Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Riverside County, Super. Ct. No. RIF 108627, Mark A. Cope, Judge.
McCONNELL, P. J.
Christine Rams appeals her conviction of murder (Pen. Code, § 187), and aggravated assault upon a child causing death (§ 273ab). The court sentenced her to 25 years to life on the felony child assault conviction and stayed the 15-year-to-life sentence on the murder count pursuant to section 654.
All statutory references are to the Penal Code.
Rams contends the evidence is insufficient to support her convictions and her sentence constitutes cruel and unusual punishment. The Attorney General points out that the abstract of judgment contains a clerical error. We agree the abstract of judgment requires correction but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Rams lived with her boyfriend, Neil Heddings. Heddings had custody of his son, Marcus, from a relationship with Susan Moyer. Marcus was born in March 2000. Rams had two children with her husband, Ronald Rams (Ronald). Her younger child, J.R. lived with her and Heddings. Rams and Heddings had a child together in 2002.
On the morning of November 23, 2002, Heddings discovered two and one-half year old Marcus dead. The cause of death was determined to be abusive head trauma. Both Rams and Heddings were charged with murder. The primary issue at trial was when the head trauma occurred and thus whether Rams or Heddings inflicted the injury or whether one of the people who cared for Marcus in the days and weeks preceding his death inflicted the injury.
Heddings was a professional skateboarder, and he and Rams traveled in connection with his profession and skate-boarding business. Heddings arranged with various people to care for Marcus while they traveled, including Janet Rasco. Rasco noticed Marcus gradually became more withdrawn beginning in September 2002, which corresponded with the birth of Rams and Heddings's child. In October 2002, when Rasco and her husband returned Marcus to Heddings and Rams, Marcus started crying "no," did not want to get out of the car seat, tried to escape from her husband's arms and when Marcus finally accepted that he was being taken inside, he "just kind of shut down." Rasco testified that Rams had told her Marcus did not have any toys in the house; instead, Marcus played with toys belonging to Rams's son. Rams thought there was something wrong with Marcus and that he was retarded.
Rasco and her husband cared for Marcus from Friday, November 8, to Monday, November 11. Marcus arrived with a black eye, and Heddings told her he did not know how it had occurred. Marcus was very subdued and lethargic. Initially, Marcus wanted only to have Rasco hold him, which was very unusual. He put his hand to his head and said "ow." He had little scratches all over his body and a bruise behind one of his ears. She had never seen him so sad and hurt. She and her husband discussed calling social services, but decided not to do so because they were afraid that if they did they would never see Marcus again. Over the course of the weekend, Marcus became "much more like himself," with an improved appetite and interest in playing with puzzles and his favorite game.
On Monday, November 11, Rasco brought Marcus to Moyer, as directed by Heddings. Rasco told Moyer that Marcus was not sick, but seemed hurt and sad. Moyer and Marcus seemed happy to see each other.
On November 14, Rasco's son, James Orsborn, picked up Marcus from Moyer. Marcus was happy to see Orsborn. Until early Sunday morning on November 17, Marcus was running around and had a good appetite but then started vomiting as if he had the stomach flu. Orsborn treated Marcus with Pedialyte and Tylenol and consulted with Rasco about whether he should take Marcus to a doctor. By Monday, November 18, Marcus was "pretty much better."
Heddings picked up Marcus on Monday evening. At first, Marcus did not want to leave Orsborn; he "wanted to stay and hang out," he reached and called out to Orsborn and he cried a little bit. Between Monday, November 18 and Saturday, November 23 when Marcus was found dead, Marcus was in the exclusive care of Heddings and Rams.
On Friday, November 22, 2002, about 2:00 p.m., Rams called Ronald. She was crying, and stressed about financial matters as well her new baby and said he needed to take their son, J.R., who was at her parents' home. Ronald told a police officer the day after Marcus died, that Rams had told him Marcus was "driving her crazy," but at trial, he denied Rams had said that. Ronald described Marcus as a generally quiet and lethargic child; he never saw him smile or play but he did see him cry. Ronald had seen bruises and scratches on Marcus's head, back, shoulder, face, knees and elbows and had asked Heddings and Rams about them. They told him that Marcus had fallen. Ronald had never seen Marcus fall in a way that would cause all the injuries he observed and he suspected something else was going on.
At trial, Ronald was asked if Rams had told him Marcus was "driving her nuts." According to a police officer, Ronald stated Rams had said Marcus was "driving her crazy."
On November 23, about 9:00 a.m., Heddings dialed 911 and told the dispatcher Marcus was dead and he had last seen him alive between 10:30 and 11:00 p.m. the night before. When a deputy sheriff arrived a few minutes later, he first saw Rams in the hallway holding an infant. She was not crying or upset and when the deputy asked if the infant was okay, she pointed toward a back bedroom, where Heddings was holding Marcus in his arms. Heddings appeared to be "somewhat shocked." The second deputy sheriff who arrived also described Rams as not appearing to be emotionally upset, while Heddings appeared somber or sad. His eyes were watery and bloodshot as if he had been recently crying and he had a blank stare. Heddings told a deputy sheriff that Marcus had been sick for the past week and said "ouch" whenever anybody touched him. The day before, Marcus had vomited on himself so Rams had given him a bath about 4:30 p.m. and Heddings had last checked on Marcus at about 10:30 p.m. Rams also told a deputy sheriff that Marcus had vomited on himself and she had given him a bath at 4:30 p.m. She said Marcus had fallen in the bathtub and hit his head, but she had not told Heddings about the fall. They had both checked on Marcus periodically from the time of the bath to when they went to bed about 10:30 p.m.
When Heddings and Rams were interviewed on January 27, 2003, both stated that Marcus had vomited early on Friday morning after drinking milk and Heddings had given him a bath. About two hours later, Marcus vomited again and Rams gave him a bath sometime between 10:00 a.m. and noon during which Marcus had fallen. After the fall, Marcus spoke and during the afternoon slept a lot but also visited with Heddings in the office or garage. Rams stated she took a nap for a couple of hours in the early afternoon. Heddings stated he put Marcus to bed at about 4:30 p.m. Rams stated she thought Heddings put Marcus to bed at about 6:00 or 7:00 p.m. They last checked on him at 10:30 p.m. when he and Rams went to bed.
Heddings and Rams were arrested on March 4, 2003 and placed in a patrol car with a tape recorder. Soon thereafter, Rams commented that Heddings had "been acting weird" recently and asked, "Are you in on this?" He denied it. Several times, she urged Heddings not to turn on her, and he said he would not. She then said, "God dude, just because the kid has a couple bruises, I don't understand," expressed concern about what was going to happen to her children and that she would never see them again. She believed they would release Heddings because "[t]hey don't think you did anything." At one point, she stated, "Fuck I told you Neil, we should have fuckin' ran."
The autopsy determined Marcus died from abusive head trauma. He had 10 to 12 areas of bruising inside his scalp randomly distributed and on both sides of his head. The injuries could not have been caused by falling in a bathtub, or by a child of J.R.'s age since children of that age lack sufficient strength to inflict such trauma. It required a fairly significant force to cause the injuries. Children with such abusive head trauma that it leads to death are not able to get up, talk, play or eat after the infliction of the injury. An expert testified Marcus's lethargy and vomiting in the days prior to his death were unrelated to the traumatic head injury and could have been due to the flu, an ear infection or over-eating. The prosecution experts testified the head injury was inflicted no more than two days before Marcus died and most likely occurred sometime after he was given a bath on Friday since a child with that type of injury would not have been able to talk or walk after the infliction of the injury.
Marcus also had some older healing injuries, including bruises on his back and under his left armpit. There was testimony that Marcus's earlier black eye was probably not caused by a fall or by Rams's son swinging a plastic toy phone because substantial force is necessary to cause a black eye in a child. Marcus had been dead for at least two or three hours before the deputy sheriffs arrived.
Heddings and Rams suggested that her son might have caused Marcus's black eye. They said her son used to "whack" Marcus with "stuff," including a plastic toy phone that he swung around by its cord and a "play bat."
The defense experts testified the head trauma did not occur shortly before Marcus died but was at least a week old. Further, Marcus's vomiting, lethargy, crankiness, and hypersensitivity were consistent with a head injury and increasing intracranial pressure.
At trial, Heddings testified Marcus had been sick for several days before he died, had been vomiting and sleeping a lot, and had fallen in the bathtub when Rams gave Marcus a bath between noon and 1:00 p.m. on Friday. Heddings had not seen Marcus fall, but heard the fall as he walked down the hall. He walked into the bathroom and asked Marcus if he was okay. Marcus touched the back of his head and said, "Ow, Daddy." Rams said Marcus had fallen. Heddings walked Marcus back to his room and played with him for a little while before Marcus climbed into bed and went to sleep. Later that afternoon, Marcus came out once after the bath and thereafter Heddings did not see him awake that day. Heddings denied seeing Rams do anything to hurt Marcus and had no suspicion she was doing anything to harm him.
Several witnesses testified Heddings was an honest person and a good father.
Rams did not testify.
DISCUSSION
I
Sufficiency of the Evidence
Rams contends the evidence is insufficient to support her convictions. She points to the conflicting evidence about when the injury occurred, the lack of evidence pinpointing the precise manner in which the fatal injury was inflicted and the lack of witnesses who saw her abuse Marcus. She concludes a finding she committed murder or felony child abuse is based solely on speculation.
When an appellant challenges the sufficiency of the evidence to support a conviction, we do not determine the facts ourselves but examine the entire record in the light favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Guerra (2006) 37 Cal.4th 1067, 1129; People v. Bolden (2002) 29 Cal.4th 515, 553.) Speculation does not constitute substantial evidence. (See People v. Holt (1997) 15 Cal.4th 619, 669 ["An inference is not reasonable if it is based only on speculation"].) We presume the existence of every fact in support of the judgment that the trier of fact could reasonably deduce from the evidence. (People v. Davis (1995) 10 Cal.4th 463, 509; People v. Misa (2006) 140 Cal.App.4th 837, 843.) "It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact." (People v. Tripp (2007) 151 Cal.App.4th 951, 955; People v. Little (2004) 115 Cal.App.4th 766, 771.)
Here, there was substantial evidence of Rams's guilt. An expert testified Marcus's head injury occurred within two days of his death, while Marcus was in the exclusive custody of Rams and Heddings. The jury was entitled to credit this evidence and reject conflicting evidence indicating Marcus's fatal head injury was at least a week old and that Marcus's crankiness, lethargy, vomiting, holding his head and saying "ow" showed a downhill course towards death after infliction of the head injury. This rejection was reasonable particularly in light of the observations of other witnesses. Rasco testified that although Marcus was subdued and lethargic on Friday, November 8, by Monday November 11, Marcus was more like himself, his appetite was improved and he was interested in playing with games and puzzles. Marcus was in a good mood when Moyer picked him up on November 11 and when Orsborn picked him up on November 14. Orsborn described Marcus as being energetic and having a good appetite until early Sunday, November 17, when he started vomiting as if he had the stomach flu. According to Orsborn, Marcus's condition had improved and his appetite had returned by Monday evening when Heddings picked up Marcus. In other words, there was evidence showing that in the week or two before his death Marcus did not exhibit symptoms consistent with a downward slide toward death while he was in the care of other people. Rather, in the care of other people he became generally happy, energetic and had a good appetite except for a short period when he had flu-like symptoms.
Although there were no witnesses who testified to seeing Rams or Heddings abuse Marcus, there was testimony Marcus had injuries that were consistent with child abuse. Rams's husband, Ronald, saw bruises on Marcus's head, back, shoulder and face. He was skeptical of Heddings's and Rams's explanations that Marcus had fallen because Marcus was a "very slow moving child" and was "[a] little bit too slow to do anything really harmful to himself." Ronald had seen Marcus fall but never in such a way that would have caused all the bruises he saw. Ronald suspected something else was going on. Rasco and her husband also saw injuries on Marcus. On November 8, when Heddings brought Marcus to Rasco, Marcus had a black eye. Heddings had no explanation for it. Over the weekend, Rasco found a bruise behind one of Marcus's ears, and a number of small scratches, and heard him say "ow" when he touched his head. She and her husband discussed calling social services but decided not to call because they were afraid they would never see Marcus again.
Additionally, there was testimony that Marcus's behavior was consistent with being physically abused by Rams and Heddings. Rasco testified that Marcus's behavior changed beginning in September 2004, which coincided with the birth of Rams and Heddings' child in the fall of 2004. Marcus became more withdrawn. During a visit in October 2002, Marcus was happy until Rasco and her husband pulled into the driveway of Rams and Heddings's residence. Marcus cried out, "No, no, no, no, no," resisted being removed from his car seat and "just kind of shut down" once it became apparent that he would be returned to Rams and Heddings. Orsborn also described Marcus as being reluctant to return to Heddings and Rams; on November 18, when Heddings was taking Marcus away, Marcus reached out and called to Orsborn.
There was testimony indicating Rams had a negative attitude toward Marcus. Witnesses described Rams as being verbally abusive to Marcus, calling him a "stupid fuck," "ugly fuck," "retarded fuck" or words to that effect. She also called him fat and "nigger." Rams thought there was something wrong with Marcus and that he was retarded. Rams told Rasco that Marcus did not have any toys at their home; he had to play with her son's toys. Heddings acknowledged that at times Rams favored her own son over Marcus. The day before Marcus was found dead, Rams called Ronald. She told him Marcus was driving her crazy. The deputy sheriffs who responded to the scene described Rams as not appearing to be upset. In contrast, many witnesses testified Heddings was very upset about Marcus's death and he was a good father, patient with Marcus, never abused him, and never lost his temper with him.
There was testimony indicating that Rams, rather than Heddings, was with Marcus for much of the day before he was found dead. Heddings testified that during that Friday, he worked most of the day in the garage or his office, and thus Marcus was in Rams's sole care. After the early afternoon bath by Rams, Heddings played with Marcus until he crawled into bed. Heddings then returned to the garage or his office for the rest of the day and never saw Marcus awake again.
Finally, we note there was consciousness of guilt evidence. Rams told the police that Marcus had fallen in the bathtub while she was bathing him. Expert evidence, however, indicated the fatal injury could not have resulted from a fall in the bathtub nor could such a fall have caused his many randomly distributed bruises. A reasonable jury could infer that Rams, aware she had inflicted the head trauma, was attempting to explain it by saying Marcus fell in the bathtub. Additionally, Rams made statements in the back of the police car urging Heddings not to turn on her and complaining about how they had not taken her advice to flee. A reasonable jury could infer from those statements that Rams had inflicted the fatal injury, was urging Heddings not to testify against her, and believed she should have fled to avoid prosecution and imprisonment.
When all the evidence is considered, it constitutes substantial evidence to support the convictions.
II
Cruel and Unusual Punishment
Rams contends the imposition of a 25-year-to-life punishment constituted cruel and unusual punishment.
The constitutional prohibition against cruel and unusual punishment looks to whether a punishment is grossly disproportionate to the crime. (People v. Lewis (2004) 120 Cal.App.4th 837, 855.) The courts consider: (1) the nature of the offense and the offender as compared to the penalty (including the degree of danger presented to society), (2) a comparison of the punishment with other offenses within the state, and (3) a comparison of the punishment with those imposed for the same offense in other jurisdictions. (People v. King (1993) 16 Cal.App.4th 567, 572.)
The courts do not mechanically apply these three factors; even if the comparison of the punishment with other offenses within the state or other jurisdictions suggests a disproportionate sentence, the first factor is dispositive. (People v. King, supra, 16 Cal.App.4th at p. 573.) The factors relevant to the consideration of the first factor (the nature of the offender and the offense) are: the defendant's youth, prior criminality, personal characteristics, state of mind, the danger represented by the defendant to society, the defendant's motive, the extent of the defendant's involvement, and the seriousness of the offense. (People v. Young (1992) 11 Cal.App.4th 1299, 1308; People v. Lewis, supra, 120 Cal.App.4th 837, 856; People v. Hernandez (1985) 169 Cal.App.3d 282, 290.) California statutes imposing more severe punishment on habitual criminals have long withstood constitutional challenge. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135-1137.) "Successful challenges based on proportionality are extremely rare." (People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
Rams does not dispute that the punishment is constitutionally valid when considered in the abstract (see People v. Lewis, supra, 120 Cal.App.4th 837, 856 [holding the 25-year-to-life punishment for section 273ab is not cruel and unusual in the abstract]), but contends it is unconstitutional as applied to her. Relying on factors relevant to the culpability of the defendant, she contends "[a]s to [her] motive and degree of involvement in the crime, the evidence of her involvement . . . is non-existent, and no ill motive was shown." This assertion is based on her theory the evidence was insufficient to support her convictions.
Rams also points to her lack of prior criminal record and to her relatively young age. While Rams may not have a prior criminal record, we note the evidence in the record suggests that Marcus had been abused for at least a period of weeks before his death. Even if Rams did not personally inflict all these injuries, it can be inferred that she was aware of them and, at a minimum, did nothing to protect Marcus from further abuse. As to Rams's age, at the time the offense was committed, Rams was a 23-year-old adult and an experienced mother. Marcus was not the first young child in her care; she has two other children. Finally, given the amount of force that would have been required to cause the traumatic head injury, the number of head injuries, the amount of anger and loss of control involved in the infliction of those injuries, and the evidence of prior physical abuse, we conclude that while the punishment is harsh, it is not disproportionate to her culpability.
III
Abstract of Judgment
As the Attorney General points out the abstract of judgment indicates the sentence for the felony child assault conviction was both life with the possibility of parole and 25 years to life. The sentence for this offense is 25 years to life. The appellate court has inherent power to correct errors and omissions in an abstract of judgment to reflect a defendant's true sentence. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187.) The abstract of judgment should be corrected to reflect the proper sentence.
DISPOSITION
The superior court is directed to correct the abstract of judgment to show the sentence as 25 years to life for the section 273ab conviction and to forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR: NARES, J., O'ROURKE, J.