People v. Yslas CA5

Filed 10/1/14 P. v. Yslas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F065132
Plaintiff and Respondent,
(Super. Ct. No. RF005818A)
v.

LOUIS YSLAS, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.

Gregory H. Mitts for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Louis Yslas was convicted by jury of felony child abuse (Pen. Code,1
273a, subd. (a)) resulting in great bodily injury (§ 12022.7, subd. (d)) to the victim. The
trial court sentenced defendant to a total term of 12 years in state prison.

1All further references are to the Penal Code unless otherwise indicated.
 On appeal, defendant contends (1) the trial court abused its discretion in allowing
additional closing arguments after deliberations had begun, (2) his statement to the police
was improperly admitted in violation of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda); (3) his trial counsel rendered ineffective assistance by failing to object to the
additional closing arguments and the admission of his statement; and (4) the evidence
was insufficient to support the verdict. We find no error and affirm.
FACTS
Leticia2 Yslas and defendant took their 10-month-old child Nicholas to Ridgecrest
Regional Hospital on April 2, 2010.3 Doctors there determined Nicholas was suffering
from severe brain swelling and seizures and had to be transported by helicopter to Loma
Linda University Children’s Hospital. Nicholas underwent extensive treatment for his
injuries, including surgery whereby a portion of his skull was removed to allow his brain
to swell outside of the cranium. As a result of his injury, Nicholas has profound brain
damage. He suffers from cerebral palsy, no longer has the ability to crawl, walk, or
swallow, is legally blind, and must be fed through a feeding tube.
The central issue at trial was the cause of Nicholas’s injuries. The prosecution’s
theory was that defendant was the cause of the injuries, through some sort of rapid
acceleration/deceleration force, such as shaking. The defense argued Nicholas was
suffering from bacterial meningitis, which caused his brain to swell, resulting in the
injuries.
Prosecution Case
Dr. Katherine Ferguson, Nicholas’s pediatrician, testified she had seen the child
routinely before his injury. Nicholas was previously diagnosed with Down syndrome but
appeared to be high functioning. Dr. Ferguson last examined Nicholas on March 31, two

2To avoid confusion we will refer to Leticia Yslas by her first name. No disrespect is
intended.
3All further references to dates are to 2010 unless otherwise indicated.

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days before his admission to the hospital. At that time he received various vaccinations,
including the pneumococcal vaccine, which prevents meningitis and pneumonia.
Nicholas did not appear to have any sort of infections, including meningitis.
On the morning of April 2, Leticia was home with defendant, Nicholas, and her
two-year-old son Louis Jr. Other than being a little more fussy than usual due to the
immunizations he had received two days earlier, Nicholas was acting normally that
morning. That afternoon, Leticia left the child at home with defendant and Louis Jr.
while she went shopping. She returned about two hours later. She recalled making a
phone call to defendant to check on the children while she was out, but she did not
attempt to speak to Nicholas on the phone. When she returned, Nicholas was lying on
defendant’s chest with a blanket covering him and appeared to be sleeping.
Within minutes of Leticia’s return home, defendant took Nicholas to his room and
put him in his crib for a nap. Defendant then ordered a pizza and the two watched a
movie. An hour later, Leticia heard Nicholas making noises in his room. She was going
to get him but did not because defendant told her to let him sleep. Sometime later, she
again heard Nicholas making noises and went to get him.
Upon entering Nicholas’s room, Leticia noticed he was lying on his stomach.
When she rolled him over, she saw he was shaking, his head was pulled in, and he was
stiff. Additionally, she noticed yellow foamy matter on his bedding. She immediately
screamed for defendant to call 911. Defendant told her he would not pay for an
ambulance and it would also be faster to just drive to the hospital. They arrived at the
Ridgecrest hospital where Nicholas was examined and subsequently airlifted to a hospital
in Loma Linda. Upon his arrival there, he was in critical condition.
Leticia drove to Loma Linda while defendant slept. After arriving, the couple
checked into the Ronald McDonald House but were asked to leave on the evening of
April 3d because Nicholas’s injuries were determined to have resulted from child abuse.
Additionally, the couple was informed by medical staff at the hospital that his injuries

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were a result of forced trauma. Defendant was present when this information was
relayed.
The following morning, April 4, Leticia and defendant went back to the hospital
and spoke to Nicholas’s nurse. Leticia overheard defendant asking odd questions.
Nicholas’s nurse testified defendant asked her questions related to causation of the injury.
She thought this was odd as most parents ask about their child’s condition or prospects of
recovery. Defendant did not ask those types of questions.
That afternoon, Leticia and defendant left the hospital to get something to eat.
After lunch, defendant dropped off Leticia at the hospital and said he was going back to
the motel to sleep. Defendant never returned to the hospital. That afternoon, Deputy
Sheriff Caroline Stallings responded to the hospital to detain defendant. Defendant was
not at the hospital when she arrived, nor was he at any nearby lunch locations or at his
motel.
Nicholas remained in the hospital until some time after June 1. While at the
hospital, he had a craniotomy to remove part of his skull. After being discharged,
Nicholas was transferred to a nursing home for medically fragile children. He remained
there for five months and then went back to the hospital to have a cranioplasty to reattach
the portion of his skull. That occurred on November 12.
At the time of trial, Nicholas was two and a half years old and living with his
mother. She described his condition as poor; he suffers from cerebral palsy, he has a
gastric feeding tube due to his inability to swallow, he has a seizure disorder and muscle
spasms, he is legally blind, and he can neither crawl nor walk.
Detective Ryan Sloan with the Ridgecrest Police Department was assigned to
investigate child abuse relating to Nicholas. He was initially unsuccessful in locating
defendant. On April 5, Sloan began following Christopher Avery, a close friend of
defendant. Sloan followed Avery, who was driving a rental car, from Ridgecrest to Las
Vegas, Nevada. Avery drove to a home where defendant was located and arrested.

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 After defendant’s arrest, Sloan interviewed him. Defendant told the officer he and
his wife had initially considered putting Nicholas up for adoption but decided against it.
He claimed his wife continued to bring up the idea even after they had decided against it.
On the day in question, Leticia went shopping and when she returned defendant had
Nicholas lying on his chest. He put Nicholas in his crib shortly after Leticia returned.
The two watched a movie and Leticia went to wake the child after about an hour, but
defendant convinced her to let him sleep. When Leticia ultimately checked on Nicholas,
it appeared he was having a stroke. Defendant immediately drove the family to the
hospital. Over the next few days it became clear in the way the doctors, staff, and his
wife were acting that defendant was going to be accused of harming Nicholas. Defendant
decided to leave because he feared being jailed.
Regarding Nicholas’s injuries, defendant denied ever harming him. He stated
there was a minor incident where Nicholas fell and bumped his head while Leticia was
out, but that was the only incident. Nicholas had been sitting up with defendant when
Leticia called. Upon hearing his mother’s voice, Nicholas got excited, lunged for the
phone, and fell forward hitting his forehead. He cried for a short time while defendant
soothed him, and then he fell asleep on defendant’s chest. When asked what he thought
had happened to Nicholas, defendant stated, “You know I asked my wife [if] she hit him
on anything. If she dropped him or anything on accident and she said, ‘No.’ So, alls…I
don’t have enough information, man. I have no idea man. I have no idea what happened
to my son.”
Medical Testimony
Dr. Mark Massi, a forensic pediatrician at Loma Linda University, specializes in
determining whether children are abused. Patients are referred to him by other doctors
who suspect abuse. Dr. Massi reviewed all of Nicholas’s medical records, communicated
with Nicholas’s primary care team, and personally examined the child. After reviewing
all of the information, Dr. Massi concluded Nicholas had a traumatic brain injury and rib
fractures. Nicholas received injuries resulting from a rapid acceleration/deceleration

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event, which is consistent with shaken baby syndrome or abusive head trauma. There are
three characteristics of this type of trauma: brain injury, subdural hemorrhage, and
retinal bleeding. Each of these conditions was present in Nicholas. Nicholas suffered a
subdural hematoma, retinal hemorrhage in both eyes, and injury to the frontal, parietal,
and occipital lobes of his brain. The doctor also noted Nicholas had evidence of a
possible healing rib fracture, which would also be indicative of abuse.
In Dr. Massi’s opinion, the number one cause of a subdural hematoma is trauma.
While an infection of the brain, such as encephalitis or bacterial meningitis, could cause a
subdural hematoma, it is unlikely without the presence of an abscess. Nicholas did not
have an abscess. Likewise, the type of retinal hemorrhaging present in the child, which
occurred in multiple layers of both retinas, indicated a traumatic cause for the bleeding
rather than an underlying medical condition. While bacterial meningitis can also cause
retinal hemorrhage, the bleeding tends to be in a pattern different from that present in
Nicholas. Rather, the hemorrhaging in the child’s retinas was consistent with a rapid
acceleration/deceleration occurrence.
Furthermore, a rapid acceleration/deceleration event causes a diffuse brain injury
as opposed to an injury focused on a certain area. Nicholas’s injury affected multiple
areas of the brain, indicating it was consistent with acceleration/deceleration. In a
situation where the brain is deprived of oxygen—for example, through the formation of a
blood clot—then the entire brain will show damage. Here, Nicholas had widespread
injury to his brain, indicating a result of acceleration/deceleration. The most severe
damage extended from the right frontal lobe to the left parietal lobe. Nicholas’s medical
records indicated he had a clotting disorder, which increased his risk of forming blood
clots. However, Dr. Massi noted the child suffered from a subdural hematoma meaning
he was having bleeding, not clotting, in the brain. Furthermore, examination of
Nicholas’s arteries in his brain did not reveal any sign of a blood clot.
Due to his injury, Nicholas had to have a craniectomy, a procedure where part of
the skull is removed to allow the brain to swell and attempt to heal.

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 X-rays taken on April 3 and repeated on April 28 showed evidence of fractures to
Nicholas’s left sixth and seventh rib. Doctors did not notice the rib fractures in the earlier
X-ray, but upon reexamination they concluded it contained a possible fracture. It is not
uncommon for a hairline fracture to be initially difficult to detect, which is why X-rays
are later repeated. If there is a fracture, there will be evidence of the healing process in
later X-rays. It takes four to six weeks for the healing process. The type of rib fractures
suffered by Nicholas usually result from squeezing or compressing the ribs in a front to
back motion.
Medical records from when Nicholas was initially brought to the Ridgecrest
hospital stated he had no overt signs of infection. Nicholas had an elevated white blood-
cell count as well as elevated C-reactive protein and glucose levels, all of which could
indicate an infection but were also not uncommon for trauma or inflammation. Various
laboratory tests done to determine whether the child ever had an infection of the brain
were negative. The tests were performed after antibiotics had been administered,
however, the tests showed no indication of bacteria, including bacteria killed from the
medication.
There were no obvious signs of trauma to Nicholas’s head such as bruising or
abrasions. In Dr. Massi’s opinion, Nicholas’s injuries—including the subdural
hemorrhaging, the retinal hemorrhaging, brain injury, and fractured ribs—indicated he
suffered nonaccidental trauma. The doctor could not say precisely how the injuries
occurred, but they were consistent with a rapid acceleration/deceleration such as violent
shaking. Dr. Massi conceded there are a small minority of doctors who do not believe in
the concept of shaken baby syndrome.
Nicholas’s injuries left him severely brain damaged. Brain tissue does not
regenerate and it is unlikely any lost function due to the injury will return after the injury.
As a result of his injuries, Nicholas was legally blind, could not swallow, had to be fed
through a feeding tube, could not crawl or walk, and suffered from cerebral palsy and
seizures.

7.
Defense case
Defendant testified he lived in Ridgecrest with his wife and two children at the
time of Nicholas’s injury. He had a form of arthritis affecting his entire body that made it
difficult to use his hands. On the day in question, defendant was home alone with his two
children while his wife was out doing some shopping. Louis Jr. was napping and
Nicholas sat in a jumper chair while defendant was painting a screen door. After he
finished painting, defendant played with Nicholas. At one point he received a call from
his wife. When he put the phone on speaker, Nicholas reached out to grab the phone and
fell over, hitting his head. He cried for a short time but appeared fine, and defendant held
him until Nicholas fell asleep.
Leticia arrived home about 15 to 20 minutes later and defendant was still holding
Nicholas, getting him to sleep for his nap. While Nicholas was asleep, defendant put him
in his crib. Defendant watched a movie with his wife and ordered pizza. Leticia noticed
Nicholas had been asleep longer than usual and wanted to check on him, but defendant
convinced her to let him sleep. After the movie was over, Leticia checked on Nicholas
and began screaming. Defendant ran in and saw the child’s arm was stiff and his head
was limp. He picked up Nicholas and put him in the carrier to take him to the hospital.
Leticia told defendant to call 911 but defendant said he would take them to the hospital
because it was so close. While Nicholas was being attended to at the hospital, defendant
left to drop off his other son and then returned. Later that night, a police officer arrived
and interviewed defendant and his wife separately; defendant told the officer what had
happened that day.
Defendant and his wife were informed Nicholas would be airlifted to a hospital in
Loma Linda. They decided to drive down there as well. Before they left, officers asked
if they could go to defendant’s home to take photographs, and defendant agreed.
Defendant took a shower while his wife gathered their belongings to take with them to
Loma Linda. They arrived at Loma Linda late that night and were up most of the night
receiving updates from the doctors. In the morning they checked into the Ronald

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McDonald House but were asked to leave later that day because the doctors suspected
child abuse. Subsequently, defendant felt the staff at the hospital was treating him
differently. Defendant checked into a motel with his wife for the night. However,
defendant did not get any sleep as the hospital called him every hour to get consent to
administer medications.
Defendant woke his wife about 5:00 a.m. the following morning because he had to
get some sleep. At this point it was April 4. Leticia came back to the motel about 10:00
a.m. and woke defendant by slamming the door and asking what he did to their son.
They went back to the hospital and a social worker wanted to speak with defendant. He
said he had “nothing to say to her.” Defendant wrote down a series of questions for the
doctor because he did not know what had happened to his son. Then he and his wife
went to get lunch and he told his wife he was leaving. He took his wife to the bank, got
her some money, and dropped her off at the hospital.
Defendant started driving home but Leticia called and put on the social worker,
who was rude to him. Thinking the police would be waiting for him at home, defendant
decided to go to a friend’s house in Las Vegas. Defendant contacted Avery and asked
him to bring him clothes and money. Avery also told defendant his grandmother would
contact an attorney for him. The next day defendant had contact with an attorney who
said he would check into the situation for him. Later that night Avery arrived, followed
shortly thereafter by the police who arrested defendant. At the time defendant was
arrested, he was not aware there was a warrant out for his arrest. The attorney had told
him there were no pending charges. Defendant denied doing anything to injure Nicholas.
Defendant admitted he never called the hospital to get information on his son’s
condition after he fled. Rather, he claimed he got information regarding Nicholas’s
condition through other sources.
Dr. Steven Gabaeff is a clinical forensic medicine physician. Clinical forensic
medicine is the practice of analyzing medical findings as they relate to law. Dr. Gabaeff
is familiar with shaken baby syndrome and believes the theory has been disproved. He

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does not believe a human can shake a baby with enough force to cause severe injuries.
Additionally, two of the three characteristics of shaken baby syndrome are subdural
hematoma and retinal hemorrhaging, which can have numerous causes.
After reviewing Nicholas’s medical records, Dr. Gabaeff opined the child had
meningitis when he was seen at the hospital on April 2 and that he had been suffering
from it for a few days prior. He believed Nicholas’s laboratory results were consistent
with infection. He opined the negative test on Nicholas’s spinal fluid was useless as the
test was taken after the child had received five days of very high-dose antibiotics. He
also noted the doctors at both the Ridgecrest and Loma Linda hospitals were treating
Nicholas for meningitis.
Due to Nicholas’s clotting disorder, he was at a higher risk of developing a blood
clot. Furthermore, Dr. Gabaeff believed Nicholas had formed a blood clot in his head
that deprived his brain of oxygen, causing massive parts of his brain to die. The way the
child’s brain tissue died was inconsistent with an occurrence of acceleration/deceleration
but consistent with the brain not receiving blood flow due to a blood clot. Dr. Gabaeff
believed there was a test that could have been utilized to establish the presence or
absence of a blood clot, however, the doctors never performed the test. Moreover,
Nicholas showed no sign of any neck injury, which in his mind ruled out any type of
shaking injury.
Dr. Gabaeff noted intracranial pressure can cause retinal hemorrhaging, so
Nicholas’s brain swelling could have caused his hemorrhaging. According to
Dr. Gabaeff, the first X-ray to note a rib fracture was taken about 30 days after Nicholas
was taken to the hospital. He opined the initial X-rays were normal, and the report noting
a rib fracture in the first X-ray was an addendum made after the subsequent X-rays were
taken. Thus, he concluded the initial finding of no fracture was more accurate.
Dr. Gabaeff admitted he misinterpreted a test as being consistent with a clot when
the report actually stated there was normal blood flow. He also discounted the evidence
of the rib fracture because it had occurred six to eight weeks prior. Therefore, he did not

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find it relevant. Dr. Gabaeff admitted meningitis does not cause rib fractures. He also
noted he had never examined Nicholas.
John Tello is an attorney who was retained by defendant in April of 2010. He
spoke to defendant on April 5 and, after an inquiry, informed him there were no current
charges pending against him. He also had not located any outstanding warrants for
defendant’s arrest and relayed this information to defendant.
DISCUSSION
I. The Trial Court’s Decision to Reopen Closing Arguments Did Not Constitute
an Abuse of Discretion
Defendant argues the trial court abused its discretion by allowing counsel to
reargue portions of the case after deliberations had begun. To the extent defense counsel
did not object to this procedure, he argues his counsel was ineffective. We conclude
there was no error.
The jury began deliberations on May 3, 2012, at approximately 11:04 a.m. That
afternoon, the jury requested readback of Leticia’s and Dr. Massi’s testimony. Later that
same afternoon, the jury requested specific testimony from Dr. Massi relative to several
exhibits admitted into evidence. The court explained it would be more time efficient to
just have the court reporter read back all of Dr. Massi’s testimony. Due to the hour, the
court adjourned for the evening and explained the readback would begin in the morning.
The following afternoon, the jury sent the court a note asking, “What happens if
we can’t come to an agreement.” The trial court discussed the matter with the parties,
noting it appeared the jury was at an impasse. The court explained it proposed to respond
to the jury consistent with California Rules of Court, rule 2.10364 informing it of actions

4All further references to rules are to the California Rules of Court. Rule 2.1036 provides
as follows:
“(a) Determination
“After a jury reports that it has reached an impasse in its deliberations, the trial judge
may, in the presence of counsel, advise the jury of its duty to decide the case based on the
evidence while keeping an open mind and talking about the evidence with each other. The judge

11.
the court could take to assist it in reaching a verdict. The court also stated it would offer
additional readback of testimony. When asked, the parties had no further input on the
matter.
When the jury returned to the courtroom, the court explained the court could offer
several alternatives that might assist the jury. Those options included further readback of
testimony, additional instructions on the law, clarification of previous instructions, or
permitting the attorneys to make additional closing arguments. Regarding permitting
additional arguments, the court explained:

“And when we talk about permitting the attorneys to make additional
closing arguments, it is probably not going to be helpful to the jury just to
ask them to reargue the whole case. But if the jury in further deliberations
identified specific subjects or issues that you feel it would assist you in
hearing the attorneys make additional closing arguments on those narrower
subjects or issues, then the Court may permit the attorneys to do that.”
The court informed the jurors it could offer any of these measures or any
combination of them if they thought it would be helpful. Before asking the jury to return
to deliberate further and to discuss the options provided, the court noted:

“Again, let me make it clear that I’m not pressuring you in any way.
The Court is not trying to put any pressure on anyone to reach a certain
verdict or reach a verdict. It is your duty to decide the case if you can do so
based on the evidence and the law. [¶] … [¶]

“… With those thoughts in mind, I’ll ask you to return to the jury
room and continue deliberating, discuss among yourselves some of the

should ask the jury if it has specific concerns which, if resolved, might assist the jury in reaching
a verdict.
“(b) Possible further action
“If the trial judge determines that further action might assist the jury in reaching a verdict,
the judge may:
“(1) Give additional instructions;
“(2) Clarify previous instructions;
“(3) Permit attorneys to make additional closing arguments; or
“(4) Employ any combination of these measures.”

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 things I’ve discussed with you to see if there is anything the Court might do
to assist the jury agree.”
Shortly after returning to deliberate further, the jury sent a note to the court
stating:

“Please explain the meaning of beyond reasonable doubt. Please explain
timeline of rib fracture. Please explain timeline of brain swelling after
injury? How long does it take for fontanal [sic] swelling to happen after
injury? How or what evidence do we have that explains when and where
injury first occurred.”
The trial court inquired of the jurors if they were asking for additional closing
arguments on these issues. The foreperson stated that was what they were requesting.
After a short sidebar, the court explained it would allow each attorney an opportunity for
additional closing argument.
The court released the jurors for the day and then discussed with counsel the
procedure for making the additional closing arguments. After delineating the procedure,
the trial court asked the parties if they submitted on the procedure. Both agreed. The
court explained its tentative ruling was to allow the parties to present their additional
closing arguments, but that it would “limit … the subjects or issues which are raised in
the note by the jury so this is not a free ranging, reargue your entire case.” When asked if
either party would like to make any additional record, both parties replied “no.”
Subsequently, both the prosecution and defense gave their additional closing
arguments limited to the issues identified in the jury’s note. Thirty minutes after the jury
received the additional arguments, they returned with a guilty verdict.
Relying on U.S. v. Evanston (9th Cir. 2011) 651 F.3d 1080 (Evanston), defendant
argues the trial court abused its discretion in allowing additional closing arguments on
factual matters. We disagree. Although we are not bound by lower federal court
decisions (People v. Avena (1996) 13 Cal.4th 394, 431; People v. Crittenden (1994) 9
Cal.4th 83, 120, fn. 3), we nonetheless find Evanston distinguishable.

13.
 In Evanston the court addressed whether “a district court may, over defense
objection and after the administration of an unsuccessful Allen1 charge, inquire into the
reasons for a trial jury’s deadlock and then permit supplemental argument focused on
those issues, where the issues in dispute are factual rather than legal.” (Evanston, supra,
651 F.3d at p. 1082.) Ultimately, the court “conclude[d] that allowing such a procedure
in a criminal trial is an abuse of the discretion accorded district courts in the management
of jury deliberations.” (Ibid.)
In reaching this conclusion, the court focused upon several factors not present
here. First, the court noted the dangers of impermissibly coercing a jury to reach a
verdict. (Evanston, supra, 651 F.3d at pp. 1084-1085.) Evanston explained
“[e]xtraordinary caution must be exercised when acting to break jury deadlock. This is
particularly true with respect to the court’s actions in giving an Allen charge, which we
have recognized as already ‘stand[ing] at the brink of impermissible coercion.’” (Id. at p.
1085.) Thus, the court noted “it is per se error to give a second Allen charge where the
jury has not requested one, because it conveys a message that ‘the jurors have acted
contrary to the earlier instruction as that instruction was properly to be understood.
(“Apparently you didn’t listen to what I said before, so I’ll repeat it.”),’ and that message
serves no purpose other than impermissible coercion.” (Evanston, supra, at p. 1085.)
Here, unlike Evanston, the court never gave a prior deadlock instruction, and defense
counsel never objected to the procedure used by the court.
Next, the court found the district court’s allowance of supplemental arguments

“intruded upon the jury’s fact-finding role in two ways and through two
conduits: (1) the judge’s questioning as to the reasons for the deadlock
required that the jury divulge the state of its unfinished deliberations,
thereby violating the jury’s deliberative secrecy, [citations]; and (2) the
parties’ supplemental arguments, coupled with the judge’s insistence on

“1An Allen charge, the original concept of which was approved by the Supreme Court in
Allen v. United States (1896) 164 U.S. 492, 501-502, is ‘a supplemental instruction given by the
court to encourage a jury to reach a verdict after that jury has been unable to agree after some
period of deliberation.’ [Citation.]” (Evanston, supra, 651 F.3d at p. 1082, fn. 1.)

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 continuing after a second deadlock, injected the court and the attorneys into
the jury’s deliberative process, thereby raising the specter of jury coercion.”
(Evanston, supra, 651 F.3d at pp. 1087-1088.)
The combination of allowing the supplemental factual argument, after the jury reported
for a second time that it was at an impasse, increased the coercive value of the
instruction, implying the judge did not believe the jury had “accorded proper deference to
his prior encouragement to reach a verdict.” (Evanston, supra, 651 F.3d at p. 1088.)
However, the court specifically noted it did not “foreclose the possibility that
supplemental argument treating factual matters could ever be used”; rather, it found only
that the manner in which it was used in that case “resulted in an impermissible intrusion
into the jury’s role as the sole fact-finder.” (Evanston, supra, 651 F.3d at p. 1088.) Thus,
Evanston does not stand for the proposition that allowing supplemental arguments on
factual matters is per se error.
Furthermore, the Evanston court relied upon the fact that the practice of allowing
supplemental argument on factual matters was not authorized by any current court rule.
On the contrary, it seemed to run counter to the Ninth Circuit Model Jury Instructions.
(Evanston, supra, 651 F.3d at pp. 1088-1089.) The court pointed out California was one
of three states to “have adopted rules specifically allowing for additional or supplemental
closing argument in criminal cases where juries indicate that they have reached an
impasse in their deliberations.” (Id. at p. 1089.) Unlike the federal courts with no
analogous rule, the states that adopted such a rule have had the “benefit of the formal
rulemaking process to weigh the benefits and risks of allowing supplemental argument.”
(Ibid.) Thus, the fact California has specifically adopted a rule allowing for such
argument is also a distinguishing factor.
Finally, in reaching its conclusion, the Evanston court clarified:

“[W]e do not reach today the question of whether the use of supplemental
arguments to address factual matters is necessarily or always an error of
constitutional dimension, whatever the circumstances. Rather, we hold
that, under the circumstances presented here, the district court’s actions
resulted in impermissible coercion, and consequently an abuse of discretion

15.
 meriting reversal. We so limit our holding because the Supreme Court’s
precedent on similar jury coercion issues has generally emanated from its
supervisory powers over the federal courts, rather than any mandate from
the federal Constitution.” (Evanston, supra, 651 F.3d at p. 1093, fn. 15.)
Because Evanston does not involve constitutional rules or principles that impact state
courts, we decline to apply it here.
We find the present case much more analogous to People v. Young (2007) 156
Cal.App.4th 1165 (Young). There, during deliberations, the jury informed the court it
was deadlocked regarding the issue of a lesser included offense. The court inquired
whether additional argument from counsel would be helpful. Some jurors indicated it
would be helpful. The court then reopened closing argument without objection from the
parties. (Id. at p. 1169-1170.) On appeal, the defendant contended the court lacked
authority to reopen closing arguments. Among his arguments, he claimed the process
constituted impermissible jury coercion. (Id. at pp. 1170-1171.) Initially, Young held
defense counsel’s failure to object to the process forfeited the issue on review. (Id. at p.
1171.) However, the court went on to address whether the failure to object constituted
ineffective assistance of counsel.
The court held it was proper to ask the jury if additional argument would be
helpful and then to allow additional argument when, as here, no coercive instructions
were given, the trial court did not indicate a preference for a particular result, and both
sides were given an equal opportunity to argue. (Young, supra, 156 Cal.App.4th at pp.
1171-1172.) While being mindful that a court must act with caution so its actions will
not be perceived as coercive, the court explained “when faced with questions from the
jury, including that they have reached an impasse, ‘a court must do more than figuratively
throw up its hands and tell the jury it cannot help. It must at least consider how it can
best aid the jury.’” (Ibid.)
Because there were no remarks by the trial court that could have been considered
coercive or as favoring a particular verdict, the jury indicated additional arguments would
be helpful, and the procedure employed was neutral, the court found the procedure did

16.
not constitute an abuse of discretion. (Young, supra, 156 Cal.App.4th at p. 1172.) Thus,
trial counsel could not be considered ineffective as the defendant did not demonstrate his
counsel acted deficiently. (Ibid.)
Likewise, this court recently upheld a trial court’s decision to permit additional
argument pursuant to rule 2.1036(b) in People v. Salazar (2014) 227 Cal.App.4th 1078
(Salazar). In Salazar, this court rejected an argument that allowing additional closing
arguments after the jury began deliberations violated the defendant’s right to due process.
(Id. at p. 1084.) We explained the court has discretion in “choosing whether to resort to
the tools provided [in rule 2.1036] and how to use those tools.” (Id. at p. 1088.)
Furthermore, we rejected the defendant’s argument that limiting the parties arguments to
certain topics was error. Instead we found the “limitation allowed the attorneys to focus
on the issue troubling the jury, thus ensuring the attorneys an opportunity” to provide the
jury with the needed assistance. (Id. at p. 1089.)
Like Young and Salazar, we conclude the trial court acted within its discretion in
permitting the additional arguments. The jury indicated it was at an impasse, and the
court simply informed it of several options, consistent with rule 2.1036(b), that were
available. The court was very specific that it was not attempting to coerce the jury into
reaching a particular, or any, verdict. Upon hearing the available options, the jury
indicated additional arguments would be helpful. The court employed a neutral process
allowing each side an opportunity to argue. Neither party objected to this process. Under
these circumstances, we find no abuse of discretion. As such, any failure to object
necessarily did not constitute ineffective assistance of counsel. (Young, supra, 156
Cal.App.4th at p. 1172.)
II. Defendant’s Statement Was Properly Admitted
Defendant contends the trial court erred in admitting his tape-recorded statement
to the police. He argues the statement was admitted without proper foundation because
“there was no evidence to establish that [defendant] had not been questioned by other law
enforcement officers in violation of Miranda prior to the tape recorded statement.”

17.
Additionally, after recounting the transcript of defendant’s statement regarding the
waiver of his rights, defendant contends his statement “was improperly admitted at his
trial.” We disagree.
Initially we note defendant never objected to the admission of his tape-recorded
statement at trial. Indeed, during the in limine motions, the trial court explained the
prosecution sought to admit defendant’s tape-recorded statements and the parties
discussed the matter in chambers. Upon clarifying that the prosecution only sought to
admit the portion of defendant’s statement after he agreed to speak without an attorney
present, the court inquired as to whether defense counsel had any objection. Defense
counsel stated he would submit on the issue, noting only that he “may have an objection”
to a few lines in the transcript but “[i]n general, I don’t have any objection.”
Subsequently, the parties agreed they had met regarding the redactions to be made
to defendant’s statement, and the prosecutor would make those agreed redactions and
provide a copy to defense counsel. Indeed, defense counsel noted the two had agreed on
all redactions with the exception of one word. After further discussions, the parties
agreed on the content of defendant’s statement that would be admitted. During this
discussion, defense counsel indicated defendant would be testifying in the case and could
explain the use of some of his terminology on the recording. Ultimately, the redacted
statement was introduced into evidence without objection.
It is well settled that failure to object to the admission of evidence in the trial court
forfeits the issue on review. (Evid. Code, § 353; People v. Pearson (2013) 56 Cal.4th
393, 438-439; People v. Partida (2005) 37 Cal.4th 428, 433-434.) Additionally, the party
must specify the grounds of the objection in order to both allow the trial court to make an
informed ruling and provide the proponent of the evidence an opportunity to cure any
defect. (People v. Boyette (2002) 29 Cal.4th 381, 424.)

“Miranda-based claims are governed by this rule. ‘The general rule is that
a defendant must make a specific objection on Miranda grounds at the trial
level in order to raise a Miranda claim on appeal.’ (People v. Milner
(1988) 45 Cal.3d 227, 236; People v. Rogers (1978) 21 Cal.3d 542, 548.)”

18.
 (People v. Mattson (1990) 50 Cal.3d 826, 854, superseded by statute on
other grounds as stated in People v. Jennings (1991) 53 Cal.3d 334, 387, fn.
13.)
Here not only did defense counsel fail to object to the foundation for the statement
or to the admission of the statement itself, but affirmatively agreed on the statement that
was admitted. He cannot now argue the introduction of the statement was error. (People
v. Mattson, supra, 50 Cal.3d at p. 854; People v. Rundle (2008) 43 Cal.4th 76, 116,
disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22
[forfeiture doctrine applies to objections based on Miranda violations]; In re Sakarias
(2005) 35 Cal.4th 140, 170–171 [Miranda claim not presented at trial barred on both
direct appeal and habeas corpus]; People v. Holt (1997) 15 Cal.4th 619, 666–667
[Miranda claim forfeited for failing to object at trial]; People v. Polk (2010) 190
Cal.App.4th 1183, 1194 [“unless a defendant asserts in the trial court a specific ground
for suppression of his or her statements to police under Miranda, that ground is forfeited
on appeal”].)
Perhaps anticipating this ruling, defendant argues his trial counsel was ineffective
for failing to object to the admission of his tape-recorded statement as lacking foundation
because there was no evidence his statement was not the product of a prior statement in
violation of Miranda and, additionally, because defendant in fact invoked his right to an
attorney during questioning. We find these claims without merit.
“Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish
ineffective assistance of counsel, “‘a defendant must show both that his counsel’s
performance was deficient when measured against the standard of a reasonably
competent attorney and that counsel’s deficient performance resulted in prejudice to
defendant ….’” (People v. Lewis (2001) 25 Cal.4th 610, 674.) Defense counsel’s failure
to object rarely establishes ineffective assistance. (People v. Avena (1996) 13 Cal.4th
394, 444-445.) “[W]hen the reasons for counsel’s actions are not readily apparent in the
19.
record, we will not assume constitutionally inadequate representation and reverse a
conviction unless the appellate record discloses ‘“no conceivable tactical purpose”’ for
counsel’s act or omission.” (People v. Lewis, supra, at pp. 674-675; accord, People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [“‘“[if] the record on appeal sheds no
light on why counsel acted or failed to act in the manner challenged[,] … unless counsel
was asked for an explanation and failed to provide one, or unless there simply could be
no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim
of ineffective assistance in such a case is more appropriately decided in a habeas corpus
proceeding”]; People v. Ray (1996) 13 Cal.4th 313, 349 [“In order to prevail on [an
ineffective assistance of counsel] claim on direct appeal, the record must affirmatively
disclose the lack of a rational tactical purpose for the challenged act or omission”].)
The ineffectiveness claim for failure to object to defendant’s statement on the
basis that it could have been the product of an earlier interrogation in violation of
Miranda is without merit. Defendant bases this claim upon the fact there was some
evidence in the record that he spoke to another officer before making his statement to
Sloan. The record indicates defendant spoke to an officer at the Ridgecrest hospital
sometime shortly after Nicholas was admitted there. He also may have given an
additional statement when he returned home to gather his belongings prior to driving to
the Loma Linda hospital. The contents of these statements were never introduced at trial.
To the extent defendant argues these statements could have been the product of a
violation of Miranda, we note there was no evidence defendant was in custody when he
gave these statements.
Miranda warnings are only required when a person is subjected to custodial
interrogations. (Miranda, supra, 384 U.S. at p. 444.) A custodial interrogation occurs
when a law enforcement officer questions a suspect after placing him or her under formal
arrest, or restrains the suspect’s freedom of movement to the degree associated with a
formal arrest. (California v. Beheler (1983) 463 U.S. 1121, 1125.) No evidence in the
record supports the premise defendant was ever in custody prior to his arrest. Nor is

20.
there any evidence defendant gave any other statement prior to receiving his Miranda
rights. Of course, trial counsel has no duty to make futile or frivolous motions. (People
v. Memro (1995) 11 Cal.4th 786, 834, overruled on other grounds in People v. Gaines
(2009) 46 Cal.4th 172, 181, fn. 2.)
Furthermore, when the “‘“record on appeal sheds no light on why counsel acted or
failed to act in the manner challenged[,]… unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no satisfactory explanation,”
the claim on appeal must be rejected.’ [Citations.]” (People v. Mendoza Tello, supra, 15
Cal.4th at p. 266.) On this record we cannot say counsel’s failure to object constituted
either deficient performance or was not the result of a reasoned tactical decision. Instead,
it is quite likely no objection was made because defense counsel had no information
defendant ever made any prior statements in violation of Miranda. (See People v.
Mendoza Tello, supra, at pp. 266-267.)
Defendant further contends he invoked his right to an attorney during the
interrogation, thus his subsequent statement was inadmissible. Defendant simply argues
he invoked his rights and, therefore, his statement was inadmissible. He makes no
attempt to demonstrate his subsequent statements did not amount to a reinitiation of
discussions by defendant, even after this issue was raised by the People. When arguing
defense counsel was ineffective, again defendant makes no attempt to demonstrate his
statement was not actually admissible or the failure to object was the result of a reasoned
tactical choice. Rather, he argues, without any substantive analysis, that the admission of
the statement was prejudicial. Defendant’s complete failure to cite the relevant law and
argue the question presented may be deemed a waiver of these issues on appeal. (Rule
8.204(a)(1)(B); People v. Barrera (1993) 14 Cal.App.4th 1555, 1562, fn. 5; see Estate of
Randall (1924) 194 Cal. 725, 728-729.) Nevertheless, we will address this issue.
The law regarding the invocation of the right to counsel is well settled.

“Miranda v. Arizona, supra, 384 U.S. 436, and its progeny protect
the privilege against self-incrimination by precluding suspects from being
subjected to custodial interrogation unless and until they have knowingly
21.
 and voluntarily waived their rights to remain silent, to have an attorney
present, and, if indigent, to have counsel appointed. [Citations.] ‘If a
suspect indicates “in any manner and at any stage of the process,” prior to
or during questioning, that he or she wishes to consult with an attorney, the
defendant may not be interrogated.’ (People v. Crittenden (1994) 9 Cal.4th
83, 128, italics omitted, quoting Miranda v. Arizona, at pp. 444-445.) Once
the right to counsel has been invoked, further questioning is forbidden until
counsel has been provided, ‘unless the suspect personally “initiates further
communication, exchanges, or conversations” with the authorities.’
[Citations.]

“‘“An accused ‘initiates’” further communication, exchanges, or
conversations of the requisite nature “when he speaks words or engages in
conduct that can be ‘fairly said to represent a desire’ on his part ‘to open up
a more generalized discussion relating directly or indirectly to the
investigation.’”’ (People v. San Nicolas (2004) 34 Cal.4th 614, 642;
accord, People v. Waidla (2000) 22 Cal.4th 690, 727.) ‘“[W]here
reinterrogation follows, the burden remains upon the prosecution to show
that subsequent events indicated a waiver of the Fifth Amendment right to
have counsel present during the interrogation.”’ (People v. Sims (1993) 5
Cal.4th 405, 440[, overruled on other grounds as stated in People v. Storm
(2002) 28 Cal.4th 1007, 1031]; accord, People v. Bradford (1997) 15
Cal.4th 1229, 1311.) Thus, the People must show both that the defendant
reinitiated discussions and that he knowingly and intelligently waived the
right he had invoked. (People v. Davis [(2009)] 46 Cal.4th [539,] 596.) If
instead the police reinitiate discussion without a break in custody, any
further statements by the defendant are presumed involuntary and rendered
inadmissible. (McNeil v. Wisconsin [(1991)] 501 U.S. [171,] 177; People v.
Storm[, supra,] 28 Cal.4th [at pp.] 1021–1022.)” (People v. Gamache
(2010) 48 Cal.4th 347, 384-385.)
It is true that after being advised of his right to an attorney by Detective Richard
Smith of the Ridgecrest Police Department, defendant stated, “Yes, sir. I have an
attorney right there,” and when asked if he wanted to speak to the officers without an
attorney present, defendant said “No.” This was a clear invocation of his right to an
attorney. However, it is equally clear that immediately thereafter defendant opened a
conversation with the officers by specifically asking Sloan a question which
encompassed a general discussion about his case.
Indeed, immediately after invoking his rights, Sloan attempted to ask defendant a
question, when defendant cut him off and asked “Why you tryin’ to fuck me, Ryan?”

22.
The question itself demonstrated defendant’s desire to talk about the particulars of the
case, as he asked why the officer was building a case against him. Sloan responded he
was not doing anything to defendant when defendant again opened up a conversation
about the case. Defendant stated the officer had “said a bunch of bad stuff about [him]”
earlier. He clarified Sloan told defendant’s friend that defendant was “a sinking ship.”
This again indicated defendant’s wish to speak about the evidence in the case.
Although defendant had communicated his desire to speak with the officers after
invoking his rights, the record must show defendant affirmatively waived his right to
have an attorney present during the interview. (People v. Gamache, supra, 48 Cal.4th at
pp. 384-385.) The record indicates that immediately after defendant made the above
comment, Sloan told defendant, “you have rights and you just had told me you don’t
want to talk about it.” Defendant replied that Smith had just asked if defendant wanted to
talk. Thereafter, a short exchange took place regarding the severity of the charges, and
defendant noted he spoke to his attorney that day about turning himself in. Sloan noted
he was just doing his job and defendant again began speaking about the facts of the case,
noting a social worker had called him, and he asked if Sloan had listened to any phone
conversations. Once again Sloan indicated he was just doing his job and using the
evidence he had when defendant pointed out there were two parents. Sloan replied
defendant was the one who left, and then Smith interrupted and asked defendant if he
wanted to speak with the officers without an attorney present as defendant had begun to
go into the facts of the case.
Sloan followed up, noting defendant had invoked his right to an attorney, and the
fact defendant was speaking to him about the case at that point would be “crossin’ this
line.” Defendant responded by saying, “[C]an I say one more thing before we go any
further then?” He noted he wanted to talk to the officers, but was hesitant. Defendant
went on to say that he felt like he should have an attorney present, and Sloan responded,
“We’re at a … wall. You have rights which he just read to you. [¶] … [¶] … And, you
told us you do not wanna answer any questions or provide a statement without your

23.
attorney present. So…so the…” Defendant interrupted, stating, “[T]hat looks bad on me
too,” and asked the officer what he thought. Sloan replied it was a gray area, but it would
“be out of line” for Sloan to ask defendant questions because he had asked for an
attorney.
The officers reiterated defendant had rights, and it was solely his decision whether
to talk to them, but they could not ask any more questions without his attorney present.
Defendant asked the officers for advice, and they explained they were not his counsel
and, again, they were “at a wall.” Defendant asked if it was “still my choice to say yes or
no,” and after the officers indicated it was, and again reminding defendant that he had
rights, Sloan asked, “Do you want to talk or do you not?” Defendant replied, “Yeah, I’ll
talk.”
The totality of the above circumstances demonstrates defendant’s decision to
speak to the officer was not the result of coercion. (People v. Gamache, supra 48 Cal.4th
at p. 386.) Indeed, it was defendant who cut off the officers and asked the initial
question, and it was defendant who kept inquiring into the case even after the officers
informed him repeatedly that he had invoked his right and they could not talk to him.
The above exchange demonstrates that although defendant initially invoked his right to
counsel, he thereafter indicated his desire to speak to the officers regarding the case
without his attorney present. The officers repeatedly reminded defendant of his rights,
and he expressly waived them. Furthermore, defendant was reminded of his rights
throughout the remainder of the interview. On this record, we find defendant initiated the
questioning after invoking his right to an attorney and subsequently was reminded of and
waived his Miranda rights. Therefore, his statement was admissible and defense
counsel’s failure to object necessarily did not constitute ineffective assistance of counsel.
Furthermore, it appears from the record that defense counsel had an additional
tactical reason for not objecting to the admission of defendant’s statement.
Notwithstanding the fact that counsel is not required to make futile or frivolous motions
(People v. Memro, supra, 11 Cal.4th at p. 834), it appears defendant had decided to

24.
testify prior to trial. During the in limine motions, defense counsel made note of the fact
defendant would be testifying on his own behalf. He did so at trial, providing testimony
that was in accord with the statement he had provided to Detective Sloan. As the
evidence at trial established defendant fled to Las Vegas after Nicholas was admitted to
the Loma Linda hospital, it is likely defense counsel wanted defendant to explain why he
fled. Indeed, during his testimony, defendant stated he left because he felt he would be
accused even though he claimed he had never harmed Nicholas. Furthermore, in both his
statement to Sloan and during his testimony, defendant denied ever harming Nicholas in
any way. Defendant’s testimony was consistent with his prior statement, and because the
two were similar, the admission of his prior statement helped the defense by showing he
gave a similar statement when questioned by police. Had defendant testified
inconsistently with his prior statements, those statements would have been admissible as
impeachment evidence even if they were obtained in violation of Miranda. (Harris v.
New York (1971) 401 U.S. 222, 224-226; People v. Demetrulias (2006) 39 Cal.4th 1, 29-
30.) Thus, it appears defense counsel had a valid tactical basis for failing to object to the
admission of defendant’s statement.
III. The Evidence Was Sufficient to Support Defendant’s Conviction
Defendant claims the evidence was insufficient to support his conviction.
Specifically, he argues the jury’s request for clarification regarding the timeline for
Nicholas’s rib fractures, when the brain swelling began, and to delineate the evidence
regarding when the injury occurred demonstrated the record was insufficient to support
the conviction. He contends “there was absolutely no evidence upon which the jury
could reach the conclusion beyond a reasonable doubt that the injuries to Nicholas
occurred during that brief window of time.” We disagree.
Other than stating there was “no evidence” upon which the jury could conclude he
was the cause of Nicholas’s injuries, defendant does not detail in what manner the
evidence was insufficient. Defendant does not cite any of the facts in his argument and
provides only a cursory statement of facts in his opening brief. Indeed, his only citation

25.
to the record regarding the sufficiency of the evidence is the citation to the jury’s
question. His reply brief fails to shed any further light on the subject, arguing only “that
the jury’s note to the court outlining the areas upon which they were deadlocked leads to
the inescapable conclusion that the evidence upon which the verdict was based was not
substantial.” Defendant’s failure to outline how the evidence was insufficient to support
the conviction permits the court to pass it without consideration. (People v. Stanley
(1995) 10 Cal.4th 764, 793.) Nevertheless, we will address the issue below.
When a defendant challenges the sufficiency of the “evidence to support the
judgment, our review is circumscribed. [Citation.] We review the whole record most
favorably to the judgment to determine whether there is substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could have made the requisite finding under the governing standard of proof.” (In re
Jerry M. (1997) 59 Cal.App.4th 289, 298.) Further, we review “the evidence in the light
most favorable to the prosecution, [asking whether] any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. [Citation.] This
familiar standard gives full play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Once a defendant has been found guilty of the crime
charged, the factfinder’s role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be considered in the light
most favorable to the prosecution.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.)
“Before a judgment of conviction can be set aside for insufficiency of the evidence to
support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever
is there sufficient evidence to support it.” (People v. Rehmeyer (1993) 19 Cal.App.4th
1758, 1765.)
“Whether the evidence presented at trial is direct or circumstantial, … the relevant
inquiry on appeal remains whether any reasonable trier of fact could have found the

26.
defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Towler (1982) 31
Cal.3d 105, 118-119.)

“‘Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury, not the
appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt. “‘If the circumstances reasonably justify the trier of
fact’s findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.’” [Citations.]’ [Citation.]
‘“Circumstantial evidence may be sufficient to connect a defendant with the
crime and to prove his guilt beyond a reasonable doubt.”’ [Citations.]”
(People v. Stanley, supra, 10 Cal.4th at pp. 792-793.)
Defendant does not attack, or even recount, the elements of felony child abuse;
rather, he argues the evidence was insufficient to demonstrate he inflicted the injury upon
Nicholas. As only this limited issue has been raised by defendant, it is the only issue we
will consider. After a thorough review of the evidence, we conclude the evidence was
sufficient to support the jury’s conclusion Nicholas was indeed injured while in the sole
care of defendant.
By all accounts, Nicholas was well and behaving normally when Leticia left him
with defendant on April 2. According to the evidence, Nicholas had been seen by his
pediatrician two days earlier for a well-baby visit and had been provided with
immunizations. Leticia noted Nicholas had been a little more fussy than usual due to his
vaccinations but was otherwise acting normally. When Leticia left to go shopping,
Nicholas was in his swing. Upon her return, the child was lying on defendant’s chest,
covered with a blanket. Within minutes of her return, defendant placed Nicholas in his
crib.
The jury was presented with two possibilities regarding Nicholas’s injuries.
According to Dr. Massi, Nicholas suffered some sort of rapid acceleration/deceleration
event. He opined Nicholas suffered a trauma inflicted upon him by someone else,
resulting in injuries to his brain. Specifically, the injuries were consistent with a rapid
acceleration/deceleration that could occur when “an infant is either violently shaken or
27.
slammed repeatedly and the brain is moving within the skull at a different rate.” Because
Nicholas did not have any obvious signs of trauma, the doctor believed there was either
some shaking of the child or other repetitive acceleration/deceleration. The injury
manifests itself through a behavior change, as in this case where Nicholas experienced
seizures prompting his trip to the emergency room. Additionally, he had bleeding within
the brain and retinas. When the brain moves within the skull in this type of traumatic
event, it ruptures blood vessels, causing the bleeding in the brain.
Further when there is retinal hemorrhage in multiple layers of the retina, it
indicates there was a traumatic event causing the condition. Also, the portions of the
brain injured indicated trauma. For example, a blow to the head could cause an injury to
the area where the blow was delivered and possibly the area opposite the blow. A brain
deprived of oxygen results in injury to the entire brain. The injuries here, where several
different areas of the brain were affected, were consistent with trauma.
Nicholas’s brain scan taken shortly after he was admitted to the emergency room
showed the left half of his brain was bleeding and significantly swollen. Because of the
extreme swelling, the doctors could not reattach a portion of his skull for a lengthy
period. Nicholas’s entire brain was damaged, with the most severe damage extending
from the right frontal lobe to the back of the left parietal lobe. Nicholas would have had
to have been exposed to an excessive level of force to produce these injuries.
Moreover, Nicholas had evidence of rib fractures. Although X-rays taken at the
time he was admitted to the hospital did not clearly show a fracture, upon review the
doctor opined there was a fracture present. Subsequent X-rays taken four weeks later
showed healing, and such healing is evident on X-rays four to six weeks after an injury.
This evidence supports the inference Nicholas suffered a rib fracture at the same time as
the brain injury. Furthermore, Dr. Massi testified the type of fracture seen in Nicholas
was consistent with a front-to-back compression injury. This in combination with the
brain injury supports a reasonable inference that violent shaking caused the child’s
injuries.

28.
 Although there was no specific testimony as to the exact timeframe the injury
occurred, one could infer from the totality of the evidence the injury occurred while
Nicholas was in defendant’s care. The evidence established Nicholas was well and acting
normally prior to Leticia leaving him in defendant’s care. When she returned, defendant
had Nicholas on his chest and covered with a blanket. Within minutes of her return,
defendant took the child to his crib and returned to watch a movie. At some point,
Leticia heard Nicholas making noise and was going to get him, however, defendant
dissuaded her from doing so. When Leticia heard Nicholas making noises for a second
time, she went to check on him and found him obviously suffering from a major injury.
According to the doctors, Nicholas was suffering severe seizures when he arrived at the
hospital. The sudden change in the child’s behavior just after he was alone with
defendant, in combination with Dr. Massi’s opinion that Nicholas suffered nonaccidental
trauma, leads to the reasonable conclusion defendant was the cause of Nicholas’s injuries.
Because Nicholas was clearly acting normally before Leticia left, but was
obviously suffering from a serious injury when she returned, it is reasonable to infer the
traumatic event occurred during the time Nicholas was in defendant’s care. Furthermore,
the jury could consider defendant’s behavior as consciousness of guilt. Defendant
concealed the child from Leticia and initially dissuaded her from checking on him.
Additionally, at the hospital, instead of inquiring into Nicholas’s prospects of recovery or
his condition, defendant’s questions focused solely on the causation of his condition.
Finally, while his son was in critical condition, defendant fled to Las Vegas after learning
the doctors suspected child abuse, further demonstrating a consciousness of guilt.
Taken together, these facts were sufficient to allow the jury to reasonably infer
defendant was the cause of Nicholas’s injuries. Likewise, the jury was entitled to
discount Dr. Gabaeff’s testimony that Nicholas suffered from a case of bacterial
meningitis and not trauma. Presented with two competing theories by two doctors, the
jury was entitled to choose which expert opinion to believe. We are not entitled to
second-guess that choice.

29.
 DISPOSITION
The judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:

________________________________
POOCHIGIAN, Acting P.J.

________________________________
CHITTICK, J.*

*Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

30.