Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF106537. Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Frederick L. McBride for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, Robert M. Foster and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Odis Ray Johnson, defendant and appellant (hereafter defendant), appeals from the judgment entered after a jury found him guilty of inflicting cruel and inhumane corporal punishment on 19-month-old V. in violation of Penal Code section 273d, subdivision (d) (count 1), willfully harming a child in violation of section 273a, subdivision (a) (count 2), and further found true the allegations under section 12022.7 in connection with both counts that defendant personally inflicted great bodily injury on V. After denying defendant’s motion for new trial, the trial court sentenced him to serve a total of nine years in state prison, comprised of the midterm of four years on count 1, plus an additional five years on the great bodily injury enhancement.
All further statutory references are to the Penal Code unless indicated otherwise.
The trial court also imposed a four-year prison term on count 2, but stayed execution of that sentence in accordance with section 654.
Defendant’s contentions in this appeal are directed at challenging the admissibility of evidence that he had committed prior acts of violence against a child. His specific complaints involve the admissibility of evidence that defendant was charged in 1978 with several counts of child abuse after his 13-month-old daughter, J., suffered a broken leg and then later suffered other injuries, including a lacerated liver. The prosecutor also elicited testimony that in 1980 defendant’s infant son died of sudden infant death syndrome (SIDS), commonly referred to as crib death. Defendant contends that evidence regarding his daughter’s broken leg in 1978 and the SIDS death of his son in 1980 should not have been admitted at trial because the probative value of that evidence is substantially outweighed by its potential for prejudice. In addition, defendant contends that he was denied his Sixth Amendment right to the effective assistance of counsel because his trial attorney did not review the entire transcript of the videotape of defendant’s police interview in this case, and therefore did not know that it contained the irrelevant and unduly prejudicial reference to the 1980 SIDS death. Defendant contends that his statement regarding that death should have been redacted, and would have been if trial counsel had read the entire transcript. Defendant also contends that questions the police officers posed to him during the interview should have been redacted because those questions clearly conveyed that the police officers did not believe defendant’s explanation that V.’s injuries were accidental and occurred when she fell in the pool while defendant was not watching. In addition, defendant claims that trial counsel was ineffective because she did not object when the prosecutor insinuated while questioning defendant’s wife that defendant was somehow responsible for the crib death of his son in 1980.
We conclude, for reasons we explain below, that defendant’s contentions lack merit. Therefore, we will affirm the judgment.
Defendant also raises his ineffective assistance of counsel claim in a petition for writ of habeas corpus that we consolidated with this appeal for the purpose of determining whether defendant has established a prima facie basis for relief. We conclude defendant has not met his burden because he has not supported his claim with admissible evidence. Therefore we will deny the habeas corpus petition.
FACTS
In September 2002, 18-month-old V., her father, and her baby brother were all living in defendant’s home with defendant, his wife, and his daughter. On September 18, defendant and his wife took care of V. for the day while her father went to apply for welfare benefits. When defendant’s wife went to pick up their daughter from school, V. was left alone with defendant. According to defendant’s wife, V. had not been feeling well and was on the couch watching television when she left the house to pick up her daughter. Defendant told the police that after his wife left, he went outside to work on his pool pump. When defendant went outside, V. was still on the couch. After working on the pump for only a few minutes, defendant heard a splash in the pool. When he looked to see what had happened, defendant saw V. floating in the pool with her head down and her feet up. Defendant immediately jumped in and got V. out of the water. By his estimate, V. was in the pool for as few as two and no more than 15 seconds. According to defendant, V. was bleeding profusely when he pulled her from the pool and blood got all over his shirt. Defendant told the police that he tried various things to revive V., including CPR and rubbing ice on the child, and although V. would occasionally moan, she otherwise seemed lifeless. Defendant adamantly denied that he had done anything to hurt V. and insisted that he had only pulled her from the pool and tried to revive her, in the course of which he might have gently shaken the child.
Defendant and his wife apparently took care of V. and her baby brother on the day in question, but the witnesses at trial barely mention the boy.
When defendant’s wife returned home, V. was lying on the floor, and nonresponsive, although her eyes would occasionally flutter open. Defendant left his wife with V. and drove to the welfare office to find V.’s father, William Brown. Once back at the house, William Brown grabbed his daughter and had defendant drive them to a hospital emergency room. No one called 911, although defendant claimed later, in his statement to the police, that he had asked his wife to do so when he left the house to find V.’s father. Defendant and his wife both are certified nurse’s assistants, yet neither of them thought to call for emergency assistance.
Defendant believed that his wife was gone for 15 to 20 minutes; however, his wife stated that, although she could not recall how long she was gone, it could have taken her between 30 and 50 minutes to pick up her daughter at school and return home.
The three doctors who examined and treated V. in the hospital each stated that her injuries were not consistent with the explanation that she had fallen into a pool and had been in the water for less than a minute. In particular, V. had bruising on the left side of her face that extended from her temple to her jaw, and injuries inside her mouth. Although an initial brain scan looked normal, a subsequent scan conducted later that day after V. was transferred to University of California at Irvine Medical Center, disclosed a subdural hematoma. While hospitalized, V. suffered a stroke that caused paralysis to the right side of her body and deprived her of the ability to speak. Both physical deficits persisted at the time of trial.
The evidence regarding whether V. was wet, or appeared to have been wet, was conflicting. In his statement to the police, defendant said that he had not changed V.’s diaper after she fell in the pool. V.’s father testified that V.’s diaper was not wet and he did not recall her hair being wet. The first doctor to examine V. said she looked wet, although this doctor admittedly had little independent recollection of the incident and testified almost entirely based on his report.
The three treating physicians and a forensic pediatrician who reviewed V.’s medical records all expressed the opinion at trial that V.’s injuries were caused by an impact to the head and were consistent with shaken baby syndrome or shaken impact syndrome.
Additional facts will be discussed below as pertinent to the issues defendant raises on appeal.
DISCUSSION
1.
EVIDENCE OF PRIOR ACTS OF ABUSE
At a pretrial hearing, the trial court overruled defendant’s objections under Evidence Code sections 1101, subdivision (a) and 352 to the admissibility of evidence to show that on May 19, 1978, defendant’s 13-month-old daughter, J., was admitted to a hospital with visible injuries, including bruises to her forehead, chest, and abdomen. Defendant claimed that J. had fallen off the couch and onto a coffee table while he was not looking. Doctors determined that in addition to the visible injuries, J. also had a lacerated liver, an injury that would not have occurred in an accidental fall from the couch, as defendant claimed, and was most likely the result of blunt force trauma. Unbeknownst to both the prosecutor and defense counsel, J. was the victim of two separate incidents of abuse in May 1978, a fact that came to light when the officer who had investigated the 1978 matter testified at trial in this case, among other things, that J. had a cast on one of her legs when he investigated the incident on May 19, 1978. When the prosecutor asked whether defendant explained why J. had a cast on her leg, the officer stated, “Yes. He actually described that incident that happened, I believe, on May the 9th.” According to the officer, defendant said “he was holding [J.] and he demonstrated physically across his lap. And he had made a motion, and he heard something snap. And that he thought maybe she had broken her leg, but then he twisted the leg a little bit and didn’t see anything wrong with it at that time. And so he didn’t take any action, any further action medically at that time.” The next day or so “they noticed that the leg was swelling, and so she was given the medical attention.”
Although defendant objected on various grounds, including relevance and hearsay, to the evidence regarding J.’s broken leg, the trial court overruled his objections. In a sidebar conference after the prosecutor had completed direct examination of the officer, defendant again objected that the broken leg incident had not been included in the prosecutor’s pretrial motion, and therefore should not have been admitted into evidence at trial. The prosecutor in turn represented to the court that defendant “was never accused or charged of [sic] hurting [J.’s] leg” and that it was not part of the child abuse incident in 1978. At the conclusion of the sidebar conference the trial court agreed that the issue should be cleared up for the jury. To that end, the prosecutor asked the officer to clarify for the jury that the cast on J.’s leg was not part of the incident on May 19, 1978, in which J.’s liver was lacerated. The officer answered, “It was May 9. The 9th of May was the cast.” After the officer answered another question, the trial court apparently realized that there had been two separate incidents of abuse in May 1978. The trial court again excused the jury and questioned the officer who explained there had been two incidents, one on May 9 and one on May 19, and both incidents were included in the complaint the district attorney filed in 1978. After the trial court denied defendant’s motion for mistrial, the trial court admonished the jurors to disregard the officer’s testimony regarding the broken leg.
The prosecutor’s representation was incorrect. The two separate injuries are alleged in the complaint filed in 1978 as two separate counts. In his 1978 guilty plea to one of those counts, defendant admitted in the factual basis for that plea, that he had caused his daughter’s broken leg as well as other internal injuries.
Defendant contends that the error in admitting evidence regarding the broken leg could not be cured by an admonition. Contrary to defendant’s assertion, courts have held repeatedly that improper reference to a defendant’s prior criminal acts can be cured by admonition. (See, e.g., People v. Manson (1976) 61 Cal.App.3d 102, 154 [testimony that witness heard defendant “had been in jail for quite a number of years”]; People v. Fitzgerald (1972) 29 Cal.App.3d 296, 312 [testimony that police found business card of parole agent in defendant’s car]; People v. Miller (1964) 230 Cal.App.2d 876, 885 [use of defendant’s prior conviction for purposes other than impeachment cured by admonition it could only be used for impeachment].) Moreover, courts have long recognized that admonitions to disregard improperly admitted evidence or other improprieties that occur during trial are effective in all but the most “extreme cases.” (See People v. Fitzgerald, supra, at p. 312, quoting Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610.) There is nothing about the evidence at issue here that persuades us to deviate from the accepted view. We must assume absent a contrary showing by defendant that the jury followed the trial court’s admonition and disregarded the evidence that defendant broke his infant daughter’s leg.
Defendant also contends that the jury should not have heard evidence that defendant’s infant son died of SIDS in 1980. The prosecutor first raised the issue of the admissibility of that evidence in a pretrial motion in which the prosecutor pointed out to the trial court that when interviewed by the police in this case, defendant said in 1980 he had been with a friend in Ohio when the friend’s infant son started to turn blue and later “died of crib death.” The prosecutor wanted to present evidence to show that the baby who died in Ohio in 1980 was defendant’s own son, and that defendant had lied when he said the infant was the son of a friend. According to the prosecutor, that evidence was relevant to challenge defendant’s credibility. The trial court did not rule on the issue but later sustained defendant’s relevance objections when the prosecutor asked a police officer questions about that death. However, defense counsel did not object when the prosecutor later asked defendant’s wife whether defendant had told her that he had a son who died in Ohio in 1980 of crib death. Later, to undercut the testimony of defendant’s wife that she believed her husband was a good father, the prosecutor asked her, again without objection, “Now, you said that you thought your husband was a good father. You are aware of his child’s death, Odis, Jr., 1980; right?” When defendant’s wife acknowledged she was aware of that death, the prosecutor asked, “Are you aware of the 1978 incident that involved his daughter [J.]?”
Defendant contends that the questions improperly implied that defendant was responsible for the crib death of his son. We agree with defendant. But his attorney did not object, and therefore we will only address this issue in the context of defendant’s ineffective assistance of counsel claim. We next address that claim.
Defendant did cite this questioning in his later motion for mistrial, which the trial court denied.
2.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that he was denied his Sixth Amendment right to the effective assistance of trial counsel because his attorney did not review defendant’s recorded statement to the police before the prosecutor played the tape of that interview for the jury. Therefore, trial counsel did not request redaction of defendant’s statement regarding the 1980 crib death and also did not request redaction of statements made by the police officers that clearly conveyed they did not believe defendant’s protestations of innocence. Defendant also contends, as previously noted, that trial counsel should have objected when the prosecutor suggested that he was responsible in some manner for the 1980 crib death of his son.
Defendant also separately challenges the admissibility of the questions posed by the police but because his attorney did not object to the tape, defendant has not preserved the issue for review on appeal.
In order to establish a claim of ineffective assistance of counsel, defendant must “demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.) In evaluating counsel’s actions at trial, “A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]” (People v. Dennis, supra, at p. 541.) Moreover, “‘“[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citation.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
The only aspect of defendant’s ineffective assistance of counsel claim that is apparent from the record on appeal is that his trial attorney did not object to the prosecutor’s question to defendant’s wife that suggested defendant was responsible for the death of his infant son in 1980. This question was improper and defense counsel should have objected. According to the undisputed evidence, defendant’s son died of SIDS. Because trial counsel had objected to the crib death questions when posed to other witnesses and the trial court had sustained those earlier objections, we cannot conceive of any tactical reason for not objecting when the prosecutor brought the subject up again in the context of challenging the opinion of defendant’s wife regarding whether defendant was a good father. In other words, we conclude that by failing to object, trial counsel’s performance was deficient.
We must conclude, however, that trial counsel’s deficient performance was not prejudicial. Defendant initially claimed that V. had injured herself when she fell in the pool, but when it became apparent at trial that V.’s injuries could not have been caused by that purported fall, defendant asserted that someone else must have hurt V. As noted above, the jury heard evidence that defendant injured his infant daughter under circumstances nearly identical to those presented in this case—he was alone with the child when she accidentally fell and as a result suffered serious injuries, ones that experts all testified could not have occurred in the manner defendant claimed, and that defendant delayed seeking medical attention for the child. Defendant concedes this evidence was admissible to show his intent in this case. We note that the evidence of the prior incident of abuse was also admissible to establish that defendant committed the acts that injured V. (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, 399.) In short, it is not reasonably probable that the jury would have reached a result more favorable to defendant on either charge in this case if they had not heard the prosecutor’s improper suggestion that defendant had somehow been responsible for the death of his son in 1980. Because defendant has not demonstrated prejudice, we must reject this aspect of his ineffective assistance of counsel claim.
The other aspect of defendant’s ineffective assistance of counsel claim cannot be resolved in this direct appeal and is the subject of defendant’s habeas corpus petition. In that petition, defendant alleges that trial counsel failed to review the entire transcript of defendant’s police interview in this case and consequently did not know that defendant had mentioned the 1980 crib death. To support his assertion that trial counsel had allowed the tape to be played for the jury even though she had not read the entire transcript, defendant submits the declaration of his appellate counsel in which appellate counsel recounts his conversation with trial counsel. That declaration is hearsay, an objection the Attorney General asserts in its informal response to the habeas corpus petition, and as such is not competent evidence to support defendant’s factual allegation.
Nor can we say that the challenged statements are so patently egregious that there simply could be no satisfactory explanation for counsel’s failure to object and/or request redaction. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) Defendant’s statement regarding the SIDS death is unremarkable because defendant states that the child who died was the son of a friend. The issue raised by that statement is only obvious to someone who knows the truth, i.e., that the child who died of SIDS was defendant’s son. Nothing in the record suggests that trial counsel knew, or for that matter should have known, the truth about the SIDS death until that fact was brought out at trial. In other words, counsel would not have requested redaction of defendant’s statement regarding the SIDS death of a friend’s son even if she had read the entire transcript of the police interview.
Arguably, portions of the police interrogation should have been redacted from the recorded police interview and related transcript, most notably that portion that devolved into accusations by the police officers followed by defendant’s repeated denials. But we cannot say that trial counsel’s oversight was prejudicial. In light of the other properly admitted evidence, in particular, the evidence that V.’s injuries could not have occurred in the manner defendant described combined with the evidence regarding the injury to defendant’s daughter in 1978, we must conclude that it is not reasonably probable the jury would have reached results more favorable to defendant in this case if they had not heard the irrelevant although argumentative portions of the police interview. (People v. Dennis, supra, 17 Cal.4th at pp. 540-541.) In short, we conclude that taking the allegations as true, as we must, defendant’s petition for writ of habeas corpus fails to establish a prima facie case for relief. (In re Lawler (1979) 23 Cal.3d 190, 194.)
DISPOSITION
The judgment is affirmed and defendant’s petition for writ of habeas corpus is denied.
We concur: Ramirez, P.J., King, J.