P. v. Santoyo

Filed 10/4/07 P. v. Santoyo CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, David M. Mintz, Judge. Affirmed.

Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

The jury found defendant Rocio Santoyo guilty of first degree murder of her son Solomon in violation of Penal Code section 187, subdivision (a),^[1]and found defendant personally used a deadly weapon in the commission of the offense ( 12022, subd. (b)(1)). She was sentenced to 26 years to life.^[2]

In this timely appeal, defendant contends the trial court abused its discretion under Evidence Code section 352 in admitting evidence of prior physical abuse upon Solomon and evidence of a Halloween decoration, and abused its discretion in denying defendants request to question a juror on whether she could be fair and impartial. Defendant further contends the abstract of judgment should be corrected to reflect the custody credits ordered by the trial court. We conclude the rulings admitting evidence of prior child abuse and denying defendants request to question the juror were well within the trial courts proper exercise of discretion. The Halloween decoration evidence was not prejudicial. Finally, as the trial court has corrected the abstract of judgment postjudgment to reflect the custody credits, the issue is moot.^[3] Accordingly, we affirm the judgment.

STATEMENT OF FACTS

Solomon was born in 1994 to defendant and defendants boyfriend, Walter Roa, when defendant was 17 years old. Defendant and Roa broke up prior to Solomons birth, and defendant raised and supported Solomon alone.

On April 22, 2003, defendant punished Solomon by hitting him with a belt repeatedly on his legs, arms, and buttocks, which caused substantial bruising, pain, and emotional trauma. Her purpose was to teach him to listen to her and change his behavior. Solomon was detained the next day from defendants custody and placed in a foster home. He subsequently was adjudged a dependent of the court. Defendant was convicted in a criminal case arising out of her conduct and placed on probation.

Roa participated in the dependency proceedings. He became romantically involved again with defendant. He told defendant he was married with two other children, but separated. He omitted to tell defendant about another child of his, who was born in September 2003.

The dependency court returned Solomon to defendants custody on August 16, 2004. Defendant believed that Roa would live with her and Solomon as a family and that Roa would support them.

However, on August 20, 2004, defendant learned that Roa had a fourth child he had not told her about. Angry and upset, she screamed at Roa and smashed things. She demanded he take his belongings and Solomon with him, but changed her mind about Solomon, and Roa left.

During the next 30 minutes, defendant blindfolded Solomon and killed him with a single knife stab five inches into his neck and chest.^[4] In red ink, she wrote on the wall above where Solomon lay dead the words, Walter [Roa], I told you so. I hate you. Now you really only have three kids. She then called Roa and told him to come to her house and pick Solomon up. She hung up before Roa could say anything.

Defendant then jumped off the roof of the house. Her foot and ankle broken, she crawled back into the house and submerged herself in a water-filled bathtub. She cut her neck, lacerated her wrist, and ingested prescription pain medication. She was found in the bathtub shortly thereafter dazed but in stable condition.

Defendant acknowledged that she was angry with Roa and hated him because he lied to her, blindfolded and killed Solomon, wrote the note on the wall for Roa to read, and told Roa to come back and pick up Solomon. Her defense was that she lacked intent to kill. She argued the crime she committed was involuntary manslaughter, not murder. She testified she did not remember killing Solomon, but she felt crushed that her dream of living happily together as a family with Roa was destroyed by Roas failure to tell her he had another child.

DISCUSSION

Evidence of Prior Child Abuse

Defendant contends the trial court abused its discretion in admitting evidence of the April 2003 incident of child abuse under Evidence Code section 1109, because the evidence was more prejudicial than probative under Evidence Code section 352. We hold the evidence was properly admitted because its probative value outweighed any prejudice.^[5]

Under Evidence Code section 1109, evidence of a defendants prior commission of child abuse is admissible to show a disposition, or propensity, to inflict child abuse and, thus, to commit the crime charged involving child abuse, if the evidence is not inadmissible pursuant to Evidence Code section 352. ( 1109; see People v. Johnson (2000) 77 Cal.App.4th 410, 416-417.) Evidence Code section 1109, subdivision (a)(1) provides in pertinent part: in a criminal action in which the defendant is accused of an offense involving domestic violence,^[[6]] evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101[, prior bad acts are inadmissible to prove a specific instance of conduct,]^[[7]] if the evidence is not inadmissible pursuant to Section 352.

Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. A trial courts exercise of discretion in admitting or excluding evidence [under Evidence Code section 352] is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

When the prosecutor proffered evidence under Evidence Code section 1109 that on April 22, 2003, mother struck Solomon numerous times with a belt to punish him for losing a sweater and failing to complete homework, causing pain and injury, defendant objected on Evidence Code section 352 grounds. After a hearing, the trial court overruled the objection. The trial court ruled that the killing of Solomon was child abuse under Evidence Code section 1109, even if defendants anger was directed at Roa rather than Solomon. The trial court found that the incident was not remote in time, because it occurred only 16 months earlier; and in any event, mother did not have custody and control of Solomon during that 16-month period. Further, the prior child abuse was not prejudicial because, as a battery, it was much less inflammatory than the current charge of murder, and the prior child abuse did not go unpunished. The trial court found all of the relevant factors going to probative value and prejudice mitigate in favor of admissibility, and the probative value of this prior infliction of child abuse to show propensity under Evidence Code section 1109 was high while the prejudicial effect is low.

The jury was instructed that if the jury found defendant committed the April 2003 child abuse, the jury may consider that evidence and weigh it together with all the other evidence received during the trial to help [the jury] determine whether the defendant committed murder or involuntary manslaughter.^[8] The jury was admonished that this evidence was not sufficient alone to find defendant guilty of murder or involuntary manslaughter; the People must prove each element of the offense beyond a reasonable doubt, and the jury should not consider this evidence for any other purpose.

The prosecutor argued to the jury, you know from this [April 2003 incident] that she was capable of committing this type of act against Solomon[.] And, in fact, she did. Defendant argued the incident did not show defendant had a propensity for violence and she probably did this. . . . What it shows is that this is a woman who can explode. She can get irrational. That she gets out of control. . . . When youre not in control, when youre not rational, you dont think clearly. You dont have the capacity to deliberate, to understand, to premeditate about what you are doing.

Defendant argues the evidence was prejudicial under Evidence Code section 352 because evidence of other crimes generally has a highly inflammatory effect on juries, encouraging them to conclude that, if the defendant did it before, she did it again. This argument begs the question, because [t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] [Citation.] (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.)

The trial court carefully weighed the incidents probative value against a potential for undue prejudice and reasonably concluded the evidence was admissible. The conclusion the prior conduct was probative to show propensity is supported by the factors cited by the trial court. The victim was the same. The evidence defendant inflicted serious physical harm and pain on Solomon was propensity evidence tending to show that defendant was capable of severely harming Solomon, as the prosecutor argued. The 16-month interval between the incidents of abuse did not as a matter of law make the prior conduct remote in time. Indeed, since Solomon was in foster care, the absence of further infliction of abuse during the 16-month period prior to the murder did not indicate a lack of propensity as much as a lack of opportunity. Furthermore, the fact defendant intentionally abused Solomon in April 2003, to teach him a lesson, also showed the killing was intentional,^[9]not accidental, refuting defendants contention that she was too overwhelmed with emotion and disappointment to know what she was doing. The conclusion that the prior conduct was not prejudicial is also supported by the factors cited by the court. The prior incident amounted to a battery, an offense much less inflammatory than the charged offense of murder. Any prejudicial impact was reduced by the fact that defendant was convicted and punished for the prior incident, eliminating the temptation to convict her simply in order to punish her for the prior conduct. (See People v. Falsetta (1999) 21 Cal.4th 903, 917.)

The trial courts conclusion that the probative value of the April 2003 incident of child abuse outweighed its prejudicial value under Evidence Code section 352 was well within the bounds of reason. Admission of the prior act into evidence under Evidence Code section 1109 was not an abuse of discretion.

Photograph of Halloween Decoration

Defendant objected that a photograph of a Halloween decoration on the front door of defendants house, containing the words Abandon all hope all ye who enter here should not be admitted into evidence because it was more prejudicial than probative. The trial court disagreed, finding the exhibit was not prejudicial and it was up to the jury to decide whether or not the exhibit reflected defendants mental state. Defendant contends the ruling was a prejudicial abuse of discretion under Evidence Code section 352. We need not decide whether or not admission of the exhibit was an abuse of discretion, as its admission was not prejudicial. We note the statement on the decoration was ambiguous and the prosecutor did not mention the Halloween decoration in his argument to the jury. The photograph did not prejudice defendant in light of defendants acknowledgment of facts which showed intent to kill, such as the facts she was angry with Roa for lying to her, blindfolded Solomon and thrust a knife five inches through his neck into his lungs, wrote the note for Roa to read to get revenge on Roa, and summoned Roa back to her house to find Solomon. There is no possibility that exclusion of the photograph of the Halloween decoration from evidence would have produced a different result in this case.

Emotional Juror

Defendant contends the trial court abused its discretion in denying her request that juror number one be questioned about whether she was too emotional to be fair and impartial. As the trial court had no reason to doubt the jurors ability to perform her duties, no questioning was required.

A defendant has a due process right to a fair and impartial jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. (Smith v. Phillips (1982) 455 U.S. 209, 216-217.) Section 1089 provides in pertinent part: If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, . . . the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box[.]

[N]ot every incident involving a jurors conduct requires or warrants further investigation. The decision whether to investigate the possibility of juror bias, incompetence, or misconductlike the ultimate decision to retain or discharge a jurorrests within the sound discretion of the trial court. [Citation.] [] As our cases make clear, a hearing is required only where the court possesses information which, if proven to be true, would constitute good cause to doubt a juror's ability to perform his duties and would justify his removal from the case. [Citation.] [Citation.] (People v. Cleveland (2001) 25 Cal.4th 466, 478.) We review the trial courts decision whether to investigate for abuse of discretion. (See People v. Davis (1995) 10 Cal.4th 463, 547-548.)

During a recess in the prosecutions case, defense counsel told the trial court that juror number one had been crying on and off for the last few days. Im not sure if the court should maybe inquire to see whether she is having an issue listening to the case or if theres going to be a problem. The trial court responded: I have been watching the jury throughout the trial as well. And those have not been my observations of juror number one. . . . [S]he has appeared emotional when there was emotional testimony. And juror number one is not the only juror to have reacted in that fashion. The trial court pointed out that the issue of the jurors having to deal with emotional testimony had been examined during the jury voir dire. Juror number one was [not] more emotional than the majority of the other jurors. My observations were not that there was some great emotional reaction. That she was not paying attention to the testimony. I think to the contrary, . . . all of the jurors have been paying very careful attention to the testimony, even the emotional testimony. The trial court asked counsel if counsel wanted the trial court to inquire of the juror, and defense counsel said she was not sure. The trial court promised to pay particular attention to juror number one, starting this afternoon.

After both sides rested and the jury instructions were finalized, defense counsel returned to the issue of juror number ones emotional reactions. Defense counsel acknowledged that the jury had been told it could be a very difficult and emotional case to listen, but argued that juror number one was more teary than the other jurors, which might make her unable to be fair and impartial.

The trial court interpreted these remarks as a request for the court to inquire individually of juror number one and denied the request for the following reasons. First of all, . . . Ive been paying fairly careful attention to the jury because of the nature of this case. Ive been watching the jurors during the more emotional aspects of the testimony for the very reason you indicated. And I dont share your . . . observations that you made with respect to juror number [one] in terms of her crying. It is unquestionably true both juror number [one] and a number of the other jurors, at what I consider appropriate points during the testimony, have . . . had tears in their eyes and maybe even wiped away a tear here or there. None was openly sobbing. There was no audible crying. It was really more a question of every now and then a juror might wipe away a tear. And the times that I observed, that was when there was particularly emotional testimony about the young child and the manner in which he was killed, and testimony by the teacher about circumstances . . . that she observed and his statements about having been hit.

All of those reactions are ones that I would have expected from this type of testimony. The witnesses have been teary eyed at points. [Defendant] has audibly been crying at some points during the testimony, considerably more so than the jurors who simply were teary eyed at different parts. Some of them were. I have not noticed that juror number [one] was any more emotional than any of the other jurors. And after you brought that to the courts attention, I specifically focused my attention on juror number [one] to see whether I could observe any difference. I did not.

I think to single out juror number [one] or any of the jurors at this point and ask them additional questions mid trial about whether they can be fair and impartial given the emotional nature of the testimony is just not a good idea. It, at this point in the trial, might suggest . . . that the court believes there is something improper about the manner in which they behave -- and I dont think there has been any impropriety. I dont think theres been any type of juror misconduct. I dont think that I saw anything other than what I would expect normal human reaction would cause. . . . I [dont] think its . . . a good idea to question juror number [one], single her out and indicate that court is concerned about her reaction. That really interferes with . . . the process of her evaluation of the evidence more than anything else.

Im also cognizant of the fact . . . that this was an issue that we thought about in advance of the trial. We anticipated during jury selection. There was no question that there would be emotional testimony and we didnt ignore that during voir dire. We addressed the issue head on, really at the request of both counsel, and appropriately so. All of the jurors were questioned with respect to the emotional impact of the trial and whether that would affect their ability to be fair and to rationally evaluate and judge the testimony in this case. And they were asked those questions after they knew all of the facts that the attorneys expected the evidence would show. We didnt keep it in the dark and say could you check your emotions and evaluate this case fairly and rationally.

I allowed mini opening statements, partially so that we could find out about the jurors attitudes about that. They knew there was a ten-year-old involved. They knew that the defendant would admit having stabbed her ten-year-old son. They knew what the emotions would be. And they were asked directly whether that would affect their ability to be fair. It seems to me that what youre asking the court to do is ask those very questions that the jurors were asked during voir dire, but to ask those questions again mid trial. And given the courts observation of juror number [one] and the other jurors, I dont, number 1, feel thats necessary. Number 2, I dont feel its appropriate. And number 3, I think the issues were fully explored during voir dire. And I accept the jurors answers. The jurors who felt they could not fairly evaluate the testimony were excused for cause. These are jurors who felt that they could, fully knowing what the testimony would be.

The trial courts decision that interrogating juror number one was not necessary or appropriate was not an abuse of discretion. The trial court was in the best position to evaluate claims such as this. Our review of the cold record certainly provides no reason to overturn the discretionary decision of the trial court. The trial courts reasoning on this issue, as with the other issues presented at trial, was clearly articulated on the record. As the record reflects, the trial court ascertained during voir dire that the emotional facts of this case would not affect the jurors ability to be fair and impartial, including juror number ones ability. The trial court specifically observed the reactions of juror number one and concluded she was not reacting with more emotion than the other jurors. She did not sob or audibly cry. At most, juror number one, like others on the jury, was teary-eyed at times during emotional portions of the evidence. It was also reasonable for the trial court to conclude that singling juror number one out for questioning would interfere with the jurors deliberative process by suggesting to the juror that the trial court was calling into question her response to the evidence. Denial of defendants request to conduct an inquiry was not an abuse of discretion.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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^[1] All further statutory references are to the Penal Code, unless indicated otherwise.

^[2] Defendant was sentenced to 25 years to life for murder, plus one year for the deadly weapon use allegation.

^[3] In a letter dated August 21, 2007, Judge David M. Mintz advised us that the abstract of judgment and the minute order of the sentencing hearing on October 3, 2006, were corrected to reflect, inter alia, a credit of 775 days for time served.

^[4] The knife cut the right jugular vein and a major artery coming off the aorta in the neck, penetrated the right chest cavity, perforated the right lung, and struck the back of the rib cage on the right side.

^[5] It follows from this conclusion that defendants due process rights were not violated. (See People v. Johnson (2000) 77 Cal.App.4th 410, 416-420 [admission of propensity evidence does not violate due process if its admission is a proper exercise of discretion under Evidence Code section 352].)

^[6] Domestic violence includes abuse perpetrated against a child of a party. (Fam. Code, 6211, subd. (e); see Evid. Code, 1109, subd. (d)(3).)

^[7] Evidence Code section 1101 provides: (a)  Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [] (b)  Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [] (c)  Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.

^[8] The trial court did not give the propensity instruction contained in Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 852, which directs that, if the jury finds the defendant committed the uncharged domestic violence, the jury may conclude from that evidence that the defendant was disposed to commit domestic violence and that the defendant was likely to commit the offense charged here. The alternative approach adopted by the trial court is described in the commentary to CALCRIM No. 852 as using more general terms to instruct the jury how they may use evidence of other domestic violence offenses, leaving particular inferences for the argument of counsel and the jurys common sense. [Citation.] (Commentary to CALCRIM No. 852.)

^[9] Murder requires malice aforethought. ( 187, subd. (a).) Malice can be express, that is, when a defendant acted with an unlawful intent to kill, or implied. ( 188; CALCRM No. 520.) A defendant acted with implied malice if, . . . she intentionally committed an act[,] the natural consequences of the act were dangerous to human life[,] at the time she acted, she knew her act was dangerous to human life[,] and she deliberately acted with conscious disregard for human life. (CALCRIM No. 520; see People v. Blakely (2000) 23 Cal.4th 82, 87.) A defendant is guilty of first degree murder if she acted willfully, deliberately, and with premeditation. ( 189; CALCRIM No. 521.)