Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF180680 Paul A. Vortmann, Judge.
Candace Hale, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARDAIZ, P.J.
This case presents the issue of whether the statutorily mandated sentence of 25 years to life for assault on a child under eight years old causing death constitutes cruel or unusual punishment when applied to a 17-year-old suffering from postpartum psychosis at the time of the assault.
Following a jury trial, appellant was convicted on two counts: 1) involuntary manslaughter (Pen. Code, § 192, subd. (b)), as a lesser included offense of first-degree murder, and 2) assault on a child under the age of eight years old causing death, also known as child-abuse homicide (§ 273ab). The trial court sentenced appellant to 25 years to life in state prison and stayed the three-year term for involuntary manslaughter, pursuant to section 654. On appeal, appellant contends her sentence constitutes cruel or unusual punishment under the federal and state Constitutions. We reject this contention. However, while the sentence is not unconstitutional, remand is nevertheless required because it appears the trial court misunderstood the scope of its discretion to grant probation.
All further statutory references are to the Penal Code unless otherwise stated.
Section 273ab states, “[a]ny person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 189.”
Factual Background
In March 2007, appellant Delilah Murillo was 17 years old and living with her boyfriend, Alex, his mother, Maria, and appellant’s two sons - a one year old, and Jasiah, a one month old infant. On the afternoon of March 19, 2007, Jasiah stopped breathing while in appellant’s care. Appellant started CPR, ran to get help from an acquaintance who was in the front yard of the house, called Alex for help, called 911, and resumed CPR.
Emergency responders arriving at the scene found appellant in the back bedroom with Jasiah on the floor. She was on the phone and appeared calm. Jasiah had no pulse and was not breathing. Fire department medical personnel asked appellant assessment questions but received no response. They initiated escalating life-saving measures and rushed Jasiah to Kaweah Delta Hospital. Appellant told the police officer on the scene Jasiah had fallen off the bed while she was getting baby wipes from the bathroom. She also told him Jasiah was having breathing problems earlier in the day, but she thought that was normal. Jasiah was later transported to Valley Children’s Hospital, but succumbed to his injuries early the next morning.
Valley Children’s Hospital is now called Children’s Hospital of Central California.
Chest x-rays taken at Kaweah Delta showed multiple rib fractures, a fractured clavicle, and a partial collapsed lung. The pediatrician on call also noted Jasiah had a swollen and discolored scrotum. The pathologist who performed Jasiah’s autopsy concluded Jasiah died of respiratory arrest resulting from multiple blunt force trauma injuries to his abdomen and head. Jasiah’s internal injuries included rib fractures on the left side of his back, a one-inch laceration on his liver, bruises on the peritoneal (abdominal) lining and the surface of the intestines, a partial collapsed lung, and bruising on the inside of the left side of his scalp. The pathologist also noted Jasiah’s scrotum was discolored and enlarged, which could have been a result of trauma, early decomposition, or a collapsed lung.
Jasiah also evidenced injury to the part of the brain that is frequently injured when there is an acceleration or deceleration of the head, for example when the “head is traveling forward and it hits a solid object and immediately stops,” or when something strikes the head when it is stationary. No evidence, however, indicated Jasiah suffered from shaken baby syndrome. The injuries were consistent with having occurred within hours of Jasiah’s death, but could not have been caused by performing CPR. The amount of force required to inflict the injuries would have been “fairly moderate force,” which could be similar to the force exerted on people involved in car accidents.
Although appellant initially told police Jasiah rolled off the bed while she was in another room, she modified her story repeatedly while Officer Greg Byerlee interviewed her at the police station shortly after Jasiah’s death. Appellant also told him Jasiah had fallen off the bed a week or two before the most recent incident. She had woken up from a nap with him and found him on the floor. That fall had caused a bruise. Appellant told Officer Byerlee she also had previously hit Jasiah. After doing so, she called her sister to come stay with her and the children to “make sure [she] wouldn’t do anything,” and more specifically so she wouldn’t “[h]it him.” Appellant also admitted that on one occasion she had pinched Jasiah’s nose to make him start crying, and on another occasion she had covered Jasiah’s nose for “less than two minutes,” until she saw “his face turn red.”
Appellant described her difficulties with Jasiah, telling Officer Byerlee that she hadn’t been ready for a second child, and that she wanted to get an abortion when she first found out she was pregnant with Jasiah. Her sister and Alex dissuaded her from doing so, a decision she did not regret. While she described the one year old as an “easy” baby, in contrast, she stated Jasiah “would cry a lot.” She received little help from Alex or Maria and told Officer Byerlee, “basically I raise [Jasiah and the one year old] myself.” The night before Jasiah died, appellant had been up all night because Jasiah had been crying “every less than 30 minutes” and she couldn’t get Alex to get up to help. She also had to take care of the one year old and was going “back and forth, back and forth” between the two children throughout the morning.
When Officer Byerlee confronted appellant with the fact that falling off the bed could not have caused Jasiah’s injuries, and that a one month old baby cannot roll over by him or herself, appellant admitted she hit Jasiah multiple times in the stomach and back with a closed fist. She also admitted she may have hit Jasiah farther up his torso and caused his broken clavicle, but was unsure since she had been hitting him with her eyes closed. Appellant was also unsure of how many times she hit him, but believed it was no more than two - once in the abdomen and then once in the back.
Sometime after hitting Jasiah in the back, appellant noticed he was having breathing problems. Even though it sounded like he was “grasp[ing] for air,” appellant thought it was normal because she didn’t think she had hit Jasiah that hard. Appellant put Jasiah down to sleep and went into the other room to watch television. She returned to feed him, then changed him, and then noticed Jasiah wasn’t breathing and called for help.
When Officer Byerlee asked appellant why she hit Jasiah, she stated, “[i]t’s ‘cause I don’t know, I just--I just didn’t want him.” She was also frustrated with his inconsolable crying. Appellant told Officer Byerlee she started crying after she hit Jasiah, “‘'cause I didn’t know why I did that. I didn’t think I would go that far,” and she also “looked at myself in the mirror and I was thinking, like, this--I was really saying to myself, I was thinking, ‘this ain’t me. Why am I doing this?’” Appellant told Officer Byerlee that at the hospital where Jasiah had been taken, she “was thinking I should have just hung myself.”
Appellant was charged with one count of murder (§ 187, subd. (a)), and one count of child-abuse homicide. The evidence at trial included medical evidence concerning Jasiah’s injuries, appellant’s video-recorded statements at the police station, and trial testimony from appellant, her sisters, and Dr. Diana Barnes, a clinical psychologist and expert on postpartum depression and psychosis.
Appellant’s younger sister, Sara, testified that “no one would help [appellant] at the house because she would have to watch the [two year old] and the baby at the same time and it would put, like, a lot of stress on her.” Appellant would visit Sara with the children frequently or have Sara over to spend the night. After Jasiah’s birth, Sara noticed appellant started pulling out her hair. Sara became concerned about appellant’s behavior about two and a half weeks after Jasiah’s birth, after appellant confided in her that she was having dreams of hurting Jasiah. Appellant’s older sister, Monique, testified that at the hospital after Jasiah was born, appellant only commented she was tired and made no comments about the baby.
Dr. Barnes testified as to the general nature of postpartum depression, the way it affects a patient’s brain chemistry, general signs and symptoms, diagnostic tools, risk factors, and treatment. Having reviewed appellant’s taped interview and the police, medical and autopsy reports, and personally interviewed and assessed appellant, Dr. Barnes believed appellant exhibited a number of risk factors that increased the likelihood of a pregnancy triggering postpartum depression. These factors included untreated depression in a prior pregnancy, an absence of support at home, changes in behavior, anxiety evidenced by hair pulling, and sleep deprivation. Based on appellant’s risk factors and the other case information Dr. Barnes reviewed, she opined she would expect to see someone in similar circumstances suffering from postpartum depression, as exhibited by lethargy, detachment and emotional disconnection from the infant, irritability, erratic behavior, lack of self-care, exhaustion, difficulty handling everyday routines, and a lack of attunement or response to the baby.
After asking for, and receiving, clarification from the court about the murder charge and second degree murder, the jury found appellant guilty of the lesser included offense of involuntary manslaughter and also of child abuse homicide. The jury also made three special findings: 1) it was true that Jasiah was particularly vulnerable; 2) it was not true that the crime involved great violence, great bodily harm, threat of bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness; and 3) it was not true that appellant took advantage of a position of trust or confidence to commit the offense. After the guilt phase, three jurors sent letters to the court expressing their dismay over appellant’s possible sentence for child abuse homicide.
At the sentencing hearing, Dr. Barnes testified she believed appellant was “suffering from a very severe postpartum depression and could possibly have had a psychotic episode that precipitated what happened.” She based this opinion on a number of factors, including: statements from Alex and Maria about appellant’s high levels of irritability and behavioral changes indicating appellant’s indifference to her personal care, appellant’s description of feeling disconnected from her second pregnancy, appellant’s post-pregnancy sleep deprivation and carelessness about her appearance, and appellant’s description of being overwhelmed and exhausted.
Dr. Barnes noted that diagnostic criteria of depression included “changes in sleep and appetite,” “a feeling of not being able to cope,” “intrusive images … usually of a destructive nature about harm coming to either the individual, the mother, or her infant,” and “suicidal ideation.” Dr. Barnes further noted that diagnostic criteria of postpartum psychosis included “a sense of depersonalization,” where the mother would “feel kind of removed as though she’s not part of the experience but on the outside of the experience observing, looking in.”
As applied to appellant, Dr. Barnes observed that she “repeatedly said that while she was hitting the child, she was -- felt disconnected from what was going on, as though this was not conscious.” Dr. Barnes focused on two facts indicating depersonalization or a dissociative episode. First, appellant had looked into a mirror at one point after she had hit Jasiah, and had not recognized herself. Second, appellant had closed her eyes while hitting Jasiah. Appellant had described to her a lack of control, “that she couldn’t stop herself even though she wanted to.” Appellant also had described her relationship with Jasiah as disconnected. Although appellant was feeding, changing, and taking care of the baby, she was “feeling absolutely no connection with this infant.”
Appellant also testified at the sentencing hearing, admitting for the first time that she abused Jasiah repeatedly prior to the fatal assault. The prosecutor questioned her: “You testified that you didn’t want to hurt Jasiah, but you were abusing him over and over in his 35 days of living, weren’t you?” Appellant answered simply, “Yes.” In another exchange with the prosecutor, appellant indicated for the first time she may have hit Jasiah more than twice on the day he died. Prosecutor: “You hit him so many times you don’t know how many times you were hitting him?” Appellant: “Well, why would I be counting?”
The trial court made a number of comments before making its final ruling on the sentence. It believed Dr. Barnes’s testimony to be objective and persuasive. It believed appellant was suffering from postpartum psychosis. It believed the crime was unlikely to occur again, and appellant had a good prospect of rehabilitation. The court made the distinction, however, that appellant’s postpartum psychosis was a reason for her conduct, not an excuse. After finding appellant had intended to inflict great bodily harm, the court felt it had “no alternative” but to sentence appellant to 25 years to life for child abuse homicide, with the possibility of parole. The court also sentenced appellant to three years for involuntary manslaughter, but stayed the sentence pursuant to section 654.
Discussion
Appellant contends her sentence of 25 years to life for assault resulting in the death of a child under eight years of age violates the federal and state constitutional prohibitions against cruel and/or unusual punishment. Appellant challenges the constitutionality of the statutory provision as applied to her in particular and requests this court modify her conviction and consequently her sentence to one that “is constitutionally proportional to her individual culpability.”
I. Cruel or Unusual Punishment
The Eighth Amendment of the United States Constitution prohibits infliction of “cruel and unusual punishments.” Article I, section 17 of the California Constitution prohibits infliction of “cruel or unusual punishment.” From an analytic perspective, the distinction in wording makes no difference. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fn. 7.) A punishment is cruel or unusual if it is “‘so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon), quoting In re Lynch (1972) 8 Cal.3d 410 (Lynch).)
“Lynch suggests three areas of focus [for a disproportionality analysis]: 1) the nature of the offense and the offender; 2) a comparison with the punishment imposed for more serious crimes in the same jurisdiction; and 3) a comparison with the punishment imposed for the same offense in different jurisdictions. [Citation.] Disproportionality need not be established in all three areas.” (People v. Norman (2003) 109 Cal.App.4th 221, 230 (Norman).) These techniques are not mechanically applied: “if the latter two Lynch techniques indicate disproportionality, the first test is nonetheless dispositive. [Citations.]” (People v. Gayther (1980) 110 Cal.App.3d 79, 90; see also People v. Wingo (1975) 14 Cal.3d 169, 180.)
“[A] punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant’s individual culpability.” (Dillon, supra, 34 Cal.3dat p. 480.) Appellant does not dispute that the punishment is constitutionally valid when considered in the abstract, but contends it is unconstitutional as applied to her. Relying on factors relating to her individual culpability, appellant contends that “condemning a previously blameless juvenile mother to life in prison for a general intent crime caused by postpartum psychosis is so disproportionate to her individual culpability that it constitutes cruel and unusual punishment.”
(See People v. Lewis (2004) 120 Cal.App.4th 837, 856 (Lewis); People v. Albritton (1998) 67 Cal.App.4th 647, 660; Norman, supra, 109 Cal.App.4th at p. 230 [“Since a sentence of life without parole is not cruel and unusual punishment for certain nonviolent offenses, then, a fortiori, a sentence of 25 years to life is not cruel and unusual for the death of a child under age eight.”].)
“To determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant’s involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant’s acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality and mental capabilities. [Citation.]” (People v. Hines (1997) 15 Cal.4th 997, 1078.) We apply these criteria here and conclude that appellant's sentence withstands constitutional scrutiny.
1. Nature of the Offense
“The manifest purpose of section 273ab is ‘to protect children at a young age who are particularly vulnerable.’ [Citation.]” (People v. Wyatt (2010) 48 Cal.4th 776, 780 (Wyatt).) Here, Jasiah was a defenseless one month old infant who was totally reliant on appellant for care. Alone with him, appellant hit Jasiah at least twice with her fists with force great enough to break two of his ribs and his clavicle, lacerate his liver, and partially collapse his left lung. He had a bruise on the inside of his skull and brain injuries frequently associated with sudden acceleration or deceleration, such as a head being struck against a stationary object.
While appellant’s motives for hitting Jasiah may have been influenced by postpartum depression or psychosis, this was still a brutal and fatal attack on an infant by the one person who was most responsible for his welfare. The facts relating to the offense fail to indicate the punishment is unconstitutionally disproportionate to the offense, given the manner in which it was committed and the tragic consequences. (See Norman, supra, 109 Cal.App.4th at p. 230.)
2. Nature of the Offender
Appellant emphasizes her youth, her clean criminal record, and her diminished mental state caused by postpartum psychosis to support her claim that a 25-years-to-life sentence for child abuse homicide is cruel or unusual punishment.
1. Age
Appellant urges this court to find precedent in the Dillon case, however, the trial judge in Dillon believed the 17-year-old defendant there to be “less than 17 in many respects,” and immature emotionally and intellectually both at the time he committed the offense and at the time of his sentencing. (Dillon, supra, 34 Cal.3d at p. 486.) The Supreme Court modified Dillon’s conviction from first degree murder to second degree murder in part because Dillon was “an unusually immature youth.” (Id. at p. 488.)
While appellant was also 17 years old at the time of the killing, the record fails to indicate she was immature for her age. Rather, she was an experienced mother and “the good one out of my sisters.” Dr. Barnes believed appellant exhibited “tremendous insight” into her situation, and “understood that there was something going on here that was out of character with the way she understood herself to behave in normal circumstances.” We find no evidence appellant was unusually immature here.
2. Prior Criminal History
Although appellant had no prior criminal record, the evidence suggests that over the course of 35 days, appellant’s conduct escalated from frustration to uncontrollable violence resulting in death. Appellant testified at the sentencing hearing that she had abused Jasiah repeatedly over the course of his 35 day life. She told Officer Byerlee she had pinched Jasiah’s nose to make him start crying, and covered his nose to make him stop crying on occasion. She knew she might hurt him, enlisting her sister to help prevent her from doing so. Finally, she hit Jasiah so hard and so many times that he died of his injuries.
3. Mental State
The trial court believed appellant suffered from postpartum psychosis at the time of the offense. This is not an excuse, however, for her behavior such that her sentence now constitutes cruel or unusual punishment. Appellant knew what she was doing was wrong, and had the ability to control her actions sufficiently to call for help and start CPR. She also had the presence of mind to lie repeatedly to emergency personnel and the police when questioned. While this behavior could have been symptomatic of a postpartum psychotic break or a dissociative episode, the jury, aware of this possibility, still determined appellant’s actions and behavior met all elements of the crime, including that appellant acted willfully.
We conclude that neither the facts relating to the offense nor appellant’s personal characteristics sufficiently support defendant’s claim that her sentence was unconstitutionally excessive. While the punishment is harsh, it is not so disproportionate to her individual culpability that it “shocks the conscience and offends fundamental notions of human dignity.” (Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.)
II. Scope of Sentencing Discretion
Although not unconstitutional, appellant’s sentence nevertheless must be vacated because it is unclear from the record that the trial court was aware of the full scope of its discretion in sentencing. We cannot say, based on the record before us, that had the court been aware of the extent of its discretion in granting probation, appellant would have received the same sentence.
As the respondent points out in its response to our request for supplemental briefing, the trial court is presumed to understand and properly apply the law. However, the presumption is not unrebuttable and will fail in the face of contrary evidence. (See Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) The existence of contrary evidence, however, does not mean the court would have or should have acted differently. What it does mean is that we cannot conclude that the court applied the proper standard in reaching the conclusion in question. This is precisely the problem in the present case.
Neither party raised this issue in their initial briefing. We advised the parties, pursuant to Government Code section 68081, that we proposed to direct the court to undergo a new resentencing hearing for the reasons set forth above and we invited briefing on the issue.
In rendering its sentencing decision, the court made a number of statements as to its reasoning. It was frustrated with the decision it felt it had between “a very severe sentence and one that this Court feels is not appropriate under the circumstances.” The court then stated its finding that “the definition of malice has been met under the ruling in the Lewis case which sets forth the intent to do great bodily harm,” immediately followed by its statement that “the state prison commitment is a harsh sentence, but the Court has no alternative. If the Court did have an alternative, I would surely be looking at less time in custody.” These statements support the conclusion that the court did not recognize that it did have an alternative.
In Lewis, the court found that under section 1203, subdivision (e)(3), there was a presumptive ineligibility for probation where a defendant was found to have intended to cause great bodily injury or torture. (Lewis, supra, 120 Cal.App.4th at p. 853, 854.) This presumption, however, has no application “in unusual cases where the interests of justice would best be served if the person is granted probation.” (§ 1203, subd. (e).) Lewis did not say that where malice is found, the person is ineligible for probation. What Lewis said, was that if malice was found, it placed the case within the provisions of section 1203, subdivision (e)(3), (Lewis, supra, 120 Cal.App.4th at p. 853), which would only allow probation in a finding of an unusual case. That is the issue here. The record is silent as to whether or not the trial court here considered the interests of justice in this case, despite articulating facts that under California Rules of Court, rule 4.413(c), would support a determination of an unusual case. There is a considerable difference between a young woman--a child herself at the time--suffering from postpartum depression, and an individual who beats to death a small child out of frustration. The law does not preclude drawing such a distinction. That is the purpose of judicial discretion.
While the trial court here perhaps understood that probation was an option, it does not appear from the record that the court considered the full scope of its discretion in granting probation, including its ability to impose conditions on probation, such as imprisonment “in a county jail for a period not exceeding the maximum time fixed by law in the case.” (§ 1203.1, subd. (a)), subject to appellant’s knowing and intelligent waiver of the one-year limitation on confinement in county jail set forth in section 19.2. (People v. Bailey (1983) 140 Cal.App.3d 828, 831.)
“‘A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.’ [Citation.] Where the trial court decides the case by employing an incorrect legal analysis, reversal is required regardless of whether substantial evidence supports the judgment. [Citation.]” (Dyer v. Department of Motor Vehicles (2008) 163 Cal.App.4th 161, 174.)
“‘[A] ruling otherwise within the trial court's power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]’ [Citation.] ‘Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citation.]’ [Citation.] Where, as here, a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination. [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
While we express no opinion on what the trial court should do on remand, we are unable to say that the only proper exercise of the trial court’s discretion would be to sentence appellant to a term of 25 years to life. Accordingly, the error requires that we reverse the sentencing judgment and remand the matter to the trial court to again hear and determine the sentencing using the correct standard. (See People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
We also express no opinion as to the applicability of section 1385, which permits a court to order an action (or part of an action) dismissed in furtherance of justice. (See People v. Hernandez (2000) 22 Cal.4th 512, 521-522.)
In light of the fact the case must be remanded for resentencing, we need not order correction of the abstract of judgment to correct a clerical error noted by appellant.
Disposition
The judgments of conviction are affirmed. The sentence is vacated and the matter is remanded for resentencing in accordance with the views expressed in this opinion.
WE CONCUR: CORNELL, J., DAWSON, J.