Opinion
A148767
11-20-2019
THE PEOPLE, Plaintiff and Respondent, v. DANTE ROBERSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. CH55115)
A jury convicted defendant Dante Roberson of felony child abuse (Pen. Code, § 273a, subd. (a)) after his toddler son's hands were severely burned in scalding hot water in a manner consistent with intentional injury.
Roberson challenges his conviction on numerous grounds, but it is unnecessary to address most issues he raises because we conclude that evidentiary rulings prejudicially affected the outcome of this case. Ultimately, the trial court erred when it allowed defendant's adult daughter to testify about three incidents during her own childhood in which she claimed defendant had abused her too, the details of which she only vaguely recalled and all of which were considerably different than the charged offense. None of these incidents had much, if any, probative value and yet all three were prejudicial. Despite a trial court's discretion to admit evidence of uncharged acts of prior child abuse and domestic violence in appropriate circumstances (see Evid. Code, § 1109, subd. (a)(1), (a)(3)), the trial court's decision to allow evidence of these incidents was an abuse of discretion. As we discuss, these errors were not harmless. Therefore, we reverse.
All further statutory references are to the Evidence Code except where otherwise indicated.
BACKGROUND
The victim, two-and-a-half-year-old M.H., was defendant's biological son, born after a casual encounter defendant had with a woman he met on a plane. M.H. lived in Southern California with his mother but would sometimes visit defendant when his mother's work took her up to the Bay Area where defendant lived.
On the day in question, the child was at defendant's home for an overnight visit while his mother was attending work-related meetings in the area. During the visit the child sustained severe, second-degree burns covering both of his hands. The injuries were gruesome and necessitated multiple rounds of surgery.
The injuries came to light when defendant called the child's mother at about 4:00 p.m. He asked her if the child liked to play in water, she said that he did, and defendant told her the child had put his hands in water and burned them; but he told her not to worry, assured her the child was fine and was watching TV and had his hands in ice. She asked to speak with her son, defendant put the child on the phone, and the child said "Hi, Mommy." So, thinking it was a minor injury, the child's mother got off the phone and returned to her meeting. Defendant called back again, this time "kind of nervous" or anxious, telling her nothing bad had happened and that he was a good father, and that M.H. had a blister on his hand but wasn't crying and, again, that he was fine. She didn't understand why defendant was anxious, but she told him she would come pick up M.H. on her way back from work and defendant said M.H. would be ready. But then about an hour later, he called her back a third time and said they would meet her at her hotel. He also texted her several times that afternoon to reassure her the child was fine, and telling her he had sent a picture of the child's hands to a friend who was a nurse. When defendant met her at the hotel parking lot that evening, M.H. was seated quietly in the backseat of defendant's car with his hands wrapped in a towel and was not crying. But M.H.'s mother began screaming when she unwrapped the child's hands and saw their condition (they were blistering badly, swollen and the skin was peeling off), and she raced him in her car to the nearest hospital, following the defendant who led her there. The child was treated in the emergency room of a local San Leandro hospital and hours later transferred by ambulance to a burn unit in San Francisco. He spent nearly two weeks in the burn unit, and then returned home to Southern California where he received follow-up treatment from another hospital.
The day after the incident, a local police officer, John Robertson, was dispatched to the San Francisco hospital to investigate a case of suspected child abuse. One of the San Francisco doctors (named Dr. DeWeese, who did not testify at trial) told the officer that the child's burns were consistent with his hands having been forcibly submerged for about five seconds in fluid heated to about 140 degrees. The doctor explained that a normal response to touching water that hot would be to pull one's hands out immediately. Officer Robertson then spoke with the child's mother and with defendant, who claimed the child had accidentally burned himself in the bathroom sink. Officer Robertson then arrested defendant, principally because of what Dr. DeWeese had said.
According to the burn surgeon who admitted M.H. to the San Francisco hospital that night and treated him during his hospital stay, Dr. Richard Grossman, M.H.'s injuries raised red flags to his doctors in the burn unit, and his case was a standout case to them, with all the textbook signs of an intentional submersion injury. The emergency room physician had shared these concerns too when he spoke with Dr. Grossman by phone that night, and had suggested Dr. Grossman follow up with a CPS investigation.
As Dr. Grossman would later explain at trial, M.H. had second- to third-degree burns in what he described as a "glove" distribution, a feature that is typical of intentional injuries, which meant the burns covered the entire surface of both hands uniformly and had a very clear line of demarcation at the wrist where the burn injury ends; there were no visible splash marks (meaning, tiny burned areas outside the main burn area as if water had splashed there); both hands were burned; and the burns were of uniform depth. There was also a bruise on M.H.'s abdomen. If a person accidentally fell into hot scalding water and struggled to get out, typically one would see splash marks, little peripheral burns caused by water splashing, and the burns would not have sharp lines of demarcation because the person's hands would be moving. "[A] very sharp line of demarcation, all other factors being equal, usually indicates that the extremity was held in a constant position . . . held usually involuntarily in the case of an accident or held in place by a third party in case of intentional or nonaccidental injury." And the absence of splash marks causes concern that the injury was intentional as if the person had been prevented from moving. The fact that both hands were burned was another red flag to him because people, even toddlers, don't usually put both hands into a burning agent by accident; when they burn their hands accidentally it's usually just one hand because they'll have the reflexes to pull the hand out rather than immerse the other hand too. So, to Dr. Grossman and his colleagues in the burn unit, the injuries had all the hallmark features of intentional injury. And they always assume, as they did here, that these kinds of glove-type immersion injuries are forcibly caused until it is proven otherwise.
Unbeknownst to either the doctors or the arresting officer, though, the water in defendant's bathroom sink was considerably hotter than normal, and it also had a slow drain that caused water to pool up in the sink basin, facts the police discovered later on when a detective, Officer Goodman, inspected defendant's bathroom and tested the water. He determined that the water running out of the hot water faucet reached at least 152 degrees, which was considerably hotter than the temperature allowed by regulatory limits (120 degrees) and hot enough to cause the type of burns M.H. sustained in just one second. According to the police test, it took less than two minutes (111 seconds) for the hot water to reach that temperature. It would take a defective thermostat for the water to get that hot. By way of comparison, the maximum temperature for a normal hot tub is about 104 degrees and, according to a prosecution witness, water temperatures approaching 120 degrees or 130 degrees are experienced as "extremely hot and painful." The water from the faucet was so hot that the police officer who tested its temperature saw visible steam when he turned it on. As for the sink's drain, the police test revealed that water would pool up in the sink basin to an average depth of about two inches with the drain open while the faucet was running.
At lower temperatures, according to Dr. Grossman, it would take about five seconds if the water were 140 degrees and about five minutes if the water was 120 degrees. At 120 degrees, the water might feel good for a little while but the pain would increase gradually until it felt extremely painful.
In just five seconds, it got to 121 degrees and in 32 seconds it reached 140 degrees.
The theory of the defense was that the burns were accidental. According to what defendant told police at the hospital the day he was arrested, the two had just finished watching a movie together when defendant, a musician, started to get ready for a work engagement that evening. He took the child to use the bathroom where he left the child alone on the toilet, and then went into another room and then the garage to gather his musical instruments. This was how he always did things; he would never watch the child on the toilet, and he always let M.H. stand on the toilet afterwards to wash his own hands. Defendant was taking his time because he knew the child was on the toilet. About five minutes later, though, he heard the child scream out "Ow, daddy, hot," and defendant ran back into the house and to the bathroom to see the child standing on the edge of the toilet with his hands reaching into the sink as the water was running, apparently having fallen against the sink cabinet and struggling to get out of the sink. The hot water faucet was turned on more than the cold water faucet, and the sink was filled with hot water. Defendant described the child as "kind of pushing, kind of stuck" in the sink, with his hands at a downward angle flush inside the sink, trying to push himself out. He couldn't tell what the child had been doing ("I don't know if he was playing with the water") but it looked like M.H. was "trying to use the sink to get out or he didn't know how to get out and his hands were in there. And that's when I got to him, his hands were kinda out and I yanked him out . . . ." He tried to put his own hand in the water but it was hot. So he turned off the water, felt the boy's hands which were hot and "started freaking out." But the boy wasn't crying and said, "I'm okay daddy," whereupon defendant began trying to tend to his wounds by putting the child's hands in cold wet towels and applying ice. The boy watched TV while he did this, never complaining, but within about ten minutes the wounds got worse and the skin on his hands began peeling off. That's when defendant "really freaked . . . out" and he called the child's mother.
Defendant did not testify.
The defense's key witness was accident reconstruction expert, Dr. Winthrop Smith, who testified that M.H.'s injuries were consistent with an accident. He concluded, based on an analysis of the child's size and the dimensions of various bathroom fixtures, that the child could well have climbed up on the toilet and easily turned on the hot water faucet himself. Smith opined that M.H. could have fallen with his hands in the sink and, given the geometry of the sink, had difficulty getting back out. He also would have had difficulty getting his hands out had he simply been playing in the water in the sink as the temperature increased. Smith also testified that the bruising to the child's abdomen was consistent with his having leaned against the sink. The police investigation confirmed that M.H. could have reached the sink too and that defendant's account of the water being hot was plausible.
The prosecution's theory was that defendant had intentionally inflicted the burns, by submerging the child's hands in hot, scalding water. In addition to the evidence at issue in this appeal (discussed below), its principal evidence consisted of: (i) the medical testimony described above from Dr. Grossman, M.H.'s treating burn surgeon, about the nature of the injuries and the reasons M.H.'s treating doctors had been concerned that the injuries appeared to be paradigmatic intentional submersion burns; and (ii) testimony from a physician qualified as a child abuse expert, Dr. Rachael Gilgoff, who opined that the burns were consistent not with a child struggling to get out of hot water but with forcible submersion, principally for the same reasons that had caused Grossman and his colleagues to be concerned about intentional injury (because of the severity of the burns, their pattern and the absence of splash marks).
An alternative theory, about which no witness was questioned, was that at minimum defendant been criminally negligent in allowing his son to suffer these injuries. The criminal negligence theory was encompassed by the jury instructions, and the prosecution told jurors in closing argument, in passing, that they could convict on this theory too, although he stressed that "my theory has been clear from day one, that this defendant directly caused these injuries. Very clear."
Dr. Grossman, though, was candidly reflective about his uncertainty over what befell M.H., could not say definitively his injuries were intentional, and hadn't previously considered the possibility that the child might have had both of his hands in the sink as the water heated up gradually to a dangerously hot, scalding temperature. He had thought it was improbable this could have been an accident. He explained: "I struggle to understand how a child could put both hands in fully into scalding hot water. One hand is easier to understand. But both. How could one go in unless they went in exactly the same time, which is not how people move. Why would a person put one hand in after another one that's already burned? That's the aspect that troubles me the most." Yet, he admitted the absence of splash marks was not dispositive. And he hadn't been aware that the hot water in the bathroom sink could get as hot as 152 degrees. When presented by the prosecution with a hypothetical, he declined to say that the injuries would likely be the result of forcible submersion even at that high a water temperature, though he was still puzzled as to how they could have occurred and testified that anybody "with volition" would have pulled their hands out in time to avoid a scalding burn had the water gradually increased to that temperature. But when questioned by the defense, he acknowledged that someone might not be able to pull their hands out fast enough to avoid getting burned by water that hot ("you'd pull out super fast, but not maybe fast enough"). He also acknowledged that would be true, in particular, if someone had trouble leveraging their hands out of the sink. The final question was submitted by a juror and read by the judge asking whether it was possible for these kinds of burns to have been accidental, and he confirmed that it was although it would not be typical: "It is possible, but when we see the hallmarks of complete immersion in both hands with abrupt line of demarcation and the absence of splash marks in an awake, conscious young person is often taken to signify a non-accidental or intentional injury."
"[Prosecutor]: . . . Let's say dad said he sets his kid on the toilet, he left him in there for five minutes. And when comes back in the house he hears a scream and he runs to the bathroom. He said the kid got up onto the toilet holding his hands in the water making a motion like this (indicating). Dad said the victim turned on the water by himself, putting both hands in the water causing the burns that we've seen and the water was running. And the burns were similar to the photos with similar lines of demarcation and glove-type burn injuries on both hands. [¶] Given the injuries you've seen in the picture I've showed you, what would your opinion be as to whether that was forcible submersion or an accident?
"A: May I ask a question please? . . . [¶] . . . [¶] How hot was the water?
"Q: The water is anywhere from 120 degrees to 152 degrees.
"A: Well, that's a very wide range. It might bring [a] different answer. [¶] So if it were 120 degrees, have to hold his own hands in there for minutes, which is extremely unlikely because it hurts a lot. [¶] Whereas if it were 150 degrees, then the immersion time to produce the same injury would be only seconds. I still question whether or why anybody, a child included, would hold both his own hands under scalding hot water. But . . . the higher the temperature, the less the exposure time, the more likely it seems to—it could have been accident; though . . . again, with it being two hands and that the pattern of injuries we discussed earlier, it's less likely to be an accident, more than it is being equal." (Italics added.)
When asked whether his opinion would change if it took 111 seconds for the water to reach 152 degrees, he added that nobody, not even a child, would hold their hands under water for a long period of time as the water produced a scalding burn. "People just don't do that. . . . Nobody with the volition to pull their hand out of scalding hot water would keep it there. And the longer, I think the longer, the ramp of time in temperature [increase], the more likely it is that somebody would have the wherewithal at the time to withdraw."
Dr. Gilgoff's opinions were based on photographs, the police report and medical records, a methodology she acknowledged was inferior to personally examining the injuries which was "most definitely" preferred. She didn't know which of the photographs she looked at were taken after M.H.'s burns had been treated, and on cross- examination couldn't say whether that uncertainty impacted the validity of her expert opinion ("[t]hat's a good question . . . . I don't know if it changes my assessment overall"). Like Dr. Grossman, she agreed the absence of splash marks was not dispositive, and acknowledged several factors that could explain their absence (a long-sleeve shirt, or shallow water depth). She also testified that burns of varying depth are most likely consistent with accidental injury, and acknowledged that one of M.H.'s treating doctors (a doctor in Los Angeles who performed a skin graft) had described his burns that way. Dr. Gilgoff also testified, more generally, that toddlers are in a constant state of exploring and often try to do things independently, and that a toddler who's been taught to stand on a toilet to wash their hands with assistance would be more likely to try to do that by themselves if left alone; there have been cases of accidental scald injuries from baths and hand washing; even a child as young as six months old has been known to accidentally turn on a hot water faucet; and children under five (and the elderly) are at the highest risk of accidental immersion burns.
The prosecution tried to rehabilitate her on re-direct, where she avowed definitively that nothing brought up during cross-examination had changed her overall opinion that the injuries were intentional.
There was no testimony about what M.H. was wearing (his mother couldn't recall). The defense would argue to the jury that one could infer from the circumstances and some of the photographic evidence that he had been wearing a long-sleeve shirt. The prosecution disputed that inference.
There also was other evidence, apart from the characteristics of the child's burns. There were no injuries to the child's arms, which the defense expert testified was not consistent with forcible submersion. The defense expert also testified the bruise to his abdomen was consistent with his having leaned against the sink. M.H. never cried and was described as being fairly stoic given the injuries he sustained. In addition, there was evidence the child had made exonerating statements, twice. To Dr. Grossman, who wrote in his notes on the night M.H. was admitted to the San Francisco burn unit, "patient corroborate[s] story, put his own hands in water." Dr. Grossman testified that M.H.'s mother probably wasn't present for that conversation, because typically he's more likely to get a truthful answer from a child outside of their parents' presence. M.H. also made exonerating comments to his mother, who testified that she asked him that night what had happened, and he said he put his hands in hot water. She also asked him if daddy did it, and he said "no." One of the police officers corroborated that conversation, testifying that M.H.'s mother had recounted that conversation to him during his investigation at the hospital.
That testimony was elicited by the prosecution on direct examination. Oddly, she briefly recanted somewhat during cross-examination in a manner that was unclear and confusing, but ultimately confirmed again that M.H. had said "no" when asked if daddy had put his hands in the water.
It was in this context that the prosecution's other key witnesses testified: defendant's semi-estranged, adult daughter whom we refer to as "Jane Doe." Doe met defendant when she was six years old and first stayed with defendant alone at age nine. During her preteen and teenage years, the two had an "on and off" relationship, with frequent arguments and yelling. Nervous and uncomfortable, and testifying against her will, Doe testified briefly about three incidents from her own past that took place roughly four to nine years before the burning incident at issue here for which defendant was criminally charged.
Doe, who was 22 when she testified at trial in November 2015, would have been approximately 18 at the time of the burning incident which happened on September 15, 2011.
One time when she was nine or ten years old, according to Doe, she had "gotten in trouble" and defendant disciplined her by striking her a single time on her chest with a drumstick, leaving a bruise for about three days. Doe couldn't recall why she got in trouble. She could recall only that she was "about ten-ish" when this happened and that it had occurred at her grandmother's house in San Leandro, in defendant's bedroom. She was upset because she "thought it was overkill," and embarrassed. She never told anyone except her mother about this incident.
Doe testified that another time she got in trouble, defendant gave her "a worst whopping," leaving bruises on her legs and arms. She could not recall many details. She couldn't remember how old she was, only that she had to have been in middle school. Nor could she remember how she became bruised, nor whether defendant had used his hands on her or an object. She also could not remember the circumstances: she testified, "I had gotten in trouble for either not cleaning up or doing something. I got in trouble for. And he got mad. I really don't remember how, like, what happened or how that happened. I just remember coming home and my mom saw the bruises on my body." She recalled only that defendant was living with his wife in Sacramento at the time, and she thought she had spent the week with him. She testified that it made her mad "but then I went to sleep and I got over it." And, again, she never told anyone but her mother what had happened. Asked why the police were not called, she testified, "Because I was young, and at the time, that's my dad, and didn't really phase [sic] me too much. Like it would hurt, but it wasn't to where oh, I should call the cops on my father because he abused me."
The final incident, which caused a rift with her father, happened when Doe was 14 and spending the summer with defendant in San Leandro. She testified the two weren't really getting along, and defendant got angry at her for wanting to spend time with his ex-girlfriend rather than with him, and for telling people she (Doe) didn't want to stay with him anymore and that she was going back home to live with her mother. Apparently thinking she was trying to call his ex-girlfriend, defendant took her phone away and began yelling and screaming at her. Then he told her to get on the floor and do sit-ups, and when she refused he sat on top of her legs, "yelling and screaming in my face," while she did sit-ups in tears. She was unclear about how long this went on, at one point testifying it "[s]eemed like forever. It had to be at least an hour" but testifying at another point that it lasted "maybe 10, 15 minutes." Again, she never talked to anyone but her mother about what happened. And she tried not to think about it afterwards. She denied that the reason defendant took her phone was concern she was talking to boys. And she testified it was so horrible that she didn't see her father again for three years, until she tried to reconcile with him at age 17.
Doe acknowledged on cross-examination that her mother would sometimes physically discipline her too, albeit in testimony that was somewhat unclear. She also testified that she had been very shocked to learn about what had happened to M.H., and surprised.
She testified "I got spanking and stuff from my mom. That's about it. But it never caused any bruising or any marks until later be shown. They never showed until later. No marks were shown from the whopping."
The jury was instructed that it could consider this evidence, and that if it found by a preponderance of evidence that defendant in fact committed the uncharged child abuse, it "may, but [is] not required to, conclude from that evidence that the defendant was disposed or inclined to commit child abuse and . . . that the defendant was likely to commit and did commit child abuse" in this case.
In relevant part, it was told: "The People presented evidence that the defendant committed child abuse that was not charged in this case. [¶] To prove that the defendant committed uncharged child abuse, the People must prove that: [¶] One, the defendant willfully inflicted cruel or inhuman physical punishment or an injury on a child; [¶] Two, the punishment or injury inflicted by the defendant caused the traumatic physical condition to the child; [¶] And three, when the defendant acted, he was not reasonably disciplining a child."
The jury convicted defendant of felony child abuse (Pen. Code, § 273a, subd. (a)), with findings on a penalty enhancement that he personally inflicted great bodily injury on M.H. (id., § 12022.7, subd.(d)), and this appeal followed.
DISCUSSION
I.
Prior Uncharged Acts Evidence
Defendant argues the court abused its discretion under Evidence Code sections 1109 and 352 in admitting Doe's testimony about the prior abuse she allegedly experienced, and we agree.
A. The Statutory Framework
Section 1109 embodies a number of exceptions the Legislature has enacted to section 1101, which prohibits evidence of a person's character or character trait when offered to prove his conduct on a particular occasion. (See § 1101, subd. (a).) Such evidence, commonly referred to as "character" or "propensity" evidence (People v. Disa (2016) 1 Cal.App.5th 654, 670 (Disa)), is generally barred by subdivision (a) of section 1101 which states: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." As the Law Revision Commission explains, "Section 1101 is concerned with evidence of a person's character (i.e., his propensity or disposition to engage in a certain type of conduct) that is offered as a basis for an inference that he behaved in conformity with that character on a particular occasion." (Cal. Law Revision Com. Com., § 1101.) Section 1109, though, permits the introduction of character evidence in criminal prosecutions involving domestic violence, elder or dependent abuse, and child abuse. (See § 1109, subd. (a).) The Legislature adopted a similar exception for criminal prosecutions involving sexual offenses, in section 1108. (See § 1108, subd. (a).) At issue in this case are two of the exceptions under section 1109: for domestic violence prosecutions and child abuse prosecutions.
The child abuse exception is set forth in subdivision (a)(3) of section 1109. It states: "Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant's commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101." (§ 1109, subd. (a)(3).)
Section 1101, subdivision (b), which contains exceptions for evidence offered to prove a fact other than a defendant's propensity or character (for example, when offered to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake or accident), is not pertinent here. (See § 1101, subd. (b).)
The term "child abuse," as used in section 1109, entails conduct that is criminal: it is defined as "an act proscribed by Section 273d of the Penal Code" (§ 1109, subd. (d)(2)) which is the crime of corporal punishment or injury to a child. It entails willfully inflicting cruel or inhuman punishment or injury upon a child that results in a traumatic condition. (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1160 (Cockburn); Pen. Code, §273d.)
Defendant was not charged with violating Penal Code section 273d but Penal Code section 273a, which is the more general child abuse statute that covers a broader range of abuse (including child endangerment) and doesn't require any actual injury. (See Cockburn, supra, 109 Cal.App.4th at p. 1160; People v. Clair (2011) 197 Cal.App.4th 949, 956.) Although the two statutes proscribe some of the same conduct, and thus overlap, prosecutors have discretion to elect which of the two felonies to charge. (See Cockburn, at pp. 1157-1161.)
Defendant does not assert that this case does not constitute a criminal action for "an offense involving child abuse" as used in the child abuse exception under section 1109, subdivision (a)(3) since he was not charged under Penal Code section 273d. Therefore, we assume without deciding that it does. (Cf. People v. Dallas (2008) 165 Cal.App.4th 940, 942, 957-958 [where defendant was charged with violating both Penal Code section 273d and Penal Code 273a, jury could consider defendant's prior acts of child abuse in connection with section 273a count].)
The domestic violence exception is set forth in subdivision (a)(1) of section 1109. It states in pertinent part: "(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
The meaning of "domestic violence" depends on the age of the incident. Subdivision (d)(3) of the statute states that the term "has the meaning set forth in Section 13700 of the Penal Code," a definition that does not encompass abuse perpetrated by a parent against their child. Rather, it is restricted to a narrow type of abuse (entailing actual, attempted or threatened injury), perpetrated against a narrow class of victims (who, generally described, have or had an intimate relationship with the perpetrator). However, "if the act occurred no more than five years before the charged offense," then the definition of "domestic violence" is broader: "[s]ubject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time," the term "domestic violence" also includes the definition under Section 6211 of the Family Code, which is part of the Domestic Violence Prevention Act ("DVPA"). (§ 1109, subd. (d)(3).) That broader definition includes a victim who is "[a] child of a party." (Fam. Code, § 6211, subd. (e).) In addition, the DVPA definition is "not limited to the actual infliction of physical injury or assault" (Fam. Code, § 6203, subd. (b)), but also encompasses nonviolent conduct such as mental or emotional abuse (see, e.g., N.T. v. H.T. (2019) 34 Cal.App.5th 595, 602-603; Phillips v. Campbell (2016) 2 Cal.App.5th 844, 852-853). Thus, in situations governed by this broader definition (i.e., where the prior abuse took place within five years of the charged offense), section 1109's exception for prior acts of "domestic violence" is not limited to prior incidents involving physical assault or injury. (See, e.g., People v. Ogle (2010) 185 Cal.App.4th 1138, 1143-1145 (Ogle) [stalking]; People v. Kovacich (2011) 201 Cal.App.4th 863, 893-896 [violently kicking a family dog in family's presence].)
The term "abuse" under that definition means "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a).)
It applies to "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Pen. Code, § 13700, subd. (b), italics added.) The term "cohabitant" does not include children; it is limited to "two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship," and the statute specifies a number of factors bearing on that determination (ibid.).
Defendant's implication, in a footnote, that the domestic violence exception is predicated on actual violence is, for incidents occurring less than five years before the charged offense, incorrect.
Section 1109 places limitations on the introduction of character evidence in criminal cases that fall within its scope, whether child abuse or domestic violence. Temporally, the statute contains a presumptive 10-year cutoff, prohibiting the admission of acts occurring more than 10 years before the charged offense "unless the court determines that the admission of this evidence is in the interest of justice." (§ 1109, subd. (e).) In addition, the statute expressly incorporates section 352 (id., subd. (a)), as does the parallel statute governing sexual offense prosecutions (§ 1108, subd. (a)).
In People v. Disa, supra, 1 Cal.App.5th 654, we recently explained how section 352 functions with respect to the admission of propensity evidence under these statutes:
" '[B]oth sections 1108 and 1109 limit the admissibility of evidence of prior misconduct if its probative value is substantially outweighed by its prejudicial effect. (§§ 352; 1108, subd. (a); 1109, subd. (a).) The specific retention of the power to exclude evidence under section 352, found in both sections 1108 and 1109, provides "a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts." ' [Citation.]
"Thus, even relevant evidence of past [misconduct] may be excluded when its 'probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (§ 352.) ' "Evidence is substantially more prejudicial than probative . . . [only] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' . . . " 'The prejudice which . . . Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' . . . 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors.' " [Citations.]' [Citation.]
"In the analogous context of evidence of a defendant's prior sex offenses governed by section 1108, our Supreme Court has explained how trial courts should evaluate such evidence under section 352: 'By reason of section 1108, trial courts may no longer deem "propensity" evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.' (People v. Falsetta (1999) 21 Cal.4th 903, 916-917 (Falsetta).)" (Disa, supra, 1 Cal.App.5th at p. 671.)
The mechanics of our review under section 1109 thus involves two inquiries. We first must assess whether the trial court properly determined the existence of a preliminary fact, "namely, that the uncharged conduct constitutes a statutorily-enumerated . . . offense[]." (People v. Jandres (2014) 226 Cal.App.4th 340, 353 (Jandres); see, e.g., Disa, supra, 1 Cal.App.5th at p. 672.) "The trial court must make a preliminary determination of whether the proffered evidence is sufficient for the jury to find, by a preponderance of the evidence, that the defendant committed an enumerated offense. [Citations.] 'The court should exclude the proffered evidence only if the "showing of preliminary facts is too weak to support a favorable determination by the jury." ' [Citation.] 'The decision whether the foundational evidence is sufficiently substantial is a matter within the court's discretion.' [Citation.] Accordingly, we review the trial court's determination of this preliminary fact under the abuse of discretion standard." (Jandres, at p. 353.) In other words, if the evidence is insufficient for a jury to find by a preponderance of the evidence that a defendant's uncharged conduct satisfies the statutory definition of "child abuse" or "domestic violence" under section 1109, then the uncharged conduct is inadmissible character evidence, prohibited by section 1101, and a trial court abuses its discretion by allowing the jury to hear it. (See People v. Nguyen (2010) 184 Cal.App.4th 1096, 1119-1120 [error to admit evidence of non-sexual offenses under section 1108].) On the other hand, if the evidence is sufficient for the jury to make such a finding, then we proceed to the second inquiry: whether the evidence nonetheless should have been excluded under section 352. (Jandres, at p. 353.) That question, too, is reviewed for an abuse of discretion. (Ibid.; accord, Disa, at p. 672.)
Our review under this standard is not toothless. "Discretion is delimited by the applicable legal standards, a departure from which constitutes an 'abuse' of discretion. [Citation.] 'The discretion intended . . . is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.' " (People v. Harris (1998) 60 Cal.App.4th 727, 736-737 (Harris).) Furthermore, " '[b]ecause evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care.' " (People v. Nguyen, supra, 184 Cal.App.4th at p. 1115; see, e.g., Jandres, supra, 226 Cal.App.4th at pp. 355-357 [error to admit evidence of uncharged prior sex offense against 11-year-old girl in prosecution for kidnapping and forcible rape of older female victim; prior incident could not "rationally support[] an inference that defendant [was] predisposed to rape an 18-year-old woman" given the "many differences between the two offenses—including the circumstances . . . ; the ages of the victims (11 and 18); and the nature of conduct"]; Harris, at pp. 736-741 [error to admit evidence of prior, unexplained rape of a stranger in prosecution for sexual crimes against mental health patients that were "of a significantly different nature and quality" than the prior sex offense; concluding "the only factor favoring admitting this evidence is that it did not consume much time. Everything else militates against admission: The evidence was remote, inflammatory and nearly irrelevant and likely to confuse the jury"], cited with approval, Falsetta, supra, 21 Cal.4th at p. 919 ["the Harris court carefully examined, and applied to the facts before it, the factors included in the trial court's discretionary decision to admit propensity evidence under sections 352 and 1108"]; see also People v. Johnson (2010) 185 Cal.App.4th 520, 535 (Richman, J.) (Johnson) [construing Harris as turning principally on the "graphic, violent nature" of the prior incident rather than its remoteness, and distinguishing Harris "[m]ost importantly" on the basis of the lack of similarity between prior incident and charged offense].) Of course, each case must be judged on its own unique facts under section 352. Considering the scope of section 1109, and balancing the appropriate factors as to one of these incidents, we conclude the court abused its discretion in admitting all three incidents.
B. Background
First we briefly set out the court's ruling in context.
Prior to trial, the People moved in limine to admit evidence that defendant abused Doe "on many occasions" between ages 9 and 15. The initial motion discussed three incidents on unspecified dates, one of which was an incident similar to the sit-up incident Doe described at trial. In that episode, according to the motion, defendant sat on top of Doe while forcing her to do sit-ups after having accused her of being fat and physically dragging her off a couch. The motion also stated vaguely: "Ms. [Doe] recalled the defendant would beat her either with his hands or his drumsticks."
The motion also cited another incident in which defendant angrily slammed Doe's head onto a computer table after discovering Doe had been speaking to a 21-year-old man, and a third incident on another occasion where he took her cellphone away and spat in her face after Doe called her mother to report she no longer wanted to stay with defendant because he was mean to her.
Defendant simultaneously moved in limine to exclude evidence of any and all allegations by Doe of prior abuse.
At an initial pre-trial hearing, defendant argued the prosecution's evidence should be excluded under section 352 principally because Doe's allegations were "vague in date, time and place." Among other things, defense counsel argued that the lack of specificity hampered an effective defense: "we have [a] person making claims about prior acts with no way for the Defense to ascertain whether or not she's being truthful. Without dates or times, we are simply prevented from investigating the truth of these allegations and presenting to the jury evidence that could refute these allegations. And you're left with the jury hearing a one-sided story without the Defense being able to meaningfully cross-examine or present a defense. And this is all related to a prior bad act for which there is no corroborating evidence for which Mr. Roberson was never investigated, for which he's never been arrested. And I think that when you combine all of this together, the [section] 352 test shows that this is clearly more prejudicial than it is probative." "[H]ere we have nothing that corroborate[s] Ms. [Doe]'s story. There's no other witnesses; there's no photos; there's no police reports. There is nothing."
Defense counsel also argued there was not even enough information to determine whether the allegations constituted child abuse. The parties and the court focused most directly on the sit-up incident in that regard, which the People maintained was admissible as a prior incident of domestic violence.
The court ruled that the incidents were "definitely not admissible at this point," because it did not have enough information to evaluate them. It expressed questions both about the uncertain nature of the incidents and their timing. But it deferred a definitive ruling because the People planned to speak further with Doe.
It told the parties: "Here's the problem I have. You're talking to the victim later this week. And I'm not sure if spitting would involve a traumatic condition, but I think the slamming of the head could, and I think I'd like to know that information, as well as any other dates you might have before I rule on the uncharged victim and these three incidents. [¶] And then I'd like to see more on how the charged case involves domestic violence, as well as these uncharged victims under that theory. [¶] But to me, without knowing the dates, I'm a little uncertain."
In a lengthy supplemental filing, defendant again moved to exclude evidence of Doe's prior alleged abuse, arguing that none of the incidents were relevant under section 1109 because none constituted child abuse, and arguing at length that the evidence should be excluded under section 352 because it was more prejudicial than probative, for numerous reasons.
The final hearing took place several days later, preceded by an off the record discussion. By this time, the incidents had apparently come into somewhat greater focus, and the court summarized them in the context of announcing a tentative ruling:
"[T]here are four incidents, one I'll call, as it was described to me, was the head being slammed on the computer table, and that's also combined with an incident defined or described as a spitting. And let me just give you some tentative rulings right now. [¶] That incident involving the head slamming on the computer and the spitting, it's been told to me informally there's no evidence of a traumatic condition. It's also been told to me that this occurred at an unknown date, but possibly at the five- or even six-year mark. So my indicated ruling on that one incident would be to exclude it. [¶] The second incident is what we call, what's been described as the sit-up incident, and that is within five years. There's no traumatic condition, but it does appear to meet the threshold. Obviously there's other arguments that have been briefed and I'd like to hear more on. [¶] The drumstick incident, it's outside of the five years, within the ten years. There were bruises which constitute a traumatic condition. I'd like to hear more on. [¶] And then the fourth incident, assuming that the defendant committed this bad act, with an unknown date, there is a traumatic condition described as bruises, and that does meet the threshold, assuming the defendant committed those acts. [¶] So my tentative ruling would be to exclude the head being slammed into the computer table and the spitting incident, which is one incident, because of the date problem and no traumatic condition. And I want to hear more on the other three."
The court appears to be referring to a document that is not in the record. We presume it is a copy of a statement Doe gave to police in 2011 during the police investigation into this case.
Extensive argument then followed. Defense counsel argued, among other things, the sit-up incident was "completely irrelevant" because it wasn't child abuse. At most, defense counsel argued, it reflected "tough parenting." The court then commented that "I wouldn't admit it as child abuse. The only possible theory is domestic violence." Defense counsel also stressed the incident's remoteness in time, lack of a prior conviction and lack of corroborating evidence and argued the witness' recollection of the other two incidents was too vague to provide a context for the court to evaluate them, and that the scanty recollection of details hampered defendant's ability to defend against the allegations. At the end of the hearing, the court announced it would admit all of the incidents other than the one (not at issue here here) in which defendant allegedly banged Doe's head on a computer table and spat at her.
The court did not explain the reasons for its ruling in much detail. It stated: "after considering everything in [section] 1109, including but not limited to the [section] 352 analysis, I find that the three incidents themselves say something. [¶] I'm actually excluding one incident that's really two incidents, that's the slamming of the head to the computer and also spitting on the uncharged victim, that will be excluded, both incidents on that date. [¶] As well as the analysis that I undertook in excluding the two incidents with regard to the charged victim. Hopefully that reflects the weighing process that I went through and the thinking out loud reflecting that."
This apparently was a reference to an earlier in limine ruling excluding evidence of two incidents involving M.H. that the prosecution had sought permission to introduce: an incident in 2009 in which M.H., then nine months old, returned from a visit with defendant with a bruise to his eye and scratches, which defendant attributed to an accident during a basketball game and that police investigated but found no probable cause for an arrest, and an incident in 2011 in which M.H., who suffered from a seizure disorder, had a seizure while in defendant's care and was taken to the hospital. After hearing argument on these two incidents, the court excluded the seizure evidence, which was utterly irrelevant. Its basis for excluding the 2009 bruising incident was that the police had found no probable cause for arrest.
C. Analysis
1. The Sit-Up Incident
Starting first with the sit-up incident, which was the most recent of the three, the trial court correctly ruled that if this incident were admissible at all, it was admissible not under the child abuse exception (§ 1109, subd. (a)(3)) (because it had not caused a traumatic injury and thus was not "child abuse"), but as an act of domestic violence (id., subd. (a)(1)). We have no quarrel with that aspect of the court's ruling. Although the incident was not admissible under the narrow Penal Code definition of "domestic violence," as to which section 1109 places no time limit, it fell within the five-year time limit for admitting prior acts of "domestic violence" as defined by the DVPA (see § 1009, subd. (d)(3)) and there was a sufficient evidentiary basis for a jury (if it believed Doe) to conclude that the incident constituted "domestic violence" under that definition, as a form of psychological abuse that disturbed Doe's mental or emotional calm (see N.T. v. H.T., supra, 34 Cal.App.5th at p. 602).
In assessing its possible relevance as an act of domestic violence, however, and weighing the relevant section 352 factors, the trial court erred.
a. Probative Value
As this court has previously explained, " ' "[t]he principal factor affecting the probative value of an uncharged act is its similarity to the charged offense." ' " (Johnson, supra, 185 Cal.App.4th at p. 531.) Although "dissimilarity alone does not compel exclusion" of otherwise admissible propensity evidence (People v. Cordova (2015) 62 Cal.4th 104, 133), incidents " 'may be dissimilar enough, or so remote or unconnected to each other, that the trial court could apply the criteria of section 352 and determine that it is not proper for the jury to consider one or more of the . . . [other] offenses as evidence that the defendant likely committed' " the offense in question. (People v. Villatoro (2012) 54 Cal.4th 1152, 1163.) "As to probative value, ' "[t]he court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue upon which it is offered . . . " ' (Harris, supra, 60 Cal.App.4th at pp. 739-740.) Put differently, the uncharged [prior] offense evidence 'must have some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged.' " (Jandres, supra, 226 Cal.App.4th at p. 355.)
As even the People concede, the sit-up incident bore no resemblance to the act of child abuse for which defendant was charged: they concede (at page 41 of their brief) that "the probative value of the sit up incident was less than the other two incidents because it was not violent and was different than intentionally burning a toddler." (Italics added.) Defendant, on the other hand, argues the sit-up incident had no probative value, because it was not violent. We conclude the incident's probative value was marginal at best. Only at the highest level of generality could it be said to bear some resemblance to the charge against defendant in this case: in both instances, defendant allegedly acted in an abusive manner toward one of his children. However, the evidence that defendant imposed military-style discipline on an adolescent has virtually no tendency, if any, to show he is predisposed to physically hurt a toddler, much less to do so by burning his hands. "The lack of any significant probative value on a disputed issue weighs strongly in favor of excluding this evidence." (Harris, supra, 60 Cal.App.4th at p. 741.)
b. Other Factors
Most of the remaining section 352 factors counselled in favor of excluding the sit-up incident as well.
Section 1109 requires the court to consider "corroboration" and "remoteness in time." (§1109, subds. (a)(3) & (d)(3) [as applied to "domestic violence" as defined by the DVPA].) As defendant repeatedly argued below, there was no corroboration for any of the incidents involving Doe. As he put it: "There's no other witnesses; there's no photos; there's no police reports. There is nothing." And the remoteness factor, at best, cuts neither for nor against admission of the sit-up incident, which took place approximately four years before the charged offense against M.H. "Remote prior conduct is, at least theoretically, less probative of propensity than more recent misconduct." (Johnson, supra, 185 Cal.App.4th at p. 534.) The sit-up incident was just under the five-year statutory cut-off for admission as an act of domestic violence under the broader definition in the DVPA. That is remote as far as the statutory scheme is concerned.
Doe's mother did not testify.
The sit-up incident did not result in criminal charges or a conviction, a factor the People concede adds to the prejudice. (See People v. Tran (2011) 51 Cal.4th 1040, 1047.)
In addition, the strength or weakness of the evidence of the charged offense bears on the degree of prejudice. (See Jandres, supra, 226 Cal.App.4th at p. 356.) As we have previously explained, the prejudicial effect of other crimes evidence is diminished "if the evidence of the current crime is strong, for it is less likely the jury will be swayed to convict the defendant based on his past misconduct." (Johnson, supra, 185 Cal.App.4th at p. 536.) Here, the case against defendant for intentionally or even negligently causing M.H.'s injuries was hotly contested: the child's statements that his father had not injured him and that he had put his own hands in the water, coupled with the extremely hot tap water and other evidence, made the case against defendant a relatively close one. (See id. at p. 535.)
The inflammatory nature of the sit-up incident relative to the burning of M.H. counsels neither for nor against its admission. To be sure, the incident is less inflammatory than the intentional scalding of a young toddler, which lessens its prejudicial impact. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.) And often we will affirm in this situation. (See, e.g., Johnson, supra, 185 Cal.App.4th at pp. 532-534 [affirming, where prior domestic violence incidents were less inflammatory than charged attempted murder and also had "great" probative value, "came from independent sources, which reduced the danger of fabrication," and had resulted in convictions].) However, the sit-up incident was more inflammatory, and uniquely likely to " 'evoke an emotional bias against the defendant as an individual [with] very little effect on the issues' " (People v. Karis (1988) 46 Cal.3d 612, 638), than the prosecution's alternative theory: that M.H.'s burns were the result not of intentional injury, but dangerously poor parenting that amounted to criminal negligence. All three incidents Doe recounted were more inflammatory than that alternative theory, and considerably so. But even when uncharged conduct is less inflammatory than the charged conduct, it can be error to admit the evidence if it has little or no probative value which is the case here. (See Jandres, supra, 226 Cal.App.4th at p. 356 [in prosecution for forcible rape of 18-year-old woman, error to admit evidence defendant previously put his finger in the mouth of an 11-year-old girl in a potentially sexually prurient manner]; People v. Kerley (2018) 23 Cal.App.5th 513, 530, 540, 574 [in prosecution for murder of defendant's girlfriend whose nude body was discovered beaten to death in remote roadside location, error to admit evidence defendant had held a gun to another woman's head during sex]; cf. People v. Earle (2009) 172 Cal.App.4th 372, 396-401.)
As defendant points out, one of the questions the jury submitted during deliberations indicates that one or more jurors considered the negligence version of the case: the note asked whether "[i]n Alternative C for the major charge[,] did the defendant have to know that it was a dangerous situation that he was leaving the child in?" In addition, the defense submitted a declaration in support of its new trial motion stating that one of the jurors reported that the jury had not agreed as to whether M.H.'s injuries were accidental or intentional, and that "some" of the jurors concluded defendant had been only criminally negligent. On that basis, the defense asked the trial court to set aside the jury's enhancement finding that defendant had personally inflicted great bodily injury on M.H., arguing that it was undermined by the lack of juror unanimity. The prosecution opposed the request, arguing that the jury "necessarily" found that defendant had forced M.H.'s hands into scalding water because the jury was polled and confirmed that both the verdict of guilt and the enhancement finding were their true and correct verdicts.
The only factor that clearly weighed in favor of admitting Doe's testimony was that it didn't consume much time: about an hour in a ten-day trial.
For all of these reasons, we conclude the trial court abused its discretion in admitting evidence of the sit-up incident. On this record, the prejudicial nature of this evidence substantially outweighed its probative value and the trial court abused its discretion in admitting it.
2. The Two Prior Incidents Involving Physical Discipline
We reach the same conclusion about the two prior incidents in which defendant physically disciplined Doe, but for a different reason: these incidents did not satisfy the statutory definition of "child abuse" under section 1109. And here again, that conclusion is all but compelled by an argument made by the People. They state in their brief that "it does not appear that any of the acts . . . against [Doe] rose to the level of a criminal offense." For this reason, the two physical discipline incidents could not be admitted as prior acts of "child abuse" under section 1109, because the statute applies only to prior acts of child abuse that constitute a felony. (See § 1109, subd. (d)(2) [incorporating Penal Code section 273d].)
We would reach the same conclusion even without considering the People's acknowledgement that the incidents were not shown to be criminal, because these incidents were so vaguely described at trial that there was no way for either the court or the jury to determine whether a crime had in fact been committed. Specifically, that is because there was insufficient information to assess whether either incident (or both) was a reasonable form of parental discipline.
California has long recognized the parental disciplinary privilege, which permits the use of reasonable physical force to discipline a child. (See generally Gonzalez v. Santa Clara Dept. of Social Services (2014) 223 Cal.App.4th 72, 86-95 (Gonzalez), cited with approval in In re Ricardo P. (2019) 7 Cal.5th 1113, 1132, fn. 2 (conc. opn. of Cantil-Sakauye, C.J.); People v. Clark (2011) 201 Cal.App.4th 235, 249-250; People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.) For the privilege to apply, a parent must have a genuine disciplinary motive, there must be a reasonable occasion for discipline, and the corporal discipline must be reasonable in kind and degree. (Gonzalez, at p. 91.) Therefore, striking a child with an object as a form of discipline—even to the point of causing bruising—does not automatically constitute child abuse. (See id. at pp. 90-95 [error to sustain finding that hitting 12-year-old daughter with wooden spoon with enough force to produce visible bruises constituted reportable child abuse, where trial court refused to consider whether mother's conduct constituted reasonable parental discipline]; In re D.M. (2015) 242 Cal.App.4th 634, 642-643 [reversing finding that mother physically abused children by repeatedly hitting them with shoes without causing bruising, and remanding, where court did not consider evidence relevant to the genuineness of her disciplinary motive, the necessity of punishment or reasonableness of its severity]; see also Whitehurst, at pp. 1048, 1050-1052 [trial court had sua sponte duty to instruct on right to use corporal punishment as discipline in child abuse prosecution involving allegations of hitting child and bruising her]; compare, e.g., In re D.M., at pp. 641-642 [collecting cases].)
The jury was eventually instructed in accordance with the parental discipline privilege. But with no details about either incident other than the amount of force applied, there was no way for the court to evaluate whether a jury could find by a preponderance of the evidence defendant had a right to do this. For example, Doe could not recall why she had been disciplined on either occasion, which might have made a difference depending on whether the infraction was minimal (an inadvertent spill, for example, or even a testy exchange of words) or something quite serious (disobeying repeated prior warnings, for example, and/or putting herself and/or others in danger). Nor did she specify the extent of her bruising.
It was told that "To prove that the defendant committed uncharged child abuse, the People must prove," among other facts, that "[w]hen the defendant acted, he was not reasonably disciplining a child." It also was instructed, in the context of instructions concerning the charged offense, that "A parent is not guilty of child abuse or child abuse (misdemeanor) if he used justifiable physical force or another justifiable method to discipline a child. Physical force is justifiable if a reasonable person would find that the punishment was necessary under the circumstances and that the physical force was reasonable. [¶] The People must prove beyond a reasonable doubt that the force or method of punishment used was not justifiable. If the People have not met this burden, you must find the defendant not guilty."
Although the second of the two incidents (the "whopping") appeared to involve greater bruising (to her legs and arms), and thus was closer to the line than the drumstick incident which left just a single bruise, Doe couldn't remember whether on that occasion defendant had used his hands or an object, and her injuries on that occasion were just as consistent with a forcible beating as with something less extreme, such as his having grabbed her firmly by the arms with a struggle ensuing that could have left a bruise on her legs (for example, had she fallen to the ground or against a piece of furniture). The point is, the details were so sketchy it was not possible to assess the severity of what went on.
In closing argument, defense counsel attempted to control the damage from Doe's testimony by telling the jury it didn't have enough information to decide whether this was reasonable parental discipline, but by that point it was too late; Doe's testimony was already in front of the jury.
To be clear, we express no views about the appropriateness of a parent resorting to physical discipline (accord, Gonzalez, supra, 223 Cal.App.4th at pp. 75-76), a practice that is widely regarded as outdated and many view as repugnant. But given that California law recognizes a parent's prerogative to employ reasonable physical discipline with a child, there was insufficient evidence about the circumstances of either incident to permit a jury to decide whether either one crossed the line to criminal child abuse. And because neither one necessarily constituted child abuse even if the jury believed every word of Doe's testimony, it was error to admit these incidents as propensity evidence under section 1008. (See Jandres, supra, 226 Cal.App.4th at pp. 353-354; People v. Nguyen, supra, 184 Cal.App.4th at pp. 1119-1120.)
Given our conclusion that the drumstick and "whopping" incidents were inadmissible under section 1109 as prior acts of child abuse, it is unnecessary to address the trial court's application of section 352 regarding these incidents.
3. Conclusion
Despite the care with which this trial court attempted to discharge its duty in ruling on the admissibility of these incidents under section 1109 (holding a hearing, deferring a ruling and then holding a second hearing after conferring further with the parties), and despite the wide discretion afforded the trial courts in making these evidentiary determinations, the trial court abused its discretion in admitting all three incidents.
D. Prejudice
We review this state law evidentiary error under the traditional Watson test, and conclude it was not harmless. (See Disa, supra, 1 Cal.App.5th at p. 675.) The other evidence at trial by no means compelled a verdict of guilt, and the jury did not return a quick verdict: it deliberated for three days. The prosecutor highlighted Doe's testimony in closing argument, telling the jury Doe "was a very important witness," and then describing her testimony and stressing she was to be believed. "She's an important witness in this case," he concluded, "because it tells you that the whole story of an inexperienced father is not true. It's just not true. That's why she's important in this case." And he returned to her on rebuttal in impassioned language (and over repeated objections), accusing the defense of engaging in a "smear campaign" by questioning her veracity and also stressing that "part" of the reason she didn't have a father-daughter relationship with defendant "was because of the abuse." And then, of course, there is the fact that Doe's testimony was the only context the jury had for understanding how this could have happened. Apart from the prosecution's efforts, through Doe's testimony and its arguments based on that evidence, to paint defendant as a man prone to harsh discipline and intemperate displays, there was no evidence of any reason defendant would have hurt his son in this way. The prosecution thus encouraged the jury to speculate that someone who had disciplined his child when she was an adolescent in ways that inflicted no lasting physical injuries would be inclined to inflict serious burns on his two-year old boy. For these reasons, we conclude that it is reasonably probable the defendant would have achieved a more favorable result had the jury not heard Doe's testimony.
The prosecutor told the jury: "She's getting nothing to testify. Do you see how she was on the stand? She was a wreck, an absolute wreck. She didn't want to be here. She was subpoenaed by me. [Objection and ruling omitted.] She had been abused by the defendant as a child. That's why. And now the defense is, she's a liar or she deserved it. But just understand what the defense now is, ladies and gentlemen. It's a smear campaign. That's what it is. She deserved it as a child and she's conspiring with [M.H.'s mother] to frame the defendant. I don't think so."
Things were not made any better, moreover, when the M.H.'s mother violated an in limine ruling and testified, over a defense objection, that M.H. had been injured another time while in defendant's care. (See footnote 21, ante.) It is unnecessary to address defendant's argument that the prosecutor engaged in misconduct by eliciting that testimony, however. The court admonished the jury to disregard this testimony on this point and ordinarily we must presume the jury followed that instruction. (See People v. O'Malley (2016) 62 Cal.4th 944, 998-999.)
II.
The Requirement of a Unanimous Verdict
Because we have concluded the judgment must be reversed, it is unnecessary to decide the other issues defendant raises, although we are troubled by some of the claims of alleged prosecutorial misconduct that have been raised. For guidance on retrial, though, we briefly address defendant's contention that the trial court should have instructed the jury on the requirement of a unanimous verdict because, according to defendant, the charged offense encompassed more than one discrete crime: intentional child abuse, insofar as defendant forcibly submersed his son's hands in scalding water, and negligent child abuse, insofar as he was criminally culpable by omission, by leaving his child alone in proximity to dangerously hot water.
No unanimity instruction was required. "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) Thus, for example, the Supreme Court in Russo held that a jury is not required to agree unanimously on the specific overt act necessary to support a criminal conspiracy charge where the evidence suggests only one discrete crime (i.e., just one conspiracy). (Id. at pp. 1128, 1135.) "[I]f the jurors disagreed as to what overt act was committed, and agreed only that an overt act was committed, they would still have unanimously found defendant guilty of a particular conspiracy. No danger exists that some jurors would think she was guilty of one conspiracy and others would think she was guilty of a different one." (Id. at p. 1135.)
Other examples Russo discussed illustrate the same point. The court distinguished, for example, between a single burglary charge where the evidence showed "two different entries with burglarious intent" on two different occasions, on the one hand, which would require a unanimity instruction and, on the other hand, a single burglary charge where "the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent," which "would involve only the theory of the case and not require the unanimity instruction." (Russo, supra, 25 Cal.4th at pp. 1132-1133.)
Simply put, "[j]uror unanimity is not required simply because different theories of liability are presented." (People v. Napoles (2002) 104 Cal.App.4th 108, 115, fn. 5.) Thus, in Napoles our colleagues in Division Five held that no unanimity instruction was required for a single charge of felony child abuse even though, as argued here, the jurors might have disagreed as to whether the defendant was guilty by means of directly inflicting injury on the child, or through omission by acting in a way that was criminally negligent. (See ibid.) Roberson argues in his reply brief Napoles was wrongly decided on this point, but he offers no reason to part ways with it and we see none. (Accord, People v. Vargas (1988) 204 Cal.App.3d 1455, 1462-1463 [where defendant was charged with conduct comprising a single pattern of felony child abuse and not "separate, isolated incidents," jury not required to unanimously agree whether defendant was guilty by means of willful conduct or negligent conduct].) "Where a single course of conduct is proved at trial, it is permissible for members of the jury to determine that the underlying facts establish a violation of the statute under different legal theories such as direct infliction of abuse or permitting the child's health or safety to be endangered. The jury need not agree unanimously on the legal theory that defines a given set of facts as criminal conduct." (Id. at p. 1465.)
Here, the single charge of felony child abuse against defendant was based on a single incident. The evidence did not suggest "more than one discrete crime." (Russo, supra, 25 Cal.4th at p. 1132; compare, e.g., People v. Epps (1981) 122 Cal.App.3d 691, 703 [acts of molestation occurring on separate dates that could have been separately charged].) As defense counsel herself repeatedly characterized the case in closing argument, different "theories" of felony child abuse were presented. As in both Napoles and Vargas, the fact the jury might have disagreed about the manner in which the crime was committed did not require a unanimity instruction. The trial court did not err in declining to give one. And, relatedly, because no instruction on unanimity was required, the trial court also did not err in declining to preserve the jury's notebooks, a step defendant argues was necessary in order to preserve a claim that the verdict was not unanimous, and hence that he was prejudiced by the court's failure to give a unanimity instruction.
DISPOSITION
The judgment is reversed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.