People v. Olmedo
| Decision Date | 15 February 2013 |
| Docket Number | F063171 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ERNIE OLMEDO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Ernie Olmedo, of felony child abuse (Pen. Code, § 273 a, subd. (a)), and found true an enhancement allegation that, in committing that offense, appellant personally inflicted great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)). The court imposed a prison term of seven years, consistingof the two-year lower term on the substantive offense and five years on the accompanying enhancement.
On appeal, appellant contends the court erred (1) in denying his Wheeler/Batson1 motion, and (2) in instructing the jury on appellant's failure to explain or deny adverse evidence. We affirm.
Appellant and Sarah Crosby met while they were both in the Navy and stationed in Norfolk, Virginia.2 They began dating in 2006, while appellant was separated from his wife and, in 2007, Crosby became pregnant. E., the son of appellant and Crosby, was born in February 2008 in Virginia. Appellant, who by then was stationed in California, was not present for the birth. Crosby spoke to appellant by telephone before and after giving birth, but appellant did not come to Virginia to see E. Appellant did not meet E. until May 2009, when Crosby brought E. to visit appellant in Ridgecrest, California. At that time, Crosby and appellant were "back in a relationship."
Crosby was scheduled to be deployed in January 2010, and she and appellant agreed that he would take care of E. during Crosby's deployment. On November 1, 2009,3 Crosby and appellant met in Louisiana where E. had been staying with Crosby's mother while Crosby prepared for the change of her "home port" from Virginia to California. They picked up E. and drove to Ridgecrest together, arriving on November 9. Crosby left on November 21 and returned to Virginia. When she left Ridgecrest, E. was in "good" condition. He was "chunky and happy and playful."
Approximately nine or ten days after she left Ridgecrest, appellant informed her by telephone that E. was vomiting "a lot." E. had never been prone to vomiting before. Crosby pressed appellant for an explanation as to why E. was throwing up, but appellantresponded he did not know. At one point, appellant told Crosby he had taken E. to a hospital emergency room, but left without E. being seen by a doctor because, appellant told her, "he was there too long."
Crosby flew to California, arriving on the night of December 25, and appellant picked her up in Los Angeles the next day. E. was with him. The boy was pale, very thin, had no energy, had dark circles under his eyes and smelled of vomit. They drove back to appellant's house in Ridgecrest.
The house was not in the same condition as when Crosby had left. It smelled like "dog" and "crap," the carpets were soiled, there was virtually no food in the house and the refrigerator contained spoiled milk and mildewed food. Crosby cleaned the house.
On December 28, Crosby took E. to the emergency room at Ridgecrest Regional Hospital. She was concerned because E. had slept for 15 hours and then vomited when he woke up. E. was diagnosed with severe constipation. Crosby was instructed to give him stool softeners and rehydration fluids.
On December 29 at approximately 4:43 p.m. Crosby went out to run errands. A few minutes later she received a text message from appellant saying he wanted to give E. a bath. Crosby responded that was fine. She was in the midst of her first errand, at the grocery store, when she received a telephone call from appellant telling her he was at the emergency room with E. Crosby went to the emergency room and met appellant, who told her E. had fallen from the bathroom counter. After being treated in the emergency room, E. was transported to Loma Linda Hospital in San Bernardino.
City of Ridgecrest Police Detective Manuel Castaneda testified that he questioned appellant on January 5, 2010, at which time appellant stated the following: After Crosby left the house, appellant, while changing E.'s diaper, decided to bathe E. by taking a shower with him. Appellant took E. into the bathroom, set him on the corner of the sink, turned on the water in the shower and left the bathroom to get clothes for E. and him. When appellant returned to the bathroom approximately three minutes later, he found E. lying on the floor, between the toilet and the sink, his eyes partially open and his pupilscrossed. Appellant called E.'s name but he did not respond. Appellant picked up E., ran outside the bathroom and saw his roommate, Sonny, and told Sonny they had to go to the emergency room. They got in the car and Sonny drove there.
Dr. Stanford Shu testified to the following. He is a pediatrician with a specialty in neurology. He treated E. at Loma Linda Hospital. An MRI scan of E.'s head, done on December 30, showed that E. had suffered various brain injuries, including damage to the frontal lobe and subdural bleeding. Dr. Shu opined that the frontal lobe injury occurred between 15 minutes and 10 days prior to the MRI. He further opined that the subdural bleeding could have been caused by rotational trauma. "[S]haking ... can ... be considered" a rotational trauma. "[I]n [his] experience," a three-foot fall would not cause the "level of trauma" suffered by E. "Typically," the kind of brain injuries suffered by E. "require[] a fall of greater than ten feet."
Dr. Shu also reviewed an "MR spectroscopy" which showed other brain injuries. He opined as follows: It was "more likely" these injuries were caused by rotational trauma than by blunt force trauma; "[g]enerally," such injuries would not be caused by a three-foot fall; and it was "very unlikely" E.'s injuries were caused by a three-foot fall.
Dr. Mark Massi testified to the following. He is a forensic pediatrician. He treated E. in December 2009 and January 2010. He opined that E.'s injuries were caused by some sort of trauma on or around December 29 and were "[not] consistent with a three-foot fall from this countertop onto [the] floor." E.'s subdural bleeding was consistent with "acceleration-deceleration injury," i.e., injury caused by the "repetitive accelerating and decelerating of the head as it moves through space," as where "the body [is] being held and shaken ...." E. suffered retinal hemorrhages, the pattern of which is seen only in "catastrophic traumas like crush injuries" and child abuse.
Dr. Ronald Gabriel, called by the defense, testified that he is a pediatric neurologist. He opined as follows: It is "virtually impossible" to cause significant head injury by shaken acceleration alone, unless the force is great enough to also break the neck. E.'s injury "was an impact injury without question." E.'s injuries were "perfectlycompatible" with a short fall. Children who have tipped over while using a walker and fallen a maximum of two feet have suffered bleeding in the brain leading to death. "Striking a child's head with a knuckle ... is highly unlikely to cause brain bleeding" unless the force used is equal to a "terrific blow . by a professional fighter."
Appellant testified that he recalled on one occasion "giving [E.] a knuckle to the head" in order to get his attention when E. was struggling as appellant tried to get him into a car seat, "but even then it wasn't that hard because he didn't cry." Appellant also testified he recalled only two occasions when he shook E. On one occasion, when E. was not obeying, appellant "grabb[ed] him by the shoulders, ... and in a stern voice [told] him to knock it off." E. was crying, but that was because appellant "yelled at him, not at the fact that [he] put [his] hands on [E.'s] shoulders and scolded him." On another occasion, when E. persisted in throwing his food, appellant "put[] one hand on his shoulder, [and] another hand on his shirt," and again told him to stop.
(People v. Jones (1997) 15 Cal.4th 119, 159, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Hispanics are a cognizable group for purposes of both Wheeler and Batson (People v. Alvarez (1996) 14 Cal.4th 155, 193), and here, appellant contends and the People do not dispute that of the four prospective jurors who had been peremptorily challenged by the prosecution at the time of the motion, two, E.L. and M.G., were Hispanic.
The burden is on the party claiming Wheeler/Batson error to make a prima facie showing that the peremptory challenges had been...
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