Opinion
C083575
01-25-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH REGINALD ZENO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F02799)
Two-year-old N.B.'s foot was severely burned after being left in the care of defendant Joseph Reginald Zeno, her mother's boyfriend. A jury found defendant guilty of felony child abuse (Pen. Code, § 273a, subd. (a)), and also found true an attached allegation that he personally inflicted great bodily harm on a child under the age of five (id., § 12022.7, subd. (d)). Defendant was sentenced to an aggregate term of nine years in state prison consisting of the midterm of four years for the abuse offense and a consecutive midterm of five years for the personal infliction of great bodily injury enhancement.
On appeal defendant contends the trial court abused its discretion in allowing the prosecution to introduce evidence of a prior uncharged domestic violence or abuse incident under Evidence Code section 1109. In defendant's view, the evidence showing he disciplined N.B. and her six-year-old sister J.B. by hitting the bottom of their feet with a hanger or his hand—referred to during trial and hereafter as "hot feet"—was more prejudicial than probative and should have been excluded under section 352. Finding no merit to defendant's contention, we shall affirm the judgment.
Undesignated statutory references are to the Evidence Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
In October 2014, defendant was dating S.P. They lived together in an apartment in Sacramento with her two daughters, J.B. and N.B., from a previous relationship with E.B. At the time, J.B. was six years old and N.B. was two years old.
On October 16, 2014, E.B. (father) and S.P. (mother) took the girls shopping for Halloween costumes. Father testified that they returned to his home and then mother left with her own father for several hours. Around midnight, on October 17, father called mother to ask when she was coming back to get the girls. Mother eventually returned and took the girls back to the apartment she shared with defendant.
When mother returned to the apartment, defendant was at home playing video games. She put the girls to bed, and around 8:00 a.m., mother woke J.B. up for school. Defendant had stayed awake all night playing video games.
According to mother's original version of events, N.B. was still sleeping when she left to take J.B. to school about 30 minutes later. The school was located very close to mother's apartment, and she returned home within a few minutes. She checked on N.B. and saw that she was asleep.
Defendant, meanwhile, was still playing video games. He asked her to fix him breakfast, but she said she did not have time because she was trying to get ready for an appointment for a potential job placement. Before leaving, she checked on N.B., who was still sleeping. Mother then drove to Rancho Cordova for her job appointment, arriving around 9:50 a.m. Defendant was the only person home with N.B. at the time.
While mother was in Rancho Cordova, defendant called her. He told her that N.B. had woken up screaming and that something was wrong with her foot. When mother arrived home, she saw that the bottom of N.B.'s foot had a huge blister on it. She took N.B. to the emergency room at Methodist Hospital, arriving at approximately 11:15 a.m. on October 17.
Physician's Assistant Andrea Grossi treated N.B. in the emergency room at Methodist Hospital. Mother told Grossi that N.B. had stepped on a small piece of glass a few days earlier, and that she had cleaned the base of her right heel with alcohol before removing the glass. She reported that N.B. had been walking normally and did not have blistered skin when she bathed her the day before. Mother said she left N.B. with defendant that morning when she went to an interview.
After examining N.B., Grossi observed an injury to her right foot. The entire bottom portion of N.B.'s foot had a multiple-level burn that had blistered. The burn appeared very fresh and painful; N.B. would cry and pull her leg away during the examination. Given the extensiveness of the burn, Grossi transferred N.B. to the burn unit at Shriners Hospital. She was treated at Shriners Hospital for five days.
David Greenhalgh, M.D., Chief of Burns and an expert in burn causation, diagnosis, and treatment at Shriners Hospital, later testified that N.B. suffered second degree burns on her foot, which he characterized as "extremely painful." After reviewing her medical records and photographs of her injuries, Dr. Greenhalgh testified that her injury was consistent with a hot pan being pushed up against her foot. According to him, a pan heated to 150 to 200 degrees could cause the extensive injury in one second. He also said it was unlikely that a child would suffer this type of injury but not show any signs or symptoms for nearly 12 hours.
Harris Kashtan, M.D., treated N.B. at Shriners Hospital. Mother repeated a similar story to Dr. Kashtan. She told him N.B. had stepped on glass a few days ago, but that the previous night she was fine. She said she left N.B. with defendant when she went to a job interview that morning. He woke up around 10:00 a.m. because N.B. was screaming and saw the injuries to her foot.
Later that night, Sacramento Police Officer Ryan Buchanan spoke with mother at Shriners Hospital. Mother said she had no idea how N.B. was injured because she was not home when it happened; defendant was watching N.B. at the time. Mother told Officer Buchanan that defendant said he thought it was from a cut N.B. got on her foot a few days earlier.
Officer Buchanan asked mother about any physical abuse in their home. Mother said that defendant used a form of discipline called "hot feet." She described the punishment as hitting the bottom of a child's foot with a hanger when the child gets in trouble, and that defendant had been disciplined in that manner when he was young.
The next day, October 18, mother spoke with Somaly Kong, a social worker with Child Protective Services (CPS). Mother told Kong that N.B. had stepped on a piece of glass a few days ago, but that she had removed the glass and cleaned the wound. She left N.B. alone in defendant's care twice the previous morning—when she took her older daughter to school and when she went to an appointment. Both times, N.B. was still sleeping when she left. She received a call from defendant around 10:15 a.m. saying that N.B. woke up screaming and that there were blisters on her foot. She returned home and took N.B. to the hospital.
Defendant spoke telephonically with Sacramento Police Detective Kelly Kensic on November 12, 2014. The recorded conversation was played for the jury. During the conversation, defendant confirmed he was home alone with N.B. on the morning of October 17. He said N.B. was sleeping when mother left to turn in paperwork for a new job, and that N.B. woke up screaming and showed him her foot. According to defendant, her foot looked like it was "halfway peeling off." He called mother, who came home and took N.B. to the hospital. He said nothing in the apartment could have burned N.B., and he surmised that she might have been injured the night before while in her father's care.
When Detective Kensic asked how the girls were disciplined in the home, defendant said they were not. He admitted that he had hit J.B. on the bottom of her feet once with his hands, but he stopped after mother told him not to discipline the kids since they were not his biological children. Although Detective Kensic expressed disbelief about defendant's story that N.B. simply woke up with a burned and blistered foot, defendant maintained that he did not know how N.B. was injured.
Detective Kensic also telephonically interviewed mother that same day. Their recorded conversation was played for the jury. She told him that she and father had joint custody of the girls, but that they spent most of their time with her. She again stated that N.B. was fine when she picked her up from father after getting the Halloween costumes.
Mother told Detective Kensic that she got J.B. up for school on the morning of October 17 and dropped her off at school around 8:30 a.m. When she returned home a few minutes later, N.B. was still sleeping. Defendant, who had stayed up all night playing video games, asked her to make him breakfast but she said she did not have time because she had to get ready for her job appointment with a temp agency in Rancho Cordova. She left the apartment around 9:15 a.m. While at the job appointment, defendant called her and told her to get hydrogen peroxide because something was wrong with N.B.'s foot. After the nurse confronted her at the emergency room that N.B.'s foot was burned, mother disagreed and said she did not know how her daughter's foot was injured because she was not home when it happened. She said something might have happened to N.B. when she was with father the previous day. Mother did admit that defendant had disciplined J.B. by using hot feet, which she described as hitting her on the bottom of her feet with a hanger.
Two days later, on November 14, 2014, Detective Kensic interviewed N.B.'s older sister, J.B. The jury heard excerpts of the recorded interview. J.B. told Detective Kensic that when she got in trouble, her mother would "whoop[]" her and that defendant would "give us hot feet on our feet." She described him removing her shoes and hitting her foot with a hanger. She said defendant had given hot feet to N.B. one time.
In March 2015, defendant was interviewed by Sacramento Police Detective Konrad Von Schoech. A recording of the interview was played for the jury. During the interview, defendant said he did not burn N.B., and he did not know how the burn happened.
Defendant was arrested and a May 2015 felony complaint, later deemed an information, charged him with one count of child abuse (Pen. Code, § 273a, subd. (a)), and alleged that he personally inflicted great bodily injury on N.B. (id., § 12022.7, subd. (d)). Defendant pleaded not guilty and denied the allegation.
Right before trial was set to commence in October 2016, mother, who had since lost custody of J.B. and N.B. and had a baby with defendant, changed her story. She claimed N.B. was awake when she got J.B. up for school, that she had put a pot of water on the stove to make defendant and N.B. breakfast when she returned from dropping J.B. off, that the water evaporated while she was getting ready for her job appointment, that she saw N.B. playing with pots and pans on the floor in the kitchen, and that she later heard N.B. scream and saw her holding her foot above the pot she had heated on the stove.
By the time of trial, mother's story changed again. She testified that she woke N.B. up after taking J.B. to school and placed her on the kitchen counter while she prepared to make defendant eggs for breakfast. While she was heating the pan, she turned around to the refrigerator to look for the butter and eggs. A minute or so later, she heard N.B. scream. She turned around and saw her standing on top of the counter with one foot in the hot pan. She immediately grabbed her and put butter on the burn. She did not tell anyone this version of events because she was scared her girls would be taken away.
Defendant was found guilty of the child abuse charge, and the jury found true the allegation that he personally inflicted great bodily injury on N.B. The court sentenced defendant to state prison for the middle term of four years for the child abuse offense plus five consecutive years (the midterm) for the great bodily injury enhancement. Defendant timely appealed.
DISCUSSION
Defendant contends the trial court abused its discretion in admitting prior uncharged acts of domestic violence under section 1109. He argues that evidence of the hot feet disciplinary method he used on the girls was more prejudicial than probative under section 352. In particular, defendant contends that using the phrase hot feet during a prosecution based on the theory that he stuck a hot pan on the bottom of N.B.'s foot was highly inflammatory and unduly prejudicial under section 352. We disagree.
Evidence of a defendant's prior acts is ordinarily inadmissible to show his or her disposition to commit such acts. (§ 1101.) The Legislature, however, has created an exception to this rule in domestic violence and child abuse cases. (§ 1109; People v. Brown (2011) 192 Cal.App.4th 1222, 1232 (Brown); People v. Dallas (2008) 165 Cal.App.4th 940, 951.) In those cases, the Legislature has concluded that the policy considerations favoring admitting evidence of uncharged domestic violence or abuse offenses outweigh the policy considerations favoring excluding such evidence. (Brown, supra, 192 Cal.App.4th at p. 1232; Dallas, supra, 165 Cal.App.4th at pp. 955-956.) "Section 1109, in effect, 'permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes.' " (Brown, supra, at p. 1232.) "The admission of prior acts as propensity evidence encompasses both charged and uncharged acts." (Brown, at p. 1233, citing People v. Falsetta (1999) 21 Cal.4th 903, 917-918.)
Even if the evidence is admissible under section 1109, however, "the trial court must still determine, pursuant to section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury." (Brown, supra, 192 Cal.App.4th at p. 1233.) "The court enjoys broad discretion in making this determination, and the court's exercise of discretion will not be disturbed on appeal except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (Ibid.) Relevant factors to consider include the inflammatory and speculative nature of the evidence, the probability of confusion, the consumption of time, as well as the remoteness of the prior acts. (People v. Harris (1998) 60 Cal.App.4th 727, 737-741 (Harris).)
Here, the People moved in limine before trial to admit, pursuant to section 1109, evidence of five prior acts of child abuse that defendant allegedly committed against J.B. and N.B. These included: (1) mother's statement to police that N.B. suffered head and face contusions after supposedly falling off a counter while in defendant's care; (2) mother's statement to police that N.B. suffered a split lip which defendant said she sustained when she slipped in the bathtub while he was bathing her; (3) J.B.'s statement to law enforcement and CPS that defendant would bite her and N.B. on their arms or in their armpit area; (4) J.B.'s statement to law enforcement and CPS that one time defendant grabbed N.B., held her upside down, and laughed while she was crying, and that when mother told him to stop he pushed her and hit mother on the head; and (5) evidence that as a form of discipline defendant would give J.B. and N.B. hot feet, meaning that he would remove their shoes and hit the bottom of their feet with a clothes hanger.
With respect to the hot feet evidence, defense counsel argued that use of the word "hot" was highly inflammatory and more prejudicial than probative under section 352. The prosecutor responded that defendant, J.B., and mother all referred to the form of discipline as hot feet, that it was highly probative of defendant's use of discipline on that part of the girls' bodies, and was relevant to show that he took the discipline too far when he burned the bottom of N.B.'s foot with a heated pan.
After considering the arguments of counsel, the court concluded that only the hot feet evidence was the type of evidence covered by section 1109. The court then expressly analyzed whether the evidence should nevertheless be excluded under section 352. In doing so, the court considered the nature of the conduct as a volitional act of punishment on the child's feet, that the conduct was not remote from the charged offense, the high degree of certainty that defendant had employed hot feet since he admitted the conduct of hitting the children with his hand, even if he denied using a clothes hanger, and that the evidence was unlikely to confuse the jury. The court also weighed the similarity between the evidence and the charged offense, finding them somewhat although not entirely similar because they both involved the child's foot.
Although the court recognized some prejudice to defendant from the evidence, it found it was not the type of prejudice section 352 proscribed; because the charged offense was far more egregious than the hot feet conduct, it was unlikely to evoke an improper emotional bias from the jury. The court found no burden defending against the uncharged offense since defendant admitted the conduct, and he had referred to hot feet as directed at the bottom of the children's feet. The court also noted that an appropriate instruction on how the jury could use the evidence under section 1109 would be given. The court did not believe a less prejudicial alternative means of introducing the evidence existed since the evidence would be presented in the statements defendant and J.B. made to law enforcement. The court thus concluded that under section 352 the probative value of the hot feet evidence exceeded its prejudicial effect.
It is clear from the record that the court thoughtfully considered whether the hot feet evidence was more prejudicial than probative under section 352. The court, moreover, thoroughly evaluated the relevant factors when weighing the probative nature of the evidence against its prejudicial effect.
The court considered the similarity of the evidence with the charged offense, which courts have recognized as " '[t]he principal factor affecting the probative value of an uncharged act . . . .' " (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274 (Hollie) [case involving uncharged sexual acts under section 1108]; People v. Johnson (2008) 164 Cal.App.4th 731, 739 [noting sections 1108 (for prior sexual acts) and 1109 (for prior domestic violence or abuse acts) are " 'virtually identical' "].) Because N.B. was burned on her foot and defendant liked to discipline the girls by hitting the bottom of their feet, the court reasonably concluded that the prior act evidence was somewhat similar to the charged offense.
The court also properly considered the amount of time between the uncharged act and the charged offense when weighing the probative value of the hot feet evidence. (Hollie, supra, 180 Cal.App.4th at p. 1274.) The more recent the uncharged act or prior instance of domestic violence, the more probative the evidence. (Id. at 1276; Harris, supra, 60 Cal.App.4th at p. 739 [" 'Remoteness' or 'staleness' of prior conduct is an appropriate factor to consider in a section 352 analysis."].) Because mother and defendant had been dating for about a year and a half before N.B.'s foot was burned, he obviously used hot feet as a form of discipline relatively close to when N.B. was injured. In other words, the disciplinary measure was not remote from the offense.
Referring to the disciplinary measure as "hot feet," moreover, was not too inflammatory as defendant argues. Harris, supra, 60 Cal.App.4th 727 provides useful guidance as to when prior acts evidence is too inflammatory to be admissible. There, the defendant, a caregiver in a mental hospital, was charged with sexually assaulting two patients by licking and fondling them. (Id. at p. 738.) Both women were on speaking terms with the defendant after the assaults. (Ibid.) The court admitted evidence that the defendant had been convicted of burglary with infliction of great bodily injury 23 years earlier. (Id. at pp. 738-739.) In describing the incident, the jury heard testimony of a viciously beaten and bloody victim who was a stranger to the defendant. (Id. at p. 738.)
This court found that the prior acts evidence was inflammatory in the extreme. (Harris, supra, 60 Cal.App.4th at p. 738.) The charged crimes, involving a breach of trust and the taking advantage of two emotionally and physically vulnerable women were of a significantly different nature and quality than the violent and perverse attack on a stranger that was described to the jury. (Ibid.) Nothing like that occurred here. Reference to "hot feet," which defendant and other witnesses described as hitting a child on the bottom of their feet, was not so significantly different than pressing an object to the bottom of N.B.'s foot.
We also find defendant's contention that the jury likely convicted him in this case to punish him for the prior uncharged acts unpersuasive. We are confident the trial court effectively instructed the jury to consider the uncharged acts evidence only for proper limited purposes. "[W]e must presume the jury adhered to the admonitions." (Hollie, supra, 180 Cal.App.4th at p. 1277.)
After considering both the probative value of the evidence and its prejudicial effect, we find that the trial court did not abuse its discretion by admitting the uncharged domestic violence acts evidence under section 1109.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: BLEASE, Acting P. J. MURRAY, J.