Petition for Writ of Certiorari — Trevor Jim Bishop, Petitioner v. California

Supreme Court briefDec 15, 2021

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APPENDIX A

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Court of Appeal. Fifth Appellate District

Brian Cotta, Clerk/Executive Officer

Electronically FILED on 6/30/2021 by Alicia Gonzalez. Deputy Clerk

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

F076745

Plaintiff and Respondent,

(Super. Ct. No. VCF280823A)

OPINION

TREVOR JIM BISHOP,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.

Kalashian, Judge.

A.M. Weisman and Byron C. Lichstein, under appointments by the Court of

Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E.

Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney

General, Daniel B. Bernstein, Eric L. Christoffersen and Ross K. Naughton, Deputy

Attorneys General, for Plaintiff and Respondent.

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See Dissenting Opinion

Appellant Trevor Jim Bishop appeals following his conviction by jury of second

degree murder (Pen. Code, § 187, subd. (a); count 1) and assault on a child under eight

years old by means offeree likely to produce great bodily injury and resulting in death

{id., § 273ab, subd. (a); count 2). He was acquitted of first degree murder. He was

sentenced to a total unstayed term of 25 years to life in prison and ordered to pay

restitution, as well as various fees, fines, and assessments.

On appeal, we hold: (1) the trial court correctly admitted prior bad acts evidence

in this case, and the admission of any evidence exceeding that ruling was harmless;

(2) there was no improper cross-examination of appellant; (3) the prosecutor did not

commit misconduct in opening or closing arguments; (4) the trial court did not

improperly admit hearsay evidence; (5) the trial court did not incorrectly admit improper

expert opinion through the use of the term nonaccidental; (6) the trial court did not

commit reversible error when it appointed conflict counsel in this case, (7) appellant

cannot demonstrate conflict counsel provided ineffective assistance of counsel; and

(8) the court did not wrongly fail to consider appellant’s ability to pay when imposing

fines and fees. Accordingly, we affirm.

Although there are many aspects of this case, both factual and legal, that can be

structured to raise emotional responses, the fundamental issue to resolve here was

relatively simple. A young child was left in appellant’s care. While in that care, and with

no indication there was any external interference, that child suffered a substantial head

injury that was equivalent to a car accident and eventually resulted in his death.

Appellant first stated the injury was the result of a minor fall in the bathtub, then gave

conflicting stories, before going so far as to say he may have also dropped the child when

playing. As one would expect, all of appellant’s stories sought to maintain an aura of

innocence and imply an accidental injury. None of these stories matched up with the

medical evidence. Further, numerous examples of appellant being violent in domestic

settings came to light and were offered under various admissibility theories at trial.

Appellant’s claim of an accidental injury was thus juxtaposed against medical evidence

concluding no minor fall could have caused the injury and a long history of aggression

and violence toward those closest to him. The jury was asked to determine which

explanation to believe and chose to believe the one consistent with the medical evidence

and appellant’s past history.

While the dissent belabors the extent of the contested character evidence in this

case to generate sympathy for a perceived unfairness in appellant’s trial, it loses the forest

for the trees when justifying such a result. Specifically, the dissent fails to give proper

weight to the statutory law adopted to specifically allow certain types of character

evidence in domestic violence cases to prove conduct in conformity with past abuse. It

then relies on a novel theory of prosecutorial waiver without acknowledging that a direct

waiver claim is factually contradicted and without providing any case law for a claim of

strategic waiver through focused argument. Ultimately, when the emotional aspects of

the case are fairly considered and the law is correctly applied, there is little room for

debate. The properly admitted evidence overwhelmingly undermined the multitude of

stories appellant gave to hide his actions and the jury reasonably concluded the only

logical explanation for the fatal injury and other signs of abuse was appellant’s

continuing pattern of domestic violence.

FACTS1

Prosecution Evidence

Family Background

(Mother) and J.H. (Father) had two children, Jimmy H., who was three years

D.H.

old in March 2013, and Brooke H., who was one year old at that time. The couple, who

lived in Fresno, was married in 2008 and separated in June 2012.

After the separation, Mother met appellant when she bought a car at a lot where he

At the time, she and the children lived with her parents, but they

was working.

Uy moved into a house with appellant. Appellant began babysitting the children

eventua

while Mother worked.

The Events of March 21,2013

At approximately 11:48 a.m., appellant, Jimmy, and Brooke were recorded

entering a store in Visalia.2 They proceeded into the store, and appellant eventually

purchased diapers and a toy.

As they were leaving, appellant and the two children ran into the children’s

short conversation and Jimmy responded when his

maternal grandfather. There was a

The grandfather testified that Jimmy appeared clean, like he

grandfather spoke to him.

had just taken a shower and did not appear to be in any type of distress. The grandfather

did not see any markings on Jimmy and appellant did not mention that anything had

Pursuant to California Rules of Court, rule 8.90 and for clarity, we refer to some.persons

by first names, initials, or descriptive designations. No disrespect is intended. In addition, we

refer to law enforcement personnel by their titles at the time of events.

Unless otherwise specified, dates in the statement of facts are from the year 2013.

Juan Saenz obtained the store’s surveillance video and descnbed

Visalia Police Detective

it for the jury. The video recording was also played for jurors.

happened to Jimmy.3 Appellant and the children drove out of the store parking lot

shortly after 12:08 p.m.

At approximately 1:28 p.m., appellant carried Jimmy into an urgent care facility in

Visalia.4 Jimmy was unconscious. His pupils were fixed and dilated, and he was

posturing, meaning his arms and legs were stiff and rolled in; a response usually

associated with a head or spinal injury. The situation was deemed life threatening and an

ambulance was called to immediately transfer Jimmy from the urgent care facility to a

hospital emergency, room. Both were different divisions of the same hospital in Visalia.

An ambulance arrived.at the urgent care facility at 1:31 p.m. Appellant provided

an injury history to the paramedic. Appellant stated that Jimmy slipped and fell in the

bathtub that morning around 8:30 or 9:00 a.m. but did not lose consciousness and acted

normally after the fall. Jimmy had one episode of vomiting, after which appellant told

him to go to his room and change his clothes. Appellant heard a thud and rushed into the

room. Jimmy was lying on the floor, not responding. Appellant picked Jimmy up, got

Brooke, and rushed to urgent care.

Due to possible head injury, Jimmy was placed in full circle spinal immobilization

and on a backboard. The ambulance departed the urgent care facility at 1:39 p.m. and

arrived at the hospital emergency room at 1:42 p.m.

At the hospital, a medical social worker spoke to appellant after security notified

her about a person demanding to speak to someone about the child who had just arrived

by ambulance. She stated appellant was annoyed because the doctor did not come and

talk to him.

The grandparents saw Jimmy the night before. He was eating dinner and he sang a song.

Everything seemed fine.

Cell phone extraction subsequently performed on appellant’s phone revealed no calls to

911 during the relevant timeframe.

The social worker asked appellant what happened. Appellant related at 9:00 a.m.

that morning, Jimmy was taking a bath. He fell and hit his head in the bathtub. Later,

Jimmy started throwing up, so appellant took him to the urgent care facility. Appellant

said they went to the store, and Jimmy was sick to his stomach there, so appellant took

him home and told him to change his clothes and clean up. Because Jimmy still was not

feeling well, appellant tried to make him feel better, so he tossed Jimmy in the air. When

the social worker asked why appellant did not call 911 if he was so concerned, appellant

responded that he just did not know what to do, so he took Jimmy to urgent care.

Appellant was also seen at the hospital by the children’s grandparents. Mother

called about the incident and told the grandfather that appellant said Jimmy slipped in the

bathtub. When the grandfather saw appellant, he was told that Jimmy slipped on the tile.

When the grandmother saw appellant, she was told that Jimmy fell in the bathtub.

Visalia Police Officer William Brokhoff was dispatched to the hospital around

2:00 p.m. in response to a “suspicious circumstances” call. Brokhoff took photographs of

Jimmy in the emergency room. The photographs, which were shown to the jury, showed

bruising to Jimmy’s right cheek area just below the eye; a cut on his forehead between

the eyes; bruising to his right triceps area; and bruising to his lower right abdomen,

around the genital area.

Jimmy was then taken by ambulance to the regional hospital in Fresno for surgery.

Visalia Police Detective Daniel Ford responded to the regional hospital around 4:00 p.m.

After surgery, Ford and an evidence technician photographed Jimmy’s injuries.5 While

some of the bruises on Jimmy’s legs were consistent with the types of bruises Ford would

expect to see on a child that age, others appeared to be inconsistent with a child’s normal

injuries. There was a bruise on Jimmy’s right shin, just above the ankle. There were

three linear bruises on his inner right thigh that all seemed to point toward the central area

The photographs were shown to the jury.

of his right leg. There was a bruise (a red mark with a dark mark) just above and to the

right of his penis, as well as some trauma to the tip of the penis itself and a small abrasion

or laceration. There was a bruise just underneath Jimmy’s right eye that was swollen and

very red. On Jimmy’s left hand was a series of bruises and red marks, basically between

the web of the thumb and the index finger. There were also a couple of bruises on

Jimmy’s lower back.

Appellant’s Statements to Police

Visalia Police Detective Ramona Whaley was tasked with interviewing appellant.

There were three conversations. The first, a formal interview, occurred at the Visalia

Police Department. Whaley then gave appellant a ride to his house, where a search

warrant was being executed. The second was a conversation while in her vehicle,

although she did not necessarily consider it an interview. The third, another formal

interview, was conducted back at the police department around 7:00 p.m. that evening.6

Whaley also reviewed appellant’s cell phone and did not find anything, such as a text to

Mother, about Jimmy falling in the bathtub and hitting his head.

The First Interview

The first interview contains a detailed accounting of what appellant alleged

occurred. There were, at times, inconsistencies in his explanation.

Appellant related that he was then between jobs, so he was watching Jimmy and

Brooke while Mother was at work. While they were eating breakfast, Jimmy urinated on

himself, so appellant took him to the bath. Normally, appellant would take Brooke out of

the bath first and let Jimmy “chill” for a minute while appellant dried Brooke off. This

morning, while appellant was holding Brooke, Jimmy went to step out of the bathtub.

All three conversations were recorded, but only the recordings of the first and third, the

interviews, were played for the jury.

Jimmy slipped and hit the back of his head. He was getting up as appellant helped him

up.7 Jimmy was talking and seemed all right. This happened around 10:00 or 10:15 a.m.

Brooke needed diapers, so appellant loaded the children into the car. Before they

left, Jimmy threw up.8 Appellant asked if he was okay. Appellant had promised Jimmy

a new toy the day before, and Jimmy said he wanted to see his “prize.” He was talking

and seemed fine. They went straight to the store and got diapers and the toy. As they left

the store, they ran into the grandfather, who talked to Jimmy. Appellant noticed that

Jimmy was not as excited as usual to see his grandfather.

After leaving the store, they drove around for a bit, looking for a recycling place.

Appellant discovered Jimmy did not have his sunglasses, so they returned to the store to

see if they were left there. They pulled into the store, did not find them, and got back into

the car, at which point Jimmy threw up.

Appellant then decided to get lunch and go home. He went through a fast-food

restaurant drive-thru to get Jimmy a soda, but Jimmy could not drink even though he said

he was hungry. Jimmy threw up again just before they reached home.

Once at home, appellant stripped Jimmy down, asked how he was feeling, gave

him some

shorts, and told him to go to his room, stating that appellant would come m and

Appellant first said Jimmy did not cry. A short time later in the interview when Whaley

was seeking a step-by-step description of what happened and specifically asked if Jimmy was

crying, appellant said that he was. Appellant said he took Jimmy to his room, heidon to him,

and told him to stop crying. Appellant asked if he was okay, and Jimmy said yes^ Still later m

the interview, appellant said he immediately picked Jimmy up, took him into the bedroom and

sat and held him for a while. He could feel Jimmy moving. Appellant did not know if he had to

pick Jimmy up; he just did. Jimmy was holding his head and crying. Appellant felt Jimmy s

head, but stated his head was “weird shaped as it is.” There may have been a lump on the back

of his head from the fall.

Later in the interview, appellant said he put the children in front of the television while he

took a shower and got ready to go to the store. When appellant was dressed, he called for the

children to come and get their shoes on, Jimmy threw up in the toilet. He also already had a little

bit of vomit on his shirt, but there was none on the floor. Appellant did not jump to ...

conclusions” because Jimmy “randomly” threw up a lot more than most children. Jimmy said he

felt better, so appellant got him and Brooke a sippy cup of juice.

get him dressed. Appellant then put Brooke in front of the television, got a towel and

some cleaner, and went out to clean the car seat.

Appellant went back inside and started getting the food. He realized Jimmy had

t come back out of his room. Appellant found Jimmy in the room, lying on his back

leg in his shorts. Jimmy was breathing through his nose but was “locked up”with one

“flexed real tight”—like he had a seizure. Appellant called Mother. He did not know

what to do and took Jimmy straight to the urgent care facility nearby.

During the interview, appellant provided explanations for certain injuries on

Jimmy He explained that before leaving for the store, appellant put concealer on

a bruise from a couple of days before. Appellant used the

Jimmy’s face to cover

concealer because he did not want it to look as if Jimmy had a “gigantic” bruise when

they went into the store. He and Mother also exchanged texts about whether the

concealer worked.

According to appellant, Jimmy bruised very easily—“touch him and he bruises”—

and he and appellant wrestled a lot.’ Mother was told this particular bruise occurred after

she made the children swords and the children had sword fights with them .1° The bruise

appeared the day before the interview and occurred when appellant and Jimmy were

wrestling two days earlier. Appellant claimed that, without realizing Jimmy was behind

him,

he twisted and unintentionally elbowed Jimmy, hard, in the eye. Appellant did not

tell Mother he accidently struck Jimmy.

Appellant said Mother had a disease or something that caused her to bmise very easily.

He said Jimmy was “the same way.”

A search warrant was executed at appellant and Mother’s house the evening °f Thursday,

March 21. A homemade sword made out of cardboard and tinfoil, a secon

^ tective

made out of particle board and tinfoil, and a plastic dagger were found.

A video

Scott Nelson who assisted in the search, described the play swords as flimsy. A video

recording from appellant’s or Mother’s cell phone of Jimmy and Brooke playing with the sword

was shown to the jury.

Appellant told Whaley that he knew he wrestled too roughly with Jimmy. As an

example, a day or two earlier when they were wrestling, Jimmy tried to perform a “rear

naked choke” on appellant. Appellant explained that when Jimmy would try wrestling

moves, appellant would show him how. Appellant said he might have squeezed Jimmy’s

neck a little hard without realizing, but he never tried to hurt him.

Appellant had photographs of Jimmy on his cell phone that showed various

injuries. One photograph, taken without the concealer, showed bruises and scrapes

throughout Jimmy’s face. There was also a photograph of Jimmy’s bottom and penis

area. There were multiple bruises on the backs of his legs. Another photograph appeared

to show a handprint from a slap on Jimmy’s cheek.

Appellant told Whaley he was “way too hard” with Jimmy, but at the same time,

Jimmy was “clumsy.” Appellant explained a mark on Jimmy’s forehead by saying

Jimmy would put his head on appellant’s head and they would push each other. He

claimed another bruise was caused by a tree branch when Jimmy was running around

outside. In addition, Jimmy recently fell off his bicycle. Further, Jimmy told appellant

that he tripped on one of appellant’s dumbbells. Also, Jimmy had “an issue with a

zipper,” so there was a mark on his penis. Finally, three days earlier, Jimmy fell off the

couch and hit his back and head.

Appellant also discussed a prior occasion where he claimed Jimmy was riding on

appellant’s back and fell off. Appellant tried to catch him, but Jimmy landed on the hard

ground and got a bruise. Appellant claimed Mother was really angry at appellant about it

and that Father threatened her daily and called all the time. Appellant alleged that until a

month earlier, Father did not want the children. Mother would have to beg him to take

them for a weekend, but now he suddenly wanted them. Appellant related that during the

10 years Mother and Father were together, Father physically and verbally abused Mother.

Appellant claimed that a couple of days earlier, Father found out the children were with

appellant, and he made threats against appellant.

10.

The Third Interview

The third interview delved further into Jimmy’s injuries. When asked about

photographs showing hand or slap marks on Jimmy’s face, appellant insisted he did not

hit Timmy. Appellant stated Jimmy was on appellant’s back and fell off, contacting

appellant’s hand. Appellant stated that while he could not remember every second of

what happened, Jimmy was urging him to go faster and started getting off balance.

Appellant did not know if he was trying to catch Jimmy, but Jimmy ended up hitting the

floor. Appellant thought that was where the mark came from.

Appellant was asked about photographs on Mother’s cell phone of Jimmy bruised

in a straight line up and down the back of his ribcage. Appellant explained that those

photographs were taken when Jimmy returned from being with Father. Appellant did not

know why he and Mother did not get the police or CPS involved. Appellant was asked

about another picture that showed a large blister or bum on Jimmy’s big toe. Appellant

could not remember the whole incident, but said Jimmy was in the kitchen while

appellant was cooking and got burned. Appellant thought it was from boiling water.

Another photograph—again allegedly taken when Jimmy got back from being with

Father—showed Jimmy’s bmised bottom. Appellant took the photographs while he,

Mother, and the children were camping.11 Appellant claimed that a few days before the

interview, Jimmy and appellant were talking, and Jimmy said that Father spanked him

really hard, with a belt. Appellant also related that he saw Jimmy trip and fall into the

fireplace. And that sometimes, Jimmy would run down the hall and straight into the wall.

According to appellant, these sorts of things happened daily.

Appellant again claimed that Mother had a genetic disorder that caused her to

bruise easily. Appellant said he and Mother talked about getting Jimmy checked to see if

Nelson, who had already interviewed Mother, subsequently related that Mother said the

bruises on Jimmy did not happen at Father’s house, but rather while appellant, Mother, and the

children were together camping. Appellant said, “they could have.”

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he had the same thing, because Jimmy would bruise if barely touched. Appellant also

reiterated that Timmy frequently threw up. However, appellant stated that as far as he

knew, Jimmy had never been diagnosed with any medical problems and did not take any

medications.

In the course of the interview, Nelson told appellant he was not being honest about

something that happened that day. Nelson asked if appellant threw Jimmy up in the air

and tried to catch him and dropped him, because, Nelson noted, that was an accident. In

response, appellant again insisted Jimmy slipped in the bathtub. However, appellant

added that when they got home, Jimmy was “down”—not depressed, but “he just wasn’t

Timmy.” Appellant said he lifted him up and was kind of swinging him to try and make

him happy. Appellant did this two or three times and Jimmy was laughing. The last

time, appellant did not have him like he should, and Jimmy slipped and hit his head on

the ground.

Appellant said this happened in Jimmy’s bedroom and that Jimmy hit somewhere

on the back of his head “really hard on the ground.” Appellant claimed that when Jimmy

slipped out of appellant’s hands, appellant caught Jimmy’s leg, but Jimmy still came

down “really hard.” Jimmy immediately went rigid and “got tight.” Appellant tried

slapping him, but Jimmy’s eyes were not normal. Appellant knew it was “not something

to mess with,” and he took Jimmy to get medical help within 10 minutes. He called

Mother while on the way. Appellant did not tell Whaley this earlier because he was

afraid that he would get in trouble and because he promised Mother that he was going to

be “ultra-careful.”

Asked again about the use of concealer, appellant explained that the purpose of

putting concealer on Jimmy’s face was because Mother was concerned someone would

call CPS. She was hesitant about taking him places when he had bruises in the past.

Appellant never saw Mother strike Jimmy, except for spankings.

12.

Father’s Testimony

Father considered Jimmy to be very well behaved, even compared to Brooke.

Jimmy was an obedient child who was healthy, coordinated, athletic, and active. He did

not bruise easily. He was not sickly and did not suffer from frequent vomiting. Father

claimed he rarely had to discipline Jimmy and when he did, the discipline consisted of

placing Timmy in time out. Father said he never spanked either child and never used a

belt. Father stated he never returned Jimmy to Mother with bruising on him.

In December 2012, Mother informed Father that she was moving into her own

home in Visalia. Once Mother moved into the new home, Father had substantial

difficulty seeing the children and Mother would not give him the address. Father thought

this was odd, considering there had not been any problems with custody before. Father

stated he never voluntarily went weeks without seeing the children.

Father claimed he never met, spoke with, or threatened appellant. Father claimed

he never threatened Mother or appellant with bodily harm.

Father last saw Jimmy on March 10. He detailed an incident in February where

Timmy seemed reluctant to go to Mother’s house. Although Jimmy typically did not

throw tantrums, he started acting out when Father said it was time to go home. Jimmy

threw himself on the floor and cried. When Father put him into the car, Jimmy stared

down and looked away from Father. Father repeatedly asked what was wrong, but

Jimmy would not answer, which was very unusual. When they got to Visalia, Father did

not know the location of Mother’s house, so he took the children to the grandparents

home. Jimmy perked up immediately when he recognized the neighborhood and realized

he was going to his grandparents’ home and not Mother’s house.

During the last couple of months before the injury, the only thing Father noticed in

terms of bruising was a faint bruise on Jimmy’s lower back. Mother had already warned

Father about it. She said Jimmy fell off a rock while they were camping. Because what

Mother said was a camping trip happened at a time when Father was supposed to pick up

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children and there was increased time between visits, Father felt Mother was keeping

the

the children from him so he would not see that bruise and another faint one on Jimmy’s

face.

On March 21, Father received a phone call directing him to go to the emergency

Father saw Jimmy wheeled out on a gumey. Medical personnel were cutting his

room.

clothes off. Father could see multiple bruises on Jimmy’s face, arms, legs, and perns.

Father had never seen those injuries before.

Jimmy was immediately transferred by ambulance to the regional hospital m

Jimmy remained at the regional hospital in Fresno for 10 days. He

Fresno for surgery.

did not regain consciousness. He was then transported to a children’s hospital in Madera.

Timmy was at the children’s hospital for two months. He did not improve. Father

was

urged to think of Jimmy’s quality of life and to put him in some kind of hospice care.

Father

initially declined. He took Jimmy home, and he and his parents took care of him

for nine months.

Jimmy’s condition never improved. Father saw that Jimmy’s quality of life was

not good, and eventually talked to the doctors about options. Jimmy began hospice care

at Father’s house until a bed was available in the hospice facility. He was admitted to the

hospice facility on February 10, 2014. His feeding tube was removed, and he passed

away on February 19, 2014.

Exnert Testimony

Dr. Hightower

Dr. Daniel Hightower was the on-call radiologist at the hospital emergency room

on March 21

. He reviewed and interpreted a CT scan that was performed on Jimmy’s

head at 2:01 p.m. The imaging showed a moderate to large left subdural bleed.

Hightower explained that blood has a certain characteristic, in terms of density,

depending on how recently the bleed occurred. Jinuny’s CT scan showed areas of blood

that were subacute, at least past an hour in time. There were other areas where the blood

14.

looked almost like water, meaning it was hyperacute, and within an hour or a couple of

hours. These differences could have resulted from an earlier or second bleed, or it could

mean the bleeding had been occurring for several hours from whatever caused it to start.

Hightower saw nothing outside the skull to cause a skull fracture or soft tissue swelling.

Dr. Ramirez

On March 21, Dr. Veronica Ramirez, a pediatrician, was an attending physician at

the regional hospital in Fresno. She was part of the pediatrics team that treated Jimmy.

Ramirez examined Jimmy after surgery. Jimmy was comatose and nonresponsive.

In its assessment, the pediatrics team treated Jimmy’s injuries as nonaccidental trauma.

His injuries were very suspicious for nonaccidental trauma. Jimmy had bruising in the

groin area and inner thighs, which is not a normal place for bruising in children and

“[r]aise[d] red flags.” The extent of the head injury was also suspicious, as the gravity of

the head bleed did not seem to match the history the resident obtained from Mother and

Father, who came in with Jimmy.12

Dr. Johnson

Dr. Ian Johnson, a neurological surgeon, was the on-call neurosurgeon in the

trauma unit of the regional hospital in Fresno on March 21. Jimmy came to him with a

diagnosis of a closed head injury and an acute subdural hematoma.

Johnson determined Jimmy had a sizeable acute subdural hematoma. Johnson

testified a child with a subdural hematoma of the size seen in Jimmy would not be able to

walk around. Johnson explained that because the brain in a child fills the intracranial

cavity, when something is put inside the cavity that does not belong there—in this

The story Ramirez received was that Jimmy fell while taking a bath. Ramirez saw a lot

of falls. The imaging report described a large subdural hematoma causing rightward midline

shift. That type of injury was not common and was not seen with falls in a bathtub. Ramirez had

never personally treated a short fall that was fatal, although she supposed it was possible,

depending on the mechanism of the fall.

15.

situation, an acute subdural hematoma—typically “bad things are gonna happen pretty

quickly.”

Johnson described a “lucid interval” as a time period that someone may have after

that person has a blood clot in the epidural space, i.e., the space between the skull and the

lining of the brain. Someone with an epidural hematoma may have a lucid interval, in

which the person feels bad, then good, then bad again. But Jimmy’s hematoma was

subdural—below the lining of the brain. Acute subdural hematomas are not associated

with lucid intervals.

Johnson’s job was to focus on Jimmy’s brain. Thus, he did not inspect the rest of

Timmy’s body until the day after the surgery. Johnson was told Jimmy had fallen.

Johnson did not see the external signs of a fall that would generate the clinical scenario,

however. Johnson informed Nelson that the story he was told through the emergency

department did not fit with what he saw.

According to Johnson, Jimmy’s subdural hematoma was not consistent with

someone who fell in a bathtub. Johnson found it “extraordinarily unlikely for Jimmy to

fall in the bathtub from a standing position at 10:00 a.m., have that sizable of a subdural

hematoma, and not slip into a coma within half an hour to an hour. In addition, it would

not be consistent to fall from standing, have that type of brain injury, and not have any

type of external signs, no matter when the fall occurred. At a minimum, there should be

bruising on the scalp where the head was hit, because a child would have to hit his or her

head with a lot of force to cause a subdural hematoma.

Johnson stated that if Jimmy suffered a subdural hematoma from a fall in the bath,

he would not have been able to go to the store, be conscious, and be able to talk to

people. It would make more sense that the subdural hematoma occurred closer to the

time he was actually brought to the emergency room. The veins that were bleeding came

off the superior sagittal sinus, a large vein. A tom vein there causes “bad things” to

happen within half an hour to an hour.

16.

Jimmy’s CT scan showed different blood densities. Johnson agreed with

Hightower that this indicated some areas of blood were older, since, as hemoglobin

breaks down, it appears darker on the scan. However, he stated it was impossible to look

at the scan and determine, for example, that an area of blood was an hour old and another

, area was four hours old. Johnson explained there was a caveat, however. Hyperacute

blood, meaning the blood is very recent (possibly half an hour to an hour), looks dark on

a scan. A regular radiologist likely would interpret the dark blood on the outside of the

bright area as being old blood, but a neuroradiologist might opine that it was hyperacute

blood that had not yet had time to become bright on the scan.

Johnson found it “extraordinarily unlikely” that what was shown on the CT scan

was consistent with an injury occurring just under four hours before the scan, and a

second injury occurring less than an hour before the scan. Johnson declined to give a

time range for the injury based on the scan. From a clinical scenario, however, Johnson

could say that a person could not walk around with an injury like that. The person would

be very sick and, if left alone, would die in that situation. A three-year-old who

developed a tear in his or her superior sagittal sinus or the veins originating from the

sinus would by lying on the ground, vomiting on him-or herself in a coma, within

15 minutes to a maximum of half an hour. There would be no going to a fast-food

restaurant. Although anything was possible, it would be “extraordinarily rare.”

Since Johnson did not see an external injury, he did not know what accounted for

the hematoma. What is routinely seen in someone Jimmy’s age is someone who has been

shaken. The force of shaking someone back and forth causes no hematoma on the scalp,

but, if done hard enough, it will tear a bridging vein. Johnson did not know if that

happened here.

Johnson further opined the subdural hematoma could not have resulted from a

short fall. He was asked whether it could have been from an accelerated fall, if a child

had fallen farther or someone dropped him. Johnson responded that if the child stood at a

17.

height of six to eight feet and dove head-first with his hands at his side and unable to

protect himself from the fall, it would still be unlikely given the weight of a three-yearold. Normally, a subdural hematoma in a child is caused by some type of generated

force. It is normally only seen in a three-year-old when there is a car accident or abuse.

To generate the necessary force in a three-year-old, the person would have to be

concentrating and shaking the child.

Dr. Walter

Dr. Gary Walter, a medical doctor with a specialty in pathology, performed an

autopsy on Jimmy on February 25, 2014. Walter concluded the cause of death was acute

encephalopathy due to blunt force trauma to the head. Because he did not examine the

brain in fine detail, he did not look for and did not see any origins of the subdural

hematoma.

Dr. Bruhn

Dr. Frederic Bruhn, a pediatrician who was mostly retired but remained boardcertified in pediatrics and child abuse, reviewed the records of this case to form an

opinion.

Based on birth and childhood records, Jimmy appeared to be a healthy child. He

had a few minor problems but nothing serious and they resolved. In the store video,

portions of which Bruhn viewed, Jimmy appeared normal and alert.

Based on the CT scan, Bruhn described Jimmy’s subdural hematoma as acute,

meaning anything from immediate to several days old.^3 There was no evidence of skull

fracture or impact/swelling on the scalp.

Bruhn noted that at both hospitals, a number of doctors noted and commented on

the fact Timmy had some very suspicious-looking bruises. Bruhn explained that people,

Bruhn explained that “acute” was a very inexact term that meant different time ranges to

different people.

18.

including children, get bruises all the time, particularly over certain bony prominences

and that these happen during normal, daily living. Children tend to have bruises over

things like the shins and anywhere bones stick out, such as the elbows. Thus, bruises in

protected areas and soft, fleshy parts, such as the buttocks or around the genitals, look

suspicious.

Jimmy had an abrasion on his forehead, which Bruhn did not consider suspicious

because the forehead sticks out. Jimmy also had a fairly large bruise on his right cheek,

along with bruises on the back parts of his legs and in the groin area that were

suspicious.14 On the back part of his right thigh were three bruises that looked like they

could be fingerprints. There were areas on Jimmy’s right groin that looked like they

could have come from poking. Although it was conceivable the injury to Jimmy’s penis

could have resulted from him catching his penis in a zipper, the bruises in a row in the

groin area, above the right inguinal ring, could not have been caused by a zipper. They

probably were an inflicted injury, as they were in a very protected area. The bruise on

Jimmy’s buttocks was characteristic of a paddling. It was an inflicted, abusive injury.15

Bruhn also reviewed Johnson’s surgical report. Bruhn was “totally in agreement”

with Johnson that the reported bathtub fall could not have caused Jimmy’s subdural

hematoma. That type of injury would not produce the amount of damage Jimmy had.

There had to be significantly more force than a simple fall. The only accidental way to

get a subdural hematoma the size Jimmy had would be a high-velocity car wreck or a fall

One of the photographs Bruhn reviewed, which, he was told, was taken about a month

earlier, showed a very suspicious bruise and swelling on Jimmy’s left cheek. According to

Bruhn, it was what is called a pattern bruise. It showed the outline of fingers and was a typical

slap mark seen in child abuse. Bruhn opined that it should have gotten CPS involved, as it was

“clearly” abuse.

Bruhn opined that the second degree bum on Jimmy’s toe could be inflicted, but it would

be very unusual. It definitely could have been caused by oil or something hot dropping off the

stove. It was possible bruising on Jimmy’s spine and back that was photographed after surgery

resulted from him being placed on a backboard earlier that day.

19.

from many, many feet. Bruhn disagreed'with Johnson about whether there should be

some external sign of blunt force trauma. Bruhn opined that there could be fairly

significant head trauma without any bruising.

Bruhn opined that Jimmy’s subdural hematoma was inflicted by nonaccidental

trauma. He explained that “shaken baby” is not used anymore, because it presupposes

that the exact mechanism is known. Unless someone is present, that cannot be known,

because the severe injuries are very complex. They involve acceleration/deceleration and

rotation, particularly rotation in a certain dimension. In addition, young children can

suffer injury to the lower part of the brainstem, which causes them to stop breathing.

When they stop breathing, all sorts of damage can occur to the brain.

Bruhn did not believe that what appellant described during his third interview,

where he swung Jimmy up in the air and Jimmy slipped out of his grip and hit his head

on the carpeted floor, would generate enough force to cause Jimmy’s subdural hematoma.

There had to be an element where Jimmy was slammed onto the floor in order to produce

such an injury so quickly. Even on a carpeted floor, sudden deceleration and,

presumably, rotation, could produce the injury Johnson saw, but “it would have to be a

good slam on the floor to do that.”

Bruhn did not believe a lucid interval explanation was applicable here. He

explained that a lucid interval usually is seen with epidural, not subdural, hematomas, and

there was no evidence of a lucid interval here. An epidural hematoma results from a

different anatomical defect. There is an artery that runs outside the dura. With a blow

usually to the side of the head, the artery may get cut. The patient is knocked

unconscious or is dizzy, but there is not yet enough bleeding to cause swelling in the

whole brain. As a result, the patient wakes up and is lucid for a short period of time,

usually 10 or 15 minutes. The patient then lapses into unconsciousness when the

pressure builds up. Children tend to get subdural hematomas. It would be rare for a

three-year-old to have a subdural hematoma and a lucid interval.

20.

According to Bruhn, something happened to make Jimmy’s subdural hematoma

“real large in a hurry.” With such an injury, Jimmy would not have been able to do

anything such as go to the store. Bruhn opined that Jimmy’s actions in the store video

ruled out anything significant earlier that morning.

In Bruhn’s opinion, Jimmy’s head injury was not caused by what appellant said

happened. Bruhn next ruled out a birth-related injury, given Jimmy’s age. And because

appellant said Jimmy bruised easily, Bruhn contacted Ramirez regarding a series of blood

tests. All were normal. Metabolic diseases were ruled out and Jimmy was deemed a

heathy boy. Jimmy’s injury was thus deemed nonaccidental.

Bruhn acknowledged nothing was impossible. The odds of a child falling down,

hitting his or her head, and developing Jimmy’s type of injury were extremely small,

however. The entire picture had to be considered. There were abusive injuries, a bit of a

delay in bringing him in for help, and a changing story that started with a simple fall and

then expanded, when not believed, to swinging above the head and falling down. When

everything was put together, it resulted in “some serious conclusions.” In Bruhn’s

opinion, this was a case of abusive head trauma with blunt force trauma.

Prior Bad Acts Evidence

Katie O.

In May 2009, Katie O. and appellant began dating. Their relationship lasted about

eight months.16 She stayed with appellant at appellant’s house on weekends.

Katie testified that after they had been dating about three or four months, she

noticed the first sign of aggression from him. She described an incident where she did

not move laundry from a washer to a dryer. Appellant got upset and started hitting the

doors. He slammed the door of the washing machine, threw the laundry in the dryer, and

Appellant’s laptop contained photographs of him and Katie that were taken at a

professional football game. The metadata showed the photographs were taken on the afternoon

of January 2, 2011.

21.

slammed the door of the dryer. Appellant said something along the lines of, “It’s not that

flicking hard. I can’t believe you didn’t. It’s just a transfer of clothes.”

Appellant subsequently apologized, but the relationship grew “rocky.” There were

days when everything was good, then all of a sudden, appellant would get really angry

and upset. It was “scary,” because Katie never knew what was going to set him off.

During this time, appellant had first one and then two boxers. Katie detailed

appellant’s treatment of the dogs as poor. When the dogs did something such as dig in

the backyard, appellant would go outside, yell, grab the dog, throw it down in the dirt,

kick it, and punch it repeatedly. He would tie the dogs in the garage and beat them. He

would then return to the house for 15 or 20 minutes, then go and beat the dogs some

more. Even though Katie was in the house, she could hear him punch the dogs

repeatedly. When Katie suggested it was a little bit much, appellant responded that they

did not learn, no matter how hard he hit them. Although appellant often was aggressive

toward the dogs, he showed “a lot of love” toward them otherwise.

Katie also described a physical altercation. On that occasion, Katie went over to

appellant’s house and an incident occurred. Katie attempted to leave, but appellant

picked her up and took her back into the house. While there, she discovered a long,

black, curled hair on the floor and another hair under the pillowcase. The hairs were not

hers. When she confronted appellant, he “got really angry” and came at her, wanting to

slap her. He grabbed a phone from her hand and threw it against the wall and broke it.

He threw shoes and anything else he could grab and hit things.

Katie was terrified. When appellant slapped her across the face, she grabbed him,

put him in a choke hold, and started choking him. When he started to go limp, she got

scared and let go; then “all hell broke loose.” Appellant grabbed Katie and threw her

against the wall. When he reached for her again, she ran into the hallway. He tackled her

and shoved her to the ground. She got away and ran into the kitchen. She did not

22.

remember what happened, but the next thing she knew, she was on her back. He was

straddling her, yelling at her and deliberately spitting in her face.

Appellant got up and started to apologize. He sat on the couch and started to cry.

Katie decided to sit by him and try to tell him the relationship needed to end. Although

terrified for her life, she stayed with him because he manipulated her.

Appellant never became physical with Katie after this incident. Rather, Katie

testified appellant directed his anger toward Jason T., a friend of his.17 Katie detailed an

incident that arose over a bicycle. Appellant was letting Jason stay at appellant’s house,

and Jason left the bicycle on the lawn. Appellant became angry because someone could

have stolen the bike.

When Jason came inside, appellant asked Katie to wait in his room while he spoke

to Jason. Katie went into the other room, then heard yelling and punching and Jason

screaming at appellant to stop. Katie opened the door and also yelled at appellant to stop.

She saw appellant on top of Jason, punching him on the face and side of the head.

Terrified and not knowing what to do, Katie went back into the room, closed the door,

and cried.

Katie walked out when it was quiet. Appellant said Jason had gotten up and run

off. When Katie asked why appellant did that, appellant did not really have an answer

other than that he was mad about the bicycle. Katie never saw Jason again, and appellant

never brought up his name.

Katie also described appellant’s conduct toward another roommate’s dog. She

stated appellant had a roommate, Dan N., who owned a little pug. The dog mostly stayed

in Dan’s room, but sometimes it wandered around the house.

Early in her relationship with appellant, appellant and several other men lived in a house

in the Shasta Dam area. Jason was at the house, and Katie assumed he was one of the men who

lived there with appellant. There was a large hole in one of the walls. When Katie asked about

it, appellant said they were roughhousing.

23.

Katie saw appellant act aggressively toward the pug at least three times. The first

time, the dog defecated in the house. Appellant got really upset, smeared the dog’s face

in the feces, and repeatedly punched the dog. When the dog ran, appellant found it, threw

it on the ground, and kneed it, making it yelp. This went on for a while. Katie was afraid

and told him the dog was too little to take what appellant was doing, but appellant did not

respond. The dog was about a foot long and probably weighed 10 pounds. The same

thing happened the other two times, only appellant grew more aggressive. Katie thought

she was going to see appellant kill it. She later learned the dog had died.

Toward the end of their relationship, about seven months after they started dating,

Katie asked appellant to remove the belongings he was keeping in the house she co

owned with her parents in Redding. He agreed to do so. When he met Katie at the

house, he started loading his belongings into his pickup. He also apologized and kept

asking why she would not give him a chance and why they could not work things out.

He grew irritated, threw his golf clubs, and started hitting things. When Katie followed

him into the house, he grabbed her clothes and personal belongings and threw them in the

back of his pickup. Katie’s mother, who had accompanied Katie to Redding that day,

arrived at the house, but Katie asked her to give them more time, so she left. Appellant

then stormed back into the house. He pulled a handgun from the back of his pants, held it

up to his head, and then pointed it at Katie. He was yelling.

Appellant lowered the gun and started to sob. Katie took him into the bedroom,

and they talked. She got him to hand over the gun, and she immediately unloaded it.

Katie’s mother arrived, and appellant “snapped.” He pinned the mother against a wall

and yelled at her and called her a bitch. The mother got him to calm down and start

gathering up his belongings, but then he grew aggressive again. He started throwing

things, then ran into a spare room and started punching the walls. Katie and her mother

ran. Katie grabbed the key out of appellant’s pickup, then she and her mother drove off.

24.

The mother called 911. When the police arrived, Katie declined to press charges and did

not mention the gun for fear it would make things worse.

Cherilvnn O.

Cherilynn O. and appellant were in an exclusive dating relationship in 2006. The

relationship lasted about five months. At the beginning, and for about a month, appellant

was charming and polite.

At some point, appellant moved in with Cherilynn and her roommate. When he

moved in, Cherilynn stated his demeanor changed. He was very agitated all the time over

little things, such as cooking dinner and not cleaning the kitchen fast enough. He would

grab Cherilynn’s arms to restrain her, scream at her, and call her names. Sometimes he

would pin Cherilynn against the wall or throw her back on the bed, although he never hit

her. This type of behavior happened a couple times a week, whenever appellant was

agitated. During the three months appellant lived with Cherilynn, he also damaged the

apartment by throwing dishes at the wall or punching the wall.

Cherilynn described appellant as having a quick temper. She stated he was violent

and had a large ego, and everything that set him off was minor. Once, Cherilynn cooked

dinner for appellant and three of his friends. She testified that when she did not clean up

the kitchen fast enough, he restrained her, screamed in her ear that the house was a mess

and it was embarrassing, and threw dishes at the wall. The friends were watching, but

none tried to intervene.

Cherilynn stated appellant owned four guns that were always loaded. She claimed

that one night, when Cherilynn would not have sex with him, appellant pointed a gun at

her and said that if she would not have sex with him, then neither one of them needed to

be alive. She was able to leave and go to her mother’s home. Appellant later sent her an

email regarding uncontrolled behavior and how sorry he was. She believed he was

referring to this incident.

25.

On another occasion, Cherilynn stated appellant rented a houseboat for his

birthday. While Cherilynn was sleeping downstairs, appellant slept with another woman

upstairs. The next morning, Cherilynn asked appellant to get his stuff out of the house.

He looked at her and spit in her face.

During the course of the relationship, Cherilynn called the police on appellant

three times. She said he always ran off before officers arrived. Cherilynn stated that

during the relationship, appellant tried to pick a number of fights with people and was

very angry. Wherever he and Cherilynn were, if he did not like someone or someone

looked at him wrong, he was agitated. Cherilynn never saw him fight, however.

After the relationship ended, appellant attempted to contact Cherilynn for a few

weeks. On one occasion, he came to her apartment around 3:00 a.m. He screamed her

name and tried to kick in the front door. He broke the doorjamb, but did not get in.

Cherilynn called the police, but appellant was gone by the time they arrived.

DanN.

Dan N. used to live and work with appellant, and also played rugby with him. At

some point, Dan moved into a house with appellant. No one else lived there, although

appellant’s girlfriend, Katie, was often there. Dan had a pug dog that weighed about

20 pounds. Appellant had two boxers.

When Dan first moved in with appellant, the two got along well. They socialized

together and were on the same rugby team. Appellant would get into an altercation with

someone from time to time. On one occasion, appellant helped out someone who was

getting beat up. This was the only fight Dan personally saw.

When Dan first moved in with appellant, his pug was three or four years old.

While he was at work, she would stay in his room. She was house broken. She was not

able to jump up on Dan’s bed because it was too tall, and she weighed too much.

Appellant was unemployed at the time. When Dan came home one day, appellant said

the pug was acting funny and did not seem to feel well. Dan found the dog sitting on top

26.

of Dan’s bed. Appellant said the dog had jumped up there by herself. He said he never

laid a hand on her. The next day, her side started swelling up more. In another day, it

was very bad, and her breathing was very labored. Dan took her to a veterinarian, where

surgery was performed. The dog was at the veterinarian’s office for just under two days.

.She did not survive.

Dan did not confront appellant, but immediately moved out of the house. He

received a number of phone calls from appellant, asking for money to pay the rent and

bills. When Dan refused, he was threatened multiple times with physical violence if he

did not pay. Dan told appellant that he thought appellant killed the dog, but appellant

denied it.

Dan never saw appellant beat his own dogs. They roughhoused and had fun. On

one occasion, appellant and Dan were very intoxicated. Appellant confronted Dan in the

garage and accused Dan of abusing appellant’s dogs. Appellant was screaming and

throwing things around.

When Dan saw appellant get mad, it was not a progressive process. Instead, it was

like a light switch—on and off. Appellant would be having a good time one minute and

(

punching holes in the wall the next.

Dan and appellant were on the same rugby team for less than a season. Dan

described rugby as physical rather than violent. At some point, appellant was removed

from the team by team vote, as his attitude was voted to be not in line with the team’s

views.

Katie was appellant’s girlfriend the entire time Dan lived with appellant. Dan,

who mostly stayed in his room, heard altercations between them, with hollering and

things getting smashed. Appellant treated everyone, including Katie, with a demeaning

attitude. During the eight months or so Dan lived in the house, three or four photographs

were hung at random places to cover holes in the wall.

27.

Defense Evidence

Expert Testimony

Dr. Robert Rothfeder was an emergency physician who, before he left active

practice, specialized in traumatic injuries. Rothfeder reviewed Jimmy’s medical records

from birth through his stay at the children’s hospital.

Rothfeder explained that Jimmy suffered a closed head injury, meaning the scalp

and skull were not wounded and the brain was not open to the outside. How such an

injury presents to a layperson depends on the nature of the injury. Some injuries would

result in a loss of consciousness, while others would not initially. Some would involve a

loss of consciousness and regaining of consciousness. If the person remains awake, a ,

change of mental status will typically be seen. The person will be less alert. He or she

might become confused, sleepy, or lethargic. Vomiting is a common result of this type of

injury. If a subdural hematoma is present and continuing to bleed, eventually there will

be loss of consciousness and abnormal neurologic motor signs. There will be what is

called posturing—an involuntary contraction of muscles that is an ominous diagnostic

sign—and there may be seizures. By the time it is apparent the person is not behaving

normally, the observer typically will realize medical attention is needed.

Rothfeder explained that emergency medical technicians have training in CPR,

transport, and the like. The training assumes that someone with a head injury may have a

broken neck. If someone with a broken neck is not handled correctly, paralysis may

result. Protocol is to put the patient on a backboard, which is a rigid piece of plastic or

plyboard, and to restrain the person and immobilize the neck, then transport as quickly as

possible to the destination at which treatment will be provided. Because time is of the

essence, it is not a gentle process and minor bruising will often occur. It would not be

unusual to see bruising along the spine from a backboard. Moreover, someone who is

critically ill may bruise more easily than under normal circumstances. In addition,

28.

grabbing Jimmy the way appellant described when when Jimmy fell in the bathtub could

have caused bruising, as could catching Jimmy by the leg when Jimmy slipped when

being swung up in the air.

From the CT scan, Rothfeder opined Jimmy had a mixed density subdural

hematoma, meaning there was a suggestion that blood in the hematoma was of different

ages. In his opinion, this was consistent with a bathbtub fall around 10:00 a.m., then a

trip to the store, and then the swinging event sometime after 1:00 p.m. That Jimmy was

sitting up on his own and looking around at things during the store trip was not

inconsistent with a head injury. Rothfeder explained that there is a phenomenon called a

lucid interval. A lucid interval is one in which a head injury takes place but the patient

remains lucid, i.e., awake and responsive, for a period of time until the accumulation of

blood reaches a sufficient volume and exerts an amount of pressure on the brain, because

there is nowhere for it to escape, to cause a deterioration of brain function. He claimed a

lucid interval could occur with subdural as well as epidural hematomas.

Rothfeder observed that a short fall is defined as a fall from two to three meters

(approximately 6 to 10 feet), while a long fall is a fall from a second or third floor. He

disagreed, to an extent, with Bruhn’s opinion that a person Jimmy’s size falling

backwards and hitting his head on the edge of the bathtub was not significant enough to

cause an injury. Rothfeder had seen very serious injuries in bathtub and shower falls.

While there was no dispute that the majority of short falls, whether in bathtubs or

somewhere else, do not result in serious injury, some do if all of the variables are adverse

such as by having rapid movement against an unyielding surface with the impact

occurring at a point of the head that is particularly vulnerable. Thus, while it was not

typical, it was also not impossible.

In Rothfeder’s opinion, Jimmy’s bruises did not allow a doctor to determine the

head injury was intentional. Jimmy’s bruises predated the head injury. It was not known

when or how they occurred, or who might have been involved. Even if a slap or bmise

29.

was determined to be child abuse, that would not affect any conclusions regarding what

caused the head injury. They were completely separate events, and one did not contribute

to the other.

Appellant’s Testimony

Appellant and Mother met in 2012 at a car lot where appellant was a salesperson.

They became friends and started dating within about a month. Mother and appellant

ultimately decided to move in together. They got a house in December 2012, prior to

Christmas.

Appellant identified photographs of Mother throwing Brooke up in the air and

appellant throwing Jimmy up in the air; appellant making spaghetti with Jimmy standing

to his right on the same side as the pot in which water was boiling for the noodles; and

Jimmy and appellant putting their foreheads together. There were also photographs of

Jimmy and appellant and/or the family doing things together. One photograph was from

a camping trip during which Mother told appellant Jimmy slipped on some rocks and fell.

Another photograph showed Jimmy with a bag of frozen vegetables on his head.

Appellant said Jimmy had stood up underneath a table and hit his head. Appellant and

Mother put the vegetables on him to stop the swelling.

Appellant also discussed photographs showing a bruise on Jimmy’s face.

Appellant stated there was a room at the house that was dedicated to Jimmy’s train set.

Timmy and appellant were playing in there, and Jimmy slipped. When questioned by

Whaley, appellant could not remember whether Jimmy struck appellant’s hand or fell on

the train tracks, but appellant stated the picture was taken to keep a record of everything

because Mother was going through her divorce.

Appellant described the day of Jimmy’s injury. He stated Jimmy slipped in the

bathtub after breakfast. Appellant helped Jimmy out of the bathtub. Jimmy was crying,

but it just seemed like a typical fall and Jimmy calmed down after drying off. Appellant

then took the children to the living room to watch cartoons while he got ready to go.

30.

Appellant and the children then went to the store to buy diapers for Brooke and

another piece for Jimmy’s train set. As they left the store, they ran into the children’s

grandfather. They then went to a recycling facility that was shown on appellant’s cell

phone, but the facility was not there. They returned to the store parking lot to look for

Jimmy’s sunglasses, then drove to a fast-food restaurant, which was next to the parking

lot. Jimmy threw up while they were in line at the fast-food restaurant. Appellant got

drinks and food and decided they would just go home. Jimmy threw up once again on the

way home.

Once at the house, appellant took the children inside. Appellant removed Jimmy’s

clothes, threw them in a laundry hamper, and told Jimmy to get dressed. Appellant went

back to the car to clean up the vomit in the car.

Appellant spent 10 or 15 minutes cleaning. When he finished and went inside,

Jimmy was not back. Appellant went to see what was taking him so long. Jimmy

seemed “really down.” Appellant gave him a pair of shorts to put on. Because Jimmy

still seemed really upset, appellant picked him up and tried to make him happier.

Appellant did not throw Jimmy high in the air but was lifting him up and coming back

down like a swing. Brooke stepped in, and Jimmy slipped. Appellant tried to catch

Jimmy’s leg, but it happened so fast he could not.

Jimmy tensed up while on the floor and his eyes did not look right. Appellant

thought he was having a seizure. Appellant phoned Mother, who told him to go to urgent

care and she would meet him there. Appellant rushed out the front door and put Jimmy

into the car. He went back for Brooke, but the front door had locked automatically.

Appellant ran into the garage and shouldered open the door. It was also locked, and he

broke the doorjamb. He grabbed Brooke, returned to the car, and drove to urgent care.

He was scared and in shock.

At some later point, Whaley contacted appellant. He voluntarily accompanied her

to the police station and answered her questions. Appellant agreed that the police could

31.

look in his house. He was trying to help any way he could. When the police left, they

had appellant’s cell phone, as he had surrendered it during the first interview. When the

police returned around 8:00 or 9:00 p.m., they said they had some more questions to ask.

Appellant said he had nothing to hide, and he returned to the police station with them.

Appellant reiterated that when Jimmy fell in the bathtub, appellant did not think it

was anything more than just a slip and fall. Appellant stated that he did not do anything

to intentionally hurt Jimmy that afternoon in the bedroom. With respect to the second

incident in which appellant was swinging Jimmy, appellant said he thought Jimmy was

feeling better, and he was trying to cheer Jimmy up. Appellant described it as “a horrible

decision.” He did not initially tell anyone, whether medical personnel or police, about

that incident, because he wanted to explain it to Mother.

Appellant stated he never met or communicated with Father, and that Mother was

the primary source of information for what he told the police and what he knew about

Mother’s relationship with Father.

ANALYSIS

Evidence of Uncharged Prior Bad Acts

Summary of Parties’ Positions on Review

Pursuant to Evidence Code section 1101, subdivision (b),^ the trial court admitted

evidence of uncharged prior bad acts committed by appellant against former intimate

partners, former roommates, and household dogs to show a common plan or scheme,

which requires the evidence “ ‘demonstrate “not merely a similarity in the results, but

such a concurrence of common features that the various acts are naturally to be explained

as caused by a general plan of which they are the individual manifestations,

{People

v. Chhoun (2021) 11 Cal.5th 1, 25, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

Subsequent statutory references are to the Evidence Code unless otherwise specified.

32.

In his opening brief, and again in supplemental briefing, appellant contends the trial court

committed prejudicial error when it allowed the People to introduce testimony from

various witnesses reflecting on his character for assaulting intimate partners, roommates,

and household dogs. He attacks the admission of the evidence as error under both

section 1101, subdivision (b) and section 352, and he argues the error raises due process

concerns that warrant application of the standard of review under Chapman,19 applicable

to federal constitutional claims.

The People argue the evidence was. admissible under two theories. First,

admission was proper not to show a common plan or scheme, but to demonstrate a lack

of accident under section 1101, subdivision (b). Second, most but not all of the evidence

was also independently admissible as evidence of a propensity to commit domestic

violence under section 1109. The People further argue that if any evidence was

impermissibly admitted, it was subject to the state law standard under Watson20 and

should be deemed harmless error.

In supplemental briefing, appellant argues that these new theories of admissibility

under section 1101, subdivision (b) to show lack of accident and under section 1109 as

propensity evidence may not be relied upon to uphold the verdict. He contends the

uncharged prior bad acts are not admissible to demonstrate his intent because the

underlying act was contested rather than conceded or assumed,21 and, relatedly, the

Under Chapman, “the court must be able to declare a belief that [the error] was harmless

beyond a reasonable doubt.” {Chapman v. California (1967) 386 U.S. 18, 24 {Chapman).)

Under Watson, “a ‘miscarriage of justice’ [requiring reversal] should be declared only

when the court, ‘after an examination of the entire cause, including the evidence,’ is 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.” {People v. Watson (1956) 46 Cal.2d 818, 836

{Watson).)

The premise of appellant’s argument is that “evidence [of intent] may be used ‘in cases

where the proof of [the] defendant’s intent is ambiguous, as when he admits the acts and denies

the necessary intent because of mistake or accident.’ [Citation.] Indeed, the standard framework

for admission of evidence of other crimes is if there is no doubt that [the] defendant has

33.

uncharged bad acts were so dissimilar and remote in time to the charged offense that it

could not be probative of intent.

Appellant further argues the evidence cannot be admitted under section 1109

under a propensity theory because, one, he relied on admission under section 1101,

subdivision (b) in forming his defense strategy and it would be unfair for us to rely on a

different theory to uphold the verdict on review; and two, the prior bad acts evidence

offered wholly fails to show he has a propensity toward child abuse. Appellant reasserts

that the evidence should have been excluded under section 352 and claims that the error

is reversible under either Chapman or Watson because there is more than a reasonable

probability that the evidence impacted the jury’s verdict.

Appellant also alleges that additional error arose when the prosecutor elicited

uncharged prior bad acts evidence that fell outside the bounds of the trial court’s

admissibility determination. Appellant states this constituted prosecutorial misconduct

and any failure to object during trial constitutes ineffective assistance of counsel.

For the reasons set forth below, we find no merit to appellant’s unsupported

assertion that it would be unfair for us to consider the admissibility of the uncharged prior

committed an act, but some question as to his intent in doing so.” {People v. Guerrero (1976)

16 Cal.3d 719, 726, italics omitted {Guerrero).) However, the relevant principle is that

<« ( admission of other crimes evidence cannot be justified merely by asserting an admissible

{People v. Thompson (1980) 27 Cal.3d 303, 319, italics added, quoting Guerrero, at

purpose.

p. 724.) “Evidence of intent is admissible to prove that, if the defendant committed the act

alleged, he or she did so with the intent that comprises an element of the charged offense.”

{People v. Ewoldt, supra, 7 Cal.4th at p. 394, fh. 2, italics omitted.)

The California Supreme Court has explained that Guerrero, on which appellant relies,

concerned evidence of a prior rape improperly admitted to show that the defendant murdered the

victim while attempting to rape her, despite the absence of any evidence that sexual activity

occurred during the charged offense. {People v. Demetrulias (2006) 39 Cal.4th 1, 17.) The court

stated that the prosecutor “ ‘may not conjure up an attempted rape [in the charged offense] ... in

order to introduce evidence of [prior] rape.’ ” {Ibid., quoting Guerrero, supra, 16 Cal.3d at

p. 728.) Here, the prosecutor did “not conjure up” evidence of appellant’s involvement in

Jimmy’s injury. Most obviously, in one version of events related by appellant, he claimed that

on the day of the injury, he dropped Jimmy while throwing him or swinging him in the air to

make him feel better. Thereafter, Jimmy appeared to have a seizure, according to appellant.

5 ?>

34.

bad acts under section 1109. (See People v. Turner (2020) 10 Cal.5th 786, 807 (Turner).)

Viewed through the lens of section 1109, we conclude that appellant was accused of an

offense involving domestic violence (see § 1109, subd. (d)(3)), and that it was not an

abuse of discretion for the trial court to admit other uncharged prior acts of domestic

violence committed by appellant (see §§ 1109, subd. (a), 352). These conclusions

foreclose appellant’s claim of error and therefore, we need not determine to what extent

the evidence was also cross-admissible on any theory under section 1101, subdivision (b),

or reach the issue of prejudice. {People v. Jones (2012) 54 Cal.4th 1, 50-51 & fn. 12

{Jones)) Additionally, although we agree that some prior bad acts evidence adduced by

the prosecutor exceeded the bounds the trial court’s in limine rulings, defense counsel did

not object, thereby forfeiting appellant’s claim of error on appeal, and the admission of

that limited evidence was harmless in any event. Based on this latter conclusion, we do

not reach appellant’s related ineffective assistance of counsel claim.

Standard of Review

“[W]e presume that a judgment or order of the trial court is correct, ‘ “[a]ll

intendments and presumptions are indulged to support it on matters as to which the

record is silent, and error must be affirmatively shown.

{People v. Giordano (2007)

42 Cal.4th 644, 666.) We review a trial court’s ruling on the admission or exclusion of

evidence for abuse of discretion. {People v. Kopatz (2015) 61 Cal.4th 62, 85; People v.

DeHoyos (2013) 57 Cal.4th 79, 131.) Under this standard,

a trial court’s ruling will

not be disturbed, and reversal of the judgment is not required, unless the trial court

exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted

in a manifest miscarriage of justice.

95 5

{People v. Jones (2013) 57 Cal.4th 899, 924;

accord, People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)

“Our task is to review the trial court’s ruling, not its reasoning,

No rule of

decision is better or more firmly established by authority, nor one resting upon a sounder

basis of reason and propriety, than that a ruling or decision, itself correct in law, will not

35.

be disturbed on appeal merely because given for the wrong reason. If right upon any

theory of law applicable to the case, it must be sustained regardless of the considerations

which may have moved the trial court to its conclusion,

{Turner, supra, 10 Cal.5th at

p. 807; accord, People v. Brooks (2017) 3 Cal.5th 1, 39; People v. Zapien (1993)

4 Cal.4th 929, 976.)

Analysis

In Limine Rulings

Prior to trial, the prosecutor filed a motion in limine seeking admission of

uncharged prior bad acts committed by appellant as evidence of his “intent, common

scheme, plan, and motive to murder Jimmy” under section 1101, subdivision (b).22

Appellant opposed the motion. Subsequently, both parties filed additional motions in

limine the day before trial, including a motion by the prosecutor to admit the prior bad

acts evidence under section 1109, which provides that “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.” (§ 1109,

subd. (a)(1).)

Section 1101 provides: “(a) 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.

“(b) Nothing in this section prohibits the admission of evidence that a person committed a

crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a

defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not

reasonably and in good faith believe that the victim consented) other than his or her disposition

to commit such an act.

“(c) Nothing in this section affects the admissibility of evidence offered to support or

attack the credibility of a witness.”

36.

During the motions in limine hearing, the trial court heard extensive argument on

the prior bad acts evidence. For reasons unclear from the record, neither the trial court

nor the parties discussed section 1109. The trial court stated it was aware that the

evidence could not be used to show predisposition under section 1101, subdivision (b),

but the court considered it relevant to show a common plan or scheme, or intent The trial

court expressly focused on the prior bad acts committed within appellant’s home against

the people and animals he lived with. The trial court explained, in part, “It shows a

pattern of common plan or scheme under [the] theory, I believe, of living with people of

the opposite sex and having theses pretty intense outbursts] that are either actual

violence or threats of violence, threats of violence with a gun, actual violence, the

slapping, the throwing in of the wall, the dogs.”

As discussed in more detail below, the trial court concluded that testimony from

Katie, Cherilynn, Dan, and Jason regarding appellant’s temper and prior bad acts in the

home, including against appellant’s two boxers and Dan’s pug, was admissible.23

However, the court excluded evidence that appellant was in a bar fight and that one of his

fights with Cherilynn occurred after he urinated throughout the house and she refused to

have sex with him; evidence of his infidelity, including his exchange of texts with other

women; and evidence of his postbreakup threats, obsessive phone calls, stalking, and

peeping into windows. The trial court also excluded evidence of prior bad acts involving

Katie’s mother; Katie’s cousin, Jessica S.; Tambra M., whom appellant threatened, along

with her children, for talking to Katie; and Matt D., a manager at appellant’s former job.

With respect to the admissible incidents, the court warned the prosecutor not to belabor

the details of the relationships and to focus on the admissible incidents.

Jason, a former roommate, did not testify at trial, but Katie witnessed appellant beat him

and testified about the incident.

37.

Legal Principles

“[E]vidence 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 [generally] inadmissible when offered to prove his or her conduct on a

specified occasion.” (§ 1101, subd. (a); accord, People v. Baker (2021) 10 Cal.5th 1044,

1088-1089 (Baker); People v. Cottone (2013) 57 Cal.4th 269, 285.) “The purpose of this

evidentiary rule ‘is to assure that a defendant is tried upon the crime charged and is not

tried upon an antisocial history.

{People v. Nicolas (2017) 8 Cal.App.5th 1165, 1176.)

However, “[t]hat general rule does not ‘prohibit[] the admission of evidence that a

person committed a crime ... or other act’ to prove something other than a person’s

‘disposition to commit such an act.’ [Citation.] For example, other-acts evidence may be

admissible to prove motive, intent, or that ‘a defendant in a prosecution for an unlawful

sexual act... did not reasonably and in good faith believe that the victim consented.

{Baker, supra, 10 Cal.5th at pp. 1088-1089.) Furthermore, there are exceptions to the

general rule. {Id. at p. 1089.) Subject to the constraints of section 352, discussed below,

“section 1108 ... permits evidence that a defendant accused of a sexual offense has

committed another sexual offense, potentially showing a propensity to do so,” and,

relevant here, “section T109 applies to certain evidence that a defendant accused of an

offense involving domestic violence has committed other domestic violence.” {Baker, at

p. 1089.)

Together, these statutes reflect the Legislature’s recognition that sexual offenses

and domestic violence cases involve unique attributes. {People v. Falsetta (1999)

21 Cal.4th 903, 918 {Falsetto); People v. Johnson (2010) 185 Cal.App.4th 520, 532;

People v. Jennings (2000) 81 Cal.App.4th 1301, 1313 {Jennings).) They are “secretive

offense[s], shrouded in private shame, embarrassment and ambivalence on the part of the

victim, as well as intimacy with and intimidation by the perpetrator. The special

relationship between victim and perpetrator in both domestic violence and sexual abuse

38.

cases, with their unusually private and intimate context, easily distinguishes these

offenses from the broad variety of criminal conduct in general. Although all criminal

trials are credibility contests to some extent, this is unusually—even inevitably—so in

domestic and sexual abuse cases, specifically with respect to the issue of victim

credibility.” (Jennings, at p. 1313.) The Legislature thus determined that evidence of

this type is uniquely probative of a criminal defendant’s propensity to commit sex

offenses or domestic violence and policy considerations outweigh the general prohibition

against propensity evidence. (People v. Cottone, supra, 57 Cal.4th at pp. 285-286;

Falsetta, at pp. 911-912; Jennings, at p. 1313.)

Review of Admissibility Under Section 1109

As an initial matter, we reject appellant’s assertion that we should not consider the

admissibility of the evidence under section 1109 because the trial court did not admit the

evidence or otherwise address it under that statute. Appellant argues it would be “unfair”

to him, and had admission of the evidence been premised on section 1109, he “would

have introduced multiple character witnesses to attest to a variety of character traits

raised by the other acts evidence, such as his treatment of dogs, kindness to children, and

other positive traits.” However, the authority appellant relies on is inapposite and does

not support the proposition that it is improper to consider admissibility under

section 1109 for the first time on review,24 a proposition that would eviscerate the

longstanding appellate principles governing the task at hand. (Turner, supra, 10 Cal.5th

Appellant did not cite any authority for this argument in his second supplemental brief.

In his earlier reply brief, he cited People v. Kennedy (2005) 36 Cal.4th 595, 612 (claim of

coerced testimony not raised in trial court forfeited on appeal); People v. Tully (2012) 54 Cal.4th

952, 979-980 (claim that traffic detention was excessive & questioning unjustified forfeited by

failure to raise issue in trial court); People v. Lilienthal (1978) 22 Cal.3d 891, 896 (to challenge

search & seizure on appeal, the defendant must move for return of property or to suppress the

evidence in the trial court); and People v. Hawkins (2012) 211 Cal.App.4th 194, 203 (same).

These and other cases cited by appellant are neither controlling nor persuasive in the context of

reviewing a trial court’s admission or exclusion of evidence.

39.

- ,/■

at p. 807; Jones, supra, 54 Cal.4th at p. 50; see In re Kingsley’s Estate (1892)

93 Cal. 576, 577 [“To justify a reversal, it is incumbent upon the appellant to show an

erroneous ruling, and not merely bad reasoning or mistaken views of the law”].)

While appellant is entitled to present a complete defense and to a fundamentally

fair trial (e.g., California v. Trombetta (1984) 467 U.S. 479, 485; Strickland v.

Washington (1984) 466 U.S. 668, 684-685), “[t]hat right does not encompass the ability

to present evidence unfettered by evidentiary rules.” {People v. Brown (2003) 31 Cal.4th

518, 538.) Indeed, application of the ordinary rules of evidence does not impermissibly

infringe on a defendant’s right to present a defense. {People v. Mincey (1992) 2 Cal.4th

408, 440.)” {People v. Thomas (2021) 63 Cal.App.5th 612, 627.)

Appellant takes the position it is unfair for us to consider admission under

section 1109 because he relied on admission under section 1101, subdivision (b) in

forming his trial strategy. However, he fails to identify any legal or factual support for a

claim of detrimental reliance in this context, and it cannot be reconciled with long-settled,

controlling law; namely, that where, as here, the facts of the uncharged prior bad acts

were known and litigated during motions in limine, and the evidence was then admitted

at trial, our task is to consider whether the evidence was properly admitted on any legal

ground. (See Turner, supra, 10 Cal.5th at p. 807.) Appellant does not explain how our

consideration of the legal basis for admission under a section of the Evidence Code

intended to apply specifically to this type of evidence is unusual, let alone impermissible,

and we discern no basis for meaningfully distinguishing the routine application of the

general rule in this case from the other countless cases applying the rule.25

We point out that “[c]ounsel is presumed competent and informed as to applicable

constitutional and statutory law” {People v. Barrett (2012) 54 Cal.4th 1081, 1105; accord,

People v. Blackburn (2015) 61 Cal.4th 1113, 1123-1124), section 1109 has been in effect for

decades, and the prosecutor filed a motion in limine relying on section 1109. Thus, there is no

support for a suggestion that defense counsel was unaware of section 1109 in the trial court.

Rather, because section 1109 allows for the introduction of evidence showing a propensity to

commit domestic violence and child abuse, as we shall discuss, it would have been detrimental to

40.

The California Supreme Court’s decision in Jones is instructive on this issue. In

that case, the court considered a challenge to a prior sex offense admitted under

section 1101, subdivision (b). {Jones, supra, 54 Cal.4th at p. 50.) The trial court, “to

‘avoid issues on appeal,

refused to consider admission of evidence under section 1108

because a challenge to the statute’s constitutionality was pending before the California

Supreme Court. {Jones, at p. 50.) Posttrial, the high court upheld section 1108 as

constitutional in Falsetto.

In reviewing the admission of the prior sex offenses in Jones, the California

Supreme Court explained, “Regardless of the admissibility of the challenged evidence

under Evidence Code section 1101, subdivision (b), there was no error in the Toni P.

evidence being considered by the jury because it was admissible under Evidence Code

section 1108 to show that [the] defendant had a predisposition to commit the sexual

offenses in this case. (See [People v.] Davis [(2009)] 46 Cal.4th [539,] 603, fii. 6; People

v. Smithey (1999) 20 Cal.4th 936, 972 {Smithey) [ ( u < u [A] ruling or decision, itself

correct in law, will not be disturbed on appeal merely because given for a wrong reason.

If right upon any theory of the law applicable to the case, it must be sustained regardless

of the considerations which may have moved the trial court to its conclusion.”

[Citation.]’ [Citation.]” ’].) Admissibility under Evidence Code section 1108 does not

require that the sex offenses be similar; it is enough the charged offense and the prior

crimes are sex offenses as defined by the statute. {People v. Frazier (2001)

89 Cal.App.4th 30, 41.) That criterion is clearly met here.” {Jones, supra, 54 Cal.4th at

p. 50.)

the defense to raise the issue of section 1109 in the trial court. Trial counsel was undoubtedly

aware of this and may have reasonably concluded that the better strategy was to attempt to limit

the admission of prior bad acts evidence under section 1101, subdivision (b), which provides a

narrower ground for admission.

41.

Here, as in Jones, the facts of the prior bad acts were known and litigated in the

trial court, and the shortcoming at issue is merely the trial court’s failure to cite or discuss

section 1109 as a legal basis for admission. Appellant’s contention that we may not

consider the admission of the evidence under section 1109 is contrary to binding

authority, and we reject it.26 However, in the interest of making a complete record given

appellant’s assertion of detrimental reliance, we briefly address his trial strategy.

Although not a theory advanced by appellant, the dissent asserts the People knowingly or

strategically waived any argument on appeal that the evidence at issue was properly admitted

under section 1109. The dissent takes the position that “[t]he record is clear that the prosecutor

strategically prioritized admission of the character and prior act evidence under section 1101,

subdivision (b), to further her trial strategy, and chose not to obtain a ruling regarding admission

of a limited subset of prior uncharged domestic violence offenses under section 1109.” (Dis.

opn. post, at p. 60.) Notably, the dissent neither cites to any authority nor identifies any legal

theory supporting this startling proposition, which is contrary to the standards governing

appellate review, as we have discussed in depth, and it finds no support in the record. The

dissent describes reliance on the doctrine of implied waiver, but we are not persuaded it has any

application in this context. {In re Campbell (2017) 11 Cal.App.5th 742, 756 [“An ‘implied

waiver’ is ‘[a] waiver evidenced by a party’s decisive, unequivocal conduct reasonably inferring

the intent to waive.’ (Black’s Law Diet. (10th ed. 2014) p. 1813, col. 2, italics added.)”].) The

prosecutor filed a motion to admit the evidence under section 1109, which is fatal to a claim the

issue was knowingly waived, and the dissent fails to explain how focusing exclusively on

section 1101 was of any strategic benefit to the prosecutor given that section 1109 specifically

provides for the admission of propensity evidence in cases such as this. Thus, we strongly

disagree that there is any basis, grounded in law or in fact, for the dissent’s representation that

the prosecution either actually or “strategically” waived the issue of section 1109 for purposes of

appellate review.

The dissent attempts to distinguish the decision in Jones, on which we rely in part,

because the case did not involve a situation of “strategic waiver” by the prosecution and the trial

judge in Jones declined to consider admissibility of the evidence under section 1108. (Dis. opn.

post, at pp. 62-63.) As stated, the dissent’s invocation of prosecutorial waiver is not supported

by either citation to law or a reasonable reading of the record in this case; and it is unclear why

the dissent believes it is of any import that in Jones, it was the trial judge who elected to rely on

section 1101 rather than section 1108, and here, it was the prosecutor who elected to rely on

section 1101 rather than section 1109. Our point stands that on review, where, as here, the facts

were known to the parties and the issue is the legal ground for admission, reviewing courts

consider the ruling rather than the reasoning and affirm if the ruling is correct under any theory

of law. {Jones, supra, 54 Cal.4th at p. 50.) This principle is deeply entrenched in the law, is

foundational to appellate review, and clearly applies in this case, as it did in Jones.

42.

Appellant testified in his defense and he called two character witnesses, a former

neighbor who knew him in 2009 and his father: The neighbor testified that Dan’s pug

regularly escaped from the house, and appellant would retrieve her and bring her home.

During one incident, appellant tossed his truck keys to the neighbor, told the neighbor to

meet him down the road, and diligently pursued the dog through a foxtail-filled ditch in

his effort to catch her and bring her home safely. The neighbor, who also had dogs,

testified that appellant was good to Dan’s pug, loved dogs, and was crazy about his own

two boxers.

Appellant’s father testified as well. He identified photographs of his wife’s

mother holding Jimmy and Brooke on Thanksgiving Day, appellant’s two boxers with his

wife’s dog, appellant teaching one of his dogs to shake hands, and appellant with one of

his boxers leaning up against him. He also identified several photographs of appellant

with Katie, including one taken with appellant’s brother, who has Down Syndrome, and

one taken in 2011 after appellant and Katie broke up. He stated that he saw appellant

with appellant’s dogs “[a] 11 the time”; appellant would train his dogs, and he never saw

appellant act abusively toward them. Appellant’s father did not know Cherilynn, but he

knew Katie and testified that she never told him appellant was stalking her or asked him

for any help with appellant.

During Katie’s testimony, she, too, stated that appellant “really cared about” his

dogs and that aside from the incidents of abuse, he “showed a lot of love towards them.”

She also stated that appellant was good with his brother and cared for him.

Thus, appellant introduced some evidence to refute the prior bad acts evidence,

and the record expressly reflects that the trial court and defense counsel were concerned

over allowing in evidence of appellant’s good character that would inadvertently open the

door to the introduction of additional prior bad acts evidence against him. Critically, the

trial court did not preclude appellant from introducing additional evidence. To the

contrary, the court specifically informed appellant prior to trial that if he wanted to

43.

proffer testimony other than that discussed during the in limine hearing, the court would

entertain the issue and give appellant a ruling. As such, appellant’s argument that he

would have pursued a different defense strategy had the trial court expressly admitted the

evidence under section 1109 is unpersuasive.

Prior Acts of Domestic Violence Admissible Under Section 1109

Relevant Definitions

We first consider whether the testimony by Cherilynn, Katie, and Dan was

admissible under section 1109 in a criminal action stemming from the death of a child.

Appellant argues it is not, but we disagree. Given the statutory definitions set forth

below, appellant was charged in this case with an offense involving domestic violence

and, therefore, evidence of his prior acts of domestic violence was admissible under

section 1109, subject to section 352. (§ 1109, subds. (a)(1), (d)(3); see People v. Wang

(2020) 46 Cal.App.5th 1055, 1076-1077 (Wang) [murder of the defendant’s wife’s

parents was an offense involving domestic violence that allowed for admission of a prior

act of domestic violence against wife]; People v. Megown (2018) 28 Cal.App.5th 157,

166 (Megown) [crime committed against cohabitant’s mother in presence of cohabitant

an offense involving domestic violence where it caused cohabitant to fear injury to her

mother]; People v. Ogle (2010) 185 Cal.App.4th 1138, 1144 [“Section 1109 applies if the

offense falls within the Family Code definition of domestic violence even if it does not

fall within the more restrictive Penal Code definition”]; People v. Dallas (2008)

165 Cal.App.4th 940, 952-953 & 956 [under section 1109, evidence of prior acts of

violence against women and children admissible against a defendant charged with child

abuse because statutory definition of domestic violence applies both to the evidence

admissible and the type of prosecution]; People v. Brown (2011) 192 Cal.App.4th 1222,

1237 [murder of the defendant’s ex-girlfriend an offense involving domestic violence,

and “[a] defendant’s pattern of prior acts of domestic violence logically leads to the

inference of malice aforethought and culpability for murder”].)

44.

As previously stated, section 1109 provides, in relevant part, that 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. ”27 (§ 1109, subd. (a)(1).) “ ‘Domestic violence’ has the meaning set forth

in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to

Section 352, which shall include consideration of any corroboration and remoteness in

time, ‘domestic violence’ has the further meaning as set forth in Section 6211 of the

Family Code, if the act occurred no more than five years before the charged offense.”

(§ 1109, subd. (d)(3).)

Under the narrower definition set forth in Penal Code section 13700, domestic

violence is abuse, defined as “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” {id., subd. (a)), that is “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....‘[Cjohabitant’ means two unrelated adult persons living

together for a substantial period of time, resulting in some permanency of relationship.

Factors that may determine whether persons are cohabiting include, but are not limited to,

(1) sexual relations between the parties while sharing the same living quarters, (2) sharing

of income or expenses, (3) joint use or ownership of property, (4) whether the parties

Although we are concerned here with domestic violence, the statute also applies to

offenses involving, and prior acts of, child abuse and abuse of an elder or dependent person.

(§ 1109, subd. (a)(2)—(3).) Child abuse “means an act proscribed by Section 273d of the Penal

Code” (§ 1109, subd. (d)(2)), which is the willful infliction “upon a child any cruel or inhuman

corporal punishment or an injury resulting in a traumatic condition (Pen. Code, § 273d,

subd. (a)).

45.

hold themselves out as spouses, (5) the continuity of the relationship, and (6) the length

of the relationship” (id., subd. (b)).

Under the broader definition set forth in Family Code section 6211 and subject to

a five-year time limitation, domestic violence is defined, in relevant part, as “abuse

perpetrated against... [^[] ... [^|] ... [a] cohabitant or former cohabitant, as defined in

Section 6209.” (Fam. Code, § 6211, subd. (b).) Family Code section 6209 defines a

cohabitant as “a person who regularly resides in the household. ‘Former cohabitant’

means a person who formerly regularly resided in the household.” (Fam. Code, § 6209.)

Thus, while this was a prosecution for an offense involving child abuse under

section 1109, as appellant claims, it was also a prosecution for an offense involving

domestic violence, allowing for the introduction of other evidence demonstrating

appellant’s propensity to commit domestic violence, subject to the constraints of

section 352. (See § 1109, subd. (d)(2)-(3); Fam. Code, § 6211; Wang, supra,

46 Cal.App.5th at p. 1077; Megown, supra, 28 Cal.App.5th at p. 166; People v. Ogle,

,supra, 185 Cal.App.4th at p. 1144; People v. Dallas, supra, 165 Cal.App.4th at p. 953.)

Incidents Involving Cherilvnn and Katie

Turning to the admission of the challenged evidence, Cherilynn and Katie were

cohabitants28 in intimate relationships with appellant and therefore, the prior acts of

abuse committed against them constitute domestic violence under the narrower definition

in section 1109, which is not subject to the five-year time limitation. (See § 1109,

subd. (d)(3); Pen. Code, § 13700.) The People, without elaboration, concede that

Cherilynn’s testimony is inadmissible under section 1109. A reviewing court is not

bound by a party’s concession, however (People v. Vivar (May 3, 2021, S260270)

11 Cal.5th 510,

[2021 WL 1726827, at* 12], quoting Desny v. Wilder (1956) 46 Cal.2d

Although Katie only lived with appellant on weekends, the extent of her cohabitation is

not material given that she and appellant were in a dating relationship at all relevant times.

46.

715, 729), and to the extent there is a question as to the admissibility of Cherilynn’s

testimony under section 1109, it lies with section 352 rather than with any categorical

preclusion under section 1109.

Incidents Involving Jason and Dan

Jason and Dan were platonic roommates of appellant’s and therefore, any evidence

of uncharged misconduct involving them constitutes domestic violence only under the

broader Family Code definition, which applies to nonintimate household members but is

subject to a five-year limitation. (See § 1109, subd. (d)(3); Fam. Code, §§6211,

subd. (b), 6209.) As the fatal injury to Jimmy occurred in March 2013, and Jason and

Dan lived with appellant in 2009, any incidents of abuse involving them fall within the

five-year window and qualify as domestic violence within the broader definition,

Animal Abuse

Finally, with respect to the evidence of animal abuse, domestic violence within the

meaning of section 1109, subdivision (d)(3), includes abuse that intentionally or

recklessly places the victim “in reasonable apprehension of imminent serious bodily

injury to himself or herself, or another,” as set forth above (Pen. Code, § 13700,

subd. (a)). Under that definition, appellant’s abuse of his own dogs and Dan’s dog in

Katie’s presence constitutes domestic violence to the extent it instilled in her a fear of

harm, and she testified to that effect. (Megown, supra, 28 Cal.App.5th at p. 166 [crime

against girlfriend’s mother domestic violence because it caused girlfriend to fear for her

mother].)29

In addition, in People v. Kovacich (2011) 201 Cal.App.4th 863, 893-895, the

Court of Appeal concluded that animal abuse qualifies as domestic violence under the

Katie testified that she did not want to “piss [appellant] off,” having seen what he did to

his dogs and having been threatened by him. Notwithstanding the dissent’s contrary claim, this

is sufficient to show that the animal abuse witnessed by Katie qualified as “ l[a]buse’ ... placing

another person in reasonable apprehension of imminent serious bodily injury to himself or

herself, or another.” (Pen. Code, § 13700, subd. (a).)

47.

broader definition subject to the five-year limitation. (See Fam. Code, §§ 6211, 6203,

subd. (4) [defining “abuse” under the Family Code as “[t]o engage in any behavior that

has been or could be enjoined pursuant to Section 6320,” which includes animal abuse].)

The animal abuse witnessed by Katie occurred within that window.

No Abuse of Discretion

The crime in this case was committed in 2013 against the young child of

appellant’s intimate partner, who resided in the same household as appellant and his

partner. In admitting the uncharged prior bad acts evidence, the trial court limited the

incidents to those acts of abuse that occurred within the confines of appellant’s home

against people and animals who resided there with him. Although the court failed to cite

to section 1109, the record expressly reflects it focused on incidents of domestic violence

committed by appellant in secret within the privacy of the home. Appellant asserts that

the charged crime and uncharged prior bad acts are not sufficiently similar to qualify for

admission under section 1109, but as we have explained, both the charged crime and the

uncharged prior bad acts involve domestic violence within the meaning of

section 1109.30 As the California Supreme Court stated in Jones, subject to section 352,

admission of propensity evidence does not require similarity; “it is enough the charged

offense and the prior crimes are” qualifying offenses within the meaning of the statute.

(Jones, supra, 54 Cal.4th at p. 50; accord, Baker, supra, 10 Cal.5th at p. 1089; People v.

Rhoades (2019) 8 Cal.5th 393, 412-413 (Rhoades)) As such, it was within the trial

court’s discretion to admit evidence of uncharged prior acts of domestic violence in this

Appellant relies on People v. Earle (2009) 172 Cal.App.4th 372 for support. We note

that, one, the decision predates the California Supreme Court’s decision in Jones and, two, the

Court of Appeal in Earle did not reach the question of “whether Evidence Code section 1108’s

exception to the rule against propensity evidence extends to proof of a wholly different crime....”

(Earle, at p. 396.) Instead, the court concluded, in the context of probative value versus

prejudicial impact, that the defendant’s prior commission of indecent exposure was irrelevant to

the charged assault. (Id. at pp. 397-400.) Finally, as the People point out, in this case, the

charged crime and the uncharged prior bad acts all involve assault.

48.

prosecution for domestic violence, and we find no abuse of that discretion under

section 1109.

Section 352

Trial Court Conducted Section 352 Analysis

In accordance with due process considerations, section 352 limits the admissibility

of domestic violence evidence under section 1109. {Baker, supra, 10 Cal.5th at pp. 1089,

1090, fn. 6; Jennings, supra, 81 Cal.App.4th at p. 1314.) The statute provides: “The

court in its discretion may exclude evidence if 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, italics added.)

“In the context of Evidence Code sections 1108 and 1109, a defendant’s

propensity to commit sexual offenses or domestic violence is not an extraneous factor; it

is relevant to the guilt of the accused—and evidence tending to show that propensity has

probative value.” {Baker, supra, 10 Cal.5th at p. 1089.) Propensity evidence may not be

deemed prejudicial per se, but trial courts have a duty to carefully consider the admission

or exclusion of evidence under section 352. {Falsetta, supra, 21 Cal.4th at pp. 916-917.)

“The prejudice which exclusion of evidence under 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^ however]. ‘[A]ll evidence which tends to prove

guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the

more it is “prejudicial.” 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. In applying

section 352, “prejudicial” is not synonymous with “damaging.

{People v. Karis

(1988) 46 Cal.3d 612, 638; accord, People v. Johnson (2019) 8 Cal.5th 475, 521; Wang,

supra, 46 Cal.App.5th at pp. 1075-1076.)

49.

“[Although the record must affirmatively show that the trial court weighed

prejudice against probative value in admitting evidence of prior bad acts [citations], the

trial judge ‘need not expressly weigh prejudice against probative value—or even

expressly state that he has done so [citation.].

(People v. Padilla (1995) 11 Cal.4th

891, 924, overruled in part on another ground by People v. Hill (1998) 17 Cal.4th 800,

823, fn. 1; accord, People v. Rivera (2019) 7 Cal.5th 306, 344.) Rather, we may “infer an

implicit weighing by the trial court on the basis of record indications well short of an

express statement.” {Padilla, at p. 924; accord, Rivera, at p. 344.)

In this case, the record expressly reflects that the trial court conducted the requisite

balancing under section 352. In addition to the parties’ written motions in limine

addressing the issue, the parties and the trial court referred to section 352 and probative

value versus prejudice during the hearing. Finally, the trial court expressly excluded

some of the evidence proposed by the prosecutor because it fell outside the scope of

domestic abuse and because its probative value was outweighed by its prejudicial impact

under section 352.

In particular, the court excluded testimony by Katie s cousin, Jessica, who lived

with Katie and reported that after Katie broke up with appellant, he stalked them, peeped

in the windows of their house, beat on the door, took a swing at Jessica, and called

Jessica at work in his pursuit of Katie, to the point that Jessica was frightened. The court

also excluded evidence that appellant threatened “to end [Tambra]” and “make [her] kid

disappear” after she met up with Katie; evidence that appellant was terminated from his

job due to his violent temper; evidence that appellant verbally abused Katie’s mother,

charged her, and spit in her face; and other evidence of acts that occurred after appellant s

relationships ended or did not occur within a domestic setting. Thus, the record reflects

that the trial court carefully considered the prior bad acts evidence and excluded a

sizeable portion of it, which more than suffices to demonstrate that the trial court

50.

discharged its duty under section 352. {People v. Padilla, supra, 11 Cal.4th at p. 924;

accord, People v. Rivera, supra, 7 Cal.5th at p. 344.)

b. '

No Abuse of Discretion

Cherilynn and appellant dated and lived together for approximately five months in

2006, and the incidents involving Katie, Dan, Jason, and the dogs occurred in 2009. The

trial court admitted various incidents of abuse that occurred during appellant’s

relationships with the victims, including his acts of screaming, spitting, hitting, throwing

them, and threatening them with guns. The court also admitted evidence that appellant

screamed, hit, kicked, and threw his and Dan’s dogs in 2009, and that Dan’s dog died

several days after being abused.

Under section 352, the trial court “ ‘must consider such factors as [the prior act’s]

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 ... offenses, or excluding irrelevant though inflammatory details

surrounding the offense.

{Baker, supra, 10 Cal.5th at p. 1098, quoting Falsetta, supra,

21 Cal.4thatp. 917.)

We find no abuse of discretion under section 352. The charged crime in this case

involved a fatal, closed head injury to a young child. The prosecution introduced

evidence that the head injury was inconsistent with appellant’s initial story that Jimmy

slipped in the bathtub and hit his head in the morning, and it was inconsistent with his

subsequent story that he dropped Jimmy in the afternoon while trying to make him feel

better by throwing or swinging him in the air. Further, when Jimmy was brought to the

hospital, he had other “highly suspicious” injuries on his body consistent with abuse, and

photographic evidence of some of Jimmy’s injuries was found on appellant’s phone.

51.

Like the charged offense, the prior bad acts evidence also involved acts of physical

abuse inflicted on people and animals residing in appellant’s household, the result of

appellant’s explosive temper. The prior bad acts differed from the charged offense only

in the sense that the target differed: intimate partners, roommates, and household animals

versus a resident child. However, the evidence of appellant’s prior acts clearly

demonstrates a pattern of domestic violence, hidden within the privacy of the home and

involving the perpetrator’s uncontrolled temper, physical abuse, and dominance over

household members, be it intimate partners, roommates, animals, or, in the case of the

charged crime, a child. (E.g., Baker, supra, 10 Cal.5th at p. 1099 [trial court did not err

in admitting evidence of physical and sexual abuse under §§ 1101,1108, & 1109 to show

C( i

very demonstrable pattern of escalating violence towards women that he’s been

romantically involved with, tending to control these women, assaulting them physically,

and sexually assaulting them particularly when they break up with him or rebuff him

to show “ ‘his motive, his intent, his common scheme or plan, lack of consent with regard

to the sexual offenses’ ”]; Rhoades, supra, 8 Cal.5th at pp. 411^113 [in case involving

sexual assault & murder of eight-year-old boy, no abuse of discretion under section 352

in admitting evidence the defendant molested his four-year-old step granddaughter and

sexually assaulted a female acquaintance]; People v. Merchant (2019) 40 Cal.App.5th

1179, 1193 [no abuse of discretion under section 352 where the record reflected “the trial

court carefully weighed relevant factors to admit acts that bore a reasonable similarity to

the charged offenses”].) As the Court of Appeal explained in People v. Kerley,

“[T]he Legislature concluded that, in domestic violence cases in particular,

a history or pattern of domestic violence is very probative. ] ‘ “The

propensity inference is particularly appropriate in the area of domestic

violence because on-going violence and abuse is the norm in domestic

violence cases. Not only is there a great likelihood that any one battering

episode is part of a larger scheme of dominance and control, that scheme

usually escalates in frequency and severity. Without the propensity

inference, the escalating nature of domestic violence is likewise masked. If

52.

we fail to address the very essence of domestic violence, we will continue

to see cases where perpetrators of this violence will beat their intimate

partners, even kill them, and go on to beat or kill the next intimate partner.

Since criminal prosecution is one of the few factors which may interrupt the

escalating pattern of domestic violence, we must be willing to look at that

pattern during the criminal prosecution, or we will miss the opportunity to

address this problem at all.” ’ ” (People v. Kerley (2018) 23 Cal.App.5th

513, 535-536.)

Further, the appellate court recognized in People v. Kerley, supra, 23 Cal.App.5th

513, that evidence of multiple incidents of abuse is more probative than evidence of only

one or two incidents, and “it is the frequency, regularity, and severity” of the abuse “that

infuses [the] propensity evidence with probative strength.

(Id. at p. 536.) Here,

intermingled with periods of calm and loving behavior, appellant engaged in a pattern of

rage-driven physical violence against people and animals he lived with and otherwise

cared for. This constitutes a domestic violence pattern, and the probative value of the

uncharged prior bad acts evidence was substantial given that the charged offense

involved assaultive domestic violence committed against Jimmy.

In addition, the prior bad acts evidence was independent of the crime committed

against Jimmy, and the acts were not particularly remote. The incidents involving Katie,

Jason, Dan, and the dogs occurred only four years before the charged crime, and the

incidents involving Cherilynn occurred only seven years before the charged crime. (See

Baker, supra, 10 Cal.5th at p. 1091 [21 years not too remote]; People v. McCurdy (2014)

59 Cal.4th 1063, 1099 [30 years not too remote].) Nor was the evidence confusing,

misleading, distracting, or unnecessarily cumulative.

The trial court took care in this case to limit the evidence admitted. In addition to

excluding witnesses and testimony that related to appellant’s postrelationship behavior

and other prior bad acts that occurred outside the walls of the home, the trial court

precluded the prosecutor from getting into the general details of appellant s domestic

relationships and directed her to focus on the incidents themselves. The court also

precluded the prosecutor from getting into some of the seamier details, such as the

53.

allegation that one of the incidents involving Cherilynn occurred after appellant urinated

throughout the house and she then refused to have sex with him.

We recognize that trial courts must take great care in weighing the admission or

exclusion of evidence under section 352, and that certain types of evidence, including

animal abuse, can be particularly sensitive in nature. However, none of the evidence

admitted here, including the animal abuse, was more inflammatory than the charged

crime involving the death of a young child whose body bore other “highly suspicious”

. injuries indicative of abuse.

In sum, the charged crime was one of domestic violence, the uncharged prior bad

acts were highly probative of appellant’s propensity to commit acts of domestic violence,

and the probative value of the evidence was not “substantially outweighed by the

probability that its admission [would] ... create substantial danger of undue

prejudice ....” (§ 352.) Accordingly, we find no abuse of discretion under section 352.

Prosecutor’s Violation of In Limine Rulings

At times, the prosecutor in this case overstepped the bounds of the trial court’s in

limine rulings, both in direct questioning and, arguably, by failing to control her

witnesses to the extent their answers touched on issues excluded by the trial court. For

example, the prosecutor asked Dan during direct examination if appellant was removed

from their rugby team and why, and she inquired into a bar fight appellant was involved

in and what happened after Dan moved out of the house, including whether appellant

threatened him.31 During cross-examination of appellant, she asked appellant if he got

voted off the ruby team for being too aggressive and violent. The prosecutor also

inquired into appellant’s postbreakup behavior with Cherilynn during direct examination,

Appellant’s contention that the prosecutor impermissibly elicited evidence he was

demeaning and disrespectful is meritless, however. This evidence came out when the prosecutor

was properly questioning Dan about what he saw and heard in the house as related to appellant’s

treatment of Katie.

54.

and Katie’s testimony regarding the incident when appellant was removing his

belongings arguably became too detailed with respect to appellant’s behavior toward

Katie’s mother. Although the rugby team incident was not addressed during the in limine

hearing, that line of questioning went beyond the bounds of the trial court’s in limine

rulings because it pertained to bad acts outside of appellant’s immediate household, and

the trial court expressly precluded other such evidence concerning bar fight situations, the

threats to Katie’s mother, and appellant’s postrelationship behavior.

The trial court also precluded the prosecutor from going into details of appellant’s

infidelity. Subsequently, some evidence that appellant was unfaithful to Cherilynn and

Katie, including that he received a text of another woman’s breasts, came in during their

testimony on direct examination, but it was raised in the context of what precipitated

admissible incidents of violence against them by appellant. Trials are often

unpredictable, and it is not reasonable to expect the attorneys trying the case to anticipate

every potentially problematic witness response. It is also not reasonable to require the

parties to pare their evidence down to such a point that it becomes meaningless in

isolation or confusing to the jury. Viewed in context, we are not persuaded that the

mention of appellant’s infidelity violated the trial court’s in limine ruling.

Regardless, appellant advanced no objections to any of the testimony on the

ground it violated the trial court’s in limine rulings. “It is well settled that making a

timely and specific objection at trial, and requesting the jury be admonished (if jury is not

waived), is a necessary prerequisite to preserve a claim of prosecutorial misconduct for

appeal.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328; accord, People v. Daveggio

and Michaud (2018) 4 Cal.5th 790, 853.) An objection allows “ ‘the trial court an

opportunity, through admonition of the jury, to correct any error and mitigate any

prejudice.’ ” (Seumanu, atp. 1328; accord, Daveggio and Michaud, atp. 853.) The

failure to object is excused if an objection would have been futile or if an admonition

55.

would not have cured the harm. (Seumanu, at p. 1328; Daveggio and Michaud, at

p. 853.)

Here, a timely objection would have allowed the trial court to limit the testimony

and admonish the jury, as appropriate. Appellant was aware of the bounds of the in

limine rulings and nothing in the record suggests an objection would have been futile or

the harm incurable. Appellant may not now complain about questions or testimony that

did not prompt his objection in the first instance during trial.32 (§ 353; People v. Lightsey

(2012) 54 Cal.4th 668, 719.)

Forfeiture notwithstanding, the evidence that contravened the in limine rulings

was brief in nature and was significantly less inflammatory than either the charged crime

or the propensity evidence properly admitted. For example, the evidence that appellant

was removed from the rugby team was limited to a single response during the

prosecution’s case-in-chief. Dan stated, “[Appellant’s] attitude was unanimously voted

to be not in line with the team’s views. So he had been asked to be removed by a couple

of the—the president of the club or whatever. Then a number of us, myself included,

The dissent describes our reliance on this principle as contrary to law. The dissent is

incorrect. By virtue of the exclusion of some of the evidence pretrial, appellant secured a

favorable ruling. In those instances where the prosecutor later exceeded the bounds of the trial

court’s in limine rulings and introduced verboten evidence, appellant could have and should have

objected. The issue is the prosecutor’s subsequent introduction of evidence in direct violation of

the trial court’s in limine rulings, an error which could not have been addressed pretrial and

which was not objected to by appellant at the time it arose. (People v. Ramos (1997) 15 Cal.4th

1133, 1172 [“While ‘Evidence Code section 353 does not exalt form over substance’ [citation], it

does require sufficient specificity of evidence and legal grounds for the opposing party to

respond if necessary, for the trial court to determine the question intelligently, and for the

appellate court to have a record adequate to review for error”].) This situation is readily

distinguishable from that in which a defendant moves in limine to exclude evidence on a specific

ground, the trial court denies the motion, and the evidence, having already been ruled admissible

by the trial court, is introduced. In that instance, depending on the specific circumstances of the

case, further objection may not be required to preserve the claim. {Id. at p. 1171; People v.

Morris (1991) 53 Cal.3d 152, 189 [“[M]ere repetition of the same objection advanced on the

motion in limine would serve no useful purpose”], disapproved on another ground by People v.

Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)

56.

actually had [his] back and asked if that was a good idea. He was a good player. A lot of

us liked him at the time. So we ended up having a vote. A number of us, myself

included, voted for him. But he was ultimately voted off the team.” Not only did this

evidence include some information favorable to appellant, but the reason for his removal

was never specified, either during Dan’s direct testimony or during appellant’s later

cross-examination.

Evidence of the bar fight similarly included information favorable to appellant in

that Dan testified appellant became involved in the defense of someone being “jumped,”

and the evidence was benign regardless. With respect to the postbreakup behavior, it was

relatively brief and not particularly detailed. In view of the record as a whole, we

conclude that any evidence admitted in violation of the trial court’s in limine rulings was

comparatively minor and its admission resulted in no prejudice to appellant under either

standard of review.33

In reaching this conclusion, we note that contrary to appellant’s arguments, this

was not a particularly close case. The foundational issue in this case was whether

Jimmy’s injuries and, therefore, death were caused by domestic violence related abuse.

There was no meaningful dispute that if abuse caused the injuries, appellant was the

perpetrator of that abuse.

The jury was ultimately presented with partially overlapping explanations for

Jimmy’s injuries both as given by appellant to various medical or law enforcement

personnel and as he described at trial. Essentially, the explanation given was that Jimmy

slipped and fell in a bathtub that morning, threw up later that day, and was subsequently

“Prosecutorial misconduct requires reversal when it ‘so infect[s] a trial with unfairness

[as to] create a denial of due process. [Citations.] Conduct by a prosecutor that does not reach

that level nevertheless constitutes misconduct under state law, but only if it involves the use of

deceptive or reprehensible methods to persuade the court or jury.’ ” {People v. Armstrong

(2019) 6 Cal.5th 735, 795; accord, Rhoades, supra, 8 Cal.5th at p. 418.)

57.

dropped by appellant as they were playing. Appellant also alleged Jimmy bruised easily

and they wrestled a lot.34

This explanation was contrasted with, among others, the bruising below Jimmy’s

eye, on his legs, and near his groin, all of which were inconsistent with normal play but

consistent with abuse. It was further contrasted with the medical opinions offered that

the injury Jimmy suffered to his head was equivalent to a car accident or intentional

shaking and not to a slip and fall. And it was strongly contradicted by testimony that

periods of lucidity after injury were not associated with the type of head injury Jimmy

suffered, further calling into question appellant’s explanation, as a fall before heading to

the store was not likely.

In an attempt to downplay the evidence presented, appellant focuses heavily upon

a claimed contradiction between the expert testimony presented by the prosecution.

Specifically, appellant contrasts the testimony from Bruhn that there “had to be an

element where Timmy was slammed onto the floor to produce this injury this quickly,

and Johnson, who ultimately stated he had “no earthly idea how the subdural hematoma

got there. What [he did] know is that it didn’t get there from an external trauma.”

Appellant argues this conflict demonstrates that the prosecution had failed to present a

viable theory as to what actually caused Jimmy’s injuries. We do not agree.

Appellant’s arguments essentially manufacture a conflict by taking the experts

testimonies out of context. When Bruhn testified there had to be an element where

The dissent downplays appellant’s varying explanations for the injury. In doing so, the

dissent concedes that appellant provided “sharply inconsistent descriptions of the events” but

overlooks these inconsistencies because “he never confessed to deliberately hurting Jimmy or

slamming him into the ground with the type offorce required to cause a subdural hematoma.”

(Dis. opn. post, at p. 91.) It would be a rare case indeed where a defendant would claim an

accident but confess to the crime. Regardless, appellant’s “many changes of story were

inherently incredible and the evidence of his guilt overwhelming.” {People v. Boyette (2002)

29 Cal.4th 381, 429.) As further discussed below, the extreme disparity in explanations that the

jury resolved eviscerates the dissent’s prejudice analysis.

58.

Timmy was slammed to the floor, he was discussing his impression of appellant’s

demonstration of the injury using a stuffed animal. He explained that the mechanics

demonstrated wouldn’t work to cause the injury seen because you would need sudden

deceleration to cause the ripping and tearing associated with such an injury and, thus, a

good slam, not a drop while swinging, would be needed. Bruhn’s ultimate opinion did

not disclose a mechanism by which Jimmy suffered an injury. Rather, he opined the

injury was nonaccidental. His overall opinion was not a statement of how the injury

occurred, but an analysis concluding the injury was consistent with abuse and

inconsistent, both in result and behavior, with appellant’s explanation.

When Johnson stated he knew the injury did not come from external trauma, he

was responding to questions asking whether he would describe the mechanism causing

the injury as shaken baby syndrome. Johnson explained he had purposefully refrained

from using that term and simply agreed the injury was not trauma, before stating, “Now if

you’re going to ask me to keep asking me, I’m telling you that’s [shaken baby syndrome]

when we would routinely see it. [^f] Did that happen here? I have no earthly idea how

the subdural hematoma got there. What I do know is that it didn’t get there from external

trauma.” In explaining his opinion, Johnson made clear that a fall, car accident, or direct

strike would cause external trauma, which he did not see on Jimmy. To Johnson, this

meant that the bathtub fall explanation was not plausible. Extreme shaking, however,

would not leave such marks and thus would align more closely with the extreme internal

injury and lack of bruising than a fall. As with Bruhn, Johnson was not opining on what

caused Jimmy’s injury. Rather, Johnson opined specifically that the injury would not

have been caused by a fall and would have occurred shortly before Jimmy reached the

emergency room.

Ultimately, both experts were in complete agreement on the critical opinion that

they were providing, specifically that the injury in question was nonaccidental. Neither

was asked specifically to identify the mechanism that caused the injury and neither

59.

opined they specifically knew. Thus, questioning suggesting a lack of specificity on the

mechanism causing injury does not show a conflict or failure in the People’s case.

Even if such a conflict could be shown, however, we would not conclude the case

was as close as appellant suggests. With both experts opining the injury was

nonaccidental, the jury could believe either expert’s opinion and still convict appellant.

Appellant identifies no law or principle that would prevent the jury from choosing which

witness to believe. Trials are full of meaningless, and sometimes meaningful,

contradictions between witnesses. In all instances, “ ‘[t]he jury remains free to choose

the witness or witnesses it believes and what part of a witness’s testimony it finds

believable.

(,People v. Ibarra (2007) 156 Cal.App.4th 1174, 1191.) We see no basis in

this case for relying on alleged conflicts, particularly ones that make no difference in

outcome, to find reversable prejudicial error.

Alleged Improper Cross-examination

Appellant next contends his constitutional rights were infringed when the

prosecutor was permitted, over objection, to cross-examine him on issues not raised

during his direct examination. Appellant contends his testimony at trial did not touch

upon any issues that would permit cross-examination on the prior bad acts evidence

discussed above, but that the judge improperly permitted just that type of questioning

despite appellant’s objections.

Standard of Review and Applicable Law

As appellant notes, discretionary rulings such as those regarding the proper scope

of cross-examination are subject to an abuse of discretion review. {People v. Lancaster

(2007)41 Cal.4th 50, 102.)

Under section 773, “A witness examined by one party may be cross-examined

upon any matter within the scope of the direct examination by each other party to the

action in such order as the court directs.” (§ 773, subd. (a).)

60.

A defendant who elects

to testify does not give up his Fifth Amendment rights nor his corresponding California

privilege against self-incrimination (Cal. Const., art. I, § 15) except as to matters within

the scope of relevant cross-examination.

{People v. Wilson (2008) 44 Cal.4th 758,

799.) It is well settled that issues such as bias, interest, or motive to falsify are commonly

used factors to attack the credibility of a witness. {People v. James (1976) 56 Cal.App.3d

876, 886.) Moreover, when one makes a general denial of guilt in their testimony, they

may open themselves to cross-examination on points which “imply that [they] lacked

criminal intent [citations] or that [their] association with a codefendant was innocent

[citation] or that [they] did not commit similar offenses, whether charged or uncharged

[citations] and thus render [themselves] subject to cross-examination on the subject

impliedly denied.” {People v. Tealer (1975) 48 Cal.App.3d 598, 605.)

Discussion

We readily reject appellant’s assertion that questions regarding the admitted prior

bad acts conduct were outside the scope of appellant’s direct examination. In appellant’s

testimony, he provided a full accounting of the day Jimmy was injured. This included

assertions that Jimmy slipped and fell in the bathtub and that he later unintentionally

dropped Timmy while playing. It further included general testimony supporting his claim

that the injuries were not his fault and that he had been cooperative with the police

because he had nothing to hide. This testimony directly raised the argument the injury

was not the result of an accident, impliedly raised the specter that it was a continuation of

appellant’s prior domestic violence, and raised questions whether appellant was, in fact,

acting to hide conduct from the police. The court’s determination that questions

regarding the uncharged prior bad acts evidence were within the scope of the direct

examination was thus not an abuse of discretion, as that evidence was appropriately

raised to rebut appellant’s general denial of guilt and the factual scenario he presented to

the jury.

61.

Ill

Prosecutorial Misconduct Claims

Appellant contends that the prosecutor committed misconduct in making six

different types of comments during opening and closing arguments. Although we detail

those comments as we discuss them, they are generally categorized as predisposition

arguments, sympathy arguments, improper vouching, disparaging comments,

introduction of unpresented evidence of guilt, and burden-shifting statements.

Appellant concedes that no objection was raised to any of the contested comments

but contends there was no plausible justification for that failure and, thus, urges us to not

consider the issue waived or to consider the issue under an ineffective assistance of

counsel rubric. Even were we not to consider the issue waived, however, we would find

no error.

Relevant Law and Standard of Review

u (

Under California law, a prosecutor commits reversible misconduct if he or she

makes use of “deceptive or reprehensible methods” when attempting to persuade either

the trial court or the jury, and it is reasonably probable that without such misconduct, an

outcome more favorable to the defendant would have resulted. [Citation.] Under the

federal Constitution, conduct by a prosecutor that does not result in the denial of the

defendant’s specific constitutional rights—such as a comment upon the defendant’s

invocation of the right to remain silent—but is otherwise worthy of condemnation, is not

a constitutional violation unless the challenged action “ ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process,

[Citations.] In

addition, ‘ “a defendant may not complain on appeal of prosecutorial misconduct unless

in a timely fashion—and on the same ground—the defendant made an assignment of

misconduct and requested that the jury be admonished to disregard the impropriety.

[Citation.]” ’ [Citation.] Objection may be excused if it would have been futile or an

62.

admonition would not have cured the harm.” {People v. Dykes (2009) 46 Cal.4th 731,

760.)

Where properly preserved, allegations of prosecutorial misconduct are reviewed,

on the merits, de novo. (See People v. Fuiava (2012) 53 Cal.4th 622, 681.)

Discussion

As an initial matter, we note that appellant failed to object to any of the comments

now contested on appeal. Appellant’s arguments have thus been forfeited. {People v.

Rangel (2016) 62 Cal.4th 1192, 1219-1220.) However, as noted, we also find the

arguments meritless. We take each category in turn.

Predisposition Arguments

Appellant identifies several arguments as examples of instances where the

prosecutor improperly argued appellant was predisposed to violence, Two of these

alleged arguments fairly summarize the type of complaints appellant raises. In the first,

the prosecutor argued, “When you think about it, something happened that set him off.

Based on the other testimony, it doesn’t take much to set this guy off. His anger is

instantaneous. It’s from zero to a hundred. There’s nothing in between. He could be

sitting there laughing with you, and the next thing, boom, on the turn of a dime he is

angry. ffl] So if you think about with Jimmy, the pants were wet, the little shorts.

Something happened. He’s always complaining, he’s a crybaby, he’s this, he s that,

always getting in his way, always hurt. He could take him and it’s within that very short

period of time when he finally—he’s got him and then he decides, goddamn, you know,

and then slams, bam. That’s all it takes for first-degree murder.” In the second, the

prosecutor argued, “We know that he’s beat dogs. He’s beat a man. He beats women.

There’s no—there is no boundaries with him. It doesn’t matter. He s going to do

whatever he wants to do.”

With respect to these arguments, appellant contends the uncharged prior bad acts

evidence admitted in this case and discussed previously was only allowed for the limited

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purpose of demonstrating a common plan or scheme, but that the People specifically

argued it demonstrated a predisposition to committing the charged offense. As discussed

above, however, the prior bad acts evidence was properly admitted under section 1109 as

prior incidents of domestic violence, admitted to show predisposition. Section 1109

specifically permits predisposition evidence that would normally be excluded under

section 1101, subdivision (a) to be introduced. As the evidence was admitted for this

purpose, it was not erroneous for the People to claim it was proper to conclude a murder

occurred in part because of the evidence of predisposition introduced to combat the claim

Jimmy’s injuries were accidental.

Prosecutors have wide latitude in their closing arguments, provided the argument

U i U 4 C(

amounts to fair comment on the evidence,

including reasonable inferences

or deductions drawn therefrom. (People v. Gamache (2010) 48 Cal.4th 347, 371.) And

prosecutorial misconduct will not be found unless there is a “ ‘reasonable likelihood the

jury understood or applied the complained-of comments in an improper or erroneous

manner.

(People v. Dykes, supra, 46 Cal.4th at pp. 771-772.) Ultimately, given the

proper admission of the evidence in this case, we see nothing in the arguments raised here

that exceed a fair comment on the evidence and certainly no indication that the jury

would understand or apply the prosecutor’s comments to convict based solely on a

propensity to commit violent acts and not evidence that appellant did, in fact, cause

Jimmy’s injuries.

Sympathy Arguments

Turning to the allegations the prosecutor sought to influence the verdict by

creating sympathy for Jimmy and Father, we again find no error. Here, appellant points

to statements in both the opening and closing arguments describing Jimmy as “a good

little boy” or describing Father as “a man with a broken heart who loved his son.”

Appellant is generally correct that an “ ‘appeal for sympathy for the victim is out of place

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during an objective determination of guilt.’ ” {People v. Kipp (2001) 26 Cal.4th 1100,

1130.) However, none of the prosecutor’s comments rise to this level.

Here, the People detailed the factual evidence concerning Jimmy’s end of life and

Father’s role in those events, along with several facts relating to how Jimmy’s

interactions with Father were affected by appellant’s conduct. As the People note, in this

case there was a direct credibility dispute between appellant and Father concerning how

certain injuries were caused and about Jimmy’s propensity for bruising or carelessness.

In this context, the prosecutor’s comments were a fair commentary on the evidence

designed to demonstrate to the jury that Father was testifying truthfully. None of the

A comments reached the level found problematic in People v. Kipp, supra, 26 Cal.4th at

page 1130 or People v. Leonard (2007) 40 Cal.4th 1370, 1406, where the prosecutor

asked the jurors to envision themselves as the victims in the case or otherwise focus upon

the loss that occurred because of the crime as a basis for conviction.

Alleged Vouching

Appellant contends the prosecutor improperly vouched for Katie’s testimony by

arguing she had no reason to lie about the animal abuse allegations she made. The

identified portion of the reporter’s trial transcript shows counsel asking why Katie would

lie and stating there was no reason she would do so. We do not agree this is improper.

As the People note, prosecutors may use rhetorical questions when commenting on the

evidence. {People v. Frye (1998) 18 Cal.4th 894, 972, disapproved on another point by

People v. Doolin (2009) 45 Cal.4th 390,421 & fii. 22.) Here, there was simply a

question asked regarding why one would lie about their testimony and a comment that

there appeared no reason to do so. We see no error in this brief argument. (See ibid.

[approving comment that witness “ ‘would have no reason not to tell you that if it were

true’ ” because “[although the prosecutor’s comments invited the jury to consider the

witnesses’ motives in testifying, there is no impropriety in attempting to persuade jurors

to draw inferences based on the evidence”].)

■

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Disparaging Comments

Appellant next highlights five prosecutorial comments that appellant contends

violated due process because they “assailed his character by branding him a leech, liar,

and narcissist,” and because they appealed to the jury’s passions and prejudices. These

statements included comments such as: “The only person acting here is [appellant]”; “He

loved having photos of himself’; and “He’s thinking about himself as usual, and what he

can do or say to hopefully make the police think that it’s an accident.” Upon review, it is

apparent that each of the complained of comments constitutes a fair commentary on the

evidence and remains within the bounds of acceptable conduct. Indeed, far worse

comments about a defendant’s veracity or character have been upheld when tied to

legitimate commentary on the evidence. (See People v. Friend (2009) 47 Cal.4th 1, 32

[noting that “the use of derogatory epithets to describe a defendant is not necessarily

misconduct” in response to commentary the defendant was “ ‘living like a mole or the rat

that he is’ ” where supported by evidence and further explaining “ ‘[w]hen a defendant’s

testimony contradicts the strong evidence of his guilt, it is not improper to call him a

liar’ ”].)

Unpresented Evidence of Guilt

Appellant objects to a comment from the prosecutor that “as far as that police

report, you know, when the defendant, you know, was daring me the other day about,

Well, do you have a police report? Well, yeah. I have—you know, I’ve got it right here,

[f] There’s a lot of things that can’t come in in a courtroom. I have some limitations.”

Appellant contends the prosecutor implied there was additional unpresented evidence of

guilt and thereby argued guilt based on facts not in evidence. We do not agree.

As the People explain, the prosecutor’s comments were directed to a specific

exchange that occurred during appellant’s cross-examination. During that exchange,

appellant specifically asked the prosecutor to show him the police report of a specific

encounter when asked about details of the event. The next day, the prosecutor brought

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the police report and cross-examined appellant on its contents but did not move it into

evidence. Thus, the jury had already seen that the document exists and heard appellant’s

testimony regarding the document. In closing, the prosecutor made no reference to the

contents of the report, but rather made a fair commentary on the cross-examination

exchange, essentially noting appellant’s dare to produce the document and the fact the

prosecutor had complied. As the prosecutor went no further in terms of arguing the

meaning of the document, we conclude no error arose.

Burden-shifting Statements

Finally, appellant identifies three statements he contends show the prosecutor

attempted to shift the burden of proving all elements beyond a reasonable doubt by

arguing the jury would have to disbelieve the entire prosecution case to find appellant

credible. Appellant also alleges one of the comments improperly stated the reasonable

doubt standard. The People contend the comments were all valid argument that

appellant’s testimony was not credible, and that the prosecutor correctly stated the burden

of proof on uncharged prior bad acts evidence rather than misrepresented the reasonable

doubt standard.

The three statements were: (1) “As far he’s concerned, everybody’s a liar but him

exc ept that he did have sex with that other girl.”; (2) “The police come. You saw him up

there. He’s denied everything. Everybody up there is a liar.”; and (3) “He’s sitting there

saying they’re all lying, but there’s a pretty good common scheme and plan. There’s a

jury instruction on that. It’s the preponderance of the evidence.”

We agree with the People. In context, each of these arguments were made in a

manner that fairly presented the prosecutor’s contention that appellant was lying in order

to protect himself. Indeed, the second statement is particularly clear on this, as the

complained of statement only arose as the prosecutor again reminded the jury that

appellant had been denying various facts until confronted with a police report on the

incident. Further, we see no error in the prosecutor’s statement that there is a jury

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instruction discussing the preponderance of the evidence standard. As the People note,

there was such an instruction, and the prosecutor’s comments went on to explain m the

context of the uncharged prior bad acts evidence that “[i]f you—based on what you heard

and saw from the evidence, if you believe these offenses happened, you can apply that

when you’re deliberating on these—on Count[s] 1 and 2.” Nothing m the exchange

suggests the prosecutor was telling the juror’s they could convict appellant of the charged

offenses based on anything other than proof beyond a reasonable doubt. Accordingly, we

find no error in the identified statements discussed.

Hearsay Claim

Appellant alleges reversible error occurred when the trial court permitted the

introduction of hearsay testimony concerning Jimmy’s reaction after being told he was

going to Mother’s home in February 2013. Because we conclude the actual evidence

entered does not qualify as hearsay, we find no error.

Factual Background

As appellant notes, the People filed a pretrial motion in limine to introduce

allegedly spontaneous statements by Jimmy that he did not want to go to Mother’s house.

The trial court deferred a final ruling on this motion stating a section 402 hearing would

be needed before introducing the statements. This hearing never occurred. Rather,

during trial the prosecutor and Father had the following exchange without objection:

“Q.

Okay. Now, around February 201 [3], was there a change in Jimmy s

demeanor with you, of just his demeanor in general?

“A.

Yes, he started to be a little bit more reluctant when I said it’s time to go to

[Mother]’s house. He didn’t want to go to [Mother]’s house. And he typically wouldn’t

throw a tantrum, but he started acting out in certain ways like that. That was very

unusual of him.

“Q.

What did he do?

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“A.

Well, for one instance that I can remember very well, is I told him, I’d say

in February, it was in February, the second to the last times I had my children, I said it’s

time to go home, and he threw himself on the floor and cried. And when I put him in the

car, he stared down and looked away from me. I asked him repeatedly, “What’s wrong,

buddy?” And he wouldn’t answer me, which is very unusual. All this from me

stemming to say we’re going back to [Mother]’s house. I have to take you back to

[Mother]’s house.

“We got to Visalia. Of course I don’t know where [Mother]’s house is. I took

them to [Mother’s] parents’ house. He realized it was in that neighborhood. His attitude

perked up immediately when he realized he was going to his grandma and papa’s house

rather than his [Mother]’s house.

“Q.

So he was happier?

“A.

He was happier after that, yes.”

Relevant Law and Standard of Review

u (

Hearsay evidence’ is evidence of a statement that was made other than by a

witness while testifying at the hearing and that is offered to prove the truth of the matter

stated.” (§ 1200, subd. (a).) Nonverbal conduct constitutes a “statement” that was made

for purposes of the hearsay rule only if it was “intended by [the person] as a substitute for

oral or written verbal expression.” (§ 225, subd. (b).)

We review the admission of evidence for an abuse of discretion. (.People v.

Thompson (2016) 1 Cal.5th 1043, 1120.)

Discussion

Although appellant notes the original dispute involved allegations Jimmy made

statements to Father that he did not want to go to Mother’s home, the testimony at trial

did not include any such allegations. Rather, the testimony at trial detailed Jimmy’s

physical actions in response to statements made by Father, the person testifying, and

Father’s impressions of the meaning in those actions. While such impressions may be

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speculative, no objection was raised on that point and it is not argued here. Considering

the scope of the testimony from a hearsay perspective, there is no indication in Father’s

testimony that Jimmy was attempting to convey any unstated meaning by his conduct or

trying to substitute his conduct for any statement. Rather, the testimony conveyed

“nonverbal, nonassertive, emotional behavior” and was therefore not hearsay. (.People v.

Rogers (2009) 46 Cal.4th 1136, 1162.)

Nonaccidental Language Claim

In supplemental briefing, appellant raises an additional claim that the trial court

erred by permitting the People’s experts in this case to describe Jimmy’s injuries as

“nonaccidental.” Appellant contends this language was an inadmissible legal conclusion,

a matter not beyond the jury’s common knowledge, and an improper opinion about the

credibility of appellant’s statements. We do not agree.

Factual Background

Prior to trial, appellant filed a motion in limine seeking to “exclude medical

opinion testimony characterizing [Jimmy]’s injuries as having been the result of non

accidental trauma, abusive head trauma, or any similar terminology.” The trial court

heard the motion and rejected the request, explaining its understanding that the terms

objected to were the actual medical nomenclature utilized by doctors in their normal

course of work. The court explained it resolved this same issue in a prior case and

“allowed them to use those terms because—and it needs to be established—those are

medical terms that they use. And I will tell the jury that those are medical terms, which is

different than what the jury has to determine.” The court further stated, “But I will tell

the jury that when they use this terminology—I might just interject when the doctor says

it’s my belief it’s a nonaccidental. You can go in and explore what he means by that.

And I’m gonna tell the jury this is a medical term, not a legal term. And they alone must

decide whether it was nonaccidental or not.”

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At trial, the parties’ experts testified out of turn, with appellant’s expert,

Dr. Rothfeder, testifying first. In the course of describing the basic facts underlying

Jimmy’s injuries, Rothfeder noted other doctors had described the injury as

nonaccidental. Counsel later specifically asked Rothfeder what it means from “a strictly

medical standpoint” when that term is used. Rothfeder used that opportunity to explain

that the term is “most frequently used to allege child abuse,” but that “how we deal with

it doesn’t have anything to do with whether it was accidental, homicidal, or attempted

homicide or self-inflicted for that matter.” Rothfeder went on to specifically note that

one cannot determine whether an injury was intentional or accidental by just looking at

the injury, stating you “can’t determine from the injury whether the head was moving and

struck something stationary or whether the head was stationary or something struck the

head.” Further discussion of the term “nonaccidental trauma” occurred during

Rothfeder’s testimony. In one instance, he specifically equated the term with the concept

of shaken baby syndrome. And in a later cross-examination exchange, confirmed that the

name “shaken baby syndrome” had been changed, claiming the biomechanics of the term

were invalidated.

When the prosecution’s witnesses testified, the term was frequently used,

particularly in discussions where a diagnosis regarding the injury had been made.

Indeed, in one example, Dr. Ramirez explained that during treatment, “when we’re

suspecting nonaccidental trauma, we always will correlate what s being told to us with

what the mechanism of the injury is with what is actually in front of us.” In another

example, Dr. Bruhn testified that a diagnosis of nonaccidental injury would result in the

use of an assessment team to treat the injuries.

Notably, relevant to this dispute, the trial court did not admonish the jury or

otherwise provide a statement consistent with its pretrial suggestion that it would remind

the jury of the medical nature of the term. However, appellant’s counsel also never

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objected to the use of the term at trial or requested the court provide the statement it

suggested it would.

Relevant Law and Standard of Review

“Testimony in the form of an opinion that is otherwise admissible is not

objectionable because it embraces the ultimate issue to be decided by the trier of fact.”

(§ 805.) However, to be admissible, the opinion must be “sufficiently beyond common

experience that [it] would assist the trier of fact.” (§801, subd. (a).)

[T]he decisive

consideration in determining the admissibility of expert opinion evidence is whether the

subject of inquiry is one of such common knowledge that [people] of ordinary education

could reach a conclusion as intelligently as the witness or whether, on the other hand, the

matter is sufficiently beyond common experience that the opinion of an expert would

assist the trier of fact.

(People v. Chappie (2006) 138 Cal.App.4th 540, 547.)

“The general rule is that an expert may not give an opinion whether a witness is

telling the truth, for the determination of credibility is not a subject sufficiently beyond

common experience that the expert’s opinion would assist the trier of fact, in other

words, the jury generally is as well equipped as the expert to discern whether a witness is

being truthful.” {People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) However, an

expert may, relying on reference to their expert knowledge, identify facts or aspects of

behavior that are inconsistent with claims presented at trial. (Ibid.)

“A trial court’s decision to admit or exclude expert testimony is reviewed for

abuse of discretion.” {People v. Pearson (2013) 56 Cal.4th 393, 443.)

Discussion

Appellant’s argument on this point turns upon a contention that the trial court

correc tly concluded the nonaccidental injury language was an impermissible expert

opinion and thus erred when it failed to provide the jury with the proposed admonishment

it had discussed during motions in limine. Appellant contends both that the term

constituted a legal opinion and that the opinion was not beyond a juror s common

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knowledge, and thus improper. Relatedly, appellant argues the language constituted

opinions on both appellant’s guilt and appellant’s credibility. Indeed, appellant spends

extended pages discussing changes in the scientific theories behind accidental trauma m

children and case law limiting expert opinions in gang and child sexual assault cases,

positing that, ultimately, the experts here provided improper opinions worthy of reversal.

Upon review of the record here, we do not agree with appellant’s positions. A

review of the trial court’s statements shows not that the court found the opinion to be

improper, but rather that it believed the language was generally permissible because it

constituted a legitimate medical diagnosis. The record confirms this fact, showing that

appellant’s expert acknowledged other treating doctors had used the terms to describe the

injuries and that the term was associated with the former concept of shaken baby

syndrome. Similarly, the prosecution’s expert testimony generally discussed the use of

the term in a diagnostic sense based on a comparison of the injury with the purported

mechanics alleged to have caused it.

Based on this record, we see no basis for appellant’s argument that the opinion

was legal in nature, not beyond a juror’s understanding, an assessment of appellant’s

guilt, or an assessment of appellant’s credibility. The diagnostic nature of the term

demonstrates not that the doctors were providing a legal opinion on whether the injury

was, in fact, intentionally caused but, rather, that the doctors were able to make certain

medical deductions based on the nature of the injury and the mechanism of harm

presented to them. Not only is this a factual opinion, but it is certainly one that goes

beyond the general understanding of a lay juror.

Further, that appellant’s defense raised issues of accidental injury does not

preclude the introduction of the opinion. As noted above, an opinion is not improper

merely because it goes to an ultimate issue of fact. Here, while appellant’s actions and

purported intent may have been a critical point of dispute, that dispute did not preclude a

general medical opinion applying the purported facts to the injury identified and

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concluding the diagnosis satisfied the term nonaccidental injury. For similar reasons, the

fact that the opinion conflicted with appellant’s defense or appellant’s testimony does not

modify the opinion to a statement on appellant’s guilt or credibility. Rather, it remains a

credible medical opinion that creates a conflict the jury must resolve.

As the opinion offered was legally proper, we find no error in the trial court’s

failure to ultimately provide further instruction to the jury regarding how to treat the

opinion. We note in this context, first, that appellant never raised a specific request for

the instruction when the term was used and, second, that appellant was the first to

introduce the term through his own expert’s testimony. It appears from that testimony

that counsel may have found no need for further instruction, as there was a full

opportunity and attempt to discredit the term at the outset. And there is no argument that

the jury was improperly instructed on how to consider expert opinions. Regardless,

however, as the court had no obligation under the law to provide an instruction, its failure

to do so cannot be reversible error. (See People v. Carter (2003) 30 Cal.4th 1166, 1224

[court not required to provide instruction specifying not to consider factors when, under

reasonable understanding of instructions, jury would know factors were improper].)

Appellant is entitled to a fair trial, not one with errors in his favor, and the lack of error in

failing to further instruct the jury on the meaning of the expert’s opinion shows a fair trial

occurred.

Appointment of Conflict Counsel

Appellant’s next allegation of error arises out of the trial court’s conduct

postconviction, after it appointed conflict counsel to investigate and potentially file a new

trial motion based on an ineffective assistance of counsel claim. After conflict counsel

determined no motion was proper, and upon a motion by the People, the court

reappointed trial counsel for sentencing. Appellant contends it was wrong to reappoint

trial counsel, alleging the appointment of conflict counsel was an all-or-nothing

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proposition and that conflict counsel should have been appointed for all purposes, if at

all. We do not agree. Although the appointment of conflict counsel for a limited purpose

is disfavored, it is only expressly prohibited as a substitute for proceeding under the

requirements for relieving trial counsel set forth in People v. Marsden (1970) 2 Cal.3d

118 {Marsden). Although we disapprove of the trial court’s procedures in this case, this

does not mean the trial court’s conduct was erroneous. Regardless, even assuming error,

we are confident the trial court’s actions were harmless.

Factual Background

Following appellant’s conviction, but prior to sentencing, he provided his trial

counsel with a 14-page request for a new trial based primarily on assertions that his trial

counsel had been ineffective. Trial counsel provided this letter to the court and indicated

his belief that a Marsden hearing was required to resolve it. The court reviewed the letter

and discussed its points with appellant and his counsel, recognizing during the process

that it was considering whether counsel should be relieved. The court found no grounds

to replace trial counsel but suggested a different counsel could be appointed for a new

trial motion. Appellant’s counsel noted case law counseled against this idea but also

stated a belief that ineffective assistance of counsel claims had to be raised at t

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