P. v. Kizirian

Filed 8/24/09 P. v. Kizirian 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF CASE

On August 20, 2007, a first amended information was filed charging appellant, Rebecca Kizirian, with felony child abuse resulting in a traumatic condition (Pen. Code,  273d, subd. (a), count one)^[1]and felony child endangerment ( 273a, subd. (a), count two). Both counts alleged appellant committed great bodily injury on the victim, a child under age five ( 12022.7, subd. (d)).  On June 6, 2008, a jury convicted appellant of both counts and found the enhancements true.  

The court sentenced appellant on July 15, 2008, to prison for the midterm of four years on count one plus the midterm of five years for the great bodily injury enhancement for a total prison term of nine years.^[2] The court granted applicable custody credits and imposed a restitution fine. After a hearing on August 15, 2008, the court ordered appellant to pay $78,952.50 in victim restitution.^[3] Appellant filed a timely notice of appeal.

Appellants appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised she could file her own brief with this court. By letter on April 22, 2009, we invited appellant to submit additional briefing. To date, she has not done so.

FACTS

E. was born in January 2003. Her parents are Melinda R. and appellants husband. Melinda R. ended her relationship with appellants husband after Melinda R. learned appellant was pregnant by him. For a period of time, Melinda R. shared custody of E. with appellants husband and appellant. Later, Melinda R. lost custody of E. after allegations of child abuse.

During a visit with E. on September 1, 2005, Melinda R. saw no visible injuries on E. and she appeared to be in a good mood. On September 2, 2005, Emergency Medical Technician Jesse Martin responded to a call of a child falling from a chair at the residence of appellant and her husband. E. was taken to Kaweah Delta Hospital by ambulance.

Deputy Sarah Medina arrived at the scene while paramedics were still present. Appellant told Medina she was E.s mom and that E. was standing on a chair at the kitchen sink trying to get a glass of water when a younger child pulled at E.s chair causing E. to fall and hit her head on the floor. Medina saw an ice tray and spilled ice on the counter of the kitchen.

Appellants mother-in-law went to the home after E. fell. Appellant told the mother-in-law she was dusting and vacuuming in the living room when she heard E. fall in the kitchen. Appellant said E. was washing dishes. Appellant told her husband, who was at work when E. fell, that E. was getting a glass of water and fell from a chair when appellant was not in the kitchen.

Amanda Silvas, a social worker, went to the hospital of investigate E.s injury. Appellant was shaking, crying, and upset. Appellants husband was holding E. who had a bruise over her left eye. Appellant told Silvas she was in the living room placing a cloth on a table. E. was on a chair in the kitchen. Appellant heard a thump. Appellant found E. on the floor lying on her back. E. was limp and could not hug appellant. E. appeared to be getting weak and was not speaking.

E. was taken to Childrens Hospital Central California. E. was examined by pediatric neurosurgeon Dr. Meredith Woodward. A CAT scan revealed that E. had a large blood clot called a subdural hematoma causing pressure on her brain. E. had bruises on her left cheek, underneath the chin, and some scrapes and another bruise near her lower lip.

After shaving E.s head for surgery, Dr. Woodward found three marks on E.s scalp. The marks could not be caused by shaving. Dr. Woodward testified that 99 percent of subdural hematomas are caused by injury involving the tearing of a vein from the surface of the brain. They do not occur spontaneously. It takes a significant amount of force to cause a subdural hematoma. Dr. Woodward explained that most subdural hematomas are caused from inflicted injury, not from accidents. E.s subdural hematoma was life threatening.

E. was admitted back into the hospital later when she developed hydrocephalus from too much spinal fluid accumulating inside her brain. E. later developed meningitis. Dr. Woodward placed a permanent shunt inside her brain to drain spinal fluid. E. sees Dr. Woodward annually.

Dr. Fredric Bruhn, a physician since 1966 and active in pediatric and child abuse cases, saw E. in the hospital. Dr. Bruhns opinion was that E.s injury was not accidental. Dr. Bruhn explained that although it was possible for E. to fall from a chair and suffer a subdural hematoma, such an injury would be rare. A child three feet tall standing on and falling from a chair 18 inches high usually would not suffer a subdural hematoma. In Dr. Bruhns opinion, E. was the victim of child abuse.

Dr. Steven Gabaeff splits his time evenly between emergency and forensic medicine. Dr. Gabaeff consults on 50 legal cases a year. In half the cases, Dr. Gabaeff thinks the defendant is guilty and he drops the case. In Dr. Gabaeffs opinion, appellant told a plausible story about the incident. Dr. Gabaeff believed E.s injury was consistent with appellants description of events if E. fell from a chair and landed on her head. According to Dr. Gabaeff, there have been many children who have suffered serious injuries and died from short falls. Dr. Gabaeff thought the bruising pattern on E. was completely consistent with appellants description of events.

Dr. Gabaeff opined that the scrapes on E.s head were caused by the razor used to shave E.s head in preparation for surgery. He also testified he saw nothing in photographs of E. that he would characterize as bruising or trauma on E.s stomach. A child, according to Dr. Gabaeff, can suffer a subdural hematoma from a fall less than three feet.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, A.P.J., Dawson, J., and Hill, J.

^[1] Unless otherwise designated, all statutory references are to the Penal Code.

^[2] The court stayed appellants sentence on count two pursuant to section 654.

^[3] Appellant did not dispute the amount of victim restitution ordered by court.