Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA060238 Martin Larry Herscovitz, Judge.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SUZUKAWA, J.
Cesar Ulloa appeals from the judgment entered following his conviction by jury on one count of torture (Pen. Code, § 206) and seven counts of elder or dependent adult abuse (Pen. Code, § 368, subd. (b)(1)). Finding no error, we affirm.
Prosecution Evidence
Rita Kittower (Rita) was married to Elmore Kittower (Elmore) for almost 50 years. After Elmore retired from his work as an engineer, he was active and healthy until November 2006, when he suffered from a blood clot in his brain. Elmore lost his memory, was confined to a wheelchair, and was hospitalized for several months. The hospital recommended that Rita place Elmore in a nursing home.
After extensive research, Rita placed Elmore in Silverado, a facility in the City of Calabasas that cost about $75,000 a year. Rita visited Elmore every day with her daughter, but it was so painful for Rita to see him there that they decided to go three times a week and eventually once a week. By November 2007, Elmore was unable to talk and just sat with his head down during Rita’s visits, but he kissed her hand whenever she left. Rita did not notice any problems with his care during her weekly visits.
On November 6, 2007, Rita was informed by a sheriff that Elmore had died. She was shocked because Elmore had been fine when she visited him only two days earlier. Rita called Silverado to ask what happened, and one of the nurses said Elmore had simply stopped breathing.
On November 10, 2007, the day after Elmore’s funeral, Rita received a call from a caregiver at Silverado who told her Elmore had been beaten, abused, and tortured to death. After Rita’s nephew called the police, Detectives William Cotter and Shannon Laren of the Los Angeles County Sheriff’s Department interviewed Rita and received permission from her to exhume Elmore’s body.
Dr. Kevin Young performed an autopsy of Elmore after the body was exhumed. Dr. Young found a large bruise on his cheek, three bruises on his chest, and bruises on his arms, all due to trauma prior to death. Dr. Young also found fractures of his ribs and trauma to his neck, indicating that someone either choked him with their hand or held him from behind with a forearm.
Adelina Campos worked as a caregiver at Silverado from approximately 2006 to November 2007. She worked with other caregivers at Silverado, including appellant and two of his friends, Luz Alvarez and Juan Toscano Soto.
Campos told Detective Laren that she saw appellant jump from a table and land on a resident, Richard McDonough, who was lying in his bed approximately three feet away. Campos told appellant to stop, but she did not report it to anyone because she did not feel comfortable speaking with any of her supervisors. Appellant told Campos that her supervisor would not believe her anyway.
After Campos heard about Elmore’s death, she began talking to her mother of her fears about what may have happened to him, even though she never witnessed any abuse of Elmore. Campos found Rita’s telephone number, and her mother called Rita.
Beth Cowper worked at Silverado as a licensed vocational nurse in 2007. On November 6, 2007, Cowper arrived at work around 7:00 a.m. and heard someone calling for the night nurse, Fontaine McCrary, to go to Elmore’s room. Cowper went to investigate and found Elmore slumped over in a chair, completely unresponsive. Two caregivers were in the room with him: Alvarez and appellant. Cowper determined that Elmore did not have a pulse, so she asked McCrary for help and called 911, the director of health services, and Rita. Cowper had seen Elmore the previous day and did not notice anything unusual, explaining at trial that Elmore generally did not talk much and was weak. She had seen bruises and skin tears on him before but had not witnessed any incident, such as a fall or anything suspicious, that would cause bruising. She never noticed any fractures on Elmore’s body.
Alvarez worked as a caregiver at Silverado in 2007 and regularly worked on the same team as appellant and Luis Arellano. On November 6, 2007, she was working with Elmore’s roommate, Mr. Soukup, while appellant was working with Elmore. After appellant dressed Elmore and helped him stand, Elmore fell and hit a nightstand. Alvarez testified that Elmore hit the nightstand with so much force that a lamp flipped over and the furniture shook. She also testified that she did not remember telling the police in a recorded interview on August 12, 2008 that Elmore fell because appellant kicked him. Alvarez yelled at appellant, asking him what he had done, but appellant did not reply. She helped appellant pick Elmore up and put him in a wheelchair.
Alvarez testified that after Elmore was placed in the wheelchair, he was upset at appellant and tried to hit him. Appellant then punched Elmore very hard in the stomach. Elmore started gasping for air, and appellant laughed and said to Elmore, “‘Haven’t you had enough?’” Alvarez left the room to take Mr. Soukop to breakfast, and when she returned, appellant was asking for help for Elmore. After they called for McCrary, Cowper came to help. Alvarez did not report what appellant had done because he was her friend.
Alvarez worked with appellant on a resident named Robert Turner during the summer of 2007. She told the police in her August 2008 interview that she saw appellant punch Turner in the stomach, causing Turner to gasp for air, but she testified at trial that she did not remember the incident. She did testify that appellant sometimes was cruel in his treatment of patients.
Alvarez initially did not tell the police about witnessing any abuse, but she gave the August 2008 interview after Silverado hired a lawyer and Alvarez was told that she would not be prosecuted unless she committed perjury.
Jose Cisneros worked in the kitchen at Silverado from September through November of 2007 and became friends with appellant, Arellano, and Soto. Cisneros sometimes went into the residents’ rooms to be with his friends. On one occasion, he was in Elmore’s room with Arellano and appellant, and he saw Arellano slap Elmore and appellant punch him in the shoulder and chest several times, causing him to gasp for air. Appellant was laughing and taunting Elmore. Cisneros did not report the abuse, but he told Arellano that he did not agree with what appellant was doing.
Cisneros saw appellant kick McDonough between the legs while trying to get McDonough dressed. McDonough fell to the ground and a scab on his leg started to bleed.
Cisneros saw appellant abuse a resident named Evelyn Stubbs, slamming her onto a bed and jumping on her several times. Appellant laughed while he was doing this. Stubbs suffered from a type of Alzheimer’s in which she was able to understand what was said to her, but she was unable to communicate. Stubbs moved to Silverado in 2005, but her family noticed that her behavior changed in 2007, when she began to flinch and hide like a wounded animal. Her family also began to notice injuries to her toes and substantial bruising around her neck and shoulders, as if someone had choked her. After Stubbs’s family moved her out of Silverado in 2008, she calmed down, communicated better, was happier, and no longer had bruising.
Cisneros did not want to speak to the police. Similar to Alvarez, Cisneros agreed to speak after Silverado hired a lawyer for him and he was told he would not be prosecuted unless he committed perjury.
Mary McDonough testified that her husband moved into Silverado in 2006 after he was diagnosed with Alzheimer’s and it had become too difficult for her to care for him at home. She visited him six days a week, from about 10:00 a.m. until dinner time, but she was never there in the morning when the staff was dressing him. In November 2007, someone at Silverado told her that McDonough had fallen and hurt his thigh. She was unable to see the injury because it was bandaged, but she noticed that the bandage was very large, much larger than she had seen on him before.
Nichelle Ramirez testified that at the time of these incidents, she worked at Silverado as a part-time activities assistant and part-time receptionist. Ramirez saw appellant taunt and verbally abuse Elmore and Joanne Jordan during activities, but she stated that he was friendly toward other residents and employees. Ramirez told the police that, on the day appellant was arrested, Campos told Ramirez that she was the one who wrote an anonymous letter and made an anonymous phone call. Campos also told Ramirez that she was “going to get [appellant] before he got her first.”
Maryanne Madera worked at Silverado as a caregiver. In November 2007, Madera and a caregiver named Bernadette were helping Elmore’s roommate, Mr. Soukop, when she saw appellant and Soto punching and slapping Elmore. After appellant put Elmore in bed, he jumped on the bed, put the sheet over Elmore’s face, and continued punching and slapping him. Appellant was laughing while he was punching Elmore. Madera asked them, “‘What has he ever done to you?’” but they laughed at her and slapped Mr. Soukup on the face. After appellant and Soto left the room, Madera and another caregiver went to check Elmore. Madera was afraid appellant would retaliate against her because she had been told by Campos that appellant and Soto slashed the tires and threw rocks at the cars of caregivers they did not like.
On another occasion, Madera heard McDonough scream, so she went to investigate and saw Cisneros and appellant in the room. She saw an injury on McDonough’s leg.
Fontaine McCrary worked at Silverado in 2007 as a licensed vocational nurse. On the evening of November 5, 2007, a caregiver named Elizalde Yanzon told McCrary that Elmore had a bruise under his left eye. McCrary gave Elmore medication on the morning of November 6, 2007, and did not notice any injury to his neck or throat at that time. After McCrary received appellant’s emergency call for Elmore’s room, she found that Elmore had no pulse. She was surprised to find him in that condition because he had been fine when she gave him his medication earlier.
On another occasion, appellant had asked McCrary to treat a cut on Elmore’s ear during the night shift. After McCrary treated the cut, she and appellant tried to put Elmore back in bed, and Elmore tried to kick appellant. McCrary was surprised because she had never seen Elmore act that way, so she told appellant to leave and she put Elmore back in bed. Elmore calmed down as soon as appellant left the room. McCrary also testified that in 2007, she told another nurse that they seemed to be having more injury reports than usual.
Melissa Vartanian worked at Silverado doing administrative work in 2007. She dated appellant for several months. Appellant told Vartanian that he had placed two residents’ wheelchairs together, taken their hands, and made them hit each other so that they would fight. Appellant thought it was funny, but it made Vartanian uncomfortable. Vartanian saw a bruise on Elmore’s face caused by this incident. Appellant also told Vartanian that he hated Elmore, but Vartanian did not know why. Vartanian reported the incident to Mary Johnson, the director of nursing, but she did not think anything was done about it.
Dr. Donald Boger reviewed x-rays of Elmore’s body and found 28 rib fractures ranging in age from under seven days to four to six weeks. In more than 20 years working for the coroner’s office, Dr. Boger had never seen so many rib fractures other than on a person who had been in a plane, auto, or train crash. He testified that it was extremely unusual to see such violent trauma to a body and that the multiple stages of healing indicated that the injuries occurred over a period of time. Elmore did not have significant osteoporosis. Dr. Boger further testified that the injuries were most likely caused by direct blows to the ribs and were not consistent with falls. He also discovered injuries to the foot and larynx, concluding that the pattern of injuries was “consistent with inflicted injury.”
Dr. Diana Schneider testified that patients suffering from dementia experience physical pain and express it in various ways. She stated that the bruising on Elmore’s body was suspicious because it was pervasive and on both sides of the body, meaning it was not likely caused by a fall. Nor was he on medication that would cause bruising. Dr. Schneider further testified that any injury on the neck is suspicious because it is a protected area.
Sergeant Paul Delhauer of the Los Angeles Sheriff’s Department reviewed the police reports, coroner’s report, photographs of the injuries, and medical records in the case and concluded that some of Elmore’s injuries were caused by a blow from a fist. He found at least six separate injuries to his ribs.
Defense Evidence
Bernadette Lozano worked at Silverado as a caregiver. In 2007, Lozano went to help Madera with Mr. Soukup and saw Madera, Soto, and appellant in the room. Lozano testified that Soto, not appellant, slapped Mr. Soukup when they left the room. She did not see or hear appellant punching Elmore. This was the only time she worked in a room with those three caregivers. Lozano heard Madera ask Soto and appellant “‘What did he do to you?’” as they left the room. Lozano testified that she did not trust Campos and that Campos was rough with the residents.
Jan Janesin worked at Silverado as a charge nurse in 2007. She testified that she never saw appellant physically or verbally abuse any residents and never received any such reports. She did not notice an increase in injuries in 2007 and did not see any abnormal bruising on Elmore. However, she spent most of her shift at the nurses’ area, spending only about 30 minutes out of an eight-hour shift in the residents’ rooms.
Stephen Winner was the co-founder and chief of culture of Silverado.
His job was to develop programs and services to meet the needs of the clients, but he did not work on site and visited the facility approximately four times a year. Silverado’s policy was to require caregivers to report any injury to the nurse. Silverado had cameras in the hallways, but they were not allowed to have cameras in the rooms for privacy reasons. There were no educational requirements for the caregiver positions, although Silverado conducted background checks.
Francisco Esparza worked at Silverado in 2007 as the assistant director of health services. One of his jobs was to review reports of unusual occurrences, such as falls or bruises. After the nurses prepared a document, a form would be sent to a state agency. Esparza worked from 9:00 a.m. to 5:00 p.m. and never witnessed or received any reports of abuse by appellant or any caregiver.
Appellant testified that he started working at Silverado in February 2007. He cared for six to seven residents during his shift, which was from 6:00 a.m. to 2:00 p.m. His duties were to dress the residents, take them to the dining room, and help them with activities such as music, drawing, and range of motion exercises. He testified that when residents became aggressive, he would talk to them and would not restrain them.
On November 6, 2007, when appellant reported for his shift, he was told that Elmore had a bruise on his eye. Elmore was sleeping when appellant went to his room at about 6:45 a.m., but appellant saw the bruise and noticed that he looked pale and weak. Appellant dressed him, shaved him, and put him in his wheelchair, but Elmore looked weak and was leaning forward as if he were going to pass out, so appellant asked him if he was all right. Appellant called McCrary, but she did not come, so he called Cowper and went outside the room to call for help. Appellant and Alvarez tried to get Elmore on his walker and then in his bed. When Cowper came to the room, she told them to put Elmore in his bed. Appellant denied ever losing his temper with Elmore, punching him, or kneeing him in the stomach. He testified that he saw bruises on Elmore’s chest about a month before he passed away.
Appellant testified that the injury to McDonough’s leg occurred because McDonough was kicking another caregiver, Betty Guzman, while appellant and Guzman attempted to dress him. Guzman and appellant reported the injury to Johnson. Appellant denied causing the injury or jumping on McDonough from a dresser. He also denied punching Turner in the stomach, jumping on Stubbs, and ever losing his temper with residents. Appellant received an award for employee of the month in May 2007.
On March 19, 2010, appellant was charged in an amended information with one count of torture (Pen. Code, § 206) and seven counts of elder or dependent adult abuse (Pen. Code, § 368, subd. (b)(1)). The case proceeded to a jury trial.
The jury found appellant guilty on all eight counts. The jury found true the allegations as to counts 6, 7, and 8 that the victims were 70 years of age or older (Pen. Code, § 368, subd. (b)(2)) and that appellant personally inflicted great bodily injury on the victims (Pen. Code, § 12022.7, subd. (c)).
The court denied probation and sentenced appellant to a term of six years to life, calculated as follows: count 1, life with the possibility of parole; count 2, three years; counts 3, 4, and 5, one year each to be served consecutively; counts 6, 7, and 8, three years plus five years pursuant to Penal Code section 368, subdivision (b)(2), stayed pursuant to Penal Code section 654. The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 602 days of actual custody and 90 days of good time/work time credit for a total of 692 days. The court also ordered appellant to pay $6,330 in victim restitution to Elmore’s family, pursuant to Penal Code section 1202.4, subdivision (k)(1). Appellant filed a timely notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On February 23, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J.WILLHITE, J.