Filed 9/10/12 P. v. Ackles CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE
PEOPLE,
Plaintiff and Respondent,
v.
KATRINA
ACKLES,
Defendant and Appellant.
D060772
(Super. Ct.
No. SCD230712)
APPEAL from a judgment of the Superior
Court of
County, John S. Einhorn, Judge. Affirmed.
A jury
convicted Katrina Ackles of two counts of child
abuse (Pen. Code
name="_ftnref1" title="">[1],
§ 273a, subd. (a)), and found true an allegation that she personally
inflicted great bodily injury on a child under the age of five (§§ 1192.7,
subd. (c)(8) & 12022.7, subd. (d)).
Ackles was sentenced to a determinate term of three years, four months
in prison.
Ackles appeals contending the prosecutor committed
prejudicial misconduct during cross-examination and in
conclusion there was no misconduct by the prosecutor, even though the
prosecutor made mistakes. We are
satisfied there was no prejudice to Ackles's case.
STATEMENT
OF FACTS
Ackles
does not challenge either the admissibility or the sufficiency of the evidence
to support the convictions in this case.
Accordingly, only a summary of the facts is warranted in this opinion in
order to provide context for the discussion which follows. We will adopt the statement of facts set
forth in appellant's opening brief as an adequate summary.
A. Prosecution Case
On August 26, 2010, appellant took her 23-month-old son, D.,
to appellant's grandmother's house. The
grandmother noticed an injury on D.'s hand and called Child Protective Services
(CPS). The next day, on August 27, 2010, appellant took
D. to Rady Children's Hospital for treatment.
While at Rady Children's Hospital, appellant spoke with Officer Zane
Peterson. Appellant told Peterson that
the previous Monday she had been ironing some clothes but that she left the
room where the iron was, and a few minutes later D. came running to her saying
"ouchie, ouchie." Appellant
said she unplugged the iron and ran D.'s hand under cold water for about 10
minutes, and bandaged the wound. The
next day it had blisters. Appellant told
Peterson that she had taken D. to Euclid
Medical Center
for treatment, where a physician checked the wound, cleaned it and bandaged
it. Appellant later admitted to
Detective Burow that she only took D. to the doctor after CPS came out to her
house.
Seema Shah, pediatric emergency physician at Rady
Children's Hospital, treated D. on August 27,
2010. Shah described the
wound as a burn to the hand, overlying between the thumb and first finger, with
indistinct burns to the middle finger, ring finger, and wrist. Shah stated the burn was clearly a pattern
from a clothing iron.
Jennifer Davis, a pediatric hospitalist at Rady Children's
Hospital, spoke with Detective Burow, reviewed D.'s medical records, and viewed
photographs of D.'s wounds. In Davis's
opinion, the burn pattern on D.'s hand was inconsistent with a hot iron falling
on the hand because there were no "swipe burns" from D. pulling his
hand away. Here, the circular sparing on
the iron steam holes were visible in the wound.
Davis also said that there
were medical risks for failing to seek treatment for burns, and because D.
required three visits to the burn center, the burn was severe enough to require
treatment and therapy.
B. Defense Case
On a Sunday during August 2010, appellant was drying a
pair of pants with a clothes iron as her son D. was playing around the
house. Appellant picked up the pants,
wrapped the cord around the iron, and when the phone started ringing, set the
iron on a deep freezer and went to answer the phone. She did not worry about D. playing with the
iron. Soon after, D. came running to
appellant in the bedroom saying, "mommy, ouch," with some tears. Appellant saw that D. had been burned, and
she ran cold water on the burn for 10-15 minutes, and then wrapped a cold towel
around his hand. She bought Neosporin
and treated the wound. Appellant took D.
to the hospital only after a CPS worker came out. She was concerned that she had not taken D.
for treatment because "[t]hey probably would have thought that I had did
it." Appellant denied intentionally
burning D., and denied that she would ever do such a thing to her child.
Steven Gabaeff, a board certified emergency physician,
reviewed the police reports, medical records, and viewed the photographs
pertaining to this case. In Gabaeff's
opinion, D.'s hand was probably flat, the iron came down on the hand sideways,
and D. immediately pulled his hand back.
Gabaeff's opinion was that because of the temperature of the iron,
intentional injury was unlikely because it would have been very difficult to
just make contact with the iron for the one-tenth of a second or two-tenths of
a second that would be involved to make this burn. To a reasonable medical certainty, Gabaeff's
opinion was this was an accident.
Five witnesses testified to appellant's reputation as a
nonviolent person.
C. Prosecution Rebuttal Case
Bruce Potenza, physician director of the burn unit where
D. was treated, stated the burn pattern showed that an object was placed on
D.'s hand for a period of time to allow the tattoo mark to occur, and then
taken directly off. Potenza
disagreed with Gabaeff's opinion that D. pulled his hand from under the object,
because if that had happened, it would have left a diffuse burn and not the
distinct tattoo mark. In Potenza's
opinion, it was more likely that this was an
than an unintentional injury.
DISCUSSION
Ackles
contends the prosecutor committed two acts of prejudicial misconduct. The first alleged act took place during
cross-examination when the prosecutor asked Ackles about her prior conviction
for selling cocaine base. Ackles
acknowledged she had suffered that conviction and then the prosecutor asked
her: "That was while you had your
three kids in the house" The court
sustained defense counsel's objection to the question and there were no further
questions on the subject. The defense
The
second alleged act of misconduct took
place during the prosecutor's final argument.
The prosecutor referred to testimony of Ackles's daughter, L. The prosecutor said: "[W]e heard from [L.]. Do you remember when she sat on the stand a
few days ago and had to talk about how her mom beat her, punched her in the
head repeatedly, whipped her with a belt."
Defense counsel immediately objected that the comment misstated the
evidence, however the court overruled the objection. The respondent correctly concedes the
prosecutor's statement was incorrect. L.
actually denied all but a single push to her head, however, the prosecution had
entered evidence through a social worker who testified that L. said her mother
had hit her in the head with her fist.
Ackles
contends both actions by the prosecutor constituted prejudicial misconduct.
Legal Principles
The
parties are essentially in agreement as to the definitions of prosecutorial
misconduct. "A prosecutor's
misconduct violates the Fourteenth Amendment to the United States Constitution
when it 'infects the trial with such unfairness as to make the conviction a
denial of due process.' " (
Cal.4th 1158, 1202; People v. Parson
(2008) 44 Cal.4th 332, 359; Darden
v. Wainwright (1986) 477 U.S. 168, 181.)
Under California
law prosecutorial misconduct occurs when a prosecutor uses deceptive or
reprehensible methods, even if those actions do not result in a fundamentally
unfair trial. (People v. Parson, supra, 44 Cal.4th at p. 359; People v. Earp (1999) 20 Cal.4th 826, 858.)
Cross-Examination
As we
have noted, the prosecutor asked Ackles whether her conviction for selling
cocaine base arose out of a time when she had three small children in her
house. In sustaining the objection the
court found the prosecutor had exceeded the scope of questioning regarding
prior convictions as had been outlined in the in limine motions. In the earlier rulings the court directed the
prosecution not to inquire about the facts of the underlying offense.
The prosecutor explained that she was not
inquiring about the facts of the offense, but was responding to
was a near perfect mother who would do nothing to endanger her children. Satisfied with the prosecutor's explanation,
the court still believed the question inappropriate, but not prejudicial and
denied the defense motion for mistrial.
We agree
the question asked was not artful and had the potential of being interpreted as
inquiring into the facts of the prior conviction. That said, there does not appear to be any
evidence of deceitful or reprehensible conduct by the prosecutor. Inquiring into matters that would bear on the
character traits Ackles had put in issue does not indicate misconduct. In any event, the court timely sustained the
objection and there were no other inquiries about the prior conviction. The jurors were instructed that they should
not speculate about questions to which objections might be sustained. There is nothing about this very brief
comment during cross-examination to remotely demonstrate prejudice, or improper
conduct by the prosecutor.
Closing Argument
It is
undisputed the prosecutor incorrectly stated that L. had testified about
beatings by her mother. L. in fact
denied most of it. The prosecutor did,
however, follow up her comments about L. with a discussion of her statements to
a social worker that included statements by L., which were inconsistent with
her trial testimony. Thus there was evidence of statements
attributed to L. about physical abuse by her mother in the past.
It is
the case that a prosecutor can commit misconduct when he or she misstates or
mischaracterizes the evidence in argument to the jury. (People
v. Hill (1998) 17 Cal.4th 800, 823; People v. Harrison (2005) 35 Cal.4th 208, 249.) The question remains, however, whether on
this record we should conclude the prosecutor committed misconduct, or simply
made a mistake. We are satisfied this
record leads to the latter conclusion.
First,
the comment did not refer to something that was not in evidence. Certainly there was a dispute in the case
about what exactly L. said about past abuse.
It is also important to recall that L. was not the victim in this case
and that a good deal of time had been taken in exploring Ackles's character
traits as introduced by the defense.
Thus the misstatement does not inject some new or false issue into the
case.
Further,
taken in context with the follow-up comment about the social worker's
testimony, it seems clear that the prosecutor was attempting to rebut the
defense argument with reference to facts surrounding L., which the prosecutor
did incorrectly. In short we find
nothing in this brief comment from which we can reasonably infer deceitful or
reprehensible conduct.
Finally,
even if there is some possible inference of misconduct, we are satisfied that
any error was harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24.)
There was abundant expert testimony demonstrating the burns on D.'s hand
were intentionally inflicted. Ackles's
explanations were implausible, and her expert was thoroughly impeached and
lacked the credentials to cast any doubt on the mountain of expert evidence
that these burns were the result of deliberate child abuse. The prosecutor's erroneous comments in
harmless on this record.
DISPOSITION
The judgment is affirmed.
HUFFMAN,
Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.
