People v. Latham

203 Cal.App.4th 319

137 Cal.Rptr.3d 443

2012 Daily Journal D.A.R. 1647

The PEOPLE, Plaintiff and Respondent,

v.Gregory Lee LATHAM et al., Defendants and Appellants.

No. D058385.

Court of Appeal, Fourth District, Division 1, California.

Feb. 7, 2012.

Review Denied Apr. 18, 2012.

Certified for Partial Publication.^*

See Annot., Parents' Criminal Liability for Failure to Provide Medical Attention to Their Children (2004) 118 A.L.R.5th 253;10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 290; Cal. Jur. 3d, Criminal Law: Crimes Against the Person, § 8.

Thomas Owen, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant Gregory Lee Latham.

Patricia Ann Scott, Alameda, under appointment by the Court of Appeal, for Defendant and Appellant Yvonne Dee Latham.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Peter Quon, Jr., Senior Assistant Attorneys General, Steve Oetting and Andrew Scott Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

AARON, J.

I.INTRODUCTION

A jury found Gregory Lee Latham (Gregory) and Yvonne Dee Latham (Yvonne) guilty of the second degree murder of their 17–year–old daughter, Nanette Latham (Nanette) (Pen.Code, §§ 187, subd. (a), 189) (count 1).¹ The jury also found appellants guilty of child endangerment (§ 273a, subd. (a)) (count 2).² In addition, with respect to count 2, the jury found that appellants committed the offense under circumstances specified in section 12022.95.³ Nanette, who suffered from type 1 diabetes, died from complications related to the disease.⁴ At trial, the People presented evidence that appellants acted with conscious disregard for Nanette's life by failing to obtain medical treatment for her in the days preceding her death.

Appellants contend that there is insufficient evidence to support the jury's verdicts finding them guilty of second degree murder. Specifically, appellants contend that the record lacks sufficient evidence from which the jury could have found that they knew that their failure to obtain medical treatment for Nanette endangered her life or that they failed to obtain such medical treatment in conscious disregard for Nanette's life, both of which the jury had to impliedly find in order to convict appellants of second degree murder. We affirm the judgment.⁵

II.FACTUAL AND PROCEDURAL BACKGROUND

A. The trial

1. The prosecution's evidence

a. Nanette's prior medical treatment for diabetes

In December 2001, Nanette was admitted to the emergency room after she displayed “an altered level of consciousness.” She was diagnosed as suffering from diabetes mellitus, type 1, and diabetic ketoacidosis.⁶Diabetic ketoacidosis is a complication related to diabetes that occurs when the body fails to produce adequate amounts of insulin. While the condition can be fatal, most cases of diabetic ketoacidosis are treatable and the patient recovers. Nanette's symptoms included Kussmaul breathing ⁷ and “fruity breath,” a sign of acetone on the breath.

Medical records from Nanette's 2001 hospitalization indicated that appellants were provided with education related to the management of Nanette's diabetic condition at that time. This education would have included instruction as to how to recognize the symptoms of diabetic ketoacidosis. The medical records state that appellants did “not grasp[ ] [the] seriousness of [Nanette's] ... condition,” and that they displayed “ignorance and [a] lack of comprehension of how close their daughter came to dying.”

After her diagnosis, Nanette was primarily responsible for managing her own diabetic condition. She monitored her blood sugar and injected herself with insulin, as needed. Gregory, who had type 2 diabetes, sometimes assisted Nanette in the management of her diabetes.

In 2004, Nanette was taken to a medical office after she became lethargic and unresponsive. Yundell Montalbo, a physician's assistant, diagnosed Nanette as having low blood sugar. Montalbo believed that Nanette was going into a coma and that she required hospitalization. An ambulance was summoned. An emergency medical technician provided Nanette with glucose, and her blood sugar level began to rise. Yvonne decided not to allow Nanette to be taken to the hospital in the ambulance, and Nanette was not hospitalized on this occasion.

b. Nanette's illness in April 2006

In April 2006, Nanette became ill and displayed the symptoms of diabetic ketoacidosis. Over a period of approximately a week prior to April 15, Nanette's physical condition deteriorated. She became immobile, began to breathe heavily, complained of pain to her lungs and ribs, and appeared to be semiconsciousness or unconscious for periods of time. In the days just prior to April 15, neighbors urged the appellants to obtain medical treatment for Nanette. Appellants did not obtain any medical treatment for Nanette prior to April 15.

c. Nanette's hospitalization and death

On April 15, the Lathams' neighbor, Linda Conner, heard Yvonne screaming, “I think Nanette died. I think Nanette is dead.” Another neighbor, Jesse Wallis, called 911 after learning that Nanette had stopped breathing. Paramedics arrived at appellants' residence at approximately 12:39 p.m. Upon their arrival, paramedics determined that Nanette was in cardiac arrest, meaning that she was not breathing and her heart was not beating. Paramedics rushed Nanette to the hospital. Hospital personnel drew Nanette's blood approximately 10 minutes after her arrival. Nanette's blood sugar level was 1297, which is roughly 15 times the normal level.

On April 17, 2006, physical examinations showed that Nanette had no brain activity and that she met the criteria for brain death. Doctors pronounced her dead at 6:30 p.m. that evening. Nanette remained on a ventilator until the following day in order to afford appellants the opportunity to visit her. Appellants visited Nanette briefly on April 18. Minutes after appellants' visit, doctors removed Nanette from “organ support,” and all respiration and cardiac activity ceased. A forensic pathologist determined that Nanette died as a result of diabetic ketoacidosis.

d. Expert testimony concerning diabetic ketoacidosis

Pediatric endocrinologist Dr. John Mace testified concerning diabetes and diabetic ketoacidosis. Dr. Mace explained that there are two types of diabetes—type 1 and type 2. In persons suffering from type 1 diabetes, the body does not produce enough insulin, a hormone made in the pancreas that lowers the body's blood sugar. Diabetic ketoacidosis occurs when the body is not getting enough insulin and begins to burn fat. When the body burns fat, it produces ketoacids. Individuals who are suffering from diabetic ketoacidosis will breathe “fast and hard” in effort to rid their bodies of the acid. Dr. Mace described that breathing as follows, “It would be like you just ran a race, and so you would be breathing that hard.” Unless a person suffering from diabetic ketoacidosis receives insulin, his or her body will become progressively acidotic, and his or her brain will cease to function properly. If untreated, a person suffering from diabetic ketoacidosis will become comatose, stop breathing, and die.

Dr. Mace also testified that a blood sugar level of 1297 is “very high” and that with a blood sugar level this high, Nanette would have been “acutely ill” and would have gone into cardiac arrest.

2. The defense

a. Gregory's defense

Endocrinologist Dr. Steven Schessler testified concerning diabetes and diabetic ketoacidosis. Dr. Schessler explained the differences between type 1 and type 2 diabetes, and stated that a person who suffers from type 2 diabetes and who has not had specialized training regarding type 1 diabetes might incorrectly treat a type 1 diabetic. Dr. Schessler also explained that some diabetics can have normal blood sugar levels, yet be acidotic. Dr. Schessler also agreed with defense counsel that it would be “possible” for a person's blood sugar level to rise from 300 to 1200 in 12 hours.

Appellants' daughter, Heidi, testified that Nanette was sick for “about three days” prior to April 15. During those three days, Heidi saw Nanette only twice. Nanette appeared sick and told Heidi that she had a stomach ache. On the second day that Nanette was sick, Nanette asked Heidi for some water. Heidi saw Gregory attempt to give Nanette pizza and a yogurt drink, but Nanette pushed them away. Heidi also saw Gregory check Nanette's blood sugar level.

The paramedics took Nanette to San Gorgonio Hospital. Heidi and Yvonne went there to see her. After Nanette was transferred to Loma Linda Hospital, Heidi went with Gregory and Yvonne to see Nanette. According to Heidi, at the hospital, Gregory was yelling and “in a rage” because “they wanted him to pull the plug.”

Heidi stated that approximately two months prior to Nanette's death, Yvonne was attacked by a man who kicked her in the head with steel-toed boots and stabbed her with keys. After the attack, Heidi could see that Yvonne had bruises on her head and chest and cuts on her arms, shoulders, and face. Yvonne was taken by ambulance to the hospital. After this incident, Yvonne appeared “sad” to Heidi. Yvonne told Heidi that she was “messed up” from the attack.

b. Yvonne's defense

Appellants' son, Gregory Latham, Jr. (Gregory Jr.), testified that sometime prior to February 2006, he witnessed a man attack Yvonne.⁸ Gregory Jr. saw the man “stomping” on Yvonne's head. Yvonne had “lumps all over her head” as a result of the attack. Gregory Jr. also was “pretty sure [Yvonne] was bleeding” as a result of the attack.

On the morning that paramedics took Nanette to the hospital, Gregory Jr. heard Yvonne screaming as if she were “frantic about something.” Yvonne told Gregory Jr. that Nanette had stopped breathing. Gregory Jr. performed cardiopulmonary resuscitation on Nanette. Yvonne was crying and appeared “really stressed out” a...