(Super. Ct. No. SF103120A)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Aurelila Monge, the eight-month old daughter of defendant Bryan Monge, died after suffering skull fractures and a laceration to her pancreas. A jury convicted defendant of child abuse resulting in death (Pen. Code, § 273ab; unspecified section references that follow are to the Penal Code) (count 1), corporal injury to a child (§ 273d, subd. (a)) (counts 2 (abdominal injury) and 4 (head injury)), and child abuse/endangerment (§ 273a, subd. (a)) (counts 3 (abdominal injury) and 5 (head injury)). The jury also found true great bodily injury enhancements under section 12022.7, subdivision (d) for the head and abdominal injuries Aurelila suffered. The jury acquitted defendant on count 8 charging abuse on another occasion and was unable to reach a verdict on counts 6 and 7 involving yet another incident of abuse. Those charges were ultimately dismissed, and the trial court sentenced defendant to a prison term of 25 years to life.
On appeal, defendant raises a number of issues relating to (1) the admission of evidence, (2) recesses taken during trial, (3) jury instructions, and (4) his motion for new trial. The People assert a claim of sentencing error, pointing out that the court stayed sentence on counts 2 through 5 without first imposing sentence for those offenses.
We remand for resentencing and otherwise affirm the judgment.
We describe relevant evidence in detail in conjunction with each of defendant's claims on appeal. The following is a brief synopsis of the case:
On January 2, 2007, eight-month old Aurelila, died from a lacerated pancreas caused by blunt force trauma. She also had two skull fractures. Defendant (her father) was charged with numerous child abuse charges, including abuse resulting in death.
Defendant asserted Aurelila's death was accidental. The family had vacationed at Disneyland the previous week, and defendant's wife, Sheina, had gone on the Peter Pan ride while carrying Aurelila in a front pack. The lap bar for the ride was very tight.
Aurelila was fine between Christmas and the day of her death.
On January 2, defendant took care of Aurelila while Sheina went to a doctor's appointment. When Sheina returned home, defendant told her that Aurelila had vomited and then had bumped her head on the sink faucet as defendant washed her off.
Aurelila's condition deteriorated that day; she vomited again, had diarrhea and was moaning and lethargic. At one point, defendant called an advice nurse who instructed him to keep the baby hydrated, ice the bump on her head, and check her for alertness. She also told defendant to bring the baby to the doctor's or the emergency room if symptoms worsened. She cautioned against giving any pain medication because it could mask symptoms. Defendant nonetheless went out to buy Children's Tylenol, and the medicine was given to Aurelila.
Later that afternoon, when Aurelila seemed worse, Sheina called a clinic and described Aurelila's symptoms. The nurse told Sheina to take the child to the emergency room. Defendant and Sheina discussed doing so, but instead opted to wait.
Ninety minutes later defendant discovered Aurelila in her crib, with her eyes rolled back in her head. Sheina called 911. The baby was not breathing, so the operator conveyed CPR instructions. Defendant tried to resuscitate Aurelila but she did not respond. An emergency team arrived at the house and transported Aurelila to the hospital. She never recovered. The cause of death was a pancreatic laceration which caused peritonitis.
Defendant was charged with multiple counts of child abuse, including abuse causing Aurelila's death. Much of the trial centered on the conflicting testimony of medical experts.
Defendant asserted that the injuries were accidental. He attributed the pancreatic injury to the tightness of the lap belt on the Disneyland ride, and he argued that when Aurelila bumped her head in the sink, she aggravated earlier skull injuries that occurred months before when Aurelila's infant seat had fallen off the counter. Defendant's medical expert testified that the injuries could have occurred in this fashion.
The prosecution's medical experts, on the other hand, disagreed. These witnesses, including the pathologist who performed the autopsy, stated that the injury to the pancreas happened much more recently than the prior week, probably within hours of death, and could only have been caused by a great deal of force, not by a restraint bar on a Disneyland ride. They also believed that any earlier skull injuries would have healed and that the current fractures were recent. They testified that the fractures could not have been caused by a bump on the faucet, but were the result of blunt force trauma, a recent application of great force such as would occur from repeated blows or if ejected in a car accident.
The jury convicted defendant on counts 1-5, the charges relating to the January 2 abuse and Aurelila's death.
Evidence of Spousal Domestic Violence
Defendant contends that the trial court erred in permitting the prosecution to introduce evidence of a prior incident of domestic violence involving an altercation between defendant and his wife, Sheina. Defendant asserts that this evidence was both statutorily inadmissible and irrelevant to the charged offenses, which involved child, not spousal, abuse. He also challenges the constitutionality of the pertinent statute and CALCRIM instruction. None of these claims has merit.
The prosecution sought to introduce evidence of an incident of domestic violence involving defendant and his wife. During an argument, that occurred at Sheina's sister-in-law's house, defendant shoved Sheina against a wall and threw his ring at her. Sheina left her sister-in-law's and returned to her own home. When defendant came back to their home the next morning, Sheina locked herself and her two daughters in the bathroom. Defendant pounded on the door and screamed at Sheina. As Sheina called 911 from the bathroom, defendant left the house, yelling that he would come back and "beat [her] ass."
The prosecution asserted that this testimony was admissible under Evidence Code section 1109, subdivision (a)(1), 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 [Evidence Code section] 1101 if the evidence is not inadmissible pursuant to [Evidence Code section] 352."
The trial court admitted the evidence over defendant's objection.
On appeal, defendant contends that Evidence Code section 1109 is inapplicable because the charged offenses did not involve domestic violence.
Evidence Code section 1109, subdivision (d)(3) defines "domestic violence" as having "the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to [Evidence Code 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 . . . ."
It is the second definition that is relevant here. Family Code section 6211 defines "domestic violence" as abuse perpetrated against a spouse or former spouse (Fam. Code, § 6211, subd. (a)) or other specified classifications of people, including a cohabitant, i.e., a person who regularly resides in the household (Fam. Code, § 6211, subd. (b); see Fam. Code, § 6209), and "a child of a party." (Fam. Code, § 6211, subd. (e).)
The earlier incident involving Sheina meets the statutory definition of "domestic violence" under Family Code section 6211. So do the charged offenses, acts committed against defendant's young daughter, i.e., "a child of a party." Evidence Code section 1109 therefore applies.
Defendant argues that Evidence Code section 1109 must be interpreted to require that the same type of abuse be involved in both the prior and charged offenses. According to defendant, prior conduct involving spousal abuse would be admissible under section 1109 only if the current charged offense also involves spousal abuse. Defendant's reading is at odds with the express language of the statute.
As noted, Evidence Code Section 1109 subdivision (a) specifically 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 [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."
Nothing in this language limits admissibility to the same type of offense; the only qualification is that both the prior and current conduct must be acts of domestic violence as defined by Penal Code section 13700 or Family Code section 6211. (See Evid. Code, § 1109, subd. (d)(3).) As People v. Ogle (2010) 185 Cal.App.4th 1138 stated, Evidence Code section 1109 "unequivocally incorporates the Family Code definition without limitation: '"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).) The plain language of a statute proscribes its interpretation by the courts. [Citation.] 'When statutory language is clear and unambiguous, there is no need for construction and [the] courts should not indulge in it.' [Citation.]" (Ogle, at pp. 1144-1145.)
Defendant points out that Evidence Code section 1109, subdivisions (a)(2) and (a)(3) relate to specific situations in which the prior and charged offenses involve the same type of abuse, and he asserts that this indicates the Legislature's "plain intent" that the same requirement apply to the rest of the statute as well. We do not agree.
Evidence Code section 1109, subdivision (a)(2) permits the introduction of evidence of past elder abuse in prosecutions for elder abuse, and subdivision (a)(3) outlines the requirements for admitting evidence of prior acts of child abuse in prosecutions for child abuse. Neither of these subsections is applicable here, as the present case does not involve elder abuse or prior acts of child abuse. Neither of these subsections in any way suggests that their limitations somehow also apply to subdivision (a)(1) to permit the admission of past domestic violence acts only if the current charges involve abuse on the same type of victim. In fact, as we have already noted, the clear language ...