Field 7/23/14 P. v. Hernandez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,                                         G048021

         v.                                                            (Super. Ct. No. 10HF1594)

CHRISTOPHER HERNANDEZ,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
J. Michael Beecher, Judge. (Retired judge of the Orange Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed and remanded for
resentencing.
                   Erica Gambale for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
                                    INTRODUCTION
              Defendant Christopher Hernandez appeals from the judgment of conviction
entered after a jury found him guilty of willfully harming a child and willfully inflicting
cruel or inhuman corporal punishment on a child. The jury also found true, as to both
offenses, the enhancement allegation that Hernandez inflicted great bodily injury to a
child while committing or attempting to commit a felony. Hernandez contends the trial
court erred by allowing expert witness testimony about shaken baby syndrome and
injuries typically suffered by children in high-speed collisions. He argues the expert
witnesses lacked sufficient qualifications to offer expert opinions on those subjects and
the court should have sustained his objections to that testimony. Hernandez also
contends the trial court abused its discretion by imposing the upper term sentence of six
years for the conviction of willfully harming a child.
              We affirm and remand for resentencing. For the reasons we will explain in
detail post, the prosecution’s expert witnesses, who were all physicians and had treated
Hernandez’s victim, were amply qualified to offer the expert opinions they gave at trial.
We therefore affirm the judgment. Because the trial court failed to state reasons for
imposing the upper term sentence, we remand for resentencing.


                                          FACTS
              In 2010, Hernandez lived with his girlfriend, C.F, and C.F’s 13-month-old
daughter, D. On September 2, 2010, C.F. took a shower, leaving D. alone with
Hernandez. Minutes later, Hernandez entered the bathroom and told C.F. that D. was not
breathing correctly.
              At C.F.’s direction, Hernandez called 911, and the paramedics took D. to
the emergency room. Hernandez told C.F. he had dropped D., tried to splash water on
her face, and spanked her to try to awaken her. Hernandez told Orange County Sheriff’s



                                             2
Detective Mike Starnes that D. fell and hit her head; Hernandez stated he had dropped D.,
and denied shaking her.
              During D.’s 20-day stay in the hospital, four physicians were involved in
her care. Dr. Kenneth Kwon, a pediatric emergency room physician, performed an
endotracheal intubation because D. was having difficulty breathing. Dr. Kwon also
ordered a CAT scan for D.; she was thereafter admitted to the pediatric intensive care
unit. Dr. Kwon testified D.’s injuries were due to “non-accidental trauma” and were
similar to “acceleration or deceleration” injuries.
              Dr. Todd Lempert, a radiologist, reviewed D.’s MRI and CAT scan results.
He determined D. suffered from an interhemispheric subdural hematoma and a frontal
subdural hematoma. Dr. Lempert testified D.’s injuries were a “classic kind of thing for
child abuse” and consistent with shaken baby syndrome.
              Dr. Ramin Tayani, an ophthalmologist, examined D.’s eyes. He
determined D. had hemorrhages in both eyes. Dr. Tayani testified he had noted “the
diagnos[is] of shaken baby syndrome should be considered highly.”
              Dr. Gary Goodman, a pediatric intensive care physician, took care of D.
while she was in the pediatric intensive care unit. Dr. Goodman saw bruises on D.’s
back, buttocks, left ear, and thigh. He testified infants “can be injured by having them
being shaken very hard” and “subdural hematomas and retinal hemorrhages” are common
injuries from being shaken. Dr. Goodman also testified D.’s injuries were similar to
                          1
rotational force injuries.
              Dr. Janice Ophoven, a pediatric forensic pathologist and pediatric
pathologist, testified as an expert for Hernandez. She testified D.’s injuries were from


       1
         Hernandez’s reply brief states he “raised no objections to Dr. Goodman’s
opinions during the trial . . . because Dr. Goodman did provide the necessary training,
experience, and education to render such an opinion.” We therefore do not further
address Dr. Goodman’s testimony.

                                              3
blunt force trauma to her head with resulting complications. Dr. Ophoven also testified
D.’s injuries could not have occurred from being shaken without impact.


                            PROCEDURAL BACKGROUND
              Hernandez was charged in an information with one count of willfully
harming a child in violation of Penal Code section 273a, subdivision (a) (count 1), and
one count of willfully inflicting cruel or inhuman corporal punishment on a child in
violation of Penal Code section 273d, subdivision (a) (count 2). The information also
alleged, as to counts 1 and 2, that Hernandez inflicted great bodily injury to a child while
committing or attempting to commit a felony, within the meaning of Penal Code
section 12022.7, subdivision (d).
              The jury found Hernandez guilty of counts 1 and 2, and it found true the
enhancement allegation as to both counts. Hernandez filed a motion for a new trial on
the ground Dr. Lempert and Dr. Tayani were unqualified to testify about shaken baby
syndrome. The trial court denied Hernandez’s motion.
              The trial court sentenced Hernandez to a total prison term of 12 years by
imposing the upper term of six years on count 1 and a consecutive six-year term for the
attendant enhancement. Pursuant to Penal Code section 654, the court stayed execution
of sentence as to count 2 and the attendant enhancement. Hernandez appealed.


                                      DISCUSSION
                                             I.

           THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ADMITTING
                THE PROSECUTION’S EXPERT WITNESSES’ TESTIMONY.

              Hernandez contends the trial court erred by allowing Dr. Tayani and
Dr. Lempert to testify about shaken baby syndrome because they were not qualified to
offer expert opinions on that subject. For the reasons we explain post, Dr. Tayani and


                                             4
Dr. Lempert were more than qualified to offer the expert opinions they gave at trial.
Although Hernandez’s appellate briefs suggest Dr. Kwon was unqualified to testify about
shaken baby syndrome, his testimony did not include that subject. He did testify D.’s
injuries were “non-accidental,” and as discussed post, he was well qualified to offer that
testimony. Hernandez argues the trial court erred by allowing Dr. Kwon to testify D.’s
injuries were similar to high-speed collision injuries; Hernandez’s challenge as to that
testimony is also without merit.
                                              A.

                      Evidence Code section 720, subdivision (a) and
                            the applicable standard of review
              Evidence Code section 720, subdivision (a) provides that an expert is
qualified if the expert has “special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his testimony relates.” The
California Supreme Court has stated, “the determinative issue in each case must be
whether the witness has sufficient skill or experience in the field so that his testimony
would be likely to assist the jury in the search for the truth.” (Mann v. Cracchiolo (1985)
38 Cal.3d 18, 38.) “When a preliminary showing is made that the proposed witness has
sufficient knowledge to qualify as an expert under the Evidence Code, questions about
the depth or scope of his or her knowledge or experience go to the weight, not the
admissibility, of the witness’s testimony.” (People v. Jones (2013) 57 Cal.4th 899,
949-950.)
              Courts have considered a variety of factors in evaluating the qualification of
a medical expert to testify on a subject, including whether the expert has (1) a degree
from an educational institution or is published in the field (People v. Jones, supra, 57
Cal.4th at p. 950); (2) studied medical literature on the subject, completed specialized
training on the subject, or practiced in the field for a substantial period of time (People v.
Catlin (2001) 26 Cal.4th 81, 132, 133); (3) taught in the field (Salasguevara v. Wyeth


                                              5
Laboratories, Inc. (1990) 222 Cal.App.3d 379, 386); (4) belonged to professional
organizations in the field (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1296);
(5) treated patients suffering from similar injuries (In re Roberto C. (2012) 209
Cal.App.4th 1241, 1250 [upholding a physician’s statement that a child’s injuries were
similar to angular acceleration injuries because she had seen such injuries in other
patients]); and (6) encountered the subject with some frequency (Mann v. Cracchiolo,
supra, 38 Cal.3d at p. 38).
               We review the trial court’s admission of expert testimony for abuse of
discretion. (People v. Jones, supra, 57 Cal.4th at p. 949.)


                                                 B.

               Dr. Tayani was qualified to testify “the diagnos[is] of shaken
                      baby syndrome should be considered highly.”
               Dr. Tayani testified as follows about his qualifications as an expert at trial.
Dr. Tayani earned a medical degree from the University of California, Irvine, and
completed a residency program in ophthalmology. He has been practicing
ophthalmology since 1999. He founded an ophthalmology practice that now has seven
locations, and he is on staff at multiple hospitals, including the University of California,
Irvine Medical Center. Dr. Tayani has also read textbooks about causes of eye
hemorrhages.
               Dr. Tayani testified that although there are 30 to 50 causes of eye
hemorrhages, the list of possible causes “gets smaller” in the case of a 13-month-old
child who does not have diabetes or leukemia; shaken baby syndrome is on that smaller
list. Dr. Tayani further testified as follows:
               “[The prosecutor:] Q. All right. And did you document the amount of
hemorrhage, if you can—



                                                 6
               “A. I don’t recall that either. I do remember there [were] hemorrhages in
both eyes.
               “Q. All right. And you’ve mentioned the list and differential diagnosis
meaning you could have five different medical reasons or five different reasons that
particular condition would cause the hemorrhage, but as you go through and eliminate
things, either other types of tests or other things that other doctors have done that reduces
the number of causes that could cause a particular thing; is that correct?
               “A. Correct.
               “Q. So you’re overall looking at a much bigger picture even though you
have [a] small slice of it, right?
               “A. Correct.
               “Q. Now, once you made the determination that there was the hemorrhage,
were you able to—what did you do with that information? Did you talk to another doctor
or—
               “A. No, I don’t recall talking to another doctor. Most of the
communications at the level that I’m at, is essentially a consultant, is communicated
through the chart and notation. So I made my notation that there is bilateral hemorrhage
and accompanied with the fact there is intracranial hemorrhage, the diagnos[is] of shaken
baby syndrome should be considered highly.
               “[Defense counsel]: Objection. Speculation. Lacks foundation. Move to
strike.
               “The Court: Well, I believe that he has just—that that’s one thing to be
considered, and if that’s his opinion I don’t see a basis for striking it. He’s not saying
that’s it. Just it’s something to consider.
               “[The prosecutor]: Thank you doctor, nothing further.”
               Hernandez contends Dr. Tayani was not qualified to testify that “the
diagnos[is] of shaken baby syndrome should be considered highly.” Hernandez does not

                                              7
challenge Dr. Tayani’s qualifications to diagnose bilateral eye hemorrhages. Dr. Tayani
never testified D.’s injuries were because of shaken baby syndrome or even that it was
the likely diagnosis. He testified that given his observation D. had suffered bilateral eye
hermorrhages, combined with his understanding she had also suffered an intracranial
hemorrhage, shaken baby syndrome was something to be “considered highly.” Although
Dr. Tayani’s primary area of expertise is ophthalmoplasty reconstructive surgery, there is
no question that, given his background, he was amply qualified to testify about eye
injuries and their possible causes. The trial court did not abuse its discretion by admitting
Dr. Tayani’s expert testimony.


                                             C.

               Dr. Lempert was qualified to testify that D.’s injuries were a
                “classic kind of thing for child abuse” and consistent with
                                  shaken baby syndrome.
              Dr. Lempert testified about his qualifications as follows. He graduated
from medical school, and he is the chief of radiology, chief of stroke treatment, and chief
of interventional radiology at Mission Hospital, Mission Viejo. His specialized training
included completing a residency in diagnostic radiology and fellowships in diagnostic
neuroradiology, interventional neuroradiology, and interventional radiology. He studied
under Dr. Jim Barkovich, the recognized world expert in pediatric neuroradiology.
Dr. Lempert was also a professor at the University of California, San Francisco.
              At trial, the prosecutor asked Dr. Lempert to give an example of what
might cause the type of brain hemorrhages and stroke that D. suffered, based on the
results of her MRI and CAT scan. The following colloquy ensued:
              “[Dr. Lempert:] A. Oh, sure. I mean, you know—I mean, having, you
know, 20 plus years of experience in this area and doing pediatric neuro and writing
textbooks. I mean, this would be a classic kind of thing for child abuse.


                                             8
              “[Defense counsel]: Objection. Lacks foundation. Speculation.
              “The Court: Well, I don’t think it’s speculation. He’s just saying his
experience is one source, right? So far overruled.
              “[Dr. Lempert]: Let me amplify what I’m saying, okay? Very typically,
you know, in our textbook type cases, you know, there are complex injuries. In so-called,
quote, unquote, ‘shaken baby syndrome’ sometimes you get a combination of physical
trauma and strangulation. And so you can have a child that’s got their head hit against a
wall or a floor and so you get the blood, right? You get the trauma.
              “But then you get strangulation which then deprives the brain of oxygen so
you get two different kinds of injury. You get the strangulation injury which produces
stroke on an M.R.I. and you get the physical, shaken trauma that produces the blood. So,
you know, it’s pretty characteristic.
              “I mean, you know, when you’ve done this for 20 years, these kind of
things, it’s not a mystery. You know, you don’t get these types of patterns so to speak.
They are, like, you know, very distinct patterns that you see.”
              Hernandez argues Dr. Lempert was not qualified to testify about shaken
baby syndrome. Dr. Lempert did not offer an expert opinion as to the cause of D.’s
injuries. His testimony was that her injuries, based on her MRI and CAT scan results,
were, in his experience, consistent with injuries caused by child abuse and shaken baby
syndrome.
              Hernandez asserts Dr. Lempert did not have D.’s medical history or workup
when evaluating her MRI and CAT scan results. Dr. Lempert testified, however, that
working “in the dark,” which he said means reviewing images without the influence of
additional background of the patient’s case, is a standard practice for radiologists to
increase their objectivity in reviewing images. The trial court did not abuse its discretion
by admitting Dr. Lempert’s expert testimony.



                                              9
                                            D.

               Dr. Kwon was qualified to state his opinion that D.’s injuries
                were due to “non-accidental trauma” and were consistent
                      with “acceleration or deceleration” injuries.
              Dr. Kwon testified about his qualifications. He has a medical degree and
completed residency programs in both pediatrics and emergency medicine. He has
practiced medicine over 12 years, and written textbook chapters related to child abuse.
He was also the director of the Suspected Child Abuse and Neglect Team at the
University of California, Irvine Medical Center, and has spoken locally and
internationally on child abuse issues.
              Dr. Kwon testified that he had treated D. in the emergency room. The
prosecutor asked Dr. Kwon about his medical opinion as to the cause of D.’s injuries. He
testified as follows:
              “[Dr. Kwon]: The medical opinion, my medical opinion was
non-accidental trauma.
              “By [the prosecutor]: Q. What does that mean[] in terms of non-accidental
trauma?
              “A. It’s kind of hard—it seems to be relatively self-explanatory, I think.
Just means that something that wouldn’t happen by normal conventional play activity or
household incidence.
              “Q. Now, you’ve mentioned the children that come into the emergency
room that you’ve cared for, you mentioned over the course of a year about 60,000, about
a third of that, 20,000, are children meaning 18 and below. This child being in the
13-month category, what percentage number of children do you see or that the hospital
sees that would fall into the 2-year age of 2 years and below category?
              “A. If I were to approximate—that I personally saw or the hospital sees?


                                            10
              “Q. We’ll go with whichever you’re comfortable providing.
              “A. I would say that every shift I see three to five patients that are under
two.
              “Q. All right. And oftentimes are these situations where the child[ren]
have been hurt during the course of play or is it something where they’re just [sick]
because of some type of infection or whatnot?
              “A. The most common thing that I see in the emergency department in this
age is related to trauma.
              “Q. And over the course of your career roughly how many children have
you seen that fall into this category of children with a traumatic injury of some sort, two
years of age and under?
              “A. Thousands, I would say.
              “Q. Okay. And so this is based on your wealth of experience as well in
determining that this would, based on your training, experience, and what you’ve seen, be
a child that falls into a situation where it’s non-accidental as opposed to accidental
[in]jury?
              “A. What’s the percentage?
              “Q. No. I’m simply saying—let me ask this again. So you’re forming a
medical opinion based on that experience of seeing all these children and taking into
account what you’ve seen, traumatic injuries to children in this age group of two years
and younger; is that correct?
              “A. Yes.
              “Q. No further questions.”
              As one of D.’s treating physicians, and in light of his extensive training and
experience in both emergency medicine and pediatrics as discussed ante, Dr. Kwon was
well qualified to offer his above quoted opinion that D.’s injuries were caused by
“non-accidental trauma.” For the same reasons, Dr. Kwon was also qualified to testify

                                             11
D.’s injuries were similar to “acceleration or deceleration injuries.” Dr. Kwon testified
D.’s injuries were consistent with the injuries of children whom he has seen following car
accidents. Dr. Kwon’s expert testimony was therefore properly admitted.


                                              II.

           WE REMAND FOR RESENTENCING BECAUSE THE TRIAL COURT FAILED TO
             STATE ITS REASONS FOR IMPOSING THE UPPER TERM ON COUNT 1.
               The trial court imposed the upper term sentence of six years on count 1.
Hernandez argues he should be resentenced because the trial court failed to state its
reasons for selecting the upper term in imposing sentence on count 1, as required by
Penal Code section 1170, subdivision (b), and California Rules of Court, rule 4.420(e).
Penal Code section 1170, subdivision (b) provides in part that the trial court “shall set
forth on the record the reasons for imposing the term selected.” Similarly, rule 4.420(e)
of the California Rules of Court requires that “[t]he reasons for selecting one of the three
authorized prison terms referred to in section 1170(b) must be stated orally on the
record.”
               At the sentencing hearing, after the trial court denied the motion for a new
trial, Hernandez’s counsel, the prosecutor, and the court discussed whether Hernandez
should be placed on probation. The prosecutor argued probation was inappropriate
because this was a “case where [Hernandez] should receive the maximum possible
sentence.” The trial court stated, “I think we have agreed that he was in a position of
trust and he was the babysitter at this time. Anyway, what was defense counsel’s side
about that?”
               Hernandez’s counsel asked the court to find Hernandez eligible for
probation because of his lack of a criminal history and because this was a single incident;
in addition, he stated, “a number of complications in the field and at the hospital . . .
exacerbated the child’s injuries.” The court stated, “[g]reat bodily injury was certainly


                                              12
one of the problems.” In response to Hernandez’s counsel’s argument, the prosecutor
argued the original trauma led to D.’s additional complications.
              During the trial court’s final remarks about probation, the court stated,
“[a]ll right. And further the problem was exacerbated by it not getting immediate 911
medical attention. We’ll never know what the difference might have been in terms of
treatment had that not happened. [¶] At any rate, there would have to be one straight
finding [of] great bodily injury. I agree with that finding. And that doesn’t seem to me to
be probationable, even more so since the defendant’s statements to the police were
grudging and then not—to say the least, not greatly trustworthy. It was certainly
self-serving, but it really didn’t help a great deal. [¶] So, at any rate, the probation will be
denied. This will be a question of what the sentence should be. [¶] Anything else?”
              Hernandez’s counsel stated that this case does not warrant the maximum
sentence because Hernandez did not have a criminal record and this was his first felony
conviction. The prosecutor submitted and did not make any additional comments.
              Following counsel’s arguments, the trial court, without comment, imposed
Hernandez’s sentence stating, “[o]n count 1, 273a, sub (a), and defendant will be
sentenced to six years [in] state prison. And then on the great bodily injury [(GBI)]
allegation sentenced to six years consecutive to that, making it a total of 12. [¶] And on
count 2, the 273d, sub (a) and the same GBI allegation sentence on count 2 of the GBI.
Second GBI allegation will be suspended with the instruction to become permanent per
654 on completion of the sentence on count 1. [¶] And as far as did we have a correct
total of how many days should be granted? It says his days in custody, 28, on page one
of the probation report. [¶] Does anybody have any argument with that?” After the court
confirmed the correct number of credits with counsel, the hearing ended.
              The trial court did not orally state its reasons for imposing the upper term
on count 1 and did not refer to any reasons it had cited for denying probation when the
court imposed Hernandez’s sentence. We cannot presume the trial court imposed the

                                              13
upper term based on the same reasons it denied probation. One of the factors cited by the
court in denying probation was that D. suffered great bodily injury. That factor could not
have been relied upon by the court in imposing the upper term because Hernandez was
sentenced for the great bodily injury enhancement which was exclusively based on that
same factor. Penal Code section 1170, subdivision (b) states in part, “the court may not
impose an upper term by using the fact of any enhancement upon which sentence is
imposed under any provision of law.” California Rules of Court, rule 4.420(c) also states
in part, “a fact charged and found as an enhancement may be used as a reason for
imposing the upper term only if the court has discretion to strike the punishment for the
enhancement and does so.” The court thus could not rely on the great bodily injury D.
suffered to both enhance Hernandez’s sentence as to count 1 and impose the upper term
on count 1.
              The Attorney General contends Hernandez has forfeited his argument the
trial court erred by failing to state its reasons for imposing the upper term on count 1. If a
defendant failed to object to a trial court’s failure to state its reasons, then the defendant
has waived his or her right to challenge the sentence on appeal. (People v. Scott (1994) 9
Cal.4th 331, 352-353.) In order for waiver to occur, however, the trial court must have
given the defendant a “meaningful opportunity to object” to the sentence. (Id. at p. 356.)
The Supreme Court has stated the trial court must “clearly give[] the parties a meaningful
opportunity to object” by stating that after it announced the proposed sentence with its
reasons, the parties would be permitted to object to, or seek clarification of, the sentence
itself or the court’s reasons for imposing it. (People v. Gonzalez (2003) 31 Cal.4th 745,
755.)
              Although Hernandez’s counsel had opportunities to argue at the sentencing
hearing about Hernandez’s eligibility for probation and possible sentence, no meaningful
opportunity was given to counsel to object to, or seek clarification of, the trial court’s
pronouncement of sentence. The court solicited counsel’s comments regarding

                                              14
Hernandez’s credits, but it did not invite comments from counsel as to the upper term
sentence on count 1. Thus, because the trial court did not demonstrate its “willingness to
consider” objections to the sentence, Hernandez did not waive his right to challenge the
trial court’s error. (People v. Gonzalez, supra, 31 Cal.4th at p. 752.)


                                       DISPOSITION
              The judgment is affirmed and the matter is remanded for resentencing with
directions that the trial court select a term on count 1 and state its reasons for selecting
that term.




                                                   FYBEL, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.




                                              15
