P. v. Price

Filed 2/10/09 P. v. Price CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Bradley Eric Price of involuntary manslaughter (Pen. Code, 192, subd. (b)), and assault with force likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1)). The court sentenced defendant to a three-year prison term.

On appeal, defendant contends the trial court committed reversible error in admitting evidence of uncharged prior acts of domestic violence committed by defendant against his wife. We shall affirm.

BACKGROUND

T.S. was born on May 2, 2003, to J.Z. who was living with another man when T.S. was born, but later determined defendant was T.S.s father. Defendant was married to J.G. when he found out T.S. was his son. J.G. did not know about the baby until after she married defendant.

Defendant lived with J.G. and their two children, a son born in November 2003 and a daughter born in May 2005. T.S. started visiting defendants apartment when he was about 18 months old.

T.S.s last overnight visit with defendant started on September 2, 2005. While T.S. was visiting, defendant called J.Z. and arranged to extend the visit for two days as he had a family gathering. T.S. was in good health when J.Z. dropped him off with defendant, but when she dropped off new diapers for T.S. on September 13, J.Z. noticed a bruise on his face, which defendant and J.G. explained was caused by J.G.s son hitting T.S. in the face with a toy train.

According to J.G., early in the morning of September 14, 2005, she left the apartment to be with a friend who was having a baby that day. The baby was born around 9:15 a.m. J.G. telephoned defendant and he told J.G. to hurry home. During this conversation, J.G. could hear children screaming the in the background.

She returned at around 10:30 a.m. to find the apartment in chaos. J.G.s children were in their diapers, T.S. had vomited all over his clothes, and it looked as if the children had run amok. J.G. cleaned up T.S., dressed her children, and they all took a nap.

T.S. barely ate his food and complained that his head hurt, so J.G. gave him some Tylenol. Later in the afternoon, T.S. acted very tired and in a bad mood. He got in trouble so J.G. gave him time-out on the couch.

Defendant then grabbed T.S. by the arm and took him to the bedroom. When T.S. started to cry defendant, who was upset, told him not to be a wimp. Defendant was alone in the room with T.S. for about 10 minutes before leaving the boy there. As defendant shut the bedroom door, he told J.G. to sit down and he would attend to the matter.

After defendant left the bedroom, J.G. saw T.S. crying as he stood in the playpen. J.G. then told defendant to move T.S. from the playpen onto the floor, so T.S. would realize he was no longer in trouble.

Defendant, who was attending technical school at night and working during the day, then called his school to set up an appointment, got dressed, and left. Once defendant left the apartment, J.G. checked on T.S., who was crying while sitting on the floor by the playpen. His eyes were heavy, as if he was going to pass out, so J.G. picked up T.S. and put him to bed.

After taking care of her children, J.G. checked on T.S. because he had stopped crying. T.S. did not respond to his name, a small amount of blood was coming out of his mouth, and he just had this look on his face like nothing was going on.

J.G. was shocked and did not know what to do. According to J.G., she first called defendants school and left a message for him to call her. Then three friends of defendant showed up at around 4:00 p.m. to buy marijuana from him. She let them in and asked for their help. After she took them to the bedroom, J.G. called 911 while defendants friends tried to help. After making several unsuccessful attempts to reach 911, the dispatcher called J.G. back and emergency personnel soon arrived.

According to J.G., defendant showed up before the firefighters, and was upset about his son but not crying. T.S. never regained consciousness before the paramedics arrived.

A paramedic observed that T.S.s airway was not opened. His mouth was clenched down and full of vomit. An agitated defendant kept telling the paramedic that T.S. had been struck in the head with a toy train. When defendant became hostile the paramedics would not allow him to accompany T.S. in the ambulance.

The 35-inch, 34-pound T.S. had numerous bruises over his body, including his head, face, and scalp. He had a cluster of four bruises on his upper left arm consistent with a grab mark. According to a treating physician, T.S. suffered a devastating head injury which included a skull fracture and subdural hematoma. His brain injury was associated with a high velocity impact rather than a simple fall and took place during a single traumatic event.

T.S. died of blunt force head injuries. He could have been conscious for a time after the head injury. Symptoms of his injuries would include irritability followed by increasing lethargy, sleepiness, possible vomiting, loss of consciousness, alterations in breathing, or even a loss of breath.

Pursuant to Evidence Code section 1109, the prosecution made an in limine motion to admit evidence of prior uncharged domestic violence by defendant against J.G. The court did not initially rule on the motion, expressing some concern over whether evidence of abuse against a spouse was admissible under section 1109 in a child abuse case.

During cross-examination, when asked about defendants demeanor, J.Z. admitted defendant was nice and she had not seen him lose his temper. Defense counsel asked J.Z. if defendant did anything out of the normal when he was upset, to which she replied, No. Over defendants Evidence Code section 352 objection, the trial court subsequently admitted evidence of defendants domestic violence against J.G. in light of J.Z.s testimony regarding defendants temperament.

J.G. testified that defendant could not control his rage and turmoil, usually after drinking, and was at times physically violent with her. He once choked her after fighting with some friends, and another time slammed her against a wall before passing out. He had also threatened to kill her, and once punched her in the face.

J.G.s mother testified she once saw defendant punch a hole in the wall, and saw him shake J.G. in another incident. She once saw a black eye and bite mark on J.G. who said it happened when she fell on the kitchen floor. When pressed on the matter, J.G. was reluctant to talk about it.

According to J.G., defendant forced her to stay in the house and take care of the children, locking the door so she could not leave when he was away. J.G. sold marijuana to defendants customers when he was not there, because she was afraid defendant would become angry if she would not. She was unwilling to call 911 before calling defendant because she feared what he would do if the authorities arrived in response to her call. Her fear of defendant once led J.G. to tell the police she thought defendant loved T.S. too much to hurt him.

J.G. also testified to defendants roughness towards T.S. He would push T.S. down, induce him to get up, and push him down again. This made T.S. cry, causing defendant to call him a wimp.

A CPS social worker once asked J.G. about her black eye. Because she was afraid of defendant, J.G. lied and said it happened during a fall.

According to J.G., T.S. preferred to be with defendant. Witnesses testified that J.G. did not want to deal with T.S. and treated him like a stepchild.

Defendants friends came over to purchase marijuana from him on the morning of September 14. While they were waiting for defendant to get some marijuana, they observed T.S. crying after being told to stop playing with frosting on the coffee table. T.S. would not stop after J.G. tried to pull him back, so she told defendant to deal with his son. Defendant grabbed him by the hand and took him to the bedroom, where they heard yelling and muffled sounds, which induced them to leave.

The friends returned later in the afternoon to find a frantic J.G. answering the door. They went to the room and saw T.S., who was unable to breathe, bleeding out of his mouth, and with a big bruise on his face. T.S. started gasping for air after they touched him. J.G. at first did not call 911 because she did not want to get the police involved, but eventually called 911 after calling defendant.

Brandon McClain testified about defendants short temper. Defendant once slammed his own head against a wall after losing a video game and another time threw a chair through a window at his old apartment. McClain once saw defendant come home angry after his wages had been garnished for child support and the next day observed J.G. with a black eye or bruised cheek.

Defendant was interviewed by law enforcement officers and said the injuries to T.S. were caused [when defendant threw] him in the playpen and T.S. hit his head on the upper corner of the playpen.

Officers found a crack in one of the fiberboard panels at the bottom of the playpen along with a crack in the piece of plastic on one of the corners of the playpen. In July 2005, defendant had started attending a 12-step anger management group therapy class.

DISCUSSION

Defendant contends the evidence of his domestic violence against J.G. was inadmissible as Evidence Code section 1109 does not allow for the admission of domestic violence against a spouse in a child abuse prosecution, and the testimony that defendant was a nice person who did not lose his temper did not open the door for this evidence. We disagree

In general, evidence of a defendants character or a trait of his character is not admissible to prove conduct on a specific occasion. (Evid. Code, 1101, subd. (a); cf. Evid. Code, 1102.) However, when a defendant adduces testimony of his good character at trial, the prosecution may impeach the testimony or rebut it with the prosecutions own character witnesses. (Evid. Code, 1102, subd. (b); People v. Clair (1992) 2 Cal.4th 629, 683; People v. Hempstead (1983) 148 Cal.App.3d 949, 954.) If allowing the impeachment or rebuttal of good character testimony would create a substantial danger of undue prejudice to the defendant, the trial judge has the discretion to preclude them under Evidence Code section 352. (People v. Hempstead, supra, at p. 954.)

Defendant argues the character evidence adduced by him was generalized and tepid which did not warrant rebuttal with a deluge of evidence that Mr. Price was an angry, out-of-control, controlling wife-beater. He claims the rebuttal evidence should have been limited to character evidence concerning defendant losing temper with children, and the evidence of his history of domestic violence against J.G. was an inadmissible different category of character evidence.

J.Z. testified on cross-examination that defendant was nice and did not lose his temper. Defendant thus placed his character in issue and opened the door to the prosecution's evidence tending to rebut that specific asserted aspect of his character. (People v. Rodriguez (1986) 42 Cal.3d 730, 791-792, & fn. 24; see People v. Burton (1989) 48 Cal.3d 843, 860.) Generally, the scope of bad character evidence offered in rebuttal must relate directly to the particular character trait concerning which the defendant has presented evidence. (People v. Rodriguez, supra, at p. 792, fn. 24; People v. Raley (1992) 2 Cal.4th 870, 912.)

Although rebuttal character evidence must relate directly to the character trait it is intended to rebut, it need not track the character evidence with surgical precision, particularly when rebutting general character traits. For example, in People v. Mitcham (1992) 1 Cal.4th 1027 (Mitcham), at the penalty phase of his capital murder trial defendant presented numerous witnesses who testified to his good character and reputation in elementary and junior high school. One witness testified defendant was a good student, kind to others, and respectful of his elders, and had been a class speaker at his graduation. Another witness testified defendant was an excellent student, highly regarded by others, and popular, and got along well with everyone; on cross-examination, this witness responded affirmatively when questioned whether defendant was honest, kind, and nonviolent. (Id. at p. 1072.)

The Supreme Court held that, [t]he rebuttal evidence of defendant's acts of delinquency, including incidents of violence, directly related to this general picture of a well-behaved youth presented by the defense. (Mitcham, supra, 1 Cal.4th at p. 1072.) While rebuttal evidence must be limited to the specific character trait it is intended to rebut, [h]ere defendant's good character evidence was not limited to any singular incident, personality trait, or aspect of his background. The defense evidence painted an overall picture of an honest, intelligent, well-behaved, and sociable person incompatible with a violent or antisocial character. The breadth and generality of this good character evidence warranted rebuttal evidence of the scope offered. (Ibid.)

Although defendant proffered only a single statement from one witness, that testimony was nonetheless a broad and general statement asserting defendants good character and even temper. While the prosecution offered much more and much stronger rebuttal testimony than the comparatively tepid character evidence proffered by defendant, this does not render the evidence inadmissible. For example, testimony that the defendant was a devout Buddhist, and truth or honesty are characteristics of devout Buddhists, could be met by evidence of defendants prior convictions from Thailand which involved dishonesty. (People v. Siripongs (1988) 45 Cal.3d 548, 576-578.) Defendant does not contend on appeal that the evidence should have been excluded pursuant to Evidence Code section 352. Therefore, the relative strength of the rebuttal evidence does not preclude its admission.

Contrary to defendants assertion, rebuttal evidence does not have to be narrowly tailored to the charged offense. As in Mitcham, supra, 1 Cal.4th 1027, the prosecution may address broad and general character evidence with evidence rebutting the asserted character traits. This rebuttal evidence does not have to directly relate to the charged offenses so long as it is directly related to the character evidence it is intended to rebut. Since defendants character evidence asserted his generally good temper rather than the more specific trait of having a good temper around children, the rebuttal evidence was not limited to defendants violence towards children.

The testimony regarding defendants domestic violence against J.G., his participation in an anger management class, and testimony from J.G.s mother and McClain, defendants friend, regarding defendants violent outbursts rebutted the assertion that defendant was even tempered. The other character evidence offered in rebuttal -- testimony from J.G. regarding defendants controlling nature and making her sell marijuana for him -- rebutted J.G.s characterization of defendant as a nice person, and by demonstrating J.Z.s fear of defendant, tended to show his bad temper. We find this evidence was sufficiently related to the character traits introduced by defendant to be admissible as rebuttal evidence, and the courts decision to admit was not an abuse of discretion.

Since the domestic violence evidence was properly admitted under section 1102, subdivision (b), and was not admitted for the purpose of proving defendants propensity to commit acts of violence against the child,^[1]we shall not address defendants contentions regarding Evidence Code section 1109.

DISPOSITION

The judgment is affirmed.

MORRISON , J.*

We concur:

SCOTLAND , P. J.

DAVIS , J.

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^[1] Having ruled it was admissible to rebut the character evidence proffered by defendant, the court never determined whether the domestic violence testimony was admissible under Evidence Code section 1109, and withdrew the relevant jury instruction on uncharged domestic violence as propensity evidence, CALCRIM No. 852.

* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.