People v. Do CA5

Filed 1/26/21 P. v. Do CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F078095 Plaintiff and Respondent, (Super. Ct. No. 1489507) v.

VINCENT H. DO, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Vincent Do was charged with murder and child abuse after a minor in his care suffered a fatal brain injury. He claimed the child suffered the injury during a fall while

hiking. The case proceeded to trial and a jury acquitted him of murder but found him guilty of involuntary manslaughter and child abuse. On appeal, Do raises a single claim alleging the trial court erred in prohibiting evidence of a non-testifying witness’s hearsay statement corroborating Do’s claim about the fall. We affirm. BACKGROUND Charges The Stanislaus County District Attorney charged Do with two crimes: Murder (Pen. Code,1 § 187, subd. (a); count I), and child abuse (§ 273a, subd. (a); count II). Count II included an enhancement for personally inflicting great bodily injury on a child under age five (§ 12022.7, subd. (d)). Trial Evidence Do operated a home for autistic children. According to him, part of his work with the children included hiking and exercise. At some point, he began caring for J., a two- and-a-half-year-old girl. About one week after he began caring for her, J. suffered a serious brain injury resulting in hospitalization and her eventual death. In a statement to law enforcement officers, Do explained that he was holding J.’s hand during a hike at a local park when they both slipped and fell. They first fell backward, then J. stood up and fell forward. He carried her to the car and drove home, where J. fell asleep. Several hours passed and she did not wake up. Do realized he must have underestimated the fall and called 911 for help. Medical personnel transported J. to the hospital but she did not survive. Two witnesses testified and corroborated Do in fact regularly hiked with children. Cell phone records discussed and introduced at trial confirmed Do’s phone was in the park the morning he claimed the fall occurred.