Opinion
A131198
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. JASON ROBERT COSTELLO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. CR 918304)
Appellant Jason Robert Costello was convicted by jury, inter alia, of felony abuse of a dependent adult in violation of Penal Code section 368, subdivision (b)(1). Costello argues that evidence offered at trial was insufficient as a matter of law to establish either that the victim was a dependent adult within the meaning of the statute or that Costello knew or reasonably should have known that the victim was a dependent adult. We conclude that Costello's conviction is supported by substantial evidence and affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
I. B ACKGROUND
On March 22, 2009, Costello forced his way into the home of Shaunt DeLeon and struck him in the head three times with a closed fist. Costello is about six feet six inches tall and weighs approximately 295 pounds—outweighing DeLeon by about 100 pounds. DeLeon had facial lacerations, chipped teeth, a broken nose, a broken eye socket and a contusion on his left forehead.
On August 5, 2010, a jury found Costello guilty of dependent adult abuse likely to produce great bodily injury or death (§ 368, subd. (b)(1); count I), assault by means of force likely to produce great bodily injury (Former § 245, subd. (a)(1), as amended by Stats. 2004, ch. 494, § 1, p. 4040; count II), and battery resulting in infliction of serious bodily injury (§ 243, subd. (d); count III). The jury also found true allegations that, as to counts I and II, Costello personally inflicted great bodily injury within the meaning of section 12022.7.
Section 368, subdivision (b)(1) provides in relevant part that "[a]ny person who knows or reasonably should know that a person is . . . [a] dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits . . . [a] dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . . [is guilty of a crime]." Section 368, subdivision (h), defines in relevant part a " 'dependent adult' " as "any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities . . . ."
Costello was found not guilty on a fourth count of damage to property (§ 594, subd. (a)). He was sentenced on January 31, 2011, to a state prison term of seven years, consisting of the upper term of four years plus three years for the great bodily injury enhancement for count I. The court imposed and stayed, pursuant to section 654, terms of one year each for counts II and III. In addition to other fines and fees, Costello was ordered to pay victim restitution in the amount of $30,491.52. His timely notice of appeal was filed on February 9, 2011.
Because Costello does not contest his assault and battery convictions on counts II and III, or the jury's great bodily injury findings, we focus on the evidentiary sufficiency of DeLeon's status as a dependent adult and Costello's knowledge of that status.
Evidence of DeLeon's Status as a Dependent Adult
DeLeon and his mother, Ani Soto, testified as to an October 2006 accident in which DeLeon, then a very healthy and active 17-year-old boy, was struck by a car that was moving at about 50 miles per hour. As a result of the accident, DeLeon had numerous operations, MRIs, and CT scans. The back flap of DeLeon's skull had to be removed because it was causing blood clots. He had a titanium bar bolted to his right femur and three titanium bars bolted in his left calf. A shunt had to be placed in his head—a plastic tube that drained brain fluid into his stomach through his neck. DeLeon's injuries affected his balance, coordination, and speech. When DeLeon was first recovering from the accident, he had difficulty sitting up without getting dizzy or nauseous, and Soto had to hold him to assist him with even the most minor of tasks, such as brushing his teeth.
DeLeon described his March 2009 condition in comparison to his condition at trial in August 2010. DeLeon testified that, in March 2009, he was "able to walk around and function somewhat normally. I didn't walk as good as I did now. I know it's still not perfect. You just saw me walk up to the stand. But it was somewhat better, but it was better than right after the accident. [¶] . . . [¶] . . . I had a lot more of a slurred speech. And my walk—my balance was even worse and everything. So everything was—and the back of my head just went straight down because I had no . . . back bone flap, nothing. It just went straight down. And I had a scar this thick, even thicker than I have right now in the back of my head. So it was very visible of all the things, like hearing and seeing, can both tell." The shunt in his head remained in place and "bump[ed] out" visibly from his head. DeLeon showed the jury an area on his head where he indicated the shunt was still visible and confirmed that his hair was approximately the same length in March 2009.
In June 2009, DeLeon underwent a surgery that placed a steel mesh plate in the back of his head. DeLeon said that the surgery had resulted in improvements to his balance and speech, as well as the appearance of the back of his head, that were not present in March 2009. Soto said that with regard to DeLeon's coordination she did not "see much of a difference still yet, you know. Maybe just a tad bit after June. But there's some days that are better and some days, like I said, not, depending on how tired he is. But it's still there. You know, he tries as best as he can to hold on to himself. But that's always going to be there."
Although DeLeon was living in his own apartment with a roommate in March 2009, he continued to have balance and coordination problems. Soto continued to take him to medical and physical therapy appointments, as well as help him with "[c]ooking, laundry, everything." She was at DeLeon's apartment almost every day, sometimes several times a day.
Evidence of Costello's Knowledge of DeLeon's Status
Soto also testified that even if one did not know about the accident, DeLeon had obvious signs of medical issues in March 2009—he had ataxia, a balance problem, and struggled to walk without a walker or a cane. While he was able to drive a car, he could not ride a bicycle. According to Erik Masad, DeLeon told everyone he knew that he had a life-threatening accident a few years before that left him with complications. Masad testified that signs of complications from DeLeon's accident were still "obvious" in March 2009, including his speech, the way he walked and had trouble keeping his balance, and the scars on his head and legs.
Masad knew both DeLeon and Costello and was present at the March 2009 incident. Masad characterized Costello as "just an acquaintance" whom he had known for four or five months prior to the incident. He considered DeLeon friend and had known him for about a year prior to the incident.
DeLeon and Costello had been friends prior to the March 2009 incident. In August 2008, they had met as students at Yuba College. Costello had been to DeLeon's apartment and, on at least two occasions, DeLeon had given Costello a key to enter the apartment. Costello knew DeLeon had been in a car accident and had sustained injuries, but said that he did not know the extent of those injuries. Costello had never accompanied DeLeon to a doctor's appointment, and maintained that DeLeon had not told Costello about the shunt and only briefly described his condition. Costello noticed that DeLeon had coordination problems, but he did not recall DeLeon having balance or coordination problems in March 2009. During cross-examination, Costello maintained that DeLeon's speech was the same at trial as it had been in March 2009, and that DeLeon's physical coordination and walking were also "[p]retty much the same." In response to the prosecutor's question as to whether DeLeon had appeared to have some disabilities, Costello replied, "Yeah. He said that he had something wrong with his leg, so yes." When asked if he observed whether DeLeon walked differently than normal people, Costello replied, "I'd say a little bit, yes." The officer who investigated the March 2009 incident said that Costello admitted that he was aware DeLeon "had medical issues."
DeLeon told the police officer investigating the March 2009 incident that Costello had accompanied him to medical appointments; however, DeLeon testified at trial that Costello had not accompanied him to appointments.
Soto testified that she knew Costello prior to the March 2009 incident, and that she explicitly told Costello about DeLeon's traumatic brain injury, the missing back bone flap and shunt in his head, and the titanium rods in his legs. Soto said she had such a conversation with all of DeLeon's "friends from the beginning, [to] let them know where—how [DeLeon] stands, the capability of [DeLeon] and how fragile [he] is . . . . [Costello] knew how fragile [DeLeon's] situation was. No bone flap in the back of his head, so his head especially . . . is very, very fragile." DeLeon admitted that he had not explicitly told Costello that he was more vulnerable to head injury than others: "Oh, I didn't mention it like that. I mean, like what 19-year-olds are going to go around—what 19-year-old guy like me is going to go around talking about how fragile they are, like an eggshell or something." However, DeLeon said Costello had asked prior to the March 2009 incident "what that thing was in my head that was bumping out." DeLeon told Costello that if the shunt "gets cut, scraped, or anything, that it's really, really dangerous. It could be fatal."
II. DISCUSSION
The standard for review of a claim that a criminal conviction is not supported by sufficient evidence is well settled. "On appeal, ' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence— that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]' [Citation.] In conducting such a review, we ' "presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.]' [Citations.] 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [standard of review same under federal due process clause].) A. DeLeon's Condition in March 2009
Costello argues that evidence was insufficient to establish that DeLeon was a dependent adult within the meaning section 368 at the time he punched DeLeon in the head. Specifically at issue is whether DeLeon had a physical disability or limitation that restricted his "ability to carry out normal activities." (§ 368, subd. (h).) As utilized in section 368, " '[r]estrict' is not synonymous with 'preclude.' A restriction is only a limitation or restraint. [Citation.] Therefore, it is not necessary to prove that the person is incapable of carrying out normal activities or of protecting the person's rights; it is sufficient if the person's ability to do so is limited in some significant way." (People v. Mayte (2008) 158 Cal.App.4th 921, 925 (Mayte).)
In Mayte, evidence that the 60-year-old victim had suffered a massive stroke, was partially paralyzed on her right side, walked with difficulty, usually used cane or walker, had lapses in memory and comprehension, did not drive, and relied on others for assistance with banking and other household tasks was sufficient to establish that she was "dependent adult." (Mayte, supra, 158 Cal.App.4th at pp. 923, 925-926.) Costello contends that "unlike the victim in Mayte, here there was no evidence that DeLeon had any mental impairment that interfered with his ability to comprehend, or to protect his rights. At most, the evidence supports a finding that DeLeon had challenges with balance and coordination." However, section 368 does not require that an individual have both physical and mental impairments, nor does it require proof of an inability to protect one's own rights in addition to restricted activities. Moreover, the prosecution was required to prove that DeLeon's ability to perform normal activities was limited in some significant way, not that DeLeon was precluded from performing such activities.
Evidence regarding DeLeon's condition in March 2009 included DeLeon's physical appearance before the jury. (See Evid. Code, § 140; § 1102; Mayte, supra, 158 Cal.App.4th at p. 925-926 [substantial evidence analysis included consideration of jury's opportunity to personally observe victim at trial]; People v. Smith (1993) 13 Cal.App.4th 1182, 1190 [same].) Costello testified that DeLeon's speech, coordination and walking abilities in court were the same or about the same as they were in March 2009. Thus, while it is true as Costello notes on appeal that the record is not clear as to exactly what "DeLeon's speech or gait was like at trial," the jury clearly had its own first-hand observations of DeLeon in evaluating whether or not normal activities, such as speaking and walking, were limited in some significant way for him in March 2009.
Moreover, testimony was elicited that DeLeon had titanium rods in his legs and ataxia (problems with balance) such that he struggled to walk without a walker or cane and was unable to ride a bicycle. Although DeLeon lived in his own apartment with a roommate, his mother cooked his meals, did his laundry, and checked on him several times a day. Perhaps most significantly, DeLeon lacked a back bone flap in his skull and had a shunt to drain fluid from his brain. It cannot be seriously contended that no significant restriction in normal activities would ensue from such diminished protection of DeLeon's brain and the increased risk of infection or death should the shunt be damaged—particularly given the "challenges with balance and coordination" conceded by Costello. Viewed in the light most favorable to the judgment, the evidence was more than sufficient to support the finding that DeLeon was a dependent adult pursuant to section 368 in March 2009. B. Costello's Knowledge of DeLeon's Condition
Costello argues that even if DeLeon's ability to carry out normal activities was limited in some significant way, evidence was insufficient to establish that Costello had the statutorily required knowledge of such a limitation at the time he punched DeLeon in the head. Section 368, subdivision (b)(1) requires that a defendant "know[] or reasonably should know" that the victim is a dependent adult. This knowledge requirement does not mean that Costello had to know the statutory definition of a dependent adult, but rather that he knew "the facts that affect[ed] the material nature of his conduct" or that he was " 'criminally negligent in failing to know them.' [Citation.]" (Stark v. Superior Court (2011) 52 Cal.4th 368, 398 & fn. 10.) " 'Criminal negligence refers to " 'a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless.' " [Citations.]' [Citation]" (Id. at p. 399.)
It should be noted that the " 'reasonably should have known' formulation departs somewhat from the usual description of criminal negligence[,] . . . justifying the inference the Legislature intended guilt to be established by proof of a mental state slightly lower than ordinarily required for criminal liability." (In re Jorge M. (2000) 23 Cal.4th 866, 887-888, fn. 11 [describing the required scienter for an offense requiring proof that a defendant knew or reasonably should have known of a firearm's characteristics as an assault weapon]; see also Stark v. Superior Court, at p. 398, fn. 11.) We need not decide whether a lower scienter applies in this case because we conclude the evidence was sufficient to establish that Costello, at a minimum, was criminally negligent in failing to know normal activities were limited in some significant way for DeLeon.
Costello argues that he did not have reason to know of DeLeon's limitations because they had met as students at Yuba College, and because DeLeon lived in an apartment with just a roommate rather than a live-in caretaker or other aide to assist him in daily tasks. But DeLeon and Costello were not mere acquaintances who had met in passing. Rather, they had been friends for about seven months prior to the March 2009 incident. According to a mutual acquaintance, Masad, DeLeon told everyone he knew that he had a life-threatening accident a few years before that left him with complications. Costello admitted in his own testimony that he not only knew DeLeon had sustained injuries in a car accident, but also that he had noticed DeLeon had coordination problems and appeared to have some disabilities. Costello also admitted to the investigating officer in March 2009 that he was aware DeLeon "had medical issues." While it is true that the record is not entirely clear as to what Costello actually knew about Soto's ongoing care of DeLeon, ample evidence was presented to support a finding that Costello either did know, or was grossly negligent or reckless in failing to know, that DeLeon's activities were limited in some significant way given DeLeon's obvious appearance and what Costello had been told about DeLeon's condition.
As noted ante, the jury also had its own first-hand observations of DeLeon in evaluating what could have been known about his condition in March 2009, despite whatever improvements may have resulted from the June 2009 surgery. Additionally, DeLeon, Soto, and Masad all testified that the extent of DeLeon's complications from the accident were still "obvious" in March 2009, including his speech, the way he walked and had trouble keeping his balance, and the scars on his head and legs. During his testimony, DeLeon said "the back of my head just went straight down because I had no . . . back bone flap, nothing. It just went straight down. And I had a scar this thick, even thicker than I have right now in the back of my head. So it was very visible of all the things, like hearing and seeing, can both tell." DeLeon showed the jury an area on his head where he indicated the shunt was still "bump[ed] out" visibly from his head, and said that Costello had asked about it prior to the March 2009 incident.
While Costello maintained that DeLeon only told him briefly about his condition and did not tell him about the shunt, DeLeon testified that he had specifically informed Costello about the shunt and the potentially life-threatening consequences should the shunt be damaged in any way. Soto also testified that she had explicitly told Costello about DeLeon's extreme fragility and vulnerability to head injury due to the traumatic brain injury, missing back bone flap and shunt in his head, and titanium rods in his legs. Viewed in the light most favorable to the judgment, the evidence was sufficient to support the jury's finding that Costello knew or reasonably should have known DeLeon was a dependent adult at the time Costello punched DeLeon in the head.
III. DISPOSITION
The judgment is affirmed.
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Bruiniers, J.
We concur: _____________
Simons, Acting P. J.
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Needham, J.