P. v. Vallejo








Filed 10/24/11 P. v. Vallejo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NICHOLAS DANIEL VALLEJO, Defendant and Appellant.

E051992 (Super.Ct.No. SWF014903) OPINION

APPEAL from the Superior Court of Riverside County. Thomas Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Victoria Barana, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Nicholas Daniel Vallejo appeals after he was convicted of three counts of child abuse. (Pen. Code, § 273a, subd. (a).) He attacks the sufficiency of the evidence to support multiple convictions of child abuse, or multiple objectives to support the imposition of separate sentences on the child abuse convictions. We are not persuaded, and we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant started dating E. O. (the mother) in September 2004. A few months later, the mother discovered that she was pregnant and she and defendant began living together.
A baby boy was born in September 2005. The mother and defendant had different objectives in their relationship: the mother wanted to get married and live as a family, but defendant did not and continued to have contact with other women. The mother took maternity leave to stay home and care for the new baby; for the first two months, she was the baby’s primary caretaker and defendant spent little time with the baby. When the mother’s maternity leave ended, she returned to work as a server in a nearby restaurant. Initially, she worked limited shifts, and defendant watched the baby while the mother was at work.
When the baby was four to six weeks old, the mother started to notice some “little things . . . here and there” about the baby’s condition, such as a bloodshot eye, or a “popping sound” in the baby’s chest when he breathed a certain way. The doctors she consulted explained that these conditions could be explained within normal expectations; hard crying, for example, might cause a bloodshot eye, and the baby could have underdeveloped cartilage in the chest.
The mother also testified that she noticed defendant handling the baby roughly from the beginning. For example, she noticed when defendant would change the baby’s diaper in the other room, the baby would cry, normally at first, but then the crying would get louder to the point that the mother could tell that the baby was uncomfortable. On one occasion, when the family was visiting the home of defendant’s mother, defendant was holding the crying infant. The mother observed defendant become angry and frustrated because the baby continued to cry. Defendant said he could not understand why the baby was crying; the mother told him that it was normal for babies to cry, and that defendant must remain calm. Defendant forcefully handed the baby back to the mother. Another time, the mother’s sister saw defendant scream directly into the crying baby’s ear.
Defendant constantly iterated that he wanted his son to be strong because he was going to be a man. Thus, defendant would toss the baby into the air and catch him, or hold him upside down by his feet and swing him. Once, defendant explained a bruise on the baby’s cheek by telling the mother that he was tossing the baby in the air and accidentally grabbed his face while catching him. However, neither the mother nor her family members who witnessed defendant’s rough play with the baby, thought that he would intentionally hurt the baby.
By early December, the relationship between defendant and the mother had deteriorated to the point that they agreed that they would separate. The mother wanted custody of the baby, but defendant said he would not let that happen. He said that “he would pay to have [the baby] taken away” from the mother. The mother was “scared . . . that he would win because I knew that his parents had more money than my parents, and I was just 20 years old with a restaurant job, and I couldn’t pay for any legal help.” The mother agreed to have defendant continue to care for the baby while she was at work until she could organize her work shifts and set up a regular custody schedule.
On December 6, 2005, the mother noticed nothing wrong with the baby when she left for work around 4:00 p.m. When she returned home, however, she noticed that the baby had vomited in his crib. She bathed the baby and he vomited again, and then again shortly after he had been fed. Overnight, each time that the mother nursed the baby, the baby was unable to keep his food down.
The next morning, the mother took the baby to a doctor. After a cursory examination, the doctor prescribed suppositories and recommended a liquid electrolyte; the doctor apparently believed the baby might be constipated and these remedies would stimulate his system. The mother thought these measures might be helping, although there was no dramatic improvement and she was concerned that the doctor’s examination had not been thorough enough.
That day, the mother stayed with and cared for the baby all day until she had to go to work. Defendant took the baby to his mother’s house for care that evening. Apparently, the baby remained in the care of defendant and defendant’s mother for the next few days; the mother “knew that [she] had no other arrangements for [her] work situation”; although she “felt a little forced, like [she] had to do that,” she expected that over the weekend she “would really figure out what was going to happen” with the child care arrangements.
On Saturday, December 10, 2005, however, the mother received a telephone call from her own mother, saying that the baby was not doing well and they were going to take the baby to the hospital, because the medications were not working.
The mother immediately went to the hospital where the baby was being examined. The mother’s parents, defendant, and defendant’s mother were also there. At no time over the previous several days had defendant ever mentioned dropping the baby on the night of December 6, 2005.
The emergency room doctor referred the baby to a pediatrician specializing in child abuse. When the specialist, Dr. Piantini, examined the baby, she found that the baby had a long fracture of the occipital bone in the back of his head. The baby also had suffered brain hemorrhages, which were potentially life-threatening. He also had hemorrhages of the eyes. The occipital bone is a strong bone, so the fracture was indicative of a severe trauma, such as a major car accident or child abuse involving significant force. The fracture and bleeding could have occurred as the result of a single event. A child vomiting or having trouble excreting urine or feces, after seeming normal six hours earlier, was consistent with having suffered a head trauma in the interval.
The baby also had suffered multiple (at least 11 or 12 total) rib fractures. The physician opined that the rib injuries were not sustained at the same time because some of the ribs showed a clear fracture, while the healing process was advanced as to others.
Finally, the baby had a fracture of the right femur in the proximal area of the bone, closest to the hip. Dr. Piantini testified that such fractures were highly indicative of abuse; even a traumatic car accident would be unlikely to cause such an injury. Dr. Piantini estimated, based on her training and experience, that the femur fracture had not occurred within the prior three or four days, but was more consistent with an injury of a week or more before the examination.
As a result of the investigation into the baby’s injuries, defendant was charged by information with three counts of willful harm or injury to a child under circumstances likely to produce great bodily injury or death, in violation of Penal Code section 273a, subdivision (a).^[1] The information also alleged that defendant had inflicted great bodily injury on a child under the age of five as to each of the abuse counts (Pen. Code, §§ 12022.7, subd. (d), 11927, subd. (c)(8)), as well as alleging several aggravating factors (Cal. Rules of Court, rule 4.421).
At trial, prosecution witnesses set forth the events described above. Defendant did not present any affirmative evidence at trial, but relied on statements he made to police during the investigation to explain the baby’s injuries.
After the discovery of the baby’s broken bones and other injuries (e.g., brain hemorrhages), detectives and social workers interviewed defendant at the hospital. Defendant claimed that the baby was fussy and colicky, but said that he loved the baby, never lost his temper, and the baby’s crying did not bother him. Defendant at first said he had no idea how the baby was injured. He said nothing about tossing the baby into the air.
Later, defendant admitted he had tossed the baby up and down while playing with him, but said he did not think he had hurt the baby. To explain the skull fracture, defendant described a recent incident; he claimed to have dropped the baby while holding him in the kitchen. The baby bounced off the counter and onto the floor, striking his head on both surfaces. Defendant had never mentioned this to the mother.
In a second interview, when he was confronted with incidents the mother had related to police, defendant admitted there were a few things he had forgotten. He said he had thrown the baby into the air and caught him around the ribs. He also held the baby upside down by his ankles. Another time, he was balancing the baby in his hands when the baby fell. He tried to catch the baby and his hand hit the baby in the eye. Defendant said that the baby liked being tossed up and down or swung by his feet, yet the baby would cry afterward; defendant maintained that the baby was “always fussy.”
Defendant was interviewed a third time a few days later at the police department. During this interview, defendant attempted to explain how the baby could have been injured. As to the rib injuries, defendant described how he would toss the baby into the air and catch him, at least two or three times a day since the baby was one month old. Defendant said he would throw the baby progressively higher and higher, initially one or two feet into the air, and up to perhaps 10 feet at his parents’ home, while spinning him. Defendant would try to catch the baby softly, but sometimes might have gripped him too hard while catching him.
As to the eye hemorrhages, defendant repeated his story about the incident when he was balancing the baby on his hand. The baby lost his balance and fell backward. Defendant tried to catch the baby, but “knocked him pretty good, right on the face” and “popped him right in the eye.” According to defendant, this had happened about two weeks before the interview.
Defendant thought the skull fracture might have occurred during the incident in the kitchen when he dropped the baby. Defendant said that the baby fell backward, hitting his head on the counter, and then falling face-first onto the tile floor. The baby did not cry, but appeared dazed and unresponsive for a couple minutes. Eventually, the baby started crying. Defendant did not call paramedics or take the baby to the hospital because he thought the baby was all right. He also did not tell the mother because he thought she would “use it against me.”
Defendant claimed the injury to the baby’s leg might have been caused by swinging the baby upside down by his ankles. Defendant justified playing with the baby in that manner because the baby was “so darn strong.”
The expert testimony, however, refuted these “explanations.” Tossing the baby and catching him by the midsection would not cause broken ribs. The skull fracture and brain and eye hemorrhages were not consistent with a fall from arm-height. The injuries the baby suffered would require far more force than the activities that defendant described. The injuries were more consistent with vigorous shaking or being thrown or hit against a surface such as a wall, dresser, bed or countertop. The femur fracture would be likely to result from a rapid pulling or jerking and rotational motion. However, just playing with a child and grabbing the child would not cause an occipital fracture, posterior rib fractures, a femur fracture, and bleeding on the brain.
The jury found defendant guilty of all three child abuse counts and found true each of the great bodily injury allegations.
The court sentenced defendant to the middle term of four years on count 1 (head injury), plus the upper term of six years for the great bodily injury enhancement; a consecutive term of one year four months on count 2 (rib injury), plus one year eight months for the great bodily injury enhancement; and a consecutive term of one year four months on count 3 (leg injury), plus one year eight months consecutive for the great bodily injury enhancement, for a total determinate term of 16 years in state prison.
Defendant now appeals.
ANALYSIS
I. The Evidence Supported Defendant’s Conviction of Three Acts of Child Abuse
Defendant was convicted of three counts of child abuse based on injuries to different parts of the baby’s body. Count 1 related to the head injury (occipital fracture, brain bleeding, eye hemorrhages), count 2 related to the multiple rib fractures, and count 3 related to the femur fracture. Defendant urges that no evidence established when these injuries took place, and the evidence was consistent with the view that all the injuries may have been caused in one incident on the evening of December 6, 2005. Thus, defendant argues, there was insufficient evidence to convict him of three separate counts of child abuse.
In assessing the sufficiency of the evidence, the appellate court must “ ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Singleton (2007) 155 Cal.App.4th 1332, 1339.)
Defendant fails to apply the standard properly, emphasizing only the evidence in his own favor, rather than in the light most favorable to the judgment. He argues the plausibility of his view, rather than assessing the evidence.
Although the injuries could not be dated specifically, the expert testified that the rib fractures, for example, were in various stages of healing. She opined that the rib injuries had occurred sometime between December 1 and December 3, 2005. In addition, although it was conceivable that all the rib injuries might have occurred at one time, the objectively observable evidence was consistent with multiple injuries.
The baby’s symptoms that led to his ultimate examination were the vomiting, crying, and failure to feed well; these symptoms were specifically associated with traumatic head injury. Those symptoms and that injury, dated from December 6, 2005, when the mother first noticed the baby vomiting and not eating. His condition deteriorated thereafter.
The leg injury likely took place more than one week before the baby was hospitalized based on the degree of sclerosis and healing. The femur fracture therefore probably took place sometime before December 3, 2005.
Even defendant tried to attribute the baby’s various injuries to different incidents and times. He blamed the skull fracture on a fall in the kitchen. He blamed the eye hemorrhages on a different incident when he dropped the baby while balancing him on his hand; he claimed he had poked the baby in the eye on that occasion. He attributed the rib fractures to multiple games of “catch the baby,” claiming to have tossed the baby up to 10 feet in the air while spinning him. He attributed the leg fracture to dangling, or swinging the baby upside down by his ankles. Defendant was seen to toss the baby or to hold the baby upside down, or otherwise play roughly with the baby, on many occasions by many people, all of whom advised defendant not to do so. There was also evidence that at times other than December 6, 2005, defendant was frustrated and angry with the baby’s crying, or that the baby would cry in increasing distress when alone with defendant.
In any event, the baby suffered three distinct injuries, each of which would be caused, as the doctor testified, by different mechanisms. The head trauma would be caused by violent shaking or slamming the baby against a hard surface. The rib fractures would be caused by grabbing the baby by the chest and squeezing; because the broken ribs were at different levels, the squeezing would have happened at different times. The metaphyseal fracture to the femur would result from a “fast, quick jerking rotational movement,” which is quite distinct from the mechanisms of the baby’s other injuries. Thus, even if defendant inflicted all the injuries on the same date, there is sufficient evidence to support separate counts. The injuries were inflicted by discrete methods, involving multiple acts of abuse.
The evidence was more than sufficient, taken as a whole, for a reasonable trier of fact to conclude that the injuries occurred on more than one occasion or as the result of more than one incident. Thus, the evidence properly supported three convictions of child abuse.
II. The Court Properly Imposed Separate Sentences for Each Count
Defendant contends, based on his interpretation of the evidence, that the baby’s injuries resulted from only one episode of child abuse; therefore, there was insufficient evidence to support an implied finding of multiple criminal acts or objectives. Without multiple criminal acts or objectives, defendant urges that the sentences on counts 2 and 3 must be stayed pursuant to Penal Code section 654.
Multiple punishments are proper where a defendant harbors “similar but consecutive objectives,” or “separate, although sometimes simultaneous, objectives under the facts.” (People v. Latimer (1993) 5 Cal.4th 1203, 1208, italics omitted.) “The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.] ‘We must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’ [Citation.]” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
Defendant’s contention is based on the flawed premise that there was only one incident of child abuse. As noted above, the evidence indicated that each injury took place at a different time. The femur fracture took place sometime before December 3, 2005. The rib fractures occurred at multiple times between December 1 and December 3, and earlier. The head trauma took place on December 6. The expert testimony clearly supported a finding that the injuries did not all occur on the same occasion. In addition, defendant was seen to treat the baby roughly at many different times. Defendant’s own version of events indicated the injuries occurred at separate times and places. The mechanism of each injury was distinct. The acts were clearly divisible in time, as well as in the mode of commission. Defendant had ample opportunity to reflect on his actions before renewing his abuse of the baby. (See People v. Gaio (2000) 81 Cal.App.4th 919, 935.) Penal Code section 654 therefore did not bar separate punishment for each count.

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.


We concur:


MILLER
J.


CODRINGTON
J.


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