P. v. Berry
Filed 6/14/06 P. v. Berry CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. DAVID ALLEN BERRY, Defendant and Appellant. | G034144 (Super. Ct. No. 02HF0046) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Ronald P. Kreber, Judge. Affirmed.
John L. Dodd for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted David Allen Berry of one felony count and four misdemeanor counts of child abuse involving three of his adopted children, J. (age 11), A. (age 9), and C. (age 8). (Pen. Code, §§ 273a, subd. (b) [misdemeanors]; 273d, subd. (a) [felony corporal injury of a child].) The felony count was for striking A. on November 29, 2001, leaving an egg-sized lump on his jaw and bruising and swelling on his ears; one misdemeanor count pertained to throwing C. to the ground, and the rest involved continuing child abuse of the three children over the period of January 1, 2001 through November 25, 2001. The trial court suspended imposition of sentence and placed defendant on four years' formal probation, on condition that he serve 120 days in jail. Defendant does not attack his sentence, but rather only the underlying convictions. He contends the trial court erred by denying separate trials for him and his wife.[1] He also argues the prosecutor committed misconduct in prompting a witness to read excerpts of an e-mail to the jury, certain portions of the children's taped interviews with social workers should not have been played to the jury, and no substantial evidence supports the misdemeanor conviction involving C. For the reasons that follow, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2001, A.'s teacher noticed an egg-sized lump on his jaw and â€
