In re Figueroa
A. Procedure2
Petitioner was found guilty of murder3 committed with three special circumstances of felony-murder rape, sodomy, and lewd conduct.4 Petitioner was also convicted of the substantive crimes of rape, sodomy, and lewd conduct5 with the infliction of great bodily injury during those offenses.6 The jury returned a verdict of death. Following our issuance of an order to show cause, the parties completed briefing on March 14, 2017.7
B. Trial Evidence
A more thorough factual recitation can be found in Benavides, supra, 35 Cal.4th at pages 79-86. This summary is limited to the false evidence issue.
1. Consuelo‘s Hospitalizations
The victim was 21-month-old Consuelo Verdugo. Her mother, Estella Medina, and petitioner brought Consuelo to a hospital emergency room at Delano Regional Medical Center (DRMC) on the evening of November 17, 1991. They reported that Consuelo had been running after her older sister and hit her head on a door. Consuelo was limp and minimally responsive to external stimulation. She moved her arms and legs
As Consuelo‘s condition worsened she became comatose and was transferred to the Kern Medical Center (KMC). The receiving charge nurse noted Consuelo had “blown pupils,” often seen incident to blunt force trauma from an auto accident. (Benavides, supra, 35 Cal.4th at pp. 79-80.) Consuelo‘s distended abdomen was the immediate focus of attention at KMC. Attempting to insert a catheter, the charge nurse noted a nearly quarter-sized bruise on Consuelo‘s external genitalia and a tear extending from her urethra to vaginal opening. A KMC emergency room physician, also trying to insert a catheter, superficially examined Consuelo‘s genital and anal areas.
Within twenty minutes of her arrival, Consuelo‘s abdomen had become greatly distended. Diagnostic surgery revealed her bowel, duodenum, and pancreas were “cracked in half,” with portions of each resting on either side of her spine. The surgeon testified these injuries could have been caused by a kick or punch to the abdomen. He also noted scars and other indicia of prior injury between Consuelo‘s colon and liver. These injuries were one to two months old. (Benavides, supra, 35 Cal.4th at p. 80.) He did not know whether Consuelo had been sexually assaulted.
The morning after surgery, Consuelo was evaluated by pediatrician Jess Diamond. A thorough examination revealed a tear in Consuelo‘s hymen, a bruise on her perineum, swelling around her anus, and a lack of rectal tone. Dr. Diamond testified these injuries could result from “acute rape.” Based upon the subsequent autopsy report of Dr. James Dibdin, Dr. Diamond testified that Consuelo had suffered a tear to her vaginal wall. That injury could explain the difficulties with catheter insertion. Dr. Diamond acknowledged that Consuelo had suffered a blunt force injury to her abdomen, but explained that
On November 19, 1991, Consuelo was transferred to UCLA Medical Center (UCLA). Upon arrival, her entire body was swollen. She was oozing blood, and kidney function had ceased. Doctors performed a second surgery. The surgeon closely examined Consuelo‘s anus and saw no tearing. He explained that his inability to detect tearing could have been due to the extensive swelling. (Benavides, supra, 35 Cal.4th at p. 81.) The surgeon testified that nothing in Consuelo‘s medical records was inconsistent with sexual abuse.
Consuelo died on November 25, 1991.
2. The Forensic Pathology Report
The forensic pathologist, Dr. Dibdin, listed Consuelo‘s cause of death as “blunt force penetrating injury of the anus,” with the anus expanded to seven or eight times its normal size. He testified that Consuelo suffered anal lacerations along with injuries to her internal organs, including her bowel and pancreas. Dr. Dibdin noted abrasions to the vagina and anus, as well as healing injuries to the genital and anal region, suffered approximately four weeks earlier. (Benavides, supra, 35 Cal.4th at p. 81.) He testified that there was a tear in the back wall of the vagina that a catheter, with its soft tip, could not have caused. Consuelo had five fractured ribs, which Dr. Dibdin believed were caused by tight squeezing during a sexual assault. Swelling of her brain indicated she had been shaken. Dr. Dibdin testified the anal injuries were consistent with penile penetration causing acute lacerations and direct abdominal injury. He also noted evidence of healing rib fractures that were three to four weeks old. (Benavides, at p. 81.)
A. Questions About Attribution of Injuries
Petitioner asserts that false evidence, now repudiated or undermined, resulted in his convictions for rape, sodomy, lewd conduct, and murder and the special circumstance findings. Specifically, he claims Dr. Dibdin‘s theory that Consuelo‘s injuries were caused by anal penetration was both false and medically impossible. Petitioner alleges that evidence showing that Consuelo suffered injuries to her genitalia and anus was also false and misleading.
Petitioner contends that, contrary to trial evidence, Consuelo showed no signs of sexual assault when examined at DRMC, the first hospital where she received care. Her injuries can instead be attributed to medical intervention, including repeated failed efforts to insert a catheter, use of an adult-sized Foley catheter rather than a more appropriately sized device, rectal temperature taking, use of paralytic medication, and physical examination. Nurse Anita Caraan Wafford, who helped treat Consuelo when she was brought to DRMC, executed a declaration in support of the petition. She explained no one at DRMC noted any anal or vaginal trauma.
Dr. William A. Kennedy II, an expert in pediatric urology, opined in support of the petition that, “to a high degree of medical certainty” Consuelo had not suffered anal or vaginal penetration. Had vaginal or anal tearing been sustained in the hours before treatment, “Consuelo likely would have been bleeding noticeably by the time she arrived at the hospital.” He added that “[t]his is especially true if . . . penetration by a penis or [other] object were so severe as to have violated her . . . abdominal cavity as proposed by Dr. Dibdin.” Dr. Kennedy opined that DRMC medical staff had had ample time to observe Consuelo‘s genital area while taking her temperature rectally and trying to insert a catheter. After exhaustively reviewing Consuelo‘s medical records, Dr. Kennedy noted that DRMC medical staff saw no bleeding or other genital trauma, “indicat[ing] that she did not sustain injury to her genitalia or anus prior to her arrival.”
In addition to injuries caused by numerous medical interventions, abnormalities to the anal and genital region subsequently noted at KMC and UCLA can be attributed, in part, to systemic edema: bodywide swelling due to disseminated intravascular coagulation (DIC). DIC causes an inability to clot, leading to uncontrolled bleeding and swelling. Consuelo developed this condition soon after the exploratory surgery at KMC. Dr. Harrison explained that “[b]ecause her body was so swollen, [he] was not able to fully examine her genitalia or rectum to confirm the sex abuse findings of the medical staff at KMC. Had Consuelo sustained” those injuries from penile penetration, he “would have expected that [they] would have been visible despite the swelling.” He saw no such injuries.
Dr. Diamond, the KMC child abuse expert who examined Consuelo the morning after her surgery, did note a tear to her hymen and perineum bruising. However, Dr. Kennedy explained that, in patients with DIC, bruising and tearing from even minor touching or movement are common because the skin becomes very fragile. The genital region is comprised of more delicate skin than other areas of the body. It “deteriorates more quickly and noticeably than the surrounding tissue.” The bruises and tears noted on Consuelo‘s anus and genitalia were likely caused by repeated attempts at catheterization.
Notably, these injuries were not seen during Consuelo‘s treatment at DRMC. In support of the petition, a nurse explained that “[t]here are no indications of trauma to [Consuelo‘s] genitalia and anus on her chart because no one who treated [her] that night at DRMC saw any, even though we had the time and opportunity to do so.”
Consuelo‘s genital and anal region was photographed at UCLA. The photos show extensive swelling due to DIC, but no tears to her genitalia or anus. Dr. Kennedy explained that, had she suffered a sexual assault four days before, the photographs would have shown the tearing that she was alleged to have suffered. Indeed, any severe tears would have worsened as a result of her critical condition because edema would have stretched the skin, making lacerations appear more pronounced. According to Dr. Kennedy, the photos showed no tears of even a minor nature. This suggests that the tearing noted during Dr. Dibdin‘s autopsy had resulted from medical interference or postmortem manipulation.
Finally, Consuelo‘s lack of rectal tone, initially attributed to a penetrating injury, was instead the likely result of paralytic medication she had been given, along with her extensive treatment and surgeries. Dr. Kennedy explained, “Anal sphincter laxity is a well-known side effect of” paralytic medications. No anal sphincter laxity or other anal injury was seen at DRMC, as would be expected if she had suffered penile penetration.
B. Recanted Testimony
Many of the medical professionals who testified at petitioner‘s trial subsequently recanted their testimony. A comparison between witnesses’ trial testimony and their later declarations is striking. Dr. Harrison, from UCLA, originally testified that the injuries he
Dr. Diamond, the child abuse expert who evaluated Consuelo at KMC, testified at trial that the appearance of Consuelo‘s anal region was consistent with penetration by an object larger than a finger. He subsequently declared that “it is now my opinion to a high degree of medical certainty that Consuelo was not raped or sodomized.” Dr. Nat Baumer, a medical expert, testified for the defense and admitted that reputable physicians concluded that Consuelo had been sexually assaulted. Dr. Baumer later unequivocally declared that the child “was not anally or vaginally penetrated.” Dr. Anthony Shaw, a UCLA surgeon, testified that it would be improper to conclude based on his postoperative notes that Consuelo had not suffered a sexual assault. He subsequently declared that he had not been given Consuelo‘s complete medical record before testifying and “[c]onsequently, [his] testimony supported the prosecution‘s allegations that Consuelo had been anally penetrated with a penis which, based on [his] own observations, [he] could not support.” The pleadings provide no explanation of why the full medical records had not been provided to these witnesses.
Others who provided related testimony later declared that they did not see evidence of sexual trauma or did not believe the purported cause of death by anal penetration was medically possible. Dr. Jack Bloch, a KMC surgeon, testified that he did not know whether Consuelo‘s internal injuries could have been caused by anal
The sole medical professional who testified about sexual assault but did not subsequently recant his testimony was Dr. Dibdin, the forensic pathologist. However, his testimony was called into serious doubt by those who did recant. Indeed, the only remaining medical professionals who did not execute declarations in support of the petition were those who generally offered no testimony as to the purported cause of death or alleged sexual assault.
Dr. Diamond twice recanted his trial testimony. First, he disavowed his trial conclusion of vaginal penetration. He had testified that he saw a small tear to Consuelo‘s hymen. In conjunction with the tear Dr. Dibdin noted, Dr. Diamond concluded Consuelo had been penetrated. His conclusion was bolstered by his inability to obtain a urine sample following catheterization. In fact, Consuelo had been catheterized during her recent surgery and was becoming incapable of producing urine due to kidney failure.
After reviewing the medical records, autopsy report, and declarations supporting the petition, however, Dr. Diamond no longer believed that Dr. Dibdin‘s finding of vaginal wall tearing could be substantiated. Accordingly, Dr. Diamond recanted that portion of his testimony. Respondent has conceded that petitioner‘s rape conviction and special-circumstance true findings are no longer supported by substantial evidence.8
In 2012, Dr. Diamond submitted a second declaration more fully recanting his testimony. After consulting with Dr. Astrid Heppenstall Heger, M.D., F.A.A.P., whom he characterized as “the pre-eminent expert in the field of child sexual abuse and sexual assault,” Dr. Diamond disavowed his opinion that Consuelo had suffered anal penetration. Dr. Diamond now believes, “to a high degree of medical certainty,” that Consuelo‘s abdominal injuries did not result from anal penetration by a penis or similar object.
Dr. Heger herself provided a declaration in support of the petition. After reviewing medical records, testimony, and declarations, she concluded death due to blunt force penetrating injury of the anus “is so unlikely” that it reaches “the point of being absurd.” Dr. Heger explained that the cause of death attributed in this case has never “been reported in any literature of child abuse or child assault. Had it occurred” here “it would be a unique and singular noteworthy incident in the annals of pediatric child abuse literature.”
III. EVIDENCE AND CONCESSIONS FROM RETURN AND TRAVERSE
Respondent‘s return to the order to show cause included declarations from experts in forensic pathology and child abuse. Both opined that Consuelo‘s genital and anal
Petitioner submitted one further exhibit in support of his traverse. Deputy Attorney General Kelly LeBel interviewed Dr. Tracey Corey, the forensic pathology expert who signed a declaration in support of the return. A transcript of that interview cast further doubt on Dr. Dibdin‘s autopsy report. Dr. Corey was “embarrassed about the pathologist because what he says isn‘t even . . . anatomically possible.” She elaborated, “I‘m embarrassed that . . . a pathologist didn‘t know better, didn‘t know anatomy better.”
Dr. Corey also clarified that elements of Dr. Dibdin‘s testimony were demonstrably incorrect. For example, Dr. Dibdin testified that he had examined autopsy slides of Consuelo‘s anal tissue. Dr. Corey explained Dr. Dibdin‘s testimony was necessarily inaccurate. The alleged anal tissue was patently from the large intestine.
Respondent concedes petitioner is entitled to relief based upon the introduction of false evidence. Respondent agreed that the “validity . . . of the evidence presented at trial ha[d] been so undermined by subsequent revelations,” that, “as a matter of state statutory right,” “[petitioner] is now entitled to limited relief.” He concedes that petitioner‘s rape, sodomy, and lewd conduct convictions were no longer supported by substantial evidence and must be vacated, along with the corresponding special circumstance findings and sentence of death. He maintains, however, that the murder conviction should stand.
IV. DISCUSSION
A. Legal Principles
A defendant‘s right to seek habeas corpus relief is enshrined in California‘s Constitution. (See
“Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them.” (Duvall, supra, 9 Cal.4th at p. 474.) This court evaluates a petition “by asking whether, assuming the petition‘s factual allegations are true, the petitioner would be entitled to relief. [Citations.] If no prima facie case for relief is stated, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an [order to show cause].” (Id. at pp. 474-475.)
If an order to show cause issues, the respondent, as “the custodian of the confined person,” “file[s] a responsive pleading, called a return, justifying the confinement. (
“Under unusual circumstances . . . this court may decline to order a hearing and simply decide the case.” (In re Hardy (2007) 41 Cal.4th 977, 990.) Here, the return expressly admits crucial allegations which justify vacating the sexual assault convictions along with the attendant special circumstances and judgment of death. Respondent acknowledges that, with vacation of the sexual assault convictions, “the factual premise for felony-murder has been discredited.” He argues, however, that petitioner‘s conviction should be reduced from first degree murder.
Because respondent concedes that false evidence was admitted at trial, there are ” ‘no disputed factual questions as to matters outside the trial record.’ ” (Duvall, supra, 9 Cal.4th at p. 478, quoting People v. Karis (1988) 46 Cal.3d 612, 656; see also People v. Romero (1994) 8 Cal.4th 728, 739.) Respondent does not concede that trial counsel was deficient. Because the concessions he does make support relief, we need not order a hearing on this disputed topic. (Duvall, at p. 477.)
C. Respondent Concedes Petitioner Is Entitled to Relief
1. False Evidence Was Introduced at Petitioner‘s Trial
“A writ of habeas corpus may be prosecuted” where “[f]alse evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at a hearing or trial relating to his or her incarceration.” (
Respondent concedes that Dr. Diamond‘s repudiation of his trial testimony is alone sufficient to establish petitioner‘s entitlement to relief. Additionally, a number of
2. Because It Is Reasonably Probable That the Outcome of Petitioner‘s Trial Would Have Been Different Without the False Evidence, Habeas Relief Is Warranted
Determining that the evidence was false clears the first hurdle to relief. “The statute and the prior decisions applying section 1473 make clear that once a defendant shows that false evidence was admitted at trial, relief is available under section 1473 as long as the false evidence was ‘material.’ ” (Richards II, supra, 63 Cal.4th at p. 312.) Materiality is shown if there is a reasonable probability the result would have been different without the false evidence. (Ibid.) That is the case here.
Respondent agrees false evidence tainted many of the jury‘s guilt findings and death sentence, yet contends the murder conviction should not be reversed. He urges it is reasonably probable the jury would have convicted him of second degree murder in light of Consuelo‘s catastrophic injuries. The parties agree that second degree murder is a lesser included offense of first degree murder. (See People v. Taylor (2010) 48 Cal.4th 574, 623.) Petitioner argues, however, that this general rule applies only to malice and implied malice murder. Because first degree malice murder is not a lesser included offense of felony murder, he urges, second degree implied malice murder cannot be a lesser included offense of first degree felony murder. We need not resolve this dispute to conclude that reducing petitioner‘s conviction to second degree murder is not warranted here.
Respondent relies on In re Bower (1985) 38 Cal.3d 865 to argue a reduction to second degree murder is warranted. Bower was initially tried for second degree murder
Here, the jury was instructed on felony murder as well as first and second degree malice murder. The appellate opinion observed: “[T]he jury found true three special circumstance allegations, namely that [petitioner] killed Consuelo during the commission of the felony offenses of rape, sodomy, and lewd conduct on a child under the age of 14. Given these findings, the jury necessarily determined that the killing of Consuelo ‘was first degree felony murder perpetrated in the commission of [those crimes] and not any lesser form of homicide.’ [Citation]
“Further, contrary to [petitioner‘s] assertions, the jury was not left with an ‘all or nothing’ choice between capital murder and acquittal when the court refused to instruct on manslaughter. [Citation] The jury had the choice of finding [petitioner] guilty of
By asserting that the jury “would have” convicted petitioner of second degree murder, albeit after a much different trial with radically different evidence, respondent essentially asks this court to reform that aspect of the verdict. The argument is unpersuasive.
Stripped of falsity, the evidence would show that Consuelo suffered profound injuries while in petitioner‘s care. Petitioner gave a statement to police describing the afternoon‘s events and he testified similarly at trial. Petitioner maintained that after the child briefly evaded his supervision, he found her outdoors, vomiting and quite ill. Petitioner presented expert testimony that the child could have been injured in an automobile accident. Prosecution witnesses agreed that the type of injuries Consuelo sustained, including pupil dilation and compression rib fractures, are commonly seen in automobile accidents. Even if the injuries were inflicted at the hands of another, a defense expert testified that multiple types of forceful blows would have been required to explain the different injuries Consuelo suffered. Indeed, the injuries suggest the assailant would have been “in a rage,” although there was evidence that, moments before, petitioner had been calmly fixing a dinner, the makings of which remained in the apartment days later. It is an impossible task to speculate whether the jury would have been persuaded that petitioner was guilty of second degree murder without the false evidence.
Clearly, Consuelo had been seriously injured in the weeks before this incident. She suffered a broken arm two months before her death. Her ribs were fractured at least three to four weeks before her demise. Additionally, dense scars between her colon and liver indicate Consuelo suffered trauma at least a month before her hospitalization. Consuelo had a fever and was crying in pain on the Halloween night several weeks before her passing. She had been vomiting sporadically for weeks before that evening.
To be sure petitioner‘s own trial testimony was strenuously challenged. But here we have a first degree murder conviction based on a felony murder theory. The evidence now shown to be false was extensive, pervasive, and impactful. What the jury might have concluded in its absence is an exercise in speculation. For example, the prosecutor argued in closing that Consuelo died either as a result of sodomy alone, or from sodomy, rape, and assault. The jury was expressly invited to conclude that the child was killed by petitioner‘s sexual assault. That argument was tainted by the false evidence. In that light, the jury had scant need to consider other theories, and no ability to do so outside the pall cast by the completely repudiated testimony.
The jury may have convicted petitioner under a malice murder theory. There is extensive evidence that Consuelo suffered profound injury while in his care. But, in the absence of sexual assault, how those injuries might have been caused, and any motive for their infliction, is less than clear. The jury heard some evidence suggesting Consuelo could have been struck by a car. But much of that testimony was challenged by the false evidence. Defense experts were unable to explain how Consuelo could have suffered
Further, jurors could have harbored concerns about petitioner‘s culpability in light of evidence that Consuelo had sustained serious injuries in the weeks before her hospitalization. They may have questioned petitioner‘s opportunity to inflict those injuries in light of evidence that petitioner had no unobserved access to the children between May and November 1991. But the import of those earlier injuries was overshadowed by the pervasive false evidence of sexual assault.
At the end of the day, respondent is not asking us to uphold a verdict that would properly have been reached even in the face of evidentiary error. Instead he is asking that we substitute a different verdict that the jury could have rendered in the absence of pervasive and inflammatory false testimony. The question is not whether we have the authority to reduce the conviction. We do. Nor do we suggest that we may never reform a verdict in a case of false evidence. We may. The issue is whether we should do so in this particular case. As we noted in Richards II, the “required showing of prejudice [for false evidence] is the same as the reasonably probable test for state law error established under People v. Watson (1956) 46 Cal.2d 818, 836.)” (Richards II, supra, 63 Cal.4th at pp. 312-313.) Nothing we say here calls that standard into question.
Respondent and petitioner engage in much point and counterpoint as to what a body of expurgated evidence might show and what verdict a jury that received such evidence might return. We decline to posit a radically different trial than the one petitioner received, then try and discern what a jury might have concluded had untainted evidence, argued under a different legal theory, been presented. Nor would it be productive to order an evidentiary hearing on this question. A referee would be in no stronger position than we to divine what a jury might have determined. Whether the
The petition for writ of habeas corpus is granted. The judgment of conviction in People v. Vicente Figueroa Benavides, (Super. Ct. Kern County, 1993, No. 48266), is vacated in its entirety. The matter is remanded to the Kern County Superior Court. Upon finality of our opinion, the Clerk of the Supreme Court is to remit a certified copy of the opinion and order to the trial court for filing. Respondent is directed to serve a copy of the opinion on the prosecuting attorney. (See
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
SIMONS, J.*
* Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to