P. v. Contreras







Filed 12/15/10 P. v. Contreras CA2/6




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. CHRISTANA MARIE CONTRERAS, Defendant and Appellant.

2d Crim. No. B218908 (Super. Ct. No. 1286928) (Santa Barbara County)

Christana Marie Contreras appeals from the judgment after a jury convicted her of felony child endangerment (Pen. Code, § 273a, subd. (a)),^[1] bringing drugs into a jail (§ 4573), and transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)). With respect to child endangerment, the jury found a special allegation that she permitted her two-year-old daughter, Isabella, to suffer unjustifiable physical pain and injury that was likely to, and did result in death, to be true. (§ 12022.95.) The jury acquitted appellant of being an accessory after the fact to child endangerment by harboring, concealing or aiding codefendant, Robert Anthony Garcia, Jr. (§ 32.)^[2] The court sentenced appellant to nine years in state prison. Appellant challenges the sufficiency of the evidence to support the child endangerment conviction and argues that the court committed reversible error by denying her severance motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to December 2007, two-year-old Isabella lived in a house in Lompoc with her brothers, Anthony (9 years old) and Angel (4 years old), their mother (appellant), and appellant's husband, Jesse Contreras. Jesse was not the children's father. Anthony often stayed with appellant's parents, who lived near his school. Jesse went into custody in September 2007. Appellant started dating Jesse's cousin, Garcia. She met Garcia at his sister's home shortly after his release from prison, and she knew that he was on parole.
In December 2007, Garcia moved into appellant's house. His friend, J.J. Tubbs, another parolee, visited often. In early February 2008, Garcia's adult nephew, Juvenal Castro, began to stay in appellant's home. Juvenal's girlfriend, Maria Galvez, was a frequent guest. Garcia, Juvenal, and Maria Galvez helped care for Isabella and Angel. Appellant, Garcia, Tubbs and Juvenal used methamphetamine in appellant's home when Isabella and Angel were there.
Garcia could be like a "volcano." On one occasion, he pushed appellant into a closet and stood outside, blocking its door. Another time, Garcia shoved the back of appellant's head into a wall. She needed aspirin as a result. Garcia was "irritable" when he "came down" after using methamphetamine." In February or earlier, appellant noticed that Garcia was sometimes "out of [his] fucking mind," and that Isabella was starting to look as if she did not want to be with Garcia.
On February 9, appellant and Garcia obtained a large supply of methamphetamine. For the next several days, appellant, Garcia, Tubbs, and Juvenal binged on methamphetamine.
On February 11, 2008, appellant, Angel and Anthony went to Carpenteria for the day. Garcia cared for Isabella while they were away.
On the evening of February 12, appellant went to her parents' home to get a television, with her children, Garcia, and Juvenal. At first, Isabella ran to appellant's mother, hugged her, and seemed to be a bit fearful. She acted more like herself within minutes. Isabella seemed fine when appellant put her to bed in a short-sleeved nightgown at about 11:00 p.m. that night. There were no bruises on her arms.
On February 13, during the very early morning hours, Garcia was trying to connect the television in the master bedroom, while appellant was in bed. When he could not get the television connected, Garcia became so angry that he "threw stuff around the room," including wire cutters or pliers. Appellant was upset and scared. She started crying and asked him to leave it for the morning. He left the room. Sometime before 5:00 a.m., Garcia awakened her, apologized for throwing everything around, and said he was just mad.
Appellant, Garcia, Isabella, Angel, and Juvenal were home for most of the day on February 13. Appellant spent much of her day in bed. At about 8:00 a.m., she went to McDonald's to get breakfast for the household. Garcia told appellant that Isabella was still sleeping and did not want to eat. Appellant returned to bed, and slept for most of the morning. She was "crashed out" and "coming down" off methamphetamine.
Garcia recalled that he gave Isabella breakfast in the kitchen. He took her back to her room to return to bed because she was sleepy. Garcia and Juvenal left the house briefly, twice. At approximately 1:00 p.m., appellant woke up and was unaware that Juvenal and Garcia had left. Appellant went to McDonald's, alone, at about 1:00 p.m. or 1:30 p.m. to get food. When she returned, she asked Garcia to get Isabella for lunch. He told her that Isabella did not want lunch and that she should leave her alone so she could sleep. Although appellant thought that was odd, she went back to sleep without checking Isabella.
At approximately 4:00 p.m., appellant drove to visit a friend. Between about 4:30 p.m. and 5:00 p.m. she drove her mother to an automotive repair shop. Before returning home, appellant spoke with Garcia on the telephone and asked him to get Isabella ready to go to her brother's basketball game. Garcia said he thought that Isabella had a fever.
Appellant had not changed Isabella's diaper, checked on her, or spoken with her at any time on February 13, until after 5:00 p.m., when she returned from her last errand. When she got home, appellant filled a dropper with medicine and went to Isabella's room. She found Isabella lying in bed, with a blanket pulled up to her chin. Isabella was not warm and did not seem to have a fever. She was completely nonresponsive. Appellant pulled the blanket away, saw a bruise on Isabella's left arm, and noticed that her left leg was twisted inward, in an unnatural position.
Appellant screamed, carried Isabella into the master bedroom, and called Garcia. Isabella remained nonresponsive. Tubbs drove appellant, Isabella and Garcia to Lompoc Hospital.
Donald Dawes, M.D., examined Isabella in the hospital emergency room. She was unconscious, and having atypical seizures. A CT scan revealed that she had serious injuries, including two skull fractures. Appellant told Dr. Dawes that Isabella woke up after a nap and was not responsive, and that she might have fallen from playground equipment several days earlier. Because appellant's explanation made no sense in view of Isabella's condition, Dr. Dawes notified the police. He also arranged for Isabella to be transferred to the UCLA Mattel Children's Hospital.
Lompoc Police Department officers questioned appellant at the hospital and questioned her later at the police station. Appellant said that she never saw Garcia hit her children and that he would not hurt any of her children. She also told them that Garcia did not live with her, and that neither she nor Garcia used drugs.
After leaving the police station, appellant joined Garcia who was with his family and friends. Appellant later said that she was trying "to get some answers" about "what happened to Isabella." She drove Garcia to the Lompoc police station between 1:00 a.m. and 2:00 a.m. on February 14, 2008, where the police took him into custody.
On February 14, appellant and Garcia spoke several times on the telephone, while he was in custody. Their first two conversations did not concern Isabella or her injuries. During their third conversation, appellant said that Garcia had been "out of [his] fucking mind[,]" and that in ". . . the past like whatever weeks or - man I see this shit, like [Isabella] fucking . . . [didn't] wanna go with - [Garcia] - like she [got] in [his] lap and then she like look[ed] at [appellant]." She asked Garcia why her daughter was "doing that‌" After Garcia yelled at her, appellant said, "That's what I'm talking about . . . like you . . . [¶] . . . [¶] No, I - I see how you get when you're - no you don't even know that the . . . ." Appellant's sister, Mary Rodriguez, told a police detective that she had "noticed that Isabella appeared to be afraid of . . . Garcia," and that she spoke to appellant about that.
On February 15, a police detective questioned appellant about her failure to check on Isabella on February 13 at any time before 5:00 p.m. or 5:30 p.m. Appellant responded that it was because she was "doing methamphetamine."
Isabella did not improve. Her doctors concluded that she had suffered massive, irreversible brain damage. Medical personnel removed life support from Isabella on February 24, 2008, with the consent of her father, Angel C. She died immediately.
In early March 2008, appellant first noticed a small round dent in the drywall, about two inches from the window, on the wall of Isabella's bedroom. She found three strands of hair in the damaged drywall. Testing confirmed that it was Isabella's hair. The damaged drywall section was against the stud framing the window. Although officers did not notice the dented drywall while searching appellant's house on February 13 and February 14, it is visible in the search photographs.
Dr. James Ribe, a forensic pathologist, testified that Isabella sustained two separate and instantly incapacitating skull fractures that caused swelling which cut off the blood supply to the whole left side of her brain. He explained that "the left side of her brain had already pretty much stopped working at the time she got to the emergency room," and the injuries were "not survivable." He opined that the injuries occurred when Isabella was intentionally "thrown or slammed" "against a hard surface," and were produced by "the maximum force that an adult can generate, whether she was . . . swung by the feet or picked up and hurled or some other method . . . ."
DISCUSSION
Substantial Evidence
Appellant argues that her child endangerment conviction is not supported by substantial evidence. We disagree.
In reviewing claims of insufficient evidence, "'"we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]"' [Citation.] '. . . [W]e presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.' [Citation.]" (People v. Wilson (2008) 44 Cal.4th 758, 806.) Reversal is warranted only where it appears "'that upon no hypothesis what[so]ever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The felony child endangerment statute requires that the defendant's acts occur "under circumstances or conditions likely to produce great bodily harm or death." (§ 273a, subd. (a).) Appellant claims that the evidence is insufficient to show that her leaving Isabella with Garcia presented a likely risk that Isabella would suffer serious bodily harm, and that she had knowledge that Isabella would suffer serious bodily harm. The record belies her claim.
Viewing the record in the light most favorable to the judgment, the evidence is sufficient to support appellant's child endangerment conviction. After Garcia moved into her home, they used methamphetamine in the home, with friends, while Isabella and her four-year-old brother were there. In February or earlier, appellant noticed that Isabella had not wanted to go with Garcia, and that he had been "out of [his] fucking mind." Appellant's sister had talked to her about Isabella's apparent fear of Garcia.
Garcia could be like a "volcano." He was irritable when he "came down" after using methamphetamine. Appellant, Garcia, Juvenal and Tubbs had binged on methamphetamine for several days preceding February 13, 2008. During the early morning hours on February 13, Garcia became so angry that he threw things around the bedroom. On February 13, appellant spent much of the day in bed. She did not check Isabella once that day, until some time after 5:00 p.m. She instead relied on Garcia to check on, and attend to, Isabella throughout the day, although she knew that Isabella seemed to fear him. On one occasion, Garcia had shoved the back of appellant's head into a wall and injured her to such an extent that she needed aspirin. Isabella's fatal injuries were apparently caused when an adult slammed or threw her against the wall. Based upon the evidence, a reasonable trier of fact could find beyond a reasonable doubt that the Isabella's death occurred "under circumstances or conditions likely to produce great bodily harm or death" (§ 273a, subd. (a)), and that appellant had knowledge of that risk.
Severance Motion
Appellant contends that the trial court abused its discretion by denying her motion to sever her trial from Garcia's trial, and that it deprived her of a fair trial. We disagree.
The prosecution charged appellant and Garcia with many of the same crimes (child endangerment, with an allegation that they permitted Isabella to suffer unjustifiable physical pain and injury that was likely to, and did, result in her death; bringing drugs into a jail; and transporting methamphetamine). It also charged Garcia with murder and assault resulting in death of a child (§§ 187, subd. (a); 273ab), and charged appellant with being an accessory after the fact to child endangerment by harboring, concealing or aiding Garcia. The court impaneled separate juries to try appellant and Garcia. With limited exceptions, the juries heard the same evidence.
Where defendants are charged with committing the same crime, section 1098 creates a statutory preference for a joint trial: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." (Ibid.; see People v. Alvarez (1996) 14 Cal.4th 155, 190.) The trial court has broad discretion when ruling on a severance motion, but "a reviewing court may reverse a conviction when, because of consolidation, 'gross unfairness' has deprived the defendant of a fair trial." (People v. Ervin (2000) 22 Cal.4th 48, 69.) "Joinder is generally proper when the offenses would be cross-admissible in separate trials, since an inference of prejudice is thus dispelled. [Citations.]" (People v. Arias (1996) 13 Cal.4th 92, 126.) Here, the court balanced the concerns for judicial economy and appellant's right to a fundamentally fair trial and empanelled two separate juries to hear the cross-admissible evidence against appellant and Garcia. (People v. Wardlow (1981) 118 Cal.App.3d 375, 384-385.) There was no abuse of discretion or gross unfairness in this case.
Appellant claims that a joint trial was prejudicial because none of the evidence relating to the homicide, such as the physical evidence, the medical evidence, and the evidence of Garcia's mental state "had any direct relevance to proving a case of child endangerment as to appellant." We disagree. The evidence against appellant and Garcia was intertwined and largely cross-admissible in the murder and child endangerment offenses. The details regarding Isabella's fatal injuries, including medical evidence, and the circumstances and conduct that caused her injuries, were relevant to the issue of whether appellant had knowledge that leaving Isabella with Garcia presented a likely risk that Isabella would suffer serious bodily harm. In February, or earlier, appellant had noticed that Isabella did not want to go with Garcia, and that he had been "out of [his] fucking mind." Her sister spoke to her about Isabella's apparent fear of Garcia. Garcia had used force against appellant, and she once needed aspirin after he shoved the back of her head into a wall. Three strands of Isabella's hair were found in a dent in the wall next to her bed. Expert testimony suggested that Isabella died as a result of fatal injuries that resulted from her having been intentionally "thrown or slammed by an adult," with "the maximum force that an adult can generate, whether she was . . . swung by the feet or picked up and hurled or some other method . . . ."
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.




COFFEE, J.
We concur:



YEGAN, Acting P.J.



PERREN, J.


Jed Beebe, Judge

Superior Court County of Santa Barbara

______________________________


Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.


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