Filed 7/25/17 P. v. Steen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,

Plaintiff and Respondent,

v.

JOE EARL STEEN II,

Defendant and Appellant.


E065055

(Super.Ct.No. RIF1302682)

OPINION


APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Four-month-old Jane Doe suffered from shaken baby syndrome while in the care of defendant Joe Earl Steen, Doe’s biological father. Defendant appeals from judgment entered following a jury conviction for child abuse likely to cause great bodily harm (Pen. Code, § 273a, subd. (a) ; count 1). The jury also found true defendant personally inflicted great bodily injury (GBI) on Doe (§ 12022.7, subd. (d)). The trial court sentenced defendant to nine years in prison.
Defendant contends the trial court erred in denying his Batson/Wheeler motion as to the prosecution’s removal of prospective Juror G.C., who is an African American woman. Defendant also argues the trial court erroneously admitted evidence of three uncharged separate acts of domestic violence committed by defendant. We reject defendant’s contentions and affirm the judgment.
II
FACTS
Defendant normally took care of his and T.M.’s four-month-old daughter, Doe, while T.M. worked at the hospital as a licensed vocational nurse. On the day of the charged offense, April 26, 2013, defendant was living with T.M., Doe, and T.M.’s two other daughters, who were two and four years old. T.M. left for work at around 6:00 a.m. and, on her way, dropped off her two older daughters with their biological father. Normally, she got off work at 5:15 p.m. Doe remained at home in the sole care of defendant, who was unemployed. When T.M. left Doe with him the morning of April 26, 2013, Doe was a normal, healthy baby. Doe normally slept in a bassinet at the foot of defendant and T.M.’s bed.
A couple of hours after T.M. left for work on April 26, 2013, defendant learned his uncle had died. Defendant had four or five shots of brandy. T.M. called defendant at around noon to check on Doe, and defendant said everything was fine.
At 4:50 p.m. on April 26, 2013, Cal Fire paramedic Kevin Fortney and two other firefighters were dispatched to defendant’s home. Upon arrival within about five minutes, Fortney found defendant in the master bedroom with Doe. Doe was lying on the bed, unconscious and unresponsive. Doe had very shallow, slow breathing, and no noticeable bruising, bleeding, or external injuries.
Defendant told Fortney he left Doe unattended on the bed and Doe fell from the bed to the floor. Doe cried for about two minutes, stopped, and went unconscious. Defendant said he found Doe between the bassinet and the bed, on the floor. Defendant could not wake up Doe, even when he shook her. Defendant told Fortney Doe seemed normal five minutes before calling the paramedics. She had been a healthy baby. Defendant said that when he found Doe unresponsive, she looked like a “rag doll.”
Fortney concluded that Doe’s condition was not caused by a fall from the bed. Based on Doe’s symptoms of unconsciousness, unresponsiveness, and labored breathing, Fortney believed Doe suffered from shaken baby syndrome, had a cervical or spinal injury, and suffered from a brain injury. The paramedics transported Doe to the hospital.
On April 29, 2013, Dr. Vivanco de Martinez, a forensic pediatrician who specialized in child abuse pediatrics, examined Doe. Doe’s liver enzymes indicated she had suffered from trauma. CT scans showed she had blood covering the frontal, sides, and back of her skull. Doe had six healing rib fractures that appeared seven to 10 days old, and there was evidence of both fresh blood and old blood. Dr. Vivanco de Martinez testified Doe’s injuries were not consistent with a fall. Dr. Vivanco de Martinez noted that on April 24, 2013, a doctor examined Doe and did not notice Doe’s rib fractures, strabismus or any other signs of Doe having suffered from trauma. Dr. Vivanco de Martinez believed Doe suffered two separate traumatic incidents of severe physical abuse from being shaken. One of the incidents occurred just before Doe’s admission to the hospital on April 26, 2013.
Ophthalmologist, Dr. McCaffery, also examined Doe on April 29, 2013, and concluded Doe had been recently shaken, based on recent bleeding in Doe’s eyes.
Detective Wyatt investigated the incident on April 26, 2013, and concluded, based on his training and experience investigating child abuse and sexual assault, that Doe’s injuries were caused by someone intentionally violently shaking Doe. Defendant told Wyatt he left Doe asleep on the bed around 3:00 p.m. When defendant heard her cry around 4:00 p.m., he went to the bedroom and found her on the floor under the bed, gasping for air. After calling T.M. and trying to revive Doe in the bathtub, defendant called 911.
At trial, defendant testified that he did not believe any relatives hurt Doe, and denied ever harming a child. Defendant stated that on April 26, 2013, while he was preparing dinner in the kitchen, Doe was sleeping on the bed in the bedroom. Defendant said he checked Doe every five minutes. He heard Doe cry out and found her on the floor underneath the bed, face down on the carpet, hissing and gasping for air. She was unresponsive and felt like jello, with her eyes closed. Defendant called T.M. and T.M. said to put Doe in a warm bath. Doe remained unresponsive. Defendant called back T.M., who told him to call an ambulance, which he did.
Several defense witnesses testified defendant babysat their children and he was great with them; he was never violent towards children; he was very loving and attentive to Doe; defendant was a good father; and he was a very honest person.
III
DEFENDANT’S BATSON/WHEELER MOTION
Defendant contends the trial court’s denial of his Batson/Wheeler motion challenging the prosecution’s removal of prospective Juror G.C., an African American woman, violated his state and Federal Constitutional rights to equal protection and a fair trial by a representative cross-section of the community.
A. Voir Dire Proceedings
During voir dire, the prosecutor exercised eight peremptory challenges, seven of which were for the removal of Hispanics and one, which was for the removal of Juror G.C., an African American.
There were only seven African Americans in the entire venire, with only three making it to the jury box for voir dire. Juror G.C. was the only one of the three African Americans who was removed by the prosecution. Another African American, Juror K., was removed by the defense for cause. The prosecution objected to his removal. One African American, Juror TJ02, remained on the jury, along with seven Hispanics. The court noted defendant was African American, and the prosecutor acknowledged she was “Mexican.”
Juror G.C. stated during voir dire that she had worked for 35 years for the county as a medical records coder at a hospital. Juror G.C. described her work as “Coding, clinics, inpatient and outpatient and emergencies.” She retired from the county and then went back to work as a medical record coder, working remotely from home for a company in New Mexico. Juror G.C. received an associate degree in Health Information Management (HIM). Juror G.C. stated that, in addition to training for medical record coding, she received medical training but had not worked as a nurse, paramedic, or phlebotomist.
Later during voir dire, the prosecutor asked if any prospective jurors had any medical training. In response, Juror G.C. raised her hand and said she had worked in a clinic so that she would “get a chance to code and see everything.” When asked if she actually had medical training, Juror G.C. said she went to school and actually had medical training.
The prosecution exercised a peremptory challenge excusing Juror G.C. The defense made a Batson/Wheeler motion, objecting to the removal of Juror G.C. on the ground Juror G.C. was the only African American prospective juror in the jury box, and there were only three other African Americans in the entire venire (there were actually seven). Defense counsel noted that the only prospective jurors removed by the prosecutor were minorities. Four appeared to be Latino. Defense counsel clarified she was only asserting her Batson/Wheeler challenge as to the removal of Juror G.C. Defense counsel conceded “it does appear [the prosecutor] is exercising her peremptory challenges in a nonracial – nonracially neutral manner.” Defense counsel added that she was concerned, however, that Juror G.C. was currently the only African American seated in the jury box and there were only three other African American prospective jurors remaining in the venire.
The trial court concluded defendant had not made a prima facie case showing of an inference of discriminatory purpose, but permitted the prosecution to respond to defendant’s Batson/Wheeler challenge. The prosecutor stated she had not excused any other African American prospective jurors, and the reasons she was excusing Juror G.C. were that Juror G.C. was older than the other jurors, Juror G.C. worked at home by herself, and she had medical training. The prosecutor said she did not want jurors who had medical training because they tended to impose on the other jurors their beliefs and views regarding the medical evidence, acting as experts. This is why she also excused Juror Val.
Finding the defense had not made a prima facie showing of discrimination, the trial court permitted the prosecution’s peremptory challenge excusing Juror G.C. The court further stated that the prosecutor’s peremptory challenges did not include any members of a cognizable group, other than Juror G.C., and the prosecutor had removed other prospective jurors who had medical training.
After the trial court denied defendant’s Batson/Wheeler motion, voir dire proceedings resumed. Prospective Juror TJ01 stated she was a pharmacy tech student, who was participating in an externship. She had already completed the classroom part of the pharmacy tech program and was working on completing the requisite 280 unpaid externship hours. The externship required working with medication at a pharmacy. Juror TJ01 stated she had never worked at a hospital or had any patient contact. Her training was related entirely to medication. Neither the prosecution nor defense requested Juror TJ01 removed from the jury panel.
After the prosecution and defense accepted the jury panel, defendant renewed his Batson/Wheeler motion. Defense counsel argued that the prosecutor had said she removed Juror G.C. from the jury panel because Juror G.C. had a medical background, yet the prosecution left on the jury panel Juror TJ01, who had medical and pharmaceutical training. The trial court acknowledged that, as previously ruled, there was no prima facie case but the prosecution could respond to defendant’s renewed motion.
The prosecutor explained that she did not excuse Juror TJ01 because she had not had any patient contact or worked in a hospital. Juror TJ01 indicated her training was solely in pharmaceuticals, in which she was dealing with medications and was not providing patient care or working with doctors or in a hospital. In addition, Juror TJ01 had just begun her externship, whereas Juror G.C. had worked for over 30 years in a hospital. The prosecutor further stated that a distinguishing factor was that Juror G.C. had worked with patients as a volunteer in a hospital. The prosecutor noted that Juror TJ02 was African American and remained on the jury panel.
The trial court stated it would stand by its previous ruling. The court found there was a distinction between the medical experience of Juror G.C. and Juror TJ01. Juror TJ01 was participating in an externship in which she had de minimus patient contact. The court said that, more importantly, it did not find the prosecutor had removed any prospective jurors based on impermissible, unconstitutional racial reasons. The court noted that the prosecution had objected to the defense’s challenge for cause of the African American juror, Juror K. The juror was thereafter removed by the defense by peremptory challenge. In addition, the prosecution passed on exercising a peremptory challenge to African American juror, Juror TJ02. The trial court concluded the removal of Juror G.C. did not constitute an unconstitutional abuse of the peremptory system.
B. Applicable Law
A prosecutor’s use of peremptory challenges to strike prospective jurors because of group bias (i.e., bias based on the juror’s membership in a racial, religious, ethnic or similar group) violates a criminal defendant’s right to trial by a jury drawn from a representative cross-section of the community under both the Fourteenth Amendment to the United States Constitution and article I, section 16 of the California Constitution. (People v. Gutierrez, 2017 Cal. LEXIS 3975, p. *8 (Gutierrez); People v. Bell (2007) 40 Cal.4th 582, 596; People v. Chism (2014) 58 Cal.4th 1266, 1313 (Chism).)
Ruling on a Batson/Wheeler motion requires a three-part inquiry. First, the defendant must make a prima facie case by showing that the totality of the circumstances gives rise to an inference of discriminatory purpose. Second, if the defendant does so, the burden shifts to the prosecution to explain adequately its peremptory challenges by offering group bias-neutral justification. Third, if such an explanation has been given, the trial court must decide whether the defendant has proven purposeful discrimination. (Gutierrez, supra, Cal. LEXIS 3975 at p. *8; People v. Manibusan (2013) 58 Cal.4th 40, 75; Chism, supra, 58 Cal.4th at p. 1313.)
When bringing a Batson/Wheeler motion, the defendant has the initial burden during the first stage of analysis of demonstrating “a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. The moving party satisfies this first step by producing ‘“evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.”’” (Gutierrez, supra, Cal. LEXIS 3975 at p. *9, quoting People v. Avila (2006) 38 Cal.4th 491, 553; in accord, People v. Hamilton (2009) 45 Cal.4th 863, 899; Johnson v. California (2005) 545 U.S. 162, 170.)
“‘“We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]”’ [Citation.]” (Chism, supra, 58 Cal.4th at pp. 1314-1315; in accord, People v. Johnson (2015) 61 Cal.4th 734, 755; see Gutierrez, supra, Cal. LEXIS 3975 at p. *11.)
C. Discussion
Defendant’s Batson/Wheeler motion was made based on Juror G.C.’s race. She was the only African American prospective juror in the jury box. Defense counsel, however, conceded when making the motion that it did appear that the prosecutor was “exercising her peremptory challenges in a nonracial – nonracially neutral manner.” The trial court found defendant had not made a prima facie case showing an inference of discriminatory purpose, but nevertheless permitted the prosecution to respond to defendant’s Batson/Wheeler challenge.
“[W]here (1) the trial court has determined that no prima facie case of discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her ]reasons for excusing the juror for the record, (3) the prosecutor provides nondiscriminatory reasons, and (4) the trial court determines that the prosecutor’s nondiscriminatory reasons are genuine, an appellate court should begin its analysis of the trial court’s denial of the Batson/Wheeler motion with a review of the first-stage ruling. ([Citations]; State v. Sledd [(1992) 825 P.2d 114,] 119 [‘it is the better practice to have the State respond, and then for the court to make a determination on whether the reasons are racially neutral,’ which ‘would eliminate remands for such a determination if the trial court is held to have erred in holding the defendant had failed to make the prima facie showing’]; [citations].) If the appellate court agrees with the trial court’s first-stage ruling, the claim is resolved. If the appellate court disagrees, it can proceed directly to review of the third-stage ruling, aided by a full record of reasons and the trial court’s evaluation of their plausibility.” (People v. Scott (2015) 61 Cal.4th 363, 392.)
In deciding whether defendant has stated a prima facie case, “we consider the entire record before the trial court [citation], but certain types of evidence may be especially relevant: ‘[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, . . . the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’ [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 342, quoting Wheeler, supra, 22 Cal.3d at pp. 280-281.)
Here, the trial court properly found during defendant’s initial Batson/Wheeler motion and when defendant renewed his motion, that there was no prima facie case of discriminatory intent. At the time of defendant’s Batson/Wheeler motion and renewal of the motion, the prosecution had only struck one African American prospective juror from the jury panel, Juror G.C. A peremptory challenge of the only African American subject to challenge is insufficient in and of itself to suggest a pattern of discrimination. (People v. Hamilton, supra, 45 Cal.4th at p. 899; People v. Bonilla, supra, 41 Cal.4th at pp. 342-343 [the challenge of one or two jurors rarely suggests a pattern of impermissible exclusion].)
There was no showing that the prosecution struck most or all of the members of the identified group (African Americans) from the venire, or used a disproportionate number of the prosecution’s peremptories against the group. (Gutierrez, supra, Cal. LEXIS 3975 at pp. *33-34.) At the time of the prosecution’s initial Batson/Wheeler motion and renewal of the motion, Juror G.C. was the only African American the prosecution had excused. When defendant initially brought his Batson/Wheeler motion, Juror G.C. was the only African American prospective juror in the jury box, with seven African Americans in the jury venire. By the time defendant renewed his Batson/Wheeler motion, three African American jurors had made it to the jury box for voir dire, including Juror G.C., Juror K., and Juror TJ02. Juror G.C. was the only one of the three African Americans removed by the prosecution. Juror K. was removed by the defense for cause, with the prosecution objecting to his removal. One African American, Juror TJ02, remained on the jury.
The record also shows that the prosecutor engaged the other African American jurors in voir dire in the same manner as the other prospective jurors. The prosecutor did not single out or treat differently the African American jurors. The prosecutor explained to the court that she did not want jurors who had medical training, and asked all prospective jurors if they had such training or experience. The record supports the trial court’s finding that the prosecutor’s stated reason for removing Juror G.C. based on her medical training, was a sincere, genuine, race-neutral reason for excusing Juror G.C. A court reviewing a first-stage ruling that no inference of discrimination exists “‘may consider apparent reasons for the challenges discernible on the record’” as part of its “‘consideration of “all relevant circumstances”’ [citation].” (People v. Scott, supra, 61 Cal.4th at p. 390.) Here, in concluding there was no prima facie case, we have considered the prosecution’s primary reason for challenging Juror G.C. and conclude there is no evidence it was pretextual.
Here, during voir dire, the prosecutor asked if any prospective jurors, had any medical training. In response, Juror G.C. raised her hand and said she had worked in a clinic so that she would “get a chance to code and see everything.” When asked if she actually had medical training, Juror G.C. said she went to school and actually had medical training. She received a degree in HIM. The prosecutor explained she did not want jurors with medical training because they tended to impose on the other jurors their beliefs and views regarding the medical evidence, acting as experts. The prosecutor noted that this was why she also excused Juror Val., who is not African American.
A juror’s occupation can be a permissible, nondiscriminatory reason for exercising a peremptory challenge. (Chism, supra, 58 Cal.4th at p. 1316; People v. Trevino (1997) 55 Cal.App.4th 396, 411 [the People permissibly exercised peremptory challenges based on a belief those who had some connection with providing health care or social services would not be sympathetic to their case]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791; People v. Perez (1996) 48 Cal.App.4th 1310, 1315; People v. Barber (1988) 200 Cal.App.3d 378, 394.) As in the instant case, “a prosecutor ‘can challenge a potential juror whose occupation, in the prosecutor’s subjective estimation, would not render him or her the best type of juror to sit on the case for which the jury is being selected.’ [Citation.]” (Chism, at p. 1317.)
The record shows that the prosecutor was consistent in excusing prospective jurors with significant medical training and experience, regardless of their race. Other excused jurors who had medical training or experience, and were not African American, included Juror Val., who was a medical assistant, and worked in a family practice medical clinic. She had contact with patients. Juror Val. was excused as a prospective juror pursuant to a peremptory challenge by the prosecutor. The prosecution also exercised a peremptory challenge, excusing Juror M.
The defense excused all of the other prospective jurors with medical experience, including Juror Van., who was a registered nurse (RN), worked as a school district nurse, and had treated patients at a hospital in orthopedics; Juror M., who worked as a volunteer candy striper at two hospitals, interacted with patients, and worked in the hospital morgue; and Juror S., who received medical training for a high school internship as a medical assistant.
Defendant argues that a comparative analysis of the jurors left on the jury panel, specifically Juror TJ01, supports a finding of racial discrimination. Juror TJ01 was a pharmacy tech student, who was participating in an externship. She had already completed the classroom part of her pharmacy tech program and was working on completing the requisite number of hours of unpaid work at a pharmacy as an extern. Juror TJ01 said she had never worked at a hospital or had any patient contact. Her training and extern work was related entirely to medication. Neither the prosecution nor defense requested Juror TJ01 removed from the jury panel.
Defendant maintains that the prosecutor had said she removed Juror G.C. from the jury panel because Juror G.C. had a medical background, yet the prosecution left on the jury panel Juror TJ01, who had medical and pharmaceutical training. The record shows, however, that Juror TJ01 did not have the type of medical training or experience the prosecutor was concerned about when excusing Juror G.C. and other jurors with medical training and experience. Juror TJ01 only had training as to medication and had not had any patient contact or worked in a hospital. Juror TJ01 indicated her training was limited to pharmaceuticals and she only dealt with medications. She did not provide patient care or work with doctors or in a hospital. In addition, Juror TJ01 had just begun her externship, whereas Juror G.C. had worked for over 30 years in a hospital.
The trial court found there was a distinction between the medical experience of Juror G.C. and that of Juror TJ01, who was participating in an externship in which there was de minimus patient contact. Our Supreme Court has recognized the “inherent limitations” of trying to conduct a comparative analysis based on a cold appellate record. (People v. Lenix (2008) 44 Cal.4th 602, 622.) Instead, the trial court is in the best position to analyze comparative juror evidence. (Id. at p. 624.)
Here, giving deference to the trial court’s determination, we conclude a comparative analysis based on this appellate record does not establish error. As the trial court found, there was insufficient evidence to infer or suggest there was purposeful discrimination when the prosecution excused Juror G.C. from the jury. (People v. Taylor (2010) 48 Cal.4th 574, 614.) Because there was no prima facie showing of purposeful discrimination, denial of defendant’s Batson/Wheeler motion was proper, and we need not reach the second and third stages of review of defendant’s Batson/Wheeler motion ruling. (People v. Scott, supra, 61 Cal.4th at p. 392.)
Even if we were to proceed to the second and third stages of the Batson/Wheeler motion analysis and consider whether the record supports the prosecution’s race-neutral explanations, we would conclude there is insufficient evidence of purposeful racial discrimination. There is nothing in the record to suggest that the prosecutor’s race-neutral reasons for excusing Juror G.C. were not credible or genuine. Juror G.C. was the only African American the prosecutor excused from the jury, and the prosecutor stated she excused Juror G.C. primarily because Juror G.C. had medical training and experience. The record shows that the prosecutor was consistent in excusing other jurors who were not African American for this same reason.
The instant case is distinguishable from the California Supreme Court’s recent decision, Gutierrez, supra, Cal. LEXIS 3975. In Gutierrez, the defendants brought a Batson/Wheeler motion after the prosecutor exercised 10 of 16 peremptory challenges to remove Hispanic individuals from the jury panel. The trial court found that the defendants had established a prima facie case, but denied the defendants’ motion after finding the prosecutor’s reasons for removal of the jurors were race-neutral and nonpretextual. The California Supreme Court in Gutierrez reversed, holding that the record did not sufficiently support the trial court’s denial of the Batson/Wheeler motion as to one of the prospective jurors. (Gutierrez, at pp. *3, *42.) The court in Gutierrez concluded at the second stage of the Batson/Wheeler motion analysis that the trial court had not made a reasoned attempt to determine whether the justification for removal of a juror was credible. (Id. at pp. *35-36, *42.) The Gutierrez court further held that, during the third stage of analysis, the Court of Appeal erred in refusing to conduct comparative juror analysis. (Id. at pp. *3, *37-39, *42.)
Unlike in Gutierrez, in the instant case, the defendant failed to establish a prima facie case, the first stage of analysis of a Batson/Wheeler motion. Therefore the court was not required to proceed with a comparative juror analysis, which is required during the third stage of analysis, in the event the defendant has established a prima facie case of discrimination. (Gutierrez, supra, Cal. LEXIS 3975 at pp. *9-*10.) Here, the defendant’s Batson/Wheeler motion was based on the prosecution’s removal of one African American juror, as opposed to the removal in Gutierrez of 10 of 16 Hispanics. At the hearing on defendant’s initial Batson/Wheeler motion, defense counsel conceded defendant had not established a prima facie case.
When defendant renewed his Batson/Wheeler motion near the end of voir dire, the prosecutor had not removed any additional African American jurors. The trial court found defendant had still not established a prima facie case at the time of renewal of the Batson/Wheeler motion. Therefore, unlike in Gutierrez, this court is not required to conduct a comparative juror analysis. Nevertheless, we have done so, as did the trial court, for purposes of confirming that the prosecutor’s reasons for removing Juror G.C. were credible and not pretextual. The record shows that the prosecutor was consistent in removing jurors with medical training and experience, regardless of their race. Defendant did not establish a prima facie case of discrimination and, even if there was a prima facie case, the record does not show that the prosecutor’s stated reason for removing Juror G.C. was pretextual. Based on the entirety of the record, we conclude the trial court did not err in denying defendant’s Batson/Wheeler motion.
IV
ADMISSIBILITY OF UNCHARGED ACTS
OF DOMESTIC VIOLENCE
Defendant contends the trial court erroneously admitted evidence he committed three uncharged acts of domestic violence. The three acts consisted of two domestic violence acts against T.M. on April 13 and 21, 2014, a year after the charged crime, and a third domestic violence act on January 3, 2008, against J.J., a former girlfriend and the mother of his other children.
A. Procedural Background
The prosecution filed a motion in limine under Evidence Code section 1109, seeking to introduce evidence of the two uncharged domestic violence acts involving T.M. Defendant opposed the motion. The trial court considered admissibility of the evidence under Evidence Code sections 352 and 1109, and granted the prosecution’s request to present evidence of both domestic violence incidents in 2014, involving T.M.
During the trial, T.M. testified that, from the inception of her relationship with defendant in March 2012, up until the date of the charged crime on April 26, 2013, she had never seen defendant act violently. She had seen him drink, but never saw him drunk. He was fine. According to T.M., his character did not change when he drank; he did not become more aggressive.
T.M. acknowledged that during the evening of April 13, 2014, about a year after the charged crime, defendant unexpectedly showed up at T.M.’s home. T.M.’s two older girls and Doe were asleep in the house. Defendant entered T.M.’s home through the garage and went to T.M.’s bedroom. T.M. and defendant began arguing and yelling at each other. They continued arguing in the kitchen. Defendant threw food out of the refrigerator, making a mess of T.M.’s living room. Defendant grabbed T.M.’s arms, which left red marks on her arms. He also kicked the back of T.M.’s car, damaging the trunk. Someone called the police. T.M. told the police she could smell alcohol on defendant’s breath.
T.M. testified to a second incident of violence between her and defendant. It occurred on April 21, 2014. T.M. and Doe were visiting defendant’s parents. When T.M. arrived, she saw defendant outside. He was living with his parents and was unaware T.M. was coming over that day. T.M. went directly inside with Doe, without talking to defendant. Defendant came inside, pushed T.M. down, and punched her multiple times, including in the head. Defendant’s stepmother took Doe out of T.M.’s arms. T.M.’s injuries included a bleeding lip and a sore nose from being hit in the nose. T.M. feared defendant. The police were called. She told the police she smelled alcohol on defendant’s breath.
On cross-examination, T.M. testified she had known defendant for 15 years, since high school. Defendant was her boyfriend but they broke up in 2000. They reconnected in 2012. Up until April 2013, defendant had never hit her. Other than the two incidents in April 2014, defendant had never been aggressive toward her physically or verbally. While T.M. and defendant waited for the police, defendant held Doe. T.M. was not worried he would hurt Doe. Defendant had not gone after Doe during the April 21, 2014 incident. Defendant’s anger and aggression was directed solely at T.M. Defendant has five children, including Doe. T.M. had never seen him being violent with any children. She had never had any concerns about leaving Doe with defendant, because Doe is his own daughter and defendant loves her.
After T.M.’s testimony, the prosecutor requested introducing evidence of the third domestic violence incident, which involved J.J. in 2008. The prosecutor requested that T.M. be permitted to testify regarding the incident under Evidence Code section 1109, on the ground T.M. had just testified that, before the domestic violence incidents in April 2014, T.M. had never known defendant to be violent during the 15 years she had known him. T.M. had testified she had remained in contact with defendant and knew what was going on in his life during that entire time, including while defendant was living with J.J. The prosecutor argued that evidence of defendant’s 2008 domestic violence incident refuted T.M.’s testimony that defendant had never been violent towards anyone before the April 2014 incidents. The prosecutor suggested she be permitted to ask T.M. if she knew defendant had been convicted of a domestic violence incident in 2008, and if she said no, then the trial court could simply take judicial notice of the conviction or the prosecution could submit certified copies of the conviction documents, showing defendant pled guilty.
Defendant objected to the evidence on the grounds T.M. was not the victim of the 2008 misdemeanor domestic violence incident and the evidence should be excluded under Evidence Code section 352. The trial court permitted the evidence, explaining that defendant’s 2008 domestic violence conviction (§§ 242, 273.5, subd. (a)) was “extremely relevant with respect to this witness because of the . . . character testimony that was brought out by the defense. And it does go back a long ways, and it’s very clear in her testimony that she is of the opinion that he was never a violent person, period, to her knowledge.”
The trial court concluded evidence of the 2008 incident was admissible to refute T.M.’s testimony she had not known defendant to act violently until the 2014 domestic violence incidents. In addition, the court concluded the evidence was admissible under Evidence Code section 1109, but then considered whether it should be excluded under Evidence Code section 352. The court noted that the 2008 incident was not more than 10 years before the charged crime and “the probative value is great and is not outweighed . . . by the prejudice suffered by the other side or undue time consumption because it’s going to be limited to either judicial notice or a certified copy, . . . I don’t think it involves confusion of the issues for the jury. It’s not remote.” The trial court thus concluded the evidence was relevant to impeach T.M. and under Evidence Code section 1109.
During the trial, T.M. testified she had maintained contact with defendant and was aware he was convicted of domestic violence against J.J. T.M. said this did not change her view that defendant was not violent before the 2014 domestic violence incidents, or with children. The court then took judicial notice of defendant’s 2008 misdemeanor domestic violence conviction (§ 273.5). Thereafter, J.J.’s sister, A.J., and J.S testified to defendant’s nonviolent nature.
The trial court instructed the jury at the end of the trial under CALCRIM No. 852, that if the jury found defendant had committed uncharged acts of domestic violence, specifically the acts on April 13, and 21, 2014, and January 3, 2008, the jury could infer that defendant “was disposed or inclined to commit domestic violence,” and the jury could use that inference to find that defendant committed the charged crime. The court added that the evidence of the uncharged acts alone was insufficient to prove defendant guilty of the charged crime or enhancement, and the evidence could not be considered for any other purpose except for the limited purpose of determining defendant’s credibility.
B. Applicable Law
Evidence Code section 1109 permits the introduction of evidence of uncharged acts of domestic violence, subject to exclusion if the evidence’s probative value is substantially outweighed by undue consumption of time or substantial danger of undue prejudice or jury confusion. Section 1109 states in relevant part that, “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1).)
In the case of charged crimes of domestic violence, Evidence Code section 1109 provides an exception “to the long-standing common law and statutory rule excluding propensity evidence,” i.e., the general proscription against the introduction of other acts to show defendant’s predisposition to commit the charged crime. (People v. James (2000) 81 Cal.App.4th 1343, 1353; see People v. Jennings (2000) 81 Cal.App.4th 1301, 1313.) This exception is based on a legislative determination that policy considerations warrant the admission of other domestic violence evidence where its exclusion is not mandated by Evidence Code section 352. (People v. Johnson (2000) 77 Cal.App.4th 410, 419-420.)
Therefore, under Evidence Code section 1109, the admissibility of other domestic violence evidence is determined, in part, on whether the evidence is inadmissible under Evidence Code section 352. Determining admissibility of proposed other domestic violence evidence under Evidence Code section 352 provides an essential safeguard against introduction of evidence where its admission could result in a fundamentally unfair trial. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1028.) A trial court’s admission of other domestic violence evidence is subject to the court’s sound discretion, and the trial court’s evidentiary ruling on the evidence will not be disturbed on appeal absent a showing of an abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282; People v. Poplar (1999) 70 Cal.App.4th 1129, 1138; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
C. Discussion
Defendant contends the trial court abused its discretion in admitting evidence of the three uncharged domestic violence offenses under Evidence Code section 1109. Defendant argues admission of the evidence did not withstand an Evidence Code section 352 analysis because the prejudicial effect of admission of the evidence outweighed its probative value. He contends the evidence was dissimilar to the charged offense, the evidence confused the issues, and the evidence was highly prejudicial.
The three uncharged domestic violence offenses (other domestic violence evidence) differed from the charged offense in that they involved physical violence by defendant against adult women and the women’s injuries were not serious. In the charged offense, on the other hand, defendant physically abused an infant, causing serious, potentially permanent injuries. While the other domestic violence evidence involved a different type of domestic violence than that charged in the instant case, the trial court found it admissible, not only under Evidence Code sections 1109 and 352, but also because it refuted or impeached character witness testimony offered by the defense. The defense presented testimony by T.M., A.J., J.S, and E.B., who testified to defendant’s nonviolent nature.
The prosecution requested admission of the evidence of the other domestic violence evidence to refute the defense evidence that defendant was nonviolent and to show that defendant had committed violent acts, including when he had been drinking. T.M. testified that both times defendant physically abused her in April 2014, she smelled alcohol on defendant’s breath. Defendant also had been drinking during the morning before the charged offense. He admitted having four or five shots of brandy on the day of the charged crime.
Even assuming the other domestic violence evidence was inadmissible character evidence under Evidence Code section 352, because it concerned physical abuse of adult women, not children, any error in allowing the evidence was harmless. In view of the overwhelming evidence defendant committed physical child abuse, it is not reasonably probable that an outcome more favorable to defendant would have been reached in the absence of the other domestic violence evidence. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Carter (2005) 36 Cal.4th 1114, 1152, 1171-1172; People v. Walker (2006) 139 Cal.App.4th 782, 808.) There was overwhelming evidence that defendant committed the charged crime and GBI enhancement.
Such evidence included T.M.’s testimony that Doe appeared to be fine before T.M. left for work on the day of the child abuse incident. Both T.M. and defendant testified Doe was healthy and acting normally that morning. There was no evidence that there was anything wrong with Doe when T.M. left for work the morning of April 26, 2013. T.M. testified Doe had not sustained any injuries while in T.M.’s care, T.M. had no concerns about relatives watching Doe, Doe did not act differently after being with her relatives, and T.M. had not noticed Doe had sustained any injuries after being in her relatives’ care.
It was also undisputed that Doe was left in the sole care of defendant on April 26, 2013. There was no evidence anyone could have harmed her that day, other than defendant. Furthermore, defendant’s explanation of how Doe was injured was not believable based on the totality of the evidence presented during the trial. Defendant stated Doe fell from the bed while he was in the kitchen preparing dinner. Defendant testified he did not believe any relatives hurt Doe. Although defendant testified Doe became unconscious after she fell from the bed, defendant testified he believed someone violently shook Doe and the fall off the bed did not cause Doe’s injuries. After T.M. left for work the day of the incident, defendant was the only one who had access to Doe and thus was the only person who could have violently shaken Doe.
In addition, witnesses, including a responding paramedic, a child abuse detective, an ophthalmologist, and a forensic pediatrician, all testified that violent shaking was a possible, if not likely, cause of Doe’s injuries and symptoms, whereas a fall from the bed onto the carpeted floor would not have caused her injuries. The ophthalmologist, Dr. McCaffery, testified that Doe’s injuries to her retinas appeared to be fresh, not reinjuries or rebleeding from a previous injury on another day. Doe’s injuries also did not appear to be from falling off the bed because of the severity of the injuries, and because her injuries reflected causation from multi-directional impacts and acceleration and deceleration. Dr. McCaffery further testified that, based on his observations, he believed the retinal hemorrhaging occurred on the day of the incident, shortly before she was admitted to the hospital.
The forensic pediatrician who specialized in child abuse, Dr. Vivanco de Martinez, testified that, based on Doe’s condition, Doe’s injuries were caused by being violently shaken on two occasions. Such injuries included extensive bleeding covering the entire brain, cuts inside the brain, bleeding in the eyes, and rib fractures commonly caused by grabbing a baby’s chest while shaking the baby. Doe’s older rib fractures indicated Doe was shaken on a previous occasion, before the April 26, 2013 incident.
In Dr. Vivanco de Martinez’s opinion, Doe was the victim of severe physical abuse, in which Doe sustained abusive head trauma most likely from acceleration/deceleration forces. There was no possibility Doe’s injuries were caused by falling off the bed. Dr. Vivanco de Martinez further concluded “something happened” to Doe on April 26, 2013, after 2:00 p.m., and before Doe was admitted to the hospital at 5:00 p.m. Dr. Vivanco de Martinez concluded that, based on Doe’s condition upon arrival at the hospital at 5:00 p.m., the incident that caused Doe’s injuries occurred pretty close to the time that Doe became unresponsive, which according to defendant was after 2:00 p.m.
Dr. Vivanco de Martinez further stated it would not have taken a day for Doe to start experiencing her symptoms. Her symptoms of being unresponsive with labored breathing, would have begun almost immediately after she suffered her injuries from severe trauma. Also, with the type of injuries Doe exhibited, such as severe head trauma, she would not have been acting normal after sustaining them. She would not have been eating or drinking throughout the day, as defendant had reported.
Defendant argues that Doe’s injuries could have been caused by someone other than defendant or before Doe was left in his care on April 26, 2013. But there is no reliable supporting evidence of these theories and the overwhelming evidence refutes them. There was strong evidence Doe suffered serious injuries inflicted shortly before the paramedics were called on April 26, 2013. In addition, it was undisputed that Doe was in defendant’s sole care while T.M. was at work the day of the incident. There was no evidence anyone other than defendant had access to Doe or was present at Doe’s home from the time T.M. left the morning of April 26, 2013, until defendant notified T.M. that Doe was unconscious and the paramedics were called.
Furthermore, the trial court appropriately instructed the jury on the limitations of relying on the other domestic violence evidence. It is presumed the jury properly followed the court’s instructions. (Richardson v. Marsh (1987) 481 U.S. 200, 206-207; People v. Sanchez (2001) 26 Cal.4th 834, 852.) Even if evidence of the other domestic violence evidence should not have been introduced, any error in allowing it was harmless.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.

We concur:


MILLER
Acting P. J.


SLOUGH
J.