, and you were not aware that the patient had DIC, might you conclude, not being aware of the DIC, that the bleeding was caused by trauma?”
Again, the only ground to support the sustaining of the objection offered by the Attorney General was “defense counsel had not established that the patient in fact had D.I.C.”
For reasons stated above, we cannot accept that ground. The presence of DIC in Nicole could readily have been deduced from evidence already admitted -- a good deal more evidence, we might add, than the “any evidence” standard that both the Sims and Boyette cases said would suffice.
3. The question concerning a possible idée fixe on Dr. Halka’s part to ignore the effects of the prior injury
A question to Dr. Gabriel was: “And if you were doing an autopsy six days later from a prior injury, would you be interested in carefully reviewing the hospital records, the CAT scan and everything else about that prior injury before you offered an opinion on the cause of death?” The Attorney General argues that the foundation objection was properly sustained because “defense counsel had not established that the autopsy was conducted because of the prior injury.” (Resp. br. at p. 63)
The Attorney General’s argument suffers from the same defect as its arguments predicated on the idea that the defense had to definitively establish that Nicole suffered from DIC before it would be allowed to explain why DIC without blunt force trauma could account for the contusions on the scalp. The whole point of the prior injury evidence was that the injury a week before could have precipitated DIC in Nicole, or inclined her to it given any further (and even minor) trauma. Moreover, as Dr. Gabriel’s “coup-contra-coup” evidence was meant to show, the prior injury to the front of the head could account for bleeding in the back. The autopsy, then, was not conducted “because of the prior injury, ” but because of the evidence showing the prior injury was indeed a cause or substantial factor of the bleeding in the back of the head. The objection therefore should have been overruled.
4. The question going to whether the redness around the mouth was unusual
A question asked of Dr. Simon seeking to bolster her diagnosis of DIC was: “Is the redness that you are seeing [around the mouth] there more extensive than you would ordinarily see when the tape is taken off?” An objection to this question was sustained for both irrelevance and lack of foundation.
The Attorney General’s relevance argument merely restates a conclusion: The brief states: “First, the redness in the mouth areas of patients from whom Dr. Simon had removed the tape that secured the endotracheal tubes was not relevant to any issue in the instant case.” No reason is given for the lack of relevance.
However, the question was relevant. The defense argument was that Nicole suffered from DIC, which could be shown by any unusual bleeding. If there was unusual redness when the tape was pulled off of Nicole’s mouth, it would at least tend to corroborate a diagnosis of DIC, and DIC was the core of the defense case.
As to foundation, the Attorney General argues that the defense had not established the preliminary fact that DIC “causes a body to bleed more than it normally would.” (Resp. br. at p. 58.) That point, however, is simply incorrect. Before the question was asked, Dr. Simon had already explained that DIC is a condition where “the blood can no longer clot, ” and where one would find “more extensive bleeding than you would expect from a minor episode of trauma.” Blood, Dr. Simon had already testified, can leak from a bruise and the body is in a “constant homeostasis.”
In any event, the question certainly was based on a “theory, ” as the Sims court put it, that could easily be “deduced” from much of the evidence already admitted, including much of the evidence within the prosecution’s own case-in-chief. Again, we stress that there was no dispute to the underlying factual predicates of the defense’s basis for the DIC hypothesis, including the high temperature, the vomiting, the fussiness and irritability in the days before Nicole’s death, the expansion of the red forehead mark during the trip to the hospital, the diffuse bleeding and, indeed, the vaginal bleeding.
5. The follow-up question going to whether the redness around the mouth was unusual
A related question, also the subject of a sustained objection for lack of foundation, was: “In those patients where you have taken the tape off, was the redness as extensive as is seen there?” For reasons just stated, the question was both relevant and admissible.
6. Harmless error?
We have just identified five questions proffered to defense experts to which foundation objections were incorrectly sustained. The ensuing issue is whether these errors were harmless.
We may divide these five errors into three categories: (a) Questions going to whether the defense could explain Nicole’s death without the necessity of blunt force trauma; (b) a question meant to show that Dr. Halka might have been too narrow in his focus in the autopsy; and (c) questions meant to support the basic defense thesis that Nicole had DIC. Applying the classic Watson standard of “requiring the defendant establish a reasonable likelihood of a more favorable outcome absent the error” (see People v. Alexander (2010) 49 Cal.4th 846, 910, citing People v. Watson (1956) 46 Cal.2d 818, 836), we reluctantly conclude that the errors here were not harmless. Indeed, not harmless as to each of the three categories.
At this moment, let us review the nature of the prosecution’s case. The prosecution’s theory was that Choi, tired, stressed, resentful, and vomited on by Nicole, snapped, picked up Nicole bodily, and banged her against a nearby hard surface. As we have noted, there was substantial evidence for such a conclusion, the centerpiece of which were the six “separate” contusions found by Dr. Halka.
In his closing argument, the prosecutor focused on the unexplained nature of those contusions. First, in his initial statement: “One thing that the DIC defense can’t take into account are the six to seven different areas of trauma. Once again, I submit to you you don’t need an expert for that. That’s common sense. That is absolute common sense.” (Italics added.)
Second, in his rebuttal: “And I have listened and I have waited for the explanation as to the six to seven points of injuries on that head and it never came. It never came, because even with all the paid experts, the pediatrician, the neurologist, there is no other explanation for the seven focal points of trauma on that child.” (Italics added.)
a. questions going to an alternative explanation
The first two questions erroneously objected to sought to show a possible explanation for Nicole’s death other than the hypothesis that Choi snapped and banged Nicole against the nearest hard surface. In particular, the second question sought to establish an explanation as to how the several contusions found on Nicole’s head could have come about without Choi being culpable.
Three? Six? Seven? The discrepancy in the evidence confirms our decision that it was not an abuse of discretion to allow the prosecution to use autopsy photos in the presentation of its evidence.
We have recounted in detail how much the prosecutor focused on the several contusions as unexplained by the defense. The problem is, because of the erroneously sustained lack of foundation objections, the defense never was able to offer any explanation for them.
Our dissenting colleague suggests that the question of whether DIC “independent of blunt force trauma could cause Nicole’s death” was never asked. We must disagree. Both question one (as to whether a pathologist looking at the bleeding might conclude it was from blunt force trauma when it was really from DIC) and question two (as to whether a pathologist who saw bleeding under the scalp in one of the spaces might mistake it for trauma when really caused by DIC) asked that question in substance.
The errors become even more critical to the outcome of the case when one realizes the prosecution’s trump card: The testimony (ironically elicited from Dr. Simon) that DIC could have been precipitated by blunt force trauma. That is, even if Nicole did have DIC at the time of her death, the prosecutor was able to establish that the DIC may have been brought about by the very beatings the prosecution sought to prove. The erroneously sustained foundation objections prevented the jury from hearing the possibility that DIC alone might have been responsible for the several contusions.
The point is extremely important when one realizes this: While the question of whether Nicole had DIC at all was plainly disputed by the experts, the jury could easily have taken comfort in the idea that it did not need to decide whether Nicole had DIC, because, in light of the evidence it was allowed to hear and the evidence it was not allowed to hear, there was no other explanation for the several contusions other than a beating. Had the jury heard an explanation for those contusions that would not require “non-accidental” trauma, it might not have spent a mere four hours deliberating.
We should, at this point, address the statement in the Attorney General’s brief that the “evidence against appellant was overwhelming.” It is, arguably overwhelming (and we do not say it is even that) only if one assumes that the defense had no explanation for the several contusions on Nicole’s scalp. But evidence that might have established such an explanation was erroneously excluded.
That evidence might have created a reasonable doubt in the jury’s mind. But since the jury was not allowed to hear the testimony, we will never know.
Beyond that, the prosecution’s nonmedical case against Choi did not require the conclusion that Choi deliberately beat Nicole. Choi’s several statements in the three interviews with police personnel could be taken by a reasonable jury to be just as consistent with a consciousness of negligence, either in putting Nicole on a couch just after her arrival and then not supervising her, thus allowing her to fall, or in some counterindicated reaction on Choi’s part to a seizure later in the day, such a laying Nicole face down and covering her with a blanket.
b. the question going to whether Dr. Halka was too narrow in his focus in the autopsy
The question to Dr. Gabriel as to whether Dr. Halka should have had at least some curiosity about the injury six days before essentially went to show that Dr. Halka was too narrow in his focus, and perhaps arrived at his conclusion in undue haste. (We would add that he would have done so is natural. No one can blame an emergency room staff or subsequent pathologist for beginning with an assumption of child abuse when an infant arrives with multiple head contusions and bleeding in its diaper.)
Even so, the essence of the defense case was that Dr. Halka just might be mistaken in his conclusion that the multiple scalp contusions necessarily equaled non-accidental head trauma. A question that went to whether Dr. Halka should have been interested in the data from a head injury unquestionably sustained a week before might have prompted the jury to have a bit more doubt as to Dr. Halka’s confident assurance that the several contusions were non-accidental.
c. questions meant to further support the thesis that Nicole had DIC
The two questions asked of Dr. Simon about whether the redness around the mouth was unusual were obviously meant to bolster the defense thesis that Nicole suffered from DIC. That is, unusual redness would count in the scales as yet another item of information supporting the DIC hypothesis.
To be sure, if the two questions going to unusual redness were the only evidentiary errors before us, the question of harmless error would certainly be, from the defense’s point of view, at best close. The defense was allowed to present its multiple reasons for the idea that Nicole suffered from DIC, and, perhaps more importantly, we have the testimony that DIC and blunt force trauma were by no means inconsistent.
This is where the argument from “cumulative” error comes in. (To be plain: the error as to the questions concerning a possible alternative explanation for the head contusions is sufficient for reversal without the need for reference to the error as to the questions concerning yet more possible evidence of DIC.) The errors as to the unusual redness questions may have had only a marginal effect, but given the closeness of the case as to whether Nicole had DIC, they may have had a dispositive marginal effect.
Consider uncontroverted the evidence from the defense side: Nicole had sustained a head injury the week before, requiring that she be taken to the hospital. She was taking Sudafed going into the day of her death. She arrived at the hospital with a 104.2 degree temperature, she had vomited on the day of her death, the bleeding in her body was over diverse areas, the forehead mark kept expanding as she rode to the hospital and there was no sign of trauma to the optic nerves as one might expect to find with a “shaken baby.”
Even Dr. Halka recognized that the absence of eye trauma “limited” his own thesis of non-accidental trauma. To be sure, the prosecution had explanations for some of these items -- but -- we note the expansion of the forehead mark on the way to the hospital and the absence of eye trauma does not appear to have been specifically refuted. The point is, this was a case where even a marginal error as to a fact that could help establish the underlying predicate to the defense’s case might have made a real difference.
Justice Fybel’s dissent points out that even if Nicole suffered from DIC, a beating severe enough to cause her death still might have been administered. But the flip side of that proposition is that if Nicole did indeed suffer from DIC, then even a minor bump or fall would show more extensive bleeding than otherwise. Thus, whether the jury believed that Nicole had DIC was itself important. If, hypothetically, the jury did believe that Nicole suffered from DIC, then it naturally would have been more inclined to credit the idea that accidental blunt force trauma -- such as a fall from a couch -- was the cause of the contusions that Dr. Halka ascribed only to non-accidental blunt force trauma.
d. other questions
The opening briefs lists a number of other questions asked of all three experts who testified for the defense (Drs. Simon, Gabriel and Crinella) to which the prosecution objected successfully. We deal now with these questions.
(1) Of Dr. Simon (on direct): Having first asked Dr. Simon, “With regard to these two marks [the mark on the forehead and the redness around the mouth], have you heard the term terminal events?” Dr. Simon answered that that terminal events are “things that happen immediately before death.” Dr. Simon was then asked “In your opinion, are these two marks terminal events?” The Attorney General argues that the ensuing successful foundation objection was proper because the defense had not yet established the preliminary fact as to when Nicole died.
The sustaining of this objection was error because the prosecution had already established the time of death, and there was no dispute about it.
(2) Of Dr. Simon (on direct): The preceding question was: “Now, in reading D. Halka’s autopsy reports and histology report, does it appear that Dr. Halka in no way [sic] of those reports addressed the cause of death as having any relationship to infection?” Dr. Simon was allowed to answer, “No, he did not.” Dr. Simon was then asked, “In your opinion, should he have done that?” The Attorney General argues the foundation objection was properly sustained because it had not been established that an infection caused Nicole’s death.
The sustaining of the objection was error because the question only asked whether an infection had a relationship to the cause of death and the whole defense theory, already established, was that Nicole’s temperature was indicative of an infection that did have a relationship, via DIC, to the cause of death.
(3) Of Dr. Simon (on redirect): The preceding question was: “Okay. Now, with regard to the puncture sites where no blood did come out, does that necessarily indicate there is not developing DIC?” Dr. Simon was allowed to answer no.
The next question was: “And why would that be?” Dr. Simon began to answer: “When an individual goes into shock, they may shut down a good portion of their peripheral circulation to keep their core well based with blood.” At that point, the prosecutor made a successful foundation objection. The Attorney General argues that the foundation objection was properly sustained because the defense had not yet established that Nicole had gone into shock and had developing DIC.
The sustaining of this objection was error because the question, as the Sims case put it, was “framed upon” a theory that could be “deduced” from “any evidence” before the court.
(4) Of Dr. Simon (on redirect): “Based upon your examination of the photographs and slides, did you find six spots that could be evidence of trauma?” The Attorney General argues that the foundation was properly sustained because the defense had not established that Dr. Simon had reviewed the slides of Nicole’s brain.
The sustaining of this objection was error because Dr. Simon was specifically asked (after defense counsel had explored her qualifications): “Have you also looked at any slides?” The answer was: “I also reviewed the slides you sent me from the autopsy. There were, I believe, 25 slides.”
A final question we now address was asked of Dr. Crinella, seeking to establish the rough percentage of the time that, if he is retained by a lawyer, he will give an opinion that is “not helpful” to that lawyer’s case: “Q. And in some of those instances have you given an opinion which was not helpful to the lawyer? A. Yes. Q. About what percentage of the cases does that happen on?” And the ensuing objection was sustained.
The Attorney General argues that the question was not relevant to any issue in the case. It was relevant, however, to show that Dr. Crinella was not just some hired gun who would say anything on behalf of a client, and therefore went to his lack of bias. (See Evid. Code, § 780.) The irrelevance argument also rings particularly hollow given the prosecutor’s closing comments about Dr. Crinella’s being paid “$300 a pop.”
The sustained objections to the four questions asked of Dr. Simon, and the sustained objection to the single question asked of Dr. Crinella, thus entailed evidentiary error by the trial court in precluding answers to them. We address the question of whether these errors were harmless in part VIII.G. below. We will note, for the moment, that the “terminal event” question was at least partially cured by allowing Dr. Simon to testify that the mark around Nicole’s mouth occurred in the last hour of her life, while the question about any relationship to infection was partially cured by allowing Dr. Simon to testify that nothing in Dr. Halka’s records indicated he actually addressed infection. (Though “did not address” is not quite the same as “should have addressed.”)
C. The Use of Photos
1. Use during trial
On the photo question, we divide the prosecution’s use of photos into two categories: First, the admission of photos in evidence during the trial. Second, the use of photos in the closing argument.
As far as the first category is concerned, there certainly was no error in admitting both the “endearing” photos of Nicole in the days before her death or the admittedly gruesome series of autopsy photos shown the jury during the course of Dr. Halka’s testimony.
In this case, perhaps more than in any case, both the “endearing” and the autopsy photos were highly relevant. The “endearing” photos supported the prosecution’s point that Nicole was healthy going into August 1. In fact, those photos were crucial support for Dr. Halka’s minimization of any infection. And the autopsy photos used by Dr. Halka were essential to the prosecution case in establishing the location and extent of her scalp bruising and subaponeurotic bleeding.
Weighed against that high degree of relevance, of course, is the natural human repugnance toward autopsy photos. In People v. Burns (1952) 109 Cal.App.2d 524, 541, the one case we are aware of that holds that autopsy photos should not have been admitted, the appellate court noted that the photographs were “of no particular value to the jury.” Therefore it was clear “the only purpose of exhibiting them was to inflame the jury’s emotions against defendant.” (Ibid.)
The Burns scenario, at least insofar as autopsy photos were presented to the jury in the course of presenting the prosecution’s actual evidence to the jury, does not apply here. There was plenty of need in the course of Dr. Halka’s testimony to use the autopsy photos to explain his conclusions to the jury, not inflame them.
It is an interesting question whether the microscopic slides also shown to the jury would have been a less gruesome way of presenting the prosecution’s case. Probably not, if only because the six or seven separate scalp contusions formed the essence of the prosecution case. That said, in any retrial the court may want to exercise its discretion (indeed, that was Judge Fasel’s very first inclination in this trial) to limit the use of autopsy photos as much as possible consistent with giving the prosecution the chance to make its point about the separate nature of the contusions.
2. Use in closing argument
We now turn to the case with reference to the jury. Let us note this at the outset: The fact that this jury deliberated only four hours given the complexity of the case is not reassuring.
That said, we must now address one more issue. Because the evidentiary errors in regard to the questions propounded to the defense experts (particularly in regard to whether DIC could explain the contusions without blunt force trauma) are sufficient to compel reversal, we need not decide at this juncture whether this issue compels reversal. We present these comments for the benefit of the trial court in the event of any retrial.
As noted, we cannot fault the trial court for allowing the “endearing” pre-day-of-death photos and the autopsy photos to be shown to the jury in the course of the presentation of the prosecution’s evidence. Those photos were important to the prosecution’s case.
The use of at least one autopsy photo in the course of the prosecutor’s closing argument, however, is highly disturbing. Here again is the relevant transcript: “This is the result of violent shaking. I apologize for showing these photographs, and I know they are not pleasant to look at. But, this is the testimony of Nicole. This is the only way that she can tell you what this defendant did to her. And this is the result of violent shaking. Violent shaking of this child with the impact to the back, side and top of her head.” (Italics added.)
Now, given the ambiguity of the record and the fact that defense counsel did not object, it is perhaps possible that the prosecutor was not pointing to autopsy photos when he uttered these words. We must note, however, that the italicized words strongly suggest otherwise. The most natural reading of the record is that the prosecutor was holding up or pointing to autopsy photos in the course of his closing statement. Such a reading is confirmed by the protestations made by defense counsel in his own closing, where he pled with the jury not to be influenced by the prosecutor’s “from the grave” rhetoric.
But what is most important is the use the prosecutor made of the photos. His argument was not a methodical rebuttal of Dr. Gabriel’s testimony that perhaps Dr. Halka had conflated three or four contusions into six or seven, nor was it a dispassionate attempt to support Dr. Halka’s testimony that the several contusions were necessarily caused by blunt force trauma. Rather, if it happened (and we of course hope it didn’t), it looks on this record to be a naked appeal to the raw emotions of the jury, made in the form of the victim’s own “testimony from the grave.”
As noted, because we reverse for other, independent reasons, we need not decide in this opinion whether the prosecutor committed misconduct, or whether the defense counsel’s failure to object was ineffective assistance, or whether the trial judge, simply to prevent a miscarriage of justice based on an argument to a jury whose emotions were being rubbed raw, should have stepped in. But in any retrial, it must not happen again.
D. The Neuropsychologist’s Evidence
1. The subissues
Strictly speaking, the questions of Dr. Crinella that showed Choi to be frustrated, unhappy and in financial straits bad enough to forego air conditioning on a hot August afternoon, are not challenged for their lack of relevance. Rather, they are challenged for the asserted ineffective assistance of failing to object to them as irrelevant.
To be sure, defense counsel’s decision to put a psychologist on the stand to show his client’s character was an unusual, perhaps bold, perhaps reckless move. Was it so reckless that it constitutes ineffective assistance, though?
There is no ineffective assistance of counsel where the defense lawyer makes a reasonable tactical decision. (See People v. Hinton (2006) 37 Cal.4th 839, 876). As the Supreme Court put it in People v. Salcido (2008) 44 Cal.4th 93, 172: “As we have observed, ‘except in those rare instances where there is no conceivable tactical purpose for counsel’s actions, ’ claims of ineffective assistance of counsel generally must be raised in a petition for writ of habeas corpus based on matters outside the record on appeal” -- and we note there is no such habeas petition before us.
Was the decision not to object to the questions asked of Dr. Crinella on cross-examination without “‘conceivable tactical purpose’”? The argument made by Choi’s appellate counsel is that the questions should have been the subject of section 352 objections, that is, their prejudice outweighed their probity.
No. Any section 352 objection would have been doomed. First, the information was highly relevant to the circumstances of Choi’s mental state at the time of Nicole’s death. It established the background which explained why Choi could “snap.” Second, objecting to the information would have destroyed whatever good Dr. Crinella had done for Choi in the case, by highlighting to the jury that there were dark secrets Dr. Crinella was keeping from them. It was inherent in the logic of the decision to have Dr. Crinella testify in the first place (and appellate counsel does not challenge that obviously tactical decision) not to object to the negative aspects of whatever Dr. Crinella had to say.
The absence of defense counsel’s fighting for certain limiting instructions is a somewhat closer issue. Apparently defense counsel initially thought to ask for both CALCRIM numbers 303 and 360, but the two instructions were withdrawn. (While the record is not clear on the point, we will assume that either the prosecutor withdrew them and the defense, not realizing whatever benefit they might confer, went along, or the defense simply withdrew them).
CALCRIM number 303 simply states: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” The sheer generality of this instruction, particularly in a case dominated by expert witnesses, makes it hard to see how its absence could have had any effect at all. In any event, though, a reasonable tactical decision presents itself here: Defense counsel did not want to wonder just exactly what evidence “was admitted for a limited purpose” and could readily conclude that such an instruction might be taken by the jury to undercut the opinions of Dr. Simon (particularly since DIC could never be definitively established) and Dr. Gabriel.
The withdrawal of CALCRIM number 360, however, is problematic. CALCRIM number 360 is more direct: “[Witness name] testified that in reaching (his/her) conclusions as an expert witness, (he/she) considered a statement[s] made by [the defendant]. I am referring only to the statement[s] [insert or describe statements admitted for this limited purpose]. You may consider (that/those) statement[s] only to evaluate the expert’s opinion. Do not consider (that/those) statement[s] as proof that the information contained in the statement[s] is true.”
Try as we may to imagine one, no “reasonable” or “tactical” ground for affirmatively withdrawing CALCRIM number 360 comes to mind. The usual ground for excusing some omission on a criminal defense lawyer’s part -- a desire not to highlight bad evidence in front of the jury -- makes no sense in this context, where the bad evidence was going to be highlighted anyway, and in fact it was highlighted by the prosecutor in his closing. CALCRIM number 360 would have at least forced the prosecutor to re-focus all the “frustration” evidence at Dr. Crinella, and cramped his ability to use it to, in effect, provide a motive for the alleged beating of Nicole.
We are, alas, not aided in our attempt to divine a tactical reason for defense counsel’s omission by the Attorney General’s brief. In fact, the Respondent’s brief in this regard seems to confirm the lack of a good reason to withdraw the instruction.
Here is what the Attorney General says (it is all in one paragraph at the top of page 52): “Appellant argues that if her statements to Dr. Crinella were admitted as being relevant to Dr. Crinella’s opinion, defense counsel should have requested the giving of CALCRIM Nos. 303 and 360 to limit the use of the statements. (AOB 60-61.) As mentioned above, the prosecutor explained, during his closing argument, that the statements at issue were admitted to show appellant’s state of mind on August 1, 2005. (8 RT 1441-1442.) Thus, the statements were not admitted as being relevant to Dr. Crinella’s opinion. Appellant, therefore, cannot demonstrate that defense counsel performed deficiently by failing to request CALCRIM Nos. 303 and 360.” (Italics added.)
There is a second, follow-up paragraph also addressing the issue on the same page, but the point of that paragraph is merely to summarize the argument, not to make a new one: “In conclusion, appellant’s claim of ineffective assistance must fail because she cannot show defense counsel performed deficiently by failing to object to the admission of her statements to Dr. Crinella or by failing to request CALCRIM Nos. 303 and 360. Appellant also cannot show there was a reasonable probability that, but for counsel’s alleged failures, the result would have been different.”
The Attorney General’s argument appears to go like this: Because the “frustration” evidence went entirely to Choi’s “state of mind, ” it was relevant, ergo it was no deficiency of defense counsel not to request CALCRIM number 360.
The problem with the Attorney General’s argument is that it misapprehends the nature of the argument it purports to refute. The whole point of Choi’s appellate argument is that giving CALCRIM number 360 would have re-focused the jury’s consideration of the “frustration” evidence away from Choi’s frustration and unhappiness with her marriage and toward the validity of Dr. Crinella’s generally positive assessment of Choi’s nonviolent character.
2. Different result?
While we cannot fathom a reason Choi’s defense counsel withdrew CALCRIM number 360, we cannot say, applying a reasonable-probability-of-different-result standard, that the omission (at least considered by itself) made any difference. (E.g., People v. Friend (2009) 47 Cal.4th 1, 46-47 [“We conclude there was no reasonable probability of a different result if defense counsel had impeached Moody about the one additional case.”].)
As we have noted, the “frustration” evidence was highly relevant and a by-product of the decision to put Dr. Crinella on the stand. Any skillful prosecutor could have exploited the evidence almost as much as this one did even if it were ostensibly confined to Dr. Crinella’s opinion, precisely because -- and here we agree with the tenor of the Attorney General’s argument -- it did go to Choi’s state of mind.
E. The Problem with One Juror’s Grasp of English
Choi filed a motion seeking a new trial on several grounds, one of which was that “Juror Number 3” had concealed her lack of ability to understand the English language sufficiently to serve as a competent juror. Under the facts of this case, there was no abuse of discretion in denying the motion.
1. Background
The basis of the motion was this: A defense investigator from Southern California Private Investigators interviewed Juror Number 3 after the trial, on December 31, 2007. In a confidential memorandum to Choi’s counsel -- and we do note that the memorandum was not under oath -- the investigator stated that “[Juror] #3 indicated she had difficulty understanding a large portion of medical testimony used during the trial. Despite this, she maintains that she considered all the evidence and rendered her judgment.” The investigator added that “during the course of our conversation” with the juror “it was necessary for me to repeat some of the questions several times before she was able to comprehend and respond. This leads me to believe [the juror] does not have a strong command of the English language.”
The motion was opposed by the District Attorney’s office, who pointed to the juror’s ability to complete a seven-page English language questionnaire and the questioning of that juror by each party as well as the trial court.
The questionnaire itself clearly was not designed to elicit much by way of ascertaining a juror’s command of English. Generally, it contains merely simple one-word responses or filling in an appropriate box. The questionnaire consisted of questions that asked the potential juror for information such as name, gender, location of residence, marital status and place of employment. Then there were four pages of twenty-five questions that mostly required a “yes or no” response. If the response was a “no, ” no further explanation was necessary.
On Juror Number 3’s questionnaire, she only offered an explanation for two questions. She wrote “divorce” when asked “Have you experienced any significant losses within the past three years, such as death, divorce, separation, or the loss of a job?”
Her lengthiest written response was “I don’t know how to answer this” when she was asked “How would you feel about following a legal principle that was in conflict with your personal convictions?”
2. Analysis
Interestingly enough, the relevant statute on juror command of English uses the indefinite word “sufficient.” Code of Civil Procedure section 203, subdivision (a)(6) provides: “(a) All persons are eligible and qualified to be prospective trial jurors, except the following:... (6) Persons who are not possessed of sufficient knowledge of the English language.” (Italics added.)
Thus the basic rule is that a juror must have a sufficient command of the English language “to allow full understanding of the words employed in instructions and full participation in deliberations.” (People v. Elam (2001) 91 Cal.App.4th 298, 316-317 [finding error in removal of juror for language difficulties where “other jurors showed great impatience with Juror No. 3”]; see also id. at p. 320 (dis. opn. of M. Vogel, J.) [“The trial court heard Juror No. 3 and could determine the extent of his accent and his ability to understand. With that knowledge and based on the other jurors’ comments, the trial court found there was a substantial language problem and that Juror No. 3 had overestimated his own ability to understand the proceedings.”].)
An example of the rule comes from this court. In reversing a conviction on a methamphetamine charge in People v. Szymanski (2003) 109 Cal.App.4th 1126, 1132, Justice O’Leary noted that “a person who repeatedly protests she cannot understand, does not want to pretend to understand, and thinks it would be unfair for her to ‘make any judgment’” (original italics) is obviously a person who should not be on a jury.
It is important to realize here, though, that no challenge was made to this juror before the trial. What we are reviewing now is a new trial motion based, in essence, on alleged juror misconduct in concealing an inability to understand English.
Given such a motion, the trial court has the discretion to “conduct an evidentiary hearing to determine the truth of the allegations.” (People v. Hedgecock (1990) 51 Cal.3d 395, 415 [“We now reaffirm the conclusion we reached in People v. Pierce... when a new trial motion in a criminal case is based on allegations of juror misconduct, the trial court may conduct an evidentiary hearing to determine the truth of the allegations”].) The high court’s use of the word “discretion” several pages later, however (see id. at p. 419 [“For the reasons set forth above, we hold that it is within the discretion of a trial court to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing.”]) shows that a trial court decision not to hold such a hearing must be reviewed on an abuse of discretion standard.
And, using such a standard, we cannot find abuse of discretion here. The evidence that Juror Number 3 concealed an inability to understand English -- indeed that she did not have an ability to understand English in the first place -- is much too thin to say that the trial court’s decision here was unreasonable.
All her responses to the questionnaire were appropriate, and the single “I don’t know how to answer this” was to the sort of philosophical question that could be the subject of an entire term paper in a jurisprudence seminar.
Moreover, as the Attorney General points out, the key concern -- Juror Number 3’s “difficulty” in “understanding a large portion of medical testimony used during the trial” -- would presumptively apply to all the jurors on the panel. Even people with law degrees are not usually familiar with words like “subaponeurotic, ” “subdural, ” and “subarachnoid.”
So we find no basis for reversal on this argument. That said, for the benefit of the trial court, in any retrial it is important that jurors be sufficiently fluent in the English language to understand this case. (See Ganz v. Justice Court (1969) 273 Cal.App.2d 612, 623 [“This much is certain: we should have jurors who are fully able to understand spoken and written English on our juries, if justice is to be achieved.”].)
F. The Problem of “Remorse” In Sentencing
a Defendant Who Claims to be Innocent
1. Background
We now turn to the role, if any, that Choi’s maintenance of her innocence played in the sentencing. The crimes of which Choi was convicted allow for the possibility of probation, and so the possibility of probation was before the court.
There are two background items we should note first -- Nicole’s mother’s statement and the probation report.
a. the mother’s statement
Nicole’s mother, Kim Min, was called by the prosecution to address the court on the matter of Choi’s sentence. Speaking through an interpreter, Min’s statement was extremely moving. (Even as it comes across in a cold reporter’s transcript sent to an appellate court.) Two, virtually religious, themes predominated, perhaps to be expected in light of the fact that both she and Choi had attended the same Baptist church. One was Min’s disappointment in Choi’s lack of repentance inherent in Choi’s denial of the crime: “But, even though that person committed a horrendous crime, but instead of seeking the forgiveness as, you know, a human being, she did such a horrendous crime. And then, instead of repenting, without wasting two and a half years, even though there was just some way to -- to relieve the pains to people, all people, instead of telling the truth, but just as she kept telling lies, like novel.”
That said, Nicole’s mother asked the court to be lenient, but mixed with regret over Choi’s continuing refusal to admit her guilt: “Your honor, Sunyhe Choi had committed a crime that a regular person with conscience cannot commit. You know, I feel sorry for those people who is trying to do whatever they can to the very end. However, since I am a Christian, I am humbly asking you to forgive her. [¶]... I thank you [referring to the court] that the truth had eventually came out, and I thank you that you had taken care of our unfairness. I understand that her minimum sentence is for 25 years and it is not a little time. Your honor, would ask you to give her a little bit of time so that she can spend that time to repent for her sin and to live according to it.”
Min’s plea for leniency was all the more moving given, in her own words: “On the day that Nicole died, the Orange County Child Protective Service took even Matthew away. I lost -- we lost two children in just one night.”
b. the probation report
The probation report listed these factors in aggravation: The victim was young and vulnerable, and in committing the crime the defendant had violated the trust which the victim’s parents had given the defendant.
It listed these factors in mitigation: An insignificant prior record (a prior misdemeanor conviction for shoplifting was mentioned, and her prior performance on informal probation was satisfactory.
The report listed each of the various criteria affecting a decision to grant or deny probation as listed in rule 4.414 of the California Rules of Court. By the criteria for rule 4.414(b)(7) -- whether the defendant is remorseful -- the report noted that “In multiple interviews with police, the defendant did not express remorse for the victim’s death.”
Which states:
The report noted that given the nature of the offense as inflicting great bodily injury, the defendant would only be eligible for probation in an “unusual” case under Penal Code section 1203, subdivision (e)(3).
Which provides:
A large portion of the probation report consisted of letters written on Choi’s behalf from fellow church members.
2. Analysis
We are not the first court to be confronted with the conundrum that a person has the constitutional right to maintain his or her innocence, including through sentencing, but, in order to show remorse, must necessarily admit the crime. (See generally Ward, Sentencing Without Remorse (2006) 38 Loy. U. Chi. L.J. 131, 157-164 [exploring cases dealing with the question of remorse where the defendant protested his innocence].) The Nevada Supreme Court summarized the dilemma that consideration of remorse necessarily imposes on a defendant in a criminal case in Brown v. State (1997) 113 Nev. 275, 291: “The district court violated Troy’s Fifth Amendment rights by considering his ‘lack of remorse’ when he still had a constitutional right to maintain his innocence and by threatening to impose a harsher sentence if Troy refused to admit his guilt. Troy was unable to express remorse sufficient to satisfy the judge without foregoing his right to not incriminate himself, and the fact that he took the stand at trial does not change this analysis because Troy maintained his innocence. As such, requiring Troy to either express remorse or receive a harsher sentence violated Troy’s Fifth Amendment rights and constituted an abuse of discretion.” (Italics added.)
California courts that have considered the issue have formulated this rule, slightly different from Nevada’s more automatic rule: While a prosecutor may be “entitled during closing argument [on sentencing matters] to highlight a defendant’s lack of remorse” (see People v. Hughes (2002) 27 Cal.4th 287, 393-394), a defendant’s lack of remorse or refusal to take responsibility for the offense may not be used as an aggravating factor if ‘“the defendant has denied guilt and the evidence of guilt is conflicting.’” (People v. Leung (1992) 5 Cal.App.4th 482, 507, original italics; see also People v. Holguin (1989) 213 Cal.App.3d 1308, 1319 [“Lack of remorse may be used as a factor to aggravate under California Rules of Court... unless the defendant has denied guilt and the evidence of guilt is conflicting.”].)
We have shown at length that the evidence in this case was indeed conflicting (including such expert medical matters as the exact number of scalp contusions, the possibility of infection, the possibility of DIC, and the degree of bleeding around the spinal cord). The question is whether the trial court used Choi’s lack of remorse as a factor to aggravate.
Functionally, it did. It is clear from these remarks of the trial judge that Choi’s lack of remorse was the most important factor in his thinking as to whether this case was the unusual one where probation might be appropriate despite the great bodily injury to the victim. The judge explicitly linked that lack of remorse to the question of sentencing that was before him, even in the context of recognizing Choi’s right against self-incrimination:
“And [defense] counsel’s assurances regarding her remorse are not convincing to the court. Certainly, it is counsel and defendant’s prerogative not to discuss her views regarding the crime with the probation officer. There may be strategy involved in that, and that’s fine and the court totally understands that.
“But, for purposes of sentencing, which is obviously why we are here, totally inadequate. There has been absolutely no showing of remorse by the defendant. Only denials.
“And there are a lot of positives regarding the defendant that counsel have submitted to the court, based upon their oral argument and their trial briefs. And I have read and considered all of the character references that were attached to the probation report and to counsel’s motion. And it is impressive, no doubt.
“But, those denials by the defendant, her denials and her lack of showing any remorse for the purposes of considering probation, assuming that she is presumptively ineligible, her positive facts limiting her culpability and not amounting to a defense are far outweighed by the egregious nature of this particular crime and lack of remorse.” (Italics added.)
This italicized language clearly showed use of lack of remorse as an aggravating factor. Readers should note that the lack of remorse was balanced off against “positive facts.” In fact, lack of remorse was one of only two factors the court mentioned in explaining its decision.
Since we are reversing anyway, we simply offer this admonition to the trial court: In any retrial, the trial judge should recognize that lack of remorse is not to be considered as an aggravating factor in assessing any aspect of the sentence.
G. The Prejudicial Cumulative Effect Problem
1. The 352 issues
The combined effects of multiple errors may indeed render a trial fundamentally unfair. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795 [“We therefore conclude the combined effect of the two errors substantially impaired his constitutional right to a fair trial.”]; People v. Kronemyer (1987) 189 Cal.App.3d 314, 349 [“We disagree with the People’s counterclaim that the ‘cumulative errors doctrine’ is inapplicable. Theoretically, it always applies, for the litmus test is whether defendant received due process and a fair trial. Accordingly, we review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.”].)
However, there must be more than one error before the combined or cumulative effects of those errors will require a reversal. (See People v. Taylor (2009) 47 Cal.4th 850, 900 [“Having found no unwaived error on the trial court’s part, however, we can discern no cumulative prejudice.”].)
In the case before us, we have not found any error -- or abuse of discretion -- as regards evidence admitted over the Evidence Code section 352 objections in regard to the vaginal bleeding, the 911 call, and the autopsy photos as presented during the evidentiary portion of the case. (We do acknowledge, however, that the 911 recording, precisely because it was of mere marginal relevance, is a fairly close issue.) Obviously, then, the section 352 issues cannot create any cumulative prejudice where each one individually was not itself an error or abuse of discretion.
2. The Evidentiary Errors
On the other hand, we have found not just error, but prejudicial error by itself, in the trial court’s sustaining two objections that, in essence, prevented the defense from offering evidence that could have countered the prosecution’s trump issue (namely, the absence of an explanation for the scalp contusions that would not require non-accidental blunt force trauma).
We have further noted error in a whole series of sustained foundation objections that undercut the defense case generally. The sustained objections:
-- undercut the support for the main medical theory of the defense, DIC;
-- precluded the defense from showing the role that DIC may have played in Nicole’s death;
-- precluded the defense from showing the possible error of the prosecution’s chief witness in omitting “any relationship” of infection to the cause of death;
-- precluded the defense from showing why the lack of bleeding from Nicole’s intravenous puncture wounds might not have proven an absence of DIC;
-- precluded the defense from explaining whether the six scalp contusions which were the centerpiece of the prosecution case might not be evidence of trauma (going directly to the prosecution’s key argument that those contusions had to be evidence of trauma); and
-- precluded the defense from showing that its psychologist was unbiased.
To be sure, two of these errors were partially cured. (With regard to the redness about the mouth as terminal and about the fact that nothing indicated the prosecution expert addressed infection -- but as we note, the question of whether the prosecution expert should have addressed infection was not cured.) Even so, the sheer multitude of these errors by themselves forces us to, reluctantly, conclude that the defense did not receive a fair trial based on their combined effect.
But on top of those errors, there is this: The prosecutor’s apparent use of at least one autopsy photo in his closing in conjunction with an argument that was not to discuss the medical evidence, but was rather used to make a blatant appeal to the emotions of the jury. While we need not go so far as to say there was prosecutorial misconduct in this raw appeal to the jury’s emotions, it cannot be denied that, in context, the only purpose of those photos was precisely to “inflame the jury’s emotions against defendant.” (People v Burns, supra, 109 Cal.App.2d at p. 541.)
The use of the autopsy photos in closing in the way they were used is particularly disturbing given the relatively short deliberation time of the jury. So there is no doubt about our reasoning, we thus conclude that even if the evidentiary errors were not sufficient by themselves to require reversal, the combined effect of those errors plus the inflammatory use of at least one autopsy photo in closing argument also requires reversal.
IX. DISPOSITION
We agree with Justice Fybel that we should not “reweigh” the evidence. Even so, to be found guilty, a defendant must be found guilty beyond a reasonable doubt. Guilt beyond a reasonable doubt, however, is a question for the jury, not appellate justices. Here, evidence which might indeed have created that reasonable doubt in the minds of the jurors was excluded. The trial court virtually assured a guilty verdict because of those exclusions. The bottom line is: The jury did not hear a complete version of the defense’s side of the story. As Justice Moore writes in her separate opinion, a “do-over” is required.
The judgment is reversed, and the case remanded for a retrial. On retrial, proceedings shall not be inconsistent with this opinion.
SILLS, P. J.
MOORE, J., Concurring and Dissenting.
I concur with most of what Justice Sills states in his opinion, including his disposition. I write separately regarding a few areas where I disagree. I am greatly concerned that in a case where the defense was not that someone else killed the baby but that there was no crime at all, involving extremely complicated medical testimony, the jury returned a verdict in a mere four hours.
The issue of sexual abuse was raised by the emergency room doctor who instructed the nurses to note there was blood in the baby’s diaper and to contact the police. In his opening argument, the prosecutor found it necessary to talk about the bloody diaper four separate times. Numerous witnesses were asked about blood in the baby’s diaper. Out of the blue during his closing argument, the prosecutor mentioned that the blood in the genitalia was significant.
When defendant moved to exclude evidence of blood in the diaper, the trial court performed its weighing duty under Evidence Code section 352, and found the probative value of the evidence outweighed its prejudice, a ruling I believe was correct. The baby was bleeding in numerous places in her body, and this was one of them. But at the time of the court’s pretrial ruling, evidence had yet to be presented. As it came in, the specter of sexual abuse permeated the evidence offered by the prosecution, raising the potential for prejudice to a dangerous level for defendant. At some point, the jury should have been instructed that evidence of blood in Nicole’s diaper was not to be considered for purposes of concluding she had been sexually abused.
“[T]here is no duty, in the absence of a request, to give an instruction limiting the purpose for which evidence may be considered. [Citations.]” (People v. Simms (1970) 10 Cal.App.3d 299, 311; see also People v. Cowan (2010) 50 Cal.4th 401.) I can’t find anything in the record indicating such an instruction was ever requested or given, and would add the failure to request such an instruction to Justice Sills’ ineffective assistance of counsel list.
With regard to the 911 telephone call, where the husband’s statement implied he thought defendant was responsible for the death [“Sunyhe, how did this happen? How – what did you do?”], Justice Sills’ opinion states the evidence had marginal relevance. What that relevance is, marginal or otherwise, escapes me. Who cares what the husband thinks? The prejudicial potential of a husband believing his wife capable of murdering a baby, however, is extremely high. I think the trial court abused its discretion when that evidence was permitted. (Evid. Code § 352.)
In deciding whether or not a party has been prejudiced to the extent there has been a miscarriage of justice when there is error, a reviewing court is required to examine the entire cause, including evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.) Neither of these errors, the use of the bloody diaper evidence and the improper admission of the 911 call, standing alone, requires reversal. But the cumulative effect of the errors is sufficiently prejudicial to violate the Fourteenth Amendment’s due process guarantee of fundamental fairness, and warrants reversal. (Taylor v. Kentucky (1978) 436 U.S. 478, 487-488; see also People v. Davis (2005) 36 Cal.4th 510, 572-573.)
Based on the totality of circumstances here, it is my opinion there has been a miscarriage of justice which deprived defendant of a fundamentally fair trial. This is a case where a do-over is required.
FYBEL, J., Dissenting.
I respectfully dissent.
After a six week trial, the jury found defendant Sunyhe Choi guilty of the second degree murder of nine month old Nicole Jeong. I dissent because I believe the jury verdict should not be overturned and the lead opinion and Justice Moore’s separate opinion are seriously flawed.
Important Concessions in the Lead and Separate Opinions
I begin by identifying several key points made in the lead and separate opinions that support affirmance:
1. The lead opinion concedes that all evidence admitted at trial was properly admitted. Indeed, the lead opinion cites no evidence improperly considered by the jury. I agree that all evidence before the jury was properly admitted.
In response to the separate opinion’s concern about the evidence of blood in Nicole’s diaper, I reiterate the valid point made in the lead opinion that Dr. Joseph Halka testified the blood in Nicole’s diaper was also caused by blunt force trauma. (Lead opn., ante, at p. 30.) Indeed, Dr. Halka testified that “[t]here was no direct trauma to the vaginal area, ” but “there was diffuse hemorrhage” to the outer surface of the uterus, caused by “[b]lunt force trauma” to either the anal area or the urethral area.
2. The lead opinion does not dispute that substantial evidence supports the judgment, nor could it, in view of the strong evidence that Nicole suffered blunt force trauma to her head and was beaten to death. I agree with this conclusion and the separate opinion does not dispute it.
3. Neither the lead nor separate opinion finds any error in any of the jury instructions. I agree.
4. Neither the lead nor separate opinion finds any prejudicial, ineffective assistance of counsel. I agree.
5. Neither the lead nor the separate opinion finds any juror misconduct. I agree.
The Lead Opinion Expressly Concedes the Question Whether Nicole Had DIC Was Disputed and Evidence on Both Sides Was Presented to the Jury.
While the lead opinion cites some expert testimony that Nicole suffered from a medical condition known as disseminated intravascular coagulation (DIC) that “made her a bleeder” (lead opn., ante, at pp. 2 3), the jury also heard evidence that Nicole did not suffer from DIC. The lead opinion acknowledges that Dr. Halka testified he found no evidence “to support a DIC finding” (id. at p. 10) and DIC was “‘totally irrelevant’ because there was no possibility of seeing the type of injuries Nicole sustained without blunt force trauma” (id. at p. 11).
As a result, the lead opinion concedes, “the question of whether Nicole had DIC at all was plainly disputed by the experts.” (Lead opn., ante, at p. 39.) The lead opinion catalogs evidence that Nicole suffered from DIC and acknowledges that “[t]he defense was allowed to present its multiple reasons for the idea that Nicole suffered from DIC.” (Id. at p. 40.) But the jury heard-and believed-evidence to the contrary.
So why do the lead and separate opinions overturn the guilty verdict? There are many significant problems in their analyses and I will examine each in turn.
Applying the Correct Standard of Review, the Jury Verdict Should Not Be Overturned.
The standard of review for the arguable evidentiary errors referred to in the lead and separate opinions is set forth in People v. Watson (1956) 46 Cal.2d 818, 836. We can only reverse if “‘after an examination of the entire cause, including the evidence, ’” we are of the opinion that “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Ibid.) In my view, even if the trial court erred in the contested evidentiary rulings, the Watson standard has not been satisfied. We cannot conclude a result more favorable to defendant would have been reached in the absence of those arguable errors.
A Gap in the Lead Opinion’s Analysis
The lead opinion asserts that the jury did not hear whether DIC alone could explain the six or seven spots of bleeding on baby Nicole’s head. But nowhere in the lead opinion is there a citation to a place in the appellate record where any witness-expert or lay-was asked whether DIC independent of blunt force trauma could have caused Nicole’s death. That question was never asked of any witness, and the absence of any reference to such a question in the lead opinion is conspicuous. There is a good reason why the question was never asked: A baby suffering from DIC could nevertheless be the victim of a beating severe enough to cause her death. The prosecution referred to this commonsense reality in its closing argument: “D.I.C. does not cause bleeding where bleeding doesn’t exist.”
Significantly, defendant’s own expert witness, Dr. Michelle Simon, conceded that the localized spots of bleeding on baby Nicole’s head would not just appear, but would have to be caused by some application of force, even if Nicole did have DIC:
“Q. If D.I.C. is present in a child that’s alive, wouldn’t we expect that there needs to be at least some blunt force trauma or cut to get the excessive bleeding going?
“A. Or compression or something.
“Q. Or compression or something?
“A. Not to get the D.I.C. going, but to get the bleeding in that local area going.
“Q. All right. In this case we have bleeding in specific areas, but there is no bleeding in other areas, correct?
“A. Yes.”
DIC and child homicide are not mutually exclusive and the lead opinion concedes that “we have the testimony that DIC and blunt force trauma were by no means inconsistent.” (Lead opn., ante, at p. 40.)
The lead opinion attempts to address this serious gap in its analysis in its footnote 11 on page 38. The lead opinion’s attempted explanation is demonstrably incorrect for two reasons. The lead opinion’s reasoning is that Dr. Simon was asked two questions on direct examination that were “in substance” (lead opn., ante, at p. 38, fn. 11) the same as asking if DIC independent of blunt force trauma could have caused Nicole’s death.
In the next section of this dissent, I quote those questions verbatim along with the objections which were sustained by the trial court on foundation grounds. Those questions were: (1) “If a pathologist were looking at bleeding that was found in the body, is it possible for a pathologist to conclude that that was from trauma when, in fact, it was really from D.I.C.?” and (2) “Hypothetically, if you were doing an autopsy... and you saw bleeding under the scalp in one of the spaces above the brain, and you were not aware that the patient had D.I.C., might you conclude, not being aware of the D.I.C., that the bleeding was caused by trauma?” (Italics added.)
The first reason the lead opinion’s explanation fails is that these two questions are demonstrably not the same as asking whether Nicole’s death was caused by DIC independent of blunt force trauma. These two hypothetical questions are not on their face or “in substance” the same as asking if Nicole died of DIC independent of blunt force trauma.
There is a second compelling reason the lead opinion’s explanation fails. Dr. Simon was asked, “[i]f you were the autopsy forensic pathologist in this case and you saw evidence of massive bleeding in various different areas, would you be interested in exploring the issue of D.I.C.?” The objection to this question was overruled and Dr. Simon answered, “[y]es.” This question is essentially the same question (without the “possibilities” and “mights”) as the questions the lead opinion contends are themselves “in substance” the same as asking if Nicole died of DIC independent of blunt force trauma. So, if the lead opinion is correct that the first two questions asked of Dr. Simon were “in substance” asking if Nicole’s death was due to DIC independent of blunt force trauma, the question was asked of and answered by Dr. Simon.
For both of these reasons, a material gap remains in the lead opinion’s analysis.
Questions to Dr. Simon
The lead opinion’s decision is principally based on the conclusion that the trial court erroneously sustained foundation objections to questions regarding pathology asked by defense counsel of Dr. Simon. The lead opinion concedes, “by the time that the pathology question was asked, Dr. Simon had already recounted much of the evidence on which she would later opine that Nicole did suffer from DIC, including: leakage from blood vessels, the fact that DIC can be caused by trauma or infection, as well as Nicole’s ‘generalized fussiness, irritability, loss of appetite, lethargy, crying and inability to sleep.’” (Lead opn., ante, at p. 33.)
There are two reasons why even if there was error in the trial court’s evidentiary rulings on these two questions to Dr. Simon, any such arguable error was not prejudicial: first, any error was cured because the questions were rephrased and answered “yes.” Second, the defense was able to elicit the reasons for Dr. Simon’s “yes” answer in detail, as meticulously catalogued in the lead opinion itself.
The lead opinion concludes the trial court erred by sustaining the prosecution’s objections to two questions posed to Dr. Simon regarding DIC. I set forth here the relevant colloquy, with the two questions at issue italicized.
“Q. Now, if someone-if a child had D.I.C. and received a minor bump or minor blunt force trauma from a fall or something like that, and the child had D.I.C., would the bleeding be more extensive than it would be without the D.I.C.?
“A. Yes. You would expect it to be.
“Q. If a pathologist were looking at bleeding that was found in the body, is it possible for a pathologist to conclude that that was from trauma when, in fact, it was really from D.I.C.?
“A. Yes.
“[Prosecutor]: Objection. Calls for speculation.
“The Court: Sustained. Foundation.
“Q. By [defense counsel]: Hypothetically, if you were doing an autopsy-and, you say you have done some-and you saw bleeding under the scalp in one of the spaces above the brain, and you were not aware that the patient had D.I.C., might you conclude, not being aware of the D.I.C., that the bleeding was caused by trauma?
“[Prosecutor]: Objection. Lacks foundation.
“The Court: Sustained.”
Dr. Simon later testified as follows:
“Q. If you were the autopsy forensic pathologist in this case and you saw evidence of massive bleeding in various different areas, would you be interested in exploring the issue of D.I.C.?
“[Prosecutor]: Objection. Relevance.
“The Court: Overruled. [¶] You may answer.
“The witness: Yes.”
The testimony the lead opinion claims was improperly withheld from the jury was, in fact, before it because defense counsel rephrased the two questions to which objections were sustained and asked Dr. Simon if she would be interested in exploring the issue of DIC if she herself had observed “massive bleeding in various different areas” during Nicole’s autopsy. Dr. Simon answered “yes” to that rephrased question after the objection was overruled. Defendant’s trial counsel specifically relied on Dr. Simon’s answers to this series of questions during closing argument: “Dr. Simon told you that a forensic pathologist who was unaware of developing D.I.C. could erroneously conclude that the significance of the bleeding was due to a more serious trauma than it really was.” Therefore, any “error” was completely harmless, because the evidence and argument were before the jury anyway.
There was no motion to strike the “yes” answer to the first question to which a foundation objection was sustained. There was no answer to the second challenged question.
In addition, both before and after this “yes” answer, the defense was able to fully explore whether Nicole suffered from DIC. Indeed, the lead opinion details the testimony of defense experts Drs. Simon and Gabriel regarding the possible signs of existent or developing DIC, including fever, infection, vomiting, and hemorrhaging in Nicole’s scalp and brain. (Lead opn., ante, at pp. 17 27, 33.)
Other Questions to Dr. Ronald Gabriel and Dr. Simon
The lead opinion next cites objections to one question posed to Dr. Gabriel, and two more posed to Dr. Simon, which it concludes were erroneously sustained. (Lead opn., ante, at pp. 35 37.) First, Dr. Gabriel was asked whether, if he “were doing an autopsy six days later from a prior injury, ” he would be interested in carefully reviewing hospital records, the CAT scan, “and everything else about that prior injury before [he] offered an opinion on the cause of death.” (Id. at p. 35.) An objection to that question, for lack of foundation, was sustained. (Ibid.) The lead opinion speculates that if this question had been answered “yes, ” the jury would have been prompted “to have a bit more doubt as to Dr. Halka’s confident assurance that the several contusions were non accidental.” (Id. at p. 40.) Such speculation does not come close to meeting the standard of prejudicial error.
As to Dr. Simon, the lead opinion cites two questions posed to her “about whether the redness around the mouth was unusual.” (Lead opn., ante, at pp. 36 37, 40.) According to the lead opinion, these two questions “were obviously meant to bolster the defense thesis that Nicole suffered from DIC.” (Id. at p. 40.) As to these questions, the lead opinion concedes they “may have had only a marginal effect” (ibid.); this description is hardly support for a prejudicial error argument and does not add much to a cumulative error argument.
Remaining “Other Questions” Listed at Lead Opinion, ante, at Pages 41 43
The lead opinion lists five other objections to questions posed to various witnesses as support for its conclusion that defendant was denied due process of law. The lead opinion concedes, however, that as to two of those questions, any error was “partially cured” by later testimony. (Lead opn., ante, at p. 43.) As to the other three alleged errors, the lead opinion describes them as a “multitude” (id. at p. 58) and does not provide any satisfactory prejudicial error analysis. In a six week trial, any alleged error in ruling on three foundation objections does not, in my view, constitute a “multitude” when defendant was permitted to fully present her defense that Nicole died from DIC-a defense rejected by the jury.
The Closing Argument
The lead opinion concludes that the prosecutor’s use of a photograph during closing argument was “a blatant appeal to the emotions of the jury” that should not have been allowed by the trial court. (Lead opn., ante, at p. 58.) The problems with this conclusion are significant. First, as the lead opinion admits, it has no idea whatsoever which photograph the prosecutor was showing to the jury. The context of the prosecutor’s remarks makes clear that he was using a photograph taken of Nicole after her death. But neither my colleagues nor I can make any inference beyond that, and the lead opinion’s attempt to do so goes far beyond our role as an appellate court.
Second, the lead opinion quite expressly refuses to decide whether the use of the photograph constituted prosecutorial misconduct, whether defendant’s trial counsel provided ineffective assistance of counsel in failing to object, or whether the trial court “should have stepped in” to prevent a miscarriage of justice from occurring. (Lead opn., ante, at p. 46.) Notwithstanding the absence of a finding of error as to the use of the photograph in question, the lead opinion nevertheless tries to use this nonissue to bolster its conclusion that defendant was denied due process of law.
Finally, defendant’s counsel never objected to the prosecutor’s use of the photograph during closing argument, for good reason. The use of autopsy photographs during trial and closing argument did not deprive defendant of due process of law. The California Supreme Court has held, “[a]utopsy photographs of a murder victim are always relevant at trial to prove how the crime occurred.” (People v. Carey (2007) 41 Cal.4th 109, 127.) Contrary to the lead opinion, I do not view the prosecutor’s use of an unidentified autopsy photograph during closing argument as a blatant appeal to the jury’s raw emotions, but rather as a means of arguing how baby Nicole’s fatal injuries were inflicted, which was perfectly appropriate.
Cumulative Error
The lead and separate opinions’ conclusions that the cumulative error doctrine requires reversal of defendant’s conviction for the second degree murder of baby Nicole rest on the alleged errors in sustaining the foundation objections, and in the use of one unidentified photograph during closing argument. As I have explained, ante, the lead and separate opinions have failed to show any error was prejudicial. They have also failed to show any nonprejudicial errors, considered together, rise to the level of prejudicial error. An appellate court cannot reverse a conviction based on cumulative error if it “ha[s] not identified any error that was prejudicial, whether considered separately or cumulatively.” (People v. Burney (2009) 47 Cal.4th 203, 256.)
Conclusion
For all these reasons, I strongly disagree with the lead and separate opinions’ conclusions that the jury verdict should be overturned. Defendant was convicted by the jury of the second degree murder of nine month old Nicole. In my view, and as described in the lead opinion itself, the jury was given conflicting evidence and resolved those conflicts, as is its duty. We cannot reweigh the evidence and there was no prejudicial error in the exclusion of evidence. The jury’s decision should stand.
(1) Justice Sills and Justice Fybel agree that there was no abuse of discretion under section 352 in regard to the blood in the diaper and vaginal bleeding. Justice Moore disagrees.
(2) Justice Sills and Justice Fybel agree that there was no abuse of discretion under section 352 in regard to the 911 call. Justice Moore disagrees.
(3) Justice Sills and Justice Moore agree that the foundation objections were incorrectly sustained to questions of the defense’s experts regarding how a medical condition might have explained the baby’s death without non-accidental blunt force trauma, including as to whether the medical condition existed in the first place. Justice Fybel concludes that any arguable errors were harmless.
(4) Justice Sills and Justice Moore also agree that foundation objections were incorrectly sustained to the series of five other questions addressed to defense experts. Again, Justice Fybel concludes that any arguable errors were harmless.
(5) Justice Sills and Justice Moore agree that the evidentiary errors identified in (3) and (4) above were not harmless. Justice Fybel disagrees and concludes that any errors were harmless.
(6) Justice Sills’ lead opinion finds no error in allowing in evidence from the defense expert as to the babysitter’s financial distress. Justice Fybel agrees. Justice Moore does not write separately on the issue and presumably agrees.
(7) Justice Sills’ lead opinion finds no ineffective assistance of counsel in defense counsel’s withdrawal of CALCRIM 303. Justice Fybel agrees. Justice Moore does not write separately on the issue and presumably agrees.
(8) Justice Sills’ lead opinion concludes there was ineffective assistance of counsel in defense counsel’s withdrawal of CALCRIM 360, but also concludes any ineffective assistance was harmless. Justice Moore does not write separately on the issue and presumably agrees. Justice Fybel does not address the issue because the lead opinion concludes there was no prejudicial error.
(9) Justice Sills’ lead opinion finds no abuse of discretion by the trial court in denying a motion for new trial based on alleged juror misconduct in not admitting insufficient capacity to understand English. Justice Fybel agrees. Justice Moore does not write separately on the issue and presumably agrees.
(10) Justice Sills’ lead opinion does conclude it was error for the trial judge to use defendant’s denial of guilt as an aggravating factor in consideration of probation. Justice Moore does not write separately on the question and presumably agrees. Justice Fybel does not consider the issue because a majority agrees to reverse the conviction, and any comment on sentencing is therefore unnecessary.
(11) Justice Sills and Justice Fybel agree that there was no cumulative prejudice as to the items admitted into evidence over 352 objections. Justice Moore disagrees.
(12) Justice Sills and Justice Moore agree that the combined effect of the incorrectly sustained foundation objections denied the defendant a fair trial. In addition, Justice Moore believes that the cumulative prejudice as to the items which she concludes it was an abuse of discretion to admit into evidence over section 352 objections further denied defendant a fair trial. Justice Fybel believes that any errors or abuse of discretion were harmless, either singly, or all together.
This footnote, of course, does not attempt to summarize the basis for either Justice Moore’s or Justice Fybel’s separate opinions.
“Q. What is it?
“A. Well, breaking it down, it means that -- disseminated is widespread. Affects organ systems. Intravascular coagulation is clotting within the blood vessels, usually the smaller blood vessels, and that’s accompanied by hemorrhage.”
“In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is:
“(a) Offered by the defendant to prove his conduct in conformity with such character or trait of character.
“(b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).”
“Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.
“(a) Facts relating to the crime
“Facts relating to the crime include:
“(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;
“(2) Whether the defendant was armed with or used a weapon;
“(3) The vulnerability of the victim;
“(4) Whether the defendant inflicted physical or emotional injury;
“(5) The degree of monetary loss to the victim;
“(6) Whether the defendant was an active or a passive participant;
“(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;
“(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and
“(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.
“(b) Facts relating to the defendant
“Facts relating to the defendant include:
“(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;
“(2) Prior performance on probation or parole and present probation or parole status;
“(3) Willingness to comply with the terms of probation;
“(4) Ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
“(5) The likely effect of imprisonment on the defendant and his or her dependents;
“(6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction;
“(7) Whether the defendant is remorseful; and
“(8) The likelihood that if not imprisoned the defendant will be a danger to others.”
“(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:
“(3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted.”