P. v. Rowe

Filed 8/15/06 P. v. Rowe 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Graham Anderson Cribbs, Judge. Affirmed as modified.

Anthony J. Dain, 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, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

Defendant's minor son, J.R., was born in July 2000. Over the next five months, J.R. sustained severe injuries that eventually left him blind and partly paralyzed.

Defendant was convicted of torture and three counts of child abuse for inflicting the injuries and failing to seek appropriate treatment for them. (Pen. Code, §§ 206, 273a, subd. (a).)^[1] The court sentenced defendant to life plus a consecutive term of 16 years 4 months. We modify the sentence to stay the terms for two of the child abuse counts but otherwise affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts of the Offenses

J.R. was born in July 2000. After his birth, Ms. Rowe was on maternity leave for eight or nine weeks. At first during that time, J.R. seemed to be fine. However, about the time Ms. Rowe was preparing to return to work, J.R. started crying more than normal, for no apparent reason. Sometimes when J.R. would cry, defendant would become a little edgy. Once when defendant was watching television, J.R. was crying for a long time. When Ms. Rowe asked defendant to attend to J.R., defendant picked up a large toy and threw it angrily against the door. Once when J.R.'s eye was red, with red dots on his cheek, Ms. Rowe asked defendant what he had done to J.R. Defendant became furious and punched two holes in a door.

1. September 10, 2000, incident (breathing stoppage)

On September 10, 2000, the night before Ms. Rowe was to return to work, J.R. started crying during a car trip with Ms. Rowe and defendant and was still crying when they reached their destination. Ms. Rowe got out for a moment, leaving defendant alone with J.R. When Ms. Rowe got back to the car, J.R. was no longer crying and was turning blue. They took him to the hospital, where he spent a few days but seemed to recover normally.^[2]

2. November 1, 2000, incident (broken arm)

When Ms. Rowe went back to work, she arranged for a friend, Ms. Hanley, to babysit J.R. three days a week. Defendant was to watch J.R. the other two days. Ms. Hanley noted that J.R. never would cry, but only would fuss or whimper, which seemed strange to her.

On November 1, 2000, defendant called Ms. Rowe at work and said he had heard a pop from J.R.'s arm when he pulled it back to put him in his one-piece pajamas. Ms. Hanley, and later Ms. Rowe, looked at the arm but saw nothing abnormal. Within a few days, however, J.R. was not using that arm anymore, and it looked swollen. X-rays showed the arm was broken in two places. Ms. Rowe, Ms. Hanley, and the doctor were all surprised, but defendant was not.

3. November 29, 2000, incident (brain injury)

After the November 1 incident, Ms. Rowe arranged for Ms. Hanley to care for J.R. five days a week. On November 29, 2000, however, defendant did not bring J.R. to Ms. Hanley's home at the usual time. Ms. Hanley tried to call defendant at home but received no answer. Ms. Rowe called later and said defendant was going to keep J.R. that day.

Between 1:00 and 2:00 p.m., Ms. Hanley called to check on defendant and J.R. Defendant said he had tried to give J.R. a bath, and J.R. had slipped from defendant's arms and hit his head on the bathroom countertop. J.R. had a small bump on the back of his head, and his eyes were not reacting normally. Defendant indicated that at least an hour had passed since the incident, and he and Ms. Rowe were going to take J.R. to the doctor if necessary. According to Ms. Hanley, Ms. Rowe never allowed defendant to bathe the child.

J.R. was initially admitted to Kaiser Hospital (Kaiser) in Riverside but later was transferred to Kaiser in Fontana and still later to a Kaiser location in Los Angeles. As a result of injuries received in the November 29 incident, J.R. became permanently blind and unable to move himself. His developmental age at the time of trial in March 2005 was four months. He had to be fed through a tube inserted directly into his abdomen.

B. Medical Testimony

1. Dr. Matney

Clare Matney, M.D., a board-certified pediatrician specializing in child abuse and neglect evaluations, testified for the People. She was chief of the division of forensic pediatrics at Loma Linda University Medical Center and had been the medical director of the Riverside County Child Abuse Program for 10 years. Dr. Matney examined J.R. in 2004 and was able to obtain some of his medical records.

a. November 1 incident

Dr. Matney did not believe defendant's explanation for the November 1 incident. She concluded the broken arm was an abusive injury. She had never heard of a baby's arm being broken while he or she was being dressed.

b. November 29 incident

Dr. Matney similarly concluded J.R.'s injuries from the November 29 incident were not caused by the fall described by defendant. The reported distance of the fall was 12 inches, which is generally too short to cause any significant problem in a baby. Even a fall that does produce injury produces a focal, or localized, injury. A shaking injury, in contrast, produces a global injury, affecting the entire brain. J.R.'s brain scan showed tremendous injury to his brain. The injury was global, not focal, and could not have been caused by a 12-inch fall. Shaking, however, could cause such an injury.

Besides the brain injury, J.R. suffered a skull fracture at the back of his head. It was a comminuted fracture, meaning there were pieces of bone detached. This indicated that a lot of force was used, shattering a small portion of the skull. Dr. Matney did not see any preexisting condition that could have accounted for the severity of J.R.'s head injury. He had normal skeletal structure, and the fact he had suffered no more fractures since being removed from defendant's care showed that he had no congenital bone disease.

J.R. also suffered major damage to both of his eyes as a result of the November 29 incident, caused by retinal hemorrhage and resulting in blindness. Retinal hemorrhage is a sign that an infant has been shaken. Together, the bleeding around the brain, the brain injury itself, and the degree of retinal hemorrhage constituted all the classic features of a shaken impact injury. Dr. Matney therefore concluded shaken impact injury was the cause of J.R.'s impairment. A fall could cause retinal hemorrhage, but it would have to produce a severe impact.

c. Other injuries

Dr. Matney also found evidence of injuries not directly associated with either the November 1 incident or the November 29 incident. J.R.'s medical records showed that on August 30, 2000, he had a healing posterior rib fracture. Dr. Matney would not expect an infant of J.R.'s age on that date to have suffered a rib fracture. J.R. also had two healing rib fractures, at least a couple of weeks old, on September 10, 2000.

On November 29, 2000, J.R. had healing fractures of several posterior ribs other than the ones that were healing on September 10. Posterior rib fractures are invariably caused by squeezing. Altogether, J.R. had six or seven rib fractures.

Also on November 29, J.R. had a metaphyseal fracture on one lower leg, and probably one on the other lower leg. Metaphyseal fractures are almost invariably caused by abuse.

d. Overall conclusions

Dr. Matney concluded at the time of trial, four and a half years after the injuries, that J.R. was not going to show meaningful recovery. He would always be in an infantile state. She concluded that all of J.R.'s injuries, including those from the November 1 and November 29 incidents, were caused by physical abuse.

2. Dr. Weinraub

Michael Weinraub, M.D., a board-certified pediatrician employed by the County of Los Angeles as the children's court pediatric consultant, testified for the defense. He had reviewed medical records of J.R. but had not examined him.

a. November 1 incident

Dr. Weinraub believed defendant's explanation of the broken arm on November 1, 2000, made sense. However, he believed it would be â€