People v. Sargent, C018062

• Decision Date: 19 December 1997
• Docket Number: No. C018062,C018062
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 60 Cal.App.4th 137 60 Cal.App.4th 137, 97 Cal. Daily Op. Serv. 9588, 97 Daily Journal D.A.R. 15,474 The PEOPLE, Plaintiff and Respondent, v. Michael Daniel SARGENT, Sr., Defendant and Appellant.

Page 203

70 Cal.Rptr.2d 203

Previously published at 60 Cal.App.4th 137

60 Cal.App.4th 137, 97 Cal. Daily Op. Serv. 9588,

97 Daily Journal D.A.R. 15,474

The PEOPLE, Plaintiff and Respondent, v. Michael Daniel SARGENT, Sr., Defendant and Appellant.

No. C018062.

Court of Appeal, Third District, California.

Dec. 19, 1997.

Certified for Partial Publication. ^*

Rehearing Denied Jan. 14, 1998.

Review Granted March 25, 1998.

K. Douglas Cummings, under appointment by the Court of Appeal, Barry A. Zimmerman, Auburn, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Cynthia G. Besemer, Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.

BLEASE, Associate Justice.

Defendant appeals following a conviction by a jury of one count of felony child abuse under a provision of Penal Code section 273a, subdivision (a), ¹ that proscribes the infliction of unjustifiable physical pain upon a child under circumstances likely to produce great bodily harm or death.

The prosecution was predicated upon evidence of "shaken baby syndrome", a medical The defendant contends there is no substantial evidence in support of the conviction because there is no evidence that he knew that shaking the baby was likely to cause great bodily harm or death. He moved for a new trial on that ground. The trial court denied the motion for the reason that, although parents don't know that shaking a baby could cause grave harm, such knowledge is not an element of the offense.

theory of the physical mechanism by which shaking a baby causes grave harm to the child, as based upon recent medical studies.

We will reverse the felony conviction on the ground that, although actual knowledge of the likelihood of great bodily harm or death is not required, criminal negligence is required. Applying that standard, we conclude that the evidence does not afford an inference that the defendant was criminally negligent, i.e., that he knew or should have known of the likelihood of great bodily harm or death from shaking the baby.

We will modify the judgment to reduce the conviction to the lesser included misdemeanor offense of section 273a, subdivision (b), which does not require actual or imputed knowledge of the risk of great bodily harm or death. (See § 1181, subd. 6.)

FACTS AND PROCEDURAL BACKGROUND

On August 19, 1993, ambulance personnel responding to a 911 call found Michael Sargent, Jr., defendant's infant son, aged four months, in a deep coma on the floor of defendant's apartment, with black and blue color around his lips indicating that he was not breathing. He received mouth to mouth resuscitation and CPR treatment, his airway was suctioned, and the paramedic attempted to put a tube into his trachea to help him breathe. Defendant told a neighbor and a paramedic that the infant had rolled off a couch.

The infant was hospitalized until September 3, 1993. He was given a complete medical examination. There were no bruises and no evidence of fractures of the extremities. Dr. John McCann, a pediatric specialist in child abuse cases who examined the infant on August 20 and 21, 1993, concluded that he was a victim of "shaken baby syndrome." Dr. McCann explained the syndrome as follows.

Physicians were having a difficult time explaining cases in which children could have injuries as severe as those of Michael Sargent, Jr., and not have a fractured skull or lumps or bumps or other external signs of injury. Research, inter alia, with piglets led to the theory of "shaken baby syndrome." The theory is that in children up to 18 months or two years, particularly those born prematurely, a large amount of fluid surrounds the brain and the neck muscles are weak. Angular forces applied to such children can move the brain inside the skull causing blood vessels to tear resulting in serious injury.

Michael Sargent, Jr.'s condition, which included inter-cranial hemorrhage and hemorrhages in both retinas but did not include external signs of trauma or fractures, was consistent with shaking but inconsistent with falling or being dropped.

Dr. McCann was asked whether shaking an infant of this age was an act "likely medically to produce death or great bodily injury?" He replied: "Yes, it's a distinct possibility."

On August 25, 1993, defendant was interviewed by the police. At first he said he had thrown the infant up in the air to stop him from crying and then fumbled in catching him, causing him to strike the floor with his head. The interviewing officers told the defendant that the treating physician had concluded the victim was shaken. The defendant then admitted that he had shaken the infant twice that day while he was sitting in a car seat. He said he had "lost his temper for a minute." He had not intended to hurt the infant and had no idea that shaking could do so.

At trial, defendant testified that his admission of shaking the infant was false and his account of dropping him was true. He had "confessed" to shaking the infant because that was what the interviewing officer wanted to hear and because the officer told him Defendant adduced testimony from Dr. Todd Brandtman, an emergency room physician, who neither treated nor examined the infant. Dr. Brandtman conceded that his expertise concerning shaken baby syndrome was not quite as great as a doctor like Dr. McCann.

he would not "get in trouble" and his family would be "kept together" if he cooperated.

Dr. Brandtman was shown photographs taken two days after the infant was released from the hospital. The photographs show a one inch diameter swollen area, discolored in the center, on the back of the infant's head. Dr. Brandtman also reviewed nurses' notes from the period of hospitalization. One of these (date not provided) indicates a slight swelling with a small scab on the back of the infant's head. Other records, from the outset of the hospitalization, note that the infant showed swelling of the forehead and around the eyes and that there was bright red blood in the infant's nose and mouth.

Dr. Brandtman testified that the blood and swelling could not have been caused by shaking the infant, unless there was also a blow to the face. Nor would shaking have caused an area of swelling on the back of the infant's head. He opined that if the infant was thrown into the air and as he fell he was hit and caused to flip he could strike the floor with the back of his head and then strike his face with his knee, accounting for the injuries.

Four defense witnesses, all family members or family friends, testified that they had seen the bump or scab on the back of the infant's head. One of these witnesses, Geneva Vargas, had been a medical assistant in a doctor's office for five years. She opined that the bump on the infant's head was hard: "It was a bump that you would get from a blow."

The nursing records for the infant's hospitalization show no sign of injury to the back of the infant's head until on August 25, 1993, when he developed a bed sore, at the same location as the swelling on which Dr. Brandtman relied.

The infant's mother had married defendant by the time of trial. She testified that she had seen defendant throwing the victim up in the air on other occasions and had told him not to do it. On August 19, 1993, she heard a thump and saw that the infant was crying, but concluded he had not been injured by his fall and left the apartment on business. She was not present when the infant lost consciousness.

After the trial, the defendant moved for a new trial or for a reduction of the offense to misdemeanor child abuse under section 273a, subdivision (b), on the ground of insufficiency of the evidence. The trial court denied the motion. In discussing its reasoning the court made the following pertinent remarks.

"[T]he statute does not require that he have knowledge of the possible consequences or that he intend the consequences but simply that he commit the act willfully, which means purposefully. Willful element does not require actual knowledge on the part of the defendant but simply that the act be done consistent with general criminal intent.

"This Court is prepared to believe that [defendant] did not realize or anticipate that his actions would result in such severe injuries to the infant. And I believe Dr. McCann may have alluded to that, that the shaking of an infant can result in these severe injuries, the equivalent of falling off a three-story building. And perhaps most people who do that do not have any real sense that this is the likely consequence. But having noted that, it doesn't assist the defendant or your client under these circumstances. So the motion for new trial based on insufficiency of the evidence is denied.

"...

"It's not this Court's position to rewrite the statute or to even point out perhaps some of its weaknesses--and I think there may be a problem with this particular statute that the legislature needed to look at because, according to Dr. McCann, who I heard interviewed on television following another incident out of Sacramento, he appeared to be saying, you know, parents shake their kids and they shouldn't do it because they don't know what could happen. And I think that's true. I don't "This particular case involves an infant which was born premature; so I would suggest to the father, the defendant, that even the thought of shaking such a delicate infant is heartless and cruel. But the lesson that's learned from here perhaps is that those who shake their 3-year-olds shouldn't even do that because you can cause severe injury."

think, unless you're exposed to it, you would automatically know that the mere shaking of a child can cause such an injury.

The defendant appeals from the resulting judgment of conviction.

DISCUSSION

I

The defendant contends his felony conviction of violating section 273a, subdivision (a), must be...