P. v. >Warren>

 

 

 

 

 

 

 

 

 

Filed 6/12/13  P. v. Warren CA4/2

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 
>

THE PEOPLE,   Plaintiff and Respondent,   v.   ELIZABETH LUCILLE WARREN,   Defendant and Appellant.

E055443   (Super.Ct.No. RIF140799)   OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  W. Charles
Morgan, Judge.  Affirmed.

Patrick J. Hennessey, Jr.,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Senior Assistant Attorney General, and A. Natasha Cortina and Kimberley A.
Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Elizabeth Lucille Warren woke up, still
drunk from the night before, and found her infant son Jared dying or dead.  According to an expert forensic pathologist,
the pattern of redness on the baby’s body indicated that something heavy was
compressing it when he died.  Had the
pathologist known that an intoxicated adult was sleeping in the same bed with
the baby, he would have concluded that the baby died because the adult lay on
him, and he was unable to breathe. 
Defendant insisted, however, that she had put the baby to sleep in a
reclining stroller.

A jury found defendant guilty of href="http://www.fearnotlaw.com/">involuntary manslaughter (Pen. Code,
§ 192, subd. (b)) and felony child
endangerment (Pen. Code, § 273a, subd. (a)), with an enhancement for
causing harm resulting in death (Pen. Code, § 12022.95).  As a result, defendant was sentenced to a
total of eight years in prison, along with the usual fines and fees.

Defendant’s sole appellate contention is that
there was insufficient evidence that
she caused the death of her son. 
Defendant’s adult daughter, however, testified that defendant habitually
slept in the same bed with her infant children. 
This, along with the pathologist’s testimony, plus other evidence
showing defendant’s consciousness of guilt, constituted sufficient evidence
that defendant caused the baby’s death.

I

FACTUAL BACKGROUND

A.        General Background.

Defendant worked as a registered nurse, but on
her days off, she would binge drink.  Her
“drink of choice” was Bacardi rum, straight from the bottle.  Sometimes she drank to the point of throwing
up or passing out.

Defendant’s eldest child, Natasha, was 26 at the
time of trial.  According to Natasha,
when defendant’s younger children were babies, they usually slept in the same
bed with defendant.

B.        Previous Incidents.

In 2003, Natasha called the police.  She told them that she had found defendant
lying on top of her brother Karl, who was then two years old.  Defendant’s body was completely covering
his.  She had to push defendant off.

By the time of trial, it was Natasha’s
recollection that a mattress — not defendant â€” was lying on
Karl.  Defendant was in the room but so
drunk that Natasha was not sure “if she knew what she was doing.”  Karl’s face was white, and he looked “more
scared than [she] had ever seen him . . . .”  When she called the police, Natasha
testified, defendant tried to take her cell phone away from her.  As a result of this incident, defendant’s
children were placed in foster care.

On September
9, 2006, defendant’s mother called the police and reported that
defendant had been drinking for approximately 48 hours.  At the time, defendant was seven or eight
months pregnant with Jared.href="#_ftn1"
name="_ftnref1" title="">^[1]  When the police went to defendant’s house and
“bang[ed]” on the doors, there was no response. 
After seeing defendant inside, lying on a couch, the police entered
through an open window.  At first, when
they shook her, she was unresponsive, but then she awoke.  When they asked her what day it was, she said
September 19, 1987.  She was taken to a hospital.

A social worker then contacted defendant to
assess the safety of her other children. 
The social worker counseled her about the risks of drinking while
pregnant.  Ultimately, the child (or
children) then living with her were taken away and placed with Natasha.

C.        The Birth and Death of
Jared.

On October
13, 2006, Jared was born, prematurely.  He weighed 5 pounds 12 ounces.  He appeared to be “unhealthy [and]
fragile . . . .”

On November
8, 2006, around 5:00 p.m.,
defendant phoned her ex-boyfriend and the father of two of her children.  She was so drunk that he could not understand
her.

The next morning, November 9, 2006, defendant’s mother called 911.  She reported a baby who was breathing but
limp and would not wake up.  Defendant
could be heard in the background saying, “Don’t call 911.”  Defendant then told the 911 operator that she
was going to take the baby to the emergency room, but the operator told her to
wait for the paramedics.

Around 8:10 a.m.,
paramedics arrived.  Defendant’s mother
was on the front porch, holding the baby. 
He had no visible
injuries.  However, there was a small
amount of blood in his nose and the back of his throat.  He was not breathing, and he had no
pulse.  Rigor mortis had set in to the
point that the paramedics could not straighten his arms to insert an
intravenous needle (IV).  His face was
mottled due to pooling of the blood, which “usually
[means] . . . the patient’s been dead so long that no
resuscitative efforts could bring him back . . . .”  Even though the paramedics could have
pronounced him dead, they decided to try to resuscitate him — to “do everything
humanly possibl[e] to try to save this baby . . . .”  When their efforts failed, they transported
him to a hospital, where he was pronounced dead.

Defendant’s home was filthy.  However, the police did not find any alcohol
or any empty alcohol bottles.  There was
a crib in the house, but it was not usable because “stuff was being stored in
it.”  Inside a bedroom, the police found
a stroller.  It reclined, so a baby could
have lain down in it.  When they found
it, however, it was reclined only slightly — the back was not even halfway down.

In the kitchen, on a drying rack, the police
found a onesie.  There were spots of what
appeared to be blood by the neck; the area where the spots were was damp.  The police sent the onesie to the Department
of Justice for testing but never got any results back.

When the police interviewed defendant, a little
after 10:00 a.m., she appeared
to be under the influence of alcohol. 
Her shirt and jeans were both on backwards.  At first, defendant said she had not been
drinking.  When asked, “Are you sure[?],”
she said she had had one glass of wine at 7:00 p.m.

Defendant said that she had gone to sleep on the
couch in the living room with Jared asleep in the stroller next to her.  At 4:00 a.m.,
she claimed, she fed him and put him back in the stroller.  At 7:30 a.m.,
she woke up; she tried to wake the baby, but he was nonresponsive.  However, she thought he was breathing.

At 12:12 p.m.,
a sample of defendant’s blood was taken. 
When tested, it indicated a blood alcohol level of 0.04.  According to an expert toxicologist, this
meant that earlier, at 8:00 a.m., defendant’s blood alcohol level would
have been about 0.10 or 0.11, if she was a moderate social drinker, or as high
as 0.16, if she was a heavy drinker.

Dr. Joseph Cohen, an href="http://www.sandiegohealthdirectory.com/">expert forensic pathologist,
performed Jared’s autopsy.  He testified
that the baby’s head, neck, upper arms, and upper torso were a “vivid
red.”  The red area was “fairly well
demarcated” from the normal skin tone on the rest of the body.

Dr. Cohen explained that the redness was due
to a combination of livor mortis and suffusion. 
Livor mortis is pooling of blood after death, due to gravity.  It would become visible within several hours
after death.  Suffusion is pooling of
blood before death, because the blood cannot return to the heart.  It could be caused by the weight of an object
compressing the rest of the body.  It
would be visible immediately. 
Dr. Cohen concluded that “during the dying process, there was some
compression of Jared’s body.”

There were no significant external injuries.  Internally, there were fresh hemorrhages in
the lungs.  This was due to “pressure
changes in the lungs,” which could include “[c]ompression of the body that
leads to inability to breath[e] . . . .”  The hemorrhages would account for the blood
seen in the baby’s nose and mouth.

Dr. Cohen ruled out sudden infant death
syndrome, fetal alcohol syndrome, seizure disorder, a brain hemorrhage, a
bacterial infection, a heart defect, or alcohol or drug ingestion as the cause
of death.

In Dr. Cohen’s opinion, “the pattern of
suffusion looks . . . like an overlay” – i.e., when a parent rolls
over onto a child while “co-sleeping.” 
It was not consistent with the baby being found in a stroller.  He concluded that the evidence was
“supportive of and suspicious for some type of body compression,” though it
fell short of being “compelling.”  Hence,
he listed the cause of death as “‘[u]ndetermined, cannot exclude
asphyxia.’”  However, if he knew that the
baby had been sleeping with an intoxicated adult, he would have concluded that
the cause of death was “asphyxia due to overlay while co-sleeping.”  Moreover, if he knew that defendant regularly
slept in bed with her infant children, “it may be a clincher.  It may actually
make . . . a difference.”

D.        Defense Evidence.

Defendant testified on her own behalf.  She admitted drinking while pregnant.  However, she claimed that, the night before
Jared died, she drank only “a couple glasses of wine.”

Consistent with her statement to the police,
defendant testified that she slept on the couch while Jared slept in the
stroller in the living room.  At
4:00 a.m., she breastfed Jared, but he ate for only a minute or two, then
went back to sleep.  She put him back in
the stroller.  At 7:30 a.m., when it
was time for his next feeding, he would not wake up.

She called her mother for “emotional
support.”  Her mother suggested going to
the hospital.  Defendant went to get
dressed.  If she put her clothes on
backwards, it was because she was in a hurry.

Defendant’s mother then decided to call 911.  Defendant said “Don’t call 911” because she
had heard bad things about the local ambulance company and hospitals, so she
wanted to take the baby to the UC Irvine hospital, where she worked, instead.

Defendant admitted that the UC Irvine hospital
was at least 40 to 60 minutes away.  She
claimed, however, that at that point, the baby was breathing, moving, and warm,
so she did not think there was any emergency. 
She also admitted that she did not check his pulse and did not take off
his clothing to check his body.  She did
not “recall” seeing any redness.

Defendant’s mother agreed that, when she arrived,
the baby was breathing and had a pulse. 
She, too, denied seeing any redness.

II

THE SUFFICIENCY OF THE
EVIDENCE OF CAUSATION

Defendant contends that there was insufficient evidence
that she caused Jared’s death.

“‘In reviewing the sufficiency of the evidence,
we must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” 
[Citation.]’  [Citation.]  ‘“[O]ur role on appeal is a limited one.”  [Citation.] 
Under the substantial evidence rule, we must presume in support of the
judgment the existence of every fact that the trier of fact could reasonably
have deduced from the evidence. 
[Citation.]  Thus, if the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant reversal of the judgment.  [Citation.]’ 
[Citation.]”  (>In re V.V. (2011) 51 Cal.4th 1020,
1026.)

Natasha testified that it was defendant’s custom
and practice to have her infant children sleep in bed with her.  In a previous incident, defendant passed out
on top of her son Karl when he was a toddler. 
Defendant claimed that she put Jared to sleep in the stroller, in the
living room; however, the stroller was found in the bedroom, and it was not in
a reclined position.  Also,
Dr. Cohen testified that Jared’s injuries were inconsistent with him
having been in the stroller when he died.

According to Dr. Cohen, the well-demarcated
area of suffusion found on Jared’s body demonstrated that, at the time of
death, something was compressing him.  Moreover,
the hemorrhages in his lungs were consistent with asphyxia due to
compression.  Dr. Cohen ruled out
other causes of death.

Furthermore, there was no evidence that any heavy
object other than defendant’s body was or could have been compressing Jared.  Had there been such an object, defendant
would have seen it and could have testified about it.  It was reasonably inferable that defendant
caused Jared’s death by lying on top of him.

Basically, defendant argues that, because
Dr. Cohen concluded that the cause of death was “[u]ndetermined,” the jury
was required to come to the same conclusion. 
However, “[e]xpert opinion is not binding on a jury.  The jury is free to reject even the
uncontradicted testimony of an expert witness. 
[Citations.]”  (>People v. Engstrom (2011) 201
Cal.App.4th 174, 187, fn. omitted.)  “On
appeal the inquiry with respect to the sufficiency of evidence does not differ
because a verdict may reflect a rejection of the opinion of one or more experts
. . . .  [Citation.]”  (People
v. Bean (1988) 46 Cal.3d 919, 933, fn. 4.)

Dr. Cohen admitted that, if he had known
that defendant had a history of co-sleeping, he might have concluded that the
cause of death was asphyxiation by overlay — “it may be a clincher.”  Unlike Dr. Cohen, however, the jury
heard evidence that defendant did
have a history of co-sleeping.  Thus,
Dr. Cohen’s opinion and this evidence, put together, constituted
substantial evidence that this was the cause of death.

Defendant also points to Dr. Cohen’s testimony
that he did not find any pinpoint hemorrhages in the baby’s eyes.  Dr. Cohen agreed that pinpoint hemorrhages
are one of the signs of asphyxiation, but he also testified that they are not
found in every case of asphyxiation. 
Moreover, he testified that “infants don’t develop them as easily as
adults . . . .” 
Thus, the absence of pinpoint hemorrhages did not require the jury to
reject asphyxiation as the cause of death.

We also note that defendant displayed
consciousness of guilt.  She told her
mother not to call 911.  She tried to
prevent the paramedics from responding by telling the 911 operator that she was
taking the baby to an emergency room. 
She claimed she did not notice any redness, even though Dr. Cohen
testified that the suffusion would have been visible immediately and even
though the paramedics noticed it.  There
was evidence that defendant had tried to wash drops of blood off of Jared’s
onesie.

Defendant also apparently lied about the time of
death.  She claimed (as did her mother)
that Jared was still alive — warm, moving, and breathing — which was why she
did not think there was an emergency. 
According to the paramedics, however, Jared was already dead when they
arrived; they could not even insert an IV because rigor mortis had set in.

We conclude that this evidence, taken together,
constituted sufficient evidence that defendant caused Jared’s death.

III

THE SUFFICIENCY OF THE
EVIDENCE

OF WILLFUL CHILD ENDANGERMENT

At oral argument, defendant asserted that there
was also insufficient evidence that she acted willfully to support her
conviction of felony child endangerment.  She forfeited this contention by failing to
raise it in her opening brief.  (>People v. Lynch (2012) 209 Cal.App.4th
353, 362, fn. 6.)

Even if not forfeited, it lacks merit.  While defendant may have been unconscious at
the moment when she overlay her baby, there was evidence that she regularly
chose to get drunk on her days off, and she regularly chose to sleep in the
same bed with her infant children.  As a
result of the incident involving Karl, which led to her children being taken
away from her, she had actual knowledge that this was dangerous.  This was sufficient evidence that she
“willfully cause[d] or permit[ted] [a] child to be placed in a situation where
his or her person or health is endangered . . . .”  (Pen. Code, § 273a, subd. (a).)

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

RICHLI                                  

                                                J.

 

We
concur:

 

 

RAMIREZ                             

                                         P. J.

 

 

HOLLENHORST                 

                                             J.