People v. Bishop
| Decision Date | 30 June 2021 |
| Docket Number | F076745 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. TREVOR JIM BISHOP, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No VCF280823A Joseph A. Kalashian, Judge.
A.M Weisman and Byron C. Lichstein, under appointments by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General Michael P. Farrell, Assistant Attorney General, Daniel B Bernstein, Eric L. Christoffersen and Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Trevor Jim Bishop appeals following his conviction by jury of second degree murder (Pen. Code, § 187, subd. (a); count 1) and assault on a child under eight years old by means of force likely to produce great bodily injury and resulting in death (id., § 273ab, subd. (a); count 2). He was acquitted of first degree murder. He was sentenced to a total unstayed term of 25 years to life in prison and ordered to pay restitution, as well as various fees, fines, and assessments.
On appeal, we hold: (1) the trial court correctly admitted prior bad acts evidence in this case, and the admission of any evidence exceeding that ruling was harmless; (2) there was no improper cross-examination of appellant; (3) the prosecutor did not commit misconduct in opening or closing arguments; (4) the trial court did not improperly admit hearsay evidence; (5) the trial court did not incorrectly admit improper expert opinion through the use of the term nonaccidental; (6) the trial court did not commit reversible error when it appointed conflict counsel in this case; (7) appellant cannot demonstrate conflict counsel provided ineffective assistance of counsel; and (8) the court did not wrongly fail to consider appellant's ability to pay when imposing fines and fees. Accordingly, we affirm.
Although there are many aspects of this case, both factual and legal, that can be structured to raise emotional responses, the fundamental issue to resolve here was relatively simple. A young child was left in appellant's care. While in that care, and with no indication there was any external interference, that child suffered a substantial head injury that was equivalent to a car accident and eventually resulted in his death. Appellant first stated the injury was the result of a minor fall in the bathtub, then gave conflicting stories, before going so far as to say he may have also dropped the child when playing. As one would expect, all of appellant's stories sought to maintain an aura of innocence and imply an accidental injury. None of these stories matched up with the medical evidence. Further, numerous examples of appellant being violent in domestic settings came to light and were offered under various admissibility theories at trial. Appellant's claim of an accidental injury was thus juxtaposed against medical evidence concluding no minor fall could have caused the injury and a long history of aggression and violence toward those closest to him. The jury was asked to determine which explanation to believe and chose to believe the one consistent with the medical evidence and appellant's past history.
While the dissent belabors the extent of the contested character evidence in this case to generate sympathy for a perceived unfairness in appellant's trial, it loses the forest for the trees when justifying such a result. Specifically, the dissent fails to give proper weight to the statutory law adopted to specifically allow certain types of character evidence in domestic violence cases to prove conduct in conformity with past abuse. It then relies on a novel theory of prosecutorial waiver without acknowledging that a direct waiver claim is factually contradicted and without providing any case law for a claim of strategic waiver through focused argument. Ultimately, when the emotional aspects of the case are fairly considered and the law is correctly applied, there is little room for debate. The properly admitted evidence overwhelmingly undermined the multitude of stories appellant gave to hide his actions and the jury reasonably concluded the only logical explanation for the fatal injury and other signs of abuse was appellant's continuing pattern of domestic violence.
FACTS [1]
D.H. (Mother) and J.H. (Father) had two children, Jimmy H., who was three years old in March 2013, and Brooke H., who was one year old at that time. The couple, who lived in Fresno, was married in 2008 and separated in June 2012.
After the separation, Mother met appellant when she bought a car at a lot where he was working. At the time, she and the children lived with her parents, but they eventually moved into a house with appellant. Appellant began babysitting the children while Mother worked.
At approximately 11:48 a.m., appellant, Jimmy, and Brooke were recorded entering a store in Visalia.[2] They proceeded into the store, and appellant eventually purchased diapers and a toy.
As they were leaving, appellant and the two children ran into the children's maternal grandfather. There was a short conversation and Jimmy responded when his grandfather spoke to him. The grandfather testified that Jimmy appeared clean, like he had just taken a shower and did not appear to be in any type of distress. The grandfather did not see any markings on Jimmy and appellant did not mention that anything had happened to Jimmy.[3] Appellant and the children drove out of the store parking lot shortly after 12:08 p.m.
At approximately 1:28 p.m., appellant carried Jimmy into an urgent care facility in Visalia.[4] Jimmy was unconscious. His pupils were fixed and dilated, and he was posturing, meaning his arms and legs were stiff and rolled in; a response usually associated with a head or spinal injury. The situation was deemed life threatening and an ambulance was called to immediately transfer Jimmy from the urgent care facility to a hospital emergency room. Both were different divisions of the same hospital in Visalia.
An ambulance arrived at the urgent care facility at 1:31 p.m. Appellant provided an injury history to the paramedic. Appellant stated that Jimmy slipped and fell in the bathtub that morning around 8:30 or 9:00 a.m. but did not lose consciousness and acted normally after the fall. Jimmy had one episode of vomiting, after which appellant told him to go to his room and change his clothes. Appellant heard a thud and rushed into the room. Jimmy was lying on the floor, not responding. Appellant picked Jimmy up, got Brooke, and rushed to urgent care.
Due to possible head injury, Jimmy was placed in full circle spinal immobilization and on a backboard. The ambulance departed the urgent care facility at 1:39 p.m. and arrived at the hospital emergency room at 1:42 p.m.
At the hospital, a medical social worker spoke to appellant after security notified her about a person demanding to speak to someone about the child who had just arrived by ambulance. She stated appellant was annoyed because the doctor did not come and talk to him.
The social worker asked appellant what happened. Appellant related at 9:00 a.m. that morning, Jimmy was taking a bath. He fell and hit his head in the bathtub. Later, Jimmy started throwing up, so appellant took him to the urgent care facility. Appellant said they went to the store, and Jimmy was sick to his stomach there, so appellant took him home and told him to change his clothes and clean up. Because Jimmy still was not feeling well, appellant tried to make him feel better, so he tossed Jimmy in the air. When the social worker asked why appellant did not call 911 if he was so concerned, appellant responded that he just did not know what to do, so he took Jimmy to urgent care.
Appellant was also seen at the hospital by the children's grandparents. Mother called about the incident and told the grandfather that appellant said Jimmy slipped in the bathtub. When the grandfather saw appellant, he was told that Jimmy slipped on the tile. When the grandmother saw appellant, she was told that Jimmy fell in the bathtub.
Visalia Police Officer William Brokhoff was dispatched to the hospital around 2:00 p.m. in response to a “suspicious circumstances” call. Brokhoff took photographs of Jimmy in the emergency room. The photographs, which were shown to the jury, showed bruising to Jimmy's right cheek area just below the eye; a cut on his forehead between the eyes; bruising to his right triceps area; and bruising to his lower right abdomen, around the genital area.
Jimmy was then taken by ambulance to the regional hospital in Fresno for surgery. Visalia Police Detective Daniel Ford responded to the regional hospital around 4:00 p.m. After surgery, Ford and an evidence technician photographed Jimmy's injuries.[5] While some of the bruises on Jimmy's legs were consistent with the types of bruises Ford would expect to see on a child that age, others appeared to be inconsistent with a child's normal injuries. There was a bruise on Jimmy's right shin, just above the ankle. There were three linear bruises on his inner right thigh that all seemed to point toward the central area of his right leg. There was a bruise (a red mark with a dark mark) just above and to the right of his penis, as well as some trauma to the tip of the penis itself and a small abrasion or laceration. There was a bruise just underneath Jimmy's right eye that was swollen and very red. On Jimmy's left hand was a series of bruises and red marks, basically between the web of the thumb and the index finger. There were also a couple...
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