Filed 5/16/16 Yhip v. Superior Court CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----



JAMES PETER YHIP et al.,                                                                     C075617

                   Petitioners,                                                     (Super. Ct. Nos.
                                                                                 CM036919 & CM036920)
         v.
                                                                                  OPINION ON REMAND
THE SUPERIOR COURT OF BUTTE COUNTY,

                   Respondent;

THE PEOPLE,

                   Real Party in Interest.



         Edelyn and James Peter Yhip, who were accused of the murder and child abuse of
their son Benjamin, brought a motion to dismiss the charges against them on the theory
the prosecution was collaterally estopped from pursuing the criminal case because of the
disposition in their favor of a related juvenile dependency proceeding involving the
Yhip’s two other children. The trial court denied the motion, and the Yhips filed a writ
of mandate with this court, which we denied.



                                                             1
       They petitioned the Supreme Court for review. The Supreme Court granted the
petition for review and transferred the matter back to this court with directions to vacate
the order denying the mandate, and to issue an order directing the trial court to show
cause why the relief sought should not be granted.
       Having reviewed the matter, we conclude that collateral estoppel is not applicable
in this case because the issue to be resolved in the criminal case was not decided in the
juvenile dependency proceeding, and because policy concerns weigh against an
application of collateral estoppel under the facts presented here. We shall deny the writ.
                   FACTUAL AND PROCEDURAL BACKGROUND
       James Yhip and his wife Edelyn adopted twin brothers Benjamin and J. from
Taiwan.1 The Yhips also had an older daughter, M. Benjamin suffered from a kidney
condition while he was in Taiwan, from which he fully recovered. He was diagnosed
with reactive attachment disorder after he came to live with the Yhips. James reported to
investigators that Benjamin banged his head when he was upset. James also reported that
Benjamin vomited frequently, and that the vomiting was self-induced. James reported
that Benjamin had been hospitalized for severe malnutrition and renal failure in
November 2011 because he refused to eat. At the time of his death, Benjamin had a
feeding tube that fed him directly into his stomach. Benjamin cried excessively,
according to James, and had done so since they picked him up in Taiwan. Benjamin’s
health problems were so exhausting for Edelyn, that the Yhips had decided to have
Benjamin re-adopted (adopted by another family).
       On April 18, 2012, Edelyn called 911. The emergency medical technicians found
Benjamin lying on the floor, pale, not breathing, and unresponsive. Benjamin was taken
to a hospital in Chico. The doctors there found no sign of any brain function. Benjamin



1 We refer to Benjamin’s parents by their first names solely to avoid confusion. No
disrespect is intended.

                                             2
was transferred to a hospital in Sacramento, where he died the next day. The autopsy
report indicated Benjamin died of anoxic encephalopathy due to blunt force trauma and
craniocerebral injuries. He also showed signs of malnutrition and hypothermia.
Benjamin was two years eight months old.
       Butte County Children’s Services detained M. and J. Butte County filed a juvenile
dependency petition pursuant to Welfare and Institutions Code section 300, subdivision
(j).2 Section 300, subdivision (j) provides that the juvenile court may adjudge a child a
dependent if: “ [t]he child’s sibling has been abused or neglected, . . . and there is a
substantial risk that the child will be abused or neglected . . . . The court shall consider
the circumstances surrounding the abuse or neglect of the sibling, the age and gender of
each child, the nature of the abuse or neglect of the sibling, the mental condition of the
parent or guardian, and any other factors the court considers probative in determining
whether there is a substantial risk to the child.”
       After a lengthy jurisdictional trial, the juvenile court ruled as follows:

               “In the case of In re: Ricardo L., 109 Cal.App.4th 552, it was made
       clear that there are two prongs to a [section] 300 [subdivision] (j)
       allegation, each of which must be proved by the Department.

              “As to the second prong, the Department has not presented evidence
       that preponderates towards a finding that [J.] or [M.] are at substantial risk
       to be abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i)
       of the W[elfare] and I[nstitutions] Code Section 300.

              “I have considered [J.’s] age and gender in relation to Benjamin’s. I
       have considered the circumstances surrounding the alleged abuse of
       Benjamin, the argument that a parent lost patience with a very sick child
       who was rejecting the parent. I have considered the nature of the alleged
       abuse, the infliction of force sufficient to cause a head injury. I have
       considered the alleged depression of the mother. I have also considered



2 Further statutory references to sections of an undesignated code are to the Welfare and
Institutions Code.

                                               3
       that there is no person who has come forward to state that either parent
       inflicted the force alleged to have caused Benjamin’s death.

              “To the contrary, I have heard the abundant evidence that each
       parent has nothing other -- was nothing other than a concerned, loving, and
       appropriate parent to all three children.

              “I’ve also considered there’s a large body of evidence which
       suggests that Benjamin died due to extreme illness as opposed to criminal
       agency. I have also considered that the parents at all times sought
       appropriate medical treatment for Benjamin and, hence, Benjamin did not
       die due to neglect of the parents in seeking medical treatment.

               “. . . [T]he Court has had an opportunity to observe the parents and
       to rule on numerous motions to expand visitation of [J.] and [M.] to the
       point where the Court returned the children over a month ago.

              “The county has failed to prove the second prong of the
       [subdivision] (j) allegation of Section 300.

              “Accordingly, under Section 356, the petition is dismissed and the
       children are dismissed from any restriction previously ordered.”
       Prior to the conclusion of the juvenile matter, the People filed an information
charging Edelyn and James with murder and child abuse. After the conclusion of the
juvenile matter, the Yhips made a motion to dismiss the criminal proceeding on the
ground of collateral estoppel. The trial court denied the motion on the ground the
estopped parties were not in privity, opining that “[i]f the District Attorney had to
anticipate that every ruling coming from another court could have the effect of collateral
estoppel, it would necessitate staffing all other proceedings with representatives from the
District Attorney’s office to ensure all the issues were litigated to his satisfaction.”
       The Yhips filed a petition for writ of mandate with this court, which was denied.
The Yhips then petitioned for review with the Supreme Court, and the court granted the
petition. The Supreme Court directed this court to vacate the order denying mandate and
issue an order directing the superior court to show cause why the relief sought should not
be granted. We issued the order to show cause.



                                               4
                                       DISCUSSION
       As indicated, Edelyn and James argue the criminal case must be dismissed
because the doctrine of collateral estoppel bars the relitigation of issues that were decided
in the juvenile proceeding. Collateral estoppel bars the relitigation of an issue decided in
a prior proceeding, “ ‘if (1) the issue necessarily decided at the previous [proceeding] is
identical to the one which is sought to be relitigated; (2) the previous [proceeding]
resulted in a final judgment on the merits; and (3) the party against whom collateral
estoppel is asserted was a party or in privity with a party at the prior [proceeding].’
[Citation.]” (People v. Sims (1982) 32 Cal.3d 468, 484, fn. omitted, superseded by
statute on another ground as stated in Gikas v. Zolin (1993) 6 Cal.4th 841, 851-852.)
       The trial court found that the issue decided by the juvenile court was identical to
the issue to be decided in the criminal case, thus the first element of collateral estoppel
was met. The court also found no dispute that the dependency ruling was a final
judgment on the merits. However, the trial court found that Butte County Children’s
Services and the district attorney for Butte County were not in sufficient privity to
compel dismissal of the criminal case.
       The trial court recognized that People v. Percifull (1992) 9 Cal.App.4th 1457
(Percifull), did not apply collateral estoppel because of the “ ‘importance of preserving
the criminal trial process as the exclusive forum for determining guilt or innocence as to
new crimes,’ ” and because the two proceedings serve different public interests and
purposes, since juvenile proceedings are intended to protect the public, the minor, and the
minor’s family ties if possible.
       The trial court also recognized contrary authority in Lockwood v. Superior Court
(1984) 160 Cal.App.3d 667 (Lockwood). In Lockwood, the court dismissed a felony child
abuse prosecution after a dependency petition based on the same facts was dismissed as a
result of conflicting expert testimony as to the cause of the child’s injuries. The trial
court stated that Lockwood found the issues were identical even though the purposes of

                                              5
the two proceedings were different. The parties’ briefing focuses on this split of
authority, and the policies behind applying collateral estoppel in a criminal case
following the conclusion of a juvenile dependency proceeding. We review the trial
court’s decision whether to apply collateral estoppel de novo. (Roos v. Red (2005) 130
Cal.App.4th 870, 878.)
                                              I
                       The Issue to be Decided in the Criminal Case
                      Was Not Necessarily Decided in the Juvenile Case
       Collateral estoppel will not bar relitigation of an issue unless the issue decided at
the previous proceeding is identical to the one sought to be relitigated. (People v. Sims,
supra, 32 Cal.3d at p. 484.)3 James and Edelyn are charged in the criminal information
with murder and child abuse. The issues to be decided relative to the charge of murder
were whether one or both parents unlawfully killed Benjamin with malice aforethought.
(Pen. Code, § 187.) The issues to be decided relative to the charge of child abuse were
whether one or both parents willfully inflicted or permitted unjustifiable injury on
Benjamin under circumstances likely to produce great bodily harm or death. (Pen. Code,
§ 273a, subd. (a).)
       In the dependency proceeding, the court could not declare M. and J. dependent and
within the jurisdiction of the juvenile court unless it found both: (1) that James and/or
Edelyn had abused or neglected Benjamin, and (2) that there was a substantial risk that
M. and J. would be abused or neglected. (§ 300, subd. (j).)
       While the first issue may have been identical to the issue to be determined in the
criminal case, the juvenile court specifically did not make a finding on that issue, but




3  As indicated, collateral estoppel also requires that the previous proceeding resulted in a
final judgment on the merits, and that the party against whom estoppel is asserted was a
party or in privity with a party at the prior proceeding.

                                              6
rested its judgment solely on the second issue. The juvenile court began and ended its
ruling by finding that the county had not met its burden as to the second prong of section
300, subdivision (j). The court then went on to list a number of factors it considered and
evidence it heard in the course of making its finding. As is relevant here, it stated that it
had “considered” the fact that no one testified that either parent had caused Benjamin’s
death, that it had heard evidence that that the parents were concerned and loving to all
three children, that it “considered” the evidence that Benjamin died due to illness rather
than criminal agency, and that it “considered” evidence that the parents sought
appropriate medical treatment for Benjamin and that he did not die due to neglect in
seeking medical treatment. In listing these considerations, the court was following the
directive of subdivision (j) of section 300, which states that the court may consider other
facts it “considers probative in determining whether there is a substantial risk to the
child.”
          Importantly, the juvenile court did not state that it had made a finding or
determination that the parents had not abused Benjamin or caused his death, only that the
court had considered evidence to that effect presented by the parents. We cannot say that
the juvenile court necessarily determined that M. and J. were not in danger because the
juvenile court found the parents had not abused Benjamin. Had that been the juvenile
court’s conclusion, it presumably would have said just that. Instead, the juvenile court
may have reasoned that given the conflicting evidence, it could return the children to
their parents based upon a finding that those children were not it danger without the
necessity of determining whether the parents had abused Benjamin.
          On this particular point, it is important to note that evidence was presented that
Benjamin was treated differently than the other two children. For example, Benjamin
and J. both used high chairs. J.’s chair had padding and a cover with print on it.
Benjamin’s had no padding, and was just white plastic. Benjamin’s bedroom was at the
opposite end of the house from the other bedrooms, with no photos on the wall. It

                                                7
appeared to be a guest room with a crib in it. By contrast, M.’s room had pink walls and
a pink bed, and contained toys, stuffed animals, books, and pictures of M. J.’s room was
blue, and contained toys and clothes consistent with a little boy’s room. Thus, the issue
to be decided in the criminal action, i.e., whether one or both parents killed or abused
Benjamin, was not an issue necessarily decided in the juvenile proceeding, since the
juvenile court could have concluded M. and J. were in no danger from their parents
because they were treated better than Benjamin.
                                              II
                    Policy Concerns Rule Out Collateral Estoppel Here
       Even if we were to conclude that all of the threshold requirements were satisfied,
collateral estoppel is not appropriate unless its application will further the public policies
of “preservation of the integrity of the judicial system, promotion of judicial economy,
and protection of litigants from harassment by vexatious litigation.” (Lucido v. Superior
Court (1990) 51 Cal.3d 335, 343 (Lucido).) We conclude this would not be an
appropriate case for collateral estoppel even if all the threshold requirements were met,
because application of the doctrine would not serve the fundamental principles
underlying it.
       A. Lucido v. Superior Court
       In Lucido, supra, 51 Cal.3d 335, the Supreme Court held that a determination
following a probation revocation hearing had no preclusive effect on a subsequent
criminal trial based on the same charges. The court refused to apply collateral estoppel,
even though the threshold requirements of collateral estoppel were met. The court stated
that, “the public policies underlying collateral estoppel -- preservation of the integrity of
the judicial system, promotion of judicial economy, and protection of litigants from
harassment by vexatious litigation -- strongly influence whether its application in a
particular circumstance would be fair to the parties and constitutes sound judicial policy.”
(Id. at p. 343.)

                                              8
       Lucido held that the application of collateral estoppel would undermine the
integrity of the judicial system because probation revocation hearings serve different
public interests from criminal trials, and different concerns shape the People’s pursuit of
revocation on the one hand and conviction on the other. (Lucido, supra, 51 Cal.3d at p.
347.) Included in this determination was the concern that a parole revocation hearing is
an inquiry of limited nature that might not involve the presentation of all evidence
bearing on the facts. (Id. at p. 348.) Lucido stated that collateral estoppel should not be
applied to preclude a criminal trial unless “compelling public policy considerations
outweigh[] the need for determinations of guilt and innocence to be made in the usual
criminal trial setting.” (Id. at p. 349.)
       Lucido further concluded that the factors involved in its determination that
collateral estoppel would undermine the integrity of the judicial system outweighed the
second of the public policies underlying collateral estoppel--the judicial economy that
collateral estoppel would achieve. (Lucido, supra, 51 Cal.3d at pp. 350-351.) “Whatever
the efficiencies of applying collateral estoppel in this case, they pale before the
importance of preserving the criminal trial process as the exclusive forum for determining
guilt or innocence as to new crimes.” (Id. at p. 351.)
       Finally, as to the third of the public policies underlying collateral estoppel, Lucido
determined that collateral estoppel might eliminate repetitive litigation in the case before
it, but that repetitive litigation is not vexatious litigation because it is not “harassment
through baseless or unjustified litigation.” (Lucido, supra, 51 Cal.3d at p. 351.) “The
public has a legitimate expectation that a person once found guilty of a crime may both
be held to the terms of his probation and (if deemed appropriate by the prosecution) tried
anew for any offenses alleged to have been committed during the probationary period.
For this reason, it is neither vexatious nor unfair for a probationer to be subjected to both
a revocation hearing and a criminal trial. The People’s failure to prevail at the revocation



                                               9
hearing does not alone transform the otherwise permissible subsequent trial into
harassment.” (Ibid.)
       B. Lockwood v. Superior Court and People v. Garcia
       Lockwood, supra, 160 Cal.App.3d 667, is the case relied upon by Edelyn and
James. It is a First District Court of Appeal Case decided six years prior to Lucido.
Lockwood held that a felony child abuse case accusing parents of inflicting abuse on their
son, had to be dismissed on the ground of collateral estoppel after a juvenile court
dismissed a dependency petition based on the same facts. (Id. at p. 669.) Lockwood
focused on the fact that the threshold requirements for collateral estoppel had been met,
but did not consider whether it might refuse to apply the doctrine for policy reasons, as
was later determined by the Supreme Court in Lucido.
       Edelyn and James claim the Supreme Court “has recently commented that
Lockwood may be rightly decided” in In re Ethan C. (2012) 54 Cal.4th 610. Petitioners
make entirely too much of In re Ethan C.’s reference to Lockwood. In re Ethan C. held
that juvenile court dependency jurisdiction based on causing the death of another child
under section 300, subdivision (f) does not require criminal negligence, but only ordinary
negligence. (In re Ethan C., at pp. 617-618, 637.) Ethan C.’s father argued that when
section 300, subdivision (f) was amended to eliminate the need for a criminal conviction
as a prerequisite to dependency proceedings based on another child’s death, a concern
about collateral estoppel issues was raised. (In re Ethan C., at p. 635.) In response to the
parent’s argument that this would mean ordinary negligence could produce collateral
estoppel problems in a criminal prosecution, the court stated even under an interpretation
that required criminal negligence, the amendments reduced the standard of proof in a
dependency case “and thus created a potential bar to criminal prosecution if an
antecedent dependency proceeding resulted in a finding that criminal negligence had not
been established by even a preponderance of evidence. (See In re Nathaniel P. (1989)
211 Cal.App.3d 660, 670; Lockwood v. Superior Court (1984) 160 Cal.App.3d 667, 672;

                                            10
but see People v. Percifull (1992) 9 Cal.App.4th 1457, 1459; cf., Lucido v. Superior
Court (1990) 51 Cal.3d 335, 347.)” (In re Ethan C., at p. 635, italics added.)
       This reference to Lockwood in dicta in no way overruled Lucido, or decided that
collateral estoppel must be applied by courts whenever the threshold requirements are
met, regardless of any public policy concerns.
       Edelyn and James also claim that the Supreme Court’s decision in People v.
Garcia (2006) 39 Cal.4th 1070 (Garcia) limited the holding in Lucido “to its unique
circumstances.” It did not.
       Garcia, supra, 39 Cal.4th 1070, involved a prior administrative hearing which
exonerated a welfare recipient (Garcia) of fraud charges. The Supreme Court held that
the exoneration by the Department of Social Services collaterally estopped a criminal
prosecution for welfare fraud. (Id. at p. 1074.) However, Garcia is distinguishable from
this case because of the court’s concern over the doctrine of stare decisis. In the earlier
case, People v. Sims (1982) 39 Cal.4th 1070, the Supreme Court was confronted with the
same issues it would later face in Garcia. People v. Sims held that collateral estoppel
prevented the People from prosecuting a defendant for welfare fraud after an
administrative hearing exonerated the defendant of welfare fraud. Garcia stated that,
“[p]rinciples of stare decisis present a formidable obstacle to the People’s request that we
reconsider our decision in Sims, which has been the law for nearly 25 years . . . .”
(Garcia, supra, 39 Cal.4th at p. 1080.)
       In addition to the consideration of stare decisis, Garcia concluded that public
policy considerations favored the application of collateral estoppel. The court expressed
particular concern that inconsistent judgments could undermine the integrity of the
judicial system, since one proceeding could find the recipient had lawfully received
benefits, and the other could find the same receipt of benefits constituted fraud. (Garcia,
supra, 39 Cal.4th at p. 1079.) The court noted that the recipient could not rely on success
in one forum, because he or she might still be required to return the benefits after a

                                             11
criminal prosecution. (Ibid.) Thus, Garcia apparently concluded there was a lack of
distinction between the purposes served by the administrative hearing to determine
whether overpayments were the result of intentional violations, and the criminal
prosecution for welfare fraud. Rather than supporting the holding in Lockwood, which
considered only whether the threshold elements of collateral estoppel were met, Garcia
affirmed the Supreme Court’s position in Lucido, which was that policy concerns must be
part of the collateral estoppel equation, even though the threshold elements are present.
In the welfare fraud context, the purpose of both the administrative and criminal
proceedings is to stop welfare fraud. As discussed below, the purposes of juvenile
dependency and criminal prosecutions are very different.
       C. People v. Percifull
       In Percifull, supra, 9 Cal.App.4th 1457, the Sixth District Court of Appeal
confronted the question in the same context presented here, i.e., a criminal case following
a juvenile dependency proceeding. Recognizing that the case before it was procedurally
similar to Lockwood, Percifull held that in light of Lucido, collateral estoppel should not
be applied because of Lucido’s “repeated emphasis on . . . ‘the importance of preserving
the criminal trial process as the exclusive forum for determining guilt or innocence as to
new crimes.’ [Citation.]” (Percifull, at pp. 1461.)
       Relevant to the discussion here, Percifull held that the dependency proceeding and
the criminal prosecution were intended to serve different purposes, which were in some
respects in direct conflict. (Percifull, supra, 9 Cal.App.4th at p. 1462.) “The dependency
proceeding was intended to meet two vitally important social needs: protection of the
child and preservation, so far as possible, of the integrity of the family.” Id. at p. 1461.)
The purpose of the criminal trial, on the other hand, is “to vindicate society’s insistence
that every citizen obey the penal laws.” (Ibid.) Percifull concluded that, “[t]o permit the
issues tendered by the felony charges to be resolved on the basis of a determination that
the child did not come within the jurisdictional provisions of the dependency statute

                                              12
would be to frustrate the right of all the people of California to insist on enforcement of
their penal laws through the medium of the criminal trial process.” (Ibid.)
          Percifull held that the aims and tactics of dependency and criminal proceedings
were in direct conflict, in that the juvenile court is bound to preserve and strengthen the
minor’s family ties when possible, whereas a successful criminal prosecution is expected
to culminate in prison sentences for one or both parents, thus disrupting the family.
(Percifull, supra, 9 Cal.App.4th at p. 1462.) “Thus tactics devised by public counsel in
the dependency proceeding, influenced by the need to preserve the family if possible,
may not serve the public’s interest in imposing legislatively specified punishment for
child abuse. Whether the tension between these goals is in any sense undesirable is a
judgment for the Legislature to make; so long as the conflict is legislatively ordained, the
sound policies recognized in Lucido require that the criminal prosecution be permitted to
proceed notwithstanding a finding of no jurisdiction in the dependency proceeding.”
(Ibid.)
          Percifull concluded the differences in purpose between the two proceedings
justified the second proceeding, even at the risk of an inconsistent result. (Percifull,
supra, 9 Cal.App.4th at p. 1462.) It stated, “there is no consideration so compelling as to
outweigh the public’s right to have the parents’ criminal culpability separately and fully
assessed in the criminal trial process, even if the result of that assessment may ultimately
be, or be perceived to be, inconsistent with the conclusion the juvenile court reached.”
(Ibid.)
          As in Lucido, Percifull concluded that the above factors outweighed consideration
of judicial economy. (Percifull, supra, 9 Cal.App.4th at p. 1463.) “ ‘Whatever the
efficiencies of applying collateral estoppel in this case, they pale before the importance of
preserving the criminal trial process as the exclusive forum for determining guilt or
innocence as to new crimes.’ ” (Ibid., quoting Lucido, supra, 51 Cal.3d at p. 351.)



                                              13
       Lucido held that vexatious litigation is not repetitive litigation, but harassment
through baseless or unjustified litigation. (Lucido, supra, 51 Cal.3d at p. 351.) Percifull
concluded that the child abuse charges before it were neither baseless nor unjustified.
(Percifull, supra, 9 Cal.App.4th at p. 1463.)
       The public policy considerations that weighed in favor of the court’s refusal to
apply collateral estoppel in Percifull apply equally here. First, the purposes of the two
proceedings, which Lucido considered the most important factor, are the same here as
they were in Percifull. Here, those differing purposes likely result in the dependency
proceeding being tried with different evidence than the criminal proceeding because of
the differing timelines of the procedures. In light of the purposes of dependency
proceedings (to preserve and strengthen the minor’s family ties whenever possible) the
hearings are required to be “expeditious.” (§§ 202, 350.) Where, as here, a child is
detained, a hearing must be held within 15 days. (§ 334.) A continuance may not be
granted if it is contrary to the interests of the minor. (§ 352.)
       By contrast, the time for commencing a felony trial runs 60 days from
arraignment, and may be continued on a showing for good cause. (Pen. Code, § 1049.5.)
This longer time means more time to investigate and uncover evidence that may be
presented at the criminal trial.
       The differing burdens of proof are another factor that convinces us collateral
estoppel is inappropriate under these circumstances. The parents argue the lower burden
of preponderance of evidence in the juvenile proceeding demonstrates there must be
insufficient evidence in the criminal case. We disagree. Not only, as discussed above,
does the county have less time to gather evidence for the juvenile hearing, but also it may
have an incentive to refrain from putting on its full criminal case at the juvenile hearing,
precisely because of the lower burden of proof. Here, for example, the doctor who
performed Benjamin’s autopsy was not called to testify at the juvenile dependency
hearing.

                                              14
       Second, as in Percifull, and Lucido, the different purposes justify the criminal
proceeding and outweigh considerations of judicial economy.
       Finally, the record in this case, like that in Percifull, indicates the prosecution of
the criminal action is not baseless or unjustified. In the dependency proceeding, Butte
County presented evidence Benjamin had been abused by introducing Benjamin’s
autopsy report, which concluded he died of anoxic encephalopathy due to blunt force
trauma and craniocerebral injuries, with secondary conditions of malnutrition and
hypothermia. Butte County also presented the testimony of its expert pediatrician, who
was also Benjamin’s treating physician, and who testified Benjamin died of abusive head
trauma that caused a subdural hematoma. The pediatrician based her conclusion on the
“massive amount of brain swelling, a large subdural hematoma, extensive retinal
hemorrhages, and bruising on the ear” when Benjamin was brought to the hospital. The
pediatrician also based her conclusion on the fact that Benjamin was extremely
underweight and suffering chronic malnutrition, and that he had a pattern of healing
fractures in his arms, hands, and feet that was more commonly seen with abusive injury.
       To counter Butte County’s evidence, the parents presented their own experts who
testified Benjamin’s bone fractures could be explained by a rare inherited metabolic bone
disease called hypophosphatasia. The parents’ expert opined that Benjamin had not died
of head trauma, but of cortical venous thrombosis, which was a complication from an
earlier bacterial infection.
       The district attorney presented evidence in the later criminal case that ruled out the
possibility Benjamin had been suffering from hypophosphatasia.4 While this was not a
direct cause of Benjamin’s death, it calls into question the reason for Benjamin’s multiple
broken bones, and removes the explanation of underlying disease for some of Benjamin’s



4 The Baylor College of Medicine Medical Genetics Laboratories reported that Benjamin
did not have the disorder.

                                              15
injuries. This new evidence, together with, at a minimum, the autopsy report that
Benjamin died of blunt force trauma, and the pediatrician’s testimony that Benjamin’s
injuries and symptoms indicated nonaccidental abusive head trauma, is sufficient to
support a conclusion that the criminal proceeding is not baseless or unjustified.
       Also, as Percifull recognized, “One critically important element of the criminal
trial process is the exercise of the district attorney’s sound discretion as to whether
prosecution is or is not warranted in any particular case. In the case before us we would
trust the district attorney to exercise his or her discretion with wisdom and caution, taking
into account not only the state of the evidence and the right of the people to enforcement
of the penal laws, but also the order of the juvenile court, the current status of the
reunited family . . . and the impact already made upon the parents by the anguish and
expense of the dependency proceedings.” (Percifull, supra, 9 Cal.App.4th at p. 1463.)
       Percifull is on all fours with the case before us because it considered the
preclusive effect of a juvenile dependency proceeding on a criminal prosecution for child
abuse. We find the reasoning of Percifull persuasive.
                                       DISPOSITION
       The petition for writ of mandate is denied. The stay of the jury trial is vacated
upon issuance of the remittitur.


                                             /s/
                                           Blease, Acting P. J.

We concur:


         /s/
       Hull, J.


        /s/
       Murray, J.


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