P. v. Merchant 1/27/05 CA4/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: E033887

Case Date: 05/11/2005

Preview:Filed 1/27/05 P. v. Merchant CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. EILEEN M. MERCHANT et al., Defendants and Appellants. E033887 (Super.Ct.No. RIF96279) OPINION

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed as to defendant Michael C. Gramaje. Affirmed as modified with directions as to defendant Eileen M. Merchant. Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant Michael C. Gramaje. John Dodd & Associates and John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Eileen M. Merchant.

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Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Ivy B. Fitzpatrick and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent. In this consolidated appeal, Michael C. Gramaje (hereafter defendant Gramaje) and Eileen M. Merchant (hereafter defendant Merchant) appeal from the jury's verdicts finding them each guilty of numerous charges, including child endangerment and torture (defendant Merchant only) arising from injuries that Terri Gramaje, defendant Gramaje's wife, inflicted on seven-month-old K. while the infant was living with the Gramajes. Defendants each raise various claims of error on appeal, the details of which we recount below in our discussion of those claims. We conclude, with exception of defendant Merchant's challenges to two enhancements under Penal Code section 12022.7,1 that defendants' claims are meritless. FACTS The pertinent facts are that in January 2001 K.'s mother Lisa left then four-monthold K. and her 18-month-old sister S. with Terri Gramaje who had agreed to care for the children because Lisa was living in a mobile home that in Lisa's view was not safe for the children. Terri along with her husband (defendant Gramaje) and their two sons, 14year-old M. and 12-year-old B., lived in a large barn-like structure owned by Terri's mother. Defendant Merchant and her 10-year-old son R. lived in a mobile home located

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All further statutory references are to the Penal Code unless indicated otherwise.

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on the same property as the Gramaje's barn. Before K. was born Lisa and S. had lived in the mobile home with defendant Merchant and R. for about eight months but had to move because Terri's mother had kicked Lisa out. During the time her daughters lived with the Gramajes, Lisa provided for the girls' basic needs, including food, clothes, diapers, and medication. Although Lisa intended for the children to stay with Terri Gramaje, K. and S. frequently also stayed with defendant Merchant in her mobile home. S., in fact, lived primarily with defendant Merchant while K. primarily stayed with the Gramajes. Lisa regularly visited her daughters, seeing them at least one to two times a week. Beginning in about mid-February, Terri frequently prevented Lisa from seeing K. when she came to visit, often putting her off by claiming that K. was asleep or ill. When Lisa was allowed to see the child during that time, K.'s body was covered by her clothes. On March 3, 2001, Lisa went shopping with Terri, K., and S. but she did not see K.'s body that day. On about March 8, Lisa took S. to live with her but left K. with Terri because Lisa thought Terri would like a little "catch up time" with the infant. According to Lisa, Terri loved K. so Lisa wanted to give her a little time with K. before she took the baby back permanently. Lisa did not see K. again until March 11, 2001, when Terri and defendant Merchant drove K. to Lisa's house and Terri told Lisa to take the infant to a doctor because K.'s leg was infected. Terri removed a bandage from the baby's leg. According to Lisa, the leg looked like raw hamburger and the skin was open from the knee to the hip. When Lisa asked Terri what had happened to K.'s leg, Terri said only that K. had a bruise that had turned purple and then had ruptured. In fact, and as 3

defendant Merchant later told the police, K. had what appeared to be a bruise that Terri Gramaje believed was an infection that needed to be drained so Terri used a box cutter and made a two- to three-inch incision on the baby's leg. Defendant Merchant and Terri then put a topical antibiotic ointment on the wound and bandaged K.'s leg. Terri Gramaje and defendant Merchant drove Lisa to a local hospital emergency room, where they dropped her off with K. and then drove away. In the emergency room, medical personnel immediately recognized that K. was gravely ill. They intubated the child and had her transported to Loma Linda University where doctors immediately performed surgery to remove dead tissue in order to save K.'s life. Surgeons removed dead tissue from K.'s left thigh and both sides of her buttocks, incised a lesion on her left foot, and also took skin from her back which they grafted to her thigh and buttocks. Rebecca Piantina, a forensic pediatrician at Loma Linda University Children's Hospital, first evaluated K. on March 11, 2001, and continued to treat K. for the two months the child was hospitalized. According to Dr. Piantina, the lesion on K.'s left thigh was caused by necrotizing fasciatus, a rare and life-threatening infection that attacks the deep layers of the skin. The infection causes death of the deep skin tissue which then causes blood vessels to clot off as a result of which the surrounding tissue also dies. The first symptoms of the disease are extreme pain, flu-like symptoms, and swelling of the infected area. Because it rapidly progresses, necrotizing fasciatus must be treated quickly in order to avoid shock and ultimately death. Dr. Piantina testified that in K.'s case the infection was caused by a break in the skin, possibly caused by rodent or insect bites, which in turn caused E. coli (Escherichia coli) and other organisms to mix 4

and, in combination, to develop into necrotizing fasciatus. K.'s infection could have developed between a few weeks or a few days before March 11. Dr. Piantina also testified that she evaluated K. the day after she was admitted into Loma Linda Children's Hospital. That examination, which included laboratory tests, Xrays and CT scans, revealed that K. had subdural hematomas (chronic bleeding) on two sides of her brain, as well as retinal hemorrhages in both eyes, all of which were caused by violently shaking the infant. K. also had crusted lesions around her nose, and lesions around her mouth that were most likely caused by insect bites that became infected due to unsanitary living conditions; "very significant" cockroach bites all over her body, including her genital area; rodent bites on her shoulder; scarring and tearing in her mouth, under and on her tongue, and at the back of her throat that was consistent with having had a spoon shoved down her throat; three- to six-week-old fractures of both pelvic bones, the type of fractures that are very unusual in a seven-month-old child and that happen in motor vehicle accidents but could also possibly be caused by an adult kicking the child; a three-week-old fracture of the left tibia that was caused by "a lot of force" such as a kick from an adult; advanced decubitus ulcers (bed sores) that appeared to be weeks old and would have resulted from being in one position for a prolonged period, and were consistent with K. being strapped in a car seat or lying on her back in a bassinet for a long period of time; and "a very, very horrible bad tear" on her rectum that went up towards her vaginal area and back from the anal area, caused by trauma to the rectum either from penetration or blunt force, such as having been kicked or hit. The rectal tear damaged

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K.'s sphincter muscle and deformed the rectal folds and required that she wear a colostomy bag for six months in order for the damage to heal. In consent searches of both the Gramaje's house and defendant Merchant's mobile home, conducted later in the day on March 11, 2001, sheriff's deputies discovered deplorable living conditions. In Merchant's trailer, among other things, there was a strong odor of urine and dog feces with dog and cat feces, both fresh and old, on the carpets, and cockroaches in every room. The Gramaje's barn also smelled of urine and dog feces, the carpets were wet, and dog feces, fresh and old, were throughout the house. Bugs, spiders and cockroaches were also all over the house. Under a bassinet, presumably K.'s, located in Terri and defendant Gramaje's bedroom, there was a puddle of urine and dog feces as well as a dead mouse. The house was filthy and rodents could be heard scratching behind furniture and walls. When sheriff's deputies initially contacted defendant Gramaje at his home on March 11 and explained that there was something wrong with K., defendant Gramaje stated that they had been watching the child for a few months and that "he had treated the baby as his own, taken it in." When later interviewed, defendant Gramaje stated, in pertinent part, that he did not know much about the situation with K. because he spent long hours away from home, commuting to and working at his job as a cook at the Marriott in Irvine. Defendant Gramaje stated that K. had been living at his house since October 2000 and that his wife Terri watched K. most of the time but that defendant Merchant also cared for the child. Although he claimed not to know how K. came to be living in his house, defendant Gramaje did acknowledge that he told his wife that he did 6

not want the responsibility of looking after someone else's child, but because it was something Terri wanted to do, defendant Gramaje accepted it. Defendant Gramaje also stated that he had noticed sores around K.'s mouth and nose and that Terri said the former were caused by an allergic reaction to apple products and the latter were the result of a cold. Defendant Gramaje had not noticed other sores or injuries on K. but if he had, he would have made sure she received medical attention. When told about K.'s injuries, defendant Gramaje stated that he was confused, that he had never seen the injuries, and did not know how they had occurred. He admitted, however, that the Gramajes' house was filthy and not the proper place for a seven-monthold infant to live. When interviewed, defendant Merchant initially stated, among other things, that she first noticed the so-called bruise on K.'s leg on March 10 and that on the morning of March 11, the bruise began opening up, "like the skin had peeled apart." After she and Terri looked at the bruise, Terri said they needed to take the baby to Lisa so she could take K. to the doctor. Defendant Merchant later admitted that she had seen the bruise or black mark on K.'s leg earlier in the week, and that she had seen bedsores on K.'s buttocks for two to three weeks. She then explained how on March 10 Terri brought K. to defendant Merchant's trailer and used a box cutter to open K.'s leg. Defendant Merchant also said that she had no idea how K. had come to have a broken left tibia and broken hip bones. She admitted that K. had a lot of cold sores and purported bite marks from her sister S. and recently had been "breaking out" with black and blue marks all over her body. Defendant Merchant said that she never saw Terri 7

Gramaje drop or hit K. but that she had seen her spank the child. According to defendant Merchant, who acknowledged having been hit by her, "Terri's got a hard hand when she hits." In a second interview two days later, defendant Merchant disclosed that K. had twice gone into convulsions. The first time, which occurred about a month before the interview, Terri called defendant Merchant at work and said that K. had been convulsing and had stopped breathing but started to breathe again after Terri performed CPR. Defendant Merchant returned home and she and Terri poured cold water on the baby to shock her and "bring some life back into her." A week later, K. convulsed again and this time Terri poured water on her to revive her. Although they considered taking her to the hospital, Terri decided not to because K. had sores on her buttocks and Terri "didn't know where they were from and she didn't want any trouble, any problems . . . ." Defendant Merchant's son, R., testified at trial, among other things, that because K. did not like to eat with a spoon, Terri Gramaje, would "shove the spoon in her mouth" and make K. cry. When Terri got mad she would throw K. down on the couch or in her bassinet and K. would cry loudly. R. also saw Terri hit K. hard more than 10 times, kick K.'s walker while the infant was in it, and shake K. two to three times. R. also saw two of K.'s seizures. During the first one, R. saw Terri shake K. and then heard her tell her sons, B. and M., to throw water on the baby. During the second seizure, Terri called defendant Merchant at work and by the time she arrived, K. was awake. According to R., when defendant Merchant told Terri to take K. to the doctor, Terri said she did not "want the police to be involved." R. also testified that he had noticed that K. had sores around her nose and mouth and had dime-sized bruises on her buttocks. R. was in the trailer 8

when Terri cut open K.'s leg with the box cutter and he saw his mother hold K.'s legs still while Terri made the incision. Defendant Gramaje's sons, B. and M., also testified at trial. In his testimony B., the younger of the two boys, stated, among other things, that he had seen some of K.'s injuries, including the scabs all over her mouth. He remembered when the bruise on K.'s leg opened up and that his dad told his mother to take K. to a doctor. B. also testified that his dad did not want K. and S. living with them because he felt the house was not fit for girls to live in. B. acknowledged that he told an investigator that his dad was afraid something would happen to K. and S. and that his mother would be involved. B. also acknowledged but denied the truth of other statements he had made to investigators, including a statement that Terri and defendant Gramaje screamed at K. and called her a "fucking bitch," that Terri spanked K. and slammed her in her bassinet, that his mother hit him hard, and that defendant Merchant had been present when Terri hit K. M. testified in pertinent part that his mother threw K. down hard on the waterbed, yelled and cussed at K. and forcefully put the child in her bassinet. M. recalled that K. had a seizure and that B. and his mother threw water on her and Terri shook her hard to revive her. M. testified that he later told his father about the seizure and his father was upset that his mother had not taken K. to the hospital.2 Additional facts pertinent to the issues raised on appeal will be recounted below.

Lisa eventually pleaded guilty to two counts of felony child endangerment for leaving K. and S. with the Gramajes. Terri Gramaje also pled guilty to torture and other charges, and is serving a term of 25 years to life in prison.

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DISCUSSION We first address the issues raised by defendant Gramaje and begin with his claim that section 273a, subdivision (a) is unconstitutionally vague.3 1. SECTION 273a, SUBDIVISION (a) The child endangerment statute, section 273a, subdivision (a), states in pertinent part that, "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered" is guilty of a crime punishable as either a misdemeanor or felony. (

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