People v. Pedraza CA4/1

Filed 8/24/23 P. v. Pedraza CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081371
Plaintiff and Respondent,
v. (Super. Ct. No. SCE385858)
ZAGID LUJANO PEDRAZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Herbert J. Exarhos, Judge. Affirmed.
Sally Patrone, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Steve Oetting, Daniel J. Hilton, and Evan Stele, Deputy Attorneys General,
for Plaintiff and Respondent.
Defendant Zagid Lujano Pedraza appeals from a judgment entered
after a jury found him guilty of felony child abuse in violation of Penal Code
1
section 273a, subdivision (a).1 He contends there is insufficient evidence to
support the child abuse conviction. Although there is no evidence that
Pedraza himself inflicted the abuse, we conclude there is substantial evidence
to support a finding that Pedraza acted with criminal negligence by willfully
permitting the abuse to be inflicted by the child’s mother, Claudia M.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. A.L.’s Birth and Primary Caregivers
A.L. was born without complication in December 2017. Her mother,
Claudia M., and her father, Pedraza, took her home to their apartment.
A.L.’s parents were her primary caregivers and the only adults living in the
apartment, where they resided with their three other children ages five,
three, and one year old. The oldest two were Claudia’s biological children
from a previous relationship. She and Pedraza were the biological parents of
the one year old and newborn A.L. Occasionally, Claudia’s sister and parents
would visit the apartment from Tijuana, but Claudia and Pedraza were A.L.’s
only primary caregivers. Pedraza’s usual work hours were from 6:00 a.m. to
2:00 p.m. Claudia reported to senior social worker Christopher T. that she
cared for A.L. about 75 percent of the time. Pedraza also told Christopher
that he watched over A.L. at times and Claudia watched over her at other
times.
B. Prior Hospital Visits
By the time she turned two months old, A.L. had visited the hospital
four times in the span of two weeks. On February 5, 2018, Claudia brought
A.L. to urgent care to address a bloody nose, intermittent bleeding in her
gums, coughing, and blood in her stool. Earlier that day, when Pedraza was
1 All further statutory references are to the Penal Code.
2
holding A.L., he noticed blood on A.L.’s shirt and observed that she had a
bloody nose. A.L. had been vomiting and running a fever for two days.
Claudia also reported to doctors that A.L. had occasionally “developed easy
bruising” on her arms and legs. A physical exam revealed one small bruise
on A.L.’s left arm measuring one centimeter in diameter.
Due to A.L.’s age and symptoms, she was transported to Rady
Children’s Hospital’s emergency department by ambulance. The attending
emergency room trauma doctor noted the “normal range of motion” of A.L.’s
arms and legs, which exhibited “no edema, tenderness, deformity or signs of
injury.” She was “[n]egative for extremity weakness and joint swelling.” Lab
tests came back mostly normal. Doctors diagnosed A.L. with a respiratory
illness and instructed Claudia to schedule a follow up appointment with
A.L.’s primary care pediatrician the next day and to return to the emergency
room if she noticed any worsening symptoms.
On February 14, 2018, Pedraza took A.L. to urgent care, this time due
to white, cloudy coverings on A.L.’s eyes. Claudia arrived at the appointment
later. Photographs were taken of A.L.’s eyes and she was referred to
ophthalmology with instructions for Claudia to call the following day.
Claudia rescheduled then cancelled an appointment for February 16, 2018,
then later called to reschedule the appointment again on February 21, 2018.
On February 22, 2018, A.L. was taken to see the urgent care clinic’s
ophthalmologist, who concluded that the cloudiness in A.L.’s eyes was likely
caused by her eyes remaining open and exposed during sleep. The
ophthalmologist prescribed eye drops. No photographs were taken. The
medical records from this February 22 ophthalmology visit do not specify
which parent brought A.L. and contain no mention of bruising or other signs
of abuse.
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C. February 24, 2018 Hospital Visit and Removal
Claudia returned with A.L. to Rady Children’s Hospital on
February 24, 2018. She reported that A.L. had a fever, trouble eating, pain
in her right arm for several days, and bruising. Claudia reported that except
for one bruise on A.L.’s lower jaw that had been present for several days, the
bruising had appeared that morning and A.L. “woke up [like] this.” One
doctor noted the bruising on A.L.’s face appeared “old” and “not consistent
with [Claudia’s] description.” Claudia told doctors that A.L. had also been
seen several weeks earlier for bruising. Claudia also reported that A.L. had
been choking on her formula, though she said it had only started the previous
night. A.L. was dehydrated, listless, and had a weak cry.
An attending doctor called Rady’s child abuse team for consultation and
Dr. Suzanne Starling, the executive director, arrived to evaluate A.L.’s
condition and medical history for signs of abuse. Dr. Starling noticed that
A.L. had “striking” multiple bruises on her face. A.L. had bruising on her
forehead, jaw, both cheeks, and one eyelid, and scrapes on her nose.
Dr. Starling testified that infants have elastic skin and minimal strength
which make it very difficult for them to bruise without experiencing blunt
force trauma. Infants cannot bruise themselves. Dr. Starling explained that
the bruising could not be accurately dated, but absent some condition like
cancer, would not appear on its own. The bruising appeared consistent with
an adult grabbing a baby by the face. Dr. Starling also noticed a bruise on
A.L.’s genitalia, which was very uncommon. This bruise would have been
impossible for A.L. to have inflicted herself; it likely resulted from a strike to
the genitals.
Upon examining A.L.’s mouth, Dr. Starling observed a red cut above
her tongue, in the back of her throat. This type of injury results from an
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object being forced into the back of the mouth. This injury opened a pocket of
air in A.L.’s throat, inhibiting her swallowing, causing malnutrition, and
eventually requiring a feeding tube. A.L. also had a red mark and swelling
on her right arm.
X-rays revealed twenty-eight bone fractures in A.L.’s arms, legs, hands,
and feet. She had fractures of every long bone in her body. Dr. Starling
testified that the fractures in A.L.’s arms and legs likely resulted from being
twisted or pulled, and the fractures in her hands and feet likely resulted from
crushing or squeezing. Many of the fractures were a type that is unique to
babies, caused by pulling, twisting or jerking the baby’s arm or leg, which
tears the cartilage away from the end of the bone and takes a piece of the
bone with it.
A.L.’s fractures were in several different stages of healing. A fracture
with no healing at all is typically up to five days old. Subacute fractures are
those just beginning to start the healing process, dating back four to seven or
more days. Fractures take several days or weeks for healing to appear.
Dr. Starling explained that many fractures in A.L.’s arms and feet were
subacute or newly healing, being at least four days old. Most of the fractures
in her legs and hands were in a more advanced stage of healing. According to
Dr. Starling, a single traumatic injury could not have caused all these
fractures, which must have occurred on at least two different occasions.
Dr. Starling noted A.L.’s symptoms of bleeding gums and reported
bruising at her first hospital visit on February 5, 2018 could have signaled
possible abuse to doctors as mandated reporters. But she explained that
“[m]any physicians who are not as well trained as [she] would miss subtle
bruising in infants as a form of abuse.” Many of the regular trauma doctors
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at Rady Children’s Hospital lack the requisite training to detect subtle signs
of abuse.
According to Dr. Starling, any time A.L.’s arms and legs were moved
with these types of fractures, it should have been painful. Changing A.L.’s
diaper or dressing her would have required movement of her ankles, knees,
and hips, all of which were broken. Dr. Starling explained: “So picking up a
baby, dressing a baby, diapering a baby, trying to feed a baby while holding a
baby actually causes the bones to move around, and they are fractured and so
they will hurt.”
One of A.L.’s fractures was in the middle of her upper right arm. This
caused pain and swelling of the arm, which was one of the reasons Claudia
brought A.L. to the hospital. The medical records described A.L. as having
an “obvious deformity of her right upper arm” due to this fracture. A.L. was
having trouble moving the arm. This type of fracture is known to be painful.
It was a subacute fracture that was beginning to heal and was therefore four
to seven or more days old.
Another of A.L.’s injuries was a fracture of her right shoulder blade.
This was also a subacute fracture that was at least four days old or older.
This type of injury would have limited a caretaker’s ability to move A.L.’s
arms or pick her up by the chest without causing pain. According to
Dr. Starling, “we know that those are painful and they cause crying and
irritability in infants.”
By the time Dr. Starling examined A.L., someone in the hospital ward
had already placed A.L. on pain medication, which indicated to Dr. Starling
that someone had perceived A.L. to be in pain. A.L. seemed content when she
was lying still and watching Dr. Starling, but she began crying when
Dr. Starling first tried to move her arms and legs in order to examine her.
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A.L. faced a long road to recovery. Foster parent Kristi K. visited A.L.
in the hospital after receiving a call about her capacity to foster A.L. while
social workers evaluated the case. A.L. remained hospitalized for nearly
three weeks due to complications with her recovery before Kristi took her into
her care. A.L. required a nasal feeding tube due to her inability to swallow,
but after she kept knocking it out of place, doctors gave her a gastric feeding
tube to deliver nutrients directly into her stomach. As a nurse practitioner,
Kristi attended to A.L.’s feeding tube and supervised every visit with A.L.’s
parents.
D. Subsequent Events
When Claudia visited A.L. at the hospital in early March 2018, she
ignored Kristi’s guidance on how to hold her baby without hurting her, and
instead “flung” A.L. over her shoulder. Claudia “jerked” A.L. by her stomach,
where A.L. had recently undergone surgery to insert her feeding tube. In
contrast, Pedraza held A.L. very gently, cried, and said he was sorry during
his visit that same day.
Kristi continued to observe this divergent behavior during subsequent
supervised visits throughout the following months. She described Claudia’s
“detached” behavior as “night and day” from that of Pedraza, who enjoyed
playing with A.L. and took care to be gentle. Kristi described Claudia as not
having “a maternal bone in her body.” Social workers Christopher T. and
Judy W. also observed this contrasting behavior during supervised visits.
A.L. exhibited what Christopher referred to as “a stranger-danger
response” when she saw Christopher during visits. She would cling to her
foster mother and was hesitant to let Christopher see or touch her. A.L. was
similarly “standoffish” with Pedraza during a visit on October 12, 2018 and
constantly went back to her foster mother for reassurance.
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During visits, Pedraza generally acted appropriately with A.L. and
would kneel to color, play, and read with her. At times, when Pedraza asked
to hold her, A.L. shook her head no, but at other times, she fell asleep in his
arms comfortably. When A.L. did not allow Pedraza to pick her up, she
seemed to enjoy playing with him. Pedraza brought A.L. stuffed animals and
books, talked to A.L., and told her he loved her. At one visit, A.L. used her
blanket to play peekaboo and said “bye” to Pedraza before he left.
But Pedraza also missed a number of scheduled visits without notifying
social workers. Pedraza refused to communicate with Christopher for a
period under the advice of counsel, and while he ultimately attended child
abuse classes, he resisted the treatment at first. Judy did not think the visits
were going well and perceived A.L. to be afraid of Pedraza.
Pedraza told Judy, Christopher, and Kristi that he did not know what
had caused A.L.’s injuries. Pedraza informed Christopher that he had
noticed some injuries, but not all, before A.L. left his custody. When asked
about Claudia, Pedraza stated he thought she was a great mother, but
conceded that “you don’t just wake up with these types of injuries.” Judy
ultimately recommended terminating Pedraza’s parental rights because of
the visits, the extent of the injuries, and the fact that Pedraza could not tell
her what happened to A.L.
E. Prosecution and Conviction
Pedraza and Claudia were charged with willfully causing or permitting
a child to suffer unjustifiable physical pain or mental suffering under
circumstances likely to produce great bodily injury in violation of section
273a subdivision (a). Claudia pled guilty. Pedraza went to trial.
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The jury found Pedraza guilty of felony child abuse in violation of
section 273a, subdivision (a). The trial court sentenced him to two years with
credit for time served and fined him $5,000 satisfied by time in custody.
DISCUSSION
Pedraza contends there is insufficient evidence to support his
conviction for felony child abuse under section 273, subdivision (a). Viewing
the evidence and drawing all reasonable inferences in favor of the judgment,
we conclude there is sufficient evidence that Pedraza acted with criminal
negligence by willfully permitting Claudia to inflict the abuse.
A. Standard of Review
We apply the substantial evidence standard of review in evaluating a
sufficiency of evidence claim. (People v. Rivera (2019) 7 Cal.5th 306, 323.)
We examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. (People v.
Ramirez (2022) 13 Cal.5th 997, 1117–1118.) We presume true every fact and
every inference reasonably drawn from the evidence, direct and
circumstantial, that would support the judgment. (People v. Vargas (2020)
9 Cal.5th 793, 820.)
We cannot venture beyond the evidence presented at trial and may
consider only those inferences that are reasonably supported by the record.
(People v. Ware (2022) 14 Cal.5th 151, 167–168 (Ware).) A reasonable
inference “ ‘may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work.’ ” (People v.
Davis (2013) 57 Cal.4th 353, 360.) It must rest on the evidence and not
merely “ ‘on the suspicions of the officers involved in the case and the
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conjecture of the prosecution.’ ” (Ware, at p. 168.) “[A] decision supported by
a ‘mere scintilla of evidence’ need not be affirmed on review.” (In re G.Z.
(2022) 85 Cal.App.5th 857, 876, internal quotation marks omitted.) However,
we must accept all logical inferences that the trier of fact may have drawn
from circumstantial evidence. (People v. Sifuentes (2022) 83 Cal.App.5th 217,
233.)
In assessing the sufficiency of evidence, we must take into account the
reasonable doubt standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th
989, 1007–1008.) The relevant question is not whether we are satisfied of the
defendant’s guilt beyond a reasonable doubt; “it is whether a reasonable trier
of fact could have regarded the evidence as satisfying this standard of proof.”
(Id. at p. 1009.)
B. Governing Legal Principles
Section 273a, subdivision (a) defines and criminalizes felony child
abuse and endangerment. It is “ ‘an omnibus statute that proscribes
essentially four branches of conduct.’ ” (People v. Sargent (1999) 19 Cal.4th
1206, 1215 (Sargent).) The statute applies to “ ‘[a]ny person who, under
circumstances or conditions likely to produce great bodily harm or death,
[1] willfully causes or permits any child to suffer, or [2] inflicts thereon
unjustifiable physical pain or mental suffering, or [3] having the care or
custody of any child, willfully causes or permits the person or health of that
child to be injured, or [4] willfully causes or permits that child to be placed in
a situation where his or her person or health is endangered . . . .’ ” (People v.
Valdez (2002) 27 Cal.4th 778, 783 (Valdez).)
A violation of section 273a, subdivision (a) “ ‘includes both active and
passive conduct, i.e., child abuse by direct assault and child endangering by
extreme neglect.’ ” (Sargent, supra, 19 Cal.4th at pp. 1215–1216.) Direct
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infliction of abuse is a general intent crime similar to battery or assault.
(Id. at p. 1220.)
Willful conduct is an essential element of all types of felony child abuse.
(Sargent, supra, 19 Cal.4th at p. 1216.) “The word ‘willfully,’ when applied to
the intent with which an act is done or omitted, implies simply a purpose or
willingness to commit the act, or make the omission referred to. It does not
require any intent to violate [the] law, or to injure another, or to acquire any
advantage.” (§ 7, subd. (1); Valdez, supra, 27 Cal.4th at pp. 787–788.)
The Supreme Court has held that criminal negligence is the necessary
mens rea for indirect infliction of abuse. (Valdez, supra, 27 Cal.4th at p. 789.)
“[C]riminal negligence is the appropriate standard when the act is
intrinsically lawful, such as leaving an infant with a babysitter, but warrants
criminal liability because the surrounding circumstances present a high risk
of serious injury.” (Ibid.)
Assessing criminal negligence requires a two-step test to evaluate
actual or constructive knowledge and degree of negligence. First, the trier
must determine whether the defendant knew, or should have known, that his
act or omission presented a substantial risk of great bodily harm to a child.
“Under the criminal negligence standard, knowledge of the risk is determined
by an objective test: ‘[I]f a reasonable person in defendant’s position would
have been aware of the risk involved, then defendant is presumed to have
had such an awareness.’ ” (Valdez, supra, 27 Cal.4th at p. 783, internal
quotation marks omitted; ibid. [further stating “there can be no criminal
negligence without actual or constructive knowledge of the risk”]; see also
Walker v. Superior Court (1988) 47 Cal.3d 112, 136–137.)
Next, the trier must decide whether defendant’s act or omission so
grossly departed from what an ordinarily prudent person in the same
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circumstances would do as to be incompatible with or indifferent to a respect
for human life. Ordinary negligence or accidental conduct does not suffice to
constitute felony child abuse. (Valdez, supra, 27 Cal.4th at pp. 788–789.)
Criminal negligence “must be aggravated, culpable, gross, or reckless, that is,
the conduct of the accused must be such a departure from what would be the
conduct of an ordinarily prudent or careful [person] under the same
circumstances as to be incompatible with a proper regard for human
life . . . or an indifference to consequences.” (Valdez, at p. 788; People v.
Penny (1955) 44 Cal.2d 861, 879, internal quotation marks omitted.)
C. Substantial Evidence Supports Pedraza’s Conviction
Under the instructions given by the trial court, the jury could have
found Pedraza criminally negligent under either of two theories: that Pedraza
(1) willfully caused A.L.’s injuries, or (2) willfully permitted Claudia to injure
her.2 On appeal, however, the People do not seriously contend that there is
sufficient evidence to prove beyond a reasonable doubt that Pedraza himself
2 The court instructed the jury that “the People must prove that: [¶]
1. The defendant, while having care or custody of a child, willfully caused or
permitted the child’s person or health to be injured; [¶] 2. The defendant
inflicted pain or suffering on the child or caused or permitted the child to be
injured or be endangered under circumstances or conditions likely to produce
great bodily harm; [¶] AND [¶] 3. The defendant was criminally negligent
when he caused or permitted the child to suffer or be injured or be
endangered.” The court defined “willfully” for the jury as follows: “Someone
commits an act willfully when he or she does it willingly or on purpose.”
(Emphasis omitted.) The court defined “criminal negligence” as follows:
“Criminal negligence involves more than ordinary carelessness, inattention,
or mistake in judgment. A person acts with criminal negligence when: [¶]
1. He or she acts in a reckless way that is a gross departure from the way an
ordinarily careful person would act in the same situation. [¶] 2. The person’s
acts amount to disregard for human life or indifference to the consequences of
his or her acts; [¶] AND [¶] 3. A reasonable person would have known that
acting in that way would naturally and probably result in harm to others.”
(Emphasis omitted.)
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inflicted A.L.’s injuries. At trial, the prosecutor admitted to the jury that one
of the “unanswered questions” was “who inflicted [A.L.]’s injuries.” The
prosecutor conceded “it is still unclear who did it, who actively hurt [A.L.],
whether it was [Claudia], whether it was [Pedraza] or whether it was both.”
The prosecutor admitted, “I can’t prove to you which one of them” actually
inflicted the injuries.
We agree there is no evidence to support a finding that Pedraza himself
perpetrated A.L.’s injuries. For purposes of the appeal, therefore, we must
assume that Pedraza was not the actual perpetrator. That leaves only the
alternative theory that Pedraza was criminally negligent in willfully
permitting Claudia to injure A.L. (See People v. Peabody (1975) 46
Cal.App.3d 43, 36 [“Because there is no evidence that appellant herself
inflicted the injuries upon her baby, the conviction can stand only under that
portion of the statute which proscribes a person from willfully causing or
permitting a child to be placed in a health endangering situation under
circumstances likely to produce great bodily harm or death.” (Italics
omitted.)].)
Viewing the record in the light most favorable to the prosecution, we
conclude there is substantial evidence to support a finding that Pedraza acted
with criminal negligence by willfully permitting the ongoing abuse of A.L.
with actual or constructive knowledge that it was occurring. (Valdez, supra,
27 Cal.4th at p. 783.) Pedraza and Claudia were A.L.’s only caregivers, and
they lived together in an apartment with their three other children.
Although Pedraza worked eight hours a day, and there is no direct evidence
of his normal activities in caring for the four children at home, Pedraza did
admit that he cared for A.L. at times and Claudia cared for her at other
times. Claudia also estimated that she cared for A.L. 75 percent of the time
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and Pedraza cared for her 25 percent of the time. It was Pedraza who noticed
A.L.’s bloody nose when he was holding her on February 5, 2018, and he
demonstrated an emotional attachment to her after she was removed from
his custody. From this evidence, the jury could reasonably infer that Pedraza
was actively involved in A.L.’s care and must have regularly done the things
that any caregiver would do in taking care of a two-month-old baby, such as
picking her up, holding her, changing her diaper, bathing her, and clothing
her.
The record also supports an inference that someone in Pedraza’s
position would have noticed A.L.’s severe injuries while caring for her before
February 24, 2018. Pedraza himself admitted to social worker Christopher
that he had noticed some of A.L.’s injuries before her removal. He also
acknowledged that “you don’t just wake up with these types of injuries.” By
the time of the February 24 hospital visit, A.L. had already been to the
hospital three times in the same month. A.L. had obvious bruises to her face
and body when Claudia brought her to the hospital on February 24, and she
had been experiencing pain to her arm for several days. A.L. also could not
eat because of the internal injury to the back of her throat, and she was
dehydrated. A.L. had a prior history of bruising within the first six weeks of
her life, and Claudia reported that A.L. had been seen at the hospital for
bruising two weeks earlier. Claudia also reported that one bruise on A.L.’s
lower jaw had been present for several days, and a doctor further noted that
the rest of the bruising on A.L.’s face appeared “old” and “not consistent with
[Claudia’s] description.”
A.L. was also suffering from 28 bone fractures in various stages of
healing. These bone fractures were inflicted on more than one occasion by
forcible twisting, jerking, pulling, crushing, or squeezing of the baby’s limbs,
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hands, and feet. Many of A.L.’s bone fractures were in the “subacute” stage
of healing, meaning that they were at least four to seven days old or older,
and others were in an even more advanced stage of healing. The subacute
fractures included the ones in the middle of her right arm and on her right
shoulder, both of which would have caused pain with movement of the arm.
A.L. was in fact having trouble moving the arm, which had an “obvious
deformity” from the fracture. According to Dr. Starling, A.L.’s bone fractures
would have caused pain when she was changed, dressed, or held. Even after
A.L. received pain medication in the hospital, she still began crying when
Dr. Starling moved her around to examine her.
Based on the totality of the evidence, the jury could infer that a
reasonable person in Pedraza’s position acting as one of A.L.’s primary
caretakers would have realized that she was suffering from pain and serious
injuries caused by ongoing abuse well before February 24, 2018. Most
clearly, the record supports a finding that A.L. must have had noticeable pain
from the fractures of her upper right arm and shoulder that were at least four
to seven days old. When combined with all the other bone fractures (some of
which were even older) and the history of bruising, the totality of the record
supports a finding that Pedraza had actual or constructive knowledge of the
abuse, but failed to do anything to protect A.L.
There was also evidence from which the jury could conclude that
Claudia made no efforts to conceal her violent treatment of A.L. When
Claudia visited A.L. in the hospital, A.L.’s foster mother instructed her to be
careful holding A.L. and specifically told her that holding A.L. over the
shoulder would hurt A.L. because of her fractures. Yet Claudia “grabbed her
and flung her over her shoulder” anyway, causing A.L. to scream in pain.
Claudia also “jerked” A.L. by her stomach, where A.L. had recently
15
undergone surgery to insert her feeding tube. A.L. “was screaming in pain,”
but Claudia “wasn’t concerned at all.” According to the foster mother,
Claudia exhibited “[z]ero concern” for A.L. A social worker was also present
outside the room observing this visit. The jury could reasonably infer that if
Claudia was so blatantly rough with A.L. right in front of a social worker and
the foster mother, she would not have concealed it from Pedraza in the
privacy of their own home.
Pedraza relies on the fact that none of the doctors who treated A.L. in
the weeks before February 24, 2018 detected any signs of abuse. Although
this was a significant factor for the jury to weigh in Pedraza’s defense, it did
not compel a verdict in his favor. Based on Dr. Starling’s testimony, the jury
could have found that A.L.’s presenting injuries on February 24 were likely
inflicted after her hospital visits on February 5 and 14. Moreover, there is no
evidence that the doctor who examined A.L.’s eyes on February 22 picked her
up or moved her limbs, as a caregiver would have to do. As Dr. Starling
explained, babies with these types of fractures typically cry more when being
handled than when lying still, because picking them up jostles their fractures
and makes them hurt more. When Dr. Starling herself examined A.L., for
example, A.L. was initially content when she was lying still, but began crying
when Dr. Starling tried to move her. Thus, the jury could have concluded
that a daily caregiver in Pedraza’s position who regularly had to hold A.L.
and move her body to change and clothe her would have noticed her pain and
would have done something to protect her, especially with the accompanying
history of bruising.
Pedraza also relies on the fact that he brought A.L. to urgent care for
the problem with her eyes on February 14, 2018. But this does not absolve
Pedraza from responsibility for failing to do anything to protect A.L. from the
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continuing abuse over the next ten days. Notably, it was not Pedraza who
ultimately brought A.L. to the hospital on February 24; it was Claudia.
Thus, the jury could reasonably have concluded that Pedraza did nothing to
protect A.L. or seek medical attention for her after she must have been
exhibiting noticeable signs of abuse well before February 24. And Pedraza
does not dispute that if he knew or should have known of the abuse, his
failure to protect A.L. from further abuse constituted a gross departure from
what an ordinarily prudent person would do in the same circumstances.
(Valdez, supra, 27 Cal.4th at pp. 788–790.)
Finally, Pedraza argues that the facts of this case do not compare to
those of other cases finding sufficient evidence of felony child abuse in vastly
different circumstances. (People v. Perez (2008) 164 Cal.App.4th 1462, 1465–
1466; People v. James (1987) 196 Cal.App.3d 272, 284; People v. Rippberger
(1991) 231 Cal.App.3d 1667, 1673; People v. Clair (2011) 197 Cal.App.4th
949, 954–955.) This mode of reasoning is unpersuasive. “When we decide
issues of sufficiency of evidence, comparison with other cases is of limited
utility, since each case necessarily depends on its own facts.” (People v.
Thomas (1992) 2 Cal.4th 489, 516.)
In sum, we conclude there is sufficient evidence to support the finding
that Pedraza acted with criminal negligence by willfully permitting ongoing
physical abuse of A.L. by another. (§ 273a, subd. (a).)
17
DISPOSITION
The judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P.J.
KELETY, J.
18