United States District Court, E.D. California
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DOC. 32)
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
Jesus
Flores asserts that his constitutional rights were violated
by the City of Bakersfield and Officer Joseph Galland through
Plaintiff's arrest, incarceration, and prosecution for
child abuse crimes. In addition, Plaintiff asserts the
defendants are liable for interference with his familial
relationship with his son, and violations of California tort
law for false arrest/imprisonment, negligence, and infliction
of emotional distress. (Doc. 17)
Defendants
contend Plaintiff is unable to succeed on his claims and seek
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. (Doc. 32) Plaintiff filed his opposition to
the motion on November 11, 2019 (Doc. 38), and a corrected
memorandum on November 21, 2019. (Doc. 43) Defendants filed
their brief in reply on November 27, 2019. (Doc. 44) For the
following reasons, the motion for summary judgment is
GRANTED.
I.
Background and Undisputed Material
Facts[1]
On May
21, 2015, at approximately 4:14 p.m., Bakersfield Police
Officer Helmuth Achtmann was dispatched to 8709 Domingo
Street, to assist with medical aid for a two-month-old boy,
“M.F.” (UMF 1) hen Achtmann arrived at the
residence, “M.F. was en route to Bakersfield Memorial
Hospital via Hall Ambulance.” (UMF 2)
A.
Investigation and Police Report by Galland
Detective
Joseph Galland was advised of a possible child abuse incident
and informed the baby was at Memorial Hospital approximately
an hour after the initial dispatch. (UMF 3) Galland
investigated the incident and “prepared a report
detailing his investigation.” (UMF 4) In the report,
Galland indicated that upon arrival at Bakersfield Memorial
Hospital, he learned M.F. had been placed on a ventilator and
was “in a medically induced coma to stabilize
him.” (DSF 1) Galland reported he spoke first with Dr.
Burny, a pediatric specialist, and then Dr. Wade Naven, an
emergency room physician who was also the attending physician
at the time. (DSF 2) Dr. Naven was a mandatory reporter, and
indicated that when he “first saw the patient, ”
there was “enough worry to call CPS to call the
officers.” (Doc. 43-4 at 27, Depo. 67:18-23) He was
unable to recall whether he called CPS himself or whether he
instructed someone to do so. (Id. at 28, Depo.
86:2-7)
Dr.
Naven informed Galland that “he did not believe the
bruising on M.F.'s cheeks was caused by CPR.” (UMF
5) Galland noted in the report that Dr. Naven advised him
“M.F. had injuries to his brain, ” and “Dr.
Naven was very worried that M.F. was the victim of child
abuse.” (DSF 3) Galland also indicated in his report
that he “asked Dr. Naven how recent the acute brain
injuries had been caused and Dr. Naven stated he believed the
injuries were no more than two hours old.” (DSF 7) The
same day, Galland placed an investigative hold on M.F.
“and placed him into protective custody” at
Memorial Hospital. (Doc. 38-5 at 74-75, Galland Depo.
142:8-143:10) This hold prevented Flores from having contact
with the child. (See Doc. 38-5 at 75, Galland Depo.
143:7-16)
Galland
took photographs of M.F.'s face that “depict[ed]
bruising on M.F.'s left and right cheeks.” (DSF 10)
After taking these photographs, Galland interviewed Sara
Guzman, M.F.'s mother, at the hospital. (UMF 6; see
also Doc. 36-2 at 2, Galland Decl. ¶ 6) Ms. Guzman
informed Galland that “M.F. had no medical problems or
allergies that she was aware of and had been seen about a
month earlier for a checkup.” (DSF 11) Galland inquired
about M.F.'s schedule, and Ms. Guzman reported that
“she and her mother, aunt, and cousins had left the
house around 2 p.m. to get a haircut and look at a gym
memberships, leaving M.F. alone with Plaintiff.”
(Id.) She reported they returned around 3:00 or 3:15
p.m., but “left to go to the Farmer's Market
…, again leaving M.F. alone with Plaintiff Jesus
Flores.” (Id.) Ms. Guzman stated Flores
“called her while she was at the Farmer's Market
and said ‘the baby's not breathing, ” and
“[s]he directed him to call 911.” (UMF 11)
Galland “obtained a medical release for M.F.'s
medical records from Bakersfield Memorial Hospital from Ms.
Guzman.” (UMF 7)
Galland
re-contacted Dr. Naven, who stated M.F. would be transferred
to Valley Children's Hospital. (DSF 12; Doc. 32-6 at 2,
Galland Decl. ¶ 6) Dr. Naven gave Galland the radiology
report and showed him the CT scan, which depicted
“multiple hematomas.” DSF 4; see also
Doc. 32-6 at 2, ¶6) Dr. Naven felt even a
‘non-medical person could see' that it was not
normal.” (Id.) Dr. Naven diagnosed M.F. with:
“(1) Subdural hematoma; (2) Evaluate non-accidental
trauma; and (3) Respiratory alkalosis with metabolic
acidosis.” (DSF 6; see also Doc. 32-13 at 31)
In addition, Dr. Naven noted there were “multiple
subdural hematomas, the majority of which contain acute
hemorrhage mixed with additional hemorrhage of varying
ages.” (Id.; see also Doc. 32-13 at
30-31) In his report, Galland noted that Dr. Naven opined
“M.F. had a reasonable chance of survival but indicated
he thought there was a high probability the child would
suffer significant permanent brain damage as a result of the
injuries.” (DSF 12) Galland also reported: “I
asked Dr. Naven how recent the acute brain injuries had been
caused and he stated he believed the injuries were no more
than 2 hours old.” (Doc. 32-12 at 14) Flores contends
there is a dispute about whether Dr. Naven identified this
two-hour time frame.[2] (See Doc. 43-2 at 4-5)
Following
the second conversation with Dr. Naven, Galland
“reached out to Detective McAfee, who was at the
subject residence and who was going to return to the Police
Department to author a search warrant.” (DSF 13;
see also Doc. 32-6 at 3, Galland Decl. ¶ 8)
Flores was transported to the Bakersfield Police Department,
and Ms. Guzman agreed to meet at the department. (Doc. 32-6
at 3, ¶¶ 7-8; see also DSF 13)
Detectives
Galland and Davenport “proceeded to interview the
family/witnesses including: (1) Mariana Ramirez, the aunt of
Sara Guzman; (2) Araceli Reyes, the daughter of Mariana
Ramirez; (3) Jose Mendez, M.F.'s grandfather; (4)
Christopher Guzman, Sara Guzman's brother; (5) Geneveva
Ramirez, Sara Guzman's mother; (6) Sara Guzman; and (7)
Jesus Flores.” (DSF 14) Prior to the interviews of Ms.
Guzman and Flores, “Miranda rights were
explained and waived.” (DSF 14)
Galland
inquired about the bruises on M.F.'s face and noted some
of the relatives reported observing bruises on both of
M.F.'s cheeks “before they left the
residence.” (DSF 19) “Ms. Guzman indicated she
recalled seeing them on Monday morning but had no explanation
as to what caused them.” (Id.) Plaintiff told
the detectives he saw the bruises “on Sunday night and
had also seen red marks in the white portions of M.F.'s
eyes.” (Id.) “To Detective Galland, this
meant the bruises preexisted the CPR that was performed
earlier in the day.” (Id.)
During
the interviews, “Galland learned that Jesus Flores was
alone with M.F. from approximately 2 p.m. to 3 p.m. or 3:15
p.m., and again from approximately 3:40 p.m. or 3:45 p.m.
until the time that the Fire Department arrived around 4:20
p.m.” (DSF 17) Jose Mendez stated during his interview
that “Jesus Flores did not take very good care of the
baby because he was always busy playing video games and that
he had observed Jesus Flores lose his temper when M.F. was
fussy and that Jesus Flores and yelled at M.F. so loudly that
the child became startled.” (DSF 18)
The
interview of Plaintiff began at approximately 11:00 p.m. on
May 21, 2015. (Doc. 32-6 at 1, Galland Decl. ¶10(g))
Prior to the interview, “Miranda rights were
explained and waived.” (DSF 14) Flores reported M.F.
had been “really fussy” that day, and
“admitted that on the day of the incident he got
frustrated because he could not seem to make the baby stop
crying.” (DSF 23; see also Doc. 32-22 at 95,
Transcr. 93:8-10) Flores said this was frustrating
“because he was supposed to be playing a live stream
video game at 1 p.m. but the baby was still fussy.”
(DSF 23)
Flores
recounted that at approximately 1 p.m., he “took M.F.
outside to rock him.” (DSF 11; see also Doc.
32-22 at 95, Transcr. 93:8-10) Flores said he gave M.F. a
shower, changed him, and made a bottle; and M.F. then took a
nap. (DSF 11) He reported that after all the relatives
returned and left again, M.F. was in his bassinet sleeping
when he started coughing and began choking. (Id.)
Flores noticed M.F. stopped breathing, and said he picked up
M.F., who started to breathe again and then stopped.
(Id.) Flores said he went to the shower and splashed
some water on M.F.'s face, at which point M.F. seemed to
wake up but lost consciousness. (Id.) Flores stated
he called 911, and began performing CPR. (Id.) He
stated he took medication for anxiety and his heart was
“still racing” at the time of the interview.
(Doc. 32-22 at 105, Transcr. 103:3-8)
Flores
contends the officers used “sophisticated techniques of
psychological manipulation, ” and engaged in a
“psychologically coercive interrogation” that
cause him “to become confused, come to doubt himself,
and speculate that he might have shaken the baby too
hard.” (Doc. 43-1 at 12, 14) Flores asserts that
“the officers implied [he] would receive
‘forgiveness,' and thus more lenient treatment, if
he stopped denying, ” stating:
For example, the officers told Mr. Flores, “What people
don't understand is when somebody
doesn't…stand up for and say what they did was
wrong when they mess up, okay. People are very
forgiving when people tell the truth and admit they
made a mistake, okay” (Interrogation Transcr.,
89:18-25, emphasis added). And again: “We understand
accidents happen, okay. But if you don't own up to it,
there is no-there is no getting past it. There is no
forgiveness” (Interrogation Transcr.,
98:10-13, emphasis added).
(Doc. 43-1 at 13) In addition, Flores contends the officers
made statements such as there are “only a couple of
ways that babies of that age end up with bleeding brains,
” but Galland later admitted, “[t]hat doesn't
necessarily mean it's true.” (Id. at 14,
quoting Galland Depo. 90:18-24, 95:5-8)
During
the interview, “Flores was given a doll and asked to
demonstrate how he shook M.F.” (DSF 24) “Galland
observed Mr. Flores start as though he was rocking the baby
in his lap and then he accelerated and showed a more violent
shaking motion.” (DSF 25) “Based on Detective
Galland's observations, as well as his education,
training, and experience, he knew that the doll was not that
heavy and so it took a significant amount of energy to make
the doll's head move.” (Id.) Flores
demonstrated how he rocked M.F. while outside and said:
“I was like this. I don't remember, like, if I was
going hard or if I was going soft, or if you know, it
happened at that time. Like, if I did it, I'm --I'm
the worst -- ” (Doc. 32-22 at 145, Transcr. 143:4-8)
The officers asked Flores to demonstrate the hardest shake
Flores thought he could give M.F., which Flores did.
(Id., 143:9-14) Flores again repeated:
I was outside, and then I was like this, but I don't know
if it was, like, a hard shake. I don't remember if it was
hard shake, if it was a little shake, a medium shake, if he
was hitting his - his face against my chest.
(Doc. 32-22, Transcr. 145:8-12) As the questioning continued,
the following statements were made:
Flores: I didn't shake my kid violently. I didn't
say, “Shut the hell up.” Speaker No. 2: Okay.
Flores: I mean, I might have gotten a little frustrated and
been, like, “calm down” or something, you know,
like -- Speaker No. 2: Okay.
Flores: -- and maybe then I shook him a little too hard and
-- Speaker No. 1: Too hard.
Flores: Maybe he hit his brain or something -- Speaker No. 2:
Okay.
Flores: But that wasn't my intention.
(Doc. 32-22, Transcr. 148:18-149:6) Towards the end of the
questioning, Flores stated: “I'll admit - I'll
admit that the only time I actually moved him hard was when I
was outside on the patio.” (Id., Transcr.
150:18-20) He repeated that he “didn't know [he]
was shaking him too hard.” (Id., Transcr.
150:18-20) Further, Flores stated:
Did I mean to shake him -- like, even if I did shake him
hard, which I don't remember, because I had so much
things going on. I had this stream that I was supposed to
start and I was late. I had to feed him. I changed his poopy
big old diaper that like weighs five pounds.
He was being fussy still so I tried feeding him. He
didn't eat. I took him outside.
He calmed down for a little bit and then he just started
being fussy again and I didn't know what was wrong with
him. I did, you know, try to comfort him and stuff, but I
didn't know if I was doing it too hard. And if I did, it
wasn't on purpose. I wasn't. And I hate myself for
what I did. I would never hurt my kid. That baby is my life.
(Doc. 32-22 at 154-55, Transcr. 153:2-15) Galland then
suspended the interview to consult with Sergeant Burdick and
an on-scene social worker. (DSF 27) “Galland made the
decision not to arrest anyone based on a lack of updated
information from Children's Hospital.”
(Id.) The interview with Flores lasted for 85
minutes. (UMF 12)
M.F.
was transferred to Valley Children's Hospital.
(See UMF 13) On May 22, 2015, Galland received
medical reports from the hospital. (Id.) The reports
Galland received indicated “a bone scan had been
conducted which showed several fractures to M.F.'s left
humerus and both of his femurs, as well as a possible
fracture to his left ulna.” (DSF 28) M.F.'s
injuries were classified as “non accidental
trauma.” (Id.) In addition, “an MRI
conducted by Valley Children's Hospital showed several
brain injuries and was characterized as “non accidental
trauma.” (Id.) This information was later
detailed in Galland's report. (Id.)
The
same day, Galland spoke with Dr. Phillip Hyden, a
board-certified child abuse pediatrician, who was also the
Medical Director of The Guilds Child Abuse Prevention and
Treatment Center at Valley Children's Hospital. (DSF 29)
The Pediatric Intensive Care Unit had called Dr. Hyden to
come and determine if M.F.'s injuries, and any further
injuries found, were the result of non-accidental trauma.
(Id.; see also Doc. 32-29 at 3, Hyden Depo.
18:8-12) Galland wrote in his report:
I spoke briefly with Dr. Hyden regarding the case. He
indicated there were more tests to be conducted, and he had
not had a chance to review all of the case files, but what he
had seen to this point was clearly indicative as child abuse.
Dr. Hyden and I made arrangements to speak the following week
once more medical tests had been conducted and Dr. Hyden had
a chance to review all of the documentation.
(Doc. 32-12 at 30) At his deposition in 2019, Dr. Hyden was
unable to recall whether his first conversation with law
enforcement in the case occurred on May 22, 2015. (Doc. 32-29
at 30, Depo. 96:5-8) However, Dr. Hyden acknowledged his
notes indicated that he was informed: “Law enforcement
had the father reenact the event with a doll, and the
observation was that the father was very rough with the doll
and the rocking was actually shaking with the head and neck
being obviously affected by the violent movements.”
(Id. at 19-20, Depo. 66:23- 67:9) Dr. Hyden
testified that whether this information was true or not
“would not change [his] opinion, because even though
… histories are important, [he] can't assume
they're true or false.” (Id. at 21, Depo.
68:2-4) In addition, Dr. Hyden testified that the discussion
with Galland played no role in the physician's conclusion
that M.F. was the victim of non-accidental, abusive head
trauma. (Id. at 41, Depo. 110:13-18)
Over
the weekend, “Galland was advised that M.F.'s
condition had worsened and that M.F. had numerous seizures
and had been placed on seizure medication.” (UMF 14) In
addition, Galland was informed that M.F. “remained on a
ventilator.” (Id.) On May 25, 2015, Galland
was notified by Valley Children's Hospital that an eye
exam revealed M.F. had “numerous retinal hemorrhages
and … had likely suffered severe irreversible brain
damage.” (UMF 15) These updates were detailed in
Galland's report. (UMF 14, 15)
Genoveva
Ramirez contacted Galland on May 26, 2015, indicating that
“she found another photograph, which … showed a
broken blood vessel in M.F.'s left eye.” (UMF 16)
Ms. Ramirez estimated the photo was taken on May 14, 2015.
(Id.) Galland “asked for a copy of the photo
and also asked to speak with Sara Guzman again.” (UMF
17) Ms. Ramirez and Ms. Guzman went to the police department
at about 3:00 p.m. that day, and Ms. Ramirez consented to
Galland searching her phone, which was given to the computer
forensics section to download photographs. (UMF 18; see
also Doc. 32-12 at 31)
Galland
began a third discussion with Ms. Guzman at 3:19 p.m. on May
26, after again advising Ms. Guzman of her Miranda
rights. (DSF 30) “Galland inquired further with Ms.
Guzman about whether or not Jesus Flores was ever alone with
M.F.” (DSF 31) “Ms. Guzman confirmed that Mr.
Flores was alone with M.F. two times a week.”
(Id.) When Galland asked who else could have done
this, Ms. Guzman responded that she did not know.
(Id.) She “ruled out her father as causing
these problems and expressed concern she may have injured
M.F. by picking him up by the arms.” (DSF 32) “In
addition, Ms. Guzman told Detective Galland that Jesus Flores
told her that during the time he was taking care of M.F., and
during the time [M.F.] was in respiratory distress, that
Jesus Flores had anxiety attacks and blacked out.” (DSF
33) Reviewing the events of May 21, Ms. Guzman reported
Flores was also alone with M.F. when she and her mother were
making lunch. (DSF 34) She told Galland that when M.F. was
fussy, Plaintiff “usually hand[ed] him off, ” but
she “did not know that [Plaintiff] did when he was
unable to hand [M.F.] off.” (DSF 35)
Galland
and Dr. Hyden spoke later in the afternoon on May 26, 2015.
(Doc. 32-6 at 6, Galland Decl. ¶ 16) According to
Galland, Dr. Hyden stated “he was still in the process
of reviewing medical records and had not formed his formal
opinion, but the injuries that he had seen and the documents
strongly indicated that [M.F.] had been abused, and that he
had been abused on previous occasions as well.” (Doc.
32-12 at 31; see also Doc. 32-6 at 6, ¶ 16)
Galland indicated in his report: “Dr. Hyden stated that
based on the injuries he had seen he would state that it was
highly likely that the brain injury which caused [M.F.] to
stop breathing likely occurred no more than ten minutes
before [M.F.] stopped breathing and possibly immediately
after the injury occurred.” (Id. at 32; DSF
37) The only person alone with M.F. during the window of
time-as identified in Galland's report -was Plaintiff.
(DSF 38)
Dr.
Hyden later stated the information in Galland's report
was incorrect, because Dr. Hyden did not “use exact
numbers” and “would never say 10 minutes.”
(Doc. 38-7 at 20, Hyden Depo. 43:19-23) Dr. Hyden testified,
“I would have said possibly immediately, but I
wouldn't have said a time, 10 minutes.”
(Id. at 22, Hyden Depo. 45:11-16) When
Plaintiff's counsel questioned “why [Dr. Hyden] did
not tell Sgt. Galland 10 minutes, ” Dr. Hyden stated:
I would never say 10 minutes, because that's 600 seconds
and I don't know if it's 600 seconds. I just know
that it's almost immediate. I don't have a stopwatch.
I can't predict exactly the time. But I know it
doesn't take a long period of time after a severe event
like this to cause a child to become unresponsive. It would
be almost immediate is what I more than likely told him. I
just don't recall.
(Doc. 32-29 at 25-26, Hyden Depo. 78:21- 79:3)
On May
27 and 28, 2015, “Galland received updates from medical
social workers and nurses at Valley Children's
Hospital.” (DSF 39; Doc. 43-2 at 28) Galland was
informed that Ms. Guzman claimed “she believed her
mother, Genoveva Ramirez, had caused M.F.'s
injuries.” (Id.) “[B]ased on the
timeline provided by Dr. Hyden … Galland did not
believe Ms. Ramirez was responsible as the only person with
[M.F.] 15 minutes prior to his respiratory distress was Jesus
Flores.” (Id.) In addition, Galland noted that
“the fact that Ms. Guzman and her mother picked M.F. up
by the arms did not explain the fractures to M.F.'s
femurs.” (Id.)
Flores
was taken into custody on May 29, 2015, at approximately 2:50
p.m., and transported to the Bakersfield Police Department.
(DSF 40; Doc. 43-2 at 29) Flores was again advised of his
Miranda rights. (Id.) During the interview,
Galland advised Plaintiff that the injuries suffered to
M.F.'s brain, which caused M.F.'s respiratory
distress, “had likely happened 10 to 15 minutes prior
to when M.F. stopped breathing.” (DSF 41; Doc. 43-2 at
29) “Flores denied shaking M.F. and just said he had
rocked him hard, but never shook him.” (Id.)
“Galland also showed [Plaintiff] the picture that
Genoveva Ramirez had provided depicting the obvious
hemorrhage in M.F.'s eye and advised [him] that Ms.
Ramirez could not have caused it because she had not been at
the residence for a week.” (Id.) “Flores
said if he had done this, even by accident, then he should be
taken to jail.” (Id.) At the end of the
interview, Plaintiff was arrested for: (1) child abuse
causing significant brain injury or paralysis; (2) willful
harm or injury to a child in violation of Penal Code 273a(a);
and (3) assault resulting in great bodily harm, in violation
of Penal Code 245(a)(4). (Doc. 32-6 at 7, Galland Decl.
¶ 18; see also Doc. 32-12 at 33)
On May
29, 2015, at approximately 4:22 p.m., Galland submitted the
Kern County Arietis form, including the following statement:
On 4/21/15 [sic] the victim, a 2 month old infant, was
brought to the hospital in respiratory distress and with
bruises on his face. Medical testing revealed the child had
an acute brain injury. Follow-up medical testing showed
numerous prior brain injuries and fractures in various states
of healing. Medical experts have determined the child has
suffered severe, permanent brain injury, and is currently in
a coma being kept alive with a ventilator. Medical experts
determined the child had suffered the most recent brain
injuries as little as 10 minutes prior to the onset of the
respiratory distress that prompted the call to 911. The only
person alone with the child during the time period the injury
occurred was the father, JESUS FLORES. Under Miranda, JESUS
FLORES admitted to shaking the baby due to his frustration.
(UMF 21; Doc. 32-24 at 2) “The Probable Cause
Declaration was ‘Approved by Judge' on May 29, 2015
at 5:02 p.m. (UMF 22; Doc 32-24 at 2) On May 30, 2015 at
12:02 a.m., Judge Brian McNamara signed the statement,
indicating his determination that there was probable cause to
believe Plaintiff had committed a crime. (Id.)
On June
1, 2015, Galland spoke with Dr. Hyden again. (Doc. 32-6 at 7,
Galland Decl. ¶ 20) In the police report, Galland noted:
Dr. Hyden told me that [M.F] was still in the PICU with a
guarded prognosis, likely poor as the result of a severe
traumatic brain injury. Dr. Hyden said [M.F.] requires the
assistance of a ventilator, and is being medicated to prevent
additional seizures. Dr. Hyden advised he had examined the
medical records associated with case and had formed an
opinion about the cause of the injuries. Dr. Hyden said the
injuries, revealed in the tests conducted by Valley
Children's Hospital and Bakersfield Memorial Hospital,
were the result of child abuse.
(Doc. 32-12 at 35) In addition, Galland noted in the report
that Dr. Hyden opined M.F.'s injuries- including
“fractures to the left humerus, right humerus, right
ulna, left femur, right femur, (all corner fractures or
bucket handle fractures) a possible fracture to the left
ulna, and a broken third rib”- could not have been
caused during child birth. (Id. at 35-36) Further,
Galland noted: “Dr. Hyden said he reviewed the blood
work and other diagnostic tests and noted no reason for the
fractures other than abuse.” (Id. at 36)
On June
2, 2015, Galland submitted his report to the Kern County
District Attorney's office. (Doc. 32-6 at 8, Galland
Decl. ¶ 21) Galland “had no other communication
regarding whether or not the District Attorney intended to
pursue criminal charges against Mr. Flores.” (DSF 49;
Doc. 43-2 at 35-36)
On June
10, 2015, Galland received a phone call from Crystal
Espinoza, who identified herself as a “friend of Jesus
Flores.” (DSF 45) Galland reports: Ms. Espinoza
indicated Flores “told her that he was alone with M.F.,
who was choking on throw up and so he shook him because he
thought M.F. was going to pass out. I asked her if he said he
shook the baby and she said he used the word
‘shook.'” (Doc. 32-6 at 8, Galland Decl.
¶ 22) During the conversation, which was recorded and
transcribed, Ms. Espinoza stated:
[H]e was like -- he was -- he was -- he was, like, choking --
choking on his throat, you know. And it looked like he was
going to pass out. And then, I guess, that's when Jesus
tried to -- tried to, like, shake him. Not shake him. Like,
he didn't intentionally try to hurt him but he shook him
because he, like -- he didn't know what to do. He
didn't know how to react. And that's when he told me
-- Q. So he told you he shook -- he shook the baby?
A. Yeah, he -- yes, he told -- he told me that.
Q. Okay.
A. He was trying to wake him up. He didn't say that he
shook him. He tried to wake him up.
Q. Which is -- you just said that he told you that he shook
him and then you're saying --
A. He -- he said that he tried to wake him up, and I thought,
okay, well, he probably shook him. That's what I'm
saying. He tried to wake him up.
(Doc. 32-26 at 6-7; see also DSF 45) In addition,
Ms. Espinoza indicated that Flores wanted to talk with her
social worker, Janette Shaw. (Id. at 7)
Galland
reports that he spoke with Ms. Shaw on July 16, 2016. (Doc.
32-6 at 8, Galland Decl. ¶ 24) According to Galland,
“Ms. Shaw told [him] that Jesus Flores told her that he
‘didn't hurt the baby' and ‘didn't
shake him that hard'.” (Id.)
B.
Criminal Charges and Preliminary Proceedings
The
same day Galland submitted his report, the DA filed a
criminal complaint in Kern County Superior Court, No.
BF160324A charging Flores with crimes related to M.F.'s
injuries. (UMF 25; see also Doc. 32-40 at 4)
Eric
Smith, a Deputy District Attorney involved with the
prosecution of Jesus Flores, reports that his “office
received not only the Police Report pertaining to Jesus
Flores, but also the audio and video recordings of the
interviews that were conducted, photographs, [and] medical
records pertaining to M.F.” (Doc. 32-8 at 1-2, Smith
Decl. ¶¶ 2-4) He asserts the Kern County District
Attorney's Office “reviewed all of the evidence
independently of what was stated in the police report.”
(Id. at 2, ¶5) According to Mr. Smith,
“[a]t no time did any City of Bakersfield
representative or Bakersfield Police Department employee,
including Detective Galland, exert any pressure or influence
on the Kern County District Attorney's office or [Smith]
to file charges and/or criminally prosecute Mr.
Flores.” (Id., ¶ 6) Mr. Smith reports the
decision to file charges “was made
independently.” (Id.)
On June
2, 2015, Flores appeared before Judge Michael Bush, who set
bail at $1, 000, 0000 and issued a “criminal protective
order” “[a]s a term and condition of [his] bail,
” which prevented Flores from having any contact with
M.F. (UMF 25) In addition, a pre-preliminary hearing was set
for June 11, with a preliminary hearing to occur the
following day on June 12, 2015. (Id.) Galland had no
contact with Judge Bush and “did not testify at that
hearing.” (DSF 62)
Flores
appeared at hearings in June, July, and September 2015;
during which he agreed to continuances of the preliminary
hearing. (DSF 63; Doc. 32-41 at 4; Doc. 32-42 at 4; Doc.
32-43 at 4) The preliminary hearing was held finally in No.
BF160324A on October 21, 2015. (UMF 26) Plaintiff was
represented by David Faulkner, while the People were
represented by Kristina Wenzel. (Id.; see
also Doc. 38-9 at 2) “The District Attorney called
two witnesses at the Preliminary Hearing and Mr. Flores's
counsel called no witnesses.” (UMF 27)
Officer
Achtmann was the first witness called, and he testified about
“being dispatched to the subject residence on May 21,
2015 and his communications with Mr. Flores.” (UMF 27)
Achtmann testified that when he arrived, Flores was there by
himself and M.F. was being transported to Memorial Hospital.
(Doc. 38-9 at 9-10) Achtmann stated Flores said he had been
home alone with M.F. (Id. at 10) Achtmann testified
that Flores said M.F. woke up crying, so Flores attempted to
sooth him. (Id.) In addition, Flores told the
officer that M.F. started having trouble breathing and became
unresponsive after vomiting, despite splashing water on the
baby's face. (Id. at 10) Achtmann testified
Flores stated he dialed 911 after about two minutes and
performed CPR by placing M.F. face-up on the floor.
(Id.)
Galland
was the second witness called at the hearing. (DSF 64; Doc.
43-2) “Galland testified that Dr. Naven advised him
that M.F. was in acute respiratory distress and that he
noticed bruises on M.F.'s cheeks and that Dr. Naven
ordered a CAT Scan from which he noticed subdural hematomas
and bleeding in the brain.” (Id.) Galland also
testified that Dr. Naven informed him “[a]t least one
of the hematomas was fresh and there were older healing
subdural hematomas, ” and he did not believe the
bruising on M.F.'s cheeks would be caused by CPR.
(Id.)
Galland
testified about the May 21 interview with Flores, and stated:
“He admitted to at one point to shaking the child. He
stated that he started off rocking the child. That didn't
work. And he demonstrated using a stuffed animal and
demonstrated him shaking the child.” (Doc. 38-9 at 21;
see also DSF 66, Doc. 43-2 at 66) Galland said he
spoke to Flores about getting frustrated or angry with the
baby, and Flores said “he sometimes gets frustrated
because the child won't stop crying.”
(Id.) Galland stated that Flores indicated he was
frustrated on May 21 because M.F. “wouldn't stop
crying, ” and he could not figure out why after trying
to feed him, sooth him, and changing his diaper.
(Id. at 22) Flores also “was receiving
messages from people who watch him play video games online
asking him why he wasn't online yet.”
(Id.) Galland stated he could not “recall
specifically if [Flores] said he shook the baby in response
to that, ” but Flores indicated he shook the baby on
that date, and demonstrated using a “stuffed animal
… or stuffed baby.” (Id. at 22-23)
Galland testified also that Flores “stated that he
shook him harder than he meant to.” (Id. at
23)
Further,
Galland testified about his discussions with Dr. Hyden,
including “Dr. Hyden's conclusion that M.F.'s
injuries were the result of child abuse and that the
hemorrhaging in both retinas was the result of shaking and
child abuse.” (DSF 67; see also Doc. 38-9 at
26-27) Galland said, “[Dr. Hyden] stated that based on
the injuries that he saw in the CAT scans that the child
would have stopped breathing almost immediately, if not --
and if not immediately within 10 minutes.” (Doc. 38-9
at 27:5-8) Galland testified that on June 1, he talked with
Dr. Hyden and was informed M.F. “was intubated, on a
ventilator, ” and having seizures. (Id. at
28:7-12) Further, Galland testified he was told by Dr. Hyden
that “the injuries he saw on [M.F.] were the result of
child abuse, ” and he based this opinion on the
injuries to the brain, broken bones, and retinal
hemorrhaging. (Id., 28:19-26) In addition, Galland
stated that Dr. Hyden reported M.F. “had a torn
ligament in his neck, ” which was indicative of
“shaking and child abuse.” (Id. at
29-30) According to Galland, Dr. Hyden classified the
“corner and bucket-handle fractures” that M.F.
suffered as “non-accidental trauma.” (See
id., 29:13-24)
During
cross-examination, Mr. Faulkner asked Galland to describe the
shaking Flores demonstrated during the videotaped interview.
(Doc. 38-9 at 30) Galland stated: “He was holding the
child, as I recall, facing him. He said that he started
rocking him, that wasn't working. He got frustrated and
he started shaking. While he was doing that, the stuffed
animal that he was holding, the head was snapping violently
back and forth.” (Id. at 30:24-28) Mr.
Faulkner asked if the head was unsupported while the shaking
was going on, and Galland responded:
“Correct.”[3] (Id. at 31:1-3)
Mr.
Faulkner established through questioning that “M.F. had
bruises on his face prior to the date in question.”
(UMF 34; see also Doc. 38-9 at 34, 36-37) Galland
described the interviews with M.F.'s relatives, and
testified that Ms. Guzman noticed the bruises on M.F.'s
face on Monday that week. (Doc. 38-9 at 41:12-17) When asked
to describe the bucket-handle fractures, Galland stated:
I'm not a medical doctor, so I'm paraphrasing, but my
understanding is that where the tendons attach at the edges
of the bone they are caused when the joints, or say, for
example, the arm is violently shaken, the muscle tone of a
child, of a baby does not have the same capability to retard
the motion as an adult and that the - they're essentially
a repetitive- use injury. They're -- they cause
microfractures until finally the bone rips away from the --
the bone connected to the tendon rips away from the main
portion of the bone.
(Id. at 40:27-42:9)
Following
the testimony of Achtmann and Galland, the court determined
there was “probable cause to believe that the offenses
as alleged, including any enhancements, have been committed
and sufficient cause to believe … [Flores] committed
those offenses.” (Doc. 38-9 at 44)
C.
Termination of Parental Rights
On May
22, 2015, Social Services became involved in investigating
M.F.'s welfare. (DSF 103) Bonnie Holt, “a social
service worker with the Kern County Department of Human
Services, ” became involved in M.F.'s case on that
date. (Doc. 32-7 at 1-2, Holt Decl. ¶¶ 1, 4) Ms.
Holt reports, “Once the child was taken to the
hospital… and there were concerns that the child's
injuries were the result of abuse, [DHS] was responsible for
conducting an investigation, separate and apart from any
investigation conducted by the police, to determine what
would be in the best interest of the child.”
(Id. at 2, ¶ 4)
Between
May 22 and June 25, 2015, Ms. Holt “was in constant
contact with several medical social workers from Valley
Children's Hospital regarding M.F.'s status.”
(Doc. 32-7 at 2, Holt Decl. ¶ 6) She reports that she
was “requesting and being provided with M.F.'s
medical records so that [she] could evaluate M.F.'s
condition and his doctors' impressions and
diagnoses.” (Id.) Ms. Holt asserts: “To
the extent I was in contact with the Bakersfield Police
Department, and specifically Detective Galland, it was mostly
procedural or administrative in nature. I wanted particular
photographs or to know if M.F.'s mother was a person of
interest. I wanted to view videos of the interviews on
M.F.'s mother and Jesus Flores.” (Id.,
¶ 5) In addition, Ms. Holt reports that during the
course of her investigation, she took the following actions:
I personally interviewed numerous individuals including
M.F.'s mother, Jesus Flores, M.F.'s maternal
grandmother, and M.F.'s maternal aunt. I also personally
watched the videos of the interviews that had been conducted
by the Bakersfield Police Department including videos of
M.F.'s mother, Jesus Flores, M.F.'s maternal
grandmother, M.F.'s material step grandfather[, ]
M.F.'s maternal aunt, and cousin. I submitted regular
reports to the Juvenile Justice Center which outlined the
history of the case and the findings and impressions made by
the social workers involved in M.F.'s case.
(Id., ¶ 7)
On June
26, 2015, the Kern County Department of Health Services
(“DHS”) filed a petition based upon its
investigation, alleging:
M.F. was at risk of suffering serious physical harm inflicted
non- accidentally by a parent or as a result of a
parent's failure to adequately protect him and M.F., who
was under the age of five, suffered severe physical abuse by
a parent or another person known by the parent, and the
parent knew or reasonably should have known that person was
physically abusing the child.
(Doc. 37-7 at 2, Holt Decl. ¶ 8; see also DSF
13) The same date, the hospital discharged M.F., and he was
...