Filed 9/8/26
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JASON HARLEY MOORE D086215
on
Habeas Corpus. (Riverside County Super. Ct.
Nos. SWF10001680,
CVRI2202119)
ORIGINAL PROCEEDING on a petition for writ of habeas corpus.
Petition granted.
Lauryn Barbosa Findley and Heather Angove for Petitioner Jason
Harley Moore.
Rob Bonta, Attorney General, Charles R. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Christine Y. Friedman and Arlyn Escalante, Deputy Attorneys General, for
Respondent the People.
Over 15 years ago, Jason Harley Moore’s infant daughter, Charlotte,
sustained fatal head injuries while in his care. He claimed Charlotte fell off a
bed while he was in the shower, but doctors suspected abuse. Moore was
charged with one count of assault by means of force likely to produce great
bodily injury on a child resulting in death pursuant to Penal Code
section 273ab. In 2014, a jury convicted him as charged and the trial court
sentenced him to 25 years to life in prison. We affirmed the judgment on
appeal. (People v. Moore (May 11, 2016, D069310) [nonpub. opn.] (Moore).)
Moore now has filed this petition for writ of habeas corpus challenging
his conviction based on post-trial developments in the scientific
understanding of the types of injuries Charlotte sustained. He contends
(1) the prosecution’s expert trial testimony has been undermined by scientific
developments since trial and, thus, the testimony constitutes false evidence
within the meaning of section 1473, subdivision (b)(1)(A); (2) the scientific
developments have created a significant dispute in the medical community in
Moore’s favor within the meaning of section 1473, subdivision (b)(1)(D); and
(3) the scientific developments constitute new evidence of Moore’s innocence
under section 1473, subdivision (b)(1)(C).
We issued an order to show cause why the relief sought in the petition
should not be granted. The People filed a Return and Moore filed a Traverse.
We now find relief is warranted as to Moore’s false evidence claim and thus
vacate the judgment. Because we grant relief on Moore’s false evidence
claim, we express no opinion as to his other two claims.
I.
A.
We grant Moore’s unopposed request for judicial notice of the materials
that accompanied his petition, including our records on appeal in case
number D069310 and the Riverside County Superior Court order denying
Moore’s habeas corpus petition. Having done so, we summarize below the
trial evidence from our opinion on direct appeal. (Moore, supra, D069310.)
Charlotte lived with her mother, Laura Morales, and Moore, who cared
for her while Morales worked. (Moore, supra, D069310.) On the afternoon of
July 27, 2010, when Charlotte was about three and a half months old, Moore
called Morales and told her “she needed to hurry home” because Charlotte
was not breathing. (Ibid.) When paramedics responded, Charlotte was
2
“slightly blue,” not breathing, and in cardiopulmonary arrest, “meaning her
heart was beating but not effectively.” (Ibid.)
Charlotte was taken to Loma Linda University Medical Center, where
“she died from her injuries about a week later.” (Moore, supra, D069310.)
Dr. Mark Massi, a forensic pediatrician, examined her upon arrival. (Ibid.)
Charlotte “had elevated intracranial pressure and her entire brain was
swelling.” (Ibid.) Dr. Massi observed subdural bleeding in Charlotte’s brain,
“which, for a child of [Charlotte]’s age, is mainly caused by some sort of
trauma such as shaking.” (Ibid.) Dr. Massi also saw “extensive retinal
bleeding[,] which suggested that [Charlotte] has suffered child abuse.” (Ibid.)
“Dr. Massi felt a swollen area on the right side of [Charlotte]’s head and
the ridge of a skull fracture, consistent with a fracture he saw on [her]
CT scan.” (Moore, supra, D069310.) “Looking at a 3D rendering of
[Charlotte]’s skull, Dr. Massi explained that [Charlotte] suffered a fracture of
the right parietal bone that continued past the suture (fibrous tissue between
the skull bones that allow the skull to compress during birth) into the
temporal bone.” (Ibid.) To Dr. Massi, this suggested Charlotte “suffered a
traumatic event.” (Ibid.)
According to Dr. Massi, a child may suffer a skull fracture in a fall of
two to three feet, such as from a bed, but he opined Charlotte’s particular
skull fracture and her other injuries were “more traumatic than a ‘common
household injury.’ ” (Moore, supra, D069310.) Dr. Massi observed no
bruising elsewhere to suggest Charlotte had been shaken. Yet he still opined
Charlotte had been shaken, that “the shaking caused the skull fracture,” and
her “injuries were due to nonaccidental abusive head trauma.” (Ibid.)
Dr. Mark McCormick performed Charlotte’s autopsy. (Moore, supra,
D069310.) “In examining [Charlotte]’s skull, Dr. McCormick noted a fracture
3
to the right parietal area of the skull that extended into a suture.
Dr. McCormick opined that a fall from a bed would not have caused the
fracture and brain injuries similar to [Charlotte]’s, even if she had hit her
head on a wooden bed frame. [He] believed [Charlotte]’s injuries were of the
type he would expect to see in an unrestrained infant involved in a car
accident or from a fall out of a second or third story building onto concrete.
In Dr. McCormick’s opinion, [Charlotte]’s injuries were likely inflicted and
not accidental.” (Ibid.)
“Dr. Christina Stanley, a forensic pathologist and neuropathologist,
examined [Charlotte]’s preserved brain.” (Moore, supra, D069310.)
According to her, the subdural hemorrhaging’s location “suggested inflicted
head trauma.” (Ibid.) She opined Charlotte’s hemorrhaging “was
inconsistent with a three-month-old infant falling off a bed” and “agreed with
Dr. McCormick that the injuries [Charlotte] suffered had been inflicted and
were consistent with abusive head trauma.” (Ibid.)
Moore, testifying on his own behalf, “stated that he set [Charlotte] on
the bed and went to take a shower. From the shower, Moore heard
[Charlotte] crying loudly. He left the shower and found [Charlotte] on the
floor. [Charlotte] cried as Moore checked to see if she had broken any limbs.
A short time later[,] as Moore held [Charlotte], she went limp and stopped
breathing. Moore began administering CPR as he called 911 and Morales.
Moore never mentioned to Morales, the paramedics[,] or law enforcement
that [Charlotte] had fallen.” (Moore, supra, D069310.) He admitted at trial
to “staging the bed with blankets to make himself look better.” (Ibid.)
The defense’s expert, pediatrician and neurologist Dr. Ronald Gabriel,
prepared a report opining Charlotte “had suffered a skull fracture.” (Moore,
supra, D069310.) Like Dr. Massi, “Dr. Gabriel testified that a three- or four-
4
month-old infant could suffer a parietal skull fracture from a fall of one to
two feet from a bed onto the floor” and “opined that [Charlotte] could have
suffered a parietal skull fracture falling from a bed and hitting a hard railing
during the fall.” (Ibid.) But Dr. Gabriel changed his opinion at trial “and
stated that [Charlotte] had not suffered a skull fracture[,] and what he
initially believed was a skull fracture, was actually a ‘congenital accessory
variant suture’ or anomalous suture that was there long before [Charlotte]’s
birth.” (Ibid.) He “concluded that [Charlotte] suffered a fall[,] and after she
stopped crying, [Charlotte] had an apnea spell and stopped breathing. This
caused her to turn blue,” meaning “she was not getting enough oxygen.”
(Ibid.) This “caused the heart to stop, which in turn stopped the flow of blood
to [Charlotte]’s brain. The lack of blood flow to the brain caused [Charlotte]’s
brain cells to die,” and “when the cells start to die, the brain swells. As the
brain swells, it takes the path of least resistance and begins poking through
the sutures,” which Dr. Gabriel opined caused Charlotte’s death. (Ibid.)
Dr. Gabriel believed Charlotte’s “subdural and subgaleal hemorrhaging
. . . were the result of the combination of a fall to the floor and a blood clotting
deficiency noted by the hospital upon her admission.” (Moore, supra,
D069310.) As to “the notion that retinal hemorrhaging indicated abuse, Dr.
Gabriel testified that this has been proven false on many occasions,” with
“[w]orld literature on this subject and his personal experience indicat[ing]
that such hemorrhaging cannot be used as a diagnostic tool because it can
result from clotting problems, leukemia, or infections.” (Ibid.) Dr. Gabriel
was not surprised by the retinal hemorrhaging “because of [Charlotte]’s blood
clotting problem and the very high pressure in her brain.” (Ibid.)
5
B.
In May 2022, Moore filed a habeas corpus petition in the superior court,
presenting the same three claims he presents here.
In support, Moore submitted many scientific articles showing injuries
like Charlotte’s can result from short accidental falls. He also submitted a
report from Dr. Gregory D. Reiber, a forensic pathologist with the Placer
County Sheriff-Coroner Department. Dr. Reiber has also been an educator in
the field of forensic pathology for 20 years, most recently as a Clinical
Professor of Pathology at the University of California, Davis.
Dr. Reiber explained the trial testimony of the prosecution’s medical
experts regarding abusive head trauma and the likely causes of Charlotte’s
injuries was consistent with the general consensus in the pediatric
community at that time. But recent studies “have made it clearer that
impacts from short falls generate rotational forces consistent with those
needed to produce subdural hemorrhage and brain injury, while shaking
alone does not,” and retinal hemorrhages “can be seen in accidental
household fall settings, as can simple and complex skull fractures.”
According to Dr. Reiber, these scientific and medical advances have
undermined the prosecution’s medical testimony at Moore’s trial, specifically
the “testimony that Charlotte Moore’s injuries and death are inconsistent
with a short fall.” Dr. Reiber opined that “Charlotte’s injuries are consistent
with a short fall of 26 inches.”
In his report, Dr. Reiber addressed each of Charlotte’s injuries that the
prosecution’s witnesses relied on to find she was the victim of abuse:
First, Dr. Reiber concluded the trial testimony that Charlotte’s
subdural hemorrhage is inconsistent with a household accident has been
undermined by scientific developments since trial. According to Dr. Reiber,
6
short falls that have been observed or caught on video resulted in subdural
hemorrhage and were fatal. And “biomechanical studies have shown that
short falls generate forces sufficient to result in [subdural hemorrhage], while
shaking alone does not.”
Second, Dr. Reiber opined that “scientific and medical advances, along
with case reports and proven short falls, have undermined [Drs. Stanley and
McCormick’s] trial testimony [that Charlotte’s diffuse subarachnoid
hemorrhage was inconsistent with a short fall] and shown that bilateral,
diffuse [subarachnoid hemorrhage] can result from and has resulted from
short falls.”
Third, Dr. Reiber concluded that Dr. Massi’s testimony that Charlotte’s
retinal hemorrhages are not characteristic of any process other than abuse
has been undermined by post-trial medical developments. More recent
studies have shown shaking does not generate sufficient force to cause such
an injury, while “short falls can and do sometimes result in multiple or
extensive, multilayered [retinal hemorrhages].”
Fourth, Dr. Reiber clarified the “testimony [of Drs. Stanley,
McCormick, and Massi that a short fall was insufficient to cause Charolotte’s
brain injury] has been undermined” because “[i]t is now beyond dispute that
short falls can and have caused brain swelling, brain injury, and brain
death.” He highlighted that, in 2020, the American Academy of Pediatrics
acknowledged for the first time case reports showing “short falls can be fatal
and that there is no pattern of injury unique to [abusive head trauma].” And
“a 2018 ‘Consensus Statement’ signed by many pediatric societies agreed that
short falls can be fatal and cause intracranial injury, including focal and non-
focal (diffuse) [subdural hemorrhage].”
7
Fifth, Dr. Reiber concluded that “[Dr. Stanley’s] testimony [that
Charlotte’s axonal injury was caused by forces such as shaking a baby, not
from impact,] has been undermined” by “[b]iomechanical studies . . .
[showing] short falls generate sufficient forces to cause axonal injury, while
shaking alone does not.” Recent studies have also shown oxygen deprivation
can cause axonal injury and retraction bulbs. According to Dr. Reiber, it is
not surprising Charlotte suffered axonal injury given the deprivation of
oxygen to her brain and massive and increasing brain swelling.
Sixth, Dr. Reiber opined, based on biomechanical research and studies,
Charlotte’s skull fracture “is consistent with a short fall.” “It has become
increasing[ly] clear that parietal skull fractures are the most common
fracture seen with accidental short falls, and short falls can cause both
simple and complex fractures. The testimony to the contrary has been
undermined.”
Seventh, Dr. Reiber concluded that medical advances undermined
(1) the testimony and opinions of Drs. Stanley, Massi, and McCormick that
Charlotte’s combination of injuries was inconsistent with a short fall, and
(2) the opinion that Charlotte’s combination of injuries was consistent with
shaking. He stated these scientific developments “have shown that the
[observed] injuries and any combination thereof are consistent with a short
fall[,]” and emphasized that it has been discovered that “rotational forces
associated with impact are much more severe than those achievable by
shaking.” “Years after th[e] trial, the first and only systematic review of the
evidence for [shaken baby syndrome] was conducted . . . [and it] concluded
the evidence is insufficient and unreliable, largely due to the circular
reasoning in classifying cases and controls and other methodological flaws.”
8
Finally, Dr. Reiber found it significant that Charlotte lacked any other
injuries suggestive of abuse.
C.
In February 2024, the court held a three-day evidentiary hearing,
Drs. Reiber, McCormick, and Massi testified.
Dr. Reiber largely testified in conformity with his report. He further
testified it was his opinion Charlotte’s injuries were equally as likely to have
been caused by a short fall from a bed as from abuse, and a short fall may be
more likely in the absence of other injuries. He testified shaking would be
considered and investigated but accidental injury could not be ruled out as
the cause of Charlotte’s injuries. According to Dr. Reiber, Charlotte’s injuries
were consistent with Moore’s report of an accidental fall from the bed. He
explained case studies showed Charlotte’s injuries—such as bilateral
multilayered retinal hemorrhage, subdural hemorrhage, skull fractures, and
fatality—individually and in combination, could result from an accidental
fall. Dr. Reiber concluded that, based on current medical understanding, it is
“not responsible” to testify Charlotte’s injuries could only come from a
multistory fall or traffic collision.
Dr. Reiber admitted “short fall accidental injuries rarely produce fatal
outcomes.” He also testified he would classify Charlotte’s manner of death as
“undetermined” because (1) the medical evidence showed her injuries to be
just as likely caused by accident as abuse, (2) Moore gave different
statements regarding the cause of Charlotte’s injuries, and (3) an
undetermined designation “wouldn’t preclude any sort of criminal
proceedings if there was enough information to push it in that direction.”
Dr. McCormick maintained he would not expect a fall from a bed to
generate enough force to cause Charlotte’s combination of injuries, although
9
he conceded it would not be impossible. Based on his review of scientific
literature, he agreed a fall of two to three feet can sometimes generate the
forces necessary to result in a skull fracture and, rarely, subarachnoid and
subdural hemorrhage. He testified a short fall could possibly cause a brain
injury and death, but it is rare and “even less likely.” It was Dr. McCormick’s
opinion that it was “extremely unlikely” Charlotte’s injuries were caused by a
short accidental fall.
Dr. Massi testified a changing story regarding an incident and an
admission of deception, such as Moore’s, are “red flags” for abuse. Dr. Massi
explained Charlotte could not fully roll over on her own and swaddling an
infant further restricts their ability to roll over. But he conceded an infant
could wiggle and move as to end up in different positions. He concluded, as
he did at the time he cared for Charlotte and at the time of trial, that
Charlotte’s injuries were most likely caused by abusive head trauma and that
her combination of injuries indicated shaking plus impact.
Dr. Massi acknowledged prior studies may have underestimated the
amount of retinal hemorrhaging that can result from a rotational fall. He
also conceded there is now controversy about (1) the diagnosis of abusive
head trauma in infants and (2) the types and scope of injuries that can be
inflicted by a short fall. He acknowledged more recent case reports have
shown short falls can result in death, subdural hemorrhage, retinal
hemorrhage, and extensive multi-layer hemorrhage. Although he
acknowledged this new information has been discovered since Moore’s trial, it
was his opinion that the information is not relevant to this case because falls
cannot be compared on a one-on-one basis and, when making a diagnosis, he
cannot look at a single injury in isolation but must take all injuries and
circumstances into account.
10
D.
The superior court denied Moore’s petition.
As to Moore’s false evidence claim, the court first found the experts
provided false trial testimony when they testified Charlotte’s injuries could
not have been caused by a fall from the bed onto the carpeted floor. But it
found the false testimony was not “material” because Moore “failed to prove
by a preponderance of the evidence that, even if the false evidence described
above had not been presented at trial, there is reasonable probability of a
more favorable result.”
Similarly, as to Moore’s new evidence claim, the court found “new
evidence does exist,” but the “new evidence would not more likely than not
have changed the outcome of the trial.”
Last, as to Moore’s claim of a scientific dispute, the court found “there
is an emerging consensus in a relevant field regarding the possibility of short
falls causing significant injuries or death.” But Moore “failed to establish by
a preponderance of the evidence that the evidence subject to the emerging
dispute more likely than not affected the outcome of the case.”
II.
A.
Moore argues the experts offered false evidence at trial by testifying in
absolute and unequivocal terms that a short fall from a bed could not have
caused Charlotte’s injuries. He contends later scientific developments have
shown a short fall can cause the types of injuries Charlotte sustained, thus
undermining the experts’ testimony to the contrary. Moore also argues the
false evidence presented at trial was material. He explains this was a close
case, and the false evidence “was extensive, pervasive, and impactful.” And
the false evidence overshadowed other evidence that he was a good and
11
loving father, justified in failing to immediately disclose that Charlotte had
fallen off the bed.
The People counter that the experts at trial did not frame their
opinions in “absolute terms” but merely explained, in their own experiences,
they had not seen injuries such as Charlotte’s caused by a fall from a bed and
that such a fall did not explain the unique circumstances of this case. The
People conclude the scientific developments “merely show differences of
opinion and outlier cases; they do not establish that any aspect of the
prosecution expert’s testimony was false or based on a methodology that is no
longer accepted.” Even if some of the evidence presented at trial can be
deemed false, the People respond it was not material. According to the
People, Moore’s evolving story, his delay in telling the truth, Charlotte’s
inability to roll over, and the separate contusions on her scalp all show the
jury correctly found Moore’s explanation not credible.
B.
Because a habeas corpus petition collaterally attacks a presumptively
valid judgment, a petitioner carries a heavy burden to prove, by a
preponderance of the evidence, entitlement to relief. (In re Lewis (2018)
4 Cal.5th 1185, 1191 (Lewis).)
When the superior court has denied habeas corpus relief after an
evidentiary hearing, the petitioner files a petition in the appellate court
based upon the transcript of the evidentiary hearing below, and the appellate
court issues an order to show cause, the appellate court is not required to
order an additional evidentiary hearing. (In re Resendiz (2001) 25 Cal.4th
230, 249 & fn. 11.) Such a scenario “is essentially the same as where the
appellate court has made a reference” and, thus, the same rules apply. (In re
Wright (1978) 78 Cal.App.3d 788, 801.) Accordingly, when considering a
12
petition for habeas corpus based on the record of an evidentiary hearing
conducted in the lower court, the appellate court affords great weight to, but
is not bound by, the superior court’s factual determinations that are
supported by the record. (Lewis, supra, 4 Cal.5th at p. 1191; Resendiz, at
p. 249.) The appellate court therefore may make its own factual
determinations based on an independent review of the record. (Lewis, at
p. 1191; Resendiz, at p. 249.) “Conclusions of law and resolution of mixed
questions of fact and law are subject to independent review.” (In re Parks
(2021) 67 Cal.App.5th 418, 443–444 (Parks).)
In this original habeas corpus action, we apply the current version of
section 1473. (Cf. In re Richards (2016) 63 Cal.4th 291, 307–311 [discussing
amendment of section 1473 after resolution of petitioner’s prior petition and
applying amended version of statute to subsequent petition].) Section 1473,
subdivision (b)(1) currently provides that a petitioner may bring a petition for
writ of habeas corpus on the ground that “[f]alse evidence that is material on
the issue of guilt or punishment was introduced” at trial. To obtain relief, the
petitioner must “prove, by a preponderance of the evidence,” the false
evidence was (1) “introduced against” the petitioner at trial and
(2) “ ‘material . . . on the issue’ of” the petitioner’s guilt. (Parks, supra,
67 Cal.App.5th at p. 444.)
C.
1.
“ ‘[F]alse evidence’ includes opinions of experts that have either been
repudiated by the expert who originally provided the opinion at a hearing or
trial or that have been undermined by the state of scientific knowledge or
later scientific research or technological advances.” (§ 1473, subd. (b)(2).) To
show an expert’s opinion has been undermined by scientific developments, a
13
petitioner must show the “ ‘underlying facts essential to the expert’s
inferential method and opinion’ ” no longer support that opinion. (Richards,
supra, 63 Cal.4th at p. 311; Parks, supra, 67 Cal.App.5th at p. 445.) This
requires more than showing two experts could reasonably disagree (Parks, at
pp. 447, 450) or that the scientific developments simply expand on issues
addressed at trial (id. at p. 452). But a petitioner presenting a false evidence
claim does not need to show the prosecutor knew or should have known the
testimony was false. (§ 1473, subd. (b)(3).)
2.
Though the prosecution’s medical experts couched much of their
testimony in terms of their personal experiences and the types of injuries
they would or would not expect to see under certain circumstances, we agree
with Moore that the prosecution’s medical experts offered absolute
conclusions that a fall from a bed could not have caused Charlotte’s
combination of injuries. We further determine their absolute conclusions
were essential to their opinions regarding the cause of Charlotte’s injuries.
And the experts now agree that scientific developments after trial have
undermined such an unequivocal conclusion.
At trial, Dr. Massi testified Charlotte’s injuries were “[a]bsolutely”
inconsistent with a short fall from a bed and such a fall “would not account
for her condition.” Rather, her injuries were “more consistent with the forces
to which an infant would be subjected in a car crash or a fall from multiple
stories.” He stated the level of force required to cause Charlotte’s injuries
was such that “if there were an observer in the room [when Charlotte was
injured], the observer would have been distressed by the violence with which
these injuries were inflicted.” He further explained Charlotte’s retinal
hemorrhaging was different from hemorrhaging seen outside of the child
14
abuse context and Charlotte’s hemorrhaging was “not characteristic of any
other process” besides abuse. Given the nature of Charlotte’s injuries, he
testified “something much more traumatic [than a fall from the bed] had
happened to her.” He twice stated, “This was a major traumatic event.”
Similarly, Dr. McCormick testified Charlotte’s brain hemorrhaging was
indicative of a fall from two or three stories or a car accident. It was his
opinion a fall such as that described by Moore would not account for
Charlotte’s injuries and “there’s no convincing evidence to me that a child
could sustain a fracture from . . . a fall of that height.” He explained that,
even if an infant’s head hit a wooden bed frame as the infant fell to the floor,
one would not see “the skull fracture[,] . . . the internal injuries to the brain,”
the “tremendous amount of swelling,” or “the optic nerve sheath
hemorrhages” that Charlotte suffered. When asked about injuries an infant
might suffer from falling off a changing table or out of a car seat,
Dr. McCormick testified “[t]hey are not these kind[s] of injuries.” He could
not think of any household accident involving an infant falling off something
that would cause Charlotte’s combination of injuries.
And Dr. Stanley testified Charlotte’s injuries were not “consistent with
a three-month-old who allegedly sustained a short fall of 26 inches or so onto
a carpeted surface.” Such a fall would not “adequately explain the extent of”
her injuries. Dr. Stanley explained the short fall scenario “just would not be
the way a child would die.” She concluded “someone did something to
[Charlotte] that caused this. I don’t know exactly what. A person did it.”
In contrast, Drs. Reiber, Massi, and McCormick testified at the
evidentiary hearing that the current scientific data does not support an
absolute conclusion that a short fall cannot cause the types of injuries
Charlotte sustained.
15
Dr. Reiber testified case studies showed injuries such as bilateral
multilayered retinal hemorrhage, subdural hemorrhage, skull fractures, and
fatality, individually and in combination, can result from an accidental fall,
although he admitted such scenarios are rare. Because of this evidence,
Dr. Reiber explained it is “not responsible” to testify Charlotte’s injuries could
only come from a multistory fall or traffic collision.
Dr. McCormick conceded the scientific literature showed a fall of two to
three feet can sometimes generate the forces necessary to result in a skull
fracture, subarachnoid and subdural hemorrhage, brain injury and death,
although it would be “rare” and “extremely unlikely.” Despite continuing to
believe Charlotte’s “fatal brain injury . . . doesn’t really track with a short
fall,” Dr. McCormick admitted there have been at least two documented cases
in which a child suffered a fatal brain injury from a short fall.
And Dr. Massi acknowledged prior studies may have underestimated
the amount of retinal hemorrhaging that can result from a rotational fall. He
conceded there is now controversy about the diagnosis of abusive head
trauma in infants. He confirmed more recent case reports have shown short
falls can result in death, subdural hemorrhage, retinal hemorrhage, and
extensive multi-layer hemorrhage. Dr. Massi agreed that in 2020 the
American Academy of Pediatrics for the first time acknowledged case reports
showing short falls can result in severe neurological injury and death.
This record evidence shows more than a mere difference of expert
opinion. In fact, there is no disagreement as to whether the expert testimony
at trial was contrary to current scientific understanding of the injuries at
issue. The experts now agree scientific developments have established a
short fall can cause the types of injuries Charlotte suffered, even if rare. The
trial testimony of Drs. Massi, McCormick, and Stanley to the contrary, which
16
was essential to their opinions that Moore abused Charlotte, was false.
(§ 1473, subd. (b)(2); Richards, supra, 63 Cal.4th at p. 311; Parks, supra,
67 Cal.App.5th at p. 454 [finding expert trial testimony false where all
experts who testified at later evidentiary hearing agreed trial expert had
been mistaken about an essential fact underlying his testimony].)
D.
1.
“Determining that the evidence was false clears the first hurdle,” but to
show an entitlement to relief a petitioner must also show that the false
evidence was “material.” (In re Figueroa (2018) 4 Cal.5th 576, 588–589
(Figueroa).)
False evidence is material if there is a reasonable probability the result
“would have been different” in its absence. (Figueroa, supra, 4 Cal.5th at
p. 589.) A “reasonable probability” is one that undermines our confidence in
the outcome of trial when viewed objectively in light of the totality of the
relevant circumstances. (In re Sassounian (1995) 9 Cal.4th 535, 546
(Sassounian).) This standard is the same as the state test for harmless error
under People v. Watson (1956) 46 Cal.2d 818, 836. (Figueroa, at p. 592.)
“[T]he crucial question is whether the false evidence was material—not
whether, without the false evidence, there was still substantial evidence to
support the verdict.” (Richards, supra, 63 Cal.4th at p. 312.)
2.
When viewed objectively and in the totality of the relevant
circumstances, we find there is a reasonable probability the result of Moore’s
trial would have been different had the jury not heard the testimony of the
three medical experts that a short fall absolutely could not have caused
Charlotte’s injuries. In other words, in light of the scientific developments
17
since trial, which have undermined the medical experts’ trial testimony, we
no longer have confidence in the outcome of Moore’s trial.
Putting aside the experts’ testimony regarding the cause of Charlotte’s
death, the totality of which was tainted by their false conclusions that
Charlotte could not have sustained her injuries by falling off the bed, the
prosecution’s case consisted of three categories of evidence: (1) Dr. Massi’s
testimony that Charlotte could not roll over, suggesting she could not have
rolled off the bed; (2) Dr. McCormick’s testimony that Charlotte suffered
two impacts, suggesting her injuries could not have been caused by a single
fall from the bed; and (3) Moore’s delayed disclosure regarding the fall,
suggesting he was being deceptive. Upon closer look, however, the first
two pieces of evidence are not as they appear.
First, although Dr. Massi testified Morales reported to him that
Charlotte was unable to roll over on her own, he also testified Morales
reported to a social worker that Charlotte was beginning to roll, could move
from her back to her side, and was “wiggly.” And Dr. Massi testified that if
an infant of Charlotte’s age and development were placed too close to the
edge of a bed she could fall off. In addition, it is not disputed that Charlotte
had fallen from the couch just two weeks before the incident at issue here.
Thus, the evidence shows Charlotte could have fallen off the bed unassisted.
Second, Dr. McCormick testified at trial that Charlotte’s subdural
hemorrhaging demonstrated “two areas of impact.” But this does not prove
the cause was two abusive impacts. Even accepting Dr. McCormick’s opinion
that Charlotte suffered two areas of impact, the medical data now shows
subdural hemorrhaging can result from short falls. And, thus, the evidence
18
shows it is possible Charlotte could have been injured by, for example, one
impact on a bed frame and another impact on the floor.
Thus, Moore’s delayed disclosure remains the only evidence suggestive
of his guilt. But even that becomes less compelling when considering the
totality of the relevant circumstances. While Moore initially failed to tell
anyone Charlotte fell off the bed, he offered a plausible justification for this.
He testified at trial he did not initially disclose Charlotte’s fall because she
had fallen off the couch about two weeks prior while in his care, he had
promised Morales he would not let it happen again, and he was afraid
Morales would hate him and would never forgive him. Though Moore was
withholding information about the fall, he was under the impression that
Charlotte’s condition was stabilizing and she was expected to be okay. As
long as he believed she was going to be okay, he sought to avoid being held
accountable for allowing her to fall off the bed. But once he was told
Charlotte was in critical condition, he decided to admit she had fallen.
Moore’s jury might not have seen a reason to even consider his justifications
for his delayed disclosure because three doctors testified conclusively that
Charlotte’s injuries could not have been caused by the fall from the bed he
described.
In contrast to this evidence suggestive of Moore’s guilt, other
circumstances support his claim that Charlotte’s injuries were accidental.
For example, there is no evidence Moore abused Charlotte on any other
occasion. Rather, Morales’s trial testimony portrayed Moore as a devoted
stay-at-home father to Charlotte and Morales’s two other children. Nor was
there any sign of other injury to Charlotte’s body from this incident that was
suggestive of abuse. Her only injuries were to her head, which, as we
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explain, the new medical data shows could have been caused by a fall from
the bed, even if such an event would be exceptionally rare.
In addition, this is not a case where the false evidence was already
substantially challenged at trial by strong rebuttal experts such that the new
scientific developments would only “have provided more fodder for the
defense in th[e] debate [already presented] at trial.” (Parks, supra,
67 Cal.App.5th at pp. 451, 455–456; Sassounian, supra, 9 Cal.4th at p. 548.)
In fact, the only evidence the defense presented at trial to rebut the
prosecution’s expert testimony regarding the cause of Charlotte’s injuries
came from the defense expert, Dr. Gabriel. Dr. Gabriel testified a skull
fracture could result from a short fall but he did not opine as to whether a
short fall could cause the other types of injuries Charlotte suffered. And,
importantly, Dr. Gabriel’s testimony was undermined by Moore’s own defense
counsel at trial.
On appeal from Moore’s judgment of conviction, we found Moore
received ineffective assistance of counsel at trial because his defense lawyer
undermined Dr. Gabriel by failing to provide him with all of Charlotte’s CT
scans and instructing him not to spend time considering whether she suffered
a skull fracture. (Moore, supra, D069310.) Then, when Dr. Massi testified at
trial that Charlotte’s skull fracture was inconsistent with a short fall, counsel
provided Charlotte’s CT scans to Dr. Gabriel. (Ibid.) Upon reviewing the
scans, Dr. Gabriel opined Charlotte had not suffered a skull fracture at all
and admitted before the jury that he had changed his opinion on this issue.
(Ibid.) We found counsel was ineffective but Moore was not prejudiced given
the other circumstances of trial. (Ibid.) But this conclusion did not account
for the fact that some of the prosecution’s medical expert testimony was false.
Where previously acknowledged errors by trial counsel left the sole defense
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expert flat-footed at best, and not credible at worst, the united, albeit false,
conclusion of all three prosecution experts about the cause of Charlotte’s
injuries would have been even more influential on the jurors.
Last, we recognize that, at the evidentiary hearing, Dr. McCormick
stood by his opinion that he would not expect Charlotte’s injuries to have
resulted from a fall from the bed, and Dr. Massi still held the opinion that
Charlotte’s injuries were caused by abusive head trauma. But, at trial, their
opinions were bolstered by the false testimony that such a fall absolutely
could not have caused Charlotte’s injuries. The jury would have viewed the
doctors’ opinions in a different light if, rather than hearing the unqualified
testimony discounting accident as a cause of Charlotte’s injuries, it heard the
admissions of Drs. McCormick and Massi that new evidence contradicts some
of their opinions.
The totality of the relevant circumstances here are analogous to those
the Supreme Court considered in Figueroa. There, our high court considered
the materiality of false medical expert testimony regarding the cause of a
child’s injuries. (Figueroa, supra, 4 Cal.5th at pp. 588–589.) As is the case
here, “[s]tripped of falsity, the evidence [in Figueroa] would show that [the
victim] suffered profound injuries while in petitioner’s care,” but it was not
certain whether the cause of the injuries was accident or abuse. (Id. at
pp. 590–591.) And, as here, the jury in Figueroa was invited to convict the
petitioner based on a theory that was “tainted by the false evidence” and “[i]n
that light, the jury had scant need to consider other theories, and no ability to
do so outside the pall cast by the completely repudiated testimony.” (Id. at
p. 591.) In other words, “[t]he jury had no opportunity to evaluate the
likelihood of . . . an accident [such as that alleged by the petitioner] divorced
from the specter of the false evidence.” (Ibid.) Thus, “[w]hat the jury might
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have concluded” absent the “extensive, pervasive, and impactful” false
testimony was “an exercise in speculation.” (Ibid.)
Ultimately, this is not a case where “[t]he evidence . . . left the jury
little choice but to find” Moore guilty despite the false evidence. (In re
Malone, 12 Cal.4th 935, 968.) Nor is there “only one reasonable inference”
the jury could have drawn from the remaining evidence. (Sassounian, supra,
9 Cal.4th at p. 549.) Had the jury known it was possible, even if rare, for
injuries such as Charlotte’s to result from a short fall as shown by scientific
case studies, the jury would have had to weigh all the evidence, including
Moore’s explanation of the fall and his delay in offering his explanation and
the evidence supporting his claim of an accidental fall, to determine whether
this was a case of intentional abuse beyond a reasonable doubt, or rather may
have been one of the rare cases in which an infant suffered fatal head injuries
from a short fall. We conclude the false evidence “established ‘a direct and
visceral link’ between” Charlotte’s injuries and the allegations of an abusive
assault by Moore, “and the remaining evidence was too close for us to have
confidence in the verdict.” (Richards, supra, 63 Cal.4th at p. 320.)
E.
In addition to vacating his conviction, Moore requests that we release
him on his own recognizance pending further proceedings in the superior
court. We recognize our authority to release a habeas petitioner on bail or on
petitioner’s own recognizance. (§ 1476; People v. Romero (1994) 8 Cal.4th
728, 744.) But Moore has failed to persuade us to exercise this authority
under the circumstances of his case. (Compare In re Kreitman (1995)
40 Cal.App.4th 750, 752 [petitioner incarcerated for contempt of court
released on own recognizance] with In re Chavez (2004) 114 Cal.App.4th 989,
991, 993 [petitioner incarcerated for filing false tax returns denied release
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pending the People’s appeal from superior court order granting habeas
relief].)
This is not, however, to be interpreted as an indication as to whether
Moore might be entitled to release by the trial court upon remand. Nor does
it preclude his release should the People fail to timely elect to commence a
retrial.
III.
Let a writ of habeas corpus issue vacating the judgment of conviction in
People v. Jason Harley Moore (Super. Ct. Riverside County, 2014,
No. SWF10001680) in its entirety, and remanding the matter to the Riverside
County Superior Court. The People may elect within the time allowed by law
to conduct a retrial.
CASTILLO, J.
WE CONCUR:
MCCONNELL, P. J.
DATO, J.
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