People v. Moncada
| Decision Date | 20 November 2012 |
| Docket Number | No. E052612.,E052612. |
| Citation | 149 Cal.Rptr.3d 1,210 Cal.App.4th 1124 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jose Rogelio MONCADA, Defendant and Appellant. |
OPINION TEXT STARTS HERE
See 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 115.
Stephen D. Klarich, Tustin, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and William M. Wood and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jose R. Moncada appeals from his conviction of involuntary manslaughter (Pen.Code,1 § 194) and child abuse homicide, i.e., inflicting injury on a child under eight years old, which is reasonably likely to cause great bodily injury, causing death (§ 273ab). Defendant contends his involuntary manslaughter conviction should be reversed because a heightened showing of proximate cause is required to trigger criminal liability for a death that occurs more than three years after an unlawful act. He next contends the trial court erred in denying his motion to acquit because the trial court failed to consider the rebuttable presumption that a death is not criminal when it occurs more than three years after the defendant's act; the death was not a direct, natural, and probable consequence of his actions; and the stomach rupture that was the immediate cause of death was an intervening independent cause. Finally, he contends that because the child was more than eight years old when he died, defendant did not violate section 273ab as a matter of law. We find no error, and we affirm.
In November 2000, defendant was caring for his then three-month-old son, Joseph. When Joseph would not stop crying, defendant shook him and then put his hand on the child's face and pushed it into the arm of a couch. Joseph stopped breathing, and defendant called 911. Defendant admitted the incident and entered a plea of guilty to a violation of section 273a, subdivision (a) and admitted a great bodily injury allegation under section 12022.7, subdivision (b). He was sentenced to 10 years four months in prison.
Meanwhile, Joseph was discharged from the hospital after three and a half to four months of treatment. As a result of the abuse, Joseph suffered fractures to the base of the skull and bleeding on the brain, resulting in brain damage, poor vision, spastic quadriplegia, seizures, and other complications. He could not walk, speak, use sign language, or otherwise communicate except through vocalizing and crying. He expressed pain by becoming fussy and irritable and by becoming “stiff and grimacing.” In 2002, he was admitted to a group home for developmentally disabled children.
As is typical for children with similar brain injuries, Joseph had difficulty swallowing, leading to pneumonia from aspirating food. In January 2002, a Nissen fundoplication and gastrostomy were performed on him. The purpose of the fundoplication procedure was to correct reflux of stomach fluid into the esophagus. Dr. Gerald Gollin, who performed the surgery, testified that about 95 percent of fundoplication procedures are performed because of neurological impairment due to birth defects, or in Joseph's case, traumatic brain injury. In the gastrostomy, a feeding tube was inserted into the stomach because he was unable to swallow properly, and his stomach did not empty appropriately because of the brain trauma. Later, he had a gastrojejunostomy tube inserted to deliver food directly to the jejunum. In 2003, a revision of the fundoplication was performed after the sutures tore and it slipped out of place.
In 2008, a nurse at Joseph's group home noticed mucous membrane from the inside of the stomach protruding from the site of Joseph's feeding tube and some bleeding at the site. In May 2008, Joseph was hospitalized due to a distended abdomen. Dr. Gollin performed a colonoscopy and confirmed that the child's intestine had enlarged. Dr. Gollin testified that scar tissue or formation of adhesion bands is a common result of any surgery, although it is rare for adhesion bands to cause life-threatening injury. In July 2008, the child's pediatrician noted that his feeding tube site was “okay.”
On September 23, 2008, an instructional assistant who accompanied Joseph on his bus ride to school noticed he was unusually quiet and appeared to be in pain; his stomach was hard and his lips and fingernails were blue. She administered oxygen and called ahead to the school to warn the nurse. When the bus arrived at the school, 911 was called, and the child was taken to the emergency room.
Joseph died that same day. Dr. Mark Fajardo, the pathologist who performed the autopsy, stated his opinion that Joseph had died of “[c]omplication of remote multiple blunt force trauma.” The child's stomach had ruptured, allowing bacteria to enter his system, leading to sepsis and death. There was an adhesion band of scar tissue near the area of rupture, and the scar tissue had been caused by the 2002 and 2003 surgeries, which the child required because of his diminished brain functions from the November 2000 abuse. Dr. Fajardo testified causation was “a matter of connecting the dots.”
Dr. Chalmer Dean McClure, a neurologist who treated Joseph in 2001, testified that it was a “possibility” that a child with similar brain deficits would require gastrostomy and that “shaken baby syndrome” can lead to a gastrostomy “[i]n various scenarios.” Dr. McClure had previously seen adhesion bands in children with traumatic brain injury, although that was an area outside his expertise.
Dr. Rebeca Piantini, a pediatrician, testified that “[m]ost kids who are victims of abusive head trauma pass away,” even with treatment, either immediately from the injury or “from secondary complications, complications of infection, complications of malfunction of shunts, complications of abdominal, complications of severe malnutrition; there's all sorts of stuff.” She testified that a brain injury could “indirectly” cause a stomach to explode.
The jury found defendant guilty of involuntary manslaughter as a lesser-included offense to the crime of second degree murder charged in count 1, and also found him guilty of child abuse homicide in count 2. The trial court sentenced defendant to 25 years to life on count 2 and imposed and stayed a four-year term for count 1 under section 654. Defendant was given credit for the time served on his prior child abuse conviction.
Defendant contends his involuntary manslaughter conviction should be reversed because a heightened showing of proximate cause is required to trigger criminal liability for a death that occurs more than three years after an unlawful act.
The interpretation of a statute presents a question of law which we review de novo on appeal. ( People v. Wills (2008) 160 Cal.App.4th 728, 736, 73 Cal.Rptr.3d 104.)
Section 194 provides: (Italics added.)
Under common law, if a person who was injured by the act of another did not die immediately, it was presumed that death beyond an established period was due to some other cause, and the prosecutor was precluded from showing that the victim died of the injury received. (See People v. Murphy (1870) 39 Cal. 52, 55.) When common law principles were codified in this state, the common law rule was made a conclusive presumption. (Former § 194 .) Under that rule, the People were required to establish that the victim died within the specified period. (See, e.g., Strong v. Superior Court (2011) 198 Cal.App.4th 1076, 1079, 132 Cal.Rptr.3d 18 [].) In 1996 the Legislature amended section 194 to its present form, adding the rebuttable presumption language.
Defendant argues that unless section 194 is construed as establishing a heightened standard of proximate cause, the statute is meaningless. We presume, however, that the Legislature, in using the term “rebuttable presumption” when it amended section 194, was aware of the meaning of that term as used in other statutes and case law and therefore did not intend for the term to have any special meaning in section 194. (E.g., People v. Low (2010) 49 Cal.4th 372, 386, fn. 8, 110 Cal.Rptr.3d 640, 232 P.3d 635.)Evidence Code section 601 provides that a rebuttable presumption “is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof.” If the former standard applies to section 194, the presumption merely required the prosecution to produce evidence that Joseph's death was caused by defendant's actions. We will presume the latter standard applies, and that the rebuttable presumption in section 194 affected the burden of proof.
“The effect of a presumption affecting the burden of proof is to impose upon the party against whom it...
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People v. Moncada, E052612.
...210 Cal.App.4th 1124149 Cal.Rptr.3d 1The PEOPLE, Plaintiff and Respondent,v.Jose Rogelio MONCADA, Defendant and Appellant.No. E052612.Court of Appeal, Fourth District, Division 2, California.Oct. 16, 2012.As Modified Nov. 20, 2012.Review Denied Feb. 13, See 1 Witkin & Epstein, Cal. Criminal......