P. v. Gutierrez

Filed 10/11/06 P. v. Gutierrez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed.

Amanda F. Benedict, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Raymond M. DiGuiseppe, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction

Jeffrey Owens, the victim, was stabbed multiple times outside a Riverside bar. When he was treated for his wounds, a nurse negligently administered an excessive amount of Heparin, a blood thinning agent. Owens subsequently bled to death.

A jury convicted defendant of second-degree murder and assault with a deadly weapon plus related knife-use and street-gang enhancements. The court sentenced defendant to a total collective prison sentence of 25 years to life.

On appeal, defendant contends the medical error was a superseding cause of Owens’s death, which absolved defendant of criminal culpability. We hold the medical error was a contributing cause but not the sole cause of Owens’s death. We reject defendant’s arguments and affirm the judgment.

2. Facts

Owens, and his domestic partner, Jeff Holland, joined another couple, Michael Brussee and Chris Marsh, to celebrate another friend’s birthday at The Menagerie on June 5, 2002. Defendant and his friends, members of the Darkside gang, were next door at another bar, Sandy’s Pub. The four men left The Menagerie at about midnight and gathered in the parking lot, looking at Owens’s vacation photographs. Defendant and a companion, Raymond Rabago, left Sandy’s Pub and walked in the direction of the victim’s group. Defendant and Raymond asked for a cigarette and then suddenly attacked Owens and Brussee. Defendant told the police he heard Owens’s group make disparaging comments. Holland yelled for the other three to get in his van and started to back out of the parking spot. Defendant had hit Brussee in the face and then stabbed him in the back as he tried to get in the van and was using his cell phone to report the attack. Owens was enraged and refused to get in the van. Instead, he approached another of defendant’s companions, Miguel Ramos, who was sitting in his parked truck, and challenged him to fight.

Ramos screamed and honked his horn. Defendant and Rabago responded and, with some others, jumped Owens and began hitting and kicking him. One man yelled an anti-homosexual epithet. During the brief fight, defendant stabbed Owens five times.

The respective groups departed the scene. Defendant told his companions he had stabbed someone. Some days later, defendant disposed of the knife in Lake Evans, where it was later recovered by the police.

Owens was still angry after the altercation but did not realize he had been stabbed until he got home to Moreno Valley with Holland, who then drove him to the hospital. Brussee also did not realize immediately he had been stabbed. He and Marsh eventually met the other two at the hospital.

Owens arrived at the hospital about 12:45 a.m. The doctors diagnosed internal bleeding and performed surgery. In preparation for an auto-transfusion, a nurse incorrectly administered to Owens 100,000 units of Heparin instead of the proper dose of 1,000 units.

After an apparently successful surgery, Owens began bleeding. His blood would not clot and he died from exsanguination a few hours afterwards.

The death certificate lists the first cause of death as a stab wound and the second cause as administration of excessive Heparin.

Both a Riverside County forensic pathologist, Manuel Montez, and the San Bernardino County medical examiner, Frank Sheridan, testified the stab wounds were the primary cause of death and the excessive Heparin was a contributing factor. Dr. Montez testified Owens bled significantly from his wounds and he might not have survived because of the blood loss. Dr. Sheridan stated that, except for the error, Owens would likely have made a full recovery from a routine operation. A defense medical expert, Dr. John Levin, agreed that Owens should have survived the surgery except for the Heparin overdose.

3. Supervening Cause of Death

Defendant’s principal argument is the nurse’s gross negligence was the independent intervening cause of Owens’s death. The California Supreme Court has commented: “‘If a person inflicts a dangerous wound on another, it is ordinarily no defense that inadequate medical treatment contributed to the victim’s death. [Citations, including People v. McGee (1947) 31 Cal.2d 229, 243.] To be sure, when medical treatment is grossly improper, it may discharge liability for homicide if the maltreatment is the sole cause of death and hence an unforeseeable intervening cause. [Citations, including People v. McGee, supra, 31 Cal.2d at p. 240.]’ (People v. Roberts (1992) 2 Cal.4th 271, 312.)” (People v. Scott (1997) 15 Cal.4th 1188, 1215.) Improper medical treatment constitutes “gross negligence” when the treatment demonstrates “‘”an extreme departure from the ordinary standard of conduct.”’” (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 196.)

In McGee, the court held that a delay in operating on a bullet wound to the victim’s stomach was not an intervening force, amounting to a supervening cause. (People v. McGee, supra, 31 Cal.2d at p. 243.) Similarly, in Roberts, inadequate medical treatment for a prison stabbing “fail[ed] to constitute a supervening cause.” (People v. Roberts, supra, 2 Cal.4th at p. 313.)

In the present case, however, defendant cannot successfully argue that the negligent medical treatment, even if it was grossly negligent, was the “sole cause” of the victim’s death. The cause of death is a factual question to be resolved by the jury. Contrary to defendant’s assertion, the evidence about causation was disputed. Two experts thought Owens would have survived his injuries except for the Heparin. Another expert thought Owens could have died from his injuries even without the medical error. All three experts agreed the Heparin was a contributing cause to Owens’s death. Because the jury apparently found the multiple stabbings and the excessive Heparin combined to cause Owens’s death, the appellate court cannot supplant that conclusion. (People v. Carter (2005) 36 Cal.4th 1215, 1261; People v. Crew (2003) 31 Cal.4th 822, 840; People v. Catlin (2001) 26 Cal.4th 81, 155; People v. Perez (1992) 2 Cal.4th 1117, 1126.)

4. Jury Instruction

In connection with his causation argument, defendant also protests the court refused to give the jury a pinpoint instruction, as proposed by the defense, on the meaning of proximate causation. (People v. Roberts, supra, 2 Cal.4th at p. 313; People v. Funes (1994) 23 Cal.App.4th 1506, 1523.) He reasons that the jury should have been instructed that, if the medical error was unforeseeable, then the error was an independent intervening cause which superseded defendant’s conduct and absolved defendant of criminal liability. (People v. Hebert (1964) 228 Cal.App.2d 514, 520-521.)

The jury was properly instructed on causation for murder based on CALJIC Nos. 3.40, 3.41, 8.55, 8.56, and 8.57 and with a special instruction requested by the prosecution. In particular, the court instructed the jury, there may be more than one cause of death and “[w]hen the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the result.” (CALJIC No. 3.41.) Additionally, the contributory negligence of another person is not a defense to murder and “[w]here the original injury is a cause of the death, the fact that the immediate cause of death was the medical or surgical treatment administered or that the treatment was a factor contributing to the cause of death will not relieve the person who inflicted the original injury from responsibility.” (CALJIC Nos. 8.56 and 8.57.) The prosecution’s special instruction, used by the court stated: “Medical maltreatment can be a superseding cause and will relieve a defendant of criminal liability if that maltreatment is grossly negligent and is the sole cause of death. However, if the injuries inflicted by the defendant contributed along with the medical maltreatment to cause the death of the victim, the maltreatment is not a superseding cause and will not relieve the defendant of criminal liability.”

Defendant’s argument fails because, as already noted, even if the nurse committed unforeseeable gross negligence, the evidence still supported a jury finding that the excessive Heparin was not the sole cause of death but was a contributing or concurrent factor. The evidence established defendant could have died even without being mistreated. He certainly died because of the stabbing and the Heparin operating together. But Heparin was not the sole cause of his death.

Hebert does not change our holding. In that case, the victim suffered a broken nose when he was drunk and fell off a bar stool. Subsequently, the police caused him to fall three times more, striking his face and head, which resulted in bleeding from his ears. The police conduct, not the fall from the bar stool, caused the death. The present case differs from Hebert because it involved a potentially fatal injury, aggravated by medical malpractice. But, again, the malpractice was not the sole cause of death.

5. Disposition

Defendant’s third argument that the imposition of the upper term on his assault conviction violated Blakely v. Washington (2004) 542 U.S. 296 was decided against him in People v. Black (2005) 35 Cal.4th 1238, 1254, and is presently under review by the United States Supreme Court. (Cunningham v. California, no. 05-6551, cert. grant. Feb. 21, 2006, 126 U.S. 1329, 2006 WL 386377.)

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/Miller

J.

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