Filed 12/20/13 P. v. Superior Court CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B250586

         Petitioner,                                                (Los Angeles County
                                                                    Super. Ct. No. BA388496)
         v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

         Respondent;

SELENE BEATRIZ OLMOS,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS in mandate. Frederick N. Wapner, Judge. Petition
granted.
         Jackie Lacey, District Attorney, Phyllis C. Asayama and Roberta T. Schwartz,
Deputy District Attorneys, for Petitioner.
         No appearance for Respondent.
         Tom R. Medrano and Jason H. Cox for Real Party in Interest.


                                 _________________________________
       Petitioner, the People, charged Robert Antonio Elias and real party in interest
Selene Beatriz Olmos each with three offenses in the death of Selene’s son Brian Olmos:
murder (Pen. Code, § 187); assault on a child by means of force likely to cause great
bodily injury, resulting in death (§ 273ab, subd. (a)); and child abuse (§ 273a, subd. (a)).1
After a preliminary hearing, the magistrate bound over Elias and Olmos on all of the
charges. The trial court subsequently granted Olmos’s section 995 motion to set aside the
information with respect to the charges of murder and assault on a child by means of
force likely to cause great bodily injury. The People filed a petition for a writ of mandate,
contending the trial court erred by granting Olmos’s motion with respect to these charges.
We agree and grant the petition.
                                      BACKGROUND
       The felony complaint in this case was filed sometime in early November 2011. It
charged each defendant with three offenses: count 1, murder; count 2, assault on a child
by means of force likely to cause great bodily injury resulting in the child’s death,
hereinafter sometimes referred to as “assault”; and count 3, child abuse. In addition, it
alleged that in the commission of the child abuse, Elias and Olmos willfully caused,
permitted a child to suffer, and inflicted upon a child unjustifiable physical pain and
injury that resulted in death. (§ 12022.95.) Olmos waived arraignment and pleaded not
guilty to each charge.
1.     Preliminary hearing
       The joint preliminary hearing for Olmos and Elias was conducted on October 19,
2012. The evidence adduced at the preliminary hearing showed that Brian Olmos, who
was about 18 months old, arrived at Beverly Hospital about 5:45 p.m. on June 18, 2011.
(Undesignated date references pertain to 2011.) The paramedics who transported Brian to
the hospital rated him a “111” on the Glasgow Coma Scale, meaning he was “basically
unresponsive, and he’s neurologically not functioning.” He was placed on life support


       1   Undesignated statutory references are to the Penal Code.


                                              2
and ultimately pronounced dead on June 20 about 3:00 p.m. Selene Olmos was Brian’s
mother, and Elias was Selene Olmos’s boyfriend. Elias, Olmos, and Brian lived in the
same house as Elias’s brother, sister-in-law, and their infant.
       Deputy Medical Examiner Dr. Louis Pena, who performed an autopsy on Brian,
testified that Brian died as a result of multiple injuries resulting from “a collection” of
blunt force trauma events. Pena agreed that Brian’s injuries were consistent with “shaken
impact,” that is, shaking combined with a head impact, and Pena identified the site of the
impact as the left side of Brian’s head. That impact caused severe intracranial
hemorrhages. Brian had “fresh” or “recent” bruises on the top and left side of his head,
the left side of his neck, his chin, the left and right sides of his upper legs, his chest, left
upper back, mid-back, lower back, right back, upper right arm, upper left arm down to his
left elbow, and the left ear from the earlobe to the back of the ear. The bruise on Brian’s
upper right arm was a “loop-type pattern” that could have been caused by squeezing with
a hand or a belt. Brian also had numerous “faded,” but still “recent,” bruises on both of
his legs. A circular bruise on Brian’s upper right leg was consistent with a fist or the heel
of a shoe. Brian had large subcutaneous hemorrhages on the left side of his head, the left
side of his neck, the left elbow area, the left upper back, the right lower back, the left
buttocks, and the chest. Brian also had retinal and optic nerve hemorrhaging. He
suffered a subdural hematoma on the left side of his head, and some of the blood had
moved into the base of the brain and the spinal column. Brian also had 10 rib fractures of
various ages; “some were old and some were recent,” “meaning the day of the incident
perhaps, to a number of weeks out,” perhaps a month. Pena opined the rib fractures were
“likely inflicted, meaning like a punch or a blow.”
       Pena opined that although some of Brian’s bruises may have been attributable to “a
walking-age child banging into things,” the totality of injuries and their distribution
throughout his body were “not typical for an accident, unless it’s a motor vehicle”
accident. Pena further testified that Brian would have displayed symptoms such as




                                                3
lethargy, vomiting, seizures, or respiratory arrest within a very brief time after “the
moment that the impact occur[red].”
       Detective Steven Blagg, who was assigned to investigate Brian’s death, testified he
spoke with Olmos on June 27. She was not yet in custody. Olmos told Blagg that Elias
“did not like the fact that she had a child with another man,” and “had gotten to the point
where he just didn’t care for Brian.” Elias “would get mad at Brian when he would cry,
would strike Brian. It started off with spanking and then escalated to the point where Mr.
Elias would actually punch Brian, would lift him out of his playpen by his arms, yell at
him. [¶] If she tried to intervene, Mr. Elias would then—had beat[en] her in the past for
attempting to intervene on his beating of Brian.” Elias told Olmos if she went to the
police or exposed his behavior, “she would get worse than Brian got, as far as a beating.”
Olmos had seen Elias punch Brian in the rib cage. Elias “would lift up Brian’s arms to
move them out of the way and then, with a balled-up fist, punch Brian in the rib cage
area.” Elias “would just continue to punch him.” Brian would cry, and Elias would warn
him not to cry while Elias was beating him. Olmos had also seen Elias shake and slap
Brian and pull Brian’s hair. Brian seemed to be in pain a lot, had a lot of bruises, had
difficulty sleeping, and withdrew from Elias.
       Olmos told Blagg that Elias began abusing Brian around March of 2011, but she
also said she had not taken Brian to the doctor for his check-up when he turned one
(around December of 2010) “‘because the doctor would see the bruises.’” Olmos
admitted to Blagg that she sometimes also struck Brian on the legs and buttocks and
slapped his face.
       Olmos told Blagg that Brian cried a lot the last few weeks of his life. She said
Brian had fallen a few weeks before his death. Olmos saw Elias spank Brian on the
buttocks on June 17, but the last time she saw Elias “abuse” Brian was a few days before
June 18.
       Olmos told Blagg that Elias had punched her face and body for “small things,”
such as paying too much attention to Brian. She never reported this to the police,


                                              4
although she had previously called the police when Brian’s father beat her, which resulted
in the arrest and deportation of Brian’s father.
       Olmos told Blagg that on the morning of June 18 she left Brian in the care of
Elias’s sister-in-law, Maria. Olmos clarified that she left Brian in his playpen in “their
bedroom” with the TV on and informed Maria that she was leaving for work. Olmos
drove Elias to his job, then went to her job at a Taco Bell. Brian had bruises on his chest,
arms, and legs at that time. Olmos got off work around 3:00 p.m. and drove home. Brian
was awake, alert, seated in a playpen, and seemed to be watching TV. Olmos fed Brian
half of a bean burrito she had brought from Taco Bell and part of a smoothie Maria had
made. Olmos dressed Brian because Elias was planning to take Brian to a party at the
home of Elias’s father. A little before 4:00 p.m. Olmos left the house for her second job.
       Olmos told Blagg that Elias called her at work about 5:14 p.m. and told her Brian
was vomiting uncontrollably and not breathing well. She told him to put some water on
Brian’s head and get Maria to help revive Brian. Olmos left work and drove home.
Before she reached the house, she saw Elias running, carrying Brian. Brian was
unconscious and did not appear to be breathing. Elias got into the backseat with Brian
and Olmos began driving to a hospital. After Olmos had driven just a block, Elias
complained she was driving too fast and told her to pull over and let him drive. Olmos
complied. She told Blagg that Elias did not appear to be in a rush to get them to the
hospital. Olmos saw an ambulance at a restaurant and told Elias to stop there and get the
ambulance attendants to help. Elias stopped, went in the restaurant, and eventually
emerged with the ambulance attendants. Paramedics then arrived and took Brian to the
hospital.
       Blagg spoke to Elias on the night of June 20. Elias said Brian was seated in the
playpen, drinking milk when Elias arrived home from work about 4:55 p.m. on June 18.
Elias found a note from Olmos indicating that Elias should feed Brian the other half of
the bean burrito. Elias got ready to go to his father’s house. When he lifted Brian from
the playpen to dress him, Brian began to vomit “violently” and brown fluid flowed from


                                              5
Brian’s nose. Elias asked Maria for help, then called Olmos at her workplace. He did not
call 911 or ask anyone to call 911. He carried Brian outside.
       Elias denied punching Brian at any time, but admitted he had sometimes
disciplined Brian by pulling his ear, spanking, slapping, and shaking him. Elias told
Blagg that he last shook Brian two to three weeks earlier.
       Blagg obtained time records from Olmos’s employers showing that on June 18
Olmos was on duty at her first job from 10:59 a.m. until 3:07 p.m., and was on duty at her
second job from 4:03 p.m. until 5:12 p.m. Blagg also obtained records from Elias’s
employer reflecting that he was on duty on June 18 from 10:54 a.m. until 3:58 p.m.
       Blagg also spoke to Maria and Elias’s brother, who told him they had never seen
Elias hit Brian. Maria said that on one occasion when Brian had a bruise on his cheek,
Olmos said that Brian had hit himself. Maria further stated that sometimes Olmos left
Brian at the house without asking Maria to take care of him.
       The magistrate held Olmos and Elias to answer on all counts and on the section
12022.95 allegation. The People filed an information charging Elias and Olmos with the
same offenses and enhancement allegation.
2.     Olmos’s section 995 motion
       Olmos filed a section 995 motion to set aside the information, which the People
opposed. After briefing and argument, the trial court granted Olmos’s motion with
respect to the charges of murder (count 1) and assault on a child by means of force likely
to cause great bodily injury, resulting in death (count 2). The court denied the motion
with respect to child abuse (count 3).
3.     Petition for a writ of mandate
       On August 13, 2013, the People filed a petition for a writ of mandate in this court,
seeking to reinstate the charges of murder and assault on a child by means of force likely
to cause great bodily injury, resulting in death.




                                              6
       Olmos filed preliminary opposition. On September 27, 2013, we ordered the
superior court to show cause why a peremptory writ should not issue. Olmos filed a
return, to which the People replied.
                                       DISCUSSION
1.     Standard of review
       To hold a defendant to answer the charges pleaded in a complaint, the magistrate
conducting the preliminary hearing must find probable cause to believe that the defendant
has committed the charged offenses. (§§ 866, subd. (b), 872, subd. (a).) Probable cause is
shown if a person of ordinary caution or prudence would believe and conscientiously
entertain a strong suspicion of the defendant’s guilt. (Rideout v. Superior Court (1967) 67
Cal.2d 471, 474.)
       Section 995, subdivision (a)(2)(B) provides that an information “shall be set aside”
if “the defendant had been committed without reasonable or probable cause.” “‘On a
motion to set aside an information, the question of the guilt or innocence of the defendant
is not before the court, nor does the issue concern the quantum of evidence necessary to
sustain a judgment of conviction. The court is only to determine whether the magistrate,
acting as a man of ordinary caution or prudence, could conscientiously entertain a
reasonable suspicion that a public offense had been committed in which the defendant
had participated.’ [Citation.] Neither the trial court in a section 995 proceeding
[citations] nor a reviewing court on appeal therefrom [citations] may substitute its
judgment as to the weight of the evidence for that of the committing magistrate.
‘Although the magistrate, in reaching his decision, may weigh the evidence, resolve
conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is
not within the powers of a tribunal reviewing the magistrate’s order.’ [Citation.] Every
legitimate inference that may be drawn from the evidence must be drawn in favor of the
information.” (People v. Hall (1971) 3 Cal.3d 992, 996 (Hall).)
       “When we review a section 995 motion, we ‘disregard[] the ruling of the superior
court and directly review[] the determination of the magistrate.’ [Citations.] We conduct


                                             7
an independent review of the evidence, but will not substitute our judgment for that of the
magistrate as to the credibility or weight of the evidence. [Citing Hall, supra, 3 Cal.3d at
p. 996.] We will not set aside an information ‘if there is some rational ground for
assuming the possibility that an offense has been committed and the accused is guilty of
it.’ (Ibid.)” (People v. San Nicolas (2004) 34 Cal.4th 614, 654.)
2.     Aiding and abetting liability for the charged offenses
       Although evidence at the preliminary hearing showed that Olmos herself had a
history of hitting Brian, the People’s petition for a writ of mandate and additional briefing
during the instant writ proceeding clarifies that the People’s theory is that Elias inflicted
the fatal injuries upon Brian, while Olmos aided and abetted Elias in the commission of
the charged offenses.
       We therefore summarize the law applicable to aiding and abetting. A person who
aids and abets a crime has the same criminal liability as the actual perpetrator. (§ 31;
People v. Montoya (1994) 7 Cal.4th 1027, 1038–1039.) A person aids and abets the
commission of a crime when he or she, with knowledge of the unlawful purpose of the
perpetrator, and with the intent or purpose of committing, facilitating or encouraging
commission of the crime, “‘by act or advice aids, promotes, encourages or instigates the
commission of the crime.’” (People v. Prettyman (1996) 14 Cal.4th 248, 259
(Prettyman).)
       An aider and abettor is guilty not only of the offense he or she intended to facilitate
or encourage (the target crime), but also of any other crime committed by the person he or
she aids and abets that is “the ‘natural and probable consequence’ of the target crime.”
(Prettyman, supra, 14 Cal.4th at p. 261.) An aider and abettor need not have intended to
encourage or facilitate the particular offense ultimately committed, and need not have any
specific intent that is an element of the offense committed. (Ibid.)
       A particular criminal act is a natural and probable consequence of another criminal
act if, under all of the circumstances presented, “‘a reasonable person in the defendant’s
position would have or should have known that the charged offense was a reasonably


                                              8
foreseeable consequence of the act aided and abetted’” by the defendant. (People v.
Medina (2009) 46 Cal.4th 913, 920.) “But ‘to be reasonably foreseeable “[t]he
consequence need not have been a strong probability; a possible consequence which
might reasonably have been contemplated is enough. . . .”’” (Ibid.) “The precise
consequence need not have been foreseen.” (Id. at p. 927.)
       “Generally, failure to prevent a crime is insufficient to establish aiding and
abetting liability. But ‘aiding and abetting liability can be premised on a parent’s failure
to fulfill his or her common law duty to protect his or her child from attack.’ (People v.
Rolon (2008) 160 Cal.App.4th 1206, 1219 [upholding mother’s conviction for murder as
aider and abettor based on failure to protect against deadly physical abuse of child in her
presence after court order forbade contact with the abuser].) ‘[A] parent who knowingly
fails to take reasonable steps to stop an attack on his or her child may be criminally liable
for the attack if the purpose of nonintervention is to aid and abet the attack.’ (Ibid.)”
(People v. Ogg (2013) 219 Cal.App.4th 173, 181 (Ogg).)
3.     Sufficiency of evidence of Olmos’s liability for assault on a child causing
death (count 2)
       Count 2 of the felony complaint and the information charged Olmos with violating
section 273ab, subdivision (a), which provides, “Any person, having the care or custody
of a child who is under eight years of age, who assaults the child by means of force that to
a reasonable person would be likely to produce great bodily injury, resulting in the child’s
death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing
in this section shall be construed as affecting the applicability of subdivision (a) of
Section 187 or Section 189.”
       Olmos’s liability as an aider and abettor for violating section 273ab, subdivision
(a) could arise from either of two scenarios: (1) she aided and abetted Elias in violating
section 273ab, subdivision (a) (assault), or (2) she aided and abetted him in the “target”
offense of violating of section 273a, subdivision (a) (child abuse), and was criminally




                                              9
liable for his violation of section 273ab, subdivision (a) (assault) through application of
the natural and probable consequence doctrine.
       The threshold issue, however, is whether Olmos’s conduct constituted aiding and
abetting. We conclude the evidence was sufficient to allow the magistrate, acting as a
person of ordinary caution or prudence, to conscientiously entertain a reasonable
suspicion that Olmos’s acts and omissions constituted aiding and abetting.
       Ogg is directly on point. In Ogg, the victim’s mother knew that her boyfriend
Daniel had previously sexually molested, and was continuing to molest, her daughter
A.R., but the mother did not report this to the police or terminate her relationship with
Daniel. Instead, the mother married him and discouraged her daughter from reporting the
abuse, which continued for ten years. (219 Cal.App.4th at pp. 177–179.) On appeal from
her conviction by a jury, the mother argued the evidence was insufficient to establish that
she acted with the requisite intent to commit, encourage, or facilitate commission of the
crime of continuous sexual abuse of a child. (Id. at pp. 179–180.) The appellate court
disagreed, stating, “Ogg knew the full extent of Daniel’s criminal purpose and, by her
inaction, intended to facilitate his sexual abuse. It is a reasonable inference that Ogg, the
mother and caretaker of her minor daughter, knew Daniel had molested A.R. and would
continue to molest her without intervention. . . . Ogg facilitated the continuing sexual
abuse when she kept Daniel in the home, married him, and discouraged A.R. from
reporting the abuse.” (Id. at p. 181.) The court continued, “She both acted and failed to
act with the intent to facilitate his abuse. Substantial evidence supports the inference that
Ogg chose to facilitate the abuse rather than sever her relationship with Daniel.
Moreover, Ogg concealed the abuse by dissuading AR. from reporting it. ‘The culpability
of a person . . . who, in essence, condones such abusive behavior and then attempts to
hide it, thereby compounding the psychological harm to the child, must be as great as that
of the perpetrator.’ [Citation.]’” (Id. at pp. 181–182.) The court further rejected Ogg’s
claim that she could not be guilty as an aider and abettor because she was not present
during the commission of the crimes. (Id. at p. 182.)


                                             10
       As in Ogg, Olmos had been aware that Elias was abusing Brian for at least three
months, and probably longer because she avoided taking Brian to the doctor near his first
birthday to prevent discovery of the abuse. She admitted she had observed Elias commit
violent acts against Brian by pulling his hair, yanking him by the arms, spanking,
slapping, shaking, and repeatedly punching him. She knew Elias disliked Brian and that
Elias violently assaulted Brian when the child angered Elias, for example, by crying. She
knew that Elias’s violence had escalated over time from spanking to punching and that
Elias was undeterred by her attempts to intervene. She also knew that Elias’s violent
assaults on Brian left the child with bruises and enduring pain. Yet, as in Ogg, she
neither reported the abuse to the police nor terminated her relationship with Elias. She
instead facilitated Elias’s continuing abuse of Brian by continuing to reside with Elias and
allowing Elias to be alone with Brian and to abuse him. Olmos not only failed to take
Brian for treatment of the injuries Elias inflicted, but also knowingly concealed the abuse
by deciding not to take Brian to the doctor for a routine checkup because the doctor
would see Brian’s bruises.
       Also as in Ogg, the prosecutor contends that Olmos “both acted and failed to act
with the intent to facilitate [Elias’s] abuse.” (Ogg, supra, 219 Cal.App.4th at p. 181.)
Olmos argues in her return to the petition that she left Brian in the care of Maria, not
Elias. Blagg testified, however, that Maria, Elias, and Olmos all lived in the same house,
and Olmos clarified that she simply left Brian in his playpen, and Maria was supposed to
watch him. Olmos knew that when Elias returned home, he would have unfettered access
to Brian. Thus, Olmos was not protecting Brian or shielding him from Elias when she left
the child at home in Maria’s care.
       Drawing every legitimate inference in favor of the information, we necessarily
conclude that the magistrate, acting as a person of ordinary caution or prudence,
conscientiously could have entertained a reasonable suspicion that Elias violated section
273ab, subdivision (a) (assault) by assaulting Brian by means of force that, to a
reasonable person, would be likely to produce great bodily injury and that Olmos


                                             11
intentionally facilitated Elias’s aggravated assaults on Brian by continuing to expose
Brian to the severe abuse that she knew Elias had been inflicting upon him for at least
three months and probably longer.
       As noted, Olmos’s criminal liability as an aider and abettor alternatively could
have been premised upon Elias’s violation of section 273a, subdivision (a) (child abuse)
with liability for the greater offense of section 273ab, subdivision (a) (assault) resulting
from application of the natural and probable consequences doctrine. Thus, the magistrate
conscientiously could have entertained a reasonable suspicion that Olmos aided and
abetted Elias in committing child abuse in violation of section 273a, subdivision (a), and
that assault on a child by means of force likely to produce great bodily injury was a
natural and probable consequence of such child abuse, given the particular types of acts
Elias perpetrated, such as repeatedly punching Brian with a closed fist, and given that
Elias was an adult man and Brian was only about 18 months old.
       Accordingly, we conclude that the trial court erred in setting aside the information
with respect to the charge of assault on a child by means of force likely to cause great
bodily injury, resulting in death.
4.     Sufficiency of evidence of Olmos’s liability for murder
       Count 1 of the felony complaint and the information charged Olmos with murder
in violation of section 187, which is sufficient to charge murder in any degree, without
further specification. (People v. Harris (2008) 43 Cal.4th 1269, 1295.) Murder is the
unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice
may be express or implied. “It is express when there is manifested a deliberate intention
unlawfully to take away the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing show an abandoned
and malignant heart.” (§ 188.)
       Given the limited evidence introduced at the preliminary hearing, Olmos’s liability
for murder depends upon both her status as an aider and abettor and application of the
natural and probable consequences doctrine to extend her liability from the commission


                                              12
of child abuse or assault. Drawing every legitimate inference in favor of the information,
in light of Brian’s extreme youth and the form, extent, and escalation of the physical
assaults Elias had been inflicting upon Brian for at least three months, we conclude that
the magistrate, acting as a person of ordinary caution or prudence, conscientiously could
have entertained a reasonable suspicion that murder was a natural and probable
consequence of child abuse or assault on a child by means of force likely to produce great
bodily injury, and that Olmos intentionally facilitated Elias’s abuse of, and aggravated
assault upon, Brian by knowingly continuing to expose Brian to Elias’s severe abuse.
Accordingly, we conclude that the trial court erred also by setting aside the information
with respect to the murder charge.




                                            13
                                      DISPOSITION
       The petition for a writ of mandate is granted. We direct the superior court to
(1) vacate its order granting Olmos’s Penal Code section 995 motion to set aside the
information with respect to the murder (§ 187) and assault on a child by means of force
likely to cause great bodily injury, resulting in death (§ 273ab, subd. (a)) charges, and
(2) issue a new and different order denying Olmos’s section 995 motion with respect to
those two charges.
       NOT TO BE PUBLISHED.


                                                  MILLER, J.*
We concur:


       ROTHSCHILD, Acting P. J.


       JOHNSON, J.




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



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