Filed 4/17/14 P. v. Whatley CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049642

         v.                                                            (Super. Ct. No. SWF10000264)

NATHANIEL ANDERSON WHATLEY,                                            OPINION
JR.,

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Riverside County, Albert
J. Wojcik, Judge. Affirmed.
                   Marilee Marshall, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
                A jury convicted defendant Nathaniel Anderson Whatley, Jr., of willfully
injuring his child (Pen. Code, § 273a, subd. (a); unless otherwise indicated, all further
statutory references are to this code) and found he personally inflicted great bodily injury
on a child under age five (§ 12022.7, subd. (d)). The court sentenced him to 12 years in
state prison.
                Defendant contends the court erred in excluding an expert witness who
would have testified on false confessions. He also contends the court erred in permitting
admission of evidence his obstetrician-gynecology expert had previously been censured
for giving false testimony. Finally, he argues cumulative error requires reversal. We
disagree and affirm the judgment.


                                          FACTS


                Defendant is the father of Jane Doe, born in 2009. Defendant watched Doe
during the day while the mother worked as a casino credit manager. When Doe was
approximately five months old, she became ill, vomited, and developed a fever. A few
days later, after performing a CT scan, emergency room physicians determined Doe had
suffered three skull fractures. The CT scan disclosed collections of blood and fluid on
Doe’s brain. Later examinations also disclosed numerous retinal hemorrhages. Such
hemorrhages are highly indicative of abusive head trauma.
                Officer Fred Collazo interviewed defendant. At the outset, Collazo stated
defendant was not under arrest and asked defendant “[a]re you okay to talk with me? Is it
alright if I ask you some questions?” Defendant responded, “always been an open book.
Right now, I mean I’m, I gotta be honest with you.” Early during the lengthy interview,
he acknowledged striking the baby with his palm and his knuckles.




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              Later, he stated he hit Doe four or five times. He explained: “I couldn’t
stop her from crying. I don’t know if she was sick. I didn’t know, I didn’t know what to
do.” He subsequently said this happened while he was on a conference telephone call “to
really secure a booking, that could’ve really helped us out financially. It would’ve took
care of everything. That was the big one and I lost the phone call because of the noise in
the background.” He described the lost booking as important because he had lost four
contracts that year and was facing eviction. Losing the potential booking because of
Doe’s crying, “was the worst shit in the world for me, I mean honestly, I was so, I’ve
never, never been that pissed off before. The last time I was ever that pissed off was
probably in the Navy.”
              During the trial, defendant called two expert witnesses, Dr. Ronald Gabriel,
a pediatric neurologist and Dr. Barry Schifrin, an obstetrician-gynecologist. Dr.Gabriel
testified Doe had an abnormally enlarged head and suffered from pressure on the brain
because of fluid collection. He opined the skull fractures were the result of the use of a
vacuum extractor during delivery. Dr.Schifrin opined that “the original injury stems
from” the delivery activities.


                                       DISCUSSION


1. Exclusion of the False Confession Expert Witness
              Before trial, defense counsel expressed his intention to call Dr. Richard
Leo, a social psychologist to express opinions regarding defendant’s interrogation.
Counsel claimed Dr. Leo would testify the method of interrogation used “increased the
risk of eliciting a false statement, admission and/or confession from [defendant] . . . .”
The prosecution filed a motion to exclude Dr. Leo’s testimony.




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              Supplemental briefing was filed by both sides. The prosecutor referred to
academic literature critical of Dr. Leo’s methodology and demonstrated that Dr. Leo
himself in characterizing victims of false confessions and the circumstances under which
they were obtained, used criteria that did not apply to defendant. Defendant’s brief noted
awards received by Dr. Leo for a recent book and his extensive curriculum vitae. He
noted the questioning took place after defendant’s other child had been removed and the
interrogating officer used a threat of such removal during the interview. Defendant urged
the proposed testimony was “crucial to support . . . defense claims” that the officer
“employed . . . interrogation techniques in a manner that resulted in an admission that
was both false and involuntary.” The brief contradicted the prosecutor’s contention “that
the study of false confessions lacks methodology” and cited publications dealing with the
subject.
              The court then entertained further argument on the subject. The defense
argued “it is unequivocally outside the ken of a juror’s experience that a person could
falsely confess.” He noted the length of the interrogation and referred to interviews with
Ben Sablan, the person who, according to defendant’s statement, had denied him a job
because of the crying child; Sablan instead indicated defendant had sounded like he was
driving a car or was in a club “deejaying” and did not mention a crying child. The
prosecutor claimed the only case holding it was error to exclude testimony of a false
confession expert dealt with a defendant suffering from serious mental disabilities. He
recited Dr. Leo’s own writings that identified factors such as “youth, mental retardation,
mental illness, vulnerable personality and temporary impairment,” none of which were
present here. Finally, he noted that it is the very task of the jury to assess credibility.
              The court concluded, “The relevance of such expert testimony to me, based
upon what I have been told by both sides, seems very minimal. The probative value
would be substantially outweighed by the likelihood of confusing the jury as to their



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duties. [¶] I believe that such testimony, if allowed, would be substantially outweighed
by the probability of prejudicial effect of such testimony because such testimony, if
allowed, would say automatically he’s not guilty.” The court’s decision was thus based
on Evidence Code 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.”
              “We review a trial court’s ruling under . . . section [352] for abuse of
discretion and will reverse a trial court’s exercise of discretion to admit evidence ‘only if
“the probative value of the [evidence] clearly is outweighed by [its] prejudicial effect.”
[Citation.]’” (People v. Valdez (2012) 55 Cal.4th 82, 133.) Applying this weighing test,
we cannot conclude the trial court abused its discretion.
              We find guidance in a recent case from the California Supreme Court
which upheld a trial court’s decision to exclude testimony by Dr. Leo on false
confessions. People v. Linton (2013) 56 Cal.4th 1146 (Linton) also involved a
defendant’s contention the trial court erred in excluding Dr. Leo’s testimony regarding
false and coerced confessions. (Id. at p. 1181.) Linton held the trial court properly
excluded the testimony under Evidence Code section 352 and stated: “As was his right,
defendant did not testify and thus did not deny the truth of his interview statements.
There was no other evidence offered that logically called into question the veracity of his
admissions. The only evidence that defendant pointed to as showing he made any false
statements during his police station interview was the testimony of the two pathologists
that [the victim] was not likely strangled from the front in the manner described by
defendant.” (Id. at pp. 1181-1182.)




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              So here, defendant did not testify and thus did not deny the truth of his
statements. And the only evidence offered by the physicians concerning possible birth
injuries having caused the skull fractures, would not contradict a finding that defendant,
in fact, struck the baby as described during his confession.
              Further, the factual analysis in Linton is almost equally applicable here:
“The ruling excluding the testimony of Dr. Leo under Evidence Code section 352 did not
result in the blanket exclusion of evidence concerning the circumstances of defendant’s
admissions and confession, which would have been necessary in order for defendant to
claim undue influence. The jury listened to tape recordings of defendant’s interviews at
the police station, heard the testimony of [the detectives and others] regarding the
circumstances of those interviews, and heard the expert testimony of Dr. Whiting
regarding defendant’s particular personality traits that may have lowered his ability to
withstand the pressures of interrogation and increased his suggestibility. The jury had the
testimony of both pathologists regarding the manner in which [the victim] was strangled
to consider against defendant’s description of his actions. Defendant was able to and did
strenuously argue this evidence established his admissions and confession were false, as
the stress-compliant result of coercive and suggestive questioning.” (Id. at pp. 1183-
1184.) The only difference in the present case is the lack of evidence that “defendant’s
particular personality traits . . . may have lowered his ability to withstand the pressures of
interrogation and increased his suggestibility.” (Id. at p. 1182.) Under the circumstances,
its absence supports the trial court’s ruling.


2. Impeachment of Defendant’s Obstetrician-Gynecology Expert
              Defendant called Dr. Barry Schifrin, an obstetrician-gynecologist who
occupied a number of teaching and clinical positions over a 40-year period. Dr. Schifrin
had reviewed materials relating to the cesarean delivery of Doe. According to Dr.



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Schifrin, there were complications. A drop in the mother’s blood pressure and Doe’s
heart rate caused the delivery physician to change from a birth by cesarean section to an
extraction, using what is described as a “kiwi flat vacuum,” which, if used improperly
can cause head trauma. This includes a 5 percent chance of causing skull fractures and
retinal hemorrhaging. The use of a skull cap, as was done here, violates proper
procedure. Dr. Schifrin opined that “the original injury stems from” the delivery
activities.
              Before Dr. Schifrin testified, the court conducted an Evidence Code
section 402 hearing concerning his prior professional reprimand. Dr. Schifrin testified he
had resigned from the American College of Obstetricians and Gynecologists in 2004,
following censure by the college “for making factual misrepresentations in an opinion
letter and deposition testimony for [a] medical liability claim” in 2001 or 2002. He
denied the censure was appropriate, but acknowledged it indicated he “knowingly and
intentionally lied in these [earlier] proceedings.” After hearing argument and reviewing
the parties’ brief on this issue, the court ruled that, because the matter related to the
witness’s credibility, it would be admitted.
              Because of this ruling, which defendant argues was erroneous, defense
counsel questioned Dr. Schifrin about the censure. We agree the trial court correctly held
the evidence admissible as proper impeachment. Although not dispositive here, we note
the Missouri Court of Appeals reached the same conclusion, holding Dr. Schifrin’s
censure was properly used to impeach him in Miller v. SSM Health Care Corp. (2006)
193 S.W.3d 416, 421-424, a medical malpractice case.
              In the trial court, defendant objected to the introduction of the impeachment
evidence under Evidence Code section 352, arguing the issue would complicate the case
and require significant time. He repeats this claim on appeal, but acknowledges People v.
Harris (1989) 47 Cal.3d 1047, held that under California Constitution, article I, section



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28, subdivision (d), the admission of evidence of an informant’s “past reliability as
[such], and the prosecutor’s reference to it in closing argument, . . . involved neither error
nor misconduct.” The only limitation on evidence of such conduct would be under
Evidence Code section 352. (People v. Harris, supra, 47 Cal.3d at p. 10832, disapproved
on another ground in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.)
              As noted, the trial court’s ruling is reviewed for abuse of discretion.
(People v. Valdez, supra, 55 Cal.4th at p. 133.) No doubt the impeachment showing Dr.
Schifrin was censured by his professional organization for having knowingly given false
testimony in an earlier case was prejudicial. All impeachment of a witness is prejudicial
to the party offering the witness’s testimony; that’s why it’s impeaching. But here, where
it was important for the jury to determine Dr. Schifrin’s credibility, the evidence had high
probative value. Thus, we cannot conclude the court abused its discretion in allowing the
evidence.
              Defendant argues “it cannot be said that the improperly admitted evidence
that [Dr.] Schifrin was censured for ‘false testimony’ did not affect the jury’s decision.”
We take no issue with this statement. But this misstates the test under Evidence Code
section 352. The test is not whether the evidence may adversely affect the party offering
it. Rather, Evidence Code section 352 involves a weighing process. What is the
probative value of the evidence? What is the prejudice? And it is only when the
probative value is clearly outweighed by the prejudice that admission is an abuse of
discretion. Here, Dr. Schifrin’s credibility was a relevant consideration for the jury. The
evidence was probative of his credibility. This probative value was not so clearly
outweighed by the prejudice that we can conclude the court abused its discretion.




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3. The Claim of Cumulative Error
              Because we conclude that neither of the two grounds urged by defendant
demonstrated error by the trial court, defendant’s claim that the two grounds together
constitute cumulative error must necessarily fail.

                                      DISPOSITION


              The judgment is affirmed.



                                                 RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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