Brief Bank # B-804 (Re: F 3.41 n3 [Intervening Cause: Need Not Be Committed By Third Party])
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EXCERPT FROM APPELLANT’S OPENING BRIEF:
THE TRIAL COURT ERRED WHEN IT ALLOWED THE CASE TO BE SUBMITTED TO THE JURY ON TWO THEORIES OF THE CAUSE OF DEATH, WHEN ONE THEORY, AS A MATTER OF LAW, COULD NOT CONSTITUTE A LEGAL CAUSE OF DEATH
Dr. P, pathologist, testified that J suffered from multiple injuries inflicted on multiple occasions. The cause of her death was blunt force injuries to the chest and abdomen. There were two specific separate injuries, one to the chest, and one to the abdomen, each inflicted on different days. According to Dr. P each of those injuries constituted a cause of death.
The chest injury caused a rupture of the heart’s right atrium. That would have caused death within a couple of minutes. That chest injury was most likely inflicted by a punch. It could also have been inflicted by a kick, but it was probably not inflicted by a kick with a boot, because neither the child’s chest, nor her shirt, showed any boot markings. [Footnote 1]
The only direct evidence of the cause of the chest injury was (a) the testimony by Appellant, Ms. G, and Mr. H that Appellant punched J hard on the chest in a misguided effort to administer CPR; and (b) Appellant’s testimony that he accidentally kicked J with the back of his boot, and then accidentally stepped on her chest, while jumping backward to turn to chase a rat.
In addition, the jury could also have speculated, upon circumstantial inference, and as argued by the prosecutor, that Appellant inflicted the chest injury in some undescribed, wrongful, and intentional way, if it both disbelieved Appellant’s explanations, and found that Appellant inflicted that blow as a part of a continuing pattern of child abuse.
The second injury which the pathologist testified, “could have been the cause of death,” was peritonitis (an infection) in the abdomen. Dr. P testified that the abdominal infection “could also have been fatal, but it would have taken longer” to die from that infection. “Had that been neglected or left untreated, that could have been fatal, too.” (RT 305) According to Dr. P, the abdominal injury was consistent with a punch to the abdomen, inflicted a couple of days before death.
The prosecutor argued to the jury that it could convict Appellant of second degree murder either if (a) his punch to the abdomen was a cause of death, or (b) if his blow to the chest was a cause of death, as long as either one was inflicted with either express or implied malice. (RT 997-1002, 1038) The prosecutor also argued that the earlier punch to the abdomen could have been the cause of death, even if other, later injuries hastened her death. (RT 1000-1001, 1038-1039)
The trial court instructed the jury, pursuant to CALJIC 17.01, on the murder charge, that the evidence showed that more than one act could have been the cause of J’s death; that the jury had to be unanimous as to which specific act caused death; but that it did not have to state the specific act in its verdict. [Footnote2] (CT 272, 366, 1077-1078)
B. As a Matter of Law, the Injury to the Abdomen Was Not a Proximate Cause of J’s Death
The blow to J’s abdomen, inflicted a couple of days before her death, caused an infection. According to Dr. P, that infection would eventually have been fatal, if left untreated. Nonetheless, that blow was not a legally valid proximate cause of death. The reason why it was not a legal cause of death, is because it was not reasonably foreseeable that such a blow would cause death.
It has been the law in California for half a century that the infliction of “a wound not in itself calculated to cause death” is not a legal cause, or proximate cause, of the victim’s death, if the victim dies because of a second, intervening factor, which itself is a cause of death.
Where 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.
People v. McGee (1947) 31 Cal.2d 229, 240, 187 P.2d 706, 713, quoting from 8 A.L.R. 520. [Footnote 3]
It is also federal law that inflicting a wound, which “could, after many days, have been fatal,” does not constitute a proximate cause of death, if the wound could have easily been “treatable” with ordinary medical care, and if there is a second, intervening, cause of death. Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337, 1341, fn. 8. amended __ F.3d __, 97 Daily Journal D.A.R. 4641 (issue of April 11, 1997).
There was no evidence here, and no claim, that the blow to J’s abdomen was a wound “calculated to cause death,” within the meaning of People v. McGee. Accordingly, the blow to the abdomen could not have been a legal cause of death, if ordinary medical care would have cured it. Dr. P himself testified that the abdominal injury could have been fatal “if left untreated.” However, implicit in that statement is the converse, namely, that the injury would not have been fatal with ordinary medical care. Accordingly, the easily-treatable abdominal injury was not a legal cause of death here, because there was a second, intervening cause of death (the blow to the chest). People v. McGee, supra; Mitchell v. Prunty, supra.
The reason for these rules is the underlying principle of foreseeability. An actor will not be punished for the consequences of his act if those consequences were not reasonably foreseeable. People v. Roberts (1992) 2 Cal.4th 271, 321, 6 Cal.Rptr.2d 276.
In Mitchell v. Prunty, supra, Judge Kozinski held for the Ninth Circuit that gunshot injuries, which could have been treated with ordinary medical care, are not a legal cause of death, when someone soon afterward runs the victim over with a car and crushes him. The reason why those routine gunshot injuries were not a legal cause of death, when there is a second, intervening cause of death, is because it was not reasonably foreseeable in the 1990’s that these routine gunshot injuries would not receive proper medical attention.
[T]he undisputed evidence is that [victim] Judabean did not die from any of the gunshot wounds. The state’s own proof shows that all of Judabean’s bullet wounds were treatable, and that he would easily have survived with ordinary medical care. The Deputy Medical Examiner did testify that had Judabean’s injuries been left untreated, he would have died of infections or other complications in a matter of days or weeks. But this is true of many wounds. An injury that could be fatal under highly unusual circumstances cannot be said to have caused the death of a victim who suffered a second, far more traumatic injury, which alone would have caused death in a matter of minutes.
To convict appellant of murder because he inflicted a wound that could have been fatal subverts the general rule that causation is interrupted by an unforeseeable event. Professor Focht described a case in which “the defendant wounded the deceased and the latter died of scarlet fever contracted from the physician who treated the wound. It was held that proximate causation was lacking, because the disease, while the de facto result of the wound, was unforeseeable.” James L. Focht, Jr., Proximate Cause in the Law of Homicide – With Special Reference to California Cases. 12 S. Cal. L. Rev. 19, 31-32 (1938) (citing Bush v. Commonwealth, 78 Ky. 268 (1880) The failure to properly treat a serious but nonfatal wound is at least as unforeseeable in the 1990s as was the transmission of scarlet fever in the 1880s.
Put another way, if “gross maltreatment of the wound was the sole cause of death, the person inflicting the wound will not be liable . . . because the wound was not the proximate cause of death.” Focht, 12 S. Cal. L. Rev. at 34. In this cage, “gross maltreatment” would have been required to render Judabean’s gunshot wounds fatal.
Mitchell v. Prunty, supra, 107 F.3d at 1341, fn. 8, (emphasis added).
Under these elementary principles, while punching J in the abdomen would certainly be a crime, the infliction of such a punch, which causes an infection, which, if untreated, could eventually be fatal, may not be deemed a proximate cause of death, when there is a second, intervening cause of death (the blow to the chest). The reason is because it is not foreseeable in the 1990’s that the victim would not eventually receive ordinary medical care to cure the abdominal infection.
The Supreme Court’s relatively recent decision in People v. Roberts, supra, 2 Cal.4th at 311, 6 Cal.Rptr.2d 276, upholds these principles. In Roberts, the defendant stabbed a prison inmate named Gardner 11 times; Gardner was close to death minutes after the stabbing; the prison medical clinic gave Gardner inadequate medical care; and he died. The defendant was not allowed to escape liability for the stabbing, merely because the inadequate medical care may have been a concurrent cause of death. Explicitly relying upon People v. McGee, supra, the Supreme Court held in Roberts that if a person inflicts a wound ordinarily calculated to cause death, it is no defense that inadequate medical treatment contributed to the death. id., 2 Cal.4th at 312.
However, Roberts leaves intact the rule of People v. McGee that where a person inflicts a wound not ordinarily calculated to cause death, but which, nonetheless, could be fatal, then an intervening cause of death will relieve the defendant of responsibility for homicide for the first wound, because it is not reasonably foreseeable that the victim would not received adequate medical care to cure the first injury. See People v. Roberts, supra, 2 Cal.4th at 312.
The intervening acts here, which could have been intervening causes of death, were (a) the accidental kicking of, and stepping on, J while Appellant was chasing the rat, and (b) Appellant’s misguided effort to administer CPR by a blow to the chest. Either or both of these acts could have caused J’s death, but, if Appellant’s testimony was believed, neither act carried criminal liability, because they were both inflicted with innocent intent.
Here, Dr. P testified that J’s abdominal injury would have been fatal only if untreated. Accordingly, such injury is not a legal or proximate cause of death, when there is a second, intervening cause of death (the blow to the chest), because it is not foreseeable that the first injury to the abdomen would not have been treated. People v. McGee, supra, Mitchell v. Prunty, supra.
C. Reversal is Warranted, because the Jury Was Presented with one Legally Valid Theory, and one Legally Invalid Theory, as to the Cause of Death, and it Cannot Be Determined on which Theory it Relied
As noted, the evidence, instructions, and prosecutorial argument submitted both the murder charge and the deadly assault on a child charge to the jury on two alternate theories. The first theory, that the punch to the abdomen a couple of days earlier was the cause of death, was legally invalid, as shown above in subsection B. The second theory, that a blow to the chest, inflicted in some unknown way, was the cause of death, was a legally valid theory. Indeed, the prosecutor explicitly acknowledged that there were two separate possible causes of death. (RT 795)
When the trial judge instructed the jury under CALJIC 17.01 that there was more than one cause of death, and that the jury had to be unanimous as to the cause, he informed the jury, in substance and effect, that the punch to the abdomen could qualify as a cause of death. Such instruction was incorrect. People v. McGee, supra; Mitchell v. Prunty, supra. The instructional error was prejudicial, because it cannot be determined from the record upon which theory the jury convicted.
When the case is submitted on two alternate theories, one legally valid, and one legally invalid, and when it cannot be determined upon which theory the jury relied, a new trial is required under the due process clauses of both the United States Constitution, 5th Amendment, and the California Constitution, Article I, Sec. 15. Griffin v. United States (1991) 502 U.S. 46, 51, 112 S.Ct. 466; Mills v. Maryland (1988) 486 U. S. 367, 376, 108 S.Ct. 1860, 1866-1867; Francis v. Franklin (1985) 471 U. S. 307, 322; 105 S.Ct. 1965, 1973-1976; Stromberg v. California (1931) 283 U.S. 359, 367-368, 51 S.Ct. 532, 535.
As the High Court stated in Mills v. Maryland, supra, 486 U. S. at 376, 108 S.Ct. at 1866-1877,
with respect to findings of guilt on criminal charges, the Court consistently has followed the rule that the jury’s verdict must be set aside if it could be supported on one ground but not on another, and the reviewing court was uncertain which of the two grounds was relied upon by the jury in reaching the verdict. See e.g. Yates v. United States, 354 U. S. 298, 312, 77 S.Ct. 1064, 1073 (1957); Stromberg v. California, 283 U. S. 359, 367-368, 51 S. Ct. 532, 535 (1931).
California law is in accord. When the jury is instructed on two alternate theories, one proper on the record, and the other legally erroneous, and where, as here, it cannot be determined on which theory the jury relied, reversal and a new trial are required. People v. Harris (1994) 9 Cal.4th 407, 420, fn. 7, 37 Cal.Rptr.2d 200; People v. Lee (1987) 43 Cal.3d 666, 671-676; People v. Green (1980) 27 Cal.3d 1, 69.
The standard of review for prejudice for this due process violation is the harmless beyond a reasonable doubt standard set forth in Chapman v. California (1987) 386 U. S. 18, 24. Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, 1237-1238.
D. The Trial Court Failed to Instruct the Jury Properly on Proximate Cause
In the alternative to the argument in section (C) and assuming, arguendo that the blow to the abdomen could theoretically have been a legally valid cause of death, the jury still needed to be given further instruction, which was not given. It needed to be instructed that the initial blow to the abdomen could be a legal cause of death (in a situation where there was a second, intervening cause of death) only if the jury found either (a) that it was a type of blow “calculated to produce death,” People v. McGee, supra, or, if it was not, (b) that ordinary medical care would not have cured it. Mitchell v. Prunty, supra.
The jury was not so instructed. Instead, the jury was solely instructed on the natural and probable consequences test for proximate cause set forth in CALJIC 3.40. [Footnote 4]
Instruction solely under CALJIC 3.40 (natural and probable consequences) was inadequate, and thus was error, because this case was presented to the jury under multiple, alternate theories of the cause of death. As CALJIC 3.40’s own Use Note concedes, that instruction should be given by itself only in those situations “where the evidence places in issue only one cause of the result of the crime . . . [However] where more than one cause is placed in issue by the evidence, then CALJIC 3.41 [or other instructions on multiple causes] should also be given.” Notwithstanding this directive, neither CALJIC 3.41 (“more than one cause/concurrent cause”) nor any other instruction on multiple causes was given.
There is a sua sponte duty to instruct correctly on proximate cause, especially when, as here, more than one possible cause is involved. Use Note to CALJIC 3.41; People v. Bernhardt (1963) 222 Cal.App.2d 567, 591, 35 Cal.Rptr. 401, 416.
The failure to instruct correctly on proximate cause violates the federal due process clause, because proximate cause is an element of the crime. People v. Roberts, supra, 2 Cal.4th at 315. Accordingly, the standard of prejudice is the harmless beyond a reasonable doubt test. Chapman v. California, supra.
E. The Argument that the Punch to the Stomach Could Not Be a Legally Valid Cause of Death Applies to Count III, Penal Code § 273ab, Deadly Assault on Child as wells as to Count I, Murder
The fact that Appellant was prosecuted alternatively in Count I for murder and in Count III for Penal Code § 273ab, “assault on child under 8 resulting in death,” does not adversely affect this argument. The “good reason/bad reason” argument described above equally applies to the Penal Code § 273ab charge, as well as the murder charge, for several reasons.
First, Penal Code § 273ab explicitly states that “Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 189.” Because § 273ab does not “affect” the laws on first and second degree murder (§§ 187 and 189), it does not supplant or eliminate any of the elements of those crimes, including the need to prove proximate cause. [Footnote 5]
Second, the phrase in § 273ab “resulting in the child’s death” intends to import legal causation. Use Note to CALJIC 9.36.5, which is the standard instruction for Penal Code § 273ab (given at CT 258, RT 1072); People v. Preller (1997) __ Cal.App.4th __, 62 Cal.Rptr.2d 507, 509 (child must die “as a result of” the blow by the adult caretaker.) There is thus nothing in Penal Code § 273ab which reduces the prosecution’s traditional burden in a murder case to prove proximate cause.
Third, in any event, § 273ab could not eliminate the bedrock legal principle that proximate cause is a necessary element of a crime producing death. People v. Roberts, supra.
For all these reasons, the submission of this case to the jury on alternative causes of death, one of which is legally invalid, tainted both the murder count and the deadly assault on child count.
F. It Was Prejudicial Error to Allow the Jury to Find, in the Alternative, that the Blow to the Abdomen Was a Cause of Death
As noted, the prosecutor submitted the case to the jury on the alternative theories that the punch to the abdomen was a cause of death, and that the blow to the chest, inflicted with malice, was also a cause of death. The prosecutor first argued in opening jury argument:
If you take your fist and you punch a child and that child dies, you’re responsible.
Now, we know that according to the pathologist, either of a couple of blows could have killed J. He said before that one blow that had happened days earlier would have killed her but for the other blow that ended her life.
Well, the law also says if you do something that starts in motion the facts that someone is going to die and some other intervening fact happens, that doesn’t take you off the hook. You are still responsible.
And an example of that is somebody goes to somebody’s house and shoots the person and then leaves. You shoot them two or three times. He’s not dead yet. He’s sitting in his house and he’s bleeding. He’s hurt. He’s not dead. He’s hurt. He stays there for two days and bleeds to death. You stand up and say, well, if somebody had gone over to that house, they probably could have saved him. I’m not guilty. No, no, no. You started it. If someone dies from it or if it could have killed him and something else stops it from happening, you’re still responsible. That does not get you off the hook.
You punch a child two days before and they actually die because you punched them again, you’re responsible for the first punch and you’re responsible for the second punch. You’re responsible for the kicks and you’re responsible for the death. It doesn’t make a difference whether or not the person would have died anyhow.
If a person unlawfully inflicts a physical injury upon another person and that injury is the cause of the latter death, such conduct constitutes an unlawful homicide even though the injury inflicted was not the only cause of the death. (RT 1000-1001)
Then the prosecutor argued in his rebuttal jury argument:
Was there a body punch? Was the body punch fatal? Yes. The doctor said that punch would have killed but for the subsequent acts. So it would have been fatal. Remember that. That would have been fatal. If the person would have died from an act that the defendant did, that’s good enough. It doesn’t have to be the one that killed them if it would have contributed to the death. (RT 1038-1039)
Although the prosecutor’s argument was consistent with, and tracked, the jury instructions on proximate cause, it was legally defective for the same reasons that the instructions were legally defective. They were defective, because they improperly told the jury that it could convict Appellant merely based on the earlier blow to the abdomen, regardless of whether the abdominal injury could have been treated with ordinary medical care, and regardless of the second, intervening cause of death, namely, the blow to the chest. People v. McGee, supra; Mitchell v. Prunty, supra.
The jury’s verdict does not tell on which theory it relied. Nor does the jury’s verdict tell us whether it believed, or disbelieved, Appellant’s explanations that he kicked and stepped on J when trying to chase the rat, and that he punched J while incorrectly trying to administer CPR. For all the record shows, the jury could have believed both of these exculpatory explanations and still have convicted Appellant. It could have done so merely if it believed that Appellant punched J in the stomach two days before; that he did so with implied malice; and that the punch to the abdomen would have eventually resulted in death, if not treated.
Ms. S’s testimony that Appellant allegedly punched J in the stomach two days before her death was deemed crucial by Judge Spinetta, who presided over the first trial. It was so crucial that Judge Spinetta granted a mistrial, because of the prosecution’s failure to provide discovery regarding the punch to the abdomen. The missing discovery was that Ms. S was going to change her prior testimony, and claim that Appellant committed prior acts of violence against J, including punching J in the abdomen two days before her death. (Aug. RT (First trial) 478-487, 502-510)
It was highly likely that the jury based its verdict on the punch to the abdomen, because that was the only theory on which it had direct evidence. That direct evidence was Ms. S’s testimony that Appellant punched J in the stomach two days before.
In contrast, the jury did not hear any direct evidence at all as to when, or how, any blow to the chest was inflicted with malice. [Footnote 6]
The prosecutor, of course, wanted the jury to believe that Appellant inflicted the punch to the chest with malice, while Appellant was in the children’s bedroom, with only J and his two sons, but with no other adults, present. The prosecutor’s problem was that there was no direct evidence of this alleged event.
Faced with the absence of any direct evidence supporting the second theory of death, namely, the infliction of the blow to the chest with malice, the prosecutor resorted to the time-honored theory of throwing as much mud at Appellant as he could, in the hope that some of it would stick. That is why the prosecutor presented the largely irrelevant stories of Appellant battering his ex-wife (Ms. H) and ex-girlfriend (Ms. B), in an effort to show that Appellant had the character trait as a batterer, and in an effort to convict Appellant with bad character evidence. That is also why the prosecutor introduced the even more irrelevant story of the night in Ms. H’s apartment, when Appellant allegedly threw a fishbowl, and tried to throw the television. That is why the prosecutor called Appellant a liar dozens of times in his cross-examination of Appellant, all in the hope that the jury would determine that Appellant was a bad person, and convict him on the theory that he must have wrongfully punched or kicked J in the chest, because he was such a liar and bad person.
Perhaps the jury believed all this bad character evidence, and convicted Appellant of the blow to the chest on the basis of it. And perhaps the jury was not sure what to believe about the blow to the chest. However, and in any event, it was not necessary for the jury to decide anything about the blow to the chest, because it was told by the instructions and the prosecutor’s argument that it could convict Appellant, merely on the basis of the punch to the stomach, if inflicted with malice.
For all these reasons, it cannot be determined from the record which blow the jury believed was the cause of death. Accordingly, the instructional error in allowing the jury to convict Appellant based on the abdominal injury, only, was not harmless beyond a reasonable doubt, and thus reversal is warranted. People v. McGee, supra; Mitchell v. Prunty, supra; People v. Green, supra; Chapman v. California, supra.
As noted, the judge at the first trial believed that the evidence of the punch to the abdomen two days earlier was so crucial that he granted a mistrial because the prosecution failed to provide discovery that Ms. S was going to testify to such prior infliction of force.
G. In the Alternative, Trial Defense Counsel Was Ineffective for Failing to Argue that the blow to the Abdomen Could Not Legally Be a Cause of Death
Alternatively, trial defense counsel Mr. C rendered ineffective assistance of counsel (IAC) for failure to argue to the court, or to seek instructions, or to object to the prosecutor’s argument, all to the effect that the punch to the abdomen could not constitute a legal cause of death.
Ordinarily, a claim of ineffective assistance of counsel (IAC) may only be raised on habeas corpus, because an appellant must establish that the act complained of was not the product of a valid tactical decision. People v. Tello (1997) 15 Cal.4th 264, 62 Cal.Rptr.2d 437; People v. Ledesma (1987) 43 Cal.3d 171, 218; People v. Pope (1979) 23 Cal.3d 412, 425-426.
This case contains an exception to this rule, which allows IAC to be raised on direct appeal. That exception is where there can be no valid tactical reason for the act or omission. As the Supreme Court held in People v. Nation (1980) 26 Cal.3d 169, 179, an ineffective assistance challenge may be made on direct appeal where
there could be no satisfactory tactical reason for not making a potentially meritorious objection. (People v. Pope, supra, at p. 426, 152 Cal.Rptr. 732)
In this case, where the major issues were whether Appellant inflicted the fatal blow while administering CPR, or whether he inflicted it earlier with the punch to the abdomen, there could not possibly be any tactical reason to refrain from moving to exclude, as a possible cause of death, one of the prosecution’s two theories of cause of death. This is especially true, where Appellant had a legally blameless explanation for the other cause of death.
The standard of prejudice for ineffective assistance is that there is a “reasonable probability” that, but for counsel’s errors, the result would have been more favorable. Strickland v. Washington (1984) 466 U.S. 668; People v. Ledesma, supra, 43 Cal.3d at 216-218. “Reasonable probability” means a “significant but something less than 50 percent likelihood of a more favorable verdict.” People v. Howard (1987) 190 Cal.App.3d 41, 47, n. 4.
This ineffective assistance was prejudicial under this standard, for the reasons set forth above in Section I(F).
OPENING BRIEF FOOTNOTES:
Footnote 1: Appellant was wearing hiking boots on the day of J’s death.
Footnote 2: Appellant argues in Sec. II, infra, that the trial court erred when it failed to tell the jury that the CALJIC 17.01 unanimity instruction also applied to Count III, Penal Code § 273ab, assault on child resulting in death.
Footnote 3: On the other hand, if the original wound was one which was calculated to produce death, then the person who inflicted the wound is not relieved of homicidal liability merely because, fortuitously, there is a second, intervening, cause of death. (id.)
Footnote 4: The jury was instructed under CALJIC 3.40, as follows:
The law has its own particular way of defining cause. A cause of death is an act that sets in motion a chain of events that produces as a direct, natural, and probable consequence of the act the death and without which the death would not have occurred. (CT 243-244, RT 1066-1067)
Footnote 5: The purpose of Penal Code § 273ab appears to be to elevate all forms of assault upon a child causing death to a punishment level equivalent to murder, and to eliminate any possibility that such assault be punished at the manslaughter level.
Footnote 6: Of course, if, as Appellant testified, he accidentally stepped on J while chasing the rat, or if he misguidedly hit her too hard while administering CPR, then there was no malice, and no murder.
FROM APPELLANT’S REPLY BRIEF:
THE TRIAL COURT ERRED WHEN IT ALLOWED THE CASE TO BE SUBMITTED TO THE JURY ON TWO THEORIES OF THE CAUSE OF DEATH, WHEN ONE THEORY, AS A MATTER OF LAW, COULD NOT CONSTITUTE A LEGAL CAUSE OF DEATH
A. Under Principles of Proximate Cause and Supervening Cause, the Blow to the Abdomen Does not Constitute a Legal Cause of Death
Appellant argued in Appellant’s Opening Brief (AOB) Section I that it has been the law in California for half a century that the infliction of “a wound not in itself calculated to cause death” is not a legal cause, or proximate cause, of the victim’s death, if the victim dies because of a second intervening or supervening factor, which is itself a cause of death. People v. McGee (1947) 31 Cal.2d 229, 240, 187 P.2d 706, 713. [Footnote 7] The basis for this rule is the principle of foreseeability. An actor will not be punished for the consequences of his act if those consequences were not reasonably foreseeable. People v. Roberts (1992) 2 Cal.4th 271, 321, 6 Cal.Rptr.2d 276.
There were several bases for these arguments. Appellant briefly summarizes them in order to clarify his replies.
1. The blow to the abdomen was not a wound “itself calculated to court death”
Dr. P, the pathologist, testified that there were two separate causes of J’s death, the blow to her abdomen, and the blow to her chest; and that these two blows occurred days apart. Dr. P was clear in his opinion that the earlier blow to J’s abdomen constituted a cause of death, even though it was also his opinion that the abdominal infection (peritonitis) resulting from that blow would have been easily cured if J had been given ordinary medical treatment for that infection.
Although Dr. P’s opinion that the blow to the abdomen qualified as a cause of death may have been correct from a medical point of view, it was incomplete, and thus incorrect, from a legal point of view. It was incomplete and thus incorrect under state law, because it did not take into account the time-honored rule of People v. McGee, supra. The rule of McGee is that (1) where there are two temporally-separated medical causes of death; and (2) where the earlier injury is “a wound not itself calculated to cause death,” and (3) where there is a second injury which is a supervening cause of death, then the earlier injury does not constitute a legal cause of death, because death from the earlier injury is not reasonably foreseeable. People v. McGee, supra; People v. Roberts, supra.
Thus, the blow to the abdomen could not constitute a legal cause of death, unless it were proven, and the jury were instructed to find, that it was “a wound . . . itself calculated to cause death,” within the meaning of People v. McGee, supra. The only evidence of the cause of the abdominal blow came from J’s mother Ms. S, who testified that, a couple of days before J’s death, Appellant punched J once in the stomach to get her to stop crying. Thus, there was no evidence from this testimony, or elsewhere, that the punch to the abdomen qualified as “a wound . . . itself calculated to cause death,” within the meaning of People v. McGee. Indeed, Respondent conspicuously fails to argue in its brief that the punch to the abdomen qualified as “a wound . . . itself calculated to cause death,” within the meaning of People v. McGee.
2. The blow to the abdomen was not an actual contributing factor at the time of death.
With regard to the concepts of proximate cause and supervening cause, People v. McGee states, in a situation where “grossly improper” medical treatment is alleged to be a supervening cause of death:
Death caused by grossly improper treatment is not the proximate consequence of the defendant’s injury unless the injury is an actual contributing factor at the time of death, because such treatment is an unforeseeable intervening cause.
People v. McGee, supra, 31 Cal. 2d at 240, 187, P.2d at 313.
This means that an initial injury no longer qualifies as a legal cause of death, if there is a subsequent supervening cause of death, “unless the [initial] injury is an actual contributing factor at the time of death.” (id., emphasis added)
People v. McGee remains good law on the topics of proximate cause and supervening cause. The Supreme Court relied upon McGee repeatedly in its recent Roberts decision, 2 Cal.4th at 312-313.
Here, Dr. P testified that that abdominal injury, if not treated, would have eventually, after many days, become fatal. Dr. P also testified that the blow to the heart, which ruptured the atrium, caused death within a few minutes. Thus, according to Dr. P’s testimony, the slowly-worsening abdominal injury was no longer an “actual contributing factor of the time of death,” within the meaning of McGee, because it was the supervening blow to the heart, and the rupture of the atrium, which caused J to die within minutes. Respondent admits this point. (Respondent’s Brief (RB) 28) Thus, under this analysis, and under Dr. P’s testimony, the blow to the heart constituted a supervening cause of death, which relieved Appellant of any liability for the earlier blow to the abdomen as a legal cause of death, because the blow to the abdomen was no longer an actual contributing factor at the time of death. People v McGee, supra.
3. The blow to the abdomen was easily curable by ordinary medical treatment
Appellant also argued in the AOB that it was error under federal law, which should be followed here, to allow the jury to rely upon the punch to the abdomen as a legal cause of death, (a) because the abdominal infection was curable by ordinary medical treatment, and (b) because there was a second, supervening cause of death, Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337.
B. If, Arguendo, the Blow to the Abdomen Could Constitute a Legal Cause of Death, the Jury was Incorrectly Instructed Thereon
Appellant argued in the alternative that even if, arguendo, the blow to the abdomen could constitute a legal cause of death, that the trial court erred when it failed to instruct sua sponte on the correct definition of proximate cause, when, as here, there were multiple causes. (See AOB 22-23)
In particular, the trial court erred when it failed to instruct the jury to determine as a factual question whether the punch to the abdomen was “a wound . . . itself calculated to cause death,” so as to qualify as a legal cause of death, within the meaning of McGee, in a situation where there was also a second, supervening cause of death. Thus, it was error to allow the jury, without such additional instructions, to rely upon the injury to the abdomen as a legal cause of death. People v. McGee, supra, People v. Roberts, supra. Respondent does not address this instructional argument at all.
C. Respondent Doest Not Deny or Address Appellant’s Main Arguments on This Point
1. Respondent cites no state case which disagrees with People v. McGee, and Respondent cites no federal case which disagrees with Mitchell v. Prunty. Accordingly, Respondent implicitly admits that McGee and Mitchell v. Prunty are the controlling state and federal authorities with regard to proximate cause and supervening cause.
2. Respondent conspicuously fails to address Appellant’s reliance upon the statement in People v. McGee that the first wound may be excluded as a legal cause of death, in a supervening cause situation, if (1) the first injury is “a wound not in itself calculated to produce death.” People v. McGee, supra, 31 Cal.2d at 240, and (2) if there is a supervening cause of death. [Footnote 8] The requirement that, in a supervening cause situation, the first wound must be one “in itself calculated to produce death,” for it to be a legal cause of death, when there is a supervening cause of death, is the keystone to Appellant’s argument. Respondent’s total failure even to address this point should be treated as an implicit concession that Appellant has correctly stated this legal principle.
3. Respondent also conspicuously fails to deny Appellant’s factual characterization of the blow to J’s abdomen as “a wound not in itself calculated to produce death.” Respondent’s failure to deny this contention as a factual matter should be treated as an implicit concession that the one punch to J’s stomach did not qualify factually as a wound “in itself calculated to produce death,” within the meaning of McGee. [Footnote 9]
D. Respondent’s Few Arguments on this Issue are Without Merit
1. Respondent’s primary argument misstates Appellant’s position and then proceeds to discuss and distinguish the misstated position. In rhetorical terms, that is a making a straw-man argument.
Respondent claims in its straw-man argument that Appellant solely contends that “he is to be absolved of responsibility for murder if the fatal wounds he inflicted could have been ameliorated by prompt medical treatment.” (Respondent’s Brief (RB) pp. 24-25) Respondent then contends that such a position is contrary to People v. McGee. This, of course, is not Appellant’s position. Appellant argues, instead, as described above, that (1) where there are two temporally-separated medical causes of death, and (2) where the earlier injury is a wound not itself calculated to cause death, and/or (3) where the earlier injury was not a contributing factor at the time of death, and (4) where there is a second injury which is supervening cause of death, then the earlier injury does not constitute a legal cause of death. This is what People v. McGee states. This is what Appellant argues. Respondent conspicuously fails to address the argument actually made by Appellant.
Contrary to Respondent’s claim, Appellant does not rely upon the delay in medical care as the supposed supervening cause. Instead, Appellant relies upon the combination of factors, stated above, namely, (1) that the initial injury was “a wound not itself calculated to cause death” (a contention which Respondent does not dispute); (2) the delay in medical treatment; and (3) that there were non-criminal, supervening causes of death, (a) where Appellant accidently kicked or stepped on J and (b) when Appellant negligently administered CPR.
All the cases cited by Respondent at RB 25 are those where the sole alleged supervening cause of death was inadequate medical care. No case cited by Respondent involved a situation, like this one, where there was “a wound not itself calculated to cause death,” followed by a delay in medical care, followed by a totally different supervening cause of death (accidental kicking or negligent CPR) having nothing to do with the delay in treatment. Accordingly, Respondent fails altogether to rebut Appellant’s main argument, which is based upon supervening causes and supervening applications of force, and having nothing to do with inadequate medical treatment.
2. Respondent makes an argument based upon an A.L.R. Article entitled “Homicide: Liability Where Death Immediately Results From Treatment or Mistreatment of Injury Inflicted by Defendant.” (50 A.L.R. 5th 467 (1997) (RB 24) This claim and this article are irrelevant here. Appellant does not contend that inadequate medical treatment was a supervening cause of death. Instead, the supervening cause(s) of death were the accidental kicking of, or stepping on, J and/or the negligently-performed CPR. They had nothing to do with delayed medical treatment for the abdominal injury.
3. With regard to Appellant’s reliance upon federal law as stated in the recent Ninth Circuit opinion in Mitchell v. Prunty, Respondent does not deny, and implicitly concedes, that if this Court were to follow Mitchell v. Prunty, then the result should be reversal here. Mitchell involved a combination of factors somewhat worse than to what we have here, namely, (1) an initial injury (a gun shot wound) far more serious than the one initial punch here, plus (2) the fact that the initial wound was easily treatable, plus (3) the occurrence of a supervening forceful act (running over the victim with a car). Mitchell holds, consistent with People v. McGee, that the supervening forceful cause of death absolves the initial wrongful act from also being a legal cause of death when, as here, the initial injury was treatable with ordinary medical care. Again, like here, the supervening act in Mitchell was a second act of physical force, and not merely the delay in medical treatment.
Wholly unable to distinguish the Ninth Circuit decision in Mitchell, Respondent tries to discredit it on the theory that its author, Judge Alex Kosinski is allegedly “idiosyncratic.” (RB 26) Opinions are not rendered distinguishable on the bases of ad hominem attacks upon their authors. In any event, Judge Kosinski’s qualifications are beyond reproach. The fact that Respondent can do no more with this opinion than attack a federal appellate judge is a variation of the adage: “If the law is against you, argue the facts; if the facts are against you, argue the law; and if both are against you, attack opposing counsel.” Respondent takes this adage one step further, by attacking a judge. Respondent also fails to mention that concurring with Judge Kosinski in Mitchell was the highly-respected then-Chief Judge of the Ninth Circuit, Alfred Goodwin. Respondent directs no ad hominem attack at him.
Because Mitchell v. Prunty is indistinguishable from the instant situation, its teachings should be followed here.
4. Appellant argued at ARB 21-22 that the “good reason–bad reason” rule of People v. Green (1980) 27 Cal.3d 1, 69, requires reversal because the jury was instructed, in the alternative, on one legally valid, and one legally-invalid theory as to the proximate cause of death. Under that rule, when the case is submitted on two alternate theories, one legally valid (the blow to the chest on the day of J’s death) and one legally invalid (the blow to her abdomen two days before), and when it cannot be determined upon which theory the jury relied, a new trial is required under the due process clauses of both the United States Constitution, 5th Amendment, and the California Constitution, Article I, Sec. 15. Griffin v. United States (1991) 502 U.S. 46, 51, 112 S.Ct 466; Mills v. Maryland (1988) 486 U.S. 367, 376, 108 S.Ct.1860, 1866-1867; People v. Harris (1994) Cal.4th 407, 420, fn. 7, 37 Cal.Rptr.2d 200; People v. Lee (1987) 43 Cal.3d 666, 671-676; People v. Green, supra, 27 Cal.3d at 69.
Respondent contends that an exception to the “good reason-bad reason” rule applies here, pursuant to People v. Guiton (1993) 4 Cal.4th 116, 128, 17 Cal.Rptr.2d 365. That exception deems harmless an instruction which alternatively relies upon a valid reason and an invalid reason, if the basis for deeming one reason invalid is that it was not supported by substantial evidence. The Guiton exception is based upon the supposition that the jury will know enough not to rely upon a reason not supported by substantial evidence. The Guiton exception does not apply here for two reasons. First, the defect in the theory of the cause of death based upon the blow to the abdomen is not one of insufficient evidence. Instead, the defects are ones of law, namely, (a) that the blow to the abdomen does not qualify as a legal cause of death, because of the principles of supervening cause, and/or (b) that the instructions regarding the blow to the abdomen and supervening cause were legally incorrect. Second, there was no factual insufficiency; Respondent explicitly admits that there was enough evidence that the blow to the abdomen was a cause of death, such that the jury could rely upon it. (RB 24, 27) For all these reasons, the Guiton exception is inapplicable, and the traditional good reason–bad reason rule applies, warranting reversal. People v. Green, supra, Mills v. Maryland, supra.
5. Respondent also claims that the jury could not possibly have relied upon the abdominal injury as a cause of death because, supposedly, the abdominal injury did not factually qualify as a cause of death. (RB 28) This claim is frivolous. It directly contradicts Respondent’s own arguments made in its own brief on the page directly before, where Respondent states: “the district attorney did not err in arguing the abdominal injuries as a legal cause of death . . . and that the jury was entitled to rely on either theory in reaching its verdict.” (RB 27)
E. Respondent Makes no Claim that any Error was Harmless on the Facts
Any error here as to mischaracterization of the abdominal injury as a legal cause of death involved a combination of (a) trial court legal error, (b) incorrect instructions to the jury on the necessary element of proximate cause, and (c) ineffective assistance of counsel. Respondent does not argue otherwise. Respondent makes no claim that any such error was harmless on the facts, in light of the prosecutor’s repeated arguments to the jury that it could convict Appellant of murder solely for the punch to the abdomen, and regardless of how to the blow to the chest was inflicted.
Respondent does not deny that the correct test for prejudice for any such error is the harmless beyond a reasonable doubt test for federal constitutional error. (See AOB 22)
For all these reasons, Appellant’s convictions for both murder and assault on a child should be reversed because of the erroneous presentation to the jury of the blow to the abdomen as a legal cause of death. [Footnote 10]
REPLY BRIEF FOOTNOTES:
Footnote 7: On the other hand, if the original wound was one which was calculated to produce death, then the person who inflicted the wound is not relieved of homicidal liability merely because, fortuitously, there is a second, intervening, cause of death. (id.)
Footnote 8: The full statement in McGee, quoted at AOB 17, is:
“Where 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.”
Footnote 9: Respondent claims that Appellant does not deny that the punch to the abdomen resulted in a “mortal” or “dangerous” wound. (RB 24) Respondent is incorrect. Appellant denies these claims.
Respondent fails to explain the legal significance of that contention; there is none.
In any event, if the question of whether the one punch to the abdomen was “dangerous,” or “mortal,” or was “itself calculated to produce death” became relevant, then it was error not to instruct the jury to make any such finding, because that constituted the failure to instruct the jury correctly on a necessary element of the crime. (See AOB 22-23)
Footnote 10: Respondent does not deny that if the murder conviction is reversed on these grounds, then the assault on a child conviction should be similarly reversed. (See AOB 24-25)