(Super. Ct. No. 08F08512)
The opinion of the court was delivered by: Hoch , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Kevin Harper, Jr., was convicted by jury of causing his infant son's death by assaulting the child with force likely to produce great bodily injury (Pen. Code, § 273ab, subd. (a))*fn1 and involuntary manslaughter (§ 192, subd. (b)). He was sentenced to an aggregate term of 25 years to life in state prison.
On appeal, defendant asserts: (1) the trial court erroneously denied his motion under Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] and People v. Wheeler (1978) 22 Cal.3d 258 (Batson/Wheeler motion) because the prosecutor used peremptory challenges to remove three prospective jurors on the basis of race; (2) the trial court prejudicially erred by allowing expert testimony on shaken baby syndrome; (3) the trial court prejudicially erred by instructing the jury with CALCRIM No. 362 on consciousness of guilt; and (4) the trial court failed to properly exercise its discretion in sentencing defendant. Defendant's challenge to the expert testimony has been forfeited by his failure to object to this testimony below. His remaining contentions lack merit.*fn2 Accordingly, we affirm the judgment.
In accordance with the standard of review, we view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Vu (2006) 143 Cal.App.4th 1009, 1013.)
In August 2008, defendant drove his infant son Jaden to Mercy San Juan Medical Center. The infant was in cardiac arrest when he arrived. After being resuscitated, he experienced a seizure and was treated with medication. Jaden was then transferred to the Pediatric Intensive Care Unit at UC Davis Children's Hospital. Upon his arrival, Jaden was in a deep coma, his breathing was agonal, his blood pressure was elevated, his anterior fontanelle (i.e., the soft spot at the back of an infant's head) was slightly bulging, and he was continuing to experience involuntary muscle movements from the seizure suffered at Mercy San Juan.
Dr. Robert Pretzlaff, Chief of Pediatric Critical Care Medicine, ordered a CT scan of Jaden's brain, which revealed "early swelling of the brain" often seen "after a variety of injuries, traffic accidents, a severe blow to the brain." The scan also revealed "a significant amount of bleeding around the brain, something called subdural hematoma, so there was blood over the top of the brain." The extent of the bleeding suggested a "shaking injury" as opposed to trauma caused by a localized impact. There was also evidence of petechial hemorrhages (i.e., small ruptured blood vessels) between the gray matter and white matter of the brain, caused by the shifting of these portions of the brain.
A second CT scan performed the following day revealed a greater amount of swelling and a more pronounced "loss of differentiation between the gray and white matter." This indicated to Dr. Pretzlaff that Jaden's injuries were sustained shortly before the infant was brought to Mercy San Juan. Dr. James Brandt, professor of ophthalmology at UC Davis, then examined Jaden's eyes and found "severe retinal hemorrhages in both eyes." These hemorrhages were "at all levels of the retina." Drs. Pretzlaff and Brandt concluded that Jaden's injuries were caused by "nonaccidental trauma" or "shaken baby syndrome."
Jaden died the following day. The autopsy, performed by Dr. Kathleen Enstice, revealed small bruises on Jaden's head, face, left arm, and back. Dr. Enstice noted that "Jaden's brain was extremely swollen, stretching the skull bones." She also noted extensive bleeding across both hemispheres of Jaden's brain and of his optic nerve sheath and retinas. The autopsy also revealed "traumatic axonal injury," which typically occurs when neurons are torn due to rapid acceleration and deceleration of the brain. Bleeding along Jaden's spinal cord and tearing of the muscle and ligaments connecting the base of his skull to his spine indicated to Dr. Enstice that Jaden's neck was repeatedly hyperextended. According to Dr. Enstice, Jaden died of "[b]lunt head and neck trauma" occurring "no more than an hour prior to his arrival" at Mercy San Juan.
Defendant was alone with Jaden for about six hours prior to driving his son to Mercy San Juan. According to his account of the events that led to his son's death, he gave Jaden a bottle of formula, laid the infant down in his crib, and then took a shower. When defendant stepped out of the shower, he heard Jaden crying and walked over to the crib. Jaden was stiff and vomited when defendant picked him up; he then went limp and stopped breathing. Defendant called 911 twice, received a recorded message both times, and drove Jaden to Mercy San Juan.*fn3 This version of events was given to hospital staff at UC Davis Children's Hospital, Jaden's mother, and a sheriff's deputy who responded to the hospital the night Jaden was admitted. However, defendant did not mention to the deputy that Jaden's body was tense when he returned to the crib following his shower. And he did not mention to Jaden's mother that their son had vomited. After defendant was questioned by an investigator sometime following Jaden's admission, defendant told Jaden's mother that "he was playing an airplane game [with Jaden] and maybe he was playing too rough."
At trial, the defense argued that defendant did not assault Jaden, and that the injuries could have been the result of an undiagnosed bleeding disorder that caused spontaneous hemorrhages and swelling in his brain. Dr. Karen Griest testified for the defense in support of this theory. For purposes of this opinion, we need not review her testimony in detail. Suffice it to say that her testimony countered that of Dr. Deborah Stewart who testified generally about shaken baby syndrome and agreed with the conclusion of the treating physicians that Jaden was "the victim of significant abusive head trauma acceleration/deceleration forces to his brain which resulted in fatal injuries."
Defendant contends the trial court should have granted his motion to quash the jury panel because the prosecutor exercised peremptory challenges to excuse three prospective jurors on the basis of race. (People v. Wheeler, supra, 22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129]; Batson v. Kentucky, supra, 476 U.S. 79 [90 L.Ed.2d 69].) We disagree.
"Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the ...