Opinion
B229024
10-07-2011
THE PEOPLE, Plaintiff and Respondent, v. MARIA MENDEZ, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA325557)
APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed as modified.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
I. BACKGROUND
Following a jury trial, appellant was convicted of assault on a child causing death (Pen. Code, § 273ab) and child abuse (§ 273a, subd. (a)). In connection with the child abuse offense, the jury found appellant caused the child to suffer unjustifiable pain or injury resulting in death. (§ 12022.95.) The jury was declared hopelessly deadlocked on a charge of murder (§ 187, subd. (a)) and that charge was dismissed. The trial court imposed a sentenced of 25 years to life for assault causing the death of a child. Appellant was sentenced to concurrent terms of four years for the child abuse conviction and four years for the related enhancement.
All further statutory references are to the Penal Code.
Appellant raises three contentions: (1) there was insufficient evidence the child's death was a homicide and, even assuming such evidence was presented, there was insufficient evidence appellant was the perpetrator; (2) the trial court did not understand it had the discretion to grant probation on the condition that appellant serve time in county jail; and (3) the trial court should have imposed and stayed the four-year terms related to the child abuse offense and its enhancement.
Although there were differing scientific opinions regarding the cause and timing of death, we view the evidence in the light most favorable to the judgment, and reject appellant's claim regarding the sufficiency of the evidence. A rational trier of fact could have accepted the prosecution evidence and concluded appellant assaulted the child thereby causing his death. We reject appellant's claim regarding the court's misunderstanding of its sentencing discretion because it is not supported by the record. Respondent's concession that the trial court should have imposed and stayed terms related to the remaining offense is accepted. The judgment is therefore modified such that the terms related to child abuse are stayed pursuant to section 654 but, in all other respects, the judgment is affirmed.
II. FACTS
A. Prosecution Case
1. The Family Dynamic
Appellant had 10 children. Among her children were Raquel, Rabecca, Jacqueline, Samuel, Daniel, Rodolpho, and Rosio. In 2005, when Raquel was 15 years old, she met 21-year-old Juan - her soon-to-be boyfriend. Within one year, Raquel became pregnant with Juan's son. Appellant was angry about the pregnancy and wondered how Raquel could have "done that" to appellant. On March 9, 2006, Raquel gave birth to Emmanuel - Juan's son. After Emmanuel was born, appellant spent approximately six months in Mexico.
Due to some overlap in surnames, for the most part, only first names are referenced.
Appellant's husband passed away on August 20, 2006. Appellant became depressed and often stayed indoors with the lights out while crying. Appellant also screamed at and hit Raquel.
In December, 2006, appellant lived with her previously-referenced children as well as Raquel. Her grandchildren, Emmanuel, Mateo, Franky and Ernesto, also lived with her. When Raquel attended high school, Emmanuel was cared for by either Juan, Rabecca or, if Raquel was unable to find another caregiver, appellant. Raquel told a detective that she preferred to send Emmanuel to a childcare facility rather than have her mother watch him because she was concerned about the manner in which appellant treated Emmanuel. When Emmanuel cried, appellant became upset and made remarks such as: "[w]hy is he crying"; "he's a cry baby"; and "[w]hy can't you make him stop crying?"
2. Raquel and Emmanuel Are Locked Out of the House
On December 10, 2006, without appellant's permission, Raquel spent the day with Emmanuel. They went to the movies and had family photographs taken with Juan. When they returned to the home that evening, the house was dark and the front door was locked. Raquel knocked on the door but there was no answer. Appellant told a police officer that she was sad and had slept for most of the day.
Because appellant did not unlock the door, Raquel took Emmanuel to Juan's home. Emmanuel was in a happy mood. Although he had diaper rash, he had no injuries on his face or head. Emmanuel slept well that evening.
3. Emmanuel Falls Off the Bed
At approximately 6:00 a.m. on December 11, 2006, while at Emmanuel and Raquel were in Juan's home, Emmanuel fell approximately 25 inches from the top of a bed to the floor. The fall did not cause any visible injuries to his face or head. Emmanuel was laughing by the time Raquel left for school at approximately 7:00 a.m.
Juan took the baby to work that day because appellant did not want to watch him. Juan worked in the construction industry and was involved in remodeling a kitchen. The owner of the home in which he was working watched the baby while Juan remodeled the kitchen. During that time, Emmanuel played, crawled, and was happy. He had no difficulty breathing and was not congested. Emmanuel had a diaper rash but otherwise appeared healthy and had no visible injuries to his face. Raquel picked up Emmanuel at 4:00 p.m. and, although he seemed "a little sick," he ate, laughed and slept.
4. Emmanuel's Reactive Airway Disease
On December 12, 2006, Raquel had an appointment to meet with a case manager (Marcia Sebastian) at a social services agency. Emmanuel acted like a "regular" baby when he was held by the case manager. Sebastian did not notice any injuries to the baby's face, nose, or head. However, it appeared that Emmanuel had a cold and she recommended he be seen by a doctor.
Later that day, Emmanuel was examined by pediatrician Juventino Villanueva. Emmanuel had no bruising on his head, or abrasion to his nose, and he exhibited no signs of a neurological problem such as lethargy or sleepiness. He laughed during the exam. However, Emmanuel had an ear infection as well as wheezing and a slight crackle in his chest causing the doctor to diagnose him with a mild case of reactive airway disease (RAD). The condition was "very common" in infants, particularly in the fall and winter. Emmanuel's condition improved after one treatment with a nebulizer. Dr. Villanueva prescribed antibiotics for the infection and medication for the RAD. Emanuel ate and slept normally that evening.
5. Emmanuel's Death
Prior to 6:00 a.m., on December 13, 2006, Raquel fed Emmanuel through his bottle. The baby was happy and laughing. He had no injuries. Raquel then turned Emmanuel over to appellant and left for school.
Appellant's 20-year-old son, Samuel, left the home at approximately 7:00 a.m. He was supposed to be going to school, but decided to skip school and spend time with his friend Vidal. By 7:30 a.m. everyone in the home was gone except appellant, three-year-old Mateo and Emmanuel. The three slept until approximately 11:30 a.m.
Samuel and Vidal returned home at approximately 12 noon. Appellant was cleaning the kitchen and Emmanuel was on the living room couch. Samuel picked up Emmanuel, hugged him, kissed him, and placed him back on the couch. Emmanuel had no visible injuries and was not crying. Samuel and Vidal stayed in Samuel's room with the door closed and listened to loud music until they heard appellant screaming between 2:00 and 2:30 p.m.
The men ran out of the bedroom to find appellant holding Emmanuel and screaming. Emmanuel was purple and not breathing. Samuel took the baby from appellant and called 911. That call was placed at 2:10 p.m. Samuel followed the directions of the 911 operator and performed CPR on Emmanuel. When paramedics arrived at 2:14 p.m., Emmanuel was in cardiac arrest and was taken to the hospital.
Appellant told a detective that, after Samuel went to his bedroom, Emmanuel was playful. At 2:00 p.m. she began to clean the house in anticipation of her children arriving home from school. Emmanuel was dancing. He was left unattended for approximately 15 to 20 minutes during which he cried "very hard" as if in pain.
Raquel met appellant at the hospital. She asked appellant what happened but appellant simply had a "blank look" and did not respond to the question. Raquel observed bruises on Emmanuel's face and asked appellant how he sustained those injuries. Appellant reacted to the question by leaving the hospital.
On December 20, 2006, Emmanuel was taken off of life support and passed away. Appellant was present - crying and screaming "my fault" in Spanish.
6. Expert Testimony Regarding Emmanuel's Death
Dr. Carol Berkowitz examined Emmanuel in the emergency room on December 13, 2006. He was not breathing, his heart was not beating, and he had a small amount of blood in an area immediately above his brain. Emmanuel had a bruise on his forehead, a bruise under his right eye, an abrasion on his nose, and petechia (small red spots) on both cheeks of his face. Emmanuel had massive cerebral edema (swelling of the brain) which can be caused by an oxygen depriving or "hypoxic" event such as suffocation or a violent shaking. The hypoxic event is followed by loss of consciousness. Dr. Berkowitz opined that the injury causing the hypoxic event occurred between one and two hours before Emmanuel's 2:14 p.m. cardiac arrest.
Dr. Berkowitz opined Emmanuel died from the application of violent force. He suffered a skull fracture as well as traumatic brain injuries, including massive swelling and bleeding.
The abrasion on Emmanuel's nose was consistent with rubbing a pillow or hand on Emmanuel's face in an effort to stop the baby from resisting suffocation. In order to cause the degree of brain swelling in Emmanuel's head, he would have been deprived of oxygen for two to four minutes.
While at the hospital, Emmanuel's lungs were clear, he was not wheezing and air from a ventilator was moving freely through his lungs. A CT scan and X-ray depicted normal lungs and did not reveal any condition that would have led to respiratory distress.
Dr. Berkowitz opined there was no medical evidence of any respiratory condition that caused Emmanuel's hypoxic event. Additionally, Emmanuel's skull fracture was not caused by violent shaking or the 25-inch fall from the bed. Based on studies, a person is 10 times more likely to die from a lightning strike than from a fall of less than 1.5 meters.
Dr. Yulai Wang conducted an autopsy on Emmanuel. Dr. Wang observed bruising on Emmanuel's forehead and an abrasion on his nose. Emmanuel had a skull fracture on the right side of his head and intracranial bleeding on the right side of his brain. Dr. Wang noted several other areas of hemorrhage near the brain.
Dr. Wang opined Emmanuel's death was a homicide caused by the effects of a traumatic head injury. He could not exclude asphyxia, such as suffocation, as the cause of death given the presence of petechia on Emmanuel when he was in the emergency room. The hypothesis that Emmanuel died from acute respiratory disease was not supported by anything in Emmanuel's medical history and was inconsistent with Dr. Wang's personal observation that there was no indication of any irregularity attributable to respiratory disease in Emmanuel's lungs. Dr. Wang did not believe the 25-inch fall caused the skull fracture because Emmanuel cried after the fall and had no subsequent symptoms such as lethargy or unconsciousness.
B. Defense Case
Dr. Frank Sheridan, the chief medical examiner for San Bernardino County, opined Emmanuel died a "natural death" as a result of a respiratory problem - possibly asthma. Dr. Sheridan's opinion was based on a review of the slides prepared from the autopsy as well as the transcript from the preliminary hearing, medical records, photographs and the autopsy report.
Appellant's daughter, Rabecca, was a visitor to appellant's home in December, 2006. At that time Rabecca was 17 years old. Rabecca believed appellant loved Emmanuel and was "attached" to him. Although appellant experienced normal depression following the death of her husband, she appeared to be motivated to assist her children and did not change her ways after his death. Appellant was not a violent person.
Appellant's daughter Jacqueline was approximately 25 years old in December 2006 and was living in appellant's home with her children. Appellant raised Jacqueline's children. Jacqueline did not see appellant strike any of the children in the family and had no concern that appellant would strike her (Jacqueline's) children. The primary caretakers of Emmanuel were Jacqueline, Raquel and Juan. Appellant's depression following the death of her husband appeared normal and did not change any of appellant's traits.
C. Rebuttal
In an interview with a police detective, appellant indicated that, while Samuel was in his bedroom during the afternoon of the incident, she placed Emmanuel on her stomach. The last thing she did with him before Samuel made the 911 call was to place Emmanuel on the ground and leave him crawling unattended for 15 to 20 minutes.
Dr. Berkowitz explained his disagreement with Dr. Samuel's opinion regarding the cause of Emmanuel's death. In the opinion of Dr. Berkowitz, Emmanuel could not have died from asthma for several reasons: (1) there was no evidence that, prior to the point when Emmanuel stopped breathing, he exhibited signs he was experiencing respiratory difficulties such as rapid breathing, difficulty breathing, or "noisy" breathing; (2) Emmanuel would have been sleepy or lethargic before he stopped breathing; (3) there was an absence of mucous in his lungs; (4) all five of Emmanuel's X-rays as well as the CT scan depicted clear lungs; and (5) the emergency room doctor heard clear lungs with her stethoscope.
II. DISCUSSION
A. Sufficiency of the Evidence
Appellant contends the evidence that there was a homicide and that she was the perpetrator of the homicide was insufficient. However, in so doing, appellant reweighs the testimony of the witnesses, pointing out what she believes to be reasonable inferences demonstrating she did not cause the death of Emmanuel. Such a review of the evidence is inappropriate at this juncture.
'""To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt."' [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 104.) The same standard of review applies even if the prosecution relies on circumstantial evidence. (People v. Scott (2011) 52 Cal.4th 452, 487, citing People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on a different point in People v. Rundle (2008) 43 Cal.4th 76, 151, fn. 21.) The reviewing court is prohibited from reweighing evidence or reassessing a witness's credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 37-38.)
"Section 273ab defines the offense of child abuse homicide. The elements of the offense are: A person, having the care or custody of a child under the age of eight; (2) assaults this child; (3) by means of force that to a reasonable person would be likely to produce great bodily injury; (4) resulting in the child's death.' [Citations.]" (People v. Wyatt (2010) 48 Cal.4th 776, 780, fn. omitted.)
For the most part, this case turned on the opinions of the physicians and the circumstantial evidence that could be gleaned from the testimony of the witnesses. A rational trier of fact could have accepted the opinions of Drs. Berkowitz and Wang that Emmanuel's death was caused by someone who inflicted traumatic injury to the head or caused him to become asphyxiated. The experts explained the injuries suffered, e.g., bruising and abrasion to his face, skull fracture and "massive" brain swelling, supported their opinions. Numerous reasons were given by Drs. Berkowitz and Wang explaining why the expert proffered by the defense, Dr. Sheridan, was incorrect in concluding Emmanuel's death was the result of a respiratory illness or asthma. The jury was entitled to resolve the conflicts in the experts' opinions in favor of the prosecution's experts. (See People v. Lee (2011) 51 Cal.4th 620, 632.)
The jury could have also concluded appellant was the perpetrator of the offense. Her resentment of Emmanuel as a member of her family as well as her anger with him when he cried provided evidence of motive. Because of the way appellant treated Emmanuel, Raquel preferred to send Emmanuel to a childcare facility rather than have appellant watch him. Appellant was the last person seen with Emmanuel and was discovered holding his purple body in her arms. Finally, she admitted at the hospital that she was at fault.
A rational trier of fact could have easily concluded Emmanuel was the victim of a homicide and that appellant was the perpetrator of the crime.
B. The Court's Sentencing Discretion
Appellant argues, even if the record reflects the court understood its discretion to grant probation, it did not understand that it could grant probation on the condition that she serve time in county jail. Her claim lacks merit.
After the verdicts were taken, the trial court stated, and the prosecutor agreed, that the law did not preclude probation. A reasonable inference from the record is that the trial court understood its authority to grant probation.
Because the jury found appellant caused the child to suffer pain or injury resulting in death within the meaning of section 12022.95, appellant was presumptively ineligible for probation. (See § 1203, subd. (e)(3); People v. Lewis (2004) 120 Cal.App.4th 837, 850-854.)
It is true that the trial court never expressly stated it understood it had the discretion to grant probation on the condition that county jail time is served. Nonetheless, we cannot conclude that the court's failure to do so demonstrates it did not understand its discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944-946; People v. Mosley (1997) 53 Cal.App.4th 489, 496-497.) "[I]in light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion. [Citations.]" (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) Appellant's argument that the trial court did not understand its discretion related to a grant of probation is not supported by the record.
C. The Terms Corresponding to Child Abuse Should Be Stayed
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." This provision "prohibits multiple punishment for a single act or an indivisible course of conduct. [Citations.] Whether a defendant's conduct constitutes a single act under section 654 depends on the defendant's intent in violating penal statutes. If the defendant harbors separate though simultaneous objectives in committing the statutory violations, multiple punishment is permissible." (People v. Williams (2009) 170 Cal.App.4th 587, 645.)
Appellant contends, and respondent concedes, the sentence relating to child abuse should be stayed pursuant to section 654. We accept respondent's concession that the evidence does not demonstrate the offenses of child abuse and assault causing death were committed with separate independent objectives. Thus, punishment for the offense of child abuse must be stayed pursuant to section 654. In addition, because punishment for the offense must be stayed, punishment corresponding to the related enhancement must be stayed as well. (See People v. Bracamonte (2003) 106 Cal.App.4th 704, 711, overruled on a different point in People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8.)
III. DISPOSITION
The abstract of judgment is ordered corrected to reflect the terms related to the offense of child abuse and its enhancement are stayed pursuant to Penal Code section 654. A copy of the corrected abstract of judgment shall be forwarded to the Department of Rehabilitation and Corrections. The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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We concur:
TURNER, P. J.
KRIEGLER, J.