People v. Olivares CA2/2

Filed 9/28/15 P. v. Olivares CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B257171

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA391319)
v.

JOSE OLIVARES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Jose I. Sandoval, Judge. Affirmed.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________
 Defendant, Jose Olivares, was charged with murder (Pen. Code, § 187, subd. (a);1
count 1) and assault on a child under the age of eight, causing the child’s death (§ 273ab,
subd. (a); count 2).
A jury found defendant not guilty as to count 1 but guilty on count 2. The trial
court sentenced defendant to a state prison term of 25 years to life.
On appeal, defendant contends that the trial court committed prejudicial error by
instructing a juror to disregard prior, personal experiences when deliberating, and to
consider only the evidence presented at trial. We affirm.
FACTS
Prosecution
A. The incident
Isiah M. was three years old in February 2011. He lived with his mother
(Diana M.), Diana’s boyfriend (defendant), and the newly born son (D.) of Diana and
defendant. The four shared a bedroom in the home of defendant’s parents. Also living at
the house were defendant’s sisters (Lilliana and Jessica), defendant’s brother (Ricardo),
Jessica’s infant son, and defendant’s parents (Guadalupe and Martina).
Isiah was a generally healthy child who weighed approximately 40 pounds. He
was very active and could be difficult to control.
Defendant worked restocking stores for the Coca Cola Company. He would
generally leave for work around 12:00 or 2:00 in the morning, and get off work in the
afternoon. His job was physically demanding, and he was usually tired when he came
home from work.
On February 14, 2011, defendant clocked out of work at approximately 1:00 p.m.
and went home. He went into the bedroom he shared with Diana and the children. Soon
after, Diana put Isiah down for a nap on the bedroom carpet—which covered a bare
concrete floor. Diana left to get food at a fast food restaurant, but returned home after

1 All further statutory references are to the Penal Code unless stated otherwise.

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realizing she forgot her credit card. Isiah was sleeping and appeared to be breathing
normally when she returned. Diana retrieved her credit card and went back to the
restaurant. At 3:14 p.m., while she was at the restaurant, Diana received a phone call
from defendant asking her to order food for him.
Shortly thereafter, back at the home, Jessica heard defendant repeating, “Call
911.” Jessica saw defendant holding Isiah, cradling him as one would a baby. Jessica
called 911 at 3:20 p.m. Defendant handed Isiah to Guadalupe and called Diana.
Diana received defendant’s call as she was driving home. Defendant sounded
worried. He said to hurry home because something had happened to Isiah. Diana asked
defendant what happened, but he just repeated that she should hurry home.
Guadalupe carefully carried Isiah outside. The family saw a neighbor who was a
nurse, and asked her for help. Guadalupe gently placed Isiah on the ground.
Diana returned home shortly thereafter. Isiah was not breathing normally and he
looked like he was having a seizure. Guadalupe and the neighbor attended to Isiah, while
defendant stood by a neighbor’s gate, not close to Isiah.
Diana asked defendant what happened. Defendant said that Isiah was jumping on
the bed. He left Isiah in the bedroom while he walked into the bathroom. Defendant
heard Isiah cry, went back in the bedroom, and saw Isiah on the floor.
The Los Angeles Fire Department arrived at 3:28 p.m. Paramedics immobilized
Isiah’s neck and head and transported him to Children’s Hospital in Los Angeles.
En route to the hospital, a paramedic noticed a bump on the left side of Isiah’s head.
Isiah vomited and exhibited other behavior characteristic of a head injury.
Dr. James McComb, then the chief of neurosurgery at Children’s Hospital,
examined and treated Isiah. He noted that Isiah had a bump on the left side of his head.
Isiah’s pupils were dilated, meaning he had abnormally high pressure in his head. His
brain was swelling, causing compression on the brain and requiring immediate surgery.
Dr. McComb removed part of Isiah’s skull to try to reduce the pressure. Because the
brain continued to swell, Dr. McComb was unable to replace the skull. He closed the

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scalp and had Isiah transported to the pediatric intensive care unit. Isiah lacked any
neurological function.
Dr. Barry Markovitz, a pediatrician in the intensive care unit, examined Isiah.
Isiah was unresponsive and exhibited no brain function. Dr. Markovitz noted retinal
hemorrhaging in both of Isiah’s eyes, a condition “almost exclusively associated with the
most severe forces that can be exerted upon a child’s head and brain.”
Dr. Grant Lee, an ophthalmology resident at the time of Isiah’s hospitalization,
determined that the hemorrhages involved all layers of Isiah’s retinas. There were too
many retinal hemorrhages to count.
Isiah was declared dead on February 17, 2011.
B. Investigation
Los Angeles Police Officer Antonio Vargas spoke with defendant at the hospital.
Defendant told Officer Vargas that he was in the bedroom sitting on the bed, while Isiah
played with his toys and jumped on the bed. Defendant briefly left the room to use the
bathroom. When he returned, he saw Isiah lying on the floor in a fetal position, crying.
According to defendant, he picked Isiah up and handed him to Guadalupe.
Defendant called 911 and gave the phone to Jessica to talk. He then called Diana and
told her to hurry home because something had happened to Isiah.
When asked how Isiah was injured, defendant said that he was unsure, but he
believed that Isiah fell off the bed and hit his head on the floor. Defendant appeared to be
nervous when speaking with Officer Vargas.
Detective Moses Castillo examined defendant’s residence. The top edge of the
bed in the bedroom measured 18 inches tall. The edge of a bookshelf was located about
18 inches away from the edge of the bed. Dumbbells were on the floor of the bedroom.
No blood was found anywhere in the room. There was a hole in a bedroom wall, about
three inches square, that appeared to be made by a fist. Defendant said that he previously
caused the hole by punching the wall after having a bad day.
At the time of the incident, defendant was about five feet nine inches tall and
weighed around 210 pounds.

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 C. Expert testimony
Dr. McComb testified that Isiah had a subdural hematoma and there was a
rupturing of the bridging veins, which connect the brain to the dura surrounding the brain.
A significant amount of force was required to cause the injury, and it was “highly, highly,
highly, highly unlikely” the injury could occur from a fall off an 18-inch-high bed. The
injury was consistent with abusive head trauma—previously commonly known as shaken
baby syndrome—which involves an acceleration-deceleration force. Dr. McComb
testified that this was the most severe brain injury possible. He further stated that Isiah
did not have an abnormally large head.
Dr. Markovitz testified that that the retinal hemorrhages in Isiah’s eyes were
associated with severe shaking and/or being thrown against a solid object. The
hemorrhages were an indication that Isiah suffered an acceleration-deceleration injury—
that “the forces of moving forward and backward are so forceful that they tear the tiny
blood vessels in the back of the eye.” The degree of injury that Isiah suffered would be
“inconceivable” from a short fall.
Dr. David Whiteman, a forensic pathologist employed by the Los Angeles County
Deputy Medical Examiner, performed Isiah’s autopsy. He determined that Isaac died
from head trauma and that the manner of death was homicide. The injuries were
conclusive of abusive head trauma because there was evidence of large impact and
acceleration-deceleration forces, which could only be caused by another person inflicting
the injuries. When a victim is exposed to acceleration-deceleration forces the brain slides
underneath the dura and small blood vessels are torn, causing blood to leak out of those
vessels and pool between the brain and the dura. This causes the brain to push against
veins that normally carry blood away from the brain; the blood that continues to get
pumped into the brain is trapped. The brain swells, which decreases circulation and
causes even more swelling. Dr. Whiteman testified Isiah’s injuries could only be caused
by a great deal of force, more force than he had seen in autopsies involving severe
accidents or falls from several stories. There was additional hemorrhaging to Isiah’s
optic nerves, which Dr. Whiteman had seen only in cases of abusive head trauma.

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Furthermore, the severe retinal hemorrhages, involving all layers of the retinas, could
only be explained by abusive head trauma. Given the severity and type of injuries, they
could not have been caused by accident or by a fall from a bed. Dr. Whiteman also noted
bruising on Isiah’s lower legs that appeared to be in a pattern of fingers grabbing the legs.
Like Dr. McComb, Dr. Whiteman stated that Isiah’s head was of normal size.
Dr. Donald Minckler, an ophthalmic pathologist, and the consulting eye
pathologist for the Los Angeles coroner, also testified. He examined Isiah’s eyes, and
found the injuries to be absolutely typical of abusive head trauma. Dr. Minckler did not
know of any other potential causes for Isiah’s ocular injuries, which were principally
retinal hemorrhaging and hemorrhaging around the optic nerves. Dr. Minckler found
bleeding in all layers of the optic nerves and hemorrhages throughout the retinas.
Potential medical causes of the hemorrhaging—including clotting disorders, leukemia,
and lymphoma—were not present in Isiah. Dr. Minckler testified that, while abusive
head trauma generally occurred in children two years of age and younger, it had been
reported in children up to age six.
Finally, Dr. Carol Berkowitz, a pediatrician and a board-certified child abuse
expert, testified for the prosecution. She likewise opined that Isiah suffered abusive head
trauma. She testified that retinal hemorrhages can occur in cases of accidental trauma,
but that such hemorrhages tend to be very localized, while Isiah’s were very diffuse.
Furthermore, Isiah’s cerebral edema was indicative of abusive head trauma. According
to Dr. Berkowitz, a fall from a bed was not a viable explanation for the extent of Isiah’s
injuries, and Isiah would not have suffered extensive bilateral retinal hemorrhages from
such a fall. Furthermore, prior to the fall, Isiah was healthy and there was no indication
that he had blood clotting problems.
Defense
A. The incident
Defendant’s brother, Ricardo, was at home watching television when defendant
returned from work on the day of the accident. Defendant appeared tired, as normal after
work. Prior to the incident, Ricardo did not hear any yelling, screaming, or crying in the

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house. Defendant treated Isiah like his own son. He was loving and caring with children,
and was never rough with them.
Guadalupe was also at home when defendant returned home from work. Before
the incident, Guadalupe did not hear any commotion in the house. Guadalupe saw
defendant holding Isiah, saying he did not know what happened. Defendant handed Isiah
to Guadalupe, and Guadalupe carried Isiah outside, where he put him down on top of a
towel and pillow. Defendant treated Isiah with love. Guadalupe had never seen him
upset at Isiah or any other child.
B. Expert testimony
Dr. Marvin Pietruszka, a pathologist, testified on behalf of the defense. According
to Dr. Pietruszka, the position that retinal hemorrhages are caused by abusive head
trauma is controversial in the medical community. He stated that retinal hemorrhages can
occur from a variety of causes, including virtually any condition that increases
intracranial pressure. Given Isiah’s age, size, and ability to resist, Dr. Pietruszka believed
that it would take an inordinate amount of force to shake Isiah in a manner leading to
abusive head trauma. Dr. Pietruszka would have expected to see signs of a neck or
cervical injury if Isiah was shaken, but there were no such injuries. Further, Dr.
Pietruszka found no evidence of bruising consistent with shaking.
Dr. Pietruszka believed that Isiah’s injuries were caused by a fall from the bed.
Blunt force trauma to the head resulting from the fall could have caused the subdural
hemorrhage, which in turn could have increased the intracranial pressure and caused the
retinal hemorrhages. Although normally a person who falls gets a bruise, and clotting
stops the bleeding, Dr. Pietruszka believed that Isiah experienced a “very unusual
condition called consumptive coagulopathy,” where the body uses up its clotting factors
and then bleeds excessively. Dr. Pietruszka stated that a blood test taken within
45 minutes of Isiah’s arrival at the hospital showed that his blood was not clotting
normally.
Dr. Khaled Tawansy, a pediatric retinal surgeon, testified that abusive head trauma
generally occurs in children two years of age or younger because their heads are

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disproportionately large, their neck muscles are weak, and they are light enough to be
shaken. Dr. Tawansy had never seen abusive head trauma in a child as old and big as
Isiah.
According to Dr. Tawansy, there are a dozen or more potential causes of retinal
hemorrhaging. Although Isiah did have retinal hemorrhaging, it was not as extensive as
would be expected from a shaking injury. Further, Isiah did not experience other injuries
commonly associated with shaking, such as splitting of the retina. Dr. Tawansy opined
that there was less than a 5 percent possibility that Isiah’s injuries were caused by
shaking. Instead, he believed that Isiah fell from the bed, hitting his head, which caused
the subdural hematoma. The accumulation of blood caused the intracranial pressure to
rise, leading to compression of the drainage from the retina and bleeding into the retina
and the optic nerve. Furthermore, according to Dr. Tawansy, Isiah lost a massive amount
of blood during the neurosurgery, which would cause all blood clotting factors to be
consumed, creating coagulopathy and yet further bleeding. In addition, there was a
sudden decrease in intracranial pressure when part of Isiah’s skull was removed, which
could cause hemorrhages in the retina. Dr. Tawansy further opined that Isiah had a
disproportionately large head, making his head susceptible to recurrent bleeding.
Dr. Michael Weinraub, a pediatrician, testified that Isiah could have sustained his
injuries by falling off the bed and hitting his head on the floor. According to Dr.
Weinraub, Isiah had an usually large head, which could result in stretching of the
bridging veins between the brain and the dura, making him more susceptible to bleeding
and subdural hemorrhage. Dr. Weinraub stated that the fall caused Isiah’s head to be
pushed into the brainstem and this, combined with bleeding bridging veins, caused the
brain to swell. The increased intracranial pressure then caused retinal hemorrhaging. In
addition, due to the severe bleeding, Isiah developed a coagulation disorder, which
caused yet more bleeding and could have caused further retinal hemorrhaging. Dr.
Weinraub opined that due to Isiah’s age, size, and neck control, it was unlikely that he
suffered injuries due to shaking. Furthermore, one would expect to see a neck injury
before there was rupture of bridging veins or retinal hemorrhaging. The bruises on

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Isiah’s legs were likely the result of being held down while having seizures in the
hospital.
DISCUSSION
During trial, one juror, Juror No. 39, informed the court that she and various
family members experienced head injuries that either required hospitalization or caused
death. The trial court instructed the juror to disregard those past experiences and base her
decision on the evidence presented at trial. Defendant contends that the trial court’s
instruction constitutes prejudicial error.
I. Factual background
On the third day of the prosecution’s case-in-chief, outside the presence of the
other jurors, Juror No. 39 informed the trial court that she had experienced two prior
incidents involving head injuries.
In the first, when she was five years old, she was spinning around, making herself
dizzy, when she fell and hit her head, knocking herself unconscious. She was put in a
brace and hospitalized for two weeks. The second episode involved her brother, who, at
39 years of age, got drunk, fell, hit his head on a marble coffee table, and died.
Juror No. 39 said to the trial court, “I realize it has nothing to do with this case, but
I just wanted to point out that that had happened to me.” She asked the court whether she
could bring up the incidents in deliberation. The trial court inquired whether either
incident would prevent Juror No. 39 from being fair and impartial, to which she
responded, “No.” The court then told the juror that the incidents were not in evidence,
and instructed her to base her decision on the evidence presented in the case, argument
from counsel, and the jury instructions. Neither the prosecution nor the defense objected
to this instruction.
Later, during deliberations, the trial court received a note from the foreperson
stating that something in Juror No. 39’s past experience was interfering with her ability to
reach a decision and with deliberations. The trial court had Juror No. 39 come into the
courtroom to discuss the matter. The juror then brought up a third incident, involving a
cousin who had a short fall, hit his head, and fell into a river and drowned. The juror

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stated, “I’m having problems because of the short fall saying, that—I mean, that most of
the doctors feel that, you know, you can’t—death can’t be a result of a short fall.” She
related that the experiences were “weighing very heavily” on her and getting in the way
of her making a decision. She said that there was “disagreement” in the jury room
relating to her prior experience.
The trial court asked Juror No. 39 whether, if she remained on the jury, she could
set aside her prior experiences with head injuries and make her decision based on the
evidence in the case. She replied that she would try. At the request of the prosecution,
the trial court questioned the foreperson, who stated that Juror No. 39 said that her past
experiences were influencing her deliberations. The trial court then spoke again with
Juror No. 39, telling her: “It is important, again, I’ll remind you, as the jury instructions
direct you, it’s important to deliberate solely based on the evidence that you have heard in
this case. . . . [I]f at one point you genuinely believe that there’s an issue here that’s
going to get in the way of your ability to meet that obligation as a juror, that is to say,
decide this case solely on the evidence independent of anything else that may have
happened in your life or whatnot, do let me know, okay? And there’s no problem with
that . . . . It’s just very important information the court must have so that the entire jury
make their decision based only on the evidence. Okay?” Juror No. 39 replied, “All
right.” After some further discussion the court again instructed the juror that she had “an
obligation solely to make the decision in this case based on the evidence.” The juror
responded, “Right,” and returned to deliberations. Neither the prosecution nor the
defense raised an objection.
II. Failure to object
Defendant contends that the trial court erred by instructing Juror No. 39 to base
her decision on the evidence presented at trial and to disregard her personal experiences
with head injuries. On two separate occasions at trial, the trial court delivered the
instruction to the juror. On neither of those occasions did the defense object.
The issue of whether the trial court’s instructions were improper was forfeited.
Unless an error affects a defendant’s substantial rights, resulting in a miscarriage of

10
justice, failure to object to instructional error forfeits the issue on appeal. (People v.
Anderson (2007) 152 Cal.App.4th 919, 927.) Furthermore, “‘[a] party may not complain
on appeal that an instruction correct in law and responsive to the evidence was too
general or incomplete unless the party has requested appropriate clarifying or amplifying
language.’” (People v. Hart (1999) 20 Cal.4th 546, 622.) As we explain below, the trial
court’s instructions were not incorrect. Moreover, the instructions did not result in a
miscarriage of justice. The failure to object thus resulted in forfeiture.
III. The trial court’s instructions were proper
Among other instructions, the jury was instructed with CALCRIM Nos. 200
(instructing jurors to decide what happened “based only on the evidence that has been
presented to you in this trial”); 220 (instructing jurors to “impartially compare and
consider all the evidence that was received throughout the entire trial”); 222 (explaining
that “evidence” included witness testimony, admitted exhibits, and stipulated facts, and
instructing jurors to disregard anything they saw or heard when court was not in session);
and 226 (instructing jurors, when deciding whether testimony was true and correct, to use
their “common sense and experience”).
Defendant does not assert that any of these instructions were incorrect, including
the instruction that jurors decide what happened “based only on the evidence” presented
at trial. Defendant contends, however, that the trial court erred by making a similar,
individualized instruction when speaking directly with Juror No. 39. According to
defendant, the court’s instruction to Juror No. 39 that she disregard her prior experience
with head injuries contravened legal principles laid out in People v. Steele (2002) 27
Cal.4th 1230 (Steele). Defendant points to the following language from Steele: “‘[I]t is
an impossible standard to require . . . [the jury] to be a laboratory, completely sterilized
and freed from any external factors.’ [Citations.] ‘It is “virtually impossible to shield
jurors from every contact or influence that might theoretically affect their vote.”’
[Citations.] A juror may not express opinions based on asserted personal expertise that is
different from or contrary to the law as the trial court stated it or to the evidence, but if
we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow

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those jurors to use their experience in evaluating and interpreting that evidence.” (27
Cal.4th 1230, 1266.)
Defendant misapprehends the scope and nature of this quoted language, which is
found in a discussion of alleged juror misconduct, not instructions given to a juror. In
Steele, the defendant argued that certain jurors committed misconduct during
deliberations by offering their own expertise regarding military service and medical
issues, two subjects with relevance to the case. (Steele, supra, 27 Cal.4th 1230, 1265.)
In finding that the trial court did not abuse its discretion in denying a new trial motion
based on this asserted misconduct, our Supreme Court wrote: “A fine line exists between
using one’s background in analyzing the evidence, which is appropriate, even inevitable,
and injecting ‘an opinion explicitly based on specialized information obtained from
outside sources,’ which we have described as misconduct.” (Id. at p. 1266.) The court
noted “it would be an impossibly high standard” to prevent the jurors from relying on or
mentioning their background and personal experience. (Id. at p. 1267.)
Steele does not stand for the proposition that the trial court should encourage a
juror’s consideration of extrinsic evidence with little apparent relevance to the facts at
issue. Juror No. 39 approached the court inquiring whether, in deliberating, she should
consider her prior experiences with head injuries, stating that she “realize[d] it has
nothing to do with this case.” The trial court’s response, that she should not consider the
incidents and instead base her decision only on the evidence presented at trial, was
consistent with California law.
“A jury’s verdict in a criminal case must be based on the evidence presented at
trial, not on extrinsic matters.” (People v. Leonard (2007) 40 Cal.4th 1370, 1414 .) “An
impartial juror is someone ‘capable and willing to decide the case solely on the evidence’
presented at trial.” (People v. Nesler (1997) 16 Cal4th 561, 581.) As we have previously
explained, while jurors will (in line with CALCRIM No. 226) use their “common sense
and experience” in making decisions, “CALCRIM No. 226 does not tell jurors to
consider evidence outside of the record, but merely tells them that the prism through

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which witnesses’ credibility should be evaluated is common sense and experience.”
(People v. Campos (2007) 156 Cal.App.4th 1228, 1240.)
Defendant provides no authority for the assertion that the trial court must
affirmatively permit jurors to rely on specific life experiences when deliberating,
particularly when these life experiences are not only irrelevant, but are also likely to
create confusion. In arguing that Juror No. 39’s prior experiences with head injuries were
relevant, defendant avers that the issue before the jury was “the force necessary to cause
brain injury.” But this is a simplistic view of the evidence presented at trial, and an
incorrect characterization of the prosecution’s case.
The prosecution did not claim that a child could not suffer brain injury or death
from a fall. Rather, the prosecution presented an extensive case concerning the unique
injuries suffered by Isiah. These injuries included ruptured bridging veins, a subdural
hematoma, hemorrhaging to Isiah’s optic nerves, and extensive retinal hemorrhaging.
This sort of complicated and abstruse evidence could only be presented by medical
experts with experience in relevant medical fields.
Prosecution experts testified that Isiah’s particular injuries were caused by abusive
head trauma. Defendant’s experts testified that they were more likely caused by a fall
from the bed. Juror No. 39’s experiences with head injuries had no bearing on the
resolution of the cause of Isiah’s unique injuries. The juror, who (again) herself
recognized that the experiences had “nothing to do” with this case, did not claim that she
or a relative suffered a subdural hematoma, retinal hemorrhaging, or another distinct
injury at issue in the case. The trial court’s instructions that Juror No. 39 set aside her
prior experiences and decide the case only on the evidence presented at trial had no
tendency to affect whether the juror believed the prosecution’s experts or the defendant’s.
Based on her statements to the trial court, Juror No. 39’s prior experiences
illustrated nothing more noteworthy than the fact that a person can be severely injured or
die from a short fall. These prior incidents were clearly extrinsic to the matters at issue at
trial and were irrelevant to the issue of how Isiah suffered his unique injuries.
Furthermore, based on her statements to the trial court, it was initially unclear whether

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Juror No. 39 was capable of deciding the case solely on the evidence. The trial court’s
instruction that she base her decision only on the evidence presented at trial, and
disregard her personal experiences with head injuries, properly served to minimize the
chance that the juror would base her decision on irrelevant, extrinsic evidence.2
Therefore, we find that the trial court’s instructions to Juror No. 39 were proper,
and defendant suffered no prejudice.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.
We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

2 Because the trial court’s instructions to Juror No. 39 were proper, defendant’s
argument that trial counsel provided ineffective assistance by failing to object to the
instructions necessarily fails.

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