P. v. Moncada
Filed 10/16/12 P. v. Moncada CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOSE ROGELIO MONCADA,
Defendant
and Appellant.
E052612
(Super.Ct.No.
BAF006557)
OPINION
APPEAL
from the Superior Court
of
County. Harry A.
Staley, Judge. (Retired judge of the
Kern Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Stephen
D. Klarich for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and William M. Wood and
Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant
Jose R. Moncada appeals from his conviction of
inflicting injury on a child under eight years old, which is reasonably likely
to cause great bodily injury, causing death (§ 273ab). Defendant contends his involuntary
manslaughter conviction should be reversed because a heightened showing of
proximate cause is required to trigger criminal
liability for a death that occurs more than three years after an unlawful
act. He next contends the trial court
erred in denying his motion to acquit
because the trial court failed to consider the rebuttable presumption that a
death is not criminal when it occurs more than three years after the
defendant’s act; the death was not a direct, natural, and probable consequence
of his actions; and the stomach rupture that was the immediate cause of death
was an intervening independent cause.
Finally, he contends that because the child was more than eight years
old when he died, defendant did not violate section 273ab as a matter of
law. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
In
November 2000, defendant was caring for his then three-month-old son,
Joseph. When Joseph would not stop
crying, defendant shook him and then put his hand on the child’s face and
pushed it into the arm of a couch.
Joseph stopped breathing, and defendant called 911. Defendant admitted the incident and entered a
plea of guilty to a violation of section 273a, subdivision (a) and admitted a
great bodily injury allegation under section 12022.7, subdivision (b). He was sentenced to 10 years four months in
prison.
Meanwhile,
Joseph was discharged from the hospital after three and a half to four months
of treatment. As a result of the abuse,
Joseph suffered fractures to the base of the skull and bleeding on the brain,
resulting in brain damage, poor vision, spastic quadriplegia, seizures, and
other complications. He could not walk,
speak, use sign language, or otherwise communicate except through vocalizing
and crying. He expressed pain by
becoming fussy and irritable and by becoming “stiff and grimacing.†In 2002, he was admitted to a group home for
developmentally disabled children.
As is typical for
children with similar brain injuries, Joseph had difficulty swallowing, leading
to pneumonia from aspirating food. In
January 2002, a Nissen fundoplication and gastrostomy were performed on him. The purpose of the fundoplication procedure
was to correct reflux of stomach fluid into the esophagus. Dr. Gerald Gollin, who performed the
surgery, testified that about 95 percent of fundoplication procedures are performed
because of neurological impairment due to birth defects, or in Joseph’s case,
traumatic brain injury. In the
gastrostomy, a feeding tube was inserted into the stomach because he was unable
to swallow properly, and his stomach did not empty appropriately because of the
brain trauma. Later, he had a
gastrojejunostomy tube inserted to deliver food directly to the jejunum. In 2003, a revision of the fundoplication was
performed after the sutures tore and it slipped out of place.
In 2008, a nurse
at Joseph’s group home noticed mucous membrane from the inside of the stomach
protruding from the site of Joseph’s feeding tube and some bleeding at the
site. In May 2008, Joseph was
hospitalized due to a distended abdomen.
Dr. Gollin performed a colonoscopy and confirmed that the child’s
intestine had enlarged. Dr. Gollin
testified that scar tissue or formation of adhesion bands is a common result of
any surgery, although it is rare for adhesion bands to cause life-threatening
injury. In July 2008, the child’s
pediatrician noted that his feeding tube site was “okay.â€
On
September 23, 2008, an instructional assistant who accompanied Joseph on his
bus ride to school noticed he was unusually quiet and appeared to be in pain;
his stomach was hard and his lips and fingernails were blue. She administered oxygen and called ahead to
the school to warn the nurse. When the
bus arrived at the school, 911 was called, and the child was taken to the
emergency room.
Joseph died that
same day. Dr. Mark Fajardo, the
pathologist who performed the autopsy, stated his opinion that Joseph had died
of “[c]omplication of remote multiple blunt force trauma.†The child’s stomach had ruptured, allowing
bacteria to enter his system, leading to sepsis and death. There was an adhesion band of scar tissue
near the area of rupture, and the scar tissue had been caused by the 2002 and
2003 surgeries, which the child required because of his diminished brain
functions from the November 2000 abuse.
Dr. Fajardo testified causation was “a matter of connecting the
dots.â€
Dr. Chalmer Dean
McClure, a neurologist who treated Joseph in 2001, testified that it was a
“possibility†that a child with similar brain deficits would require
gastrostomy and that “shaken baby syndrome†can lead to a gastrostomy “[i]n
various scenarios.†Dr. McClure had
previously seen adhesion bands in children with traumatic brain injury,
although that was an area outside his expertise.
Dr. Rebeca
Piantini, a pediatrician, testified that “[m]ost kids who are victims of
abusive head trauma pass away,†even with treatment, either immediately from
the injury or “from secondary complications, complications of infection,
complications of malfunction of shunts, complications of abdominal,
complications of severe malnutrition; there’s all sorts of stuff.†She testified that a brain injury could
“indirectly†cause a stomach to explode.
The jury found
defendant guilty of involuntary manslaughter as a lesser-included offense to
the crime of second degree murder charged in count 1, and also found him guilty
of child abuse homicide in count 2. The
trial court sentenced defendant to 25 years to life on count 2 and imposed and
stayed a four-year term for count 1 under section 654. Defendant was given credit for the time
served on his prior child abuse conviction.
III. DISCUSSION
Required Showing of Proximate Cause to Trigger Criminal Liability for
Death that Occurs More than Three Years After Unlawful Act
Defendant contends
his involuntary manslaughter conviction should be reversed because a heightened
showing of proximate cause is required to trigger criminal liability for a
death that occurs more than three years after an unlawful act.
Standard of Review
The interpretation
of a statute presents a question of law which we review de novo on appeal. (People
v. Wills (2008) 160 Cal.App.4th 728, 736.)
2. Analysis
Section
194 provides: “To make the killing
either murder or manslaughter, it is not requisite that the party die within
three years and a day after the stroke received or the cause of death
administered. If death occurs beyond the
time of three years and a day, there
shall be a rebuttable presumption that the killing was not criminal. The prosecution shall bear the burden of
overcoming this presumption. . . .†(Italics added.)
Under
common law, if a person who was injured by the act of another did not die
immediately, it was presumed that death beyond an established period was due to
some other cause, and the prosecutor was precluded from showing that the victim
died of the injury received. (See
55.) When common law principles were
codified in this state, the common law rule was made a conclusive
presumption. (Former § 194
[stating, “‘To make the killing either murder or manslaughter, it is a
requisite that the party die within a year and a day after the stroke received
or the cause of death administered.’
(Pen. Code, former § 194, as amended by Stats. 1969, ch. 593,
§ 1, 1225, eff. Nov. 1969, subsequently amended eff. Jan. 1,
1997 . . . .)]â€.)
Under that rule, the People were required to establish that the victim
died within the specified period. (See,
e.g., Strong v. Superior Court (2011)
198 Cal.App.4th 1076, 1079 [stating that former section 194 “plainly
establishe[d] a time-based ‘immunity’ [citation] to particular charges, and
[wa]s therefore indistinguishable in operation and effect from a statute of
limitationsâ€].) In 1996 the Legislature
amended section 194 to its present form, adding the rebuttable presumption
language.
Defendant argues
that unless section 194 is construed as establishing a heightened standard of
proximate cause, the statute is meaningless.
We presume, however, that the Legislature, in using the term “rebuttable
presumption†when it amended section 194, was aware of the meaning of that term
as used in other statutes and case law and therefore did not intend for the
term to have any special meaning in section 194. (E.g., People
v. Low (2010) 49 Cal.4th 372, 386, fn. 8.)
Evidence Code section 601 provides that a rebuttable presumption “is
either (a) a presumption affecting the burden of producing evidence or (b) a
presumption affecting the burden of proof.â€
If the former standard applies to section 194, the presumption merely
required the prosecution to produce evidence that Joseph’s death was caused by
defendant’s actions. We will presume the
latter standard applies, and that the rebuttable presumption in section 194
affected the burden of proof.
“The effect of a
presumption affecting the burden of proof is to impose upon the party against
whom it operates the burden of proof as to the nonexistence of the presumed
fact.†(Evid. Code, § 606.) “When a presumption affecting the burden of
proof operates in a criminal action to establish presumptively any fact that is
essential to the defendant’s guilt, the presumption operates only if the facts
that give rise to the presumption have been found or otherwise established
beyond a reasonable doubt, and, in such case, the defendant need only raise a
reasonable doubt as to the existence of the presumed fact.†(Evid. Code, § 607.)
Our Supreme Court
has described the requirement of proof beyond a reasonable doubt as “the
highest standard of factual certainty.â€
(People v. Nguyen (2009) 46
Cal.4th 1007, 1022.) The jury was
repeatedly instructed to apply that standard to all the elements of the crimes,
including causation. Specifically, the
jury was instructed, “The law presumes that a killing is not criminal if the
person killed dies more than three years and one day from the day of the
incident that caused the death. [¶] The People must overcome this presumption by
proving that the killing was criminal.
If you have a reasonable doubt whether the killing was criminal, you
must find the defendant not guilty.†In
the instructions on murder and involuntary manslaughter, the trial court
instructed the jury on causation as follows:
“An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without the
act. A natural and probable consequence
is one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether
a consequence is natural and probable, consider all of the circumstances
established by the evidence. [¶] There may be more than one cause of
death. An act causes death only if it is
a substantial factor in causing the death.
A substantial factor is more than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.†The trial
court gave a substantially similar instruction as to child abuse homicide. In addition, the trial court gave a special
instruction on causation: “There may be
more than one cause of death. An act
causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial
or remote factor. However, it does not
need to be the only factor that causes the death. [¶]
The failure of the [sic]
Joseph or another person to use reasonable care may have contributed to the
death. But if the defendant’s act was a
substantial factor causing the death, then the defendant is legally responsible
for the death even though Joseph or another person may have failed to use
reasonable care. [¶] The failure of the doctors or medical staff
to use reasonable care in treating Joseph may have contributed to the
death. But if the injury inflicted by
the defendant was a substantial factor causing the death, then the defendant is
legally responsible for the death even though the doctors or medical staff may
have failed to use reasonable care. On
the other hand, if the injury inflicted by the defendant was not a substantial
factor causing the death, but the death was caused by grossly improper
treatment by the doctors or medical staff, then the defendant is not legally
responsible for the death. [¶] If you have a reasonable doubt whether the
defendant’s act caused the death, you must find him not guilty.â€
In short, the jury
was instructed generally and specifically that it had to find every element of
the crimes, including proximate cause, true beyond a reasonable doubt. Given that the reasonable doubt standard is
“the highest standard of factual certainty†(People v. Nguyen, supra,
46 Cal.4th at p. 1022), we reject defendant’s argument that section 194 should
be construed to require an even higher standard.
Denial of Motion to Acquit
Defendant
contends the trial court erred in denying his motion to acquit because the
trial court failed to consider the rebuttable presumption that a death
occurring more than three years after the defendant’s act was not criminal; the
death was not a direct, natural, and probable consequence of his actions; and
the stomach rupture was an independent intervening cause of death.
Additional Background
After the People presented their
case in chief, defense counsel moved
for acquittal under section 1118.1 for insufficiency of the evidence on the
ground the child’s death was not a direct, natural, and probable consequence of
defendant’s acts. After hearing
arguments, the trial court denied the motion.
The trial court found that the evidence was sufficient to establish that
Joseph’s “death was a direct, natural, and probable consequence of
[defendant’s] act, and a reasonable person would know that it was likely. And that the defendant, in fact, knew it was
likely, if nothing unusual interceded.
And nothing unusual interceded in this case.†The trial court held that the prosecution had
successfully rebutted the presumption that the death was lawful.
Standard of Review
When we review a claim of error
in the trial court’s denial of a motion for acquittal under section 1118.1, “we
apply the same standard as when evaluating the sufficiency of evidence to
support a conviction, except that we consider only the evidence
the motion was made. [Citations.] We review that evidence in the light most
favorable to the judgment to decide whether substantial evidence supports the
conviction, so that a reasonable jury could find guilt beyond a reasonable
doubt. [Citation.]†(People
v. Roldan (2011) 197 Cal.App.4th 920, 924.)
3. Analysis
(a) Effect of rebuttable presumption
Defendant
contends the trial court erred in denying his motion to acquit, because the
trial court failed to consider the rebuttable presumption that a death
occurring more than three years after the defendant’s act was not criminal.
In
denying defendant’s motion under section 1118.1, the trial court explicitly
stated that the prosecution had successfully rebutted the presumption under
section 194 that the death was lawful.
We therefore reject defendant’s argument that the trial court failed to
consider the presumption
(b) Direct, natural, and probable consequence of
defendant’s actions
Defendant next
contends the child’s death was not a direct, natural, and probable consequence
of his actions.
Tort principles of
proximate or legal causation apply to crimes; thus, the defendant’s acts must
be the legally responsible cause of the injury, death, or other harm
constituting the crime. (
38, 46-47.) “To be
considered the proximate cause of the victim’s death, the defendant’s act must
have been a substantial factor contributing to the result, rather than
insignificant or merely theoretical.
[Citations.]†(People v.
Briscoe (2001) 92 Cal.App.4th 568, 583-584, fn. omitted.) “[A]s long as the jury finds that without the
criminal act the death would not have occurred when it did, it need not
determine which of the concurrent causes was the principal or primary cause of
death.†(People v. Catlin (2001) 26 Cal.4th 81, 155.)
pathologist who performed the autopsy on Joseph’s body stated his opinion that
the cause of death was complications from the multiple blunt force trauma
defendant had inflicted. Other medical
expert testimony established that the initial assault set in motion the
life-altering complications and secondary medical problems that required surgical
intervention, and that such complications and secondary problems were a
reasonably foreseeable result of the initial assault. In denying defendant’s motion under section
1118.1, the trial court could reasonably conclude the adhesion bands that
ultimately led to the rupture of Joseph’s stomach were a natural consequence of
the initial assault.
(c) Independent intervening cause
the stomach rupture was an independent intervening cause of death.
Even if a victim’s
death occurs in an unanticipated manner, the defendant is liable for homicide
unless a superseding intervening act has broken the chain of causation. The intervening cause must be unforeseeable
and extraordinary, and a defendant remains criminally liable if he might reasonably
have contemplated the possible consequence or should have foreseen the
possibility of harm of the kind that could result from his act. (People
v. Fiu (2008) 165 Cal.App.4th 360, 371.)
In
v. Funes (1994) 23 Cal.App.4th 1506, for example, the court held that the
trial court had properly rejected an instruction on intervening causes in a
prosecution for murder when the victim died 46 days after his beating,
following a medical decision to withhold antibiotics. The court held that the decision to withhold
antibiotics, as a matter of law, was not an independent intervening cause and
was a reasonably foreseeable result of the defendant’s act of hitting the
victim on the head with a baseball bat.
(Id. at pp. 1522-1523.)
Whether an
independent act is a superseding cause of injury or death is generally a
question of fact for the trier of fact beyond a reasonable doubt (
620, 670), unless undisputed evidence reveals “‘a cause so remote that a court
may properly decide that no rational trier of fact could find the needed
nexus. [Citations.]’ [Citation.]â€
(People v. Cervantes (2001) 26
Cal.4th 860, 871-872.) In this case, the
abundant medical testimony as recounted above created a question of fact for
the trier of fact as to whether the rupture of Joseph’s stomach was a
superseding cause of his death.
Substantial evidence supported the trial court’s ruling on that issue in
denying defendant’s motion under section 1118.1.
Section 273ab
Defendant contends
that because Joseph was more than eight years old when he died, defendant did
not violate section 273ab as a matter of law.
Standard of Review
interpretation of a statute presents a question of law subject to de novo
appellate review.†(People v. Wills, supra,
160 Cal.App.4th at p. 736.)
2. Analysis
Section
273ab, subdivision (a) states, “Any person having the care or custody of a
child who is under eight years of age, who assaults the child by means of force
. . . resulting in the child’s death, shall be punished by
imprisonment . . . .â€
Defendant argues that the statute should be interpreted to mean that the
phrase “who is under eight years of age†applies to the child’s age
of death. Defendant has cited no
authority directly addressing the issue, and our own research has revealed
none.
The “last
antecedent†rule of statutory construction directs that “‘“qualifying words,
phrases and clauses are to be applied to the words or phrases immediately
preceding and are not to be construed as extending to or including others more
remote.â€â€™ [Citations.]†(People
v. Lewis (2008) 43 Cal.4th 415, 492.)
Under that rule, the phrase, “who is under eight years of age†logically
applies only to “[a]ny person having the care or custody of a child who is under
eight years of age, who assaults the child by means of
force . . . .†not to the more remote phrase, “resulting in
the child’s death.†(§ 273ab, subd.
(a).)
Courts addressing
section 273ab in other contexts appear to have adopted that interpretation of
the statute. For example, one court has
declared that the purpose of the statute is “‘to protect children at a young
age who are particularly vulnerable.’†(
780.) The court defined the elements of
the offense as follows: “‘(1) A person,
having the care or custody of a child under the age of eight; (2) assaults this
child; (3) by means of force that to a reasonable person would be likely to
produce great bodily injury; (4) resulting in the child’s death.’ [Citations.]â€
(Id. at p. 780.) In People
v. Albritton (1998) 67 Cal.App.4th 647, the court considered a challenge to
the statute on the ground it was unconstitutionally vague and overbroad. In rejecting that challenge, the court
explained, “On its face, the statute gives explicit notice to individuals
‘having the care or custody of a child who is under eight years of age (§
273ab) that they fall within the purview of the
statute. . . . [¶] The statute also gives plain notice that the
proscribed act is an assault on a child under eight years of age with force
that objectively is likely to produce great bodily injury.†(Id.
at pp. 657-658.) The court further
stated the mens rea required for the offense:
“The mens rea for the crime is willfully assaulting a child under eight
years of age with force that objectively is likely to result in great bodily
injury—that is, the assault must be intentional.†(Id.
at p. 658.) Thus, those courts
recognized implicitly that the phrase “who is under eight years of age†applies
to the child’s age at the time of the assault. We likewise adopt that construction of
the statute.
IV. DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
