Opinion
E070591
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. MARCUS MICHAEL RAZARIO, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FBA1100585) OPINION APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda, Judge. Affirmed. Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Marcus Michael Razario beat-up his 85-year-old father, Michael Ruffalo, because defendant believed his father was interfering in defendant's child custody proceedings. Defendant's mother, Ruth Ruffalo, was present and used a taser on Michael because she claimed to have been abused by him for years. Defendant and Ruth left Michael in his room with broken bones and blood splattered throughout the room for several hours. Police found him in this condition when they arrived to do a welfare check. Michael was taken to the hospital with a traumatic brain injury but began to recover. He was transferred to a rehabilitation facility where he contracted an infection and died.
We refer to the Ruffalos by their first names since they share the same last name.
Defendant was found guilty of first degree murder (Pen. Code, §187; count 1); torture (§ 206; count 2); elder abuse (§ 368, subd. (b)(1); count 3); and false imprisonment of an elder adult (§ 368, subd. (f); count 4). The jury also found true the special allegations for counts 3 and 4 that defendant had personally inflicted great bodily injury upon Michael (§ 12022.7, subd. (c)). Defendant was sentenced to state prison for the indeterminate term of 25 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was originally charged in September 2011 and the first amended information was filed on January 10, 2014. Defendant sought numerous continuances, and the trial did not commence until August 2017. Defendant was tried with Ruth and she was convicted of the same charges but she is not a subject of the instant appeal.
On appeal, defendant claims (1) the trial court abused its discretion by admitting the expert testimony of a doctor as to cause of death; (2) insufficient evidence was presented to support that defendant's actions were the proximate cause of Michael's death as required by the causation element of the murder statute; and (3) there was insufficient evidence presented to support his conviction of torture.
FACTUAL AND PROCEDURAL HISTORY
A. BEATING OF MICHAEL
Michele Wagstaff and Gina Samorajski were sisters; Michael and Ruth Ruffalo were their parents; and defendant was their brother. Michael and Ruth lived on Dryden Street in Barstow and defendant had lived with them since 2009. Wagstaff did not speak with Ruth but was very close to Michael. In 2011, Michael was 85 years old. He had worked for railroad companies until he was 67 years old. He had been in the Marines and served in World War II and the Korean War. He had been shot four times while in the service.
As Michael got older, he had several health problems. In 1997, he had colon cancer and had to have part of his colon removed. He had adult onset diabetes. He had bladder cancer in 2006 and had to have his bladder removed. A urostomy bag was attached in order to drain his urine.
In 2011, Wagstaff lived a couple hours away from Michael but called him every morning. Samorajski also called Michael every morning. On September 19, 2011, around 7:00 a.m., Wagstaff tried calling Michael and he finally picked up after she called him four times. His voice was muffled and she could not understand him. Samorajski also called Michael that morning and could not understand him because he was mumbling. Michael told Samorajski that he was sick but she knew that he was not sick. She asked if she should call to have someone check on him and he told her yes. She called the police.
Ruth called Wagstaff and assured her that nothing was wrong with Michael. She told Wagstaff that Michael and defendant had gotten into a fight but Michael was fine. Ruth told her that Michael got a bloody nose when he tried to get out of bed that morning. Defendant got on the phone and told Wagstaff she should not call the police because Michael had pulled a gun on them and he would be arrested. Wagstaff responded it was too late. Defendant screamed at her and she hung up.
Samorajski drove to Michael's house and when she arrived police and an ambulance were there. Michael was taken out of the house on a gurney. Samorajski saw that he had been beaten; it was the worst beating she had ever seen.
Wagstaff saw Michael at the hospital and he was "beaten to a pulp." Samorajski visited Michael for the 10 days he was in the hospital. There was a profound difference between Michael before and after the injuries. Michael first was moved from the ER to a trauma unit. He was then sent to a rehabilitation center. Before going to the rehabilitation center, he was coherent but in a lot of pain. While at the rehabilitation center, he was still weak and in pain. He could not eat because he could not swallow. Michael eventually went into a coma. Samorajski and Wagstaff made the decision to take Michael off life support.
On September 19, 2011, at around 7:24 a.m., San Bernardino County Sheriff's Department Deputy James Halterman received a call to do a welfare check at the Dryden Street house. Ruth answered the door and defendant was right behind her. Deputy Halterman was given permission to enter Michael's bedroom. Michael was laying on the bed. His face was severely beaten and Deputy Halterman called for medical aid. Michael was barely able to speak. He appeared to be in severe pain. He had bruises on his arms and chest.
Deputy Halterman observed blood and bodily fluids all over the bed. There was blood splatter on the walls and ceiling. Defendant had scratches on his hands, chest and on his face. Defendant's knuckles were red and swollen. During a search of the house, Deputy Halterman found four rifles and a pistol. The pistol was in defendant's room and was loaded. There was no blood except for in Michael's room. Deputy Halterman returned to the house later that evening to arrest defendant and told Ruth that Michael might die. She said she could not shed a tear because she had been physically and mentally beaten by Michael for 61 years.
Deputy Halterman interviewed defendant. Defendant indicated that at around midnight, defendant and Ruth had gone to Michael's room because they were looking for their new puppy. Michael said something to Ruth that upset her. At that point, they confronted him with recordings they had been making of his telephone calls by using a recording device on the phone. They started playing the recordings. Defendant threatened to play them for their family and friends as Michael had said negative things about everyone. Michael jumped up and tried to wrestle the recorder away from defendant. Defendant ran away and hid the recorder. Michael retrieved a gun and started yelling at Ruth. He threatened to shoot them both if they did not give him the recorder.
Defendant charged at Michael. Defendant and Michael fell down on the bed. Defendant hit Michael in the face with his hands and elbows to get him to drop the gun; defendant hit Michael approximately 20 to 25 times. Michael hit defendant back but did not hit his face. Defendant was laying on top of Michael at some point. Defendant was on top of Michael trying to get the gun away when Ruth tasered Michael and he let go of the gun. Defendant grabbed the gun and put it in his room, being careful to use a tissue so as to not get his fingerprints on it.
Ruth and defendant told Michael he was not going to get out of what he said on the tapes. Defendant sat on top of Michael for a long time because he was afraid to let him up in case he had another gun. He "backhanded" Michael several times in the face while they were talking because Michael lied. Defendant accused Michael of plotting with Samorajski to keep him away from his children. Eventually they left Michael, telling him if he called the police, he was going to be arrested for pulling a gun on them.
Ruth and defendant went to bed but expected Samorajski and Wagstaff to call in the morning. Defendant told Michael that if he told them what was going on that Michael would be arrested. They also wanted him to tell his sisters that what he had been saying about defendant were lies.
San Bernardino County Sheriff's Detective Darin Lansdown interviewed Ruth at the Dryden Street house. Ruth told Detective Lansdown that she had been recording conversations between Michael and Samorajski to find out what he was saying about her and defendant.
The fight between Michael and defendant occurred around 3:00 a.m.; the police arrived at 7:30 a.m. She admitted she used a Taser, which she had bought for protection, on Michael. He was laying on the bed and she used it on his legs numerous times. Prior to the altercation between defendant and Michael, Ruth had obtained a restraining order against Michael because she was planning on filing for a divorce. However, Michael was allowed to stay in the house. Michael had pulled a gun on defendant and defendant took it away. They had been fighting about Michael's phone calls wherein he said bad things about defendant and Ruth. They were fist fighting. After she used the taser, the fighting stopped. She got Michael a towel because he was bleeding from his nose. She then tried to go to sleep.
Detective Lansdown went to the hospital and spoke with Michael. Michael had injuries on his legs consistent with being tasered. Michael appeared to be in a lot of pain. The pistol found could not be fingerprinted because it might have been touched after it was found.
Carolyn Wood lived next door to Michael, Ruth and defendant in Barstow. Ruth went over to Wood's house two or three days after the police took Michael to the hospital. She told Wood that she and Michael were getting a divorce and she had control over their finances. She said that she had a restraining order against him but he would not get out of the house. She was afraid of him. Wood asked Ruth why she did not leave if she had their money and Ruth never responded.
Wood asked Ruth why she let defendant beat up Michael. Ruth told her it was all "lies." Wood asked her if she allowed defendant to beat Michael because she was unhappy in her marriage and she told Wood that defendant was having trouble getting custody of his children from his ex-wife. Ruth accused Michael of being a bigot and calling her names. She was mentally and physically abused by him. Wood asked Ruth how she got so close to Michael to taser him if he was holding a gun and she had no response.
B. EXPERT TESTIMONY REGARDING MICHAEL'S INJURIES
Michael was brought into the ER at Loma Linda University Medical Center at 9:10 a.m. on September 19, 2011. He had bruising on his face. He was awake but did not remember how he got his injuries. Michael had a urostomy bag. Michael was able to breathe on his own. He had blood on his face and head. His medical records showed he had diabetes requiring insulin, hypertension and had a pacemaker implanted. His glucose level was up, likely due to the trauma.
Michael had hazy vision and he had hemorrhaging in his left eye due to a broken orbital bone. He also complained his chest hurt to the touch. Michael had taser marks on the back of his legs. He also had rib and sternum fractures. Michael was alert and oriented to time, place and person. As the day progressed, Michael began to recall more of the events that resulted in his injuries. Michael did not have an infection when he arrived in the ER.
Dr. Scott Gaspard was a trauma surgeon and he treated Michael in the ER. He noted that Michael had a traumatic brain injury, which caused a loss of consciousness. He had bleeding in his brain and swelling on the left side of his brain. In Dr. Gaspard's experience, a person with these injuries would have a difficult time getting back to normal living. Michael was sent to a rehabilitation center to ensure that he was capable of taking care of himself when he was sent home. He was given an antibiotic before going to the rehabilitation center because of his surgery. Michael's vital signs were normal when he went to the rehabilitation center.
Dr. Dipika Pandit was doing her residency at Loma Linda and treated Michael on September 26, 2011, while he was in the rehabilitation center. Michael had been diagnosed by another doctor the prior day with a urinary tract infection (UTI). The signs he exhibited for a UTI were that his urine was cloudy, and there were white blood cells and many bacteria present in his urine. However, these symptoms were not conclusive and further laboratory tests were required to definitively determine he had a UTI. He had been prescribed antibiotics specific for a UTI infection. Dr. Pandit ordered new antibiotics for general infection. There was no apparent infection around his urostomy bag. Dr. Pandit was uncertain of the source of Michael's infection. Michael died several days later.
Dr. Frank Sheridan was the chief medical examiner for San Bernardino County and was a forensic pathologist. He did not perform the autopsy on Michael but had reviewed the records prepared by the pathologist who performed the autopsy. Dr. Sheridan also reviewed the medical records from Loma Linda, where Michael was treated, and records from Michael's primary care physician.
According to the medical records from Loma Linda, when Michael was admitted to the hospital on September 19, 2011, he had facial fractures, including the orbital bone, and bleeding on the brain. He had rib fractures and broken bones in his sinuses. He was sent to the rehabilitation center on September 22, 2011. Three days later he was diagnosed with a UTI with sepsis. On September 27, he had a cardiac arrest and was transferred back to the hospital to the intensive care unit where he died two days later.
He later explained that sepsis was an infection spread throughout the body.
During the autopsy it was discovered he had significant bleeding or hemorrhaging in the scalp on both sides. Michael still had bruising on his head but it was healing. He had bleeding that was also on the surface of his brain, which was likely caused by blunt force trauma. Michael had bruising on his neck. He had bruising on his torso and back. Michael's sternum was broken and ribs on both sides were broken, which would have been caused by blunt force trauma to the chest. Michael had bruising on his arms and right wrist. He had abrasions on his leg.
Michael had taser wounds on his legs. His heart was enlarged, which was consistent with him having a history of high blood pressure. His right lung was congested. There were white blood cells in the lungs that could have been indicative of an infection.
Dr. Sheridan indicated it was difficult to pinpoint the cause of Michael's death. The doctor who completed the autopsy concluded that Michael died due to complications of a UTI due to carcinoma of the bladder. It was determined that he died of natural causes. Dr. Sheridan initially agreed that this could "potentially" be the cause of death. There was no direct link between the UTI and his injuries. However, Dr. Sheridan agreed that the change to a broad spectrum antibiotic from a UTI antibiotic was a sign that the hospital was uncertain of the location of the infection. Moreover, cultures taken from his respiratory tract showed a fungal infection commonly contracted in hospitals. He had the same fungal infection in his urinary tract. It could not be determined where the infection started. His diabetes and the urostomy bag could increase his risk of infection.
Dr. Sheridan was asked if he had an opinion as to whether Michael's injuries were a substantial factor that led to his death. He responded that the injuries were "significant." They would put stress on him as a whole. The stress of the injuries would make him more susceptible to other complications and problems, including a heart attack. However, the heart attack he had was not directly related to the injuries. Dr. Sheridan was then asked a hypothetical that if an 85-year-old male with medical issues including diabetes and hypertension, but who was living a normal life driving and walking, suffered severe injuries like the ones suffered by Michael, got a UTI that led to sepsis that led to cardiac arrest, whether the injuries factored into his death 11 days after the initial injuries. Dr. Sheridan responded, "I don't know to what extent it did. There's a major fallacy . . . that we have to be careful of in our job or anything else, that just because event A happens before event B, it doesn't necessarily mean A is the cause of B. In our job we have to find that connection and establish it well. In this case, unfortunately for all concerned, it's a bit fuzzy. But I'm not ignoring it, because you can't ignore it. These are significant injuries, buy they're not in and of itself fatal, and drawing the dots between them and his death is what we're doing at the moment." The prosecutor asks, "So assuming the person had these health conditions that made him susceptible to infection when he was beaten, put into the hospital, developed a hospital based acquired infection and died, can you say the beatings or the injuries from the assault were a substantial factor in his death?" Dr. Sheridan responded, "They certainly could be. The problem is that's basically the answer."
Dr. Sheridan concluded that he did not necessarily disagree with the conclusion in the autopsy that Michael died as a result of a UTI that caused sepsis, but it was not the only factor. Dr. Sheridan indicated there could be other causes, but the UTI infection was the immediate cause of death.
Dr. Mohan Mallam specialized in family medicine, particularly internal medicine, geriatrics and post-acute and long-term medicine. He was Michael's regular doctor. He first saw Michael on July 8, 1994, and last saw him on August 10, 2011. He saw Michael regularly due to his numerous medical conditions. Michael took care of himself and had his diabetes and high blood pressure under control. After Michael had his bladder removed in 2005, he did occasionally suffer from UTIs. The last time that Dr. Mallam saw him, Michael was in good health. He also looked like he was 10 years younger than his stated age because he took good care of himself. Up until 2011, Michael had never been hospitalized for a UTI.
Dr. Mallum noted that older persons had a difficult time dealing with stress and had less ability to recover. Michael had borderline heart failure and stress of any kind could exacerbate his medical conditions. Trauma to the head and chest could cause stress on his body.
Dr. Laura Mosqueda was a geriatrician who was employed at the University of Southern California. She had been a board certified geriatrician, which involved the care and treatment of older adults, for 25 years. During her 25 years as a geriatrician, she had accompanied adult protective services workers that made house calls on older adults who were suspected of being abused or neglected. She began the "Elder Abuse Forensic Center" in 2002, which brought together social services agencies, the medical community, medical experts and the criminal justice system to help figure out complicated cases of elder abuse. This included the death of older adults.
Dr. Mosqueda's testimony was taken pretrial after an Evidence Code section 402 hearing and was played for the jury.
Dr. Mosqueda had worked with forensic pathologists. Although a forensic pathologist specialized in cause of death, he or she usually did not have expertise on aging. In the past she had informed forensic pathologists on what happens when a person ages, and on chronic illnesses.
Dr. Mosqueda had also formed an elder death review panel in Orange County in early 2000. She partnered with the Orange County Coroner's office to review cases where there may have been abuse or neglect. During her review, she would observe items that were not discovered by the pathologist based on her expertise as a gerontologist.
Dr. Mosqueda explained that as a person ages, he or she can lose physiologic reserve, which was the extra capacity a person has in his or her organ system. The function of organs and bone density decreased over time. A person aged 80 or 90 would be more susceptible to injuries; had a harder time recovering from illness; and was more likely to get secondary problems as a result of abuse or neglect. Illnesses such as diabetes and heart disease could accelerate changes to the physiologic reserve. Combined illnesses could reduce physiologic reserve and the ability of a person to recover from traumatic injury.
Dr. Mosqueda reviewed Michael's medical records from Loma Linda, his primary care records and the autopsy. She noted that Michael had numerous chronic medical conditions including high blood pressure, diabetes, history of rectal and bladder cancer, and he had a pacemaker. She also reviewed the injuries he had from the beating. In her opinion, Michael's injuries were very intensive and serious. The bleeding in his sinuses could lead to infection. The autopsy noted that Michael had an enlarged heart. Dr. Mosqueda indicated that having an enlarged heart would make it more difficult to recover from injury. The forensic pathologist concluded that the cause of death was complications from a UTI. Dr. Mosqueda indicated there was not a laboratory report that confirmed the organism consistent with a UTI was present in Michael's system. He could also have had an infection in his sinuses or meningitis.
In Dr. Mosqueda's opinion, the injuries exposed him to a high risk of complications such as sepsis, an infection, or heart attack, and were a substantial factor in his death. He was very vulnerable to other life threatening conditions. Dr. Mosqueda could not pinpoint if Michael had died from some sort of infection in his sinuses or a heart attack. She noted, "he had so many different injuries effecting, you know, his brain, his sinuses, his lungs on top of the fact that he had these chronic illnesses that we talked about, that it just made him vulnerable to a whole variety of things that could lead directly to his death." She further stated, "he got admitted to the hospital where there's a lot of bad bugs that are in the hospital and his sinuses got infected or even the urine got infected, might have happened because he was in the hospital that he got infected and he was in the hospital because of those injuries."
C. DEFENSE
Defendant testified on his own behalf. He moved back in with Ruth and Michael in 2009 after pursuing a music career. On September 18, 2011, defendant went to several local bars to watch football. He was wearing steel-toed motorcycle boots that day. He returned to the house around 10:00 p.m. and the new puppy was sleeping in his room.
Defendant fell asleep but woke up in the middle of the night. He noticed the puppy was no longer in his room and he got worried. Ruth was sleeping in her own room and he woke her up to help him look for the puppy. Michael woke up and came out into the hallway. Michael was angry they were making so much noise looking for the puppy. Ruth and Michael began arguing. Michael called Ruth a whore. Defendant told Michael to stop making such comments about Ruth in front of him and Michael responded, "Fuck you." Defendant then told Ruth it was time to confront Michael with the tape recordings.
Defendant retrieved the recorder from his room. He found Ruth and Michael in Michael's room. Defendant advised Michael he had been recording his phone conversations and started playing the recordings. Michael got angry and charged him. Michael fell to the ground. They both struggled for the recorder. Michael scratched defendant in the face and on his hands. Defendant kicked Michael in the face with his boots trying to get away. Defendant was able to get up and ran out of the room. He hid the recorder. Defendant then went back to the room to see if Ruth was okay. Ruth was in Michael's room and Michael was holding a gun. He pointed the gun at Ruth and defendant. He threatened to shoot them both if they did not give him the recordings.
Defendant charged at Michael to get the gun. Defendant tackled Michael. They fell on the bed and struggled over the weapon. Defendant was on top of Michael at one point. Defendant was able to get on top of Michael and straddle him while trying to take the gun. Defendant started hitting Michael. He threw as many punches as he could in order to get Michael to drop the gun. Defendant hit Michael as hard as he could; he hit him at least 20 times. He broke Michael's nose and it started bleeding profusely. Several times Michael was able to point the gun at him and defendant had to struggle to move it. As they were struggling, Michael suddenly went limp and dropped the gun. Defendant discovered that Ruth was using the taser on Michael. Ruth held down the taser and let it run all over Michael's body.
Despite Michael going limp, defendant continued to stay on top of him for at least 20 to 30 minutes. He may have backhanded Michael while on top of him. While defendant was sitting on Michael's chest defendant told Michael he needed to confess his lies to Wagstaff and Samorajski. Defendant was concerned that Michael may have another gun so he did not let him up. Eventually defendant got up and they all talked while Michael sat on the bed. They discussed whether they were going to call the police or take Michael to the hospital. Both Michael and Ruth decided they did not want to go to the hospital and Michael begged them not to call the police. They decided just to handle the problem as a family. Defendant and Ruth went to bed. Defendant hid Michael's gun in defendant's room.
DISCUSSION
A. ADMISSION OF EXPERT TESTIMONY
Defendant contends that Dr. Mosqueda, a geriatrician and not a forensic pathologist, was erroneously allowed to testify that Michael's injuries were a substantial factor in his death because she lacked the appropriate experience to make such a determination as to cause of death; her testimony regarding physiological reserve was not beyond the jury's common knowledge; and her testimony was improperly conclusory on an ultimate issue.
1. ADDITIONAL RELEVANT FACTS
An Evidence Code section 402 hearing was held prior to trial to determine whether Dr. Mosqueda's testimony was admissible. Dr. Mosqueda testified she was the associate dean of primary care at the University of Southern California School of Medicine. She had been a board-certified geriatrician for 25 years. She also testified about the task forces she had been involved in throughout the years and her work with the Orange County Coroner's office helping to determine causes of deaths.
She explained physiological reserve: as people age, their organs begin to decrease in functionality. She provided as an example that a person in their 30s with the flu would be expected to fully recover but a person in their 90s would have the potential of dying from it. She was not a forensic pathologist but she had a unique education in aging and older adults, and most pathologists were lacking in this knowledge. She acknowledged that cause and manner of death were the purview of a forensic pathologist. Her expertise was on the kind of injuries and ailments peculiar to older people who had been abused.
Dr. Mosqueda believed she was qualified to give an opinion as to whether or not injuries suffered by an elder person were a substantial factor in the person's death because she had treated thousands of older adults.
Defendant's counsel argued that Dr. Mosqueda was not qualified to testify about what caused Michael's death. Only a forensic pathologist could testify as to cause of death. Defendant's counsel contended that the People were unable to find a pathologist who would testify. The People argued that she could testify about elder abuse causing death.
The trial court noted that the autopsy report stated that Michael died from natural causes based on sepsis, particularly, flora in urine from a UTI. The trial court noted, "However, the witness in this case based on her expertise in geriatrics disputes those findings based on what is generally found in elderly population, that mixed flora is common and temporarily by itself may not be an indicator of a urinary tract infection." Further, the blood culture did not grow any bacteria. The trial court thought that Dr. Mosqueda brought a certain expertise to the case. The trial court reserved its ruling until Dr. Mosqueda testified.
When she testified, which was recorded and edited to play for the jury, she was asked by the prosecutor, "Do you have an opinion as to whether or not the injuries that [Michael] presented with on September 18th at Loma Linda University Medical Center were a substantial factor that led to his death?" She responded, "Yes." She then was asked "What is that opinion?" and she responded, "The opinion is that they caused severe harm to him in that they were directly connected to his death." Defendant's counsel objected on the ground of improper opinion. The trial court allowed the testimony pending hearing Dr. Mosqueda's complete opinion.
Dr. Mosqueda was then asked, "Did the injuries he sustained contribute to his death, substantial factor in this death?" She responded, "Yes, they were." The prosecutor inquired, "Why do you say that?" Dr. Mosqueda responded, "Because he had multiple, very severe injuries to his head, broken bones, bruising, he was very disabled from all of this and it set him up to be at high risk of complications such as sepsis, such as an infection, such as a heart attack, such as other life threatening conditions because he was so severely harmed from this, for his injuries." The trial court stated for the record, "What I'm going to do is I'll strike the initial statement by the doctor and allow her follow-up statement to come in as her opinion. So the initial statement made by the witness will be stricken."
2. RULES FOR ADMITTING EXPERT TESTIMONY
"The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.)
Evidence Code section 801, subdivision (b) allows an expert to testify "Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
The determination that a witness qualifies as an expert and the decision to admit expert opinion testimony are within the discretion of the trial court and will not be disturbed without a showing of a "manifest abuse." (People v. Hill (2011) 191 Cal.App.4th 1104, 1118; see also People v. Mendoza (2000) 24 Cal.4th 130, 177, superseded by statute on other grounds in People v. Brooks (2017) 3 Cal.5th 1.) We review the trial court's evidentiary rulings under the abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1118; People v. Jackson (2013) 221 Cal.App.4th 1222, 1237.)
3. DR. MOSQUEDA WAS QUALIFIED TO TESTIFY ABOUT SUBSTANTIAL FACTOR IN DEATH
Defendant first contends Dr. Mosqueda was not qualified to testify about cause of death. He insists that she was improperly allowed to testify that the injuries sustained by Michael were a substantial factor in his death. Dr. Mosqueda was not a forensic pathologist who could opine as to cause of death.
" ' "Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility." ' " (People v. Bolin (1998) 18 Cal.4th 297, 322 (Bolin).) Here, Dr. Mosqueda had been a geriatrician for 25 years and also headed several task forces on suspicious elderly deaths. She worked closely with forensic pathologists. She was keenly aware of the particular issues faced by elderly patients. Based on her expertise, she testified that the results of tests on Michael did not, in her opinion, conclusively show that Michael had a UTI at the time of his death. This was based on her practice of treating elderly patients whom she indicated were more likely to have bacteria in their urine.
Based on her experience with treating elderly patients, and a review of Michael's medical records, she testified that Michael was particularly vulnerable to infection based on his age. She opined that the injuries to Michael were a substantial factor in his death. She did not reach the ultimate conclusion as to cause of death as she could not pinpoint the cause of the infection despite being certain he contracted it in the hospital setting. Based on his vulnerabilities, he was unable to recover. Dr. Mosqueda had unique experience. Defendant has cited to no case in which courts have determined that only a forensic pathologist could testify on injuries being a substantial factor in a person's death. The trial court did not err by concluding Dr. Mosqueda was qualified to testify as to Michael's injuries, and that they were a substantial factor in his death.
This conclusion is supported by People v. Moncada (2012) 210 Cal.App.4th 1124. In Moncada, a father assaulted his son, who died three years later from complications from a feeding tube required after the assault. (Id. at p. 1127-1128.) The appellate court relied on medical expert testimony from the child's pediatrician and a neurologist in reaching a decision of causation based on their testimony that "established that the initial assault set in motion the life-altering complications and secondary medical problems that required surgical intervention, and that such complications and secondary problems were a reasonably foreseeable result of the initial assault." (Id. at pp. 1128, 1133.)
Defendant has provided no relevant authority to support his claim that only a forensic pathologist could testify that the injuries Michael suffered were a substantial factor in his death. We reject defendant's contention and find the trial court did not err by admitting Dr. Mosqueda's testimony.
4. OPINION TESTIMONY ABOUT PHYSIOLOGICAL RESERVE
Defendant contends the trial court erred by admitting Dr. Mosqueda's testimony on the differences between the young and the elderly as it was not a subject beyond the common knowledge of the jurors. In fact, defendant argues the prosecutor acknowledged that Dr. Mosqueda's testimony about physiological reserve was not beyond the jury's common knowledge.
A witness may testify as an expert, in the form of an opinion, on "a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) "That is not to say, however, that the jury need be wholly ignorant of the subject matter of the expert opinion in order for it to be admissible. [Citation.] Rather, expert opinion testimony ' "will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when 'the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.' " ' " (People v. Jones (2012) 54 Cal.4th 1, 60.)
As previously stated, Dr. Mosqueda was a geriatrician who had worked with older adults for over 25 years. She testified about the concept of physiologic reserve, which involved the capacity of a person's organs as they age. She further explained that the function of organs and bone density decreased over time making an elderly patient more susceptible to death from infection. She further testified that diabetes and heart disease could accelerate changes to the physiologic reserve and that combined illnesses could reduce physiologic reserve and the ability of a person to recover from a traumatic injury. She testified Michael was very vulnerable to other life threatening conditions.
During closing argument, the prosecutor argued in discussing Dr. Mosqueda's testimony, "She told you what you already know. Great[-]grandmother falls, she's worse off than you when you fall and she has to go in the hospital. It's worse. It's different." The prosecutor also argued, "What did Dr. Mosqueda have to say? She had to say what we know. When you're grandmother falls and breaks a hip, it's different from us."
Initially, the People contend defendant waived his claim by failing to object on this ground in the trial court. Defendant objected to Dr. Mosqueda's testimony on the ground that she was not qualified to render an opinion on cause of death. At no time did defendant alert the trial court to the fact that Dr. Mosqueda's opinion as to physiologic reserve was not properly admitted pursuant to Evidence Code section 801. As such, we agree with the People that defendant has waived his claim on appeal. (People v. Edwards (2013) 57 Cal.4th 658, 709 [failure to object to expert testimony as not being beyond common experience waived the claim on appeal]; Bolin, supra, 18 Cal.4th at p. 321 [defendant's failure to object to expert testimony waived the issue on appeal].)
Moreover, even if defendant did not waive the claim, it lacks merit. The prosecutor acknowledged that most of the jurors already knew that an elderly person had a more difficult time recovering after a fall or trauma. However, Dr. Mosqueda's testimony went beyond simply that an elderly person had a difficult time recovering from a fall. Dr. Mosqueda testified as to why Michael would have been more susceptible to infection because of the loss of physiologic reserve. She also testified that his numerous medical conditions made him more vulnerable to infection. This was important evidence beyond the common experience of the jurors, which assisted the jury in determining whether Michael's injuries were a substantial factor in his death. The evidence was properly admitted.
5. TESTIMONY ON AN ULTIMATE ISSUE
Defendant insists on appeal that Dr. Mosqueda improperly testified about the ultimate issue in the case, cause of death. He essentially equates substantial factor with cause of death.
However, this ignores the instructions given to the jury. It was instructed, "There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death and the death would not have happened without the act. A substantial factor is more than a trivial or remote factor. It must actually contribute to the death. However, it does not need to be the only factor that causes the death." As the jury was instructed, they could find that there were many causes of Michael's death, and that it must find that Michael's injuries were a substantial factor in his death. Defendant's counsel in closing argument admitted that Dr. Mosqueda had not testified as to cause of death and "She didn't add anything to this case." Defense counsel argued that there was no direct link between the injuries and infection. Defendant's counsel further argued that Dr. Mosqueda essentially said that Michael could have died from a "bunch of things." Dr. Mosqueda did not provide any definitive testimony about the infection. The jury ultimately decided, based on all the evidence and instructions before it, that the cause of death was the beating of Michael by defendant.
6. PREJUDICE
Any error in admitting Dr. Mosqueda's expert testimony was harmless because it is not reasonably probable defendant would have achieved a more favorable verdict in the absence of the challenged testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Dr. Pandit testified she was not certain that Michael had a UTI and changed his antibiotics. This contradicted the conclusion in the autopsy that Michael died from a UTI infection. Further, Dr. Sheridan admitted Michael's injuries were significant but it was difficult to pinpoint the cause of Michael's death. Both Dr. Sheridan and Dr. Mosqueda agreed that Michael had numerous medical conditions and was more susceptible to infection in the hospital. They agreed he got the infection in the hospital and that he died of sepsis but there could have been multiple causes of death. Dr. Mallam and Dr. Sheridan also testified that the injuries would cause stress to Michael, making him more susceptible to complications and problems. Even without Dr. Mosqueda's testimony, the jury could conclude that due to Michael being beaten by defendant, Michael entered the hospital and contracted an infection that resulted in his death.
B. SUFFICIENT EVIDENCE OF CAUSATION
Defendant contends his conviction for Michael's murder must be reversed because there is an absence of substantial evidence that his acts caused Michael's death. Specifically, he contends that the infection Michael contracted was an independent intervening event that relieved him of criminal liability.
" 'In reviewing a challenge to the sufficiency of the evidence . . . , we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.' [Citation.] 'The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Ramirez (2006) 39 Cal.4th 398, 464.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (Bolin, supra,18 Cal.4th at p. 331.)
The jury here was instructed on murder. As previously stated, they were advised, "An act causes death if the death is the direct natural and probable consequence of the act and the death would not have happened without the act. A natural probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death and the death would not have happened without the act. A substantial factor is more than a trivial or remote factor. It must actually contribute to the death. However, it does not need to be the only factor that causes the death." They were further instructed, "Michael Ruffalo may have suffered from an illness or physical condition making him more likely to die from the injury than the average person. The fact that he may have been physically vulnerable is not a defense to murder. If the defendant's act was a substantial factor in causing the death, then the defendant is legally responsible for the death. This is true, even if Michael Ruffalo would have died in a short time as a result of other causes or of another person of average health, would not have died as a result of the defendant's actions. [¶] If you have a reasonable doubt whether a defendant's act caused the death, you must find him or her not guilty."
To find a defendant guilty of murder, the jury must conclude an act, or omission, of the defendant caused the victim's death. (People v. Jennings (2010) 50 Cal.4th 616, 643.) " 'To be considered the proximate cause of the victim's death, the defendant's act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical.' " (Ibid.) "The criminal law . . . is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant's act." (People v. Roberts (1992) 2 Cal.4th 271, 319.)
"The People's burden of proving causation is met if evidence is produced from which it may be reasonably inferred that the defendant's act was a substantial factor in producing the result of the crime. [Citations.] The prosecution does not have to prove to a mathematical certainty that the killing would have occurred absent the defendant's act." (People v. Canizalez (2011) 197 Cal.App.4th 832, 845.) " 'So long as a victim's predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition . . . in no way destroys the [defendant's] criminal responsibility for the death.' " (People v. Catlin (2001) 26 Cal.4th 81, 155-156, overruled on other grounds in People v. Nelson (2008) 43 Cal.4th 1242; see also People v. Autry (1995) 37 Cal.App.4th 351, 360.) Foreseeability does not require a high probability that the harm will occur, but merely that the harm be " ' "a possible consequence which might reasonably have been contemplated is enough." ' " (People v. Medina (2009) 46 Cal.4th 913, 920.)
"Whether an independent act is a superseding cause of injury or death is generally a question of fact for the trier of fact beyond a reasonable doubt [citation], unless undisputed evidence reveals ' "a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus." ' " (People v. Moncada, supra, 210 Cal.App.4th at p. 1133.)
In People v. Taylor (2004) 119 Cal.App.4th 628, the defendant punched his girlfriend numerous times in the stomach when she was seven months pregnant with his child. The child was born alive, after being delivered by Caesarean section. The child weighed less than three pounds and suffered from Down syndrome and a heart defect. His premature birth made these conditions more difficult to treat. The child died one month later from necrotizing intercolitis, which was caused by his prematurity. The defendant was convicted of second degree murder. (Id. at p. 633-635.) Several doctors testified that his premature birth was a substantial factor in his death. (Id. at pp. 635-636.)
On appeal, the defendant argued that the People failed to prove that his conduct caused the baby's death, which occurred due to natural causes one month after the baby's birth. (People v. Taylor, supra, 119 Cal.App.4th at p. 639.) Further the defendant argued that the baby's heart defect was a contributing factor to his death. (Ibid.) The appellate court noted, "even if the jury could have concluded that [the baby's] preexisting heart defect contributed to his death, that would not have relieved defendant of his responsibility for the death. As the courts have made clear, a defendant whose infliction of physical injury upon another is a cause of that person's death is guilty of unlawful homicide even if the injury was not the only cause of death, and even if the victim was in a weakened state due to a preexisting condition." (Id. at p. 641.) The court concluded, "the premature delivery [the beating] forced rendered him vulnerable to the condition that killed him." (Id. at p. 641.)
In People v. Butler (2010) 187 Cal.App.4th 998, the defendant and other individuals beat, tied up, suffocated and provided cocaine to the victim. The victim died and defendant was convicted of involuntary manslaughter. On appeal, the defendant argued that since the medical expert testified to four possible causes of death—blunt force trauma, restraint, asphyxiation and cocaine toxicity—and could not decide on one, the evidence did not support that the defendant's actions were a substantial factor in causing the victim's death. (Id. at pp. 1003-1005, 1010.) The court rejected the argument finding, "[W]hen there are multiple concurrent causes of death, the jury is not required to determine which, if any, cause was the primary cause. Rather, the jury need only determine that the defendant's conduct was a substantial factor contributing to the death." (Id. at pp. 1010-1011.)
Here, there was substantial evidence to support the jury's conclusion defendant's actions were a substantial factor in causing Michael's death. Defendant hit Michael—who suffered from diabetes, had a urostomy bag, and a heart condition—numerous times in the face. Then defendant sat on top of Michael, backhanding him in the face several times. Finally, defendant left Michael on his bed for several hours, bleeding and with broken bones.
Michael was admitted to the ER with a traumatic brain injury. He was sent to a rehabilitation center because he was not well enough to return home and care for himself. Michael remained weak and in pain when he was transferred to the rehabilitation center. A UTI was suspected on September 25, but the following day his antibiotics were changed because it was not certain that the site of the infection was in his urine.
It is true there was conflicting evidence as to the source of the infection. At one point, Dr. Sheridan confirmed the autopsy report, which determined that the cause of death was sepsis from a UTI and that Michael died of natural causes. However, Dr. Sheridan also testified that Michael had significant injuries and he showed signs of an infection typically contracted at a hospital. Moreover, the conclusion was contradicted by several other medical professionals who stated they were not certain that Michael had a UTI. Both Dr. Mosqueda and Dr. Pandit testified it was not clear that Michael had a UTI, and Dr. Mosqueda opined that even if Michael did, the infection he had was as a result of his injuries. Dr. Mallam testified that the stress of the beating would make it difficult for Michael to recover. Substantial evidence was before the jury from which they could conclude that Michael's injuries made him more susceptible to the infection he contradicted and which led to his ultimate death.
The expert testimony on causation in this case was not definitive, but in our limited review this court cannot reverse the judgment when there is substantial evidence from which the jury could find the essential elements of the crime proved beyond a reasonable doubt, even if contrary factual findings or different inferences are also reasonable. (See People v. Taylor, supra, 119 Cal.App.4th at pp. 639-640.)
C. SUFFICIENT EVIDENCE OF TORTURE
Defendant contends that the evidence of the crime of torture pursuant to section 206 was insufficient to support his conviction. The standard of review has been set forth, ante.
Section 206 provides: "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain." Hence, the crime of torture has two elements: " '(1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.' " (People v. Pre (2004) 117 Cal.App.4th 413, 419.) There is no dispute that Michael suffered great bodily injury.
"Courts have interpreted intent to inflict 'cruel' pain and suffering as intent to inflict extreme or severe pain." (People v. Burton (2006) 143 Cal.App.4th 447, 452.) "The intent necessary for torture, that is, to cause cruel or extreme pain, does not require that the defendant acted with premeditation or deliberation or had the intent to inflict prolonged pain." (People v. Misa (2006) 140 Cal.App.4th 837, 842-843.) "A jury may consider the severity of the wounds in determining whether defendant intended to torture." (Burton, at p. 452.) For example, " 'a jury may infer intent to cause extreme pain from a defendant who focuses his attack on a particularly vulnerable area, such as the face, rather than indiscriminately attacking the victim.' " (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426-1427, citing Burton, at p. 452 [defendant focused attack on victim's face].)
"Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.] Intent to cause cruel or extreme pain can be established by the circumstances of the offense and other circumstantial evidence." (People v. Pre, supra, 117 Cal.App.4th at p. 420.) "The intent to torture 'is a state of mind which, unless established by the defendant's own statements (or by another witness's description of a defendant's behavior in committing the offenses), must be proved by the circumstances surrounding the commission of the offense [citations], which include the nature and severity of the victim's wounds.' [Citation.] 'We have, however, cautioned against giving undue weight to the severity of the wounds' [citation]; severe injuries may also be consistent with the desire to kill, the heat of passion, or an explosion of violence." (People v. Mungia (2008) 44 Cal.4th 1101, 1137.)
Initially, defendant's argument is premised on the jury concluding that Michael had a gun that night, and defendant was motivated by his desire to protect both himself and Ruth. This version of events was rejected by the jury because it rejected defendant's claim of self defense and found him guilty of first degree murder. Hence, they reasonably concluded that defendant attacked Michael based on his perception that Michael was trying to interfere in defendant's child custody proceedings. Defendant hit Michael in the face more than 20 times, breaking Michael's orbital bone. Michael had significant bleeding on his brain and brain swelling. After inflicting this beating, defendant did not seek medical treatment for Michael. Rather, he went to bed, letting Michael remain in his bed, suffering. This clearly was not an explosion of violence or heat of passion. (See People v. Mungia, supra, 44 Cal.4th at p. 1137.) On this evidence alone, the jury could reasonably conclude that based on the infliction of injury to a particular vulnerable location, that defendant had the specific intent to cause cruel and extreme pain and suffering.
Further, based on defendant's own testimony, he straddled Michael, an 85-year-old man, and continued to backhand him in the face, a face he had already "beaten to a pulp," in order to persuade him to confess to his lies. Defendant attacked and injured Michael in order to persuade him to tell Samorajski that Michael been lying about defendant abusing his children. Defendant's intent in hurting defendant was to persuade him. The evidence overwhelmingly supports that defendant committed torture against Michael.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.