Destiny Willeen Jacobo (hereinafter “Destiny”; born March 29, 1994; died December 6, 1995, aged 21 months and 8 days) was the victim of medical malpractice and professional negligence on at least four occasions:  (1) Dr. Boggs used too much force in administering cardiopulmonary resuscitation (hereinafter “CPR”) to Destiny, causing pneumothorax which precipitated Destiny’s death (see, e.g., Reporter’s Trial Transcript for People v. Vildosola & Jacobo, Superior Court No. GA026525 (hereinafter “RT”) (Exhibit P1), page 1313 line 13-14 (hereinafter notated as, e.g., RT 1313 L. 13-14); RT 1344 L. 11-17; RT 1839 L. 17-24); (2) Dr. Thomas Hse-Tun Lin, Destiny’s pediatrician, misread an X-ray of Destiny’s lungs on May 12, 1995, finding Destiny’s chest to be “normal” (RT 748 L. 10-11), when in actuality the film revealed congestion associated with bronchitis or pneumonia (RT 1812 L. 2-14); (3) Dr. James Kemp Ribe conveniently misplaced critically important brain material, but he was allowed to argue that said material, despite never being admitted into evidence, was proof that Destiny was a Shaken Baby Syndrome (hereinafter “SBS”) victim (cf. RT 2213 L. 24-2214 L. 7); and (4) Ribe misinterpreted or falsified Destiny’s autopsy findings, spuriously claiming that Destiny died of SBS.

While Destiny was being treated at Santa Marta Hospital, Joseph Dodridge Boggs, Jr. caused both of Destiny’s lungs to collapse (RT 1839 L. 22).  Specifically, Boggs’ overly aggressive CPR (RT 1839 L. 22) caused a break in the lung, allowing atmospheric air to flow into the lung (RT 1839 l. 18-19)—a condition known as pneumothorax (RT 1839 L. 18).  Consequently, Long Beach Memorial Hospital initially considered the cause of death to be “acute respiratory distress syndrome” (RT 1839 L. 10-11).

Boggs’ medical license was suspended for a five-year period, beginning on November 27, 1995—just eight days before he “took care” of Destiny!!!  (Exhibit P2).  Moreover, he was convicted of drunken driving on or about April 6, 1992 (Exhibit P3).  Also, Boggs has been sued for malpractice or professional negligence at least five times during the past eighteen years.  Please refer to Exhibit P4 (detailing civil actions filed against Dr. Boggs):  (1) Boggs was sued with, inter alia, Northridge Hospital on August 31, 2000, Civil Case Number (hereinafter “#”) LC 053550; (2) a suit was filed against Boggs and, inter alia, Santa Marta Hospital on September 8, 1995, # BC 135011; (3) Boggs and Santa Marta Hospital were defendants in a case filed on February 4, 1992, # BC 047878; (4) Boggs was the sole defendant in a lawsuit filed May 21, 1984, # NWC 001791; and (5) a complaint was filed against Boggs and, inter alia, the Medical Center of Tarzana on January 28, 1983, # NWC 091935.  Even more astonishing are the number of lawsuits against Santa Marta Hospital—at least ninety-six (96) during the past eighteen years!

Furthermore, Santa Marta Hospital allowed Boggs to handle Destiny despite the fact that he is a general practitioner, because Santa Marta had no available pediatrician (RT 1448 L. 2-9 (testimony of head nurse Herminia Sabando)).  Consequently, despite being critically ill as a result of pneumothorax caused by Boggs, Destiny was transferred twenty miles away to Long Beach Memorial Hospital (RT 1838 L. 11-16) so that Destiny could have competent care, and to divert attention away from Boggs’ lethal malpractice.  Boggs’ employment at Santa Marta ended shortly after Destiny’s death, and he went into hiding during Ms. Vildosola’s trial (RT 1438 L. 27-1439 L. 8).  All of this exculpatory evidence was swept under the rug during the proceedings.  Prosecutor Lewis simply gave rationalizations for Boggs’ unavailability at trial (e.g., RT 1250 L. 22-24 (“if we ever find Boggs”); RT 2257 L. 17-18), and neither side made any effort to find Boggs.  Yet Boggs was directly responsible for Destiny’s death.

A physician, hospital, or clinic that induces, fails to adequately diagnose, or mistreats pneumothorax is liable for, inter alia, wrongful death, malpractice, and negligence.  Bunting v. United States (9th Cir. 1989) 884 F. 2d 1143 (wrongful death, medical malpractice, and Federal Tort Claims Act action by estate of pilot against government physician who treated pilot for hypothermia while ignoring pneumothorax, other chest injuries, and hypotension), reh’g den. (1989 U.S. App. Lexis 14222 (en banc)); Breazeal v. Henry Mayo Newhall Memorial Hospital (CA 2nd Cal. 1991) 234 Cal. App. 3d 1329, 286 Cal. Rptr. 207 (suit for wrongful death and professional negligence involving bilateral pneumothorax and CPR).

The negligence of Boggs was compounded when pathologist Ribe ignored overpowering evidence that Destiny did not die of SBS, but instead succumbed to pneumothorax (see § II, infra), pneumonia (see § V, infra), blood dyscrasia (see § IV, infra), negligent CPR (see § III, infra), immunological deficiency (see, e.g., RT 1810 L. 24-25 (“jeopardized immune system”)), and other possible causes, such as SIDS.  Destiny had many of the signs of SIDS, the initial official cause of death for her half-sister Carissa Arlene Neria (hereinafter “Carissa”).  Because there was a risk that Destiny might also die of SIDS, she received apnea monitoring during her first six months.  Although Destiny continued to have sleeping and breathing problems throughout her life, apnea monitoring was discontinued because her foster parents, the Garzas, were no longer willing to pay the bill (RT 1859 L. 10-13; RT 2220 L. 12-13).




Destiny would be alive today if her lungs had not been destroyed at Santa Marta Hospital.  Destiny was the victim of iatrogenic injury.  Specifically, her lungs were “popped” by excessively forceful cardiopulmonary resuscitation administered by Joseph Dodridge Boggs, Jr. while she was a patient at Santa Marta (RT 1313 L. 13-14 (“both of her lungs popped and collapsed due to efforts to save her”); RT 1344 L. 11-17 (“popped lungs”); RT 1839, L. 17-24 (“lungs collapsed” during “efforts to resuscitate” at Santa Marta)).

Unless properly and promptly treated, pneumothorax (i.e., collapsed lungs) causes hypoxia and anoxia, and is invariably fatal.  Many physicians are unqualified to handle all of the complications of pneumothorax, and depend upon pulmonary specialists.  Bunting, supra, at 1147-1148 (general practitioner allegedly treated pneumothorax inadequately; patient died).  No pulmonary specialist was consulted while Destiny was at Santa Marta.

Pneumothorax can occur spontaneously in individuals with pulmonary infections.  Quigley v. Industrial Accident Commission (Cal. 1935) 3 Cal. 2d 46, 48, 43 P. 2d 289, 290 (worker with tuberculosis developed pneumothorax while stooping and lifting).  Moreover, cardiopulmonary resuscitation can cause pneumothorax, particularly in patients with lungs weakened by infection, and even more commonly in infants with diseased lungs.  Schultz v. Mutch (Cal. 1985) 165 Cal. App. 3d 66, 211 Cal. Rptr. 445, 448 (pediatrician caused pneumothorax while performing CPR on baby).  Destiny’s lungs were softened and weakened by pneumonia.  Hence, it is not surprising that CPR performed by Boggs, a non-pediatrician, resulted in breakage of her lungs and pneumothorax.

Physicians are liable for professional negligence or medical malpractice when they negligently cause pneumothorax, or when they fail to treat pneumothorax in accordance with the standard of care expected of medical doctors.  See, e.g., Breazeal, supra, at 1336 (doctors who allegedly caused, misdiagnosed, and mistreated pneumothorax held liable for negligence and wrongful death).  Boggs caused Destiny’s pneumothorax, and was so negligent in his treatment that he arranged to transport Destiny nearly twenty miles away in order to shift responsibility for Destiny’s respiratory distress to another health facility.

Boggs, whose medical license was suspended when he “treated” Destiny, also has a history of drunken driving, and he has been sued many times for medical malpractice (for further details, see § I, supra (“DESTINY WAS KILLED BY MEDICAL MALPRACTICE”)).  Boggs’ medical malpractice on December 5-6, 1995, including lethally aggressive CPR, killed Destiny.




Destiny was exceedingly vulnerable to injury caused by vigorous cardiopulmonary resuscitation:  Not only pneumothorax but also bleeding, because she suffered from a coagulation deficiency.  When Ms. Vildosola first noticed that Destiny had stopped breathing, she performed CPR (RT 1805 L. 24; RT 1634 L. 21-1635 L. 5).  Then, CPR was administered by a lifeguard named Gary Robert Hernandez, who was visiting the Jacobo home on December 5, 1995 (RT 1552 L. 6-22 & RT 1637 L. 20-23).  CPR was also administered to Destiny by Ms. Vildosola during the car ride to Santa Marta Hospital (see RT 1639 L. 16-19 and Case Report, County of Los Angeles, No. 95-09550, Dr. Z. Reda, December 6, 1995 (hereinafter “CR”) (Exhibit P5) (“Mother calling rescue and attempting CPR”)).  Next, CPR was performed “six or seven times” at Santa Marta Hospital (RT 1605 L. 26-27).  While administering CPR at Santa Marta, Dr. Joseph Boggs broke Destiny’s lungs open (RT 1313 L. 12-14 (“both of her lungs popped and collapsed due to efforts to save her”)), causing pneumothorax (e.g., RT 1839 L. 17-24 (during “efforts to resuscitate” Destiny at Santa Marta, her “lungs collapsed”)) and respiratory distress (RT 1839 L. 8-11 (Long Beach Memorial pronounced Destiny dead; cause of death “respiratory distress syndrome”)), which led to her death (RT 1839 L. 8-24).  Yet CPR continued to be administered in the ambulance between Santa Marta Hospital and Long Beach Memorial Hospital, and again at Long Beach Memorial (RT 1805 L. 28-1806 L. 1).  Considering that Destiny had a bleeding disorder, the extensive and forceful CPR that she received is an indubitable cause of her retinal and optic bleeding, at least some of her subarachnoid bleeding, and her death.

Cardiopulmonary resuscitation, especially when performed improperly on infants, produces symptoms of SBS--including retinal hemorrhaging.  See Myron v. Doctors General Hospital (CA 4th FL 1997) 704 So. 2d 1083, 1088 (improper resuscitation can cause hypoxic ischemia, resulting in “massive permanent brain injuries”); Ohio v. Traster (CA 9th OH 1996) 1996 Ohio App. Lexis 4619 (alleging retinal hemorrhaging caused by resuscitation and blood factor deficiency); Gayle, M.O.; Kissoon, N.; Hered, R.W. & Harwood-Nuss, A. (1995) Retinal Hemorrhage in the Young Child:  A Review of Etiology, Predisposed Conditions, and Clinical Implications, 13(2) J. Emergency Med. 233-239 (guidelines for fundoscopic examination in differentiating retinal hemorrhages caused by CPR, accidental trauma, congenital diseases, blood dyscrasias, infections, and child abuse); People v. Lind (CA 4th IL 1999) 307 Ill. App. 3d 727, 731, 718 N.E. 2d 316 (incorrectly performed CPR can cause retinal hemorrhaging); Weedn, V.W.; Mansour, A.M. & Nichols, M.M. (1990) Retinal Hemorrhage in an Infant after Cardiopulmonary Resuscitation, 11(1) Am. J. Forensic Med. Pathology 79-82 (nonabused child had retinal hemorrhages after CPR); Odom, A., et al. (1997) Prevalence of Retinal Hemorrhages in Pediatric Patients after In-Hospital Cardiopulmonary Resuscitation:  A Prospective Study, 99(6) Pediatrics E3; Kanter, R.K. (1986) Retinal Hemorrhage after Cardiopulmonary Resuscitation or Child Abuse, 108 Pediatrics 430-432; Goetting, M.G. & Sowa, B. (1990) Retinal Hemorrhage after Cardiopulmonary Resuscitation in Children:  An Etiological Reevaluation, 85 Pediatrics 585-588.  Cf. Wetzel, Randall C. (1995) Fatal Intramuscular Bleeding Misdiagnosed as Suspected Nonaccidental Injury, 95 Pediatrics 771-773 (retinal hemorrhages unreliable indicator of SBS when coagulopathy present).  See generally Dorfman, D.H. & Paradise, J.E. (1995) Emergency Diagnosis and Management of Physical Abuse and Neglect in Children, 7(3) Current Opinion in Pediatrics 297-301 (must rule out CPR-induced rib fractures and ocular nerve sheath hemorrhage when looking for SBS).  Destiny had ocular nerve sheath hemorrhages, described as “subdural hemorrhage with extension into the subarachnoid space” along “[b]oth optic nerves” (see Ophthalmalogic Pathology Report of Narsing Adupa Rao, M.D., December 22, 1995 (hereinafter “OR”) (Exhibit P6), p. 1 (Microscopic Description)).  In fact, all of Destiny’s alleged head injuries, if any, could have been caused by overzealous CPR.  Onishi, Norimitsu (April 5, 1996) Medical Examiner Finds Shaking Killed Queens Baby, New York Times, Section B, 3, col. 1 (UCLA professor of pediatric neurology wrote that fatal cerebral bleeding could have been caused by SBS, viral infection, or CPR).

Some courts have employed expert witnesses to determine whether an infant received improper or excessively forceful CPR.  See In re C.R.S. (Sup. Ct. PA 1997) 696 A. 2d 840, 845 (pediatric ophthalmologist rendered opinion as to retinal hemorrhages in case where parents who performed CPR were wrongly convicted of child abuse); People v. Wheeler (CA 4th IL 1998) 299 Ill. App. 3d 245, 248, 701 N.E. 2d 178 (ruling out CPR and osteogenesis imperfecta as causes of rib fracture and thrombocytopenia as explanation for bruising); Frank v. Commonwealth (CA VA 1999) 1999 Va. App. Lexis 298, 5 (in SBS case, medical specialists ruled out, inter alia, aggressive CPR, hypoxia, apnea, and reflux); State v. Gulertekin (CA 10th OH 1998) 1998 Ohio App. Lexis 5641, 12-13 (doctor ruled out CPR, choking, and esophageal reflux); State v. Wiley (CA 9th OH 1995) 1995 Ohio App. Lexis 5625, 11-12 (postmortem CPR unlikely to explain subdural or subarachnoid hemorrhaging); George v. State (CA 9th TX 1997) 1997 Tex. App. Lexis 5802, 3-4 (rib fractures in 6-week-old alleged SBS victim ruled out CPR as cause of death).

Destiny received CPR numerous times, and with such force that her lungs were broken open at Santa Marta Hospital (RT 1839 L. 18-19).  Yet she had no rib fractures (Autopsy Report, Department of Coroner, County of Los Angeles, No. 95-09550, December 9, 1995 (hereinafter “AR”) (Exhibit P7), p. 9 (Respiratory System) (“no rib fractures”); RT 2105 L. 20-21), the presence of which would be expected if there were any child abuse.  Therefore, not only did overaggressive and excessive CPR cause Destiny’s retinal, ocular, and subarachnoid bleeding, but it also caused lung damage leading to her death.




Destiny’s subarachnoid and retinal hemorrhaging, petechiae, and other indications of bleeding are not diagnostic of SBS, but are instead attributable to a blood coagulation defect caused by heredity, vitamin K deficiency, anemia, liver disease, and/or other factors (cf. RT 1782 L. 10-1783 L. 15).  Coagulopathic diseases are often misdiagnosed as SBS.  Scimeca, P.G.; Cooper, L.B. & Sahdev, I. (1996) Suspicion of Child Abuse Complicating the Diagnosis of Bleeding Disorders, 13(2) Pediatric Hematology & Oncology 179-182.  See also, e.g., Rutty, G.N.; Smith, C.M. & Malia, R.G. (1999) Late-Form Hemorrhagic Disease of the Newborn:  A Fatal Case Report with Illustration of Investigations that May Assist in Avoiding the Mistaken Diagnosis of Child Abuse, 20(1) Am. J. Forensic Med. Pathol. 48-51 (hematological assays advised to avoid misdiagnosis of child abuse); Choo, K.E.; Tan, K.K.; Chuah, S.P.; Ariffin, W.A. & Gururaj, A. (1994) Haemorrhagic Disease in Newborn and Older Infants, 14(3) Annals of Tropical Paediatrics 231-237 (all 42 hemorrhagic infants in study had prolonged prothrombin and partial thromboplastin times corrected by vitamin K administration; subdural hemorrhage was the commonest form of intracranial bleeding, followed by subarachnoid hemorrhage); Shemie, S. & Cutz, E. (1995) Late Hemorrhagic Disease of the Newborn:  A Fatal Presentation of Hepatobiliary Disease Masquerading as Shaken Baby Syndrome, 10(6) J. Intensive Care Med. 315-318 (late hemorrhagic disease of infancy classically presents with intracranial hemorrhage in coagulopathic children who receive no Vitamin K prophylaxis); Vitamins for Seeing (1990), 16(4) Compr. Ther. 62 (vitamin K deficiency causes retinal hemorrhages in neonates); Strijks, E.; Poort, S.R.; Inatomi, Y.; Inoue, T.; Visudhiphan, P.; Bhanchet, P.; Lakanapichanchat, C. & Chiemchanya, S. (1974) Intracranial Hemorrhage in Infants due to Acquired Prothrombin Complex Deficiency, 41(1) J. Neurosurgery 14-19 (spontaneous bleeding cured with intravenous vitamin K and fresh blood transfusion to correct coagulopathy and anemia); Hamada, Y.; Mizoguchi, M.; Ishibashi, H.; Nagata, S. & Matsuno, H. (1994) A Postoperative Intracranial Hemorrhage due to a Vitamin K Deficiency in Treated Severe Subarachnoid Hemorrhage Patients, 3(1) Japanese J. Neurosurg. 59-64 (describes patients with insufficient dietary vitamin K whose subarachnoid hemorrhages spread intracerebrally); Scheiber, Viera (March 31, 1999) Shaken Baby Syndrome:  The Vaccination Link, New Vegetarian and Natural Health, 61-63 (a side effect of DPT (diphtheria, pertussis (whooping cough), tetanus), OPV (oral polio vaccine), and HiB (H. influenza type B) shots is thrombocytopenia, characterized by easy bruising, petechia, and brain hemorrhages, and often appearing months after the vaccination); McNamara, John J.; Baler, Robert & Lynch, Ellen (1985) Ehlers-Danlos Syndrome Reported as Child Abuse, 24 Clinical Pediatrics 317 (in Ehlers-Danlos syndrome, minor trauma causes bruising, ecchymoses, and hematomas mistaken for child abuse).  See generally Lyon, Thomas D.; Gilles, Elizabeth E. & Cory, Larry (1996) Symposium:  Child Abuse:  Medical Evidence of Physical Abuse in Infants and Young Children, 28 Pacific Law J. 93-167, 151, 154, 156 & 160 (coagulopathy is cause of subarachnoid and retinal hemorrhages, especially when subdural hematomas absent), citing Garcia, Julio H. & Anderson, Michael L. (1991) Circulatory Disorders and their Effects on the Brain, in Textbook of Neuropathology (Richard L. Davis & David M. Robertson, eds., 2nd ed., 1991), 621, 701 (techniques for diagnosing bleeding disorders).  Cf. Renier, W.O.; Gabreels, F.J.M. & Bertina, R.M. (1999) Hereditary Prothrombin Deficiency Presenting as Intracranial Haematoma in Infancy, 30(6) Neuropediatrics 320-324 (parents of infant with bleeding disorder were accused of child battering, because socioeconomic status was unstable).

Because hematological disorders can produce all of the symptoms of SBS, it is mandatory that infants with subdural hemorrhage be subjected to a multidisciplinary investigation.  Before considering an SBS diagnosis, the child should receive a social assessment, expert ophthalmoscopy, a radiographic skeletal survey with either a bone scan or repeat survey, coagulation screening, and a neuro-radiologic analysis.  Hartley, L.M. & Khwaja, O.S. (2001) Glutaric Aciduria Type 1 and Nonaccidental Head Injury, 107 Pediatrics 174-176 (child with glutaric aciduria causing subdural bleeding misdiagnosed as having nonaccidental injury (hereinafter “NAI”)), citing O’Hare, A.E. & Eden, O.B. (1984) Bleeding Disorders and Non-Accidental Injury, 59 Archives of Disease in Childhood 860-864.  Another recommended protocol is examination by a pediatric ophthalmologist and pediatric neurosurgeon, Computerized Axial Tomography (hereinafter “CAT” or “CT”) and Magnetic Resonance Imagery (hereinafter “MRI”) brain scans, a detailed evaluation and medical history by a pediatrician trained in child abuse, complete blood cell (CBC) and platelet counts (including hemoglobin/hematocrit), and clotting studies (bleeding time, mild prothrombin time (PT), activated partial thromboplastin time (PTT), thrombin time (TT), fibrinogen, fibrin degradation products (FDP)).  Morris, Mark W.; Smith, Sally & Cressman, Joanne (2000) Evaluation of Infants with Subdural Hematoma who Lack External Evidence of Abuse, 105 Pediatrics 549-553 (subdural bleeding is often the only indication of abuse).  See also Harley, J.R. (1997) Disorders of Coagulation Misdiagnosed as Nonaccidental Bruising, 13(5) Pediatric Emergency Care 347-379 (cites cases where children with coagulation disorders were wrongly thought to be victims of NAI); Wynne, Jane & Hobbs, Chris (1998) Shaken Babies, 352(9130) Lancet 815 (diagnosing child abuse is like solving a jigsaw puzzle), citing Lazoritz, S.; Baldwin, S. & Kini, N. (1997) The Whiplash Shaken Infant Syndrome:  Has Caffey’s Syndrome Changed or Have We Changed his Syndrome? 21 Child Abuse and Neglect 1009-1014.  Cf. Limbos, Mary Ann P. & Berkowitz, Carol D. (1998) Documentation of Child Physical Abuse:  How Far Have We Come?, 102 Pediatrics 53-58 (physician documentation of child abuse did not improve during 1980-1995).

Coagulopathy is a frequent complication of head trauma, particularly pediatric abusive head trauma.  PT prolongation and activated coagulation are strongly associated with the extent of parenchymal brain damage.  If parenchymal brain damage is absent, coagulation may be caused by a preexisting hemorrhagic diathesis.  Coagulation abnormalities are also strongly related to severity of illness, and are especially common in fatal SBS cases.  Hymel, Kent P.; Abshire, Thomas C.; Luckey, Dennis W. & Jenny, Carole (1997) Coagulopathy in Pediatric Abusive Head Trauma, 99 Pediatrics 371-375 (among pediatric abusive head trauma patients with parenchymal brain damage who died, 94% displayed PT prolongations, and 63% had evidence of activated coagulation).  Cf. Gotthold, William E. (1986) Bleeding Disorders and Non-Accidental Injury, 59 Arch. Dis. Child. 860-864 (8 of 50 children diagnosed with NAI had bleeding abnormalities).

Doctor John Patrick Ryan examined Destiny’s hematological tests, and found that Destiny’s platelet count was 97,000 (compared to a normal reading of 140,000 to 450,000 platelets per milliliter), which is about 31% below the minimal normal reading (see RT 1782 L. 10-24).  Platelets are vitally important in blood coagulation.  Destiny’s prothrombin (PT) measure was 99 seconds (compared to 11.9 seconds for the control), also strikingly subnormal (RT 1783 L. 3-5).  Another crucial blood clotting factor is thromboplastin.  Destiny’s partial thromboplastin time (PTT) was over 100 seconds, compared to a 29.9-second control time—-again severely below normal (RT 1783 L. 11-15).  Destiny’s coagulation system was so seriously compromised that the type of bleeding observed in Destiny would require four to five times more force to produce in a normal infant (RT 1784 L. 25-27).  In other words, Destiny bruised very easily—-like a child with leukemia, or a hemophiliac (RT 1785 L. 5-7).

Destiny also suffered from an immunological deficiency.  Her thymus gland weighed only seven grams, compared to a normal weight of 35 grams in a 21-month-old baby.  RT 2111 L. 20-21.  Her repeated bouts of otitis media (RT 1810 L. 17-18), rhinitis, bronchitis, and even pertussis (RT 1810 L. 19-20) suggest compromised immunity (RT 1810 L. 16 & 24-25).  A complete blood count (CBC) might have uncovered a weakened immune system, which would explain the development of pneumonia and/or meningitis.

We may never know whether a coagulopathy or other blood-related disorder contributed to Destiny’s death, because there was no hematological consultation or blood analysis while Destiny was hospitalized or during her autopsy, and Dr. Ribe failed to make even one slide of the liver for microscopic examination (RT 1845 L. 17-1846 L. 4).  Because of these severe evidentiary shortcomings, habeas corpus relief should be granted.




A principal cause of Destiny’s death was pneumonia (see, e.g., RT 1344 L. 20-26 (“well-developed acute bronchopneumonia”); RT 1807 L. 2-5; RT 1839 L. 4-7 & 10-11; and RT 1818 L. 3-10 (Destiny had pneumonia for at least “a couple of days” before her death)) caused by haemophilus influenza meningitis, or (less likely) streptococcus pneumonia meningitis.  See Friedman, E.M.; McGill, T.J.I. & Healy, G.B. (1990) Central Nervous System Complications Associated with Acute Otitis Media in Children, 100(21) Laryngoscope 149-151 (of 92 patients (61% under 12 months of age) having otitis media concurrently with other central nervous system (CNS) disease, 91% had meningitis, with a “high incidence of haemophilus influenza type-B” (HIb)) and Kaplan, S.L. (1995) The Emergence of Resistant Pneumococcus as a Pathogen in Childhood Respiratory Tract Infections, 10(1) Seminars in Respiratory Infection 31-36 (streptococcus pneumonia is the most common cause of recurrent otitis media and sinusitis in infants, and remains an important cause of pneumonia and meningitis).  Shockingly, Ribe never mentioned pneumonia as a cause of death, despite overwhelming evidence in his autopsy findings (e.g., AR 9 (Respiratory System) (“lung tissue is congested”); RT 1344 L. 11-17 (Ribe testifies that Destiny died from bilateral pneumothorax (i.e., “popped lungs”) caused by Dr. Boggs’ CPR efforts at Sta. Marta Hosp., and pneumonia (RT 1344 L. 24-25 (Ribe testifies that Destiny had “acute bronchopneumonia in at least one lung, possibly both”)))), particularly the microscopic slides (see Microscopic Description, Autopsy of Destiny Jacobo (hereinafter “MR”) (Exhibit P8), pp. 1-2, SLIDES 2-5; RT 1807 L. 2-1811 L. 4 (describing the evidence of pneumonia in Ribe’s microscopic sections of lung tissue); RT 1812 L. 2-14 (X-rays revealed Destiny’s lungs diffusely congested, causing “poor inspiration”)).

Ribe not only ignored his own overwhelming microscopic evidence of pneumonia, but even failed to consider Destiny’s medical record from Thomas Lin, M.D., Destiny’s pediatrician during almost all of her life (RT 744 L. 16-24 & 748 L. 20-21; RT 2219 L. 4-13).  Dr. Lin detected otitis media on five separate occasions (e.g., RT 746 L. 23; RT 750 L. 26-28; RT 751 L. 13-15; 752 L. 2-3; RT 752 L. 19-22; RT 1098 L. 20-1099 L. 8), and treated Destiny several times for otitis media (RT 750 L. 26-751 L. 3 (Suprax; unsuccessful tx); RT 752 L. 17-21 (Pediazole; unsuccessful tx)), eye infections (e.g., RT 751 L. 21-27 (“left eye was red and draining mucus”); RT 752 L. 10-11 (L. conjunctiva red)), and respiratory problems (RT 746 L. 22; RT 748 L. 3; RT 750 L. 8-13; RT 750 L. 21-25; RT 751 L. 8-12; RT 2219 L. 14-17).  In addition, on or about May 22, 1995, Lin’s radiologist found densities in Destiny’s chest X-ray (RT 753 L. 8-11 & 24-25), indicating that Destiny’s lungs were congested and that Destiny suffered from “poor inspiration” (RT 753 L. 24-26).  Bronchitis and pneumonia are characterized by lung congestion and poor inspiration, which can lead to death in a baby, especially one with a compromised immune system like Destiny.

One common pneumonic pathogen, Haemophilus influenza, is also the leading cause of bacterial meningitis in children under five, and is particularly common from one month to four years of age.  See Asmar, B.I.; Slovis, T.L.; Reed, J.O. & Dajani, A.S. (1978) Hemophilus Influenza Type B Pneumonia in 43 Children, J. Pediatrics 389-393 (mean age of patients was 26 months; associated illnesses were upper respiratory infection (hereinafter “URI”), otitis media, epiglottitis, and meningitis).  H. influenza meningitis often follows a URI, and frequently develops slowly.  The infection typically spreads from the nasopharynx to the blood stream, and ultimately to the meninges, where it can be fatal.  Risk factors include:  (1) a recent history of otitis media, sinusitis, pharyngitis, or URI; (2) Native American ancestry, which increases the frequency threefold; and (3) exposure to a day-care setting.  Among the American Indian population, the incidence of H. influenza is at least five (5) per 10,000 people, and much higher among infants.

The symptoms of H. influenza meningitis in infants include irritability, poor feeding, fever, stiff neck, nuchal rigidity, photophobia, opisthotonos, and seizures.  Destiny had many of these signs:  (1) She was irritable, manifested by frequent, high-pitched crying (RT 1088 L. 14-15 (Marina Francine Neria, Destiny’s step-sister, said that Destiny cried all day on December 5, 1995, the day that she died)); (2) she was difficult to feed (CR (“eating problems”)), and had lost considerable weight; (3) she had an elevated temperature during her frequent sicknesses, and was pyrexic prior to her hospitalization; (4) her neck was noticeably stiff and rigid long before her death; (5) she often stood or sat in an opisthotonic position, motionless and apparently staring into space (c.f., e.g., RT 994 L. 14-18 (Destiny was “standing like a statue”)); and (6) she often threw tantrums.  See, e.g., RT 2364 L. 18 & 24.

In addition, Destiny had a chronic history of otitis media, a common precursor to H. influenza meningitis.  According to the testimony of her pediatrician, Dr. Lin, Destiny had repeated ear (e.g., RT 752 L. 20-22) and eye infections (RT 750 L. 23-28 & 751 L. 23-752 L. 9).  She was brought to Lin for treatment of otitis media on at least five occasions (RT 1810 L. 17-19).  The conjunctivitis (RT 752 L. 10-11) and other eye inflammation (RT 751 L. 25), coupled with coughing and prolonged crying (RT 751 L. 9-10), may also explain Destiny’s retinal and ocular hemorrhages.

Moreover, the subarachnoid hemorrhaging detected during Destiny’s autopsy indicates a meningeal infection.  Cf. Singer, M.B.; Atlas, S.W. & Drayer, B.P. (1998) Subarachnoid Space Disease:  Diagnosis with Fluid-Attenuated Inversion-Recovery MR Imaging, 208(2) Radiology 417-411 (of 15 patients with meningitis, 6 had acute subarachnoid hemorrhage); Rabah, R.; Kupsky, W.J. & Haas, J.E. (1998) Arteritis and Fatal Subarachnoid Hemorrhage Complicating Occult Candida Meningitis, 122(11) Archives of Pathology and Laboratory Medicine 1030-1033 (undetected meningitis; death caused by subarachnoid hemorrhage).  Subdural hemorrhaging in the absence of subarachnoid hemorrhaging would have pointed toward SBS, but Destiny had negligible subdural hemorrhaging (see AR 7 (only “subarachnoid hemorrhaging” noted); County of Los Angeles Care Facility Report, Long Beach Memorial Hospital, Case No. 95-09550, Zacharia Yehya Reda, M.D. (hereinafter “CFR”) (Exhibit P9) (“diffuse subarachnoid hemorrhage”); and CR (“diffuse subarachnoid bleed”)).  Subdural hemorrhaging, typically bilateral, is the critical element in diagnosis of fatal SBS.  See, e.g., Smith v. Montgomery (6th Cir. 1989) 884 F. 2d 580 (whiplashing can result in “bilateral thin acute subdural hematoma, and cerebral edema in death”); State v. Qualls (CA NC 1998) 130 N.C. App. 1, 502 S.E. 2d 31 (“primary components” of SBS are “subdural hematoma” combined with “retinal hemorrhages”) [Emphasis added.].

Furthermore, Destiny was of Native American ancestry.  Both her mother and father are Mexican-American mestizos of mixed Spanish and Indian heritage, and each is at least 50% American Indian.  Therefore, Destiny’s likelihood of contracting H. influenza meningitis was probably three or more times that of the average American infant.

Destiny had yet another risk factor:  her domestic situation.  Although she was never placed in a day care facility, she spent fifteen months in a foster home run by Joanne and Daniel Garza.  The Garzas ran a “foster mill,” grossing about $600 per month for each child that they “took in.”  RT 577 L. 12-578 L. 14.  The Garzas had an average of three or four foster children at any given time while Destiny was in their abode (RT 577 L. 23-24 & 27-28), and children arrived and left constantly.  RT 577 L. 23 (“The number changed all the time.”); RT 577 L. 28 (“Children come and go all the time.”).  During their careers as foster parents, the Garzas already have had in excess of forty (40) children in their domicile.  Fleeman, Michael (August 14, 1997) Dateline:  Los Angeles.  Foster mother finds renewed strength after toddler’s murder, Associated Press.  Destiny contracted respiratory and other ailments from the Garza’s other foster children.  See RT 748 L. 2-3.  Those ailments were precursors to Destiny’s pneumonia and death.

If Destiny’s pneumonia was not caused by H. influenza, she was probably the victim of pneumococcal meningitis, caused by Streptococcus pneumonia, also known as pneumococcus.  S. pneumonia is the most common form of meningitis in adults.  Infection is usually rapid, which would explain Destiny’s sudden death.  Some of Destiny’s symptoms correspond with pneumococcal meningitis, including her high fever, stiff neck, and irritability.  In addition, S. pneumonia meningitis is frequently preceded by an ear infection or URI.  Destiny was chronically plagued by both otitis media and URIs.

Physicians often fail to diagnose infantile meningitis, and sometimes confuse SBS or child abuse with meningitis.  Thorne v. Hennepin County (CA MN 1997) 1997 Minn. App. Lexis 1258, 4 (“doctors could only hypothesize alternative theories for the cause of bleeding, including possibly ‘an infarction,’ ‘cerebral edema,’ ‘acute apnea,’ ‘trauma,’ ‘aneurysm,’ ‘shaken baby syndrome,’ ‘meningitis,’ or ‘seizures’”); Myron, supra, at 1088-1089 (alleging medical malpractice for, inter alia, SBS misdiagnosis and failure to test for meningitis with spinal tap on six-month-old baby with fever and possible otitis media).  For example, in Myron, an infant was rendered a spastic quadriplegic, allegedly because she had meningitis and was improperly resuscitated at the hospital.  The infant’s mistreatment evidently resulted from a false diagnosis of SBS.

Likewise, Destiny was a victim of medical malpractice, because SBS was errantly diagnosed before pneumonia or meningitis were ruled out, and rigorous CPR (which was injurious to a baby as fragile as Destiny) was repeatedly administered (RT 1805 L. 24; RT 1634 L. 21-1635 L. 5; RT 1637 L. 20-23; RT 1639 L. 16-19; RT 1605 L. 26-27; RT 1839 L. 18-22; RT 1805 L. 28-1806 L. 1).  There is powerful evidence that Destiny was suffering from pneumonia when she died (e.g., RT 1807 L. 2-5; RT 1839 L. 4-5 & 10-11; and RT 1818 L. 3-10).  Dr. Lin apparently misread a pleural X-ray (taken by David Underwood, M.D., a radiologist) which indicated that Destiny had pneumonia as early as May 12th of 1995 (RT 753 L. 8-755 L. 10 & 1811 L. 1-1812 L. 14).  According to Dr. Ryan, Destiny became infected with pneumonia at least 72 hours before her death (RT 1817 L. 8-10).

Destiny’s autopsy report unequivocally points to pneumonia as a cause of death (see MR).  Destiny’s peribronchiolar peripheral lung parenchyma was “filled” with “acute confluent inflammatory alveolar exudates of neutrophils” (i.e., immunological cells active in inflammations), erythrocytes (aka. red blood cells or RBCs), large macrophages (another type of white blood cell found in infections), and fibrin (MR 1, SLIDE 2).  In other words, Destiny’s outer lung tissue was suffused with white blood cells, and there was some bleeding.  “The infiltrate crosses lobular septa” (MR 1, SLIDE 2).  That is, the pneumonia had spread across the lung.  “Bacterial colonies” are found “in alveoli” (MR 1, SLIDE 2).  The bacteria are likely H. influenza meningitis or S. pneumonia.  Bronchioles and alveoli contain “large cellular aggregates” (MR 1, SLIDE 2).  “Most nearby bronchioles also contain aggregates of more clearly defined desquamated epithelium” (MR 1, SLIDE 2).  Such intrabronchiolar or intraalveolar cellular aggregates are typically found in pneumonia fatalities.

On closer inspection, Destiny’s lung parenchyma was found to be “well-inflated” (MR 1, SLIDE 3).  “Neutrophils” were ubiquitous “in septa” (MR 1, SLIDE 3).  “Bronchi and bronchioles have acute mural inflammation.”  A “larger bronchiole is plugged by a large aggregrate of purulent mucus, fibrin, macrophages, and bronchial epithelium” (MR 1, SLIDE 3).  In other words, globules of pus were blocking some of the inner air passages of the lungs.  “Nearby is a confluent pneumonic infiltrate” (MR 1, SLIDE 3).  Clearly, Destiny’s lungs were heavily congested with pus and other infiltration characteristic of pneumonia.

Even the larger airways of Destiny’s lungs were diseased.  A mainstem bronchus was found to have “acute focal inflammation of the wall,” and its luminal surface was “coated with pus” (MR 2, SLIDE 4).  “The bronchial epithelium is completely denuded” (MR 2, SLIDE 4).  In other words, all of the surface layer of cells inside the larger lung air ducts was gone.  “Bacterial colonies are focally present.”  “[B]ronchial mucus glands are hyperactive” (MR 2, SLIDE 4).  Peripheral lung tissue shows a “large area of confluent alveolar exudate of polymorphonuclear lymphocytes and RBCs (MR 2, SLIDE 4).  Bronchial hilar nodes were conspicuously small and “burned-out” (MR 2, SLIDE 5).  All of these findings are diagnostic of pneumonia.

Several people also observed:  (1) that Destiny’s respiratory system was congested (RT 751 L. 8-9 (“the baby came in again congested”); RT 752 L. 23-25; RT 1632 L. 20 (“she was congested”); AR 9 (“lung tissue is congested”)), (2) that she wheezed when breathing (RT 1632 L. 26), and (3) that she coughed frequently (RT 751 L. 9; RT 752 L. 23-25; RT 1632 L. 20).  In fact, Destiny was wheezing immediately before she died (RT 1632 L. 28-1633 L. 18).  Destiny’s lungs were so congested that on December 5, 1995, she stopped breathing, eventually expiring from pneumonia.

Even when all of the classic symptomatology of SBS is present, alternative pathologies must be ruled out, including, inter alia:  (1) pneumonia, (2) meningitis, (3) congenital arteriovenous malformations, (4) coagulopathies, (5) aneurysms, (6) immunodeficiency disorders, (7) dietary imbalances, (8) genetic abnormalities, and (9) accidental trauma.  In Ms. Vildosola’s trial, the prosecution failed to consider that Destiny may have been the victim of medical malpractice.  The prosecutors also failed to systematically rule out all reasonably probable alternative causes for the deaths of both Carissa and Destiny.  That Destiny may have died from multiple causes, including pneumonia and meningitis, was never seriously considered.  Instead, the prosecution was myopically riveted on SBS, with both parents as the presumptive villains.




William Jacobo III (hereinafter “Billy III” or “Little Billy”) sexually and physically abused his siblings (RT 999 L. 13-14 (“I got a monster in my house”); RT 1000 L. 2-3 (“Billy was accused by his brother Michael of sexually molesting him on two occasions”); RT 1000 L. 16-17 (“Michael said he was anally penetrated.”); RT 1002 L. 3-4 (“he tried to anally molest one of the other little boys [Anthony], also”); RT 1611 L. 11-1612 L. 6 (e.g., RT 1611 L. 17-19 (Billy was “touching the other little boys, molesting them, incest”) & RT 1611 L. 23-24 (“[T]he little monster was in his house [sic] he was the one touching the kids.”)); RT 1023 L. 25-1024 L. 3), including Destiny.  E.g., RT 1098 L. 14-1103 L. 12; RT 1626 L. 13-27 & 1628 L. 13-18).  As a result, Billy III was removed from the custody of his mother, Gloria Rodriguez Jacobo, and placed under the control of the Department of Children’s Services (hereinafter “DCS”).  See RT 1612 L. 4-6.  Cf. Whitesell, Jeffrey M. (1996-1997) Ridicule or Recourse:  Parents Falsely Accused of Past Sexual Abuse Fight Back, 11 J. Law & Health 303, 331 (professional liability in cases of false child abuse accusation); Horowitz, Mirah A. (2000) Kids Who Kill:  A Critique of How the American Legal System Deals with Juveniles Who Commit Homicide, 63 Law & Contemporary Problems 133, 172 (abused children frequently become abusers and killers).

Not only did Little Billy Jacobo abuse his siblings, but he admonished them to keep quiet, threatening that harm would come to Ms. Vildosola if they reported being abused.  See RT 1611 L. 25-1612 L. 1.  Billy III warned his younger brothers that he would “kill his mom and hurt her” if they told on him.  RT 1611 L. 27-28.  Nevertheless, Michael Jacobo informed on Billy.  See, e.g., RT 1000 L. 16-17 (“Michael said he was anally penetrated.”).  In response, Little Billy consummated his threat, by lying to investigators and providing perjurious testimony, so that his stepmom, Ms. Vildosola, would be “hurt” by a long prison sentence.

During pre-trial interviews, Billy III repeatedly changed his story, shifting much of the blame for molestation to Jimmy Sanchez, the boyfriend of Ms. Gloria Jacobo, who is the ex-wife of William Jacobo, Jr. (see, e.g., RT 998 L. 16-22).  Jimmy Sanchez was arrested for child molestation, but the charges were dropped when it was determined that Billy III was responsible (cf. RT 998 L. 9-10 & 18-20).  Ms. Vildosola knew about Billy III’s abusive behavior, and forbade him from playing with Destiny (see RT 1098 L. 5-6 & 1613 L. 19-24).  Nevertheless, Billy III admits that on several occasions, he and other siblings “sneaked” to play with Destiny, either in groups or alone (RT 1098 L. 18-1099 L. 8).

Although other family members, including siblings, are often the abusers, the mother is frequently held responsible for child abuse, either because of her presumed failure to protect her child or because of her silence.  Dohrn, Bernardine (1995) Symposium:  Domestic Violence, Child Abuse, and the Law:  Bad Mothers, Good Mothers, and the State, 2 U. Chicago L. School Roundtable 1 (mothers are afraid to speak in their own defense for fear of losing custody of their children), citing Schechter, Susan (March 11-13, 1994) Family Violence Across the Life Cycle, American Medical Association National Conference on Family Violence.  Ms. Vildosola could not keep her eyes on Destiny at all times, however, so there were many opportunities for Little Billy and other individuals to harm Destiny.

In Florida, child abuse by all suspected perpetrators is reported, and alleged physical abuse by household members other than the parents is fully investigated.  Forehand, Walter E. (1991) Are New Procedures Correction Enough for Florida’s Child Abuse Registry Statute?, 18 Fla. St. U. L. Rev. 371, 386 (1990 legislation sought to avoid the injustice of incorrectly listing an innocent individual as an abuser).  In contrast, California authorities failed to give even the most cursory consideration to the possibility of abusive acts by people other than Destiny’s parents.

Only two of Destiny’s siblings testified at trial, and both were accompanied on the stand by a “therapist” (e.g., RT 985 L. 21-24 (“Ms. Smith” was Billy III’s therapist); RT 1027 L. 9-10 (“Ms. Tally” was Marina’s therapist)).  Child witness procedures, such as shielding, may increase the likelihood that innocent defendants are convicted of child abuse.  The consequences of such convictions are severe stigmatization, emotional distress, incarceration, and deprivation of livelihood.  Therefore, the constitutional rights of due process and confrontation should always be weighed against the purported child welfare benefits of noninvestigation, nonconfrontation, and limitations on courtroom examination.  Montoya, Jean (1992) On Truth and Shielding in Child Abuse Trials, 43 Hastings L. J. 1259, 1309.

Moreover, the testimony of Little Billy was evasive, inconsistent, contradictory, and unambiguously dishonest, and Marina apparently forgot (e.g., RT 1051 L. 24-28) much of the pre-trial testimony that she gave to psychologist Diana Elliott (cf. RT 1084 L. 22-23).  Yet the defense attorneys barely attempted to impeach the credibility of the children’s testimony.  We all know how easily children can be manipulated into giving false testimony, as in the McMartin and other child sexual abuse cases.  Cf. Buckey v. County of Los Angeles (9th Cir. 1992) 957 F. 2d 652, amended by Buckey v. County of Los Angeles (9th Cir. 1992) 968 F. 2d 791, cert. den. (City of Manhattan Beach v. Buckey (1992) 506 U.S. 999, 113 S. Ct. 599, 121 L. Ed. 2d 536); Spitler v. Children’s Institute International (CA 2nd Cal. 1992) 11 Cal. App. 4th 432, 440; 14 Cal. Rptr. 2d 197, 202.  Also well documented is the unreliability of “repressed memory recovery.”  Yamini, Rola J. (1996) Note:  Repressed and recovered memories of child sexual abuse:  The accused as “direct victim,” 47 Hastings L.J. 551, 580 (citing Elizabeth Loftus, the leading repressed memory researcher and outspoken critic of the recovered memory concept).  Billy III had a strong motive to prevaricate on the witness stand, because he repeatedly abused his siblings, including Destiny (see RT 1098 L. 14-1103 L. 12; RT 1626 L. 13-27 & 1628 L. 13-18), and might be responsible for Destiny’s death.  By lying to the court, Billy III not only shifted the blame to his parents, but was able to fulfill his threat to “hurt” his [step]mother.

False child abuse allegations are rampant in today’s society.  A San Diego County grand jury investigation, wherein over 250 social workers, therapists, judges, doctors, and families were interviewed, resulted in a 56-page 1992 report concluding that the child protection system (hereinafter CPS) is “out of control, with few checks and little balance.”  Compitello, Michael (1997) Parental Rights and Family Integrity:  Forgotten Victims in the Battle Against Child Abuse, 18 Pace L. Rev. 135, 148-149 (war on child abuse leaves countless innocent parents and families as casualties), quoting Wilkins, Okerblom (Feb. 7, 1992) Child Protection System Ripped, San Diego Union Tribune, A1, A19.  The grand jury found that the CPS has developed a mind-set that child abuse is ubiquitous, biased toward proving allegations instead of seeking truth.  CPS cannot distinguish real abuse from fabrication, neglect, poverty, or cultural differences.  Of 300 reviewed cases, 83% were seriously flawed, and 60% involved innocent families!  There is no reason to believe that our judicial system handles child abuse crimes with any more consistency or accuracy than CPS.  Compitello, supra, at 149.  Ms. Vildosola is another victim of fallacious child abuse prosecution.




Destiny’s bruising was caused by accidental falls and bumps, most likely from three sources:  (1) striking objects or tripping while walking and exploring (e.g., RT 1187 L. 7-12 (Destiny tripped on a Barbie doll the day before she died, bruising her knee), RT 1891 L. 17-18 (according to Bianca Placa, a babysitter, Destiny was “bruised all the time” from “falling” while “learning how to walk”), RT 1890 L. 14-23 (Destiny would fall without using her hands to brace herself), RT 1892 L. 2-3 (bruises were on Destiny’s legs “where she would fall”) & L. 10-12 (Ms. Placa observed Destiny falling and hitting her forehead)); (2) dropping to the floor when being tossed in the air by a sibling or other person (Clerk’s Transcript, Preliminary Hearing (hereinafter “CT”) (Exhibit P10), p. 158, Lines 8-13 (baby thrown into the air, then falling and hitting “head on the ground”) & 26-27 (a police officer took such a statement), RT 1629 L. 28-1630 L. 1 (Destiny “fell down” and hit her forehead on “the dresser”), RT 1630 L. 23-28 (“she had a little bump on her head”)); and (3) hitting her head against objects during tantrums or seizures.

When children become ambulatory and mobile, generally at nine months of age and beyond, they frequently suffer bruises and injuries from minor falls and bumping into surroundings.  Lyon, supra, at 98 (bruising found in over 50% of children aged eighteen months and older).  Even facial bruising is common among children eighteen months to three years of age.  Ibid., supra, at 99.  Bruising may also indicate a bleeding disorder, leukemia, idiopathic thrombocytopenia purpura, or hemophilia.  O’Hare & Eden, supra, 59 Arch. Dis. Child. at 863 (abnormal bleeding tests in 16% of children initially suspected of being abused).

In addition, young children often injure their heads during seizures, or while engaged in temper tantrums.  Destiny was frequently paroxysmal.  In a typical tantrum, Destiny would throw herself onto the floor.  RT 867 L. 8-25 (Esther Jacobo observed Destiny throwing herself to the floor “several times”).  Sometimes, she would drop without using her hands to cushion the fall.  RT 1890 L. 4-1892 L. 12.  Once on the floor, Destiny would repeatedly bang her head.  Cf. Affidavit of Ernie Rodriguez (hereinafter “AER”) (Exhibit P11) and RT 2364 L. 18 & 24.

Babysitter Bianca Placa testified that Destiny was bruised because she was learning to walk (RT 1891 L. 17-18), and she would fall without extending her hands (RT 1890 L. 21-22).  Ms. Placa directly observed that Destiny’s falls bruised her legs (RT 1892 L. 2-3), and that on at least one occasion Destiny hit her forehead when falling (RT 1982 L. 10-12).  Mr. Jacobo, Ernie Rodriguez, John Estrella, and Michael Jacobo also eyewitnessed some of Destiny’s tantrums and head-banging.  See, e.g., AER and RT 2364 L. 18 & 24.

As confirmation, Detective Delhauer testified that, according to Esther, Destiny “frequently threw herself down, [sic] when she had tantrums and hurt herself.”  RT 1197 L. 27-1198 L. 1.  Furthermore, Detective Echeverria testified that Destiny constantly fell and hurt herself.  See RT 1872 L. 25-27 and RT 1879 L. 2-1880 L. 23.  Echeverria also testified that Patricia recounted three incidents when Destiny fell:  (1) Destiny cut or split her chin on or about Thanksgiving Day of 1995 (RT 1879 L. 10-12); (2) she hit her forehead on or about December 5, 1995, and on many occasions nonspecific as to time (RT 1879 L. 12-14); and (3) she hit her head on a dresser on or about December 5, 1995, the day before she died.

Destiny had no skull fractures.  See RT 1785 L. 21-22 (“Dr. Ribe did not describe any fractures in his gross examination.”).  However, let us assume hypothetically that she had the two very small fractures (RT 1786 L. 28-1787 L. 15 (“less than [¼] inch”; “depression in the skull [1/8] inch deep … a defect … consistent with a fracture.”) alleged by Ribe (see RT 1289 L. 17-24 (“all you can see is these rather vague whitish areas”)).  See RT 1352 L. 4-1355 L. 19.  According to Ribe, the two “fatal fractures” and their corresponding bruises were immediately above each eyebrow, on the lower forehead.  RT 1353 L. 18-21.

Contrarily, Ribe admits that the force causing these tiny forehead lesions was too slight to have been lethal.  See RT 2204 L. 14-2209 L. 13 (“[Y]ou told the police officers … you saw no fractures” (RT 2206 L. 1-3); “[T]he faint nature of the fracture bears a direct relation to the amount of force” (RT 2206 L. 20-22); “I conclude from a small amount of force, insufficient force to kill a child.” (RT 2206 L. 25-27)).  Such small bilateral brow injuries occur when a baby falls on her face while trying to walk, and could not have been caused by parental abuse!  RT 2206 L. 28-2207 L. 6 (“the kind of injury that a child … could get from falling down and striking her head on the floor or against a dresser”).  If these tiny injuries did not occur accidentally while Destiny was learning to walk, they must have been inflicted during one of her head-banging tantrums.  Cf. Wardinsky, Terrance D. (1995) Genetic and Congenital Defect Conditions that Mimic Child Abuse, 41(4) J. Family Practice 377 (6 case histories of infants with bone fractures and other indications of child abuse who actually suffered from congenital ailments).

Skull fractures from short falls, especially onto hard floor surfaces, are common in children.  Leventhal, John M., et al. (1993) Fractures in Young Children:  Distinguishing Child Abuse from Unintentional Injuries, 147 American J. Diseases in Children 87, 90-92 (bilateral and multiple skull fractures not more common among abused than nonabused children).  Skull fractures from falls of less than four feet are predominantly linear and simple.  Duhaime, Ann-Christine, et al. (1992) Head Injury in Very Young Children:  Mechanisms, Injury Types, and Ophthalmologic Findings in 100 Hospitalized Patients Younger Than 2 Years of Age, 90 Pediatrics 179, 181 (skull fractures from short falls are linear, narrow, and uncomplicated).

In contrast, complicated skull fractures occur in about one-fourth of short falls, and especially among infants under six months of age.  Complicated fractures are also common when children fall from a parent’s arms, or when a baby is thrown in the air.  Leventhal, supra, at 90.  Depressed and diastatic fractures are twice as common in abused as nonabused children, a difference insufficiently substantial for the determination of abuse.  See Hobbs, C.J. (1989) Skull Fracture and the Diagnosis of Abuse, 59 Archives of Disease in Childhood 246, 246-250; Meservy, Clifford J., et al (1987) Radiographic Characteristics of Skull Fractures Resulting from Child Abuse, 149 AJR 173, 175 and Leventhal, supra, at 90-91.  Multiple fractures are particularly common among children who suffer from osteogenesis imperfecta, infantile cortical hyperostosis, scurvy, rickets, hypophosphatasia, copper abnormalities, hypocalcemia, osteoid osteoma, neoplasms, osteomyelitis, and syphilis.  Carty, H. (1988) Brittle or Battered, 63 Archives of Disease in Childhood 350, 350-353 (multiple fractures of different ages, especially of ribs, virtually diagnostic of abuse).

If Destiny had any skull fractures, which Ms. Vildosola emphatically denies, they were most likely caused by:  (1) Dr. Ribe’s autopsy procedures, such as his dissection and scraping around the skull (see RT 1289 L. 2-4 (“the specimen skull, I have used a knife blade to actually scrape off that periosteal membrane”) and RT 1291 L. 9-10 (“I lifted up the top of Destiny’s skull at autopsy”)); (2) her frequent rages or temper tantrums, when Destiny repeatedly swung her head and rammed her forehead on the floor (witnessed by, inter alia, Ernie Rodriguez (see AER), John Estrella, Michael Jacobo, and William Jacobo, Jr., none of whom had an opportunity to testify); (3) accidental injuries, such as the time when she tripped over a Barbie doll (RT 1051 L. 24-27); and (4) hitting the ground after being tossed in the air by her brother Billy III (referred to indirectly at CT 158 L. 8-13 (baby thrown into the air, then falling and hitting “head on the ground”) & 26-27 (a police officer took such a statement), and witnessed by, inter alia, Ernie Rodriguez and John Estrella).

Because:  (1) Dr. Ribe’s findings are dubious as to fracturing, and (2) all or most of Destiny’s bruising and other injuries were caused by (a) temper tantrums, (b) her falls while learning to walk, and (3) being tossed in the air by Billy III, there is a reasonable probability that all of Destiny’s contusions were accidental.




The discovery of new, exculpatory evidence is a basis for reconsidering a criminal prosecution on appeal, or for granting habeas corpus relief.  Pennsylvania v. Ritchie (1987) 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (exculpatory evidence warrants a new trial); Carriger v. Stewart (9th Cir. 1997) 132 F. 3d 463, 476 (habeas corpus relief granted based on newly proffered evidence), cert. den. (Stewart v. Carriger (1998) 523 U.S. 1133, 118 S. Ct. 1827, 140 L. Ed. 2d 963); In re Branch (Cal. 1969) 70 Cal. 2d 200, 214, 449 P. 2d 174, 183, 74 Cal. Rptr. 238 (en banc) (habeas corpus relief may be granted on the basis of new or exculpatory evidence), citing In re Imbler (Cal. 1963) 60 Cal. 2d 554, 569, 387 P. 2d 6, 26, 35 Cal. Rptr. 293 (en banc) (“new” evidence includes any evidence which was not presented in trial court), reh’g. den., cert. den. (Imbler v. California (1964) 379 U.S. 908, 85 S. Ct. 196, 13 L. Ed. 2d 181).  See also Cal. Pen. C. § 939.7 (Consideration of exculpatory evidence); Cal. Pen. C. § 1473 (Writ of Habeas Corpus); Cal. C. Civ. Proc. § 43 (Powers of Appellate Court).  This petition presents new exculpatory scientific evidence, as well as new eyewitness accounts.  Schlup v. Delo (1995) 513 U.S. 298, 324, 115 S. Ct. 851, 865, 130 L. Ed. 2d 808 (petitioner must support allegations of constitutional error with new reliable evidence, which may be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence).

Prosecutor Lewis’ theory that Destiny’s injuries were the result of being grabbed by her legs (RT 1309 L. 14-15 (“grabbing the baby by the legs”); RT 1309 L. 21-22 (“violent grasping”)) and swung against a wall (RT 1309 L. 8-1310 L. 3) is ludicrous for several reasons:  (1) Destiny was twenty-one months old when she died, while SBS deaths are uncommon beyond six months of age.  (2) It would be impossible to produce the force necessary to cause the injuries characteristic of SBS (i.e., the equivalent of falling from a second story window (RT 2109 L. 4-7)) if, instead of being shaken from her chest or shoulders, Destiny were shaken from her legs.  (3) Destiny’s head traumas, attributable to a bleeding disorder and minor accidental injuries, were inconsistent with being swung against a wall (RT 1309 L. 16 (“throwing the baby’s head against the wall”)).  (4) The walls of the rooms where Destiny resided prior to her death were lined from floor to ceiling with shelves and furniture, minimizing the likelihood that a head impact would be injurious.  (5) Destiny’s bruises were consistent with her coagulopathy and the vigorous rescue efforts of health care providers, as well as accidental falls while learning to walk, and not SBS, because there were no finger or twist marks on her legs, or anywhere else on her body.  See RT 1309 L. 22-23.


The cause of death of the alleged victim, Destiny, was not shaken baby syndrome, blunt force trauma, or any other form of child abuse.  SBS was an erroneous diagnosis.  The preceding sections (i.e., §§ I-VII) and the remainder of this section (i.e., § VIII) will present new, exculpatory scientific and eyewitness evidence.




In earlier times, sexual abuse was the focus of most child abuse prosecutions.  Rainey, Ryan (1994) Medical Examiners in Child Homicide Cases:  Prosecutor’s Perspective, 28 Prosecutor 7.  Cf., e.g., Commonwealth ex rel. Sleighter v. Banmiller (Penn. 1958) 392 Pa. 133, 135, 139 A. 2d 918, 921 (evidence of child sexual abuse admitted in murder trial); State v. Aikens (Mo. 1944) 352 Mo. 746, 751, 179 S.W. 2d 84, 87 (microscopic examination of dead infant revealed no evidence of sexual abuse); Wallace v. Der-Ohanian (CA 5th Cal. 1962) 199 Cal. App. 2d 141, 146, 18 Cal. Rptr. 892, 896 (“danger of sexual molestation to young girls is an ever present threat”), Sup.Ct. h’g den.  Sexual abuse allegations, although highly inflammatory and never substantiated, were a component of Ms. Vildosola’s prosecution.  For example, pathologist James K. Ribe, M.D., unsuccessfully tried to introduce evidence that during a “sexual assault,” a “foreign object” was inserted through Destiny’s anus into her rectum, allegedly causing a postrectal hematoma.  RT 1263 L. 8-1265 L. 9.

In 1962, child physical abuse attained the status of an independent medical diagnosis, “The Battered Child Syndrome” (hereinafter “BCS”).  Kempe, C. Henry, et al. (1962) The Battered Child Syndrome, 181 JAMA 17.  This diagnosis was expanded to include child neglect in 1963.  Fontana, Vincent J., et al. (1963) The “Maltreatment Syndrome” in Children, 269 New Eng. J. Med. 1389.  By 1967, all fifty states had enacted laws requiring certain professionals to report suspected child abuse.  See Vieth, Victor I. (1998) Essay:  In My Neighbor’s House:  A Proposal to Address Child Abuse in Rural America, 22 Hamline L. Rev. 143, 146.

By the 1970s, a burgeoning number of pediatric fatalities were ascribed to “Sudden Infant Death Syndrome” (hereinafter “SIDS”), also known as “crib death” or “cot death.”  Reece, Robert M. (1993) Fatal Child Abuse and Sudden Infant Death Syndrome:  A Critical Diagnostic Decision, 91 Pediatrics 423, 424 (SIDS kills one to two infants for every one thousand live births).  SIDS was defined in 1969 at the Second International Conference on Causes of Sudden Death in Infants as “sudden death of any infant or young child, which is unexpected in history, or in which a thorough post-mortem examination fails to demonstrate an adequate cause of death.”  Reece, Laura E. (1991) Comment:  Mothers Who Kill:  Postpartum Disorders and Criminal Infanticide, 38 UCLA L. Rev. 699, 757 n. 12, quoting Bluglass (1988) Infant Deaths:  Categories, Causes, and Consequences, in Motherhood and Mental Illness 2:  Causes and Consequences 212, 214.  SIDS researchers focused their attention on prolonged apnea as the etiological pathway, and at-risk children were placed on apnea monitors.  See generally Steinschneider, Alfred (1972) Prolonged Apnea and the Sudden Infant Death Syndrome:  Clinical and Laboratory Observations, 50 Pediatrics 646.  Soon the fashion was to diagnose SIDS quickly, without investigating the circumstances or the death scene.  Hickey, Charles B., et al. (May 6, 1996) SIDS Researcher Sidestepped Critics, Syracuse Post-Standard, A1.

Destiny was placed on an apnea monitor during her stay at the home of foster parents Daniel and Joanne Garza, during which time she had sleeping and breathing problems, as well as chronic ear infections (RT 1224 L. 18-1226 L. 3).  Apnea monitoring was recommended by Destiny’s pediatrician, Thomas Lin, M.D., because it was believed that her half-sibling, Carissa Neria, died of sudden infant death syndrome (RT 1852 L. 27-1853 L. 3; RT 2220 L. 4-7). Prosecutor Lewis falsely concluded that because Destiny was no longer on an apnea monitor for a few months prior to her death, she had no respiratory problems.  In fact, Destiny was removed from the apnea machine because the Garzas were no longer willing to pay for the monitoring (RT 1859 L. 10-13 (Ms. Garza talked with Tricia Higa, the social worker at DCS assigned to Destiny, about discontinuing apnea monitoring for financial reasons); RT 2220 L. 12-13).  Apnea monitoring might have saved Destiny’s life, especially if SIDS was a cause of her death.

By the 1970s, babies whose deaths previously would be labeled as SIDS, like Carissa and Destiny, were increasingly suspected of being child abuse victims.  Then, along came the SBS concept, first proposed in the early 1970s, when it was analogized to whiplash injuries.  Guthkelch, A. Norman (1972) Infantile Subdural Hematoma and Its Relationship to Whiplash Injury, 2 British Medical Journal 430 and Caffey, John (1972) On the Theory and Practice of Shaking Infants:  Its Potential Residual Effects of Permanent Brain Damage and Mental Retardation, 124 American Journal of Diseases in Children 161.  See also Caffey, John (1974) The Whiplash Shaken Infant Syndrome:  Manual Shaking by the Extremities with Whiplash-Induced Intracranial And Intraocular Bleedings, Linked with Residual Permanent Brain Damage and Mental Retardation, 54 Pediatrics 396 and Duhaime, Ann-Christine; Gennarelli, T.A.; Thibault, L.E.; Bruce, D.A.; Margulies, S.S. & Wiser, R. (1987) The Shaken Baby Syndrome:  A Clinical, Pathological, and Biochemical Study, 66(3) Journal of Neurosurgery 409.

By the 1980s, deaths previously attributable to SIDS were increasingly suspected of being abuse-related, so many received the new SBS label.  See Hadley, Mark N., et al. (1989) The Infant Whiplash-Shake Injury Syndrome:  A Clinical and Pathological Study, 24 Neurosurgery 536; Goldenberg, Catherine L. (1999) Sudden Infant Death Syndrome as a Mask for Murder:  Investigating and Prosecuting Infanticide, 28 Southwestern Univ. L. Rev. 599, 606 (SIDS rate dropped by one-third in the 1990s); and Couser, Sally (1993) Shaken Baby Syndrome, 1993 J. Pediatric Health Care 238 (noting exponential growth in reported SBS casualties).  Like SIDS, Battered Child Syndrome, the first recognized diagnostic appellation for child abuse, became increasingly disfavored, as SBS rose in popularity.  Not surprisingly, many BCS and SIDS deaths were misclassified as SBS, and vice versa.  Starr, Raymond H., et al. (1980) The Epidemiology of Child Maltreatment, in Children at Risk:  An Evaluation of Factors Contributing to Child Abuse and Neglect (Robert T. Ammerman & Michael Hersen, eds., 1990) 23, 32 (accidental deaths often misidentified).  Cf. Emery, John L., et al. (1988) Three Crib Deaths, A Babyminder and Probable Infanticide, 28 Med. Sci. L. 205, 209-210 (difficulty differentiating SIDS from asphyxiation or suffocation).

SBS is now ascribed to more than two hundred fatalities and over two thousand serious injuries annually among American children, and approximately 10-12% of all child deaths attributed to abuse or neglect.  Tabner-Thayer, Jody (1997) The Latest Evidence for Shaken Baby Syndrome:  What Defense Lawyers and Prosecutors Need to Know, 12 Criminal Justice 15.  The typical SBS victim is a male under six months of age.  Lancon, J.A.; Haines, D.E. & Parent, A.D. (1998) Anatomy of the Shaken Baby Syndrome, 253(1) Anatomical Record 13-18.  See also Ludwig, Stephen & Warman, Matt (1984) Shaken Baby Syndrome:  A Review of 20 Cases, 13(2) Annals of Emergency Medicine 104, 105 and American Academy of Pediatrics (1993) Shaken Baby Syndrome:  Inflicted Cerebral Trauma, 92 Pediatrics 872, 872.  Destiny, at over twenty-one months of age, was a different gender from and much older than the typical SBS victim.




Shaken baby syndrome may be defined as “violent shaking, resulting in subdural hematoma.”  State v. McClary (CT 1988) 207 Conn. 233, 246, 541 A. 2d 96; People v. Kailey (Col. 1983) 662 P. 2d 168, 170 (bilateral subdural hematomas); State v. Ostlund (CA MN 1987) 416 N.W. 2d 755, 760-61 (subdural hemorrhaging); State v. Jasper (KS 2000) 269 Kan. 649, 651, 8 P. 3d 708, 710 (“shaken impact syndrome” evidenced by subdural hematoma and two skull fractures).  Cf. People v. Sargent (Cal. 1999) 19 Cal. 4th 1206, 1211, 970 P. 2d 409, 411-412, 81 Cal. Rptr. 2d 835 (although infant had bilateral subdural hematomas caused by violent shaking, felony child abuse conviction rev’d and remanded to determine whether defendant had requisite mens rea).  But see Duhaime, supra, 66 J. Neurosurgery at 409-415 (shaking alone, without blunt head impact, will not cause SBS) and Plunkett, J. (1999) Shaken Baby Syndrome and the Death of Matthew Eappen:  A Forensic Response, 20(1) Am. J. Forensic Med. Pathol. 17-21 (disputing specificity of subdural hematoma, retinal hemorrhage, and cerebral edema in diagnosing SBS).

There is no evidence that Destiny was ever shaken, and her autopsy report indicates that she had negligible subdural bleeding (AR 1 § 1; Neuropathology Forensic Consultant’s Report of Hideo Henry Itabashi, M.D., January 25, 1996 (hereinafter “NR”) (Exhibit P12), p. 1 (“epidural and subdural surfaces are clean”) & 2 (“dural surfaces are free of hemorrhage, and subdural surfaces show a minimal stain associated with … acute subarachnoid hemorrhage”); CFR (only “diffuse subarachnoid hemorrhages” and “bruises” noted)), ruling out SBS.  Furthermore, no evidence was presented concerning whether Destiny was injured by blunt force trauma, aside from:  (1) alleged skull fractures, which were probably just “small pieces of residual scalp tissue” (see Radiology Consult of Donald Clarence Boger, January 5, 1996 (hereinafter “RR”) (Exhibit P13)), and which in any event were so minute as to be undetectable (CT 174 L. 21-27), except ostensibly by a radiologist (see RR and RT 1253 L. 17-1255 L. 14); and (2) an alleged “contre-coup” injury—the key brain evidence—which was lost by the pathologist, Dr. James Ribe, and never submitted into evidence (RT 1407 L. 21-1410 L. 28).

C.  Ocular symptomS inconsistent with SBS


SBS is sometimes described as abusive shaking resulting in ocular bleeding or blindness.  People v. Earp (Cal. 1999) 20 Cal. 4th 826, 847, 978 P. 2d 15, 29, 85 Cal. Rptr. 2d 857 (“bleeding eyeballs, a condition associated with [SBS]”), reh’g den. (1999 Cal. Lexis 6109), cert. den. (Earp v. California (2000) 529 U.S. 1005, 120 S. Ct. 1272, 146 L. Ed. 2d 221).  Dabbs v. State (CA AL 1987) 518 So. 2d 825, 826 (suspected child abuse with bleeding “in the back of [victim’s] eyes”); State v. Burr (NC 1995) 341 N.C. 263, 278, 461 S.E. 2d 602, 609 (whiplash injury with “bleeding behind both eyes”); State v. Fleck (CA 2nd WI 1996) 200 Wis. 2d 492, 546 N.W. 2d 886 (“profound retinal hemorrhages in both eyes”); State v. Gulertekin, supra (“acceleration-de-acceleration” injury causing retinal hemorrhages); State v. Hurst (CA 5th OH 2000) 2000 Ohio App. Lexis 127 (retinal hemorrhaging and subdural hematoma); Carrillo v. United States (9th Cir. 1993) 5 F. 3d 1302, 1303 (retinal hemorrhages and partially healed broken ribs indicating SBS).  Destiny had some bilateral retinal bleeding and some blood in the anterior chamber and vitreous cavity of the right eye (see OR 1), but it was caused by her well-documented coagulopathy (RT 1782 L. 10-1783 L. 15), and the repeated administration of CPR (RT 1805 L. 24; RT 1634 L. 21-1635 L. 5; RT 1637 L. 20-23; RT 1639 L. 16-19; RT 1605 L. 26-27; RT 1839 L. 18-22; RT 1805 L. 28-1806 L. 1).

Retinal hemorrhaging, particularly when bilateral and intraocular, is a hallmark symptom of SBS.  Spaide, Richard F. (1987) Shaken Baby Syndrome:  Ocular and Computed Tomographic Findings, 7(2) J. Clin. Neuro-Ophthalmology 108-111 (retinal examination absolutely essential for SBS diagnosis); Poepel, B.; Kivlin, J.D.; Simons, K.B.; Lazoritz, S. & Ruttum, M.S. (2000) Shaken Baby Syndrome, 107(7) Ophthalmology 1246-1254 (retinal hemorrhages (85% bilateral) found in 83% of SBS cases); Zimmerman, Robert A., et al. (1979) Computed Tomography of Craniocerebral Injury in the Abused Child, 130 Radiology 687, 689 (80% of abused children with interhemispheric subdural hematomas have retinal hemorrhages); Seiberth, V.; Knorz, M.C. & Kachel, W. (1994) Ocular Findings in the Shaken Baby Syndrome, 91(3) Ophthalmologie 380-382 (intraocular hemorrhages may precede both clinical and radiologic recognition of subdural haematoma); Budenz, Donald L., et al. (1989) Ocular and Optic Nerve Hemorrhages Abused Infants with Intracranial Injuries, 101 Ophthalmology 559; Kivlin, J.D. (1999) A 12-Year Ophthalmologic Experience with the Shaken Baby Syndrome at a Regional Children’s Hospital, 977 Trans. Amer. Ophthalm. Soc. 545-581 (no fundus finding is pathognomic of SBS).  Cf. Wilkinson, W. Scott, et al. (1989) Retinal Hemorrhage Predicts Neurologic Injury in the Shaken Baby Syndrome, 107 Archives of Ophthalmology 1472, 1473 and Kapoor, S.; Schiffman, J.; Tang, R.; Kiang, E.; Li, H. & Woodward, J. (1997) The Significance of White-Centered Retinal Hemorrhages in the Shaken Baby Syndrome, 13(3) Pediatric Emergency Care 183-185 (white-centered retinal hemorrhaging common in SBS).

However, retinal hemorrhaging is not always caused by SBS, and may result from major accidental trauma, Terson Syndrome, birth trauma, blood disorders, adverse vaccination reactions, hypertension, hydrocephalus, aneurysms, arteriovenous malformations, meningitis, pertussis, other infections, papilledema, apnea, hypoxia, ischemia, anemia (Krivoy, A.; Valdivia, R.D. & Silva, V. (1978) The Battered Child, 36(2) Neurosurgery (Santiago) 189-201 (in 11 cases of alleged battered child syndrome, 4 had anemia)), leukemia (Cupoli, Michael (1988) Is It Child Abuse?  Telltale Physical Findings, 22(7) Patient Care 28 (parents of children with undiagnosed leukemia have been falsely accused of child abuse)), Vitamin K deficiency (Wetzel, supra, 95 Pediatrics at 771-773 (retinal hemorrhaging is caused by coagulopathies)), and CPR-induced Purtscher retinopathy.  See Lyon, supra, at 151 (“nonabusive causes of intracranial bleeding must be considered when retinal hemorrhages are presented with . . . extensive subarachnoid hemorrhages”) & 154-155; Smith, Wilbur L.; Alexander, Randell C.; Judisch, Frank; Sato, Yutaka & Kao, Simon C.S. (1992) Magnetic Resonance Imaging Evaluation of Neonates with Retinal Hemorrhages, 89 Pediatrics 332-333 (differential diagnosis of retinal hemorrhages includes abusive head trauma, bleeding disorders, vasculopathies, increased intracranial pressure, and CPR); Duhaime, supra, 90 Pediatrics at 183 (retinal hemorrhages can be caused by spontaneous subarachnoid hemorrhage); Child Abuse or Misdiagnosis? (1997), 3(4) Healthwatch 25-26 (DPT vaccine and other inoculations can cause retinal hemorrhaging and other false signs of SBS); and Hardman, John M. (1991) Cerebrospinal Trauma, in Textbook of Neuropathology (Richard L. Davis & David M. Robertson, eds., 2d ed.) 969, 991 (retinal hemorrhages occur in response to increased intracranial pressure not related to traumatic injury).  Destiny’s ocular hemorrhages were not completely bilateral, since only in the right eye was bleeding reportedly found in the anterior chamber and vitreous cavity (OR 1 (“Gross Description”)).  Such bleeding is consistent with causes other than SBS, including bleeding disorders and CPR induction.

Other ocular dysfunctions associated with abuse include optic nerve sheath hemorrhages, retinoschisis, retinal folding, retinal detachment, leukocoria, cataract, subluxated lens, retinal dialysis, Coats’ disease, chorioretinal scarring, macular scarring, and periorbital ecchymosis.  Lyon, supra, at 148-149, citing Ommaya, Ayub, K., et al. (1968) Whiplash Injury and Brain Damage:  An Experimental Study, 204 JAMA 285; and Harley, R.D. (1980) Ocular Manifestations of Child Abuse, 17(1) J. Pediatric Ophthalmology & Strabismus 5-13 (emphasizing the importance of ophthalmologists in early identification of child abuse).  Because of these complications, determination of whether intraocular bleeding is caused by child abuse should be made by a pediatric ophthalmologist familiar with hemorrhages, using the proper equipment, and after mydriatic dilation of the child’s pupils.  Hatina, Joseph D. (1998) Note:  Shaken Baby Syndrome:  Who Are the True Experts?  46 Clev. St. L. Rev. 557, 566.  Destiny was never examined, pre- or post-mortem, by a pediatric ophthalmologist or hematologist.


d.  Absence of subdural hematomas—RULING OUT SBS


Nary a trace of the other hallmark symptom of SBS, subdural hematoma, was found in Destiny (see NR 2 (“subdural surfaces show a minimal stain associated with … acute subarachnoid hemorrhage”) and Neuropathology Forensic Pathologist’s Report of Hideo H. Itabashi, Microscopic Description and Final Neuropathologic Diagnosis, February 13, 1996 (hereinafter “NMR”) (Exhibit P14)).  See also Guthkelch, supra, at 430; Backstrom, J.; Falk, M. & Li, V. (1998) Serial Radiography in the Infant Shaken Impact Syndrome, 29(2) Pediatric Neurosurgery 77-85 (acute subdural hemorrhage is the most common intracranial abnormality in ISIS (infant shaken impact syndrome), present in 81% of babies examined with CT and MRI).  See generally Dias, M.S.; Roach, E. Steve; Garcia, J.C. & McLean, William T. (1984) Cerebrovascular Disease in Children, 30(5) Am. Fam. Physician 215-227 (cerebrovascular diseases are much more common in children than previously believed).[1]  Subdural hemorrhaging correlates strongly with the extent of brain damage, and is almost always present in SBS fatalities.  Because Destiny had no subdural hemorrhaging (NR 3-4 (“Gross Impressions”)), she could not possibly have died from SBS-related abuse.

Subdural hematomas are not unique to SBS, and can also be caused, inter alia, by accidental trauma, coagulopathy, meningitis, thrombocytopenia, cerebral hyperemia, benign subdural effusion (Dykes, Lucinda J. (1984) The Whiplash Shaken Infant Syndrome:  What Has Been Learned?, 10 Child Abuse & Neglect 211, 216 (SBS characterized by absence of external signs of head trauma)), hygroma (Bruce, Derek A. (Feb. 1990) Head Injuries in the Pediatric Population, 66 Current Problems in Pediatrics 85), aneurysms, arteriovenous malformations, angiopathy (Date, H.; Hosoi, Y.; Watanabe, Y., et al. (1979) Spontaneous Intracerebral Hematoma.  An Analysis of 36 Cases in Pre-CT Era and CT Era, 7(11) Neurol. Surg. 1053-1060), encephalitis, neurodegenerative disease, perinatal trauma, and hereditary predisposition to hemorrhagic diseases.  Hatina, supra, at 562, quoting Spaide, Richard F.; Swengel, R.M.; Scharre, D.W. & Mein, C.E. (1990) Shaken Baby Syndrome, 41(4) American Family Physician 1145, 1147; Lyon, supra, at 135, 137, 157 & 162.  See also, e.g., Kleinman, Paul K. (1998) Shaken Babies, 352(9130) Lancet 815, citing Shaken Babies (Editorial) (1998), 352(9124) Lancet 335 (children with subdural hematomas due to other causes have been diagnosed with SBS, and parents or caretakers charged criminally); McLellan, N.J., et al. (1986) Spontaneous Subhyaloid and Retinal Haemorrhages in an Infant, 61 Archives of Disease in Childhood 1130, 1132 (arteriovenous malformations within the meninges may bleed directly into the subdural space, or a subdural haematoma can develop if an aneurysm or arteriovenous malformation ruptures through the arachnoid mater); and Dietrich, Ann, et al. (1994) Head Trauma in Children with Congenital Coagulation Disorders, 29 Journal of Pediatric Surgery 28.  Because Destiny had negligible subdural hemorrhaging and no rib bruises, nonaccidental head trauma should have been eliminated as a possible cause of her death.  SBS can also be ruled out for Carissa, because she had scalp hemorrhaging, but none of the signs of SBS such as retinal hemorrhaging, subdural hematoma, or rib bruising (see CT 340, Autopsy Protocol for Carissa A. Neria by Nenita R. Duazo, M.D., January 22, 1991 (hereinafter “CA1”) (Exhibit P15), p. 4 (Diagnosis, § IV) and RT 2247 L. 25-27).


E.  Subarachnoid hemorrhaging:  not CAUSED BY SBS


In addition to subdural hematomas, subarachnoid hemorrhaging is sometimes associated with SBS.  However, subarachnoid hemorrhaging is often caused nontraumatically.  See, e.g., Hacke, W.; Zeumer, H.; Adelt, D. & Hundgen, R. (1984) Spontaneous Subarachnoid Hemorrhage, 10(3) Notfall Med. 347-358 (subarachnoid hemorrhage often misdiagnosed as cephalgia); Koyama, T.; Gibo, H. & Hirabayashi, F. (1998) Surgical Treatment for Subarachnoid Hemorrhage of Unknown Etiology, 21(2-3) Neurosurg. Rev. 81-86 (intra-arterial digital subtraction angiography and exploratory aneurysm surgery advised for diagnosis of etiology of subarachnoid hemorrhage).  Aside from CT, MRI, and post-mortem spinal tap, Destiny was not tested for any of the other possible causes of her subarachnoid hemorrhage.

Among the many nontraumatic or accidental causes of subarachnoid hemorrhages are (1) meningitis (Apolo, Julio O. (1987) Bloody Cerebrospinal Fluid:  Traumatic Tap or Child Abuse?, 3 Pediatric Emergency Care 93, 94; Pfiffner v. Correa (LA 1994) 643 So. 2d 1228, 1231 (meningitis and subarachnoid hemorrhage differentially diagnosed with lumbar puncture and CT scan); Westphal v. Guarino (Sup. Ct. NJ 1978) 163 N.J. Super. 139, 142, 394 A. 2d 377 (misdiagnosis of subarachnoid hemorrhage caused by meningitis); (2) aneurysms (Jain, Kewal K. (1983) Pitfalls in Diagnosing Intracranial Aneurysms, 27(1) Am. Fam. Physician 139-144 (enumerating incorrect diagnoses of patients with intracranial aneurysms); Craig, J.J.; Patterson, V.H.; Cooke, R.S.; Rocke, L.G. & McKinstry, C.S. (1997) Diagnosis of Subarachnoid Hemorrhage, 350(9072) Lancet 216-217 (subarachnoid hemorrhage is frequently misdiagnosed or diagnosed too late); Brust, J.C.M.; Yasargil, M.G. (1975) Subarachnoid Hemorrhage.  Diagnosis and Therapy, 64(15) Praxis 439-444 (hydrocephalus malresorptivus is a frequent complication of subarachnoid hemorrhage due to obstruction of cerebrospinal fluid (hereinafter “CSF”) circulation); Dickinson, P.C.T.; Hughes, J.E.O. & Holtzman, R.N.N. (1990) The Diagnosis and Treatment of Cerebral Mycotic Aneurysms, 27(3) Annals of Neurology 238-246 (cerebral mycotic aneurysms); Hyatt v. Raggio (CA 3rd LA 2000) 757 So. 2d 773, 779 (malpractice action for failing to diagnose aneurysm); Continental Casualty v. Gardner (Nev. 1962) 78 Nev. 218, 221, 370 P. 2d 957, 959 (death possibly caused by spontaneous subarachnoid hemorrhage or saccular aneurysm); Loftus, C.M. (1992) Current Diagnosis and Management of Subarachnoid Hemorrhage of All Causes, 2(1) Neurosurgery Quarterly 44-58 (hydrocephalus almost always stems from spontaneous aneurysmal subarachnoid hemorrhage)); (3) arteriovenous malformations (McLellan, supra, at 1132 (any intracranial haemorrhage may leak into the subarachnoid space)); (4) cerebral vasoconstriction or arteriosclerosis (Bode, H. & Harders, A. (1989) Transient Stenoses and Occlusions of Main Cerebral Arteries in Children - Diagnosis and Control of Therapy by Transcranial Doppler Sonography, 148(5) European J. Pediatrics 406-411; Kirby v. Macombs-Inwood Realty (CA 3rd NY 1958) 5 A.D. 2d 1040, 1041, 173 N.Y.S. 2d 403, 404 (postmortem subarachnoid extravasation of blood)); (5) cerebral intraventricular hemorrhage (Mitchell, W. & O’Tuama, L. (1980) Cerebral Intraventricular Hemorrhages in Infants:  A Widening Age Spectrum, 65(1) Pediatrics 35-39 (intraventricular hemorrhage occurs primarily in infants with hypoxemia, acidosis, ischemia, and/or hypernatremia)); (6) hemorrhagic disease caused by nutritional or metabolic anomalies, such as Vitamin K deficiency (Lane, Peter A. & Hathaway, William E. (1985) Vitamin K in Infancy, 106 Journal of Pediatrics 351; Hurwitz, A. & Castells, S. (1987) Misdiagnosed Child Abuse and Metabolic Diseases, 13(1) Pediatric Nurs. 33-36 (phenylketonuria, hematological maladies, etc.)); (7) hypertension (Day, Arthur L. & Salcman, Michael (1989) Subarachnoid Hemorrhage, 40(1) American Family Physician 95); (8) occult neoplasms, including venous angiomas, cavernous angiomas, and intracranial tumors (Fine, R.; Williams, B. & Dowling, J. (1977) Acoustic Neuroma Causing Subarachnoid Haemorrhage, 1(5) Medical J. Australia 137-139 (implicates gliomas, meningiomas, metastases from bronchial carcinoma, malignant melanoma, pituitary adenoma, choroid plexus papilloma, and acoustic tumors)); (9) bleeding into cerebrospinal fluid, often during a spinal tap or autopsy incision (Apolo, supra, at 93), and (10) blood dyscrasia.  See Hatina, supra, at 562 and Lyon, supra, at 143-144 (rule out nonaccidental injury when subarachnoid bleeding predominates).

An example of an infant with subarachnoid hemorrhaging whose parents were nearly prosecuted for SBS can be found in Weissgold, David J.; Budenz, D.L.; Hood, I. & Rorke, L.B. (1995) Ruptured Vascular Malformation Masquerading as Battered/Shaken Baby Syndrome:  A Nearly Tragic Mistake, 39(6) Survey of Ophthalmology 509-512 (complete postmortem examination is crucial in suspected child abuse cases).  In that case, an infant died with significant lesions on the brain, abundant subarachnoid hemorrhaging, and blood at the junction of the optic nerve and the globe of the eye.  The prosecutor was willing to conclude that the diagnosis was SBS, but a thorough autopsy wherein sections of the subarachnoid hemorrhage were meticulously examined microscopically revealed the cause of death to be a developmental defect of the cerebral vasculature.  Id. at 511.

Destiny’s examiners, none of whom was a child abuse expert, hastily concluded that she died of SBS, basing their judgment largely on the apparent presence of subarachnoid hemorrhaging.  However, some or all of Destiny’s subarachnoid hemorrhage may have been nothing more than the CSF extravasation caused by a spinal tap, or postmortem bleeding into the subarachnoid space triggered by autopsy incisions.  In fact, Dr. Ribe severed Destiny’s spinal cord during the autopsy.

Destiny had some subarachnoid hemorrhage, but no subdural hematomas (see, e.g., CFR).  Yet of all the many cases of alleged SBS in the literature, none involve subarachnoid hemorrhaging in the absence of prominent subdural bleeding, and the preponderance have only subdural hemorrhaging.  See, e.g., Sargent, supra, at 412 (bilateral subdural hematomas and bilateral flame-shaped retinal hemorrhages; no subarachnoid bleeding); People v. Albritton (CA 4th Cal. 1998) 67 Cal. App. 4th 647, 652, 79 Cal. Rptr. 2d 169, 172 (new and old subdural hematomas and retinal hemorrhages; no subarachnoid anomalies), rev. den. (1999 Cal. Lexis 898); People v. Mills (CA 1st Cal. 1991) 1 Cal. App. 4th 898, 915, 2 Cal. Rptr. 2d 614, 624 (cardiac arrest caused by subdural hematoma; no subarachnoid irregularities), rev. den. (1992 Cal. Lexis 1336); People v. Salinas (CA 5th Cal. 1982) 131 Cal. App. 3d 925, 182 Cal. Rptr. 683 (cause of death was subdural and cortical hematoma), reh’g den.; State v. Cutro (S.C. 1998) 332 S.C. 100, 113, 504 S.E. 2d 324, 331 (baby with retinal hemorrhages, subdural hematomas, and subarachnoid hemorrhages diagnosed as victim of SBS); People v. Gordon (CA 2nd CO 1987) 738 P. 2d 404, 405 (criminally negligent child abuse conviction aff’d where retinal, subdural, and subarachnoid hemorrhaging found consistent with violent whiplash injury); United States v. Wright (USAF CCA 1998) 1998 CCA Lexis 177, 7 (subdural hematoma, retinal hemorrhaging, subarachnoid hemorrhage, and cerebral edema “characteristic of shaken baby syndrome”).  Cf. People v. Vargas (CA 2nd Cal. 1988) 204 Cal. App. 3d 1455, 1471, 251 Cal. Rptr. 904, 912 (McCloskey, J., dissenting), rev. den. (1989), citing People v. Ewing (CA 3rd Cal. 1977) 72 Cal. App. 3d 714, 716, 140 Cal. Rptr. 299 (three separate subdural hematomas, one of which was fatal), rev. den.  See generally Hatina, supra, at 561-562 (subdural hematoma and retinal hemorrhage are primary symptoms of SBS; when subarachnoid hemorrhage is also found, trauma or abuse is more likely).

Because Destiny’s subarachnoid hemorrhaging was spotty and petechial (see, e.g., NMR (“intracortical petechiae,” “cortical petechiae”); NR 3 (“minute petechiae”; “On the right side, similar petechiae”), it was probably caused by postmortem extravasation exacerbated by her coagulopathy, and certainly not by physical abuse.  The next most likely explanation for her subarachnoid hemorrhaging is a hereditary hemorrhagic disease, or a congenital abnormality, such as an arteriovenous malformation.  Other strong candidates are an aneurysm, meningitis, or a blood deficiency disease.  There are many other possible causes of Destiny’s subarachnoid hemorrhages aside from abuse, none of which were ruled out by the prosecution during Ms. Vildosola’s trial.


F.  Other EXPECTED SBS symptoms not found in Destiny


Tears in the parenchyma of the brain, particularly the white matter or myelin, are strongly indicative of abuse.  Lyon, supra, at 147.  Coup and contre-coup contusions, on the other hand, are less common in infants than adults, and are typically found at the tips of the frontal and temporal lobes.  Calder, Ian M., et al. (1984) Primary Brain Trauma in Non-Accidental Injury, 37 J. Clinical Pathology 1095 (of 12 fatally abused infants, none had coup or contre-coup contusions).  Axonal and neuronal shearing lesions and other cerebral contusions are readily identifiable with MRI and CAT.  No mention was made of any lesions of white matter in Destiny’s autopsy.  To the contrary, no evidence was found of the gliding contusions that are diagnostic of SBS (see NR 2).  In addition, no coup contusion was found (see NR 1802 L. 21-24 and 1295 L. 27-1296 L. 1).  Furthermore, the ostensible contre-coup lesion, which if anything would have revealed Destiny’s coagulopathy and not SBS, was missing (RT 1801 L. 1-3 (Ribe hid the missing contre coup lesion from the neuropathologist, Dr. Itabashi) & 3-6 (the missing lesion was caused by a “coagulation defect”); 1802 L. 2-6 (contre coup injury is never mentioned in Ribe’s pathology report)).

Some courts recognize a constellation of SBS symptoms.  Rachelle S. v. Arizona Dept. of Econ. Security (CA 1st AZ 1998) 191 Ariz. 518, 519, 958 P. 2d 459, 460 (vigorous shaking causing “retinal hemorrhages, brain injury, brain swelling, and subdural hematomas.”); People v. Coleman (CA 1st IL 2000) 311 Ill. App. 3d 467, 470, 724 N.E. 2d 967, 970 (retinal hemorrhages, subdural hematomas, and brain edema); Drake v. State (Ga. 2000) 272 Ga. 797, 798, 537 S.E. 2d 336, 337 (shearing of small venules in the brain and retina); Farm Bureau Insurance v. Witte (Neb. 1999) 256 Neb. 919, 922, 594 N.W. 2d 574, 578 (“neurological depression,” retinal hemorrhages, intercranial [sic] bleeding, seizures).  Note again that subdural bleeding--conspicuously absent in Destiny--is common to all fatal SBS cases.  Also, because the SBS abuser typically holds the baby by the torso while shaking, chest lesions are common, yet Destiny had no rib, abdominal, sternal, clavicular, scapular, or neck contusions.




Many descriptions of SBS can be found in the medical literature, some vague and others inconsistent with Destiny’s injuries.  E.g., State v. Willis (CA WD MO 1999) 2 S.W. 3d 801, 802 (“closed head injury”); In re M.R.F. (CA SD MO 1995) 907 S.W. 2d 787, 790 (“brain damage and blood”); Powell v. State (CA GA 1997) 226 Ga. App. 861, 862, 487 S.E. 2d 424, 425 (injuries caused by “‘shaken infant syndrome’ followed by blunt force trauma”).  Because of the inconsistencies in the descriptions of SBS, and its confusion with SIDS and BCS, an estimated 85% of child deaths where abuse is suspected are misidentified.  Jones, Owen D. (1997) Evolutionary Analysis in Law:  An Introduction and Application to Child Abuse, 75 North Carolina L. Rev. 1117, 1181 n. 138, citing McClain, Philip W. (1993) Estimates of Fatal Child Abuse and Neglect, United States, 1979 through 1988, 91 Pediatrics 338, 338.  The attribution of SBS to Destiny’s (and Carissa’s) death is yet another example of misidentification.

Not only is general agreement lacking as to the symptomatology of SBS, but there is no consensus concerning its etiology.  Often, blunt force trauma--caused when the baby’s head is hit by a hard object, hand, or foot, or stricken against a bed, sofa, or pillow--is presented as causing physical damages conjointly with SBS.  Cf. State v. Brunell (Vt. 1992) 159 Vt. 1, 3, 615 A. 2d 127 (“injuries to brain and blunt trauma to head indicated either ‘shaken infant syndrome’ or ‘outside impact’”).  In other instances, impact injuries are suggested as an alternative to SBS.  Jones v. State (Ga. 1994) 263 Ga. 835, 836-837, 439 S.E. 2d 645, 647 (injuries could be caused by shaking, “being thrown against a wall” or “if the child were dropped”); In re Weeks (CA 12th OH 1991) 1991 Ohio App. Lexis 443, 5 (trauma (i.e., “severe blunt blow to the head”) or “violent shaking”).  Still other courts distinguish whiplash-shaking injuries from impact trauma.  State v. Beason (CA OR 2000) 170 Ore. App. 414, 419, 12 P. 3d 560, 563 (SBS pigeonholed separately from “shaken impact syndrome,” the latter defined as violent shaking with impact against “broad-based” object (which can be either hard or soft) such as floor, wall, bed, or couch).

Many experts believe that shaking alone is unlikely to cause the panoply of SBS symptoms.  Blunt force trauma may be integral to some of SBS’s typical injuries.  Alexander, Randall, et al. (1990) Incidence of Impact Trauma with Cranial Injuries Ascribed with Shaking, 144 American J. Diseases in Children 724; Bogard, B.; Nimkoff, L.; Novak, G.; Lanzkowsky, P.; Hollander-Bobo, R.; Gandhi, M.; Shenker, I.R. & Gauthier, B. (1993) Intracranial Injuries due to Child Abuse, 5(1) Child. Hosp. Quarterly 47-50 (intracranial injuries of SBS largely due to trauma when child is thrown onto crib or couch, not shaking); Hatina, supra, at 560 (injuries attributed presumptively to shaking often actually caused by blunt force trauma).  In Ms. Vildosola’s case, the prosecution alleged that bruises on Destiny’s legs were traumatic, caused either by sexual abuse (Dr. James Ribe) or when Destiny was swung against a wall (Cheri Lewis).  However, the room where the alleged swinging or throwing would have occurred is lined almost from floor to ceiling with furniture and shelves.  Furthermore, Destiny’s bruising was much more likely caused by rescue efforts, accidental falls, and blood dyscrasia.

General agreement is also lacking as to the severity and duration of shaking necessary to produce the symptoms of SBS.  See, e.g., Webber v. Commonwealth (CA VA 1998) 26 Va. App. 549, 553, 496 S.E. 2d 83, 85 (“very vigorous shaking” of infant typically “less than a year of age,” causing microscopic axonal tearing); People v. Renteria (CA 1st IL 1992) 232 Ill. App. 3d 409, 413, 597 N.E. 2d 714, 717 (“significant,” vigorous shaking); State v. Cudgel (CA 5th OH 2000) 2000 Ohio App. Lexis 855 (“severe” shaking); State v. Davis (CA ES TN 1999) 1999 Tenn. Crim. App. Lexis 1184 (“purposeful ... rapid shaking”).  Since laboratory validation of SBS theory could be highly unethical, we may never know whether SBS is a legitimate medical phenomenon.

Even more bewilderingly, SBS is often used interchangeably or confused with “battered child syndrome” and other forms of child abuse.  State v. Anderson (NC 1998) 350 N.C. 152, 160, 513 S.E. 2d 296, 302 (pediatric expert concluded that child “‘was a victim of severe child abuse,’ ... shaken-baby syndrome and the battered child syndrome”); State v. Bansley (CA 4th WI 1989) 149 Wis. 2d 398, 439 N.W. 2d 644 (baby “exhibited the battered and shaken child syndrome.”); Underwood v. State (S.C. 1992) 309 S.C. 560, 425 S.E. 2d 20, 22 (“battered or shaken child syndrome”); State v. Lee (NC 1998) 348 N.C. 474, 490, 501 S.E. 2d 334, 344 (“bruises and head injury” likely caused by “child abuse, battered child syndrome, or shaken baby syndrome”); State v. Pierce (NC 1997) 346 N.C. 471, 485, 488 S.E. 2d 576, 584 (child abuse expert needed to determine whether child died from battered-child syndrome and shaken-baby syndrome); State v. Lopez (S.C. 1991) 306 S.C. 362, 412 S.E. 2d 390, 392 (this state has not formally recognized “battered child syndrome” or “shaken baby syndrome”).

Furthermore, there are several contending aliases for SBS.  For instance, some researchers, alluding to SBS’ original description as a whiplash-like injury, call it “shaken infant whiplash syndrome” (State v. Hughes (CA IA 1990) 457 N.W. 2d 25, 27 (the condition “can occur in older people”)), “Whiplash Shaken Infant Syndrome” (WSIS) (see Dietz v. Damas (ED NY 1996) 932 F. Supp. 431, 434 (six-month-old boy violently shaken for “at least a minute or longer,” causing blindness); People v. Kailey, supra (baby’s injuries caused by either a blow to the head or WSIS); Freeze v. State (CA 2nd FL 1989) 553 So. 2d 750, 752 (theoretical mechanism of WSIS); Monk v. State (Miss. 1988) 532 So. 2d 592, 595 (neck bruises suggested choking, and thumb-shaped chest bruises consistent with shaking of child); State v. Mergenthaler (Mont. 1994) 263 Mont. 198, 201, 868 P. 2d 560, 562 (negligent homicide)), “whiplash shaken baby syndrome” (State v. Olson (MN 1989) 435 N.W. 2d 530, 531 (bilateral subdural hematomas)), “whiplash/shaken baby syndrome” (C.M.W. v. State (CA 3rd WI 1991) 163 Wis. 2d 968, 473 N.W. 2d 611), or “Whiplash Shaking Infant Syndrome” (United States v. Gaskell (11th Cir. 1998) 134 F. 3d 1039, 1041, citing U.S. v. Gaskell (11th Cir. 1993) 985 F. 2d 1056, 1058 (involuntary manslaughter conviction rev’d because of prejudicial courtroom demonstration of SBS, improper exclusion of expert witness testimony, and erroneous jury instruction).

Others, believing that the head must strike a flat surface to cause the fatal injuries, call SBS “shaken baby impact syndrome” (aka. “shaken impact baby syndrome,” “shaken impact syndrome,” “shaken and impact syndrome,” “shaken/impact syndrome,” “shaken impact/shaken baby syndrome”).  Strickland v. Yukins (ED MI 1999) 1999 U.S. Dist. Lexis 4647; see also Efurd v. State (Ark. 1998) 334 Ark. 596, 604, 976 S.W. 2d 928, 933 (in “shaken impact syndrome,” infant is picked up, shaken, and finally struck against firm object); State v. Reynolds (CA 8th OH 1994) 1994 Ohio App. Lexis 3610 (“shaken impact syndrome”); “shaken and impact syndrome” (State v. Candela (CA ED MO 1996) 929 S.W. 2d 852, 859 (“shaken and impact syndrome” symptoms included subdural hematoma, retinal hemorrhages, bruises, brain swelling, nerve shearing)); In re Ashley M. (Me. 2000) 754 A. 2d 341, 344 (only 25%-50% of population aware of dangers from shaking baby, such as “chronic shaken impact baby syndrome”); In re Taylor B. (CA WV 1997) 201 W.Va. 60, 66, 491 S.E. 2d 607, 612 (“Shaken-Impact Syndrome” diagnosed from subdural hematoma and bilateral retinal hemorrhages); People v. Oaks (IL 1996) 169 Ill. 2d 409, 432, 662 N.E. 2d 1328, 1338 (“shaken/impact syndrome”); People v. R.S. (CA 2nd IL 2000) 313 Ill. App. 3d 121, 125, 728 N.E. 2d 1165, 1168 (“shaken impact/shaken baby syndrome”).

Still other designations are common, such as “shaken infant syndrome” (State v. Bolden (CA 2nd LA 1987) 501 So. 2d 942, 948 (aff’g manslaughter conviction); Hughley v. State (CA AL 1990) 574 So. 2d 991, 992 (8-month-old boy “suffering from whiplash”); United States v. Davis (USN-MC CCA 1999) 50 M.J. 674, 679 (65% of shaken infants have retinal bleeding and diffuse brain swelling)), “shaken child/infant syndrome” (In re Lou R. (Fam. Ct. NY 1986) 131 Misc. 2d 138, 143, 499 N.Y.S. 2d 846, 849), “shaken child syndrome” (In re Richard H. (CA 2nd Cal. 1991) 234 Cal. App. 3d 1351, 1358, 285 Cal. Rptr. 917, 920 (head contusions and seizures consistent with “shaken child syndrome”); Coleman v. State (Wyo. 1992) 843 P. 2d 558, 559 (felony child abuse)).  The many alternative terminologies for SBS illustrate that Destiny’s death cannot be attributed to any uniformly recognized condition with a specific nomenclature and symptomatology.

SBS is difficult to diagnose correctly, because its symptoms are often secondary to other childhood maladies, and SBS frequently is found in combination with other diseases and multiple forms of abuse.  Shaken Babies, supra, at 335 (SBS is overdiagnosed, and many fatalities attributed to SBS cannot be ruled out as accidental or disease-induced); Gilliland, M.G. & Folberg, R. (1996) Shaken Babies--Some Have No Impact Injuries, 41(1) J. Forensic Science 114-116 (most child head injuries not caused by SBS); Atwal, G.S.; Rutty, G.N.; Carter, N. & Green, M.A. (1998) Brusing in Non-Accidental Head Injured Children, 96(2-3) Forensic Science Int’l. 215-230 (bruising is independent of and usually unrelated to SBS); Teyssier, G.; Rayet, I.; Miguet, D.; Damon, G. & Freycon, F. (1988) Cerebro-Meningeal Hemorrhage in Infants:  Shaken Syndrome?  Abuse or accidents?, 43(6) Pediatrie 535-538 (whiplash injury is not always child abuse); Closset, M.; Leclerc, F.; Hue, V.; Martinot, A.; Vallee, L. & Pruvo, J.P. (1992) Is Pericerebral Hemorrhage a Cause of Severe Malaise in Infants?, 47(6) Pediatrie 459-465 (instead of SBS, pericerebral hemorrhages can be caused by a slight bump where there are predisposing vascular factors particular to infancy).

Even more troublingly, most SBS is diagnosed by physicians and coroners who have limited knowledge of and inadequate experience with SBS, whose testimony is nevertheless used prosecutorily.  Zylke, Jody W. (1989) Child Abuse Problems Demands Much of Physician But Also of the Community and Its Officials, 261 JAMA 2930, 2931.  Consequently, many criminal lawsuits alleging SBS are errantly filed.  For example, State v. Thompson (Ohio App. 10th 1997) 1997 Ohio App. Lexis 4351, 3 (trial judge remarked that expert witness was a forensic pathologist, but failed to inquire as to expert’s experience with children, specifically abused children or those suffering from shaken baby syndrome); State v. Schneider (Ohio App. 6th 1984) 1984 Ohio App. Lexis 11988, 3 (coroner relied upon podiatrist and two neuropathologists, all non-experts, for dubious SBS diagnosis); State v. Wiley, supra, at 10 (coroner found no retinal hemorrhaging in alleged SBS case, erroneously claiming that retinal hemorrhaging only occurs in 50% of SBS cases, when actual incidence is closer to 90%).  But see Billmire, Elaine & Meyers, Patricia A. (1985) Serious Head Injuries in Infants:  Accident or Abuse?, 75 Pediatrics 340, 341 (neurological and CT exams of 84 children used to identify SBS; 89% had retinal hemorrhages) and Traster, supra (infant met at emergency room by pediatric neurologist and pediatric ophthalmologist trained to systematically examine for SBS).  Destiny was examined, both while alive and postmortem, by physicians with no expertise in diagnosing SBS, or any other form of child abuse.


H.  SBS fails THE Kelly-Frye Test, so should not be recognized as A medical syndrome


Currently, there are so many descriptions of SBS, it is so difficult to diagnose, and the injustices caused by its misdiagnosis are so severe that it cannot be called a “generally recognized medical condition” in accordance with the Kelly-Frye test (People v. Kelly (Cal. 1976) 17 Cal. 3d 24, 31, 549 P. 2d 1240, 130 Cal. Rptr. 144 (conviction rev’d because only expert witness was unqualified to testify that a new technology (i.e., electronic voice identification system) was generally accepted by scientific community); Frye v. United States (CA DC 1923) 54 App. D.C. 46, 293 F. 1013, 1014).  According to Kelly-Frye, admissibility of scientific evidence requires satisfaction of a three-pronged test:  (1) reliability (e.g., the syndrome must be diagnosable consistently by qualified experts), (2) the witness must be an expert in the field, and (3) it must be shown that correct scientific procedures were utilized during diagnosis.  People v. Cegers (CA 4th Cal. 1992) 7 Cal. App. 4th 988, 994, 9 Cal. Rptr. 2d 297, 301 (evidence of a syndrome is inadmissible due to lack of foundational proof if the syndrome has not been generally accepted by the scientific community), rev. den. (1992 Cal. Lexis 4974); People v. Stoll (Cal. 1989) 49 Cal. 3d 1136, 1165, 783 P. 2d 698, 716, 265 Cal. Rptr. 111 (Lucas, C.J., dissenting) (Kelly-Frye is merely the “reasonable reliability” standard applied to scientific methods of determining guilt or innocence).  The purpose of the Kelly-Frye test is to prevent lay jurors from being misled by the “aura of infallibility” that tends to surround any scientific concept presented by a scientist.  In re Amber B. (CA 1st Cal. 1987) 191 Cal. App. 3d 682, 686, 236 Cal. Rptr. 623, 626 (applying Kelly-Frye to child sexual abuse accommodation syndrome and the use of anatomically correct dolls to elicit repressed memories of molestation), reh’g & rev. den., quoting People v. McDonald (Cal. 1984) 37 Cal. 3d 351, 372-373, 690 P. 2d 709, 208 Cal. Rptr. 236, 46 A.L.R. 4th 1011 (aura of infallibility may conceal fact that scientific evidence remains experimental and tentative).  Because:  (1) opinion within the medical community is divided as to SBS’ characteristics, (2) the physicians who testified in Destiny’s trial were not experts on SBS, and (3) the factfinders were likely misled by an “aura of infallibility” surrounding the SBS diagnosis, the SBS testimony at Ms. Vildosola’s trial failed the Kelly-Frye test and should have been excluded.

With regard to the admissibility of SBS evidence, this court may decide to:  (1) exclude SBS pursuant to the Kelly-Frye test; (2) exclude the SBS diagnosis, limiting evidence to:  (a) a description of SBS by an SBS expert and (b) a report of the autopsy findings for Destiny (and Carissa) by a forensic pathologist or other qualified physician, without a conclusory diagnosis of SBS; or (3) allow all previously admitted evidence related to SBS.  In any case, the petitioner will prove that SBS was a misdiagnosis.




The misdiagnosis and overdiagnosis of SBS has caused grave injustices for many parents and caretakers.  See, e.g., Thomas v. Chadwick (CA 4th Cal. 1990) 224 Cal. App. 3d 813, 816, 274 Cal. Rptr. 128, 130-131 (physician wrongly diagnosed subdural hematoma as nonaccidental injury from shaking or falling; actual cause was congenital cerebral arteriovenous malformation); Hodge v. Carroll County Dept. of Soc. Svcs. (DC MD 1992) 812 F. Supp. 593, 609 (reporting of misdiagnosed child abuse was invasion of familial privacy without due process); Myron v. South Broward Hospital (CA 4th FL 1997) 703 So. 2d 527, 529 (8 doctors charged with misdiagnosing meningitis as SBS); Harris v. Montgomery (Ala. 1983) 435 So. 2d 1207, 1216 (doctor misdiagnosed baby’s condition as suspected child abuse); Awkerman v. Tri-County Orthopedic Group (CA MI 1985) 143 Mich. App. 722, 724-725, 373 N.W. 2d 204, 205 (bone fractures caused by osteogenesis imperfecta misdiagnosed as child abuse); Nosbaum v. Martini (CA 1st IL 2000) 312 Ill. App. 3d 108, 122, 726 N.E. 2d 84, 95 (doctor liable for abuse misdiagnosis despite immunity re child abuse report); Hazlett v. Evans (ED KY 1996) 943 F. Supp. 785, 786 (misdiagnosis of SBS caused baby girl to be removed from parental home).  Cf. D.L.C. v. Walsh (CA WD MO 1995) 908 S.W. 2d 791, 794 (father falsely charged with sexual abuse filed malpractice action against reporting doctor and hospital); Dominguez v. Kelly (CA 8th TX 1990) 786 S.W. 2d 749, 752 (misdiagnosis of syphilis led to false sexual abuse report); Criswell v. Brentwood Hosp. (CA 8th OH 1989) 49 Ohio App. 3d 163, 164, 551 N.E. 2d 1315, 1316-1317 (chlamydia misdiagnosis led to errant report of child sexual abuse); Hazlett, supra, at 787-788 (discussing physician liability for negligent vs. bad faith misdiagnosis of child abuse); and Mayes, Clifford & Macleod, Calum (1999) When “NAI” Means Not Actually Injured, 318(7191) British Med. J. 1127 (case of congenital melanocytic naevi misdiagnosed as non-accidental injury).

Parents suffer grievously when a baby is seriously injured or dies.  When, in addition, they are wrongfully charged with child abuse, they must suffer the further agonies of prosecution and lengthy incarceration.  Kaplan, J. Martin (1986) Pseudoabuse--the Misdiagnosis of Child Abuse, 31(4) J. Forensic Science 1420-1428 (overdiagnosing child abuse can be as harmful as failing to recognize it); Kaplan, J. Martin (1984) The Misdiagnosis of Child Abuse, 30(3) American Family Physician 197-200 (case histories of innocent parents incarcerated for child abuse); Pressel, David M. (2000) Evaluation of Physical Abuse in Children, 61(10) Amer. Fam. Physician 3057 (misdiagnosing child abuse can be as devastating to a family as missing a diagnosis of abuse can be to a child); Levin, Alex V. & Selbst, Steven M. (1988) Vulvar Hemangioma Simulating Child Abuse, 27 Clinical Pediatrics 213-215 (“possibility of iatrogenic[ally]-induced emotional distress if child abuse is misdiagnosed”); Goskowicz, Maki O. (1994) Endemic “Lime” Disease:  Phytophotodermatitis in San Diego County, 93 Pediatrics 828-830 (misdiagnosis of phytophotodermatitis as child abuse has led to false accusations against parents, and caused “significant psychological trauma”).

The problems faced by families that are indigent, undereducated, or chemical-abusing are especially severe.  Not only are they more likely to be falsely charged with child abuse, but they are less able to cope when confronted with unjust prosecution.  Makari, George S.; Gahagan, Sheila & Rimsza, Mary E. (1991) Child Abuse or Osteogenesis Imperfecta:  How Can We Tell?, 88 Pediatrics 987-992 (especially if family is unsophisticated, uneducated, and has social problems such as substance abuse, physicians may misdiagnose infirmities as child abuse); Carroll, James E. & Burton, Edward M. (1994) Hereditary Sensory Neuropathy Manifesting as Possible Child Abuse, 93 Pediatrics 840-842 (parents of lower socioeconomic status are particularly vulnerable to misdiagnosis).

Destiny’s parents were of relatively low socioeconomic status.  Ms. Vildosola never finished high school, and Destiny’s father, William Jacobo, Jr., was unemployed throughout Destiny’s life.  Destiny resided in a foster facility for her first fifteen months, and had to live at her great-grandmother Esther’s home for the remainder of her life.  Esther finished less than a year of high school.  Because Destiny’s relatives had limited education and income, they were viewed disrespectfully and prejudicially by physicians and attorneys.  Consequently, Ms. Vildosola was wrongly charged with killing Destiny.  Ms. Vildosola and Mr. Jacobo did not understand the legal and medical jargon used at trial.  Because neither had ever been charged with a felony before, they relied heavily on their attorneys—attorneys who, unbeknownst to the defendants, were not competent to handle such complex medicolegal issues.

If SBS is to be recognized jurisprudentially, then its misdiagnosis and the resulting injustices must be minimized.  Several specialists trained to identify shaken baby syndrome and other types of child abuse should evaluate the patient.  Hatina, supra, at 567.  See also Spaide, supra, 41 Amer. Fam. Phys. at 1145-1152 (SBS is often misidentified, because findings for most organ systems are nonspecific).  See generally Phipps, Charles A. (1999) Responding to Child Homicide:  A Statutory Proposal, 89 J. Crim. L. & Criminology 535-613 (providing exhaustive description of types of physical injury or abuse causing child homicide as a way to reduce SBS misdiagnosis).  Unfortunately, Destiny’s death was attributed to SBS by physicians with limited understanding and exposure to SBS, particularly Dr. James Ribe, who was not a pediatric pathologist or neuropathologist, who in his career had performed only twelve autopsies on infants aged two or younger, and who claimed that about half of those babies--an astoundingly large proportion--were SBS victims.  Notwithstanding Ribe’s inexperience, no SBS or child abuse specialists were consulted.

Recognizing the many difficulties in correctly diagnosing child abuse, the United States Advisory Board on Child Abuse and Neglect (U.S. Dept. of Health and Human Services (1995) A Report of the U.S. Advisory Board on Child Abuse and Neglect, a Nation’s Shame:  Fatal Child Abuse and Neglect in the U.S., 43) and the national medical community (American Academy of Pediatrics, supra, 92 Pediatrics at 874) have encouraged the enactment of laws establishing child autopsy protocols.  Furthermore, the American Academy of Pediatrics has stated that the diagnosis of Shaken Baby Syndrome requires the “integration of specific clinical management and community intervention in an interdisciplinary fashion” by “Child Death Review Teams.”  Hatina, supra, at 567.  The Child Death Review Team concept was devised decades ago.  The first large-scale pediatric death review team was organized, incidentally, in Los Angeles by Dr. Michael Durfee in 1978, under the tutelage of the Inter-Agency Council on Child Abuse and Neglect (ICAN).  Durfee, Michael J., et al. (1992) Origins and Clinical Relevance of Child Death Review Teams, 267 JAMA 3172, 3172.  There are now Child Death Review Teams in at least forty-five States at the local or statewide level.  Hatina, supra, at 568.  Also see, e.g., Los Angeles County Interagency Council on Child Abuse and Neglect (1994) ICAN Multi-Agency Child Death Review Team Report for 1993; Arizona Department of Health Services, Arizona Child Fatality Review Team (1994) First Annual Report; Oregon Department of Human Resources (1993) Task Force Report on Child Fatalities And Critical Injuries Due To Abuse and Neglect; Colorado Child Fatality Review Commission, Colorado Department of Health (1993) Annual Report.  Teams should include specialists in pediatric radiology, neurology, neurosurgery, and ophthalmology, as well as a pediatrician with child abuse expertise.  Cf., e.g., Fishman, C.D.; Dasher, W.B. III & Lambert, S.R. (1998) Electroretinographic Findings in Infants with the Shaken Baby Syndrome, 35(1) J. Pediatric ophthalmology & Strabismus 22-26 (electroretinography helpful in SBS cases).  Destiny was not examined by an interdisciplinary death review team, ophthalmological tests such as electroretinography were not performed, and her autopsy did not conform to any SBS-specific protocol.




Leading experts on SBS, including Pathologist Michael Ward, M.D. (Exhibit P16), Pathologist Mary Case, M.D. (Exhibit P17), and Jose Martinez, M.D. (Exhibit P18) unanimously agree that Destiny did not die as a result of SBS, or any other form of child abuse.  These expert opinions, as well as the autopsy conclusions of Drs. John P. Ryan and Hideo H. Itabashi, refute the SBS theory, and indicate that pneumothorax, pneumonia, and bleeding deficiency were the principal causes of Destiny’s death.  This new medical evidence casts a penumbra of doubt over the guilt of Ms. Vildosola.  In re Johnson (Cal. 1998) 18 Cal. 4th 447, 460, reh’g den. (19 Cal. 4th 253c (1998)), citing In re Hall (Cal. 1981) 30 Cal. 3d 408, 420, 637 P. 2d 690, 179 Cal. Rptr. 223 (habeas corpus petitioner need only show evidence not presented at trial tending to raise doubt about guilt), relying on In re Branch, supra, at 214 (evidence not disclosed due to ineffective assistance of counsel constitutes new evidence).  Furthermore, this new evidence points conclusively and unerringly toward the defendant’s innocence, and thus there are sufficient grounds for the granting of habeas corpus.  Cf. In re Johnson, supra, at 462, citing In re Weber (Cal. 1974) 11 Cal. 3d 703, 523 P. 2d 229, 114 Cal. Rptr. 429 (en banc) (credibility of retracted testimony is question of fact).

Not only was SBS misdiagnosed, but the prosecution could present only circumstantial evidence.  Where only circumstantial evidence is available, the prosecution must establish:  (1) a pattern of violent behavior toward the child, or exclusive control, (2) a pattern of non-accidental injuries, and (3) probability of death from such injuries.  State v. Evans (CA NC 1985) 74 N.C. App. 31, 36, 327 S.E. 2d 638.  Cf. Bews v. Morgan (9th Cir. 1999) 1999 U.S. App. Lexis 17741, cert. den. (Bews v. Morgan (1999) 528 U.S. 1031, 120 S. Ct. 553, 145 L. Ed. 2d 429), citing State v. Russell (CA 2nd WA 1993) 69 Wn. App. 237, 247, 848 P. 2d 743, 750 (holding four or five assaults over eight to nine non-consecutive months constitutes “pattern or practice” as required re child homicide by abuse statute).  The head trauma symptoms of SBS are nonspecific, and may mimic infection or metabolic abnormalities.  Ludwig & Warman, supra, 13 Annals of Emergency Medicine at 104-107 (in addition to head trauma, SBS diagnosis depended on strong suspicion of abuse, bulging fontanelle, head circumference above 90th percentile, and retinal hemorrhage).

Destiny had neither subdural hematomas nor any direct evidence of abuse.  Moreover, there is no evidence of (1) a pattern of violent behavior toward Destiny; (2) exclusivity of control of Destiny by her mother or anyone else; or (3) any pattern of shaking, blunt force trauma, or NAIs of any kind.  Destiny was constantly surrounded by brothers, sisters, uncles, her great-grandmother Esther, and her father, as well as her mother.  Therefore, it is highly probable that Destiny was not physically abused by Ms. Vildosola, but instead died of pneumothorax, infection, or metabolic abnormality, or some combination thereof.

Prosecutors should beware of overzealousness in their pursuit of child abusers.  “Much as the death of a two-year-old child demands an explanation, we must also be concerned about due process and the constitutional mandate that all persons be presumed innocent until proven guilty.”  Martineau v. Angelone (9th Cir. 1994) 25 F. 3d 734, 743.  In Martineau, as in the instant case, medical experts provided widely discrepant explanations for the cause of death of a 27-month-old female infant.  Like Destiny, “Her death could have been due to circumstances beyond appellants' control; it could have been an accident, a medical anomaly, a failure to observe [her] symptoms, or an error of judgment.”  The Nevada Supreme Court concluded that the evidence was insufficient to permit a jury to convict for manslaughter, willful neglect, or delay in seeking medical care, because nothing contradicted the appellants' claim that they did everything they could to save the baby.  Ms. Vildosola was, if anything, even more diligent than the Matineau appellants.  Id. at 743.  Destiny was rushed immediately to a hospital when her illness was first detected (RT 1638 L. 22-1639 L. 7).




A writ of habeas corpus may be prosecuted for the following reasons, inter alia (Cal. Pen C. Part 2 (Criminal Procedure), Title 12 (Special Proceedings of a Criminal Nature), Chapter 1 (Writ of Habeas Corpus) § 1473(b)-(c) (Who may prosecute writ; Grounds)):


“(b)(1) False evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at any hearing or trial relating to his incarceration; or

(2) False physical evidence, believed by a person to be factual, probative, or material on the issue of guilt, which was known by the person at the time of entering a plea of guilty, which was a material factor directly related to the plea of guilty by the person.

(c) Any allegation that the prosecution knew or should have known of the false nature of the evidence referred to in subdivision (b) is immaterial to the prosecution of a writ of habeas corpus brought pursuant to subdivision (b).

(d) Nothing in this section shall be construed as limiting the grounds for which a writ of habeas corpus may be prosecuted or as precluding the use of any other remedies.”  [Emphasis added.]


The trial court repeatedly permitted the introduction of evidence with prejudicial effects clearly exceeding any probative value, particularly the autopsy data concerning a child of Ms. Vildosola’s, Carissa Neria, who died about five years before Destiny in a different home, whose father was different from Destiny’s, and whose death did not lead to any charges against Ms. Vildosola.  (See § IX.E., infra pp. 56-66, for further points and authorities).




For example, after Destiny’s death, the autopsy findings were changed for another daughter of Ms. Vildosola, Carissa Arlene Neria, who died in 1991 in San Bernardino when ten months old (see Carissa’s revised autopsy report of 1996, a 2-page document written by Sheridan and signed by Duazo, dated January 23, 1996 (hereinafter “CA2”) (Exhibit P19)).  Although the original 1991 report indicated that the cause of death was “undetermined” (CA1 4 (Cause of Death)), the newly revised 1996 report stated that Carissa died as the result of physical abuse (CA2 2 (“Blunt head injury”)).  Shortly after Destiny’s death in December of 1995, Los Angeles County officials informed San Bernardino County officials of Destiny’s death.  On or about January 16, 1996, a joint law enforcement-DCS committee held a meeting in San Bernardino which was attended by Chief Medical Examiner Frank P. Sheridan, M.D. (RT 1487 L. 15-21).  After the meeting, Sheridan instructed Carissa’s original medical examiner, deputy coroner Nenita Rubio Duazo, M.D., to change Carissa’s cause of death from “undetermined” to “non-accidental blunt head trauma” (RT 1483 L. 4-19).  Yet there was never any police or Department of Children’s Services investigation of Carissa’s death (RT 2247 L. 27).

Notwithstanding, Sheridan jumped to the conclusion that Carissa was injured (RT 643 L. 3-4), causing “diffuse axonal injury” which in turn caused brain swelling (RT 641 L. 22-28), and that the cerebral edema alone caused death (RT 642 L. 20-22).  It is well-established, however, that SBS always is accompanied by retinal and/or subdural hemorrhaging (see, e.g., RT 1298 L. 18-25), neither of which was detected during Carissa’s examinations (see Carissa’s 1991 and 1996 Autopsy Reports).  Clearly, the purpose of Carissa’s belated autopsy revision was to facilitate the prosecution of Ms. Vildosola for child abuse and homicide.  In other words, Carissa’s autopsy report was maliciously and outrageously doctored in order to fraudulently suggest that Carissa and Destiny died under similar circumstances.  Nevertheless, there are flaws in the emended autopsy—it does not account for the absence of bruising on Carissa, and it utterly fails to establish that Carissa was a victim of either BCS or SBS.  (See § IX.E., infra pp. 56-66, for further points and authorities).

B.  Vast differences between Carissa and Destiny


The fact that the San Bernardino coroner’s findings were redacted in such a timely fashion was not the only reason for objecting to the admission of Carissa’s autopsy reports.  Another red flag was that the autopsies of Carissa and Destiny were strikingly different.  While Destiny purportedly died of SBS, none of the signs of SBS were found in Carissa’s autopsy.  Carissa’s meninges, especially the dura mater, were not examined, because they were “not generally well visualized” (CA2 1).  Consequently, a key determinant of SBS, subdural hematoma, was never found.  The other key sign of SBS, retinal hemorrhage, was also absent (CA1 4 (Eyes) (“no evidence of retinal hemorrhages”)).  Additionally, Carissa had no fractures (CA1 1 (External Examination) (“no apparent old or recent fractures)) or notable skin lesions (e.g., CA1 2 (External Examination) (“no evidence of cutaneous trauma or lesions”)), as would be expected if she were abused.  The primary observations were an “edematous” brain (CA1 2 (Internal Examination:  Head) (“brain appears edematous”) and CA2 1 (“brain … clearly edematous”)), and “minimal scalp hemorrhage (CA1 4 (Diagnosis, § IV.A.) (“Deep scalp hemorrhage, minimal”) [changed in 1996 to “extensive [!!!]” (CA2 1 (“scalp hemorrhage was extensive”))]).

Any significant external trauma, such as the bleeding noted on Carissa’s scalp, is a contraindication of SBS.  See Meuli, M., et al. (1991) Characteristics and Prognosis of Extradural Hematomas in Children, 1 European J. Pediatric Surgery 196, 198 (31 children with epidural hematomas, none attributed to abuse) and Shugarman, Richard P., et al. (1996) Epidural Hemorrhage:  Is it Abuse?, 97 Pediatrics 664 (93 children three years old and under with epidural or subdural hematomas; abuse diagnosed in 28 of 59 or 47% of children with subdural hematomas, and 2 of 34 or 6% of children with epidural hematomas).  Cf. Lyon, supra, at 158 (“epidural hematomas are far more frequently a result of unintentional injury”).

In Carissa’s 1991 autopsy report, Dr. Duazo also noted cardiomyopathy (CA1 4 (Diagnosis, § III) [changed in 1996 to “no evidence [!!!] of cardiomyopathy” (CA2 2)]) and chronic tracheobronchitis (CA1 4 (Diagnosis, § II) [changed in 1996 (CA2 2 (“chronic tracheobronchitis … is not [sic] considered to be life threatening”))]), with marked pleural congestion (CA1 2 (Respiratory Tract) (“Both lungs … markedly congested”)).  Those findings were inexplicably altered in Carissa’s revised autopsy report of 1996.  Sheridan had no involvement in Carissa’s 1991 autopsy.  To make matters worse, Duazo was not involved in the 1996 autopsy alterations (RT 1483 L. 12-19).  From the available evidence, including Carissa’s 1991 autopsy materials, the most likely cause of Carissa’s death is pneumonia or severe bronchitis, possibly complicated by a congenital ailment, such as a blood dyscrasia.

The only similarities between Carissa and Destiny are that both were born prematurely and underweight (compare AR 2 (External Description) to CA1 4 (Diagnosis), § I), and each was suffering from severe pleural congestion when she died (compare AR 9 (Respiratory System) (“lung tissue is congested”) with CA 2 (Respiratory Tract) (“Both lungs are subcrepitant and markedly congested”)).  If the discrepancies in the babies’ medical conditions had been adequately considered during Ms. Vildosola’s trial, Carissa’s autopsy would have been excluded, since it fails to indicate any pattern of behavior by Ms. Vildosola which could account for the characteristics of both Carissa’s and Destiny’s deaths.  Thus, the fraudulently transmuted autopsy report of Carissa Neria was not only highly prejudicial, but also lacked any probative value.  (See § IX.E., infra pp. 56-66, for further points and authorities).


C.  THE Prosecution improperly used information about Carissa


When the court granted permission to introduce evidence about Carissa’s death, the purpose for the admission was limited to showing “a common scheme or plan or method of committing a crime which goes to … the mental element of the murder count, whether [Ms. Vildosola] had knowledge of the danger to and consciously disregard [sic] human life.”  Cheri Lewis, the prosecutor, flagrantly disregarded those constraints, repeatedly using evidence about Carissa to argue that Ms. Vildosola was accountable for the deaths of both Carissa and Destiny (e.g., RT 2049 L. 25-27 (“After the second baby died she finally got caught, and she is finally being held accountable for her actions with regard to Destiny.”); RT 2051 L. 10-12 (“She didn’t care what was happening to Carissa any more than she cared what was happening to Destiny.”) & 18-23 (“that prior child abuse and murder of Carissa is of the same type as [Destiny’s]”); RT 2052 L. 7 (“she did commit murder of the prior baby”); RT 2053 L. 10-12 (“The baby [Carissa] had already been murdered before … the Emergency Medical Technician got there on January 21st.”); RT 2095-2096, 2099-2101, RT 2247 L. 28-2248 L. 2 (“Vildosola got away with murder on that baby [Carissa], and I hope she does not get away with murdering this one.”).

Prosecutor Lewis expressly advised the jury to use the evidence about Carissa for the impermissible purpose of showing a common scheme or plan (RT 2049 L. 28-2050 L. 7 (“[Y]ou were allowed to hear about the death of Carissa … because … [i]t shows … a common scheme or plan or method of committing a crime.”)).  She then piggybacked onto this proscribed use the only allowable application of Carissa’s autopsy evidence, “whether she had the knowledge of the danger to and consciously disregard [sic] human life” (RT 2050 L. 4-6).  Doubtlessly, the prosecution confused the jury regarding how to use Carissa’s autopsy evidence.  Furthermore, the judge refused to instruct the jury as to what specifically described information (i.e., Carissa’s autopsy) would be subject to what precise evidentiary limitations (i.e., proving knowledge of danger to and conscious disregard for human life), instead issuing the vague prescriptions of CALJIC 2.09 (see § XV, infra (Abuse of Discretion)).  Under these circumstances, the introduction of evidence concerning Carissa Neria’s death was reversible error, requiring habeas corpus relief.  (See § IX.E., infra pp. 56-66, for further points and authorities).


D.  evidence concerning COCAINE USE OR ADDICTION OF Ms. Vildosola AND DESTINY was FALSE, AND more prejudicial than probative


Evidence about the defendant’s cocaine use prior to Destiny’s birth was also admitted, despite the fact that its prejudicial impact undeniably exceeded its probity.  For instance, the prosecutor, in her closing argument, errantly declaims, without foundation, that “Defendant Vildosola snorted cocaine during her pregnancy…. The fact that she believed it would hurt her baby … shows her callous disregard … for human life.” (RT 2053 L. 15-16 & 21-28).  The prosecution also described Destiny as a “crack baby,” and such false drug-related characterizations were leaked to the press (see, e.g., p. 147, L. 13, infra, and p. 148, L. 1, infra).  The admission of such evidence without deliberation contravenes, inter alia, Cal. Evid. C. § 1101(b) (see p. 82, infra), and is the consequence of either ineffective assistance of defense counsel or abuse of judicial discretion.  In either event, the introduction of such blatantly prejudicial information constitutes reversible error.  (See § IX.E., infra pp. 56-66, for further points and authorities).


E.  Improper use of prior-injury evidence constitutes reversible error


The introduction of prior-injury evidence is restricted by, inter alia, Cal. Evidence Code § 352 (discretion of court to exclude evidence), Cal. Evid. Code § 1101(b) (evidence of character to prove conduct) (see p. 82, infra), and Federal Rule of Evidence 404(b).  Evid. Code § 352 states:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”  People v. Zapien (Cal. 1993) 4 Cal. 4th 929, 846 P. 2d 704, 17 Cal. Rptr. 2d 122 (evidence is prejudicial and excludable if it tends to result in prejudging of a person or cause on the basis of extraneous factors), reh’g den. (1993 Cal. Lexis 2443), cert. den. (Zapien v. California (1993) 510 U.S. 919, 114 S. Ct. 315, 126 L. Ed. 2d 262); People v. Griffin (Cal. 1967) 66 Cal. 2d 459, 426 P. 2d 507, 58 Cal. Rptr. 107 (regardless of probative value of evidence of earlier crimes, its admission risks serious prejudice and is always to be received with extreme caution); People v. Schader (Cal. 1969) 71 Cal. 2d 761, 457 P. 2d 841, 80 Cal. Rptr. 1 (evidence of similar crimes should be excluded unless probity outweighs likelihood that jury will be led astray to convict innocent person because of her earlier record); People v. Ainsworth (Cal. 1988) 45 Cal. 3d 984, 755 P. 2d 1017, 248 Cal. Rptr. 568 (evidence concerning one defendant may be excluded as unduly prejudicial to a codefendant), cert. den. (Ainsworth v. California (1989) 488 U.S. 1050, 109 S. Ct. 883, 102 L. Ed. 2d 1006).  Carissa’s deceitfully distorted autopsy records were unduly prejudicial, in that they misled the jury into believing that Ms. Vildosola was an habitual child killer, deserving punishment for Carissa’s death.

In applying § 352, the California judicial system employs a three-pronged test to weigh the probative versus prejudicial value of evidence:  (1) its tendency to demonstrate a common design or plan, (2) the extent to which the source of prior bad acts evidence is independent of the evidence of the charged offense, and (3) whether the prior acts resulted in criminal convictions.  Cf. People v. Sam (Cal. 1969) 71 Cal. 2d 194, 205, 454 P. 2d 700, 77 Cal. Rptr. 804 (evidence of uncharged misconduct inadmissible if--instead of showing common design or plan--suggesting that defendant acted spontaneously) and Brown v. Smith (CA 4th Cal. 1997) 55 Cal. App. 4th 767, 792, 64 Cal. Rptr. 2d 301, 316 (trial court prejudicially erred in allowing evidence of uncharged bad conduct in contravention of § 1101 (see p. 82, infra)).  Carissa’s autopsy report evidence fails all three prongs of the § 352 admissibility test:  (1) the circumstances of Carissa’s death do not demonstrate a common design or plan vis-a-vis Destiny’s death; (2) Carissa’s autopsy report was changed as a direct consequence of Destiny’s death, and thus did not originate from an independent source; and (3) Carissa’s death did not result in any convictions of Ms. Vildosola or anyone else.  Furthermore, assuming hypothetically that Ms. Vildosola abused both Carissa and Destiny, the evidence suggests--if anything--that Ms. Vildosola acted spontaneously.  Since prior uncharged conduct cannot be used to show that a defendant acted spontaneously, Carissa’s autopsy report should have been excluded at Ms. Vildosola’s trial.

Carissa’s autopsy report is also inadmissible according to Evid. Code § 1101(b), which reads:

“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”  [Emphasis added.]


Carissa’s autopsy did not prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or unlawful sexual conduct with respect to Destiny’s death.  Instead, the evidence concerning Carissa’s death tended to taint Ms. Vildosola’s character, and was offered to prove to the jury that if Ms. Vildosola’s conduct toward Carissa was homicidal, then she was also homicidal toward Destiny.  Because evidence of uncharged offenses is so prejudicial, its admission requires caution and extremely careful analysis.  Carissa’s autopsy report was admitted without adequate circumspection, and after peremptory analysis.

California courts also recognize a three-pronged test for the admissibility of prior bad acts:  (1) materiality, (2) the tendency of the evidence to prove or disprove a material fact, and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.  Brown, supra, at 791, quoting People v. Robbins (Cal. 1988) 45 Cal. 3d 867, 879, 755 P. 2d 355, 248 Cal. Rptr. 172, cert. den. (Robbins v. California (1989) 488 U.S. 1034, 109 S. Ct. 849, 102 L. Ed. 2d 981).  See also People v. Ewoldt (Cal. 1994) 7 Cal. 4th 380, 404-405, 867 P. 2d 757, 27 Cal. Rptr. 2d 646 (evidence admissible under § 1101 only if also admissible under § 352).  The rule precluding evidence of other misdeeds offered to prove an accused’s criminal disposition or propensity to commit the crime charged:  (a) promotes judicial efficiency, (b) guards against the probability that other crimes with little bearing on the defendant’s actual guilt will assume undue proportions, (c) prevents unnecessarily prejudicing the jury, and (d) avoids putting the accused in the position of defending against crimes for which she is not charged.  People v. Haston (Cal. 1968) 69 Cal. 2d 233, 444 P. 2d 91, 70 Cal. Rptr. 419.  Because Carissa’s autopsy is inadmissible under § 352, it also must be excluded under § 1101(b).

According to Federal Rule of Evidence 404(b):  “Other crimes, wrongs, or acts [are] not admissible to prove the character of a person in order to show that he acted in conformity therewith.  It may, however be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  United States v. Beechum (5th Cir. 1978) 582 F. 2d 898, 910 (extrinsic evidence relevant as to intent); United States v. Webb (9th Cir. 1972) 466 F. 2d 1352, 1353 (intent); People v. Henson (NY 1973) 33 N.Y. 2d 63, 67, 304 N.E. 2d 358, 362, 349 N.Y.S. 2d 657 (prior acts evidence admissible to show absence of accident).  A four-pronged test has also evolved for determining the admissibility of prior-act evidence:  (1) relevance, (2) prejudice, (3) similarity and closeness in time, and (4) sufficiency to support jury finding that defendant committed prior act.  United States v. Hudson (7th Cir. 1989) 884 F. 2d 1016, 1018-1019.  But see United States v. Gonzalez-Lira (5th Cir. 1991) 936 F. 2d 184, 189 (two-pronged test for reliance and unfair prejudice).

The standard of proof for determining admissibility of prior bad acts ranges among jurisdictions from a preponderance of the evidence to beyond a reasonable doubt.  Compare United States v. Brown (5th Cir. 1979) 608 F. 2d 551, 555 (relevance predicated on proof that defendant committed prior act) and United States v. Ebens (6th Cir. 1986) 800 F. 2d 1422, 1432 (prior bad acts admissible if preponderance of evidence establishes that defendant committed acts).  No burden of proof standard was specified with regard to Carissa’s death, nor was any purpose explicated for the admission of Carissa’s autopsy report.

Prior acts evidence must be relevant to an issue other than the accused’s character, and its probative value must exceed its potential prejudice.  Estelle v. McGuire (1991) 502 U.S. 62, 69, 112 S. Ct. 475, 481, 116 L. Ed. 2d 385.  In Estelle, the Supreme Court held that prior injury evidence was admissible to show intent in “battered child syndrome” cases.  However, such evidence must be accompanied by clarifying and limiting instructions admonishing the jury that said evidence:  (1) does not establish the identity of the abuser, (2) should not be viewed as an illustration of defendant’s bad character, and (3) should not be regarded as an indication of defendant’s propensity to commit such acts.  See Huddleston v. United States (1987) 485 U.S. 681, 686, 108 S. Ct. 1496, 1499-1500, 99 L. Ed. 2d 771 (extrinsic evidence impermissible to show bad character); Beechum, supra, at 910 (extrinsic evidence not admissible to show intention to commit similar act); and Colucci, Darin Michael (1992) Evidence - The Admissibility of Battered Child Syndrome:  Giving a Voice to the Silenced, 26 Suffolk University L.R. 1213, 1218 n. 44, citing People v. DeJesus (CA 2nd IL 1979) 71 Ill. App. 3d 235, 236, 389 N.E. 2d 260, 261 (battered child syndrome evidence properly used to describe nature of injuries, but not to inculpate a particular defendant).  The information about Carissa’s death:  (a) was used to establish the identity of Ms. Vildosola as the abuser, (b) tended to portray Ms. Vildosola as a bad character, and (c) was presented to show Ms. Vildosola’s propensity to commit similar acts--i.e., that Ms. Vildosola killed Carissa with impunity, and she now must be punished for killing Destiny.  Clearly, the prejudicial effects of the information about Carissa vastly outweigh any probative value.

Without the proper jury instructions, evidence suggesting prior acts of child abuse is more prejudicial than probative, rendering a trial arbitrary and fundamentally unfair, warranting habeas corpus relief and the reversal of a conviction on the grounds that the petitioner’s Fourteenth Amendment Due Process rights were violated.  McGuire v. Estelle (9th Cir. 1990) 902 F. 2d 749, 753  (trial court failed to establish intent, and did not prove beyond reasonable doubt that defendant was abuser), rev’d, Estelle v. McGuire, supra, at 502 U.S. 73-74, 112 S. Ct. 483 (applying preponderance of evidence standard re admissibility of prior bad acts).  Cf. Colley v. Sumner (9th Cir. 1986) 784 F. 2d 984, 992 (extrinsic evidence may provoke emotional response from jury), cert. den. (Colley v. Sumner (1986) 479 U.S. 839, 107 S. Ct. 142, 93 L. Ed. 2d 84) and Beechum, supra, at 914 (inherent danger of extrinsic evidence is that jury may convict for unpunished prior act).  The jury in Ms. Vildosola’s case was not adequately instructed concerning the treatment of prior bad acts information (see § XV.B., infra), and thus was tainted by the full prejudicial impact of the evidence concerning Carissa’s death.

The Estelle case, upon which the prosecution relied in arguing for the admission of Carissa’s autopsy report, is distinguishable from the present case.  Both trial courts admitted extensive evidence of prior physical abuse, as well as evidence of possible sexual abuse.  However, the differences between the two cases are striking:  (1) Estelle was a case of “battered child syndrome,” defined as a “prolonged pattern of abuse” by “someone regularly caring for the child” (see State v. Tanner (Utah 1983) 675 P. 2d 539, 543 (pattern of abuse relevant to show intentionality) and People v. Jackson (CA 4th Cal. 1971) 18 Cal. App. 3d 504, 506, 95 Cal. Rptr. 919, 921 (syndrome implies that someone regularly caring for child caused injuries)), while Destiny allegedly died of SBS, which often results from a single abusive incident (see D’Lugoff, M.I. & Baker, D.J. (1998) Shaken Baby Syndrome:  One Disorder with Two Victims, 15(4) Public Health Nursing 243-249 (discusses victimization of the mother, who typically is “the nonoffending parent” in SBS) and Lyon, supra, at 94 (physical abuse diagnosis is “often extremely difficult”)); (2) the mother’s boyfriend was the defendant in Estelle, whereas only the mother, Ms. Vildosola, remains as a defendant in the instant case; (3) there was more exclusivity of control over the Estelle baby than Destiny, whose great-grandmother (i.e., Esther Jacobo) was a frequent caretaker, and who was constantly surrounded by siblings, half-siblings, and other relatives, some of whom were teen-aged, and several of whom occasionally acted as her custodian (e.g., babysitter Bianca Placa); (4) the prior acts occurred six or seven weeks earlier in Estelle, as opposed to almost five years earlier in Ms. Vildosola’s case (i.e., Carissa died on January 21, 1991, while Destiny was pronounced dead on December 6, 1995); (5) the injuries in Estelle, including “inordinate bruising” of the head and chest, 17 chest contusions, 29 abdominal contusions, “a split pancreas, a lacerated large intestine, heart damage, rib fractures, and rectal tearing” (Estelle, supra, at 478), were unmistakably caused by battering, whereas Carissa’s injury, if any, was limited to “minimal” scalp bleeding; and (6) the prior bad acts evidence pertained to the deceased baby victim in Estelle, whereas the evidence in this case concerns Carissa, another baby altogether.

Unlike Estelle, Prosecutor Lewis did not establish, even by a preponderance of the evidence, that any of the purported physical or sexual abuse of Destiny was committed by Ms. Vildosola.  Instead, the prosecutor contended that the other defendant, William Jacobo, Jr., was at least jointly responsible for Destiny’s alleged injuries.  Moreover, she fastidiously omitted any evidence suggesting that other parties could have harmed Destiny.  Yet there is a strong likelihood that other people abused Destiny--if she was abused at all--including stepbrother Billy Jacobo III (e.g., RT 1097 L. 25-1103 L. 4), the Great-Grandmother Esther, Great-Uncle Anthony Jacobo, Jr. (a career criminal and felon who lived in the room adjacent to Destiny), and any of the Jacobo children who lived with and babysat Destiny (e.g., Destiny’s stepsister Marina (see RT 1098 L. 25-27 & RT 1020 L. 5-6 (Little Billy saw Marina playing with Destiny))).  There is now a great deal of evidence that Billy Jacobo III abused his siblings (e.g., RT 1098 L. 20-1099 L. 8), but the defense has not yet presented substantiating testimony.  Because anyone--including Billy Jacobo III, William Jacobo, Jr., Anthony, Marina, and/or Esther--could have inflicted Destiny’s alleged injuries, the prosecution failed to establish by a preponderance of the evidence that Ms. Vildosola abused Destiny.  Therefore, prior injury evidence concerning Carissa should have been excluded as irrelevant.  See McGuire, supra, at 754.

Proof of prior injuries or bad acts is permissible for the limited purpose of proving in “Battered Child Syndrome” cases that the child’s current injuries did not occur accidentally.  See Jackson, supra, at 506 (doctor’s BCS testimony did not establish guilt of any individual) and Landeros v. Flood (Cal. 1976) 17 Cal. 3d 399, 409, 551 P. 2d 389, 393, 131 Cal. Rptr. 69, 73 (malpractice action against physician for not properly diagnosing Battered Child Syndrome).  However, in the instant case, the prosecution argued that Destiny was a victim of SBS, and not the repeated, long-term physical abuse that is characteristic of “Battered Child Syndrome.”

While the prosecution contended that the defendants deliberately abused Destiny, the defense provided evidence, inter alia, that Destiny died of pneumothorax (RT 1313 L. 13-14; RT 1344 L. 11-17; RT 1839 L. 17-24), hemophilus influenza pneumonia (RT 1808 L. 6-1812 L. 14) or pneumococcal meningitis, exacerbated by a weakened immune system (RT 1810 L. 24-25 (“jeopardized immune system because a child in one year does not get five [occurrences of] otitis media”)) and/or abuse by Billy Jacobo III (RT 1098 L. 20-1099 L. 8).  Unfortunately, the defendants’ contentions were overwhelmed by Carissa’s corruptly revised autopsy report, which enabled the prosecution to convince the jury of Ms. Vildosola’s guilt without having to prove beyond a reasonable doubt that the defendants killed either Carissa or Destiny.  Although the prosecution did not even prove by a preponderance of the evidence that Ms. Vildosola injured Carissa or Destiny, the inclusion of Carissa’s fallacious 1996 autopsy so poisoned the jury that the defense faced an insurmountable wall.  See McGuire, supra, at 754 (her appearance in a trial for the “grisly murder of an innocent baby implicates highly charged emotions.”).  The impact of the information about Carissa, albeit highly inaccurate, was so prejudicial that it determined the outcome of the trial.

Moreover, the prosecution failed to provide evidence that Ms. Vildosola caused any harm to Destiny, and there was no history of abuse.  There were no witnesses to any acts of physical or sexual abuse by Ms. Vildosola, nor was there any salient circumstantial evidence.  This lack of evidence distinguishes the instant case from the vast preponderance of child murder convictions, such as United States v. Lewis (9th Cir. 1987) 837 F. 2d 415, 418-419, cert. den. (Lewis v. United States (1988) 488 U.S. 923, 109 S. Ct. 304, 102 L. Ed. 2d 323).  In Lewis, prior bad acts evidence was admitted in the form of the testimony of two maintenance workers who said that they saw the defendant severely punishing his stepson six weeks before the child’s death.  See also, e.g., Mills, supra, at 903-904 (several witnesses testified seeing stepfather on many occasions shouting obscenities at deceased child and slapping, spanking, striking, poking, and kicking her on head, neck, back, tailbone, eyes, and face; child hospitalized briefly 3 months before death with fractured tibia, bruised and swollen forehead); People v. Evers (CA 4th Cal. 1992) 10 Cal. App. 4th 588, 12 Cal. Rptr. 2d 637 (2-year-old dead child hospitalized when 6 months old for burns; sister hospitalized at 6 weeks of age for SBS; father admitted being home alone with both infants), rev. den. (1993 Cal. Lexis 370); Landeros, supra, at 405-406 (baby “severely beaten” on “repeated occasions” and hospitalized twice for tibial, fibular, and skull fractures; “bruises over her entire back”; ocular trauma; “severe bites on her face”; and “second and third degree burns”); Patricia O. v. Sup. Ct. (CA 2nd Cal. 1999) 69 Cal. App. 4th 933, 936, 81 Cal. Rptr. 2d 662, 664 (reported history of broken arm six months prior to death); Albritton, supra, at 653 (to explain broken rib, father admitted shaking baby, and mother related incidents when crying stopped after father was alone with baby); Commonwealth v. Collins (CA MA 1989) 26 Mass. App. Ct. 1021, 1021-1022, 533 N.E. 2d 214, 215 (father admitted shaking 14-week old baby immediately before death “cuz he wouldn’t stop crying”; infant, whose injuries were first noted 8 days before death during brief hospitalization, was “battered with multiple injuries,” including fractures of both right and left humerus; broken left tibia; bruises on forehead, spine, and buttocks; retinal hemorrhages; abraded anal skin); State v. Qualls, supra, 130 N.C. App. at 4-9, 502 S.E. 2d at 34-35 (2-month-old infant, home alone with father, was repeatedly taken to doctor and hospitalized once prior to death, and had history of multiple skull fractures).  Cf. People v. Phillips (CA 1st Cal. 1981) 122 Cal. App. 3d 69, 79, 175 Cal. Rptr. 703, 709 (repeated hospitalizations of child indicated Munchausen’s Syndrome by proxy), reh’g & rev. den. (1981).

In Ms. Vildosola’s trial, bad acts evidence was admitted in the forms of medical testimony about Destiny’s healed lesions and Carissa’s altered autopsy, but there was no direct evidence that Ms. Vildosola ever injured Carissa or Destiny, and the prosecution failed to consider whether other parties, such as Billy Jacobo III, Anthony, or Esther Jacobo, may have caused any or all of the purported physical harm.  Yet several witnesses observed Billy III tossing Destiny into the air, and hearing Destiny drop to the ground on at least one occasion (RT 1626 L. 13-27 (“Destiny fell.”); RT 1628 L. 13-18 (“[Little Billy] told me that she was bleeding … it was the bottom of her chin.”); RT 1017 L. 14-16 & 1018 L. 6-7 (Little Billy and Destiny were playing alone together when she fell on or about November 24, 1995)).

The unproven characterization of Ms. Vildosola as a child abuser through the admission of Carissa’s renovated autopsy report maximized the prejudice flowing from irrelevant evidence.  See Dudley v. Duckworth (7th Cir. 1988) 854 F. 2d 967 (habeas corpus relief granted where prejudicial effect of evidence so outweighed probative value that result was denial of fundamental fairness) and Osborne v. Wainwright (11th Cir. 1983) 720 F. 2d 1237 (rev’g and remanding a denial of habeas corpus petition because prejudicial evidence might amount to denial of fundamental fairness).  Because neither Carissa nor Destiny had any history of abuse, and died under markedly different conditions nearly five years apart, the inflammatory evidence about Carissa’s death was irrelevant, and its admission denied fundamental fairness to Ms. Vildosola.

The trial court not only admitted highly prejudicial evidence, but instructed the jury to use that evidence improperly.  See § XV.B., infra (Abuse of Discretion:  Issuing Vague and Incomplete Jury Instructions).  Aspen Skiing Co. v. Aspen Highlands Skiing Corp. (1985) 472 U.S. 585, 604, 105 S. Ct. 2847, 86 L. Ed. 2d 467 (appellate review considers whether jury acted in accordance with its instructions); Calderon v. Coleman (1998) 525 U.S. 141, 145, 119 S. Ct. 500, 503, 142 L. Ed. 2d 521 (prejudicial jury instruction subject to harmless error analysis).  For example, subsections 250, 250.1, and 250.2 of the instructions are erroneous in that they permit the jury to make a direct determination of guilt by concluding by a preponderance of the evidence that the defendant committed prior bad acts.  The rejection of such circumstantial evidence in criminal proceedings has become “so deeply imbedded in our jurisprudence as to assume almost constitutional proportions.”  Fed.R.Evid. 404(a) (advisory committee’s note).

Whenever prior bad act evidence is admitted, the jury must be given a qualifying instruction, restricting the evidence to its intended purpose.  See United States v. Green (9th Cir. 1981) 648 F. 2d 587, 593 (per curiam) (reversal required where trial judge failed to provide limiting instruction following admission of bad act evidence); cf. Butcher v. Marquez (9th Cir. 1985) 758 F. 2d 373, 378 (no due process violation where instructions limited use of evidence to finding intent) and United States v. McCown (9th Cir. 1983) 711 F. 2d 1441, 1454 (no violation of due process when trial judge offered limiting instruction after admitting prior bad acts evidence, and where prejudice was minimal).  In Ms. Vildosola’s trial, extremely prejudicial evidence was admitted with insufficient limiting and qualifying instructions; and the permitted instructions were too vague to be properly applied by the jury.  See § XV.B., infra.

The defense attorneys failed to prevent the admission of highly prejudicial information, including the evidence about Carissa.  They also acted negligently during the Instruction Phase of the trial by, inter alia, submitting unacceptable instructions, failing to argue competently for instructions beneficial to the defendants, and neglecting to argue adequately against instructions favorable to the prosecution.  Such negligence amounts to ineffective assistance of counsel, in contravention of Cal. Const. Art. I § 15.  Crotts v. Smith (9th Cir. 1995) 73 F. 3d 861 (aff’g habeas corpus relief based on ineffective assistance, where counsel failed to object to highly prejudicial testimony); In re Jones (Cal. 1996) 13 Cal. 4th 552, 917 P. 2d 1175, 54 Cal. Rptr. 2d 52 (counsel incompetent in failing to seek exclusion of unduly prejudicial evidence, and in not thoroughly investigating and preparing prior to murder trial); In re Gay (Cal. 1998) 19 Cal. 4th 771, 793-794, 968 P. 2d 476, 488, 80 Cal. Rptr. 2d 765 (habeas corpus granted where counsel was ineffective in failing to seek exclusion of highly prejudicial prior bad acts during murder trial); United States v. Recio (9th Cir. 2000) 226 F. 3d 1087, 1090-1091 (failure of counsel to request new trial was prejudicial and constituted ineffective assistance).

The faulty instructions, coupled with the admittance of prejudicial evidence, “so infected the entire trial that the resulting conviction violate[d] due process.”  Cupp v. Naughten (1973) 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (in case where defendant did not testify, presumption of truthfulness instruction not unconstitutional when jury charged twice on presumption of innocence).  This error cannot be considered harmless beyond a reasonable doubt.  See Chapman v. California (1967) 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (burden on beneficiary of wrongly admitted evidence to prove no injury).  Furthermore, the evidence of Ms. Vildosola’s guilt was far from overwhelming.  Dudley v. Duckworth, supra, at 972 (error not harmless when evidence of petitioner’s guilt is “impressive but not overwhelming”).  Because the court committed reversible error in admitting Carissa’s altered autopsy findings, Ms. Vildosola’s conviction should be overturned.




Deputy Coroner James Ribe was unqualified to diagnose Shaken Baby Syndrome.  He was not certified in pediatrics, pediatric pathology, neuropathology, or hematology (RT 1330 L. 5-24).  He was not a member of the panel of experts approved by the superior court for appointment to review child deaths.  What’s more, he admitted to having performed about a dozen autopsies of infants under two years of age in his entire career (CT 148 L. 10-13), an astounding six of which he claimed to have been SBS cases (RT 1329 L. 18-27).

In Destiny’s case, if not all of Ribe’s SBS autopsies, the child was referred to the coroner before a death certificate was issued, based on a tentative diagnosis that child abuse was the cause of death.  Ribe then customized his autopsy findings to fit the errant child abuse allegations, ignoring alternative explanations for Destiny’s death.  The neuropathologist, Hideo Henry Itabashi, M.D., asked Ribe to rule out SBS and other causes of death (e.g., RT 2217 L. 27-28).  Ribe ignored Itabashi’s advice, perfunctorily concluding that Destiny was an SBS baby (e.g., RT 2217 L. 13-14).

Most jurisdictions identify SBS using child abuse experts or teams of specialists.  People v. Culuko (CA 4th Cal. 2000) 78 Cal. App. 4th 307, 320, 92 Cal. Rptr. 2d 789, 798 (expert pediatric pathologist used to examine evidence for child abuse), rev. den. (2000 Cal. Lexis 4503); Bryant-Bruce v. Vanderbilt Univ. (MD TN 1997) 974 F. Supp. 1127, 1130 (child’s hemorrhages examined by pediatrician, pediatric ophthalmologist, neurosurgeon, pediatric hematologist, neuroradiologist, and pediatric internist before SBS diagnosed); United States v. Mayes (9th Cir. 1982) 670 F. 2d 126, 128 (medical expert who devoted twenty years of practice to child abuse cases opined that child’s death was non-accidental); State v. Morrison (CA MN 1989) 437 N.W. 2d 422, 425 (pediatric forensic pathologist specializing in child abuse used to diagnose battered child syndrome); In re James B. (CA 4th Cal. 1985) 166 Cal. App. 3d 934, 938, 212 Cal. Rptr. 778, 780 (medical report by child abuse committee and supplemental social study); State v. Harris (CA 2nd OH 1999) 1999 Ohio App. Lexis 306 (pediatrician on Child Abuse Team was recognized expert on child abuse, and had observed many cases of child abuse); Sargent, supra, at 411-412 (pediatrician with medical expertise in child abuse opined victim died of SBS; defense expert was ER physician who “did not have expertise in child abuse”); Franklin v. Henry (9th Cir. 1997) 122 F. 3d 1270, 1271 (prosecution introduced medical and police experts on child abuse); Lajoie v. Thompson (9th Cir. 2000) 217 F. 3d 663, 674 (Ferguson, C.J., dissenting) (medical expert in child abuse testified that evidence was consistent with repetitive sexual injuries); State v. Koon (CA 2nd LA 1999) 730 So. 2d 503, 508 (pediatric forensic radiologist used to confirm presence of healing fractures); State v. Jackson (CA 5th LA 1999) 733 So. 2d 657, 659 (pediatric forensic medicine expert determined whether child’s injuries were consistent with abuse); Cutro, supra, at 111 (pediatric forensic pathologist with 23 years of experience assessed whether child died of non-accidental trauma); State v. Jurgens (CA MN 1988) 424 N.W. 2d 546, 549 (state presented medical testimony from expert in pediatric forensic pathology re whether injuries were consistent with battered child syndrome); People v. Benway (CA 4th Cal. 1985) 164 Cal. App. 3d 505, 508, 210 Cal. Rptr. 530, 531 (expert on child abuse testified that injuries appeared inflicted and baby was probably battered child), rev. den.; State v. Riley (MT 1982) 199 Mont. 413, 418, 649 P. 2d 1273, 1275 (expert in pediatrics and forensic pathology testified that child with sickle cell anemia probably died from blood loss due to beatings); United States v. Tsinnijinnie (9th Cir. 1996) 91 F. 3d 1285, 1287 (conviction based on evidence of prior physical abuse of victim and testimony from expert witness on child abuse).  Cf. People v. Mincey (Cal. 1992) 2 Cal. 4th 408, 431, 827 P. 2d 388, 401, 6 Cal. Rptr. 2d 822 (child abuse expert distinguished child abuse from punishment and torture), reh’g den. (2 Cal. 4th 758d), cert. den. (Mincey v. California (1992) 506 U.S. 1014, 113 S. Ct. 637, 121 L. Ed. 2d 567) and People v. Bledsoe (Cal. 1984) 36 Cal. 3d 236, 248-249, 681 P. 2d 291, 299, 203 Cal. Rptr. 450 (contending that application of Frye test to “rape trauma syndrome” is analogous to its use with “battered child syndrome”).  Dr. Ribe was a pathologist who had limited experience with child autopsies, and he was far less qualified to determine whether Destiny succumbed to SBS than any of the physicians in the aforecited cases.

Not only is Deputy Coroner Ribe inexperienced and unqualified to diagnose SBS, but he has changed his testimony in at least three murder cases.  Krikorian, Greg (November 25, 1997) D.A. Gets Extension on Records; Courts:  Judge Gives Office Three More Weeks to Find Data on Deputy Coroner Whose Credibility is Questioned, Los Angeles Times (hereinafter “LAT”), Metro Section, 8.  By way of example, Deputy Medical Examiner Ribe changed his opinion about the time of a baby’s (Lance Helms) death in a North Hollywood case, leading to the conviction of the baby’s father (David Helms) for felonious child abuse, assault causing death, and second-degree murder.  Ribe’s opinion, later retracted, was pivotal in the conviction of the father’s girlfriend (Eve Wingfield), who received a ten-year sentence for child endangerment.  Subsequent to Ribe’s change of opinion, Wingfield was released from prison, after wrongly serving two years.  Hiestand, Jesse (August 15, 1998) Dad Guilty in Killing of 2-year-old; Courts:  His Girlfriend Was Originally Convicted in the Case Before the Medical Examiner Reinterpreted Evidence, Orange County Register, News Section, A04.

At the Helms trial, Ribe admitted that his conclusion at the time of Wingfield’s trial was “just ridiculous.”  Blankstein, Andrew (September 26, 1998) Helms Sentenced to 21 Years to Life; Courts:  Hollywood Man Convicted in Beating Death of his Son, 2 1/2, Remained Unmoved by Emotional Comments Read by his Mother, Who Showed a Video of the Little Boy, Los Angeles Times, Metro Section, Part B, 1.  During the trial, Ribe’s altered opinion was described as “frightening,” and he was accused of “tailoring his scientific opinion to coincide with the facts.”  Blankstein, Andrew (August 15, 1998) Father Convicted of Son’s Fatal Beating; Court:  David Helms is Found Guilty of Abuse Originally Blamed on his Girlfriend, Los Angeles Times, Part A, 1.  If the mother (Gail Helms) of the convicted father had not kept a diary of his abuse and fought for three years for her own son’s prosecution, it is doubtful that Ribe would have changed his opinion.  See, e.g., Stewart, Jill (September 18, 1997) Daddy Dearest; How the LAPD and the D.A.’s Office Botched the City’s Most Infamous Child-Abuse Murder Case, Ignoring Evidence That Pointed to Lance Helms’s Father as the Real Killer, New Times Los Angeles, Features Section; Saunders, Debra J. (January 24, 1996) Who Killed Lance Helms?, San Francisco Chronicle, Editorial Section, A17; and Blankstein, Andrew (August 13, 1998) Tot’s Fatal Beating Case Goes to Jury; Crime:  Attorney for Father Accused in Boy’s Slaying Puts Blame on Girlfriend Previously Imprisoned, Then Freed, in the Death, Los Angeles Times, Valley Edition, Metro Section, Part B, 4.

One of Ribe’s excuses for his diagnostic mistake in the Helms case was that it was based on “vague and incorrect” information from police.  Blankstein, Andrew (September 13, 1997) Woman Sent to Prison in Killing Ordered Freed; Courts:  Judge Says Police Reinvestigation Shows the 24-Year-Old May Be Innocent in North Hollywood Beating Death of 2-Year-Old, Los Angeles Times, Metro Section, Part B, 1.  If the deputy coroner is so critically dependent upon police when rendering his medical opinions, then it is likely that either he lacks medical competency or he customizes his findings to conform with police theories.  In either case, Ribe’s opinions lack credibility.

Another rationalization given by Ribe for the erroneousness of his original autopsy findings was that he “had zero time to prepare.”  Blankstein, Andrew (August 6, 1998) Medical Official Revises Views on Toddler’s Death; Trial:  Lance Helms Died Almost Immediately After Beating, Examiner Tells Jury.  Testimony Bolsters Case Against Boy’s Father, Los Angeles Times, Metro Section, Part B, 1.  The Helms baby died on or about April 6, 1995, while Destiny Jacobo died on December 6, 1995.  If Ribe had “zero time” to examine Lance Helms, then he may have had even less time to determine the cause of Destiny’s death.  Under such pressure, Ribe rushed to a conclusion to the prosecutors’ liking, and based on hearsay evidence from the police--the new catch-all diagnosis for infant fatalities where child abuse is alleged--Shaken Baby Syndrome.

According to Fed. R. Evid. 702, which governs the admission of expert testimony, a “qualified” expert may give an opinion if and only if the expert’s “specialized” knowledge would help the jury to understand the evidence or decide a fact at issue.  United States v. Whitted (8th Cir. 1993) 11 F. 3d 782, 785 (doctor unqualified to testify that sexual abuse occurred), citing United States v. Arenal (8th Cir. 1985) 768 F. 2d 263, 269.  Under Fed. R. Evid. 704, opinions that are “phrased in terms of inadequately explored legal criteria” or that “merely tell the jury what result to reach” are not helpful to the jury, and are thus inadmissible under Rule 702.  Whitted, supra, at 785.  Consequently, most states prohibit expert opinion testimony that a child has been sexually abused.  E.g., Ibid. (South Dakota), Johnson v. State (Ark. 1987) 292 Ark. 632, 732 S.W. 2d 817, 821; Commonwealth v. Mendrala (CA MA 1985) 20 Mass. App. Ct. 398, 480 N.E. 2d 1039, 1042; State v. Saldana (Minn. 1982) 324 N.W. 2d 227, 231; Stephens v. State (Wyo. 1989) 774 P. 2d 60, 66-67; Goodson v. State (Miss. 1990) 566 So. 2d 1142, 1146 (citing other states’ opinions banning expert testimony concluding that a child was sexually abused).

Most courts stringently limit the testimony of medical witnesses to areas within their scope of expertise.  Robins v. State (Nev. 1990) 106 Nev. 611, 620-621, 793 P. 2d 558 (emergency medicine specialist who treated baby held unqualified in forensic pathology); Commonwealth v. Cadwell (MA 1978) 374 Mass. 308, 315, 372 N.E. 2d 246, 251 (because ER resident lacked experience in pathology, he was unfit to judge cause of death).  Testimony beyond the range of a physician’s specialized training is generally inadmissible.  State v. Morris (La. 1980) 397 So. 2d 1237, 1248 (discussing whether to allow testimony from two experts in child abuse).  Even testimony within the sphere of a doctor’s expertise is often assessed for its prejudicial impact and probative value.  Robins, supra, at 621 (admissibility of opinion re battered child syndrome assessed after weighing credentials of expert who had published two research papers on child abuse).  Aside from a global stipulation to Dr. Ribe’s expertise as a pathologist, no portion of Dr. Ribe’s testimony was assessed in terms of requisite expertise, potential prejudice, or relative probative value.

Because he lacks expertise in SBS, child abuse, or even pediatric pathology, Dr. Ribe’s testimony lacks reliability and relevance, and is therefore inadmissible under Fed. R. Evid. 702.  Dr. Ribe’s autopsy report and oral opinion testimony could have been rendered sufficiently valid and credible if the prosecution had introduced a supporting expert in SBS, child abuse, pediatric pathology, pediatric forensics, or any of several subspecialties of pediatrics or forensic pathology, but no such experts were presented.  Furthermore, because he is a medical doctor, Dr. Ribe’s testimony that Destiny was a victim of SBS had the import of a closing argument to the jury.  People v. Luna (CA 5th Cal. 1988) 204 Cal. App. 3d 726, 736, 250 Cal. Rptr. 878, 883 (expert testimony confined to defining “child abuse accommodation syndrome” as a class--diagnosis inadmissible), quoting People v. Roscoe (CA 5th Cal. 1985) 168 Cal. App. 3d 1093, 1100, 215 Cal. Rptr. 45, 50 (expert testimony re child molestation limited to discussing victims as a class, not diagnosing child as molestation victim) and Bledsoe, supra, at 248 (expert could describe “rape trauma syndrome,” but could not testify that victim suffered from “rape trauma syndrome”).

To avoid jury confusion, Dr. Ribe’s testimony should have been explicitly segregated into:  (1) describing SBS, and (2) presenting autopsy findings.  See Luna, supra, at 883-884.  A diagnosis of SBS, if any, should have been left to the trier of facts to decide.  People v. Bowker (CA 4th Cal. 1988) 203 Cal. App. 3d 385, 394, 249 Cal. Rptr. 886, 892 (expert testimony unneeded where there is no danger of jury confusion), reh’g den., rev. den. (1988 Cal. Lexis 614).  For these reasons, Dr. Ribe’s testimony should be excluded, or at least suspended pending analysis of Destiny’s [and Carissa’s] medical information by medical experts in SBS or child abuse.




Among the evidence which was not available at trial, the most important was a critical portion of Destiny’s brain.  This neuropathological material was removed from Destiny’s brain by Dr. James Ribe and purportedly placed in a jar (see AR 7), but never made available to the defendants and not presented at trial (RT 1409 L. 1-19).  Nevertheless, testimony concerning the artifact was repeatedly permitted during the trial.  That piece of brain disappeared because it would have exonerated the defendants.

Specifically, the occipital lobe lesion that supposedly contained the contre-coup contusion was excised and excluded from the autopsy specimens submitted at trial.  Yet the contre-coup wound, according to Ribe, was the only injury that was life-threatening (cf. CT 174 L. 17-175 L. 6).  The contre-coup artifact—if it had been presented at trial, and if it contained any anomalous lesion—would probably have revealed that Destiny in fact died from a disease or accident, such as meningitis or an aneurysm.

The ultimate goal of our system of administering criminal justice is the ascertainment of truth.  Evans v. Superior Ct. (Cal. 1974) 11 Cal. 3d 617, 622, 522 P. 2d 681, 684, 114 Cal. Rptr. 121 (en banc) (defendant entitled to lineup identification).  The search for truth is not served but hindered by destruction or concealment of relevant or material evidence.  Olson v. Superior Ct. (CA 2nd Cal. 1984) 157 Cal. App. 3d 780, 204 Cal. Rptr. 217, 224.  Loss or destruction of relevant evidence by the government not only raises general questions of fundamental fairness in a criminal trial, but also may deny to the defendant the right to compulsory process.  See People v. Moore (Cal. 1983) 34 Cal. 3d 215, 666 P. 2d 419, 193 Cal. Rptr. 404 (judgment revoking probation based on positive drug test rev’d because urinal sample neither preserved nor disclosed); People v. Roehler (CA 2nd Cal. 1985) 167 Cal. App. 3d 353, 383, 213 Cal. Rptr. 353, 373 (reversible error occurred where state failed to preserve two bodies and concealed second autopsy, offending notions of fair play, and denying to defendant the opportunity to prepare better defense), cert. den. (Roehler v. California (1985) 474 U.S. 1021, 106 S. Ct. 571, 88 L. Ed. 2d 556).

The burden of establishing whether evidence is relevant or “material” is met when the profferor shows “that there is a reasonable possibility” that the evidence, if preserved, would have constituted “favorable evidence on the issue of guilt or innocence.”  People v. Hitch (Cal. 1974) 12 Cal. 3d 641, 649, 527 P. 2d 361, 367, 117 Cal. Rptr. 9 (en banc) (prosecution ordered to disclose results of breathalyzer test).  See also Kyles v. Whitley (1995) 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (on federal habeas corpus review, defendant convicted of murder entitled to new trial, because of prosecution’s failure to disclose material evidence favorable to accused); Crawford v. United States (1908) 212 U.S. 183, 202, 29 S. Ct. 260, 267, 53 L. Ed. 465 (harm presumed when material evidence excluded from jury, constituting reversible error, unless clearly shown that there was no prejudice to complaining party); People v. Ruthford (Cal. 1975) 14 Cal. 3d 399, 405, 534 P. 2d 1341, 1345, 121 Cal. Rptr. 261 (prosecutor’s tactical choice to suppress favorable evidence denied fair trial to defendant, as guaranteed by Due Process Clause of Fourteenth Amendment); Thorne v. Dept. of Public Safety (Alas. 1989) 774 P. 2d 1326, 1331 (due process obligation of law enforcement agencies to disclose evidence favorable to defense, and excuses for its destruction should be examined critically).

Deliberate destruction, loss, or concealment of evidence is subject to criminal sanctions.  Cal. Penal C. § 135 (Destroying evidence) states:  “Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.”  Sanctions must be imposed even when the destruction or loss is intentional but nonmalicious (People v. Chapman (CA 3rd Cal. 1975) 47 Cal. App. 3d 597, 607, 121 Cal. Rptr. 315, 322 (sanctions limited to material evidence with prospective application at trial), rev. den., citing Hitch, supra, at 652-655), unless the prosecution can show that the responsible governmental entities have established, enforced, and attempted in good faith to adhere to appropriate procedures.  More concisely, the prosecution must establish that reasonable precautions were taken to preserve the evidence.  People v. Newsome (CA 1st Cal. 1982) 136 Cal. App. 3d 992, 1000-1001, 186 Cal. Rptr. 676, 680 (sperm sample admissible despite delay in testing procedure).

Sanctions can also be imposed for negligent loss or unintentional destruction of material evidence, even when the destruction is done in good faith.  People v. Bradley (CA 3rd Cal. 1984) 159 Cal. App. 3d 399, 404, 205 Cal. Rptr. 485, 488 (police under no duty to collect blood-stained articles at crime scene, even if possibly exonerating defendant), h’g den.; People v. Alfieri (CA 2nd Cal. 1979) 95 Cal. App. 3d 533, 546, 157 Cal. Rptr. 304 (good faith unintentional destruction requires sanctioning unless responsible agency acted in good faith to adhere to rigorous and systematic preservational procedures), reh’g & rev. den. (1979).  The burden of preservation also applies to physical evidence relevant to the determination of preliminary facts requisite to the admissibility of critically incriminating evidence.  People v. Swearingen (CA 2nd Cal. 1978) 84 Cal. App. 3d 570, 574, 148 Cal. Rptr. 755 (sanction for failure to preserve evidence in good faith was exclusion, not dismissal of criminal charge), rev. den.  Contra Arizona v. Youngblood (1988) 488 U.S. 51, 55, 109 S. Ct. 333, 336, 102 L. Ed. 2d 281 (suppression of material evidence favorable to accused violates due process, irrespective of good faith or bad faith of prosecution).

Cal. Evid. C. § 413 (Party’s failure to explain or deny evidence) reads:  “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.”  The missing brain material would have proven that Destiny did not die because of SBS or blunt force trauma (RT 1801 L. 1-6).  Yet neither Dr. Ribe, the defense counsel, nor any other witness explained why the occipital lobe artifact was excluded from evidence.  Such an oversight constitutes reversible error.




Ms. Vildosola’s co-defendant, William Jacobo, Jr., won release from prison after being convicted on the same charges for which Ms. Vildosola was sentenced.  In winning his appeal, Mr. Jacobo successfully pled that he received ineffective assistance from Attorney Raymond Santana.  Incredibly, Ms. Vildosola’s lawyer, Guy Edward O’Brien, Esq., was even less effective than Santana, and a Marsden motion to replace O’Brien was summarily denied.  See § XIII, infra.  The appellate attorneys, Michael A. Brush and Juliana Drous, were also manifestly ineffective.  As a result, Ms. Vildosola remains incarcerated, a victim of ineffective legal representation, as the following arguments will show.

Under the Sixth Amendment of the U.S. Constitution and the California Constitution, Article I § 15 (2000) (Safeguards in Criminal Prosecutions), a criminal defendant has a right to due process, including “assistance of counsel for the defendant’s defense.”  Frazer v. United States (9th Cir. 1994) 18 F. 3d 778, 785 (Sixth Amendment defect may warrant presumption of prejudice without inquiry into actual conduct of trial).  See also Williams v. Taylor (2000) 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (habeas corpus granted because petitioner’s constitutional right to effective assistance of counsel violated, and state supreme court analyzed ineffective assistance claim using wrong standard); Darden v. Wainwright (1986) 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (criminal defendant was denied effective assistance of counsel if (1) counsel’s representation fell below objective standard of reasonableness, and (2) there is reasonable probability that, but for counsel’s unprofessional errors, result of proceeding would have been different); Walker v. Johnston (1941) 312 U.S. 275, 61 S. Ct. 574 (hearing with testimony required to resolve petition for writ of habeas corpus).

The ultimate purpose of the right to effective assistance of counsel is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result.  People v. Davis (Cal. 1995) 10 Cal. 4th 463, 503, 896 P. 2d 119, 138-139, 41 Cal. Rptr. 2d 826 (assistance not ineffective under Sixth Amendment or Due Process Clause where unintroduced evidence would not have affected outcome), reh’g den. (11 Cal. 4th 137a (1995)), cert. den. (Davis v. California (1996) 516 U.S. 1121, 116 S. Ct. 932, 133 L. Ed. 2d 859).  Construed in light of its purpose, the right entitles the defendant not merely to bare assistance but, rather, to effective assistance.  People v. Ledesma (Cal. 1987) 43 Cal. 3d 171, 215, 729 P. 2d 839, 866-867, 233 Cal. Rptr. 404 (habeas corpus granted where defense counsel failed to provide effective assistance), citing People v. Pope (Cal. 1979) 23 Cal. 3d 412, 423-424, 590 P. 2d 859, 865, 152 Cal. Rptr. 732, 2 A.L.R. 4th 1 (conviction cannot be upheld where state furnished “indigent with representation of lower quality than that of a reasonably competent attorney acting as a diligent, conscientious advocate”), reh’g den.

A defendant claiming ineffective assistance of counsel must establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) said representation had a prejudicial impact upon the outcome at trial.  Dubria v. Smith (9th Cir. 2000) 224 F. 3d 995, 1003-1004 (using two-pronged (unreasonableness and prejudice) test for ineffective assistance), cert. den. (Dubria v. Smith (2001) 148 L. Ed. 2d 963), citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 104 S. Ct. 2052, 2064-2065, 80 L. Ed. 2d 674, 687-688 (no Sixth Amendment relief where defense counsel’s performance not unreasonable, defendant suffered insufficient prejudice, and justice rendered not fundamentally unfair or unreliable), reh’g den., 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984).  The two-pronged (performance deficiency and prejudiced outcome) test for ineffectiveness of counsel was first articulated in Strickland, supra, 80 L. Ed. 2d at 684 (investigation limitation reasonable if nonprejudicial).  See also Johnson v. Kemp (SD GA 1985) 615 F. Supp. 355, 364 (habeas corpus granted; petitioner satisfied performance and prejudice prongs of Strickland) and Anderson v. Calderon (9th Cir. 2000) 232 F. 3d 1053, 1086 (for 6th Amendment violation to be found due to ineffective assistance of counsel, prejudicial effect must be shown).

To establish deficiency, a defendant must show that his attorney's performance was unreasonable under prevailing professional standards.  To show prejudice, a defendant must establish a reasonable probability that, but for counsel's unprofessional errors, the result would have been different.  When evaluating a claim of ineffective assistance in a 28 U.S.C. § 2255 motion, the district court should hold an evidentiary hearing unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.  See, e.g., United States v. Picard (9th Cir. 1999) 1999 U.S. App. Lexis 18512 & 31332 (191 F. 3d 462) (conviction for serious bodily injury to 22-month-old who died of battered child syndrome and pneumonia rev’d and remanded because of:  (1) due process difficulties imposed by defendant’s near developmental deficiency, (2) attorneys’ possible failure to investigate, and (3) possible assaults by other individuals).  The instant case is very similar to Picard, especially in that (1) the attorneys did scant investigation; and (2) other individuals, including Billy Jacobo III, Anthony Jacobo, and Esther Jacobo, could have injured Destiny.

In demonstrating that there was a prejudicial impact, the defendant must show more than that counsel’s errors had some conceivable effect on the outcome of the proceeding.  People v. Bradford (Cal. 1997) 14 Cal. 4th 1005, 1051, 929 P. 2d 544, 573, 60 Cal. Rptr. 2d 225 (no prejudice where evidence of guilt is “overwhelming”), reh’g den. (1997 Cal. Lexis 1438), cert. den. (Bradford v. California (1997) 522 U.S. 953, 118 S. Ct. 377, 139 L. Ed. 2d 293).  Rather, the defendant must show that there is a reasonable probability--i.e., a probability sufficient to undermine confidence in the outcome--that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  Williams v. Taylor, supra, 529 U.S. at 426, 120 S. Ct. at 1520 (O’Connor, J., concurring) (habeas corpus relief granted where state supreme court analyzed ineffective assistance claim using incorrect standard).  When analyzing the contentions, the court begins with a strong presumption that counsel’s actions fell within the wide range of reasonable professional assistance, and evaluates the conduct from counsel’s perspective at the time of the asserted acts or omissions.  Lockhart v. Fretwell (1992) 506 U.S. 364, 378-379, 113 S. Ct. 838, 847, 122 L. Ed. 2d 180 (Stevens, J., dissenting) (no “prejudice” under ineffective assistance of counsel test where counsel failed to make objection but decision was subsequently overruled on other grounds); People v. Davenport (Cal. 1995) 11 Cal. 4th 1171, 1235-1236, 906 P. 2d 1068, 1107-1108, 47 Cal. Rptr. 2d 800 (none of defendant’s litany of allegedly ineffective conduct by counsel overcomes presumption of reasonableness), reh’g den. (12 Cal. 4th 825g (1996)), cert. den. (Davenport v. California (1996) 519 U.S. 951, 117 S. Ct. 364, 136 L. Ed. 2d 255), quoting People v. Freeman (Cal. 1994) 8 Cal. 4th 450, 513, 882 P. 2d 249, 275-276, 34 Cal. Rptr. 2d 558 (strong presumption that counsel’s tactical decision-making falls within permissible range of competent representation), reh’g den. (1995 Cal. Lexis 124), cert. den. (Freeman v. California (1995) 515 U.S. 1149, 115 S. Ct. 2592, 132 L. Ed. 2d 839).

Determination of the adequacy or reasonableness of an attorney’s performance is a mixed question of law and fact, entitled to de novo review.  McKenzie v. Pickett (ND Cal. 1995) 1995 U.S. Dist. Lexis 10700; Porter v. Gramley (7th Cir. 1997) 122 F. 3d 351, 352 (all mixed questions in habeas corpus petitions entitled to de novo review); Moore v. Johnson (5th Cir. 1999) 194 F. 3d 586, 604 (deficient pretrial investigation of alibi defense), citing Horton v. Zant (11th Cir. 1992) 941 F. 2d 1449, 1462 (rev’g denial of habeas corpus on 3 grounds, including inadequate investigation of mitigating evidence).  See also Groseclose v. Bell (6th Cir. 1997) 130 F. 3d 1161, 1164 (ineffective assistance of counsel claim is mixed question of law and fact, entitled to de novo review in both state and federal court); Driscoll v. Delo (8th Cir. 1995) 71 F. 3d 701, 706 (whether Sixth Amendment rights violated by ineffective assistance of counsel subject to de novo review); Tejeda v. Dubois (1st Cir. 1998) 142 F. 3d 18, 22 (de novo review by federal court of state court’s ineffectiveness of counsel determination); Albanese v. McGinnis (ND IL 1993) 823 F. Supp. 521, 537 n. 12 (reasonableness is a mixed question of law and fact), citing Strickland, supra, at 698 (performance and prejudice components of ineffectiveness inquiry are both mixed questions of law and fact); Wright v. West (1992) 505 U.S. 277, 289, 112 S. Ct. 2482, 2488-2489, 120 L. Ed. 2d 225 (mixed constitutional questions subject to plenary federal review on habeas), citing Miller v. Fenton (1985) 474 U.S. 104, 112-114, 106 S. Ct. 445, 451-452, 88 L. Ed. 2d 405 (discussing differences between questions of law and fact); Box v. Petsock (MD PA 1987) 697 F. Supp. 821, 825 (whether counsel was ineffective in failing to make reasonable investigations is mixed question of law and fact); Williams v. Calderon (CD Cal. 1998) 41 F. Supp. 2d 1043, 1048 (question of fact as to what trial counsel did to uncover potentially mitigating evidence); Thunder v. United States (CD S.D. 1994) 873 F. Supp. 1362, 1384 (whether investigation was reasonable under the circumstances is question of fact).

Ms. Vildosola received ineffective assistance of counsel.  People v. Mayfield (Cal. 1993) 5 Cal. 4th 142, 219, 852 P. 2d 331, 372, 19 Cal. Rptr. 2d 836 (Kennard, J., dissenting) (habeas corpus granted because of inadequate representation by defense counsel), cert. den. (Mayfield v. California (1994) 512 U.S. 1253, 114 S. Ct. 2780, 129 L. Ed. 2d 892).  Her attorney, Guy O’Brien, as well as Raymond Santana, the attorney of her co-defendant (William Jacobo), were negligent in that, inter alia:




The prosecution conspired to predetermine the outcome of Ms. Vildosola’s case, and to cover up glaring deficiencies in the child welfare system of Los Angeles County.

The Department of Children’s Services, in collaboration with the Los Angeles County District Attorney’s Office, conspired, in order to evade liability for Destiny’s death, inter alia:  (1) to conceal evidence of sexual and physical abuse perpetrated against Destiny by Billy Jacobo III; (2) to change the cause of death of Carissa Neria to SBS, so that Carissa’s autopsy could be admitted at trial; (3) to blame Esther Jacobo for some or all of Destiny’s abuse in order to coerce Esther into testifying against Ms. Vildosola (see, e.g., RT 910 L. 8-10); (4) to hide evidence of abuse by the Garzas, Destiny’s foster parents; and (5) to conceal evidence of egregious deficiencies and irregularities within the DCS.[2]

Cindy Romero, an attorney at DCS, was the central figure in the conspiracy against Ms. Vildosola and Mr. Jacobo that began shortly after Destiny’s demise.  Because of her position at DCS, Ms. Romero was personally responsible for Destiny’s welfare.  Consequently, Romero was liable for any harm that befell Destiny.  Romero had been grossly derelict in her protective duties prior to Destiny’s death (RT 940, 943, 950-951, 959).  In order to deflect the blame for Destiny’s death from herself and DCS, Romero needed to fabricate a case against Destiny’s caretakers.  Ms. Vildosola and Mr. Jacobo were ideal patsies, because they lived out of wedlock on a meager income and were not well-educated.  Esther Jacobo would also be easy to manipulate, considering her antipathy toward Ms. Vildosola (RT 904 L. 1 (“Patricia hates you with a patient [sic], right?”) & 6-7 (“‘[Patricia] could burn in hell as far as I am concerned’”)) and her advanced age.

One of Ms. Romero’s most blatantly conspiratorial tactics was to attribute statements which incriminated the defendants to Esther Jacobo, who was almost eighty years old at the time of the trial.  These purported statements were ostensibly made in December of 1995 or January 1996, within a few days or weeks of Destiny’s death.  For example, the day after Destiny died, Romero telephoned the Jacobo home for the very first time, and yelled at a grieving Esther that she was responsible for the baby’s death and should be in jail (RT 910 L. 3-9 & 936 L. 26-28).  During the same conversation, Romero said that Ms. Vildosola had already murdered one baby, so why not this one too? (RT 910 L. 11-12).  Romero also mendaciously claimed that Esther admitted seeing bruises on Destiny on or about Halloween of 1995 (RT 928 L. 8-12), and empty liquor bottles left by Ms. Vildosola lying around the house (RT 929 L. 9-13).

Esther was told that if she testified in conformity with the above statements, she would receive immunity from prosecution.  Yet Esther never made any of these statements.  In all documented interviews, Esther testified that she never saw any abuse of Destiny (RT 1184-1186, 1189-1191).  In order to remember her telephone conversation with Esther, Romero referred to her notes.  Damningly, those notes, purportedly taken contemporaneously with her 1995 conversations, were dated from 1997, near the time of the trial (RT 953 L. 15-20).  Obviously, Romero fabricated the notes to divert guilt from her to Esther and the defendants.

Secondly, Prosecutor Lewis conspired with the Office of the Coroner of Los Angeles and/or San Bernardino County to have Carissa Neria’s autopsy file reopened and refashioned, so that the circumstances of Carissa’s death could be made to appear similar to Destiny’s, thereby to ensure conviction of Ms. Vildosola.

Thirdly, Prosecutor Lewis conspired with witnesses and/or defense attorney(s) to keep many exculpatory witnesses from appearing in court.  Lewis:  (a) aided and abetted Dr. Boggs in his disappearance during trial; (b) gave dishonest explanations for Dr. Reda’s nonappearance; and (c) refused to call at least ten eyewitnesses to the events surrounding the deaths of Carissa and Destiny, including, inter alia, Ernie Rodriguez, Henry Diaz, John Estrella, Eric Klimek, Michael Jacobo, Jimmy Sanchez, Ray Saucedo—each and every one of whom would have engendered reasonable doubt in the minds of the jury.

Before the trial, on or about December 1995 and January of 1996, DCS employees organized a protest against the firing of the two DCS social workers who were responsible for Destiny’s case—caseworker Tricia Higa and her supervisor, Henry Barbosa (see RT 128 L. 23-27 and Hong, Peter Y. & Nazario, Sonia (January 13, 1996) Social Workers Protest Firings, Los Angeles Times, Metro Section, B1 & B8 (more than 300 DCS workers picketed at DCS’ Los Angeles headquarters)).  The terminations of Higa and Barbosa were based upon their alleged negligence in failing to monitor the circumstances of Destiny’s living arrangements.  Ms. Romero was not dismissed, but had plenty of time during and after the protest period to manufacture a defense against her own negligence, and to shift the focus of public and prosecutorial attention to the Jacobos and Ms. Vildosola.

The existence of said conspiracy or conspiracies was known by Attorney Santana, and he admitted to his knowledge in the presence of Mr. William Jacobo, Jr. and Father George, the Roman Catholic Chaplain at the Los Angeles County Jail.  Santana admitted to the conspiracy on another occasion, while conversing with Mary Louise Jacobo (the mother of William Jacobo, Jr.) and Magdalena Robles (an aunt of William Jacobo, Jr.).  Finally, Santana conspicuously failed to appear when Ms. Vildosola’s and William Jacobo’s verdicts were rendered, because of his fear that Mr. Jacobo would expose the conspiracy.

Santana and O’Brien negligently or purposefully failed to bring to light any facts concerning the aforementioned prosecutorial conspiracies.  The defense counsel should have presented the available evidence of conspiracy at trial, so that the trier of fact could have at least assessed the merits of any allegations of conspiracy.  Immunity does not extend to conspiracy by defense counsel and other state officials to secure a defendant’s conviction.  Tower v. Glover (1984) 467 U.S. 914, 922, 104 S. Ct. 2820, 2825, 81 L. Ed. 2d 758 (barristers, public defenders, and defense attorneys liable for intentional misconduct), cited in Robinson v. Volkswagenwerk AG (10th Cir. 1991) 940 F. 2d 1369, 1373 (no absolute immunity for defense counsel who allegedly conspired to fraudulently conceal their true relationship with automobile industry in automobile accident liability case).  Cf. In re Disbarment of Isserman (1953) 345 U.S. 286, 73 S. Ct. 676, 97 L. Ed. 1013 (defense attorneys charged with conspiracy to obstruct trial); Torres v. Prunty (9th Cir. 2000) 223 F. 3d 1103 (habeas corpus relief aff’d; petitioner alleged that defense attorney conspired against him); Sims v. Meyers (ND Cal. 1994) 1994 U.S. Dist. Lexis 11409 (defense counsel conspired to present a false defense to jury, rendering trial fundamentally unfair); State v. Hansen (CA 1st WA 1992) 67 Wn. App. 511, 516, 837 P. 2d 651 (defense attorney conspired against defendant at trial, causing wrongful imprisonment); United States v. Garcia-Machado (5th Cir. 1988) 845 F. 2d 492, 493 (government and defense counsel allegedly conspired to sever co-defendants’ proceedings); Molina v. New York (ED NY 1995) 956 F. Supp. 257, 259 (pro se claim that defense counsel conspired and broke confidentiality); Hill v. Gorman (6th Cir. 1987) 831 F. 2d 294 (civil rights deprivation claim based on alleged conspiracy by defense attorney to deprive claimant of constitutional rights); Hosier v. Baily (9th Cir. 1995) 1995 U.S. App. Lexis 38263, 76 F. 3d 386 (pro se litigant alleged that defense counsel conspired to violate his civil rights during criminal prosecution); United States v. Howe (9th Cir. 1993) 1993 U.S. App. Lexis 30487, 9 F. 3d 1554 (allegations of prosecution and defense counsel conspiracy).

Because conspiratorial acts involving the prosecution, DCS, Boggs, Sheridan, and/or other parties were known by the trial and appellate attorneys, particularly defense attorney Santana, yet information about conspiracy was suppressed, there was reversible error, and Ms. Vildosola is entitled to a new trial or dismissal of all charges.


B.  Investigation WAS Grossly Deficient


The investigative efforts of both defense attorneys, as well as appellate attorneys Brush and Drous, were grossly inadequate.  To cite an example, they did not bother to find that the physician under whose care Destiny died and who first attributed Destiny’s death to battering, Dr. Joseph Dodridge Boggs, Jr., had a suspended medical license during a five-year period that began prior to his involvement with Destiny (Exhibit P2).  Defense counsel also failed to discover or disclose that Boggs had recently been convicted of drunken driving (Exhibit P3), and that Boggs had been sued many times for malpractice (Exhibit P4).  Defense counsel even neglected to subpoena Boggs, or at least to investigate Boggs’ involvement in the egregious mistreatment of Destiny at Santa Marta Hospital—i.e., the pneumothorax caused by Boggs which killed Destiny.  On the other hand, the prosecution knew that it was advantageous, tactically if not ethically, to eschew Boggs.  Ergo, Ms. Lewis made excuses for Boggs’ nonappearance (e.g., RT 1250 L. 22-24; RT 2087 L. 6-13 (“I didn’t mean to promise you a witness in opening statement I wasn’t able to deliver during the trial.” (RT 2087 L. 11-13)); RT 2257 L. 17-18 (“I already apologized to you for not calling Dr. Boggs”)).  Yet Boggs was in all likelihood responsible for Destiny’s death.  His negligent and destructive CPR caused Destiny’s lungs to break open and collapse (RT 1839 L. 18-22).

Failure of defense or appellate counsel to conduct a reasonably thorough investigation is a ground for habeas corpus relief, reversal of judgment, or retrial.  In re Avena (Cal. 1996) 12 Cal. 4th 694, 743, 909 P. 2d 1017, 1047, 49 Cal. Rptr. 2d 413 (Mosk, J., dissenting) (defendant can reasonably expect that before acting, “counsel will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation”), reh’g den. (13 Cal. 4th 763b), cert. den. (Avena v. California (1997) 519 U.S. 1063, 117 S. Ct. 700, 136 L. Ed. 2d 622), quoting In re Fields (Cal. 1990) 51 Cal. 3d 1063, 1069, 800 P. 2d 862, 275 Cal. Rptr. 384 (discussing Sixth Amendment jurisprudence re ineffective assistance of counsel), reh’g den. (1991 Cal. Lexis 351), cert. den. (Fields v. California (1991) 502 U.S. 845, 112 S. Ct. 140, 116 L. Ed. 2d 107); Washington v. Strickland (5th Cir. 1982) 693 F. 2d 1243, 1252 (evaluating whether reasonableness of pretrial investigation, in light of defense strategy, amounts to ineffective assistance of counsel); Parkus v. Delo (8th Cir. 1994) 33 F. 3d 933, 940 n. 6 (evidentiary hearing ordered because of defense counsel’s inadequate investigation of mitigating health evidence); Rector v. Johnson (5th Cir. 1997) 120 F. 3d 551, 563 (claim that counsel inadequately investigated re mitigating evidence and victim’s time of death); Williams v. Cain (WD LA 1996) 942 F. Supp. 1088, 1096 (habeas corpus granted; defendant prejudiced by counsel’s failure to investigate available mitigating evidence); Burger v. Kemp (1987) 483 U.S. 776, 789-791, 107 S. Ct. 3114, 3123-3124, 97 L. Ed. 2d 638, 654-655 (habeas corpus relief granted where defense counsel conducted limited investigation and presented no mitigating evidence).

A defense attorney has a duty to investigate all potentially meritorious defenses prior to trial, and to continue to pursue factual investigations throughout the trial, whenever necessary.  Wade v. Calderon (9th Cir. 1994) 29 F. 3d 1312, 1328 (Reinhardt, J., concurring) (ineffective assistance of counsel at penalty phase of trial), cert. den. (Calderon v. Wade (1995) 513 U.S. 1120, 115 S. Ct. 923, 130 L. Ed. 2d 802); Deutscher v. Whitley (9th Cir. 1989) 884 F. 2d 1152, 1161 (defense attorney’s failure to investigate defendant’s mental state was ineffective assistance of counsel), cert. den. (Deutscher v. Hatcher (1992) 506 U.S. 939, 113 S. Ct. 374, 121 L. Ed. 2d 285); Jamison v. Collins (SD OH 2000) 100 F. Supp. 2d 647, 725 (investigation, discovery, and presentation of mitigating evidence is a matter of “‘life and death importance’”), quoting O’Guinn v. Dutton (6th Cir. 1996) 88 F. 3d 1409, 1424 (Merritt, C.J., concurring) (8th Amendment requires that jury be able to consider all mitigating evidence); Austin v. Bell (6th Cir. 1997) 126 F. 3d 843, 848-849 (ineffective assistance of counsel where mitigating evidence is not investigated and presented); Valdez v. Johnson (SD TX 1999) 93 F. Supp. 2d 769, 772 (habeas corpus petition granted where trial counsel did not investigate mitigating evidence in preparation for sentencing phase).

The time to conduct legal and factual investigations regarding possible defenses is before the trial commences.  It is inexcusable for an attorney to proceed to trial before completing the factual investigation essential to developing a defense theory.  “Without this most basic element of trial strategy, the defense attorney’s voir dire, opening statement, cross-examination of the prosecution’s witnesses, and other stages of representation are rendered rudderless.”  Wade, supra, at 1328.

A defense attorney must investigate all available evidence supporting mitigation or a defense theory, unless articulating a reasonable strategic basis for limiting investigation.  Strickland, supra, at 690-691 (strategic choices made after less than complete investigation are reasonable if reasonable professional judgment supports such investigative limitation); Williamson v. Ward (10th Cir. 1997) 110 F. 3d 1508, 1517 (counsel has duty to make reasonable investigations or to make reasonable decisions that make particular investigations unnecessary); Malone v. Vasquez (8th Cir. 1998) 138 F. 3d 711, 731 (Heaney, C.J., dissenting) (when facts supporting a specific line of defense are generally known to counsel, and defendant has given counsel reason to avoid or minimize said line of defense, counsel may reasonably limit investigation into said defense theory); Antwine v. Delo (8th Cir. 1995) 54 F. 3d 1357, 1367 (habeas corpus granted because investigative limitations were unreasonable; thus subsequent strategy was also unreasonable); Black v. Collins (5th Cir. 1992) 962 F. 2d 394, 403 (counsel may reasonably limit investigation of defenses which would likely prejudice defendant); Wilkins v. Iowa (8th Cir. 1992) 957 F. 2d 537, 540-541 (decision to limit investigation of diminished capacity claim reasonable because defendant not inebriated at time of alleged crime, and counsel reasonably believed that jury would be unsympathetic toward self-induced intoxication); Harris v. Dugger (11th Cir. 1989) 874 F. 2d 756, 763 (attorney not necessarily required to investigate every evidentiary lead); Thompson v. Wainwright (11th Cir. 1986) 787 F. 2d 1447, 1454 (duty to investigate limited to reasonable investigation), citing Strickland, supra, at 2066; Evans v. Smith (DC MD 1999) 54 F. Supp. 2d 503, 521 (strategic choices made after less than complete investigation reasonable if investigation limitation is based on reasonable professional judgment).  See also Troedel v. Wainwright (SD FL 1986) 667 F. Supp. 1456, 1461 & 1468 (investigation unreasonably limited; habeas corpus writ granted, conviction and sentences vacated).

For habeas corpus relief to be granted, the petitioner must not only demonstrate that investigational or discovery efforts were insufficient, but that the unreasonably deficient investigative performance had a prejudicial effect upon the defendant’s due process rights.  Strickland, supra, at 697 (standard of review is whether result of particular proceeding is unreliable because of lack of fundamental fairness in adversarial process); In re Ross (Cal. 1995) 10 Cal. 4th 184, 211, 892 P. 2d 1287, 1304, 40 Cal. Rptr. 2d 544 (must consider at habeas corpus hearing whether it is reasonably probable that outcome would have been different with additional evidence available after fuller investigation), reh’g den. (1995 Cal. Lexis 4323), cert. den. (Ross v. Calderone (1996) 516 U.S. 1051, 116 S. Ct. 718, 133 L. Ed. 2d 671); In re Jackson (Cal. 1992) 3 Cal. 4th 578, 602 & 615, 835 P. 2d 371, 386 & 395, 11 Cal. Rptr. 2d 531 (although no reasonably competent and experienced criminal defense lawyer would have considered counsel’s failure to investigate a reasonable tactical decision, habeas corpus petition denied, because missing evidence would not affect penalty determination), cert. den. (Jackson v. California (1993) 508 U.S. 941, 113 S. Ct. 2419, 124 L. Ed. 2d 641); Turner v. Duncan (9th Cir. 1998) 158 F. 3d 449, 457 (habeas corpus petition granted because of inadequate investigation with prejudicial impact), amended by 1998 U.S. App. Lexis 29964; People v. Williams (Cal. 1988) 44 Cal. 3d 883, 944, 751 P. 2d 395, 436, 245 Cal. Rptr. 336 (ineffectiveness due to inadequate investigation violates 6th and 14th Amendments), cert. den. (Williams v. California (1988) 488 U.S. 900, 109 S. Ct. 249, 102 L. Ed. 2d 237), citing People v. Fosselman (Cal. 1983) 33 Cal. 3d 572, 584, 659 P. 2d 1144, 189 Cal. Rptr. 855 (for ineffectiveness claim to succeed, defendant must prove that counsel did not perform with reasonable competence, and that it is reasonably probable that a determination more favorable to defendant would have resulted but for the substandard performance); Hendricks v. Calderon (ND Cal. 1994) 864 F. Supp. 929, 946 (where jury adequately informed as to relevant evidence, counsel not ineffective despite failure to investigate), cert. den. (Hendricks v. Calderon (1996) 517 U.S. 1111, 116 S. Ct. 1335, 134 L. Ed. 2d 485); Hale v. Gibson (10th Cir. 2000) 227 F. 3d 1298, 1328 (habeas corpus relief denied where ineffective assistance of counsel had no prejudicial effect).

The inadequate investigations of Ms. Vildosola’s defense and appellate attorneys had a prejudicial effect upon the trial outcome, because additional information about any of the following, if known to the defense and presented at trial, would have exonerated Ms. Vildosola, inter alia:  (1) Destiny’s pneumothorax, (2) Destiny’s pneumonia and bronchitis, (3) Destiny’s blood condition, (4) Billy III’s abuse of Destiny, (5) Destiny’s self-inflicted and accidental injuries, and (6) Dr. Boggs’ maltreatment of Destiny.

Some criteria for determining investigative reasonableness or sufficiency have been established in precedential child abuse prosecutions.  Motley v. State (5th Cir. 1994) 18 F. 3d 1223, 1228 (failure to investigate neurological damage unreasonable in child abuse case), cert. den; Archie v. Hobbs (WD VA 1997) 954 F. Supp. 1149, 1155 (additional investigation would have yielded evidence that people other than defendant could have been involved in child’s death); State v. Nipple (CA 4th WI 1998) 223 Wis. 2d 268, 588 N.W. 2d 928 (in SBS case, counsel allegedly failed to adequately investigate medical evidence, including determining length of time after shaking for subdural hematoma and other symptoms to appear); Grady v. Boone (10th Cir. 2000) 2000 U.S. App. Lexis 4105 (because of defense counsel’s incomplete investigation, defendant was convicted of child abuse and murder with tainted evidence).

In Ms. Vildosola’s case, defense counsel’s investigative efforts were so deficient as to constitute ineffective assistance of counsel for the following reasons, inter alia:  (1) no investigation was conducted to explore the possible culpability of others, particularly Dr. Boggs and Billy III.  United States v. Picard (9th Cir. 1999) 1999 U.S. App. Lexis 28012 & 37362 (202 F. 3d 280) (rev’d and remanded for evidentiary hearing as to whether lack of investigation into possible culpability of other people re child battering constituted ineffective assistance of counsel); Sparman v. Edwards (ED NY 1996) 26 F. Supp. 2d 450, 465 (habeas corpus granted due to ineffective assistance of counsel where mitigating evidence was inadequately investigated), citing Williams v. Washington (ED IL 1994) 863 F. Supp. 697, 705-707 (habeas corpus relief granted where counsel failed to present evidence concerning “several other people who lived in petitioner’s home”).

Because the counselors for the defense, O’Brien and Santana, never investigated Dr. Boggs, and failed to call Boggs to testify, the major cause of Destiny’s death, pneumothorax, was inadequately presented to the jury.  If Boggs had testified honestly, he would have admitted that Destiny’s lungs collapsed while he was administering CPR, and that Destiny’s vital signs plummeted to life-threatening levels immediately after pneumothorax occurred.

O’Brien and Santana also completely failed to investigate Billy III, although he was known to have abused his siblings, including Destiny.  Destiny lived in the same household as Anthony Jacobo, Jr., a known felon, yet no mention was made of Anthony Jacobo’s possible culpability during the trial.  Other people were also alone with Destiny on frequent occasions, including babysitter Bianca Placa, Marina Neria, and other children.  Although many individuals other than the parents could have abused Destiny, the defense attorneys conducted little or no investigation into such defenses.  Ernie Rodriguez and John Estrella told Attorneys O’Brien and Santana, prosecutor Lewis, and police officers who conducted the preliminary investigation that they eyewitnessed Billy III tossing Destiny into the air on many occasions.  Messrs. Rodriguez and Estrella were not called by either defense attorney, nor by the prosecution.  In addition, Ms. Vildosola testified that she heard Destiny fall after being thrown in the air by Billy III on November 22, 1995, shortly before her death.

(2) Mitigating medical information was inadequately investigated.  People v. Pensinger (Cal. 1991) 52 Cal. 3d 1210, 1275, 805 P. 2d 899, 935, 278 Cal. Rptr. 640 (counsel allegedly ineffective for failing to consult defense forensic pathologist and serologist), mod. by 53 Cal. 3d 729a, cert. den. (Pensinger v. California (1991) 502 U.S. 930, 112 S. Ct. 351, 116 L. Ed. 2d 290, reh’g den. 502 U.S. 1051, 112 S. Ct. 923, 116 L. Ed. 2d 821 (1992)); Sparman, supra, at 465; Boliek v. Delo (WD MO 1995) 912 F. Supp. 1199, 1210-1211 (habeas corpus relief granted where mitigating medical and psychological history minimally investigated), citing Hitchcock v. Dugger (1987) 481 U.S. 393, 398, 107 S. Ct. 1821, 1824, 95 L. Ed. 2d 347 (sentencer must consider all relevant mitigating evidence).  The defense attorneys did not adequately explore pneumothorax, pneumonia, meningitis, bleeding disorders, blood dyscrasias, immunodeficiencies, aneurysms, arteriovenous malformations, improper CPR, self-inflicted injuries, accidental injuries, and other possible explanations for Destiny’s death.  Their only expert witness was John P. Ryan, a general pathologist lacking board certification in forensic pathology and with no specialized knowledge of pediatric pathology, neuropathology, child abuse, or SBS.

Considering the dearth of information uncovered by Attorneys O’Brien, Santana, Brush, and Drous, and the ineptitude of their investigation, Ms. Vildosola received ineffective assistance of counsel.


C.  Jury Selection Was Grossly Deficient


Ms. Vildosola’s suggestions as to which prospective jurors to dismiss were ignored by Mr. O’Brien, who unilaterally made all decisions during voir dire.  Moreover, jurors were systematically excluded who had any medical background, or who had close relatives with careers in health fields.  Yet jurors with medical knowledge would have been more objective, and better able to assess the merits of SBS allegations.

Ineffective assistance of counsel exists when:  (1) the defendant is denied input and involvement during jury selection, or (2) voir dire challenges tend to exclude jurors favorable to the defendant.  Paradis v. Arave (9th Cir. 1992) 954 F. 2d 1483, 1490 (deficient voir dire performance alleged in habeas corpus ineffective assistance of counsel claim), cert. den. (Paradis v. Arave (1995) 513 U.S. 1117, 115 S. Ct. 915, 130 L. Ed. 2d 796); People v. Mendoza (Cal. 2000) 24 Cal. 4th 130, 167-168, 6 P. 3d 150, 172, 99 Cal. Rptr. 2d 485 (defense counsel’s performance allegedly deficient for failing to assure that reasonable inquiries were made into specific prejudices of jurors), reh’g den. (2000 Cal. Lexis 8580), cert. filed (2001); United States v. Christoffel (9th Cir. 1991) 952 F. 2d 1086, 1088-1089 (ineffective assistance of counsel argument based on alleged errors during jury selection process, including denial of defendant’s right to intelligently exercise peremptory challenges), cert. den. (Christoffel v. United States (1992) 503 U.S. 996, 112 S. Ct. 1700, 118 L. Ed. 2d 410); People v. Staten (Cal. 2000) 24 Cal. 4th 434, 450, 11 P. 3d 968, 978, 101 Cal. Rptr. 2d 213 (complaint of ineffective assistance of counsel based on defense attorney’s failure to conduct public opinion survey or submit oral questions during voir dire); United States v. Nielsen (9th Cir. 1993) 1 F. 3d 855, 861 (ineffective assistance of counsel complaint based in part on counsel’s failure to object to manner by which voir dire was conducted), cert. den. (Nielsen v. United States (1994) 511 U.S. 1023, 114 S. Ct. 1410, 128 L. Ed. 2d 82); Dickson v. Thompson (9th Cir. 2000) 2000 U.S. App. Lexis 27258 (where inadequate voir dire does not undermine confidence in trial outcome, counsel’s assistance not ineffective); Lyons v. Crawford (9th Cir. 2000) 232 F. 3d 666, 668 (habeas petition with claims of ineffective assistance of counsel and tainting of jury selection process by racist comments of a potential juror); People v. Banner (CA 5th Cal. 1992) 3 Cal. App. 4th 1315, 1321, 5 Cal. Rptr. 2d 125, 127 (habeas petition contending that trial counsel was deficient for failing to make a motion challenging the constitutional validity of jury selection procedures on equal protection and due process grounds), rev. den. (1992 Cal. Lexis 2286); People v. Ferro (CA 2nd Cal. 1993) 21 Cal. App. 4th 1, 3, 25 Cal. Rptr. 2d 747, 748 (rejecting appeal based, inter alia, on jury selection errors and ineffective assistance of counsel), reh’g den. (21 Cal. App. 4th 1279a), rev. den. (1994 Cal. Lexis 1432), cert. den. (Ferro v. California (1994) 513 U.S. 825, 115 S. Ct. 90, 130 L. Ed. 2d 42).  Cf. Campbell v. Wood (9th Cir. 1994) 18 F. 3d 662, 673 (counsel allegedly deficient in allowing defendant to waive his presence at jury selection), reh’g en banc den. (20 F. 3d 1050), cert. den. (Campbell v. Wood (1994) 511 U.S. 1119, 114 S. Ct. 2125, 128 L. Ed. 2d 682).

Mr. O’Brien’s jury selection methods undermined Ms. Vildosola’s defense, because:  (1) he systematically excluded jurors favorable to the defense, particularly those with knowledge of medicine; and (2) O’Brien rebuffed or ignored Ms. Vildosola’s efforts to participate in the selection process.  Because of such ineffective assistance of counsel, Ms. Vildosola deserves habeas corpus relief.


D.  DEFENSE Counsel Failed to Present Exculpatory and Mitigating Evidence


Defense attorneys O’Brien and Santana were grossly deficient in their presentation of exculpatory and mitigating evidence, and appellate attorneys Brush and Drous further failed to address these deficiencies.

Portions of Destiny’s medical and autopsy records supporting the fact that Destiny died from causes other than child abuse were not introduced at trial, and were withheld from the defendants by their own counsel.  As an example, the Children’s Crisis Report (hereinafter “CCR”) of Diana Elliott, PhD., contains observations of DCS caseworkers and interview transcripts of Billy III, Marina, and other children of William Jacobo, Jr. and Ms. Vildosola.  Among the more explosive items in the CCR were:  (1) a shaft-like object was purportedly extended up Destiny’s rectum 0-14 days prior to her death, and (2) there were supposedly numerous needle marks on Destiny at the time of her death.  The defense counsel failed to provide defendants with complete copies of the CCR.  Hence, the defendants were neither able to refute such false allegations, nor to present exculpatory evidence contained in the CCR.  In re Branch, supra, at 214 (“new evidence” includes exculpatory evidence which defense failed to present at trial.); People v. Foster (CA 2nd Cal. 1992) 6 Cal. App. 4th 1, 15, 7 Cal. Rptr. 2d 748, 756 (“exculpatory evidence is very probative, and only because of ineffective assistance of counsel was not discovered and introduced at trial”), rev. den. (In re Foster, 1992 Cal. Lexis 3857); McLain v. Calderon (9th Cir. 1998) 134 F. 3d 1383, 1388 (Ferguson, C.J., concurring) (failure to investigate and present important mitigating evidence constitutes ineffective assistance of counsel), cert. den. (Calderon v. McLain (1998) 525 U.S. 942, 119 S. Ct. 364, 142 L. Ed. 2d 301); Bonin v. Calderon (9th Cir. 1995) 59 F. 3d 815, 833 (failure to present mitigating evidence at penalty phase of trial violates Sixth Amendment), cert. den. (Bonin v. Calderon (1996) 516 U.S. 1051, 116 S. Ct. 718, 133 L. Ed. 2d 671); Williams v. Calderon (CD Cal. 1998) 48 F. Supp. 2d 979, 1019 (failure to present available mitigating evidence can be basis for ineffective assistance of counsel claim), citing Mak v. Blodgett (9th Cir. 1992) 970 F. 2d 614, 622 (per curiam) (failure to present mitigating evidence during penalty phase can be as devastating as failure to show proof of innocence during guilt phase), cert. den. (Blodgett v. Mak (1993) 507 U.S. 951, 113 S. Ct. 1363, 122 L. Ed. 2d 742); People v. Miranda (Cal. 1987) 44 Cal. 3d 57, 120, 744 P. 2d 1127, 1167, 241 Cal. Rptr. 594 (habeas corpus denied, because defendant failed to point to any significant mitigating evidence), reh’g den. (1988), cert. den. (Miranda v. California (1988) 486 U.S. 1038, 108 S. Ct. 2026, 100 L. Ed. 2d 613), citing People v. Durham (Cal. 1969) 70 Cal. 2d 171, 191-192, 449 P. 2d 198, 74 Cal. Rptr. 262 (en banc) (whether failure to introduce significant mitigating evidence constituted ineffective assistance of counsel depends upon totality of circumstances), reh’g den., cert. den. (Durham v. California (1969) 395 U.S. 968, 89 S. Ct. 2116, 23 L. Ed. 2d 755); People v. Bloom (Cal. 1989) 48 Cal. 3d 1194, 1218, 774 P. 2d 698, 712, 259 Cal. Rptr. 669 (habeas corpus writ denied; assertion that counsel provided ineffective assistance by failing to present mitigating evidence rejected), reh’g den., cert. den. (Bloom v. California (1990) 494 U.S. 1039, 110 S. Ct. 1503, 108 L. Ed. 2d 638); United States v. Zuno-Arce (CD Cal. 1998) 25 F. Supp. 2d 1087, 1092 (motion to vacate for failing to disclose exculpatory evidence and ineffective assistance of counsel), aff’d United States v. Zuno-Arce (9th Cir. 2000) 209 F. 3d 1095; Mata v. Ricketts (9th Cir. 1991) 981 F. 2d 397, 399 (per curiam) (defendant must exhaust state judicial system before federal court can decide whether counsel provided ineffective assistance by failing to present mitigating evidence); Odle v. Calderon (ND Cal. 1996) 919 F. Supp. 1367, 1376 (ineffective assistance of counsel claim for failure to present expert mitigating evidence denied).  Cf. Dobbs v. Zant (1993) 506 U.S. 357, 113 S. Ct. 835, 122 L. Ed. 2d 103 (counsel’s decision to omit mitigating evidence was reasonable tactical judgment; habeas corpus relief granted on other grounds); Strickler v. Greene (1999) 527 U.S. 263, 289, 119 S. Ct. 1936, 1952, 144 L. Ed. 2d 286 (counsel not ineffective despite withholding of exculpatory evidence and failure to file a motion under Brady v. Maryland (1963) 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, because no prejudice found).

When codefendants who have possible conflicting interests appear jointly at trial, counsel may be inhibited from producing evidence or from arguing matters or objecting to the introduction of evidence which may be exculpatory as to one of the defendants because such a course may be prejudicial to the codefendant.  The very failure to produce or emphasize such information creates a void and results in a record which shields the fact of any possible conflict and makes it difficult to demonstrate on appeal that such a conflict did in fact exist.  People v. Dooley (CA 5th Cal. 1980) 112 Cal. App. 3d 103, 169 Cal. Rptr. 76.

The defense attorneys failed to obtain critical exculpatory evidence, such as the CCR.  They also neglected to bring exculpatory and mitigating evidence to light, such as eyewitness statements from Destiny’s siblings, relatives, and family friends about Billy Jacobo III’s history of abusive behavior.  But for the negligence of defense counsel, exculpatory evidence would have been presented, inter alia, contradicting CCR allegations, elucidating that Boggs caused Destiny’s fatal pneumothorax, and substantiating not only that Billy III abused Destiny, but that he was at least partially responsible for Destiny’s death.


E.  Failure to Call Key Witnesses


Any eyewitness accounts not presented at trial are considered “new evidence,” which, if arguably exculpatory, warrant habeas corpus relief or a new trial.  Schlup, supra, at 324 (any reliable exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence is new evidence, so long as it was not presented at the trial court level).

O’Brien and Santana failed to call many important medical witnesses, eyewitnesses, and expert witnesses, and appellate attorneys Brush and Drouse did not raise these oversights in their appellate arguments.  Some of the pathologists and physicians whose reports were used by the prosecution were never called to testify, and thus were never cross-examined by the defense.  Among these important medical witnesses were, inter alia:  (1) Joseph Dodridge Boggs, M.D., who “popped” Destiny’s lungs; (2) Hideo Henry Itabashi, M.D., the neuropathology expert who contradicted Ribe’s findings and testimony; (3) Zacharia Yehya Reda, M.D., of Long Beach Memorial Hospital, the last pediatrician to treat Destiny; (4) Donald Clarence Boger, M.D., the radiologic consultant for Destiny’s autopsy; and (5) Narsing Adupa Rao, M.D., the ophthalmalogical consultant for Destiny’s autopsy.

Boggs killed Destiny by providing negligent medical services—specifically, administering CPR with such force that he caused bilateral pneumothorax.  Boggs’ California medical license was suspended in December of 1995, just a few days before killing Destiny.  A few years earlier, he was convicted of driving while intoxicated.  Boggs was the very first name on the prosecution’s list of witnesses (CT 367 L. 1), so his nonappearance was conspicuous.  Lewis encouraged Boggs to disappear and hide during the trial (e.g., RT 1438 L. 27-1439 L. 8 (Boggs disappeared from Santa Marta Hospital on the heels of Destiny’s death)).

After a mortally wounded Destiny was diverted twenty miles away from Boggs to Long Beach Memorial Hospital, Reda treated Destiny for pneumothorax, acute respiratory distress syndrome (ARDS), and cardiogenic shock, and noted that Destiny had subarachnoid hemorrhaging (not symptomatic of SBS or BCS) and renal dysfunction.  Reda would have testified that Destiny’s cause of death was ARDS, precipitated by pneumothorax, contradicting Lewis’ premise that Destiny died of SBS.  Although she knew that Reda would ruin her case, Lewis told the jury that Reda’s testimony would be a waste of time, and that Reda should not be inconvenienced by a trip all the way from Long Beach (RT 2252 L. 28-2253 L. 2).  Yet Destiny, after being fatally injured by Boggs, was inconvenienced by the equally long trip from Monterey Park to Long Beach.

The defense counsel also failed to call many eyewitnesses to Destiny’s home life, including those who saw Billy III abusing Destiny.  These indispensable witnesses include, inter alia, (1) Henry Diaz, who was about ten feet away from Destiny during most of the day of December 5, 1995, and never saw or heard any abuse of Destiny, and who was intimidated by police to discourage him from testifying; (2) John Estrella, who directly observed Billy III throwing Destiny into the air in the back bedroom of Esther Jacobo’s domicile, and who also was frightened by the police; (3) Ernie Rodriguez, who witnessed Billy III tossing Destiny into the air on another occasion, also in Esther Jacobo’s back bedroom, and told this information to the investigating detectives, Prosecutor Lewis, and Messrs. O’Brien and Santana (contained within the Police Supplementary Report, and alluded to at CT 157 L. 22-158 L. 27 (“The officer is here who took the statement”)); (4) Jimmy Sanchez, who was accused of sexually molesting Michael and Anthony Jacobo, until the Jacobo children told DCS that Billy III was the molester; (5) Ray Saucedo, who was at the Jacobo home on December 5, 1995, and never heard nor saw any abuse of Destiny; (6) Michael William Jacobo, whose pre-trial CCR interview was quoted out of context during the trial, who wanted to testify in order to clarify what he actually said, who witnessed Billy III sneaking to “play” with Destiny, who saw Billy III abusing Anthony Jacobo, and who was himself abused by Billy III; (7) Eric Klimek, the boyfriend of Ms. Vildosola’s mother Frances, who was present at Ms. Vildosola’s grandmother’s house during the night of January 21, 1991, when Carissa Neria died, and neither heard nor saw any abuse; and (8) Gloria Rodriguez Jacobo, Little Billy’s mother, who could have explained why Billy III was removed from her home.  See RT 1000 L. 13-15 (Gloria was not subpoenaed) & RT 1612 L. 4-6 (on May 22, 1995, Gloria called the DCS and asked them to “come and pick [Billy] up and remove him.”).

All of the above individuals were eyewitnesses to the events of December 5, 1995 or January 21, 1991, and each would have provided exculpatory testimony.  Furthermore, Messrs. Rodriguez (RT 489 L. 20-25 (“Those witnesses are excluded.”)), Diaz, Saucedo (RT 1550 L. 17), and Klimek (cf. RT 658 L. 24-28) were all on the prosecution’s witness list (as was Michael Jacobo), and came to court several times, expecting to be asked to testify, but were never allowed to take the stand.  Their exclusion was contrary to the express wishes of the defendants.  See, e.g., RT 1902 L. 16-18 (“[T]here were other witnesses that weren’t called that I wanted to be called.”).

Any of the ten aforementioned witnesses—Boggs, Reda, Ernie Rodgriguez, Diaz, Saucedo, Klimek, Michael Jacobo, Estrella, Gloria Jacobo, or Sanchez (who came to court many times, but was always excluded by Judge Croft)—could have established reasonable doubt as to Ms. Vildosola’s guilt:  (1) Boggs and Reda would have revealed evidence of Destiny’s pneumothorax; (2) Ernie Rodriguez, Estrella, and Michael Jacobo would have testified that Billy III abused Destiny; (3) Diaz and Saucedo would have confirmed that Destiny was not abused on December 5, 1995; (4) Sanchez, Gloria Jacobo, and Michael Jacobo would have destroyed Billy III’s credibility; and (5) Klimek would have established that Carissa was not abused.  By failing to call such exculpatory lay witnesses, Attys. O’Brien and Santana rendered ineffective assistance.

Further still, the defense counsel called only one physician, John P. Ryan, a general pathologist with no forensic or pediatric credentials (RT 1841 L. 16-17 (Ryan never attended a seminar on SBS); RT 2090 L. 24-2094 L. 23 (Ryan did only 3 child abuse autopsy reviews, all as a defense witness)), who was so incompetent that he neglected to examine Destiny’s and Carissa’s autopsy specimens and microscopic slides, and forgot that he had reviewed autopsy photographs (RT 1818 L. 21-24 (Carissa’s slides); RT 1819 L. 5-7 (Carissa’s photographs); RT 1819 L. 19-22 (Carissa’s autopsy specimens); RT 1819 L. 27-1820 L. 6 (Destiny’s autopsy specimens); RT 1820 L. 7-10 (Destiny’s slides); RT 1820 L. 11-14 & 19-21 (Destiny’s photographs)).  An expert on Shaken Baby Syndrome, child abuse, pediatric pathology, or even forensic neuropathology or hematology would have been decisive in establishing reasonable doubt.  Such an expert would have demonstrated that Destiny probably died from a combination of pneumothorax caused by CPR, pneumonia, bleeding dysfunction, and immunodeficiency.  Furthermore, the jury would have given much greater weight to the opinions of an expert in SBS or pediatric pathology than they granted to Ryan or even Ribe.  Thus, the failure of the defense to call an adequate expert constituted ineffective assistance of counsel.

To prove that counsel was ineffective for failing to locate and call witnesses, a movant must show that the counsel knew or should have known that the witnesses existed, that reasonable investigation would have located the witnesses, that the witnesses would have testified if called, and that the testimony of the witnesses would have provided a viable defense.  People v. Easley (Cal. 1982) 33 Cal. 3d 65, 654 P. 2d 1272, 1290, 187 Cal. Rptr. 745, 762 (failure to call two key witnesses not ineffective assistance of counsel where there is no showing that witnesses would have presented exonerating evidence), reh’g granted, 34 Cal. 3d 858; State v. Broseman (CA WD MO 1997) 947 S.W. 2d 520, 527 (where character witnesses would not have unqualifiedly supported defense, decision not to call them was reasonable trial strategy), citing State v. Harris (MO 1994) 870 S.W. 2d 798, 817 (reasonable to leave a witness mute where harmful testimony would likely outweigh benefits); Tacho v. Martinez (9th Cir. 1988) 862 F. 2d 1376, 1379 (review denied re ineffective assistance of counsel claim based on failure to call alibi witnesses).  See also Strickland, supra, at 466 U.S. at 690 (“strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”).

Defense attorneys O’Brien and Santana failed to investigate or even call at least four physicians who were witnesses to Destiny’s medical condition, and at least ten eyewitnesses to the domestic circumstances of Destiny, Carissa, and Little Billy.  They also neglected to call any experts on Shaken Baby Syndrome, child abuse, pediatrics, or neuropathology.  Furthermore, appellate attorneys Brush and Drous did not address these deficiencies.  But for such ineffective assistance of the defense and appellate counsel, Ms. Vildosola would have been acquitted of all charges related to Destiny’s death.




Defense attorneys Guy O’Brien and Raymond Santana were negligent in both (1) the insufficiency of their cross-examination of prosecution experts, including Drs. Ribe, Sheridan, Duazo, and Lin; and (2) the inadequacy of their direct examination of the only defense expert, Dr. John P. Ryan.  A pathologist with more than thirty years of experience, Dr. Ryan was certain that Destiny was not a victim of SBS or any trauma caused by child abuse.  In his opinion, Destiny died of lung infection, and her subarachnoid hemorrhaging was caused by an anemia-induced blood coagulation deficiency.  The defense attorneys had such a poor understanding of medical science, and their legal representation was so lacking in requisite zealousness, that Dr. Ryan’s views were inadequately conveyed to the jury.  Consequently, despite powerful evidence that Destiny died from pneumothorax or infection rather than physical abuse, the defense attorneys failed to engender reasonable doubt in the minds of the jurors.

Although the lone expert witness for the defense, Ryan, might have sufficed in the hands of competent, effective defense attorneys, he was nevertheless grossly deficient (see, e.g., § XII.E. (FAILURE TO CALL KEY WITNESSES), supra)).  See also United States v. Tarricone (2nd Cir. 1993) 996 F. 2d 1414, 1419 (case remanded for factual findings re ineffective assistance, where counsel failed to call handwriting expert to dispute material evidence linking defendant to crime); Jenner v. Dooley (S. Dak. 1999) 590 N.W. 2d 463, 466 (ineffective assistance of counsel claimed where attorney failed to perform DNA analysis on hair samples, and failed to call DNA expert to contradict prosecution expert).  Cf. Shumate v. Newland (ND Cal. 1999) 75 F. Supp. 2d 1076, 1093 (where the evidence does not warrant it, failure to call an expert does not amount to ineffective assistance of counsel); Wilson v. Henry (9th Cir. 1999) 185 F. 3d 986, 990 (decision not to call psychiatric expert reasonable where no evidence that defendant had relevant psychiatric disorder); Cage v. Newland (ND Cal. 1999) 1999 U.S. Dist. Lexis 18553 (failure to call pharmacological expert not ineffective assistance of counsel, because there was no evidence that defendant was drug abuser); United States v. Maxwell (10th Cir. 1992) 966 F. 2d 545, 546 (failure to interview and call expert witnesses for reasonable strategic reasons not ineffective assistance of counsel); Phoenix v. Matesanz (1st Cir. 2000) 233 F. 3d 77 (strategic choice to not call defense experts not ineffective assistance of counsel where experts would not have affected outcome of case).  Dr. Ryan had inadequate credentials, including no certification or licensure in forensics, pediatrics, neuropathology, or hematology, and had never taken a course in SBS.  He also failed to review any autopsy specimens of Carissa or Destiny, any microscopic slides of Carissa or Destiny, and any photographs of Carissa.  His memory required refreshing before he could even recall examining any photographs of Destiny.  In addition, Ryan never put his findings into written form.  But for these palpable deficiencies of the only defense expert, Ms. Vildosola would not have been convicted.

The defense attorneys also failed to adequately voir dire the expert witnesses.  For instance, Dr. Sheridan purported to be a pathologist specializing in pediatrics and neuropathology.  The defense stipulated to his expertise despite neglecting to ask Sheridan to indicate his credentials concerning pediatrics and neurology.  If they had probed at all, they would have revealed that Sheridan had no credentials in pediatrics or neuropathology, and Sheridan’s credibility would have been significantly weakened.

The defense counsels were particularly negligent in their examination of expert witnesses for the prosecution.  For instance, they did not illuminate Dr. Duazo’s precise role in the 1996 reconstruction of Carissa’s 1991 autopsy, and they failed to query Duazo as to whether she approved of each of the revisions made by Sheridan.  They never interrogated Duazo or Sheridan concerning whether Carissa’s autopsy findings were consistent with BCS or SBS.  They also neglected to ask either Duazo or Sheridan whether Carissa’s autopsy findings were consistent with other possible pathologies, such as pneumonia, bronchitis, SIDS, meningitis, blood dyscrasias, or immunodeficiencies.

O’Brien and Santana were notably ineffective during their examination of Dr. Thomas Lin, Destiny’s pediatrician.  They failed to attack Lin’s credibility with respect to the chest X-ray of May 22nd, 1995, which revealed that Destiny had diffusely congested lungs, but which Lin misread as an artifact caused by suboptimal inspiration.  They also neglected to evince from Lin that Destiny was immunologically compromised.  If the defense counsel had asked Lin to explain Destiny’s repeated bouts of coughing, wheezing, otitis media, and eye infections, he would have been forced to admit that Destiny had a weakened immune system, exacerbating her respiratory difficulties, which eventually progressed to pneumonia.

The cross-examination of Dr. Ribe was also patently ineffective.  They did not go over Ribe’s microscopic slides of Destiny’s lungs (see MR) in detail.  If they had, Ribe could not have eluded the incontestable conclusion that Destiny was dying from pneumonia and tracheobronchitis.  They also failed to inquire about Destiny’s pneumothorax, which was probably the immediate cause of Destiny’s death.  Not only did they neglect to interrogate Ribe in detail about Destiny’s popped and collapsed lungs, but they never even called Dr. Boggs, whose malpractice caused the pneumothorax.

Most importantly, the defense counsel never demanded that Ribe either provide the missing occipital lobe artifact (RT 1408 L. 7-1411 L. 2) or explain why it was kept from Dr. Itabashi and the defense.  They also should have asked Dr. Itabashi whether—considering the absence of the artifact—Destiny’s neurological condition was consistent with causes of death other than child abuse, such as meningitis, pneumonia, tantrums, accidental falls, or a bleeding disorder.  That piece of brain material alone might have exonerated the defendants.

The defense attorneys had many opportunities while questioning the expert witnesses to engender reasonable doubt, yet neglected to adequately examine them on every occasion.  Moreover, appellate attorneys Brush and Drous failed to argue that the trial attorneys deficiently handled expert witnesses.  For all of these reasons, the ineluctable conclusion is that Ms. Vildosola received ineffective assistance of counsel.


G.  FAILING TO PREVENT ADMISSION OF Evidence with More Prejudice Than Probity


Defense counsel repeatedly allowed the introduction of evidence with prejudicial effects clearly outweighing any probative value.

For instance, the 1991 autopsy results of Carissa Neria, a daughter of Ms. Vildosola by an earlier marriage, were modified in 1996, after Destiny’s death, to indicate that the cause of death was SBS.  The defense attorneys negligently failed to prevent the admission of this evidence.  The purpose of the SBS rediagnosis was to suggest that Carissa and Destiny died under similar circumstances.  Aside from the unfortunate coincidence of having lost two daughters, no evidence was presented to establish that Ms. Vildosola shook or otherwise abused either Carissa or Destiny.  Thus, the transfigured autopsy report of Carissa Neria was highly prejudicial, yet lacked probative value, and should never have been admitted.

Evidence about the defendant’s cocaine use prior to Destiny’s birth was also admitted, despite the fact that its prejudicial impact undeniably exceeded its probity.  For instance, the prosecutor, in her closing argument, asserts that “Defendant Vildosola snorted cocaine during her pregnancy…. The fact that she believed it would hurt her baby … shows her callous disregard … for human life.” (RT 2053 L. 15-16 & 21-28).  The admission of such evidence without deliberation contravenes, inter alia, Cal. Evid. C. § 1101(b), and is the consequence of either ineffective assistance of defense counsel or abuse of judicial discretion.  In either event, the introduction of such glaringly prejudicial information constitutes reversible error.

The failure of a defense lawyer to object to the admission of prejudicial evidence constitutes ineffective assistance of counsel.  People v. Sanders (Cal. 1995) 11 Cal. 4th 475, 518 n. 9, 905 P. 2d 420, 441, 46 Cal. Rptr. 2d 751 (failure to object to admission of prejudicial evidence lacking probative value constitutes ineffective assistance of counsel, violating Sixth Amendment), reh’g den., cert. den. (Sanders v. California (1996) 519 U.S. 838, 117 S. Ct. 115, 136 L. Ed. 2d 66); State v. Navarre (AZ 1982) 132 Ariz. 480, 485, 647 P. 2d 178, 183 (counsel’s assistance not ineffective when failing to object to admission of evidence with more probative than prejudicial value); State v. Dawkins (CA 2nd WA 1993) 71 Wn. App. 902, 863 P. 2d 124 (failure of criminal defense attorney to object under Fed. R. Evid. 404(b) to admission of prejudicial evidence of uncharged crimes having marginal probative value constituted ineffective assistance of counsel).

But for the ineffective assistance of defense attorneys O’Brien and Santana, highly prejudicial evidence, such as Carissa Neria’s autopsy, would not have been admitted, and Ms. Vildosola would have been exonerated.  Furthermore, the appellate attorneys, Brush and Drous, by failing to adequately argue that Carissa’s autopsy was more inflammatory than probative, were also ineffective.  A new trial is warranted, so that Ms. Vildosola can rectify these deficiencies.


H.  Declaration of Defendant’s Guilt by Defense Counsel


During the trial, Guy O’Brien, Ms. Vildosola’s defense attorney, repeatedly inculpated her, intimating that Ms. Vildosola was guilty (RT 2237 L. 12-21).  For example, during closing arguments, Mr. O’Brien indicated that Ms. Vildosola was a bad mother (RT 2228, L. 26-27 (“It is obvious [that Ms. Vildosola] wasn’t an excellent mother.”); RT 2229, L. 8-9 (“this is a woman who failed to do many things that good parents should do”); RT 2232 L. 5-7 (“She was a lousy mother … and, frankly, could have cared less”); RT 2237 L. 1-2 (“She wasn’t a good mother in many ways.”)).  He characterized her as negligent (RT 2231 L. 25-26 (“I think she was negligent.”)), inattentive (RT 2231 L. 27), and distracted (RT 2231 L. 27-28).  O’Brien also declared that Ms. Vildosola should not be acquitted on all charges (RT 2237 L. 12-13 (“I can’t tell you … that my client should be acquitted on all charges.”)).  He suggested that Ms. Vildosola should be charged with Manslaughter (CT 225 L. 2-19 (“could characterize a charge of manslaughter or …, as I say, … involuntary manslaughter”); RT 2237 L. 17-19).  Yet Ms. Vildosola steadfastly insisted, in full honesty, that she was completely innocent of all charges.

Defense counsel’s admission of the defendant’s guilt undermines the adversarial process and constitutes per se ineffective assistance of counsel.  Wiley v. Sowders (6th Cir. 1981) 647 F. 2d 642, 644-646 & 648 (conviction rev’d because court-appointed lawyer admitted defendant’s guilt to jury in violation of 6th and 14th Amendments); United States v. Swanson (9th Cir. 1991) 943 F. 2d 1070, 1074-1075 (defense attorney who admits guilt effectively abandons his duty of loyalty and joins with the state in attempting to convict his client).  See also Nixon v. Singletary (Fla. 2000) 758 So. 2d 618 (because counsel’s concession of guilt nullified adversarial quality of proceedings, prejudice presumed); People v. Hattery (IL 1985) 109 Ill. 2d 449, 462, 488 N.E. 2d 513, 518 (defense attorney’s concession of guilt nullifies right to have issue of guilt or innocence presented to jury adversarially, and is therefore ineffective assistance of counsel); Commonwealth v. Griffith (Mass. 1989) 404 Mass. 256, 264, 534 N.E. 2d 1153, 1158 n. 6 (tactical decision to concede defendant’s guilt constituted ineffective assistance of counsel); Ashley v. Koehler (6th Cir. 1988) 840 F. 2d 16 (admission of guilt to a lesser included offense is not a reasonable defense tactic); Strickland, supra, at 692 (actual or constructive denial of assistance of counsel is legally presumed prejudicial).  Cf. McNeal v. Wainwright (11th Cir. 1984) 722 F. 2d 674 (admission of guilt during closing argument is not ineffective assistance of counsel if reasonable tactical choice and approved by fully informed client); United States v. Cronic (1984) 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657 (if counsel fails to subject prosecution’s case to meaningful adversarial testing, then Sixth Amendment rights are denied and the judicial process is presumptively unreliable).

The defense attorneys bolstered the prosecution’s case every time they made a remark which the jury was likely to interpret as a derogation of either defendant.  There were many instances when Ms. Vildosola was disparaged by O’Brien, such as those cited above from his closing argument!  Such expressions of culpability from a criminal defense attorney constitute reversible error.




Ms. Vildosola’s appeal was handled even more negligently than her trial (see Notice of Appeal of Patricia Vildosola, in propria persona, Case No. GA026525-01, submitted to the Los Angeles County Superior Court and dated October 16th, 1997 (hereinafter “NOA”) (Exhibit P20); letter to Patricia Inez Vildosola from Juliana Drous, Esq., dated April 26, 2000 (hereinafter “2000 letter”) (Exhibit P21); and “Appellant’s Opening Brief,” Case No. B117223, written by appellate attorney Juliana Drous, submitted to the Court of Appeal of California, Second Appellate District, Division 7, dated October 16, 1998 (hereinafter “AB”) (Exhibit P22).

An appellate attorney can be charged with ineffective assistance according to the same principles and procedures as a trial counsel.  Matire v. Wainwright (11th Cir. 1987) 811 F. 2d 1430 (standard for ineffective assistance of counsel is identical for trial and appellate counsel).  See also People v. Sturns (CA 1st Cal. 2000) 77 Cal. App. 4th 1382, 1400, 92 Cal. Rptr. 2d 547, 559 (Haning, J., dissenting) (in dicta, majority impliedly found that both trial and appellate counsel rendered ineffective assistance), rev. den. (2000 Cal. Lexis 3577); Poland v. Stewart (9th Cir. 1999) 169 F. 3d 573, 577 (ineffective assistance claim against both trial and appellate counsel in federal habeas corpus petition), reh’g den., cert. den. (Poland v. Stewart (1999) 528 U.S. 845, 120 S. Ct. 117, 145 L. Ed. 2d 99); Butcher v. Marquez, supra, at 375 (ineffective assistance of counsel claims against both trial and appellate attorneys); Pappageorge v. Sumner (9th Cir. 1982) 688 F. 2d 1294 (habeas petition charging ineffective assistance of state trial and appellate counsel), cert. den. (Pappageorge v. Sumner (1983) 459 U.S. 1219, 103 S. Ct. 1223, 75 L. Ed. 2d 459); McClain v. Hill (CD Cal. 1999) 52 F. Supp. 2d 1133 (habeas corpus ineffective assistance claim against trial counsel denied on merits; claim against appellate counsel in amended petition dismissed on procedural grounds).  Cf. Diaz-Albertini v. United States (1991) 498 U.S. 1061, 111 S. Ct. 776, 112 L. Ed. 2d 839 (petitioner procedurally barred from raising ineffective assistance claim on collateral attack); Lambright v. Stewart (9th Cir. 2000) 220 F. 3d 1022, 1031 (Thompson, C.J., concurring in part) (discussing whether appellant counsel defaulted in failing to raise issue of ineffective assistance by trial counsel).

Ms. Vildosola’s appellate assistance was ineffective from beginning to end.  The NOA, while allowing for the possibility that other issues could be raised by appellate counsel (NOA 1, CT 581 L. 18-19), only concerns itself with alleged prejudicial errors of the trial judge, namely, inter alia:  (1) permitting introduction of evidence about Carissa’s death (see NOA 1, CT 581, L. 20-21 and Cal. Evid. C. § 1101(b)), (2) allowing a finding of guilt re Cal. Pen. C. § 273.5 (assault on child causing death) without a mens rea standard (NOA 1, CT 581 L. 25-26), (3) denial of special instructions re § 273.5 (NOA 2, CT 582 L. 3-4), (4) refusal of defendant’s proposed answers to jury questions re § 273.5 (NOA 2, CT 582 L. 5-6), (5) rejecting “parental duty rule” in instructing the jury that liability for second degree murder (Cal. Pen. C. § 187) extended to a parent’s failure to act (NOA 2, CT 582 L. 7-10), and (6) not instructing the jury that unanimity of agreement was required, pursuant to CALJIC 17.01, as to which act(s) of defendants caused violation of §§ 187 and/or 273.5 (NOA 2, CT 582 L. 11-13).

The NOA negligently failed to mention anything about, inter alia, ineffective assistance of counsel (e.g., inadequate investigation, failure to present witnesses, lack of proper objections and requests during trial), conflicts of interest, conspiracy, malicious prosecution, prosecutorial misconduct, Brady violation, false evidence, denial of due process in rejecting Marsden motion and during jury selection procedures, inadequacy of expert witnesses, and newly discovered exculpatory evidence.

The appellate brief is modeled after the NOA.  The first Argument (AB 15-19), “Evidence Does Not Support a Second Degree Murder Conviction,” addresses Ms. Vildosola’s state of mind or mens rea during the time when the alleged felonious acts (i.e., abuse, murder) against Destiny occurred.  Argument 1 focuses on the concepts of malice, wantonness, express and implied malice, negligence, and types of homicide, including involuntary manslaughter.  Since all of these concepts were considered during the trial and nothing new was offered, this argument was futile.

In Ms. Drous’ second argument (AB 20-27), concerning the trial court’s refusal of the defendants’ request for CALJIC 3.31.5, the issue again is the state of mind of the appellant, applied specifically to Pen. C. § 273ab.  Argument 2 focuses on the concepts of strict liability, due process, reasonable doubt, malice, the Chapman test, and the harmless error standard of People v. Watson (1956) 46 Cal. 2d 818, 836, 299 P. 2d 243, 254 (en banc), reh’g den., cert. den. (Watson v. Teets (1957) 355 U.S. 846, 78 S. Ct. 70, 2 L. Ed. 2d 55).  See Chapman v. California, supra, reh’g den. 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 and Rose v. Clark (1986) 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (instructions impermissibly shifting burden of proof concerning malice constitute reversible error).  Again, all of these issues were considered during the trial, and Ms. Drous presented no new facts or findings.

Appellate attorney Drous makes just one other argument (Argument 3, AB 28-34)—that the evidence about the death of Carissa Neria was reversible error.  This contention is the only one also raised in the instant habeas corpus petition.  Using logic similar to that of this petition (see § II, supra (Irrelevant and Highly Prejudicial Evidence was Admitted)), she argues that the admission of information about Carissa violated Evid. C. § 1101(b), which prohibits the use of evidence of prior conduct to prove subsequent conduct.  Ewoldt, supra, at 393.  Specifically, evidence of an uncharged “offense” cannot be used to prove a propensity to commit the charged crime.  People v. Thompson (Cal. 1980) 27 Cal. 3d 303, 316, 611 P. 2d 883, 889, 165 Cal. Rptr. 289 (rev’g robbery and burglary convictions because erroneous admission of uncharged robbery was prejudicial).  See generally Wigmore, Evidence, § 194, 650 (jury tends to punish defendant for previous uncharged acts).

Her exposition is weak, however, and for several reasons, inter alia:  (1) Attorney Drous fails to itemize the many differences between Carissa and Destiny, including the different:  (a) health histories, (b) domestic circumstances, and (c) causes of death.  (2) Drous does not discuss the conspiratorial nature of the 1996 revamping of Carissa’s 1991 autopsy.  (3) Drous provides no information that was not already presented at trial.  (4) Drous cites pages in the Trial Transcript that have no relevance to the associated text of her brief.  (5) Drous improperly cites case authorities.

Because the assistance rendered by Appellate Attorney Juliana Drous was ineffective and grossly deficient, the appellate court decision should be reversed and remanded, and this habeas corpus petition should be granted.


XIII.  Denial of Adequate Counsel


Ms. Vildosola was denied a Marsden Hearing, despite her repeated insistence that she was dissatisfied with Mr. O’Brien’s representation, and that she wanted a new attorney.  See CT 356 (“Defense Marsden motion is held and denied”).

The issue in a Marsden hearing is whether continued representation by an appointed counsel would substantially impair or deny the constitutional right to effective counsel.  People v. Marsden (Cal. 1970) 2 Cal. 3d 118, 123-124, 465 P. 2d 44, 84 Cal. Rptr. 156 (en banc) (denial of motion for substitution of attorneys, without opportunity to enumerate specific examples of inadequate representation, deprives defendant of fair trial); People v. Lewis (Cal. 1978) 20 Cal. 3d 496, 497, 573 P. 2d 40, 143 Cal. Rptr. 138 (defendant must be permitted to state reasons for believing court-appointed counsel should be discharged).  See also People v. Dennis (CA 3rd Cal. 1986) 177 Cal. App. 3d 863, 870, 223 Cal. Rptr. 236, 241 (Marsden hearing should be adversarial, but must minimize self-incrimination and exposure of work product or trial strategies), citing People v. Carr (Cal. 1972) 8 Cal. 3d 287, 299, 502 P. 2d 513, 520, 104 Cal. Rptr. 705 (en banc) (right to discharge or substitute court-appointed counsel is matter of judicial discretion unless there is substantial showing that defendant’s right to assistance of counsel would be substantially impaired if the request were denied); and Freeman v. Lindsey (9th Cir. 2000) 2000 U.S. App. Lexis 26117 (habeas corpus petitioner alleged violation of 6th Amendment right to conflict-free assistance of counsel when (a) Marsden hearing request denied and (b) attorney was required to argue his own incompetence in motion for new trial).

Ineffective assistance of counsel is the underlying plank which supports the Marsden rule.  People v. Maese (CA 5th Cal. 1980) 105 Cal. App. 3d 710, 723, 164 Cal. Rptr. 485 (under the Marsden rule, substitution is required if court-appointed attorney is not adequately representing the accused), reh’g den.  Ms. Vildosola unquestionably received ineffective assistance of counsel, as explicated in § XII, supra (“Ineffective Assistance of Counsel”).  She therefore should have been granted a Marsden hearing, either when first requested or at any point when Mr. O’Brien’s performance could reasonably be apprized as ineffective.  Instead, the trial court denied Ms. Vildosola’s constitutional due process right to a full and procedurally proper Marsden hearing, giving Ms. Vildosola no choice but to continue with counsel Guy O’Brien.

A defendant with a court-appointed counsel is entitled to the services of a reasonably competent attorney acting as a conscientious, diligent advocate.  Cf. People v. Pope, supra, 23 Cal. 3d at 425 & 427 (if defendant proves that acts or omissions of counsel resulted in withdrawal of a potentially meritorious defense, conviction must be rev’d or vacated), reh’g. den., and Fosselman, supra, at 582 (grounds for new trial if petitioner shows that it is reasonably probable that a more favorable result would have occurred in absence of ineffective assistance of counsel).  Mr. O’Brien’s services, as illustrated in § XII, supra, were grossly deficient, ineffective, and neither conscientious nor diligent.  Therefore, the denial of a proper Marsden hearing to Ms. Vildosola was a reversible error, necessitating habeas corpus relief.




Prosecutor Cheri Lewis acted unethically and illicitly on numerous occasions, inter alia:  (1) conspiring with other government officials to insure a conviction, and to minimize governmental liability for a chaotic child welfare system by, inter alia, altering Carissa Neria’s 1991 autopsy, so that Carissa’s revamped 1996 medical record would resemble Destiny’s; (2) obstructing justice by, inter alia, aiding and abetting Drs. Boggs and Reda in eschewing court appearances; (3) improperly asking jurors to compare Carissa’s and Destiny’s deaths, in order to discern a common scheme or plan of action by Ms. Vildosola, thereby confusing the jury; (4) tainting jurors by repeatedly declaring that the jury should punish Ms. Vildosola for the uncharged “offense” of murdering Carissa, and that the punishment should be a conviction for the murder of Destiny; (5) concealing or destroying exculpatory evidence, such as the occipital lobe artifact misplaced by Dr. Ribe; (6) vouching for the credibility of prosecution witnesses, such as Drs. Ribe and Sheridan; (7) personally attacking the credibility of defense witnesses, such as Dr. Ryan and Ms. Vildosola; and (8) ad hominem attacks on the defendants.

Prosecutorial misconduct of sufficient magnitude to deny a defendant’s right to a fair trial constitutes violation of due process rights under the Fifth and Fourteenth Amendments of the United States Constitution, warranting habeas corpus relief.  Greer v. Miller (1987) 483 U.S. 756, 107 S. Ct. 3102, 97 L. Ed. 2d 618.  See also Blackledge v. Perry (1974) 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (habeas corpus writ issuance aff’d because petitioner’s due process rights violated); Cicenia v. Lagay (1958) 357 U.S. 504, 73 S. Ct. 1297, 2 L. Ed. 2d 1523 (habeas corpus petition may claim violation of Due Process Clause of the 14th Amendment); Windham v. Merkle (9th Cir. 1998) 163 F. 3d 1092, 1103 (due process violated if trial is fundamentally unfair); Wainwright v. Greenfield (1986) 474 U.S. 284, 106 S. Ct. 634, 88 L. Ed. 2d 623 (new trial aff’d on habeas corpus review where prosecutor violated due process under 14th Amendment); In re Bower (Cal. 1985) 38 Cal. 3d 865, 869, 700 P. 2d 1269, 1271, 215 Cal. Rptr. 267 (prosecution committed due process violation, justifying modification of judgment).

The Assistant District Attorney (hereinafter “D.A.”) violated the due process rights of Ms. Vildosola by, inter alia:


A.  conspiracy


The prosecution, including but not necessarily limited to Deputy District Attorney Cheri Lewis and the Family Violence Division of the Los Angeles District Attorney’s Office, where Ms. Lewis is employed, committed at least six conspiratorial acts, all of which may or may not have been part of one common conspiracy to secure Ms. Vildosola’s conviction and to protect governmental entities associated with child welfare from liability:  (1) arranging with the San Bernardino Coroner’s office to transform Carissa Neria’s autopsy, in order to facilitate the prosecution of Ms. Vildosola for the abuse and murder of Destiny; (2) aiding and betting the concealment or destruction of the occipital lobe fragment ostensibly showing a contre coup injury, which was mishandled by Dr. Ribe; (3) aiding and betting Drs. Boggs (the negligent Santa Marta Hospital physician whose excessive CPR caused pneumothorax, from which Destiny died) and Reda (the Long Beach Memorial Hospital pediatrician who treated Destiny for bilateral pneumothorax, acute respiratory distress syndrome, and cardiogenic shock) in their nonappearance during the trial; (4) collaborating with the Los Angeles Department of Childrens’ Services and Cindy Romero in concealing evidence of sexual and physical abuse perpetrated against Destiny by Billy Jacobo III; (5) hiding evidence of abuse by Daniel and Joanne Garza, Destiny’s foster parents during her first fifteen months of life, in collaboration with the Los Angeles Department of Childrens’ Services and Cindy Romero; and (6) blaming Esther Jacobo for some or all of Destiny’s abuse, in collaboration with the Los Angeles Department of Childrens’ Services, Cindy Romero, and Los Angeles County Sheriff’s Department Homicide Detectives Robert Tauson and Paul Delhauer (both of whom were Coroner’s Investigators during 1995-1996 (see RT 1171 L. 27-1172 L. 16)), in order to coerce Esther into testifying against Ms. Vildosola.  See RT 2064 L. 6-9 (“We gave [Esther] immunity … in the hope that she would come clean.”).

Criminal defendants and civil complainants may allege conspiracies involving prosecutors, other governmental agents, and lay witnesses, both as affirmative defenses and in suing for damages.  Briscoe v. LaHue (1983) 460 U.S. 325, 330, 103 S. Ct. 1108, 1113, 75 L. Ed. 2d 96 (“nongovernmental witnesses [can] act under color of law … by conspiring with a prosecutor or other state officials”); Dennis v. Sparks (1980) 449 U.S. 24, 27-29, 101 S. Ct. 183, 186-187, 66 L. Ed. 2d 185 (no immunity for state officials conspiring with other state officials or private parties); Ashelman v. Pope (9th Cir. 1986) 793 F. 2d 1072, 1077 (no prosecutorial immunity where prosecutors conspired to predetermine outcome of proceeding); Beard v. Udall (9th Cir. 1981) 648 F. 2d 1264, 1271 (per curiam) (no prosecutorial immunity unless prosecutor is acting within scope of authority and in quasi-judicial capacity); Jacobson v. Rose (9th Cir. 1978) 592 F. 2d 515, 524 (prosecutors enjoy only qualified immunity for actions taken in administrative or investigational authority), cert. den. (Jacobson v. Rose (1979) 442 U.S. 930, 99 S. Ct. 2861, 61 L. Ed. 2d 298).  Cf. Supreme Court of Virginia v. Consumers Union (1980) 446 U.S. 719, 737, 100 S. Ct. 1967, 1977, 64 L. Ed. 2d 641 (party can obtain injunctive and declaratory relief against prosecutor) and Rankin v. Howard (9th Cir. 1980) 633 F. 2d 844, 847 (no judicial immunity for acts lacking personal jurisdiction, such as prior agreements), cert. den. (Zeller v. Rankin (1981) 451 U.S. 939, 101 S. Ct. 2020, 68 L. Ed. 2d 326).

Prosecutor Lewis acted outside the scope of her authority and beyond the bounds of her qualified immunity, because she conspired with witnesses (including Boggs and Reda), DCS employees (including Cynthia Romero), and governmental representatives (including the Los Angeles and/or San Bernardino Coroners) to predetermine the outcome of the Jacobo-Vildosola prosecution.  Such prosecutorial misconduct constitutes reversible error, and warrants habeas corpus relief.




Ms. Lewis obstructed justice by secluding or not calling witnesses whom she knew would provide exculpatory testimony, including, inter alia:  (1) Dr. Joseph Boggs, (2) Dr. Zacharia Reda, (3) Ernie Rodgriguez, (4) Henry Diaz, (5) Raymond Saucedo, (6) Eric Klimek, (7) Michael William Jacobo, (8) John Estrella, and (9) Jimmy Sanchez.

(1) Boggs killed Destiny by providing negligent medical services.  Boggs’ California medical license was suspended in December of 1995, just a few days before killing Destiny.  A few years earlier, he was convicted of driving while intoxicated.  Boggs was the very first name on the prosecution’s list of witnesses (CT 367 L. 1), so his nonappearance was conspicuous.  Lewis encouraged Boggs to disappear and hide during the trial (e.g., RT 1438 L. 27-1439 L. 8) (Boggs disappeared from Santa Marta Hospital on the heels of Destiny’s death).

When Destiny was rushed by her parents to Santa Marta Hospital, Boggs performed cardiopulmonary resuscitation on the small baby with such force that he caused bilateral pneuthorax, or the bursting of both of Destiny’s lungs.  Rather than take responsibility for his errors, Boggs transferred Destiny the rather formidable distance of nearly twenty miles to Long Beach Memorial Hospital, where Destiny was seen by Dr. Reda.

(2) Reda treated Destiny for pneumothorax, acute respiratory distress syndrome (ARDS), and cardiogenic shock, and noted that Destiny had subarachnoid hemorrhaging (not symptomatic of SBS or BCS) and renal dysfunction.  Reda would have testified that Destiny’s cause of death was ARDS, precipitated by pneumothorax, contradicting Lewis’ premise that Destiny died of SBS.  Although she knew that Reda would ruin her case, Lewis told the jury that Reda’s testimony would be a waste of time, and that Reda should not be inconvenienced by a trip all the way from Long Beach to the court (RT 2252 L. 28-2253 L. 2).  Yet Destiny, after being fatally injured by Boggs, was inconvenienced by an equally long trip from Monterey Park to Long Beach.

Messrs. Rodriguez, Diaz, Saucedo, and Klimek were all on the prosecution’s witness list, and came to court several times, expecting to be called to testify, but were never allowed to take the stand.  All of these individuals were eyewitnesses to the events of December 5, 1995 or January 21, 1991, and each would have provided exculpatory testimony:  (3) Mr. Rodriguez told the investigating detectives, Ms. Lewis, and Messrs. O’Brien and Santana that he observed Little Billy (Billy III) alone with Destiny in the back bedroom of Esther Jacobo’s home throwing Destiny into the air (contained within the Police Supplementary Report, and alluded to at CT 157 L. 22-158 L. 27 (“The officer is here who took the statement”)); (4) Mr. Diaz worked throughout the day of December 5, 1995, just outside the open door of the back bedroom of Esther Jacobo’s house, where Destiny slept, and he never saw or heard any abuse of Destiny; (5) Mr. Saucedo was also working at Esther Jacobo’s home during the afternoon and evening of December 5, 1995, and never heard nor saw any abuse of Destiny; and (6) Mr. Klimek, the boyfriend of Ms. Vildosola’s mother Frances, was present at Ms. Vildosola’s grandmother’s house during the night of January 21, 1991, when Carissa Neria died, and neither heard nor saw any abuse.

Three other exculpatory witnesses were known to the prosecution, but neither called nor included in the prosecution’s witness list:  (7) Michael Jacobo witnessed Billy III sneaking to “play” with Destiny, saw Billy III abusing Anthony Jacobo, and was himself abused by Billy III; (8) John Estrella also saw Billy III throwing Destiny into the air on a different occasion from Ernie Rodriguez’s sighting; and (9) Jimmy Sanchez, Billy III’s stepfather, would have served as a powerful character witness against Billy III, because he was arrested for sexually molesting Michael William and Anthony Jacobo based on Billy III’s false allegations, then released when the children came forward and declared that they were actually abused by Billy III.  Just as he lied about his stepfather, Billy III likewise lied on the stand in the trial against his stepmother, Ms. Vildosola.

Ms. Lewis knew that if Boggs, Reda, Rodgriguez, Diaz, Saucedo, Klimek, Michael Jacobo, Estrella, or Sanchez testified, any one of them would at least establish reasonable doubt as to Ms. Vildosola’s guilt.  Lewis was aware that:  (1) Boggs and Reda would reveal evidence of Destiny’s pneumothorax; (2) Rodriguez, Estrella, and Michael Jacobo would testify that Billy III abused Destiny; (3) Diaz and Saucedo would confirm that Destiny was not abused on December 5, 1995; (4) Sanchez and Michael Jacobo would have destroyed Billy III’s credibility; and (5) Klimek would establish that Carissa was not abused, and that all of the above testimony would be exculpatory.  Moreover, Messrs. Diaz and Estrella were intimidated by the police to discourage their testimony.

The prosecutors in a criminal trial may be charged with obstruction of justice.  Cal. Pen. C. Part 1 (Crimes and Punishments), Title 7 (Crimes Against Public Justice), Chapter 8 (Conspiracy) § 182(a)(5) (Criminal Conspiracy) (“If two or more persons conspire … [t]o commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws … they shall be punishable by imprisonment in the county jail … or fine ….” [Emphasis added.]); Cal. Pen. C. Part 1, Title 7, Chapter 1 (Bribery and Corruption) § 96.5(a) (Obstruction of Justice) (“Every judicial officer, court commissioner, or referee who commits an act that he or she knows, or should have known, perverts or obstructs justice or the due administration of the laws, is guilty of a public offense punishable by imprisonment ….”).  Also see Ellis v. Henry (ND Cal. 1996) 1996 U.S. Dist. Lexis 2088 (prosecution allegedly obstructed habeas corpus petitioner’s right to subpoena witnesses); People v. Bookhammer (CA 1st Cal. 1963) 223 Cal. App. 2d 278, 281, 35 Cal. Rptr. 779 (arguing that failure of prosecution to call its witnesses amounts to willful suppression of evidence).  Cf. People v. Torres (App. Dept. Sup. Ct. L.A. 1984) 159 Cal. App. 3d Supp. 8, 14, 206 Cal. Rptr. 537, 541 (case dismissed because prosecution refused to call witnesses).

By, inter alia, intentionally and maliciously intimidating (Diaz and Estrella) and hiding (Boggs and Reda) witnesses, and refusing to call others (e.g., Rodriguez, Saucedo, Sanchez, Klimek), Ms. Lewis obstructed justice, causing reversible error.




Prosecutor Lewis’ declamations hopelessly confused the jury, particularly her assertions concerning the errantly admitted autopsy file of Carissa Neria.  Lewis knew or should have known that the evidence concerning Carissa’s death was admitted for the limited purpose of proving whether, based upon her behavior at the time of Carissa’s death, Ms. Vildosola had knowledge of the danger to and conscious disregard for human life, and that recurrence of such behavior killed Destiny.  Lewis wantonly disregarded those strictures, exploiting Carissa’s autopsy material unrestrictedly, accusing Ms. Vildosola of murdering Carissa and asking the jury to punish Ms. Vildosola for Carissa’s murder.

First, Ms. Lewis told the jury, during her closing argument, that they could use Carissa’s autopsy data to find a common scheme, plan, or method of action vis-à-vis Destiny’s death, despite the fact that Ms. Vildosola was never charged with any crime or offense in connection with Carissa’s death.  RT 2049 L. 28-2050 L. 7.  Evidence about a defendant’s character, such as an uncharged offense, may not be used to prove conduct on a specified occasion.  Cal. Pen C. § 1101(a); Thompson, supra, at 27 Cal. 3d 316.  By so muddling the jury’s minds as to the appropriate use of Carissa’s autopsy record, Lewis deluded the jurors.  “The primary reason that underlies this basic rule of exclusion is not the unreasonable nature of the forbidden chain of reasoning.  Rather, it is the insubstantial nature of the inference as compared to the ‘grave danger of prejudice’ to an accused when evidence of an uncharged offense is given to a jury.”  Id. at 317.  Evidence of uncharged offenses produces an “over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts,” and breeds a “tendency to condemn,” not so much because the defendant is believed guilty of the present charge as because the condemned is believed to have “escaped unpunished” from the previous offense.  Wigmore, Evidence, 3d (1940) § 194, 650.  Because the jurors were confused as to the purpose for which information about Carissa was admitted, they naturally used that information for its most impermissible purpose—to condemn Ms. Vildosola for Carissa’s death.

Secondly, Lewis explicitly asked the jury panel to condemn Ms. Vildosola for Carissa’s death.  Lewis argued that Ms. Vildosola murdered both Carissa and Destiny, and that she needed to be punished for killing Carissa (e.g., RT 2049 L. 25-27 (“After the second baby died she finally got caught, and she is finally being held accountable for her actions with regard to Destiny.”); RT 2051 L. 10-12 (“She didn’t care what was happening to Carissa any more than she cared what was happening to Destiny.”) & 18-23 (“that prior child abuse and murder of Carissa is of the same type as [Destiny’s]”); RT 2052 L. 7 (“she did commit murder of the prior baby”); RT 2053 L. 10-12 (“The baby [Carissa] had already been murdered before … the Emergency Medical Technician got there on January 21st[, 1991]”); RT 2095-2096, 2099-2101, RT 2247 L. 28-2248 L. 2 (“Vildosola got away with murder on that baby [Carissa], and I hope she does not get away with murdering this one.”).

Jury confusion is a recognized form of prosecutorial misconduct.  People v. Pineiro (CA 1st Cal. 1982) 129 Cal. App. 3d 915, 922, 179 Cal. Rptr. 883, 887 (prosecutor misstated law and facts during closing argument), rev. den.  Cf. People v. Smithey (Cal. 1999) 20 Cal. 4th 936, 983, 978 P. 2d 1171, 1200, 86 Cal. Rptr. 2d 243 (during deliberations, jury was confused re special circumstances), reh’g den. (21 Cal. 4th 845a), cert. den. (Smithey v. California (2000) 529 U.S. 1026, 120 S. Ct. 1435, 146 L. Ed. 2d 324).

Jury confusion is also a ground for reversal of judgment.  Delli Paoli v. United States (1957) 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (reversible error if instructions lack sufficient clarity); People v. Garceau (Cal. 1993) 6 Cal. 4th 140, 187-188, 862 P. 2d 664, 692, 24 Cal. Rptr. 2d 664 (arguing that trial court committed reversible error because “instructions represented ‘chaotic array’ that confused the jury”), reh’g den. (1994), cert. den. (Garceau v. California (1994) 513 U.S. 848, 115 S. Ct. 144, 130 L. Ed. 2d 84).  Cf. Brignoli v. Seaboard Transportation Co. (Cal. 1947) 29 Cal. 2d 782, 789, 178 P. 2d 445, 449 (failure of trial judge “to give defendant’s instruction … confused the jury and seriously affected the outcome of the trial.”), reh’g den., and Bean v. Calderon (9th Cir. 1998) 163 F. 3d 1073, 1091 (O’Scannlain, J., partially concurring and partially dissenting) (according to majority, jury could be confused re which crimes applied to instructions re “aiding and abetting” and “conspiracy”), cert. den. (Calderon v. Bean (1999) 528 U.S. 922, 120 S. Ct. 285, 145 L. Ed. 2d 239).  When there is a reasonable likelihood that a jury may be confused, the court should issue clarifying instructions.  United States v. Dorri (9th Cir. 1994) 15 F. 3d 888, 892 (Kozinski, C.J., dissenting) (after learning jury was confused, defense counsel objected to original instruction and asked judge to clarify), cert. den. (Dorri v. United States (1994) 513 U.S. 1004, 115 S. Ct. 521, 130 L. Ed. 2d 426).  Cf. United States v. Garcia-Guizar (9th Cir. 1998) 160 F. 3d 511, 519 (jury was confused and queried the judge, but judge’s response “did little to clarify the situation”); Klemme v. Hoag Memorial Hospital Presbyterian (CA 4th Cal. 1980) 103 Cal. App. 3d 640, 648, 163 Cal. Rptr. 109 (offered “clarifying” instructions “would have confused the jury beyond hope”), reh’g den.; and Johns v. City of Los Angeles (CA 2nd Cal. 1978) 78 Cal. App. 3d 983, 994, 144 Cal. Rptr. 629, 635 (instruction confused jury, evidenced by notes to judge asking for clarification), reh’g den., rev. den.

Unfortunately, not only did prosecutor Lewis confuse the jury, but the judge refused to instruct the jury as to what specifically described information (i.e., Carissa’s autopsy) would be subject to what precise evidentiary limitations (i.e., proving knowledge of danger to and conscious disregard for human life), instead issuing the vague prescriptions of CALJIC 2.09 (see § XV, infra (Abuse of Discretion) and RT 2014 L. 13-18).  See also United States v. Frega (9th Cir. 1999) 179 F. 3d 793, 809 (jury clearly expressed its confusion about a controlling legal principle, and explicitly requested clarification from the trial judge), cert. den. (Frega v. United States (2000) 528 U.S. 1191, 120 S. Ct. 1247, 146 L. Ed. 2d 105), citing Bollenbach v. United States (1946) 326 U.S. 607, 612-613, 66 S. Ct. 402, 405, 90 L. Ed. 350 (when jury is confused, trial judge should clear the way “with concrete accuracy”).  Under circumstances such as these, when the jury was likely to be confused, the introduction of evidence concerning Carissa Neria’s death was reversible error, mandating habeas corpus relief.




By, inter alia, repeatedly requesting that the jury punish Ms. Vildosola for Carissa Neria’s death, and declaring that Carissa was murdered by Ms. Vildosola, Prosecutor Lewis tainted the jury, fomenting the jurors to return a guilty verdict against Ms. Vildosola based, at least in part, on Ms. Vildosola’s unindicted association with Carissa’s demise.  See Mach v. Stewart (9th Cir. 1998) 137 F. 3d 630, 631 (rev’g denial of habeas corpus petition because jury was “biased and tainted” by “introduction of prior bad acts”), 633 (“at least one juror was tainted,” violating defendant’s “right to an impartial jury”) & 634 (Sixth Amendment right to unbiased jury violated because taint “substantially affected jury’s verdict”); Lawson v. Borg (9th Cir. 1995) 60 F. 3d 608, 614 (Trott, C.J., dissenting) (“if even one juror is tainted” by admission of evidence of “prior bad acts” or “reputation,” defendant is “denied a fair trial”), citing Dickson v. Sullivan (9th Cir. 1988) 849 F. 2d 403, 408-409 (new trial granted, because comment that defendant had done “something like this before” could “only be understood as referring to a previous act of brutality or murder”), citing Parker v. Gladden (1966) 385 U.S. 363, 366, 87 S. Ct. 468, 471, 17 L. Ed. 2d 420 (defendant is “entitled to be tried by 12, not 9 or even 11 … unprejudiced jurors”).  See also United States v. Lewis (9th Cir. 1986) 787 F. 2d 1318, 1323 (“To tell a jury to ignore the defendant’s prior conviction [or uncharged offense] in determining whether he or she committed the offense being tried is to ask human beings to act with a measure of dispassion and exactitude well beyond mortal capacities.”), reh’g en banc den. (798 F. 2d 1250), cert. den. (Lewis v. United States (1989) 489 U.S. 1032, 109 S. Ct. 1169, 103 L. Ed. 2d 227), quoting United States v. Daniels (D.C. Cir. 1985) 770 F. 2d 1111, 1118, 248 U.S. App. D.C. 198.

Because their prejudicial impact vastly exceeded their probative value, Carissa’s autopsy findings should never have been admitted into evidence at trial.  However, the trial judge attempted to limit their use to establishing whether Ms. Vildosola had knowledge and conscious disregard of the danger to human life of the actions which allegedly caused the deaths of Carissa and Destiny.  Prosecutor Lewis then proceeded to use the information about Carissa to unmitigatedly smear Ms. Vildosola.  Lewis proclaimed that Ms. Vildosola murdered both Carissa and Destiny, and that she needed to be punished for killing Carissa (e.g., RT 2049 L. 25-27 (“After the second baby died she finally got caught, and she is finally being held accountable for her actions with regard to Destiny.”); RT 2051 L. 10-12 (“She didn’t care what was happening to Carissa any more than she cared what was happening to Destiny.”) & 18-23 (“that prior child abuse and murder of Carissa is of the same type as [Destiny’s]”); RT 2052 L. 7 (“she did commit murder of the prior baby”); RT 2053 L. 10-12 (“The baby [Carissa] had already been murdered before … the Emergency Medical Technician got there on January 21st.”); RT 2095-2096, 2099-2101, RT 2247 L. 28-2248 L. 2 (“Vildosola got away with murder on that baby [Carissa], and I hope she does not get away with murdering this one.”).


E.  Exclusion of Exculpatory Evidence


The right to due process guarantees that any evidence which has been destroyed or is otherwise unavailable at time of trial must be excluded.  Hitch, supra, at 641; Arizona v. Youngblood, supra (bad faith loss or destruction of possibly exculpatory evidence violates Fourteenth Amendment); California v. Trombetta (1984) 467 U.S. 479, 487, 104 S. Ct. 2528, 2533, 81 L. Ed. 2d 413 (destruction or loss of possibly exculpatory evidence not Due Process Clause violation if substitute evidence available); People v. Roybal (Cal. 1998) 19 Cal. 4th 481, 508, 966 P. 2d 521, 537, 79 Cal. Rptr. 2d 487 (no due process violation when prosecution lost or destroyed nonexculpatory evidence), reh’g den. (1999 Cal. Lexis 23), cert. den. (Roybal v. California (1999) 528 U.S. 832, 120 S. Ct. 89, 145 L. Ed. 2d 75); United States v. Cooper (9th Cir. 1993) 983 F. 2d 928, 930 (indictment dismissed because government buried evidence in toxic waste dump).  Among the potentially exculpatory evidence lost, destroyed, concealed, or suppressed by the prosecution were the following five items, inter alia:

(1) The missing “piece” of Destiny’s occipital lobe which Dr. Ribe testified to be evidence of a contre coup blunt force injury related to SBS (see, e.g., CT 174 L. 17-175 L. 6).  Considering that Destiny had no subdural hematomas, a universal finding in SBS victims, the prosecution needed evidence that Destiny was physically abused.  Since no such evidence exists, and there was no evidence of a coup injury, Ms. Lewis and Dr. Ribe had to pin all of their hopes on the brain material excised by Ribe.  To win a conviction, Lewis and Ribe introduced testimony about the missing material, but concealed it from the defendants, the court, and the jury.

(2) At least nineteen (19) of 33 photographs taken during the autopsy of Carissa Neria disappeared before trial.  Consequently, only fourteen (14) photographs were introduced at trial.  The missing photographs would have shown that Carissa had no bruises, nor any other signs of physical abuse (RT 622 L. 14-626 L. 1).  If the prosecution had not concealed or destroyed the missing photographs, Carissa’s autopsy would probably have been excluded from evidence, and Ms. Vildosola would have been exculpated.

(3) At least eighteen (18) photographs of Destiny, ten (10) of which were taken by the Monterey Park Police Department, and eight (8) of which were taken at Santa Marta Hospital (only three 35 mm. photographs from Long Beach Memorial Hospital were introduced at trial), which would have shown that immediately prior to hospitalization, Destiny had very little bruising, and no needle marks (RT 1109 L. 17-1111 L. 11 (when the Court asks whether any photographs are from Santa Marta, Lewis replies, “I don’t know.”) & RT 1132 L. 2-6 (asked where proffered photographs were taken, Police Officer Ostremba responds, “I don’t know”)).

The missing photographs would have exculpated Ms. Vildosola insofar as the needle punctures are concerned.  The prosecution argued that the needle marks were evidence that Destiny was abused by her parents.  RT 2128 L. 11-17 (“the baby had been battered, beaten and punctured to death”).  The prosecution contended that nineteen (19) nontherapeutic needle notches were found during Destiny’s autopsy (CT 134 L. 13-19).  Yet Officer Otremba, who was with Destiny shortly after she arrived at Santa Marta Hospital, saw no needle marks (RT 1130 L. 19-24).  Likewise, no needle marks or puncture wounds were noted by the hospital staffs of either Santa Marta or Long Beach Memorial Hospitals (RT 1379 L. 9-1380 L. 6).  Furthermore, Ribe failed to interview any hospital personnel to determine which needle incisions were therapeutic or nontherapeutic, and made no test to aid in distinguishing therapeutic from nontherapeutic needle marks (CT 165 L. 6-166 L. 2).  If the eighteen (or more) missing photographs had been available, the defendants would have successfully argued that the needle marks were the result of injections made by hospital personnel during efforts to revive Destiny (RT 2188 L. 3-13).

The missing photographs would also have been exculpatory with respect to Destiny’s bruising.  They would have revealed that Destiny’s bruising was not caused by her parents, but by “violent” CPR administered during her hospitalizations at Santa Marta and Long Beach Memorial Hospitals, exacerbated by her bleeding disorder (RT 2233 L. 4-2235 L. 5 (bruising was caused by “well-intentioned violence” used to resuscitate a child with a “coagulation problem”)).  The prosecution systematically excluded all exculpatory photographs in order to maintain their fallacious theory that Destiny was a victim of SBS.

A criminal conviction must be reversed if the prosecutor failed to present any and all evidence exculpatory of the defendant.  Brady, supra (murder retrial granted because state suppressed evidence favorable to the accused, violating 14th Amendment Due Process Clause); Giles v. Maryland (1967) 386 U.S. 66, 98, 87 S. Ct. 793, 809, 17 L. Ed. 2d 737 (Fortas, J., concurring) (violation of due process of law for prosecution to withhold evidence); California v. Trombetta, supra, 467 U.S. at 488-489, 81 L. Ed. 2d at 422 (duty to preserve limited to (1) evidence with exculpatory value apparent before evidence was destroyed, where (2) defendant would be unable to obtain comparable evidence by reasonable means); Arizona v. Washington (1978) 434 U.S. 497, 516, 98 S. Ct. 824, 836, 54 L. Ed. 2d 717 (new trial granted where prosecutor deliberately withheld exculpatory evidence from defense).  See also Cal. Const., Art. I § 7 (2000) (Due Process; Equal Protection; Privileges and Immunities); Cal. Penal Code § 939.7 (consideration of exculpatory evidence); Cal. Penal C. § 1054.1 (information to be disclosed by prosecution); United States v. Brumel-Alvarez (9th Cir. 1992) 976 F. 2d 1235, 1242 (prosecutor’s withholding of evidence favorable to the accused violates due process if evidence is material to either guilt or innocence); In re Lessard (Cal. 1965) 62 Cal. 2d 497, 508-509, 399 P. 2d 39, 46-47, 42 Cal. Rptr. 583 (suppression of substantial material evidence favorable to the accused violates due process, irrespective of good or bad faith of prosecution); Hendricks v. Zenon (9th Cir. 1993) 993 F. 2d 664, 672 (prosecution withheld exculpatory evidence, depriving habeas corpus petitioner of due process rights), amended by 1993 U.S. App. Lexis 16929; Hitch, supra (due process violation for prosecution to destroy evidence of potential exculpatory value before defense has chance to examine or test it); Wang Zong Xiao v. Reno (ND Cal. 1993) 837 F. Supp. 1506, 1555 (burying document and failing to produce document during discovery was brazen Brady doctrine violation), aff’d Wang v. Reno (9th Cir. 1996) 81 F. 3d 808; People v. Roybal, supra, 19 Cal. 4th at 508, 966 P. 2d at 537 (defendant alleged that prosecution lost or destroyed exculpatory evidence in contravention of Fourteenth Amendment Due Process Clause, and that comparable evidence could not be obtained by any other means); People v. Matian (CA 2nd Cal. 1995) 35 Cal. App. 4th 480, 483, 41 Cal. Rptr. 2d 459, 460 (prosecution’s withholding of material evidence violates due process), rev. den. (1995 Cal. Lexis 5813), cert. den. (Matian v. California (1996) 516 U.S. 1129, 116 S. Ct. 947, 133 L. Ed. 2d 871); Zapien, supra, at 4 Cal. 4th 1008, 846 P. 2d at 751 (Mosk, J., dissenting) (prosecution destroyed evidence which foreseeably could have established prosecutorial misconduct).

(4) The prosecution assisted in the disappearance and/or nonappearance of two exculpatory medical witnesses, and intentionally excluded at least ten exculpatory lay witnesses.  The most arrant example is Dr. Joseph Boggs of Sta. Marta Hosp., who killed Destiny by bursting her lungs (causing pneumothorax) while performing CPR (RT 1313 L. 13-14; RT 1344 L. 11-17; RT 1839, L. 17-24), passing Destiny on immediately thereafter to Dr. Reda at Long Beach Mem. Hospital.  Boggs then left Sta. Marta, and, although first on the prosecution’s witness list, was never called to testify because, according to Lewis, he was unlocatable (e.g., RT 1250 L. 22-24 (“if we ever find Boggs”); RT 2257 L. 17-18).  Similarly, Lewis kept Reda from testifying, claiming that it would be a waste of time, and that Reda should not be burdened by the long drive from Long Beach (RT 2252 L. 28-2253 L. 2).  Lewis also refused to call such exculpatory lay witnesses as Ernie Rodriguez, John Estrella, Henry Diaz, Raymond Saucedo, Michael Jacobo, Eric Klimek, Jimmy Sanchez, and Gloria Rodriguez Jacobo.  See §§ XII.E. & XIV.B., supra.

(5) The prosecution also failed or refused to consider mountainous exculpatory medical evidence.  For instance, autopsy findings strongly suggest pneumothorax, aggressive CPR, pneumonia, bronchitis, meningitis, blood dyscrasias, self-inflicted (paroxysmal) wounds, accidental injuries, and/or congenital defects caused Destiny’s death.  Yet Cheri Lewis relentlessly and exclusively pursued a dubious SBS theory.


F.  Vouching


Prosecutor Lewis improperly vouched for the credibility of prosecution witnesses, such as Dr. James Ribe, Billy Jacobo III, Dr. Frank Sheridan, and Diana Elliott, PhD.  The credentials of prosecution experts Ribe and Sheridan were lavishly lauded, while the credentials of Dr. John Ryan, the lone defense expert, were vilified.  Lewis went so far as to vouch for Ribe’s credibility, arguing, “[H]is opinion is the expert opinion that you should trust and rely on with regard to how Destiny died ….  RT 2106 L. 6-7.

In vouching for the credibility of Billy III (RT 2077 L. 3-15), Lewis claimed that the boy “even said at one point that he was being careful to be truthful, because he didn’t want to lie.”  RT 2077 L. 10-12.  Lewis further vouched for Billy III’s credibility through attribution to Dr. Elliott:  “[Billy’s] credibility … ended up being corroborated … by Dr. Elliott, the psychologist, who also found him very credible when she interviewed him.”  RT 2077 L. 12-15.  “[Dr. Elliott’s] opinion … of little Billy’s credibility is that he was very insightful and observant.”  RT 2078 L. 4-6.  “Dr. Elliott’s opinion [of] this little boy, Billy, … is that he was very thoughtful and insightful.  RT 2078 L. 26-28.  The highlighted text above pinpoints classic examples of vouching.

Ms. Lewis then proceeded to vouch for the credibility of Dr. Elliott.  See RT 2077 L. 16-2080 L. 21.  For example, “in evidence is a copy of [Dr. Elliott’s] resume vitae [sic], … detailing all of her credible experience.”  RT 2077 L. 16-18.  Next, she vouched for Marina Neria, another child interviewed by Elliott, declaring that Marina “was pretty straightforward when she testified.”  RT 2079 L. 24-25.  Simultaneously, Lewis belittled testimony by Marina that might be construed as “protective” toward Ms. Vildosola.  See, e.g., RT 2080 L. 2-3 (“[Marina] was protective of her mother”); RT 2080 L. 13 (“she was protective”); RT 2080 L. 15-16 (“Marina was not totally candid”); RT 2080 L. 20-21 (“being protective of her mother.”).

The prosecutor further vouched for the authenticity of police officer Otremba.  See RT 2082 L. 4-2083 L. 5.  Lewis declared, for instance, that “[Officer Otremba] was obviously a credible witness ….” (RT 2082 L. 7), and that “He was honest ….” (RT 2082 L. 11).  Such testimonials to truthfulness undoubtedly swayed the jury.

Vouching is a ground for granting a new trial or habeas corpus relief.  Lambright, supra (vouching for witness credibility was basis for granting certificate of appealability); Dubria, supra, at 1004 (prosecutor cannot express opinion about defendant’s guilt or vouch for government witnesses); Thomas v. White (9th Cir. 1999) 1999 U.S. App. Lexis 11082 (habeas petition denied because prosecution did not improperly vouch its primary witness); In re Marvich (Cal. 1946) 27 Cal. 2d 503, 506, 165 P. 2d 241, 242 (habeas corpus petitioner alleged that prosecutor vouched for truthfulness of State’s witness despite knowing that it was perjured), cert. den. (Marvich v. California (1946) 328 U.S. 841, 66 S. Ct. 1014, 90 L. Ed. 1616).  See also Cal. Evid. C. prec. § 785 (Attacking or Supporting Credibility of Witnesses); Cal. Evid. C. § 790 (Attacking or Supporting Credibility:  Good character of witness); 58 ALR 4th 1229 (improper vouching for credibility of witnesses); Cal. Const. Art. VI § 13 (Overturning erroneous judgments) (improper for district attorney to vouch for credibility of two police officers), citing People v. Houghton (CA 3rd Cal. 1963) 212 Cal. App. 2d 864, 28 Cal. Rptr. 351, rev. den.

Vouching by a prosecutor regarding the credibility of witnesses poses two dangers:  (1) Such comments may convey to the jury that evidence known to the prosecutor but not presented at trial supports charges against the defendant, thereby jeopardizing the defendant’s right to be tried solely on the basis of evidence presented to the jury; and (2) the prosecutor’s opinion bears the implicit imprimatur of the government, possibly inducing the jury to substitute the judgment of governmental authority for its own view of the evidence.  United States v. Young (1985) 470 U.S. 1, 18, 105 S. Ct. 1038, 1048, 84 L. Ed. 2d 1 (prosecutor’s vouching and expressing personal opinion about guilt of accused was improper and in error, but not to extent that juror’s deliberations were compromised), citing Berger v. United States (1935) 295 U.S. 78, 88-89, 55 S. Ct. 629, 79 L. Ed. 1314 (prosecutor is representative of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest is not to win the case, but to administer justice).  See also Lambright, supra, at 1029 (prosecution allegedly unconstitutionally vouched for credibility of principal defense witness); United States v. Daas (9th Cir. 1999) 198 F. 3d 1167, 1171 (prosecutor improperly vouched for credibility of two witnesses who supplied the only direct evidence of defendant’s culpable intent), cert. den. (Daas v. United States (2000) 121 S. Ct. 498, 148 L. Ed. 2d 468); United States v. Perez (9th Cir. 1995) 67 F. 3d 1371, 1378 (prosecutor impermissibly vouched for credibility of informant witnesses during direct examination and rebuttal argument), reh’g en banc granted (77 F. 3d 1210 (1996)); People v. Frye (Cal. 1998) 18 Cal. 4th 894, 970, 959 P. 2d 183, 223, 77 Cal. Rptr. 2d 25 (prosecutors are prohibited from vouching for credibility of witnesses or otherwise bolstering the veracity of testimony by referring to evidence outside the record), reh’g den. (19 Cal. 4th 253d), cert. den. (Frye v. California (1999) 526 U.S. 1023, 119 S. Ct. 1262, 143 L. Ed. 2d 358), citing People v. Sully (Cal. 1991) 53 Cal. 3d 1195, 1235, 812 P. 2d 163, 283 Cal. Rptr. 144 (alleging prosecutorial misconduct during the guilt phase argument), reh’g. den. (54 Cal. 3d 545a), cert. den. (Sully v. California (1992) 503 U.S. 944, 112 S. Ct. 1494, 117 L. Ed. 2d 634).

Claims that the prosecutor vouched for the credibility of witnesses are reviewed for plain error where no objection was made by the defendant at trial. United States v. Rudberg (9th Cir. 1997) 122 F. 3d 1199, 1206 (prosecutor impermissibly vouched for credibility of his witnesses).  Plain error doctrine protects against errors which seriously affect the “fairness, integrity, or public reputation of judicial proceedings.”  United States v. Atkinson (1936) 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555 (appellate courts may, in the public interest, notice obvious errors despite the fact that no exception was taken).

By telling the jury that her witnesses could be believed while denigrating the truthfulness of defenses witnesses, Prosecutor Lewis engaged in improper vouching—a reversible error calling for habeas corpus relief.


G.  Personal Attacks on Credibility


Ms. Lewis personally attacked the credibility of defense witnesses, including Marina Neria and Drs. John P. Ryan and Nenita R. Duazo.  Such attacks can be a basis for the granting of a new trial or habeas corpus relief.  Cal. Evid. C. prec. § 785 (Attacking or Supporting Credibility of Witnesses); Cal. Const. Art. VI § 13 (Overturning erroneous judgments); People v. Babbitt (Cal. 1988) 45 Cal. 3d 660, 701, 755 P. 2d 253, 276, 248 Cal. Rptr. 69 (habeas corpus petition alleging “Unwarranted Personal Attacks on Defendant’s Expert Witnesses”), reh’g den., cert. den. (Babbitt v. California (1989) 488 U.S. 1034, 109 S. Ct. 849, 102 L. Ed. 2d 981); People v. Brancato (CA 4th Cal. 1948) 83 Cal. App. 2d 734, 740, 189 P.2d 504, 507 (contending that “the district attorney injected his personal opinion by attacking the credibility of the alibi witnesses”), rev. den.  Cf. United States v. West (9th Cir. 1982) 680 F. 2d 652, 656 (judgment rev’d in favor of defendant because defense did not attack personal veracity of government witness, while prosecution attempted to bolster credibility of its witnesses).  See generally Cal. Evid. C. § 780 (Credibility Generally).

For example, Lewis told the jury that they should take Dr. Ryan’s opinions and “throw [sic] out the window.”  RT 2094 L. 15-16.  She referred to Dr. Ryan’s opinion as “worth less than the paper it was written on ….  RT 2094 L. 11-14.  She further maligned Dr. Ryan by remarking that he “doesn’t know what he is talking about,” then reiterated the same obloquy.  RT 2265 L. 16-17 & 18-19.  Lewis also assailed Dr. Duazo, calling her a “junior pathologist.”  RT 2261 L. 25.  The purpose of denouncing Dr. Duazo (who performed Carissa’s 1991 autopsy) was to lend credence to Dr. Sheridan’s 1996 autopsy revision, thereby encouraging jurors to infer Ms. Vildosola’s guilt from the 1996 autopsy.

Lewis both vouched for and attacked Marina Neria’s credibility.  Examples of Lewis’ deprecation of Marina’s veracity can be found at RT 2080 L. 2-3 (“[Marina] was protective of her mother”); RT 2080 L. 13 (“she was protective”); RT 2080 L. 15-16 (“Marina was not totally candid”); and RT 2080 L. 20-21 (“being protective of her mother.”).  Ms. Lewis’ treatment of Marina’s testimony illustrates her consistent tactic of selectively vouching for testimony benefitting the prosecution while attacking the credibility of testimony more helpful to the defense.

Personal attacks by a prosecutor on the credibility of attorneys or witnesses for the defense are improper, requiring reversal or vacating of judgment if having a prejudicial effect on the trial outcome.  Pierson v. O’Leary (7th Cir. 1992) 959 F. 2d 1385, 1388 (prosecution’s calumnious attacks on credibility of defense counsel clearly improper); State v. Klinge (Haw. 2000) 92 Haw. 577, 594, 994 P. 2d 509, 526 (prosecutor’s denunciation of defense counsel during closing argument did not amount to plain error), citing United States v. Linn (10th Cir. 1994) 31 F. 3d 987, 993 (prosecutor impermissibly vouched for witness credibility, and personally attacked defense counsel during closing argument); United States v. Velez (7th Cir. 1995) 46 F. 3d 688, 692 (defendant moved for mistrial because of prosecutor’s opprobrium of defense counsel); State v. Henderson (CA 11th OH 2000) 2000 Ohio App. Lexis 4579 (prosecutor’s endorsement of prosecution witnesses’ truthfulness, and impugnment of the credibility of defendant and his witnesses, were sufficiently pervasive and prejudicial to constitute reversible error); State v. Brumfield (La. 1998) 737 So. 2d 660, 666 (prosecutor should refrain from making personal attacks on defense counsel and strategy); Hernandez v. State (CA 3rd TX 2000) 2000 Tex. App. Lexis 2403 (alleging personal attacks on defense counsel by prosecutor amounted to due process violation).  Cf. People v. Haskett (Cal. 1990) 52 Cal. 3d 210, 246, 801 P. 2d 323, 344, 276 Cal. Rptr. 80 (alleging “Unwarranted Personal Attacks on Defense Counsel”), reh’g den. (1991 Cal. Lexis 690), cert. den. (Haskett v. California (1991) 502 U.S. 822, 112 S. Ct. 83, 116 L. Ed. 2d 56).

By besmirching defense witnesses, and personally attacking their credibility and character, Prosecutor Lewis prejudiced the jury against the defendants, depriving them of their due process rights as promulgated by the Fourteenth Amendment of the United States Constitution.  Therefore, Ms. Vildosola is entitled to habeas corpus relief.




Personal or ad hominem attacks on the character or credibility of a defendant violate the Due Process Clause of the Fourteenth Amendment and Article VI § 13 of the California Constitution (judgment may be set aside where error resulted in miscarriage of justice).  Thus, such attacks are grounds for reversal of judgment or habeas corpus relief.  Oregon v. Kennedy (1982) 456 U.S. 667, 670, 102 S. Ct. 2083, 2086-2087, 72 L. Ed. 2d 416 (conviction rev’d, because personal attack on the general character of defendant left Hobson’s choice—accept “necessarily prejudiced jury,” or move for mistrial and start over); United States v. Prantil (9th Cir. 1985) 756 F. 2d 759, 767 (conviction rev’d where prosecutor launched personalized attack on defendant’s motives during summation), amended by 764 F. 2d 548.  Cf. Church of Scientology v. Wollersheim (CA 2nd Cal. 1996) 42 Cal. App. 4th 628, 648, 49 Cal. Rptr. 2d 620, 632 (direct personal attack on defendant subject to motion to strike), rev. den. (1996 Cal. Lexis 2783).  See generally Cal. Evid. C. § 786 (Attacking or Supporting Credibility:  Character evidence generally), Cal. Evid. C. § 1100 (Evidence Affected or Excluded by Extrinsic Policies:  Evidence of Character, Habit, or Custom), Cal. Evid. C. § 1102 (Opinion and reputation evidence of character of criminal defendant to prove conduct), Cal. Evid. C. § 1324 (Reputation concerning character).

Prosecutor Lewis repeatedly attacked both defendants personally, especially Ms. Vildosola.  For example, she announced during closing argument, “[T]he defendant can cry all she wants.”  RT 2048 L. 21-22.  After an objection to this comment was sustained (RT 2048 L. 23-25), Lewis continued, “You saw her cry throughout the time she was on the witness stand … and she finally took a Kleenex….  There were actually at that point no tears coming out of her eyes.”  RT 2048 L. 26-2049 L. 4.  After another sustained objection (RT 2049 L. 5-7), Lewis again continued, “I can’t argue to you that she was faking the crying….  [T]hose were tears of not remorse over killing either of those two babies, but the fact that she has now been caught.”  RT 2049 L. 20-25.  Later, Lewis argued “[W]e know she didn’t care.  She didn’t give a darn about that baby, about Destiny.  She didn’t care about that baby just like she didn’t care about Carissa Neria.”  RT 2088 L. 8-11.

Lewis also directly referred to both Ms. Vildosola and Mr. Jacobo as “idiots” and “stupid.”  These remarks were apparently expurgated from the trial transcript copies provided to the defendants.  Such censorship is further evidence that the defendants were the victims of a conspiracy detrimental to our system of justice.

Ms. Lewis furthermore went too far in attacking the credibility of the defendants.  She characterized Ms. Vildosola as “lying through her teeth.”  RT 2087 L. 23.  The prosecutor also errantly argued that according to Ms. Vildosola, Destiny “committed suicide” (RT 2269 L. 1-2 & 14) by not always putting her arms out to break her falls.  See RT 2269 L. 1-2270 L. 4.  Ms. Lewis next avouched, “If you believe that, if you buy that, there is this island off California called Catalina I will sell to any of you for 100 bucks.”  RT 2269 L. 22-24.  The last quotation was yet another impermissible attack on Ms. Vildosola’s credibility.

Prosecutor Lewis’ profuse invective against the codefendants, especially Ms. Vildosola, tainted and prejudiced the jury.  Ms. Vildosola was thereby denied the right to a fair, impartial trial.  Accordingly, Ms. Vildosola should be conferred habeas corpus relief.




An abuse of discretion implies that the court has made an unreasonable, unconscionable or arbitrary decision.  Citizens for Non-Toxic Pest Control v. Department of Food & Agriculture (CA 1st Cal. 1986) 187 Cal. App. 3d 1575, 1585, 232 Cal. Rptr. 729, 734 (abuse of discretion shall be found if a decision was arbitrary or capricious, or if proceedings were not conducted in the manner required by law), rev. den. (1987); People v. Allen (Cal. 1986) 42 Cal. 3d 1222, 1291, 729 P. 2d 115, 159, 232 Cal. Rptr. 849 (Bird, C.J., concurring and dissenting) (reviewing court must consider whether there was procedural error; whether any of the findings was the result of passion, prejudice, or any other arbitrary factor; and whether there was abuse of discretion), reh’g den. (1987), cert. den. (Allen v. California (1987) 484 U.S. 872, 108 S. Ct. 202, 98 L. Ed. 2d 153); Koehn v. State Board of Equalization (Cal. 1958) 50 Cal. 2d 432, 434, 326 P. 2d 502, 504, 30 Cal. Rptr. 4 (en banc) (appeals board was arbitrary and capricious, constituting prejudicial abuse of discretion), reh’g den.; Westinghouse Electric Corp. v. Superior Ct. (CA 5th Cal. 1983) 143 Cal. App. 3d 95, 101, 191 Cal. Rptr. 549, 552 (petition alleging that decision of respondent court was unreasonable, arbitrary, and a prejudicial abuse of discretion); People ex rel. Sobieski v. Western Airlines, Inc. (CA 2nd Cal. 1968) 258 Cal. App. 2d 213, 216, 66 Cal. Rptr. 316, 318 (Commissioner prejudicially abused discretion by acting arbitrarily and prejudging issues, thereby abusing the administrative process and denying defendant a fair hearing and trial), reh’g den.

The trial court judge, the Honorable Janice Claire Croft, abused her discretion on several occasions, thereby committing reversible errors.  Among the abuses of discretion for which Ms. Vildosola seeks habeas corpus relief are, inter alia:  (1) Admission of highly prejudicial evidence concerning the death of Carissa Neria, a baby who died under vastly different conditions than Destiny five years earlier; (2) issuing vague and incomplete jury instructions; (3) rejecting each and every one of the nine jury instructions requested by defense counsel (CALJIC 8.21 (CT 526), CALJIC 17.01 (I) (CT 527), CALJIC 17.01 (II) (CT 528), CALJIC 4.80 (CT 529), CALJIC 3.01 (CT 530), CALJIC 3.02 (CT 531), CALJIC 4.71.5 (CT 532), Special Instruction No. A (CT 533), and Special Instruction No. B (CT 534)), while rejecting none of the jury instructions submitted by the prosecution; (4) permitting the admission of “gruesome,” gory, highly prejudicial pictures of Destiny’s autopsy (see, e.g., RT 1256 L. 2-3 & RT 1261 L. 16-1262 L. 8); (5) perfunctorily denying Ms. Vildosola’s Marsden motion (see CT 356 (“Defense Marsden motion is held and denied”)); (6) refusing to allow Ms. Vildosola to use a law library (see RT A-12, L. 23 (Motion for Continuing Order to use Sybil Brand library) through A-13, L. 18 (“motion for continued access privilege is denied”)); (7) refusing to replace a juror who talked constantly to himself, expressing his distaste for the defendants and defense witnesses, during trial proceedings and in the presence of the other jurors (RT 1071 L. 12-1084 L. 1); (8) allowing a juror to remain on the panel despite her intention to go on vacation (RT 2283 L. 20-2287 L. 18); (9) entreating Juror Number 12 for a quick verdict; and (10) generally confusing the panel of jurors.


A.  Admitting Highly Prejudicial Evidence about Carissa Neria


The evidence about Carissa was so potentially inflammatory that it never should have been admitted.  See CT 241 (People’s Motion in Limine to Admit Evidence under Evid. C. § 1101(b), regarding admission of evidence about Carissa), CT 300 (Opposition to Admission of § 1101(b) evidence), and CT 349 (“People’s motion to admit evidence per 1101.1 B [sic] is granted.”).  However, once it became part of the record, the jury should have been admonished to handle it with kid gloves—that is, as objectively and unemotionally as possible, and only for the limited purpose of establishing whether Ms. Vildosola had knowledge of and conscious disregard for the danger of her alleged actions to human life.  Instead, Judge Croft gave the jury broad latitude in their use of the material about Carissa.


B.  Issuing Vague and Incomplete Jury Instructions


The instruction given by Judge Croft pertaining to Carissa’s death information was CALJIC 2.09, which reads:


Certain evidence was admitted for a limited purpose.  At the time this evidence was admitted you were instructed it could not be considered by you for any purpose other than the limited purpose for which it was admitted.  Do not consider this evidence for any purpose except the limited purpose for which it was admitted.”  RT 2014.  [Emphasis added.]


The above instruction, which merely refers to “certain evidence,” is so vague that it undoubtedly caused jury confusion, and encouraged jurors to base their decisions on personal biases and sentiments.  Furthermore, no limiting instruction was issued when the evidence about Carissa was introduced.  See RT 602-664.

Later, a slightly less cryptic directive was furnished to the jury:

“Evidence has been introduced for the purpose of showing that defendant Vildosola committed crimes other than that for which she is on trial.  This evidence, if believed, may not be considered by you to prove that the defendant Vildosola is a person of bad character or that she has a disposition to commit crimes.  It may be considered by you only for the limited purpose of determining if it tends to show a characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case, which would further tend to show the existence of the mental state which is a necessary element of the crime charged in count 1 of the information, namely, murder.  For the limited purpose for which you may consider such evidence you must weigh it in the same manner as you do all other evidence in the case.  You are not permitted to consider such evidence for any other purpose.

Within the meaning of the preceding instruction such other crime or crimes purportedly committed by defendant Vildosola must be proved by a preponderance of the evidence.  You must not consider such evidence for any other purpose unless you are satisfied that defendant Vildosola committed such other crime or crimes.  The prosecution has the burden of proving these facts by a preponderance of the evidence.”  RT 2017-2018.  [Emphasis added.]

The cardinal problem with the above instruction is that it never specifies which “crime or crimes,” if any, are to be considered.  Naturally, the jury must have incorporated all evidence about Carissa and Destiny as a “crime or crimes” to be evaluated by the adjured preponderance of evidence standard of proof!  See Jackson v. Denno (1964) 378 U.S. 368, 388, 84 S. Ct. 1774, 1786, 12 L. Ed. 2d 908, 1 A.L.R. 3d 1205 (discussing whether instructions can overcome prejudicial evidence, despite insufficiency of other evidence to prove guilt beyond a reasonable doubt).

The burden of proof was further confused during closing argument, when Prosecutor Lewis was permitted to say that Dr. Duazo had to be “100 percent sure” before declaring Carissa’s death to be murder.  E.g., RT 2097 L. 16-18 (“in 1991 … she was not 100 percent sure that it was murder”) & 20-21 (“she had to be 100 percent sure”); RT 2100 L. 1-2 (“[Dr. Duazo] felt she had to be 100 percent sure”).  Lewis then argues that unlike Duazo’s “100 percent sure” standard, “You [jurors] only have to be convinced by a preponderance of the evidence, more likely than not.  It is a very low standard, a very low burden that I as a prosecutor have with regard to that issue on the death of Carissa Neria.”  Under such circumstances, the jurors were likely to employ the “very low” preponderance of the evidence standard in finding the defendants guilty of Destiny’s death.  When jury instructions and evidence standards are as vague and incomplete as in Ms. Vildosola’s trial, the jurors are invited to follow their prejudices in arriving at a verdict.




Not only were Judge Croft’s jury instructions vague, but she cursorily refused each and every instruction submitted by the defense, including CALJIC 3.01 (as modified), 3.02 (as modified), 3.31.5, 4.71.5 (as modified, in part), 4.80, 8.31 (as modified), 17.01, and defense’s special instructions A and B, despite beseechment of the defense.  All of the defense’s instructions were reasonable.  Notwithstanding, Judge Croft denied them without explaining her decision—another reversible error.

The purpose of most of the defendants’ instructions were to establish appropriate standards of proof, or requisite mens rea for the crimes charged.  For example, CALJIC 8.31 (see CT 526) enumerates the elements of second degree murder, including (1) intent; (2) high probability that act or omission would result in death; and (3) knowledge of danger to and conscious disregard for human life.  Without this instruction, the jury was more likely to find Ms. Vildosola guilty of second degree murder without unanimously agreeing that her behavior corresponded with each of the three elements listed above.

CALJIC 17.01 (see CT 527 & 528) pertains to cases where the prosecution has presented evidence of more than one act upon which a conviction could be based, and requires that the jurors unanimously agree that the defendant perpetrated one particular act.  In Ms. Vildosola’s case, for instance, the prosecution presented evidence related to the deaths of both Carissa Neria and Destiny Jacobo.  With CALJIC 17.01, the jury would be required to unanimously agree that Ms. Vildosola killed both Carissa and Destiny.  Without that instruction, the jury could agree that Ms. Vildosola killed Destiny by weighing the evidence pertaining to both Carissa and Destiny, even if the evidence was insufficient to convict Ms. Vildosola of killing either Carissa or Destiny.

CALJIC 4.80 (Parent’s Right to Discipline Child) was also refused.  See CT 529.  According to that instruction, parents may lawfully administer corporal punishment which is reasonably necessary, justified, and not excessive under the circumstances.  Without CALJIC 4.80, any injury to Destiny, even if resulting from reasonable disciplinary measures, would be assumed by the jury to be caused by abusive or homicidal acts.

CALJIC 3.01 pertains to aiding and abetting.  To be held guilty of aiding and abetting a criminal perpetrator, the abettor must have:  (1) knowledge of unlawful purpose; (2) intent or purpose of committing, facilitating, or encouraging crime; and (3) by act, advice, or omission, promoted or instigated crime.  This instruction would have required the jury to consider the relative roles of both codefendants in the alleged crimes.  Thus, the jury would have to find one defendant guilty of a crime, and the other defendant to be at least an aider or abettor.  Without CALJIC 3.01, the scienter for the alleged crimes is attributable to both defendants, irrespective of whether one or both of the defendants are innocent of committing, aiding, or abetting the crime.

CALJIC 3.02, which Judge Croft similarly refused, concerns the liability of an aider or abettor for the natural or probable consequences flowing from the commission of a crime.  See CT 531.  As modified, 3.02 specifies that a finding of aiding and abetting murder, or assault causing death of a child under 8, requires the jury to unanimously agree that:  (1) child abuse, neglect, or endangerment occurred; (2) the defendant aided or abetted said abuse, neglect, or endangerment; (3) the co-principal committed murder and/or assault causing death of a child under 8; and (4) said murder and/or assault causing death of a child under 8 was a natural or probable consequence of child abuse, neglect, or endangerment.  Without CALJIC 3.02, the jury was free to find both defendants guilty of murder and assault causing death of a child under 8 without considering:  (1) whether one, both, or neither of the defendants might have been the perpetrator; (2) whether one, both, or neither of the defendants might have been an aider or abettor; and (3) whether murder or assault causing death on a child under 8 was a natural or probable consequence of child abuse, neglect, or endangerment.  Hence, without even considering whether the alleged abuse could naturally cause death, or which of the defendants was a perpetrator, aider, or abettor, the jury found both defendants guilty of both murder and assault causing death on a child under 8.

Defense Instruction A defines an “act” to include failure to act where there is a legal duty to act, such as a parent’s affirmative duties to provide a child with necessary food, clothing, shelter, and medical attention.  This instruction was derived from caselaw introduced by the prosecution, People v. Burden (CA 2nd Cal. 1977) 72 Cal. App. 3d 603, 614, 140 Cal. Rptr. 282, 288 (murder defendant father under common law duty to care for young son’s exigencies), distinguished by Barber v. Superior Court (CA 2nd Cal. 1983) 147 Cal. App. 3d 1006, 1017, 195 Cal. Rptr. 484, 47 A.L.R. 4th 1.  If it had been allowed, Instruction A could have reduced jury confusion by differentiating affirmative acts from omissions.

Defense Instruction B (see CT 534) was submitted to emphasize to the jury that they must find sufficient scienter or mens rea for each element of the alleged crimes.  Although Ms. Vildosola maintains that she did nothing wrong, if any harm did come to Destiny as a result of any act or omission by Ms. Vildosola, it was accidental, or at worst negligent.  In any event, the jury should have reached unanimous decisions as to Ms. Vildosola’s mental state for each crime element.  Moreover, each juror should have been convinced beyond a reasonable doubt, unless otherwise instructed, as to each mental state element.  Because Instruction B was refused, the jury tended to ignore the mental state of Ms. Vildosola, blaming her for all harm that came to Destiny, including the injuries that were caused by medical malpractice.

The defendants also asked for CALJIC 3.31.5 with respect to the charge of assault on a child causing death, Cal. Pen. C. § 273ab.  See RT 1984-1987.  CALJIC 3.31.5 instructs the jury that:

“In the crime charged [in count two], there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator.  Unless this mental state exists the crime to which it relates is not committed.  In the crime of assault on a child causing death, the necessary mental state is knowledge that the force could result in great bodily injury or death.”


By rejecting CALJIC 3.31.5, Judge Croft allowed the jurors to render a verdict as to Count Two, Assault on a Child Causing Death, without considering Ms. Vildosola’s mental state.  Hence, the jurors could find Ms. Vildosola guilty according to a strict liability standard.  That is, Ms. Vildosola could be found guilty of assaulting and killing Destiny irrespective of her mental state.  With such ignorance of the “state of mind” element, the jury could and did find Ms. Vildosola guilty of violating Pen. C. § 273ab without considering whether Destiny’s death was entirely accidental, involuntary, or caused by someone other than the defendants (i.e., Dr. Joseph Boggs)!

A trial judge has a responsibility to insure that jury instructions are reasonably complete and clear, so that jurors can render an accurate and impartial verdict.  Frega, supra, at 809 (jury clearly expressed its confusion about a controlling legal principle, and explicitly requested clarification from the trial judge), citing Bollenbach, supra, 326 U.S. at 612-613, 66 S. Ct. at 405 (when jury is confused, trial judge should clear the way “with concrete accuracy”); Guerra v. Handlery Hotels (Cal. 1959) 53 Cal. 2d 266, 272, 347 P. 2d 674, 677, 1 Cal. Rptr. 330 (en banc) (“instructions should be clear and simple in order to avoid misleading the jury”).  As detailed forthwith, Judge Croft failed to clarify all issues pertinent to the jury’s deliberations, thus causing reversible error.

An appellate court may overturn a trial court decision where instructions are inadequate, vague, or confusing to the jury.  Cal. Pen. C. Part 2 (Criminal Procedure), Title 9 (Appeals in Felony Cases), Chapter 4 (Judgment on Appeal) § 1259 (Questions reviewable on appeal by defendant) (appellate court may review any instruction given, refused, or modified, even though no objection was made in lower court, if substantial rights of the defendant were affected); Espinosa v. Florida (1992) 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 (overturning conviction because jury instruction unconstitutionally vague, contravening Eighth Amendment).




Another reversible error of the trial court was the admission of the cadaverous photographs of dead baby Destiny.  During trial, the defendants should have been presumed innocent.  Thus, the jury should have assumed that someone other than the defendants may have caused the ghastly injuries to Carissa.  Unfortunately, such expectations of jury impartiality are unrealistic, so it is necessary to consider the inflammatorily prejudicial impact of such shocking pictures.  Judge Croft based her decision to admit the photographic evidence solely on their purported relevance, while disregarding prejudicial impact altogether.  E.g., RT 1260, L. 19-21 (image 50, skull with tissue pulled back, revealing bleeding which may just be postmortem artifact), L. 16-18 (“The court will allow [photographs 45 and 51-53] over the objection of the defense—I find that … these have some significance.”), and L. 22-24 (“I myself wouldn’t call them gruesome.  Everyone has their own definition ….”).  Judge Croft ignores the issue of the prejudicial or inflammatory impact of such gory pictures, beyond espousing that they are not gruesome to herself.

Images 45 and 53 were particularly inappropriate for submission, because they graphically depict a bloody spinal cord.  See RT 1255 L. 27-1256 L. 3 (“Injury to the spinal cord … is not diagnostic of the cause of death, shaken baby syndrome” (RT 1255 L. 27-28); “[T]hat’s a very gruesome picture.” (RT 1256 L. 1-2); Judge Croft:  It is just a cord with blood on it.” (RT 1256 L. 3)).  Yet no evidence was offered to suggest that Destiny’s spinal column was injured by shaking, blunt force trauma, or accident.  Both defense attorneys objected to the photograph’s inclusion.  Furthermore, Judge Croft herself was confused as to the contents of the two photographs (RT 1262 L. 4-9).  Nevertheless, both images were not only admitted, but blown up, enhanced, and hung prominently in the courtroom for the duration of the trial (along with other gruesome photographs of gory eyeballs and a blood-streaked brain)—especially egregious abuses of discretion.

Absolutely no evidence was presented that Ms. Vildosola ever abused Destiny.  Moreover, substantial evidence was introduced that Destiny was injured nosocomially.  Destiny’s lungs were ruptured by hyperintense CPR, and she was intubated endotracheally, nasogastrically, and intrapleurally.  See Nursing Report, Long Beach Memorial Medical Center, December 6, 1995, Time 03:00 (Exhibit P23).  She was dissected further during autopsy.  Photographs depicting such iatrogenic damage, none of which was caused by Ms. Vildosola, was far more prejudicial than probative, and should not have been admitted.  People v. Brommel (Cal. 1961) 56 Cal. 2d 629, 635, 364 P. 2d 845, 849, 15 Cal. Rptr. 909 (receiving gruesome photographs of a homicide victim into evidence is error, unless their probative value outweighs possible prejudicial effect), reh’g den.; People v. Burns (CA 1st Cal. 1952) 109 Cal. App. 2d 524, 541-542, 241 P. 2d 308 (pictures were received into evidence showing face, neck, and torso of deceased wherein head was completely shaved, large incisions were sewed together, and marks and punctures made during autopsy were plainly visible; such evidence was more inflammatory than probative; its inclusion was an abuse of discretion; homicide conviction reversed), h’g den. (Cal. 1952) 242 P. 2d 9, 109 Cal. App. 2d 556; People v. Cavanaugh (Cal. 1955) 44 Cal. 2d 252, 268-269, 282 P. 2d 53, 62-63 (Carter, J., dissenting) (admission of horrible, unnecessary photographs was improper, erroneous, deliberately inflammatory, and miscarriage of justice; claim that irrelevant evidence is admissible to show characteristic behavior pattern of defendant is sheer sophistry), cert. den. (Cavanaugh v. California (1956) 350 U.S. 950, 76 S. Ct. 325, 100 L. Ed. 828); People v. Cleary (Cal. 1957) 48 Cal. 2d 301, 309 P. 2d 431 (admitting gruesome photographs of homicide victim to arouse passions of jury is reversible error); People v. Marsh (CA 4th Cal. 1985) 175 Cal. App. 3d 987, 999, 221 Cal. Rptr. 311, 320 (en banc) (“inflammatory nature” of photographs of child’s head “has been greatly enhanced by the manner in which the surgeon chose to ‘pose’ the body portions”), reh’g den. (1986).

Considering that Destiny had no large scars, bruises, punctures, or external wounds when she was last under the control of Ms. Vildosola, and that all of the hideous, ghastly injuries depicted in the photographs admitted at trial were produced during either her hospitalization or autopsy, none of the gross photographs of Destiny’s bodies should have been admitted.  Unlike microscopic or radiologic images, the photographs of Destiny’s autopsied body were more prejudicial than probative.  Therefore, Destiny’s conviction should be reversed, and a more thorough examination should be made of the relative probative benefits and prejudicial effects of each photograph before their use in any future legal proceeding.




Judge Croft’s bias toward Ms. Vildosola can be further illustrated by at least four other abuses of discretion.  First, Ms. Vildosola was deeply dissatisfied by the representation of Mr. O’Brien, and repeatedly sought a Marsden hearing.  See § XIII, supra (Denial of Adequate Counsel).  Ms. Vildosola’s motion was peremptorily denied.  CT 356 (“Defense Marsden motion is held and denied.”).  Judge Croft’s apparent reasoning was that the judicial system met its legal obligation by providing a state-subsidized counsel, at no expense to the defendant, presumptively competent and compatible with Ms. Vildosola, and that it was a waste of the court’s time to listen to an indigent criminal’s spurious complaints about an appointed attorney.

Ms. Vildosola was denied a hearing on her Marsden request.  The denial of a Marsden hearing, when a defendant requests a substitute counsel, is reversible error.  See Marsden, supra (denial of motion for substitution of attorneys, without opportunity to enumerate specific examples of inadequate representation, deprived defendant of right to fair trial, necessitating reversal of conviction by trial court); People v. Minor (CA 1st Cal. 1980) 104 Cal. App. 3d 194, 163 Cal. Rptr. 501 (convictions for child molestation, etc., were reversed, because trial court erred in denying defendant’s request for substitution of appointed counsel without first allowing defendant to explain the basis for the request); and Schell v. Witek (9th Cir. 2000) 218 F. 3d 1017 (en banc) (judgment rev’d in part and remanded in part for evidentiary hearing, because petitioner did not voluntarily, knowingly, and intelligently waive motion for substitution reasonably believed to have been denied, and petitioner may have been denied effective assistance of counsel at trial).  Because Ms. Vildosola’s Marsden request was summarily denied, and she was given no opportunity to explain why Mr. O’Brien’s services were ineffective or incompetent, each of her convictions should be reversed.




Secondly, Judge Croft revoked Ms. Vildosola’s law library privileges during pre-trial motions.  See RT A-12, L. 23 through A-13, L. 18.  Since Ms. Vildosola was innocent but unable to afford bail, she naturally wanted to explore the ramifications of the charges against her.  She was especially interested in the media accounts, which seemed to prejudge her—-and codefendant William Jacobo, Jr., whose charges were dropped after he had served five years in prison—-as guilty.  Ms. Vildosola was also so dissatisfied with her court-appointed lawyer that she wanted a Marsden hearing, and might have represented herself but for Croft’s denial of library access.  The library at Sybil Brand Institute for Women was the only means by which Ms. Vildosola could do such research.  Apparently, Judge Croft preferred to keep Ms. Vildosola in the dark as to her legal rights.

Denial of law library access, whether rendered arbitrarily, venally, or retaliatorily, is likely to be injurious to constitutional rights, such as due process and freedom of speech.  Montayne v. Haymes (1976) 427 U.S. 236, 244, 96 S. Ct. 2543, 2548, 49 L. Ed. 2d 466 (Stevens, J., dissenting) (prisoner may be transferred within state without right to hearing, unless said transfer entails grievous loss, or retribution for exercise of protected rights); Brown v. Pitchess (Cal. 1975) 13 Cal. 3d 518, 531 P. 2d 772, 119 Cal. Rptr. 204 (aff’g prelim. injunctive relief in action based on privileges and immunities clause of federal Civil Rights Act 42 U.S.C. § 1983, ordering supplementation of jail law library and use of library by legally represented prisoners, in addition to “pro per” inmates).

The official policy of the State of California is to let prison inmates enjoy the use of law library facilities where available.  People v. Carter (Cal. 1967) 66 Cal. 2d 666, 671, 427 P. 2d 214, 219, 58 Cal. Rptr. 614, citing In re Allison (Cal. 1967) 66 Cal. 2d 282, 288-289, 425 P. 2d 193, 195-196, 57 Cal. Rptr. 593 (fundamental right of reasonable access to courts, under Fifth and Fourteenth Amendment Due Process Clauses, entails opportunity to engage in legal research), cert. den. (Allison v. Nelson (1967) 389 U.S. 876, 88 S. Ct. 172, 19 L. Ed. 2d 163).  More specifically, prisoners are entitled to “some access.”  Kaiser v. County of Sacramento (ED Cal. 1991) 780 F. Supp. 1309, 1315 (exemplifying “some access” as “up to ten legal books in one’s cell at one time,” telephone use, issuance of up to four subpoenas per case, unlimited legal mail privileges, investigator authorization, and in-jail prospective witness visits).




Thirdly, Juror Number Five constantly talked to himself and gesticulated throughout much of the trial, usually expressing hostility toward the defendants or defense witnesses.  See RT 1071 L. 12-1083 L. 1.  Details about these irregularities were presented by Alternate Juror Number Three (RT 1073 L. 1-1075 L. 10 (e.g.,Sometimes he gets very, very loud” (RT 1073 L. 17))) and Juror Number 6 (RT 1076 L. 19-1078 L. 8 (e.g., “the attorney asks a question, and he tries to answer … himself” (RT 1076 L. 26-27))).  He asked and answered his own questions and made comments during testimony.  RT 1071 L. 17-21 (“[He] make[s] comments like ‘No, no,’ ‘That’s not right,’ ….”).  His behavior was described as “very distracting” and “an ongoing problem to the jurors around him.”  RT 1071 L. 22-23.  His comments were uniformly negative and denigrating toward the defendants and their kin.  See, e.g., RT 1076 L. 28-1077 L. 4 (“when Esther was testifying … he says [sic], oh, that’s kind of stupid”) and RT 1077 L. 5-8 (“[W]atching Marina [Neria] answer, he tries to say, ‘No, no.’”).

The cornerstone of our criminal justice system is the precious right to an impartial jury of one’s peers.  Irvin v. Dowd (1961) 366 U.S. 717, 729-730, 81 S. Ct. 1639, 1646, 6 L. Ed. 2d 751 (Frankfurter, J., concurring) (murder conviction vacated because defendant was denied right to trial before impartial, unprejudiced jury).  That precious right is denigrated if a conviction rests upon deliberations tainted by a juror’s misconduct or impropriety.  McIlwain v. United States (1983) 464 U.S. 972, 975, 104 S. Ct. 409, 411, 78 L. Ed. 2d 349 (Marshall, J., dissenting) (discharge of jury foreperson who was “just talking a lot” and “seemed a little intoxicated” was not enough; mistrial should have been called unless prejudice disproved).  If even one juror was prejudiced by juror misconduct, then a conviction must be reversed.  Province v. Center for Women’s Health & Family Birth (CA 2nd Cal. 1993) 20 Cal. App. 4th 1673, 1678-1680, 25 Cal. Rptr. 2d 667, 669-671 (judgment reversed because of prejudicial juror misconduct), rev. den. (Cal. 1994) 1994 Cal. Lexis 1190.

In a criminal case, any private communication, directly or indirectly, with a juror during a trial about any matter pending before the jury is deemed presumptively prejudicial.  In order to avoid a mistrial, the prosecution has the burden to establish that said communication was harmless to the defendant.  United States v. Armstrong (9th Cir. 1981) 654 F. 2d 1328, 1332, cert. den. (Armstrong v. United States (1982) 454 U.S. 1157, 102 S. Ct. 1032, 71 L. Ed. 2d 315), cited in United States v. Shapiro (9th Cir. 1982) 669 F. 2d 593, 599 (tainted juror was discharged when discovered, but such jury tampering was sufficient to require mistrial); People v. Von Villas (CA 2nd Cal. 1992) 11 Cal. App. 4th 175, 255-256, 15 Cal. Rptr. 2d 112, 162 (judgment vacated because jurors talked about case), rev. den. (1993 Cal. Lexis 726); People v. Holloway (Cal. 1990) 50 Cal. 3d 1098, 790 P. 2d 1327, 269 Cal. Rptr. 530 (first degree murder conviction reversed because juror’s misconduct in remaining silent about reading newspaper article containing defendant’s criminal record was prejudicial to defendant).

Judge Croft’s response to the “talking juror” problem was to interview a few jurors (Alternates 3 and 4, and Jurors 4, 6, and 10-12) and to admonish Juror 5 to refrain from further outbursts.  See RT 1081 L. 12-1083 L. 1 (e.g., “there is nothing like that … you were doing anything improper” (RT 1082 L. 5-6); “you are the only one who knows” (RT 1082 L. 11-12); “We are not accusing you of doing anything wrong.” (RT 1082 L. 13-14)).  Undeniably, Judge Croft was punctiliously gracious toward Juror 5, and determined to keep him on the panel—-despite the fact that his utterances and gestures conveyed an obvious bias against the defendants, and tainted other jurors.




Fourthly, when Judge Croft learned on Friday, August 8, 1997, that Juror Number Twelve planned to go on vacation on Monday, August 11, 1997, she admonished Juror Twelve to make up her mind by Monday, implicitly persuading Juror Twelve to hurry her verdict deliberation.  See RT 2283 L. 20-25 & RT 2284 L. 27-2287 L. 18.  For example, Judge Croft told Juror 12, “If you do end up being excused, the jurors have to start deliberating all over again,” subtly discouraging Juror 12 from leaving.  Then Ms. Lewis warned Juror 12, “[W]e will need a decision pretty early,” and Judge Croft followed with “You need to tell us Monday morning.”  RT 2286 L. 25-27.

Juror Twelve wanted to fulfill her duty, so on Monday she decided to defer her vacation.  Not surprisingly, a guilty verdict was returned on that very Monday and announced at 9:55 a.m. on Tuesday, August 12, 1997 (RT 2308 L. 1 & 19-23).  So Juror 12 left on her vacation just a few hours later than originally scheduled.  Juror 12 very likely reached her verdict decision precipitously because of her impending vacation, or at least much more rapidly than would have been the case if she had no vacation plans.

A juror must be excused if a hardship (e.g., preplanned vacation, infirmity, death or illness in the family) is likely to interfere with the juror’s ability to deliberate impartially, without undue stress, time constraints, or other encumbrances, for as long as is necessary to arrive at a carefully reasoned, unhurried verdict.  See Cal. Code Civ. Proc. §§ 204(b) (exemption from jury service for undue hardship) & 233 (discharge of juror before verdict returned for good cause); People v. Mickey (Cal. 1991) 54 Cal. 3d 612, 663-667, 818 P. 2d 84, 108-110, 286 Cal. Rptr. 801 (juror hardship excusal violates impartial-jury guaranty of Sixth Amendment, reliable guilt and penalty determination guaranties of Eighth Amendment, and/or due process and equal protection guaranties of Fourteenth Amendment, and is erroneous or reversible, if abusing discretion or prejudicial), reh’g den. (1992 Cal. Lexis 19), cert. den. (Mickey v. California (1992) 506 U.S. 819, 113 S. Ct. 65, 121 L. Ed. 2d 32).

Allegations of judicial indiscretion in the exclusion or retention of jurors are not uncommon among criminal defendants.  Improper juror excusal is a frequent appellate issue.  See, e.g., People v. Fudge (Cal. 1994) 7 Cal. 4th 1075, 1098-1100, 875 P. 2d 36, 31 Cal. Rptr. 2d 321 (juror discharged for good cause when there was substantial evidence that her anxiety about new job would affect deliberations), reh’g den. (1994 Cal. Lexis 4615), cert. den. (Fudge v. California (1995) 514 U.S. 1021, 115 S. Ct. 1367, 131 L. Ed. 2d 223); People v. Johnson (Cal. 1993) 6 Cal. 4th 1, 20-21, 859 P. 2d 673, 23 Cal. Rptr. 2d 593 (juror’s discharge is abuse of discretion unless inability to perform with “entire impartiality” is “demonstrable reality” appearing “on the record”), cert. den. (Johnson v. California (1994) 513 U.S. 844, 115 S. Ct. 133, 130 L. Ed. 2d 76), citing People v. Compton (Cal. 1971) 6 Cal. 3d 55, 60, 490 P. 2d 537, 540, 98 Cal. Rptr. 217; People v. Price (Cal. 1991) 1 Cal. 4th 324, 399-400, 821 P. 2d 610, 649-650, 3 Cal. Rptr. 2d 106 (discharge of juror who during voir dire concealed information tending to show bias was not abuse of discretion), reh’g den. (1992 Cal. Lexis 852), cert. den. (Price v. California (1992) 506 U.S. 851, 113 S. Ct. 152, 121 L. Ed. 2d 102); People v. Halsey (CA 2nd Cal. 1993) 12 Cal. App. 4th 885, 892-893, 16 Cal. Rtr. 2d 47, 50-51 (dismissal of juror who talked about case with another juror in hallway not abuse of discretion).  Sometimes, both juror removals and retentions are subjected to abuse of discretion review.  People v. McPeters (Cal. 1992) 2 Cal. 4th 1148, 1174-1178, 832 P. 2d 146, 9 Cal. Rptr. 2d 834, 846-848 (no abuse of discretion found in:  (1) overruled objections to prosecutor’s Wheeler challenges, (2) failure to remove juror involved in one previous business transaction with a defendant, (3) refusal to sustain defendant’s prospective juror challenge for cause, and (4) granting of prosecutor’s prospective juror challenge for cause), reh’g den. (3 Cal. 4th 678c), cert. den. (McPeters v. California (1993) 507 U.S. 1037, 113 S. Ct. 1865, 123 L. Ed. 2d 486).

In this case, the retention of a juror is in dispute.  Ms. Vildosola contends that the retention of Juror Twelve during the guilty phase of deliberations was an abuse of discretion.  A similar argument was made in People v. Beeler (Cal. 1995) 9 Cal. 4th 953, 972-975, 891 P. 2d 153, 39 Cal. Rptr. 2d 607 (juror retained, despite initial emotional disturbance about burglary-murder offense of trial, because she was no longer upset, able to act objectively, and willing to remain on panel), reh’g den. 1995 Cal. Lexis 3942, cert. den. (Beeler v. California (1996) 516 U.S. 1053, 116 S. Ct. 723, 133 L. Ed. 2d 675).  Beeler is distinguishable from the instant case, however, because the potential source of disqualification in Beeler, emotional distress, was dispelled.  In contrast, Juror Twelve in Ms. Vildosola’s trial remained worried about her vacation throughout her deliberations.

In another similar case, People v. Lucas (Cal. 1995) 12 Cal. 4th 415, 487-489, 907 P. 2d 373, 419-421, 48 Cal. Rptr. 2d 525, reh’g den. (Cal. 1996) 12 Cal. 4th 825a, cert. den. (Lucas v. California (1996) 519 U.S. 838, 117 S. Ct. 114, 136 L. Ed. 2d 66, the California Supreme Court found that the discharge of a juror with an impending vacation was not an abuse of discretion, because she “would have felt some pressure to bring the penalty deliberations to a speedy close in order to preserve her planned vacation.”  Lucas resembles the present case in many respects, except that the juror with vacation plans was removed from the panel in Lucas.  As in Lucas, Juror Twelve in the Ms. Vildosola’s trial undoubtedly “felt some pressure” to bring “deliberations to a speedy close in order to preserve her planned vacation.”  Since there were at least three alternate jurors at that time (RT 2283 L. 24-25), Judge Croft’s decision to retain Juror 12 was an abuse of discretion.




Many of Judge Croft’s rulings were made without explanation or reasoning.  For example, a Petition for Writ of Habeas Corpus similar to the instant pleading was presented to Judge Croft on or about April 10, 2001.  A week later, a notice rejecting the petition was filed with the Pasadena Superior Court (see Exhibit P25).  The notice contains no reasoning as to the basis for the denial.  Ergo, no rational basis for the denial was offered.

Any judicial decision:  (1) reached arbitrarily or capriciously, (2) apparently influenced by illegitimate motives, (3) made without explicit reasoning, or (4) lacking an unambiguous rational basis is a reversible error.  Dickinson v. Zurko (1999) 527 U.S. 150, 119 S. Ct. 1816, 144 L. Ed. 2d 143 (reviewing court must determine whether factual findings or reasoning is supported by “substantial evidence”).  See also In re Wilson (CA 1st Cal. 1988) 202 Cal. App. 3d 661, 670, 249 Cal. Rptr. 36, 41 (there must be more than a “modicum of evidence” establishing that a decision has “some basis in fact”), rev. den. (1988), citing Superintendent v. Hill (1985) 472 U.S. 445, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (findings not explicitly supported by evidence fail to comport with minimal requirements of procedural due process).  Cf. Nevada Land Action Association v. U. S. Forest Service (9th Cir. 1993) 8 F. 3d 713, 716-717 (action “must be set aside if . . . ‘arbitrary, capricious, an abuse of discretion, or not in accordance with law’ or if the action failed to meet statutory, procedural, or constitutional requirements”), citing Citizens to Preserve Overton Park, Inc. v. Volpe (1971) 401 U.S. 402, 414, 91 S. Ct. 814, 822, 28 L. Ed. 2d 136 (quoting 5 U.S.C. § 706 (government organizations; scope of review)).  Accord Partridge v. Reich (9th Cir. 1998) 141 F. 3d 920, 923.  An action is arbitrary or capricious if it was not clearly based on a consideration of relevant factors.  Motor Vehicle Manufacturers Ass’n. of the U. S., Inc. v. State Farm Mutual Automobile Insurance Co. (1983) 463 U.S. 29, 42-43, 103 S. Ct. 2856, 2866-2867, 77 L. Ed. 2d 443.  A judgment should be overturned if it is “plainly erroneous” or inconsistent with relevant law.  Marathon Oil Co. v. United States (9th Cir. 1986) 807 F. 2d 759, 765, cert. den. (480 U.S. 940, 107 S. Ct. 1593, 94 L. Ed. 2d 782 (1987)).

Many of Judge Croft’s decisions were arbitrary, capricious, an abuse of discretion, not made in accordance with current law, not based on substantial or explicit evidence, or contrary to statutory, procedural, or constitutional requirements, as illustrated above in this Argument XV, Sections A-I.  In particular, Judge Croft’s response to this writ of habeas corpus was a mere one-page denial, in which no rational basis for that denial was indicated.

In conclusion, Judge Croft’s many abuses of discretion, which tended to:  (1) mislead and confuse the jury, and (2) deny procedural due process to Ms. Vildosola and Mr. Jacobo, constitute reversible error.




Ms. Vildosola was the victim of highly inflammatory and extensive media coverage throughout Los Angeles and the San Gabriel Valley.  Three issues about the trial’s media exposure must be addressed:  (1) The alleged murder of Destiny was front-page news, and all of the Los Angeles television stations ran news stories about Destiny, William Jacobo, Jr., and Ms. Vildosola; (2) the media also extensively covered a protest movement related to Ms. Vildosola, Destiny, and the Department of Children’s Services; and (3) Prosecutor Cheri Lewis was well-known to some of the jurors.

Perhaps most damaging to Ms. Vildosola’s due process rights were the innumerable television stories and newspaper articles.  See, e.g., Exhibit P24.  For example:

(A) City News Service published a report on Wednesday, December 6, 1995, indicating that “William Jacobo” and “Patricia Vildosola” were “being held in lieu of $1 million bail” on suspicion of “killing their daughter,” who “suffered multiple trauma.”  Dateline:  Monterey Park (December 6, 1995) Toddler Dies, City News Service.

(B) On December 29, 1995, the San Gabriel Valley Tribune ran a large, above-the-fold front page story with a 7” x 7” picture of a crying Joanne Garza, as well as a 7” x 5” picture of William Jacobo, Jr. and Ms. Vildosola.  Hetherman, Bill (December 29, 1995) Parents plead innocent:  Death penalty possible in killing, San Gabriel Valley Tribune, B4.  According to the article “Jacobo and Vildosola” would face “sexual abuse” charges, and there were “numerous marks and bruises” indicating that Destiny was “tortured and sexually abused.”  It described “Jacobo and Vildosola” disdainfully as “turning their heads to hide” from cameras, and being handcuffed behind their backs.  Destiny is libelously described as a “drug-addicted baby.”  Deputy District Attorney Marlene Sanchez is quoted as scornfully declaring, “This child should never have been returned to her parents, and this is a worst-case scenario of what can happen.”

(C) An LAT article dated May 11, 1996, derisively describes Ms. Vildosola and Mr. Jacobo as “[h]andcuffed to their chairs.”  San Gabriel Valley:  Hearings Start in Death of Toddler (May 11, 1996), Los Angeles Times, Metro Section, B2.

(D) On May 29, 1996, the LAT announced that—according to Deputy District Attorney Cheri Lewis—the trial of “Patricia Inez Vildosola and William Jacobo, Jr.” for the “murder and child abuse of their 18-month-old [sic] daughter” Destiny, “A victim of what appeared to be shaken baby syndrome,” had been set for July 10, 1996.  Official Business:  Trial Date Set for Couple Accused in Daughter’s Death (May 29, 1996), Los Angeles Times, Metro Section, B4.

(E) On August 13, 1997, the LAT ran a story claiming that Destiny “was violently shaken.”  Monterey Park:  Pair Convicted of Murder in Death of Baby Daughter (August 13, 1997), Los Angeles Times, Metro Section, B4.  In that article Cheri Lewis is quoted as vowing, “I hope this sends a message to battering and abusive parents.”

(F) On October 17, 1997, the Pasadena Star-News ran a front-page, above the fold story with a 4” x 2” full-color picture of Ms. Vildosola and Mr. Jacobo, and a 9” x 6” color photograph of Cheri Lewis, who is holding a 2” x 1” color image of a happy, smiling, and apparently well-nourished and healthy Destiny.  Yet the article describes the crime as “starvation and assault murder.”  Girardot, Frank C. (October 17, 1997) “It’s time for justice”:  Couple get maximum terms in murder of toddler daughter, Pasadena Star-News, A1 & A8.

(G) The San Gabriel Valley Tribune ran a front-page, above the fold story on August 4, 2000, with an 8” x 6” full-color picture of William Jacobo, Jr. and his attorney, and a 1 ½” x 1” color picture of Destiny.  Bruer, Howard (August 4, 2000).  Father will be freed in death of toddler:  Jacobo resentenced to 6 years after he already has served 7, San Gabriel Valley Tribune, A1 & A8.  The article defames Ms. Vildosola, Mr. Jacobo, and Destiny, stating:  (1) “The trial attracted attention both to the brutality of the abuse and to the system’s inability to protect the girl”; (2) “[Destiny] was born a crack baby” (in truth, Ms. Vildosola snorted powder cocaine a few times before Destiny’s birth, but Destiny was born unaddicted and without a trace of cocaine); and (3) “Vildosola had [sic] killed another baby in San Bernardino County in 1991” (Ms. Vildosola was never indicted or convicted for Carissa’s death).

(H) On or about December 10, 1995, Destiny’s burial received broad media coverage, including a news report on television Channel 9 (KCAL) by Minerva Perez.

The eight stories cited above are by no means an exhaustive list, and many other examples can be provided upon request.

Before the trial, on or about December 1995 and January of 1996, DCS employees organized a “big protest” (RT 128 L. 27) against the firing of two DCS social workers who were responsible for Destiny’s case—Tricia Higa and her supervisor, Henry Barbosa (see RT 128 L. 17-129 L. 28 and Hong & Nazario, supra, at B1 & B8 (more than 300 DCS workers picketed at DCS’ Los Angeles headquarters)).  Their terminations were based upon their alleged negligence in failing to monitor the circumstances of Destiny’s living arrangements.

The Hong & Nazario LAT article included an 8” x 6” full-color picture of protestors above the fold on the first page of the Metro Section.  The story began:  “Her name was Destiny.  She began life addicted to cocaine and died 18 months later, shaken so brutally that her brain knocked against her skull, according to sheriff’s officials.”  The Hong article was inaccurate from the start, because Destiny was not a cocaine baby.  She was more than 20 months old when she died.  Furthermore, in January of 1996, there was no proof that Destiny was brutally shaken, and Ms. Vildosola was entitled to a presumption of innocence.

Such media exposure in the Los Angeles area must have affected the jurors, but the court never considered the idea of moving the trial to a different venue.  Nor did Judge Croft allow sufficient voir dire to insure that none of the jurors were prejudiced by the pre-trial media coverage.  Nor did she query the jurors during or after the trial to determine whether anyone had seen or heard any media reports about Ms. Vildosola or Mr. Jacobo.

When there is a risk that pretrial media coverage could have inflamed, tainted, or prejudiced potential jurors, such that a defendant might not receive a fair trial, the court should order a change of venue.  Sheppard v. Maxwell (1966) 384 U.S. 333, 352-353, 86 S. Ct. 1507, 1517, 16 L. Ed. 2d 600 (judgment rev’d because change of venue was not granted; unsequestered jurors were potentially subjected to newspaper, radio, and television coverage of trial; and judge’s admonitions to jury were inadequate); Williams v. Superior Court (Cal. 1983) 34 Cal. 3d 584, 589, 668 P. 2d 799, 802, 194 Cal. Rptr. 492 (crime received front-page coverage in Placer County, warranting change of venue to different county); Jeffries v. Blodgett (9th Cir. 1992) 5 F. 3d 1180, 1188-1190 (judgment vacated; local newspapers and television stations ran several stories which, inter alia:  (1) identified defendant and his criminal history, (2) gave details about the murder, and (3) included sheriff’s statement that murders were premeditated; one juror told other jurors that defendant was a convicted armed robber), reh’g en banc den., cert. den. (Blodgett v. Jeffries (1994) 510 U.S. 1191, 114 S. Ct. 1294, 127 L. Ed. 2d 647).  Interestingly, in Jeffries the extensive media coverage was not considered prejudicial, whereas one juror merely mentioning what was seen in media stories was held to be juror misconduct and reversible error.  Apparently, as long as jurors’ biases are tacit, their exposure to highly inflammatory media coverage can be assumed not to be prejudicial.

Another media issue was the celebrity of Cheri Lewis, who was seen frequently on national and local television as part of the team prosecuting O. J. Simpson.  Ms. Lewis admitted to the problem of her fame.  See RT 129 L. 18-28.  Yet at every opportunity, Lewis made televised statements about the case, and assisted news bureaus in their coverage.  It is very likely that the jury, composed of Los Angeles area residents, was particularly knowledgeable about Ms. Lewis, and they may have placed greater weight on her presentation than would have been the case with a less famous prosecutor.  Yet both of the jurors who admitted their recognition of Ms. Lewis were impaneled.  RT 220 L. 2-17 (Prospective Juror 15:  “I think this lady here was on the O.J. trial.” (RT 220 L. 3-4); Prospective Juror 16:  “She just looks familiar.” (RT 220 L. 15-16)).  Cf. People v. Patino (CA 2nd Cal. 1979) 95 Cal. App. 3d 11, 28, 156 Cal. Rptr. 815 (prejudicial prosecutorial misconduct alleged where prosecutor quoted famous judge), reh’g & rev. den.

Before trial, Judge Croft attempted to minimize the effects of media coverage, admonishing the jury to not read any news articles about the case, nor watch any televised reports.  RT 233 L. 24-234 L. 10.  However, at least one juror was already familiar with the case before the trial commenced.  RT 233 L. 25-26 (Juror “10, Mr. Norton”).  That tainted juror may have been responsible for the wrongful conviction of Ms. Vildosola.

After trial, if not earlier, Judge Croft was no longer concerned about media effects.  See RT 2322 L. 20-2325 L. 18.  She ruled, over the objections of both defense counsel (RT 2325 L. 17-18), that a San Gabriel Valley news organization (RT 2322 L. 20) could publish approximately twelve photographs (RT 2322 L. 21) of the defendants, pursuant to Rules of Court, Rule 980.  The defense contended that such media exposure would likely result in violent attacks on the defendants by fellow prisoners, who, like everyone, despise presumed child killers.  See RT 2323 L. 3-6 & 18-21 (“the more publicity … link[ing] Ms. Vildosola’s person and her picture[,] the more we are endangering her in the jail system.”).  Judge Croft’s callous disregard for the defendant’s bodily safety mirrored her disregard for Ms. Vildosola’s constitutional rights.




The prosecution must prove that the particular defendant was guilty beyond a reasonable doubt.  People v. Perhab (CA 4th Cal. 1949) 92 Cal. App. 2d 430, 436-437, 206 P. 2d 1133, 1137 (defendant entitled to acquittal if guilt not proven beyond reasonable doubt), rev. den.  Furthermore, in a murder case, the government bears the burden of proving that death did not result from heat of passion, recklessness or gross negligence.  See United States v. Boise (9th Cir. 1990) 916 F. 2d 497 (evidence insufficient for a jury to rationally conclude that defendant acted with passion, recklessness, or gross negligence), cert. den. (Boise v. United States (1991) 500 U.S. 934, 111 S. Ct. 2057, 114 L. Ed. 2d 462) and United States v. Lesina (9th Cir. 1987) 833 F. 2d 156, 160 (district court committed reversible error by failing to give an instruction on killing by accident).

Given the evidence in the record of this case, no trier of fact could conclude beyond a reasonable doubt that Ms. Vildosola caused Destiny’s mortal injuries.  No one ever observed Ms. Vildosola abusing any of her children.  In contrast, many witnesses saw Little Billy Jacobo abusing his siblings, including throwing Destiny into the air and dropping her.  Furthermore, the jury ignored evidence of, inter alia, pneumothorax, coagulation deficiency, pneumonia, meningitis, immunological deficiency, abuse by Little Billy, self-inflicted paroxysmal wounds, and accidental injuries.

Nor could a jury rationally conclude that Ms. Vildosola acted in the heat of passion, or with recklessness or gross negligence.  Instead, circumstantial evidence, in the form of medical testimony and autopsy reports, was used to fashion a circumstantial case that someone fatally abused Destiny.  Most egregiously, the autopsy of a child who died five years earlier was altered, then admitted into evidence.  Despite the inflammatory nature of Carissa’s recast autopsy, jurors were asked to assess its similarities to Destiny’s autopsy by a mere preponderance of the evidence standard.  As a result, a prejudiced jury found Ms. Vildosola guilty by a preponderance of the evidence.  See Boise, supra, at 507 (Tang, Circuit Judge, dissenting).

Ms. Vildosola did not physically abuse or murder Destiny, and is innocent of all charges for which she is imprisoned.  Meritorious claims of innocence, or of fundamental injustice, will be grounds for relief on habeas corpus whenever presented.  In re Sanders (Cal. 1999) 21 Cal. 4th 697, 734, 981 P. 2d 1038, 1063, 87 Cal. Rptr. 2d 899 (Baxter, J., dissenting) (habeas corpus relief may be granted at any time against a fundamental miscarriage of justice, such as conviction of an innocent party or constitutional flaws during trial).

Ms. Vildosola suffered severely enough when her daughters, Carissa and Destiny, died.  It was the height of injustice when¾while still mourning the loss of Destiny¾she was falsely charged with murdering both Carissa and Destiny, and unjustly imprisoned for a period of nearly six years and counting.

Ms. Vildosola has no other plain, speedy, or adequate remedy at law, having exhausted her remedy at law.  An appeal was filed with the Court of Appeals of the State of California on or about October 16, 1998.  The Court of Appeals denied said appeal and the relief sought on or about February 2, 2000.  A Petition for Review was filed on or about March 13, 2000, and denied on or about April 19, 2000.

Petitioner has exhausted all administrative remedies with regard to the unjust imprisonment of PATRICIA INEZ VILDOSOLA by Warden Gwendolyn Mitchell of the Central California Women’s Facility (CCWF) at Chowchilla.

Prior application has not been made for a writ of habeas corpus in regard to this imprisonment.

WHEREFORE, petitioner prays for judgment as follows:

1.  That a writ of habeas corpus be granted, directed to Warden Gwendolyn Mitchell of the Central California Women’s Facility (CCWF) at Chowchilla, commanding her to have the body of PATRICIA INEZ VILDOSOLA, together with the authority for her imprisonment for the period of fifteen (15) years to life, before this Honorable Court at a specified time;

2.  That PATRICIA INEZ VILDOSOLA be released and freed from any further imprisonment pertaining to the death of Destiny Jacobo and any alleged abuse of or injury to Destiny; and

3.  For other and further relief as the court may deem proper.


Dated:  MAY 15, 2001



California Bar No. 177774




I, LEWIS OWEN AMACK, ESQ., am the petitioner in the above-entitled proceeding.  I have read the petition above and know its contents.  The same is true of my own knowledge, except as to those matters which are alleged on information and belief, and as to those matters, I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.


Dated this 15TH day of May, 2001


                                      LEWIS OWEN AMACK, ESQ.

                                      PETITIONER ON BEHALF OF

                                      PATRICIA INEZ VILDOSOLA

[1] Risk factors for cerebrovascular disease in children include, inter alia, cardiac and systemic vascular disorders, hematologic disorders, coagulopathies, congenital heart disease, hemoglobinopathies (sickle cell anemia, sickle cell-hemoglobin C disease), ventricular septal defect, atrial septal defect, idiopathic thrombocytopenic purpura, patent ductus arteriosus, thrombotic thrombocytopenic purpura, aortic stenosis, hemolytic-uremic syndrome, mitral stenosis, thrombocytosis, complex congenital heart defects, polycythemia, acquired heart disease, disseminated intravascular coagulation (DIC), rheumatic heart disease, leukemia, prosthetic heart valve, oral contraceptive use, Libman-Sacks endocarditis, congenital coagulation defects, bacterial endocarditis, twin-twin transfusion syndrome, cardiomyopathy, pregnancy and the postpartum period, left atrial myxoma, congenital serum C2 deficiency, arrhythmia, liver dysfunction with secondary coagulation defect, systemic vascular disease, systemic hypertension, Vitamin K deficiency, volume depletion or systemic hypotension, structural anomalies of the cerebrovascular system, superior vena cava syndrome, vasculopathies, carotid fibromuscular dysplasia, systemic lupus erythematosus, moyamoya syndrome, polyarteritis nodosa, agenesis or hypoplasia of the internal carotid or vertebral arteries, granulomatous angitis, rheumatoid arthritis, arteriovenous malformation, dermatomyositis, Sturge-Weber syndrome, inflammatory bowel disease, intracranial aneurysms, drug abuse (especially amphetamines), trauma, central nervous system infection, child abuse, tuberculosis, syphilis, fat or air emboli, homocystinuria, vertebral occlusion following abrupt cervical rotation, Fabry's disease, vasospastic disorders, post-traumatic arterial dissection, migraine, post-traumatic carotid cavernous fistula, ergot poisoning, coagulation defect with minor trauma, vasopasm due to subarachnoid embolization, amniotic fluid/placental embolization hemorrhage, cerebral Infarction, sinovenous occlusion.  Ibid.


[2] In order to preempt investigative efforts and avert media exposure, the DCS fired two employees, Tricia Higa and Henry Barbosa, who served as scapegoats for the DCS’ involvement in Destiny’s death.