Filed 8/10/15 P. v. Badasso CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066122

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD243068)

ZEWOINESH BADASSO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Joan P.

Weber, Judge. Affirmed.



         Athena Shudde, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff

and Respondent.

         Defendant and appellant Zewoinesh Badasso murdered her infant son in an

episode of child abuse that ended with her strangling him to death. Following the
murder, defendant placed her son in an alley and claimed he fell to his death from an

open window. Medical examination revealed defendant's ruse and she was arrested,

charged, and convicted of first degree murder.

      Defendant does not contest her guilt, but claims her conviction should be reduced

to second degree murder because the prosecution failed to present substantial evidence

that the murder was premeditated. We disagree, concluding there is substantial evidence

in the record from which a reasonable jury could find premeditation. Affirmed.

                                FACTUAL OVERVIEW

      Defendant murdered her seven-month-old son on September 7, 2012. Defendant

was a single mother, unemployed, and staying temporarily with other Ethiopian

immigrants in an apartment in San Diego, California. At trial, defendant testified her son

was conceived from a sexual assault. Defendant had a history of depression, post-

traumatic stress disorder, lack of impulse control, and anger problems for which she had

been undergoing psychiatric treatment. Defendant's ex-husband testified that she had

been violent towards him in the past, including biting him and cutting him with a knife.

Shortly before the murder, defendant's depression and anxiety worsened as she was

overwhelmed by poverty.

      On September 7, a man and a woman were walking past an apartment building

where defendant lived when they noticed an infant (the child) lying face down in an

alleyway. The man ran for help while the woman went to see if the child had a pulse.

The child showed no signs of life, and there was no blood on the ground. While checking

for a pulse, defendant appeared before the woman, speaking in broken English and

pointing up towards a window and towards the child. The woman believed defendant

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was indicating that the child was her baby and that the child fell out of the window. The

first police officer to arrive at the scene attempted to resuscitate the child by performing

CPR, but the child was unresponsive. The child was transported to a hospital where he

was pronounced dead.

       Both civilian witnesses and police officers noticed lacerations and bruising around

the child's neck. A police sergeant at the scene of the incident concluded the child was

likely murdered and defendant staged the accident scene. San Diego police officers

detained and briefly interviewed defendant at the scene. She told them she accidently

dropped the child out of a third-story window while trying to open it. Both bystanders

and police officers noted that defendant was oddly calm and seemed undisturbed by the

child's death. Witnesses described defendant picking the child's limp body up by one arm

without supporting his head, holding him like a "sack of potatoes." Nobody except

defendant and the child were present in the apartment when the murder occurred.

       The autopsy confirmed the child died from a combination of manual and ligature

strangulation. The pathologist's opinion was based on the number of bruises and

abrasions found around the child's neck, eyes and cheeks. Some of these abrasions

indicated the use of a ligature. Others appeared to have been made by fingernails. The

fingernail marks on the back of the child's neck suggested defendant repositioned her

hand while strangling the child, applying pressure, releasing, and then reapplying

pressure to the child's neck. The pathologist testified that it generally would take around

three minutes of constant pressure around the neck to kill, though much longer if pressure

was released and reapplied as appeared to be the case here.



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       The autopsy also revealed a number of other injuries inflicted upon the child prior

to or at the time of death. Most of the child's fingernails had been cut or torn off past the

quick and into the nail bed, causing the fingers to bleed. Bruising around the ankle

indicated that the child had probably been either bound or grabbed forcefully. Various

abrasions on the body pointed to the child being dragged across a surface.

       A pattern of bruising and burst blood vessels on the child's face showed he had

been forcefully struck or stomped on the face. The pattern on the bottom of defendant's

sandals matched the pattern of the bruising on the child's face, and DNA from the child

was recovered from the sole of one of the sandals. The pathologist stated all of the

child's bruising occurred while he was still alive.

       The examination also revealed numerous rib fractures and a separation of the

spine. According to the pathologist, defendant likely inflicted these injuries by placing

one hand under each armpit and squeezing and shaking the child with significant force.

       Because there was little bleeding, the pathologist estimated the injuries occurred

within an hour of the child's death or soon thereafter. The pathologist testified that the

injuries would have taken some time to inflict, perhaps 10 minutes, and that such injuries

likely did not result from a fall out of the third-story apartment window.

       The defense did not rebut the evidence showing defendant killed the child, but

instead based its case on defendant's sanity, or lack thereof. The defense relied upon

expert witnesses, defendant's mannerisms at the crime scene, and testimony from

defendant that she experienced auditory hallucinations to argue that defendant was in a

psychotic state at the time of the murder and did not volitionally kill the child. The



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defense also argued that the drug trazodone—which defendant was taking to help her

sleep—might have triggered a psychotic episode.

       In rebuttal, the prosecution called Katherine Dixon, a psychiatrist who treated

defendant in jail, and Sheila Wendler, a forensic psychiatrist. Dr. Dixon testified that

defendant first reported auditory hallucinations while in jail and might have been coached

by fellow inmates. She also prescribed trazodone for defendant while in jail and noted no

side effects. Dr. Wendler agreed that defendant fabricated the auditory hallucinations and

contended there was no evidence of psychosis. Dr. Wendler also opined that a person in

a psychotic state would be unlikely to answer questions lucidly or concoct a story as

consistent with the evidence as the story defendant told police.

                               PROCEDURAL OVERVIEW

       The San Diego County District Attorney charged defendant with first degree

murder and assault on a child resulting in death. (Pen. Code,1 §§ 187, subd. (a) & 273ab,

subd. (a).) Criminal proceedings were suspended in October 2012 to evaluate defendant's

competency for trial under section 1368. After a jury found defendant competent to stand

trial, defendant pled not guilty by reason of insanity.

       A jury convicted defendant on both counts in February 2014. A separate jury

found defendant sane at the time of the murder. In April 2014, the court sentenced

defendant to prison for 25 years to life.




1      All further statutory references are to the Penal Code unless otherwise noted.
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                                       DISCUSSION

       A homicide that is "willful, deliberate, and premeditated" is murder in the first

degree. (§ 189.) " 'Deliberation means careful consideration and examination of the

reasons for and against a choice or measure.' [Citation.] The verb 'premeditate' means

'To think on, and revolve in the mind, beforehand; to contrive and design previously.'

[Citation.]" (People v. Bender (1945) 27 Cal.2d 164, 183.) " 'The true test is not the

duration of time, but rather the extent of the reflection. A cold, calculated judgment and

decision may be arrived at in a short period of time, but a mere unconsidered and rash

impulse, even though it include[d] an intent to kill, is not such deliberation and

premeditation as will fix an unlawful killing as murder of the first degree." (People v.

Perez (1992) 2 Cal.4th 1117, 1124.)

       In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our Supreme Court

identified three types of evidence that can show deliberation and premeditation: (1)

planning activity; (2) motive; and (3) "facts about the nature of the killing from which the

jury could infer that the manner of killing was so particular and exacting that the

defendant must have intentionally killed according to a 'preconceived design' to take his

victim's life in a particular way for a 'reason' which the jury can reasonably infer from

facts of type (1) or (2)." (Id. at pp. 26-27.) "Anderson does not require that these factors

be present in some special combination or that they be accorded a particular weight, nor

is the list exhaustive." (People v. Pride (1992) 3 Cal.4th 195, 247.)

       We apply a substantial evidence standard of review on the issue of whether there

is sufficient evidence in the record to support a finding of premeditation. Specifically,

the question before us is whether a reasonable jury could find on this record that

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defendant killed the child as a "result of preexisting thought and the careful weighing of

considerations" when the facts are viewed in a light most favorable to the prosecution.

(People v. Boatman (2013) 221 Cal.App.4th 1253, 1270.)

       Citing to the Anderson factors, defendant contends that the prosecutor failed to

produce substantial evidence of motive or planning and contends that the manner in

which the child was killed does not provide substantial evidence of premeditation. We

disagree with these contentions.2

       Defendant claims that the prosecutor failed to make a case for any specific motive

and that the prosecutor instead suggested equivocally that the murder could have been

motivated by either an angry outburst or by psychosis. She further claims the prosecutor

left it up to the jury to speculate as to what the motive of the murder could have been.

       In making this argument, defendant misrepresents what the prosecutor actually

said during closing argument. The record shows the prosecutor was not relying on

psychosis as a theory as equally valid as any other. Instead, our independent review of

the record shows the prosecutor was favorably contrasting her position that defendant

killed the child during a fit of rage with the defense's theory that defendant murdered the

child while in a psychotic state.

       In addition, there is sufficient evidence in the record to support the prosecution's

theory. Defendant had a long history of being treated for lack of impulse control and

rage issues. Though no evidence of previous child abuse was presented, the record does

contain evidence of domestic violence committed by defendant. This evidence, and the


2      As noted, a jury found defendant was sane and not operating under a psychotic
delusion at the time of the murder. Defendant does not contest this finding on appeal.
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inferences that can be drawn from it, support a finding that defendant killed the child in a

fit of rage and thus support the prosecution's theory.

       Defendant contends that the circumstances of the crime do not indicate any

planned murder. We disagree. The murder occurred not spontaneously in a public place,

but rather in her apartment at a time when none of defendant's roommates were present.

After the murder, defendant attempted to escape culpability by staging an accident scene.

Defendant argues this is not evidence of premeditation because the attempted plan could

never have worked because the child's injuries were plainly inconsistent with a fall.

Assuming arguendo defendant is correct that the plan was flawed, she cites no case law in

support of her contention that to show premeditation the planning activity must have

allowed the murderer to avoid detection and apprehension. In any event, we conclude the

staging of the accident scene along with the time and location of the murder supports an

inference that the murder was planned.

       In addition, the manner in which defendant murdered the child supports an

inference that she had developed a premeditated intent to kill by the time he finally died.

Our high court has held that "[l]igature strangulation is in its nature a deliberate act."

(People v. Bonillas (1989) 48 Cal.3d 757, 792.) "This prolonged manner of taking a

person's life, which requires an offender to apply constant force to the neck of the victim,

affords ample time for the offender to consider the nature of his deadly act." (People v.

Hovarter (2008) 44 Cal.4th 983, 1020.)

       In People v. Davis (1995) 10 Cal.4th 463, 510, testimony that strangulation would

have taken between one to five minutes to kill the victim was found sufficient to support

a finding of premeditated intent to kill. Moreover, our high court has found substantial

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evidence of premeditation where a defenseless victim is killed though strangulation

following an attack. (See People v. Bonillas, supra, 48 Cal.3d at pp.792-793 [sufficient

evidence of premeditation existed when defendant strangled the victim to death after

rendering her unconscious with a blow to the back of the head].)

       In the present case, the evidence in the record supports the finding that defendant

stomped on her infant son's head with her foot and that she shook and compressed him

hard enough to break several ribs and sever his spine. The evidence also supports the

finding that defendant cut off the child's fingernails; that she dragged the child across the

floor or some other surface leaving abrasions on the skin; and that she killed the child

using both her hands and a ligature to strangle him. Moreover, the record includes the

testimony of the pathologist. He opined it typically takes about three minutes of constant

pressure on the neck to kill a victim. However in this case, the pathologist opined it

likely took longer than three minutes because the record supports a finding that defendant

released and then reapplied the pressure to the child's neck. The pathologist also opined

it would have taken a considerable amount of time, perhaps 10 minutes, to inflict all of

the injuries the child suffered.

       On this record, we conclude there is substantial evidence about the nature of the

killing from which a reasonable jury could infer that the manner of killing was "so

particular and exacting that the defendant must have intentionally killed according to a

'preconceived design' to take his victim's life in a particular way for a 'reason' which the

jury can reasonably infer." (See People v. Anderson, supra, 70 Cal.2d at p. 27.)




                                              9
       Finally, the evidence that defendant also used a ligature further supports a finding

of deliberation and premeditation, particularly in light of the evidence that defendant also

had used her hands to strangle the child.

       Defendant disputes such a finding, relying heavily on People v. Rowland (1982)

134 Cal.App.3d 1. We conclude Rowland's holding that ligature strangulation does not

demonstrate a deliberate and premeditated intent unconvincing and unsupported by

subsequent decisions of our high court, which have consistently held that ligature

strangulation is evidence of premeditation and deliberation. (People v. Shamblin (2015)

236 Cal.App.4th 1, 12, citing People v. Davis, supra, 10 Cal.4th at p. 510; People v.

Hovarter, supra, 44 Cal.4th at pp. 1019–1020; People v. Stitely (2005) 35 Cal.4th 514,

544.) Even if Rowland is still good law, it is inapplicable here. In Rowland, no

testimony was presented regarding any attack prior to strangulation or how long it took

the victim to die from strangulation. In the present case, the evidence supports the

finding that defendant attacked the child multiple times over a possibly 10-minute period

that ended with her strangling him to death. Such evidence supports a finding of

premeditation and deliberation.

       Defendant also contends that the forensic evidence only shows an unconsidered

and frenzied attempt by a stressed mother to silence a crying child. Such an inference

might have been drawn by a reasonable fact finder, but as a court of review our task at

hand is to review the record in light of the findings made by the trier of fact, as opposed

to making new findings based on other evidence in the record. (See People v. Albillar

(2010) 51 Cal.4th 47, 60 [noting under the substantial evidence standard of review, we



                                             10
will not disturb a jury's finding "simply because the circumstances might also reasonably

be reconciled with a contrary finding"].)

                                     DISPOSITION

       The judgment is affirmed.



                                                                    BENKE, Acting P. J.

WE CONCUR:


McDONALD, J.


PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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