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People v. Torres

Court of Appeals of California, Fourth Appellate District, Division One.
Jul 29, 2003
No. D038939 (Cal. Ct. App. Jul. 29, 2003)

Opinion

D038939.

7-29-2003

THE PEOPLE, Plaintiff and Respondent, v. ADRIAN TORRES, Defendant and Appellant.


A jury convicted Adrian Torres of assault resulting in the death of a child under eight years of age (Pen. Code, § 273ab). The court sentenced him to an indeterminate prison term of 25 years to life. Torres contends: (1) the court erred by refusing to allow him to present all of his witnesses and evidence in support of his new trial motion and also erred in concluding his counsel provided effective assistance; and (2) his sentence of 25 years to life is cruel and unusual. We affirm.

All statutory references are to the Penal Code unless otherwise indicated. Section 273ab provides in part: "Any 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 childs death, shall be punished by imprisonment in the state prison for 25 years to life."

FACTUAL AND PROCEDURAL BACKGROUND

In November 1999, Torres was living with his girlfriend, Jannette Sheldon, and her 15-month-old son Vyncent from a prior relationship. On the morning of November 28, 1999, Sheldon was at work and Torres was scheduled to bring Vyncent to Sheldons mothers house at 8:00 a.m. Shortly before 9:00 a.m., Torres called Sheldon at work to tell her Vyncent had stopped breathing and was shaking. Sheldon told him to call 911 and then to go to the hospital. Torres drove Vyncent to a nearby fire station, where an emergency medical technician found Vyncent limp and his face a bluish purple color. The fire station team began CPR and transported Vyncent to Tri-City Hospital where he died the next morning.

Pediatrician Kathleen Dully examined Vyncent at the hospital while he was on life support. She found severe brain swelling and numerous large and small retinal hemorrhages across the back of his left eye, indicative of a high velocity type head injury. Dr. Dully later diagnosed Vyncent with abusive head trauma after reviewing his autopsy results revealing he had fresh intracranial bleeding and a significant depressed skull fracture. According to Dr. Dully, a child having a three to four-foot fall onto a linoleum surface would not sustain retinal hemorrhages or suffer such internal brain injuries. At trial Dr. Dully testified that Vyncents clinical history showed that before his death, he had had vomiting and diarrhea and possibly a couple of "spells." Dully observed Vyncents pediatrician noted a positive family history of epilepsy (Vyncents grandmother) and also that Vyncent had sustained head trauma in September 1999, leading to his pediatrician ordering an electroencephalogram (EEG) which was found to be normal. Despite this history, Dully concluded based on her examination and review of Vyncents medical records and autopsy reports that Vyncents injuries were not accidentally inflicted; that his severe brain injury, subdural bleeding and retinal hemorrhages would not logically follow from a short fall from the childs feet.

The deputy medical examiner similarly testified, based on the hemorrhages she found and the large depressed skull fracture as well as her training and experience, that Vyncent died of nonaccidental blunt force head injuries. She also found the injuries inconsistent with Vyncent falling down from a standing position to a linoleum floor, and also inconsistent with a four-to-six-foot fall from a shopping cart or any other accident in a household situation. She concluded Vyncents death was a homicide.

Torres did not testify at trial. In his defense he presented friends, relatives and coworkers who attested to his good character and his conduct as a loving father to his own two children as well as a patient, responsible caretaker to Vyncent, even more so than Sheldon. Another witness testified about Torress volunteer work for the Oceanside Little League, and described Torres as a patient, committed umpire to the children.

After the jury returned its verdict convicting Torres of violating section 273ab, Torres moved for a new trial claiming in part he received ineffective assistance from his counsel, Kenneth Elliott. He argued Elliotts failure to adequately investigate, develop and present a potentially meritorious defense - that Vyncents injuries could have been the result of an accidental fall from a shopping cart - denied him a fair trial. More specifically, Torres argued Elliott waited until he was in trial to seek further information from the criminal defense community that would have helped him prepare an accident defense; he failed to develop facts in support of such a defense including as to Vyncents prior medical history and preexisting signs of brain swelling although witnesses had made him aware of those facts; and he did not consult with pathologists or other experts that could have aided him in establishing how Vyncents medical history and the circumstances could have resulted in his accidental death.

In support of the motion, Torres presented his own declaration in which he stated he had never been in trouble before and, due to his unfamiliarity with the system, the only reason he did not testify was because Elliott so advised him. Had he testified, Torres would have told the jury that on November 28, 1999, he had taken Vyncent to the Ralphs market in Oceanside where Vyncent fell from a standing position in a shopping cart after it began to roll. According to Torres, Vyncent cried and made grunting noises but did not exhibit external signs of injury. After Torres took him home, Vyncent had a seizure. The remaining events of that day were presented at trial. Torres also submitted a declaration from his new counsel reciting her post-trial investigation into a possible accident defense and attaching articles written by John Plunkett, M.D. pertaining to head injuries from short-distance falls and shaken baby syndrome. Torres submitted another declaration from jury consultant Toni Blake, who stated she specialized in shaken baby cases and consulted on over 40 such cases in the past four years. Blake averred that Elliott had contacted her at the start of trial, told her he was dealing with a shaken baby case involving a fracture and a short fall, and asked for information to assist him in cross-examining the Peoples experts. She provided Elliott with articles and gave him the names of additional experts in the field, and also informed him the sole expert with whom he had consulted, pediatric radiologist Saskia Hilton, was inappropriate for the case. According to Blake, Elliott responded he had received all the funds he would get for experts and in any event it was too late to retain additional experts. He also told her that while he had some literature, he had not spoken to any other attorneys in town who had handled similar cases. She stated that from her brief conversations with him, she felt Elliott "may have been ill prepared scientifically, as far as experts go, to try this case." In Blakes opinion, Elliott did not consult the right experts whose names would have been easy to obtain from the criminal defense bar, and his failure to do so hampered his ability to get the type of information that has been used to successfully defend such cases. Finally, Torres submitted reports of interviews with one juror and several witnesses and letters from Jan Leetsma, M.D. and Thomas Schweller, M.D.

These reports were by defense investigators who had conducted post-trial interviews with juror Vanessa Beebe and witnesses Maria Lourdes, Eric Rollason, Lisa Schram, Patricia Elena Romero, Torress father Carlos Torres, Sr. and Torress mother, Santa Torres. Lourdes, Rollason and Schram had testified on Torress behalf at trial.

Dr. Leetsma summarized the medical and autopsy findings, noted the possibility that Vyncent fell from a shopping cart, and observed the existence of publications illustrating that major head injuries in children could occur from relatively short falls. Dr. Leetsma stated it was not possible from the information at hand to conclusively determine if Vyncents injuries were inflicted; the doctor could only conclude it was possible Vyncents injuries were not the result of inflicted trauma. Dr. Schweller reviewed Vyncents pediatric office records; records of Vyncents treatment for a laceration to his face occurring in early September 1999; the EEG tracing taken of Vyncent on November 12, 1999, and other related medical records; and medical records and reports prepared on and after November 28, 1999. In part, he stated a skull fracture of the type Vyncent suffered could occur from a backward fall onto a concrete floor, and observing a normal EEG finding would not rule out the possibility of an underlying seizure disorder, he said it "would certainly not be out of the ordinary to expect a seizure to occur after a fall of sufficient severity to cause a skull fracture of this magnitude." According to Dr. Schweller, the presence of the fracture itself could not determine whether the event was accidental or non-accidental, and there was no way to determine that Vyncent was shaken or that there was shaken impact based on intracranial pathology alone. Dr. Schweller observed some disagreement among ophthalmologists about whether retinal hemorrhages were indicative of shaking. He concluded: "If these matters were not addressed at the time of the trial of the alleged perpetrator of an injury to this child, then there was a disservice to this defendant."

In response to Torress motion, the People objected on hearsay and relevance grounds to the courts consideration of the defense investigator reports, Dr. Leetsmas letter, the articles attached to his newly appointed counsels declaration and any testimony from Leetsma or any other doctors regarding their opinions as to inflicted versus accidental injuries.

The trial court held an evidentiary hearing on the motion in which Elliott testified about his investigation, his consultation with Hilton as to the viability of an accident defense, and his advice to Torres about whether he should testify at trial. Elliott testified he had located Dr. Hilton after speaking with his wife, a juvenile dependency attorney, and two other attorneys. They discussed Hiltons experience as an expert on behalf of parents accused of intentional harm and the fact she had authored book chapters on the issue of distinguishing accidental versus intentionally inflicted injuries. He had decided to forego any further investigation after considering the opinions of the Peoples expert Dr. Duffy, the medical examiners report, and after meeting with Dr. Hilton, who had reviewed Vyncents medical history and reports prepared at the time of his death and concluded that his injuries were suffered as the result of physical abuse. Dr. Hilton had found evidence of a very serious blow to Vyncents midsection causing a pancreatic injury, followed by violent shaking causing the retinal hemorrhages, followed by his head being slammed against a something hard more than once, indicative of severe abuse. Although Dr. Hilton advised Elliott a fall from a shopping cart might have caused the kind of skull fracture Vyncent suffered, she concluded it did not happen that way in this case. Elliott did not feel a professional obligation to seek out additional medical opinions after three experts had reached relatively the same conclusions. After discussing the matter with Dr. Hilton, Elliott did not consider preparing a defense based on Vyncents death being caused by a prior subdural hematoma or seizure-like disorder.

As for Blake, Elliott testified he had spoken with her shortly before trial and she had given him some information to assist him in cross-examining the Peoples experts, as well as the names of some other experts. According to Elliott, he had already obtained most of the literature Blake gave him from Hilton, his defense investigator, and his own personal investigation. Elliott further testified he and his defense investigator met with many of Torress family members and other percipient witnesses before trial and elicited information from them, including favorable information about unusual behavior exhibited by Vyncent in the weeks before his death, and unfavorable information about Torress bad temperament.

Elliott testified he had advised Torres not to testify for several reasons. Torres had changed his story about the events surrounding Vyncents death when he spoke with police, first stating Vyncent had fallen on the kitchen floor, and later adding the earlier fall from the shopping cart. Torres did not call 911 in response to Sheldons request that he do so. Elliott felt these facts significantly compromised Torress credibility and would have been devastating to him on cross-examination. Elliotts investigation had uncovered evidence of a loud fight between Torres and Jannette the night before Vyncents death with Torres slamming doors and skidding away in their car with Jannette and Vyncent inside. It also revealed the fact Torress wife had obtained a temporary restraining order against him after witnesses testified about specific instances of Torress bad temper, one in connection with his daughter when he picked her up by the arm and spanked her, sending her across the kitchen floor. Elliott himself felt Torress shopping cart story was not plausible based on the timing of Torress route from his house to the grocery store and the mechanics of how Vyncent purportedly fell. Based on these matters, Elliott advised Torres not to testify, but ultimately left the decision to him.

The court did not permit Torress new trial counsel to question Blake about her opinions; it only allowed her to use Blake to impeach Elliotts testimony. The court allowed Torress counsel to question Dr. Hilton about her expertise and conclusions. The court denied Torress request to present other medical expert witnesses (Drs. Plunkett and Schweller) whose testimony was offered to demonstrate Dr. Hilton lacked the necessary expertise, and his request to present testimony from Jean Brandl, a practicing criminal defense attorney on the issue of standard of care.

After considering the evidence and arguments, the court denied the motion, concluding Elliotts decisions during the course of trial were reasonable and informed. Torres unsuccessfully moved for reconsideration of the courts order. This appeal followed.

DISCUSSION

I. New Trial Motion - Ineffective Assistance of Counsel

Torres challenges the trial courts rulings on his new trial motion on both procedural and substantive grounds. First, he contends the trial court erred by refusing to permit him to present critical witnesses and evidence on his claim that his counsel did not adequately investigate the viability of an accident defense. Second, he argues the court erred in concluding his counsel provided him effective representation.

Both of these questions require we first set out the principles governing a claim of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel on a motion for new trial, the defendant has the burden to "show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, [the defendant] must establish that counsels acts or omissions resulted in withdrawal of a potentially meritorious defense" (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal. Rptr. 732, 590 P.2d 859, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, 864 P.2d 40, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, 952 P.2d 673) or "his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsels failings." (People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal. Rptr. 855, 659 P.2d 1144 (Fosselman ); People v. Andrade (2000) 79 Cal.App.4th 651, 660-661; see also People v. Williams (1997) 16 Cal.4th 153, 214-215, 940 P.2d 710.) "[A] defendant can reasonably expect that before counsel undertakes to act, or not to act, counsel will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation." (In re Fields (1990) 51 Cal.3d 1063, 1069, 275 Cal. Rptr. 384, 800 P.2d 862.)

In the context of a claim that counsel has withdrawn a defense, our Supreme Court has stated: " It is sufficient for the present purpose to observe that the defense was potentially meritorious, and that petitioner was denied an adjudication on the matter because of his counsels inadequate factual and legal preparation. " (People v. Shaw (1984) 35 Cal.3d 535, 541, 198 Cal. Rptr. 788, 674 P.2d 759, quoting In re Hall (1981) 30 Cal.3d 408, 434, 179 Cal. Rptr. 223, 637 P.2d 690.) A crucial defense is not necessarily one that would result inexorably in a defendants acquittal. (People v. Shaw, at p. 541.) With respect to investigations, " counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsels judgments. " (In re Jones (1996) 13 Cal.4th 552, 565, 917 P.2d 1175, quoting Strickland v. Washington (1984) 466 U.S. 668, 691, 80 L. Ed. 2d 674, 104 S. Ct. 2052.)

A. Evidentiary Challenges

We begin with Torress contention that the court erred by denying his request to present certain evidence and witnesses on his new trial motion. Here, those rulings were made in context of the courts consideration of counsels asserted incompetence for depriving Torres of a potentially meritorious defense. Generally, we review a trial courts evidentiary rulings for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201, 926 P.2d 365.) That standard does not change where the evidentiary rulings are made in connection with the courts determination of a new trial motion. (See People v. Williams (1988) 45 Cal.3d 1268, 1318, 248 Cal. Rptr. 834, 756 P.2d 221 [determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears].)

Before deciding this question, we address a threshold inquiry: whether Torres was required to support his new trial motion on this ground with competent, admissible evidence. We conclude it was his burden on the motion to present such evidence either (1) establishing facts demonstrating incompetence, or (2) demonstrating the existence of material disputed fact questions relevant to the ineffective assistance claim requiring an evidentiary hearing. In Fosselman, supra, 33 Cal.3d 572, our Supreme Court held a court should consider a defendants new trial motion claiming ineffective assistance of counsel, a ground not expressly enumerated in section 1181, if the motion permits it to do so. In reaching its decision, the court recognized reviewing courts may only reverse convictions on this ground if the record on appeal affirmatively discloses counsel had no rational tactical purpose, and absent that, the "defendant [is] relegated to habeas corpus proceedings at which evidence dehors the record may be taken to determine the basis, if any, for counsels conduct or omission. (Fosselman, at pp. 581-582.) The court then concluded the analysis could be made in connection with a new trial motion: "Penal Code section 1181 enumerates nine grounds for ordering a new trial. It is true the section expressly limits the grant of a new trial to only the listed grounds, and ineffective assistance is not among them. Nevertheless, the statute should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law. Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. [Citations.] The Legislature has no power, of course, to limit this constitutional obligation by statute. [Citation.] It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsels effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so." (Id. at pp. 582-583.)

Just as a habeas corpus petition alleging ineffective assistance should contain more than conclusory allegations and include "copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations" (People v. Duvall (1995) 9 Cal.4th 464, 474, 886 P.2d 1252), a new trial motion asserting such a claim on the basis of facts or events that are not apparent from the record of the underlying proceedings should be supported by admissible evidence. (E.g., People v. Dennis (1986) 177 Cal. App. 3d 863, 873, 223 Cal. Rptr. 236 [a defendant moving for a new trial on the ground of ineffective assistance of counsel is required to establish by affidavit, oral testimony or reference to the trial record that his trial counsel was ineffective in some manner and that counsels ineffectiveness prejudiced him]; People v. Jackson (1986) 187 Cal. App. 3d 499, 507, 231 Cal. Rptr. 889 [motion for new trial on basis of counsels failure to challenge police photo line-up procedures denied for defendants failure to present affidavits or testimony indicating there might have been improper police conduct]; People v. Bess (1984) 153 Cal. App. 3d 1053, 1057, 1061-1062, 200 Cal. Rptr. 773 [on new trial motion defendant submitted affidavits revealing uncalled witnesses identified in police reports had provided information tending to undermine identification of the defendant as the perpetrator of a bank robbery].) Where the affidavits establish a hearing is necessary to resolve material disputed issues of fact, the trial court should conduct an evidentiary hearing on the matter. (See People v. Dennis, supra, at p. 872 [in circumstances where claims of ineffective assistance are unresolvable on the record, the California Supreme Court has expressed a preference for an evidentiary hearing where the matter may be fully explored].)

Urging he should have been permitted to present all of his witnesses, Torres in his reply brief points to case law emphasizing that "in the presentation, hearing, and disposal of [a new trial] motion the parties and the court are engaged in a trial." (People v. Sarazzawski (1945) 27 Cal.2d 7, 17, 161 P.2d 934.) In Sarazzawski, the court said:

"There can be no such thing as a legal trial, unless both parties are allowed a reasonable opportunity to prepare to vindicate their rights." (Ibid.) But just as a defendant may not during a trial on his or her guilt, a defendant may not base a new trial motion on evidence that does not tend to prove the components of an ineffective assistance claim or on testimony from witnesses lacking proper foundation or qualifications for their opinions.

We evaluate Torress procedural challenge to the courts exclusion of certain evidence under these standards, and in light of the relevant considerations in assessing a claim of incompetence based on failure to investigate or withdrawal of a potentially meritorious defense.

1. Testimony of Jury Consultant Toni Blake

The court excluded the substantive opinions of Toni Blake, a jury consultant who assists defense lawyers in preparing for trial in shaken baby cases, on the ground it would not be assisted in determining Elliotts competence by opinions from a person who was neither a practicing litigator nor a medical doctor. The court declined to take Blake on voir dire to assess her experience or qualifications. We are compelled to conclude the court erred by so doing.

The question of an experts qualifications is a matter addressed in the first instance to the sound discretion of the trial court. (Brown v. Colm (1974) 11 Cal.3d 639, 646-647, 114 Cal. Rptr. 128, 522 P.2d 688.) A court will be deemed to have abused its discretion if the witness has disclosed sufficient knowledge of the subject to entitle his opinions to go before the jury. (Id. at p. 647; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39, 210 Cal. Rptr. 762, 694 P.2d 1134.)

As indicated, in assessing a claim of ineffective assistance of counsel on the basis of counsels failure to make particular investigations or introduce particular items of evidence, a key consideration is that the omission or omissions were not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make. (People v. Frierson (1979) 25 Cal.3d 142, 158, 158 Cal. Rptr. 281, 599 P.2d 587.) "This showing demonstrates that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. " (People v. Williams (1988) 44 Cal.3d 883, 936-937, 245 Cal. Rptr. 336, 751 P.2d 395 (Williams).)

Although Blake was concededly neither a practicing attorney nor a medical doctor, her declaration revealed possible experience and training that could have qualified her to testify about what decisions and investigation an experienced, criminal defense attorney would make in preparing for trial on a shaken baby case or a case involving a fall from a short distance. Indeed, Elliott himself contacted Blake before trial, in the apparent belief her knowledge and experience would be useful to him in preparing for cross-examination. The courts ruling on her testimony disregarded the principle that training and experience, not merely education, may provide the basis for an experts qualifications. Blakes testimony could have shed light on not only what actions Elliott took to obtain evidence supporting an accident theory, but also what information was known to the criminal defense community in general. Thus, her testimony could have been relevant to show what further action, if any, competent defense counsel should have taken in a case involving a claim that Vyncents fatal injuries were suffered from an accidental fall from a short distance. (See, e.g., In re Scott (2003) 29 Cal.4th 783, 818-819; In re Marquez (1992) 1 Cal.4th 584, 594, 822 P.2d 435 [Supreme Court sought findings from referee at habeas proceeding as to not only what actions trial counsel took to investigate whether the defendant was a juvenile at the time of the crimes but also "what further action, if any, competent counsel would have undertaken to obtain and present evidence concerning defendants age"]; In re Fields (1990) 51 Cal.3d 1063, 1073, 275 Cal. Rptr. 384, 800 P.2d 862 [on habeas corpus hearing defendant permitted to introduce evidence from criminal law specialist who testified about the type of inquiry required to conduct a reasonable investigation of a mental state defense].) There was simply insufficient information for the court to reject Blakes testimony as a qualified expert witness on the issue of Elliotts competence as trial counsel.

Evidence Code section 801, subdivision (a) provides that an experts opinion is admissible when "related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." Thus, expert evidence is only properly excluded where it would add nothing to a jurys common fund of information. (People v. Stoll (1989) 49 Cal.3d 1136, 1154, 265 Cal. Rptr. 111, 783 P.2d 698.) Evidence Code section 720, subdivision (a) provides in part: "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." Additionally, an expert witness is permitted to give opinion testimony that "embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.)

Nevertheless, we conclude the courts error in excluding Blakes opinions was harmless under the applicable standard articulated in People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 (Watson). Under article VI, section 13 of the California Constitution, error in the admission or exclusion of evidence warrants reversal of a judgment only if an examination of "the entire cause, including the evidence," discloses the error produced a "miscarriage of justice." (People v. Breverman (1998) 19 Cal.4th 142, 173, 960 P.2d 1094 (Breverman).) Article VI, section 13 of the California Constitution eliminated the prior appellate presumption that any substantial trial error causes a miscarriage of justice. (Breverman, at p. 173, citing People v. Cahill (1993) 5 Cal.4th 478, 853 P.2d 1037.) Under the Watson harmless error test, "a miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, at p. 836; see also Breverman, at p. 174.) As we explain more fully below, the courts ultimate ruling on the new trial motion was based on considerations involving Elliotts tactical decisions on matters other than just the expert opinions - one of many reasons he elected against presenting the shopping cart defense was to avoid exposing Torres to highly damaging cross-examination, both as to his credibility and his history of violent behavior. Because we conclude below that the courts factual findings are supported by substantial evidence and that it ultimately did not abuse its discretion in its ruling denying Torres a new trial, we cannot say the courts exclusion of Blakes testimony at the new trial hearing resulted in a miscarriage of justice.

2. Testimony of Drs. Plunkett and Schweller

At the new trial hearing, Torress counsel sought to present the testimony of Drs. Plunkett and Schweller on an offer of proof that one of those experts would refute Dr. Hiltons finding that Vyncent suffered a pancreatic injury and further, that either or both would provide the medical support for a theory that Vyncents head injuries could have resulted from a short fall from a shopping cart. Counsel argued a main reason for Elliotts advice that Torres should not testify was the absence of medical support for the shopping cart story. The court refused to consider the additional medical testimony of Drs. Plunkett and Schweller on the ground testimony merely refuting Dr. Hiltons opinion would not assist it in deciding whether Elliott adequately investigated the possibility of presenting an accident defense.

In part, the court reasoned: "If the court accepts as an offer of proof that you have a doctor available who would disagree, for example, with Dr. Hiltons opinion that these injuries caused Vyncent were nonaccidental, then isnt that really all that - the fact of exactly what testimony would have come in, isnt that really what youre attempting to present? [P] Were not here to relitigate the issue. Its just to decide whether or not Mr. Elliott should have pursued this other line of medical inquiry." In response to Torress counsels argument that Elliott judged Torress credibility without sufficient medical evidence, the court stated: "[Elliott] said even Dr. Hilton told him that there could be circumstances where in a short fall a baby could get a fracture, so that theres really no dispute in the record. And I think even in reviewing my notes Dr. Dully gave that opinion during the course of the trial. [P] Really, that wasnt the issue of whether or not there are any reported cases. The issue is whether that was consistent with the specific evidence in this case and what [Elliotts] obligations were. [P] So I guess Im inclined to say at this time that I do not feel that additional medical evidence on this point would be of assistance to the court. What the court needs to evaluate is whether or not a competent medical expert was sought out and whether [Elliott] consulted a competent medical expert. In a circumstance where he did get an opinion, if the court finds that to be a competent medical opinion, whether the law requires him to go further."

The court did not abuse its discretion in refusing to consider additional medical opinions from Drs. Plunkett and Schweller. First, their opinions were not presented by way of competent evidence, as they should have been in connection with Torress motion for new trial. But even if their opinions were set forth in sworn declarations, the court correctly concluded, for purposes of assessing the relevance of their testimony, the experts mere disagreement with Dr. Hilton did not have any tendency to establish Elliotts incompetence. Pointing out Elliott had consulted with Dr. Hilton about a possible accident defense, the court properly relied on Williams, supra, 44 Cal.3d 883, involving a claim of ineffective assistance for counsels failure to engage additional, independent experts to evaluate a defendant for diminished capacity. (Id . at pp. 937-938.) In Williams, the court said: "Competent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion." (Id. at p. 945.)

Torres seeks to distinguish Williams on the ground it involved experts of the same type, and not additional experts who are more qualified, as he presently claims. Applying its reasoning, he argues Williams requires an analysis of "whether the particular expert was qualified to determine the issues at hand and/or whether trial counsel had a right to believe he or she was so qualified . . . ." (Emphasis omitted.) We see no basis for distinguishing Williams on the grounds urged by Torres. In that case, the defendant asserted his counsels use of two psychiatrists was inadequate; that counsel should have also obtained the advice of a psychopharmacologist. (Williams , supra, 44 Cal.3d at p. 945.) Thus, we apply Williamss reasoning to reject Torress evidentiary challenge. First, this is not a case where Elliott wholly failed to investigate a possible accident defense; rather, he obtained an expert opinion on the issue and looked no further because Hiltons opinion was consistent with that of the Peoples expert and the medical examiner. "The problem is that the investigation, so far as it went, failed to produce evidence supportive of the defense." (Id. at p. 944.) Elliott was entitled to rely on the opinions of the Peoples expert and the medical examiner, as well as Dr. Hilton, in concluding it was not necessary to search for additional experts. (See People v. Adkins (2002) 103 Cal.App.4th 942, 952 (Adkins).) In Adkins, we noted our agreement with federal authority holding a trial attorney is not remiss for failing to present additional scientific or medical evidence rather than relying upon the opinions of the prosecution experts where there is no cause to suspect that additional expert testimony or evidence would lead to a different conclusion. (Ibid.) Although Torres argues this is not the case here, he does not explain how, at this point, Elliot had cause to suspect a different expert would conclude Vyncents injuries were caused by an accidental fall.

Second, Torres has not demonstrated Dr. Hilton was unqualified or that Elliott had reason to believe she was not qualified to determine whether Vyncents death was caused by intentionally inflicted trauma or an accident. Torress arguments as to Dr. Hiltons qualifications are wholly absent any record citations, and we could reject them based on that deficiency alone. But the record reflects Hilton is a specialist in pediatric radiology, one of only 400 such physicians in the country. In this field, she could not only diagnose diseases in infants and children, but also had access to and was capable of using MRIs, ultrasound, and nuclear medicine to reveal internal images of the human body. She had testified in 20 to 30 shaken baby cases, and over 700 cases involving allegations of child abuse and questions of accidental versus intentionally-caused trauma. She had written a book chapter discussing skull fractures in children and related symptoms in accidental or abuse-related cases. Hiltons client had prevailed in every case in which she had faced Dr. Dully. Even assuming Drs. Plunkett and Schweller had concluded Dr. Hilton was not qualified because she did not reach the same conclusion (they did not), this would not be a sufficient showing of ineffective assistance. "We cannot accept the opinion of one expert that because another has reached a contrary conclusion with respect to a diagnosis the other is unqualified." (Williams, supra, 44 Cal.3d at p. 945.) The court did not err in excluding evidence of their opinions on the issue of Elliotts competence.

We observe that in one of the rare instances that Torres actually cites to the record, the assertion is wholly unsupported. Torres asserts Elliott learned from another expert, Dr. Baden, that short falls may cause death in children in cases like this one. In fact, the record at that point only shows Elliott talked to Dr. Baden after a seminar about dating injuries and fractures with slides.

3. Testimony of Jean Brandl

At the hearing, Torres for the first time sought to present testimony from criminal defense attorney Jean Brandl on the issue of a defense attorneys standard of care in handling shaken baby cases. Torres makes only a cursory argument that the court erred by excluding her testimony. We disagree. Had the court allowed Brandl to take the stand and considered her opinions in deciding the matter, the People would have been deprived of a reasonable opportunity to present argument or evidence in opposition. In a criminal case, the People are entitled to due process of law just as is the defendant. (Cal. Const., art. I, § 29; Department of Corrections v. Superior Court (1988) 199 Cal. App. 3d 1087, 1092, 245 Cal. Rptr. 293.) The court did not abuse its discretion in refusing to permit Brandl to testify under these circumstances.

4. Other Witnesses

In his new trial motion, Torress mentioned the existence of other witnesses who would testify concerning their observations of Vyncents health before and at about the time of his death. He attached several reports of post-trial statements those witnesses made to defense investigators. We do not, however, consider Torress claim that the trial court abused its discretion in refusing to permit those witnesses to testify at the hearing to the extent such a contention is suggested by his brief. Torress counsel withdrew her request to present those witnesses on the condition that the People would not object to the courts consideration of the reports presented with the new trial motion. Having failed to offer their testimony at the time of the hearing, Torres has waived his challenge to the courts exclusion of their testimony on appeal.

B. The Court Correctly Concluded Elliott Provided Effective Assistance

In support of its ruling denying Torres a new trial, the court made the following findings: (1) Elliott had consulted with Dr. Hilton, who had previously testified against the Peoples expert, Dr. Duffy, on accidental versus nonaccidental death involving children; (2) Elliott had obtained opinions from three attorneys, including his wife and two additional juvenile dependency attorneys, who were familiar with Dr. Hilton and found her to be an excellent expert witness on that issue; (3) Dr. Hilton was qualified to render opinions on the area of child abuse particularly in cases involving fractures as a pediatric radiologist who had written book chapters on the subject and testified in numerous trials; (4) Dr. Hilton received everything she should have received to properly evaluate the case; (5) Dr. Hiltons opinions were extremely harmful to Torress defense and consistent with the testimony of Dr. Duffy and the medical examiner; (5) Torress inconsistent statements about how Vyncents fall occurred would have opened the door to damaging cross-examination; (6) there was evidence of a temporary restraining order filed against Torres, as well as indications of prior child abuse involving one of his daughters; and (7) Elliott reviewed Torress reenactment of the shopping cart incident in deciding whether his clients statement was credible. On these findings the court concluded Elliotts decisions were reasonable and informed, and his performance was constitutionally adequate. All of the courts findings are supported by the testimony of both Elliott and Dr. Hilton at the new trial hearing.

In light of the strong deference we must accord to counsels tactical decisions, we agree with the trial court that Torres has not met his burden to show ineffective assistance of counsel. "An assessment of counsels performance does not include the distorting effects of hindsight, but rather evaluates such at the time of the claimed errors and in light of all the circumstances. [Citation.] There is a strong presumption that counsels representation was reasonable. [Citation.] Defendant must show there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. [Citation.] A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Adkins, supra, 103 Cal.App.4th at p. 950.) We "reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Zapien (1993) 4 Cal.4th 929, 980, 846 P.2d 704.)

Torres contends the court reached the wrong conclusion about Elliotts competence because it rigidly applied the holding in Williams, supra, 44 Cal.3d 883. As we have explained ante in connection with Torress evidentiary claims, we do not agree the court incorrectly applied Williams here, where Torres contends counsel was ineffective for failing to seek different, assertedly better qualified, experts. We emphasize again, Elliott did not fail to investigate the possibility of presenting a defense based on Vyncents possible fall from the shopping cart, he specifically considered doing so and explored its viability with Dr. Hilton but decided against it and concluded his investigation after considering Dullys opinion, the medical examiners reports, and Dr. Hiltons opinions. As the court said in In re Fields, supra, 51 Cal.3d at p. 1075: "When three experts concur in a diagnosis, competent counsel might reasonably believe it pointless to search further in the hope of finding an expert who would offer a different diagnosis, or facts that would support such a view." Further, Elliott advised Torres not to testify after he became aware the People would not be putting before the jury Torress inconsistent statements to police, and after assessing the impact on his clients credibility and the fact his background investigation revealed at least one instance of Torress violent behavior against his own child.

We cannot, on this record, view these as anything other than reasoned tactical decisions within the judgment of trial counsel. Torres has not overcome the strong presumption that his counsels decisions were reasonable and he has not affirmatively proven prejudice. The trial court did not err in denying his motion for new trial.

II. Torress 25-Year-to-Life Sentence is Not Cruel and Unusual

Torres contends the imposition of a 25-year-to-life term for a section 273ab conviction, as applied to him, violates the federal and California constitutional prohibition against cruel and unusual punishment. He maintains that under People v. Dillon (1983) 34 Cal.3d 441, 194 Cal. Rptr. 390, 668 P.2d 697, we must reduce his sentence below the statutory sentence.

In assessing Torress claim under the state constitution, we are mindful that it is the Legislatures function in the first instance to define crimes and prescribe punishment. The judiciary may not interfere in this process unless the statute prescribes a penalty so severe in relation to the crime that it violates the constitutional prohibition against cruel or unusual punishment. (People v. Dillon, supra, 34 Cal.3d 441, 478; In re Lynch (1972) 8 Cal.3d 410, 423-424, 105 Cal. Rptr. 217, 503 P.2d 921 (Lynch ).) The basic test is whether the punishment 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, at p. 478; Lynch, at p. 424, fn. omitted; In re DeBeque (1989) 212 Cal. App. 3d 241, 249, 260 Cal. Rptr. 441.) Lynch cited three factors to aid in the determination whether punishment is unconstitutionally disproportionate: (1) the nature of the offense and the offender; (2) a comparison of the sentence with sentences for more serious offenses in the same jurisdiction; and (3) a comparison of the sentence with sentences for the same offense in other jurisdictions. (Lynch , at pp. 425-428.) Regarding the nature of the offense, courts "consider not only the offense in the abstract - i.e., as defined by the Legislature - but also the facts of the crime in question [citation] - i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his [or her] acts." (Dillon, supra, at p. 479.) Regarding the nature of the offender, courts consider "the particular person before the court, and [ask] whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his [or her] age, prior criminality, personal characteristics, and state of mind." (Ibid; People v. Martinez (1999) 76 Cal.App.4th 489, 494.) Torres must overcome a considerable burden to show his sentence was disproportionate to his level of culpability. (People v. Wingo (1975) 14 Cal.3d 169, 174, 121 Cal. Rptr. 97, 534 P.2d 1001; People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) He has not met this burden.

Torres focuses on the nature of the offense and offender prongs set out in Dillon. Without the benefit of record citations, he asserts the evidence fails to show he did anything to Vyncent as evidenced by the prosecutors concessions that she could not prove how Vyncents injuries occurred. Torres maintains it is cruel and unusual to impose the same punishment that would be applicable to a malicious, deliberate and premeditated murder. In our view, the nature of the offense and the offender supports the punishment under section 273ab. "Considering the purpose of [section 273ab] - to protect children at a young age who are particularly vulnerable - there can be no dispute of the gravity of the governmental interest involved." (People v. Albritton (1998) 67 Cal.App.4th 647, 660.) A 25-year-to-life sentence is consistent with that interest. And the circumstances of this case justify the punishment imposed under the statute. The victim was a 15-month-old child who was at the time totally dependent on Torres for care. The fatal assault involved force great enough to cause severe brain injuries and a depressed skull fracture. Experts testified the fracture was inconsistent with a short fall or a fall from a shopping cart. It was an act of brutality performed by a caretaker with an especially vulnerable victim. Vyncent died as a consequence of these injuries. The facts relating to the offense do not indicate the punishment is disproportionate to the crime.

Likewise, Torress culpability is consistent with the punishment. He was the sole perpetrator and, contrary to his unsupported contention that he is a "generally peaceable guy," he acted with great violence while charged with responsibility for Vyncents care. Torres was not a teenager at the time of the incident; he was 24 years old and he therefore cannot use extreme youth as an excuse. Although Torres had no prior convictions or juvenile adjudications, the essential inquiry is whether the punishment imposed is grossly disproportionate to defendants individual culpability. We conclude it is not. Torres exhibited extreme aggression and lack of control when in a position of trust with a vulnerable child; these facts do not support Torress claim that his sentence is unconstitutionally excessive under Dillon.

A comparison of the penalty for section 273ab with penalties for other serious crimes in California does not further Torress cruel or unusual punishment argument. Under California law, a number of crimes other than murder carry an indeterminate sentence or even a death sentence. For example, a "person who, by willful perjury or subornation of perjury procures the conviction and execution of any innocent person, is punishable by death or life imprisonment without possibility of parole." (§ 128.) Kidnapping for ransom or extortion where the victim suffers death or bodily harm is punished by life imprisonment without the possibility of parole; if the victim does not suffer death or bodily harm, the punishment is life imprisonment with the possibility of parole. ( § 209, subd. (a).) Other crimes that do not have malice aforethought as an element carry indeterminate sentences. (See §§ 219, 4500, 12310, subd. (a).)

As for Torress claim under the federal constitution, the Eighth Amendment prohibits only extreme sentences that are "grossly disproportionate" to the crime committed; there is no requirement of strict proportionality between crime and sentence. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001, 115 L. Ed. 2d 836, 111 S. Ct. 2680.) In Harmelin, the United States Supreme Court upheld a sentence of life without possibility of parole for the defendants first felony offense of possession of 672 grams of cocaine. Torress crime was a violent felony resulting in the death of a 15-month-old child. We are convinced Torress sentence is not grossly disproportionate and thus is not cruel and unusual under the Eighth Amendment. [* 42]

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J., NARES, J., We Concur.


Summaries of

People v. Torres

Court of Appeals of California, Fourth Appellate District, Division One.
Jul 29, 2003
No. D038939 (Cal. Ct. App. Jul. 29, 2003)
Case details for

People v. Torres

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ADRIAN TORRES, Defendant and…

Court:Court of Appeals of California, Fourth Appellate District, Division One.

Date published: Jul 29, 2003

Citations

No. D038939 (Cal. Ct. App. Jul. 29, 2003)