P. v. Baxter
Filed 1/23/13 P. v. Baxter CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
>
THE PEOPLE, Plaintiff and Respondent, v. CARISSA RASHEA BAXTER, Defendant and Appellant. | B234996 (Los Angeles County Super. Ct. No. BA381387) |
APPEAL from
a judgment of the Superior Court
of
County, Craig Richman, Judge.
Affirmed as modified.
Melanie K.
Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and Robert
C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
___________________
>
INTRODUCTION
Defendant
Carissa Rashea Baxter appeals from a judgment
of conviction entered after a jury found her guilty of corporal injury of a
child between the dates of June 1 and June
30, 2010 (Pen. Code,
name="_ftnref1" title="">[1]
§ 273d, subd. (a); count 1) and corporal injury of a child between the
dates of July 1 and July 31, 2010
(ibid.; count 2).
sentence and placed defendant on probation for a period of five years, with the
condition that she serve one year in county jail and pay a fee, including
$5,000 in attorney’s fees pursuant to section 987.8.
On appeal,
defendant challenges the sufficiency of the evidence to support her
convictions. She further contends the
court erred in denying her motion to dismiss counts 1 and 2 pursuant to section
1118.1, and the trial court erred in admitting the statement of James Branch
(Branch)
against her as an adoptive admission.
Finally, defendant contends that the order to pay attorney’s fees should
be stricken because she did not receive notice or a hearing to determine her
ability to pay the court ordered attorney’s fees. We agree that the imposition of $5,000 in
attorney’s fees should be stricken.
FACTS
A.
Prosecution
The minor
victim, Elijah, was born in 2007. He is
the child of defendant and Branch.
During June through August 2010, Tiffany Baxter (Tiffany), defendant’s
sister, saw Branch discipline Elijah on a regular, weekly basis. Tiffany thought that Branch was too rough in
his aggressive grabbing of the child during that time period. Tiffany babysat Elijah once during the summer
and noticed a cut on his face. Tiffany
saw Branch and Elijah in the apartment swimming pool. Branch was attempting to teach Elijah how to
swim by dropping him into deep water.
The boy was screaming and choking.
Tiffany saw Branch drop Elijah into the water three to five times. Tiffany felt it was inappropriate for a
two-year-old to be treated the way Branch treated Elijah.
Sometime
during the summer of 2010, Tiffany heard Branch tell Elijah, “Do you want me to
get my belt?†Elijah said no and stopped
doing what he had been doing.
Paul Abram
(Abram) and Melissa Henry (Henry) were defendant’s next-door neighbors for six
or seven months. They heard Branch
yelling at Elijah and heard “spanking†and “smacking†sounds in conjunction
with Elijah crying. Abram heard a
“smack†or spanking once or twice a day for a minute or so. Henry heard it two or three times a week for
as long as three minutes. Neither Abram
nor Henry actually saw Branch or defendant hit Elijah.
Jashawn
Goodson (Goodson) was a friend of defendant’s from high school in Virginia. Goodson had an interview in Los
Angeles for an internship and asked defendant if she
could stay with her. She stayed with
defendant and Branch in the summer of 2010.
When
Goodson came to stay with defendant, she noticed marks on Elijah’s legs, right
above the knees. She thought the marks
were from Elijah hurting himself until she saw him getting spanked by Branch. The spanking would occur on a daily basis
during the week and in the early morning hours when defendant was at work. She continued to see marks on Elijah until
she moved out of the apartment in July.
Goodson saw
Branch hit Elijah with a belt a number of times. She estimated there were five times that defendant
was present when Branch spanked Elijah with a belt. On one occasion, Goodson heard Branch comment
about the marks on Elijah’s legs. It was
on an evening in June, and defendant, Branch and Elijah were in the bedroom
together. Branch said, “Ooh did daddy do
this to you? I’m sorry. I must have gotten out of hand. Daddy’s sorry.†Defendant was the one who normally bathed
Elijah while Goodson was staying with them.
Goodson
began to feel uncomfortable with the situation.
In early July, she moved out.
Goodson could still see marks on Elijah’s legs around that time.
Nurse
Practitioner Nune Abraamyan examined Elijah on October 2, 2010.
She asked Elijah what had happened to him. Elijah responded, “Daddy hit me with a
belt.†She also noticed multiple pattern
marks, loops and linear in form, all over Elijah’s body. The marks were left when Elijah was struck
with an object. The loops were left by
the looped end of a belt. The multiple
linear marks were straight marks left by a belt. Elijah also had scars, scratches and scalp
abrasions.
Dr. Astrid
Heger is a board certified pediatrician and had been the director of the child
abuse program at Los Angeles County
USC Medical Center
for 25 years. She had reviewed the
photographs of Elijah’s injuries and determined that Elijah “had been severely
ongoingly beaten with an object†that had left marks over a long period of
time.
The
injuries were of different ages. Some
were well healed, some still had abrasions, some older wounds had
scarring. The older loop marks ranged in
age from two to four weeks, to a couple of months, up to a year. The scarring was at least a year old. Reviewing all of the injuries together, Dr.
Heger opined that this was “textbook†“child abuse.â€
B.
Defense
Marzell
Cole was friendly with defendant and Branch.
During the months of June and July 2010, Cole and her then
one-and-a-half year old son spent a few weekends in defendant’s home. She saw no physical discipline administered
to Elijah. She never saw Goodson when
she stayed at defendant’s home during June and July.
A. Sufficiency of the Evidence
Defendant
contends the evidence is insufficient to support her conviction for corporal
injury to a child in counts 1 and 2 because there was insufficient evidence linking
the beatings of her son to the months of June and July of 2010, and because
there was insufficient evidence she intended to aid Branch in the commission of
the offenses. We are not convinced.
When the
sufficiency of the evidence is challenged, we review the entire record in the
light most favorable to the judgment to determine if it contains substantial
evidence—i.e., evidence that is reasonable, credible and of solid value—from
which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Solomon (2010) 49 Cal.4th 792, 811.) This standard of review is applied regardless
of whether the People rely primarily on direct or
existence of any fact the jury reasonably could have deduced from the
evidence. (People v. Vines (2011) 51 Cal.4th 830, 869.) Thus, we must accept logical inferences that
the jury could have drawn even if we would have reached a contrary
conclusion. (Solomon, supra, at pp.
811-812.)
While the
evidence is overwhelming that Elijah was continuously beaten over a long period
of time, defendant attempts to distance herself from the beatings and the abuse
committed by Branch while the two were living together. Dr. Heger called it a “textbook†example of a
“battered child.†Goodson testified that
the beatings occurred continuously every week she stayed with defendant.
1.
Aiding and Abetting
A person
who aid and abets the commission of a crime is a principal to that crime. (§ 31; CALCRIM No. 400.) In order to support a conviction as an aider and abettor, the
evidence must show that the defendant encouraged, aided or abetted the
commission of a crime with the intent to commit, facilitate or encourage the
commission of the crime. (
1114, 1123; People v. Beeman (1984)
35 Cal.3d 547, 560.) Defendant
contends that there was no evidence she had the intent to aid and abet Branch
in his abuse of Elijah.
Parents
have a duty to exercise reasonable care in the supervision and protection of
their minor children. (
Cal.App.4th 733, 746.) “‘By failing to
act, the parent may be deemed to have implicitly sanctioned the criminal
behavior and, therefore, may be held accountable for the abusive
conduct.’†(People v. Rolon (2008) 160 Cal.App.4th 1206, 1217, quoting
684.) Defendant’s inaction when faced
with clear evidence of prolonged abuse raises a reasonable inference that she
sanctioned Branch’s criminal behavior.
Thus, there is substantial evidence to support her convictions.
Unanimity Instruction
At the
beginning and at the conclusion of the trial, the court informed the jury that
defendant and Branch had been charged with corporal injury to a child in count
1 during the month of June 2010, and in count 2 during the month of July
2010. The court gave the unanimity
instruction pursuant to CALCRIM No. 3500 on its own motion.
this instruction.
Defendant
suggests that because a unanimity instruction was given, the People elected to
prove a single act in each month and were responsible for proving defendant
committed “one act†so that the jury could unanimously agree that one act
occurred. The People submit that the
unanimity instruction was given in error and they never approved or requested
it, so they were not required to prove “one act†in each of the two months.
The verdict
form asked the jury to find defendant “Guilty†or “Not Guilty†of violating
section 273d, subdivision (a), “as charged in Count[s 1 and 2] of the
Information.†The information charged a
course of conduct. The forms
specifically referred to the information, and the People argue that they did
not require the jury to find a specific act on a particular day. If the People’s argument is correct, the jury
only needed to find that defendant had knowledge of the continuous course of
beatings being inflicted on her son by Branch.
The course of conduct could easily have been inferred from Elijah’s
physical condition over an extended period of time, defendant’s opportunities
to view the evidence of the beatings and her physical presence during numerous
beatings.
Defendant
relies on People v. Thompson (1984)
160 Cal.App.3d 220 for the proposition that defendant could not receive two
separate convictions for a single continuous course of conduct in the instant
case. In Thompson, the defendant was found guilty of violation of section
273.5, corporal injury to a spouse resulting in a traumatic condition. The information alleged the offense occurred
during the period January 1 to January 21, 1981. (Id.
at p. 222.) The defendant contended that
because “the prosecutor was not required to elect which act he was relying on
to prove the crime charged, [the defendant] was denied his right to be informed
of the particular act he was accused of committing,†and the trial court erred
in its failure to instruct the jury that they must agree unanimously on which
act they based their guilty verdict. (
election was required under the continuous course of conduct exception. (Id.
at p. 224.) While it is true that the
instant case involved two counts and Thompson
involved a single count, Thompson
also states that “[d]ue process requires only that [the] defendants be given
adequate notice of the charges against them so that they may have a reasonable
opportunity to prepare their defense and not be taken by surprise at
trial. [Citation.]†(Id.
at p. 226.)
In the
instant case, while the trial court did give the unanimity instruction, the
information charged defendant with two violations of section 273d. “[T]he information alleged a course of
conduct in statutory terms which had occurred between two designated
dates. The issue before the jury was
whether [defendant] was guilty of the course of conduct, not whether [s]he had
committed a particular act on a particular day.
The instruction requiring jury unanimity as to particular acts was
inappropriate.†(People v. Ewing (1977) 72 Cal.App.3d 714, 717.) However, defendant had adequate notice of the
charges and a reasonable opportunity to prepare her defense, so the problems
present in the Thompson case are not
present here.
Even if
defendant is correct that the jury instruction given required the jury to
unanimously agree on the existence of a particular injury as a result of
defendant’s inaction, the evidence is sufficient to support the verdict. There was evidence of beatings during both
June and July, and there was evidence of injuries of varying ages. Thus, the evidence was sufficient to support
unanimous findings of corporal injury in both June and July.
B.
Section 1118.1 Motion
Defendant
contends that the trial court erred in not dismissing counts 1 and 2 pursuant
to section 1118.1.
title="">[5] Her contention is based on her claim of
insufficient evidence to support her convictions. We disagree for the same reasons stated
above, finding there was sufficient evidence to support the conviction.
In
page 46, the court stated as follows:
“‘“The standard applied by a trial court in ruling upon a motion for
judgment of acquittal pursuant to section 1118.1 is the same as the standard
applied by an appellate court in reviewing the sufficiency of the evidence to
support a conviction, that is, ‘whether from the evidence, including all
reasonable inferences to be drawn therefrom, there is any substantial evidence
of the existence of each element of the offense charged.’â€. . .’â€
At the
conclusion of the People’s case-in-chief, defendant made her
section 1118.1 motion. While the
court agreed that there was no evidence of a violation of section 273d,
subdivision (a), as to count 3 for the period of time in August 2010, the trial
court properly denied the section 1118.1 motion as to counts 1 and 2, as there
was sufficient evidence to support a conviction on those counts.
C.
Adoptive Admission
Defendant
contends that the trial court erred in allowing the jury to determine if
Branch’s apology to Elijah for beating him, and his admission he had gotten out
of hand, were adoptive admission of defendant.
We disagree.
Initially,
the trial court ruled that Branch’s statement could be used against him only,
not against defendant, and it would so instruct the jury. After Goodson testified that defendant was
present when Branch made the statement, the trial court changed its ruling,
stating, “Then I’m not going to issue the cautionary instruction, I’ll just
allow it to come out. Because
potentially it can be an adopted admission.
And now she becomes aware of it, and the whole theory of this case is
failure to prevent the further abuse.†Defendant later objected to an instruction on
adoptive admissions, but the trial court overruled the objection.
The
trial court instructed the jury on adoptive admissions pursuant to CALCRIM
No. 357 as follows: “If you
conclude that someone made a statement outside of court that accused a
defendant of the crime or tended to connect a defendant with the commission of
the crime and the defendant did not deny it, you must decide whether each of
the following is true: [¶] 1. The statement was made to the defendant or
made in his or her presence; [¶] 2. The defendant heard and understood the
statement; [¶] 3. The defendant would, under all the circumstances,
naturally have denied the statement if he or she thought it was not true; [¶]
AND [¶] 4. The defendant could have denied it but did not. [¶] If
you decide that all of these requirements have been met, you may conclude that
the defendant admitted the statement was true.
[¶] If you decide that any of
these requirements has not been met, you must not consider either the statement
or the defendant’s response for any purpose.â€
“Evidence of a statement
offered against a party is not made inadmissible by the hearsay rule if the
statement is one of which the party, with knowledge of the content thereof, has
by words or other conduct manifested his adoption or his belief in its
truth.†(Evid. Code, § 1221.) “In determining whether a statement is
admissible as an adoptive admission, a trial court must first decide whether
there is evidence sufficient to sustain a finding that: (a) the defendant
heard and understood the statement under circumstances that normally would call
for a response; and (b) by words or conduct, the defendant adopted the
statement as true. [Citations.]†(People
v. Davis (2005) 36 Cal.4th 510, 535.)
Defendant
contends there was nothing for her to deny, citing People v. Carter (2003) 30 Cal.4th 1166. In Carter,
the court noted “that nothing in [a third person’s] remarks referred to [the]
defendant or accused him of anything.
There being, in essence, nothing for [the] defendant to deny, a
condition of the hearsay exception for adoptive admissions did not exist, and
the trial court therefore erred in concluding [the third person’s] remarks were
admissible as adoptive admissions.†(
Here,
it would not have been unreasonable for defendant to respond to Branch’s
statement if she believed it to be untrue.
The trial court properly allowed the jury to determine if ignoring
Branch’s confession to child abuse was an admission by defendant that she was
aware of Branch’s conduct (People v.
Davis, supra, 36 Cal.4th at p.
535), i.e., if, from the evidence presented in the trial, the four requirements
for an adoptive admission were met. If
the requirements for an adoptive admission were not present, we may presume the
jury followed the instruction given and did not consider the statement as
evidence against defendant. (
662; People v. Delgado (1993) 5
Cal.4th 312, 331.)
Defendant
also claims that admission of Branch’s statement violated the
(1965) 63 Cal.2d 518, the California Supreme Court held that when the
prosecution intends to offer the extrajudicial statement of one defendant which
incriminates a codefendant, the trial court must either grant separate trials,
exclude the statement, or excise all references to the nondeclarant
defendant. (Id. at pp. 530-531.) Under
123 [88 S.Ct. 1620, 20 L.Ed.2d 476], “‘[A] defendant is deprived of his Sixth
Amendment right of confrontation when the facially incriminating [statement] of
a nontestifying codefendant is introduced at their joint trial, even if the
jury is instructed to consider the confession only against the codefendant.’†(People
v. Mitcham (1992) 1 Cal.4th 1027, 1045, quoting from Richardson v. Marsh (1987) 481 U.S. 200, 207 [107 S.Ct. 1702, 95
L.Ed.2d 176].) A defendant’s Sixth
Amendment right of confrontation is violated by the admission of a
nontestifying codefendant’s statement only if the codefendant’s statement
facially and powerfully incriminates the defendant. (Richardson,
supra, at pp. 207-208;
451, 455-456.)
Branch’s
statement did not facially and powerfully incriminate defendant, so its
admission did not violate Aranda/Bruton. Additionally, “the admission of an
out-of-court statement as the predicate for an adoptive admission does not
violate†Aranda/Bruton. (People
v. Jennings (2010) 50 Cal.4th 616, 662.)
Thus, defendant’s claim of Aranda/Bruton
violation is without merit.
D.
Attorney’s Fees
Defendant
contends that the record does not disclose that she received notice or a
hearing to determine her ability to pay the $5,000 the court ordered in
attorney’s fees. Defendant also contends
that the record does not reveal an ability to make such a payment. We agree.
1. Defendant Has Not Forfeited Her Claim
The
People do not contend that the trial court complied with the procedural
safeguards of section 987.8. They urge
us to conclude, however, that defendant’s failure to interpose an objection
below constitutes a waiver or forfeiture of her right to contest the attorney’s
fees order. We do not agree.
Implied
in the trial court’s imposition of attorney’s fees is a finding that defendant
had the ability to pay such fees.
(§ 987.8, subds. (b) & (e).)
Defendant’s assertion that the record reflects an inability on her part to
pay the attorney’s fees is a challenge to the sufficiency of the evidence
supporting the court’s implied finding.
No objection is required below to preserve such a challenge on
appeal. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537; accord,
253, 262.)
2. Applicable Law
An
assessment of attorney’s fees against a criminal defendant involves the taking
of property, triggering constitutional
concerns. Due process, therefore,
requires that the defendant be afforded notice and a hearing before such a taking
occurs. (People v. Amor (1974) 12 Cal.3d 20, 29-30; People v. Phillips (1994) 25 Cal.App.4th 62, 72.)
Section
987.8 sets forth the statutory procedure for ascertaining a criminal
defendant’s ability to repay the county for the cost of services rendered by
court-appointed counsel. Subdivision (b)
of section 987.8 provides that “[i]n any case in which a defendant is provided
legal assistance, either through the public defender or private counsel
appointed by the court, upon conclusion of the
or upon the withdrawal of the public defender or appointed private counsel, the
court may, after notice and a hearing, make a determination of the present
ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one
such additional hearing within six months of the conclusion of the criminal
proceedings. The court may, in its
discretion, order the defendant to appear before a county officer designated by
the court to make an inquiry into the ability of the defendant to pay all or a
portion of the legal assistance provided.â€
The notice
to be given the defendant must contain “(1)
A statement of the cost of the legal assistance provided to the
defendant as determined by the court.
[¶] (2) The defendant’s procedural rights under this
section. [¶] (3) The time limit within which the
defendant’s response is required.
[¶] (4) A warning that if the defendant fails to
appear before the designated officer, the officer will recommend that the court
order the defendant to pay the full cost of the legal assistance provided to
him or her.†(§ 987.8,
subd. (d).)
At the
hearing, “the defendant shall be entitled to, but shall not be limited to, all
of the following rights: [¶] (1)
The right to be heard in person.
[¶] (2) The right to present witnesses and other
documentary evidence. [¶] (3)
The right to confront and cross-examine adverse witnesses. [¶]
(4) The right to have the
evidence against him or her disclosed to him or her. [¶]
(5) The right to a written
statement of the findings of the court.â€
(§ 987.8, subd. (e).)
In the
event “the court determines that the defendant has the present ability to pay
all or a part of the cost, the court shall set the amount to be reimbursed and
order the defendant to pay the sum to the county in the manner in which the
court believes reasonable and compatible with the defendant’s financial
ability. Failure of a defendant who is
not in custody to appear after due notice is a sufficient basis for an order
directing the defendant to pay the full cost of the legal assistance determined
by the court. The order to pay all or a
part of the costs may be enforced in the manner provided for enforcement of
money judgments generally but may not be enforced by contempt.†(§ 987.8, subd. (e).)
Here, the
trial court failed to comply with the procedural safeguards of
section 987.8. In addition to the
failure of the trial court to give defendant notice of a hearing to determine
her ability to pay attorney’s fees, the record before the trial court did not
establish defendant’s “overall capability†to pay the fees, based on her
present and future “financial position.â€
(§ 987.8, subds. (e), (g)(2).)
The
testimony of the witnesses showed that, prior to her arrest, defendant was
employed, while much of the time Branch was not. There also was reference to an international
music project with Branch that Goodson and Tiffany were also involved with at
one point, but no evidence as to any income from that project. Defendant and Branch lived in an
apartment. According to the probation
officer’s report, defendant did not have insurance to cover restitution. Her driver’s license was suspended until she
paid a fine for misdemeanor driving without a license and failure to appear.
Even if
notice was given to defendant, there is nothing in the record to support the
imposition of $5,000 attorney’s fees.
Defendant contends that no remand is necessary since her inability to
pay is clear from the record. We agree.
The
judgment is modified to strike the imposition of $5,000 in attorney’s
fees. In all other respects, the
judgment is affirmed.
JACKSON,
J.
We concur:
PERLUSS,
P. J.
ZELON,
J.
name="_ftn1" title="">
otherwise stated, all further statutory references are to the Penal Code.
name="_ftn2" title="">
charged in count 3 with corporal injury to a child between August 1 and August
31, 2010. The trial court dismissed this
count pursuant to section 1118.1.
