Opinion
B205748.
7-15-2009
THE PEOPLE, Plaintiff and Respondent, v. CESAR JOVANY SERVIN, Defendant and Appellant.
Joan Wolff, under appointment by the Court of Appeal, and Seymour I. Amster for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Cesar Servin appeals from the judgment entered following a jury trial in which he was convicted of child abuse and felonious assault, with further findings that he inflicted great bodily injury upon the victim. Defendant was sentenced to state prison for a total of 12 years and contends that the evidence was insufficient to support his conviction. We affirm.
BACKGROUND
As of April 30, 2006, defendant and C.V. were in a long-term relationship. They had recently moved into an apartment in Covina, where they lived with their healthy two-month-old daughter and defendants five-year-old son. Defendant and C.V. were the caretakers of their daughter. On the morning of April 30, C.V. left for work between 7:45 and 8:10 a.m. The two children stayed at home with defendant.
C.V. testified that she spoke with defendant by telephone several times that day. He told her he had gone to the park with the children and that everything was fine. C.V. "clocked out" of work at 3:52 p.m. In a telephone conversation with defendant at that time, he reported that upon returning from the park around 3:00 p.m., he fed the baby and put her in her swing. The baby spit up on herself, following which defendant gave her a bath. In a telephone conversation around 4:30 p.m., defendant reported that the baby felt cold to the touch. C.V. suggested that defendant shut the window and put blankets over the baby.
C.V. went shopping after work and returned home between 6:00 and 6:30 p.m. She checked on the baby, who would not take a bottle, felt limp, and made noises like a moan. After about an hour, C.V. and defendant decided to take the baby to the emergency room.
Medical examination revealed that the baby had suffered massive, irreversible brain injury. Later statements by C.V. and defendant to medical and police personnel established the time line set forth above. Defendant added that he had left the baby on the swing alone with his son for several minutes while defendant went to the bathroom. When defendant returned, the baby had spit up on herself and his son said he was sorry for putting the swing controls on high. Defendant also stated that the baby had been nonresponsive for a short while when she was two weeks old but recovered, and the incident had been reported to the doctor.
The emergency room physician who first saw the baby in West Covina noted that the baby had a decreased level of consciousness and was hemorrhaging on both sides of her skull. The prognosis was poor, and the baby was transferred to the Pediatric Intensive Care Unit at the U.C. Riverside Childrens Hospital.
Dr. Hollie Jackson, a pediatric radiologist, reviewed CAT scans of the babys brain that had been taken on April 30 at 9:45 p.m. Almost all of the tissue in the babys brain was dead. Jackson was of the opinion that the baby had suffered a massive, traumatic event, which caused severe brain edema and hemorrhage. The different colors of blood in the subdural space indicated two separate injuries, one current and the other probably more than a month old. In terms of dating the newer edema, Jackson testified, "Usually with a CAT-scan it takes us — we sometimes can see edema within four to eight hours. Its very rare to see it on four but sometimes we can and — but usually it can be up to 24 hours before we actually can see it on a CAT-scan." For the baby, "because of the time frame that we generally see it could be anywhere between 4, 24 hours or even a day old. I cant really tell you on the CT scan."
Dr. Jackson continued that, with respect to a time line for edema, "once in a blue moon you may be able to see it at four hours, more likely see some very subtle signs at eight hours. Usually with this its going to be 12 to 24 hours when its this bad." Although it is a "possibility" that the edema observed on the CAT scan was "24 to 25 hours" old, the "closest [Jackson could] date to when the edema started" was "anywhere between 4, 24 hours or so."
Pediatric ophthalmologist Dr. Jennifer Simpson was of the opinion that the baby was a victim of "shaken baby syndrome," a non-accidental trauma. The swing on which the baby was sitting could not have caused her injury.
Pediatrician and child abuse specialist Dr. Karen Imagawa was of the opinion that the baby had suffered significant traumatic brain injury consistent with vigorous and violent shaking. Neither the swing nor having been shaken by a five-year-old could have caused the injury. The injury would have occurred after a point in which the baby was behaving normally. If she was cold and could not be aroused from a nap, the injury would have already occurred. "Those symptoms would be consistent with her already having had the traumatic brain injury and again the more severe the injury the quicker the symptoms and usually the symptoms maximize in about four to six hours." The babys injury would cause her to be developmentally disabled.
In defense, evidence was introduced that defendant was a loving and caring father. Testifying in his own behalf, defendant reviewed events of the day, further indicating that a niece had been at the apartment on the morning of April 30 and had left that morning around 8:00 to 8:30 a.m. Defendant asserted that nothing happened to the baby between noon and 4:00 p.m. At that point everyone then took a nap, and when defendant woke up between 4:10 and 4:20, the baby, who was still sleeping, felt cold to the touch. After putting another blanket on the baby, she responded normally as if she did not want to get up. With the baby still sleeping, defendant played video games with his son until C.V. arrived home.
Although defendant testified he had mentioned the niece "in the previous hearing or proceeding," there is nothing in the record on appeal to indicate what he said. Nor does the record contain any evidence regarding the nieces age or size, or indicate when she had arrived at the apartment or what she did there.
DISCUSSION
Defendant contends that the evidence was insufficient to support his conviction because the crimes required proof that the baby was shaken vigorously and jurors were not presented with facts "from which they could infer that [defendant] was the only person who could have injured the child." In support of this contention, defendant relies on testimony that the babys injuries could have been inflicted up to 25 hours before the 9:45 p.m. CAT scan, during which time C.V. and defendants niece had also been in the babys presence. Defendants reliance on this testimony is misplaced.
In reviewing a challenge of the sufficiency of evidence, we "consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319 ; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208.) The California Supreme Court has held, "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
Here, the theoretical possibility that injuries could have been inflicted before C.V.s and the nieces departures from the apartment on April 30 does not translate into a lack of substantial evidence that it was defendant who inflicted the injuries during the lengthy period that he was alone with the baby (and his five-year-old son). Dr. Jackson was of the opinion that at the time of the 9:45 p.m. CAT scan, the babys injuries were between four and 24 hours old. Dr. Imagawa was of the opinion that an injury would have already been inflicted if a baby could not be aroused from an afternoon nap and "the more severe the injury the quicker the symptoms and usually the symptoms maximize in about four to six hours." Based on this evidence, a rational trier of fact could reasonably infer that the injuries to the baby were inflicted by defendant sometime after the morning departure of C.V. and his niece. Accordingly, defendants contention of insufficient evidence must be rejected.
DISPOSITION
The judgment is affirmed.
We concur:
CHANEY, J.
FERNS, J.