People v. Pedraza

1

THE PEOPLE, Plaintiff and Respondent, v. ZAGID LUJANO PEDRAZA, Defendant and Appellant.

D081371

California Court of Appeals, Fourth District, First Division

August 24, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No SCE385858, 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.

BUCHANAN, J.

Defendant Zagid Lujano Pedraza appeals from a judgment entered after a jury found him guilty of felony child abuse in violation of Penal Code 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 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.

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 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 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....