(Super. Ct. No. P11CRF0105)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case is not about what defendant Leann Jones did, but rather, what she did not do. Defendant appeals her convictions of child abuse likely to produce great bodily harm or death and personally inflicting great bodily injury on someone under the age of five years. She contends there is not sufficient evidence to support the jury's determination that she willfully placed her baby in a situation where the baby's health was endangered or that she personally inflicted great bodily injury on the baby, and that the court erred in ordering her to pay $4,000 to the public defender for her representation. Finding sufficient evidence to uphold her convictions, we affirm the judgment, but we reverse the attorney fee order because the trial court failed to hold a hearing on defendant's ability to pay, even though defendant's attorney told the court she had no such ability.
FACTUAL AND PROCEDURAL BACKGROUND
On January 13, 2011, defendant and Demetrius Jones took their three-and-one-half-month-old child to Barton Memorial Hospital, where defendant worked. The infant was unresponsive. Defendant told South Lake Tahoe Police Officer John Spaeth that Demetrius had been holding the infant in his arms when he tripped over a baby gate and fell on the infant. Defendant claimed that immediately after the incident, they came to the hospital. During her conversation with the officer, defendant was not emotional or upset. Defendant did not mention the infant had ingested water, been hit in the head with a toy, or been injured a day or two earlier. While Officer Spaeth was interviewing defendant, South Lake Tahoe Police Officer Angela Kallstrom interviewed Demetrius, who gave a similar account of the incident.
Dr. Lance Orr was working on the night of the incident in the Barton Hospital emergency room. He questioned the story about how the injuries occurred because the baby's bruising appeared to be older than defendant and Demetrius claimed. Additionally, lab results showed the baby may have been dehydrated or not had enough to eat. Dr. Orr thought the injuries were consistent with "nonaccidental trauma" or shaken baby syndrome.
The day after the baby was taken to the hospital, Leah Brown, a social worker from El Dorado County Child Protective Services, investigated the family. When asked when the injury occurred, Demetrius told Brown it had happened in the morning. However, defendant immediately interrupted and said that it had happened in the evening, just before they had gone to the hospital.
A couple months after the incident, South Lake Tahoe Police Detective Pierre Herring interviewed defendant. Defendant again claimed Demetrius had tripped over a baby gate and fallen on their child. When confronted with the doctor's statements that her story was not consistent with the baby's injuries, defendant remained silent or reaffirmed her story, claiming "they haven't proven that yet." Defendant explained to Detective Herring that Demetrius took care of the infant during the day while she was at work, and that if he had hurt the baby, he would have told her. Defendant also confirmed that the baby had been healthy and happy before the accident, and did not mention that the baby had not moved, cried, or eaten for two days.
Following his no contest plea in this case, Demetrius provided new information. Since 2008, he had been suffering from paranoia and had told defendant about his problem. Defendant was aware that Demetrius was taking medication that made him sleepy and unable to care for the children. Demetrius thought the infant was possessed by demons because she would talk to him. Demetrius had also told defendant that the government was "mind jacking" him.
Defendant had instructed Demetrius to watch their children while she was at work. Defendant threatened Demetrius that if he left he would never see his kids again. Demetrius told defendant that his sickness was getting worse and he did not think he was safe around the children. Even though he wanted to leave for the children's safety, defendant told Demetrius to stay or he would not see his children anymore.
Demetrius gave a startling account of what actually happened to the infant that likely caused her injuries. Two days before Demetrius and defendant took the baby to the hospital, Demetrius "freaked out" when he noticed the infant was under water in the bathtub. He picked her up and she appeared unconscious, so he shook her and threw her on the bed. She flew across the bed and hit the wall. Demetrius tried to perform CPR, and the baby awoke and started breathing again. Demetrius then placed the infant in her car seat near the heater to warm her. When defendant came home several hours later, Demetrius told her that the infant had swallowed some water, would not eat, and did not look good. Demetrius told defendant that the infant had been submerged under water, and defendant agreed that the infant did not look good.
Defendant did not suggest that they take the infant to the hospital. Instead, she spent her evening eating dinner and watching movies while the infant was in her crib. That night, the baby did not move or make noise, which was not normal for her. The next morning, the baby was not moving or crying, even though she had missed several feedings. Demetrius changed the baby's diaper and she appeared limp and lifeless. In order to hide the baby from public view, defendant suggested that their six-year-old son stay home from school so Demetrius would not have to take the baby out of the house. That day, defendant came home several times to check on the baby. Each time, the baby was not moving, crying, or eating.
At some point later that day, defendant suggested that they concoct a story to tell if they took the baby to the hospital. They made up the story about Demetrius tripping over the baby gate and falling. That night, they watched movies while the baby remained limp and lifeless. When they changed the baby's diaper, there was barely anything in it.
The next morning, defendant checked on the baby and noted that she did not look good. They decided that they would take the baby to the hospital after defendant came home from work, so they could go over their concocted story again. That night, they staged the trip-and-fall event with the six-year-old son watching so that he could corroborate their ...