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People v. Cedillo

California Court of Appeals, Fourth District, Second Division
Jul 22, 2008
No. E040986 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF102129, Richard Todd Fields, Judge.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Barry Carlton, Supervising Deputy Attorney General, for Plaintiff and Respondent.


OPINION

Gaut J.

1. Introduction

All statutory references are to the Penal Code unless stated otherwise.

A jury convicted defendant of the second degree murder of his infant daughter and the related charge of assault on a child causing death. (§§ 187, subd. (a), and 273ab.) The court stayed the sentence on count 1 and sentenced defendant to an indeterminate term of 25 years to life on count 2.

Defendant’s appeal raises issues of instructional and prosecutorial error and juror misconduct. Defendant further urges that his sentence of 25 years to life constitutes cruel and unusual punishment. We reject defendant’s contentions and affirm the judgment.

2. Facts

Defendant and Yvette Martinez were the parents of Audryana, the victim, who was born on June 3, 2001. They all lived with Martinez’s mother, Rosemary Chacon, after Audryana was first discharged from the hospital. The child was premature, medically fragile, required supplemental oxygen, and exhibited developmental delays. Defendant and Martinez were given cardiopulmonary resuscitation (CPR) training and taught to shake the baby’s limbs if she turned blue or stopped breathing.

Defendant was born in November 1984. He was 16 years old when Adryana was born and seventeen years old on the date of the offenses. Martinez was 20 years old when the baby was born.

After a disagreement with Chacon, defendant, Martinez, and the baby moved in with defendant’s mother and then, in November 2001, to their own apartment. Martinez worked while defendant supervised Audryana and Martinez’s three-year-old son, N., and managed the household.

Martinez testified that, on the morning of February 19, 2002, the baby was awake and fine. Martinez had changed her diaper and given her a bottle before she left for work. Defendant and N. were still asleep. Between 10:00 and 11:00 a.m., Martinez called her aunt, Frances Magana, and asked her to tell defendant she would be late.

Magana testified she visited the apartment and played some with Audryana who was on her back in the playpen.

Martinez returned home about 4:15 p.m. When she honked the horn to announce her return, defendant came running out with Audryana wrapped in a blanket. The baby was blue and her body was cold and limp. Defendant insisted they go to the hospital and Martinez drove them there while he administered CPR.

Defendant offered several versions of what occurred. Defendant told Martinez he had been in the shower and N. had knocked on the door to say Audryana was crying. He had fixed her a bottle and she spit up. While he tried to fix another bottle, he heard her choking. She stopped breathing. He panicked and tried to perform CPR. He placed her in the tub and put water on her head. She had been unresponsive for only a few minutes before Martinez arrived.

In his police interview, defendant first claimed Magana had come over at 10:00 a.m. about 30 minutes after Audryana had awakened. After Magana left, defendant played with N. and the baby fell asleep. At 10:30, he put her in her bassinet and started to take a shower but N. told him Audryana was crying. She was spitting up and having trouble breathing. Martinez arrived home at 4:15 p.m.

Later, defendant said that, when Martinez left for work, he and the children slept until Aunt Magana arrived at 11:30 a.m. Then Audryana slept in her bassinet again while defendant played video games with N. until 1:15 p.m. Defendant took a one-hour shower. At 2:45 p.m. N. advised him that Audryana was crying so he prepared a bottle. At 3:00 p.m., she began to have problems. He put her head in water and tried to perform CPR. He tried to revive her for about 75 minutes until Martinez’s return.

Defendant told Dr. Rebecca Piantini, a forensic pediatrician who specializes in child abuse, that Audryana had behaved normally when he gave her a bottle at 9:00 or 10:00 a.m. When he showered at 3:00 or 3:30 p.m., N. interrupted to tell him the baby was crying. He prepared a bottle but she began vomiting. When he picked her up, she twitched, became limp, and stopped breathing. He thought she was choking and he began CPR.

After defendant was placed under arrest, Martinez was allowed to visit him in the interview room. While they were being videotaped, he admitted he had shaken Audryana “but not really hard.”

In more than 2,000 pages of testimony, the medical evidence focused on two main theories of how the baby died. The prosecution posited that defendant shook her violently, causing acceleration/deceleration injuries. The defense experts speculated that death was caused by a laryngospasm, resulting in brain death and bleeding in the brain, which also may have been caused by old injuries from the baby’s prematurity.

“Laryngospasm” is an uncontrolled/involuntary muscular contraction or spasm of the laryngeal cords. The condition typically lasts less than 30 or 60 seconds, and causes a partial blocking of breathing in, while breathing out remains easier. It may be triggered when the vocal cords or the area of the trachea below the cords detects the entry of water, mucus, blood, or other substance.

Dr. Stephen Trenkle, a coroner’s pathologist, testified that Audryana died from head injuries. Dr. Gary Huffaker, a pediatric ophthalmologist, testified that Audryana displayed retinothapy, a common condition in premature babies caused by too much oxygen. By September 2001, the condition had regressed, meaning it was almost healed. Dr. Jennifer Dunbar, another pediatric ophthalmologist, believed Audryana’s extensive retinal hemorrhages were caused by an acceleration/deceleration type of injury, characterized as “shaken-baby” syndrome. The jury watched a video depicting shaken-baby syndrome. Dr. Piantini concluded Audryana was a healthy baby before her death but she sustained abusive head trauma based on findings of a subdural hemorrhage, subarachnoid hemorrhage, and massive retinal hemorrhage. Dr. Alexander Zouros, a pediatric neurosurgeon, testified the baby’s injuries were classic for abusive, nonaccidental trauma and could not have been caused by hypoic (no oxygen) ischemic (no blood flow) types of events.

The defense’s medical expert witnesses posited the cause of death was natural and related to her prematurity. They concluded choking could have been caused by hypoxia or developmental delays and the medical evidence did not support a finding of abusive head trauma.

3. Instructional Error

Defendant urges the court erred by not giving an instruction on the offense of misdemeanor child abuse: “(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.” (§ 273a, subd. (b).)

Defendant’s argument involves only misdemeanor child abuse (§ 273a, subd. (b)) not felony child abuse. (§ 273, subd. (a).)

Defendant claims section 273a, subdivision (b), is a lesser offense of section 273ab: “Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 25 years to life.”

Misdemeanor child abuse is not a lesser offense of assault on a child causing death. The formula has been expressed as follows: “‘[W]here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’” (People v. Pearson (1986) 42 Cal.3d 351, 355.) Applying the formula here, we cannot assert that assault on a child causing death cannot be committed without also committing misdemeanor child abuse. The assault offense occurs “by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, . . .” (§ 273ab.) The abuse offense excludes “circumstances or conditions . . . likely to produce great bodily harm or death.” (§ 273a, subd. (b).) Under the statutory elements test, abuse would be included in assault only if assault could not be committed without committing each of the elements of abuse—an outcome which is not possible under the language of these two statutes. (People v. Lopez (1998) 19 Cal.4th 282, 288-289.) Similarly, under the accusatory pleadings test, abuse may be a lesser included offense to assault only if assault is pleaded in such a way that, if committed as charged, abuse is necessarily committed—again an impossible outcome here. (Ibid.) The crimes are independent because neither statute is included within the other.

Furthermore, any error was harmless (People v. Breverman (1998) 19 Cal.4th 142, 168-178) because the jury received other instructions on forms of assault that are the functional equivalent of section 273a, subdivision (b). (§§ 240, 245, subd. (a)(1).) Because the jury rejected the other possible assault offenses, it is not reasonably likely defendant would have obtained a more favorable result if the jury had been instructed about misdemeanor child abuse.

4. Prosecutorial Error

Defendant enumerates many instances of prosecutorial error which we shall consider in turn.

We are guided by well-known legal principles: “A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.)” (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Brown (2003) 31 Cal.4th 518, 553-554; People v. Samayoa (1997) 15 Cal.4th 795, 841, 843; People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) We also presume the jury followed the court’s admonitions not to regard the prosecutor’s argument as evidence. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

The first instance of error identified by defendant was the prosecutor’s comment in closing argument about the presumption of innocence that applies to a criminal defendant. She said: “[D]efendant . . . was always entitled to a presumption of innocence until he is proven guilty beyond a reasonable doubt. That meant from the very beginning you promised, and it was expected of each of you, that you would presume him to be innocent throughout the trial, throughout all this evidence until it is proven otherwise. That means that no matter how guilty that man is that sits there, he’s entitled to that presumption.” The court overruled defense counsel’s objection. The prosecutor continued, “Make the prosecution prove it. And that includes when you are guiltier than sin.”

Defendant asserts the foregoing argument by the prosecutor constituted an improper shifting of the burden of proof to defendant to show he was innocent. (Sandstrom v. Montana (1979) 442 U.S. 510, 512, 520-524.) We disagree. In our view, the prosecutor did nothing more than explain, albeit somewhat clumsily, the meaning of presumption of innocence and the concept of reasonable doubt. When read in context, it is abundantly clear the prosecutor did not argue that defendant had the burden of proving he was innocent. Similarly, it was not improper for the prosecutor to mention defense counsel never tried to rebut the opinion of Dr. Dunbar, a chief prosecution witness.

Next, defendant complains that the prosecutor attacked the credibility of the defense’s expert witnesses by insinuating they were hired guns “paid to be here.” The prosecutor particularly criticized the “infamous Dr. Uscinski” because he would not draw a diagram illustrating his testimony. Such argument is acceptable if validly based on the evidence. (People v. Earp (1999) 20 Cal.4th 826, 863 and People v. Edelbacher (1989) 47 Cal.3d 983, 1090.) It was true the defense experts were being paid and Dr. Uscinski refused to draw a diagram. The prosecutor had the right “‘vigorously [to] argue his case and is not limited to “Chesterfieldian politeness.”’ [Citation.]” (People v. Fosselman (1983) 33 Cal.3d 572, 580)—even to the point of accusing defense witnesses of dissembling. (Earp, supra; Edelbacher, supra.)

Defendant further contends that the prosecutor improperly expressed her own opinion about why defendant fatally injured a fussy, crying baby. (People v. Bain (1971) 5 Cal.3d 839, 848-849.) The court sustained a defense objection and admonished the jury. We presume the jury heeded the court. (People v. Hamilton (1988) 45 Cal.3d 351, 385.) Furthermore, we conclude it was unlikely the jury may have misapplied or misconstrued the prosecutor’s effort to explain defendant’s motive or state of mind without actually testifying herself. (People v. Frye (1998) 18 Cal.4th 894, 972.)

Defendant also maintains the prosecutor improperly vouched for her own expert witnesses. However, her comments about Dr. Dunbar never having testified before and having consulted with Dr. Rouser, the treating physician, who had been subpoenaed by the defense, were based on the record and “cannot be characterized as improper vouching.” (People v. Frye, supra, 18 Cal.4th at p. 971, citing People v. Medina (1995) 11 Cal.4th 694, 757 and People v. Williams (1997) 16 Cal.4th 153, 256.)

Next defendant objects to the prosecutor’s Power Point presentation using the phrase “markers of guilt,” which the court instructed the jury to disregard. Defendant’s argument on this point is undeveloped but is resolved by the legal presumption that the jury followed the court’s admonition. (People v. Edelbacher, supra, 47 Cal.3d at p. 1030.)

The prosecutor offered a somewhat opaque rebuttal, calling defense counsel’s closing argument a “Pretty shade of purple. You’re not going to find these words anywhere in the law. Nice, you can look in the dictionary and get a bunch of possibilities that you can think of. That’s all the words you might use in the jury room.” The court sustained a defense objection and instructed the jury it could not consult a dictionary. The prosecutor also argued the jury could not be sympathetic toward defendant because he was only 17 years old when he committed the offense.

To the degree the jury could even understand the prosecutor’s “shade of purple” comment, we regard her effort to be sarcastic as proper argument. (People v. Thornton (2007) 41 Cal.4th 391, 456.) We also agree the prosecutor could counter the defense argument by asserting defendant was not entitled to sympathy because of his age. (Ibid.) The comment about consulting a dictionary was cured by the court’s admonishment.

Defendant again accuses the prosecutor of improper vouching when she read a lengthy excerpt of medical testimony, followed by the statement “I believe there has [sic] been so many misrepresentations throughout this trial that Audryana did not suffer spinal cord injury or nerve damage. Yes, she did.” Defendant also characterizes the foregoing as improperly maligning the defense. (People v. Bain, supra, 5 Cal.3d at p. 847.) In this context, however, the phrase “I believe” was not an expression of personal opinion or an attack upon defense counsel but was argument based on the evidence. (People v. Farnam (2002) 28 Cal.4th 107, 170; People v. Thornton, supra, 41 Cal.4th at pp. 454-456.)

Defendant contends that all these instances, “considered together, established a pattern of misconduct that warrants reversal. His claims fail for want of a sufficient factual predicate: there was no misconduct.” (People v. Thornton, supra, 41 Cal.4th at p. 460.)

5. Juror Misconduct

Rick Cobb was a Riverside police detective who investigated the case and who testified on the 14th and 15th days of trial. On day 25 of the trial, Cobb had a brief encounter at a local gym with one of the jurors. They recognized each other from the trial and talked briefly about the gym being crowded. They did not discuss the trial and the juror told the court he was not influenced by the encounter. On day 35 of trial, the first day of deliberations, the juror was excused because of a prepaid vacation. The reconstituted jury began deliberations again and eventually reached a verdict. Defendant asserts this brief, innocuous contact between the detective and the excused juror was prejudicial error. We disagree.

We recognize “[a] defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. [Citations.] A defendant is ‘entitled to be tried by 12, not 11, impartial and unprejudiced jurors. “Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.” [Citations.]’ [Citations.] [¶] Juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. [Citations.] ‘The requirement that a jury’s verdict “must be based upon the evidence developed at the trial” goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. . . . [¶] In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the “evidence developed” against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.’ [Citation.] As the United States Supreme Court has explained: ‘Due process means a jury capable and willing to decide the case solely on the evidence before it . . . .’) [Citations.]” (People v. Nesler (1997) 16 Cal.4th 561, 578.)

The present case does not involve the prejudicial effect of out-of-court information upon the jury. The subject juror did not receive information about defendant or the case from extraneous sources. He promptly and candidly disclosed to the court the circumstances of the encounter with the detective. He certainly did not share outside information with the other jurors, either before he was excused from the jury or after the jury concluded its deliberations without him. The trial court properly decided there was no juror misconduct and no substantial likelihood of juror bias. (People v. Nesler, supra, 16 Cal.4th at pp. 578-579, 582-583; In re Carpenter (1995) 9 Cal.4th 634, 650-651, 653-654; People v. Danks (2004) 32 Cal.4th 269, 307.)

6. Cruel and Unusual Punishment

As provided by section 273ab, the court sentenced defendant to a prison term of 25 years to life. Defendant contends the particular circumstances of this case make the sentence cruel and unusual punishment as applied to him. (People v. Dillon (1983) 34 Cal.3d 441.)

In a similar case involving a youthful defendant, the court rejected a cruel and unusual claim: “Section 273ab describes a very serious offense. Not only does the crime require the killing of an extremely vulnerable child, it requires an assaultive act of great violence by one charged with the child’s care.

“Central to appellant’s claim his punishment is cruel or unusual is that it is the same as the punishment for first degree murder when, he contends, his offense was less serious and more like assault by means of force likely to cause great bodily injury (§ 245, subd. (a)) or involuntary manslaughter (§ 192, subd. (b)). While it is true section 273ab does not require an intent to kill or any other form of malice aforethought, neither does first degree felony murder [citation] and neither does the three strikes law. [Citation.]

“The Legislature could reasonably conclude given the particular vulnerability of the victim, the relationship of the victim to the defendant, the violent and purposeful nature of the act involved and the fact a death results, the crime described in section 273ab is a very serious one and a term of 25 years to life was appropriate.” (People v. Lewis (2004) 120 Cal.App.4th 837, 855-856; People v. Norman (2003) 109 Cal.App.4th 221, 230-231.)

As applied to the Lewis defendant, the court said: “Appellant is a relatively young man without a criminal record. Still, the amount of force required to cause four-month-old Jace’s fatal head injuries and the amount of anger and loss of control that led to the assault all lead us to conclude while the punishment imposed is harsh, it is not disproportionate to appellant’s culpability.” (People v. Lewis, supra, 120 Cal.App.4th at p. 856.) Defendant makes no effort to address Lewis. But the same analysis operates here where defendant inflicted violent fatal injuries on his baby daughter. We reject the claim of cruel and unusual punishment.

7. Disposition

We affirm the judgment.

We concur: Ramirez, P. J., McKinster, J.


Summaries of

People v. Cedillo

California Court of Appeals, Fourth District, Second Division
Jul 22, 2008
No. E040986 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Cedillo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANNY RAY CEDILLO, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 22, 2008

Citations

No. E040986 (Cal. Ct. App. Jul. 22, 2008)