People v. Hernandez

• Decision Date: 07 November 1980
• Docket Number: Cr. 34489
• Citation: People v. Hernandez, 168 Cal.Rptr. 898, 111 Cal.App.3d 888 (Cal. App. 1980)
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alice HERNANDEZ and Daniel J. Holmes, Defendants and Appellants.

Page 898

168 Cal.Rptr. 898

111 Cal.App.3d 888

The PEOPLE of the State of California, Plaintiff and Respondent, v.Alice HERNANDEZ and Daniel J. Holmes, Defendants and Appellants.

Cr. 34489.

Court of Appeal, Second District, Division 5, California.

Nov. 7, 1980.

Lee B. Ackerman, Los Angeles, Quin Denvir, State Public Defender, and Adrian K. Panton, Deputy Public Defender, for defendants and appellants.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Frederick Grab, Deputy Attys.Gen., for plaintiff and respondent.

CARDENAS, ^* Associate Justice.

Defendants, Alice Hernandez and Daniel J. Holmes, each appeal from a judgment of conviction of one count of Penal Code section 273a(1).

Defendants were charged in count I of the information ¹ with a violation of section 273a(1) of the Penal Code alleged to have occurred between September 1, 1977, and April 18, 1978.Defendants waived their right to a jury trial and after a court trial on December 14, 1978, each was found guilty as charged.Probation reports were ordered.The probation department recommended that Hernandez be referred to the state prison for a 90-day diagnostic study pursuant to the provisions of Penal Code section 1203.03.After further proceedings on January 26, 1979, probation was denied as to Hernandez and she was sentenced to the state prison for the upper term of three years with credit for time served of 28 days.The court at that same time rejected defendant Hernandez' request for an updated psychological report prior to sentencing.Defendant Holmes was placed on three years' probation on condition that he serve the first year in the county jail.

Facts

Alice Hernandez and Daniel Holmes lived together as husband and wife for ten to twelve years.They have two children, Daniel Holmes, Jr.(10 years old), and Rebecca Holmes(born September 22, 1969).Also living in their home were Alice Salazar, Hernandez' 14-year-old daughter, and Dolores Osio, a niece.On April 14, 1978, Osio was home alone and heard noises coming from the back bedroom.Investigating the sound, she opened the closet door in Hernandez' bedroom and found Rebecca seated inside in a crib.Osio had resided in the Holmes-Hernandez residence approximately three weeks prior to the discovery of Rebecca.The child's clothing was dirty and the closet smelled strongly of urine and the walls were brown.Osio had not seen Rebecca since she was less than a year old.When Rebecca did not respond to Osio's greetings, Osio left the house.

Some days later acting on information supplied by Dolores Osio, sheriff's officers Rodina and Travis returned to the house and found Rebecca seated on a vinyl cot placed in front of the closet.Her clothing was soaked with urine and her diapers were full of fecal matter.The officers investigated the closet and reported that it smelled strongly of urine and that the walls were covered with human fecal matter.The officers' conclusion was later confirmed by expert testimony and the admission of Mrs. Hernandez.By contrast, the rest of the home was clean and neat.

Dr. Widelitz examined Rebecca the next day.Although Rebecca was eight and a half years old at the time, he found her weight and height to be approximately normal for a two and a half year old child.She weighed 24 pounds.Both knees and hips were dislocated and her knees were hyperextended.She was unable to walk or stand.Her teeth were grey and covered with a large amount of plaque.She was not toilet trained and had severe diaper rash which excoriated the entire diaper area.Her vocabulary was limited to 25 words.Dr. Widelitz concluded that Rebecca was grossly retarded.Dr. Widelitz last examined Rebecca in November 1978.At the time of trial, Rebecca had been living in a foster home for six months.Her diaper rash was completely healed and she was then toilet trained.While her hips and knees were still dislocated, she was able to stand and walk by holding onto furniture and she had achieved substantial height and weight gains.While he did not diagnose Rebecca as a psychosocial dwarf, he did state that her short stature was partially attributable to her environment.Her vocabulary had increased and she verbalized spontaneously.

Prior to her examination by Dr. Widelitz, Rebecca had not seen a physician since birth.Defendant stated she was delivered by Caesarean section at St. Francis Hospital in Lynwood, after a five and a half month pregnancy.Hospital records indicate that Rebecca's apgar score (used to determine a child's mental and neurological normalcy) at birth was somewhat low.Hernandez claims that she was told by a staff physician that Rebecca would be retarded and a dwarf.Defendant Holmes stated that Hernandez' attending physician told him that Rebecca would be 7 or 8 years behind other children.Defendants discussed but decided against giving Rebecca up for adoption.Hernandez never took Rebecca back to a doctor for even routine checkups and gave as a reason that she believed retardation could not be treated, the child was never physically sick, and she was afraid that if she took Rebecca to a doctor, the child would be institutionalized.

At least from late 1977 to April 1978, the only people to see Rebecca were her parents and brother and sister.Officer Rodina testified that Hernandez admitted to keeping the child in a closet for six months.How long she had been partially or totally isolated prior to that time is unknown.Hernandez' brother, Aurelio (Billy) and sister, Christine, lived in a small house directly behind hers.Although Christine was in the defendants' residence once or twice every day, she told Officer Rodina she had not seen Rebecca in over six years.She had accepted Hernandez' explanation that the child had been given away to Holmes' sister.Billy stated that he had seen defendants and the two children at family outings, but never with Rebecca.He had also seen the entire family depart together leaving no one home and leaving Rebecca apparently unattended.Dolores Osio lived in the defendants' home for three weeks and was totally unaware of Rebecca's presence.A neighbor testified he had never seen Rebecca until the police brought her out of the home.Alice Salazar and Danny, Jr., told Officer Rodina that Rebecca was kept in a closet and that they were not supposed to talk about it.However, at the trial they described a very different family environment.Contrary to being isolated, Rebecca was depicted as very much a part of the family gathering and family life.Holmes testified that he went along with the treatment of the child because of his love for Hernandez and the other children.He claimed that he was unaware that Rebecca was confined in a closet or kept from seeing anyone else in the outside world.Defendants denied isolating, confining, or otherwise secreting Rebecca.However, despite defendants' denials the trial court found that they physically isolated, confined, and neglected Rebecca for a prolonged period of time, to her detriment.

Discussion

Defendants each contend on appeal that the evidence adduced at the trial was insufficient to establish the requisite degree of knowledge, and therefore, the requisite mental state to support a conviction for child abuse in violation of Penal Code section 273a(1).

Defendant Hernandez in addition argues the following on appeal.(1) That the evidence is insufficient to support the felony conviction and at best only supports a conviction under section 273a(2) of the Penal Code, a misdemeanor.(2) That the use of "unproven charges" without prior notice at the probation and sentence hearing denied her due process.(3) That the trial court abused its discretion in failing to follow the recommendation of the probation department.(4) That the use of "unproven charges" to aggravate the sentence without prior notice was error.(5) That the trial court's failure to require an updated psychiatric evaluation was error.

I

The record reflects that the trial court totally disbelieved Hernandez and to a lesser degree, Holmes' credibility was found lacking as well.The trial court clearly chose to believe the testimony of relatives, neighbors, medical experts, investigative witnesses, and the physical evidence in arriving at its verdict.The evidence amply demonstrates that defendants failed to provide for the needs of Rebecca and that the same persisted for years; such that intent to harm Rebecca could be inferred by the court.(In re Maria R.(1976)64 Cal.App.3d 731, 735, 736, 135 Cal.Rptr. 2.)The record is replete with evidence that Rebecca was hidden and secreted since she was six months old.During such time, she was neglected and deprived of medical, emotional, and physical care to her detriment.Further there is evidence that Rebecca was kept in a closet for at least a six months' period.

Section 273a(1) of the Penal Code requires that "defendant's conduct must amount to a reckless, gross or culpable departure from the ordinary standard of due care; it must be such a departure from what would be conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life ... mere intention or mistake in judgment is insufficient to support a criminal conviction."(People v. Peabody(1975)46 Cal.App.3d 43, 48-49, 119 Cal.Rptr. 780.)

Defendants' argument that their conduct, at worst, constituted a mistake in judgment, lack of foresight or irresponsibility is not well taken.We are persuaded that the record amply supports the conviction of each defendant.Substantial evidence of the requisite intent to support a felony conviction pursuant to Penal Code section 273a(1) is found in the record.Defendants failed to meet their burden on appeal.

II

Defendant Hernandez' argument that the record does not support a felony conviction pursuant to the Penal Code section 273a(1)...