Opinion
F070764
06-28-2017
THE PEOPLE, Plaintiff and Respondent, v. STACEY LEIGH NIKKEL, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MF011254A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Stacey Leigh Nikkel challenges her conviction for felony child abuse/child endangerment. She argues her conviction should be reversed because (1) the trial court abused its discretion in admitting the testimony of a Child Protective Services (CPS) social worker; (2) the trial court should sua sponte have given a limiting instruction as to the testimony of this social worker; and (3) the prosecutor committed misconduct by orchestrating an in-court identification of the child victim. Nikkel further argues that the cumulative effect of these errors resulted in a violation of due process, also requiring reversal of her conviction. We reject each of these contentions and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
An information filed in the Kern County Superior Court charged Nikkel with felony child abuse/child endangerment with regard to her two-year-old daughter E. and being under the influence of a controlled substance, a misdemeanor. (Pen. Code, § 273a, subd. (a); Health and Saf. Code, § 11550, subd. (a)). The case proceeded to jury trial. After the close of all evidence, the misdemeanor charge was dismissed on motion of the People. The jury found Nikkel guilty on the remaining charge, felony child abuse/child endangerment. The trial court sentenced Nikkel to the low term of two years in state prison. Nikkel was 34 years old at the time of the offense.
Subsequent statutory references are to the Penal Code unless specified otherwise.
At trial, a CPS social worker testified that E. was returned to Nikkel's custody by the Kern County Department of Human Services on June 11, 2014, after spending about a year in foster care. The CPS social worker identified E. when the child was momentarily brought into the courtroom by the prosecutor. E. had been removed from Nikkel's home because the child's father, Garrett M., physically abused Nikkel, raising concerns that Nikkel would be unable "to protect the child from domestic violence." When Nikkel regained custody, she was living in an apartment on Cherry Lane in Tehachapi. The incident underlying the instant felony child abuse/child endangerment conviction occurred shortly after Nikkel regained custody, on the night of June 14, 2014, extending overnight into the morning of June 15, 2014.
That day, June 14, 2014, Nikkel, her friend Mike Isbell, and E. attended a birthday party, starting around 2 p.m., for Nikkel's niece (her brother's daughter), who was turning one year old. The party was at the house of Cassandra Pearson, the mother of Nikkel's niece. Pearson testified that Nikkel appeared to be "under the influence of something" at the party. Subsequently, Nikkel and Isbell returned to Nikkel's apartment on Cherry Lane, while E. stayed behind at the party. Nikkel's brother brought E. home to Nikkel later that afternoon, around 5:00 p.m. or 5:30 p.m. Isbell left Nikkel's apartment shortly thereafter, at about 6:30 p.m. When Isbell left, Nikkel and E. were the only ones home. Nikkel's roommate, Jessica White, had been gone most of the day.
Later that night, at about 11:15 p.m., Nikkel's next-door neighbor, Samantha Hanson, heard some dogs barking. The dogs were guard dogs belonging to a neighbor who lived across an open field near Hanson's apartment complex. A short time later, Hanson heard a crash outside her back door; she later discovered that a woodpile by the back door had been knocked over, into the barbecue. Soon Hanson's dogs were barking loudly at the front door. Hanson testified: "[W]hen I opened the front door, there was [Nikkel] standing there in a tank top, a pair of shorts with no footwear, and she ... had stickers [or foxtails] in her hair, like she had fallen in the grass." Nikkel was not wearing her glasses, which she usually wore, nor did she have her purse with her. Hanson further testified: "I asked her why she was here. And she said, 'Can I stay the night? I'm scared. Garrett is back.'" Nikkel also told Hanson that "[E.] was at her aunt's house."
Hanson testified that she thought Nikkel "was tired and a bit scared." Hanson explained: "She seemed to know why she was at my house and exactly what she wanted from me, which was to stay the night." Aware that "Garrett was [Nikkel's] abusive boyfriend," Hanson "was concerned for her." So Hanson "let [Nikkel] lay down on the couch," "covered her with a blanket," and "after about ten minutes to make sure she was okay and asleep," called "the Kern County Sheriff's Department to ask for a patrol to see if Garrett was lurking around." When the deputies arrived, they asked to speak to Nikkel. Hanson testified: "[Nikkel] told them essentially the same thing she told me except for one thing. She said that Garrett had not been around, that she had not seen him in a long time, and everything was fine, but that [E.] was with her aunt." Nikkel did not request any type of assistance from the deputies.
The deputies who responded to Hanson's 911 call were Deputies Juarez and Manriquez. Deputy Juarez testified that Nikkel told them "that she left the Don Juan's restaurant" before coming to Hanson's apartment. Juarez described Nikkel's appearance that night: "Overall appearance, she looked like she had been drinking, very intoxicated. While speaking with her, her speech was very slurred, red, watery eyes, and you could smell the alcohol odor coming from her person." He further testified Nikkel had a "very unbalanced, stagger step." He concluded, based on his training, that she was under the influence of alcohol.
Hanson testified that one of the deputies had confronted Nikkel, stating: "'I can smell the alcohol coming off of you.'" Nikkel replied that she had drunk "[o]nly a little bit" of alcohol. The deputies left around 12:15 a.m., saying they would patrol the area for a while to see if "Garrett ... was ... 'skulking around.'" Nikkel and Hanson then went to bed, Nikkel on the couch and Hanson in her bedroom upstairs.
When Hanson woke up the next morning, at about 5:30 a.m. or 5:45 a.m., she went downstairs to check on Nikkel. She asked Nikkel whether everything was alright. Nikkel, who was "already sitting up holding her head," responded, "'No. I messed up.'" Hanson explained that Nikkel appeared distressed and was repeating, "I messed up. I F'd up. I messed up. I need to go home." So Hanson walked her out the door and watched her walk up to her apartment. Hanson also testified that if Nikkel had left Hanson's apartment at some point during the night, Hanson would not have known.
Jessica White, Nikkel's roommate, testified that on June 14, 2014, she had been at a friend's house for most of the day. When she returned home about 12:30 a.m. that night, she noticed "two small Fireball alcohol containers and two tall cans of Budweiser Clamatos on the kitchen counter." None of the alcohol was there when White had left the apartment earlier in the day. The containers stood out to White because Nikkel had told her that Nikkel was not allowed to drink alcohol under the conditions imposed when E. was returned to Nikkel's custody. White testified that White herself did not drink and "never had any type of alcohol in the house." One of the Fireball whiskey bottles was empty, the other was about one-third empty; the Budweiser cans were open. White testified that the door of Nikkel's room was cracked. The room was dark. White saw Nikkel in bed, covered with a blanket, but did not see E. White did not have any interaction with Nikkel that night, and went to bed herself. She would not have known if Nikkel left the apartment during the night.
Luanne Arden found E. in a field on Cherry Lane in Tehachapi, around 9:00 a.m. on June 15, 2014. Arden drove up to the field with Glenna Whitman, who had spotted a stroller and a child in the field a little earlier. The stroller was about 20 to 25 feet from the roadway, so Arden got out of their truck to investigate. Arden testified: "As I walked up the stroller was tipped upside down, where [the child] was sitting on the ground. Like where the handle-like if you took the stroller and you tipped it, so where her back would be on the seat, she was actually sitting in the dirt, in the stickers." At this point in Arden's testimony, the parties stipulated that the child in the field was E.
The prosecutor had initially sought to bring E. into the courtroom so Arden could identify her as the child she found in the field. That became unnecessary when the defense agreed to stipulate that the child in the field was E.
Arden clarified that E. was not strapped into the stroller or trapped upside down; rather she was "sitting actually on the ground in the dirt" next to the stroller. Arden testified: "She had obviously been crying for quite a while. Her little face was red and swollen like she had been crying, and she had, like, tear-stained dirt down her face from crying, and she was just sitting there kind of looking at me when I got out." Arden continued: "I didn't know if something had happened, if she had been traumatized. I mean, I didn't know what we were walking into. All I know is I saw her sitting there and [she was] scared and had been crying."
Arden explained: "I walked to [E.] and I kind of kneeled down to her and I asked her if it was okay if I picked her up. And she told me yes. And so I picked her up, and when I did she kind of just wrapped her arms around my neck and her legs around me and just kind of buried her head in my neck." Arden also noticed that "there was a purse in the bottom of the stroller, like in the pouch part. [¶] And then a little further out from the stroller there was a pair of black flip-flops and a pair of, looked like, prescription glasses, black framed glasses. And then there was a water bottle that had ... like a [liquid of a] pinkish color inside the water bottle." E. did not have any socks or shoes on, and had wet herself.
E. pointed further into the field she was sitting in and told Arden that her mother went in the direction she was pointing. She said that a "mean man" was with her mother. She said her mother's name was "Stacey." The child had a small blanket and a pillow with her; the pillow had her name and birthdate on it. Arden was acquainted with Nikkel and figured out that E. was Nikkel's daughter.
Arden testified: "So I put [E.] in the back seat of Glenna's truck and I climbed in the back with her. And she asked me for a car seat, and I told her I didn't have one for her. And she said okay. [¶] And then she asked me where her mom was, and I told her I didn't know. And then she asked for her grandma, and I told her I didn't know where she was either. So I went ahead and buckled her in and then we went to drive over to the police station." On the way, Arden made some phone calls to people who knew Nikkel. As a result, E.'s aunt, Heather Cleveland, was contacted and arrived at the police station to care for E. Cleveland brought E. a snack and changed her clothes, which were wet, dirty, and "full of stickers from the ground." Everyone then went back to the field, accompanied by law enforcement officers, who began an investigation.
At 10:00 a.m., Kern County Sheriff's Deputy Ana Fernandez conducted a drug evaluation on Nikkel. Nikkel told Fernandez that she did not remember how long she had slept the night before, she had been drinking water and juice, and had taken Klonopin and Celexia. Nikkel provided a urine sample. Nikkel had scratches and bruises on her legs and right arm, as well as a scratch on her face. She also told Fernandez she was not sick or injured.
Based on an analysis of Nikkel's urine sample, her blood alcohol concentration was calculated to be 0.08. The sample also tested positive for the presence of the prescription drugs Clonazepam (Klonopin) and Soma. Both drugs are central nervous system depressants and, when consumed in conjunction with alcohol, greatly intensify the effects of alcohol. Persons prescribed drugs that are central nervous system depressants are generally warned not to mix them with alcohol.
E.'s father, Garrett, aged 31 years, testified that he and Nikkel had an on and off dating relationship for the last six years. He acknowledged their relationship was volatile, that he got belligerent when drunk, and had been violent with Nikkel in the past. Garrett testified that he was at his father's house on June 14, 2014, which was "quite a distance" from Nikkel's apartment; Garrett testified he stayed home all night. Garrett denied seeing Nikkel or E. at any time on June 14, 2014, denied calling Nikkel or going to her apartment that day, and denied leaving E. in the field. Garrett's mother testified she was at the house with Garrett on June 14, 2014 (his father was away). She testified Garrett did not leave the house at any time. The keys to the family's two vehicles were in her purse in her bedroom; Garrett's father had the other set of keys.
A Tehachapi Mountain Search and Rescue training lieutenant testified that a small child left outside overnight in the area where E. was found faced potential dangers such as hypothermia, dehydration, an attack by wild animals (coyotes, raccoons, rats, bobcats, snakes, skunks), or being trampled by cattle and horses from nearby properties. The lowest temperature recorded on June 15, 2014, was 55.4 degrees Fahrenheit at 3:55 a.m.
DISCUSSION
I. Testimony of CPS Social Worker
Nikkel challenges admission of the testimony of Eashell Hill, a social worker from CPS, who testified that E. was released, on June 11, 2014, to the care and custody of Nikkel under certain conditions, including the condition that Nikkel refrain from drinking alcohol. Nikkel contends the social worker's testimony constituted impermissible character evidence under Evidence Code section 1101, subdivision (a) and, in addition, was inadmissible as unduly prejudicial evidence under Evidence Code section 352. She argues the erroneous admission of this testimony requires reversal of her conviction. Assuming Nikkel's contentions were properly preserved for review, they are unavailing.
Defense counsel did not specifically object to Eashell Hill's testimony on grounds that it constituted inadmissible character evidence under Evidence Code section 1101, subdivision (a). However, counsel did file an in limine motion seeking to "foreclose the District Attorney from using witnesses to raise the issue of character, pursuant to [E]vidence [C]ode sections 352 ... and 1101." Further, at particular points during Hill's testimony, defense counsel objected on grounds of hearsay and Evidence Code section 352.
A. Background
Eashell Hill, the CPS social worker, testified that she was E.'s case manager in June 2014. Hill explained that E. was in the custody of a foster parent until June 11, 2014. On June 11, 2014, the juvenile court granted custody of E. to Nikkel (E.'s biological mother) but not to E.'s biological father (Garrett). Under the court-ordered case plan granting custody of E. to Nikkel, Nikkel was required to abstain from the use of drugs and alcohol and to take care of the child. Hill personally dropped E. off with Nikkel on June 11, 2014. Nikkel retained care and custody of E. on June 14, 2011. The prosecutor ended her direct examination of Hill after this limited testimony was received.
Defense counsel then cross-examined Hill. On cross-examination, Hill testified that, in contrast to Nikkel, Garrett was not granted custody of E. because Garrett "had not completed any portion of his case plan." Hill explained that Nikkel, for her part, had "completed her classes," whereby the juvenile court granted custody of E. solely to Nikkel. Defense counsel elicited further testimony from Hill to the effect that Garrett had been violent towards Nikkel in the past.
On re-direct examination, Hill testified that E. was earlier removed from the custody of both parents because Garrett was abusive and there was concern as to "the mother's inability to protect the child from domestic violence."
B. Analysis
We review a trial court's rulings on the admissibility of evidence for abuse of discretion. (People v. Harris (2005) 37 Cal.4th 310, 337; People v. Hamilton (2009) 45 Cal.4th 863, 930.)
Nikkel was charged with felony child abuse/child endangerment under section 273a, subdivision (a). Section 273a, subdivision (a) "is an omnibus statute" that prohibits anyone, under circumstances or conditions likely to produce great bodily harm or death, from (1) willfully causing or permitting any child to suffer unjustifiable physical pain or mental suffering; or (2) inflicting unjustifiable physical pain or mental suffering on a child; or (3) having the care or custody of any child, willfully causing or permitting the person or health of that child to be injured; or (4) willfully causing or permitting that child to be placed in a situation where his or her person or health is endangered. (§ 273a, subd. (a); People v. Valdez (2002) 27 Cal.4th 778, 783-785; People v. Sargent (1999) 19 Cal.4th 1206, 1215-1217; In re L.K. (2011) 199 Cal.App.4th 1438, 1444-1445.) Although the second category of conduct prohibited by section 273a, subdivision (a) (inflicting unjustifiable physical pain or mental suffering on a child) is a general intent crime, the mens rea applicable to the other three categories of conduct encompassed by the statute is criminal negligence. (In re L.K., supra, 199 Cal.App.4th at p. 1445.)
The prosecutor's theory in the instant case was that Nikkel was guilty of (1) willfully causing or permitting E. to suffer unjustifiable physical pain or mental suffering, and/or (2) having care of custody of E., willfully causing or permitting E. to be placed in a situation where her person or health was endangered. The mens rea applicable to both these categories of conduct is criminal negligence. Accordingly, the jury was instructed pursuant to CALCRIM No. 821:
"The defendant is charged in count 1 with child abuse[/child endangerment] likely to produce great bodily harm or death, in violation of Penal Code section 273a(a).The jury was further instructed as to the definition of criminal negligence:
"To prove that the defendant is guilty of this crime, the People must prove that:
"One, the defendant willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering or the defendant, while having care or custody of the child, willfully caused or permitted the child to be placed in a situation where the child's person or health was endangered;
"And two, the defendant caused or permitted the child to suffer or be injured or be endangered under circumstances or conditions likely to produce great bodily harm or death;
"And, third, the defendant was criminally negligent when she caused or permitted the child to suffer or be endangered." (Italics added)
"Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. [¶] A person acts with criminal negligence when:
"One, he or she acts in a reckless way that is a gross departure from the way an ordinarily careful person would act in the same situation;
"Two, the person's acts amount to disregard for human life or indifference to the consequences of his or her acts;
"And, third, a reasonable person would have known that acting in that way would naturally and probably result in harm to others." (Italics added.)
Nikkel argues the CPS social worker's testimony should have been categorically excluded under Evidence Code section 1101, subdivision (a), which prohibits the admission of character evidence if offered to prove conduct in conformity with a particular character trait (as reflected in, e.g., reputation or specific instances of conduct). This argument has no merit.
Evidence Code section 1101, subdivision (a) provides, in pertinent part: "[E]vidence of a person's 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."
Based on the applicable charge and corresponding jury instructions, the prosecution was required to prove, as part of the elements of the offense, that Nikkel had care and custody of E. and that Nikkel had acted with criminal negligence. The social worker's testimony was offered for purposes of proving these elements, which remained in dispute; it was not offered as propensity evidence. The testimony was thus properly admitted under Evidence Code section 1101, subdivision (b), and was outside the scope of Evidence Code section 1101, subdivision (a), which precludes the admission of propensity evidence. (See People v. Bryant (2014) 60 Cal.4th 335, 406-407 [for purposes of admissibility under Evid. Code, § 1101, subd. (b) a defendant's not guilty plea places at issue all elements of the offense]; see also People v. Catlin (2001) 26 Cal.4th 81, 146 [evidence of other conduct is admissible under Evid. Code, § 1101, subd. (b) when it proves or disproves a material fact]; People v. Montalvo (1971) 4 Cal.3d 328, 331-332 ["Although evidence of prior offenses [or other bad conduct] may not be introduced solely to prove criminal disposition or propensity[,] such evidence may properly be admitted whenever it tends logically, naturally, and by reasonable inference to establish any fact material for the People or to overcome any material matter sought to be proved by the defense."]; People v. Spector (2011) 194 Cal.App.4th 1335, 1374 [same].) Since the challenged evidence was offered to prove the elements of the offense, not to show a neglectful propensity on Nikkel's part, the instant claim fails.
Evidence Code section 1101, subdivision (b) provides, in pertinent part: "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."
More specifically, the social worker testified that (1) Nikkel had care and custody of E. from June 11, 2014, to June 14, 2014, (2) under the court order granting custody to Nikkel, Nikkel was required to abstain from drinking alcohol, and (3) Garrett, E.'s father, was prohibited, by the juvenile court, from having care or custody of E. This testimony was offered for purposes of proving that Nikkel had sole care and custody of E. when the latter was left overnight in the field, an element of the offense. This testimony also was offered to prove that Nikkel acted with criminal negligence, because it revealed that although Nikkel was prohibited by court order from drinking alcohol, she nonetheless drank a copious amount of alcohol on the night in question. In this regard, the testimony tended to show, in particular, that Nikkel's conduct was a gross departure from the way an ordinarily careful person would act if the person was in the same situation as Nikkel. An ordinarily careful person who was subject to court-ordered conditions for the protection and safety of a minor child, would not blatantly violate the terms of the court order). (See CALCRIM No. 821.)
Testimony to the effect that Garrett was prohibited from having care or custody of E. was elicited by defense counsel on cross-examination.
In closing argument, the prosecutor argued, in discussing the elements of the offense: "Care and custody of a child.... This is just how we know [Nikkel] knew she had care and custody of a child. [¶] That was proven by the testimony of Eashell Hill from CPS. And we know by her testimony that Stacey Nikkel had both care and custody of the child, [E.], as of June 11th, 2014."
Nikkel's theory of defense was that she had encountered Garrett in the field that night, forcing her to flee and leave E. with him. The defense argued Nikkel reasonably believed Garrett would take care of his own child.
For example, in closing, the prosecutor argued: "So I just wanted to point out a few of the things [Nikkel] did that makes her criminally negligent compared to an ordinarily [careful] or an ordinary, reasonable person [in the same situation]. [¶] So she mixed Klonopin, Soma, and an excessive amount of alcohol together while having care and custody of her child when she knew she wasn't supposed to be drinking alcohol at all." The prosecutor continued: "And the way we know [Nikkel] knew that she wasn't supposed to be drinking alcohol at all is we have the testimony from Eashell Hill that when she got [E.] back on June 11th, she was specifically ordered as part of that, part of regaining custody, to not consume alcohol or drugs."
Subsequently, defense counsel argued in closing, that Garrett had accosted Nikkel in the field, causing her to flee in panic. Specifically, counsel argued: "Can we assume, given the evidence and the circumstantial evidence in this case, that Stacey Nikkel was under duress, that she was responding to the attack by this man, and that she could not expect Garrett to leave that child there; that she fled in panic that field and left the child with Garrett and that she thought that this man was going to take care of his own child?" Given that the defense theory was that Nikkel could reasonably leave E. with Garrett, the CPS worker's testimony that Garrett was found unfit to have care and custody of E. served to undercut and rebut the defense theory as well as to show criminal negligence on Nikkel's part.
In sum, Nikkel's contention that the social worker's testimony in its entirety was inadmissible under Evidence Code section 1101, subdivision (a) has no merit. Evidence Code section 1101, subdivision (a) prohibits the admission of character evidence when offered to prove "[a defendant's] conduct on a specified occasion." As we have explained, the testimony described above was not offered to show Nikkel's putative propensity to neglect E. Rather, the testimony was relevant to, and was offered to prove, the elements of the offense, and was, in turn, properly admitted under Evidence Code section 1101, subdivision (b). To the extent the social worker's testimony was offered to prove the elements of the offense, it was also admissible under Evidence Code section 352, as its probative value was high and was not substantially outweighed by the potential for undue prejudice.
However, some details included in the social worker's testimony arguably were inadmissible, specifically, the social worker's testimony, elicited by the prosecution in response to the defense's cross-examination, that E. was removed from Nikkel's custody because of concerns about Nikkel's "inability to protect the child from domestic violence." Evidence of this fact had limited probative value besides showing that Nikkel was predisposed to neglecting E. It was, therefore, potentially inadmissible under both Evidence Code sections 1101, subdivision (a) and 352. We need not further analyze this issue, however, because even were we to assume that admission of the social worker's testimony on this point was error, the error was harmless under the applicable Watson standard of prejudice. (People v. Watson (1956) 46 Cal.2d 818, 816 [erroneous admission of evidence requires reversal only if it is reasonably probable that, absent the error, the result of the proceeding would have been more favorable to the defendant].)
We reject Nikkel's contention that the erroneous admission of this evidence constituted the denial of due process and a fair trial, thereby triggering the Chapman standard of prejudice. (Chapman v. California (1967) 386 U.S. 18.)
The social worker made clear that the reason E. was placed in foster care was that her father, Garrett, was abusive and the concern about Nikkel was simply that she would not be able to stand up to him. The social worker also clarified that while Garrett had done nothing to regain custody of E., Nikkel had substantially complied with her case plan so as to regain custody of E. Although the trial court may have erred in admitting evidence showing why Nikkel lost custody of E. (as opposed to evidence showing why Garrett lost custody), we conclude, in light of the record as a whole, that any error was harmless. In other words, there is no reasonable probability that absent such error, the outcome of the proceeding would have been more favorable to Nikkel. II. Limiting Instruction on Character Evidence
In arguing that the trial court's admission of Hill's testimony was error under Evidence Code section 352, Nikkel additionally claims, in passing: "The trial court's abuse of discretion in admitting Hill's testimony [under Evidence Code section 352] is further demonstrated by the fact that the information about the CPS case was confidential and statutorily protected from disclosure." However, Nikkel has forfeited any challenge to Hill's testimony on grounds of the potential confidentiality of CPS records because defense counsel did not object on this basis at trial and, consequently, the trial court's resolution of this issue cannot be discerned from the record. (People v. Hart (1999) 20 Cal.4th 546, 615 ["Because (the) defendant failed to interpose an objection [to the introduction of evidence] that set forth the specific grounds for the objection, the issue may not be raised for the first time on appeal."].) In any event, Nikkel's argument is predicated, ultimately, on Evidence Code section 352. As we have explained, this argument fails because any error in admitting evidence indicating that Nikkel was unable to protect E. from domestic violence in the home, was harmless.
Nikkel further argues the trial court was required sua sponte to give the jury a limiting instruction clarifying that it could not consider the CPS social worker's testimony to conclude that Nikkel was predisposed to commit the charged offense. Not only was the trial court not required to give such an instruction absent a request, we conclude that the trial court's failure to give such an instruction was harmless under any standard of prejudice.
"Trial courts generally have no duty to instruct on the limited admissibility of evidence in the absence of a request." (People v. Lang (1989) 49 Cal.3d 991, 1020, abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176; People v. Milner (1988) 45 Cal.3d 227, 251-252 [no sua sponte duty to instruct on limited admissibility of evidence of (a) defendant's prior conduct], disapproved on other grounds by People v. Sanchez (2016) 63 Cal.4th 665; People v. Bryant, supra, 60 Cal.4th at p. 406 [same].) Here, trial counsel did not request a limiting instruction with respect to the testimony of the CPS social worker, and as a result, the trial court's failure to instruct the jury on the limited admissibility of this evidence does not constitute error.
Nikkel's reliance on People v. Collie (1981) 30 Cal.3d 43, 64 is unavailing. Collie delineates a "narrow exception to the general rule not requiring sua sponte instruction" on the limited admissibility of other conduct evidence. (People v. Rogers (2006) 39 Cal.4th 826, 854.) Collie's "narrow exception" applies only to the "'occasional extraordinary case.'" (Rogers, supra, at. p. 854.) Under Collie's "narrow exception," a sua sponte instruction on the limited admissibility of evidence of past conduct could be warranted when past-conduct evidence "'is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.'" (Rogers, supra, at. p. 854, quoting Collie, supra, at p. 64.) None of the criteria for application of Collie's exception to the general rule are met here. Hill's testimony was a small part—not a dominant part—of the case against Nikkel. Testimony about Nikkel's activities during the relevant 24 hours, as well as the circumstances under which E. was found in the field, formed the heart of the case. Furthermore, most of Hill's testimony was relevant to and admissible for purposes of proving the elements of the offense. Finally, Hill's testimony regarding Nikkel's potential inability to shield the child from witnessing domestic violence in the home, while potentially prejudicial to Nikkel, was ultimately harmless in light of the record as a whole.
On the instant record, the trial court was not required, sua sponte, to instruct the jury on the limited admissibility of Hill's testimony. Furthermore, even were we to assume the trial court erred in failing to instruct on the limited admissibility of this evidence, the error was harmless under any standard of prejudice. III. Prosecutorial Misconduct
Eashell Hill, the CPS social worker, testified that she was E.'s case manager in June 2014. Hill testified that she had personally met E., was familiar with E., and would recognize E. if she saw her again. The prosecutor had E. step momentarily into the courtroom and asked Hill to identify her. Hill stated, "That's [E.]."
Nikkel now claims the prosecutor committed misconduct in having Hill identify E. Specifically, Nikkel contends: "[T]he prosecutor's act of bringing [] into the courtroom was a means of inviting the jury to view the case through the victim's eyes and thus arouse the passion of the jury." Assuming this claim was properly preserved for review, it has no merit.
Prosecutorial misconduct occurs when a prosecutor uses deceptive or reprehensible methods in attempting to persuade either the trial court or the jury. (People v. Riggs (2008) 44 Cal.4th 248, 298.) However, "[a] defendant's conviction will not be reversed for prosecutorial misconduct ... unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.)
Prosecutorial misconduct can violate the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with a level of unfairness that renders the resulting conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.)
Crime victims usually testify before juries, providing facts and perspectives as to what occurred to them. Here, the prosecutor told the court that E. was not competent to testify because she was too young. Since E. could not testify as a witness, the prosecutor advised the court and defense counsel in advance that she would have E. step momentarily into the courtroom during Eashell Hill's testimony, so Hill could identify her. The prosecutor explained the in-court identification would permit the jury more accurately to assess the risks E. faced upon being left overnight in the field.
Nikkel has not persuaded us that the prosecutor acted improperly in having Hill identify E. (See People v. Rogers (2009) 46 Cal.4th 1136, 1163 [approving admission of photographs of murder victims taken when they were alive, because the photographs were "neutral and unremarkable and would not have engendered an emotional reaction capable of influencing the verdict"].) Furthermore, even were we to assume the prosecutor had acted improperly, Nikkel has not shown she was sufficiently prejudiced so as to warrant reversal of her conviction. (People v. Crew, supra, 31 Cal.4th at p. 839 ["A defendant's conviction will not be reversed for prosecutorial misconduct ... unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct."].) Accordingly, Nikkel's claim of prosecutorial misconduct fails.
Nikkel makes a final claim of cumulative error. However, in light of our resolution of her individual claims, her cumulative error argument also fails.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
FRANSON, J.