Filed 12/22/14 P. v. Ramos CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050246

         v.                                                            (Super. Ct. No. RIF10003660)

FABIAN GONZALES RAMOS,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Riverside, Elisabeth
Sichel, Judge. Affirmed.
                   Jeanine G. Strong, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Linh
Lam, and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
              Fabian Gonzales Ramos appeals from a judgment after a jury convicted
him of voluntary manslaughter and found true he personally used a deadly weapon.
Ramos argues the following: (1) the trial court erred in not submitting the proximate
causation issue to the jury; (2) the court erred in limiting cross-examination of the
medical examiner on causation; and (3) the court erred in instructing the jury on
causation. None of his contentions have merit, and we affirm the judgment.
                                            FACTS
              One summer evening, Manuel Lara was drinking beer at a body shop
operated by his friend, Flavio Vallejo. Ramos drove up and got out of his vehicle; he
worked at the shop and wanted to discuss his schedule with Vallejo. Ramos walked
towards Lara and “complain[ed] about something.” Ramos punched Lara. Lara threw a
beer can at Ramos and kicked him. Ramos and Lara fought—they punched and kicked
each other for a couple minutes. Ramos reached towards his back, pulled a knife out, and
stabbed Lara in the abdomen. Ramos got back in his vehicle, and as he drove away, Lara
smashed his windshield with a piece of wood.
              Lara approached Juan Rosales and said, “He stabbed me.” When Rosales
saw the stab wound, he told Lara to go to the hospital. Lara called his friend, Martha
Perez, who drove him to the hospital; Perez saw intestine protruding from the stab
wound. The next morning, Perez picked up Lara from the hospital, drove him home, and
cared for him, checking on him throughout the morning.
              That afternoon, Irma Olivares, Lara’s landlord, visited him. Lara was
vomiting, and Olivares offered to take him to the hospital. She left him about 10:00 p.m.
Olivares checked on Lara about 1:00 a.m. He did not respond, and she called 911.
Paramedics responded and pronounced Lara dead. A toxicology report showed Lara had
0.04 percent blood alcohol in his system.




                                              2
               An information charged Ramos with murder (Pen. Code, § 187, subd. (a))
(count 1), and alleged he personally used a deadly and dangerous weapon, a knife
(Pen. Code, §§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)).
               Before trial, the prosecutor filed a trial brief, which included in limine
motions. As relevant here, the prosecutor moved to exclude evidence of any negligence
in treating Lara’s wound. The issue was litigated at an Evidence Code section 402
hearing before trial.
               Defense counsel argued it was for the jury to decide whether Ramos’s
conduct was a substantial cause of Lara’s death or whether medical malpractice was an
intervening cause of death relieving Ramos of criminal liability. Counsel referred the
trial court to CALCRIM No. 620. Counsel argued the alleged negligence was that
doctors concluded Lara suffered a superficial injury and they failed to treat him
properly—they did not perform an exploratory surgery. Counsel relied on pathologist Dr.
Mark Fajardo’s statement “the hospital should have done exploratory surgery.” Counsel
asserted the cause of death was septic shock because Lara’s intestine was not properly
sutured. Counsel asserted Fajardo “came a hair shy of basically saying it was medical
malpractice . . . .”
               The prosecutor contended counsel overstated Fajardo’s conclusions. The
prosecutor explained Fajardo concluded that if doctors would have seen the injury, they
could have “potentially” saved his life. The court characterized defense counsel’s
argument as a failure to act rather than a positive act. The court opined the failure to treat
cannot be a superseding cause “by definition” because it means Ramos’s criminal
conduct was a substantial factor in Lara’s death. Defense counsel repeated it was a
factual issue for the jury. The court stated there had to be evidence supporting that
theory, and it would research the issue.
               After a short recess, the trial court explained, “the superseding cause is
relevant only if it is so unforeseeable, extraordinary, and abnormal that it exonerates

                                               3
[Ramos].” The court added the first inquiry was “whether the death would have occurred
as a direct result of the wound absent some intervention.” The court reasoned that like in
People v. McGee (1947) 31 Cal.2d 229 (McGee), the issue was one of an absence of
treatment, which that court held was not an intervening force and thus was not a
superseding cause. Defense counsel inquired whether he would be permitted to
cross-examine Fajardo on the issue of causation. Citing to McGee, the court said counsel
had “to make a solid offer of proof” that “medical negligence was a supervening cause as
a matter of law.” Counsel argued that would violate Ramos’s Sixth Amendment rights.
The court stated counsel could question Fajardo about the cause of death but could not
offer evidence or argue medical malpractice caused the death. The court added counsel
could ask “whether the wound in and of itself, if untreated, was sufficient to have killed
[Lara].” Counsel stated he should be permitted to ask Fajardo if Lara could have
survived the wound without medical intervention. The court answered the correct inquiry
was whether Ramos “set in motion a chain of events which would have led to [Lara’s]
death.” After the court afforded defense counsel ample opportunity to make his
arguments and prepare a record, the court denied counsel’s request because he had not
made a sufficient offer of proof. The court repeated that counsel could inquire about the
cause of death and whether the infection was a result of the wound.
              At trial, the prosecutor offered the testimony of Fajardo, the chief forensic
pathologist of Riverside County, who conducted Lara’s autopsy. Fajardo stated Lara had
a one-inch stab wound to the abdominal cavity that punctured the intestine and caused
fecal matter to flow into the abdominal cavity. He stated this resulted in peritonitis, an
infection to the abdominal wall and intestines where bacteria infects the blood and causes
septic shock. Fajardo opined the cause of death was a stab wound to the abdomen.
              On cross-examination, Fajardo stated the stab wound was never sutured
closed. Defense counsel asked whether there was anything doctors could have done that
could have affected the size of the wound. The trial court sustained the prosecutor’s

                                              4
relevance objection. When counsel asked whether there was anything medically related
that could change the wound’s appearance, Fajardo answered “poking around in there.”
A little later, counsel asked whether the stab wound would have been survivable without
any treatment. The court overruled the prosecutor’s relevance objection. Fajardo
answered: “Usually not. Usually you need some treatment to close up that hole in the
intestine. It doesn’t usually close up on itself. It can. It’s a rare time when that happens.
So most circumstances require that incision to the small intestine to be closed.”
              Ramos testified on his own behalf. Ramos testified that about a year before
the incident, Luna pointed a gun at him and threatened to kill him. Ramos said Luna
threatened to kill him and his family if he reported Ramos to the police and repeatedly
harassed him. Ramos admitted he stabbed Luna, but he claimed it was in self-defense
because Luna had a “jack handle.”
              The jury acquitted Ramos of first and second degree murder but convicted
him of voluntary manslaughter and found true he personally used a deadly weapon. The
trial court sentenced Ramos to the lower term of three years in part because “the medical
malpractice by the treating hospital was also causal in the death of [Luna].” The court
imposed a consecutive one-year term on the personal use of a deadly weapon
enhancement. Ramos’s total prison term was four years.
                                       DISCUSSION
              Ramos’s three claims all involve the trial court’s exclusion of evidence of
alleged “medical malpractice.” We will address each in turn.
I. Admission of Evidence
              Ramos argues the trial court erred in excluding evidence of medical
malpractice, i.e., an intervening cause of Lara’s death was the failure to perform
exploratory surgery, which resulted in not submitting the causation issue to the jury. We
disagree.



                                              5
              In McGee, supra, 31 Cal.2d at pages 235, 241, defendant shot the victim,
who was later taken to the hospital. Doctors operated on him approximately 10 hours
later, but he died approximately seven hours after surgery. At trial, defendant moved to
introduce a medical expert’s testimony, which defendant argued would have tended to
establish the proximate cause of the victim’s death was not the bullet wound but his
medical treatment. The trial court denied the motion. (Id. at p. 240.) The California
Supreme Court concluded defendant was not prejudiced by the ruling because the
proffered testimony “would not, as a matter of law, have been sufficient to show a
supervening cause of death which would relieve defendant from criminal responsibility
for the death of [the victim].” (Id. at p. 243.)
              The McGee court explained: “‘When a person inflicts a wound on another
which is dangerous, or calculated to destroy life, the fact that the negligence, mistake, or
lack of skill of an attending physician or surgeon contributes to the death affords no
defense to a charge of homicide.’” (McGee, supra, 31 Cal.2d at p. 240.) Further, if “the
wound inflicted by the accused operates as a cause of death, the fact that the malpractice
of attending surgeons may have had some causative influence will not relieve the accused
from full responsibility for the ultimate result of his act.” (Ibid.) The court added,
however, that if “‘a person inflicts on another a wound not in itself calculated to produce
death, and the injured person dies solely as a result of the improper treatment of the
wound by an attending physician or surgeon, the fact that the death was caused by
medical mistreatment is a good defense to a charge of homicide.’” (Ibid.) The McGee
court concluded: “But defendant cannot complain because no force intervened to save
him from the natural consequence of his criminal act. The factual situation is in legal
effect the same, whether the victim of a wound bleeds to death because surgical attention
is not available or because, although available, it is delayed by reason of the surgeon’s
gross neglect or incompetence. The delay in treatment is not in fact an intervening force;
it cannot in law amount to a supervening cause.” (Id. at p. 243.)

                                               6
              In People v. Roberts (1992) 2 Cal.4th 271, 294-295 (Roberts), defendant
was charged with the murder of a fellow prison inmate. At trial, defendant sought to
prove the stabbing was not the proximate cause of the victim’s death as there was
evidence that tended to establish the victim was “relatively well physically on arrival at
the prison clinic and died as a result of incompetent medical care.” (Id. at p. 296.) On
appeal, defendant contended the jury instruction erroneously “failed to alert the jury it
must decide whether the possibly substandard treatment of [the victim] was foreseeable.”
(Id. at p. 312.) Relying on McGee, the California Supreme Court disagreed, stating: “If a
person inflicts a dangerous wound on another, it is ordinarily no defense that inadequate
medical treatment contributed to the victim’s death. [Citations.] To be sure, when
medical treatment is grossly improper, it may discharge liability for homicide if the
maltreatment is the sole cause of death and hence an unforeseeable intervening cause.”
(Roberts, supra, 2 Cal.4th at p. 312.) The Roberts court rejected defendant’s claim the
trial court erroneously failed to instruct the jury regarding intervening acts, noting there
was no evidence of grossly improper medical treatment in that case. (Id. at pp. 312-313;
People v. Stanley (2006) 39 Cal.4th 913, 946 (Stanley) [“[i]f a person inflicts a dangerous
wound on another, it is ordinarily no defense that inadequate medical treatment
contributed to the victim’s death”]; People v. Scott (1997) 15 Cal.4th 1188, 1215 [when
medical treatment grossly improper it may discharge liability for homicide if
maltreatment is sole cause of death and thus unforeseeable intervening cause].)
              In People v. Funes (1994) 23 Cal.App.4th 1506, 1510 (Funes), the victim
suffered severe injuries and eventually died after his head was “smashed by a blunt
object.” Defendant claimed that a medical decision to withhold antibiotics arguably
constituted an independent intervening cause of the victim’s death, and the trial court
erred in refusing to instruct the jury pursuant to a requested special instruction on
proximate causation. (Id. at pp. 1522-1523.) Relying on Roberts, the Funes court
rejected defendant’s claim, explaining: “Although our Supreme Court has not addressed

                                              7
this issue, it has determined that merely inadequate medical treatment is not an
independent intervening cause, while ‘grossly improper’ medical treatment may
constitute an independent intervening cause if it ‘is the sole cause of death and hence an
unforeseeable intervening cause.’ [Citation.]” (Funes, supra, 23 Cal.App.4th at p. 1524,
fn. 9; People v. Autry (1995) 37 Cal.App.4th 351, 361 (Autry) [citing McGee defendant
cannot complain no force intervened to save him from consequences of his criminal act].)
              Here, similar to McGee and its progeny, Ramos offered no evidence Lara’s
medical treatment was grossly improper, or even if it was, that it was the sole cause of
Lara’s death. Defense counsel made no offer of proof Lara’s medical treatment was
grossly improper and thus an unforeseeable intervening cause of his death. In fact, the
record establishes Ramos’s act of stabbing Lara set in motion the circumstances leading
to Lara’s death and the stabbing was a substantial factor contributing to his death.
Fajardo, the doctor who performed Lara’s autopsy, confirmed his death was a direct,
natural, and probable consequence of Ramos’s conduct. Fajardo explained the one-inch
stab wound to Lara’s abdominal cavity punctured the intestine, caused fecal matter to
flow into the abdominal cavity, and resulted in septic shock. Fajardo stated such an
injury is “usually not” survivable without medical treatment. Fajardo opined Lara died
from a stab wound to the abdomen. Under these circumstances, there was no showing of
gross negligence. As a matter of law, the alleged deficient treatment of Lara was not the
sole cause of his death. (McGee, supra, 31 Cal.2d at p. 243 [defendant cannot complain
no force intervened to save him from natural consequence of his criminal conduct].)
              Ramos’s claim the trial court erred in using the incorrect test for causation,
the “but for” test instead of the “substantial factor” test, is belied by the record. The court
correctly considered whether “the superseding cause is relevant only if it is so
unforeseeable, extraordinary, and abnormal that it exonerates [Ramos].” Additionally,
the fact Lara did not return to the hospital on his own accord does not relieve Ramos of
the foreseeable consequences of his criminal conduct. (Autry, supra, 37 Cal.App.4th at

                                              8
p. 360 [victim’s contributory negligence does not relieve criminal actor of liability unless
victim’s conduct sole cause of death].) Finally, the fact the court mentioned “medical
malpractice” as a mitigating circumstance in imposing the lower term does not compel
the conclusion the evidence was admissible at trial. (People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 978 [trial court wide discretion in sentencing and may consider
offense and defendant’s attitude about offense and demeanor at trial].) Thus, the court
appropriately excluded Fajardo’s testimony concerning alleged medical malpractice.
II. Cross-Examination
              In a related claim, Ramos contends the trial court deprived him of his
Sixth Amendment right to confrontation and to present a defense when it ruled he could
not cross-examine Fajardo on “medical malpractice.” To support his claim, Ramos relies
on defense counsel’s question whether there was anything doctors could have done that
could have affected the size of the wound. Ramos’s claim is essentially the same as his
first argument couched as a constitutional argument.
              As we explain above, the parties litigated the issue at an Evidence Code
section 402 hearing. At that hearing, Ramos was unable to make an offer of proof Lara’s
medical treatment was the sole cause of his death. Without an adequate offer of proof
“medical malpractice” was the sole cause of Lara’s death, the court properly limited
counsel’s cross-examination of Fajardo. It is well settled a trial court had wide latitude to
impose reasonable limits on cross-examination based on well-established principles of
the Evidence Code. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; People v.
Harris (1989) 47 Cal.3d 1047, 1091.) Additionally, Ramos was not denied the
opportunity to present a defense when the evidence he sought to offer was not relevant.
(People v. Boyette (2002) 29 Cal.4th 381, 427-428 [ordinary rules of evidence do not
infringe on defendant’s right to present defense].) Thus, Ramos’s constitutional claims
have no merit.



                                              9
III. Jury Instructions
              Recognizing the trial court instructed the jury on causation principles as
they relate to murder, Ramos asserts the court erred in failing to instruct the jury with
CALCRIM Nos. 620, “Causation: Special Issues,” and 240, “Causation” because had the
jury heard evidence about medical malpractice, it could have concluded grossly improper
medical treatment was a substantial factor in Lara’s death. The Attorney General
contends Ramos forfeited appellate review of this issue and, in any event, the court had
no sua sponte duty to give the jury those instructions. We disagree with the Attorney
General that Ramos forfeited this issue but agree the trial court did not err.
              The Attorney General’s forfeiture argument hits far wide of the mark. We
suspect Ramos did not request those instructions because the trial court had previously
ruled he could not offer evidence medical malpractice was an unforeseeable intervening
cause of Lara’s death. There would be no reason for Ramos to request those instructions
because as Ramos concedes in his reply brief, “the jury did not hear potentially
exculpatory evidence about other causes of death.”
              As to the merits, the trial court did not err in failing to instruct the jury sua
sponte with CALCRIM Nos. 620 and 240. Ramos’s concession the jury did not hear
evidence of other causes of death dooms his argument, which at its core is another
attempt to attack the trial court’s pre-trial ruling he could not offer evidence medical
malpractice was a substantial factor in Lara’s death. As we explain above more fully,
grossly improper medical treatment may discharge liability for homicide if the
malpractice is the sole cause of death and hence an unforeseeable intervening cause.
Here, though, Ramos did not make an offer of proof grossly improper medical treatment
was the sole cause of Lara’s death. And because Ramos failed to offer any evidence
grossly improper medical treatment was the sole cause of Lara’s death, the trial court was
not required to instruct the jury sua sponte with CALCRIM Nos. 620 and 240. (Stanley,
supra, 39 Cal.4th at p. 946 [trial court properly refused pinpoint instruction where

                                              10
evidence established victim died from defendant’s criminal act and edema was medically
foreseeable]; Roberts, supra, 2 Cal.4th at pp. 311-313 [trial court properly refused
modified proximate cause instruction because no evidence of grossly improper care];
Autry, supra, 37 Cal.App.4th at pp. 360-362 [trial court properly refused causation
instructions where no evidence absence of safety precautions sole cause of accident];
Funes, supra, 23 Cal.App.4th at pp. 1522-1524 [trial court properly refused special
instruction on proximate cause where no evidence of independent intervening cause].)
Thus, the trial court gave the proper jury instructions.
                                       DISPOSITION
              The judgment is affirmed.




                                                  O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




                                             11
