P. v. Miller

Filed 11/17/08 P. v. Miller CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Burt Pines, Judge. Affirmed.

Law Offices of E. Thomas Dunn, Jr., and E. Thomas Dunn, Jr., for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Defendant and appellant Dawn M. Miller appeals from the judgment entered following a jury trial that resulted in her conviction of misdemeanor child abuse, a lesser included offense of felony child abuse.^[1] She contends the judgment is not supported by substantial evidence and that the guilty verdict on the lesser included offense is inconsistent with the acquittal on the charged offenses. We affirm.

FACTS

We recount the evidence in accordance with the usual rules of appeal. (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft).)

A. TheProsecutor Case

As a result of her premature birth, defendants daughter, S.H., suffered complications which required her to remain in a neonatal intensive care unit for several days where she was treated with steroids and monitored with X-rays. These X-rays showed no fractured bones. When S.H. left the hospital about a week later, her calcium and alkaline phosphate levels were normal, which indicated that her bones were normal, not weak or brittle. About 8:00 p.m. on December 14th, defendant and her husband, S.H.s father, brought S.H. in to the emergency room at Providence-St. Joseph Medical Center (St. Joseph) because S.H.s left leg was swollen.

An X-ray revealed that S.H. had a spiral fracture of the left femuran injury caused by twisting the leg. The examining doctor noticed two little bruises on S.H.s cheek in addition to the leg injury. Defendant told the doctor that she did not know how the leg injury happened, but that the bruises were caused by S.H. pinching herself. Suspecting child abuse, the doctor called social services and told the parents that they could not leave St. Joseph because S.H. had to be transferred to a different hospital.

Los Angeles Police Officer Casey Sbabo and his partner responded to a child abuse call at St. Josephs about 9:15 p.m. on December 14th. Defendant told Sbado that she and her husband brought S.H. to the hospital after they noticed her swollen leg while bathing her. In response to Sbabos inquiry, defendant said nothing unusual happened to cause the injury but S.H. had brittle bones as a result of being born prematurely.

Hours later, she repeated a similar story to childrens Social Worker Max Briseno, an emergency response investigator with the Department of Children and Family Services. Defendant told Briseno she had been alone all day with S.H., who was cranky. Defendant also said S.H. had prior problems with her left leg, but defendant did not know how S.H. had injured her leg on this occasion. In addition to the leg injury, Briseno noticed a small bruise on S.H.s cheek; defendant said this bruise was caused by S.H. pinching herself.

Dr. Atsuko Fujimoto, a retired pediatric geneticist, testified that osteogenesis imperfecta is a genetic disease in which one is born with fragile bones that can break from just minor trauma. Based on his examination of S.H. and the lack of family history of the disease, Fujimoto concluded that S.H. did not have osteogenesis imperfecta.

Dr. Linda Vachon was chief of pediatric radiology at Los Angeles County/USC Womens and Childrens Hospital (Childrens Hospital). Vachon reviewed X-rays of S.H. taken the day she was born, which showed no fractures. When she reviewed the emergency room X-rays taken of S.H., she saw multiple fractures. Vachon also reviewed additional X-rays taken at Childrens Hospital, that showed multiple fractures of S.H.s right and left arms, right and left legs and ribs; some were very recent and others two to six weeks old. In Vachons opinion, S.H. had normal bone density. X-rays were taken in February 2005 appeared to show no new fractures since December 2004.

Dr. Lynne Ticson testified that on December 15, 2004, during an examination of S.H., defendant stated that she was S.H.s sole caretaker. Defendant was unaware of any of S.H.s injuries except for the broken left leg that brought them to the emergency room; she had no explanation for how any of the injuries could have happened. Regarding the dime-sized bruise Ticson noticed on S.H.s left cheek; defendant said that S.H. makes fists and she punches herself in the cheeks and pinches her ears. Ticson testified that it is developmentally not possible for an 11-week-old baby to cause a bruise by punching or pinching herself in the face because a baby that age does not have the strength to make a fist or form a pincher grasp. The blood samples taken from S.H. at Childrens Hospital showed that she had normal calcium and alkaline phosphate levels, which indicated that S.H. had normal bones which would not break absent some trauma. Ticson testified that S.H.s rib fractures would have been caused by direct pressureeither squeezing or a direct blow; the right thigh fracture would have been caused by a twisting type of force; the right upper arm fracture would have been caused by either a direct blow to the limb or taking the limb and banging it against something; the left thigh injury would have been caused by twisting; the left arm injury would have been caused by grabbing the arm and using the weight of the baby to break it or its kind of like a chicken bone, you can snap it or by a direct trauma; the left wrist fracture would have been caused either by twisting or a direct blow. There was no evidence of any accident that could have been the cause of the injuries. In Ticsons opinion, the injuries were caused by nonaccidental trauma; in other words, someone or something caused the injuries.

B. The Defense Case

Defendant testified about her pregnancy generally, including complications that led her to be hospitalized during much of it. When S.H. came home, defendant was her primary caretaker although her husband helped on weekends and defendants mother and sister (who also lived in the house) helped occasionally. On December 7th and 9th, defendant called S.H.s pediatrician, Dr. David Boxstein, because S.H. was unusually fussy. On December 14th, defendant got up at 5:45 a.m. with S.H. and her husband, who was running late because the baby had been fussy the night before. Defendant first noticed that S.H.s left leg was swollen when she and her husband were bathing her that evening. After being unable to reach the pediatrician by telephone, defendant and her husband brought S.H. to the hospital. Defendant loved her baby and never did anything to harm her physically.^[2]

Dr. Boxstein had been defendants pediatrician during her childhood and adolescence and became S.H.s pediatrician. Based upon his examinations, he concluded that S.H. was a very healthy, a growing, premature baby. He did not notice any bruising. Defendant appeared to be enthusiastic, warm, caring, doting, attentive, inquisitive, a loving mother. On December 7th, S.H. was brought in because the parents were concerned that she was fussy and crying. Dr. Boxstein prescribed treatment for gastroenteritis. When S.H. was brought back on December 9th because she had not improved and was vomiting, Dr. Boxstein tested her for a urinary tract infection, which required holding the babys legs apart while a plastic bag was used to collect a urine sample. Dr. Boxstein noticed no bruising and no internal injuries. He saw no evidence that S.H. had been mistreated. He recalled discussing with defendant her concern that S.H. was punching herself in the face. Dr. Boxstein observed S.H. scratch herself on the face.

One of defendants two expert witnesses was Dr. Jeffrey Pietz, director of the Newborn Intensive Care Unit at Fairview Hospital in Cleveland, Ohio and a board certified pediatrician with a subspecialty in neonatology. Pietz testified that premature babies have fragile bones because babies acquire most of their bone mineral, calcium and phosphorous during the last trimester. The more premature the baby, the lower the calcium and phosphorous stores. Pietz confirmed, however, that S.H.s medical records indicated that her calcium and phosphorous levels were within the normal range on September 27, 2004. Nevertheless, Pietz formed the opinion that S.H. had weakened bones based on (1) the absence of any evidence that she suffered pain from her broken bones; (2) the absence of any bruising at the site of the fractures;^[3](3) the absence of any organ damage associated with the rib fractures; (4) the intrauterine exposure to various drugs prescribed to mother for the pregnancy complications; (5) the fact that S.H. was shorter than normal; (6) the malnutrition of mother and child resulting from the prenatal and postnatal intravenous feeding; and (7) the decreased intrauterine activity of the fetus resulting in temporary brittle bone disease.

Dr. Pietz suggested that the fracture of S.H.s arm was caused by the nurse who inserted an IV because, if the fracture was already there, the nurse who inserted the device would have noticed that the arm was swollen and there was no indication that this was the case. He suggested that S.H.s leg fracture occurred when the person who examined her for a urinary tract infection held her legs apart to get a urine sample.

Defendants second expert witness was an orthopedic surgeon, Dr. Thomas Grogan. Over the years, he had treated about 10 patients where there was suspected child abuse; he had treated three or four children under the age of one year who had multiple fractures. He did not personally examine S.H., but he reviewed X-rays taken of her in September and others taken on December 14th, 15th, and 16th. He concluded that S.H. had abnormal bones based on the fracture pattern of her broken bones and the absence of bruising. Grogan testified that there is no practical way to determine bone density or bone strength in children. He suggested that S.H.s arm fracture could conceivably have occurred when the IV was being placed in her arm and the leg fracture could have occurred when her legs were being held apart to obtain a urine sample. He attributed the rib fractures to S.H. having abnormal bones. If she had normal bones, Grogan testified, there would have been bruising evident.

DISCUSSION

A. Substantial Evidence Supports the Judgment

Defendant contends the evidence is insufficient to support the conviction of misdemeanor child abuse. She argues that the cause of S.H.s injuries was unproven. We disagree.

The standard of review on a challenge to the sufficiency of the evidence to support a conviction is well settled. We examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (Kraft, supra, 23 Cal.4th at pp. 1053-1054.) Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment. [Citation.] (Peoplev.Meals (1975) 48 Cal.App.3d 215, 222; see also Peoplev.Green (1985) 166 Cal.App.3d 514, 517.)

Child abuse is committed by any person who willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured. . . . (Pen. Code,  273a, subd. (a) & (b).) It is a felony when committed under circumstances or conditions likely to produce great bodily harm or death (Pen. Code,  273a, subd. (a)) and a misdemeanor when committed under circumstances or conditions other than those likely to produce great bodily harm or death (Pen. Code,  273a, subd. (b)). Thus, it is the presence or absence of circumstances likely to produce great bodily harm or death that distinguishes felony from misdemeanor child abuse, and it is for the trier of fact to determine whether the act was done under such circumstances. (People v. Sargent (1999) 19 Cal.4th 1206, 1223; People v. Burton (2006) 143 Cal.App.4th 447, 454, fn. 4.) When the conduct at issue involves the direct infliction of unjustifiable physical pain on a child, it must be shown that the defendant had a mens rea of general criminal intent to commit the proscribed act. (Sargent, at p. 1224; Burton,at p. 454.)

Here, the prosecutions theory of the case was that the evidence showed that S.H.s injuries were intentionally inflicted by defendant: somebody did something physical to this child, somebody pulled the child, twisted the child, grabbed the child and lifted, squeezed the child, or struck the child in order to cause 15 broken bones. And who did this? The defendant. That it was the defendant, the prosecutor argued, could be inferred from the evidence that she was S.H.s primary caretaker; she was alone with S.H. all day on December 14th, the day the freshly broken leg was discovered; defendant had displayed ambivalence about her pregnancy; and defendant put her own welfare above the childs when she elected to deliver the baby at 34 weeks rather than waiting longer. By acquitting defendant of the felony but convicting her of the misdemeanor, the jury apparently agreed with the prosecutor that defendant willfully caused or inflicted physical pain upon S.H., but did not agree that it was proved beyond a reasonable doubt that defendant did so under circumstances likely to produce great bodily harm or death.

The jurys findings are supported by substantial evidence. This includes the testimony of those medical professionals who concluded that that S.H. did not have any condition which caused her bones to be unusually weak, that her multiple fractures of varying ages were caused by intentionally inflicted trauma, and the amount of force necessary to cause the injuries was substantial. It also includes the evidence that defendant was S.H.s primary caretaker and had been alone with her all day prior to the discovery of the fresh leg break. And it includes the evidence that defendant blamed the bruises on S.H.s face on S.H. pinching herselfsomething the doctors testified an infant could not possibly have done. Albeit circumstantial, this evidence was sufficient to support an inference that defendants intentional conduct was the cause of S.H.s injuries.

That defendant presented contrary evidenceincluding her own testimony and that of her family and friends that she never intentionally injured S.H. and expert witnesses who opined that S.H.s injuries were caused by weakened bones, the placement of an IV and the process of obtaining a urine sampledoes not compel a contrary result. This evidence was simply not credited by the trier of fact.

B. The Acquittal of Felony Child Abuse and Torture Is Not Inconsistent With the
Conviction of Misdemeanor Child Abuse

Without citation to any authority, defendant contends: If the verdicts finding appellant not guilty of felony child abuse and torture are supported by the evidence, the jurys verdict finding her guilty of misdemeanor child abuse cannot be, since the prosecution witnesses uniformly agreed the force used was substantial and consistent with an intent to inflict great bodily injury. She argues that the evidence showed felony child abuse or nothing at all. We disagree.

Inherently inconsistent verdicts are allowed to stand. [T]he law is clear that each count of a jury verdict stands alone; a verdict as to one count has absolutely no bearing as to another. [Citation.] (People v. Becker (2000) 83 Cal.App.4th 294, 298; Pen. Code,  954 [An acquittal of one or more counts shall not be deemed an acquittal of any other count].)

Thus, it does not necessarily follow that, even though there was substantial evidence from which the jury could have concluded that defendant was guilty of the greater charges yet acquitted her of those charges and convicted her of a lesser included offense, she is not guilty of the lesser offense. The jurys verdict may simply reflect that it felt some sympathy toward defendant.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, Acting P. J.

WE CONCUR:

FLIER, J. BIGELOW, J.

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^[1] Defendant was charged with felony child abuse (Pen. Code,  273a, subd. (a)) and torture (Pen. Code,  206); a great bodily injury enhancement was also alleged (Pen. Code,  12022.7, subd. (d)). A jury found her not guilty of both charged offenses but guilty of the lesser included offense of misdemeanor child abuse (Pen. Code,  273a, subd. (b)). She was sentenced to six months in county jail, but given presentence custody credit for 288 days. She filed a timely notice of appeal.

^[2] Defendants husband, as well as her mother, father, mother-in-law, a family friend and longtime pediatrician, all testified that defendant was a loving and caring mother. None of them ever saw defendant do anything to harm S.H. Her husband noticed an occasional bruise on [S.H.s] face where shed pinch herself when shed get mad. He recalled four or five occasions when he fell asleep while holding S.H. on his chest and S.H. fell off onto the bed.

^[3] But Dr. Pietz testified that in traumatic bone fracture to a normal bone, 72 percent of them will not have bruising, 28 percent of them will. Fractures that happen deep within soft tissue may result in hemorrhaging that is not visible on the outer skin.