The PEOPLE, Plaintiff and Respondent, v. Abigail ODAM, Defendant and Appellant. IN RE: Abigail Odam, on Habeas Corpus.
A jury convicted Abigail Odam of one count of child endangerment (count 1), and five counts of practicing medicine without a license under circumstances which create a risk of great bodily harm or death (counts 2-6) in connection with her performing midwife services unauthorized by law on five separate occasions.
Odam appeals, contending that (1) she should have been prosecuted under the specific statutory scheme pertaining to midwifery (the Licensed Midwifery Practice Act of 1993, Bus. & Prof.Code,1 § 2505, et seq.) rather than the general statute governing the unlawful practice of medicine; (2) the court erred in refusing to instruct on lesser included or related offenses of “violations of the midwifery act”; (3) there was insufficient evidence to sustain her conviction for child endangerment because the prosecution's two expert witnesses were unqualified; (4) the trial court erred in (a) instructing the jury regarding criminal negligence, (b) instructing the jury that assisting a woman in the process of delivery and childbirth constitutes treatment of another for a physical condition, and (c) refusing to instruct the jury on the medical emergency exception to practicing medicine without a license; (5) the court erred in admitting improper character evidence; and (6) the court erred in dismissing a juror during deliberations. We find Odam's arguments to be unavailing, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Odam was a registered nurse, who in 1986 started a home birthing service, despite the fact that she never fulfilled the requirements for becoming a certified nurse-midwife. In 1989, Odam's registered nursing (R.N.) license was revoked based on a number of cases in which she assisted women in home births with dire consequences. About 18 months later, however, she resumed her midwifery services, assisting in approximately 100 births a year in exchange for between $1,200 and $2,000 a birth; although at times she accepted certain “barter services.” At no time was Odam certified or licensed as a midwife.
Labor of Valentina Annerino and Birth of Nicholas Annerino (Counts 1 and 5)
After suffering two miscarriages, Annerino became pregnant for the third time. Although she was originally receiving prenatal care at Kaiser Permanente Hospital, midway through her pregnancy Annerino hired Odam to be her midwife, and paid her $2,000 to cover delivery, prenatal and postnatal care.
Annerino was due on October 6, 1994, and on October 3, she began to experience a great deal of extremely uncomfortable lower back pain; she called Odam, who told her to call back when she “couldn't take it anymore” and wanted her to come over. Odam went to Annerino's house on October 5, with two assistants, who attempted to alleviate Annerino's back pain without success. Odam also gave Annerino a pelvic examination and determined that her cervix was dilated two centimeters. By October 6, Annerino still had not experienced any contractions, and Odam, having determined that her cervix remained dilated at only two centimeters, manually dilated it to about four centimeters (approximately ten centimeters being full dilation). Odam then encouraged Annerino to push, which she did.
When labor did not progress, Odam manually dilated Annerino's cervix again, had Annerino push some more, and then suggested “trying a little bit of Pitocin to speed things along.” (Odam admitted at trial that she had “[n]o particular training” in the use of Pitocin during labor.) Annerino, trusting Odam's judgment, agreed, and Odam injected the drug into Annerino's hip.2 Shortly thereafter, Annerino started experiencing strong contractions; however, the Pitocin wore off after about an hour and the contractions stopped. Odam waited another hour and then injected Annerino with more Pitocin. Part of the second injection “trickle[d] down” Annerino's hip, so Odam gave her a third injection. Annerino then experienced strong contractions again, and “pushed” as Odam directed, but the drug soon wore off and the contractions stopped. A few hours later, Odam manually dilated Annerino's cervix to six centimeters and gave her a fourth injection of Pitocin. Annerino had more strong, rapid contractions which eventually stopped, although Odam continued to direct her to push and applied firm pressure on the top of Annerino's uterus to “try to push the baby down.”
At about 11 p.m. on October 6, Annerino's “own contractions, without any Pitocin, were finally starting to kick in” and at about 6 a.m. on October 7, the baby's head crowned. Annerino kept pushing for a long time until finally the baby's head emerged; but the body “seemed to be stuck.” Odam had Annerino get on her hands and knees, and started suctioning meconium from the baby's mouth or nose.3 Odam then reached into the birth canal and discovered that the baby's hand was stuck so she pulled on his hand and arm and eventually Nicholas was born. He did not make any sounds, however, and he “looked awful still.” Odam continued to suction him, had one of her assistants put an oxygen mask on him, and performed mouth to mouth resuscitation and C.P.R. Then Odam asked one of her assistants to call 911 and continued giving Nicholas oxygen and mouth to mouth resuscitation.
Paramedics arrived shortly thereafter, responding to a “pediatric cardiac arrest” call. They assumed they would be transporting the baby to the hospital immediately; however, they had trouble getting access to and examining him, as Odam was reticent to give up control and put herself between the paramedics and Nicholas. She also never informed the paramedics that Nicholas had required mouth to mouth resuscitation and C.P.R. A videotape captured the events. When the parents were asked, “[d]o you want your child to go to the hospital or do you want to keep him here,” Odam replied, “[n]ot if he does good.” About seven minutes after arriving, Paramedic Brad Dussault asked, “[w]as there any meconium?” Odam said yes, and Dussault said, “he's gonna have to go to the hospital.” However, Odam responded, “[w]ell, I often see this resolve, just give us a few minutes․ He's not even flaring at the nostrils. I've seen it a lot worse.” Dussault testified, however, that the presence of meconium is a sign of fetal distress in newborns, and that if a newborn breathes the meconium before it is suctioned out of his airway or lungs, the meconium will obstruct the pulmonary system which could lead to cardiac arrest and/or cause an infection; and if removal of the meconium is delayed, the likelihood is greater that a newborn will aspirate it into his lungs. Dussault also testified that the suctioning device Odam was using was ineffective in removing meconium from a newborn's lungs.
Dussault told Odam of the risks of meconium and bacteria, and she said “I know, but sometimes they resolve it. Just give me a few minutes.” Thereafter, Odam claimed Nicholas was getting better, and said she had delivered a lot of meconium babies and “[j]ust wanted to see how he does just for a few minutes.” Nicholas's respiratory distress could be heard on the videotape, but Odam again told Dussault that it sometimes “resolves itself,” and explained to the parents that the baby's noisy breathing was “gunk in the lungs.” Odam asked Nicholas: “Do you need to go sweetie, or are you going to stay with us” and encouraged him to “cough this stuff up.”
As the paramedics attempted to secure Annerino's permission to take Nicholas to the hospital, the parents looked to Odam, who assured them that things would be fine. The paramedics were able to convince Annerino of the seriousness of the situation only after they had been there approximately 30 minutes, at which time they were able to hook Nicholas up to an E.K.G. monitor which showed that his heart rate was below normal. Then the paramedics finally received permission to transport Nicholas to the hospital, where it was determined that he had suffered perinatal asphyxia and meconium aspiration, and significant neurological injury. Dr. Brian Saunders, a neonatalist who treated Nicholas, testified that his injuries were partly sustained after his birth because the meconium was not adequately suctioned out of his mouth, airway and lungs and because of the delay in transporting him to the hospital.
Annerino arrived at the hospital on a stretcher; her face and eyes were swollen and there were many broken blood vessels in her eyes. She was exhausted, in extreme pain, had large lacerations; and her uterus was markedly enlarged. The obstetrician gynecologist who treated her was surprised and concerned when Odam reported that she had been pushing for eight hours, since two to three hours of pushing is normal. Odam, however, “seemed almost proud of the fact that [Annerino] had delivered after pushing for this length of time․”
Odam testified on her own behalf, and stated that she saw “moderately thick meconium” on Nicholas's face after his head presented. After deciding that he had “probably” aspirated meconium, she attempted to suction it from him. She stated that she used her experience of “years of delivering babies” in assessing and evaluating Nicholas, and “knew that he was in need of some assistance,” so she “applied some mouth to mouth ․ cleared out the meconium as best [as she] could․ I did some C.P.R. to help his heart and to give him breaths and to get his respiration going.” She got his heart rate up to a level she “felt was acceptable,” but called the paramedics to “stand by” as she could hear “gurgling in his lungs.” By the time the paramedics arrived, her assessment of Nicholas was that he was continuing to improve. Odam also testified that she had been involved in about a hundred births in which meconium were present, and that of those, only four or five had to be transported to a hospital, and none had lasting complications.
Labor of Colleen Price (Count 2 )
In 1993, Colleen Price was pregnant with her third child. Her second child had been delivered through a “classical Cesarean” section in which the uterine incision is made vertically. An attempt at a vaginal delivery following a previous classical Cesarean section creates a “remarkably increased” risk of uterine rupture which can result in death to both mother and child. However, Price wished to deliver her third child vaginally, and she arranged to come from South Carolina to San Diego when she was seven months pregnant, and for Odam to assist in a home vaginal delivery and give pre-birth consultation and care.
Price's labor commenced shortly before midnight on October 4, 1993; Price's mother called Odam, who came over at about 3 a.m. Odam was unable to hear a fetal heart tone, and took Price's blood pressure after Price complained of feeling nauseous and unwell. Odam determined that Price's blood pressure was dropping, and testified that then she “put it all together and ․ thought, ‘oh my gosh, I think the uterus has ruptured[,] our worst fear.’ ” Odam first instructed Price's mother to call an ambulance service; then she changed her mind and told her to call 911. Price's baby was delivered stillborn as a result of the placenta separating from the ruptured uterus; Price's life was saved.
Labor of Mellissa Clegg (Count 3)
Clegg hired Odam to be her midwife for a home delivery at a fee of $1,800. During her prenatal checkups, Clegg told Odam that she lived very close to a hospital and wanted to be taken there if anything unusual happened. Clegg went into labor at about 8 p.m. on January 20, 1993 and labored throughout the night, while Odam slept on a couch in Clegg's home. By 8 a.m. the next day, however, Clegg's water had not yet broken, so Odam had her lie with her legs drawn up and pushed down on her “very forcefully.” Clegg remained in this position for about an hour and a half, and at approximately 10 a.m., Odam announced that her water had broken. Odam then gave Clegg a series of pelvic examinations, because she was concerned that Clegg's cervix was not dilating. She performed these examinations without gloves, putting Clegg and the baby at an increased risk of infection. After each exam she told Clegg she was not “getting anywhere with this,” yet encouraged Clegg to push whenever she felt she needed to. Clegg expressed her concern about the lack of cervical dilation and at one point asked to be taken to the hospital; however Odam told her she did not need to go and that everything was fine.
Clegg's daughter was born at 2:20 p.m. that afternoon. The umbilical cord was so short that Clegg had to lean over to hold the baby. Odam left the umbilical cord uncut and waited for the placenta to deliver. About two and a half hours after the baby was born, the placenta had not delivered, so Odam had Clegg's husband cut the cord and had Clegg bear down. However the placenta still did not deliver, so Odam straddled her and tugged on the end of the cord that was still attached to the placenta. Clegg told her to stop because it was “excruciatingly” painful and asked to be taken to the hospital, but Odam refused and kept tugging until the cord broke and Clegg started gushing blood. Clegg started to black out, and Odam gave her a “Chinese herb” to drink, which she claimed would stop the bleeding. Odam then put her ungloved hand into Clegg's vagina, pried open her cervix and scooped out the placenta. At no time did Odam consult with a physician. By the next day, Clegg had developed an infection with temperatures reaching 105 degrees, which was eventually cured with antibiotics.
Labor of Janet Fortiner (Count 4)
Pregnant with her first child in 1994, Janet Fortiner hired Odam to be her midwife for $2,000, and underwent regular prenatal “meetings” with her. During the second half of her pregnancy, Fortiner developed high blood pressure. When Fortiner expressed concern about her high blood pressure to Odam, Odam advised her to lower it by eating things such as garlic and licorice root.
Fortiner's water broke at 4 a.m. on Wednesday, June 29, 1994; she called Odam, who said she would come out to Fortiner's home in Borrago when her contractions were 45 minutes apart. Fortiner's labor continued sporadically through Wednesday, Thursday and Friday, and her contractions were never regularly 45 minutes apart. Odam came out on Thursday, and returned on Friday, where she manually dilated Fortiner's cervix. By Friday night, Fortiner's blood pressure and temperature were rising and she was feeling poorly. Expert testimony established that a fever in a woman in labor whose water has broken suggests an infection in the uterus and calls for transport to a hospital. However, Odam put Fortiner in a tub to attempt to reduce her fever.
Fortiner's fever persisted throughout the night, and at about 6 a.m. the next day, Saturday, July 2, Fortiner told her husband that she did not think she could “take anymore of this.” About that same time, Odam suggested that Fortiner call an ambulance, and Fortiner's husband said “no, just get in the car.” Odam accompanied them to the hospital and told them not to tell hospital personnel that Fortiner's water had broken four days earlier, on Wednesday. When Fortiner arrived at the hospital and got out of the car, she noticed meconium running down her legs. Her baby was delivered by Cesarean section; Fortiner was kept in the hospital for two days and her baby was kept for three days; fortunately, he suffered no disability from his birth.
Labor of Kathleen Cottrell (Count 6)
In 1994, Cottrell hired Odam to be her midwife for a home delivery. Her labor started at about 6 a.m. on October 17, 1994. Odam and an assistant came over for a few hours that day and conducted a pelvic examination and checked her heart rate and that of the fetus. Cottrell's contractions continued the next day, and Odam came over again, and conducted a pelvic examination. Cottrell's cervix had not dilated, so she walked around a bit; Odam conducted a second examination and noted Cottrell's cervix had dilated to about three centimeters. By this point, Cottrell had begun pushing with Odam's encouragement. However, her labor began to stall, and Cottrell called her acupuncturist, who said she could do nothing to assist her. Then, after consulting her acupuncturist again regarding the use of Pitocin to accelerate labor, she “begged” Odam to give her Pitocin. Odam obliged and injected her in the hip with Pitocin once at 6 p.m. and a second time at 8 p.m. Cottrell's baby was born soon after at 8:59 p.m. Meconium was present, and the baby was transported to the hospital where she was kept for 12 days before being released.
ODAM WAS PROPERLY PROSECUTED FOR THE UNLAWFUL PRACTICE OF MEDICINE
Odam contends that she should have been prosecuted under the “specific statutory scheme” created by the Licensed Midwifery Practice Act of 1993, rather than the “general statute” prohibiting the unlawful practice of medicine. This argument is unavailing because Odam is neither a certified nurse-midwife under section 2746, et seq., nor a licensed lay-midwife under section 2505, et. seq., and the uncertified and unlicensed practice of midwifery is the unlawful practice of medicine. (See Bowland v. Municipal Court (1976) 18 Cal.3d 479, 490-491, 134 Cal.Rptr. 630, 556 P.2d 1081; Northrup v. Superior Court (1987) 192 Cal.App.3d 276, 280, 237 Cal.Rptr. 255.)
Section 2053, regarding the unlawful practice of medicine under circumstances or conditions creating a risk of great bodily harm or serious illness provides as follows:
“Any person who willfully, under circumstances or conditions which cause or create risk of great bodily harm, serious physical or mental illness, or death, practices or attempts to practice, or advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked and unsuspended certificate as provided in this chapter, or without being authorized to perform that act pursuant to a certificate obtained in accordance with some other provision of law, is punishable by imprisonment in the county jail for not exceeding one year or in the state prison.” (Italics added.)
The practice of midwifery (assisting a woman in childbirth, §§ 2507, subd. (b) & 2746.5) is the treatment of a “physical condition” under sections 2052 (misdemeanor unlawful practice of medicine) and 2053. (Northrup v. Superior Court, supra, 192 Cal.App.3d at p. 280, 237 Cal.Rptr. 255; see also Bowland v. Municipal Court, supra, 18 Cal.3d at p. 491, 134 Cal.Rptr. 630, 556 P.2d 1081 [practice of midwifery is the treatment of a “physical condition” under precursor statute].) Thus, unless a person is otherwise licensed or certified to do so, assisting a woman in childbirth is unlawfully practicing medicine. (Bowland v. Municipal Court, supra, 18 Cal.3d at p. 491, 134 Cal.Rptr. 630, 556 P.2d 1081; Northrup v. Superior Court, supra, 192 Cal.App.3d at p. 280, 237 Cal.Rptr. 255.)
Although Odam argues that the Licensed Midwifery Practice Act of 1993 is more specific than sections 2052 and 2053, the Act does not overrule Bowland or otherwise shield uncertified or unlicensed midwifes from statutes prohibiting the unauthorized practice of medicine.
Our study of the Licensed Midwifery Practice Act of 1993 and its legislative history reveal that by 1993, there were approximately 800 certified nurse-midwives in the state and no certified lay-midwives.4 However, unlicensed, unregulated lay midwives were “offering health services to individuals in California despite the illegal nature of their work as the unauthorized practice of medicine.” (Sen., 3d Reading analysis of Sen. Bill No. 350 (1993-1994 Reg. Sess.) as amended Sept. 7, 1993, p. 5.) The Legislature perceived a need for highly trained, educated and regulated midwives who were as qualified as nurse-midwives to assist in childbirth, but who were not required to possess an R.N. (Stats.1993, ch. 1280, § 1; Assem. Com. on Health, Analysis of Sen. Bill No. 350 (1993-1994 Reg. Sess.) as amended Aug. 16, 1993, p. 4.) Thus, in 1994, the Licensed Midwifery Practice Act of 1993 was enacted to provide for the regulation and licensing of lay-midwives who had undergone extensive training and education and passed a comprehensive examination equivalent to the one given by the American College of Nurse Midwives and to authorize these licensed lay-midwives to assist in normal childbirths without running afoul of the prohibitions against the unauthorized practice of medicine under sections 2052 and 2053. (§§ 2505, 2507 & 2512.5, subd. (a)(1); sen., 3d reading analysis of Sen. Bill No. 350 (1993-1994 Reg. Sess.), as amended Sept. 7, 1993.)
Odam, however, was neither certified nor licensed to practice midwifery, thus she was properly prosecuted for the unauthorized practice of medicine in connection with the five births in which she assisted. (Bowland v. Municipal Court, supra, 18 Cal.3d at p. 491, 134 Cal.Rptr. 630, 556 P.2d 1081; Northrup v. Superior Court, supra, 192 Cal.App.3d at p. 280, 237 Cal.Rptr. 255.) Her argument that she should have been prosecuted under the “specific statutory scheme” created by the Licensed Midwifery Practice Act of 1993 simply has no application in this case.
THE COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON “VIOLATIONS OF THE MIDWIFERY ACT” AS LESSER INCLUDED OR RELATED OFFENSES OF THE UNAUTHORIZED PRACTICE OF MEDICINE
Odam also contends that the court erred when it refused to give lesser related or included offense instructions on “violations of the midwifery act, B & P § 2521” for counts 2 through 6 pertaining to the unauthorized practice of medicine. We disagree.
Odam wanted an instruction on the “unlicensed practice of midwifery” as a lesser included or related offense of the unauthorized practice of medicine. However, as set forth above, such an instruction was not available to her, because if a person practices midwifery without a license or a certificate, she engages in the unauthorized practice of medicine. Indeed, the Licensed Midwifery Practice Act of 1993 makes no mention of the unauthorized or unlicensed practice of midwifery. It forbids a person to hold herself out as being licensed if she is not (§ 2511, subd. (a)), but does not address unlicensed or uncertified practice of midwifery-because as is clear from the caselaw and the legislative history of the Licensed Midwifery Practice Act of 1993, the unlicensed practice of midwifery is the unauthorized practice of medicine.
ODAM'S CONVICTION OF CHILD ENDANGERMENT IS SUPPORTED BY SUBSTANTIAL EVIDENCE
In connection with Nicholas Annerino, Odam was convicted of felony child endangerment under Penal Code section 273a, subdivision (a), which, inter alia, makes it a crime to “willfully causes or permits [a] child to be placed in a situation where his or her person or health is endangered․” In finding Odam guilty of child endangerment, the jury made this special finding, which it noted on the verdict form: “Found guilty on the basis that the Defendant, Abigail Odam, did not relinquish care of Nicholas Annerino to the Paramedics in a timely manner, which permitted Nicholas to be placed in a situation that endangered his person or health.”
Penal Code section 273a does not require a specific intent to inflict harm, rather it requires criminal negligence in permitting the child to be placed in a situation endangering his or her health or person. (People v. Sanders (1992) 10 Cal.App.4th 1268, 1273-1274, 13 Cal.Rptr.2d 205.) Here, the jury was properly instructed that:
“Criminal negligence refers to negligent acts which are aggravated, reckless and gross, and which are such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for danger to human life, or to constitute indifference to the consequences of such acts.
“The facts must be such that the consequences of the negligent acts could reasonably have been foreseen and it must appear that the danger to human life was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of aggravated, reckless or grossly negligent acts.” (See Williams v. Garcetti (1993) 5 Cal.4th 561, 573-574, 20 Cal.Rptr.2d 341, 853 P.2d 507.)
Odam contends that there was insufficient evidence to convict her of child endangerment, because the trial court erred in allowing the prosecution's expert witnesses to testify regarding standards of care for midwives, and without their testimony, “there was no evidence upon which [she] would have been convicted, in light of the jury's special finding.” This contention is meritless.
On count 5, child endangerment of Nicholas Annerino, the prosecution introduced the expert testimony of Bonnie Marsh and Dr. Cousins, in addition to the testimony of Annerino and Dussault. Marsh, was a certified nurse-midwife with 11-years experience in assisting home births. She testified that it was standardized practice where meconium was present at birth for the midwife to consult with a physician, and in the event of meconium aspiration, for the midwife “to deep suction the baby as the head is out, deliver the baby, ․ assess it and transport it as soon as possible.” Marsh viewed the videotape of Nicholas's birth and testified that he was “absolutely” in danger of great risk of bodily harm or death during the time period after delivery up until he went to the hospital. This is because a baby can die very quickly of meconium aspiration either as a result of a p.h. imbalance in his blood, or from an obstructed airway, and “the paramedics were very blocked in assessing that baby and taking that baby ․ there's a time clock with meconium, and there's no time to be wasted about it.”
Dr. Cousins had years of experience in working with nurse-midwives and had helped develop and review midwifery protocols. He testified that if moderate to thick meconium is present at birth, there is a major risk that the baby will breathe some of it into his lungs. This could result in no harmful effect if the meconium is quickly removed and the baby quickly provided with oxygen and assistance in breathing; or, on the other end of the spectrum, the meconium can cause a chemical irritation in the lining of the lungs and the baby can die in the “newborn period” from that complication. Dr. Cousins viewed the videotape of Nicholas's birth and the events following. He noted a “moderate to large in amount” of meconium that was “moderate to thick in consistency” and testified that in his opinion Odam's care was substandard because (1) her suctioning of meconium was inadequate, as she only cleared the baby's nose and mouth and not his air passage; (2) her resuscitation efforts were inadequate; (3) there was a delay in requesting emergency assistance; (4) she interfered with the emergency medical response team; and (5) “there was an inordinate delay in transferring the infant from the home environment to a place where the infant and the mother could receive care․”
Odam contends that Marsh and Dr. Cousins were not qualified to testify regarding the standard of care for “lay midwives in home birth settings” (as opposed to certified nurse-midwives in a hospital setting) and “[a]bsent their testimony[,] there was no basis to support a conviction.” We disagree.
The trial court is given considerable latitude in an expert's qualifications and its ruling will not be disturbed absent a manifest abuse of discretion. (People v. Davenport (1995) 11 Cal.4th 1171, 1207, 47 Cal.Rptr.2d 800, 906 P.2d 1068.) There was no such abuse in this case. Implicit in Odam's argument is that the standard of care for lay midwives performing home births are, or should be, different or lower than that of certified nurse midwives in home or hospital settings. (Indeed, Marsh's expertise was in home deliveries.) This position is utterly at odds with the Licensed Midwifery Practice Act of 1993, which declares that competencies for lay midwives should be comparable to those of nurse-midwives and requires the passage of a comprehensive licensing examination equivalent to the one given by the American College of Nurse Midwives. (Stats.1993, ch. 1280, § 1, subd. (j); § 2512.5, subd. (a)(1).)
Furthermore, in reference to the prosecution's expert testimony regarding standards of care, the court defined criminal negligence, explained the differences between it and professional negligence, and informed the jury that the expert testimony “may or may not assist you in evaluating the conduct of the defendant under count 1.” Odam was also able to present her own expert testimony regarding the standard of care through Faith Gibson, a “lay midwife who practices home births.” Gibson testified that there was no standard or set of common protocols that all midwives in California followed. She also stated that the presence of meconium may, or may not, be cause for concern, and the presence of meconium itself is not, of itself, a reason to transport a baby to the hospital-rather, there is a period of observation that should occur, during which an evaluation will be made whether to transport or not.
Finally, we reject Odam's argument that without Marsh's and Dr. Cousins's testimony regarding standards of care, there was no basis to convict her of child endangerment. The jury heard testimony from Annerino and Dussault and saw a videotape of Nicholas's birth and the aftermath, which indicated that despite an extremely long and difficult delivery and a “pediatric cardiac arrest” call to an emergency medical response team, Odam was extremely reticent to give up control of Nicholas to the paramedics, blocked their access to him, and failed to inform them that she had had to administer mouth to mouth resuscitation and C.P.R. She interceded when the paramedics attempted to talk to the parents about transporting Nicholas to the hospital. Odam also dismissed the urgency surrounding the presence of meconium and Dussault's statement that it mandated hospital transport, saying, “Well, I often see this resolve, just give us a few minutes․ He's not even flaring at the nostrils. I've seen it a lot worse”-all while Nicholas could be heard to be in respiratory distress, as Odam informed his parents that it was “gunk in the lungs” and encouraged Nicholas to “cough this stuff up.” As was made clear by the videotape and Odam's cross-examination of Dussault, more than half an hour elapsed before the paramedics could hook Nicholas up to an E.K.G. and finally persuade his parents to allow him to be taken to the hospital. This is more than sufficient evidence to support the jury's conclusion that Odam was criminally negligent in placing Nicholas in a situation that endangered his person or health. (People v. Sanders, supra, 10 Cal.App.4th at pp. 1273-1274, 13 Cal.Rptr.2d 205.)
THE TRIAL COURT PROPERLY INSTRUCTED THE JURY
Odam makes several assignments of error regarding jury instructions. All are without merit.
First, Odam contends that the court erred in giving the jury a supplemental instruction that:
“Criminal negligence may be found even when the defendant acts with a sincere good-faith belief that his or her actions pose no risk. If the jury determines that the defendant was unreasonable in that belief, the defendant's actual subjective belief is irrelevant.”
She argues that this instruction undermines the portion of CALJIC No. 3.36 on criminal negligence that was “central to [her] defense” and which states:
“[I]t must appear that the danger to human life was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of aggravated, reckless or grossly negligent acts.”
Odam's contention is unavailing. The supplemental instruction correctly sets forth the law on criminal negligence, and the court did not err in giving it. (People v. Hansen (1997) 59 Cal.App.4th 473, 478, 68 Cal.Rptr.2d 897; People v. Sanders, supra, 10 Cal.App.4th at p. 1273, 13 Cal.Rptr.2d 205; People v. Rippberger (1991) 231 Cal.App.3d 1667, 1682, 283 Cal.Rptr. 111; see also Williams v. Garcetti, supra, 5 Cal.4th at p. 574, 20 Cal.Rptr.2d 341, 853 P.2d 507.)
Next, Odam contends that the court erred in instructing the jury that “[a]ssisting a woman in delivery in child birth as a midwife constitutes the treatment of another for a physical condition.” We disagree, because as set forth in the first section of this opinion, the instruction is a correct statement of the law. (Bowland v. Municipal Court, supra, 18 Cal.3d at p. 491, 134 Cal.Rptr. 630, 556 P.2d 1081; Northrup v. Superior Court, supra, 192 Cal.App.3d at p. 280, 237 Cal.Rptr. 255.)
Odam also contends the court erred in refusing to instruct the jury with the medical emergency exception to the unlawful practice of medicine as to counts 2 (Price), 3 (Clegg), and 5 (Annerino and Nicholas) as follows:
“It is not unlawful for any person in case of emergency to do any of the acts referred to in Section 2052 or 2053 of the Business and Professions Code pertaining to practicing medicine without a license. An emergency is an unforeseen combination of circumstances which calls for immediate action. In other words, ‘emergency’ anticipates a situation of such a nature that action must be taken before a legally authorized person can be found or procured.”
Odam maintains this instruction should have been given in the case of Nicholas's birth because the evidence was that her efforts to move his arm and hand during delivery was the result of shoulder dystocia, which is a medical emergency, and thus, her conviction on count 5 should be reversed. This argument fails in light of the undisputed evidence that Odam repeatedly gave Annerino subcutaneous injections of Pitocin, manually dilated her cervix during unproductive labor, encouraged her to push for hours when her cervix was not sufficiently dilated and pushed on her uterus during this period in an attempt to move the baby down the birth canal.
Odam also contends the medical emergency instruction should have been given in the case of Price, because Odam was called out to Price's mother's home late at night and when she got there she discovered that Price's blood pressure was low and she could not locate a fetal heartbeat. Thereafter, Price was taken to the hospital where her baby was delivered stillborn as the result of a ruptured uterus. However, for two months Odam had undertaken the prenatal and home childbirth care of a woman whose medical history (her last child having been delivered by classical Cesarean section) unequivocally indicated that she was highly at risk for a ruptured uterus in the event a vaginal delivery was attempted. Indeed, Odam testified that it was their “worst fear.” She was not entitled to rely in her defense on a medical emergency involving a risk of which she was aware and helped create. (People v. Cosper (1926) 76 Cal.App. 597, 600, 245 P. 466.)
Odam contends the jury should have been given a medical emergency instruction in the case of Clegg, because “in the process of delivering the placenta, Ms. Clegg began to hemorrhage seriously” and she had to take emergency action to deliver the placenta manually so that Clegg did not bleed to death. The problem with this argument is that Clegg began bleeding profusely when Odam pulled on and broke the umbilical cord in an attempt to remove the placenta after it had been retained for more than two hours. Odam never consulted with a physician, and during this time frame, Clegg could have been taken to a hospital in very close proximity, thereby preventing the potential for an emergency. Again, Odam is not entitled to the benefit of an emergency that she helped create or could have avoided. (People v. Cosper, supra, 76 Cal.App. at p. 600, 245 P. 466.)
THE TRIAL COURT DID NOT ERR IN ADMITTING IMPROPER CHARACTER EVIDENCE
Odam contends the trial court erred in admitting evidence relating to the revocation of her nursing license in an administrative law proceeding resulting in part from her actions in assisting in two distressed home births at which meconium was present.5 She maintains that this constituted improper character evidence under Evidence Code section 1101, and should have been excluded as more prejudicial than probative “because of their time remoteness and the fact they were interspersed with about 1,000 births of which about 100 involved the presence of meconium of which only a handful resulted in serious complications. Further, the fact [that] the two matters involved the death of infants made the evidence highly inflammatory.”
The difficulty with Odam's contention is that the evidence went directly to the issue of her knowledge and state of mind during the period of delay between Nicholas's difficult birth after a distressed labor and his transport to the hospital. Central to Odam's defense at trial was that “the act of observing Nicholas Annerino for a period of time before the baby was turned over to the paramedics, is not deemed to be criminally negligent if the act was the result of inattention, mistaken judgment or misadventure ” (italics added), and that any delay that occurred was due to a reasonable exercise of judgment. However, evidence from her R.N. license revocation proceedings indicated that Odam had significant, pertinent knowledge regarding the presence of meconium following a distressed labor and its dangerous consequences. This knowledge went directly to the issue of whether her behavior following Nicholas's birth was the result of reasonable or mistaken judgment, and whether she had active or constructive knowledge of the risks involved-an essential factor in establishing criminal negligence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1205, 26 Cal.Rptr.2d 23, 864 P.2d 103; Williams v. Garcetti, supra, 5 Cal.4th at p. 574, 20 Cal.Rptr.2d 341, 853 P.2d 507.)
Nor was this evidence too remote; Odam's delivery of Nicholas occurred only five years after the license revocation proceeding, and within eight and seven years of the incidents outlined in findings of the administrative law judge. The fact that the infants in these cases died also does not mean that the court abused its discretion in admitting the evidence. This tragic fact went directly to the issue of Odam's knowledge of the potentially dire consequences surrounding the presence of meconium, especially after a distressed birth, and was particularly relevant in light of Odam's position at trial that she had encountered about one hundred births with the presence of meconium of which only “four or five” required hospital transport, and none involved lasting complications.
Furthermore, the court exercised its discretion prudently in admitting the evidence in a noninflammatory manner by reading a statement that summarized the pertinent portions of the administrative proceeding, and pursuant to Evidence Code section 352, would not allow testimony of the mothers involved in the births at issue in the administrative proceeding. The court also admonished the jury both before and after reading the evidence regarding the administrative proceeding, that it could not consider it as evidence that Odam was a careless person or had a propensity to be negligent, but that it could “be considered solely on the issue of [Odam's] knowledge of facts relating to the nature and extent of potential risks in connection with her care and treatment of baby Nicholas Annerino on October 7th, 1994.” Accordingly, the court did not abuse its discretion in admitting evidence of the administrative proceeding.
THE COURT DID NOT ERR IN DISMISSING A JUROR DURING DELIBERATIONS
After about an hour and a half into deliberations, the jury foreperson sent a note to the court stating, in pertinent part: “How do we go about this if some of us disagree with the law. What is jury nullification? A juror feels a jury can change the laws.” In response, the court spoke to the foreperson in chambers with both counsel present, and ascertained that juror No. 7 had raised the issue of jury nullification, and had indicated he was going to vote what he thought ought to be the law regardless of what he was told. Further, when members of the jury asked him what if the court were to instruct that he could not ignore the laws, juror No. 7 responded “flippantly” that essentially, it would not make any difference.
When the court spoke with juror No. 7, with counsel present, the juror indicated that during a discussion between jury members on whether the jury could “change the laws,” he said “I know enough about this that there's such an animal as jury nullification.” Juror No. 7 became familiar with this term while watching “Court T.V.” which he was “addicted to” until he could no longer get it on his satellite. He also stated that he told jury members “my consci [ence] tells me I could vote only one way․ Regardless what the judge said.” The court then asked juror No. 7:
“What would be your position if the court were to instruct the jury that jury nullification is a concept that is directly contrary to the oath that the jurors have taken in this case, and that to follow ․ jury nullification would be to fly directly in the face of the juror's oath.
“What would be your attitude?”
Juror No. 7 responded:
“I wouldn't dispute it with you, but I would still have to vote my conscience. I, I can't-I haven't heard anything to change my decision that I have made within me as to how I want to vote․ I wouldn't say that no, the judge is wrong, or anything like that. I, I just know what my conscience will allow me to, to vote.”
When asked if his conscience operated independently from the law, juror No. 7 stated: “I won't say it relates to the law. I will say it just relates ․ to the way I feel about what I heard in the courtroom.”
Thereafter, the court dismissed juror No. 7 for not deliberating and replaced him with an alternate juror. Odam contends that juror No. 7 was erroneously dismissed because he “dared to be aware of the concept of jury nullification.” This contention is belied by the record and we reject it. We also deny Odam's petition for writ of habeas corpus which is based on the dismissal of juror No. 7.
Under Penal Code section 1089, a court may dismiss a juror if he or she “is found to be unable to perform his duty.” “That duty includes the obligation to follow the instructions of the court․” (People v. Daniels (1991) 52 Cal.3d 815, 865, 277 Cal.Rptr. 122, 802 P.2d 906.) Here, juror No. 7, made clear that he would not follow the court's instructions where he did not agree with them, but instead, would “vote [his] conscience,” “regardless what the judge said” and further indicated that his conscience did not relate to the laws. Under these circumstances, juror No. 7 was not able to perform his duty, and he was properly dismissed. (Ibid.; see also People v. Sanchez (1997) 58 Cal.App.4th 1435, 1446, fn. 2, 69 Cal.Rptr.2d 16 [court duly bound to dismiss juror who will not or cannot follow the law]; People v. Feagin (1995) 34 Cal.App.4th 1427, 1437, 40 Cal.Rptr.2d 918.)
Finally, Odam contends that the trial court used inadmissible evidence concerning jurors' subjective thought processes in making its determination to dismiss juror No. 7. In support, she argues that such evidence is inadmissible under Evidence Code section 1150, subdivision (a) regarding evidence that is admissible “[u]pon an inquiry as to the validity of a verdict․” However, “[b]y its very language, this section applies only to postverdict inquiries into how error or misconduct had affected the juror in reaching the verdict.” (People v. Cooper (1991) 53 Cal.3d 771, 838, 281 Cal.Rptr. 90, 809 P.2d 865, disagreed with on other grounds in People v. Duncan (1991) 53 Cal.3d 955, 983, fn. 1, 281 Cal.Rptr. 273, 810 P.2d 131; People v. Haskett (1990) 52 Cal.3d 210, 240-241, fn. 11, 276 Cal.Rptr. 80, 801 P.2d 323.) During jury deliberations, a court is entitled to investigate possible juror misconduct by inquiring into the jurors' mental processes. (People v. Cooper, supra, 53 Cal.3d at p. 838, 281 Cal.Rptr. 90, 809 P.2d 865; People v. Haskett, supra, 52 Cal.3d at pp. 240-241, fn. 11, 276 Cal.Rptr. 80, 801 P.2d 323.)
The judgment is affirmed. Odam's petition for writ of habeas corpus is denied.
FN1. All statutory references are to the Business and Professions Code unless otherwise indicated.. FN1. All statutory references are to the Business and Professions Code unless otherwise indicated.
2. Dr. Larry Cousins, the director of maternal/fetal medicine at Mary Birch Hospital in San Diego, testified that Pitocin causes very intense contractions, and when used to stimulate labor it should be diluted with a saline solution and administered intravenously, because this is the only way to ensure that the woman will not receive an excessive amount of the drug. An excessive amount of Pitocin may cause serious risks to the mother and child, including a ruptured uterus and restricted blood flow to the uterus and placenta, which could limit oxygenation to the baby.
3. “Meconium is the fetus's first excrement. Its presence is a symptom of fetal distress.” (People v. Klvana (1992) 11 Cal.App.4th 1679, 1692, fn. 10, 15 Cal.Rptr.2d 512.)
4. From the latter half of this century and until recent years, essentially only certified nurse-midwives, certified physician assistant-midwives and physicians were authorized to assist women in childbirth. (§ 2746, et seq.,; former § 2505, Stats.1980, ch. 1313, p. 4510, § 2; Sen., 3d Reading analysis of Sen. Bill No. 350 (1993-1994 Reg. Sess.) as amended Sept. 7, 1993; Assem. Com. on Health, Analysis of Sen. Bill No. 350 (1993-1994 Reg. Sess.) as amended Aug. 16, 1993, p. 4.) There were a handful of certified lay-midwives who had received certificates before 1949 under prior law, but the holder of the last valid lay midwife certificate declined to renew it in 1988. (See Bowland v. Municipal Court, supra, 18 Cal.3d at p. 490, 134 Cal.Rptr. 630, 556 P.2d 1081; Assem. Com. on Health, Analysis of Sen. Bill No. 350 (1993-1994 Reg. Sess.) as amended Aug. 16, 1993, p. 4.)
5. The court informed the jury in pertinent part:“Criminal negligence is judged by the standard of an ordinary prudent, careful person under the same circumstances as the defendant. ‘Under the same circumstances as the defendant’ means in the same situation as the defendant at the time in question, and possessed of the same knowledge as the defendant at that time. Now, the knowledge of the defendant would include information acquired through education, training and experience.“I have determined that certain evidence is admissible on the issue of defendant's knowledge as of October 7th, 1994. That evidence includes the fact of defendant's license revocation in 1989, and some of the facts of the cases upon which it was based․“In 1989 a proceeding brought by the Board of Registered Nursing of the California Department of Consumer Affairs resulted in a revocation of defendant's registered nurse's license. An administrative law judge found cause to revoke defendant's license based on a number of cases in which defendant assisted women in home births. While none of the case involved exactly identical circumstances as that of Nicholas Annerino, several involved a number of possibly similar factors. I will briefly summarize the pertinent facts of two of those cases, omitting many facts which are not germane in our case-to our case.“․“Case number one. The administrative law judge found that in December 1987, defendant agreed to assist Darlene Caughey ․ as a labor coach. she then became Mrs. Caughey's midwife on February 20th, 1988, the day that labor began. Labor stalled, and the following day defendant attended another birth, leaving Mrs. Caughey with an unlicensed lay midwife acquaintance of Mrs. Caughey's.“The midwife at some point noted golden meconium. When defendant arrived, she made several unsuccessful attempts to deliver the baby. The mother was transported to the hospital, where a Cesarean section was performed, and she delivered a dead ten-pound baby.“Among the findings of the administrative law judge were that defendant failed to chart the thickness of the meconium. The charting was grossly inadequate and without any reference to quality or quantity. This information was, according to the administrative law judge, necessary as an indicator of the need for medical consultation, intervention or other measures to be taken.“Another finding of the administrative law judge was that the mother should have been transferred to the hospital when the meconium was noted, or at least medical consultation with a physician should have taken place involving an assessment of the quantity and thickness of the meconium. Had such consultation taken place, and had Darlene Caughey been timely sent to the hospital, there was a strong likelihood that the child would have survived.“Case number two. The administrative law judge found that defendant was hired by Mrs. Bunny Cypert ․ to deliver her baby. The initial due date based upon incorrect information provided by the mother. On October 3rd, 1986, defendant examined Mrs. Cypert and found normal fetal movement and fetal heart tones.“That evening the mother told defendant she felt the baby cease moving. Defendant examined her and had difficulty finding fetal heart tones and could find no fetal movement. She did not contact her backup physician, but sent Bunny Cypert home with assurances that all was normal.“The next morning Mrs. Cypert called to say there was still no fetal movement. After a second call, defendant had the mother come in for an examination. After examining her, the defendant sent Mrs. Cypert home with instructions to let her know [when] the fetus started moving.“The next morning, October 5th, defendant delivered a baby at Bunny Cypert's home. There were large amounts of think meconium in the amniotic fluid and on the baby. The baby was choking and not breathing. Defendant had the paramedics called, and they transported the baby to the hospital, where she died two days later because of severe meconium aspiration and depravation of oxygen prior to birth resulting in respiratory distress.“Among the findings of the administrative law judge in that case were that the defendant failed to contact or refer Mrs. Cypert to her backup physician after repeated complaints from the mother of no fetal movement for 24 hours and failed to properly monitor the fetus, and that these failures contributed to the baby's death.”
BENKE, Acting P.J., and NARES, J., concur.