David C. Patkins v. Shawn Hatton

Filing 5

ORDER SUMMARILY DISMISSING PETITION FOR LACK OF SUBJECT MATTER JURISDICTION; REFERRING THE PETITION TO THE U.S. COURT OF APPEALS PURSUANT TO NINTH CIRCUIT RULE 22-3(A); DENYING A CERTIFICATE OF APPEALABILITY by Judge Dolly M. Gee: Pursuan t to Ninth Circuit Rule 22-3(a), the Court refers the habeas Petition to the U.S. Court of Appeals for the Ninth Circuit for consideration as an application for leave to file a second-or-successive habeas petition. This action is dismissed wit hout prejudice for lack of subject-matter jurisdiction pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. LET JUDGMENT BE ENTERED ACCORDINGLY. A certificate of appealability is denied. Case Terminated. Made JS-6. (copy of petition and Appeal form 12 attached) cc:9th Circuit (Attachments: # 1 Petition-part 1, # 2 Petition-part 2, # 3 Appeal form 12) (jm)

LODGED
PETITION
HABEAS CORD

AO 241 (Rev. 5185)

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Place of Confinement

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etitioner)

Name of Respondent ~auihonzed pe

Name of Petitioner (include name under which conviciedj

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PETITION

I. Name and location of court which entered the judjment of conviction under attack

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«L~fc Rn((A~ Go urJT}' ~~ ~'r JF~SI DE, ~//Oo M~I~ ST , ~iVER S~ bE, C A . ~'Z SO
Z. Date ofjudgment otconviction
3. Length of sentence

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~~~n ~ ~ 7 ~'

4. Nature of offense involved (all counts)

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5. What was your plea? (Chec4: on
(a) Not guilty
-~
(b) Guilty
(c) No10 contendere
U
If you entered a guilty plea to one count or indicm~enl, and a not guilty plea to another count or indictment, give details:

G. If you pleaded not guilty, what kind of trial did you have? (Check one)
(j~/~
(a) Jury
(b) Judge only
J
7. Did you testify a~ the trial?
Y es ~ No r~7/
$. Did you appe;il from thejudgmcnl otconviction?
Y es ~ti' No

(~)

AC 24 i (Rev. v/051

J. If you aid appeal, answer the following:

o~ ~~QEA~-S~ '~~'~~ q~P. P~sT~I~T, Di~l(,f' lorl Z
(v) Name of court Cl~• Ccu(ZT
(bj Resuli

D E►J I E D,

~ I~ S E r10 . ~ c~ z 7~ 7

(c) Dale of result and citation, if known
(d) Grounds raised

(►JST2c1~-TI N ~~~'of~ ~ £~le-o~ I~ ~1(~~"L~TT~l~G PR~a~ ACTS

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rnr~~,2QE c r ggsTR ~c'- aF a-~~( r~ F►sT .

slate court, please answer the lollo~~~ing:
(ej If you soughs further review of the decision on appeal by a higher
( I) Name of court
(2) Result

Cf~ L IF~~~~ Fl

DEN(E~ ,

CI~SF

(3) Date of result and citation, if known
(4) Grounds raised

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please answer the following with respect to each
(~ if you filed a petition for certiorari in the United States Supreme Court,
direct appeal:
(1) Name of court
(2) Result

(3) Dale of result and citation, if known
(4) Grounds raised

filed any petitions,
1 0. Other than a direct appeal from the judgment of conviction and sentence, have you previously
to thisjudgment in any court, state or federal?
applications, or motions with respect
Yes~No`;
1 1 . If your answer to I O WAS "yes," give the following
for~~aUo
U►JIYE~ ST~T~S CovRT~ c.E~rT(Z^~ DIS'r• o~ ~n~~~o/~r~r,~
t i Iv meofcourt

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(2) NaWreofprocceding

(3) Grounds raised

N~6Fns ~cjZp~s

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(~E~~~~TI`~~` ~fSI S7nNC~ off- T~~/IL Col,~rJSEL; ('RofEe~~o~Q~~L

M r S~aI'~(jJG'r~ r/~1 ~ ~-'~~ T~ P~c,~'Er(Y I~sT2V~-T,' INSvf —F~~EN'~
~s~

AO 241 (Rev. 5/B5)

~cTS ~ ~ni1'TRvcTtcN
~vrpE~c~~ ~k2vR ~n~ ~tDµi ~~ ~NC PRr~~ t~n0
f`~Z~.2.0~~~'
E~Qo~ ~~A~T~c

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on your petition, application or motion''
(4) Did you receive an evidentiar~~ hearing
Yes — No
(5) kesull

'~FN~~~

(G) Date of result

~ — 1 y `~ ~ (~

or motion give the same information:
b) As to any second petition, application
(
(1) Name of court
2)
( Nature of proceeding

(3) Grounds raised

petition, application or motion?
4)
( Did you receive an evidentiary hearing on your
Yes -' No
~5) Result
6)
( Date of result
ation or
n,
jurisdiction the result of action taken on any petitio applic
(c) Did you appeal to the highest state court leaving
motion?
Yes ~; No ~
(I) First petition, etc.
Yes ;~ No ~
petition,
2)
( Second
you did not:
any petition, application or motion, explain briefly why
d) If you did no! appeal from the adverse action on
(

y the jugs
that you arc being held unla~~~fully. Summarize briefl
.
! Slate concisely every ground on which you claim
nal grounds and jucls supporting same.
pages stating additio
supporting each ground. If necessary, you may attach
rilY first exhaust vour available state court
In order to proceed in the federal court, vote must ordin~
CAUTIOI~:
the federal court. If 1'ou fail to scl forth all grounds in this
t action bl'
remedies as to each ground on which you reques
nal grounds at a later date.
petition, you may be barred from presentin~ additio

(4)

I

A0247 (Rey. 5/85)

raised grounds for relief in habeas corpus
wing is a list of the moss frequently
raise ~n~•
For your information, the follo
ate eround for passible relief. 1'ou may
preceded by a letter constitutes a separ
proceedings. Each statement
state coup re medies with respect io them.
sted your
other than those listed if you have exhau
base your
grounds ~~~hfch you may have
ting to this com~fction) on which you
peti(ion a!! nvailahle ~rnunds (rela
ver, you should raise in phis
Howe
in custody unlawfull}~.
, you must allege facts. The
alleeations that you arc being held
one or more of these grounds for relief
of these listed grounds. if you select
Dv nog chec{; any
of these grounds.
one
merely checl;(a) throu~,h Qj or any
ing of the
petition will be returned to you if you
induced or not made voluntarily with understand
plea of guilty which was unlawfully
(a) Conviction obtained by
quences of the plea.
nature of the charge and the conse
coerced confession.
(b) Conviction obtained by use of
stitutional search and seizure.
evidence gained pursuant to an uncon
cj Conviction obtained by use of
(
~ful arrest.
evidence obtained pursuant to an unlav,
(d) Com~icuvn obtained by use of
ion.
of the privilege against self-incriminat
to
(e) Conviction obtained b~~ a violation
to disclose to the defendant evidence favorable
l failure of the prosecution
iction obtained by the unconstitutiona
f) Con~~
(
the defendant.
ardy.
tion of the protection against doublejeop
(gj Conviction obtained by a viola
and impaneled.
which was unconstitutionally selected
of a grand or petit jury
(h) Conviction obtained by action
of counsel.
(I) Denial of effective assistance
of appeal.
j)
( Denial oC right
I~ D C- E ►`f C F C L A I l~
A G T v A 1— I N
Ground one:
A.
CU~NS~I~~
~FFCTI~/F Afs' I .rT~I~CE aF
—AG/1iNST EQRv12r DBE T~ (NE
ut citing cases or law)
Supporting FACTS (state brief]j~ witho

f2~~~~QL€
P
~E2 ~~✓/~s CoN~/l cTt' 87 ur
ScE ATf~A~-NAP = P.c~TITIa
~~ s'YNnko r~~
(NFLI~Tfer~ of sNn~<irl~ ~3n.
~~I'~K'~ of^~r~~d~s ~oR
(
SBS~ C~usE GF DEI~TK.

D Ev10E~cF-r11~~
TItETully;.sl~S NaT" P(ZESFNTf

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u rl~v ~~tF(ED FXpf(ZT Ta ~n1~E
KF Ev~PEr1cE~ Rlrt(F~ 13Y
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2oLoCr(~/~L E~CP~RT'
c!f /1~/T~P`( t3Y rJFU
'
D l~~~~s13 naES rlaTFKIST

w NaM l'ERFo►~r~En ~vtaPsy.
B. Ground nva:

fj G T U /-~ 1.

1NIJ~' C ~ f•/ ~ ~

~ ~. /~ ~ ~

of ~A~lE E~/IDE r(~~ BY FX P ~RT~
~— /~C-AIn1sT Q,QoSFc~TeRrAL :1SE
citing cases or law):
Supporting f ACTS (state bricflp without

r
(~ was car~~r~crEo ~Y v~2F~~n8~~ ExP f,e
SEF ATrI~C ~tED = P~T~TIarIE

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r~<~ f~~C1~ SYf~OR~ME ~J~S~
fad ffJl~LlcT~cl~ of SL'(111~1

C/IJ,S~

P2ESfNTED FvIDFN~f TKtiT TKt~ FV IO ENcE
TKO ~~RY vf~S ncoT
v~~fD SBS J~A(~rr~J~S
uNQvn ~iFiFP EX PF~2r Ta r~nKF ~1

f(~~o(,-(3''f- v~t'(arn
T~fSY b'}' NE~Ra~oL~c/~L t~/lT
( ol~S NoT- FXI .ST oIf /~~~
1

PERF~Rti~~o rKE n~T~Psy.
~s~

AU Z41 (kev, 5l&5)

C. Ground three:

l citinS cases or lava):
Supporting FACTS (state briefl~~ ~vi[hou

D. Ground four:

citing cases or law):
Supporting FACTS (state brieJlp without

state or federal, state briefl~~
not previously presented in any other court,
1 3• [f any of the grounds listed in 12A, B, C, and D were
reasons for not presenting them:
what grounds were not so presented, and give your

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D~/1CfIf~'SIP~DF/~Tt'( ,

ent under attack?
ng in any court, either slate or federal, as to the judgm
4. Do you have any petition or appeal now pendi
Yes ,~ No~~,/
judgment attacked
attorney who rcpresentcd you in the following stakes of the
5. Give the name and address, if known, of each
S(J ~ ~
herein:
/1 ~ T S~ ~ ~S ~ y Z O L G`~ /~ I`fG E s7". ~ (~ l ~/F(Z
(a) AI preliminary hearing S7 u

c A • 9ZSol
(b) Al arraignment and plea

s~ M t

~~)

NO 24 i (Rev. 5/85

(c) Ai trial

SAI`/~c

S.~ ~''~E

(d) At scniencins

(e) On appeal

A, CA.
-(.'~~sl~~~, i.e. gOX l~63~ ~FrIr~,2
S Ff/~(Zc IJ ~"dr~/~S ~#

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f)
( In any posy-conviction proceeding

f~(D ~ F

O IJ E
in apost-conviction proceeding IJ
(g) On appeal from any adverse rulinb

indictment, in the same coup and at the
count of an indictment, or on more than one
1 6. Were you sentenced on more than one
same time?
Yes ~No
the judgment under attack?
after you complete the sentence imposed by
1 7. Do you have any future sentence to serve
Yes ~ No b!
imposed sentence to be served in the future:
(a) if so, give name and location of court which

ce:
b)
( Give date and length of the above senten

ed the sentence to be
filing, any petition attac}:ing the judgment which impos
c) Have you filed, or do you contemplate
(
served in the future?
No
Yes
[

ner relief to which he may be entitled in this proceeding.
1~Jherefore, petitioner prays that the Court grant petitio
Signalurc of Attomcy (if any)

true and correct. Executed
declare under penalty of perjury that the foregoing is

~ y-/7
(date)
Signature of Petitioner

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VERIFICATION

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contained in the
I am the petitioner in this matter. I have read the allegations

3
4

dge.
petition and know them to be true by my own personal knowle

5
6

a that the
declare under penalty or" perjury under the laws of the United States of Americ
forgoing is true and correct.

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Executed on this

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day of

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DA~/i~

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(PRINT NAME)

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(SIGNATURE)

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PROOF OF SG12~~1C'E
13l' I'~RSO\ ]\ STATE CL STOI)1'

. ~ l7~Gi
(~'.I'. ~~~ 101_ 1:~1. DUI ~5. F.K.CP.~: ~S L~~.S.C'
1

NJ'
Dnv~l? c. P/~rKI

I.

declare:

of tl~~ Correctional Ir~~iniil
a part}~ to this action. 1 am ~ resident
I a~~l over 1 S years of a,e, and am
address is
terey, State of California. IVIy prison
acility Prison in the County of ~'Ion
F

4
5

Correction~il T►~aiuiu~ Facility'
FIousinb:
P.O. 13os 70~
Soledad, C~. 93960-070

6
7
On

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sa Z~ S v P

, I served the attached:

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cry PET~r~~r~ F~k v~2~f cl` (fA(i~As
~icT~n~ ~rr►JocFr~cF cL~i~v

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a sealed envelope, ~vitl~
and con~ect copies thereof, enclosed in
-,
On the parties hereinli~ placin~T true,
CCR ~ ~1=~~ (cil.
given to prison staff' ~'. T~ursuant to 1~
uosta~e full}' paid, ~-eritiecl b~-. and
ectional institution iz~ ~~~hich
prodded at the above mined corr
for deposit in the United States I~~Iail
Iam presently confined.
The en~-elope ~L~as addressed as follows:

16

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tll~ iore~roin«
the Ia~vs of the United States of America t1~at
Z declare under peualry of perjtu~y under
is true, and correct.

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Ltecuted on:

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(D~clarant's Si Tn~~ture)

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n is considered filed the du~~ it is handed o~
i * Please, note drat according to the ~ri~on mailbox rule. the documentlsl mentioned herei
12"? 1 : ~loure ~~. T~.~ome~~ (3U1
l luiz.u~ v. C;u-e~ (9'~' Cir. 2ii01) ?73 F. 3d 1230,
7j
to prison authorities for mailin,, to the court. Sec
1 21) Cal. App. 4`~'J10, 913-J I S,
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00028
ABSTRACT OF JUDGMENT -PRISON COMMITMENT
INDETERMINATE SENTENCE
~ SUPERIOR
u MUNICIPAL
u JUSTICE

COURT OF CALIFORNIA, COUNTY OF

RIVERSIDE

COURT (I.U.)

BRANCH OR JUDICIAL DISTRICT:

FORM CR 292

RIVERSIDE

D
5UPERIO~R COURT OF~IFORN IA
COUNiY OF RIVERSIDE

NOV 1 5 2002
K~1 PRESErR

PEOPLE OF THE SPATE OF GIIFOHNIA versus
UEFENDANT:DAVID CHARLES PATKINS

_B
-C

u NOi PRE:

pl(p~

-o

AMENDED

COMMITMENT TO SPATE PRISON
ABSTRACT OF JUDGMENT
nae of enni ~o)lan 1~1
i i ~ i4~n9
'

ABSfRACi u
oEvr. xo.
52

-E

1. DEI ENDIWT W!S CONVICfEU OF THE COMMISSION OF THE wLL➢wING FELONIES:
1
ADORIONAL COUNTS ARE'LISfED ON ATDICHMENT

C

COUNT

PC
PC

SECTION NUMBER

fAOE

1
?2

(NUMBER OF PAGES)

DATE OF
CONVICTION

~~

CRIME

~~

MO

2ND MiTRDER
O1 10
ASSAULT -ON CHILD W/BESU O1' '10

187
273A&

~ /

I P~~ON NO.OA VHOBWION OfiICER

ACHS

ID~Y~S
E~~P

IC~HARLESHUGHES

~n~n't FgRY

~~"~l.ROGERS

RICK F. MAGERS

DAY

CONVICfEO
BY

~
~

~

~

~~

YEAR ~ ~ o = ~

09 02
09: 02

X
RI CL,AL
`_,

2 ENHANCEMENTS charged and found true TIED 70 SPECIFIC COUNiS (mainly in the § 12022~series) including WEAPONS, INJURY, LARGE AMOUNTS OF CONTROLLED SUBSTANCES, BAIL STATUS, ETG:
.
Far each wont IisY enhancemems hor~mally. Eller tlme imposed for each ar "5" for stayed or stricken. DO NOf LISP enhancements charged bul nol found true a~ stricken un0er $ 1385.
Pdd up 5me for anhancemems on each line and emer tine total in ripM-hand column.

3 ENNANCEMENiS charged and found true FON PRIOR COlMCIIDNB OA PRIOR PRISON TERMS (mainly § fi67~senes) and OTHER:
List all enhancements hazed on prior corrviNons or prior Ddson terms charged and found hue, II 2 0~ more under the same section, repeat it for each enhancemem e.g., it 2 rwn-Nalent prior prison
terms untler § 66?S~b~, list § 6675~b) 2 limes). Enter time imposeA for each or "S" for stayeA or stricken. DO NOT LISP enhancements charged but not tountl true or stricken under § 1385. Add tlme
for Noe enhaneemeMs antl enter fatal in right-hand column. Also enter here airy other enhancemerrt not provldeA for in space 2.
Enhancement

Yrs. or
„S..

Enhancement

Yrs. ar
. 5..
.

Enhancement

Yrs. or
.5..
.

Enhancement

Yrs. or
.
.S„

Enhancement

Yrs. or
„S„

Tool

Enhancement

Yrs. or
„S,.

Enhancemerrt

Yrs. or
. 5.,
.

Enhancement

Vrs. or
, 5.,
.

Enhancement

Yrs. or
„S,.

Enhancement

Yrs. ar
„S,.

Total

4 Defendant was semenced to Slate Pdsan for an indeterminate term:
.
A. ❑Far LIFE WRNOUT THE POSSIBILfTY OF PAROLE on counts

~(~
C. ~ FarASRyears to life, WITH PQSSIBILfTY OF PAROLE on mums
D. ~ far
years to life, WITH POSSIBILITY OF PAROLE on croums

B ❑Fay LIFE WITH PoSSI8ILITY OF PAROLE an counts
.
E. ❑For other term prescribed by law on counts

1
Z

. (Seedy Term on sepa2fe sheet i/ necessary.)

PLUS enhancement time shown above.
u concurrem vAth amp Dior IncomO~eted sentence(s).
5 ❑Indeterminate semence shave on this abstract ro be servetl ~ conseculi~e ro
.
fi Other Orders: (List all consecu6ve/concurrenf sentence relatlonships, fines, efc it no( shown above)

SENTENCED TO STATE PRISON FOR A TOTAL INDETERMINATE SENTENCE OF 9 YEARS PLUS 80 YEARS TO LIFE.
PAY RESTITUTION FINE PURST TO 1202.4(B)PC. PURST TO SECTION 2085.5 PC, DEPT OF CORRECTION IS
AUTHORIZED TO i.OLLECT RESTITUTION OBLIGATIONS. SUBMIT THUMB & PALM PRINTS,SPECIMENS OF BLOOD &
SALIVA TO
CDC FOR DNA TESTS PURST TO 296 PC, RESULIDS TO BE FORWD TO COURT FOR DISTRIBUTION.
( an additlonal page it necessary.)
Ilse
7 ❑The Court adviseO me defendam of all appeal rights in accordance with rule 410. Calilomia flutes of Court. (AFTER TRIAL ONL`n
.
a EJ(EClRION OF SENTENCE IMPOSED:
A ~ R INITIAL SENTENCING
HEAVING

9 u IU RESENTENCING PUflSWNT 10
OEGISION ON APPEAL

fl dVE OF SENTENCE PHONOUNCEO
(M0~ (DAn np)
11 ~ 14 ~ ~ 2

CHEOR fOfl

C. ~ AFTER flFlOGQ10N OF
PNOB4TION
TOTAL MYS

IgM
q1S~p~y 566

PCfUpL fDfgL
nME
O

~
~o~. ,~B
hereby cerory Me loregoing to tie a correct abstract o! Me judgment mJ ,.6iis action..~,

~

ERedlve January 1, 1993

u ~ QUENTIN

SLATE IHSfffUT10NS
u DMH

~ fJ1LlF. INSfRUTIONS
f MEN—CHINO
-0R
~ R.J. DONAVAN

u CpC

~ DEUEL VOG INSL

SOUTHERN RECEPTION

~ . E COURT

~,~a,y .. .

ThI~ form Is p~mcrl~aer Ponal Cade 5 ~~a5 b ~alltly Me n

~~ Aoo~a a~ me
Judicia~ Council of Ca~ilomia

~ CCWF—CHPNCHILLA

E ~ OfHEA

•. 9
2

/ ~

~
~
, /

lDfi1L fANDUCf
CAEOffS 0

INCWDING:

10. DEFENDANT IS REMANDED TO THE CUSf00Y OF THE SHERIFF, TO BE DELIVERED:
~ CALIF. INSTRUTION FOR
~ FUgfHWITH
]
IN70 THE CUSTODY OF
THE DIRECTOR OF
WOMEN—FRONTERA
RFfER 48 HOURS,
CORRECTIONS AT THE
WpgCO
~
IXCWDING SATURDAIS,
RECEPfION~GUIUANCE
~
SUNDAYS AND HOLIDAYS
CENTER IDCATED AT:

DEPUTY'S SIGNATUfj~.

D. Q AT HESENTfNCING PURSUANT 10
REfALL OF COMMfiMENf (PC § fll0~d~)

q

i

11/15/02
taMencet Athchmenh mry he uud but muH tie relerted In In Ihle document.

ABSTRACT OF

— INDETERMINATE
Pon. C. § 17135

DISTRIBUTION

PINK COP/—COURT FILE

YELIDW COW—OEPARfMEN7 OF CORRECTIONS

~0~2~2

r
'
f

, COUNTY OF
SUPERIOR COURT OF CALIFORNIA
BRANCH
coua i.o.

CASE NUMBEF 15)

52

111402

-~
-E
LLEAK

_ _._'_"_'.._~""'.., __.....__.,... ...
1 1

1

Rogers

COUNSEL FOH OEFENOAM

OFFICEfi
PROBATION N0. DR PROBATION

PD —Stuart Sachs

Charles Hughes

O'Learu

W.

PATRICK F. MA6ERS

COUNSEL FOfi PEOPLE

FEPOflTEH

~ ,

-C

~ NOT PRESENT

JUDGE

DEPT. NO

GATE OF HEARING iiuoi ~wri irni

NOV 15 2002

-A
-B

RIF096844

TJPRESENT

AMENDED
ABSTRACT u

N
COMMITMENT TO STATE PRISO
A BSTRACT OF JUDGMENT

X 11 1 ~

COUMT`~!

RIVERSIDE

AKA:

D.

[~ D (t C~ DD
RNIA
SUPE
OFTRIVERSIDE

River 5 i d e

ORNIA versus
PEOPLE OF THE STATE OF CALIF
CHARLES PATKINS
DEFENDANT:DAVID

FoaM os~ 2sc

COMMITMENT

ABSTRACT OF JUDGMENT -PRISON

_._ _.,............ .~....~~.,. ,,,.. ....,,.~.x ..~,,.~„

CFNTFIJf.F HFLATYW

,..~~~...c..~~oc~

~
1

1

~

'1

1

-----.---

-----■
I_-

LLED SUBSTANCES, BAIL STATUS, ETC.:
INJURY, LAPGE AMUUNTS OF CONTRO
svicken under § 1305.
the § 12022 -series) including WEAPONS,
ents charged hW nat found true or
T1E0 TO SPECIFIC COUNTS (mainly in
ENHANCEMENTS charged and found true
for staved or stricken. OD NOT LIST enhancem
2.
lly. Emer time imposed Ivr each or'S'
kr each caunl list enhancemems horizontia
enter line lalal in right-hand column.
Add up lime for enhancements on each Ilne and
i~~~
~~~
~~~
~~~
~

terms under § 667.51
OTHEq.
PRISON TEflMS mainly 3 fi 6Lsenesl and same section, repeat e for each enhancement le.q. If 2non-violent prior prison enter total i~ right-har
true FOfl PHION LONVILTONS OA PAIOH
ents and
under the
9. ENHANCEMENTS charged and found
terms charged aid lound true. If 2 or mare charged 6w nog found true or flritken under §1385. Add lime m These enhancem
ents
hazed m prior convictions a prw prison
NOT LIST enhancem
Usi all whancemen~s
for each or 'S' tar vayed ar stricken. 00
Ilse 4 667.5~b1 2 times. Enter time imposedem nog provided for in space 2.
rnlumn. Also enter here any other enhancem

4. INCOMPLETEO SENTENCEIS~ CONSECUTNE-.
C~l1NiY

CASE NUMBER

5. QTHEH Ofl0Efl5
pursuant to 1202.4(
Pay Restitution Fine
artmen
1 X085.5 PC, Dep
pursuant t0 5BCt10T
ent page
See attachm

CREDIT FOR
TIME SEAVE~

necessary.
Use additional sheets al plain paper it

ENT PAGES (FOflM OSL 290~AI:
of term kr enhancemeNs.)
6. TOTAL TIME IMPOSED ON ALL ATTACHM
include g 654 stays or 6scretianary says
~O119LE-BASEO~TEHM LIMIT, ETC. ~Do nm
AR OR 10-YEAP LIMIT INJ SUBOfl~INATE TFNMS,
7. TIME STAYED TO COMPLY WITH 5-YE
8. TOTAL TEflM IMPOSED:
E. ~ OTHEF
9. EXECIJ~ION OF SENTENCE IMPOSEO~.
TO flECALL
D. ~
P
~TION OF
C. ~
ASUANT TO
M1
OF COMMITMENTG~PC §S I70~
B. ~
SENTENGNG
ON
PROBATI
OECI~SIONNON APPEAL
A ~ HEMING ~
LDCAL CONDUCT
STATE INSTITUTIONS
ACTUAL LOCAL
TQTq~ GAYS
CAEOIT FHB
CREDITS
u coc
TIME
E PFlWOUNCEO
u oMH
10. DATE 6F SENTENC
TIME SPENT
566
(M0~ (OPYI RYA
566 wewoiNc
uu eusToav
} 1 14 O~
OF THE SHEflIFF, TO BE OELIVEflE6
~ OEIIEL V~CJNST.
I 1. ~EFENOANT IS flEMAN0E0 TU THE Cl1ST00Y
0N
n
ME01C
~ FOflIMENS CH10
CAVILLE
~fACIL~7
~FOATHWITH
~ WOMEN SFNOTEflPOfl
~7}~~pIflECTOflTOF Y OF
❑SAN ~l1ENTIN
~pgqELTI0N5 AT THE
AFTER 48 HOI1N5,
flECEPTION~GWOANCE
E %CLOOING SATUfl0AY5,
0 Q~HEH ISPECIfV~
x
CENTEfl LOCATES AT:
Sl1N0AYS ANO HOlI0AY5

OR COURT

CLERK OF TH
abstract of the judgment m~~ , E~ ~~
1 hereby certify the foregoing fo be a correct
~~

eNs of 4 1219 for determ ~
under Penal Code S 1119.5 io satisfy the ~equirem

ABSTRACT OF J

r~~m neaPi~n n, ~i~~

11 15/ 2
t

antes,

~y
R1VE. ~,

Ellecwc Jawniy t t990
OISTflIBI1TI~N

Py

e

'
~
This form is press ~

•• '~o

PINK COPYf,OURT FILE

dacumeN.
he sad 6u~ must he referred la in this

MMITMENT

TY OF
YELlO`N COPY-~EPAflTMENT OF Lf1PRECTI0N5

Of LHE COGRT
WHITE COPY~AOMINISiflATNE OFFICE

r

4750,

2011 U.S. Dist. LEXIS 10

pondent.

D J. SUBIA, Warden, Res

oner, v. RICHAR
DAVID C. PATKINS, Petiti
4-DMG (FFM)

CASE NO. EDCV 07-112

CT COURT FOR THE
U NITED STATES DISTRI

IFORNIA

CENTRAL DISTRICT OF CAL

4750

2011 U.S. Dist. LEXIS 10

April 14, 2011, Decided
April 14, 2011, Filed
kins v. Subia,
Judgment entered by Pat
pus denied, Dismissed by,
by, Writ of habeas cor

Adopted
SUBSEQUENT HISTORY:
11)
40(C.D. Cal., Sept. 14, 20
2011 U.S. Dist. LEXIS 1047
.
(

l., Feb. 4, 2004)
s, 2004 Cal. LEXiS 1163(Ca
HISTORY; People v. Patkin
?RIOR
accidental, stairs,
medical expert, abusive,
l, degree murder, trauma,
doctor, serious
child abuse, trial counse
knuckles, fair trial, brain,
CORE TERMS: prosecutor,
ulative, federal law, brass
ken, malice, died,
duct, misconduct, cum
ng, fracture, shaking, sha
guilt, prosecutorial miscon
injury, prejudicial, instructi
federal habeas, bodily
felony, medical evidence,
trial counsel

kins, Petitioner, Pro se,
COUNSEL:[*1] David C Pat

lone, CA.
ice of Attorney General of

AG Off
. ,IEAD ATTORNEY, CA
dent: Garrett Beaumont

, Respon
For Richard J Subia, Warden
.
California, San Diego, CA

MUMM ., United States
J UDGES: FREDERICK F.

Magistrate Judge.

.
F. MUMM
OPINION BY: FREDERICK
OPINION

RATE JUDGE

MAGIST
TION OF UNITED STATES
EPORT AND RECOMMENDA
R

trict Judge, pursuant

tes Dis
Dolly M. Gee., United Sta
submitted to the Honorable
endation is
This Report and Recomm

ornia. For
ict Court for the Central District of Calif
ral Order 05-07 of the United States Distr
to 28 U.S.C. § 636 and Gene
issed with prejudice.
petition be denied and the action be dism
d below, it is recommended that the
the reasons discusse
~

~. PROCEEDINGS
nt of Corrections, filed a Petition
in the custody of the California Departme
tioner David C. Patkins, a state prisoner
Peti
. Thereafter,
to 28 U.S.C. § 2254 on September 5, 2007
by a Person in State Custody pursuant
for Writ of Habeas Corpus
Petitioner filed a
er to the Petition. On July 31, 2009,
Respondent Richard J. Subia filed an answ
on January 28, 2008,
stands submitted and
Respondent's answer. The matter,thus,
points and authorities in opposition to
memorandum of
denied and that this
Court recommends that the petition be
sion. For the reasons that follow, the [*2]
ready for deci
action be dismissed with prejudice.
II. PROCEDURAL HISTORY
, child abuse resulting
nd degree murder (Cal. Pen.Code § 187)
2002, a jury found Petitioner guilty of seco
On October 8,
0(a)).(Clerk's Transcript 236on of brass knuckles (Cal. Penal Code § 1202
h (Cal Penal Code § 273a), and possessi
in deat
ent felony
been convicted of a serious and/or viol
found true that Petitioner had previously
38.)The trial court thereafter
in state
enced to a total term of 59 years to life
-(e), 1170.12).(CT 245.) Petitioner was sent
a)
(Cal. Penal Code §§ 667(
["RT"j 689-90.)
prison.(CT 281-82; Reporter's Transcript
Court of Appeal filed an
3.) On November 19, 2003, the California
r appealed his conviction.(Lodged Doc. No.
Petitione
tioner filed a petition for
on.(Lodged Doc. No. 6.)Thereafter, Peti
lished opinion affirming Petitioner's convicti
u npub
.(Lodged Doc. No. 8.) Petitioner
h denied the petition on February 4, 2004
iew in the California Supreme Court, whic
rev
h denied the petition on August 8,
corpus in the California Supreme Court, whic
then filed a petition for writ of habeas
2007.(Lodged Doc. No. 10.)
I II. FACTUAL BACKGROUND
from
The following [*3]facts were taken verbatim
conviction:

rming Petitioner's

the California Court of Appeal's opinion affi

e. On October 25,
Garofano,[Petitioner] moved into her hous
2000, after impregnating his girlfriend, Margie
In February
work, working the
ie's maternity leave expired, she went back to
Margie gave birth to their son, Erik. After Marg
2000,
ner] worked occasionally as
until 7:00 a.m. as a critical care nurse.[Petitio
ght shift three nights a week from 7:00 p.m.
ni
10 percent of the family income.
a handyman and painter, providing about
h
ous of the attention Margie gave Erik. In Marc
tient with Erik when he cried. He also grew jeal
[Petitioner] became impa
of
his doctor, Margie noticed a bump on the back
before Erik's four month well-baby checkup with
2001, a few days
rolled off
Erik hit his head on the coffee table when he
n she asked [Petitioner] what happened, he said
Erik's head. Whe
s flipped Erik on his
ie described the way [Petitioner] sometime
During the well-baby appointment, after Marg
the couch.
some pamphlets from
erous way to hold the baby. Margie obtained
the doctor told [Petitioner] that was a dang
forearm,
.
" and left them out for [Petitioner][*4] to read
the doctor about "shaken baby syndrome
itioner] did not contribute
began to argue about Margie's concern that [Pet
etitioner] and Margie, who never married,
[P
Margie asked [Petitioner] to move
on, the arguments became more heated, and
financially to the family. As time went
00 so he could get his life back
that he would move out if she gave him $6,0
out two or three times.[Petitioner] said
$2,000 in early April.
h money, but she gave [Petitioner] a check for
together. Margie did not have that muc

Erik was healthy. Margie worked all night. About 6:30 a.m.
On April 27, 2001, when Margie left for work about 6:20 p.m.,
her to come home from work right away because Erik
he following morning,[Petitioner] telephoned Margie and asked
oner] said Erik injured his shoulder around 5:30 a.m.,
,
.vas hurt. When Margie asked [Petitioner] what happened,[Petiti
he was holding the baby. Margie asked [Petitioner] if he
when [Petitioner] tripped and fell on the carpeted stairs while
so. Margie then told [Petitioner] to call 911 and get Erik to
called 911, and [Petitioner] replied that he had not yet done
he called 911. After Margie hung up the telephone with
the hospital. Although [Petitioner] seemed reluctant to do so,
Petitioner], she [*5] went home immediately.
[
bedroom. A paramedic observed the baby lying on the
Responding paramedics found [Petitioner) and Erik in an upstairs
l injuries. When the paramedic asked [Petitioner] what
bed, looking somewhat drowsy, with a weak cry but no externa
g the stairs when the dog got in his way.The
happened,[Petitioner] said that he dropped the baby while climbin
The stairs were each seven inches high and three feet
paramedic estimated an 18-inch drop after examining the stairs.
wide.[Petitioner] agreed to accompany Erik to the hospital.
waken Erik by calling his name and touching his
After Margie arrived at the hospital, she unsuccessfully attempted to
looked down and the other looked straight ahead. This
chest. When Margie manually lifted Erik's eyelids, one pupil
was a sign of a head injury. Erik then awoke, arched his
alarmed Margie because, as a trained nurse, she knew that this
, however, that Erik could not move his eyes.
head back, and began kicking his legs and crying. Margie noticed
ed.[Petitioner] stated that Erik hit his head on
After Margie found a doctor, the doctor asked [Petitioner] what happen
be treated.[*6] While they waited for the results of the
the stairs when [Petitioner] dropped him. Erik was then taken to
[Petitioner] said it was an accident.
examination, Margie again asked [Petitioner] how Erik got hurt.
CT scan of Erik's brain after noting that Erik was
Dr. Sonne, the emergency room doctor who attended to Erik, ordered a
in a fixed position, and that he had a high pitched
"posturing" with one arm stiff near his side, that his eyes were staring
skull fractures on both sides of Erik's head, bleeding
cry, all indicators of abnormal brain functions. The CT scan showed
of the brain, and blood inside the frontal cortex
between the brain and left skull, a subdural hematoma on the left side
also revealed a healing fracture of Erik's
of the brain. Erik's brain was swollen, indicating trauma. X-rays of Erik's body
stent with the history of the injury given
femur. Dr. Sonne opined that the CT scan and lesions in Erik's brain were inconsi
child abuse workup be performed.
by [Petitioner]. The doctor suspected child abuse and recommended that a
treating doctor concluded Erik's
Erik was then transferred to Loma Linda Hospital for intensive care treatment. The
the child abuse evaluation,[*7] the doctor
condition was critical and ordered a child abuse workup. After reviewing
ner]. An eye examination revealed extensive
concluded Erik's injuries contradicted the history provided by [Petitio
trauma as a result of being shaken.
bilateral retinal hemorrhaging. The examination suggested abusive head
the swelling in his brain to keep him alive.
Erik died three days later, on May 1, 2001, after unsuccessful efforts to relieve
aging, indicated a shaking injury. An older
An autopsy revealed optic nerve bleeding, which, like the retinal hemorrh
ed Erik had been shaken. The skull fractures
fracture to Erik's femur and a more recent fracture to Erik's rib also indicat
of the injuries, particularly the skull fractures,
and subdural hemorrhaging indicated abusive head trauma. The extent
a fall to a carpeted floor. Abusive head #rauma,
stemmed from an impact greater than that which would occur from
rather than an accidental fall, caused Erik's injuries.
a
A pair of brass knuckles were found by police on April 28, 2001, inside
found them at a park and kept them in the garage.

drawer in Margie's garage. [Petitioner] had

3

.)
{Lodged Doc. No.6 at 2-6
V.
' PETITIONER'S CLAIMS
'i

ance of counsel[*8] by

ive assist
endment right to effect
Petitioner of his Sixth Am

1. Trial counsel deprived
errors:
the following prejudicial

committing

r's home;
ing a search of Petitione

t police recovered dur
press brass knuckles tha

{a)failing to move to sup

State's expert witness

(b)failing to object to the

testimony;

and to
the injuries to the victim
(c)failing to investigate
itioner was guilty of mur

(d) conceding that Pet

explore alternative causes

of those injuries;

der;

a sentencing
that was used to impose
fered a prior serious felony
oner suf
the evidence that Petiti
ical experts; and
(e)failing to challenge
to rebut the state's med
available medical expert
to call an
e nhancement;(f) failing
secutorial misconduct.
instances of alleged pro
g to object to numerous
(g)failin

mitting the following act

ht to a fair trial by com
rived Petitioner of his rig

s of misconduct:

.
2 The prosecutor dep

y;

g false evidence to the jur

(a) knowingly presentin

ut the
(b) misleading the jury abo

timony;
content of a witness's tes
uments;

ory arg
s and making inflammat

ing closing argument
(c} misleading the jury dur
ry material;

(d)suppressing exculpato

on witnesses; and

(e)vouching for prosecuti
f)
( improperly "profiling"

Petitioner as a murderer.

lty verdict for second

nd to support a gui
requisite state of["9] mi
instructing the jury on the
ed in

.
3 The trial court err
degree murder.

ulting in

mmitted child abuse res

prove that Petitioner co
uce sufficient evidence to

introd
.
4 The prosecutor failed to
murder.
death and second degree

oner's prior
evidence regarding Petiti
the prosecutor to introduce
its discretion by allowing
erlying that conviction.
5. The trial court abused
children and the facts und
se against another one his
ld abu
conviction involving chi
ly implied to the jury
e that instruction incorrect
y with CAUIC 2.03 becaus
in instructing the jur
6. The trial court erred

d solely on

ioner base
crime and permitted the jury to convict Petit
ioner had made false statements about the
that Petit
t the crime.
the fact that he made false statements abou
i

trial errors set forth
7.The cumulative impact of the purported
trial fundamentally unfair.

in the foregoing claims for relief rendered

Petitioner's

V.STANDARD OF REVIEW
. § 2254(d), as amended by the
ioner's claims herein is set forth in 28 U.S.C
The standard of review applicable to Petit
See 28
. L. No. 104-132, 110 Stat. 1214 (1996)).
)
tive Death Penalty Act of 1996("AEDPA" (Pub
Antiterrorism and Effec
] Under
117 S. Ct. 2059, 138 L. Ed. 2d 481(1997).[*10
see also Lindh v. Murphy, 521 U.S. 320, 336,
U.S.C. § 2254(d);
court unless that
f a claim adjudicated on its merits in state
federal court may not grant habeas relie on
AEDPA, a
application of, clearly established
contrary to, or involved an unreasonable
udication "resulted in a decision that was
adj
in a decision that was based on an
Court of the United States," or "resulted
Federal law, as determined by the Supreme
U.S.C. §
ented in the State -court proceeding." 128
ation of the facts in light of the evidence pres
unreasonable determin
0).
362,402, 120 5. Ct. 1495, 146 L. Ed. 2d 389(200
2254(d); see Williams v. Taylor, 529 U.S.
FOOTNOTES
l be presumed to be correct"
factual determinations by a state court "shal
1 In addition, under 28 U.S.C. § 2254(e)(1),
ion "by clear and convincing evidence."
unless the petitioner rebuts the presumpt
by the Supreme
governing legal principle or principles set forth
"clearly established Federal law" means "the
The phrase
123 S. Ct. 1166,155 L.
ion." 2 Lockyer v. Andrade, 538 U.S. 63,71-72,
at the time the state court renders its decis
Court
its own decision,"so long
not cite the controlling Supreme Court cases in
Ed. 2d 144(2003). However, a state court need
Supreme Court precedent
state-court[*11] decision contradicts" relevant
as neither the reasoning nor the result of the
154 L. Ed. 2d 263(2002)
f. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362,
which may pertain to a particular claim for relie
(per curiam).
FOOTNOTES
opposed to dicta)
ly established federal law is set forth in a holding (as
2 Under AEDPA, the only definitive source of clear
652,660-61, 124 S. Ct.
at 412; see also Yarborough v. Alvarado,541 U.S.
of the Supreme Court. See Williams, 529 U.S.
her a state court
law may be "persuasive authority" in analyzing whet
2140, 158 L. Ed. 2d 938(2004). Thus, while circuit
are binding on the
eme Court law,"only the Supreme Court's holdings
decision was an unreasonable application of Supr
, 1069(9th Cir. 2003).
reasonably applied." Clark v. Murphy, 331 F.3d 1062
state courts and only those holdings need be
radicts the
d federal law if the decision applies a rule that cont
court decision is "contrary to" clearly establishe
A state
hed on "materially
t that differs from a result the Supreme Court reac
verning Supreme Court law or reaches a resul
go
cation" of federal law if
405-06. A decision involves an "unreasonable appli
indistinguishable" facts. Williams, 529 U.S. at
t] decisions but unreasonably
rning [*12] legal principle from [Supreme Cour
"the state court identifies the correct gove
may not overrule a state
ner's case." Id. at 413. A federal habeas court
applies that principle to the facts of the priso
application of governing
independent determination that the state court's
court decision based on the federal court's
if
at 75. Rather, a decision may be rejected only
neous, or even "clear error." Lockyer, 538 U.S.
law was incorrect, erro

was "objectively
the state court's application of Supreme Court law

unreasonable." Id.

l law under
determining the "unreasonable application" of federa
he standard of unreasonableness thstapplies in
'
evidence" under
"unreasonable determination of facts in light of the
section 2254(d)(1) also applies in determining the
may not second999(9th Cir. 2004). Accordingly,"a federal court
Section 2254(d)(2). Taylor v. Maddox, 366 F.3d 992,
that the state court
after review of the state-court record, it determines
guess astate court's fact-finding process unless,
Id.
was not merely wrong, but actually unreasonable."
zes the last
petitioner's claims, the federal habeas court analy
Where more than one state court has adjudicated the
,501 U.S. 797,
1091 (9th Cir. 2005)[*13](citing Ylst v. Nunnemaker
reasoned decision. Barker v. Fleming, 423 F.3d 1085,
ding judgment or
presumption that later unexplained orders, uphol
803, 111 S. Ct. 2590, 115 L. Ed. 2d 706(1991)for
gh ambiguous
prior order). Thus, a federal habeas court looks throu
rejecting same claim, rest upon same ground as the
on was
ned decision in order to determine whether that decisi
or unexplained state court decisions to the last reaso
1112-13(9th
y established federal law. Bailey v. Rae, 339 F.3d 1107,
contrary to or an unreasonable application of clearl
Cir. 2003).
of Appeal,
s for relief in his direct appeal to the California Court
Here, Petitioner raised his current fifth and sixth claim
quent
. The California Supreme Court denied Petitioner's subse
which issued a reasoned decision rejecting those claims
of
on Petitioner's claims. Accordingly, the California Court
petition for review without commenting on the merits
. By
the relevant reasoned decision regarding those claims
Appeal's decision denying Petitioner's claims stands as
endent
other claims. Accordingly, the Court shall conduct an indep
contrast, no reasoned opinion exists as to Petitioner's
or
' rejection of those claims [*14] was either contrary to,
review of the record to ascertain whether the state courts
federal law. Harrington v. Richter, U.S.,1315. Ct. 770,
resulted in an unreasonable application of, clearly established
784, 178 L. Ed. 2d 624(2011).
VI. DISCUSSION
A. Trial Counsel's Performance
el committed a host of errors that, either alone or in
In his first claim for relief, Petitioner contends that his trial couns
right to effective assistance of counsel. In particular,
combination, deprived Petitioner of his Sixth Amendment
errors:(1)failing to move to suppress brass knuckles that
Petitioner faults his trial counsel for committing the following
failing to object to the State's expert witness testimony;(3)
police recovered during a search of Petitioner's home;(2)
alternative causes of those injuries;(4) conceding that
failing to investigate the injuries to the victim and to explore
nce that Petitioner suffered a prior serious felony that
Petitioner was guilty of murder;(5)failing to challenge the evide
an available medical expert to rebut the state's medical
was used to impose a sentencing enhancement;(6)failing to call
d prosecutorial misconduct.
experts; and (7)failing to object to numerous instances of allege
assistance of counsel claims for relief. Strickland v.
A two-step analysis governs [*15] Petitioner's ineffective
2d 674(1984). First, Petitioner' must prove that his attorney's
Washington, 466 U.S. 668,687, 104 S. Ct. 2052,80 L. Ed.
nableness. Id. at 687-88,690. To establish deficient
representation fell below an objective standard of reaso
l'
so serious that counsel was not functioning as the'counse
performance, Petitioner must show his counsel "made errors
at 687; Williams, 529 U.S. 362, 391, 120 S. Ct. 1495, 146 L. Ed.
guaranteed the defendant by the Sixth Amendment." Id.
however, courts "strongly presume[][that counsel] rendered
2d 389(2000). In reviewing trial counsel's performance,
land,
in the exercise of reasonable professional judgment." Strick
adequate assistance and made all significant decisions
124 S. Ct. 1, 157 L. Ed. 2d 1(2003). Only if counsel's acts and
466 U.S. at 690; Yarborough v. Gentry, 540 U.S. 1, 8,

"wide range" of
stances, were outside the
all the surrounding circum
. 365, 386,
the context of
elman v. Morrison,477 U.S
omissions, examined within
this initial burden. Kimm
et
istance, will Petitioner' me
professionally competent ass
6 U.S. at 690.
305(1986); Strickland, 46
Ob 5. Ct. 2574, 91 L. Ed. 2d
r
'
that, but for his
g a reasonable probability
prejudiced by demonstratin
not merely
t show that he was
. at 694.The errors must
Second,[*16] Petitioner mus
different. Strickland, 466 U.S
would have been
damentally unfair.
proceeding that was fun
counsel's errors, the result
trial, but must result in a
the outcome of the
ent performance and
undermine confidence in
r must prove both defici
506 U.S, at 369. Petitione
ining
7; Lockhart,
s deficient before determ
Williams, 529 U.S. at 393 n.1
r counsel's performance wa
the
at 697.
, however, determine whe
ies. Strickland, 466 U.S.
prejudice. A court need not
ult of the alleged deficienc
fered prejudice as the res
w hether the petitioner suf
h respect to any of
and resulting prejudice wit
show deficient performance
et his burden to
ss knuckles recovered
Here, Petitioner cannot me
move to suppress the bra
nsel did not err in failing to
error. First, cou
ss the evidence. As the
his allegations of attorney
basis upon which to suppre
nce because there was no
ed, gave the
oner's reside
me where the search occurr
d uring the search of Petiti
primary resident of the ho
t to search the
g+e Garofano, who was the
ice obtained valid consen
testimony revealed, Mar
.) Accordingly, the [*17] pol
that Fourth
the home.(RT 143, 230
2d 148(1990)(observing
police permission to search
177, 110 S. Ct. 2793, 111 L. Ed.
riguez,497 U.S.
consent has been
residence. See Illinois v. Rod
situations in which voluntary
searches do not apply "to
hority
warrantless
who possesses common aut
Amendment's prohibition on
rched or from a third party
sea
242(1974)
individual whose property is
,94 S. Ct. 988, 39 L. Ed. 2d
obtained, either from the
v. Matlock,415 U.S. 164, 170
inst the
ions omitted); United States
es or effects is valid as aga
over the premises")(citat
mmon authority over premis
recovered from
of one who possesses co
er, the brass knuckles were
(holding that "the consent
authority is shared"). Moreov
son with whom that
in failing to move
absent, nonconsenting per
have performed deficiently
such, trial counsel could not
of the house. As
lure. See Kimmelman
the garage, a common area
h motion was doomed to fai
the search because any suc
recovered during
1, 1344(9th Cir.
to suppress the evidence
86}; Boag v. Raines, 769 F.2d 134
2574,91 L. Ed. 2d 305(19
, 106 S. Ct.
v. Morrison, 477 U.S. 365, 375
ineffective assistance). 3
ument does not constitute
failure to raise meritless arg
1985){counsel's
FOOTNOTES

to suppress
trial counsel's failure to move
t Petitioner is challenging his
dent contends tha
such claim and
3 In [*18j his Answer, Respon
Petitioner, however, raises no
ting officers.(Answer 8-24.)
made to investiga
ssion of statements statements that Petitioner
not raise issue to [sicJ suppre
at 4("Petitioner/Petition did
(Traverse
e failed because
states as much in his Traverse.
had been raised, it would hav
es that, even if such a claim
Court not
tements. Petitioner's
audio tape."j. Regardless, the
e to move to suppress the sta
a result of his counsel's failur
as
substance of Petitioner's
Petitioner suffered no prejudice
into evidence. Moreover, the
officer were not introduced
ting
ardless, the substance of
statements to the investiga
timony of other witnesses. Reg
t
introduced through the tes
e
other evidence establishing tha
statements to the officer wer
y inconsequential in light of the
officers was largel
trary to his
Petitioner's statements to the
ts and exhibits shows that, con
ally, a review of the transcrip
.(See infra.) Fin
and Auth., Exh.
Petitioner abused his vict+m
ice.(See, e.g., Petition, Points
en he was questioned by pol
in custody wh
1125, 103 S. Ct. 3517,
assertions, Petitioner was not
a v. Beheler,463 U.S. 1121,
65, 84-85.); see also Californi
Exh. 32 5336 at p.3, Exh. 32 at [*19]53,
77 L. Ed. 2d 1275 (1983).
M.D., who
timony of Rebecca Piantini,
in failing to object to the tes
perform unreasonably
Piantini's
gh Petitioner insists that Dr.
Second, trial counsel did not
victim being shaken. Althou
which to
uries were caused by the
heless no valid basis upon
opined that the victim's inj
guesswork," there was nevert
baby syndrome was "pure
o pinion regarding shaken

victim's injuries
assisted the jury in understanding the meaning of the
object to Dr. Piantini's testimony. The testimony
brain injuries may have
experience of the jurors -namely, how the victim's
and related to a subject beyond the common
Cal. Rptr. 2d 1, 928
801(a); People v. Mayfield, 14 Cal. 4th 668, 766,60
-esulted from being shaken. See Cal. Evid. Code §
ed by
i's opinions concerning the cause of the injuries suffer
r.2d 485 (1997). The same is true regarding Dr. Piantin
examine, and in
ver, Petitioner was offered the opportunity to crossPetitioner's 1993 victim. 4(See RT 366-72.) Moreo
l, was able to
l experts. In so doing, Petitioner, through his trial counse
fact cross-examined, each of the State's medica
488 U.S. 272, 283 n.7,
of the testifying experts. 5 See, e.g., Perry v. Leeke,
*20]explore any shortcomings in the opinions
[
ing virtues of crosswith approval case law and commentators extoll
109 S. Ct. 594, 102 L. Ed. 2d 624(1989)(citing
S. Ct. 989,94 L. Ed. 2d
ions omitted); Penn. v. Ritchie, 480 U.S. 39, 51, 107
examination in the truth finding process)(citat
ses testimony is
witness can be shown to be biased or that witnes
40(1987)(noting that, through cross-examination,
L. Ed. 2d 177(2004)
v. Washington, 541 U.S. 36, 41, 124 S. Ct. 1354, 158
exaggerated or unbelievable); see also Crawford
n"). Given these
ed "by testing in the crucible ofcross-examinatio
explaining that reliability of evidence should be assess
(
ed prejudice from
performance was deficient nor that Petitioner suffer
facts, Petitioner can show neither that counsel's
counsel's performance.
FOOTNOTES
victim
ing the cause of the injuries suffered by Petitioner's 1993
4 Petitioner contends that Dr. Piantini's opinion regard
clear that Dr
and Auth. at 16.)[*21] However, the trial testimony is
lacked any evidentiary basis.(Petition at 16, Points
before opining as to their cause.(RT 366-70.)
Piantini reviewed the records regarding those injuries
which it
opinion was "only as good as the facts and reasons on
5 Further, the jury was instructed that any expert's
it found unreasonable.(CT 174; RT 583.)
based" and that the jury could "disregard any opinion"

[was]

the
tion that his trial counsel failed to adequately investigate
Third, Petitioner is not entitled to relief based on his allega
l experts
ript of trial counsel's cross-examinations of the medica
causes and import of the victim's injuries. As the transc
e weaknesses in the State's experts' opinions and to suggest
show, trial counsel was adequately prepared to explor
the extent and significance of the victim's injuries. And even
alternative theories to those of the experts to explain
to adequately investigate the basis for the experts' opinions,
assuming, as Petitioner insists, that trial counsel failed
have uncovered that would have made the jury more likely
Petitioner fails to cite any evidence that trial counsel could
[*22]
Petitioner notes that some evidence may have suggested
than not to have reached a different verdict. 6 Although
shaking, the jury was keenly aware that the State's medical
that the victim's injuries may not have been caused by
of the victim's injuries. Nevertheless, all agreed that the victim
experts did not necessarily agree on the precise cause
a
cites (and faults his counsel for failing to uncover) would lead
died from abusive head trauma. Nothing that Petitioner
reasonable juror to doubt this conclusion. 7
FOOTNOTES
pre-trial
that trial counsel erred in failing to conduct adequate
6 The same is true with respect to Petitioner's claims
paramedics.(See, e.g., Petition, Points and Auth. at 29.)
interviews with various law enforcement officials and
Transcript was
of counsel claims, Petitioner asserts that the Reporter's
7 In connection with his ineffective assistance
natural growth
mony that changes in the victim's femurs were due to
somehow altered so as to omit Dr. Trenkle's testi
assertion
(Petition at 31.) There is no evidence to support Petitioner's
spurts, rather than to an abuse inflicted fracture.
or counsel's
aside, there is no reason to believe that the alteration
that the transcript was altered. But putting that

the changes to
ective [*23j of the cause of
ed the proceedings. Irresp
ng it occurred, impact
This opinion was
e head trauma.(RT 439.)
failure to object to it, assumi
victim died as a result of abusiv
e opined that the
364.) Moreover,
the victim's femur, Dr. Trenkl
sive head trauma.(RT 342,
that the victim died of abu
likewise concluded
of the victim's injuries
echoed by Dr. Piantini, who
tim, opined that the extent
ian who attended to the vic
l as the physic
d.(RT 303-04, 342, 440.)
aoth medical experts, as wel
the victim had been injure
Petitioner's account of how
atible with
y impossible" that those
and symptoms was incomp
symptoms, it was "medicall
that, given alf of the victim's
that Petitioner
tified
lly, the evidence showed
Indeed, Dr. Piantini flatly tes
cribed.(RT 397.) Additiona
fall that Petitioner des
med from an
t the resulting injuries stem
symptoms resulted from the
infant, only to later claim tha
bodily injury on an
testimony about the
had previously inflicted great
t Dr. Trenkle's purported
to decrease any likelihood tha
further served
accidental fall. This evidence
acted the jury's verdict.
victim's femur would have imp
trary, trial
oner's guilt at trial. On the con
counsel did not concede Petiti
contentions, trial
an accidental fall.
Fourth, contrary to Petitioner's
injuries were the result of
ce showed that the victim's
[*24j that the eviden
with the accidental
counsel adamantly argued
the evidence is consistent
("Mr. Patkins has told you, and
o id. at 645-46
could have suffered
(See, e.g., RT 620-21; see als
ations given, that this child
lanations, reasonable explan
nsel
You have exp
d against Petitioner, trial cou
dropping of a child....[¶]
oring medical evidence offere
it makes
hion.").) And rather than ign
was injured.(Id.) Moreover,
injuries in an accidental fas
r's account of how the victim
th.(See RT 30ported with Petitione
king caused the victim's dea
argued that the evidence com
nsel may have stated that sha
trial hearing, trial cou
trial counsel was
no difference that, at a pre
context. In proper context,
l counsel's statement out of
itioner takes tria
n-infant son resulted in
31.) As an initial matter, Pet
r's 1993 assault on his the
d from arguing that Petitione
be prohibite
nowledged that the
arguing that the prosecutor
ument, trial counsel twice ack
bility.(Id.) In making this arg
ntal disa
to shaking. Trial
the child's current developme
rent victim was attributable
that the death of Petitioner's cur
l fall.
e was
th resulted from an accidenta
prosecutor's theory of the cas
defense that the victim's dea
ents were
5~ concede Petitioner's
counsel did not, however,[*2
because trial counsel's statem
oner could not show prejudice
uming error, Petiti
(See id.) Regardless, even ass
never heard by the jury.
trial court's
the evidentiary support for the
easonably in failing to Challenge
form unr
to his petition, 8
Fifth, trial counsel did not per
plaint attached as an exhibit
serious felony. Referencing a com
ed a prior,
assault with a deadly
finding that Petitioner suffer
ause the complaint references
s finding was unsupported bec
l court'
mitted child abuse
Petitioner insists that the tria
ation alleging that Petitioner com
was superseded by an inform
int
) As such,
weapon.9 However, that compla
RT 14-16; see also Supp. CT 10.
lty to that allegation.(CT 58;
Petitioner pleaded gui
felony in
with great bodily injury, and
1192.7(cj(8)(identifying any
rnia law. See Cal. Penal Code §
us" felony under Califo
s felony); Cal.
the conviction was a "serio
than an accomplice as a seriou
bodily injury on a person other
y inflicts great
e successfully
which the defendant personall
n which trial counsel could hav
uently, there was no basis upo
. Conseq
ious felony. 10
Penal Code § 667.5(cj(8)(same)
Petitioner suffered a prior, ser
for the trial court's finding that
ry basis
challenged [*26j the evidentia
FOOTNOTES
8 Petition, Exh. 31.

ause assault
qualify as a serious felony bec
t with a deadly weapon does not
ieves that assaul
ifornia law.
9 Presumably, Petitioner bel
a "serious felony" under Cal
render the resulting conviction
that does not
that abstract of
can be committed in a way
183 P.3d 1226(2008)(holding
9, 1065,77 Cal. Rptr. 3d 259,
o,43 Cal. 4th 105
conviction for assault
Compare People v. Delgad
rt to find that the defendant's
was sufficient for a trial cou
slt w DWpn"
r used deadly
judgment with notation "As
ation showed that petitione
was serious felony because not
e § 245(a~(1)
under California Penal Cod

, 2d 334,949 P.2d 31
Cal. 4th 253, 261-62,70 Cal. Rptr
with People v. Rodriguez, 17
to show conviction was
weapon in committing assault),
al Code 245(a)(1) insufficient
of assault under California Pen
ony and
(1998)(abstract of judgment
did not constitute "serious" fel
committed in ways that did and
could have been
serious" felony because crime
"
crime).
in which defendant committed
abstract did not indicate way
e the [*27]jury
his state statutory right to hav
knowingly and voluntarily waived
tioner
the prior conviction, if
10 The Court notes that Peti
doing, he acknowledged that
iction.(RT 14-15.) And in so
r conv
determine the truth of his prio
fornia law.
te a serious felony under Cali
found to be true, would constitu
e medical expert
counsel failed to call an availabl
with respect to his claim that his
to relief
Petitioner cites an
Sixth, Petitioner is not entitled
utor. In support of this claim,
testimony offered by the prosec
l expert
nkett, concludes that the
to testify to rebut the medica
, citing a study by Dr. John Plu
, M.D., in which Dr. Schweller
ler
posed testimony, however,
opinion from Thomas Schwel
hteen inches. Dr. Schweller's pro
consistent with a fall from eig
conclusions
victim's cause of death was
of Dr. Plunkett's study and his
ause the jury was already aware
erent result bec
-94, 474-75, 636would not have led to a diff
y 75,000 cases.(RT 374-75, 392
injuries in 18 out of approximatel
fatal head
an effort to
about how short falls led to
s about Dr. Plunkett's study in
l questioned the medical expert
counse
-75.) The jury's verdict,
37, 640-41.j Specifically, trial
death.(Id. at 374-75, 392-94, 474
ns about the victim's cause of
sio
result from an
undermine the expert's conclu
case,the victim's injuries did not
believed [*28J that, in Petitioner's
however,shows that the jury
accidental fall. 11
FOOTNOTES
ator Glenn Miller in
hored by Deputy Coroner Investig
oner's investigation report aut
cor
. 17). MiNer's
11 Petitioner also references a
available witnesses.(Petition, Exh
llenge to counsel's failure to call
connection with Petitioner's cha
s who testified, Miller
er because, like the medical expert
ld not have benefitted Petition
testimony, however, wou
of abusive head trauma.(Id.)
concluded that the victim died
utor's alleged
l's failure to object to the prosec
eas relief based on his trial counse
to hab
aim Two), none of
Finally, Petitioner is not entitled
prosecutorial misconduct claim (Cl
tion with Petitioner's separate
l counsel did not
misconduct. As explained in connec
merit.(See infra.) Accordingly, tria
of prosecutorial misconduct has
Petitioner's many allegations
ther improper nor prejudicial.
to object to conduct that was nei
form unreasonably in electing not
per
.
B Prosecutorial Misconduct
Although
mitted various acts of misconduct.
er contends that the prosecutor com
tion
one of the
In his second claim for relief, Peti
h of those challenges [*29] falls into
ions on the prosecutor's part, eac
act
the content of a
Petitioner challenges numerous
jury;(2) misleading the jury about
gly presenting false evidence to the
uments;(4)
following categories:(1) knowin
nts and making inflammatory arg
ding the jury during closing argume
filing" Petitioner as a
witness's testimony;(3) mislea
witnesses; and (6) improperly "pro
rial;(5) vouching for prosecution
suppressing exculpatory mate
m urderer.
it "so infected the trial with
of a constitutional violation unless
duct does not rise to the level
181, 106 S.
Prosecutorial miscon
den v. Wainwright,477 U.S. 168,
iction a denial of due process." Dar
lting conv
Ed. 2d 431
unfairness as to make the resu
U.S. 637,643,94 S. Ct. 1868,40 L.
ng Donnelly v. DeChristoforo, 416
(quoti
Ct. 2464,91 L. Ed. 2d 144(1986)

in cases of alleged
he touchstone of due process analysis
480 F.3d 960,988(9th Cir. 2007)."[T]
(1974)); Comer v. Schriro,
v. Phillips, 455 U.S. 209,
culpability of the prosecutor." Smith
onduct is the fairness of the trial, not the
prosecutorial misc
S. Ct. 1691, 48 L. Ed. 2d 126
le v. Williams, 425 U.S. 501, 503, 96
940, 71 L. Ed. 2d 78(1982); see also Estel
X19, 102 5. Ct.
dment.").[*30] As explained
liberty secured by the Fourteenth Amen
e right to a fair trial is a fundamental
X1976)("Th
l misconduct allegations lacks merit.
below, each of Petitioner's prosecutoria
the state, or the
. The knowing use of false evidence by
not knowingly present false evidence
First, the prosecutor did
, 3 L. Ed. 2d 1217
v. Illinois, 360 U.S. 264, 269,79 S.Ct. 1173
evidence, violates due process. Napue
failure to correct false
imony applies even when
this prohibition against using false test
e,the Supreme Court made clear that
(1959). In Napu
under Napue will succeed when
witness's credibility. Id. at 269. A claim
imony in question is relevant only to a
testimony
the test
knew or should have known that the
) was actually false,(2)the prosecution
2008),
(1)
" the testimony (or evidence
v. Brown,513 F.3d 1057, 1071-72(9th Cir.
false testimony was material."' Jackson
was actually false, and (3) the
984(9th Cir. 2005)(en banc).
quoting Hayes v. Brown, 399 F.3d 972,
Instead, Petitioner, for the
or knowingly presented false testimony.
ioner has not shown that the prosecut
Here, Petit
regarding the victim's injuries and their
cal testimony the prosecutor elicited
part, merely disagrees with the medi
most
[*31] cross-examined, each of the
opportunity to cross-examine, and in fact
implications. Petitioner was given a full
ions. Likewise,
any perceived weaknesses in those opin
t their respective opinions and to exploit
medical witnesses abou
the victim's mother,
false testimony from Margie Garofano,
the prosecutor knowingly introduced
nothing suggests that
testimony. These
er points out minor inconsistencies in the
other witness. Rather, at best, Petition
or from any
by the witnesses' faulty
tent, could just as easily be explained
cies, assuming they were in fact inconsis
inconsisten
tence of inconsistencies in a
intentional lying. In any event, the mere exis
ories about the events, as opposed to
mem
or should have been aware that any of
suggest that the prosecutor was aware
witness's account does not prove or even
. 12
imony. Accordingly, Petitioner's claim fails
the witnesses were fabricating their test
FOOTNOTES
ped his victim while
imony about whether Petitioner said he drop
ioner notes that there was conflicting test
12 Petit
3). Even assuming that some of
s.(Petition, Points and Authorities at 72-7
lking up the stairs or walking down the stair
wa
ence showed that the victim's
on the jury's verdict because the medical evid
this testimony was false, it had no impact
e is no merit to Petitioner's
] being dropped on the stairs. Additionally, ther
wounds were not compatible with [*32
that victim would have fallen if,
testimony regarding the estimated distance
suggestion that the prosecutor elicited false
medic
er was ascending the stairs. The responding para
d, the victim was dropped while Petition
as Petitioner contende
(See RT 218.)
d would have been about eighteen inches.
he estimated that the fall Petitioner describe
testified that
person who made
mate, he offers no reason to believe that the
Petitioner questions the accuracy of this esti
Although
g so.
the estimate was being untruthful in doin
ing the testimony of Garofano.
tioner of a fair trial by allegedly misrepresent
Second, the prosecutor did not deprive Peti
ultimately convicted of
er kept his brass knuckles (of which he was
During trial, Garofano testified that Petition
or attempted to
diately after Garofano said this, the prosecut
work bench in the garage.(RT 151.) Imme
possessing)"in" a
work bench.(Id.)
"on" the work bench, rather than "in" the
response, but stated that the knuckles were
parrot back her
would convict
lly to increase the likelihood that the jury
claims that the prosecutor did this intentiona
Petitioner
erence whether the knuckles
claim is meritless because it made no diff
of[*33] possessing brass knuckles. This
Petitioner
essed them. And on that
er of significance was whether Petitioner poss
or on the work bench; the only matt
were in
.(Id.) As such, even assuming, as
the brass knuckles belonged to Petitioner
Garofano's testimony established that
point,

r'/

's verdict.
impact on the jury
sconduct had no
s to the level
onduct, the mi
onduct which rise
or engaged in misc
p]rosecutoriai misc
that the prosecut
s,
is deemed
)(stating that "[
Petitioner maintain
if that misconduct
478(9th Cir. 2004
beas petition only
e,380 F.3d 473,
L. Ed.
a ha
See Shaw v. Terhun
3 5. Ct. 1710, 123
ounds for granting
S. 619,637-38, 11
y provide the gr
olation ma
hamson, 507 U.
jurious
f a due process vi
substantial and in
"); Brecht v. Abra
unless error had
less error' test....
the'harm
l habeas relief
prejudicial under
not warrant federa
nal trial error will
stitutio
2d 353(1993)(con
rdict).
t commit
impact on jury's ve
prosecutor does no
were untrue. A
the
at
ce at trial, even if
osing argument th
es from the eviden
sert facts in his cl
or did not as
ed,
onable inferenc
Third, the prosecut
th Cir. 2000). Inde
ments to make reas
F.3d 1243, 1250(9
ry in closing argu
ng the ju
n to
v. Cabrera, 201
misconduct by aski
low the prosecutio
See United States
and courts must al
those inferences.
disputes
ing arguments,
t, 97 F.3d
[*34] defendant
tation of their clos
m." Ceja v. Stewar
tude in the presen
ferences therefro
ven lati
nt that
reasonable in
[c
" ]ounsel are gi
presented and all
rosecutor's argume
(9th Cir. 1995)(p
d on the evidence
base
tnesses could
67 F.3d 734,742
strike hard blows
though no other wi
ckett v. Godinez,
Cir.199b); see Du
y" was reasonable
the prosecutor
crying out "Ton
1246, 1253-54(9th
ed defendant by
first name). Here,
e else with same
specifically identifi
than of
on
m urder victims
lly abused, rather
as opposed to some
of being intentiona
ed to defendant,
y" referr
re the result
im died of
confirm that "Ton
es to the victim we
ence that the vict
infer that the injuri
rted medical evid
jury to
t of the uncontrove
m erely asked the
reasonable in ligh
is inference was
nfant son. 13
Th
accidents(causes.
assaulting his then-i
oner's history of
ma and Petiti
abusive head trau

ecutor far
er faults the pros
the jury, Petition
ing the
resented facts to
s testimony regard
prosecutor misrep
perts, recanted hi
his claim that the
th
ver, a
[*35] medical ex
13 In connection wi
one of the State's
th. at 76-80.) Howe
ion, Points and Au
e that Dr. Trenkle,
dg
2-73,}
the victim.(Petit
failing to acknowle
ee RT 442-43,47
juries observed on
ony on this point.(S
ary to cause the in
canted his testim
type of fall necess
. Trenkle never re
cord reveals that Dr
review of the re
ere is no reason
admitted at trial, th
about the evidence
utor introduced
misstatements
ecutor made some
d above, the prosec
assuming the pros
ir trial. As discusse
scussec
a fa
M oreover,
a at n.7.) And, as di
ived Petitioner of
trauma.{See supr
misstatements depr
e
ed abusive head
injury on a
to believe that thos
at the victim suffer
flicted great bodily
er had previously in
evidence showing th
l
lly, assuming
ence that Petition
compelling medica
nt.(See infra.) Fina
or introduced evid
juries to an accide
low,the prosecut
been
e that victim's in
in more detail be
re unlikely to have
tempted to attribut
and, thereafter, at
utor's comments we
RT 574.}
ce, the prosec
d ifferent infant
cted with the eviden
t evidence.(CT 152;
of counsel were no
's comments confli
at arguments
the prosecutor
plicitly instructed th
use the jury was ex
94,
credited beca
S. 83,87,83 S. Ct. 11
Maryland, 373 U.
ther t
ion. See Brady v.
that is material ei
culpatory informat
d not withhold ex
sclose any evidence
or di
prosecution to di
Third, the prosecut
. Although
ess Clause requires
11. Ed. 2d 490(1995)
3)[*36](Due Proc
115 S. Ct. 1555, 13
. 2d 215(196
3,
a cause of
0
1 L. ~d
ley, 514 U.S. 419,43
led out shaking as
nt); Kyles v. Whit
ifying expert had ru
oner claims
ence that a test
g uilt or to punishme
e facts that Petiti
utor withheld evid
the expert about th
ins that the prosec
sel questioned
rial was nog
Petitioner mainta
s that defense coun
gedly withheld mate
any event, the alle
ry, the record show
the cause o
the victim's inju
th. at 81). And in
rule out shaking as
tion, Points and Au
in question did not
.(RT 45b-57; Peti
death was
ions, the expert
were withheld
Petitioner's assert
ing to the victim's
cause, contrary to
e skull fracture lead
exculpatory be
ing may have
concluded that th
testified that shak
rather, the expert
nclusion, the expert
e victim's injuries;
some of th
estion that the
hstanding this co
to Petitioner's sugg
RT 456-57.) Notwit
blunt force.(See
is likewise no merit
ecut
caused by
uld allow the pros
rce.(RT 457.)There
the use of blunt fo
at the trial court wo
on to
der to ensure th
occurred in additi
was withheld in or
y medical evidence
or
allegedly exculpat

FOOTNOTES

t of the other medica
3 conviction, particularly in ligh
ce about Petitioner's [*37] 199
to introduce eviden
ries. 14
cause of many of the victim's inju
suggested that shaking was the

l evidence that

r

r00TNOTES
iction was admissible only
that his 1993 child abuse conv
grees with Petitioner's premise
r the baby
14 The Court further disa
n shaken. Irrespective of whethe
that his current victim had bee
ce suggesting
er words, the
because of the medical eviden
ered abusive head trauma. In oth
agreed that the victim had suff
l experts
Given that fact, there is
had been shaken,the medica
e intentional, not accidental.
victim's wounds and injuries wer
the
conviction would still have
m edical experts agreed that
the 1993 conviction, as that
trial court would have excluded
no reason to believe that the
ed by his actions.
his knowledge of the danger pos
tioner's lack of mistake and to
been relevant to show Peti
and that the victim's
result of abusive head trauma
opined that the victim died as a
pped the victim a few
Regardless, the expert in question
ount that he had accidentally dro
inconsistent with Petitioner's acc
injuries and symptoms were
ssed evidence impacted the
ests that the purportedly suppre
rs. Accordingly, nothing sugg
feet while ascending the stai
in terms of prosecutor's discover
ting that evidence is "material,"
Kyles, 514 U.S. at 433-34 (sta
lt of the
jury's verdict.[*38] See
n disclosed to the defense, the resu
ity that, had the evidence bee
able probabil
obligations, "if there is a reason
erent").
proceeding would have been diff
ue reasonable
A prosecutor is permitted to arg
vouch for any witness's credibility.
Fourth, the prosecutor did not
Ceja v. Stewart, 97 F.3d
67 F.3d 734, 742(9th Cir. 1995);
ce (see, e.g., Duckett v. Godinez,
inferences from the eviden
, e.g., Turner v. Marshall, 63
testimony as lies or fabrication. See
1996)) and to label a witness's
1246, 1253-54(9th Cir.
(9th Cir. 1999). A prosecutor
s, Tolbert v. Page, 182 F.3d 677
1995), overruled on other ground
U.S. 1, 18-19,
F.3d 807, 818(9th Cir.
, e.g., United States v. Young, 470
ity of a prosecution witness. See
credibil
ing may occur
m ay not, however, vouch for the
1154, 1158 (9th Cir. 1996)."Vouch
); United States v. Jackson, 84 F.3d
985
cate that
105 S. Ct. 1038, 84 L. Ed. 2d 1(1
t behind the witness or may indi
place the prestige of the governmen
in two ways: the prosecution may
618 F.2d 530,533
testimony." United States v. Roberts,
the jury supports the witness's
information not presented to
Ed. 2d 321 (1958); United
, 359-60 n.15, 78 S. Ct. 311, 2 L.
Lawn v. United States, 355 U.S. 339
9th Cir. 1980)[*39](citing
(
2, 1146(9th Cir. 2005).
es v. Weatherspoon, 410 F.3d 114
F.2d 371 (5th Cir. 1972)); United Stat
States v. Lamerson, 457
transcript of the prosecutor's
tituted improper vouching. Rather, the
the prosecutor's comments cons
es based
Here, none of
the jury to make reasonable inferenc
ecutor did nothing more than urge
pros
tioner to argue
closing argument reveals that the
ert medical testimony against Peti
hough the prosecutor cited the exp
Alt
t testimony or
on the evidence presented to it.
government to bolster either tha
ecutor did not use the prestige of the
that Petitioner was guilty, the pros
Cir. 2010)(holding that
n v. Sullivan, 601 F.3d 897,913(9th
s who provided it. Compare Hei
the credibility of the witnesse
er things, that witness
re prosecutor argued, among oth
ched for witness's credibility whe
prosecutor improperly vou
despite that witness revealed
iminating petitioner was "honest"
" and that witness's testimony incr
"was painfully honest
6(9th Cir. 2005)(prosecutor
v. Weatherspoon, 410 F.3d 1142, 114
gs about himself); United States
embarrassing thin
to lie and that, if they lied, they
by arguing that they had no reason
ched for testifying [*40] officers
i mproperly vou
certain parts of the witnesses'
er, the prosecutor simply highlighted
being prosecuted for perjury). Rath
would risk
the prosecutor did no more than ask
er was guilty as charged. In doing so,
y in an effort to argue that Petition
testimon
uced at trial.
rences supported by the evidence add
the jury to make reasonable infe
tioner. Instead, the
r
trial by improperly "profiling" Peti
deprive Petitioner of his right to a fair
Fifth, the prosecutor did not
to accusing Petitioner of
ons and labeled him a murderer. As
Petitioner had lied about his acti
prosecutor argued that

i

cover up his actions.
nce suggesting that Petitioner had lied to
accusations were warranted by the evide
lying, such
emotions were in line with
citing evidence to show that Petitioner's
ise, the prosecutor committed no error in
likew
t Petitioner demeanor
inference from Garofano's testimony abou
of a murder, as that was at least a reasonable
`hose
ents,even if improper, did
m's death. Regardless, the prosecutor's comm
dnd situation in the period preceding the victi
due [*41] process violation
have been found insufficient to establish a
not approximate the type of statements that
ndant of right
180 n.10-12(prosecutor did not deprive defe
ial misconduct. See Darden,477 U.S. at
based on prosecutor
rned,...[the
penalty by arguing that "as far as I am conce
e prosecutor urged jury to impose death
to fair trial wher
[the defendant's] face off.
had a shotgun in his hand ...and blown
is] an animal," and "I wish [the decedent]
defendant
Schriro, 480 F.3d 960,988(9th
face, blown away by a shotgun"); Comer v.
that I could see him sitting here with no
wish
petitioner "monster," "filth," and
ndant of right to fair trial despite labeling
Cir. 2007)(prosecutor did not deprive defe
"reincarnation of the devil")
nce presented
ved Petitioner of a fair trial in light of the evide
prosecutor's comments could not have depri
Finally, the
vouching for witness, in
as relief despite prosecutor's improper
st him. See Hein, 601 F.3d at 916(denying habe
again
evidence establishing that the victim
was strong). The uncontroverted medical
part, because evidence against petitioner
evidence undermined
ming and compelling.(RT 342, 439.)That same
died of abusive head trauma was overwhel
.(RT 304, 342, 440.)
ted from an accidental fall on [*42]the stairs
Petitioner's claim that the victim's injuries resul
cut by the evidence
had suffered an accidental fall was further under
Moreover, Petitioner's claim that the victim
resulting injuries to his
and his previous attempt to explain away the
arding Petitioner's past child abuse conviction
reg
, 1206(9th Cir. 1997)
Compare United States v. Rudberg, 122 F.3d 1199
then-infant son by conjuring up an accident.
sses where defendant
t based entirely on testimony of vouched witne
(reversing conspiracy conviction against defendan
ndant was able to
sses were subject to credibility attacks, and defe
denied participating in conspiracy, vouched witne
ion).
corroborate his testimony denying participat
ary to, nor an
prosecutorial misconduct claim was neither contr
In short, the state courts' rejection of Petitioner's
habeas relief on
federal law. Accordingly, Petitioner is not entitled to
unreasonable application of, clearly established
this claim.
C.'Second Degree Murder Instructions
ioner had to
in instructing the jury on the requisite state of mind Petit
Next, Petitioner contends that the trial court erred
court's
murder. It appears that Petitioner's challenge to the trial
have to support a guilty verdict for second degree
d have
forms. First, Petitioner contends that the trial court shoul
second [*43] degree murder instructions takes three
the existing
fic intent to kill. Second, Petitioner maintains that
provided additional instructions regarding the speci
er based only
ed the jury to convict Petitioner of second degree murd
instructions were inadequate because they allow
, Petitioner
ction for inflicting great bodily injury on an infant. Third
on the fact that Petitioner had suffered a 1993 convi
ht could be either
jury that the requisite malice for malice aforethoug
asserts that the trial court erred in instructing the
ioner, was likely
native routes to reach a guilty verdict, according to Petit
express or implied. Allowing the jury these alter
ng that he harbored
ct Petitioner of second degree murder without findi
to confuse the jury and allowed the jury to convi
the specific intent to kill.
omission so
uction is cognizable only if the petitioner can show the
A claim that a trial court erred by omitting an instr
502 U.S. 62, 72, 112 5.
ction violated due process. See Estelle v. McGuire,
infected the entire trial that the resulting convi
(1977);[*44]
, 431 U.S. 145, 154,97 S. Ct. 1730, 52 L. Ed. 2d 203
Ct. 475, 116 L. Ed. 2d 385 (1991); Henderson v. Kibbe
ed instruction
396, 38 L. Ed. 2d 368(1973). The significance of the omitt
Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct.
72; Henderson,431 U.S.
uctions that were given. See Estelle, 502 U.S. at
should be evaluated by comparing it to the instr

;y

of the law.
tion is less likely to be prejudicial than a misstatement
at 156. An omission or an incomplete jury instruc
prejudicial
on, or an incomplete instruction, is less likely to be
Henderson,431 U.S. at 154(observing that "[a]n omissi
the failure to give a
where, as here, a habeas petitioner's claim involves
`han a misstatement of the law"). Consequently,
Id. at 147,
ially heavy" burden to establish a due process violation.
articular instruction, the petitioner bears an "espec
,
154.
d degree
jury was properly instructed on the elements of secon
Here, Petitioner cannot meet that heavy burden. The
RT 585
each element beyond a reasonable doubt.(See CT 178;
murder and on the prosecution's burden to prove
reasonable doubt);
nce and prosecutor's burden to prove guilt beyond
(instructing jury regarding presumption of innoce
could not
murder).) Furthermore,the jury was instructed that it
CT 185; RT 587 (setting forth elements of second degree
implied
r unless it found that Petitioner harbored express or
reach [*45] a guilty verdict as to second degree murde
instructed
Petitioner contends that the jury should have been
malice aforethought.(CT 186; RT 587.) And although
instructed
constitutionally required because the jury was already
further on specific intent, no additional instruction was
ully to
to prove that Petitioner "manifested an intention unlawf
that a finding of express malice required the prosecutor
of
made clear that the jury could not find Petitioner guilty
kill a human being."(CT 186; RT 587.) These instructions
kill the
unless the jury believed that Petitioner intended to
second degree murder under an express malice theory
victim.
court erred in instructing the jury on both implied malice
Moreover, there is no merit to Petitioner's assertion the trial
California law is clear that both instructions are proper when
and express malice.(See Petition, Points and Auth. at 123.)
People v. Nieto Benitez, 4 Cal. 4th 91, 102-03, 13 Cal. Rptr.
a defendant is charged with second degree murder. See, e.g.,
es of second degree murder, may be either express or
2d 864,840 P.2d 969(1992)(stating that "malice," for purpos
implied).
conflate the trial court's decision to admit his 1993
Furthermore,.[*46] there is no merit to Petitioner's attempt to
Petition, Points and Auth. at 121-22.) Although Petitioner
conviction with his allegations of instructional error.(See
ting his conviction for second degree murder, this
asserts that the 1993 conviction was the only evidence suppor
the victim's death was caused by abusive head trauma.
assertion ignores the substantial medical evidence showing that
incompatible with Petitioner's account of how the
That same medical evidence showed that the victim's injuries were
ner's direct challenge to the admissibility of the facts
victim was injured. And, as discussed in connection with Petitio
ished of the limited purposes for which it could consider
u nderlying his 1993 conviction, the jury was repeatedly admon
those facts.(See infra.)
the error did not have a substantial and injurious
Finally, even assuming that the trial court erred in instructing the jury,
nal trial error does not warrant habeas relief
impact on the jury's verdict. See Brecht, 507 U.S. at 637-38 (constitutio
). As discussed above, the uncontroverted medical
u nless error had substantial and injurious impact on jury's verdict
accidentally dropped, but rather from abusive head
evidence [*47]showed that the victim did not die from being
le" that the victim's multiple symptoms resulted
trauma. Indeed, as one expert testified, it was "not medically possib
rmore, Petitioner's claim that an accidental fall caused
from the accidental fall described by Petitioner.(RT 397.) Furthe
of the injuries and the evidence regarding Petitioner's
the victim's injuries was unbelievable in light of both the extent
Given this evidence, there is no reason to think that
r
prior conviction for inflicting great bodily injury on anothe infant.
been instructed as Petitioner insists it should have been.
the jury would have reached a different verdict had the jury
D. The Evidence Supporting Petitioner's Conviction
utor failed to introduce sufficient evidence to prove that
In his next claim for relief, Petitioner contends that the prosec
(S

the sufficiency of evidence in a
h and second degree murder. To review
he committed child abuse resulting in deat
essential
rational trier of fact could have found the
, the Court must determine whether "'any
habeas corpus proceeding
, 111 L. Ed. 2d 606
v. Jeffers, 497 U.S. 764, 781, 110 S. Ct. 3092
e beyond a reasonable doubt."' Lewis
lements of the crim
,
(1979). All evidence
U.S. 307, 319, 99 5. Ct. 2781,61 L. Ed. 2d 560
tion omitted); Jackson v. Virginia, 443
X1990)[*48](cita
on,443 U.S. at 319.
prosecution. Jeffers, 497 U.S. at 782; Jacks
dered in the light most favorable to the
m ust be consi
-even if it does not affirmatively
ences, reviewing courts "must presume
dingly, if the facts support conflicting infer
Accor
prosecution, and must defer to that
resolved any such conflicts in favor of the
appear in the record -that the trier of fact
v.
957(9th Cir. 2004)(per curiam); Turner
U.S. at 326; Bruce v. Terhune, 376 F.3d 950,
resolution." Jackson, 443
standards of
r AEDPA,federal courts must "apply the
851, 882(9th Cir. 2002). Furthermore, unde
Calderon, 281 F.3d
2005); Smith v. Mitchell,
H. v. Allen, 408 F.3d 1262, 1274(9th Cir.
an additional layer of deference." Juan
Jackson with
standard requires "double
rving that AEDPA combined with Jackson
1235, 1239(9th Cir. Oct. 29, 2010)(obse
624 F.3d
layer of deference").
was no
Petitioner's conviction. As an initial mater, there
introduced ample evidence supporting
Here, the prosecutor
of appeal's [*49]
ioner's care. And, asset forth in the court
the victim was injured while alone in Petit
q uestion that
testimony, CT scans, and
medical evidence - in the form of expert
on, the prosecutor introduced substantial
opini
Petitioner, but rather as a result of
not in}ured in the manner described by
autopsy results -showing that the victim was
prosecutor introduced evidence
e.g., RT 342, 397, 439-40.) In addition, the
having suffered abusive head trauma.(See,
t sons. The prosecutor also
ting great bodily injury on another of his infan
that Petitioner had been convicted of inflic
inflicted on
an accident to explain away the abuse he had
evidence showing that Petitioner had fabricated
introduced
of the incident
evidence contradicting Petitioner's account
er victim. Given that evidence and the medical
his earli
-understanding
reasonably and rationally concluded that Petitioner
leading to the current charge, the jury could have
in away the victim's
victim and, thereafter, fabricated a story to expla
the danger posed by his actions -assaulted his
ioner assaulted child
evidence was insufficient to prove that petit
injuries. Cf. Smith, 624 F.3d at 1238-40(holding that
no history of
showed that petitioner was loving grandmother with
resulting in death where uncontroverted evidence
caused by abuse).
ence did not demonstrate that infant's death was
child abuse and where [*50] objective medical evid
E. Admission of Prior Bad Acts
cutor to
trial court abused its discretion by allowing the prose
In his next claim for relief, Petitioner contends that the
ren and the
ction involving child abuse against another one his child
introduce evidence regarding Petitioner's prior convi
pleading
arose from a 1993 incident that resulted in Petitioner
facts underlying that conviction. The prior conviction
d not have
bodily injury. According to Petitioner, this evidence shoul
guilty to abusing his infant son and to inflicting great
ly prejudicial and inflammatory.
been admitted at trial because it was overwhelming
g so, the
admission of his prior instance of child abuse. In doin
The court of appeal rejected Petitioner's challenge to the
the danger
ence was relevant to show that Petitioner understood
court of appeal reasoned that the challenged evid
to commit
the result of mistake or accident, and that he intended
stemming from his actions, that his actions were not
ssible
ence was admissible under state law for several permi
the charged offenses. Having concluded that the evid
ed it
whether the probative value of the evidence outweigh
purposes, the court of appeal then turned [*51]to
strikingly
rved that Petitioner's prior instance of chid abuse was
potentially prejudicial effect. The court of appeal obse
two incidents
According to the court of appeal, the similarity of the
similar to the acts of which Petitioner was accused.
incident, though
incident. The court of appeal also noted that the prior
served to underscore the relevance of the prior
ted in a
not likely to be unduly inflammatory because it resul
preceding the current incident by several years, was
ions in
serious than the current charge. With these considerat
ction and because the prior incident was not more
convi
evidence. As
trial court committed no error in admitting the challenged
mind, the court of appeal concluded that the

~E

in so concluding.
explained below, the court of appeal did not commit constitutional error
ng, unless the admission of the evidence
' evidentiary rulings are not cognizable in a federal habeas proceedi
+.ate
, 502 U.S. 62,68, 112 5. Ct. 475, 116 L. Ed. 2d
violated the petitioner's due process right to a fair trial. Estelle v. McGuire
to prevail, the petitioner [*52] must show that
385 (1991); Gordon v. Duran,895 F.2d 610,613(9th Cir. 1990). In order
tally unfair. See Estelle, 502 U.S. at 68; Jammal v.
the court's ruling was so prejudicial that it rendered his trial fundamen
993 F.2d 1378, 1380(9th Cir. 1993). Thus, if
Van de Kamp,926 F.2d 918,920(9th Cir. 1991); see also McKinney v. Rees,
n under state law, he has not stated a cognizable
Petitioner merely contends that the trial court abused its discretio
claim for federal habeas relief.
based on the admission of his prior bad acts, his
Moreover, assuming Petitioner has stated a cognizable claim for relief
violates a petitioner's due process rights only if there
claim nevertheless fails on its merits. The introduction of evidence
and the evidence is "of such quality as
is no permissible inference the jury can draw from the challenged evidence
U.S. at 70(testimony does not violate due
necessarily prevents a fair trial." lammal,926 F.2d at 920; see Estelle, 502
as the court of appeal explained, the evidence
process if it is relevant); McKinney, 993 F.2d at 1380, 1381(same). Here,
r's intent, his awareness of the danger of his
was relevant to support several permissible inferences, including Petitione
actions, and his lack of mistake or accident.
was used only for the limited
Furthermore,the [*53] trial court took steps to ensure that the challenged evidence
that it could not consider the prior
purposes for which it was admitted. Specifically, the trial court instructed the jury
show that he was predisposed to commit
bad act evidence to prove that Petitioner was a person of bad character or to
it could consider the challenged
the charged crime.(CT 166; RT 581.) The trial court further admonished the jury that
crime or to show that he had the
evidence only to show that Petitioner had the requisite intent to commit the charged
by the prosecutor, who, during
necessary knowledge to commit the charged crime.(Id.) This admonishment was echoed
his closing argument, stated:
he did it before, we're
want to be really clear. When I say he's done it before, I'm not suggesting to you folks,"Okay,
bad guy; therefore, he did it
going to convict him regardless." That would be wrong. I mean it. I'm not suggesting he's a
it shows he knew what he
this time. That's not why you get to hear that evidence. You get to hear that evidence because
about it being an
was doing was dangerous. And the more accidents he makes up, the more obvious it is that he's lying
danger.
accident.[*54] That's why you get to hear about the kind of evidence. He knows firsthand of the
(RT 609.) 15
FOOTNOTES
the prosecutor
15 In connection with his prosecutorial misconduct claim (Claim Two), Petitioner appears to allege that
1993 child abuse
committed misconduct in presenting evidence of, or making arguments regarding, Petitioner's
Petitioner's suggestion that
conviction. This claim is meritless in the light of the foregoing analysis. Equally meritless is
propensity to commit the
the prosecutor argued that the jury consider Petitioner's prior bad acts to show Petitioner's
r's prior bad act, the prosecutor
charged act of child abuse. Although the prosecutor urged the jury to consider Petitione
r or propensity to engage in child
admonished the jury not to consider that evidence to show Petitioner's bad characte
abuse.

was well aware that it could not
In short, the challenged evidence was relevant, and the record shows that the jury
challenged evidence did not deprive
consider the evidence for any improper purpose. As such, the admission of the
r7

the admission of his
Petitioner's challenge to
courts' decision rejecting
ed federal law.
Consequently, the state
ation of, clearly establish
Petitioner of a fair trial.
an unreasonable applic
r[*55]contrary to, nor
prior bad acts was neithe
i

.. CAUIC 2.03
ed in
ds that the trial court err
relief, Petitioner conten

instructing the jury with

CAUfC 2.03, which

In his next claim for
states the following:

concerning the
ely misleading statement
willfully false or deliberat
de a
prove a
s trial the defendant ma
circumstance tending to
If you find that before thi
er that statement as a
consid
and significance, if
w being tried, you may
prove guilt, and its weight
crime for which he is no
not sufficient by itself to
However,that conduct is
consciousness of guilt.
.
any, are for you to decide
se statements
ted that he had made fal
Petitioner, strongly sugges
ded likely caused the
instruction, according to
which CAUIC 2.03 is wor
(CT 158; RT 577-78.)This
maintains that the way in
crime. Moreover, he
s about the crime.
about the his role in the
t he made false statement
ed solely on the fact tha
jury to infer his guilt bas
vide
, such a claim would pro
e incorrect under state law
wer
6 L. Ed. 2d 385
that the jury instructions
71-72, 112 S. Ct. 475, 11
If Petitioner merely claims
e v, McGuire,502 U.S. 62,
("[F]edera! habeas
eral habeas relief. Estell
111 L. Ed. 2d 606(1990)
Petitioner no basis for fed
. 764, 780, 110 5. Ct. 3092,
is v. Jeffers, 497 U.S
whether an alleged
(1991); see [*56] also Lew
on on habeas review is
law."). Rather, the questi
e, 502
for errors of state
violates due process." Estell
corpus relief does not lie
the resulting conviction
trial that
lf so infected the entire
(1973)).
instructional error "by itse
Ct. 396, 38 L. Ed. 2d 3b8
en,414 U.S. 141, 147,94 S.
v. Naught
U.S. at 71-72(quoting Cupp
nged instruction
jury instruction, the challe
ional error arising from a
on an alleged constitut
p,414 U.S. at
Where a habeas claim rests
t of the overall charge." Cup
st be viewed in the contex
ficial isolation, but mu
iam)("If the charge
"may not be judged in arti
L.Ed.2d 701(2004)(per cur
,437,124 S.Ct.1830,158
v. McNeil, 541 U.S. 433
has applied the
146-147; see Middleton
e likelihood that the jury
whether there is a reasonabl
the question is
marks omitted).
as a whole is ambiguous,
ions and internal quotation
es the Constitution.")(citat
rd, federal
a way that violat
violation under this standa
challenged instruction in
the level of a constitutional
to
rt must
onal error is found to rise
error was harmless."The cou
Moreover, even if instructi
y to determine whether the
luence on the
without further [*57] inquir
al and injurious effector inf
habeas relief is unavailable
ticular case, had a substanti
cht, 507 U.S. at
whole context of the par
find that the error, in the
Ed. 2d 521(1998)(citing Bre
, 147, 114 S. Ct. 500, 142 L.
Coleman,525 U.S. 141
jury's verdict." Calderon v.
637).

able doubt of every
upon proof beyond a reason
used against conviction except
8(1970).
tects an acc
S. Ct. 1068, 25 L. Ed. 2d 36
The Due Process Clause pro
ship, 397 U.S. 358, 364,90
Win
on of its
e the charged crime. In re
ectively relieve the prosecuti
fact necessary to constitut
ons in a jury charge that eff
1 U.S. 307,
use evidentiary presumpti
See Francis v. Franklin, 47
The State, therefore, may not
beyond a reasonable doubt.
L. Ed. 2d 39
ential element of the crime
, 520-24,99 S. Ct. 2450,61
burden to prove every ess
rom v. Montana,442 U.S. 510
L. Ed. 2d 344(1985); Sandst
313, 105 S. Ct. 1965,85
{1979).

tutional if the
challenged here, are consti
ons, such as the instruction
inference instructi
proven facts before the
Nevertheless, permissive
mmon sense in light of the
justified by reason and co
suggest can be
States v. Warren, 2~
conclusion the instructions
4, 1037(9th Cir. 1996); United
nna v. Riveland, 87 F.3d 103
sonably
-15; ~*58] Ha
ation of the "beyond a rea
jury. Francis, 471 U.S. at 314
ons do not affect the applic
tructi
erence.
4). Permissive inference ins
nection permitted by the inf
F.3d 890,897(9th Cir. 199
the jury could make the con
y
ess there is no rational wa
doubt" proof standard unl

inference
79)("Because [a] permissive
5. Ct. 2213,60 L. Ed. 2d 777(19
U.S. 140, 157,99
proof, it affects
Ulster County Court v. Allen, 442
does not shift the burden of
ditor reject the inference and
fact free to cre
is no rational way
instruction leaves the trier of
er the facts of the case, there
e doubt' standard only if, und
a reasonabl
897 n.4.
he
` application of the'beyond
erence."); Warren, 25 F.3d at
nection permitted by the inf
con
she trier [of fact] could make the
d 807,819-20(9th Cir. 1995),
al. Turner v. Marshall,63 F.3
t CAUIC 2.03 is constitution
In Turner, the Ninth Circuit
The Ninth Circuit has found tha
677(9th Cir. 1999)(en banc).
by Tolbert v. Page, 182 F.3d
t inconsistent
overruled on other grounds
instruction does not state tha
Constitution "[s]o long as the
ports with the
indicating a
explained that CAUIC 2.03 com
jury may consider them as
9] but merely states that the
ce of guilt,[*5
statements constitute eviden
d at 820.
consciousness of guilt. 63 F.3
cted that, if it found that
Petitioner's jury was instru
er's challenge to CAUIC 2.03.
l, the jury could, but was not
Here, Turner forecloses Petition
ding statements before tria
fully false or deliberately mislea
2.03 did not
Petitioner had made will
of guilt. Accordingly, CAUIC
ding to show a consciousness
evidence ten
sciousness of guilt. On the
required to, consider that as
jury to infer guilt or even con
den of proof or require the
of its bur
on a finding that Petitioner
improperly relieve the State
ch a guilty verdict based only
the jury that it could not rea
roduced
shed
observed, the prosecutor int
contrary, CAUlC 2.03 admoni
Moreover, as the court of appeal
about the crime.
of how his
made a willfully false statement
falsity of Petitioner's account
ical testimony -establishing the
uncontroverted med
ample evidence -including
. No.6 at 13-14.)
victim was injured.(Lodged Doc
Consequently, Petitioner is not

pect to this claim.

entitled to habeas relief with res

G. Cumulative Error
set forth in
the purported trial errors [*60]
that the cumulative impact of
oner contends
In his final claim for relief, Petiti
reme Court has found that the
l fundamentally unfair. The Sup
ims for relief rendered his tria
Petitioner's various cla
s the resulting criminal trial
es due process where it render
multiple trial court errors violat
73) rcombined
combined effect of
Ct. 1038, 35 L. Ed. 2d 297(19
sissippi, 410 U.S. 284, 298, 93 S.
v. Mis
ndards of due
fundamentally unfair. Chambers
h traditional and fundamental sta
[Chambers] a trial in accord wit
d
Ct. 2013, 135 L. Ed. 2d 361
effect of individual errors "denie
EgelhofF, 518 U.S. 37,53, 116 S.
rs of a fair trial"); Montana v.
to the level of a due
process" and "deprived Chambe
ry rulings can, in combination, rise
held that "erroneous evidentia
tive
(1996}(stating that Chambers
L. Ed. 2d 468(1978)("[T]he cumula
. 478,487 n.15, 98 5. Ct. 1930,56
Kentucky, 436 U.S
process violation"); Taylor v.
guarantee of fundamental
case violated the due process
ly damaging circumstances of this
effect of the potential
fairness....").

"clearly
"cumulative effect doctrine" is
Supreme Court cases show that the
these
tive effect[*61]
According to the Ninth Circuit,
s, in the Ninth Circuit, "the cumula
F.3d 922,927(9th Cir. 2007). Thu
505
tutional violation or
established." Parle v. Runnels,
error rises to the level of a consti
due process even where no single
of multiple errors can violate
U.S. at 290 n.3).
al." Id. (citing Chambers,410
d independently warrant revers
woul
h unfairness
have "'so infected the trial wit
t habeas relief unless the errors
s not warran
hristoforo,
Cumulative error, however, doe
d at 927(quoting Donnelly v. DeC
of due process."' Parle, 505 F.3
tion a denial
effect of the
as to make the resulting convic
can be met only if the "combined
2d 431(1974)). This standard
8,40 L. Ed.
927(quoting Brecht,
416 U.S. 637, 643,94 5. Ct. 186
's verdict."' Parle, 505 F.3d at
effect or influence on the jury
injurious
ders a criminal defense
errors had a'substantial and
individually harmless errors ren
where the combined effect of
r terms,
process. Parle, 505 F.3d
507 U.S. at 637). "In simple
ulting conviction violates due
herwise] have been," the res
ht (ot
far
" less persuasive than it mig

at 927(quoting Chambers,410 U.S. at 294, 302-03).
to any of
yere, Petitioner's cumulative error claim does not warrant habeas relief. Because this Court has found no merit
Mancuso v.
etitioner's claims, Petitioner has not shown his petition should be reversed for cumulative [*62] error.
nothing
Olivarez, 292 F.3d 939, 957(9th Cir. 2002)("Because there is no single constitutional error in this case, there is
(same).
to accumulate to a level of a constitutional violation."); Rupe v. Wood,93 F.3d 1434, 1445 (9th Cir. 1996)
e
As such, the state court's rejection of Petitioner's cumulative error claim was neither contrary to, nor an unreasonabl
application of, clearly established federal law. Consequently, habeas relief is not warranted.
VII. RECOMMENDATION
and
The Magistrate Judge therefore recommends that the Court issue an order:(1) approving and adopting this Report
Recommendation; and (2) directing that judgment be entered denying the Petition on the merits with prejudice.
DATED: April 14, 2011
/s/ FREDERICK F. MUMM.
FREDERICK F. MUMM
U nited States Magistrate Judge
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but are subject to the right of any party to
timely file Objections as provided in the Local Rules Governing the Duties of the Magistrate Judges, and review by the
District Judge whose initials appear in the docket number. No Notice of Appeal pursuant to the Federal Rules of
Appellate Procedure should be filed until (*63] entry of the Judgment of the District Court.
Top of Form

Bottom of Form

Zo

1 d7
23/17 Page 2 of 5 Page ID #:1
MG -FFM Document 49 Filed 09/
Case 5:07-cv-01124-D

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S
COURT
UNITED STATES DISTRICT
FORNIA
CENTRAL DISTRICT 4F CALI

6
7

WESTERN DNISION

8
9
10

DAVID V. PATKINS,
Petitioner,

11 ,
v.

12
13
14
IS
16
17
18
19
0
2
21
22
23

(FF1V~
} CASE NO.CV d7-1124 DMG
,
ORDER ADOPTING FINDINGS
NS AND
CONCLUSIO
RECOMMENDATIONS OF RATE JUDGE
UNITED STATES MAGIST

RICHARD J. SUBIA, Warden,
Respondent.
reviewed the entire record in this
t to 28 U.S.C. § 636, the Court has
Pursuan
rate 3udge
endation of United States Magist
n, the attached Report and Recomm
actio
h
se appearing, the Court concurs wit
the objections thereto. Good cau
"Re
( port"), and
tained in
ns of law, and recommendations con
pts the findings of fact, conclusio
and ado
ch
o determination of the portions to whi
the Report after having made a de nov
objections were directed.
IT IS ORDERED thatjudgment be

its with

entered denying the Petition on the mer

prejudice.

4
2
2
5
6
2
7
2
28

DATED: September 14, 2011

~~
r

M. GEE
DAL
United S es District Judge

1
2
3
41
S IC
6I

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

~I

WESTERN DIVISION

g
9
10

DAVID V. PATKIlVS,
Petitioner,

11

} NO.EDCV 07-1124 DMG(FFM}
~

ORDER DENYING CERTIFICATE OF
APPEALABILITY

v.

12
13

RICHARD J. SUBIA, Warden,

14

Respondent.

}

15
ning § 2254 Actions
Effective December 1, 2009, Rule 11(a) of the Rules Gover

16
17

provides:
or deny a
a)
( Certificate of Appealability. The district court must issue
the
certificate of appealability when it enters a final order adverse to

18
19

parties to
applicant. Before entering the final order, the court may direct the
issues a
submit arguments on whether a certificate should issue. If the court

2
0
21

y the

certificate, the court must state the specific issue or issues that satisf
showing required by 28 U.S.C. § 2253(c)(2). If the court denies a

22
23

25

icate
certificate, the parties may not appeal the denial but may seek a certif
22. A
from the court of appeals under Federal Rule of Appellate Procedure

2
6

motion to reconsider a denial does not extend the time to appeal.

24

27

///

28

///
2

Here, given the Court's ruling on settled legal issues, the Court does not require

1
2

any arguments from the parties on whether a certificate of appealability("COA")should

3

issue.

4

Under 28 U.S.C. § 2253(c)(2), a CAA may issue "only if the applicant has made a

5

substantial showing of the denial of a constitutional right." Here, the Court dismissed

6

the petition on the merits. Thus, the Court's determination of whether a COA should

7

issue here is governed by the Supreme Court's decision in Slack v. McDaniel,529 U.S.

8

473, 120 S.Ct. 1595, 146 L. Ed. 2d 542(?000), where the Supreme Court held that the

9

showing required to satisfy section 2253(c) after a habeas petition is denied on the merits

10
11

is as follows:
The petitioner must demonstrate that reasonable jurists would find the

12

district court's assessments of the constitutional claims debatable or wronb.

13

529 U.S. at 484.

14 '
15
16
17

Here, the Court finds that reasonable jurists would not find the district court's
decision debatable or wrong.
Accordingly, a COA is not appropriate with respect to the judgment entered herein
and is DENIED.

18
19

Dated: September 14, 2011

20

LY M.GE
Unit

21

States District JudDe

22
Presented by:

23
2
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26

/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magis~ate Judge

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Case: 11-56680

08/07/2013

ID: 8734813

DktEntry: 13

Page: 1 of 1

FILED
UNITED STATES COURT OF APPEALS

AUG 07 2013
MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

DAVID C. PATKINS,
Petitioner -Appellant,
v.

U.S. COURT OF APPEALS

No. 11-56680
D.C. No. 5:07-cv-01124-DMGFFM
Central District of California,
Riverside

RICHARD J. SUBIA, Warden,
Respondent -Appellee

Before:

• ~
'

SCHROEDER and M. SMITH,Circuit Judges.

The request for a certificate of appealability is denied. See 28 U.S.C.
§ 2253(c)(2). All pending motions, if any, are denied as moot.

zY

FILED
NOV 25 2013

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

DAVID C. PATKINS,
Petitioner -Appellant,
v.

U.S. COURT OF APPEALS

No. 11-56680
D.C. No. 5:07-cv-01124-DMGFFM
Central District of California,
Riverside

i
~I~HAP.D 3. SU~IA,~~«rdea,
Respondent -Appellee.

Before:

• t
'

SCHROEDER and MIJRGUTA, Circuit Judges.

Appellant's (1) motion for an extension of time to file a motion for
reconsideration and (2) motion to file an extended motion for reconsideration are
granted. Appellant's motion for reconsideration is denied. See 9th Cir. R. 27-10.
No further filings will be entertained in this closed case.

Zs

ited States
Supreme Court of the Un
Office of the Clerk
0001
Washington,DC 20543-

Scott S. Harris
Clerk of the Court
[phone]

February 11, 2014

Mr. David C. Patkins
Prisoner ID T-73612
P. O. Box 705
Soledad, CA 93960
Re: David C. Patkins
v. Richard J. Subia, Warden
No. 13-8654

Dear Mr. Patkins:
filed on
the above entitled case was
ition for a writ of certiorari in
The pet
No. 13-8654.
docket February 11, 2014 as
ry 3, 2014 and placed on the
Februa
was docketed.
osing counsel that the case
rm is enclosed for notifying opp
A fo

Sincerely,
Scott S. Harris, Clerk
by
Redmond K. Barnes
Case Analyst

Enclosures

'„
~`" ~

,,~

States
Supreme Court of the United
Office of the Clerk
Washington, DC 20543-0001

Scott S. Harris
Clerk of the Court

c2o2> ~~s-soii

April 21, 2014

Mr. David C. Patkins
Prisoner ID T-73612
P. O. Box 705
Soledad, CA 93960

Re: David C. Patkins
v. Ricnara J. Subia, ~Varaen
No. 13-8654

Dear Mr. Patkins:
ed case:
lowing order in the above-entitl
The Court today entered the fol
i is denied.
The petition for a writ of certiorar

Sincerely,
.

~~

Scott S. Harris, Clerk

Riverside Police Department
CA0331300

SUPPLEMENTAL REPORT

~~28-01 ~ 0920
,

18. Type o! Place

..Address of Occurrence (Street No. -Name - Cily -Zip)

Residence

1370 Via Vista Dr., Riverside
19. ID:

=Other
For ID USE' V =Victim, I =Informant, W = Wi ess, 0
f Business)
-Middle (Firm
20. Last Name -First

27. ID.

[phone]

N/A

W

P1 Garofano, Margie Ann L

s
P
E

~

T
45S
U
S
P
E

43. Arrested

Yes ~ "° O

03-24-65

BRN

44. Address -Clothing -Other Marks r Identifying Characteristics

BKG #200114482

1370 Via Vista Dr., RV 92506

Juv. Ct.
Prob.

Juv: Other
2
~
(
Dis - Juris.
46. Last Name -First -Middle

~

~

Wilhi~
1
~
Dell_
5
49. HL
47. Race -Sex 4B. Age

6

Detained

50. WL

51. Hr.

(

)

1

2

)

(

Not Detained

54. Arrested

53. DOB or ID

52. Eyes

Yes ~

-

No

55. Address -Clothing -Other Marks or Identifying Characteristics

C
T
56.

39. WI.

42. DOB or ID

41, Eyes

40. Hr.

G-02 220 BRN

36

W- M

Patkins David Charles

38. HL

37. Age

36. Race - Sex

%
l

35. Last Name -First -Middle

34. Bus. Phone

[phone] [phone]

San Antonio Community Hospital, Upland

1370 Via Vista Dr., RV 92506

09-13-59

- F

33. Home Phone

32. Business or School Address

37. Resdence Address

S

30. DOB

29. Race -Sex

i Business) ~

28. Last Name -First -Middle (Firm

26, Bus. Phone

25. Home Phone

24. Business or School Address

1370 Via Vista Dr., RV 92506

10-25-OU

- M

W
i

23. Residence Address

22. DOB

21. Race -Sex

Patkins, Erik James

V

7
16.
Additional O

15. Additional
Adults Arr. O

14. Type Conl.

13. Type Clr.

12. Dale /Time Inv. Term.
/

11. Date /Time Inv. Start
-/

10. Date I Ti me Assigned

9. Day

04-28-01 ~ 0600

G08

626

P3-01-118-065

6. Crime-CL

5. Crime-CL

4, Dist.

"~ d. OH. ID

2

1. Origfna! File Na

Date Prepared: 04-29-01
B. Dale /Time Occurred

/F Crime-Cl

Jw: Other
Dis ~ Juns.

~

~

Juv. Gt.
Prob.

z

~

(

5

Within
De t.

(

~

6

Detained

(

)

1

)

(

Not Detained

2

BELOW
ORIGINALLY REPORTED DOLLAR VALUES ARE CHANGED AS SHOWN

Cat.

PS

Currency
A Notes

$

Clothing
C Furs

Jewelry
B Prec. Met.

$

$

E

OfFice
Equip.

F

-~ V. -Radio
Cameras

$

$

G Firearms

$

H

Household
Goods

$

Consum.
Goods

~

$

Livestock

~

K

Misc.

$

$

PR
Stolen
Auto

61. Original Offenses Changed to (Code -Crime)

~ ~ ~ Incident Report

SB.

~ ~ ~ 273a(a) PC

60. Originally Reported Offenses (Code -Crime)

59. Inuto

( 2)

(Z)

Reporting Officer

M. Bartholomew

62. Narrative of Supplemental Report

Reviewed By

FOR FURTHER,SEE PAGE 2

VCLO (

APB Senl
APB Cancld.
APR Senl
APR Cancld
DOJ - NCIC
Entered
Candd.

Riverside Police Department - Supplemental Report

)

ARTI~Y
~' RIV~KSIDE POLIO DEP
Coutinuatiou Page
Page 7 of S
04-29-01

273a(a) PC

~~~1T
Filc No. P3-01-118-065
M. Bartholomew #626

collected
ted a search of the residence and
tographs, Det. Masson conduc
After the pho
supplemental report for details).
ier
several items of evidence (see his
1'S, iilZ CClu, if~e rnas
i~w~i ~Oiii0il Oi tiiE Sii11
C I21GaSuiciil~ili5 vi ti1~
i tGOI
measurements were
chair in the baby's room. All
room bed, the office bed, and the
bed
e.
taken with a standard tape measur
upper floor
ay between the ground floor and
The lower portion of the stairw
roximately 7"
dle landing. each step was app
of seven steps, ii~icluding the mid
consisted
ep 7) was 3'2'/4" iti
d 11" in width. The lauding (st
in height and between 10 ~i "an
to landing).
of the stairwell was 5'(from floor
The height of the lower portion
peted
width.
The stairwell appeared to be car
6 were approximately 3' wide.
Steps 1 through
g).
the house (off-white pile carpetin
with the same carpet as the rest of

Stairs:

Master Bedroom Bed:
by 6'11" long;
standard king size bed, was 6' side
The bed, what appears to be a
bed,
Mattress to the floor was 26". The
height of the bed froiii the top of the
the total
bed between the
roxi~nalely 5" gap at the foot of the
which has a wood frame, had an app
wood
gap Uetween the mattress and the
s and the end board; there was a 2"
mattres
located on the right
tely 9" from the wooded dresser
headboard. The bed was approxima
side of the bed.
Crib:

as
was wood-colored. It stands 3'6" tall
The crib (possibly "~r~uilclin" brand)
. The sliding rail
the headboard acid is 4'6" iii length
measured from the door to ilie top of
ven slats. There is an approximately 3
is 2'3 %2" in height and consists of ele
on the crib
" in width.
of the crib was 4'S" in length by 2'4
~
/4" gap between each slat. The interior
ss pad was
rail (raised) to the top of the mattre
distance between the top of the sliding
The
found to be about 11".
Chair near crib:
m was 39" tall, 28" wide (from front of
The blue upholstered chair in V-Erik's roo
17" front the floor.
the seat to the back rest, and the seat vas
Office ~3ed:
ed 3'6" wide by 6'2" long by 28" tall.
The bed found in the upstairs office measur
lying
d or footUoard. A baby pad/play toy was
It had a standard medal frame with no hea
on the top of the bed.

~

Follow-up:
a message to call Riverside Community
Prior to the end of the search, I received
ays and
a radiologist had reviewed V-Erik's X-r
Hospital. "Yolanda" advised me that
each femur.
found what was thought to be a fracture in

Pagc8of8
04-29-01

~ RIVERSIDE YOLICL DEPARTI~~ `.1T
Co~ltinuatioii Pagc
File No. P3-01-118-OGS
M. Bartholomew #626
273a(a) PC

cal Center Pediatrics LIZ. I
I was also asked to call Loma Linda University I~Tedi
based on
not believe the fractures did existr
spoke with an ER doctor who told me they,did ...._ ..,,. ~ ,. a .__
a
~ icvcuicu «~creaseu ~r~ssu►-e u~ -~ri - s
~
a .~. F ..,.... ~T ~CaiiS iluu
~.i
t~iCii n-iaj%S. 1 WuS ~~lu ~i►d~ i~~w
ure. Sonic type of
to be inserted iii au altcmpt to relieve the press
brain; a tube was going
also, which is consistent with past
old diffusion (old injury) was seen in the CT scan
a to the head was observed; all the
bleeding due to an older injury. No obvious traum
head. The injuries were unlikely to be
multiple injuries were observed inside V-Erik's
the circumstances of the injury.
consistent with the story provided by S-David of
of the scene, it was
Based on the medical infornlatioii, and the inspection
~~ere consistent with abuse. As S-David
determined that the injuries sustained by V-Erik
was arrested for the listed charges
was the pri►nary caregiver at the time of the injury, he
ntal report).
and booked into RCJ (see Ofc. Dorado's suppleme
to LLUMC to check the
Det. Masson, Sgt. DcLaRosa, D.D.A. IIu~;hes, andI went
iewed in the family
status of V-Erik and to contact P1-Margie. She was interv
further, refer to Det. Mason's
consultation room in the Pediatric ICU (Unit 5700). For
supplemental report.
Disposition:
Office for filing
Case to be referred to the Riverside County District Attorney's
consideration.

NOT TO BE PUBLISHED

IN OFFICIAL REPORTS

ified for
not
relying on opinionsifiedcert publication or
for
and parties from citing or
97T~a~, prohibits courts by rule 977(b). This opinion has not been cert
California Rules of Court, rule d, except as specified
publishe
~ubtication or ordered purposes of rule 977.
ordered published for

ATE OF CALIFORNIA

AL OF THE ST
Ili' THE COURT OF APPE

STRICT

DI
FOURTH APPELLATE
DIt~ISION T`~~'O

THE PEOPLE,
E032757

Plaintiff and Respondent,

Sup
( er.Ct.No. RIFa96844)
OPII~'ION

DAVID CHARLES PATKINS,
Defendant and Appellant.

'. Patrick F. It~agers, Judge.

of Riverside Count}
APPEAL from the Superior Court
Affirmed with directions.

endant and
nt by the Court of Appeal, for Def

tme
S}~aron ?~;. Jones, under appoin
Appellant.

Robert R.
BiII Loc~.yer, Attorne}~ General,
Assistant
General, Gary W. Schons, Senior

Anderson, Chief Assistant Attorney

Attorney General, Gil P. Gonzalez,
nt, Senior Deputy Attorney

eral, and Garrett Beaumo
Supervising Deputy Attorney Gen
General, for Plaintiff and Responden

t.

er (Pen. Code, ~ 187)1 (count

A jury found defendant guilty of second degree murd
1), child abuse resulting in death (§ 273a)(count

2), and possession of brass knuckles

found true that defendant
§
( 12020, ssbd. (a}). The trial court thereafter

had pr~<io~:sly

-(e), 1170.12). As a
ny (§§ 667, subds.(a)

been con~zcted of a serious and/or violent felo

result, defendant was sentenced to a total term of

59 years to life in state prison. On
discretion in admitring his prior

ed its
appeal, defendant contends(1) the trial court abus

ucting the jury with the consciousness

child abuse offense,(2)the trial court erred in instr
of guilt(CALJIC No. 2.03) instruction, and (3) the

abstract ofjudgment must be
. We agree the abstract of

corrected to reflect the oral pronouncement ofjudgment

ining contenrions.

judgment must be amended but reject defendant's rema

FACTUAL B.ACKGROU'~1D
ie Garofano, defendant

In February 2000, after impregnating his girlfriend, Marg

birth to their son, Erik.
moved into her house. On October 25, 2000, Margie gave

After

ing the night shift three
,
Margie's maternity leave expired, she went back to work work
nights a «~eek from 7:00 p.m. unril 7;00 a.m. as a critical care
occasionally as a handyman and painter, providing about 10

nurse. Defendant worked

percent of the family

income.

~~~ise

All future statutory references are to the Penal Code unless other
stated.

2

Defendant became imparient with Eril: when he

cried. He also grew jealous of the

few days before Erik's four month «~ellattention Margie gave Erik. In March 2001, a
bump on the back of Erik's head. Vr'hen
baby chec~.up with his doctor, Margie noticed a
Eril: hit his head on the coffee table when he
she asked defendant what happened, he said
appointment, after Margie described the way
rolled off the couch. Dwing the well-baby
the doctor told defendant that ~~as a
defendant somerimes flipped Erik on his forearm,
ned some pamphlets from the doctor about
dangerous way to hold the baby. Margie obtai
dant to read.

shaken baby s}~ndrome" and left them out for defen
"

Defendant and Margie, «~ho never marred, began
that defendant did not contribute financially to the

to argue about Margie's concern

family. As time went on, the

dant to move out two or three
arguments became more heated, and Margie asked defen
him X6,000 so he could get his
times. Defendant said that he would move out if she gave
but she gave defendant a check
life back together. Margie did not ha~~e that much money,
for $2,G00 in early April.
p.m.,
On April 27, 2001, when 1~largie left for work about 6:20

Erik «~as healthy.

ing, defendant telephoned
Margie worked all night. About 6:30 a.m. the following morn
se Erik ~~as hurt. ~'~'t.en
Margie and asked her to come home from work right a«~ay becau
Margie asked defendant what happened, defendant said Erik

injured his shoulder around

5:30 a.m., when defendant tripped and fell on the carpeted stairs

while he was holding the
ed that he had not yet

dant repli
baby. Margie asked defendant if he called 911, and defen

Erik to the hospital. Although
done so. M~.rgie then told defendant to ca11911 and get

3

the telephone
defendant seemed reluctant to do so, he called 911. After Margie hung up
with defendant, she went home immediately.
bedroom. A
Responding paramedics found defendant and Erik in an upstairs
paramedic observed the baby lying on the bed, looking some«~hat dro«-sy,

with a weals

happened,
cry but no external injuries. `'When the paramedic asked defendant ~;hat
defendant said that he dropped the baby v~~hile clunbing the stairs when the

dog got in his

stairs
~•ay. The paramedic estimated an 18-inch drop after examining the stairs. The
Eril: to
were each seven inches high and three feet ~~-ide. Defendant agreed to accompany
the hospital.
After Margie arrived at the hospital, she unsuccessfully attempted to ~~~al:en Erik
by calling his name and touching his chest. ~'4'hen Margie manually lifted Erik's e}~elids,
one pupil looked down and the other looked straight ahead. This alarmed I~largie
because, as a trained nurse, she knew that this ~~~as a sign of a head injury. Erik then
awoke, arched his head back, and began kicking his legs and crying. I~largie noriced,
however, that Erik could not move his eyes.
After Margie found a doctor, the doctor asked defendant what happened.
Defendant stated that Eril: hit his head on the stairs when defendant dropped him. Erik
was then taken to be treated. While they waited for the results of the examinarion,
I~'Iargie again asked defendant how Erik got hurt. Defendant said it was an accident.
Dr. Sonne, the emergency room doctor who attended to Erik, ordered a CT scan of
Erik's brain after noting that Eril: was "posturing" ~~vith one arm sriff near his side, that

4

had a hieh pitched cry, all indicators
his e}~es «-ere staring in a fixed position, and that he
skull fractures on both sides of Erik's
of abnormal brain functions. The CT scan showed
ral hematoma on the left side of

head, bleedi~b beh*-een the brain and left skull, a subdu
the brain, and blood inside the frontal cortex of the

brain. Erik's brain was swollen,
ure of Erik's femur.

a healing fract
indicaring trauma. X-rays of Erik's body also revealed

s brain were inconsistent with the

Dr. Sonne opined that the CT scan and lesions in Erik'

suspected child abuse and
history of the injury given by defendant. The doctor
recommended that a child abuse ~~~orkup be performed.
sive care treatment.

inten
Erik was then transferred to Loma Linda Hospital for

ordered a child abuse
al
The treating doctor concluded Erik's condition ~~~as critic and
r concluded Erik's injuries
w~or~.-up. After re~~ew~ing the child abuse evaluarion, the docto
nation revealed extensi~~e
contradicted the history pro~zded by defendant. An eye exami
abusive head trauma as a
bilateral retinal hemorrhaging. The examination suggested
result of being shaken.
ul efforts to relieve the
Erik died three days later, on May 1, 2001, after unsuccessf
opric nerve bleeding, which,
swelling in his brain to keep him alive. An autopsy revealed
fracture to Erik's
like the retinal hemorrhaging, indicated a shal:ir►g injury. An older
had been shaken. The
femur and a more recent fracture to Erik's rib also indicated Erik
skull fractures and subdural hemorrhaging indicated abusive

head trauma. The extent of

impact greater than that
the injuries, particularly the skull fractures, stemmed from an

5

Abusi~~e head trauma, rather than an
occur from a fall to a carpeted floor.
«~hich «~ould
.

accidental fall, caused Erik's injuries

nd by police on
A pair of brass 1:nlickles were fou

Apri128, 2001, inside a drawer

ge.
at a park and kept them in the gara
garage. Defendant had found them
in Margie's
II
DISCUSSION
A.

e

Admission ofPrior Child Abuse Offens

retion in admitring e~zdence of

sed its disc
Defendant contends the trial court abu

ry (§

d.(a)(1)) inflicting great bodily inju

273, sub
his prior 1993 offense of child abuse (§

dence was probative, it was

while the e~z
1 1022.7). Specifically, he claims that,

ial and inflammatory" that its admission

nevertheless "so o~~ervvhelmingly prejudic

gree.
requires reversal of the judgment. Vl'e disa
it specific instances of prior conduct b}'

Prior to trial, the prosecutor sought to adm

on by
3, which resulted in defendant's con~~cti
defendant toward another son, Jack, in 199
t bodily injury. The prosecutor argued the
guilty plea of child abLse inflicting grea
ion 1101, subdivision (b)to prove

Code secr
evidence was admissible under E~~dence

ger in shaking a baby, lack of mistake, and

defendant's intent, l:nov~~ledge of the dan

lack

of second degree murder and child abuse.

of accident in the instant charged offenses

ndant's prior conduct and conviction were

Defense counsel asserted evidence of defe
ext
" remely" prejudicial,"overkill," and

improper propensity evidence.

Code
s far as the [E~~idence
the etildence, finding: "A
ed
The trial court admitt
of
probative in this hind
e, I believe it's highl}~
ion ](b) eti~denc
section] 1101[, subdivis
uy v~~ill
ck of accident. The jt
d malice, as well as la
intent, implie
case. It clearly noes to
ction that
subdi~~ision ](b) instru
e Code section] Z 101[,
videnc
be admonished in the [E
ion
People argue disposit
ion evidence, and if the
s for disposit
they cannot consider thi
would be
onduct, and this matter
be prosecutorial misc
would
e~~idence, obviously that
ce
~~ised that this e~~den
[¶] The jury will be ad
at should occur.
subject to a mistrial if th
mistake.
d lack of accident or
to the issue of intent an
it relates
is to be considered only as
e~~dence
e probative ~~alue of this
ction] 352, balancing th
de se
[~j] Under [E~~dence Co
y.
fa~~or of its admissibilit
I feel that it ~~eighs in
udicial effect,
against the possible prej
2 will be
dence Code section] 35
the challenge under [E~~
erefore,
And for the challenge, th
denied."

r
and impregnated anothe
that defendant lived with
o~~ed
The admitted evidence sh
. In
, Jack, in March of 1993
o gave birth to their baby
rland, wh
girlfriend, ~'Iichelle I~1cFa
follo«~ing
r several seconds. The
ndant shake Jack, hard, fo
defe
May 1993, Michelle sa«~
about tv~-o v~~eeks unril
wa, where she stayed for
d moved to Io
day, AZichelle took Jack an
fornia. Sometime later,
her into returning to Cali
d coaxed
defendant contacted her an
the
by's head, defendant said
mark on the back of the ba
d
when Michelle noticed a re
holding him.
ll while defendant was
his head on the windowsi
baby hit
e
nt while they were in th
d defendant had an argume
le an
On July 1, 1993, Michel
home,
me. ~'~'hen I~lichelle got
t of the car a,~d «•alked ho
e got ou
car with Jack. Itlichell

7

r, and
ual. The next morning Jack had a feve

she noted that Jack's crying seemed unus
I~-lichelle called the doctor to arrange for

r, did not
an appointment. Defendant, howeve

continued to resist taking
want to tale Jack to the doctor. Defendant

Jack to the doctor,

ed over the next few days.
even though Jack's condition worsen
a
on July 3, 1993. ACT scan revealed
lle finally took Jack to the hospital
Miche
said he
information to defendant, defendant
ull fracture. When Michelle relayed this
sk
shower that
dropped the baby ~~hile bathing in the

morning. The following day, v~~hen
ries,

cer investigating the cause of Jack's inju

offi
defendant was interviewed by a police

k in the
om his hands when he was bathing Jac
defendant again stated that Jack slipped fr
th earlier Jack had fallen to the floor
Defendant also told the officer that a mon
sho«~er.
carrying him.
« hen defendant "clipped" the bedpost v~~hile
to August 1993, defendant pleaded guilty

to child abuse (~ 273, subd. (a)(1}) and
y(§ 12027). Se~~eral }'ears later,

ry on the bab
admitted that he inflicted great bodily inju
defendant admitted to Michelle that he held

Jack upside down by the feet while shaking

him.
a Piantini, a forensic pediatrician
There was also testimony from Dr. Rebecc
examined Jack's medical records relaring tospoke with any of Jack's treating doctors
case, she opined that Jack's injuries were

«~ho

his injuries. Although Dr. Piantini neither

nor examined any X-rays or CT scans in Jack's
likely to have been abusive injuries and

unlikely to have been caused by a fall from

defendant's arms in the shower.

0

the foregoing
Defendant claims the trial court abused its discrerion in admitting
e~~dence because it «~as inflammatory, it confused the issues, it

involved conduct remote

no abuse.
in time, and it consumed an undue amount of trial rime. We find
ct on a specified

Character evidence is inadmissible «hen offered to prove condu
"

rule is to avoid placing an
occasion. (Evid. Code, § 1101, subd.(a).) The purpose of this
accused in the position of defending against crimes for which he

[or she] has not been

icial
charged and to avoid having a jury convict him [or her] on prejud

character e~~idence

p.4th 414,
alone. [Citation.)" (Blackburn v. Superior Court(1993) 21 Ca1.Ap

430;

accord, People v. Etit~oldt(1994)7 Ca1.4th 380, 393 (Etit~oldt).)
defendant
Under E~zdence Code secrion 1101, subdi«sion (b), e~~idence that a
committed other crimes, ci~zl w7ongs, or other acts is admissible under E~7de

nce Code
e of

absenc
section 1101 if it is relevant to pro~~e a fact (e.g., motive, intent, l:no«~ledge,

irion to

mistake or accident, or common plan or design) other than the defendant's dispos
conunit the charged crime. (Ex~oldt, supra, 7 Cal.4th at p. 393.)
The admissibility of such evidence "depends upon three principal factors:

(1) the

materiality of the fact sought to be proved or disproved;(2)the tendency of the
uncharged crime to pro~-e or disprove the material fact; and (3)the existence of any ru!e
)27
or policy requiring the exclusion of rele~~ant evidence." (People v. Thomson (1980
Ca1.3d 303, 315, italics omitted, disapproved on another ground in People
(1988)44 Ca1.3d 883, 907, fn. 7.)

D

v. i~'illiams

mes has a tendency to pro~~e a

of other cri
1n deterr.~.ining ~;~hether evidence
must first
m aterial fact in dispute, the court

harged
determine whether or not the unc

lly, and by reasonable
offense serves ""`logically, natura
ra, 27 Ca1.3d
fact." (People v. Thompson, sup

inference"' to establish that

of
at p. 316.) Moreover,"[e]vidence

t its admission requires extremely

al tha
uncharged offenses `is so prejudici

careful

in
ial prejudicial effect [is] inherent
' [Citarions.] `Since "substant
analysis. [Citations.]
ntial
admissible only if they have substa
~dence," uncharged offenses are
[such] eti
ics omitted.)
oldt,supra, 7 Cal.4th at p. 404, ital
probative value.' (Citarion.]" (Ew
the uncharged act and the charged
least degree of similarity (between
The
"
a similar
. [Citation.] `[T]he recurrence of
) is required in order to grove intent
offense
ative accident or inadvertence or
creasingly with each instance} to neg
result . . . tends (in
tal state, and tends to establish . ..the
or good faith or other innocent men
self-defense
tarion.]
accompan}~ing such an act . . . .' [Ci
ence of the normal, i.e., criminal intent
pres
t be sufficientl}~
ent, the uncharged misconduct mus
In order to be admissible to prop-e int
"`probably harbored] the same intent
t the inference that the defendant
similar to suppor
; see also
.]" (E~t~oldt, supra, 7 Cal.4th at p. 402
h instance." [Citarions.]' [Citation
in eac
2.)

h 93, 121-12
People v. Yeoman (2003) 31 Ca1.4t

be
Even «here evidence is not required to

n

excluded under Eti~idence Code secrio

de section 352 is required. (People

ce Co
1 101, a further inquiry under E~~den
199
( 4)7 Ca1.4th 414, 426-427,) In

other words, for other crimes evidence

must find that the
admissible, the trial court not only

10

v. Bolcom

to be

probati~~e value of that e~zdence is

substanrial but also mist detemune «~hether that probarive value

"is `substantially
ntial danger of

.create substa
ouri~~eighed by the probability that its admission [«~ould]. .
undue prejudice, of confusing the issues, or of misleading the

jury.' [Citarion.)" (E~~~old~,

appeal, we re~zew the trial
supra, 7 Cal.4th at p. 404, quoting Evid. Code, § 352.) On
le v. Le~t~is (2001)25

court's rulings on both questions for abuse of discretion. (Peop

858.)
Ca1.4th 610, 637; People a Daniels(1991)52 Ca1.3d 815,
tion in admitting the

In the present matter, the trial court did not abuse its discre

d abuse resulting in

prior act evidence on counts 1 (second degree murder) and 2(chil
death) for the purposes of showing that defendant had l.~nowledge
mistake or accident, and intent to commit the charged offenses.

of danger, lack of

The prior act was

d, defendant concedes
strikingly similar to the charged offenses in counts 1 and 2. Indee
the evidence ~~~as probative.
We next must address the principal question of whether the probative
prior crime e~~iden~e "is `substantially outweighed by the probability that

value of the

its admission

[would]...create substanrial danger of undue prejudice, of confusing the

issues, or of

ng Evid.
misleading the jury.' [Citarion.]" (Ex~oldt, supra, 7 Ca1.4th at p. 404, quori
y
Ccde, § 352.) As stated above, the prior act and conviction evidence was highl
al.
probative. The prejudicial effect of that evidence, on the other hand, ~~~as minim
dant was

Factors to consider in assessing prejudice include whether the defen
con~~cted of the prior offense, which eliminates the danger that the jury
compelled to do so in the current case and also eliminates the need for

11

~~~ould feel

the jury to decide

if the prior came actually occurred, ~~hich could potenrially confuse the issues. (Etit~oldt,
supra, 7 Cal.4th at p. 405.) Defendant v~~as convicted of child abuse inflicting great
bodily injury in 1993, and therefore the noted concerns do not come into pla}'. In
addirion, cases have held that long distances in time do not render other crimes evidence
irrelevant per se if the incidents are extremely similar, and the myriad similarities of
Jack's and Erik's experiences present such a case. (See, e.g., People v. Burns (1987) 189
Ca1.App.3d 734, 738-739; People ~~. Waples(2000) 79 Ca1.App.4th 1389, 1393-1396
[this court determined extremely similar crimes committed 18 to 25 years before the
present crime were relevant and admissible]; but see People i~. Harris (1998)60
Cal.App.4th 727, 739.)
Testimon~~ regarding the prior crime was not inflammatory, or no more
inflammatory than the charged offenses, another factor to consider in assessing «~hether
the probative va;ue of the e«dence substantially oun~-eighed its potenrial for prejudice.
(
People v. Burns, supra, 189 Ca1.App.3d at pp. 738-739.) In arguing otherwise,
defendant asserts that the prior crime evidence sho~~~ed nothing more than defendant's
propensity to commit crimes and had no other probative value. As discussed pre~~ously,
tr:e e~~dence was relevant to prove defendant's l:now~ledge of the danger of shaking a
baby, lack of mistake or accident, and intent to commit the charged offenses, and
therefore we reject defendant's contrary claim.
The prejudice defendant complains of is the type that naturally flows from
relevant, highly probarive e«dence. And, as noted above, the e~~idence of the prior act

12

se that there «~as very little

was

issues in the present ca
so highly rele~~ant to the

danger

d
over, the trial court lunite
improper purpose. More
it for an
the jury would have used
~gi:age of
ructing the jury, in the t~ior con~~crion by inst
the pr
any preju~i~i;l impact of
to prove defendant «~as a
could not be considered
such evidence
CAI.JIC No. 2.50, that
g all of
mmit crimes. Considerin
had a disposition to co
that he
person of bad character or
discrerion in finding that
court did not abuse its
nclude the trial
the relevant factors, we co
ity
tweighed by the probabil
was not substanrially ou
e eti~dence
the probati~~e value of th
es, or of
ice, of confusing the issu
l danger of undue prejud
nria
that it would create substa
misleading the jury.
en if we were to assume
thstanding the above, ev

that the trial court abused

Notwi

e e~~dence, we are unable

mission of the prior crim
scretion in allowing the ad

its di

to find

prior offense had not
testimony concerning the
ed. Even if
that defendant v~~as prejudic
r
on was harmless error unde
ncluded that its introducti
ha~~e co
been admissible, ~~~e would
956)
18, 24; People v. 6~Y'atson(1
lifornia(1967) 386 U.S.
v. Ca
any standard. (Chapman
onial e~zdence here to
elming physical and testim
was overwh
46 Cal.2d 818. 836.) There
use resulting in death. The
that he committed child ab
Eril: and
in
f d teat defendant killed
rmally funcrioning. It also
that Erik's brain was abno
owed
CT scan of Erik's brzin sh
d left
eeding between the brain an
both sides of Erik's head, bl
showed skull fractures on
e frontal
e brain, and blood inside th
toma on the left side of th
skull, a subdural hema
the
. The child abuse u-orkvp,
len brain indicated trauma
swol
cortex of the brain. Erik's
story
ation all contradicted the hi
's brain, and an eye examin
ik
CT scan, the lesions in Er

13

given by defendant as to Erik's injuries. Eril:'s complete medical examinarion re~~ealed
abusive head trauma as a result of being shaken. An autopsy of Erik's body sho~~~ed optic
nen~e bleeding, which, like the retinal hemorrhaging, indicated a shaking injury. An
older fracture of Erik's femur and a more recent fracture to Er~il:'s rib also showed Eril:
had been shaken. There was overwhelming evidence here to indicate that Eril: died as a
result of abusivz head trauma rather than an accidental fall.
Defendant also claims admission of the prior offense e~~idence ~zolated his
constitutional right to due process under the federal and state Constitutions. Substanrially
similar arguments recently were rejected by our Supreme Court in People v. Yeoman,
supra, 31 Ca1.4th at pages 122-123. As the court explained,"[w]e reject the argument
because the teal court's decision to admit the evidence «~as correct under state law (Enid.
Code, ~§ 352, 1101, subd.(b); see People v. Etit~oldt, supra, 7 Ca1.4th 380, 402-403), was
neither arbitrary nor fundamentally unfair ...." (Id. at p. 123; see also People v.
Falsetto (1999) 21 Cal.4th 903, 917 [high court held that Evid. Code, § 1108, which
pernuts e~zdence of a defendant's uncharged sex offenses to show his propensity to
commit of:'enses of the same type, did not violate due process, reasoning that the trial
court's discretion to exclude unduly prejudicial e~~dence under Evid. Code, § 352 saved
§ 1108 from the defendant's due process challenge]; see also People v. Hoover (2000) 77
Ca1.App.4th 1020, 1025-1029 [this court held Evid. Code § 1109, v~~hich permits
admission of a defendant's prior acts of domestic violence to show the defendant had a
propensity to commit one or more charged offenses involving domestic ~~olence, does not

14

me];
..App.4th 1085, 1Q95-1096 [sa
ple v. Escobar(2000) 82 Cal
offend due process]; Peo
gs (2000) 81
1353 [same); People v. Jennin
(2000) 81 Ca1.App.4th 1343,
People v. Jomes
00} 77 Ca1.App.4th 1324,
[same]; People v. Bro~t~n (20
C~I.App.4th 1301, 13Q9-1310
For
.App.4th 410, 416-414 [same].)
ple v. Johnson (2000) 77 Cal
1331-1334 [same]; Peo
1 does not offend due process.
s, Evidence Code section 110
the same reason
B.

CALJIC No. 2.03
h the
ed in instructing the jury wit

al court err
Defendant also argues the tri

claims the
C No. 2.03). Specifically, he

on (CALJI
consciousness of guilt instructi

ated
ted that the defense was fabric
er because it "strongly" sugges
instruction was improp
was an
this fabrication, and because it
ht therefore infer his guilt from
and the jury mig
disagree.
improper pinpoint instruction. ~e
l the
: "If you find that before this tea

jury, states
CALJIC No. 2.03, as given to the

ning the
ely misleading statement concer
de a ~~~illfully false or deliberat
defendant ma
ent as a
ed, you may consider that statem
es for w-hich he is now being tri
crim
guilt. However, that conduct is not
ding to prove a consciousness of
circumstance ten
you to
ght and significance, if any, are for
by itself to prop-e guilt, and its wei
sufficient
decide."
3
Th
" e giving of CALJIC No. 2.0

nce that the

is justified when there exists e~~ide

's
conduct. The falsity of a defendant
prefabricated a story to explain his
defendant
al statement is not
er e~zdence even when the pretri
al statement may be shown by oth
pretri
ards (1992)
timony at trial." (People v. Edtit~
inconsistent with defendant's tes

IS

tute e~zdence of
'
8 Ca1..App.4th 092, 1103.) Prior statements, if false, may consti
in form. (People v. Cooper(1970)
consciousness of guilt e~~en when they are exculpatory
s for one's conduct may be
7 Cal.App.3d 200, 204-205.) Furthermore, false reason
circumstantial e~~idence of an ulterior, unspoken, and

illicit morivarion. (See, e.g., People

)9 Ca1.App.4th 430,

v. Osslo (1958)50 Ca1.2d 75, 93; see also People v. Rankin (1992
436[CALJIC No. 2.03 should be given if defendant males a false

statement for the

purpose of deflecting suspicion].)
If the defendant's pretrial statements contradict physical e~~dence

or the testimony

ents
of trustworthy witnesses, the jury may view the making of those statem

as

44 Ca1.3d 480, 496,
demonstrating consciousness of guilt. (People v. Kimble (1988)
and of the
498.) Here, there was both physical evidence (photographs of Erik's injuries
paramedic and the
stairs in the house) and the testimony of trust~~~orth}~ «~itnesses, i.e., the

doctor, that contradicted defendant's pretrial claim that he accidentally dropped

Erik

white on the stairs. Accordingly, it can be a proper evidenriary basis for giving CALJIC
No. 2.03.
Defendant, however, contends the instruction was improper because it suggested
m
to the jury that he made false statements, and therefore the jury inferred his guilt fro this
fabrication. To the contrary, the Supreme Court has repeatedly held that the
ant to

consciousness of guilt instructions (see also CALJIC Nos. 2.04 [efforts by defend

ly

fabricate evidence] and 2.06 [efforts by defendant to suppress evidence]) do not proper
on
relate to mental state. In People v. Crandell(1988)46 Ca1.3d 833 (disapproved

16

), the
Crayton (2002) 28 Ca~.4th 346
another ground in People v.

defendant claimed that

ded
cess by pernutting an unfoun

trucrions violated due pro
the consciousness of guilt ins

t to a

iousness of guilt' as equivalen

y might "view `consc
inference, arguing that the jur
ments of the
confession, establishing all ele

luding
charged murder offenses, inc

ous
ugh defendant might be consci
itation and deliberation, tho
premed
p.
awful homicide." (Crandell, at
committzd some form of unl

only of having

871.) The Crandell court

t the jury might have confused

g: "Defendant's fear tha
gum
rejected this ar ent, concludin

would
arranted. A reasonable juror

nings of `guilt' is unw
the psychological and legal mea
lt' to mean
understand `consciousness of gui

oing'rather
`consciousness of some wrongd

mitted the specific
than `consciousness of having com
t significance, if
ad~~ise the jury to deternune wha

ons
offense charged.' The instructi

any, should be given to e~zdence

of

ient to establish guilt,

n that such e~ridence is not suffic
consciousness of guilt, and caurio

lent of a confession and is to

e~zdence is not the equiva
thereby clearly implying that the

trucrions do not address the
son and common sense. The ins
be evaluated with rea
el the
ense and do not direct or comp
mental state at the time of the off
defendant's
id.; see also People v. Jackson
erences in regard thereto." (Ib
drawing of unpernussible inf
trucrion by advising jury that
, 1224 [unnecessary to limit the ins
19
( 96) 13 Cal.4th 1 I64
Ca1.4th
state]; People v. Breauz(1991) 1
of guilt is not probative of mental
consciousness
ther ground in
54 Ca1.3d 932(disapproved on ano
.} In People v. Ashmus (1991)
281, 304
ued that the
h 93), the defendant similarly arg
ople v. Yeoman,supra, 31 Ca1.4t
Pe
if he
cess by improperly implying that
guilt instrucrions ~riolated due pro
consciousness of

l7

that he acted with intent to hill.
murder victim it might be inferred
lied about attacking a
such
that the instruction did not pernut
977.) The Ashmus court concluded
Ash
( rnus, at p.
of the
could not have taken the words
nce' "A reasonable juror simply
zn infere
an inference of intent to ]:ill on his
that lies by defendant supported
instrucrion to mean
s, the
(1993)5 Ca1.4th 950, 1022.) Thu
p. 978; see also People v. Clark
part." (Id. at
where intent is
actually less appropriate in cases
ousness of guilt instrucrions are
consci
er California Supreme Court cases
The rationale in Crandell and oth
the primary issue.
licable to this case.

dealing with the instant issue is app

, ~~here the
io(1977) 71 Cal.App.3d 757, 758
Defendant relies on People v. Rub
of that a
LJIC No. 2.03 when the only pro
rt disagreed with the giving of CA
appellate cou
on's
is that they conflict with the prosecuti
nt's pretrial statements are false
defenda
IC No. 2.03 is justified on]y
court reasoned: "The giving of CALJ
e~~idence at trial. The
s
d a story to explain his conduct. Thi
et-idence that defendant prefabricate
if there exists
ation of
where a defendant makes an explan
tion is not applicable in the situation
instruc
at trial that
sistent with his self-sen-ing testimony
behavior to the police which is con
dence before the
conflicts with the prosecution's evi

jury. In such a case, the instruction
s out

ant's credibility as a witness and single

a defend
of necessity casts specific doubt on

ular scrutiny than that attached to

more partic
defendant 's testimony as subject to
at g. 769.)
prosecution witnesses." (Rubio,
.3d
In People v. Kimble, supra, 44 Cal
ion
the general rule allo~~ing admiss

ther
480, the Supreme Court examined whe

y when the
of pretrial false statement applies onl

"`falsity

ct that they are contrary
' is demonstrated by the fa

The court held that such
timony." (Id. at p. 496.)

to the defendant's o«m

trial

able to

a restricrion is not applic

tes

In
ses holding otherwise.
sagreed with the line of ca
The court di
pre*rial f~~se sta±ements.
truction
Court found that the ins
Cal.4th 103, the Supreme
991) 1
People v, Bacigalupo (1
or degree of culpability
uld infer any mental state
rs that they co
did not suggest to the juro
but
biased or argumentative
ld the instruction was not
lt. It he
from consciousness of gui
drawn
es that could rationally be
vising the jury of inferenc
was a proper instruction ad
Ca1.4th 495, the Supreme
People v. Kelly(1991) 1
p. 128.) In
from the evidence. (Id. at
the
No. 2.03 was favorable to
t's argument that CALJIC
ndan
Court again rejected a defe
proseeurion. (Kelly, at p.

531.}
r that Rubio is no longer

galupo, and Kelly, it is clea
e, in light of Kimble, Baci

Henc

ee People v. Edtit~ards
ect statement of the law. (S

, 1103(1992) 8 Ca1.App.4th 1092

a corr

4th 467, 478.)

995)33 Cal.App.
1104; People v. Williams(1

ted an impernussibly

CALJIC No. 2.03 constitu
fendant further argues that

De

ion that dre«~ an inference
ntative pinpoint instrucr

n.

favorable to the prosecutio

argume

ention has repeatedly been

People point out, this cont
W e again disagree. As the

rejected

1, 438-439; People v.

yette (2002)29 Ca1.4th 38
preme Court. (People v. Bo

by our Su

224;
pra, 13 Cal.4th 1164, 1223-1

5; People v. Jackson, su
pp (1998) 18 Ca1.4th 349, 37

Ki

1.4th 495, 532.)

People v. Kelly, supra, 1 Ca

urt did not err
We conclude that the trial co

19

.

by giving CALJIC Na. 2. 03

Even if we assume the challenged instruction ~i~as inapplicable here, applying the
le

more stringent Chapman2 standard, ~~-e find any error to be harmless beyond a reasonab

.estimonial
doubt. As stated in secrion II.A, ante, there was overwhelming physical and
e«dence here to find that defendant abused and killed Erik and that he gave a false
explanarion regarding Erik's injuries to the paramedic, the doctor, and his girlfriend.
Based on the foregoing evidence, any error in instructing the jury with CALJIC No.

2.03

was harmless be}~ond a reasonable doubt.
C.

Correction ofAbstract ofJudgment

Lastly, defendant contends, and the People agree, that the abstract ofjudgment
must be corrected to reflect the oral pronouncement ofjudgment. Because the abstract of
judgment erroneously indicates the 30-}'ears-to-life sentence on count 1 (15 years
doubled pursuant to the three strikes law) runs consecuti~~ely to the 50-years-to-life
sentence on count 2(25 years doubled pursuant to the three strikes), and the trial court
stayed the sentence on count 1 pursuant to secrion 654, we agree with the parties that the
abstract ofjudgment must be corrected accordingly.
III
DISPOSITION
The trial court is directed to amend the abstract ofjudgment to reflect the sentence
on count 1 (second degree murder) was stayed and to forward a copy of the amended

~

Chapman v. California, supra, 386 U.S. 18, 24.

er respects, the
rions. (§§ 1213, 1216.) In all oth

abstract to the Department of Correc
judgment is affirmed.

AL REPORTS

ICI
?`.QT TO EE PUBLISHED ITti' OFF

RICHLI
J.

We concur:

HOLLENHORST
Acting P.J.

McKINSTER
J.

21

Page 22

ANN GAROFANO
INTERVIEW WITH MARGIE
P3-01-118-065

was to the point cause it
him about it because it
ed up, so, I, I knew he-was gonna get him all ril
MASSON:

And what do you t=hink--

GAROFANO:

--he's a person who wants-

MASSON:

--would of happened?

GAROFANO:
MASSON:

and obviously---he is his son, you know,
happened if he got riled
What do you think would of
up?

GAROFANO:

boisterous and . .... .... .. .
Oh, he, he, he is very
and--

MASSON:

Did

you

ever

see

him

do

throw

else,

anything

things?
GAROFANO:

He

threw

maybe

telephone

book

something
once,

and

across the
you

know,

room

like

things

a

like

of frustration no I'm
that, but, but k=inda of out
n, you know, threw
upset .. . . . ... .. . ... ... and the
d of thing.
it over there. Yeah, that kin
MASSON:

y? ~
How is, how is David with the bab

GAROFANO:

. ...him, because I always
He seems to .. . . . . .. . . . . .
think

the

baby,

most

of

the

time

he's

... . . . ...

y with him, call him
... . .. _ . love to carry it, pla
e that and um, you
cuddle puddles, and things lik
the baby, and uh,
know, he seems very happy about
swing so he's
if he's busy he'll put him in the

r

IE ANN GAROF~NO
INTERVIEW WITH MARG
P3-01-118-065

Page 23

thing,
e nice little safe seat
fine. His swings ar
-you know, we have and
MASSON:

hours?
You work how many

GAROFANO:

ts, night shift.
I work 12-hour shif

MASSON:

For how many hours?

GAROFANO:

Uh.

MASSON:

days?
I mean for how many

GAFtOFANO:

extra
. I work one day a week
Uh four days a week
for extra money.

MASSON:

To make up the hours.

GAROFANO:

paid
tra money cause we get
Yeah. Just for 1~he ex
extra day.
extra money for the

MASSON:

Okay.

GAROFANO:

You know.

MASSON:

So -o--

GAROFANO:

for years though.
I've been doing that

MASSON:

do you go on?
--and, and what time

GAROFANO:

00.
e at 6:00 be a~ work by 7:
It's, I leave the hous
7:00.
About 6:15 and work by

MASSON:

7:00--

GAROFANO:

p.m.

MASSON:

p.m?

MASSON:

e?
Okay, and you wor_)c wher

GI~ROFANO:

spital.
San Antonio Community Ho

Page 37

GAROFANO
INTERVIEW WITH MARGIE ANN
P3-01-118-065

GAROFANO:

I,

I

he's feeding

him

um

rice

cereal mixed

with

s-different kinds of baby food
MASSON:

Uh-hum (affirmative)

GAROFANO:

--and breast milk.

MASSON:

And breast milk? Okay.

GAROFANO:

Yeah I breast feed him.

MASSON:

So you pump it and--

MASSON:

just at night, to
Yeah, I pump it at work at night,
so he mixes his
have some in the bottle at home,
food- -

MASSON:

Okay.

GAROFANO:

trying to get him
--and David will feed him. We're
e trying to do
to go back to the bottle now. We'r
the weaning thing.

MASSON:

ly?
Right. How's the baby's appetite late

GAROFANO:

Very good,

and

he

eats

great.

I

mean

..........

arking
whenever I give him . .. . . . ...... .. I was rem
y first
to the doctor, I surprised because the ver
ht for
time I gave him a spoon of food he went rig
even
it like a, like he, oh he, I mean he's, he,
the

doctor commented he seemed advanced for his

age.
MASSON:

Okay.

Page 77
FANO
MARGIE ANN GARO
INTERVIEW WITH
P3-01-118-065

GAROFANO:

HUGHES:

t that weird it
, you know, isn'
t know why he
I don'
.
rk and I saw it
was in our pa
saw
the thing you~
. . about uh the,
..
. .. . .. .. . ... . .
nose?
on, on Eric's

GAROFANO:
HUGHES:

GAROFANO:
HUGHES:
GAROFANO:

HUGHES;
GAROFANO:
HUGHES:
GAROFANO:

Yeah.
. . . . . . ..
. . . . .... . . . ..

..

you

described it

is

that

indentation andit's like an
-It was like uh
blistered?
--and then it

ow how you get
re sore. You kn
s like a pressu
--i~ wa
ttle baby he
when he was a li
e sores and it,
pressur
his face-on that side of
had rolled over
Okay.
pressure sore.
--and it was a
blister before?
But then it did
ll blister
lf of the skin wi
, it, well it ha
Yeah, it
rubbed
he, well, he, he'd
it, and then it,
and then
abbed and
oke and then it sc
, you know, it br
i~ then
it bled.

HUGHES:

you've
told you him that
mething that you
Is this so
.. . .. .. .. ..
seen ttzen . .. ..

GAROFANO:

...

Yeah,
in the hospital.
at kind of thing
I've seen th
doctor said not ~o
e doctor and the
and I showed th
and that's why,
and, it will be,
worry about i~,

ANN GAROFANO
INTERVIEW WITH MARGIE
P3-01-118-065

Page 78

t heads
that Come out with fla
cause all the kids
backs,
them to stay on their
because they telling
don't turn them yet.
HUGHES:

like a burn perhaps?
So it's not, it wasn't

GAROFANO:

No. No, no, no. Cause--

HUGHES:

. ... . ... ..... . . might-

GAROFANO:

--I, I, no.

HUGHES:

hot water.
--just may be a drop of

GAROFANO:

it
that. I, I thought about,
No, no, no it's not
difference. It was not, it
was not, and I know the
se
it definitely makes sen
was a pressure sore. And
to me.

MASSON:
GAROFANO:

with the child?
Has he ever rough housed
baby was crying early on,
There was a time when the
would do like this upside
and he would, he, he
seconds, and you know, and
thing you know for a few
ice it, then I saw he, he
I, at first I didn't not
baby, you know how you,
walked, he was walking the
crying, just walk around
you hold the baby, he's
ng him you know, and I
the house, you're cuddli
rever he was and I saw
walked into the den or whe
ked like a dippsy thing,
him with the baby he loo
are you doing?'~ "Oh, this
like this . I said "What
and it works." I said
helps stop him from crying

Page 79

GAROF.ANO
YNTERVIEW WITH MARGIE ANN
P3-01-118-065

." And, it was like he was
"No, you don't do that
like this. You know I said
just, he was holding him
"No, you don't-MASSON:

it?
What kind of motion was

GAROFANO:

The,

the

baby's

in

your

arms,

here's

his

head,

t, he, supported the baby
here's his body acid he jus
s.
the whole time doing thi
MASSON:

jerky motion or?
Was it a quick motion or

GAROFANO:

Like um.

MASSON:

Or smooth motion?

GAROFANO:

times a little
Some times smooth, some

bit of a

uh the hand, his whole
jerk like that, but'he had
d.
arm against his back and hea
MASSON:

g ..... . .. . ..?
So the head wasn't fallin

GAROFANO:

And I said "Were you"
No, no, I watched it. Yeah.
and

I

didn't like

that.

And

I, I sa and

I said

eral times and I told
"Don't," I, I, it took me sev
the office with the
him "Don't do that." And so in
doctor I

think

I remember

asking

him,

you know,

"You don't do
tell, tell him, tell David
down with the baby things."
went over that with him.
MASSON:

How often did he do that?

upside

. ... .. . . . ..... ... . . he

Page 80

GAROFANO
INTERVIEW WITH MARGIE ANN
P3-01-118-065

GAROFANO:

off and on. But then I
Jus', uh, just on occasion,
I finally got reallytold him I didn't like it and
nts were starting, you
-that's when some argume
,
. Cause I said-- '~ ~~ '
know, beginning of arguments

MASSON:

Did you--

GAROFANO:

do that."
--"I don't like that, don't

MASSON:

any kind of pamphletsDid you happen to bring home

GAROFANO:

Yes I did.

MASSON:

. ..... ...
--regarding to shaking . . . . ... .....

GAROFANO:

I left it out on
I picked it up doctor's office and
ays there when I
the baby's thing, for, so it's alw
was gone. I did it purposely.

MASSON:

Okay. .. .. .. .. . . . . . . . ....

GAROFANO:

Yeah.

BARTHOLOMEW:

As a result of that?

GAROFANO:

Uh.

BARTHOLOMEW:

. . . . . . . . .. . . . . .. ... or before that?

GAROFANO:

Well,

it

came

with

the

baby

from

the

doctor's

, so, so
office . It's a package thing . It was all
t left
I, I, it . . . . . ... ... . ... ... ... office, I jus
w,
it out so it would be visible, so he'll, you kno
..
he'd see it. But then, after I . . . . . . .... . . .

Page 81

INTERVIEW WITH MARGIE ANN GAROFANO
P3-01-118-065

MASSON:

you

You,

left

it

out

so

he

wouldn't

do

that

anymore?
GAROFANO:

I just left it out in the baby's room. I talked to
him

about

it.

Yeah.

You

know,

about

the

shaking

baby thing, you know. Yeah, because we talked about
that. He didn't do that, he just, this is all I saw
him do this dipping thing. That's all I ever saw.
MASSON:

Where did he .... ..... ... . . ...

GAROFANO:

I

don't know.

I,

to him.

I, I asked him "What is that?"

"Oh, it's nothing, it's . . . . ... . . .. . .. . .." It, it,
it's just, you know, it's white is white, he used
to say, say "So what" all the time, said "So what,
it's, you don't do that" is what I said. You don't,
you know?
HUGHES:

How long ago did he do that?

,

GAROFANO:

Um, around January when I saw it.

HUGHES:

Did he . . . . . ........ . . . . . . . ..

GAROFANO:

Yeah, Uh-huh (affirrnative) .

HUGHES:

Is David familiar with the shaking baby syndrome?

GAROFANO:

Yeah.

HUGHES:

. . . .... .. ... .. . . .... .. . ..

GAROFANO:

And, the doctor pointed it right out to him.

HUGHES:

... . . . . . . . . . .... . . . . .. . . . .

GAROFANO:

Um, I don't know.

Page 82

FANO
INTERVIEW WITH MARGIE ANN GARO
P3-01-118-065

HUGHES:

.. .. . ... .... . .. . . . . ........ ....

...... ... did he say

a nything?
GAROFANO:

Uh,

gosh,

.. . . . . . . .... .......

possibly

knew.

I

he knew, but I think he
don't know ... . ...... .. . .
don't know, he didn't
was aware of it. i~ut, I, I
it, cause I learned
e xactly, you know, talk about
s time.
most of the stuff_ around Christma
BARTHOLOMEW:

...... .. .... . . ..

Christmas

is

when

first

you

}, ;
learned about his prior .. .......
GAROFANO:

Um, just

BARTHOLOMEW:

--inquiring about tYie--

GAROFANO:

I learned about
Yeah, I think most of it, cause I,
it

in

pieces

over

time.

I

didn't

know,

there's

you know, we
little tidbits. You know we had this,
get

.. . . .... .. . . . . . ..

and

you

know

things

would

got the
happen. And, and it's tidbits and I never
I found
whole picture at one time. It was over time
out the picture. And after I was involved.
HUGHES:

k?
Now that you know the picture what do you thin

GAROFANO:

.
Well, I'm thinking wu, I got myself into a mess
I'm thinking --

HUGHES:

... . . . .... . . ... . . . used to be.

G AROFANO:

uh,
Oh, after hearing that it, it definitely struck
then
a chord in myself. You know, wondering, but

Page 83

ANN GAROFANO
INTERVIEW WITH MARGIE
P3-01-118-065

um ... .. ... .. . ... .
he's shown me how he

while he

was in prison and
(End of Tape 1)

(Start Tape 2, Side A)
GAROFANO:

he
ted to give into, therefore
. . ...... . . . .. he wan
he got put in jail. She
got in trouble therefore
er the fact they, she wanted
over reacted, cause aft
she did get back together
to get back together,
did live again together. So
with her son and they
e want to get back together
here's, why would someon
so terrible happened to her
if something like that
in calling and acting so
son, and why is she aga
g's fine. Which makes me
pleasant. I said everythin
either. So, it made me
wonder that this makes sense
true or if he was really
wonder if she was really
true.

I

didn't

really

know

who

I

could

anymore to be honest.
MASSON:

he moved in?
Did you get pregnant after

GAROFANO:

No, just before.

MASSON:

h you?
Just before he moved in wit

GAROFANO:

Yeah.

MASSON:

Was that a--

GAROFANO:

Two months before.

believe

n
y
'

Page 84

RGIE ANN GAROFANO
INTERVIEW WITH MA
P3-OZ -118-065

MASSON:

already
or did you guys
a factor_ , or uh
--was that
in?
plan on him moving

GAROFANO:

first, and then I
him moving in at
I didn't plan on
ttle, you know,
he, little by li
got pregnant and
,
d like, you know
g things. It soun
coming over doin
me there he was
and, and at the ti
I thought "Well,"
Um, I watched
calm, very nice.
very pleasant, very
r years, become
very neglected fo
my house which was
e. Things were
a beautiful plac
little by little
d you know,
were being fixed an
getting done, things
so I started
have that done,
it felt good to
things and
I am mommy dusting
thinking '"Well, Here
won't make
'll be okay, so he
think well maybe this
e that's not
fact you know, mayb
a lot of money." In
thinking
in life. I started
a l.l you have to have
lent. He,
ntially he's got ta
"Well, he's got, pote
s field of
direct him into hi
you know, I could help
what have
know, "painting and
when he does" you
you."

He

know,

the

did

the

marble

the

work

flooring.

in

my bathroom,

He's,

the

first

you
time

two other
job. In fact he did
ever, he did a great
my, at
ne he did work for at
friend's jobs. Everyo
a good
d came over, he did
hospital, supervisors, an
They're
ked the job he did.
job. David love, they li

OFANO
INTERVIEW WITH MARGIE ANN GAR
P3-01-118-065

Page 85

. he's very particular.
impressed. . . ... .. . ... .. . . .
so, so I thought he's
So, he's very good at, at,
you know.
got a potential in his life,
MASSON:
GAROFANO:

uh Eric?
What do you think happened to
know. I, I have uh,
I really don't know. I don't
a nightmare. I don't
it, this whole thing goes like
pen. I never, it's
know because I never see it hap
happened in front of
never in my view, it's never
e you're living in
me. It's never happened, it's lik
everything's fine.
a bubble or, you're, you know,
t's going on at
You go ofF to work, who knows wha
kle and Mr. Hyde
home. It could be like doctor Jec
for all I know. I don't know.

M~SSON:

c?
Do you think David could o~ hurt Eri

GAROFANO:

Yes.

MASSON:

And why do you think that?

GAROFANO:

hing I've said.
Based on everything you know, everyt
I mean,

it's
you know, you put things together,

t he seems, in my
possible. But, what's weird is tha
baby. So, it's
presence to be so in love with the
p, . ..... .. . . . , ;. ;
very, just takes care of him. Hel
g, he brings
... . . . . . . . have a bath in the mornin
I wash him, and
him to me and I sit in the tub and
crib and
then he takes him from me back to the

r ,

INTERVIEW WITH MARGIE ANN GAROFANO
P3-01-118-065

Page 86

dries him so he won't . . . . . . ........... . in and out
of the tub thing you know. I, I go and I shower, I
sit down, while he hands me the baby and I hold him
in my arms and then I wash him and I rinse him and
then hand him back to him and he puts him back in
the crib, he dries him, put's you know his diaper
on, and he gets some warm blankets until I get out
of

the

shower, and

then breast feed

him

and

we

watch TV, and the baby's happy, he's pleasant and
happy. I,
BARTHOLOMEW:

You said he gets impatient?

GAROFANO:

Yes.

BARTHOLOMEW:

Kinda has a problem with being impatient?

GAROFANO:

At times. Not, not all the time.

BARTHOLOMEW:

Have you ever seen him become impatient with, with

.~

Eric, when he's crying or fussy or not wanting to
do something?
GAROFANO:

Oh, su, on occasion he would sit, he'd talk to him
verbally would say "Alright," you know, like you
know "Wait, for mommy" or he'd start talking to him
when he is, he doesn't understand what all that
means. You know, I understand what he's trying to
convey to the child, but he's talking across the
room

to

the

child

like,

you

know,

"Yeah,

yeah,

Page 87
ROFANO
MARGIE .ANN GA
INTERVIEW WITH
P3-01-118-065

wait,

whoa,

whoa,"

you

know.

"Hey

Eric,

wait,

get ready" the
mom's trying to
's still busy,
mommy
in my arms all
he wants to be
s crying cause
b aby'
ready and put
I start getting
me. As soon as
the ti
t spoiled, he
tting a little bi
T guess he's ge
down,
ing with him,
d I just love be
to be with me an
wants
you know.

MASSON:

call, .. ... ..
t got the phone
, when you firs
When uh
, was there a
u're driving home
en hurt, and yo
had be
that .. .. . ..
u were skeptical
action where yo
gut re
.. ....... .. .
t he baby? ....

GAROFANO:

. ....

ess if I, to
far a flash. I gu
Um, yeah, maybe
Yeah.
and I just
nda wenC numb,
nest, I just ki
be ho
, and I had
anything horrible
to not think of
wanted
I have to
d I thought, all
ng drive home an
this lo
ll 911,
to "call 911, ca
.. . . ... .. .. .. .. . .
do, I
n't,
ke "Oh please, I do
and just kinder li
call 911"
and I
k the terrible,"
wanner even thin
I don't
okay,
little something,
maybe it's just
thought,
ght thing like T
and doing the ri
and he's being
osed to call 911
me," but he's supp
told him, "Call
then Z thought
mething more, but,
first if it's so
ke my level of
the judgement li
he doesn't know
--I thought maybe
ybes he didn't know
judgement, so ma

--

Page 9a
ROrANO
MARGIE ANN GA
TERVIEW WITH
IN
P3-01-118-065

,1
+. .?

MASSON:
GAROFANO:
HUGHES :

GAROFANO:

}
`

/

Right.
Right, right.

days
of a couple of
~een a period
er l:
Has there ev
ress
ly be in dist
seemed to real
e uric
w he~:e, wher
norrnal
ch more than
noi~rial, uh, mu
mores
or uli, much
that
ng like that,
ble, um anythi
iri-it~a
crying, uh
week?
even Lhe past
you notir.~d,
om he
out of the ro
. if I walk
. .. . .
. . . . . . . . . .. .
. . .. . wanting to
. . . . . . . . . . . . ..
t. . . . . . . . . .
gc,ts upse
e
lone h~ has ey
um, he's, as
end
be with rne,
but if, iF I
ntent as a bug,
th me lie's co
contact wi
realizes I' m
r a moment he
of t=lic~ morn Lo
walk DLit
on anxiety, ~s
about separati
doctor_ told ms
gone, the
u know, the
yUe that's, yo
in]ci_ng tliai~ ma
but I was th
he uh a few
ced he gets,
g, but I noti
m ommy thin
'd just
usual. Likes, he
ciices more than
time ~ he, he
I pic}ced
r me to, until
l a~ if uh Lo
cry lil:c> unti
en he
he, he, he, th
tlieri, ~~nd then
hii~~ up. Ind
. . ...
d he would like
~~lay with him an
w ould cr.y, T
u
th you dan't yo
"I wanner be wi
..
. ... . . . . . . .
lie says "Cause
m . . .. . . . . .. . ."
erstand what I'
und
u ]{now I don't
ught "Well," yo
crying." I Llio
he's
, so I thought
every single: time
r picl~c l~iii~ up
w anne
d like, like
r a few momentU an
cl let iL go Lo
I, I'

RGIE Ai~TN GAROFANO
INTERVIEW WITH MA
P3-01-118-065

Page 99

ab him
I always could gr
ttle bit, before
cry a li
geting a
inking that he's
me, you know, th
all the ti
I didn't wanna,
w, more aware, so
little older no
my m~md. But, I
thinking that in
you know, I was
go "Oh, come here
m up finally, T'd
would go pick hi
him, then he'd,
him up and cuddle
honey" or pick
tes and he'd calm
one or two minu
give him about
my arms and just
st pick him up in
down. Like 1 ju
he, and he, then
room and then, and
walk around the

MASSON:

y.
know, rather rapidl
he'd calm, you
day or two where
was like this a
Y just mean he
you'd--

GAROFANO:
MASSON:

GAROFANO:

MASSON:

No.
me from work,
from work, you're ho
--he'd comma homE,
to sleep all
reason he won't ga
and for whatever
irritable
and he's agitated or
y, and he's crying
da
. .. ... . .
kept you awake .. ...
l day, and the baby
al
s, Eric,
was like that. He wa
ere was a day that
Th
nds, and
of the day doing erra
id was gone most
Dav
day, a
dn't sleep good that
s crying and I di
he wa
he was
. . . . . .. ... . . and I thought
day. . . . . . . .
full
active
more
being
and
up
growing
just

. . . . . . .. . . .

... . . butand I'm not . . . . . . .

Page 100

FANO
INTERVIEW WITH MARGIE ANN GARO
P 3-01-118-065

GAROFANO:

Yeah.

MASSON:
GAROFANO:

It was, it was,
that

this

past

there was a couple of days like
but

why

know

you

because

thought,

so,

or

week

I

know,

just

I

I,

he,

how

uh

I

up in bed and then set
thought that, cause if I sat
him

in

my

lap

and

.... . . . . . .. . . ....

then

he's

something

all

then

he

like

bright,
stopped,

and

this time his toys
he's like u-u-u-u- .. ...... ...
y. As soon as I did
and looking around and he's happ
I kept him in bed
that, that was ah-h-h, you know,
r ....... . ...
like a .. . .. . . . .. . . . . . . You know olde
can't

do

that.

Laying

in

bed,

you

know,

mommy

thing.
MASSON:

Right.

GAROFANO:

level
Now we're transen, transcending to the next
~'1/ .'S

~

where

he

gotta

have

more

activity

time.

And

I

a playpen
know, it's coming you know. I have uh um
in the
my doctor said, I said "Should I put him
an hour
playpen now for an hour in the morning and
in the afternoon." Haven't

quite done

cause he has . .... ... ... . ... . . . . . ...

that

yet,

I didn't

. . . .. knew he'd just be
want any. . . . . . .. . . . . . . . .. . .
all emotional he likes being with me, so, I just

~ _ `. 4

Hospital
Riverside Community
4445 Magnolia Ave
Riverside, CA 92501
400
PHONE #: [phone]
909-788-3194
FAX #:

.,
NAME: PATKINS,ERIC
PHYS: Sonne,Alan C
AGE: 6M 3D
DOB: 10/25/2000
: A.D.ED
ACCT: A.D0203105879 LOC
TUS:
EXAM DATE: 04/28/2001 STA
RADIOLOGY NO:
UNIT NO: AD01105349

SEX: M
~
~

BRAIN WO CONTRAST
EXAMS: 000224422 CT
HOUT CONTRAST:
CT OF THE BRAIN WIT
HISTORY:

Trauma.

PROCEDURE:
d Advantage CT
e make with the GE HiSpee
iguous 5 mm slices wer
Cont

scanner.
FINDINGS:

i ~ 5~~~

rEu,

ago

al lobes
right temporal and left pariet
,~~..~5+
are fractures of the
n of blood
lectio
There
depression. A 3 mm thick col
poral region'"'`
without significant
skull in the right frontotem
the inner table of the
ntotemporal
along
al hematoma. A small left fro of the
consistent with an epidur
le
is
inner tab
lection is noted along the
low density fluid col
~°E "~°
skull.
with a
ion in the left frontal lobe
a 2 x 1 cm low density les
n,
ent portio
There is
sity material along its depend
tiny amount of high den
defined.
No midline shift is
consistent with blood.
torium and
S~'. N
material is noted along the ten
Some increased density
d density are noted in
lar zones of diminishe
posterior falx. Irregu
the occipital
es bilaterally, particularly
the cerebral hemispher
ebellum.
sity is also noted in the cer
lobes. Diminished den
MPRESSION:
I
.
1

DURAL HE2iATOMA.
SMALL RIGHT TEMPORAL EPI

.
2

SKULL FRACTURES.
BILATERAL NONDEPRESSED

.
3

X AND TENTORIUM.
ED ALONG THE POSTERIOR FAL
SUBARACHNOID BLOOD NOT

4.

AL SUBDURAL HYGROMA.
SMALL LEFT FRONTOTEMPOR

L LOBE,
C DENSITY IN THE LEFT FRONTA
A 2 X 1 CM PORENCEPHALI
.- s ~ ~ .,~
. c ~ ~~ ,
UNT OF BLOOD
CONTAINING A SMALL AMO
(CONTINUED)
PCI
Signed Report Printed From
PAGE 1
.
5

_.,

~~

y Hospital
Riverside Communit
e
4445 Magnolia Av
e, CA 92501
< - ~ Riversid
3400
PHONE #: [phone]-3194
FAX #:

NAME: PATKINS,ERIC`
PHYS: Sonne,Alan C
SEX: M
AGE: 6M 3D
DOB: 10/25/2000
LOC: AD.ED
ACCT: AD0203105879
2001 STATUS: DEP ER
EXAM DATE: 04/28/
RADIOLOGY N0:
UNIT N0; AD01105349

ST
CT BRAIN WO CONTRA
EXAMS: 000224422
<Continued>
AND
NSITY IN THE CEREBRAI~
NES OF DIMINISHED DE
IRREGULAR ZO
.
NSISTENT WITH EDE'1~iA.
6
HERES BILATERALLY CO
CEREBELLAR HEMISP
MPLETELY EFFACED
TH SMALL BUT NOT CO
NO MIDLINE SHIFT WI
NS.
.
7
FISSURES AND CISTER
VENTRICLES, SULCI,
ABNORMALITIES
TER OF THESE VARIOUS
TRAUMA
LTIPLICITY AND CHARAC
HE MU
T
PEATED EPISODES OF HEAD
E POSSIBILITY OF RE
TH
NDED.
CERTAINLY RAISES
RRELATION IS RECO1~1E
PERIOD. CLINICAL CO
TIME
OVER A PROLONGED

~~

kover M.D. **
gned by Raymond P. Sa
**
** Electronically Si
on 04~28~2001 at 1155
ver, M.D.
**
by: Raymond P. Sako
Reported and Signed

C. Sonne, M.D.
GENCY PHYS GRP; Alan
CC: CALIFORNIA EMER
Enomoto, CRT
TECHNOLOGIST: Mark
IME: 04/28/2001 (1109)
TRANSCRIBED DATE/T
HIMMK
TRANSCRIPTIONIST: AD
BATCH NO: 5495
05/01/2001 (1020)
TED DATE/TIME:
- ~ PRIN
From PCI
Signed Report Printed
PAGE 2

-

~ ~~~

~ ~
~~
Riverside Community Hospital
4445 Magnolia Ave
Riverside, CA 92501

i
PHONE #: [phone]
FAX #: [phone]

NAME: PATKINS,ERIC
PHYS: CALIFORNIA EMERGENCY PHYS GRP
AGE: 6M 3D- SEX: M
DOB: 10/25/2000
ACCT: A.D0203105879 LOC: AD.ED
EXAM DATE: 04/28/2001 STATUS: DEP ER
RADIOLOGY NO:
UNIT NO: AD01105349

EXAMS: 000224430 ABDOMEN 1V / KUB
PORTABLE KUB:

The bowel gas pattern is not remarkable.
density is defined.

No suspicious soft tissue

Incidentally noted are zones of periosteal reaction of the femoral
shafts bilaterally consistent with prior trauma.
MPRESSION:
I
SUBACUTE TO CHRONIC PERIOSTEAL REACTIVE CHANGES OF BOTH FEMURS
PROBABLY RELATED TO PRIOR TRAUMA.

** Electronically Signed by Raymond P. Sakover M.D. **
**

on 04/28/2001 at 1324

**

Reported and Signed by: Raymond P. Sakover, M.D.

CC: CALIFORNIA EMERGENCY PHYS GRP
TECHNOLOGIST: Alecia Curtis, CRT
TRANSCRIBED DATE/TIME: 04/28/2001 (1207)
TRANSCRIPTIONIST: ADHIMDMD
BATCH NO: 5495
~ PRINTED DATE/TIME: 05/01/2001 (1020)
PAGE 1

Signed Report Printed From PCI

,~

~I

.,
~

pital
Riverside Cozyunity Hos
4445 Magnolia Ave
Riverside, CA 92501
PHONE #: [phone]
FAX #: [phone]

~.,

,~

NAME: PATKINS,ERIC
PHYS: Sonne,Alan C
AGE: 6M 3D - SEX: M
DOB: 10/25/2000
ACCT: AD0203105879 LOC: AD.ED
: DEP ER
EXAM DATE: 04/28/2001 STATUS
RA.D IOLOGY NO
UNIT NO: AD01105349

AL SPINE 1V LATERAT,
EXAMS: 000224424 CERVIC
NE, LATERAL PROJECTION:
PORTABLE CERVICAL SPI
nor bone
n of fracture, displacement
ere is no definitive sig
Th
soft tissues of
d adenoid hypertrophy. The
struction. There is mil
de
suggestion of
demonstrated, but there is a
neck are not optimally
the
prevertebral swelling.
MPRESSION:
I
SPINE SERIES IS
ALITY. A COMPLETE CERVICAL
NO DEMONSTRABLE ABNORM
TO COOPERATE.
IENT IS BETTER ABLE
RECOI~IENDED WHEN THE PAT
Raymond P. Sakover M.D. **
** Electronically Signed by
**
on 04/28/2001 at 1324
**
d P. Sakover, M.D.
mon
Reported and Signed by: Ray

S GRP; Alan C. Sonne, M.D.
CC: CALIFORNIA EMERGENCY PHY
, CRT
TECHNOLOGIST: Alecia Curtis
DATE/TIME: 04/28/2001 (1205)
TRANSCRIBED
MD
TFZANSCRIPTIONIST: ADHIMD
BATCH NO: 5495
: 05/01/2001 (1020)
.PRINTED DATE/TIME
.
l
Signed Report Printed From PCI
PAGE 1

~#

I.

~,

Riverside Community Hospital
4445 Magnolia Ave
Riverside, CA 92501
PHONE #: [phone]
FAX #: -909-788-3194

NAME: PATKINS,ERIC
PHYS: Sonne,Alan C
AGE: 6M 3D - SEX: M
DOB: 10/25/2000
ACCT: AD0203105879 LOC: AD.ED
EXAM DATE: 04/28/2001 STATUS: DEP ER
RADIOLOGY NO:
UNIT NO: AD01105349

EXAMS: 000224423 CHEST 1 VIEW

0

PORTABLE CHEST, SUPINE:

the appearance of the heart and
A frontal view of the chest reveals
ts for this portable technique.
mediastinum to be within normal limi
ular markings are essentially
The lungs are clear. Pulmonary vasc
of bone structures for
normal. There is no major abnormality
image is not a detailed examination
the patient's age, although this
of thoracic skeletal architecture.
MPRESSION:
I
Y IS DETECTED ON PORTABLE CHEST
NO ACUTE CARDIOPULMONARY PATHOLOG
RADIOGRAPHY.

ver M.D. **
** Electronically Signed by Raymond P. Sako
**
on 04/28/2001 at 1324
**
P. Sakover, M.D.
Reported and Signed by: Raymond

Sonne, M.D.
CC: CALIFORNIA EMERGENCY PHYS GRP; Alan C.
TECHIVOLOGIST: Alecia Curtis, CRT
TRANSCRIBED DATE/TIME: 04/28/2001 (1203)
TRI~NSCRIPTIONIST: ADHIMDMD
BATCH NO: 5495
-., PRINTED DATE/TIME: 05/01/2001 (1021)
PAGE 1

Signed Report Printed From PCI

unity Hospital
Riverside Comm e
Av
4445 Magnolia
92501
..
Riverside, CA
9-788-3400
PHONE' #: 90
8-3194
FAX #: 909-78

ERIC
NAME: PATKINS,
nne,Alan C
SEX: M
PHYS: So
AGE: 6M 3D
DOB: 10/25/2000
.ED
5879 LOC: AD
ACCT: AD020310
US: DEP ER
/28/2001 STAT
EXAM DATE; 04
RADIOLOGY NO:
1Q5349
UNIT NO: ADOl

IEW
436 CHEST 1 ~I
EXAMS: 000224
/28/2001:
VIEW - 04
CHEST, SINGLE
of fluid.
sulci are free
e costophrenic
iothymic
The card
clear. Th
The lungs are
ly distributed.
els are normal
ss
pulmonary ve
al.
houette is norm
sil
MP
I RESSION:

.

RADIOGRAPH. _
NORM~iL CHEST
ee M.D. **
.Donald R. Mass
**
ally Signed by-_
** Electronic
at 1046
on 05/06/2001
ee, M.D.
R. Mass
**
gned by: Donald
Reported and Si
~,.

__

e, M.D.
P; Alan C. Sonn
ERGENCY PHYS GR
EM
CC: CALIFORNIA
T
ecia Curtis, CR
TECHNOLOGIST: Al IME: 05/04/2001 (1132)
/T
__~_.____--- -- ____~
TRANSCRIBED DATE ~A:DHIMMK_~-___.___~___.~.__~...__._
---_TRANSCRIPTIONIST:BATCH NO: 5662
0}
05/06/2001 (113
IME:
PRINTED DATE/T
CHART COPY
— PAGE 1

The

•
,~, . ~
~~

PATIENT:
DOB:

ITr1L
TY ~HILDREN'S ~[10SP
L0~lIA ~I~VDA UNIVERSI
PATKINS, Eric
r r23a nnd~norr sr~«t
~
ia 923.14
Loma Lin~lo, Californ
10-25-2000
909
( )8?S-K1DS{54.?7/

MR:
:
DATE (7F CONSULTATION
REFERRING PHYSICIAN:
CONSULTING PHYSICIAN:
:
PATIENT IDENTiFiCATIQN

75543 25
4-28-01
Dr._Slaughter
Rebeca Piantini, MD

ity
from Riverside Commun
was transfeRed to LLUCH
who
s:
This is a six month old male
altered level of consciousnes
h closed head injury and
Hospital on 4-28-2001 wit
S:

ES
HISTORY OF PRESENT ILLN

while
under the care of his father
chart. The patient was
the
erring hospital is that he
The history is obtained from
tory to paramedics and ref
's his
and
mother was at work. The father patien# and tripped and the pafient fell from his arms
h the
ed to
irs are report
was walking uQ the stairs wit
t 5:30 to 6:00 AM. The sta
io call 911.
stairs. This happened abou
rolled down the
rk, said that he needed
AM.
called the mother at wo
be carpeted. Father
the home at about 6:46
about 6:38 AM and arrived at
medics reported that the
Paramedics received a cal!
y Hospital at 7:15 AM. Para
unit
erside
They arrived at Riverside Comm
s agitated upon arrival at Riv
ing when they arrived but wa
patient was alert and cry
turing with eyes deviated
ir exam, the patient was pos ient was intubated and
the
Community Hospital. On
tching. The pat
pital
ly and the right arm was twi
ownward bilateral
d
CT done at Community Hos
antin and Valium. Head
eric subdural hematoma
stared on phenobarbital, Dil
dural hematoma, interhemisph
d sub
parietal skull
showed new right epidural an
e, and there were bilateral
her
c subdural versus hyperacut
and evidence of chroni
erred to LLUCH for a hig
. The patient was then transf
fractures, per preliminary report
level of care.
PAST MEDICAL. HISTORY:

unds 10
Pa. Birth weight was 10 po
vaginally to a 41 year old G7
Patient was born full term
e was meconium, however,
re used on delivery. Ther
s we
d sitting.
ounces. Suction and forcep
lopment: Patient has starte been
nt home with mother. Deve
There have
patient did weft and we
re no medications at home.
the bed a
known medications. There we
There are no
ions. Patient has fallen off
by
ergies, no il9ness or hospitalizat
n v reported drug all
the incidents were reported
by a primary physician after
unizations. family
couple of times and was seen
eived two and four month imm ther reported that,
has rec
mom. immunizations: Patient
icant disease. Mo
d
history of seizures or signif
y: There is no family
histor
d asked father what ha
small bruise~on the jawline an
on one occasion, she noted a
t had Palle' m~the bed.
happened and he said the patien
,
~
t

TE ~y%~1~'r~2~04
PRIIiTED BY: padikuon DA

ve"tutlnftitution

Aprii 28, 2001
RE: PATKINS, Eric
MR: 155 43 25

Page 2

PSYCHOSOCIAL HISTORY:
nity Hospital. Father is
Mother is 4i years old, is an RN and works at San Antonio Commu
not married.
36 years old and is a painter.. The parents live together and are
PHYSICAL EXAMINATION:
intercranial pressure
Temperature 96, pulse 163, respirations 20, blood pressure 123157,
percentile) and head
60, estimated weight 7 kg (25 percentile), length 70.5 cm (75~'
l, the patient is intubated,
circumference 45 cm (around the 80~' percentile). In genera
area. There is an
sedated. There is an intracran~al pressure monitor in the right frontal
leads on the scalp.
external ventricular drain catheter in the left parietal area and EEG
pressure monitor bolt on
Head: Anterior fontanel is~bulging and tense with an intracranial
with some Betadine
the right side and EDV on the left. There is dried blood on the scalp
. Head appears
aver the area where the monitor bolt and drains were placed
are bilateral extensive
macrocephalic. Eyes: Pupils are fixed and about 3 mm. There
There is no
retinal hemorrhages. Sclera is white. Ears: Tympanic membranes are clear.
the Hares.
hemotympanum and no bruises. Nose: There are small abrasions around
d. There is an
There is an NG tube in place. Mouth: The lips are dry and cracke
There is no
endotracheal tube in place. Upper and lower frenulums are intact. Neck:
with symmetric
crepitus or bruising. Lungs are clear to auscultation and ventilator sounds
no murmurs.
air movement. Heart is regular rhythm. He is tachycardiac. There are
disten#ion, no
Abdomen is soft. Bowel sounds are present. There is no abdominal
ties: There
hepatosplenomegaly aid no masses. There is no abdominal bruising. Extremi
ary to
are femoral lines bilaterally for 1V access. There is a bruise on the left wrist second
is circumcised Tanner
IV access attempt. Pulses are 2+ and equal. Genitalia: Patient
is a
stage 1 with testes descended bilaterally. Anus is within normal limits. Skin: There
is a small
small amount of hemorrhage on the nails of the first toes bilaterally. There
appreciated. The
bn.~ise on the left wrist from the {V attempt. There are no o#her bruises
nt of the
skin is not hyperelastic. There is a slightly red area on the right lower quadra
gical
abdomen where tape has been placed for dressing of the right femoral line. Neurolo
exam: Patient is sedated.
DIAGNOSTIC DATA:
platelet
WBC 19,000, hemoglobin 10.4, hematocrit 29.1, neutrophils 80, lymphocytes 15,
4, creatinine 0.3,
count 433,000, sodium 144, potassium 3.8, chloride 116, CO2 18, BUN
glucose 12i, alkaline phosphatase 398, AST 74, AL7 34. UA noted specific gravity 1.025,
no leukocytes, trace protein, 500 glucose and small ketones.

PRII~~TED BY: padikuon DATE 09/15/2004

Page 3
April 28, 20fl9
ic
RE: PATKlNS, Er
M R: 155 43 25
stamy
approach ventriculo
atus post left frontal
LLUGH was st
morrhage along the
28: Head~CT done at n of the ventricles. There is air and he
A pril
e was
mpressio
frontal lobe. Ther
placement with deco traparenchyrrzal hemorrhage in the left d/or infarction, bilateral
w in
ema an
shunt tract and ne
extensive cerebral ed rebellum.
Intraventricuiar
nsity consistent with
stent low de
left and ce
is a
persi
than
hemorrhage. There
res, right greater
cerebellar hemisphe ural hemorrhage, and right parafalcine
bd
hemorrhage, right su herniation.
rial
downward transtento
al bane
region of the pariet
the posterior superior r.
ey showed fracture of acture of the right femu
April 34: Sone surv
fr
on indicating probable
and periosteal reacti
ood flow
normal cerebral bl
BF study noted ab
an vascular flawIC
April 30: Brain sc
nt cerebral blood flow.
consistent with abse
ES:

RI
SUMMARY OF INJU

ant cerebral edema.

signific
ural hematoma with
ed head injuries, subd
Clos
ousness.
Altered level of consci
ly.
Skull fractures bilateral
rrhages.
Bi~akeral retinal hemo

1.
.
2
.
3
.
4

IMPRESSION:
ma th
with abusive head trau
is asix-month-old male
This
S:
RECOMNIENDA710N
1.
.
2
.
3

and photographs to
Ophthalmology consult ed.
volv
Law Enforcement is in tion.
na
Mother wishes organ do

r
~
V

~
Gv

Rebeca Piantini, MD
atrics
pivision of Forensic Pedi
RP/alel5-'I4

on DATE ~9/1.5/2C~04
PRIt•ITEI? BY: padiku

at resulted in death.

rrhages.

document retinal hemo

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015543250000

PATKIPIS, ERIC

#431795

7:04/30/2001

D:04/29/2001

07950

44/29/2()01

DATE OF ADMISSION:

onth-old boy who
S: This is a 6-m
d over a dog. He
THE PRESENT ILLNES
HISTORY OF
his father trippe
the stairs after
n
rside after
reportedly fell dow
intubated at Rive
Riverside. He was
s
om
g. The patient wa
was transferred fr
decorticate posturin
. A
ng decerebrate and
arbital and Dilantin
showi
ven phenob
ry and the
seizures and was gi
ju
beginning to have
an intracranial in
showed evidence of
uation.
scan was done that
CT
her eval
erred here for furt
patient was transf
or
us focal weakness
: rro known previo
. RESPIRATORY:
EMS: NEUROLOGICAL
ia
REVIE~J OF SYST
ension or arrhythm
SCULAR: Na hypert
inder of
seizures. CARDIOVA
diarrhea. The rema
GI: No vomiting or
a or cough_
No dyspne
r as is known.
s is negative as fa
the review of system
Y:
PAST MEDICAL HISTOR

Negative.

Y:
PAST SURGICAL HISTOR
None.

MEDICATIONS:
ALLERGIES:

Negative.

NONE KI~IOWN.

SOCIAL HISTORY:

t.
Unknown at this poin

:
PHYSICAL EXI~MTNATION
:
VITAL SIGr1S
HEENT:

NECK:
CHEST:
HEART:
EXTREP~ITIES:

ABDOI"IEN:
PELVIS:
EXTREMITIES:

74,
, blood pressure 120/
Temperature is 98.4
weight is 7.2 kg.
heart rate 100 and
osed.
e fontanelles are cl
Normocephalic. Th
reactive to
ual, round and
E yes, pupils are eq
ral
are intact. No scle
light. The EOr~is
mbranes are - clear
mpanic me
icterus. Ears, the ty
hemotympanum.
rIo CSF otorrhPa. No
bilaterally.
ons.
lacerati
Face, no step offs or
or thyromegaly_
DIo masses
lly.
r and equal bilatera
Heart sounds are clea
y.
rIo chest wall deformit
murmur. Normal
rate and rhythm. No
Regular
PMI.
lly.
4 extremities bilatera
The patient moves all
ation in all 4
Apparently normal sens
extremities.
No evidence of
Soft. No distension.
wel sounds.
tenderness. Intact bo
Stable.
y.
edema and no deformit
Lo~rer extremities, no

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HISTORY and P}II'SICAI~

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09/ ~
ED E3Y: padikuon DATE

~~
_

deformity.
ema and no
ies, no ed
emit
Upper extr
r blood.
nderness o
rdo te
.
e or rashes
P10 petechia
RECTAL:
14.5
cell count
SKIN:
or
ite blood
, wh
of fracture
in is 10.1
e hemoglob
no evidence
th no
normal wi
DATA: Th
-ray showed
x-ray was
DIAGNOSTIC
al spine x
CT scan of
The chest
The cervic
ading.
tion. The
thousand.
iminary re
ary evalua
etal
in
n on prel
a left pari
s on prelim
dislocatio
b fracture
toma and
matoma and
he
ax or ri
bdural hema
t epidural
pneumothor
old left su
small righ
an
owed a
idence of
the head sh
ere was ev
acture. Th
skull fr
fracture.
al skull
left pariet
ntal trauma
non accide
PLADI:
ern for a
actures.
nc
ANTS
l skull fr
y with a co
ASSESSMENT
. Bilatera
nth-old bo
es
6-mo
ma. Left
nial injuri
T his is a
t
ural hemato
w intracra
injury, bu
old and ne
ld left subd
O
with
_
aabdominal
e to
al hematoma
of an intr
ur
evidence
unstable du
Right epid
ent became
There is na
osurgery
ncephaly.
an the pati
pore
CT sc
for a Neur
nal/pelvis
abdominal
Will plan
re.
nit. Abdomi
during the
nial pressu
ive Care U
nd
intracra
the Intens
ld Abuse a
increased
mission to
c
th the Chi
e Pediatri
tion and ad
Consult wi
th th
ble.
consulta
al x-ray wi
ically sta
clin
of the spin
CT if he is
rmal review
t Team. Fo
Neglec
radiologist.

IN, T~1. D.
GERALD GOLL
PHYSICIAI~1
ATTErIDING

r/72

-22-2001
, M.D. On 05
Pri:01
rald Gollin
ed by Ge
A uthenticat

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#932083

7:04/30/2001
04/29/20Q1

ERY:
DRTE OF SURG
RGEON:
OPERATING SU
ANT:
FIRST ASSIST
SISTANT:
TEACHIrdG AS
S:
VE DIAGNOSI
POSTOPERATI
RFOF2MED:
OPERATION PE

INS, M.D.
JOHN J. COLL
CAPANO, M.D.
MANI7EL R. SA
FSHUTZ, M.D.
JASOTd I. LI
Intracranial

.
hypertension

n.
lumbar drai
Placement of
Local.

ANESTHESIA:
re of 27.
ening pressu
identifying
FINDINGS: Op
consent and
ing informed
tain
the right
IL: After ob
s placed in
URE. IN DETA
e patient wa
s, th
PROCED
aped in the
Eric Patkin
epped and dr
patient was
sterilely pr
the
on and
ar space.
mbent positi
e L2-L3 lumb
lateral recu
shion over th
ical fa
into
s tandard surg
ntly placed
edle was ge
ed through
marl~s, a ne
plac
land
tFieter was
fying proper
e wire was
tified. 7a ca
After identi
and the guid
CSF was iden
ide wire,
end clear
med to
of ~ gu
position,
F was confir
assistance
awn. C1Par CS
le with the
was found,
withdr
the need
e drain, it
needle was
e tube to th
n after the
, it was
ting th
withdraw
At this time
After connec
was patent.
e to flow.
er
continu
eter no long
at the cath
n.
however, th
ocedure agai
the pr
n
d to per_fvrm
s once agai
decide
a needle wa
er once
thdrawn, and
et
tube ~,aas wi
and the cath
e catheter
identified,
ting to
T herefore, th
tion, CSF w<~s
after connec
time,
me posi
into the sa
was
edle. At this
placed
ugh the ne
e, the drain
readed thro
ted. Therefor
again was th
to be aspira
F was able
the drain, CS
Tegaderms.
sition using
3'?<7 ~-rt2
red into po
secu
v~T ~Q~3
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with CS E'.
was dripping
mbar drain
lu
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ss than 2 cc
OOD LOSS: Le
ESTIMATED BL
S: rdone.
CUM~'LIC~'1'ION

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2 1e

CAP~lNO, h1. D.
NIANIJEL R. SA

INS, M.D.
JOIITd J. COLL
RGEON
OPERATING SU

(H)/r72

05-15-2001
in, t~1.D. Gn
Pri:02
John J. Coll
by
Authenticated

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~1ND CHILD~

OPER:\TI~'E REPORT

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015543250002

PATKINS, ERIC

D:04/29/2001
DATE OF VISIT:

7:04/29/2001

ENIERGErdCY DEPT H&P

00580

#432058

04/28/2001

ld Caucasian male.
This is a 6-month-o
of stairs per the
was dropped on a set
~IPLAINT: The child
CHIEF COP
father.
history of
t presents with a
ILLNESS: The patien
Team from an
T
HISTORY OF PRESEN
ive Unit Transport
the Pediatric Intens
by
from the
being transferred
The patient arrived
for head trauma_
tics apparently on
outside facility
sedated, no paraly
ty, intubated and
referring facili
board.
ase see accompanying
ility available, ple
m the referring fac
e history from.
History fro
s at this time to tak
there are no parent
history as
above.
Negative, except as
REVIEW OF SYSTEMS:

IDENTIFICATIOT]:

Y:
PAST MEDICAL HISTOR
ALLERGIES:

Unknown.

UNKNOTn7N.

Dilantin and
ed Versed, Norcuron,
: The patient receiv
along with
NIEDICATIOrTS GIVETI
Emergency Department
prior to arrival in our
phenobarbital
1 mg of Valium.
d and intubated.
The patient is sedate
NIINATIOr]: GENERAL:
has a firm
PHYSICAL EXA
ation. The patient
ponse to pain on examin
sgow Coma Scale
There is res
to 2 bilaterally. Gla
tanele. Pupils are 3
ular rate and
anterior fon
aterally. HEART: Reg
NT: TMs are clear bil
aterally.
is 8. HEE
ar to auscultation bil
ill.
No murmur. LUf7GS: Cle
rhythm.
h brisk capillary ref
EXTREMITIES: Warm wit
N: Benign_
AHDOI~
as a level B
: The patient arrived
DdCY DEPARTI~rI'T COURSE
EMERGE
e. Neurosurgery was
gery was at the bedsid
vation and Trauma Sur
acti
and was able to obtain
to examine the patient
patient's
led to the bedside and
cal
d for evaluation of the
ended a CT of the hea
an exam and recomm
intracranial injuries.
orrhage on
re of intracranial hem
referring facility we
blood pressure
Reports from the
c monitor as well as
t was placed on cardia
ced and was
CT. The patien
a Foley and an NG pla
metry. The patient had
ns. A CBC,
and pulse oxi
l as spine precautio
zure precautions as wel
well as the
placed with sei
UDS were obtained as
amylase, lipase and a
formed at the
electrolytes,
n and pelvis being per
d CT of the head, abdome
aforementione
omen and pelvis.
uma Surgery for the abd
recommendation of Tra

.,s..nn.
S
F
~
i
S

4
~

~

CAL CF.Iv'TEA
LObi4 LIN'M UNIVERSTfYI~fEDI
.41vD CRILDREN'SHOSPIT.4L

EMERGENCY DEPARTMENT

,.
~,.~a.
`~,
~~

~

~I'~~ 09/ 1 ~4 _ ..
y
' ..1r~ ED F~~~~STG~P~3~rf~~~''~iyY

~~

ries,
re of the inju
e to the natu
ry
rtment and du
ng Neurosurge
Emergency Depa
see accompanyi
P7hile in the
gery, please
point during
ur
e
aced by Neuros
ely 45, at on
a bolt was pl
ease in
were approximat
l pressures
t had an incr
ia
e patien
consult. Init
s, the.
Department, th
in
e Emergency
with Dr. Coll
his stay in th
iopental
at which time
repeat CT, th
essure to 90
route to
ranial pr
intrac
esent and en
urosurgeon pr
working
a ttending ne
e pharmacist
d dose per th
ende
this time,
as the recomm
gram. During
/kg was given
n mannitol 7
8 mg
so give
tient was al
lated.
today. The pa
ing hyperventi
also be
e patient was
th
single-view
ral femurs, a
of the bilate
d fractures
ray
significant ol
episode an xy of reported
Prior to this
stor
not complete
due to the hi
lf, although,
was obtained
-r
x• ays by myse
Review of the
actures.
bilaterally_
no obvious fr
ture, showed
na
diatric
films in their
ely to the Pe
taken immediat
tient was
hydrocephalus.
nd CT, the pa
e to increasing
From the seco
ricu.lostomy du
ent of vent
ICU for placem
SIONS:
CLINICAL IMPRES
head injury.
1. Closed
.
al hemorrhage
2. Intracrani
edema.
3. Cerebral

nsive Care
Pediatric Inte
mitted to the
ad
ts as well as
tient is to be
ing Intensivis
PLAN: The pa
disposition of
of the attend
care
mate care and
Unit under the
~_irgeon. Ulti
laboratory
diatric neuros
ns. Currently
Dr. Collins, Pe
these physicia
le to be
the hands in
CT were not ab
the patient in
men and pelvis
nding and abdo
itical nature.
studies are pe
e patient's cr
time due to th
is
obtained at th

NIADT, M.D.
D. SHELTON CHAP
YSICIAN
ATTENDIr7G PH

/r72

am
3-2001 at 4:34
n, M.D. On 05-0
Pri:07
Shelton Chapma
by D.
Authenticated

o~„u,rv.
~F
f
~

~;
~

~

Y1tiIEDIC.4L CENTER
LObi9 LlNAA UNIYERSIf
IT.9L
AtiD CAILDREN'SHQSP.

NT

E11~fERGE~NCY DEPARTME

r„~,.
~`~

~y

~,

~~

.~
swN ecnn~antno

;,~ ~/
J

Frank Sheridan, M.D.'

Examiner
pivision of Medical
1 75 South Lena Road
Bernardino, CA 92415-0037
San
909) 387-2561
(

Chief Medical Examiner

Nenita Duazo, M.D., Deputy M.E.
Edward Yaeger, M.D., Deputy M.E.
Steven Trenkle, M.D., Deputy M.E.

Brian McCormick
San Bernardino County Coroner
Autopsy Protocol

Coroner's Case Number: 01-3075GM

Autopsy Number: A-230-01

D.O.B. 10/25/00
Age: 6 months,6 days
ns
Eric Patki
Name:
0745 hours, May 1, 2001
Time of Death: Reported
Time of ~cu~topsy: 1000 hours, May 2, 2001
ty
Place of Autopsy: San Bernardino County Coroner's Facili

Sex: Male
Rice: Caucasian
Deputy: Miller

investigator's report, from information
HISTORY OF DEATH: According to the deputy coroner 6 day old resident of Riverside was
,
received rom hospital and SCOPC personnel, this 6 month
a
University Medical Center on April 28, 2001, at 1030 hours, with
admitted to Loma Linda
mother at home in
his father and
diagnosis of traumatic brain injuries. The baby lived with
not married.
Riverside. The parents are
he vas carrying the baby up some ~s 3
On April 2S, 2001, the father stated that at about 0530 hours
d on his head an a carpeted step of
stairs and tripped over a dog. He dropped the baby who lande
his wife who works as a registered
the stairway. The father became concerned and finally called
told the father to call 911. The
nurse at San Antonio Community Hospital in Upland. The wife
ely.
father called 911 at 0638 hours to report the baby was acting strang
on the father's bed crying. The
When paramedics arrived at 0646 hours, they found the baby
no visible trauma. They arrived at
baby seemed aware of his surroundings and there vas
ency room, the babe began having
Riverside Community Hospital at 0715 hours. In the emerg
head revealed cerebral edema, as well
difficulty breathing and was intubated. ACT scan of the
Linda University Medical Center,
as old and ne~~~ injuries. The baby was transferred to Loma
moving his extremities at that time.
anivin~ on April 28, 2001, at 1030 hours. He was still
al Center, which also showed old
Another CT scan was done at Loma Linda University Medic
and new injuries.
An
ves were administered.
An intracranial pressure monitor was placed and sedati
tent
al retinal hemonha~e, consis
o phthalmologist e;camined the baby and found severe bilater
s neurologic status deteriorated ~~~ith persistent cerebral
with traumatic brain injury. The baby'
ent vas on Nlay 1, 2001, at
edema leading to brain death. The second brain death pronouncem
0745 hours.
old father has a history of
Reportedl}~. Ri~~erside police detectives stated that the 36-yearfrom prison with less than 5 years
conviction for a shaken baby death in 1993. He vas released
iend who is the mother of Eric. The father has been
served. He is currently living with a girlfr
lrrested in regards to this incident.
fallen off of the bed t~~~ice. landing on ~9 3, r
T'lie father reportedly told police that Eric had previousl~~
the carpeted floor.

UED

TOPSY CONTIN

,CATKINS AU
'P
~ AGE 2
~
'q-230-01
r

so
the undersigned, al
procedures and I, , examined the baby
n donation
on procedures
ent to multiple orga
has given cons dersigned, attended the organ donati
Family
. I, the un
ved.
gave permission and visualized the organs when remo
ene FY ~o,
they arrived on sc
prior to surgery
' run sheets stated baby vas alert and
ide paramedics
viewed. The Rivers pine on the father's bed. The
vas
al records are re
ing su
father stated there
Medic
found the baby ly s no loss of consciousness. The
d
g upstairs.
at 0646 hours an to the father, there wa
e baby while goin
dad was holding th
. According
crying
rs. The
ing
18 inch fall to stai
e father vas tivalk
an approximately
Hospital states th ght the baby hit the
e Community
baby. He thou
cord from Riversid
ergency room re tripped over a dog and dropped the The father denies any previous
A n em
clear.
hen he
ft leg
down the stairs tiv carpeted. The time frame was un that was posturing, with a stiff le
cry.
by
re
with a high pitch
stairs, which r~ve Physical examination showed a ba
on of both arms, No obvious bruising
.
significant injuries g of the right leg and hyperextensi poorly reactive.
d
the
in
and rhythmic kick ed to the right, they were 5 mm., an radiographs appeared negative to ,
ural
viat
men
and abdo
g fresh epid
The eyes were de
ne and chest, pelvis
rmalilies includin
en. Lateral C-spi s review. ACT scan showed abno d and other chronic changes
vas se
al bloo
physician'
and
emergency room
old chronic subdur ven phenobarbital and Dilantin
The
actures, possible
gi
cal Center.
bilateral skull fr titive injuries. The child was
a University Medi
tive of repe
by to Loma Lind ute and chronic injuries, bilateral
e ba
sugges
made to transfer th
al, ac
arrangements were ed head injury with evidence of epidur
os
abuse.
impression was cl
suspicion of child
000.
skull fractures, and
platelets were 433,
tocrit 29.1. The
10.4, and hema
,000, hemoglobin
white count was 19 ecific gravity of 1.0 to 5.
The
a
ed a sp
A urinalysis show
ve an impression of
unity Hospital ga tures, subarachnoid
Riverside Comm
skull frac
om the CT scan at
grama, a 2
ral non-depressed
dictated report fr
The
al hematama, bilate all left fronto-temporal s~ibdural hy of blood,
oral epidur
►ount
orium, sm
small right temp
ntaining a small air
erior falx and tent
od noted along post lic density in the left frontal lobe co rebellar hemispheres bilaterally,
blo
and ce
ncepha
lci,
cm. x 1 cm. pore
ity in the cerebrai
faced t~entric(es, su
of diminished dens ift with small but not completely ef normalities certainly
irregular zones
ema, no midline sh and character of these vlrious ab
consistent with ed
s. The multiplicity
fissures and cistern of repeated episodes of head trauma.
y
ts
raises the passibilit
in the femoral shaf
periosteai reaction
the legs was
sion of x-rays of
to be normal.
radiologist's impres prior trauma. A chest x-ray was felt
A
e of
lled
bilaterally, suggestiv
that the baby had ro .
am history states
e incidences
transport te
rsity Medical Center states pediatrician saw baby after thes nsport team
he Loma Linda Unive
T
. Mom
36. When tra
«- times in the past
diffuse
r is aged 41, father
o ff of the bed a fe
to date. The mothe e and decorticate posturing with There
portedly up
closed.
decerebrat
Immunizations re
the fontanelle ti~~as
e baby was both
ed, they noted th emergency room examination stated
2 mm. The initial
arriv
pils tivere 3 mm. to
e initial
ities. The pu
hypenefle:cia. Th
described or deform
no external injuries
tivas
d
pH was 7.4.
r sods, a~~ed 1 1 an
father has ttivo othe nt vas under the
, states that the
k and the patie
ted April 28, 2001
cial worker note da wa. The patient's mother was at ~~-or , except bab}~ rolled off of the
R so
falls
in Io
9 years -old that li~~e e mother denied any other accidents or April ?8. 2001. states the urine
Th
ted
n's note da
physician's
}.
care of the father.
A hospital physicia
normal ~~alues A 28. 2001.
TT 23.5 (these are
couple of times.
bed a
3Q hours on April
PT was 14.6 and P
y is negative. Tlie
vas conducted at 22
toxicolog
ct Team
ld Abuse and Negle
consult from the Chi

TOPSY
~pT'KINS AU
3
~~PAGE-0 l
p-230

CONTINUED

The baby was
length of 70.5 cm.
nce of 45 cm, and a pils were fixed. There were small
umfere
shotived a head circ
. The pu
The exam dated, with a bolt in the right frontal area dried cracked lips. The upper and lover
,
se
i ntubated,
s. The mouth showed
tivas closed head injury
noted around the nare and anus appeared normal. Impression
ry.
abrasions
The genitalia
tent with abusive inju
renula were intact. s, and retinal hemorrhages, trauma consis
f
ture
anges. A
bilateral skull frac
ed global ischemic ch
ates a head CT show ove history. Ophthalmic exam
st
ab
dated April 3D, 2001
A physician's note consult done April 30, 2Q01 confirmed the
ology
pediatric neur
nal hemorrhages.
revealed bilateral reti
hocardiogram
EKG and normal ec
01 included a normal mpromise. An ophthalmology
consult on May 1, 20
Pediatric cardiology and function. No evidence of cardiac co ges «~ith right pi•eretinal heme,
with normal anatomy 01 noted severe bilateral retinal hemorrha ia~es. A pediatric neurology
rl
20
exam dated April 30, ght eye, and many white centered llemor bral blo~~~ flow study on May 1,
a of ri
A cere
1, 2001.
th brain death.
optic disk edem
ncement ~~~as on May
30 was consistent wi
examination on April al blood flow. Second brain death pronou
br
had been
2001 showed no cere
rt, the father stated he
cording to the repo ther said he tripped over their
fa
report is reviewed. Ac
The Riverside police th the baby at the time of the injury. Tlie by fell out of his arms and his
esent wi
l, the ba
When he fel
Detectives
the only one pr
and then called 91 1.
e baby up the stairs.
dog while carrying th Tlie father first called the baby's mother and the ~~~ife slept in the master
head struck the stairs. to the residence. The father stated that he The bab}' had been sleeping
drove the father back by had his o~vn room across the hallway. up in the ni~~ht approximately
bedroom while the bathe past fetiv weeks, although would wake d the fati~er got up sometime
throuch the night for e morning of April 28, 2001, the baby an in a blanket and carried him
once a week. On th d 6:00 a.m. The father wzapped the baby the babti•'s diaper needed to be
an
alized
between 5:30 a.m.
used the father
ttom of the stairs, he re
en they got to the bo At that point, the doQ got in the t~~a~ and ca e baby faced E C,•/ ~,
downstairs. Wh
left arm so that th
around to go up.
shot
changed so he turned . The father vas canyine the baby in his
. As he fell, "the baby
to trip on the first step d to catch himself but fell onto the stairs ther said the baby struck the
ie
fa
the father's shoulder, tr the steps", according to the father. The
rike the ti~~ood
arms into
. The babe did not st . The baby
om the bottom
right out of my
of the baby
e fourth or fifth step fr
mber if he tell on top
carpeted portion of th
e father could not reme pickzd him up and took him upstairs. The
~~. Th
banister or meta! railin ately- after the fall. The father
, I ~ti~as
dn~t kt~ol~~ what to do
d immedi
emed shocke
e father stated. "1 di ized one side of the baby's
se
a "shocked cry". Th
al
baby began to cry in by on the bed in the master bedroom. He re The gather said, "I thought
e side.
the ba
O
the P~!
ly favoring on
scared". He put
-1 ~ minutes, he called
d the baby was definite
dy had `'frozen up" an He was unsure Lvhat to do, but after about lU accident and the mother
bo
an
".
he broke his little neck ork. He told the mother that there had been Sl~illcClllc: ut~cr. -M~~ babe
'
her ~~~
to send
ld them
baby's mother at
then c~fled 91 1 and to
The father
told I~im to call 911.
s. ~p ~
is hurting".
d a couple of accident
father said `'He, he ha nth a~~o. He ~:ets to r9
re, the
e 1 mo
by had been hurt befo
When asked if the ba fe11 off of the bed close to 3 ti~•eeks, mayb d the cabinet there. 1 guess
an
he
One tivith me where e nest thin I kno~ti~ he is between tl7e bed '~. Thz gather described the
er
movin4 around and th s before it happened with her, "the m~th ks do~~n «~ith his hands. He
ek
in
previously a couple we ho did not cra~~~l but rolled and "5~1IiiS'~ th
~i~
bab}~ as an acti~~e body t ~~i(1 fall o~~ei~ it~distracted.
bu
can sit up on (lis o~vn
ther bean to
e baby cry in~T. th~~ fa not after Ise
~tihen he cant stop th
ther said no,
bets frustrated
me
aken the baby'. the fa
~~'hen asked if he ever
asked if he had e~~er sh heard ~f that ti~om }~amphfets brought ho
en
stutter his ans~~er. Wh Babe S`'ndrome~~. He has
en
understood "the Shak

UED

CONTIN
,CATKINS AUTOPSY
PAGE 4
A-230-01

~~

~',

d that the father
this point, it was foun
ing from the past". At He had been arrested, charged and
"just know
Pq ~~,
by the mother and fromson, now 7 years oId, in the past.
father spent "about 4
dest
land, California. The r his release, he and
shaken his ol
Up
had
elty. This took place in s released in 1996. Afte
er
convicted of child cru
attempt and wa
on" for this
w 3 years old. The moth
years of my life in pris ck together and had another child who is no l done and cleared" and
"al
ba
the child's mother got ved to Iowa. The father said that this vas
mo
of those two children seling for the incident.
that he is received coun
r 1, 2000,
e is a visit dated Octobe
rician are evaluated. Therd 10 ounces and a birth length of
private pediat
Medical records from a it. The birth weight vas 10 pounds an
, at aged 2vis
it dated January 5, 2001
aged 7 days, I week
thy child. There is a vis s an abrasion noted to nose 2 days E XH 6,
showed a heal
21-1/2 inches. Exam continued to be breastfed. There wa
y abrasion on t~ie~nose.
by
1 /4 months —the ba oth with rough texture. There teas a healing dr
cl
ago, rubbing on terry
s noted the
4 month check-up. It wa
2001, at 4-1/4 months, dnight for feedinc. The mother
dated March 8,
al.
There is another visit to 5:00 a.m., occasionally up at I2 mi
ical examination is norm
m.
baby sleeps 8:00 p. with hands, lifts head in prone position. Phys
describes laughs, plays
falling off
a visit for evaluation of
the pediatrician recorded
viewed from
None of the records re
the bed.
ent October
pected date of confinem
rn October 25, 2000, ex hours and 38 minutes. Only labor
baby was bo
Birth records show the s gravida 1, para 0. Labor lasted 13
ores were 8
er wa
ginal delivery. Apgar sc
1 1, 2000. The moth
s were used. It was a va material suctioned. The weight was
ng. Forcep
complication was bleedi s. There vas 10 cc. of thick, green
nce 14 inches.
minute
inches, head circumfere
at I minute,9 at 5
s); the length was 21.5 e for gestational age, newborn male
830 gram
10 pounds, 10 ounces (4 inches. Diagnosis was term, larg
g off bed.
nce 14.5
indicate a visit for fallin
chest circumfere
1. None of these records
a 1, para
infant. Mom 41, gravid
75GM.
stigative Report #01-30
o refer to Coroner's Inve
Als
01
2100 hours — lY1ay 1, 20
ating room
vas e;camined iii the oper erapeutic
s,(hospital #01554325)
nb th
follotivi
Eric Patkin
The baby, identified as to prepping for the organ donation surgery. 7'he mouth. There is a
d prior
to the
tube sec~ired
by the undersigne
There is an endotracheal ial bolt in the right frontal portion of the
liances are present.
ran
app
rac
left nostril. There is an int toe. There is a drain in the left mid parietal
naso~astric tube in the
the right great
There is also a drain
oximeter on
scalp. There is a pulse ort intravenous lines in both right and left groin. -ip
scalp, and there are mult
in the lower spine.
t tissues
diffuse edema of the sof
the scalp or face. There is d pink. There is no evidence of
trauma on
There is no overt external
c
mmetric, warm an
t and abdomen appear sy e upper and Lower extremities are symmetri
e face. The ches
of th
ed prior
ge. Th
eous hemorrha
not fully examin
injur}~ such as subcutan
of injury. T'he back is
hemorrhage or evidence s are turned show no acute injuries.
without overt swelling,
ination as both shoulder
to surgery, but a brief exam
nal ova((.
erior chest or abdomi
parent injury to the ant ars intact tivithout injury and.
ns reveal no ap
l ntraoperative observatio thin the peritoneal cavity. The liver appe
wi
There is no hemorrhage eas of hemorrhage or injury.
it1 particular, no midline ar

D

TOPSY CONTINUE

.

~r°~;.-1-I{INS AU

~ ~,c''~A230-01
`
~
~~

are no
of this size and age. There
size and shape for an infant
appears of normal
The thymus ions, areas of hemorrhage or injury.
tus
apparent con
recovery
m and the abdominal organ
h both the heart recovery tea
, thymus,
discussions wit
nal walls, the pericardial sac
Intraoperative
injury in the chest or abdomi
they found no
team confirmed
organs.
sels or any intraperitoneal
great arch ves
ished
ll-developed and well-nour
This is the nude body of awe
ntified
INATION:
of 6 months. The body is ide
EXTERNAL EXAM
sistent with the stated age
earing con
embalmed.
young ma e in ant app
e "01-375". The body is not
tag as "Eric Patkins", cas
by a coroner's
Ciothin
oved.

The clothing.has been rem

ention:

erv
Evidence of Medical Int

er in
oral areas. There is a cathet
lines in both right and left fem
the
enous
There is a nasogastric tube in
There are bilateral intrav
acheal tube taped to the mouth.
an
endotr
r in the right frontal area and
the bladder. There is an
racranial pressure bolt monito d incision in the left frontal area.
int
left nostril. There is an
al area. There is a suture
pubis.
l drain in the left mid pariet
intracrania
l notch down to the symphysis
ation incision from the sterna
re are
There is a sutured organ don er back, apparently at the epidural or subdural space. The
low
There is a drain in the mid
j
r
s.
m ultiple EKG monitor pad
Measurements:

e for
(27-1/2 inches) (75`'' percentil
are taken: the length is 70 cm.
e 45.5
The following measurements
e for aQe), head circumferenc
'
ograms (just above 25`x percentil
age), the weight is 7.365 kil
cm., crown rump length 47 cm.
cm., chest circumference 42
Radiographs:

ietal
the skull shows at least one par
ained. A lateral radiograph of
.
M ultiple radiographs are obt
no evidence of bone deformity
r radiographs of the chest show
or
ities show no fractures
ti•acture. Anterior-posterio
long bones of the upper extrem
es
-posterior radiographs of the
Anterior
g bones of the lover extremiti
posterior radiographs of the lon
on the right side.
periosteal injuries. Anterioron that appears more prominent
~ ~
,
ral asymmetric periosteal reacti
show bilate
Examination:

th and lips. There is
as well as the face, eyelids, mou
s diffuse edema of the scalp,
t is centered 6 cm.
The head show
ision in the left frontal scalp tha
ury. There is a 1 cm, sutured inc
the head. There is a
no definite inj
the left of the anterior midline of
d left eyebrow and 2 cm. to
erior midline and 9
above the mi
d. This is 2 cm. left of the ant
situated. There is
top left parietal portion of the hea
drain in the
s appear normally formed and
level of the left eyebrow. The ear
e are white. There
cm. behind the
a of the sclerae. The sclera
of the eyelids and moderate edem
patent. There is
diffuse edema
e is midline. The nares are
or confluent hemorrhages. The nos
er and lotiver Lips.:
are no petechial
nula of the upp
erate edema of the lips. The fre
no intraoral injury. There is mod
teeth.
are intact. There are no erupted

UED

NTIN
CATKINS AUTOPSY CO
PA
' GE 6
A-230-01

phoid
abdomen is somewhat sca is is
without acute injury. ?he
are symmetric
male. The pen
The chest and abdomen ation procedures. The external genitalia are normal
don
oll
f owing the organ
evidence of injury.
circumcised. There is no
d
well formed and muscle
The right upper extremity is bital fossa and the back of
are symmetric.
rrhage in the antecu
The upper extremities
ity. There is minimal hemo ers. The digits of the right hand are intact
t fracture deform
withou
t with therapeutic maneuv
the right hand, consisten
without apparent injury.
ere is
dence of acute injury. Th
ed and muscled without evi the left ~~Tist, consistent with
is well form
The left upper extremity bital fossa and over the radial artery in
d.
antecu
hemorrhage in the
a of the soft tissue of the han
s. There is moderate edem
therapeutic maneuver
and
ity appears well formed
c. The right lower extrem
are symmetri
The lower Extremities deformity.
cture
m uscled without fra
tufts.
mal pigmentation or skin
ury. There is no unusual derer gluteal cleft. ~'~
dence of inj
The back shows no evi midline of the back,9 cm. above the upp
in the
There is a catheter
ION:
INTERNAL EXAMINAT
at the
and sub~aleal hemorrhage
, there is minimal focal scalp pressure bolt were placed. In
reflected
HEAD: When the scalp is s where the intracranial drain and thz
procedure
3.5 cm. x 2 cm. area of red
site of the surgical
skull is an approximately visible contusion in the skin
d parietal
the midline top of the mi the subgalea. There is no associated
scalp
ing into
adjacent to the area of
hemorrhage extend
no periosteal hemorrhage
n of the scalp
d there is
overlying this area, an terior reflection and deep posterior occipital reflectio
j~emorrhage. Extended anareas of injury.
r
does not reveal any furthe
is
al siitlii•es. When the dura
coronal Iambdoid and saoitt e. `Hie fracture is situated at
n of the
Tlie skull shows separatio older fracture of the mid left parietal bon
ll
healing,
the external table of the sku
reflected, there is a
ure and is not well seen from the skull, the left parietal old
ittal sut
a 90-degree angle to the sag been removed. On the inner table of
. in
iosteum has
inv for approximately 5 cm
until all of the per
ed dural attachments extend subdural I~emorrhaQe in the mid
a of fix
fracture is seen as an are rlies the area of old contusion and
re line ove
right temporal bone, although
length. This fractu
te fractures can be seen in the
No defini
eft
! superior parietal lobe.
ity of the sutures.
there is moderate lax
ll,
to the inner table of the sku
cut
d tight adherence of the dura
al edema an
zes from the
Because of marked cerebr
Markedly softened brain oo
undertaken with difficulty. ge is appreciated as the brain and skullcap are
brain extraction is
definite epidural hemorrha
al membrane is
portions of the dura. No
ted from the skull and the dur al space on the
ve been se
and dura ha
removed. After the brain tely 10-15 cc. of lood and ood clot the subdur present in the
roxima
clot
reflected, there is app
ere, ~.~-ith m~ich of the blood it}~. The blood
d right cerebral hemisp
erior midliile convex
inner aspect of the mi
ending up and over the sup
3 cm. area.
erhemispheric fissure but ext inner dural membrane in an approYimatel~~ 6 cm. x e, present
int
to the
ispher
and blood_clot are adherent oid hemorrhage over the entire left cerebral hem left frontal and
the
arachn
erior portions of
There is extensive sub
cerebral
es and on the lateral and inf
over the superior convexiti oid hem~rrha~e is patclz}~ in areas. O~~er the left
both
arachn
clot or organized blood
temporal lobes. This sub
of subdural blood. but no of subdural hemorrhage
y thin layer
hemisphere, there is a ver right side. There is apprazimatel~ ~ cc.
imately 3 cm. x
iri the
comparable to that seen
nt to thz dura in an approx
richt temporal bone, adhere
nn the inferior base of the
~7

CONTINUED
,CATKINS AUTOPSY
PAGE 7
A-230-01

ferior
nimally over the in
bdural hemorrhage mi bellar hemispheres and
of su
e cere
smaller 2-3 cc. portion
4 cm. area. There is a ere is marked edema and softening of th e brain is quite friable and
of th
. Th
this portion
left temporal lobe
thebrain is removed,
branstem so that as le removal of the brain.
upper
ng gent
, firm,
literally falls apart duri
ea of older brownish
ely 3 cnl. x 2 cm. ar etal lobe adjacent to the
imat
pari
ved, there is an approx
After the Jura is remo morrhage over the left midline anterior rane associated with it.
he
memb
a thick, firm
organizing subdural
area is incised, there is
tal suture. When this
sagit
not weighed.
tal bone
The soft friable brain is
e basilar right occipi
ull, there is a visibl be suture, mi way etween
e sk
pped from the base of th
tal lo
After the dura is stri in a_sagittal plane from the inferior occipi d and the external table of the
ecte
ing
ossly
scalp is refl
fracture line extend
is no associated gr
n magnum. When the
sinus.~nci the forame , the fracture line can be seen. There
the
amined
occipital skull is ex in the associated posterior neck muscles.
rrhage
rd. The
identifiable hemo
vel of the cervical co
area is found at the le n of this drain. The spinal
ar
rtio
aced in the lower lumb
The tip of the drain pl in the region of the cord is at the lumbar inse ce of trauma. The only soft
seen
eviden
There is no
only hemorrhage
a posterior approach.
r lumbar drain.
rd is removed through e sites of the surgical placement ofthe lowe
co
th
obe of
tissue hemorrhage is at
hemorrha;e in the gl
There is no external e he~norrha~e in both right
rough the orbital roof.
iv
The e}'es are removed th the extraocular muscles. There is extens
rrhage in
the eyes or hemo
ths.
chnoid
and left optic nerve shea
ffuse patchy subara
mined. There is di When the brain is serially
.
on, the brain is re-exa
After formalin fixati especially over the left cerebral hemisphere e formalin with the central
present,
n of th
e
penetratio
hemorrhage still
change bilaterally. Th
nal plane, there is poor
tioned through the coro g pink and soft. There is diffuse ischemic ex with a golden brown
sec
in
rt
areas of the brain remain left parietal lobe shows thinning of the co en brown coloration on the
a gold
ry of the
degree there is
area of old inju
morrhage. To a lesser
oration of resolving he oral lobe.
col
t temp
d bone
superomedial mid righ
the tle~k. The hyoi
e anterior m~tsc(es of ly placed with the tip
th
morrhage or injury to
uate
NECK: There is no he are intact. The endotracheal tube is adeq is or tracheal mucosa.
ilage
e epiclott
injury to th
and thyroid cart
e the caring. There is no
ing
roximatel~~ 1 cm. abov
app
ritoneal cavities follow
d in both chest and pe
ere is residual free bloo
BODY CAVITIES; Th ures.
ed
the
the organ donation proc
heart ~~~as removed in
l sac is empt~~. The
rdia
SYSTEM: The perica
CARDIOVASCULAR e.
ur
right
organ donation proced
ed and lobated. The
s are normally form t (ling ~vei~hs 49 grams
ng
T: The right and left lu
The lef
RESPIRATORY TRAC xpected weight for length 69-80 grams). e patent. There is no forei;n
ar
s (e
imal air~~~ays
,
lu~1Q ~~-eiahs ~9 gram
-65 grams). The prox
ioning reveals a firm
ted ~veiQht for length 57 ce of injury or blood aspiration. Sect mboli. There .are no..
e:
( ~pec
eviden
romboe
m aterial. There is no parenchyma. There are no masses or th
ted
modzratel~~ «-ell aera ation.
detinite areas of consolid

,~'ATKINS AUTOPS
s PA
' GE 8
~
, p-230-01

Y CONTINUED

ach contains
roughout. The stom ulate matter
ophagus is intact th
rtic
e es
cus. There is no pa
TINAL TRACT: Th
GASTROINTES . of a mixture of thin, green fluid and mue are no focal lesions or ulcerations.
approximately 50 cc mucosa shows nomlal regal folds. Ther nation procedure. The remaining
c
do
or food. The gastri odenum tivere removed in the organ le appendix arises from the cecum.
rkab
d du
rictures or
. The unrema
The pancreas an
rmal. There are no st
es are unremarkable
l and large intestin of the small and large intestines are no
smal
ntents
The intraluminal co
masses.
e.
gan donation procedur
s removed in the or
pancreas wa
PANCREAS: The
absent
bladder are surgically
: The liver and gall
SYSTEM
absent. The
HEPATOBILIARY
renals are surgically
d left kidneys and ad pty. The prostate is firm, light
em
TRACT: The right an
GENITOURINARY adder are unremarkable. The bladder is us tubules.
fero
d bl
own, semini
distal ureters an
show frm, pale tan-br
e left and
rown. Both testes
tan-b
n-brown colloid. Th
mmetric with light ta.
is sy
rkable
STEM: The thyroid
ENDOCRINE SY rgically absent. The pituitary is unrema
e su
ssection of
right adrenals ar
described above. Di
are skull fractures, as eas of acute or chronic injuries
AL SYSTEM: There
no ar
M USCULOSKELETues of the back, buttocks and legs shotiv riosteum. No acute hemorrhabe is
-,
ft tiss
the pe
the posterior so
ected down to
cal hemarrhabe -Both femurs are dissand chest walls are reviewed, there is fo ible fracture.
or hemonhaje.
sterior peritoneal
liver, suygestin~ poss
seen. When the po ior right ninth and tenth ribs behind the
adjacent to the poster
AMINATIOl'~:
MICROSCOPIC EX
alveoli filled with
cal pneumonia with of consolidation.
~LlilgS show fo
areas
ACT: Sections Of
ns
ere are multifoc~l
RESPIRATORY TR
d macrophages. Th
thin bronchi. Sectio
phils wi
utrophils an
ions showing neutro tent Lvith the presence of an
combinations of ne
bronchitis with sect
ence of
ings are consis
Also, there is evid
ammation. These find
days.
ow submucosal infl e Pediatric Intensive Care Unit for fouc
of trachea sh
ival in th
d surv
endotrachea[ tube an
( submucosa[
gus show minima
,
ctions of esopha
T: Se
e! are unremarkable
le sections of bo~v
ESTINAL TRAC
G ASTROINT
rkable. Multip
e stomach is unrema
inflammation. Th
sal eosinophils.
ominence of subm~ico
other than some pr
Sections of bone
are unremarkable.
effect.
ions of diaphra;m
ere is minimal stress
TAL SYSTEM: Sect
MUSCULOSKELE cellularity tivith normal hematopoiesis. Th
rnan•o~v show 60-70%
site with chronic
a healin~7 fracture
l fracture shoti~
ing Left parietal skul
Sections of the heal negative.
are
ib
f rosis. Iron stains
as well as an
acute l~emarrhaae,
right ninth rib show
morrhagic posterior
Sections tI0111 tiie he
acute fracture site.
ow a layer of
~~s,ie
riostea( reaction sh
om areas of~ x-ray pe d trauma.
right femur taken fr
us inflicte
Cross sections of the
consistent tivith previo
ne~~- bone formation
subperiosteal
111ai1Oi1 and focal
1111COSZI intl~l111
l da}•s.
bladder S110~\ SLII~[
ACT: Sections of
der catheter for severa
GENITOURINARY' TR
e presence ot~ a blad
tivitl~ th

consistent
submucosal liemorrhaQe. rkable.
ma
Sections of testes are unre

ATKINS AUTOPS
~pAGE 9
A-230-01

Y CONTINUED

focal
inflammation and
show submucosal eter for several days.
of bladder
bladder cath
TRACT: Sections
ENITOURINARY ge, consistent with the presence of a
G
rrha
submucosal hemo e unremarkable.
l
stes ar
Sections of te
pituitary show foca
zkable. Sections of
d are unrema
: Sections of thyroi
OCRINE SYSTEM
END
use
micronecrosis.
system show diff
of central nervous of cerebellum show
le sections
a. Sections
S SYSTEM: Multip
NTRAL NERVOU pink-stained neurons and cerebral edemhow acute hemorrhage. There are
CE
th
de -s
hypoxic changes wi . Sections of the dura from the left si ns from the s~ibdural hemorrhage of
on
ctio
rrhage
extensive hemo
temortem clots. Ir
en on iron stain. Se
en macrophages se acute hemorrhage within the dural an
hemosideriri-lad mporal lobe show
the right inferior te
ow
stain is negative.
pheric fistula sh
;
of the interhemis stain is negative
Iron
ge from the region
subdural hemorrha of Zahn. It is not adherent to the fair.
Sections of
hage with lines
nantemortem hemorr
d many hemosideri
extensive gliosis an e right parietal lobe
injury show
der left parietal lobe
ctions from th
Sections from the ol Iron stain is markedly positive. Se also sho«~s anextensive cortical
laden macrophages. sly evident left parietal lobe injury s' of the iron stain. Sections of
ge
os
opposite to the gr and many hemosiderin-laden macropha d edema. Sections from the lower
ges.
hage an
, gliosis
hemorrhage
rin-laden macropha
subarachnoid hemorr
ex show superficial to the dura with a few scattered hemoside
frontal cort
morrhage in
nerve
spinal cord show he
d marked perioptic
inal hemorrhage an rves, are negative.
of subret
show multifocal areas
and optic ne
Sections of both eyes on stains of both eyes, including retina
Ir
sheath hemorrhage.

ATKINS AUTOPSY CONTINUED
AGE 10
:<`
; A-230-01
:
DIAGNOSIS

_

', - ,
I. Abusive head trauma.
ted stairs insufficient to
A. History'of fall from father's arms to carpe
explain severity of injuries.
1. Delay in calling for emergency services. of ~, P y
Shaken Infant ~; v v r
.
2 Father has history of previous conviction for
Syndrome, per Riverside police investigation.
B. Right inferior occipital skull fracture, recent.
C. Right subdural hematoma.
s.
D. Bilateral basilar temporal lobe subdural hematoma
subarachnoid hemorrhage.
E. Extensive left cerebral hemisphere
F. Extensive bilateral cerebral edema.
1. Diffuse spreading of cranial sutures.
and histopathologic).
G. Bilateral extensive retinal hemorrhage (clinical
H. Marked bilateral optic nerve sheath hemorrhage. respirator.
on
I. Survival in Intensive Care UniX for several days,
trachea.
1. Mucosal inflammation of
.
2 Bilateral pneumonitis.
rib.
Acute fracture, posterior right
II.
e
III. Inflicted injury, right femur remot
A. Subperiosteal new bone orm ion. i;s4
IV. Blunt force head injury, unexp fined, remote.
A. Superior left parietal bone fracture, remote.
al cerebral contusions, remote.
B. Left superior bilateral m' p
.
.
C Left subdt~ral hematom remo
V. Status post organ donation p ce re including:
A. Heart.
B. Liver.
C. Kidneys.
D. Pancreas.
above orcans.
E. No evidence of traumatic injuries or dysfunctions of
seen at time of
F. No evidence of intrapleural or intraperitoneal injuries
organ donation procedure.

CAUSE OF DEATH: Abusive head trauma, days.
Sara L. Danville, Deputy D.A.
`
VITNESSES PRESENT: Deputy D.A. Hughes, Deputy D.A.
District Attorney's Office), Detective
George Masson, Deputy D.A. Robert A. Spira (Riverside
Tim Ellis, Riverside Police Department.
Autopsy Completed 1500 hours, May 2, 2001

teven Trenkle, M.D.
Pathologist
Date:
ST:pm

~-s-~

Coroner
no County
San~~ Bernardi
ick, Coroner
Brian McCorm

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Page 1 of 1

Frontal bone -

corona) suture
forehead bass
glabella
- supraorbital
forarrien
s phenoid bone
~thmaid bone

n asal bone
sa
~ rietal bony
s upraorbital ~
process
F~tnporat bone
lacrimal bone —
zyg~matic
bone Hasa! concha —
aveolar process--

rr~axilJa
volmer
— nasal spine
ramus
a ngle ofjaw

m ental protruberance

mandible
m ental tuberosity

Page 1 of 1

5 pa
temporal bane; squamu
superior temporal fine

inferior temporal
line
p~rietai bone
squama5al
suture
occipital bone
lambdoid suture external acoustic
meatus
mastoid process condyle
zygomatic process
zygomatit bone —

caranal suture
frontal .bone

.~;
~~.
temporal line
_

Lacrimal

bone
phenoid bone
— nasal spine
-- maxilla
ram ~s
mandible

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2 lesser wing of sphenoid bone
3 greater wing of sphenoid bone
4 Sella turcica
5 occipital bone
6 foramen magnum
7 temporal bone
8 petrcus pardon of temporal Core
?
9 crbriform p13~Q Of E!h(110iG' C0~1
10 frontal sirus

..

11 optic canal
12 foramen rotundum
13 foramen ovate
14 foramen spinasum
15 internal acoustic meatus
16 jugular foramen
17 hypcgfossal carat
i 8 foramen ovate
19 cav?mous groove

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space
cord. The cranial epidural
the ducal mater of the spina]
combing
between the bony and the result
then an artifactual space
[he d. m. realized only as a
periosteum/periosteal layer of
continuous wi
matic processes and is neither
mat
pathologic or trau
ebral epidural space. svN dura mall
or comparable to tl~ie vert
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~:[WELLER, M.D.
THOMAS A.SCD OF PSYCHIATRY &NEUROLOGY

AN
DIPLOMATE: AMERIC

BOAR

UE,SUITE 100
3200 FOURTH AVEN
SAN DIEGO CA 92103
61
( 9)291-2022

es
l records concerning injuri
ortunity to review medica
en my opp
opped by his
Gentlepersons: It has be
s reported to have been dr
a
month six day old boy wa
8/01. The fail was from
to Eric Patkins. This six
peted step at 5:30 AM on 4/2
to a car
t the child
ath
f er David Patkins on
eze and was concerned tha
to
her observed an arm to fre
child was noted at 6:46 AM
height of 18 inches. Fat
her called paramedics and the
e fat
was having
had broken his neck. Th
ide Hospital ER the child
left
ing. At 7:15 AM at Rivers
be lying on a bed cry
showed cerebral edema,a
intubated. A CT ofthe brain
A CT ofthe
trouble breathing and was
was moving his extremities.
. At 10:30 ~1M the child
e child
parietal skull fracture
all subarachnoid bleed. Th
ed epidural bleed and a sm
the brainstem secondary to
brain reported a right sid
the life sustauung areas of
re on
mporal
eventually died from pressu
orted a small left fronto-te
ssure. At autopsy there is rep
femoral shafts
increased intracranial pre
of periosteal reaction in the
ll
oma .There is also a report
subdural hygr
s right inferior occipital sku
. The autopsy diagnosis wa
extensive left
suggesting prior trauma
ral basal temporal subdural,
ral retinal
subdural hematoma,bilate
fracture,right
spreading sutures, and bilate
hemonhage,cerebral edema,
cerebral subarachnoid
cture with
hemorrhages.
inches leading to skull fra
is consistent with a fall of 18
d by Dr. John
The cause ofdeath
hages. This has been studie
th lucid
al edema and retinal hemorr
acute cerebr
His study of 12 children wi
the
pathologist from Minnesota.
Plunkett, a forensic
t fatal brain injury may be
ciousness and death show tha
may cause
intervals followed by uncons
se in intracranial pressure
What
stance fall. Any sudden increa
r,~sujt,ofashort-di
cific mechanism ofinjury.
s is not diagnostic ofany spe
mur fracture
relin~l,hemorrhages and thu
gnoses: 1) An old right fe
a left
sed is the accuracy oftwo dia
~~ds #o be addres
t parietal skull fracture with
formation and 2)a remote lef
t a pattern of
with subpereosteal bone
are correct then they sugges
m or
hygroma. Ifthese diagnoses
fronto-temporal
ogist would be able to confir
Q review by a pediatric radiol
ght ninth rib
injury at different times.
te fracture ofthe posterior ri
clusion. The report ofan acu
dispute this con
tal skull fracture. A forensic
l as does a right inferior occipi
injury from short
supports a backward fal
iliaz with the potential brain
e and
ch as Dr. Plunkett who is fam
pathologist su
ld" left parietal skull fractur
nfirm the reliability ofthe "o
all
f s would be able to co
in injury.
osis that suggests a prior bra
the "old" left pazietal lobe gli

~~ ~1 ~D

M.D.
THOMAS A. SCHWELLER, &NEUROLOGY
PSYCHIATRY

BOARD OF
DIPLOMATE: AMERICAN

TE 100
3200 FOURTH AVENUE, SUI
SAN DIEGO, CA 92103
619
( )291-2022

May 28, 2004

Mr. David Patkins

r n

L~+~
t
'
~Ej% ~iaic r eii~vl"i A~~3F~~ s?~I;io~ ~~u~

P. O. Box 1030
30
Soledad, California 93960-70
Dear Mr. Patkins:

and its
g the details of your trial
ed May 9, 2004 concernin
received your letter dat
t this was a defense that
e. It is my understanding th4
r cas
subject
relationship to my review of you
ence that these often are
en~er. It has been my experi
end against
was made by a public def
e in the process of trying to def
ds and inadequate experienc
to inadequate fun
alleged child abuse.
tations
you, I suggested that consul
ords, in the report provided to
ics and details of
Upon my review of the rec
o is familiar with the mechan
. I am
ticularly with a pathologist wh
be made, par
l nature of this particular injury
express the potential accidenta
d why I was not
head injuries and can
ividual were not consulted an
dual is
this point in time why certain ind
not certain at
e constraints where an indivi
l. Again, ft~is is often due to tim
information and
asked to testify at tria
despite having inadequate
been a
l and is expected to proceed
placed on tria
the defendant. There has
present the point of view of
experts available to
ted by the prosecution and
advocacy system that is consul
significant overwhelming child
information.
often this provides inadequate
experience
go area that has had a similar
tact with a family in the San Die
have been in con
on and experts for individuals
lished a website with informati
individuals
several years ago and has pub
It is of great importance that
wrongly accused of child abuse.
who have been
tact with experienced and
victed of child abuse be in con
of child
who have been wrongly con
t have arisen in the prosecution
who know the controversies tha
capable attorneys
abuse.
.com. His attorney is Tracey
sh. The website is freekenmarsh
The defender is Ken Mar
92025.
ue, Suite 105, Escondido, CA
Emblem, 205 West Fifth Aven

Page 2

Mr. David Patkins
May 28, 2004

e some comfort and
It is my hope that you will receiv
Sincerely,

,^
'
! ~9,,

D.
THOMAS A. SCHWELLER, M.
Board Certified Neurologist
TAS:ds

n

hope from this information.

~'

Print~:d by: Adikuono, Pamela L 09/15/04 22:12

CAT Scan Reports
04-221-11392
Head /wo Contrast

Order#
Exam:

04/29/2001 18:34:51

Exam date/time:

Radiology Report
ORDER: 2111392, EXAM: 2308670, .
CASE: 015543250002
VERIFIED RESULT
NONCONTRAST HEAD CT, April 29, 2001:
2001.
COMPARISON: Noncontract head CT with Apri128,
~~~ith a history of se~•ere NAT and
CLINICAL HISTORY: This is asix-month-old male
elevated intracranial pressure.
3.0 nun slices at 7.0 rrun
PROCEDLIRE: Utilizing the GE NiSpeed CT,'i scaiuier,
or fussa followed by serial 7.0 nun
intervals were obtained through the posteri
cranium to the ~~ertex in
slices at 10.0 mm inter~~als through the remainder of the
contrast material. Soft tissue and bone windows
an EMI plane without injection of
were reviewed on PALS.
CT dated April 28, 2001.
FINDINGS: This study is compared ~,vith the p+e~~iuus head
ulostomy tube ~tihich
There is stable position of a left frontal approach ventric
le. There is
terminates near nudl;ne, coursing through the left lateral ~~entric
halo. Stable position is seen
significant metallic susceptibility artifact from a
of metallic
of a right frontal iiitracranial pressure monitor bolt. A small focus
m as well as a small amount of
artifact is seen in the right foramen magnu
to recent inten~ention.
pneumocephalus in the foramen magnwli which may be related
lo~v density
This is not noted on the previous study. There is severe diffuse
cerebellum with effacement of the fourth ventricle. The
change within the entire
completely
basilar cisterns also are effaced. The lateral ventricles are nearly
g in both occipital
effaced, smaller than on the prior study with hemorrhage layerin
ed at at
horns. There is persistent right to left midline shift, which is estimat
entire right cerebral
least 12 mm. Diffuse areas of low de~isity are seen in tl~e
sly-described
hemisphere and also in the left parieto-occipital lobes. The previou
arietal area is again seen and
focus of hyperdense hemorrhage in the left frontop
hage along the
measures about 13 x 8 mm in dimension. There appears to be hemorr
e due to artifact and severe low
tentorium, however this is difficult to evaluat
s are essentially
density changes within the cerebrum and cerebellum. Other finding
unchanged.
s. Stable position of
IMPRESSION: Severely limited due to metallic streak artifact
l edema and
a left frontal approach ventriculostomy tube. Severe diffuse cerebra
Lbw density
swelling of the cerebellum with upward transtentorial herniation.
heres and cerebellum is compatible with infarction
changes in the cerebral hemisp
body in the foramen
and/or edema. The ventricles appear collapsed. Small foreign

~~ ~ W ~
- ~ :"

~~
,-~~

Loma Linda University Medical Center
Loma Linda University Children's Hospital
Loma Linda University Community Medical Center
1 1234 Anderson Street, Loma Linda, CA 92354
909) 796-7311
(

Name:

PATKINS, ERIC

MRN:
Encounter:

01554325
015543250002

ooe:

ioi2si2000

Physician:
Page:

1of 9

09/15/04 22:12
Printeii by: Adikuono, Pamela L
rts
CAT Scan Repo

Order #
Exam:

Exam date/time:

04-221-17392
Head /wo Contrast

04/29/2001 18:34:51

nt procedure.
haius may be reiated to rece
small amount of pneumocep
magnum with a
e of the left
Essentially stable appearanc
shift since
Please correiate ciinically.
Worsening right to left niidline
parenchymal hemorrhage.
frontoparietal
as previously described.
the prior study. Other findings
O5/O1/2001 O5/O1/2001
JRT/MRC72
MILTON hID
Dictated By : BRONWYN HA
on.
y and Agree bVith Interpretati
I Reviewed Images Personall
PSON 1~1D
Signed By :JOSEPH THOM
lt ****
*'** end of resu
04-221-11044
Order #
Head Iwo Contrast
Exam:

Exam date/time:

04/28/2001 17:13:38

Radiology Report
o~ER:z i i~ oaa, ~.x.~r~t: z~us i i i, .

cASE: o~s5~~zs000~
VERIFIED RESULT
/O1:

CONTRAST-0~4i2S
CT OF THE HEAD ~VITHOliT

increased intracrariial presswe.
H[STOR~': Six-month-old «ith
aria] imaees
nner, multiple contiguous 5 nun
y
: Utilizii~~ the GE HiSpee~ sca
PROCEDURE
e and soft tissue windo~~~s.
ed and ~~iewed on PALS in bon
~~~ere obtain
4/28/Ol.
CT of the head obtained earlier on
COMPARISON: Compared with
sure monitor
frontal approach intracranial pres
FINDINGS: There is now a ritht
tip is near
ch ventriculostomy catheter. The
bolt. There is a left frontal approa
nt tract. There is
air and hemorrhage along the shu
tl~e foramen of Monro. 7'l~ere is
hypodensities
described confluent extensive
redemonstration of the pre~~iously
and temporal
henuspl~ere and the left frontal
tlu-oughout the entire right cerebral
ma and/or
a. This is compatible with ede
lobes as well as the posterior foss
maturation. The
ply marginated suggesting interval
infarction and appears more shar
left frontal
is poor throughout. There is a
gray white matter differentiation
ventricle,
lateral to the Gorta! Born of the left
intraparenehymal hemorrhage just
cine subdural
monst►~ation of tl~r right parafal
this appears new. There is rede
oral subdural
ears stable. Tlie right frontotemp
]~ematoma anteriorly ~~hich app
along the tentorium which
There is increased density
hematoma also appears stable.
in the occipital
is intraventricular hemorrhage with
appears unchanged and there
ller in size and the
The ventricles are sma
horn of the left lateral ventricle.
PATKINS, ERIC
Name:
dical Center
01554325
MRN:
Loma Linda University Me
rsity Children's Hospital
ounter: 015543250002
Enc
Loma Linda Unive
F
~~
nter
10/25!2000
DOB:
y Community Medical Ce
~ Loma Linda Universit
'~
Physician:
a, CA 92354
2of 9
Page:
11234 Anderson Street, Loma Lind
-7311
(909) 796

Printed by: Adikuono, Pamela L 09/15/04 22:12

C AT Scan Reports
04-221-11044
Head /wo Contrast

Order #
Exam:

Exam date/time:

04/28/2001 17:13:38

basal cisterns remain effaced.
IMPRESSION: Status post left frontal approach ventriculostomy placement with
decompression of the ventricles. There is air and hemorrhage along the shunt tract
low
and ne~v intraparenchymal hemorrhage in the left frontal lobe. Persistent
edema and/or infarction, bilateral
density consistent with extensive cerebral
cerebellar hemispheres, right greater than left and cerebellum. Intra~•entricular
hemorrhage, right subdural hemorrhage, and right parafalcine hemorrhage. Downward
04/29/2001
NDW/MRC72
transtentorial herniation.
2001
04/30/
Dictated By :KEVIN KROEGER NtD
I Reviewed Images Personally and Agee With Interpretation.
Siened By : NATHNIEL WYCLIFFE MD
**** end of result ****
04-221-10969
Order #
Head /wo Contrast
Exam:

Exam date/time:

04/28/2001 12:29:50

Radiology Report
ORDER:21 109G9, EXAM: 230806-1, .
CASG: U 155x3250002
VERIFIED RESULT
CT OF THE HEAD WITHOUT CONTRAST-04/28/01:
HISTORY: Six-month-old N~ith head trauma.
COMPARISON: None.
PROCEDURE: Utilizing the GE HiSpeed scanner, 5 mm contiguous axial images of the
head were obtained and viewed on PACS in bone and soft tissue windows.
FINDINGS: There is a left parietal skull fracture. There is a right frontal
approach intracranial pressure monitor bolt near the vertex. The gray white matter
differentiatio~i is diminished throughout which probably represents diffuse cerebral
edema. There are large areas of hypodensity noted throughout the right cerebral
hemisphere including the frontal, parietal, temporal, and occipital lobes. This
confluent low density involves both the gray and white matter. There is also
involvement of the left occipital and parietal lobes as well as the inferior
frontal lobe on the left. There is dift'use hypodensity throughout the cerebellum.
There is intraventricular hemorrhage. There is a focus of hyperdensity in the left
frontal lobe probably within the sulcus. This may represent subarachnoid or

~

`F
`
~

Loma Linda University Medical Center
Loma Linda University Children's Hospital
Loma Linda University Community Medical Center
1 1234 Anderson Street, Loma Linda, CA 92354
[phone]

Name:

PATKINS, ERIC

01554325
MRN:
Encounter: 015543250002
10/25/2000
DOB:
Physician:
3oi 9
Page:

la L 49/15/04 22:12
Printed by: Adikuono, Pame

ports
CAT Scan Re

Order #
Exam:

04-221-10969
Head /wo Contrast

Q4/28/20Q1 12:29:50

Exam dateltime

morrhage along the
small right subdural he
hemorrhage. There is a
sity along the
intraparenchymal
. There is increased den
nvexity measuring 2 mm
chnoid hemorrhage.
right frontal co
al hemorrhage or subara
ich may represent subdur
ich is relatively well
tentorium wh
subdural hemorrhage wh
n the left
a small right parafalcine
There is
e is hemorrhage tivithi
5 mm in width. Ther

suring
ventricles
localized anteriorly mea
The lateral and third
al cisterns are effaced.
Sylvian fissure. The bas
are slightly dilated.
ing both cerebral
/or infarction involv
ensive brain edema and
MRI with diffusion
IMPRESSION: Ext
d the posterior fossa.
right greater than left an
ricular hemoahage,
hemispheres,
r evaluation. Intravent
frontal
uld be helpful for furthe
imaging wo
ymal hemorrhage right
hage, and intraparench
orr
subdural
possible subarachnoid hem
all right parafalcine
dural hemorrhage. Sm
2001 04/30/Z001
Sma11 right frontal sub
lobe.
04/29/
NDW/MRC72
hemorrhage anteriorly.
OEGER MD
Dictated By : KEV1N KR
erpretation.
ally and Agree With Int
I Reviewed Images Person
WYCLIFFE MD
Signed By : NATHNIEL
*•**end ofresuft ****

F
~~ `
~
~

Medical Center
Loma Linda University
Children's Hospital
Loma Linda University
Center
Community Medical
Loma Linda University

ma Linda, CA 92354
11234 Anderson Street, Lo
[phone]

Name:

PATKINS, ERIC

01554325
MRN:
unter: 015543250002
Enco
10/25/2000
DOB:
Physician:
4of 9
Page:

Printed by: Adikuono, Pamela L 09/15/04 22:12

D iagnostic Radiology Reports
04-221-12109
Bone Survey II

Order #:
Exam:

04/30/2001 18:16:09

Exam date/time:

Radiology Report
ORDER: 2112109, EXAM:2309677, .
CASE: O l 5543250002
VERIFIED RESULT
April 30, 2001, BONE SURVEY:
HISTORY: Nonaccidental trauma.
COMPARISON: None.
FINDINGS: This exam consists of a AP and lateral ~~iew of the skull; AP and lateral
~ ie~vs of the chest, abdomen. and pel~~is; sinele AP ~~iew~s of both arms: sinele AP
~~ie~~~s of both hands; single AP ~~ie~~~s of both lees; and sinele AP ~~ie~~ s of both
feet.
There is a fracnire in the posterosuperior region of the parietal bone seen on the
lateral ~~iew. There is periosteal reaction in the inferior region of the right
femoral shaft indicating probable underlying fracture. The remaining osseous
margins arc ~~ell corticated ~~~ithout disruptions.
There is an endotracheal tube with the tip mid~~~ay bet~~ een the thoracic inlet and
the Carina. There is an NG tube ~~ ith the tip coiled in the stomach and then
extending into the third portion of the duodenum. "there is a right femoral central
line ~~~ith the tip extending to the le~~el of the T9 ~•ertebra] body. There is a
shunt extending into the region of the left lateral ~~entricle.
IMPRESSION: Fracture of the posterior superior region of the parietal bone.
Periosteal reaction indicating probable fracture of the right femur. Numerous
lines and tubes as described.
05.01/2001
L~V~',%MRC72
05/02/2001
Dictated By :SHANE BALL MD
I Revien ed Images Personally and Agree W ith Interpretation.
Signed By : LIONEL YOili~rG MD
**** end of result ****
Order #:
04-221-12991
Exam:
Chest 1 V

05/01/2001 16:47:24

Exam date/time:

Radiology Report
~ ~„~~
~
.~~d►~
4

Loma Linda University Medical Center
Loma Linda University Children's Hospital
Loma Linda University Community Medical Center
11234 Anderson Street, Loma Linda, CA 92354
[phone]

Name:

PATKINS, ERIC

MRN:
Encounter:
DOB:
Physician:
Page:

01554325
015543250002
10/25/2000
5of 9

L 09/15/04 22:12
Printed by; Adikuono, Pamela

ology Reports
D iagnostic Radi
04-221-12991
Chest 1V

Order #:
Exam:

05/01/2001 16:47:24

Exam date/time:

310909, .
ORDER: 2112991, EXAM:2
CASE: Ol 5543250002
VERIFIED RESULT
CHEST SINGLE VIEW ON

MAY 1, 2001

HISTORY: Pneumonia.
le view dated
COMPARISON: Chest sing

April 20, 2001.

tal view of the
a single portable supine fron
GS: This exam consists of
FINDIN
above the Carina. There
] tube with the tip 0.5 cm
chest. There is an endotracl~ea
re is a small amount
tip coiled in the stomach. The
is a nasoeastric tube with the
limits. There are
heart size is withir► normal
of contrast in the stomach. The
lower lobe. The sulci
the right upper lobe and left
scattered patchy densities in
thorax.
are sharp. There is no pneumo
eptable position.
and nasogash~ic, tube in acc
SSION: End tracheal tube
IMPRE
lobes.
rieht upper and left log+er
Subse~meiital atelectasis in the
OS/02i2001 05/03/2001
LWY/MRC72
MD
Dictated By :SHANE BALL
n.
and Agree With Interpretatio
1 Revie~+red lmaees Personally
G MD
S:gned icy : LIONEL YOUN
result *'•'**
*'`'* end of

04-221-11023
Chest 1V

girder #:
:~a
i rn:

04/28/2001 15:23:07

Exam date/time

Radiology Report
8147, .
ORDER: 21 11023, EXAM: 230
CASE: 01554320002
VERIFIED RESULT
CHEST SINGLE VIEW 4/28/01
HISTORY: Line placement.
le.
C0~4PARISON: None availab

~

~~ WF
~

al Center
Loma Linda University Medic
rsity Children's Hospital
Loma Linda Unive
mmunity Medical Center
Loma Linda University Co
CA 92354
11234 Anderson Street, Lorna Linda,
1
(909) 7:16-731

Name:
MRN:

Encounter

DOB:
Physician:
Page:

PATKINS, ERIC
01554325
015543250002
10/25/2000
6of 9

ela L 09/15/04 22:12
Printed by: Adikuono, Pam

D iagnostic

ports
Radiology Re

04-221-11023
Chest 1V

Order #:
Exam:

04/28/2001 15:23:07

Exam date/time:

at 1 S20 hours. The
the chest was obtained
itle
An AP supine film of
umably related to sup
FINDINGS:
what prominent pres
ic silhouette is some
clear. There is an
cardiotllym
l expanded and
t. The lungs are wel
a nasogastric tube
positioning of the patien
e the carir~a. There is
tip 8 nun abov
the
h the gastric outlet
endotracheal tube with
bably extends tfuoug
stomach and then pro
on the right,
which is coiled in the
ting in the abdomen
There is a line projec
le~~el of T9-10. A
into the duodenum.
va with the tip at tine
the inferior vena ca
presumably within
in ttie transverse colon.
fecal material is noted
large amount of gas and
e present as
st with tubes and a lin
normal study of the che
ly
2001
IMPRESSION: Essential
03/29/2001 OS/U1/
~IBK/MRC72
described.
ELLIN MD
Dictated By: INGRID KJ
KJELLIN MD
Signed By : INGRID
****
**** end of result
04-221-12755

Order #:
Exam:

Exam date/time

05/01/2001 11:51:59

Femur, Left

Radiology Report
:2310~-13, .
ORDER: 2112755, EXAM

case: o~s~=~;zs000z
VERIFIED RESULT
LEFT FEI~tUR:
HISTORY: NAT.

osseous and soft
r demonstrates normal
gle view of the left femu
FINDINGS: Sin
iosteal reaction.
cortical irregularity or per
tissue structures. There is no
t femur without fracture.
IMPRESSION: Normal lef
1
OS/10/2001 05/10/200
LWY/MRC72
MD
Dictated $y:FRED SHi1
retation.
y and Agree With Interp
I Reviewed Images Personall
G MD
Signed By : LIONEL YOUN
`*
' ** end of result ****
04-221-12755
Order #:
Femur, Right
Exam:

,.,..m
, ~,
F
3
~
~

Exam dateltime:

ty Medical Center
Loma Linda Universi
al
ty Children's Hospit
Loma Linda Universi
cal Center
ty Community Medi
Loma Linda Universi
ma Linda, CA 92354

1 1234 Anderson Street, Lo
[phone]

Name:
MRN:

05/01/2001 11:51;44

PATKINS, ERIC
oissaszs

Encounter: 015543250002
10/25/2000
DOB:
Physician:
Tof 9
Page:

5/04 ZZ:i2
Printed by: Adikuono, Pamela L 09/1
ology Reports
D iagnostic Radi
Od-221-12755.
Femur, Right

Order #:
Exam:

Exam date/time:

05/01/2001 11:51:44

Radiology Report
~42, .
ORDER: 2112755, EXAM:2310
CASE:01554325002
VERIFIED RESULT
R.[GHT FEN[UR-OS/01/~)l:
HISTORY: NAT.
right periostea~ new bone
the right femur demonstrates
FINDINGS: Single i~P view of
also cortical
of tl~e ri;;'.~t femur. There is
formatirni along the lateral margin
t femur.
distal rnet:ir>>ysis of the righ
buckling or irregu'.arity along the
ably auhacute, ~~~ith
ira•:i.~re crf ti:e rieht Cemur, prob
IMPKESSION: Distal ntetaphysea!
LWY/MRC72
formal~on.
e~~idence of periosteal ne~v bone
0~/10/Z001 OS/10/101
Dictated C3y :FRED SHU P~'
A~,r~•~ :Vith interpretation.
I Re~~iewed f;>>;_.P, {personally and
Signed By : ~:iirvF.L YOUNG r.1D
**** end of result ****

~~
~

l Center
Loma Linda University Medica
en's Hospital
Loma Linda University Childr
munity Medical Center
Loma Linda University Com
CA 92354
11234 Anderson Street, Loma Linda,
796-7311
(909)

PATKINS, ERIC
Name:
01554325
MRN:
Encounter: 015543250002
i oi2sr2000
DOB:
Physician:
Bof 9
Page:

, Pamela
Printed by: Adikuono

L 09/15/04 22:72

rts
dicine Repo
N uclear Me
Exam date/time:
04-221-12135
owlCBF
Brain Scan Vas Fl

Order #:
Exam:

33
04/30/2001 16:44:

Radiology Report
ORDER: 2112135,

EXAM:2309713. .

CASE: 0155432500

02

VERIFIED RESULT

n-accidental
tory of possible no
h old male with his
mont
HISTORY: This is a 6
trauma.
ed IV.
99m v~~as bolus injert
DURE: 15.84 mCi Tc
PROCE
ed for 60
ood flow were obtain
es of the cerebral bl
rior imag
FINDINGS: Serial ante
images.
mediate blood pool
seconds with im
evidence of
is seen. There is no
erial and ~•enus flow
art
FINDINGS: Abonnal
d flo«~.
E3LOOD
or ~•enous cerebral bloo
arterial
SENT CEREBRAL
ISTENT WITH AB
D FLOW CONS
CEREBRAL BLOO
SSION: ABNORMAL
IMPRE
FLOW.
IN CHEN lLiD
Dictated By : BENJAM
With Interpretation.
rsonally and Agrec
1 Revie~+-ed [makes Pe
KIRK MD
Signed By:GERALD
*"
**** end of result **

,,,,,,~ ~
t `t
~`
~

sity Medical Center
Loma Linda Univer
spital
sity Children's Ho
Loma Linda Univer
y Medical Center
sity Communit
Loma Linda Univer

eet, Loma Linda.
1 1234 Anderson Str
90
( 9}796-7311

CA 92354

Name:

PATKlNS, ERIC

01554325
MRN:
ter: 015543250402
Encoun
10/25!2000
DOB:
Physician:
got 9
Page:

0000is
IN THE SUPERIOR COURT

1
L

OF THE STATE OF CALIFORNIA

3
4

ORNIA,
PEOPLE OF THE STATE OF CALIF

5

RSC NO_.. ~RIF-096899
L
~~ U ~ (~~
C
OUNT~'V~pF' ~ CAL~~p
RIVEFSID-

Plaintiff,
6
vs.
7
I

DAVID CHARLES PATKINS,

APR j 7

s
9

2u02

..~
1

Defendant.

10
ii
12
13

PRELIMINARY HEARING
JUDGE PRESIDING
BEFORE THE HONORABLE W. CHARLES MORGAN,
D EPARTMENT 32
MARCH 22, 2002

19
15
16

APPEARANCES:

17

For the People:

18

OFFICE OF THE DISTRICT ATTORNEY
CHARLES HUGHES, Deputy
BY:
4075 Main Street, 7th Floor
92501
Riverside, California

19
20
For the Defendant:
21
22

OFFICE OF THE PUBLIC DEFENDER
STUART SACHS, Deputy
BY:
9200 Orange Street
92501
Riverside, California

23
29
25

~~~g1V ~~
~

26
27
~

28

Reported by:

CONNIE McCUTCH6N, CSR 7027
Official Court Reporter
Riverside Superior Court

1
2
3
4
5
b
7
8
9
10
11
12
13
14
ZJ

1

17

18
19
20
21
22
2?
24
25
26
27
s

~g

1

REBECA PIANTINI,

2

called as a witness 1:>y tt~e People, tiavinq been duly swore., ~das

3

examined and testified as follows:

9
S

DIRECT EXAMINATION
BY MR. HiIVHES:

6

Q.

Good morning, Doctor.

7

A.

Good morning.

8

Q.

What do you c1c~ fc~r a lit~i~1~?

9

A.

I'm a pediatriciaiz.

10

Q.

Okay.

11
12

Can you tell us

4J~lat

type of traini~lg acid

experience you have that qualifies you to be a pediatrician.
A.

I did mediccl sr_liool at Loma Linda University, Sch~:.,1

13

of Medicine.

19

University Medical Center .

15

forensic pediatrics

16

yearly conferences ar~c.3 ~r~Petiiic~s Yor Lorerisic pec:iiatric.i~i~s.

T}iert I dic9 a pediatric residency ~t Lorna Lir~ci~

4J1tIl

Then I got extra training to dc:

Dr. Clare Shericlari~ ~~P,nci I also nT~encl

17

Q.

What does it mean to be a forensic pedi~,tticiari:'

18

A.

It's a pediatrician who does exams on children thnt

19

have been abused.

20

Q.

How long have ycu been doing tt~iese types of exams:

21

A.

Almost 10 years.

22

Q.

And can you dive us a ballparl~ figure of how many

23

examinations of kids you've seen that }lave had injuries?

24

A.

Oh, hu!~dreds.

25

Q.

Okay.

26

Aac}: iii April 2i1~_il, were yuti irivo.lve~ in ~ r

consulted in the treatment u E six-muntli-nlcl Ei i F: Fa tkins ?

27

A.

Yes, I was.

28

Q.

And what. was your role in the treatment. and diagric:,:i

Connie McCntch~n, C,SR ~D27

13

0000ail
of Erik F'atF:ins'?

1
.~
,

•sere
from head trNi~ma, and we
Erik Pa`};ins Iiac.1 s~iffered
q abuecl; his
a po~sil~ility of him Y,ein
consulted because it was
. y°
lt of ahiisive head trailm~+
head trauma being the resu
what cio you do -- in this
Q. When you're consulted,
Pat}:i~~:=."
c~io H~itl~ respect r~~ Eri}:
particular case, what did you
We -lo a
ulted, we take a history.
A. Well, ~rhen we're cons
niee~ir:al
medical records, do a complete
thorough histor•~, review
Ar~~:i i
tests that have beei ~ done.
exam, review the diaquostic
ital,
while tP~ey're in the hosp
continue to follow the patient
whether
then ma};e an opinion as to
follow their treatment, anr]
A.

2
3
4
5
6
7
8
9
10
11
12

ed or not.
we think the child has been abus
Q.

13

Ukay.

ultation role, do
Uo you -- as part of your cons

trying to help the
the treating physicians ~~~h~ are

19

you

15

injured child?

16
17
18

2.C~V15@

test: tc~ get, tc~ `ey
We advise them on what r.iiagno5tic
sive injury ~~r nit, and t~~e
to sort nut why*her this is an al.>u
y just helps iri what is tl~=ir
immediate treatment of. Everybod
A.

f i■
G

nt of what's ~~~,ing to t~~e [!~e
area of expertise to See tYie exte
port life <=end Muff.
in acute management of trying t~:, si_i~~
"'
zf
Have, I:: i:
t::..
You me1_ioneci ycii ~ev.iew u~edicai repoi
Q.

22

medical rece;rds pertaini~~g
reviewed the Loma Lincia Ur~iver5ity

23

to Erik Patkins"?

19
20

29

A.

Yes.

25

Q.

autopsy records
Anil di~~ you also review autopsy and --

?h

Office?
from San Berna•~dina County Cc~rnn~r's

27

A.

's es.

28

Q.

EriF; Fatkins; ~
And yogi, in fact, atten<ieci the autopsy c:f

Connie h9cCutch~n, CSF 7i`?i

14

f
s
1

000.032
1

is that right?
A.

3
9
5
6
7
8

YeS, I did.

Q.

tzd with res~e~.:t
When was it thnt y<-~u were first ~otisul

to Erik Patkins?
A.

was admitteel, ~.. ~~
I consulted on Ylim that saitie clay lie

April 28th of 2001.
Q.

Okay.

Cunumirii~y
He came to Loma Linda from kiverside

Hospital; is that right?

9

A.

Yes.

10

Q.

course Lt~at.
Can you just briefly swrunarize for us the

11

there at Lomt, Lir. 1a
Erik Patkins' condition too}: w}iile he was

12

U niversity.

13

A.

sity k-~y
What he was -- lie came to Lome Linda Univer

y

I~i~n at
That means that a physician went to get

14

t ransport team.

ZJ

Loma -- at River~icle Comm>>nity Nc~:;pit~l .

16

a lready intubated, anc:l tip

17

to Loma Linda.
seizures and was sedated acid was broug}lt

He wri~~ ttanspnrt~1

lead been given medicnt i~;r~ for

on
W hen he got to Loma Linda, they felt like leis conditi

18

He was nlready doing movements with hi:-.

19

was very unstable.

20

thought tl~7t he
arms and legs that were very abnormal, and they

21

had a significant injury.
Mk. SA'~HS:

22
23

wt~iat they say.

I'd interpose ~n objection as hearsay ns tc>

Vague ai~icl also lie~rsay.
Well, I'm r~c~t --

29

T HE CO[TRT:

25

I f you'd just -- Doctor, let us know whether or nok

26
27
28

you

anal
'
were told information or you observed the infoin~ation,
if -THE WITNESS:

This is information from tf~~e medical

Connie McCutct~en, CSF 7027

15

000033
1

hin~.
,
records as to wt.at Iia~->pened before I got to see
THE COUkT:

2
3

ohservecl c;r -you'd let us };now when it's something you have

4
5

THE COURT:

C;r,rr~~~t ,

THE WITNEti~:

6

-- you were told by another perty, E~:~r

instance.

7
8

THE COURT:

Correct.

THE WITNESS:

9

And if that status were to c:l~ai~ue,

Okay.

Arid you used this informatiuri in formin~~

your opinion; is that correct? ~~~~=J
That's correct.

10

THE WITNESS:

11

THE CO[IF.T:

12

THE WITNESS:

13

;
So in the emergency room he was noted to I- ave inc:r~3~.~d

You mhy continue.
O}:ay.

They felt it way

14

intrecranial pressure and unstable condition.

1J

important -- the neurc,si;rge~.>ns I ~aci r~, put in ~,i ~ ir~kercr~,i ~i":

16

pressure monitor jt~s1. ,_i

17

head was.

18

h igh.

19

they -- again it was necessary to put in a drain tc clraiu :s~n~e

20

of the fluid to see iY the pressure will derrense in the brain,

21

so they put in ~ drain can his left Side.

22

monitor on the right eicle.

23

side.

24

they again put in a 1i.im1_~ar drdir~ ai~cl catheter- ir. the 1uit~k,-,r

25

spine again to try to decrease the pressure.

26

.
[

L~

A.

26

-- tc> ;,~~~= what 1-.hc= pr~~<.suee in rl i

So they pl~~c.:eci that, ~,nci his pressurF~ was sti]. _1

It was it; the 90s, which is extremely hiyli.

(By Mr. H~t~1he5)

They put in tfie

They came d~:~wn.

1E,Pt
Lr~Y~r

~=o hip hrair~ is sadellir.y?

His hrtir~ is ~;er~!

iiltracra~iial pressiiie.

And then

TI~e~ ~,iit i:~ ~ clrai;: .,r, lii:

His pressures ~~~ere still !sigh.

,~ery

wolleu.

,
TI~~ }:~re:~,.~,ur ,~

Connie M~Cutch=r~, ~5F 70~'"

There is ii ~~ reasec_t
i .; s,; hi~~l ~

~ L~~t }~~ , ~~~r.;i~ ~~r

16

Fle cannot yet

1
~~

profuse his body, because it cannot profuse.

2

in the k~raini
oxygen and blood to his brain because the pressure

3

is higher than the n~:,rmal -- than the blood pressure.

9

t~~ keep
had to also give him medication for the blood pressure,

5

his blood pressure up -- higher doses, you F_now, Che n~axirnun

6

doses, multiple medic:atioris.

7

coma with phenobarbital, agaiiz to keep his i~ltracranial

8

condition -- to try to stabilize it and decrease tk~e

9

intracranial press~.ire.

Sc, they

He was placed in a harhiCurnl

He was actually ~~lacecl in ; barhitural coma; is that

10

Q.

11

right?

12

A.

Yes.

13

Q.

That's to stop brain activity ~~r limit it as much as

19
15

possible?
A.

So that it doesn't. cc~nsumP the oxygen -- that limir,~d
:'.c, they piit the brain ba.~ically at. lest

lh

oxygen that you have.

17

as much as possible to try to decrease the pressure aril to pry

18

x
to decrease the o- .yger~ cc~nsumptian s~, that you c:are do ~~itl~ ,

19

minimum that you can, yoga ~:now, to try r_o l~rir~~.~ thi~tigs bhp-:~:

20

to -- to try to save, you know, the child.
?39 i7>

A t the time that I sa~.~ him, 1~e had already had all the

21

,
He was sedated ~~nc1 he ~ ias hasi~- ally p~,r~lyzed.

Ar. i i

22

drains.

23

saw him just 11ter that cl~~y.

24

didn't have apparent l~ri~ises r,ther than a couple= of bruises in

25

the nails of his toes.

26

ventilator with a tut:~e to Help Mini bceatl,e.

27

He lead the m~~nitor.

28

He had femoral Lines for

His external coricli ti- c:;r~ -- Ise

He didn't -- of course, he was on a
He iiaci tfie a lt-~ ii ~s.

He 1~~,d a catheter. tc, colle<~t }iis uriri~.
T. I. at~cPsS.

Connie McCutch2n, CSF ~~?~'7

Ancl his ~~upils were ~,~er;-

17

T}~at ~r~eans *..IZey don't respc~r~d to light.

1

fixed and ciil~+t~<i.

2

When you s}liiie the light, they don't resporic~.

3

w ere in the 90s.

9

h is intercranial pressure was over hU, 6us to yus at times,

5

fluctuating.

6

mannitol or diuretic to try to bring it down.

7

respond.

E
:l
9
10
11
12

Hip pre55ure:~

At this time he teas an intraccanial vault dnd

He got merlic:ation to bring it du~~Jr„

~I

what we call '~

He didn't

We wanted the pressure to be always less tf~an '~ ~, and

this -- obviously higher than -- 60 to 9U, it's extremely i~iyli
for a child.
Q.

Were any of the treatn~enl mens~ires that the physici iris

a t Loma Linda fJniversit~~ l~lerlical Center tooE~. ~i i ~ ce~.stii]
A.

No.

He evert ynt transfusions to bring Isis }temoglot:>in

13

up because, of course, he was losing t:~looci and lie was bleeding

14

it1 }zis head, acid to -- trying to keep more oxygen -- depositiilcr

15

more.

16

continued to deteric:~r~;te.

But that -- nothing really 1~elped.

His condition

17

Q.

Are you Yamiliar ~.~itli t!~e term "brain death"7

18

A.

Yes.

19

Q.

What noes that mean?

20

A.

It means that although we can keep the liehrt going,

21

because we have medicati~:~ris to keep it goiriq, and we Have a

22

ventilator to E;eep the t~~reatl~iinq quirig, and th~r 't~reatliing is

f►~Cl

only r~oing b~c,~i~ise ref .y veuti.l~,t.cn.

?q

braid-deac:l, yai can't hre~tlie, l~ec:au~e hint's ~ i~r~in r~Yl~<.

25

Basically means your brain isn't working, sq you're dead.

26

Q.

All right.

27

A.
Q.

~

Yes.

?g

Because oi ~r~~ ~;ou're

When dLd that hn~~pen?

Did Eri}~ Pat}.ins reach brain death?

Connie McCutchan, CSR ?0_''

i

18

000036
1

A.

death was
He way declared -- his L"ir>t exam fur l ~*ain

2

y; brain-dead by
actually done on the 30th, and he was basicall

3

exam l iE:~
physician's exam, and then we usually repeat tl~e

4

24 hours later.

S

rie~- larec:i
actually ttie seconri exam wa; done and 11e was

6

brain -dead.

J

And then maybe the 1st is when Iie was --

7

Q.

Is brain death fatal?

8

A.

It's death.

9

Q.

be
Once you're brain-dead, you're no longer going to

10

alive?

11

A.

That's correct.

12

Q.

You can F:eep perhaps r_hP heart Beating =,nd lung5

Yeah, it's fatal.

13

pumping from the mac~iit~es, but yoi_~'11 never recover L`rom that;

14

is that correct?
Only the machine's doing it.

15

A.

That's correct.

16

Q.

When Eri4; Pat~:ins was declared to he bi ~~in-dead, were

17

there surgical procediire~; done tc_, I~arvest orga~~s?

18

A.

Yes.

19

Q.

Whose decision was that, wilettier or nr>t to harvest

20

organs?
It's the family's ciecision.

It's the mother's

21

A.

22

decision.

23

t hen we call t}ie transplant coy-~r~iinator end the team and see

24

if -- then they spea4: tc~ the ntc.~tli2r an~i o~Yer t!r~= E;ossit~ili~y.

25

I believe the 'nom actually brougtir_ it yip even heFc~re ttie~✓ snn}:e

2H

to her, saying that_ site --

When the organs are felr to be in gr,c_,d condition,

27

Q.

Okdy.

28

A.

Sri Margle Girofdn~"~ ncJLee~"1 to Orq<<n lidrVeStlli~~:'

`les .

Connie NIcC[~tchen, CSF ?0''?

19

000037
1
2

~.

ttiryL
And followinci that, Grit; P~~t}:iri5 expired; is

correct?

3

A.

Yes.

4

Q.

Did you attericl r_he autopsy?

5

A.

Yes.

6

Q.

Who was that ~~erfc,rmec_1 t>y?

7

A.

Ur. Steve Trer~~:el.

8

Q.

And Dr. Tren4:e1 was a forensic pediatrician before he

9

became a pathologist; is that correct?

10

A.

That's correct.

11

~.

In fact, he tiaine~l Dr. Clare Sheridan, wlio then

12

~, ~ 3

trained you?

13

That's correct.

14
t

A.
Q.

How long has C!r. Trenl:le been a medica] examiner:

15

A.

I don't ;now.

lE
17
lE

Eig11t or nine year's,

sc_,niethiny 1iF:e

that.
c~.

When you wenC to ttie autc:~psy, c:lid you nctuallV see '~Iint

t ypes c->f physical i«~uries Erik Pat.4:ins iia~:l siit lereci :'

1~

A.

Yes.

2C

Q.

Let's talk about ttie new injuries that Erik Patkin=
Whet types of injuries to his head clid you see as a

2]

suffered.

2L

result of viewing the autopsy?

2
.

A.

Well, the m~>~r fital irijitty and the in~i~ries tl~et ~.~re

2~

very acute, he tiad what we c,~ll subciural i~emat<~n~a, whicl~i i~:

2`

bleeding into the covering layer, which is a tf~i.cE_ coverino

2f

layer that goes over tl~e brain in between Y_he brain aril tl~

2"

skull, if you want to -- and there was a lot of t>leedinry,

2f

extensive bleeding.

Ancl the most acute was mostly on tl~e

Contii2 hlcCtrt~.t! ~~i, _'S I: ii).'~;;

20

1111 i
It wd5 t. ~~ t. ~<<= I_>~~cl: c:~f tf ~F

lir~.icl, ~~ ~c9 1* .:',-.s ::i k;~~~~d~- ';.

1
2

the two hemispheres ir. the fissure there.

3

` ,

Iig}lt.

bleeding there.

~T
, 3sa
Had ~ let of

^, v ~
He had also extensive retinal hemorrhages, which were

4

I was able to see that on nay

5

also seen before the autopsy.

6

medical exam, and the ophthalmnloc~ist was able ro see the

7

retinal hemori fiages.

8

confirmed on the autopsy.

9

was that he had optic nerve sheath hemorrhage, which -- this is

They were very extensive.

TV~ey were

What was also seen ors the autops,~

10

only seen when -- at autopsy, because it's not 7omethinc{ tG.~r

11

can be seen if 1:}ie cY~ilc3 survives.

Has to the ~n

12

Q.

So -- I 'm soLry..

13

A.

Then he liaci a.15c:~ sF:ull fry ctiire.

He hn~:i Sri c~cc:~if~i t -,i

It's a s~:ull fracture in the 1.,~_}: of the head

19

s kull fracture.

15

on the right side.

16

examination, they also found that he had ninth rite acute

17

fracture.

~.

18
19

Q.

And when they did n mic:rosc~.,pic

So he had a fracture on his ninth rib.

'tuu cou~it from

the top or the bottom?

20

A.

From the top.

Pi■
.

~.

So the ninth ril:~ down, cotn~Cing clown frc,m the tnp.

xa
~

kight side or left side?

23

A.

On the r_ iglit

29

Q.

kight side.

2J
26

A11 right.

Were there ari.,- olci injutie.;

that were fouricl7
A.

Yes.

27
i~

icle .

hemorrhage.

28

~~h.

Ariei rune other new ir~ji~rV wa=: suk~arachnoi 1

That means bleeding l:incl of liF_e more deeper into

the brain.

Connie McCut~h=n, t,SR 7n~?

21

_...,.

Q.

All rigl~it.

A.

1

Okay.

And the old injuries, he aG~in tiad old sut,c:l~.iral

Arid they E:now they were ulcf becausE oY ttie

3

hematoma5.

9

appearance of the blood and also the stain.

5

the
microscopic examination, they stain it and they see

6

b y-products of the hemoglok:~in.

7

old injury.

8
9
10
11
12

Q.

Okay.

W}~en they c:i~ ~ Yiie

So t11ey can tell that it's yn

Now, ynu had described the new hematomn as

extensive bleeding.

With respect to the old one, by

comparison, was it as extensive'
A.

Not as ?xtensive.

It was -- the old orie was mole c:~~

the left side.

13

Q.

So on the other side?

19

A.

kight.

is

Q.

All right.

16

A.

And then he had are old left parietal fiacture.

~_.

4

Thai's,

17

a gain, another fracture on the head, but it's ors the left side

19

and more in t11i~ area of the Bead (inelicating) ns opposed t',

19

the back:.

20

Q.

How can they tell that's old?

21

A.

Well, because they show already the healing process of

22

the fracture.

23

Q.

All ri7ht.

?q

A.

Yeah.

Were there ally other old injuries n~:_,te~:i?

And then he had ~, right femur Yracture.

25

that, again, they c:~ri t~l l- t_~~ tf~~ }ie~l ing prpc.~ss ~_~f tY~P

26

And

fracture.

27
28

Q.

ar
Based ~~n y~:~ur re view of the medical records, your

actual consultation, and fullowing of the course of treatment

Connie M~Cut~h~r~, i'SF. ?~~,';'

22

~~
'J

1

of Erik Patki~ls aild y~~ur.~ attencl~~iice at t11e autnpsy and tevi~~w

2

O f the autopsy r~Cnrcls, <ic, yn~_~ h,=,~;~ an ~:~~inipr~ ,.. to the r,~~ tse

3

-1?
of those new injuries that you've disco sec.

4
5

The -- there's -- new injuries ~~ere clearly
1l, vi
cause of abusive head trauma or what we commonly know as 5t;ab'en

6

baby syndrome.

P ~/, '!L
J

7
8
9

Yeah.

A.

How is shaken — what is done te, a bab;~ ir, s}iak~ii L~ shy

Q.

s yndrome to result in Y_Iiese rye>es c>f injuries?
What happens is a baby is shaken vigorc-~tisly.

A.

It's iii

10

acceleration-deceleration, so it's a forward acid back. movement

11

(indicating) of the head that causes the brein to yo bac}: acid

12

forth and causes a lot ~~f intracranial bleeding, a lot of

13

bleeding in the head, c,i~i;;e5 bleeding in the eyes.

14

f requently hav:~ a Frnrr_~~rr, ~9epEnclini~ ~ ~n where rl~e child i .

15

grabbed, how he's field.

~
y

degree of it, they can c7o into a level of unr_onscinusnes ,

17

coma, and deattl.

They cyan

And Y_lt2n, ohvi~,i_is1y, ~Iepe:nding ~~n the

v ~-

18

Q.

You inliicatec:l there cats be a fracti_ire frc>n~ ttie sl~a~:ing

19

and you're mak_incl a m~>rion i~~ith your h:~ncis tog~rher as tl~~~ ,i~yFi

20

holding something in front of ~~c%u; i.=. r_I~iat correcC'

21

A.

Right.

Recati:~e iregiieiitl;% they're held by the ctie :~

22

(indicating), so tioe frequently gee rib fracture:. associar_e~:i

23

with it.

24

Q.

Again you're inclicatinq with your liancln in fionC of you

~J

as though holding son~~~tt~ing the size c,f ~ baby; is tl~~at

26

correct?

27

A.

Right.

28

Q.

Right.

Do yc~~_i have hn opiriiori as to t]~F~ timing of ~~hen

Connie McCutch~t~i, C'3F; 7i~_'

23

1
.
,l

2

ttlese injuries ~dere inflicted iipc:m Eri}: F~atkiri~~:'
A.

3

It clearly h=+rl t<> hhve happened just -MR. SAr}{S:

I tliiri}; I'~t~ going to iriter~~use ai~i

Lack of foundation again, unless she's ta1F_ing

9

objection.

5

about some other doctor --

6

THE COUkT:

7

THE WITrIESS:

Overruled.

Overruled.

And I did to}:e a history Lroir~ tl~~ ❑~c,n .

8

And the child was Pine when she left fur work. rl~e night k~eL >re,

9

was acting normal.

An~i t}ie baby there teas an a~:ute event, wino

10

ends up in deatY~, is clearl;~ witliiri a few tour:; from tire. t.iir~e

11

of presentation to the h~:~spital.

12
13
19

Q.

(By Mr. Hughes).

All right.

And is it your opinion

that these injuries that_ you've ciescribec] to us as resulting
p', y o
f EriF; =~:~tE. ins
from abusive head tr~~>>m,~ r~,ulte l in r!~e ~.ienth

15

A.

Yes.

lh

Q.

Finally, dc> you leave an opinion wl~~ether

these injuries

17

could possibly Have peen caused by a m.~n appro~.imately (~ Ye t.

18

< ,S~'
2 inches ta11 ~~ralY.inq towards a set of carpeted stairs, '

19

tripping while t~ioldinq tl~ie baby up ~,t slloialder level, sn~.I

20

dropping the baby onto tl~e fouit_h or fifth start up ont~~ ~,
& > E'3
carpeted surface?

21
22

A.

At~solutely oat.

23

Q.

Why do }you say that?

29

A.

I've ~~~en many, many children.

-~ -

I also ~.in general E ids

25

who fill a whole rliuht ~:,f stairs an~1 ~~on't Ilav~ tt~~is

?E

Constellation of ~ytnpYom~,.

27

they have d faC~t1 event, or something 1i}.e falling down

28

stairs -- w}iicli is i.isi_ially cement, which rarely t~ ppens -- it's

Connie McCutchzn, CS'R 7i)~7

It's n~;t just one event.

Ancl ~

Zq

_

f

It is nit
l.
jots 1~ave sometklinq fata
from a differe:~t finding
f~~ur~d not ~ ~i:l ~ ii i
~n ~~f syii~E~toms LFiat are
this whole constellalic

1
~

L

at aut~.~p5y.
a clinical exam but also

J

erent injuries Yor that
You'd e;tpect to See diff

Q.

9

mechanism of death?

5
6

Yes.

A.

7
8

THE COiJRT:

Dlothing further.

MR. HUGHES:

Cross?
CROSS-EXAMINATION

9
10

BY Mk. SACHS:

12

touching ~~n your la5c
What }.ind of injuries, -- just
ping t'le
see, for example, i.f drop
response -- you'd expect to

13

eleath a
baby would be the cause of

19

y:
testifying to .his nu~c :iin

11

15
16
17
18
19
20
21
?2
23
24

Q.

A.

Very rarel;~ .

opposed to what yoi.~'re

rd fl~_ ~. .
~~~.~i_r~, F. E~ec~i~_,11~✓ r,n c, ,__ ~peC

-- is a
c}~ilc.i that ends up with a
If wa are talk:inq ah~:>i~t ~
usually
nt stairs heac:lfirst, it's
fatality, that ~alls c.,n ceme
l~l~e~l.
a, and it's an arterial
what we call an epidermal h2rnatom
gnised
it's 1~ecause it's not reco
And, again, most of the time
somPtliinq
gery in timF, hecause it's
and it's not Yak_en to si.ir
An~i, again, it'.=. very rare.
iect.
that usually surgery can c~~z~
We have
n of fir~~lir~ys.
And here we have a constellatio
not
brain in the areas that are
the extensive bleed tliro~igh the
Anil we Have tliF
into ~ :stair .
seen with an a :cideiit<<1 Eall

26

a fricture, and we have also
retinal hemorrhages, ~ncl ~aP have
There w?
we 1~~~~~~ rite tracr~ ix~~,
si_ibarachnoid tl~rnnrrh~,~J~, ;~ iir1

27

have old injuries a~ well. .

25

28

Q.

the .~ial_>dural -Could you distir~iguish -- you said

7
Connie McCutch2n, CSF 70

25

1

in, I guess.
l~le~ding it~sicie tl-~e bra
subdural hematoma is

2

that right?
re'S
u~zc:ier the brain. Ttie
It's bleediil~~ ric~}~t
goe_ ~._~veL -- ~ i ~t~t
t's called a eiura ~haC
covering membrane tha
that -- it's real ly
whir.h is the membrane
over the arachnoid,
ht c>ver tl~e 1_>i~in.
t's going right -- rig
the thin mem~Lane tha
n
ching veins. .Ancl .lie
has li}:e veins -- rea
And that Jura under
er up. They tsar
these veins kind of she
there is this motion,
bleeding. PY3`{ z~ ,
up and cause all this
l~;
~aton~a.
there' 5ul_>.-,racFuioicl f~eti
Q. Now, yuu also said
per region of the 6rair~
tklat bleeding into a dee
That's right
under the arachnoicls.
A. Yes. That is right
A.

3
4
5
6
7
8
9
10
11
12
13

onto the brain tissue.

17

tcina?
bleeding than suheliiral hema
That's rru_~rP extensive
ueni
en,ive k~leecting. Ttie subd
A. They're t:>oth ve~'d exL
~cliizdl and
c. Anc.l wl~2n yc>u leave stil
hematonta is very classi
. shaken t.>.~i ,~
, very c~.~n~u~nly seen witl
s ubarachnoicl, it'.5 very

18

s yndrome.

19
20

ir~ juxy
~atoma is 5i_ich that — are
Subdural -- stib<lural heir
tomc.~log~,~;
bak~y to manifest some symp
that you would expect the

21

isn't that fair to sa~;%?

19
r'

I.

15
16

Q.

Q.

22

A.

of the 5uhclural hent~~t~_ma.
It's depending ~.,u the degree

23

Q.

So there are some --

24

A.

Well -- l~iih?

26

r_estiniony, Doctor.
I'm trying to unclerstanr_I your
r-rnce of an r_,ld :,;ul~dur~l
Because you saiG you foiu~~i evid

27

hematoma; is that cc~rrec t ~~

25

28

Q.

A.

Right.

Connie NIcL`utch~n, ~5R 772?

26

1111•

1

Q.

And yet -- yuu reviewed the records.

Tire baby }iad

2

never been brought in before for any type of hc:,5pitali~ati~ ~:~s

3

as a result of a head injury; correct?

4

A.

Right.

5

Q.

So are you telling us all 5ubdiiral hematomas are ncL

6

necessarily life-threatening situations?

7

A.

That's correct.

8

Q.

But you would expect a baby to at least he crying

9
10

vigorously or' showii~q some evidence of some ty~?e of a he~~r;
injury, wouldn't you"'
A.

11

Usually the h~bies dc~ cry,

L~llt

it -- we find out most

12

of the time that fussiness that — or depending on what it gas

13

they are thought to he -- colic -- they're thoi.~ght that r..}le

19

baby is just fussy for that.

15

extensive bleeding and doesn't have t}ie other manifestaticu~s --

16

not all subdural leads to death.

17

being even admitted to the hospital.
Q.

18

Ancl, ol:~viously, if it's riot very

And n~~t all ~iihclural 1~ad-- r~,

Are you able to give a time frame ns tc~ the old

f~l

hematoma, as to whether that would have to}:en place in

f
~~l

relationship --

~s
22

A.
that

WdS

No.

fill we con tell i5 Y_hnt it's old.

And, agai!~,

done ~~y tPie ~;atF;c:,l~~~~i::r.

23

Q.

I'm sorry:'

29

A.

That's what the pathologist determined un the autc,~;. y

25
26
27
28

b y doing the microscopic.
~.

That's —

Is that where they find -- b;~ some types of staininci,

they determine it's an ~,l~i hemarr,Ria'?
A.

Right.

Altfiou~~ii in tl~ie ~:T, it looF_ed ] i F_e it's

Connie McCutchan, CSR 7027

27

000045
]ou can't c~-infirm ~t until -- y~,u }_~i~~~~~, at ,;iir,E,_~~;~

1

suspicious.

2

it was confi.rmeci.
Q.

3
9

to ir. the
Now, the ril> fracture that you made reference

process oP healing:'
ninth rib, you saic.l that was already itl the
Tile rib fracture way ncute.

5

A.

No.

6

Q.

So what you mean, it was recent?

7

A.

It was recent.

8

Q.

It was recent?

9

A.

Riyht.

10

Q.

Could have been i~ontemporaneous with the injury to the

11

head?

12

A.

kight.

13

Q.

And can a bal~~y puffer a rile fracture b~~i falling and

14

hitting their ri.b in tL~t partir_.ular location:
A.

15

Babies that hive rih fractures -- if there's nor ar,

16

adequate histnr~~ tr., explain the ft~~cri~ce -- yeaf~, you caii get y

17

rib fracture, ~3eE~eridiny c.,r~ the lc;~:;tio: ~ oL the

18

fall.

19

it.

20

those rib fractures are due to sha}:inq. `'"

The mechanism has to be stuc:iied.

THE COUF:T:

It's not uizusual.

Just a moment, Mr. Sachs.

I have to take a call Mere.

Beat

,lust a mnmenC.

Jia:;t will be two., minutes.

( E;rief pause in prc~cee~~ings.

23

THE COUF'.T:

29
25

frc~n~ ~~

Rut that's clearly identified, a fall, a: tFie cause ~f

21
22

il;,

I tl~~n}. you for that, P9r. ` .-~.c:hs.

i'ui i it -iv

continue, sir.

26

MR. SAC~[5:

Tlian~:s.

27

THE CO'IFIT:

T}~dt~k_ Vc~u.

28

Q.

(Ry Mr. Sachsl

I'~ri sorry;.

Connie McCutchen, C'SF 702?

'in~i said that was the ninth

28

rib that was fractured, Cu~ctc~r; is tlia~. rigl~t:
A.
Q.

The right -- on the rigf~t side.

t~.

The right si~.l~?

A.

Yeah.

Q.
E

What side was that again?

A.

E

That's correct.

Now, the presence of retinal hemorrhagir~q is, in Ya,t,

something that's consistent with shaken babies; is that right?

c

A.

That's correct.

1C

Q.

As a matter of f1c:t, iuost rinctors, whei~ they See CI ~~

11

presence oI retinal I~emc_,rtt~aginy, autc,n~~ticail~~ essume there's

12

a shaken baby.

Isn't that fair to say?

13

A.

Well, in the absence of a lot of other %:cm ditic~ns, yes.

19

Q.

But thare are other c:onditioiis that c~i ~ cease retir,~l

15

hemorrhaging?

16
17
18
19

A.

There are otter ~_,oricliti-~~ne:, bur tl~iey ].t~,r1.

Q.

Are th=y c~~nsistent with a fall"?

iffererir

too.
ALtei, could a cl;ild

suffer retinal hemorrlia~ing?

20

A.

Riot consistent with a fall, no.

21

Q.

Basically, the presence of retinal hemc,rrliaging is --

?2

just increases'. pressure i~~ithiii the brair~ cause; that; isri' 1:

23

that fair to s;y?

29

A.

Nn.

25

Q.

What --

26

A.

You ca~1 have increased pressure and noY have retinal

27
2n

h emorrhages.
Q.

Aid you cnn 1~~~,v~ iricrense~l E>tessur~ ai~~i n~,t ]~av~

Connie McC[ltch~=ri, CSR %(~_'"'

29

1

-des?
retinal hemorrha~

Is that_ what you're saying'

2

A.

That's correct.

3

Q.

Frequently, if you do leave iricreasecl ~rariial pre~~ure,

4
5

that does cause it?
A.

No.

Oi11y cer~tyin mechanisms.

A lot oT people ~iie Er~~n~

6

motor vehicle ecciderits acid have increased prer,::uie and i ~c~

7

retinal hemorrhages.

8

Q.

What mechanisms are you speaking about?

9

A.

There's occulusiun of the venous return, or the very ~i_i

39, ,!~ 3J

10

outflow, that pauses a lot of retinal hemorrhages.

And, ay~in,

3&

11

the retinal hemorrliages, depending on ~.~hat the~i' ie caused

12

from — but in this cage they're Suspected to tie -- the

13

mechanism is not c.learly understood, what Causes -- whdt

14

specific mechanism it is that causes retinal hemorrhages.

15

they've clearly been seen -- that retinal hemorr}iayes are

16

associated with s11a~;er~ }~al~v and are very rarely seem in m,~t ,t

17

vehicle accidents.

18

there's high speed.

~~ir.h this, I..i~ere' ~ a f:i~tc ,c ✓.

19

report of all [t~is.

It's not joist a rear-end.

20

high-speed motor vehicle accident.

21
22

Q.

3~.it

Tfie iner:hanisn~ seen in motor vehicle,
Thee':: n

It's not a

You had an opportunity to physically e_r~amine tf~e baby

before the baby was declared brain-dead, I guess"'

23

A.

Yes.

29

Q.

Arid thate weie ~i~_~ -- ~~a~.~~~_t~ci ik_ i re Yair ~

25

;;ay tliei~~ Cdr tF~

no visible injuries t~~ the chilci7

26

THE COUkT:

Exter~zal'?

27

MR. SACh'S:

External.

28

THE WITNESS:

N~~ external, other than tine twn little

Connie McCutch~ri, ~'SR %i_)'?

30

1

areas of hemorrt~age that_ I des::eil_~eci c.~u tiffs tor~i ~ails.
(By Mr. Sachs)

There w~ s no redness or bruising c>! ~ the

2

Q.

3

child.

9

A.

No.

5

Q.

And fi.equei~tly ~~lien you see bn~ised children, dc~ yr.a

Is that -air to say?
He :just had an abrasion on -- abrasions.

6

not see the pL~esence of either bruisin~~ or sometimes exr~n~ive

7

external injuries?

8

A.

Sometimes we clo; sometimes we don't.

9

Q.

Now, there is -- a short -- a short fall of a child

f ~l
[

can, in fact, under certain circumstances, cau_ e the I;in~ i - r

11

fatal injury we ]lave t~acl here; isn't that true''

12

A.

Not the ti_ind uf_ i~~Lal ii ijt.iriF~s .ae have !:~rF~, nc,.

13

Q.

What specific_ injuries are you tal}_ing aboi_~t that s,~ ~iilcl

14

preclude -- stripe that.

ZJ

You are aware of a body of lit2rnture that talF:s at,ut

16

short falls can cause fatal injuries in ciiildrer~, dre y~~ii r•: ~t.?

17

A.

Yes.

18

Q.

By a Ur. P1unE_ett, a stiiciy oil

i~:]

hurt falls.

Are you

familiar with that study?

20

A.

Yes.

21

Q.

What particular injuries here are you talking about

22

that would allow the passibility of a fall causing these

2
;

injuries to a cl~ilel?

29

A.

The in~urie:~ r.hnc tl~iis riii_l , h.~
]

aie ~~~.,
.e!i~ive:

25

subdural, subarac:ktinc~i~_l, intexliemi<,pheric~ pressiice.

26

extensive retiila.L hPmc>rrliages and opric~ nerve sheath

27

hemorrhage.

28

fracture.

He Iiys

~15c:;

And he also 1~as a posteri~,r rih fracture, rtcute
He has a combination -- whole lot v1 syniptonis ti.at

Connie McCi~tchen, CSf; 7C?_~?

31

000049
1

are not exE:~la_.ned t>;~ ju:=r_ fallin~_I Er.on~ a father iiclding r!:F

2

child, into a carpeted stair.

3

Q.

the sku11 fracture that you talked about, the new ~.;ne,

B1

I think you said it was in the right parietal regi~~n.

5

right'

6

A.

I '. t'~at

7
8
9
10

No.

Tlie s~_ull rracture that i5 a new c:,ne is in tP~F

back of the head in the occipital area.
Q.

The occipital area.

b y blunt force?
A.

No.

Is that fracture caused normally

Is that caused by shaking as we11?

It -- it's caused Uy impact, having the head I;it

IL

It's what we call frequently -- ce.~ld
S~
be shaken impact syndrunie. Most. of the sha}:en l,abie5 are i ~ ,t

13

just shaken and put duwr~ gently ~:~n t}~e be~l.

19

shaken, then dropped or hit against something.

11

15

against ~ hard surface.

Q.

A int of them ire

Sn in your opinion, it would cause a sufficient -- nave

16

to be a sufficient impact to cause thus type of sE:ull frhi:t~~re,

17

then; is that right?

18

A.

Yas.

19

Q.

Anil Sha}:in~~ tl ~e I]ak>y a1~~>i~e [l~-,e5n't cau P t1~~15 tyK~e

20

,I

~

fracture, as 1 i_~nderstand it?

21

A.

Right.

22

~.

Now, is -- the old injury, the left — one to the left i

23

parietal area, [ believe, is that also the samF type of thing?

24

I t would I~iave tc~ be same impact to that part of

25

hard surf~,c:e?

26

A.

BtiY_ -- yeah.

th~ head wi`h a

But the p~iietal area is less -- tk~e

27

occipital is more sigrlificarit, iri tl~ t it requires me>re Fr,r ~e

28

and that it's very, very diffic:~.tlt to t~reak tYi~ back. of yc~i:r

Conni~~ N1cCutch-gin, i~SF~' ?c%.-'~

32

It's ea~i-er t<~ k,eeaF~ tf~i~ yre~

1

head.

2

parietal is on the sic12.

3

iir~~iicatiriul

Tree

can break easier-.

And the E:>~ri~tnl ere:, i5 a~~ ~-,xe:; _l~at

4

Q.

And again --

5

A.

But it's impact.

6

~.

Sn, again, sha};inq is not going to cause a parietal

7

Has tc~ have an impact.

fracture either, I taE:e it?

8

A.

5liaketz i.mpnct will, t_~ut not shaken alorra, yes.

9

Q.

And was there any attempt to date the age of the

10
11

parietal fracture?
A.

You can't really date fractures on the skull.

All you

12

can Say is that they were already l~eeliny; that t}~ey're r~c~t

13

just recent.

14

can't sav that.

But vn~~ can't s:,y th~e;~~re one weeE:, tw~~ we~lc~.

1

15

Q.

C~oe~ it have calcification --

16

A.

They ha~~e periosteal hP~,ling c, _F the boi~r.

17

Q.

F]ould Vou eXpect to have Sc,[ne symptomdtnlugy frc,n~ t ~i~

18
19

fracture to the parietal to the c:lzilci:'
A.

Usually, but tf~ey r~ar~ lie ver✓ ~niniival.

yn~ptr~rua' ~ ~ i ~~J ,

20

they may ji_ist be fuss;%, cry, or it rtiay nct be very,, -- again,

GL

some shaken baoies are very mild, anr] they doll' t — they ~l~_;;~~' t

22

exhibit the symptoms that will hrir,g the child always to n

23

doctor or bring the c:tiilcl into an intensive care unit.

29

may just he fus~~y ~~x ~i~ay be throwing up.

25

more.

26

think is tl~iat serious for a short period of time.

27
28

Q.

Tliecv

Tl~~e~i u~dy k:~e 51ee~~:i~iy

There Gre different things thi,=~t the people may just. _got

.
R~ell, iri your o~~inioiz, i.=, it the shaY;ii~q of t}1 E },~,f_:~.~ ~,r

is it the lard impact that caused tfie :occipital s};ull fract,ire,

Connie N1cCntchan, CAF. ~0_'"'

33

1

for e;~:;~mplr=, that can~e~ rlie i;~terccyiiial ~~re~r;i;re tc~ <I~-, al t

7

the wyv up from ~~~~1 tr.~ 9u, c,r is i.t a cnirik~~inarin,~ r,f }nth:'

3
4
5
6
7

A.

Prt>bably a combination of t_~otti.

motion of the shaking cn~.ised the most fatal injuries.
Q.
impact?
A.

The motion of sha}_ing, you're saying, as opposed tc rl~e
Is that what yo~,i're saying?
T"E:s.

Because usually ari impact alone, if you just :lave

8

a fracture, doesn't }:ill the t_>ak~y.

9

them.

10

but deTi~~itely the

Q.

A fracture does not 4:i l

It's the other injuries that kill them. Y~
And the most -- ire your opiilioi~, the mo t likely

11

mechanism tc increase the pressure, the interr..r:,nial pressi:re,

12

is by shaking tl~en~; i

13

A.

that cnrre~t

In this c:'as2, ye~~.

19

iHF:-. SA~~HS:

If I m~~~:~ jusY 1iav2 a minute-, K~lease~'

15

THE COfJRT:

You rinv.

16
17

4•

iBy Mr. Sachs)

Are you ramiliar with 1.1ie term ~_,r

rebleeding from existincl hematomas?

18

A.

Yes.

iL•]

Q.

Okay.

`C1~dt'S a

ltuatic:~r~ where you dc7i ~'t rieC:eti~,~t11y

20

have tc; have a clew traurri_i, but an old hematortia Carr star r

21

bleeding egair.'

22

A.

No.

This is trot at.>solt.ttelV what happen.

That's

23

rebleecling, if you have a Space o~~:upyiny ~, le5i~>ii elteaciy,

29

have blr~ncl, yogi Can }~IPPd ii1t~ that.. area easier .

25

usually requirN trat~mr,.

26

doesn' t.: catisa -~ Tathlit.~, c,r a ~~e~tl~ with Llie orl ~er s;%mptr,m::,

27

i t's just <<liriost li}:e .1 i;iicr~~k~lee~.l.

?g

Q.

Tr. nine,

And if YI~e bleecliny is=, minimal grid

But it is bleedincJ that c~n~Ps from an existing

Connie h.~cC'nt~-h~~n, ~'SF 7i%~'%

34

OOU10J `lP~
INTERVIEW WITH DAVID PATKINS
P3-01-118-065

PATKINS:

No }~i.c3 deal.

BARTIIOLOMEW :

OIL .

DELAROSA:

I

Page 28

Yell.

~

Uuh- -

stepped

out

when

I

aslc

you

about

you

getting

f~:ustrat~:~cl at X11 when lie cries.
P~1'I'KINS:

Mu-huh (affirmative)

DELAROSA:

What'd you do"?

PATKINS :

Utiti- -

DELAROSA:

Does,

he

was

making

you

frustrated

when

he's

crying?
PATKINS:

No. IVot

at

a11.

Sometimes I,

wel_1,

you

know,

I

mean, yogi wanria cio something. You wanna Help. But
like get mad, you ]snow, no. No, no, no. No, that's
not the answer. 'That's tiol

tYie answer, that's not

the right. way.
DELAROSA:

Have you ever si~anked liim?

I A'PKINS:
'

No. Nn.

Fler, no_r Lhe baby.

'
Maybe t_he dog's got it

a cot.ipl.e of times .
DPLARO~1~:

You ever shake li i« oz_ anyt}iing?

PA'PKINS :

No .

llELAROSA:

Get macl'

PI~TItINS:

Nn.

UF'LAROSA:

Frustrated?

P7~TKINS:

Nn.

Not at all..

~Jo not after, uuh, undere~anding

about L1ie shaken l,ah~ syndrome .

~

~

r : ~ _ ~: s:~.

~ ~

~~

OOU11U ~~~
INTERVIEW WITH DAVID PATKINS
P3-01-118-065

Page 29

BARTHOLOMEW:

flow di_d you hear about that?

PATKINS:

Uuh,

we11

she

liacl

p~.iinphleLs

and,

uuh,

you

know,

just froirt Lhe past .
3APTHOLOM~W:
}

What's past?

PATKINS:

Just, just, jttsl. knowing i_t from the past.

BARTHOLOMEW:

You said you had two oilier kids, uuh, what a threeyear o=1d and a seven-yea:r old?

PATKINS:

Mu-huYi (aff_:i.rmzit.ive)

BARTHOLOMEW:

D:id you ever have any problems with l_hem?

PATICINS:

Mi.i-hull (afEi~maY_ ive)

L3ARTIiOLOMEW:

Like what?

PATKINS:

(lauglis) the shaken baby syndrome.

BART~lOLOM~W:

You shake Ll~e kids then?

PATKINS:

TYie, the, one, my, my oldest son, yeah.

BARTfIOLOMEW:

Your

oldest

son:'

Di.cl

yoi~

ever qet

tY~at?
PATKINS:

Mu-l~uti (affirmative)

BARTHOLOMEW:

Did you get ~.onv:icted of that?

PI,TKINS:

Mu-huh (affirmative)

BARTHOLOMEW:

What'd ttzey co~ivict, you o[?

PATKINS:

Uuh, Lhey called it cli ld cruele_y.

1
311RTI~~OLOMGW:

OK. Did you do any Lime?

PI\TICINS:

Mu-}nili (afLirmaY.i_ve)

RARTF~OLOM~W:

How much timr ~~:id you do?

charged

with

0001.11,
~~
INTERVIEW WITH DAVID PATKINS
P3-01-118-065

PATICINS:

Page 30

I did, uuh, I dici in the, in there, in prison, I
did about, uuh, :Four years of my life.

BARTHOLOMEW:

Four years? When did you get out?

PATKINS:

I got out in, uu1i, 1996

}
3ARTHOLOM~W:

So you lead, your Lhree:-year-old, you've had since
then?

PATKINS:

UuYi, uuh, yeah. Well, what happened was, uuh, uuh,
I got together back with the lady that, uuh, and,
uuh, and then, and then we had, uuh, uuh, the next
one after that;, ~:ind, uuh, ana, uuli, acid then, uuli,
well she left to Iowa.

AARTIIOLOMEW:

Is this X11 back i_n Iowa then?

PATKINS:

No.

}
3~RTHOLOMEW:

No. 'i'his, is liiis in, :in the Upland area--

PATKINS:

Mu -huh (affirmative)

BARTHOLOMEW:

--like you said.

D~LAROSA:

Are you still on parole?

PATKINS:

No.

DLLAROSA:

Did you do all your tune or you get paroled at all?

PATKINS:

Mti-hull
cleared

(affi.i~r~at .ve)
and,

you

I

know,

Have,

it's

counseling

everything, I did everything that —
Df'LAROSA:

Does Margie Itnow t.Yiis?

PATKINS:

Yes, she does.

all

done

and

and,

uuh,

and

Page 31

INTERVIEW WITH DAVID P~ITKINS
P3 -01-118-065

D~LAROSA:

'That

were a Tested foi~ Lhat and did time for

you

i t'?
PATKINS:

Yes.

DELAROSA:

So you ]chow X11 about it ri-ght?

PATKINS:

UuYi,

don't

I

I,

know,

know

you

what's

what's,

happening .right now.
DELAROSA:

No, you know all about shaken baby and--

PATKINS:

Oh, ri-g ht, right.

DELAF205A:

--being

frustrated

and

doing

things

to

kids

you

shouldn' 1. be doiiiq.
PATKINS:

Yeah, yeah.

Right , like I say shaken baby syndrome

or, you know, yeah.
BAR`T'HOLOMEW:

giver hit F.rilc?
Did you ,

PATKINS:

No.

F3ARTHOLOMEW:

Did you Pver push h.im down'?

PAT'KINS:

Uuh, the.re's, uuli, I, rio.

F~ARTHOLOMEW:

I don'C, I'm loukiny at that bed and I'm looking at

Push trim down?

No.

~

L Tie, ~t r_he floor and eve ytlii.ny, David-PATKINS:

Mt.~-IIuYi (~ffil:niative)

3~RTHOLOMEW:
L

--and

I ieally don't

fracL ure:_~

Ltii_nk

front falling

oft

he,

he

yot

the

bed,

his

and

I

skull
don't.

Clzinit you believe that e.iLher- .
PA7'KINS:

I, I rlon' L ]cnc~w.

Uuh, I just know that,

haci a, that lie f_e]_1 oEf_ the bed.

that we

000113 `~~
Page 32

INTERVIEW WITH DAVID PATKINS
P3 -01-118-065

B AR'PHOLOMEW:

what Happened, why'd }ie fall off the bed?

PATKINS:

[Juh, he just, uuh, lie's just a little rambunctious
little boy and }ie, aiid he, he just did his little
play tYiing and lie,

Yie fe:11 off the bed.

I don't

k now. I don't ]snow.
BARTHOLOMEW:

So if I go, when I coo to Loma Linda today, are they
gonna tell me, I don't think they're gonna tell me
t hat it was natural that, that, I think the way the
injurie.; are described to me that I've heard of so
far,

I

mean,

are, :it's

not

from

falling off

the

bed, hitting your. head on the side.
PA'PKINS:

I don't know ..(unintelligible). .

BARTHOLOMEW:

What happened?

DELAROSA:

You

do

know

because

you've

done

time

for,

for

injuring ~ child before.
PATKINS:

Right. But I've changed my life.

DELAROSA:

And

I'm

sure

.t's

part,

it's

part

of

your

counseling, it's part of what happened back then.
You knoti~ what it takes to Yturt a baby. It Lakes a
lot more thin fallinc7 oEf tYie bed to get a skull
fracl.ure .
P~TKINS :

I don' L Jcriow.

DELAROSA:

These stai_ts are padded and carpeted.

PATKINS:

tt:i.ghL.

000114 ett~
Page 33

INTERVIEW WITH DAVID PATKINS
P3 -01-118-065

DELAROSA:

OK.

Aizd now lie's qot bleeding, and he's got, you

know, some bilateral skull fractures.
~ARTHOLOMEW:
L

get him the
The, the only way to help him and to
treatment that he neeeis today--

PA'PKINS:

I told you what happened.

f3:4RTHOLOMEW:

--is the truth.

PATKINS:

I told you whZt happened.

BAPTHOLOMPW:

I think it's, yeah, Yie probably did fall but what
happ--, more Yiad to have 1~apperied, David.

PA'I'KINS:

There :is notYing more. I told you what happened. I
did my time. I changed my life. I changed my life.

E3ARTHOLOMEW:

I think--

PATKINS:

I told you what happened.

A ARTHOLOMEW:

--I

think

you

get

~rustraLed

because

all

of

a

sudden you got a good r.elaLionsh:ip going-PF1'PKINS:

Yeali.

BP.R'PfIOLOMEW:

—with Margie.

PATICINS:

Right.

L3ARTHOLOMEW:

A11 of a sudden

Liik's iri Lhe ~~ictute now. She's

not giving you the time you want. She's harping on
you to get a good fob-PATKITIS:

She's .. funinCelligi_ble) . .

I3AR'I'HOI_~OMFW:

--and sYufl .L_ike t.liaL. F2ight? And you get frust--,
I Ch-in)c you get.,

yvu get, frustrated with that?

i ~

00011~~ ~,L~
INTERVIEW WITH DAVID PATKIN5
P3-01-118-065

Page 34

PATKINS:

No.

BARTHOLOMEW:

I think you have beers.
little bit of time.

Wtio wouldn't?

You want a

We need to know the truth.

PATKINS:

I just told you the Lruth.

BAR'I'IIOLOMEW:

What else happened? FIow did he get the other skull
fractures?

PATKINS:

I don't know.

I don't know. I don't know what, I

don't know. I just told you.
BARTHOLOMEW:

What--

PATKINS:

A~.~ything that, Lhat —

B~KTHOLOMEW:

--how do you think, why do you think —

PATKINS:

--that I would tYiinlc that would be helpful--

L
3ARTHOLOMEW:

--how do you think he got the skull fractures?

PATKINS :

From,

I

don't

laiow.

I'rorn

the

stairs?

From

the

cabineLs7
Rl1R'I'IIOLOMEW:

Has lie fallen down the stairs before?

PATKINS:

No.

B1IRTHOLOMEW:

So you ]cnew going into this that this wasn't gonna

Not t1iaL I know oF, no.

look good for you, didn't you'?
PATKINS:

I, I'm scared. I'rn scared.

B7IRTHOLOMEW:

Is LYiat wily you kind oI Yiesitated on calling to get
him help this morning?

PATiCINS:

Uul~i, what, cio you mean hesit.atedP

00~11~ ~
Page 35

INTERVIEW WITH DAVID PATKINS
P3-01-118-065

BAKTHOLOMEW:

Well, yotz, you kind oi, you said, "Oh, my god, Yie's
i-njured," you knew he was Burt.

PATKINS :

P.nd T called Marcie direct_, yes .

BARTHOLOMEW:

Well, you took--

PATKINS:

Ancl then she liunq up and I called 911.

13ARTFIOLOMEW:

— there was some time, why'd you call, if you knew
he was ]curt, why, why didn't you call 911 and then
call Margie?

PATICINS:

I don't know.

IIARTHOLOMGW:

Were you scared?

PATKINS~

Yeah.

BARTFIOLOMEW :

Scared of - -

PATKINS:

For him.

BARTHOLOMEW:

For him or, or what might happen to you?

YAT'ICINS:

I, I didn't have a thougYit about what would happen
to Brie.

IIARTIIOLOMFW:

I was looking at my little baby.

I don't know, I don't, my, my impression would be,
nn ofFense but, I've beers convicted for child abuse
before, I'd done, I've served Lime in prison on a
cYiilcl abuse case, my ki-d c7ets Yiurt ii1 the morning,
I know he's 1iurL , lie's in pain znd t.hat's obvious,
and I'm s~iCeing there looking ~t biro and, my First,
nn, yeah, I'm gonna care about the ki_d but, shoot,
w hat's

gonila

Happen

Lo

me?

That's

kind

of,

you

000117 ~~_[
Page 36

INTERVIEW WITH DAVID PATKINS
P3-01-118-065

cannot tell me that diciii't go through your mind.

I

d on'r buy that.
PATKINS:

Well, it did go t.lirouyh my mind.

B Af2THOLOM~W :

OK .

PA`PKINS:

then?
But does it Piave to go t.lirough my mired right
It

did

go

through

my

been

I've

mind.

thinking

about that, yeah.
3ARTI30LOMEW:
I

the morning
You said you got up, you told her in
that you woke up at 5:30.

PA'1'ICINS:

I
Uuh, I just guessed. i don't know, I don't know.
just

guessed.

It

was

around

time.

that

she

When

well,
corrected me and said I called her at 6:20,
then

I

to

had

just

back

think

from

there.

It's

within that tune, it's within Lhat time.
BAR1'IIOLOMEW:

Mu-hull (affirmaf eve)

As you ]cnow, tYiat time period

can Have an aLLecC.
(t~llcng in background)
BARTFIOLOMEW:

We'll take a brea]t, al_riPub, David?

M1ISSON:

. . (unintelligible) . .
every

to

right

critical

know

L;rik's
that,

uuh,

and

uuh,

you

Erik

have
is

in

L he

injury is life

You Linde~rstand that?

OK. I, I wanner

condi.tic,n. flied,

threaCen:ing.

father

uuh,

talk t:o you about what: Happened. Arid we're donna qo
a head

and

read

yuu

your.

rights

beet

Lhe

most

000ilB ~~~
INTERVIEW WITH DAVID PATKINS
P3-01-116-065

Page 37

importune thing here is obviously that we need to
]
chow what happened because of poor Lrik. And what
we

might

be

able

to

do

for

him

medically.

You

understand Y_hat?
PATKINS:

I L:old }~oii guys everytliinq.

MASSON:

OIC. Well, maybe there's something that you might've
forc~oLten tYiat could Help us out here.
injur.i.es

axe,

a-re,

are

so

that

we

Again, his

need

Lo

know

everything so that maybe they can make a decision
w hen

it

comes

down

eo

a

certain

treatment

or

something.
PATKINS:

I

told,

I

told

you quys everything.

I

told

you

everything. I told you everything that happened.
MASSON:

Well, let me, let nip go through this again and, and
maybe,

maybe

something

will,

will

memory or something like that, OK?
it',,

it's

£acts.
remain

real

Alright.
silent .

important
You

leave

Ariythiiig

that
the

you

spring

your

Uuh, oUviously
we

get

absolute

say can

used against you in a court of law.

and

all
right

the
Lo
-

will lie

You have the

right Lo talk to a lawyer and have a lawyer present
be Fore and dur:iiig questioriirig. Ii you cannot afford
to

liir-e

a

lawyer.,

orie

will

be

appointed

to

:~

,,~

000133

2
Page:
10/03/02
------------------------------------------------------------------------------People vs. DAVID PATKINS
RIF096844
Case Number
Argument heard By both sides, Matter is submitted.
Motion Granted.
Count 1 reduced to 2nd degree.
Court and Counsel Confer regarding: Jury Instructions.
R.t. g .s ~ r. oo~z~3 R r. sY6
People's Exhibit(s) 4 is/are Withdrawn.
People's exhibit s) 4 returned to the People.
Court and Counsel Confer regarding: Jury Instructions and
lessers.
in
Jury TRIAL IN-PROGRESS is adjourned to 10/07/2002 at 9:30
Department 52.
Defendant ordered to return.
Remains remanded to custody of Riverside Sheriff.
Bail To Remain as fixed.
Defendant to be dressed aut for trial.
Minute Order printed to Robert Presley Detention Center.
**MINUTE ORDER OF COURT PROCEEDING**
Dispo

ESSES
ALPHABETICAL INDEX OF WITN

1

PAGE
2
3
4
5

VOLUME

WITNESSES:
Hearing)
MELISSA BARTHOLOMEW (Miranda
ination By Mr. Hughes
Direct Exam
s
Cross-Examination By Mr. Sach
es
ct Examination By Mr. Hugh
Redire
Sachs
Recross Examination By Mr.

48
65
76
77

I
I
I
I

MARGIE GARIFANO
Hughes
Direct Examination By Mr.
s
Cross-Examination By Mr. Sach
Mr. Hughes
Redirect Examination By
s
Recross Examination By Mr. Sach
Examination By Mr. Hughes
Further Redirect

93
152
170
174
181

I
I
I
I
I

MICHELLE McFARLAND
Direct Examination By Mr. Hughes
Cross-Examination By Mr. Sachs
Redirect Examination By Mr. Hughes
Recross Examination By Mr. Sachs

245
263
275
277

II
II
II
II

GEORGE MASSON
Direct Examination By Mr. Hughes
Cross-Examination By Mr. Sachs
Redirect Examination By Mr. Hughes
Recross Examination By Mr. Sachs

282
287
289
--

II
II
II
II

Rebeca PAINTINI
Direct Examination By Mr. Hughes
Cross-Examination By Mr. Sachs
Redirect Examination By Mr. Hughes
Recross Examination By Mr. Sachs
Further Redirect Examination By Mr. Hughes

319
371
392
397
398

II
II
II
II
II

ANGELA SLAUGHTER, M.D.
Direct Examination By Mr. Hughes
Cross-Examination By Mr. Sachs
Redirect Examination By Mr. Hughes
Recross Examination By Mr. Sachs

294
312
316
--

II
II
II
II

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

ALPHABETICAL INDEX OF WITNESSES

2

(CONTINUED)
VOLUME

3

WITNESSES:

PAGE

4

ALAN SONNE, M.D.
Direct Examination By Mr. Hughes
Cross-Examination By Mr. Sachs
Redirect Examination By Mr. Hughes
Recross Examination By Mr. Sachs

182
196
2~9
--

I
I
I
I

CHARLES CLEMENTS
Direct Examination By Mr. Hughes
Cross-Examination By Mr. Sachs
Redirect Examination By Mr. Hughes
Recross Examination By Mr. Sachs

211
222
225
227

I
I
I
I

MELISSA BARTHOLOMEW
Direct Examination By Mr. Hughes
Cross-Examination By Mr. Sachs

228
238,

I
I

STEVEN TRENKLE, M.D.
Direct Examination By Mr. Hughes
Cross-Examination By Mr. Sachs
Redirect Examination By Mr. Hughes
Recross Examination By Mr. Sachs

402
443
477
484

II
II
II
II

GENEROSO NERY, M.D.
Direct Examination By Mr. Hughes
Cross-Examination By Mr. Sachs

486
--

II
II

JEFFREY EDWARDS
Direct Examination By Mr. Hughes
Cross-Examination By Mr. Sachs
Redirect Examination By Mr. Hughes
Recross Examination By Mr. Sachs

496
508
513
514

II
II
II
II

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1
2
3

photograph, the small one.
MR. HUGHES:

I will do that.

With the Court's permission, what I will do is just

4

go ahead and cut the photograph in half and have it remarked

5

as 29A, just the 1=op picture.

6
7

THE COURT:

The bottom

Miss Rogers can do that.

photograph will bE~ returned to the People as excluded.

8

THE CLERK:

Okay.

9

MR. SACHS:

The only other picture I have, and I guess

10

the Court might have to wait until we actually have testimony

11

from the physician in this, is number 4.

12

picture of Eric's rib cage.

13

positioned the correct way for the Court to look at.

~P.rsY6, ~ T ~~~r~~

14

MR. HUGHES:

15

MR. SACHS:

I guess this is a

I'm not sure it is even

It is.
Apparently shows some kind of bruising or

16

hemorrhaging or something in the rib cage of the child, and it

17

looks like it's a pretty gory picture, to say the least.

18

not necessarily stare how probative it would be for the jury to

19

look at that picture.

2
.0

although the Court hasn't heard the essence of the pathology,

21

if the Court wishes to wait until such time?

22

does concern me.

23

THE COURT:

24

MR. HUGHES:

I'm

I would impose 352, I -- right now,

This picture

Mr. Hughes?
By way of offer of proof, the baby had a

25

rib fracture in the back next to his spine.

26

discovered is during the autopsy, the pathologist sees

27

hemorrhaging and bruising in this area here.

28

matter in the center of the photograph is the baby's spine.

The way it's

The vertical

When the pathologist sees this type of

1
2

hemorrhaging, it alerts him that there is damage to this rib.

3

He then cuts out that section of rib and looks at it under a

4

microscope and finds the fracture.

5

I proposed this photograph, is it is what keys the coroner in

6

that there may well be a rib fracture.

So that's the reason that

7

THE COURT:

Mr. Sachs?

8

MR. SACHS:

I'd submit on that under 352, I'd ask the

9

Court to exclude it.

I don't know how probative it will be
I think it could be

10

for the jury to see this picture.

11

adequately described by the pathologist.

12
13

THE COURT:
this issue.

14
15

I'l1 take the 352 ruling under submission on

And, Mr_ . Hughes, please don't show it to the jury
during opening.

16

MR. HUGHES:

17

MR. SACHS:

I will not.

And I'd also -- perhaps the Court could do

18

the same ruling with respect to photographs 13 and 15.

19

being at the top of the screen and 15 being below.

20

do them separately.

21

written on the right eye, and I don't know exactly what this

22

would show.

23

from this picture, but I think that's pretty prejudicial to

24

have pictures of the child's right eye to have displayed for

25

the jury.

26
27
28

13

I better

One apparently is the right eye.

It's

Perhaps retina hemorrhaging, which I fail to see

THE COURT:

For the record, it appears that the eye has

been -MR. SACHS:

Cut open.

1

THE COURT:

-- sliced in half.

2

MR. SACHS:

Yes.

And the number 15 is virtually the

3

same type of picture with writing on the left eye, apparently

4

also sliced open.

5

So, again, if the Court wishes to defer that that's

6

fine, but at this point, I would ask these pictures not be

7

shown to the jury unless the relevance is clearly tied in by

8

the pathologist.

9

MR. HUGHES:

These are exactly what counsel has

10

described, which is extreme retina hemorrhaging.

11

classic symptom of what Mr. Patkins is accused to having done

12

to his son.

13

photographs that sometimes they have of retina hemorrhaging,

14

which a victim survives, which is by jamming equipment behind

15

the eye and photographing it.

16

retina hemorrhaging, are these photographs.

17

they are offered.

18
19
20
21
22
23

That is a

To my knowledge, we do not have the type of

THE COURT:

What we have to show, the
So that's why

All right.

Same ruling.

Mr. Sachs, I'll take that under

submission at this time.
MR. SACHS:

I think that concludes the objections to any

photographs, Your Honor.
THE COURT:

24

1101(b) evidence.

25

We have the People's motion to admit the

by Mr. Hughes.

26
27
28

And I've reviewed the trial brief submitted

And, Mr. Sachs, would you like to respond?
MR. SACHS:

Just -- well, just briefly, Your Honor.

b asically prepared to submit it.

I'm

I do believe that the -- it

1

is still prejudicial to allow the 1993 incident to be

2

admitted.

3

police, that he dropped the child or the child hit its head on

4

the carpet, should bring up, necessarily, the 1993 incident.

I'm not sure if Mr. Patkins' statements to the

I think it's pretty much common sense that shaking

5

And Mr. Hugries

6

a baby is, in fact, a dangerous condition.

7

seems to believe that because, you know, this incident may

8

10

have happened in '93, that somehow Mr. Patkins would not have
~,
known that it was dangerous to drop a child. I think he
,
.
i,~
admitted to the police if those statements did come in, that

11

he was aware that shaking a child would be dangerous.

12

that's fairly common sense that fathers would know shaking a

13

baby violently would, in fact, be a potentially dangerous

14

situation.

9

15

I think

So to bring up the fact that he pled guilty to an

16

offense of abusing a child in '93, I think, is sort of

17

overkill and extremely prejudicial to Mr. Patkins.

18

preceding a fair trial in the instant case.

19

be difficult for the jury to not regard this as propensity

20

evidence and say, well, if he did it before, he's likely to

21

have done it again and have most of the issues with respect to

22

Mr. Patkins', vis-a-vis, error.

23

happened to Erik with respect to the prior incident involving

24

his son, Jack.

25

with Jack, it would be imposing the fact to that he did the

26

same thing to Erik.

27
28

It is

I think it would

Really be subject to what

I'm thinking the incident being introduced

Beyond that, I would submit it.
352 issue pretty clearly.

I think it's the

THE COURT:

1

Mr. Hughes?

an just
fered for more th
ll, it's being of
MR. HUGHES: We
That's one
is dangerous.
ether or not this
wh
his knowledge of
people, out
d. And that most
it's being offere
of the reasons
on to
s, is not a reas
ow that's dangerou
e, kn
of common knowledg
ative in that
's extremely prob
the evider~ce. It
exclude

2
3
4
5
6

sense.

7
8
9
10
11
12
13
14
15
16

ise scenario
through this prec
one who has been
Some
s far more
bodily injury, ha
ted himself great
has inflic
's not
, gee, we know it
average person that
knowledge than the
ake a
's dangerous to sh
baby, or we know it
good to shake a
sk= f ~~-..~, SZE
He has caused it
s lived it firsthand.
baby. He ha
e,
, rry
ow
It's offered to sh
d for knowledge.
It's offere
firsthand.
to
that his intent is
is shaking the baby,
his intent, when he
.
r
ake or
is was not a mist
if not kill. That th
harm the baby,
~, .
So it
ming to the police.
ich is what he is clai
accident, wh

19

ose reasons.
comes in for all of th
which
issues in the case,
Those a.re the central
uth of
obative as to the tr
r conduct extremely pr
makes his prio

20

.
his claim in this case

17
18

23

t
being very high is no
So the probative value
ice to
by the potential prejud
bstantially outweighed
su
r 1101(b) and
ld be admissible unde
Mr. Patkins. So it shou

24

352.

21
22

25

THE COURT:

rther, Mr. Sachs?
All right, anything fu

26

MR. SACHS:

No, Your Honor.

27
28

evidence, I believe
As far as the 1101(b)
It clearly goes
in this kind of case.
it's highly probative
THE COURT: