United States District Court, E.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE
CASE ORDER DECLINING ISSUANCE OF CERTIFICATE OF
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
is currently serving a determinate sentence of 12 years for
his conviction of felony child abuse resulting in great
bodily injury. Petitioner has filed the instant habeas action
claiming trial court errors, ineffective assistance of
counsel and due to a claimed lack of sufficient evidence to
sustain the guilty verdict. As discussed below, the Court
finds the claims to be without merit; therefore, the petition
will be DENIED.
was convicted in the Kern County Superior Court on June 5,
2012, of felony child abuse resulting in great bodily injury
(Cal. Penal Code §§ 273a(a), 12022.7(d)).
People v. Yslas, No. F065132, 2014 WL 4923991, at *1
(Cal.Ct.App. 2014). He appealed to the California Court of
Appeal, Fifth Appellate District (“Fifth DCA”),
which affirmed the judgment on October 1, 2014. Id.
Petitioner filed a petition for review in the California
Supreme Court, and the petition was summarily denied on
December 10, 2014. (See Answer, Ex. B.)
December 1, 2015, Petitioner filed the instant petition for
writ of habeas corpus in this Court. (Doc. No. 1). Respondent
filed an answer on April 12, 2016. (Doc. No. 12). Petitioner
filed a traverse to Respondent's answer on June 28, 2016.
(Doc. No. 15.) The parties have consented to the jurisdiction
of the Magistrate Judge pursuant to 28 U.S.C. § 636(c).
(Doc. Nos. 8, 19.)
Court adopts the Statement of Facts in the Fifth DCA's
Leticia [N.2] Yslas and defendant took their 10-month-old
child Nicholas to Ridgecrest Regional Hospital on April 2,
2010. [N.3] Doctors there determined Nicholas was suffering
from severe brain swelling and seizures and had to be
transported by helicopter to Loma Linda University
Children's Hospital. Nicholas underwent extensive
treatment for his injuries, including surgery whereby a
portion of his skull was removed to allow his brain to swell
outside of the cranium. As a result of his injury, Nicholas
has profound brain damage. He suffers from cerebral palsy, no
longer has the ability to crawl, walk, or swallow, is legally
blind, and must be fed through a feeding tube.
[N.2] To avoid confusion we will refer to Leticia Yslas by
her first name. No disrespect is intended.
[N.3] All further references to dates are to 2010 unless
The central issue at trial was the cause of Nicholas's
injuries. The prosecution's theory was that defendant was
the cause of the injuries, through some sort of rapid
acceleration/deceleration force, such as shaking. The defense
argued Nicholas was suffering from bacterial meningitis,
which caused his brain to swell, resulting in the injuries.
Dr. Katherine Ferguson, Nicholas's pediatrician,
testified she had seen the child routinely before his injury.
Nicholas was previously diagnosed with Down syndrome but
appeared to be high functioning. Dr. Ferguson last examined
Nicholas on March 31, two days before his admission to the
hospital. At that time he received various vaccinations,
including the pneumococcal vaccine, which prevents meningitis
and pneumonia. Nicholas did not appear to have any sort of
infections, including meningitis.
On the morning of April 2, Leticia was home with defendant,
Nicholas, and her two-year-old son Louis Jr. Other than being
a little more fussy than usual due to the immunizations he
had received two days earlier, Nicholas was acting normally
that morning. That afternoon, Leticia left the child at home
with defendant and Louis Jr. while she went shopping. She
returned about two hours later. She recalled making a phone
call to defendant to check on the children while she was out,
but she did not attempt to speak to Nicholas on the phone.
When she returned, Nicholas was lying on defendant's
chest with a blanket covering him and appeared to be
Within minutes of Leticia's return home, defendant took
Nicholas to his room and put him in his crib for a nap.
Defendant then ordered a pizza and the two watched a movie.
An hour later, Leticia heard Nicholas making noises in his
room. She was going to get him but did not because defendant
told her to let him sleep. Sometime later, she again heard
Nicholas making noises and went to get him.
Upon entering Nicholas's room, Leticia noticed he was
lying on his stomach. When she rolled him over, she saw he
was shaking, his head was pulled in, and he was stiff.
Additionally, she noticed yellow foamy matter on his bedding.
She immediately screamed for defendant to call 911. Defendant
told her he would not pay for an ambulance and it would also
be faster to just drive to the hospital. They arrived at the
Ridgecrest hospital where Nicholas was examined and
subsequently airlifted to a hospital in Loma Linda. Upon his
arrival there, he was in critical condition.
Leticia drove to Loma Linda while defendant slept. After
arriving, the couple checked into the Ronald McDonald House
but were asked to leave on the evening of April 3d because
Nicholas's injuries were determined to have resulted from
child abuse. Additionally, the couple was informed by medical
staff at the hospital that his injuries were a result of
forced trauma. Defendant was present when this information
The following morning, April 4, Leticia and defendant went
back to the hospital and spoke to Nicholas's nurse.
Leticia overheard defendant asking odd questions.
Nicholas's nurse testified defendant asked her questions
related to causation of the injury. She thought this was odd
as most parents ask about their child's condition or
prospects of recovery. Defendant did not ask those types of
That afternoon, Leticia and defendant left the hospital to
get something to eat. After lunch, defendant dropped off
Leticia at the hospital and said he was going back to the
motel to sleep. Defendant never returned to the hospital.
That afternoon, Deputy Sheriff Caroline Stallings responded
to the hospital to detain defendant. Defendant was not at the
hospital when she arrived, nor was he at any nearby lunch
locations or at his motel.
Nicholas remained in the hospital until some time after June
1. While at the hospital, he had a craniotomy to remove part
of his skull. After being discharged, Nicholas was
transferred to a nursing home for medically fragile children.
He remained there for five months and then went back to the
hospital to have a cranioplasty to reattach the portion of
his skull. That occurred on November 12.
At the time of trial, Nicholas was two and a half years old
and living with his mother. She described his condition as
poor; he suffers from cerebral palsy, he has a gastric
feeding tube due to his inability to swallow, he has a
seizure disorder and muscle spasms, he is legally blind, and
he can neither crawl nor walk.
Detective Ryan Sloan with the Ridgecrest Police Department
was assigned to investigate child abuse relating to Nicholas.
He was initially unsuccessful in locating defendant. On April
5, Sloan began following Christopher Avery, a close friend of
defendant. Sloan followed Avery, who was driving a rental
car, from Ridgecrest to Las Vegas, Nevada. Avery drove to a
home where defendant was located and arrested.
After defendant's arrest, Sloan interviewed him.
Defendant told the officer he and his wife had initially
considered putting Nicholas up for adoption but decided
against it. He claimed his wife continued to bring up the
idea even after they had decided against it. On the day in
question, Leticia went shopping and when she returned
defendant had Nicholas lying on his chest. He put Nicholas in
his crib shortly after Leticia returned. The two watched a
movie and Leticia went to wake the child after about an hour,
but defendant convinced her to let him sleep. When Leticia
ultimately checked on Nicholas, it appeared he was having a
stroke. Defendant immediately drove the family to the
hospital. Over the next few days it became clear in the way
the doctors, staff, and his wife were acting that defendant
was going to be accused of harming Nicholas. Defendant
decided to leave because he feared being jailed.
Regarding Nicholas's injuries, defendant denied ever
harming him. He stated there was a minor incident where
Nicholas fell and bumped his head while Leticia was out, but
that was the only incident. Nicholas had been sitting up with
defendant when Leticia called. Upon hearing his mother's
voice, Nicholas got excited, lunged for the phone, and fell
forward hitting his forehead. He cried for a short time while
defendant soothed him, and then he fell asleep on
defendant's chest. When asked what he thought had
happened to Nicholas, defendant stated, “You know I
asked my wife [if] she hit him on anything. If she dropped
him or anything on accident and she said, ‘No.' So,
alls... I don't have enough information, man. I have no
idea man. I have no idea what happened to my son.”
Dr. Mark Massi, a forensic pediatrician at Loma Linda
University, specializes in determining whether children are
abused. Patients are referred to him by other doctors who
suspect abuse. Dr. Massi reviewed all of Nicholas's
medical records, communicated with Nicholas's primary
care team, and personally examined the child. After reviewing
all of the information, Dr. Massi concluded Nicholas had a
traumatic brain injury and rib fractures. Nicholas received
injuries resulting from a rapid acceleration/deceleration
event, which is consistent with shaken baby syndrome or
abusive head trauma. There are three characteristics of this
type of trauma: brain injury, subdural hemorrhage, and
retinal bleeding. Each of these conditions was present in
Nicholas. Nicholas suffered a subdural hematoma, retinal
hemorrhage in both eyes, and injury to the frontal, parietal,
and occipital lobes of his brain. The doctor also noted
Nicholas had evidence of a possible healing rib fracture,
which would also be indicative of abuse.
In Dr. Massi's opinion, the number one cause of a
subdural hematoma is trauma. While an infection of the brain,
such as encephalitis or bacterial meningitis, could cause a
subdural hematoma, it is unlikely without the presence of an
abscess. Nicholas did not have an abscess. Likewise, the type
of retinal hemorrhaging present in the child, which occurred
in multiple layers of both retinas, indicated a traumatic
cause for the bleeding rather than an underlying medical
condition. While bacterial meningitis can also cause retinal
hemorrhage, the bleeding tends to be in a pattern different
from that present in Nicholas. Rather, the hemorrhaging in
the child's retinas was consistent with a rapid
Furthermore, a rapid acceleration/deceleration event causes a
diffuse brain injury as opposed to an injury focused on a
certain area. Nicholas's injury affected multiple areas
of the brain, indicating it was consistent with
acceleration/deceleration. In a situation where the brain is
deprived of oxygen-for example, through the formation of a
blood clot-then the entire brain will show damage. Here,
Nicholas had widespread injury to his brain, indicating a
result of acceleration/deceleration. The most severe damage
extended from the right frontal lobe to the left parietal
lobe. Nicholas's medical records indicated he had a
clotting disorder, which increased his risk of forming blood
clots. However, Dr. Massi noted the child suffered from a
subdural hematoma meaning he was having bleeding, not
clotting, in the brain. Furthermore, examination of
Nicholas's arteries in his brain did not reveal any sign
of a blood clot.
Due to his injury, Nicholas had to have a craniectomy, a
procedure where part of the skull is removed to allow the
brain to swell and attempt to heal.
X-rays taken on April 3 and repeated on April 28 showed
evidence of fractures to Nicholas's left sixth and
seventh rib. Doctors did not notice the rib fractures in the
earlier X-ray, but upon reexamination they concluded it
contained a possible fracture. It is not uncommon for a
hairline fracture to be initially difficult to detect, which
is why X-rays are later repeated. If there is a fracture,
there will be evidence of the healing process in later
X-rays. It takes four to six weeks for the healing process.
The type of rib fractures suffered by Nicholas usually result
from squeezing or compressing the ribs in a front to back
Medical records from when Nicholas was initially brought to
the Ridgecrest hospital stated he had no overt signs of
infection. Nicholas had an elevated white blood-cell count as
well as elevated C-reactive protein and glucose levels, all
of which could indicate an infection but were also not
uncommon for trauma or inflammation. Various laboratory tests
done to determine whether the child ever had an infection of
the brain were negative. The tests were performed after
antibiotics had been administered, however, the tests showed
no indication of bacteria, including bacteria killed from the
There were no obvious signs of trauma to Nicholas's head
such as bruising or abrasions. In Dr. Massi's opinion,
Nicholas's injuries-including the subdural hemorrhaging,
the retinal hemorrhaging, brain injury, and fractured ribs-
indicated he suffered nonaccidental trauma. The doctor could
not say precisely how the injuries occurred, but they were
consistent with a rapid acceleration/deceleration such as
violent shaking. Dr. Massi conceded there are a small
minority of doctors who do not believe in the concept of
shaken baby syndrome.
Nicholas's injuries left him severely brain damaged.
Brain tissue does not regenerate and it is unlikely any lost
function due to the injury will return after the injury. As a
result of his injuries, Nicholas was legally blind, could not
swallow, had to be fed through a feeding tube, could not
crawl or walk, and suffered from cerebral palsy and seizures.
Defendant testified he lived in Ridgecrest with his wife and
two children at the time of Nicholas's injury. He had a
form of arthritis affecting his entire body that made it
difficult to use his hands. On the day in question, defendant
was home alone with his two children while his wife was out
doing some shopping. Louis Jr. was napping and Nicholas sat
in a jumper chair while defendant was painting a screen door.
After he finished painting, defendant played with Nicholas.
At one point he received a call from his wife. When he put
the phone on speaker, Nicholas reached out to grab the phone
and fell over, hitting his head. He cried for a short time
but appeared fine, and defendant held him until Nicholas fell
Leticia arrived home about 15 to 20 minutes later and
defendant was still holding Nicholas, getting him to sleep
for his nap. While Nicholas was asleep, defendant put him in
his crib. Defendant watched a movie with his wife and ordered
pizza. Leticia noticed Nicholas had been asleep longer than
usual and wanted to check on him, but defendant convinced her
to let him sleep. After the movie was over, Leticia checked
on Nicholas and began screaming. Defendant ran in and saw the
child's arm was stiff and his head was limp. He picked up
Nicholas and put him in the carrier to take him to the
hospital. Leticia told defendant to call 911 but defendant
said he would take them to the hospital because it was so
close. While Nicholas was being attended to at the hospital,
defendant left to drop off his other son and then returned.
Later that night, a police officer arrived and interviewed
defendant and his wife separately; defendant told the officer
what had happened that day.
Defendant and his wife were informed Nicholas would be
airlifted to a hospital in Loma Linda. They decided to drive
down there as well. Before they left, officers asked if they
could go to defendant's home to take photographs, and
defendant agreed. Defendant took a shower while his wife
gathered their belongings to take with them to Loma Linda.
They arrived at Loma Linda late that night and were up most
of the night receiving updates from the doctors. In the
morning they checked into the Ronald McDonald House but were
asked to leave later that day because the doctors suspected
child abuse. Subsequently, defendant felt the staff at the
hospital was treating him differently. Defendant checked into
a motel with his wife for the night. However, defendant did
not get any sleep as the hospital called him every hour to
get consent to administer medications.
Defendant woke his wife about 5:00 a.m. the following morning
because he had to get some sleep. At this point it was April
4. Leticia came back to the motel about 10:00 a.m. and woke
defendant by slamming the door and asking what he did to
their son. They went back to the hospital and a social worker
wanted to speak with defendant. He said he had “nothing
to say to her.” Defendant wrote down a series of
questions for the doctor because he did not know what had
happened to his son. Then he and his wife went to get lunch
and he told his wife he was leaving. He took his wife to the
bank, got her some money, and dropped her off at the
Defendant started driving home but Leticia called and put on
the social worker, who was rude to him. Thinking the police
would be waiting for him at home, defendant decided to go to
a friend's house in Las Vegas. Defendant contacted Avery
and asked him to bring him clothes and money. Avery also told
defendant his grandmother would contact an attorney for him.
The next day defendant had contact with an attorney who said
he would check into the situation for him. Later that night
Avery arrived, followed shortly thereafter by the police who
arrested defendant. At the time defendant was arrested, he
was not aware there was a warrant out for his arrest. The
attorney had told him there were no pending charges.
Defendant denied doing anything to injure Nicholas.
Defendant admitted he never called the hospital to get
information on his son's condition after he fled. Rather,
he claimed he got information regarding Nicholas's
condition through other sources.
Dr. Steven Gabaeff is a clinical forensic medicine physician.
Clinical forensic medicine is the practice of analyzing
medical findings as they relate to law. Dr. Gabaeff is
familiar with shaken baby syndrome and believes the theory
has been disproved. He does not believe a human can shake a
baby with enough force to cause severe injuries.
Additionally, two of the three characteristics of shaken baby
syndrome are subdural hematoma and retinal hemorrhaging,
which can have numerous causes.
After reviewing Nicholas's medical records, Dr. Gabaeff
opined the child had meningitis when he was seen at the
hospital on April 2 and that he had been suffering from it
for a few days prior. He believed Nicholas's laboratory
results were consistent with infection. He opined the
negative test on Nicholas's spinal fluid was useless as
the test was taken after the child had received five days of
very high-dose antibiotics. He also noted the doctors at both
the Ridgecrest and Loma Linda hospitals were treating
Nicholas for meningitis.
Due to Nicholas's clotting disorder, he was at a higher
risk of developing a blood clot. Furthermore, Dr. Gabaeff
believed Nicholas had formed a blood clot in his head that
deprived his brain of oxygen, causing massive parts of his
brain to die. The way the child's brain tissue died was
inconsistent with an occurrence of acceleration/deceleration
but consistent with the brain not receiving blood flow due to
a blood clot. Dr. Gabaeff believed there was a test that
could have been utilized to establish the presence or absence
of a blood clot, however, the doctors never performed the
test. Moreover, Nicholas showed no sign of any neck injury,
which in his mind ruled out any type of shaking injury.
Dr. Gabaeff noted intracranial pressure can cause retinal
hemorrhaging, so Nicholas's brain swelling could have
caused his hemorrhaging. According to Dr. Gabaeff, the first
X-ray to note a rib fracture was taken about 30 days after
Nicholas was taken to the hospital. He opined the initial
X-rays were normal, and the report noting a rib fracture in
the first X-ray was an addendum made after the subsequent
X-rays were taken. Thus, he concluded the initial finding of
no fracture was more accurate.
Dr. Gabaeff admitted he misinterpreted a test as being
consistent with a clot when the report actually stated there
was normal blood flow. He also discounted the evidence of the
rib fracture because it had occurred six to eight weeks
prior. Therefore, he did not find it relevant. Dr. Gabaeff
admitted meningitis does not cause rib fractures. He also
noted he had never examined Nicholas.
John Tello is an attorney who was retained by defendant in
April of 2010. He spoke to defendant on April 5 and, after an
inquiry, informed him there were no current charges pending
against him. He also had not located any outstanding warrants
for defendant's arrest and relayed this information to
Yslas, 2014 WL 4923991, at *1-6.
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution, laws, or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 n. 7 (2000). Petitioner asserts that he
suffered violations of his rights as guaranteed by the United
States Constitution. The challenged conviction arises out of
the Kern County Superior Court, which is located within the
jurisdiction of this court. 28 U.S.C. § 2254(a); 28
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which applies to all petitions for writ of habeas corpus
filed after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997) (holding the AEDPA only applicable to cases filed
after statute's enactment). The instant petition was
filed after the enactment of the AEDPA and is therefore
governed by its provisions.
Legal Standard of Review
petition for writ of habeas corpus under 28 U.S.C. §
2254(d) will not be granted unless the petitioner can show
that the state court's adjudication of his claim: (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003); Williams, 529 U.S. at 412-413.
court decision is “contrary to” clearly
established federal law “if it applies a rule that
contradicts the governing law set forth in [the Supreme
Court's] cases, or “if it confronts a set of facts
that is materially indistinguishable from a [Supreme Court]
decision but reaches a different result.” Brown v.
Payton, 544 U.S. 133, 141 (2005) (citing
Williams, 529 U.S. at 405-406).
Harrington v. Richter, 562 U.S. 86, 101 (2011), the
U.S. Supreme Court explained that an “unreasonable
application” of federal law is an objective test that
turns on “whether it is possible that fairminded
jurists could disagree” that the state court decision
meets the standards set forth in the AEDPA. The Supreme Court
has “said time and again that ‘an unreasonable
application of federal law is different from an incorrect
application of federal law.'” Cullen v.
Pinholster, 563 U.S. 170, 203 (2011). Thus, a state
prisoner seeking a writ of habeas corpus from a federal court
“must show that the state court's ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility of
fairminded disagreement.” Harrington, 562 U.S.
second prong pertains to state court decisions based on
factual findings. Davis v. Woodford, 384 F.3d 628,
637 (9th Cir. 2003) (citing Miller-El v. Cockrell,
537 U.S. 322 (2003)). Under § 2254(d)(2), a federal
court may grant habeas relief if a state court's
adjudication of the petitioner's claims “resulted
in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” Wiggins v. Smith, 539 U.S.
510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484,
1500 (9th Cir. 1997). A state court's factual finding is
unreasonable when it is “so clearly incorrect that it
would not be debatable among reasonable jurists.”
Jeffries, 114 F.3d at 1500; see Taylor v.
Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004),
cert.denied, Maddox v. Taylor, 543 U.S.
determine whether habeas relief is available under §
2254(d), the federal court looks to the last reasoned state
court decision as the basis of the state court's
decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803
(1991); Robinson v. Ignacio, 360 F.3d 1044, 1055
(9th Cir. 2004). “[A]lthough we independently review
the record, we still defer to the state court's ultimate
decisions.” Pirtle v. Morgan, 313 F.3d 1160,
1167 (9th Cir. 2002).
prejudicial impact of any constitutional error is assessed by
asking whether the error had “a substantial and
injurious effect or influence in determining the jury's
verdict.” Brecht v. Abrahamson, 507 U.S. 619,
623 (1993); see also Fry v. Pliler, 551 U.S. 112,
119-120 (2007) (holding that the Brecht standard