Filed 4/26/18 P. v. Ulloa CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

JOSEPH AARON ULLOA,

Defendant and Respondent.

F075954

(Super. Ct. No. VCF244038)


ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]

THE COURT:
It is ordered that the opinion filed herein on April 10, 2018, be modified as follows:
1. On page 10, the last paragraph, immediately following the first sentence, which ends with “defendant’s second section 995 motion,” add as footnote 8 the following footnote, which will require renumbering of all subsequent footnotes:
8 Stated another way, given the circumstances of the case and the manner in which the parties addressed the issue in their briefs, the People waived any challenge to the hearing of the second motion.

There is no change in the judgment.
Appellant’s petition for rehearing is denied.




DETJEN, J.

WE CONCUR:



HILL, P.J.


LEVY, J.

Filed 4/10/18 P. v. Ulloa CA5 (unmodified opinion)



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

JOSEPH AARON ULLOA,

Defendant and Respondent.

F075954

(Super. Ct. No. VCF244038)


OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.
Tim Ward, District Attorney, Dan Underwood, Chief Deputy District Attorney, Dave Alavezos, Assistant District Attorney, Douglas W. Rodgers, Jennifer Fultz, and Adam Clare, Deputy District Attorneys, for Plaintiff and Appellant.
Lisa Bertolino, Public Defender, Thomas McGuire, Assistant Public Defender, and Kenneth W. Jones, Deputy Public Defender, for Defendant and Respondent.
-ooOoo-
The People appeal from an order granting a Penal Code section 995 motion with respect to a torture-murder special circumstance allegation. We affirm.
PROCEDURAL HISTORY
On October 28, 2010, a complaint was filed in the Porterville Division of the Tulare County Superior Court, charging Joseph Aaron Ulloa (defendant) with murder (§ 187, subd. (a); count 1) and assault on a child causing death (§ 273ab; count 2). A special circumstance appended to count 1 alleged the murder was intentional and involved the infliction of torture. (§ 190.2, subd. (a)(18).) The preliminary hearing was held on August 17, 2011, at the conclusion of which defendant was held to answer on both charges and the special allegation.
On August 22, 2011, the case was assigned to Judge Saucedo for all purposes. That same day, the District Attorney charged defendant, by information filed in Tulare County Superior Court, with the same counts and special circumstance allegation as were contained in the complaint. On September 8, 2011, defendant was arraigned, and pled not guilty and denied the special allegation.
On October 20, 2011, defendant moved to set aside the information in its entirety, on the ground he was committed without reasonable or probable cause. (§ 995, subd. (a)(2)(B).) The People opposed the motion. On November 22, 2011, Judge Saucedo denied the motion. The People announced they would be seeking the death penalty in this matter.
Numerous pretrial proceedings and continuances ensued. At some point, Judge Saucedo became unavailable. As a result, on April 28, 2015, the matter was assigned to Judge Paden for all purposes.
On March 1, 2017, during a hearing on various motions, the court observed: “The [defense] motion . . . about deeming the death penalty unconstitutional as to this particular case, I like what I read in People versus Steger [(1976) 16 Cal.3d 539] . . . . It’s a 1976 case that seems to be very, very close to the facts that we have in this case. [¶] But, quite frankly, my tentative thought on that is we’ll death qualify a jury, and we’ll go to trial on this matter. I think it’s more appropriately raised in an 1118.1 motion, would be my thoughts. And if it’s close to Steger, that may happen. [¶] You can ask Mr. Alavezos [another member of the district attorney’s office]. I dismissed on a special circumstance case about five years ago the special circumstance on 1118.1 on a case he had. [¶] So I’ve done it before. And that Steger case really stood out to me.”
On April 27, 2017, the hearing on several motions was continued. This took place:
“[THE COURT:] I want to give [the prosecutor] something to think about. I’ve read this case, read the preliminary hearing transcript, read all the briefs. I don’t see the special circumstance allegation. I would have granted a 995 on that. I don’t see this as torture.
“Your problem, [prosecutor], is this. If you would allow me to relitigate the 995, at least you would have the ability to seek appellate review before trial. If we go to trial, you’re going to be hard pressed to withstand an 1118 motion.
“[PROSECUTOR]: Well —
“THE COURT: I’m just giving you some thoughts.
“[PROSECUTOR]: I know, but it should be up to the jury to decide.
“THE COURT: Well, you can ask Mr. Alavezos.
“[PROSECUTOR]: I know. I already know about that other case. But this — you know, it’s clearly torture what happened to that three-month-old baby.
“THE COURT: I’m just telling you my feeling after reading the preliminary hearing transcript, which you folks asked me to do.[ ] And I made extensive notes in reading all the briefs. That’s the way I see it.
“This matter’s continued . . . .”
On May 17, 2017, hearing on the motions again was continued. The court informed counsel it likely would not declare the death penalty unconstitutional. This ensued:
“[PROSECUTOR]: . . . Last time — well, each time we’ve been here, the Court keeps stating that you — to do another 995 on this case.
“THE COURT: I suggested that.
“[PROSECUTOR]: Okay. So what — if the Defense wants to do one, we’ll agree to it.
“I looked back at the 995, our response, our opposition to the defense’s original motion, and then I read the transcripts for [sic] Judge Saucedo heard the 995.
“The People would agree that we could come back like in three weeks and reargue the 995, because the Defense didn’t really argue it. If that’s what they want to do, we’ll agree to that.
“[DEFENSE COUNSEL]: Certainly.
“THE COURT: I think that is a great idea. And to me my concept, where I’m headed for on this 995, in reading your brief, was that the victim doesn’t necessarily have to suffer pain, that type of thing, with regards to the torture. And your case law supports that.
“But I think . . . I’m coming at it from a different angle. What was the defendant’s intent when he inflicted these injuries, the broken rib, the prior injuries, and what was his intent. Was it to inflict this unjustifiable pain and suffering. And that’s where I had some issues.
“[PROSECUTOR]: And that’s where we’re going with his intent that day. . . . [¶] . . . [¶] But that’s fine. I mean I’ll agree to that. The Defense didn’t get a chance to argue on the record on the 995. So I don’t have a problem . . . so then we can both do argument.
“But . . . then if the Court grants the 995 on the special circumstance, we’re going to take it up on appeal. And then if the appeal court reverses it, then we go forward.
“THE COURT: Exactly. And, boy, I’d feel much more comfortable with that, because I hate to see you get in a position that I cut your legs out from under you in trial on an 1118 and you have no appellate relief. That was my concern.
“[PROSECUTOR]: Well, but the Court also hasn’t heard all the evidence either.
“THE COURT: I haven’t.
“[PROSECUTOR]: That’s fine. I mean the People will agree to that if the Defense wants to bring a 995.”
The defense subsequently filed a motion to set aside the information, pursuant to section 995. Defendant alleged the special circumstance allegation should be set aside because no evidence of first degree murder, intent to kill, or intent to inflict extreme physical pain and suffering was presented to the magistrate. Defendant also argued count 2 should be set aside because there was insufficient evidence of force resulting in death. Defendant further claimed there was insufficient evidence he killed the victim. The People opposed the motion.
The matter was heard on June 30, 2017. The court stated it had read defendant’s brief, but noted the only aspect of the section 995 motion the court indicated it would reconsider was the holding to answer on the special circumstance allegation of torture. It agreed with the People’s position the victim did not need to suffer pain for the torture allegation to be valid. It stated:
“But I’m more focused on the evidence that would support a finding that the defendant killed Baby Jackson for a sadistic purpose by intending to inflict extreme physical pain and suffering.
“It appears to me after reading all the testimony at the preliminary hearing that the traumatic injuries to Baby Jackson occurred one of two ways or a combination; either the Shaken Baby Syndrome or throwing the baby around, throwing it on a chair or the couch on one or two occasions in a very reckless manner or a combination of both that led to the death.
“And then you go to the jury instruction on the special circumstance of murder with torture, 733 of CALCRIM.
“And the third component is that the defendant intended to inflict such pain and suffering for the calculated purpose of revenge. Well, revenge doesn’t apply here. Extortion. That doesn’t apply. Persuasion. That doesn’t apply. Or any other sadistic reason.
“So I’m looking for a sadistic reason that the defendant killed Baby Jackson. And then that the defendant did an act involving the infliction of extreme physical pain and suffering on Baby Jackson.
“The People contend that the defendant repeatedly inflicted injuries; that he shook the victim, threw the victim, and placed him in a chair so he could take a nap during this time. Obviously Baby Jackson, due to the injuries, stopped breathing and went into cardiac arrest.
“So I went back through the testimony. And what I’m looking for is something by the defendant other than just the injuries that would indicate that he had a sadistic purpose in bringing about the killing of Baby Jackson.
“There’s no evidence that I see about how he treated the child when he was alive in terms of — other than the shaking and the throwing. What statements that made it clear that the defendant hated this child or intended to inflict some type of sadistic pain on him. There’s none of that.
“The only thing that we have are some injuries that are consistent with Shaken Baby Syndrome and a prior healing fracture. So when it’s all said and done, you’re looking for the intent by the defendant to cause cruel suffering to satisfy some sadistic propensity by the defendant towards Baby Jackson.
“My reading of the preliminary hearing testimony does not support that finding. So the Court grants the 995 as to the special circumstance.”
The People filed a timely notice of appeal from the court’s ruling. By order of March 5, 2018, we stayed further trial court proceedings.
DISCUSSION
The People claim the trial court erred. They say it could not reconsider and overrule a ruling of another judge, or reweigh the evidence presented at the preliminary hearing. They also say evidence supporting the torture special circumstance allegation is not totally absent. Defendant responds that the rehearing of the section 995 motion was lawful, the trial court did not reweigh the evidence or substitute its judgment for that of the magistrate, and, because the special circumstance allegation was not supported by any substantial evidence, it was properly set aside.
I
THE PROPRIETY OF THE TRIAL COURT HEARING A SECOND SECTION 995 MOTION
A court’s inherent powers in criminal cases are wide, and include the authority to rehear or reconsider rulings. (Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1065.) The general rule, however, is that “one trial judge cannot reconsider and overrule an order of another trial judge.” (People v. Riva (2003) 112 Cal.App.4th 981, 991.) “ ‘ “A superior court is but one tribunal, even if it be composed of numerous departments . . . . An order made in one department during the progress of a cause can neither be ignored nor overlooked in another department. . . .” ’ [Citation.] This is because the state Constitution, article VI, section 4 vests jurisdiction in the court, ‘. . . and not in any particular judge or department . . . ; and . . . whether sitting separately or together, the judges hold but one and the same court. [Citation.] It follows, . . . where a proceeding has been . . . assigned for hearing and determination to one department of the superior court by the presiding judge . . . and the proceeding . . . has not been finally disposed of . . . it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned . . . .’ ” (In re Kowalski (1971) 21 Cal.App.3d 67, 70.) “ ‘For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge [improperly] places the second judge in the role of a one-judge appellate court’ . . . . [Citation.]” (People v. Saez (2015) 237 Cal.App.4th 1177, 1184-1185.)
An exception exists where the judge to whom the proceeding was assigned has been legally removed therefrom or is otherwise unavailable. (Williams v. Superior Court (1939) 14 Cal.2d 656, 662; People v. Saez, supra, 237 Cal.App.4th at p. 1185.) Here, the case was reassigned from Judge Saucedo to Judge Paden, indicating Judge Saucedo had been legally removed or was otherwise unavailable. Ordinarily, however, “a motion under section 995 should not be renewed unless changed circumstances are shown which have a significant bearing on the question whether a defendant was indicted or committed without probable cause [citation].” (In re Kowalski, supra, 21 Cal.App.3d at p. 70.)
We need not decide whether Judge Paden properly permitted defendant to bring a second section 995 motion so Judge Paden could revisit the special circumstance allegation, or whether, under the circumstances, Judge Saucedo’s denial of the first such motion should have been the end of the matter, once this court denied defendant’s subsequent writ petition. Assuming error, Judge Paden at most acted in excess of the court’s jurisdiction.
“A lack of jurisdiction in its fundamental or strict sense results in ‘ “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” [Citation.] On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack “ ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” [Citation.] When a court fails to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction.’ [Citations.] [¶] The distinction is important because the remedies are different. ‘[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent. . . . [Whereas] “. . . an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time. [Citations.]” [Citations.]’ [Citations.]” (People v. Lara (2010) 48 Cal.4th 216, 224-225; see, e.g., In re Andres G. (1998) 64 Cal.App.4th 476, 482.)
“So long as a court has subject matter jurisdiction — [and there is no question Judge Paden had it here] — then a party seeking or consenting to action beyond the court’s power may be estopped from complaining that the resulting action exceeds a court’s jurisdiction. [Citation.]” (People v. Ford (2015) 61 Cal.4th 282, 284-285, italics added.) Whether estoppel will be found “depends on the importance of the irregularity and considerations of public policy. [Citations.] [¶] Reviewing courts have repeatedly allowed acts in excess of jurisdiction to stand when the acts were beneficial to all parties and did not violate public policy [citation], or when allowing objection would countenance a trifling with the courts. [Citation.] [¶] On the other hand, courts have voided acts in excess of jurisdiction when the irregularity was too great, or when the act violated a comprehensive statutory scheme or offended public policy. [Citations.]” (In re Andres G., supra, 64 Cal.App.4th at pp. 482-483.)
We conclude the People are estopped from challenging Judge Paden’s hearing of defendant’s second section 995 motion. Defendant did not simply file a second motion. Rather, Judge Paden gave the People a choice whether to permit relitigation on the torture special circumstance issue. The prosecutor had several weeks to consider and weigh the options, then expressly stated her agreement to allowing defendant to bring another section 995 motion if he so desired. Relitigation was beneficial to both parties in light of the fact the People could seek appellate review of the granting of such a motion, but would not have been able to do so had the trial court found the evidence insufficient at trial. (See § 1118.2.) The prosecutor may have been put in the position of having to make a difficult choice, but parties are often required to choose between competing or conflicting courses of action, without error occurring. (See, e.g., People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 368.)
II
THE APPLICABLE STANDARD OF REVIEW
Under section 995, an information will be set aside if, inter alia, the defendant was committed “without reasonable or probable cause.” (§ 995, subd. (a)(2)(B).) “Probable cause to hold a defendant to answer is shown if a person ‘ “ ‘of ordinary caution or prudence [would be led] to believe and conscientiously entertain a strong suspicion of the guilt of the accused [citation]. . . .’ ” ’ [Citation.] ‘To support a felony information, there need be only “some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it” [citation], and an information will not be set aside or a prosecution prohibited thereon if this standard is met.’ [Citation.]” (People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 842.) “The evidentiary test to be applied to the appellate review of a ruling on a special circumstance allegation is whether there is ‘some rational ground for assuming the possibility’ that the special circumstance is true. [Citations.]” (People v. Hoban (1985) 176 Cal.App.3d 255, 262.) Thus, evidence sufficient to support a conviction is not required. (People v. Slaughter (1984) 35 Cal.3d 629, 637; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.)
In ruling on a section 995 motion, “the superior court sits as a reviewing court of the magistrate’s determination that the evidence is sufficient to hold the defendant over for trial. In this situation, the magistrate is the trier of fact and the superior court has no power to judge credibility, resolve conflicts, weigh evidence or draw its own factual inferences . . . . [Citations.]” (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.) “Neither the trial court in a section 995 proceeding [citations] nor a reviewing court on appeal therefrom [citations] may substitute its judgment as to the weight of the evidence for that of the committing magistrate.” (People v. Hall (1971) 3 Cal.3d 992, 996.) “[I]f there is some evidence to support the information, the [reviewing] court will not inquire into its sufficiency. [Citations.]” (Rideout v. Superior Court, supra, 67 Cal.2d at p. 474.)
The People assert the trial court erred by reweighing the evidence at the preliminary hearing and substituting its judgment as to the weight of the evidence for that of the magistrate. Whether the trial court did so — which we do not decide — is immaterial: “In reviewing the superior court order granting [defendant’s] section 995 motion, we are concerned with the correctness of, not the reasons for, the order. [Citation.]” (People v. Wimberly (1992) 5 Cal.App.4th 439, 443.) “When we review a section 995 motion, we ‘disregard[] the ruling of the superior court and directly review[] the determination of the magistrate.’ [Citations.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 654; accord, e.g., Roman v. Superior Court (2003) 113 Cal.App.4th 27, 32; People v. Superior Court (Lujan) (1999) 73 Cal.App.4th 1123, 1127; People v. Kongs (1994) 30 Cal.App.4th 1741, 1748.) “We review the evidence in support of the information to determine whether as a matter of law it is sufficient, not whether the trial court’s ruling was reasonable. [Citations.]” (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226.)
“[A]n . . . information should be set aside only when there is a total absence of evidence to support a necessary element of the offense [or special circumstance] charged. [Citations.] [¶] ‘[A]lthough there must be some showing as to the existence of each element . . . such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate.’ [Citation.] ‘Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.’ [Citation.]” (People v. Superior Court (Jurado), supra, 4 Cal.App.4th at p. 1226.) The inferences must be reasonable, however. (People v. Holt (1997) 15 Cal.4th 619, 669.) “An inference is not reasonable if it is based only on speculation. [Citation.]” (Ibid.)
III
THE VALIDITY OF THE TORTURE-MURDER SPECIAL CIRCUMSTANCE
A. The Evidence Presented at the Preliminary Hearing
On September 23, 2010, Detective Green of the Porterville Police Department responded to a residence in Porterville, regarding a report of an infant having difficulty breathing. By the time he arrived, the infant had been transported by ambulance to Sierra View District Hospital.
Officer Orique, who was on scene when Green arrived, advised Green that he had responded to the apartment in regard to a report of a baby not breathing. When Orique arrived, he located that baby (Jackson Ulloa, born June 27) and baby’s father (defendant), and saw Jackson was not breathing. He also saw a small amount of blood coming from Jackson’s nose.
Green proceeded to the hospital, where J.B. (Jackson’s mother) and defendant were present. Defendant told Green that J.B. had left for work that morning, leaving defendant alone with the baby. Defendant said he was rocking the baby. Defendant fell asleep, then woke after hearing the baby “gurgle” or “gasp for air.” Defendant placed his hand on the baby’s chest and believed he was not breathing. Defendant did not have a telephone, so he went to a neighbor’s house. He first called J.B., then, when he was unable to reach her, he called 911. Both J.B. and defendant told Green they did not recall Jackson having any injuries that could account for his situation. J.B. did say Jackson had been gagging or gasping in the days prior to this date, and he was having difficulty breathing that morning before she left for work. She considered not going to work, because she had “a bad feeling.”
Jackson was transferred to Children’s Hospital Central California (Children’s Hospital). The next day, September 24, Green received a telephone call from Dr. Kinnison, who was attending to Jackson there and was somehow related to the hospital’s child abuse unit. Kinnison stated he had found several medical conditions he believed to be a result of nonaccidental head trauma. He had located severe retinal hemorrhaging. He had also located fresh blood, which tended to show there may have been injuries prior to whatever specific trauma caused Jackson to stop breathing the day before.
On October 13, Green interviewed J.B. at the Porterville Police Department. J.B. said she had fed Jackson prior to leaving to go to work. Jackson was breathing and moving around. He was active and seemed fine, although he may have been pale. J.B. said she had visited Jackson 10 to 12 times at the hospital. She said defendant had gone far less and, once somebody at the hospital made a statement to them that they suspected shaken baby syndrome, defendant never returned.
Green asked if J.B. ever saw defendant being abusive toward Jackson. J.B. described two occasions she personally witnessed. Three to four weeks earlier, she saw defendant “forcefully” or “abruptly” place Jackson in his blanket. She said it upset her. On the second occasion, she observed defendant “roughly” pull Jackson off a pillow on the bed, causing Jackson to hit his head. She said she “smacked” defendant and left for the day. J.B. also recalled a time defendant described to her an incident in which he was changing Jackson and holding the baby down by his wrists. J.B. saw marks on Jackson’s wrists, legs, back, palms, and chest on this occasion, which was up to a week before the incident in which Jackson stopped breathing.
On October 14, Green was contacted by a social worker at Children’s Hospital. Green was informed that after Jackson had been in a coma or on life support, J.B. had elected to remove Jackson from life support, and it was anticipated Jackson would expire quickly. Jackson died that same day.
On October 19, Dr. Hartman performed an autopsy on Jackson. Jackson had the appearance of a well-developed, well-nourished infant weighing 23 pounds 7 ounces. There was no external evidence of trauma, but the autopsy was performed one month after the injury. In this regard, the information Hartman received was that Jackson was taken to Sierra View District Hospital in Porterville, then Children’s Hospital, on September 23. He had been admitted following cardiac arrest and prolonged cardiopulmonary resuscitation. He developed hypoxic brain injury and died October 14. When he was admitted to the hospitals, subarachnoid hemorrhages under the covering of the brain were documented.
The autopsy revealed organizing subdural hemorrhage (a collection of blood under the dura mater, the dense covering of the brain under the skull) over both hemispheres of the brain. The brain was fixed in formalin and sent to Stanford University, where numerous abnormalities were found that were consistent with the reported hypoxic brain injury. This is brain injury from loss of oxygen and from the subdural hematoma, which would have been a traumatic injury.
On autopsy, Jackson’s eyes showed organizing retinal hemorrhages and organizing hemorrhages to the optic nerve, which was evidence of traumatic injury. The eyes were also fixed and sent to Stanford, where a small retinal hemorrhage with evidence of resolving hemorrhages were found.
Postmortem CT studies were also performed on Jackson. They showed organizing posterior rib fractures, which Hartman considered a very important finding. He explained that posterior rib fractures in an infant are always due to trauma. The fractures may not be seen or may be missed in the acute stage, but when they begin to heal, they develop a callus, which is a kind of a fibrous casing around the healing fracture, and demineralization of the bone, whereupon the fracture becomes obvious. The radiologists estimated the age of the fractures was approximately one month.
Based on Hartman’s examination, the cause of Jackson’s death was head and chest trauma. The head trauma was the bleeding under the covering of the brain, and the bleeding into the retinas and optic nerves of both eyes. The bleeding in the brain was over both hemispheres. Its source was small vessels in the covering of the brain. There was no wound of the brain that Hartman could see. This implied a shear-type injury that would break a lot of small vessels. When there is a rapid acceleration or deceleration, typically bleeding under the covering of the brain results.
In his report, Hartman opined that death was due to hypoxic encephalopathy (the brain was deprived of oxygen) secondary to cardiopulmonary arrest. The child was observed to have a cardiac arrest, meaning something caused the heart to stop beating. The rescue people got the heart going again after prolonged resuscitation, but there was a neurologic deficit that was presumed at the time — and the examination at Stanford confirmed — to be anoxic encephalopathy, meaning the brain had been deprived of oxygen. The hypoxic encephalopathy was what eventually killed the child.
On October 26, Green interviewed defendant at the Porterville Police Department. The interview was voluntary. Green did not advise defendant of his rights, because defendant was always free to leave and was informed of that fact.
At the beginning of the interview, defendant gave the same statement of events as he had when Green spoke with him at the hospital. Green advised him that the results of the autopsy and other information showed the cause of death was from nonaccidental head trauma, and that if Jackson was injured as the result of an accident, defendant needed to tell Green. Green said this to defendant and alluded to it numerous times, but defendant never responded.
Defendant’s story continually evolved during the interview. At one point, defendant said he picked Jackson up roughly and sat him down roughly. Later, defendant said he believed he caused his son’s injuries. He said he had shaken Jackson two or three times and thrown or tossed (the statement varied) him down on the bed and couch two to three times.
Green asked defendant to demonstrate, and handed him a doll. Defendant held the doll in front of him and shook it slightly. He said he shook Jackson like that and told him to stop crying. He also roughly set the doll down. This progressed to defendant throwing the doll down and explaining that was how he threw Jackson on the couch and bed on the day the injuries were caused. At one point, defendant said he shook Jackson for a minute. Defendant said he did so two or three times. Defendant said he “forced [Jackson] down” because Jackson would not stop crying. Defendant appeared reluctant to provide what Green believed to be a truthful explanation concerning how far he threw Jackson and what type of force he used. Green felt defendant’s demonstration with the doll was an effort to minimize what he had done. Defendant seemed desensitized during the interview, but he became a little excited when he was tossing the doll down. Defendant did not admit striking Jackson. At one point, however, he said he knew he had caused Jackson’s injuries.
Defendant related that after he shook and threw Jackson, they sat down on the couch. Defendant placed Jackson in his rocker and took a nap. Jackson also went to sleep. About 30 minutes later, defendant was awakened by Jackson gurgling and making noise.
Dr. Bruhn, a retired pediatrician, testified as an expert in child abuse. He reviewed numerous medical records with respect to Jackson, from the time Jackson was born until he died, as well as police reports concerning this case, the video recordings of Green’s interviews of J.B. and defendant, and the autopsy report and notes.
The records showed Jackson, who was three months old, was admitted to Sierra View District Hospital shortly before 11:00 a.m. on September 23, due to cardiorespiratory arrest, meaning his heart and lungs both stopped working. Jackson’s pupils were fixed and dilated. There was blood coming from Jackson’s mouth and nose, meaning there had been some sort of trauma to the area. At the hospital, Jackson was intubated. A chest X-ray was taken. Nothing was noted in that X ray.
Because it was clear Jackson was critically injured, he was transported by helicopter to Children’s Hospital, which could provide a higher level of care. Once there, he had seizures. In addition, Jackson’s blood pressure was down and he was not perfusing. Essentially, he had a heart attack due to lack of oxygen. It was also noted that he had a very full fontanelle, indicating his brain was swelling. A CT scan showed subdural bleeding and evidence the brain had been deprived of oxygen. He was also diagnosed with bilateral severe retinal hemorrhages in all layers of the retina. In Bruhn’s opinion, he stopped breathing due to injury to the brain stem. Essentially, he lost the area in his brain that controls breathing.
Jackson was “in dire straits” upon his arrival at Children’s Hospital, although initially he did not meet all the criteria for being brain dead. The damage to his heart muscle improved over time because he was on the ventilating machine, but he never regained consciousness. Many doctors examined him and concluded he had nonaccidental or abusive head trauma.
Jackson was placed on a mechanical ventilator that breathed for him. From time to time, he was removed from it to see if he could maintain his respirations. He would only manage a few agonal gasps, so he would be put back on the machine. After approximately three weeks, it was decided he met the criteria for being brain dead.
Jackson’s primary injuries were the subdural and retinal hemorrhages and, as a result, the presumed injury to the brain stem that “short-circuited his breathing.” Bruhn hypothesized that when he was placed in the chair by defendant, it was likely Jackson was having shallow breathing, which eventually led to cardiac arrest and affected his brain. Although all children are different in terms of how long the shallow breathing continues before cardiac arrest and it depended on how effective Jackson’s respirations were, it would not have taken long, perhaps five to 15 minutes.
With respect to Jackson’s bilateral subdural hematoma, Jackson was evaluated by a neurosurgeon when he came to Children’s Hospital. It was the neurosurgeon’s opinion Jackson did not need to have blood evacuated or drained to relieve pressure, because the blood was not causing a shift to the brain. The hematomas definitely were acute (meaning immediate), although one of the radiologists saw there was mixed density and thought they might be acute and chronic. Jackson had a great deal of brain swelling.
In Bruhn’s opinion, “inflicted head trauma” applied to the injuries Jackson received on September 23. In Bruhn’s training and experience, when a baby continues to cry, it can trigger a person to become physically assaultive toward the baby. Defendant shaking Jackson and throwing him on the bed and couch several times would have caused Jackson’s injuries and ultimate death if done hard enough. The shaking and throwing of the doll demonstrated by defendant in the video recording of his interview seemed not to have been hard enough, although in Bruhn’s experience, people accused of shaking a baby often minimize their conduct. He suspected that was what defendant was doing. Based on Bruhn’s experience, when defendant placed Jackson in the chair, Jackson did not go to sleep, but was probably not breathing properly and was heading toward cardiac arrest and oxygen deprivation of the brain.
Asked whether, based on Bruhn’s training and experience, Jackson was suffering during the period of time after he was shaken and thrown by defendant, Bruhn replied, “You know, it’s really tough with a three month old since they are non-verbal. I can’t imagine that it’s comfortable to be gasping for your breath so projecting from an adult I would say — . . . it’s a tough question.” The prosecutor clarified her question was not about pain, but whether he was suffering in the way he had shallow breathing and was unable to get a breath. Bruhn responded: “Yes, I would project and say that’s uncomfortable.”
Based on Bruhn’s training and experience, people who physically abuse babies tend to delay getting medical aid. In this case, Bruhn did not understand why defendant called his wife before calling 911. It did not necessarily mean defendant injured Jackson, but it was a delay seen with respect to abused children. Based on Bruhn’s training and experience, when someone has abused a child, it normally is not an isolated incident.
Jackson’s retinal hemorrhages were so severe, they were still present when he died. Absent a bleeding disorder, which Jackson did not have, the only time retinal hemorrhages of this degree are seen is when there is a severe motor vehicle accident and the child is thrown a lot, or if, for example, a large, old-fashioned television falls on the child’s head. There was no history of this in Jackson’s case, and the shaking was the presumed mechanism. Babies are prone to injuries if shaken, because they have large heads and no neck muscles. Retinal hemorrhages cannot be dated with respect to when they occurred.
X-rays were taken of Jackson on several occasions during his stay at Children’s Hospital. No fractures were noted. When Bruhn saw Hartman’s report of rib fractures, he went over the X-rays with another radiologist. The rib fractures, which were just cracks, were visible on X-rays taken October 5, but were missed. Bruhn concluded they probably occurred around the date of the initial injury, although the time could not be determined with precision, and could have ranged from at least five days before October 5 to probably five days before September 23, give or take even a day or two. Because of musculature and the periosteum that covers the ribs, it is normal not to see bruising with fractured ribs in infants who are abused. It is, however, unusual to see a three-month-old baby with fractured posterior ribs. The two causative mechanisms known to Bruhn were a direct blow or severe squeezing.
In Bruhn’s opinion, Jackson was a victim of physical abuse. The injuries inflicted by defendant were a direct cause of Jackson’s death.
B. Analysis
First degree murder is punishable by death or life in prison without the possibility of parole if “[t]he murder was intentional and involved the infliction of torture.” (§ 190.2, subd. (a)(18).) “Proof of a murder committed under the torture-murder special circumstance requires (1) proof of first degree murder, (2) proof that the defendant intended to kill and torture the victim, and (3) proof of the infliction of an extremely painful act upon a living victim. [Citation.] The torture-murder special circumstance thus is distinguished from first degree murder by torture in that it requires defendant to have acted with the intent to kill and applies where the death involved the infliction of torture, regardless of whether the acts constituting the torture were the cause of death. [Citations.]” (People v. Jennings (2010) 50 Cal.4th 616, 647; see CALCRIM No. 733.)
“Torture focuses upon the mental state of the perpetrator. [Citation.]” (People v. Massie (2006) 142 Cal.App.4th 365, 371.) “[F]or an intentional murder to involve ‘the infliction of torture’ under section 190.2, subdivision (a)(18), . . . the requisite torturous intent is an intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose. A premeditated intent to inflict prolonged pain is not required.” (People v. Elliot (2005) 37 Cal.4th 453, 479, fn. omitted.) There is also no requirement the victim be aware of the pain. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1187, disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
In the context of the torture-murder special circumstance, “revenge, extortion, and persuasion are self-explanatory. Sadistic purpose encompasses the common meaning, ‘ “the infliction of pain on another person for the purpose of experiencing pleasure.” ’ [Citation.]” (People v. Massie, supra, 142 Cal.App.4th at p. 371.) The sexual element or motivation often found in sadism is unnecessary, however. (People v. Smith (2015) 61 Cal.4th 18, 53; People v. Massie, supra, 142 Cal.App.4th at p. 371.)
The intent to inflict extreme pain may be inferred “ ‘from the circumstances of the crime, the nature of the killing, and the condition of the victim’s body. [Citation.]’ [Citation.]” (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1187. fn. omitted.) As the California Supreme Court has explained, “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, italics omitted.)
The evidence adduced at the preliminary hearing affords a rational ground for assuming the possibility defendant inflicted an extremely painful act upon Jackson. It does not, however, support a reasonable inference defendant did so for the purpose of revenge, extortion, persuasion, or experiencing pleasure. This is so even when the other instances in which defendant was “rough” or “abrupt[]” in his handling of Jackson are taken into account. Although child abuse can constitute torture, depending on the circumstances (see, e.g., People v. Jennings, supra, 50 Cal.4th at pp. 628-629, 647; People v. Mincey (1992) 2 Cal.4th 408, 433-434), here the evidence showed a few discrete incidents of arguably abusive treatment, only one of which so much as left marks on Jackson’s body (cf. People v. Mungia, supra, 44 Cal.4th at pp. 1137-1138 & cases cited therein).
The evidence adduced at the preliminary hearing shows defendant wanted Jackson to stop crying. It was to this end that defendant shook and threw the baby. No matter how violent and harmful defendant’s actions, there is no rational ground for assuming they were done for revenge, extortion, persuasion, or some other sadistic purpose. Accordingly, there is no rational possibility the special circumstance is true, because, as a matter of law, the evidence has failed to establish an essential element thereof.
We emphasize that our analysis and conclusion apply only to the torture-murder special circumstance, which is the only issue of an evidentiary nature that is before us. We do not know whether the People have developed evidence not presented at the preliminary hearing. Nothing we say should be read as precluding them from presenting such evidence, and pursuing a particular course or theory, at trial with respect to the substantive charges. What they cannot do is seek the ultimate penalty against defendant.
The evidence does not afford a rational ground for assuming the possibility every required element of the torture-murder special circumstance is true.
DISPOSITION
The order granting the Penal Code section 995 motion as to the torture-murder special circumstance (Pen. Code, § 190.2, subd. (a)(18)) is affirmed. The order filed in this court on March 5, 2018, staying trial court proceedings in this matter, is vacated.



DETJEN, J.
WE CONCUR:



HILL, P.J.



LEVY, J.