THE PEOPLE v. RALPH RAUL CONTRERAS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Kern County detention officers beat James Moore to death after Moore became uncooperative while being booked at the Kern County Central Receiving Facility, a county jail.   Defendant Ralph Raul Contreras was one of the officers who used force against Moore.   A jury found him guilty of second degree murder and assault under color of authority.   The court imposed a term of 15 years to life for murder and imposed and stayed a two-year term for assault under color of authority.   In this appeal, Contreras argues that (1) there was insufficient evidence to support the implied-malice element of second degree murder, and (2) there was insufficient evidence that his conduct caused Moore's death.   We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

Information

On April 28, 2006, the district attorney filed an information against Contreras and two codefendants, detention officers Daniel Lindini and and Roxanne Fowler.   All three defendants were charged with second degree murder (Pen.Code, § 187, subd. (a), count one) ¹ and assault under color of authority (§ 149, count two).   Contreras and Lindini were tried together.

Trial evidence

a. Arrest and initial processing

On August 15, 2005, at about 6:00 in the evening, Kern County Sheriff's Deputy Ryan Williams arrested Moore at a house in Bakersfield on suspicion of criminally threatening a woman.   Williams handcuffed Moore and drove him to the central receiving facility.   Moore was 30 years old, was six feet two and a half inches tall, weighed 233 pounds, and was wearing only boxer shorts.   He used profane language, refused to identify himself, and followed Williams's orders slowly, but he did not put up any physical resistance.

At the central receiving facility, Williams removed the handcuffs and carried out several sobriety tests because he thought Moore's behavior indicated Moore might be under the influence of drugs or alcohol.   Williams also took a sample of Moore's urine for testing.   The sobriety tests had no abnormal results.   While Moore was going through these procedures, Williams observed that Moore's demeanor was rapidly cycling.   He would change quickly and repeatedly from cooperative and talkative to uncooperative and rigid.   Williams searched Moore, who was still dressed only in boxer shorts.   When Williams was finished, he turned Moore over to a detention officer for booking, telling the officer that Moore was “918,” meaning mentally unstable.   A later test of the urine sample was negative for drugs and alcohol.

It was after the booking process began that Moore had violent encounters with officers.   Witnesses testified to four distinct episodes of force being applied to Moore, with Moore's condition progressively worsening after each episode.

b. First episode of force:  nurse's station

The first episode took place when Moore was sent to a nurse's station.   Williams watched as a detention officer directed Moore to sit down to wait to be examined by the nurse.   Moore said no, and continued to refuse as the request was repeated.   Three officers were now standing near Moore and two took out their pepper spray canisters and said they would spray him if he did not sit down.   Moore continued to refuse, so the officers sprayed him.   Williams turned away to avoid being sprayed, and when he turned back, Moore was face down on the floor and the officers were trying to get his arms out from under his chest to handcuff him.   Eventually at least six officers were on top of Moore.   The officers were telling Moore to stop resisting, and Moore was saying they should get off of him because he could not breathe.   Moore struggled, trying to knock the officers off him and to get into a fetal position with his knees under his body.   Finally, the officers handcuffed Moore behind his back and placed leg shackles on his ankles.   Then they removed the handcuffs and put waist chains on, which held Moore's hands and prevented them from moving more than a few inches from his sides.   Contreras was not one of the officers involved in this episode.

Sergeant Todd Dearmore was the shift supervisor on duty and was involved in this first altercation, giving directions to the officers struggling with Moore.   Once Moore was restrained, Dearmore ordered him placed in A-deck, where there was a cell with padded walls.   Dearmore thought this was appropriate because Moore possibly had mental health problems.   Moore resisted on the way to the cell.   When an inmate has been struggling with officers and has been placed in restraints, medical staff are required to check the inmate.   A nurse went to Moore's cell, where he was lying on his stomach in the restraints, and examined him for injuries.   She found redness from the restraints and directed that they be loosened, but noted no significant injuries.

Detention officers Alex Morales and Zuzet Garcia (Zuzet Medina at the time of trial) were among the detention officers who struggled with Moore near the nurse's station.   In their testimony, both emphasized Moore's great strength and the unusual difficulty the officers had in controlling him.   Morales heard Moore yell “please don't kill me,” or something similar.   At one point, while Moore was face down on the floor with his head turned to the side, Garcia had her knee on Moore's back and was using her arm to hold Moore's head against the floor.   Garcia's knee and shoulder were hurt during the struggle.

c. Second episode of force:  dress-out area

At 7:00 p.m., a shift change took place.   The new shift was supervised by Sergeant Randall Holtz and Senior Detention Deputy Jaime Tellez.   Tellez testified that she went with Holtz and Lindini to remove Moore from the padded cell so he could complete the booking process.   Moore was still dressed in his shorts.   He was cooperative.   The officers took Moore's leg irons off and led him to the receiving area, where he was photographed at 7:35 p.m. Tellez then returned to her office and worked there for a while until she heard a “code red” on her radio.   A code red is called when an inmate and an officer are fighting.   Tellez ran to the receiving area.   There, in a hallway near the dress-out area (where inmates change into jail clothes), Tellez saw Moore struggling with officers.   Six or seven officers were there, trying to gain control of Moore.   Officers present included Contreras, Lindini, Holtz, Timothy Davis, Greg Cossel, Clinton Minor, Lisa Romero, and Shannon Haiungs.   The officers were trying to hold Moore down and put side-bar restraints on him.   Side bar restraints are handcuffs attached to chains that go around the waist and keep the inmate's hands at his sides.   Minor testified that this struggle began after he told Moore to change into jail clothes and Moore refused.   Minor, Lindini, and another officer tried to change Moore's clothes, and he resisted.   Moore had no restraints on at the beginning of the struggle.

Haiungs testified that, while Moore was on the floor, she saw Contreras “go down full weight on one knee” on Moore.   Haiungs's view was partly obstructed.   She thought the knee hit somewhere on Moore's head, neck, or upper body.   She did not remember whether Moore was facing up or down at the time.

Detention Deputy Gregory Morgan testified that Contreras dropped with his knee from a standing position onto Moore's upper back.   Tellez saw Contreras holding Moore face down with his knee between Moore's shoulder blades.   Davis testified that he saw Lindini hit Moore twice on the top of the head, at the hairline, with his fist.   Davis referred to this move as a “distractionary blow” and said Lindini used a “bent wrist, his elbow never cocked back.”   During the struggle, Tellez heard Moore say “ ‘what are you doing to me, why are you doing this to me.’ ”

Finally, Davis saw Holtz apply “a carotid hold, carotid choke hold” to Moore.   An officer applying a carotid hold places his arm around a subject's neck from behind, with the elbow in front, and squeezes until the blood supply to the brain is cut off and the subject loses consciousness.   The carotid hold caused Moore to lose consciousness for 5 or 10 seconds, during which time the officers finally succeeded in putting side bars and leg irons on him.   It was Lindini who applied the side bars.

After Moore was restrained, Tellez saw that blood was coming from his eye, ear, and mouth and he was missing a tooth.   Cossel saw a cut or abrasion above one of Moore's eyes.   Deputy Brian Carr saw blood on Moore's ear and observed that Moore's eyes were swollen.   Carr heard Lindini say he had knocked Moore's tooth out.   He also heard Moore tell Lindini, “you didn't have to kick my ass like that.”   Tellez later heard Lindini deny he had knocked Moore's tooth out, saying Moore had already had that injury.

A nurse was called to examine Moore.   The nurse checked Moore's vital signs, wiped his face, and said he was okay.   Holtz then ordered Contreras and detention officer Larry Johnson to take Moore by car to a hospital, since a policy required this after the application of a carotid hold.   A carotid hold, if not applied correctly, can cause damage that results in internal swelling, leading to asphyxiation.

Davis and Cossel testified that, during this episode, Moore again exhibited great strength and was unusually difficult to control.   Davis said Moore “very easily” broke free of the officers' attempts to hold him.   Cossel said Moore had “super human strength” and was the most difficult person to control he had encountered in 18 years' experience.   Cossel's knee and elbow were injured in the struggle, and he left his employment as a detention officer as a consequence.

d. Third episode of force:  at the car

The third episode began when officers started moving Moore to put him in a car for transportation to the hospital.   Moore declined to walk on his own, so officers had to lift and carry him.   As they passed a door, Moore grabbed the door handle.   Tellez tried unsuccessfully to pry Moore's fingers off.   Finally, Moore let go, causing the officers to topple over with him.   They all got up and took Moore to an elevator.   While they were riding in the elevator, Tellez heard Contreras and Lindini calling Moore obscene names.

After getting out of the elevator, Moore was seated in a chair to wait while Contreras and Johnson got their guns and batons in preparation for driving Moore to the hospital.   They were going to take him to Kern Medical Center.   While Moore was waiting, Tellez heard him say he wanted to go to Mercy Hospital, not Kern Medical Center.   Tellez told him it had to be Kern Medical Center.

When it was time to move from the chair to the parking garage, Moore, still in leg irons and side bar restraints, and with no shirt on, again refused to walk on his own and a group of officers had to support his weight as they moved him.   Carr counted 14 officers going with Moore into the garage.

When they got to the car, Moore struggled against being placed inside.   He repeatedly said he did not want to go to Kern Medical Center.   He used various tactics to avoid being placed in the car, including stiffening his body, lodging his feet in a wheel well, and holding on to the exterior of the car.   Seven or eight officers were involved in trying to get Moore into the car.

After at least four separate attempts to get Moore into the car, Tellez heard Holtz ask Johnson or Contreras for a baton.   Holtz said, “ah, fuck it, where is the baton, give me the baton,” or something similar.   Then, swinging the baton with both hands, Holtz hit Moore two to five times in the legs.   Moore said, “ ‘Holtz, why are you doing this to me, Holtz[?]  What are you doing, Holtz [?]’ ”  Haiungs saw an officer jabbing Moore in the gut or the kidneys with a baton.

Carr testified that one of the officers tripped Moore and he landed on his back with a smack on the concrete.   Moore rolled onto his side and Fowler ran over and kicked Moore with her boot, twice in the center of Moore's face and once in Moore's upper chest.   Moore curled up in a ball to protect himself.   Carr saw detention officer Angel Bravo get on top of Moore and punch him three or more times in the kidneys.   Deputy Sheriff Marcus Hudgins testified that he saw Contreras stand over Moore as Moore lay on the floor and strike Moore once in the face with a baton.   Haiungs saw Romero briefly standing with her boot on Moore's collarbone as Moore lay on the floor.

Haiungs testified that at one point, while Moore was sitting up on the floor, not struggling or doing anything else, but still refusing to get in the car, Holtz ordered Haiungs and Lindini to pepper spray Moore.   Both of them sprayed Moore's face.   Moore closed his eyes and shook his head, but did not comply.   Tellez testified that it actually was later, after an ambulance had been called and the effort to get Moore into the car was over, that Haiungs pepper sprayed Moore.   Moore was being cooperative at the time.   Tellez did not recall Lindini pepper spraying Moore.

Carr testified that he saw Contreras standing over Moore, balancing the tip of his baton on Moore's face.   Carr glared at Contreras and Contreras walked away.   Carr thought Contreras's action had no purpose but to “be demoralizing.”   At one point, to avoid the officers, Moore wriggled under the car.   Carr saw Lindini pull him out by the legs.

Johnson testified that, during the beating, he heard Moore cry for help and yell that the officers were killing him.   Hudgins heard Moore say, “ ‘Just kill me.’ ”   Carr testified that Moore moaned “help me, help me” as he lay on the floor.

Carr believed the beating was unjustified.  “If someone is handcuffed and laying on the ground in restraints, they can't defend themself, you can't kick them in the face,” he testified.   Hudgins testified that Moore was not a threat to the officers during the beating.

Carr described Moore's injuries after the beating:  “His eyes were swollen shut.   His face was covered in blood.   He's got—he's got blood coming out of his nose, blood on his mouth.   His face actually was crushed.   You took a doll and squeezed the face in, a rubber doll, his face looked like it was caved in.   It was swollen.   Through here was actually crushed in.   It was pretty nasty.”   Carr also said Moore had blood coming from his ear.

With Moore in this condition, a decision was made to call an ambulance.   As Moore lay on the floor, the officers stood around the garage waiting for the ambulance to come.   Some smoked cigarettes.

e. Fourth episode of force:  on the gurney

The fourth and final episode of force being applied to Moore took place after the ambulance arrived and emergency personnel were attempting to assist him.   A Bakersfield City Fire Department truck was the first to respond to the call.   It arrived at 10:26 p.m. Scott Dragoun, the engineer on the truck and an emergency medical technician, testified that he found Moore on his back, dressed only in underpants, with a pair of shorts around his ankles.   He was shackled in leg irons and side bars and two officers were standing on the chains.   Dragoun “observed bruising, swelling, and redness basically from his head to his toes.”   Moore's face was puffy and swollen.   On his torso and thighs were linear bruises consistent with baton strikes.

Dragoun noticed nothing remarkable about Moore's throat area and found no indications of any internal head injury.   Moore was alert and oriented to person, place, time, and event (i.e., the reason why he was receiving first aid), and his pupils responded normally to light.   His pulse, respiration, and body temperature were normal and he did not need any basic life-support measures.   Brian McGrath, a firefighter and also an emergency medical technician, testified that Moore was cooperative with the fire department personnel.   Moore told Dragoun, “ ‘I'm not doing anything and these people keep attacking me.’ ”

Hall Ambulance arrived two or three minutes after the fire truck.   Brooke Brown, an emergency medical technician, and Ryan Gobler, a paramedic, were the ambulance crew.   Both testified that Moore was calm when they first arrived.   Brown got the gurney from the ambulance, placed it beside Moore and lowered it.   According to Dragoun, several detention officers then placed their hands on Moore to lift him onto the gurney, and Moore began to resist being moved.   He raised his chest and drew his legs up toward his chest.   He was still restrained with leg irons and side bar restraints and was not punching or kicking the officers.

Captain Timothy Luken of the fire department, who came in the fire truck, testified that, once Moore was on the gurney, he tried to avoid being strapped to it.   Brown described Moore's behavior as “just thrashing about” and not trying to kick or hurt anyone.   Luken testified that several officers “jumped on” Moore while he was on the gurney.   Haiungs, Luken, and Brown saw Romero straddle Moore and punch him two to four times in the testicles with her fists.   Brown saw a second female officer also strike Moore in the groin.   Haiungs and Brown said to stop, pointing out that Moore would not stop moving while being hit in that manner.   Haiungs then secured Moore to the gurney, at the suggestion of one of the firefighters, by attaching one of the restraints to the gurney with a pair of handcuffs.

Johnson saw Contreras standing at the head of the gurney.   Contreras was holding Moore's head down with one hand and punching Moore in the face with the other.   Dragoun witnessed this also.   In his testimony, he specified that Contreras did not merely push Moore's head down, but struck it from 10 to 12 inches above, sometimes with his forearm and sometimes with his fist.   Contreras struck Moore more than three times and made contact in several places, including the top of Moore's head, his nose, and his neck.   The strike to Moore's nose caused the nose to bleed profusely.

At one point, Dragoun saw that Contreras's other hand was covering both Moore's mouth and his nose for about 20 seconds.   Dragoun made eye contact with Contreras and “stated that—sarcastically—if you cover his mouth and his nose, he'll stop resisting.”   Several times, Contreras punched Moore in the face with one hand while simultaneously covering his mouth and nose with the other.   Dragoun testified that Contreras appeared to be doing this because he “wasn't happy with the fact” that Moore “was still thrashing about, trying to raise his head.”   Morgan also saw Contreras holding Moore's head down on the gurney.

Luken and Brown saw Lindini also applying force to Moore's head and neck.   Luken testified that Lindini used “a forearm across the side of the face, cheek, and neck area.”   Lindini used “his forearm as a—just like a solid force to push down against the face and neck.   It forced Mr. Moore's face to the right.”   Brown testified:  “I see Mr. Lindini with his left arm across James' throat, trachea, this area.   And I see his right hand on James' cheek pushing him so he is looking over his right shoulder kind of into the gurney.”   Lindini “had weight on his forearm and enough pressure on his hand to keep James from, you know, moving his head when he was moving.”

While this was happening, Brown moved to the head of the gurney and saw that Moore was not breathing.   Contreras and Lindini were side by side near Moore's head.   Moore called Gobler over, saying Moore was not breathing.   She told Lindini to let go of Moore.   Lindini did not let go, and Brown asked him a second and a third time.   The third time, she took hold of Lindini's collar “to let him know that it is you I'm talking to, you need to let go of him.”   Lindini finally let go.   At about this time, the officers succeeded in buckling the gurney's straps onto Moore and then stepped back from the gurney.   Brown took Moore's pulse and found it was faint.   Moore took a gasp of air—what Dragoun described as an “agonal” breath, “generally the last respirations of a patient before they die”—and then his pulse stopped.

The emergency personnel performed CPR. Gobler intubated Moore so he could be attached to a respirator.   Moore was then loaded into the ambulance and taken to Mercy Hospital, after Brown argued with one of the officers, who said Moore had to go to Kern Medical Center.   Brown explained that when a patient is in cardiac arrest, he goes to the nearest hospital.   Contreras rode to the hospital in the passenger seat of the ambulance.

During the five-minute drive to the hospital, Moore's pulse was restored.   Brown, who was driving, heard Contreras reporting on the situation to someone by cell phone as they went.

f. Hospitalization and death

At the hospital, Moore was placed in a trauma bed and hospital personnel worked on stabilizing him.   Brown saw Contreras approach and take a picture of Moore with his cell phone.

Johnson followed the ambulance to the hospital and saw Moore inside.   He observed that Moore's injuries were worse than they were when Moore was first placed on the gurney.   Brown also observed that, by the time Moore arrived at the hospital, his injuries were worse than when she first arrived and found Moore on the floor.   His eyes were now swollen shut, his face was covered with blood and blood was coming from his nose and ears.

Haiungs was at Mercy Hospital that night accompanying another inmate.   She met Contreras there.   Contreras showed Haiungs a cell-phone picture of Moore.   Contreras said that every time Moore struggled or tried to raise himself up on the gurney, Contreras punched him.

The following morning, Contreras sent an e-mail message to Lindini and Tellez.   The subject line read “Uncoop” and the message said, “this dude got fucked up!”   Attached to the message were two photographs of Moore at the hospital.

Dr. Debra Hanks, who performed the autopsy, testified about Moore's death.   According to medical records she reviewed, Moore never regained the ability to breathe without a respirator.   He was removed from the respirator and died on August 21, 2005, six days after the beating at the jail, after it was determined that he was brain dead.

g. Expert medical testimony

Hanks testified that the cause of Moore's death was “head and neck injuries due to blunt force trauma.”   Her autopsy report listed these head and neck injuries (among injuries to numerous other parts of Moore's body).   The blunt force head injuries included skull fractures above the eyes, nose fractures, and blood at the base of the skull.   Hanks saw the blood at the base of the skull after she removed the brain.   The blood was “at the base of the brain in the region of the pons and medulla, which is considered the brain stem of the brain.”   Asked to explain the significance of this, Hanks testified, “In Mr. Moore's case, given that he had extensive—he had several areas of blunt force trauma of—evidence of blunt force trauma to the head, that would raise serious concern about damage to the mid brain, the pons and the brain stem.”   There also was blood in Moore's ear canal, which was consistent with a basilar skull fracture, i.e., a fracture of the bones at the bottom of the skull.   It “takes significant blunt force trauma to the head” to cause this kind of fracture.

The blunt force injuries to the neck included a fracture and a hematoma ² of the thyroid cartilage (a portion of the cartilage forming the larynx), a hemorrhage around the right hyoid bone,³ a hematoma of the left neck strap muscles, and a severe hematoma of the left side of the tongue.   Hanks also described a hemorrhage within the muscles at the back of Moore's neck.   That hemorrhage could have been caused by tearing of the arteries to the upper spinal cord, which in turn could have been caused by blunt force trauma either to the neck or to the head.

When she examined Moore's brain, Hanks found it had experienced a cutoff of blood supply and a lack of oxygen.   She also found the brain was swollen.   These conditions were caused by the blunt force trauma to the head and neck.

The prosecutor asked Hanks a hypothetical question based on Contreras's actions while Moore was on the gurney in the parking garage, i.e., holding his head to one side with one hand and punching his head and neck with the other.   Hanks testified that Moore's injuries were consistent with that type of force.   She testified:

“[T]he skull sits on the two top vertebr[ae], the atlas and axis, and they are very important for the rotation of the skull.   So you have that happening so that they are—the skull is pressed over.   And, again, you have this area that's vulnerable now since you have turned the head and exposed this particular area of the junction of the head and the spinal cord so that makes it vulnerable to any type of damage.   This is the base of the skull.   If that is being held down, as an example, in your situation you are saying that the person cannot move their head.  [¶] ․ [¶] What can move are these neck tissues.   So if they are getting hit upon with blunt force trauma, this hard structure and this mobile—somewhat, you know, mobile spinal cord is going to be moving against this base, this very firm skull.   And so you are going to have some forces that are going to cause this to move.   And that's going to create stress here at the base of the brain, base of the skull, at the top of the spinal cord.   That's going to cause vessels to be torn.   It is going to cause injury to the neural tissue that's very vital to this part of the head and the spinal cord.”

Hanks also testified that forcing the head to one side farther than it should go would be likely to cause neck injuries like those suffered by Moore.

The prosecutor also posed a hypothetical based on Lindini's actions while Moore was on the gurney in the parking garage.   He described the way in which Lindini forced Moore's head to the side and applied his forearm to Moore's neck and asked whether this would result in “injuries consistent with the injuries you observed during the autopsy.”   Hanks said yes.

Although it was clear to Hanks that the cause of Moore's death was blunt force trauma to the head and neck, she said that cause was “multifactorial,” and she was not able to attribute his death to any one of the traumatic injuries or assign percentages of causation to any of those injuries.   She did, however, state that damage to the brain stem can cause breathing to stop, and she pointed out that Moore never regained the ability to breathe on his own.

Dr. Frank Sheridan, Chief Medical Examiner of San Bernardino County, testified as an expert for the prosecution.   He had a more specific opinion about the cause of death:  blunt force trauma to the brain stem.   He opined that the impacts damaged the brain stem, which caused the respiration failure;  this in turn contributed to the cutoff of oxygen to the brain;  and these things in combination with other trauma to the brain caused Moore's death:

“[The] mechanism of death here is basically the brain gets this impact injury to the base of the brain and the breathing simply stops.   Person stops breathing.   And then, even though he was resuscitated, he can't breathe [anymore].   And from the initial resuscitation from the initial event, his brain is now suffering from hypoxia [i.e., lack of oxygen] plus the trauma and it swells.”

Sheridan could not say which particular applications of force caused the brain stem injury.   This injury could have been the cumulative effect of a number of blows, or there could have been one that was more responsible than the others.   He did, however, state that the major injuries were caused by events that happened after the fire and ambulance crews arrived.   This opinion was based on the paramedics' finding that, when they arrived, Moore's score on the Glasgow scale was 15, a normal score.   The Glasgow scale is used to assess the level of brain function or consciousness of trauma patients.

Sheridan conceded that the presence of blood in the ear canal before that time could possibly undermine his opinion, since blood in that place would be an expected consequence of injury in the area of the brain stem.   An earlier blow that did not cause the brain stem injury, however, could also explain the blood in the ear.   If the blow that caused the bleeding in the ear happened more than a few seconds before the Glasgow score was determined, then that blow would not be the one that injured the brain stem, since the brain stem injury would quickly cause unconsciousness.

Sheridan testified about a pathology report containing one conclusion with which he disagreed.   The report concluded that the hemorrhage at the base of the brain likely was a result of the swelling of the brain, not a direct result of head or neck trauma.   Sheridan believed the hemorrhage was a direct result of trauma and was not secondary to the swelling.

The prosecutor posed a hypothetical for Sheridan based on Contreras's actions while Moore was on the gurney in the parking garage:  holding Moore's head to one side with one hand and punching his head with the other.   Sheridan did not think this by itself would cause Moore's brain stem injury, but it could contribute to the cause of death.

h. Expert testimony on reasonable use of force

Lieutenant Steven Hansen of the Kern County Sheriff's Department, an instructor for the department in the use of defensive and control techniques, testified for the prosecution as an expert on the use of force by officers.   He stated that it is unreasonable to use force intentionally to injure or punish a person.   Officers should de-escalate the level of force when in a conflict, meaning that, as the subject becomes less of a threat, the use of force should diminish.   For instance, if a person tries to punch an officer and the officer knocks the person down with his baton, the threat of a punch has been removed and the officer should not hit the person again with the baton.   Officers should maintain a calm demeanor to help keep the situation from getting out of control and should avoid arguing, since arguing tends to raise the emotional pitch of a confrontation.

The prosecutor posed several hypotheticals for Hansen based on Contreras's actions.   First, he told Hansen to assume an inmate is struggling on the ground and a detention officer drops down onto the inmate with his knee.   This hypothetical was based on testimony that, during the altercation in the dress-out area, Contreras dropped with his knee onto Moore's head, neck, or upper body and was seen holding Moore down with a knee between his shoulder blades.   Hansen said this would be unreasonable because “the only thing you are going to truly accomplish here is to possibly cause an injury to that person.”

Next, the prosecutor asked whether he ever taught officers to hit subjects in the face with a baton.   Hansen said officers are specifically instructed not to use the baton on the head or face.   The prosecutor then asked whether it would be reasonable to rest the tip of a baton on an inmate's face while the inmate lay motionless on the ground.   Hansen said this would be unreasonable and unprofessional.   These questions were based on testimony about Contreras's actions with his baton after the struggle at the car, when Moore and the officers were no longer physically fighting but Moore was still refusing to get in the car.

Finally, the prosecutor posed a hypothetical based on Contreras's actions when Moore was on the gurney.   He described an officer punching the head and neck of a shackled, struggling inmate lying on a gurney.   Hansen testified that this would be unreasonable because the inmate is no threat under those circumstances, and the officer's action does nothing but punish him.

Closing argument

In his closing argument, the prosecutor stressed Contreras's conduct at the gurney, at the hospital, and the following day:

“With this gurney beating, we know that Contreras punches him in the face, in the head, in the neck.   It was described that when Contreras would punch James on the gurney, it would hit anywhere around his face, all the way to his shoulder area upward.   Everywhere.  When asked if it hit his throat, Scott Dragoun said no, it didn't hit his throat because James' head was pointing to the side so it probably hit his neck.   We know that Contreras had his hand over James' mouth.   Mind you, James is still restrained with side bars and leg irons on a gurney and Contreras is putting his hand over his mouth.

“Just when we think that that is enough, Contreras moves it and he puts his hand over his mouth and his nose. [¶] ․ [¶]

“We know that Contreras has a conversation with Shannon Haiungs later on in that shift wherein he shows Shannon a cell phone photograph.   And he says, every time he lifted his head, he would hit him.   We know that there is an e-mail.

“In looking at this e-mail, ladies and gentlemen, we have to pay attention to the subject and to the message.   This e-mail is from Ralph Contreras.   While it says to Dan Lindini, the other defendant in this case, the subject line said uncoop.   The message said, this dude got F'd up.   James Moore's behavior was uncooperative.   That is substantiated by virtually everybody who's testified in this case.   That is identified and described by Deputy Williams initially.   That is corroborated by Contreras' e-mail.   Remember, this e-mail went to Jaime Tellez and Shannon Haiungs as well, both of whom testified that they received it and they saw it.

“James Moore was not threatening.   It doesn't say James Moore was fighting, he was assaultive or combative.   James Moore was beat to death because he was uncooperative.   When we look at this e-mail, it could disgust you, really can.   Considering the manner in which it was typed, the manner in which it was displayed, look at the time, August 16, 2005 at 9:56 in the morning, this is what is on Contreras' mind.   This is what he does.   Is there any remorse in that message?   Is there any guessing or hindsight or apology?   It is sent to a co-defendant and it says this dude got F'd up exclamation mark.   That is this case.”

Describing Dragoun's testimony, the prosecutor stated:

“Scott Dragoun, the engineer, sees the following.   He sees Contreras strike Moore multiple times.   And if you recall his testimony, he was shocked, he was in bewilderment when he saw this.   He says the initial blow was to the side of the head and the final blow hit his nose and his mouth area which caused bleeding.   Scott Dragoun said that he observed Contreras with his hand over James' mouth at the gurney.   Remember this.   And then Scott says, hey, you know, if you cover his nose, too, he will stop resisting.   There is eye contact.   Contreras adjusts, he puts the hand over the nose, too.   This happens for at least 20 seconds, according to Dragoun, and then James stops breathing.   Surprise.  Surprise.”

The prosecutor argued that the mental state necessary for a conviction of murder was revealed not only by the beating itself, but also by Contreras's surrounding behavior:  the balancing of a baton on Moore's face;  the statements to Haiungs about punching Moore's head each time he raised it;  and the e-mail and pictures sent to the other officers.

In discussing causation during his closing argument, the prosecutor stressed the evidence that, just before Moore was placed on the gurney, he was responsive.   He communicated with the medical personnel, and his Glasgow scale score was normal, while, after Contreras's and Lindini's behavior a short time later, his brain was permanently unable to tell his body to breathe.

Verdict and sentence

The jury found Contreras guilty as charged.   The court imposed a sentence of 15 years to life for second degree murder and imposed and stayed a two-year sentence for assault under color of authority.

The jury found Lindini not guilty of second degree murder and guilty of involuntary manslaughter (§ 192, subd. (b)), a lesser offense included in murder.   It also found him guilty of assault under color of authority.   The court sentenced Lindini to the lower term of two years for involuntary manslaughter.   It imposed and stayed a sentence of 16 months for assault under color of authority.

DISCUSSION

I. Implied malice

To be guilty of second degree murder, a defendant must act with malice aforethought. (§ 187.)   Malice aforethought can be express or implied. (§ 188.)  “It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned or malignant heart.”  (Ibid.) Contreras contends that he “was convicted of second degree murder on a theory of implied malice” and claims there was insufficient evidence to support a finding of implied malice.

When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  (People v. Johnson (1980) 26 Cal.3d 557, 578.)

The jury was instructed on implied malice in accordance with CALCRIM No. 520:

The defendant acted with implied malice if:  One, he intentionally committed an act;  and two, the natural consequences of the act were dangerous to human life;  and three, at the time he acted, he knew his act was dangerous to human life;  and four, he deliberately acted with conscious disregard for human life.   Contreras does not challenge the correctness of these instructions.

We conclude that a reasonable jury could find each of the four elements of implied malice based on the evidence presented.   First, there is no doubt that Contreras committed intentional acts at the gurney when he held Moores head down with one hand and punched his head and neck with the other hand, and when he covered Moores mouth and nose with his hand.

Second, the jury could reasonably find that the natural consequences of the beating Contreras inflicted on Moore at the gurney were dangerous to human life.   The nature of the beating itself supported this finding, as did the likelihood that the beating added to injuries Moore had already received from beatings to the same part of his body earlier (including a baton blow to the face and a knee drop on the upper back or neck, both inflicted by Contreras himself), and the fact that Moore was receiving another beating to the same part of his body from Lindini at the same time.   The medical testimony also supported the finding.   Hanks and Sheridan testified that blows like those inflicted by Contreras could contribute to the fatal brain injury Moore sustained.

Third, the jury could reasonably infer that Contreras knew of the danger to Moores life.   Again, the nature of the acts themselves supported this inference, for it is likely that anyone inflicting an assault of this kind would have subjective knowledge of its danger to life.   The jury also could rely on the evidence of Contrerass exultation in the acts.   Contreras balanced his baton on Moores beaten face;  he e-mailed pictures of the hospitalized Moore to his colleagues with a gleeful message;  and he described his exploitspunching Moores head back down each time Moore tried to raise itto Haiungs while at the hospital.   The second two actions happened after Contreras witnessed the cessation and restoration of Moores pulse and the cessationwith no restorationof his ability to breathe without a respirator.   These were not the actions of a man who belatedly realized he had inadvertently done life-threatening harm.   The evidence supported an inference that Contreras knew he was performing acts that were dangerous to human life when he beat Moore.

Finally, the jury could reasonably find that Contreras consciously disregarded the danger to Moores life.   The evidence we have just discussed of Contrerass satisfaction with Moores suffering supported this finding.

Contreras says there was insufficient evidence to support the second elementan act of which the natural consequences were dangerous to lifebecause it was not shown the acts presented a high probability of death.   He cites People v. Knoller (2007) 41 Cal.4th 139, 155, and other cases for the proposition that implied malice requires a high probability of death, not merely of great bodily injury.

The acts Contreras committed against Moore, however, did present a high probability of death.   Moore died of trauma to the head and neck, which damaged his brain stem.   The fatal injuries were sustained in the assault at the gurney.   It was Contreras and Lindini who inflicted the blows to Moores head and neck when Moore was on the gurney.   The infliction of multiple severe blows to the head and neck of a defenseless person has a high probability of causing death, whether the assailant acts alone or in concert with another assailant inflicting similar blows.

Contreras also says there was insufficient evidence of the second element because it was a beating with hands that led to Moores death.   He relies on the proposition that, [n]ormally, hitting a person with the hands or feet does not constitute murder in any degree.  (People v. Teixeira (1955) 136 Cal.App.2d 136, 150.)   He acknowledges the corollary that murder can be found where there is such wanton and brutal use of the hands without provocation as to indicate that they would cause death (People v. Spring (1984) 153 Cal.App.3d 1199, 1205–1206, quoting People v. Teixeira, supra, at p. 150), but argues that this is not that type of case.   Attempting to distinguish People v. Dellinger (1989) 49 Cal.3d 1212, in which the beating death of a small child resulted in a murder conviction, Contreras claims he did not do anything that was obviously inappropriate in kind, even if he was excessive in degree.   He says the officers were justified in using force and Moore was not comparable to an infant.   The behavior of the defendant in Dellinger, by contrast, was simply beyond the pale.

We are not persuaded.   The jury could reasonably conclude that Contrerass conduct was obviously inappropriate in kind.   It could reasonably find that holding down a mans head and beating him with a fist about the head and neck, at the end of a series of beatings spanning several hours, when the man is already injured, is being beaten at the same time by another assailant, is in shackles and is chained to a gurney, while emergency personnel are attempting to aid the victim, is beyond the pale.   It could reasonably find this was not mere overzealousness in the line of duty, even if the victim is a jail inmate and the assailants are guards and the victim was thrashing around instead of cooperating.   Expert police testimony that Contrerass actions were not reasonable supported this finding.

Contreras suggests a number of ways in which the evidence could be construed as supporting a finding that his acts were not dangerous to human life.   The question, however, is not whether there was sufficient evidence to support a finding contrary to the jurys finding, but whether there was sufficient evidence to support its actual finding.   The possibility that it could have reached a different conclusion instead is beside the point, so long as it could reasonably make its actual finding beyond a reasonable doubt.

Contreras contends there also was insufficient evidence to support the third element, knowledge that his acts were dangerous to human life.   He says that, although the prosecutor stressed the idea that officer training would have made the unreasonableness of Contrerass behavior known to him, his mere acquaintance with general principles about reasonable use of force did not prove he had subjective knowledge that his specific actions in this case were dangerous to human life.   He also argues that the evidence that he covered Moores mouth and nose for 20 seconds and that one of the emergency personnel made a sarcastic remark about this did not prove he had knowledge that his actions were dangerous to human life.

It is unnecessary to consider whether officer training or the evidence about covering Moores mouth and nose proved Contrerass knowledge.   The beating itself, combined with the evidence that Contreras boasted about the situation, was sufficient to support an inference that he had the necessary knowledge.

II.Causation

Contreras next argues that the evidence was insufficient to establish that his actions satisfied the causation element of homicide.   He points out that the evidence showed many blows to Moores head and neck by other officers during the course of the night, including those delivered by Lindini close to the time when he, Contreras, assaulted Moore on the gurney.   In light of this, he contends, there is no way of deciding except by speculation whether, if [Contrerass] acts were taken away, the victim would not have died when he did.

The Supreme Court has held:

There may be more than one proximate cause of the death.   When the conduct of two or more persons contributes concurrently as the proximate cause of the death, the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result.   A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death.  (People v. Sanchez (2001) 26 Cal.4th 834, 847.)

At the same time, however, it has been held that a defendant is guilty only if, at the time of the homicide, the victim would have lived but for the defendants act:  [A]s long as the jury finds that without the criminal act the death would not have occurred when it did, it need not determine which of the concurrent causes was the principal or primary cause of death.   Rather, it is required that the cause was a substantial factor contributing to the result. (People v. Catlin (2001) 26 Cal.4th 81, 155, italics added.)   It is on the italicized clause that Contrerass argument is based.   He claims there was no way for the jury to determine that Moore would not have died anyway if Contreras had not assaulted him.   The People, by contrast, rely on the proposition that causation is proved if Contrerass conduct was a substantial factor contributing to the death, even if other assailants contributed concurrently.

The parties dispute arises from a tension in the law as stated in the authorities we have just quoted.   Is it enough for the prosecution to show that a defendants actions were a substantial contributing factor, or must it also be proved that those actions were a but for cause of the death, i.e., that the death would not have happened at that time without them?   The Supreme Court recently explained in People v. Jennings (2010) 50 Cal.4th 616 (Jennings ) how this tension is to be resolved:  The substantial-factor standard controls in cases of this kind.

Martin Jennings and his wife, Michelle Jennings, murdered their five-year-old son, Arthur.  (Jennings, supra, 50 Cal.4th at p. 627.)   The day Arthur died, Michelle gave the child sleeping pills and painkillers and Martin hit him on the head with a fireplace shovel.  (Id. at pp. 629–630, 631.)   A forensic pathologist testified that Arthur also was severely malnourished and had pneumonia, numerous injuries besides that inflicted by the shovel blow, and signs of suffocation.  (Id. at pp. 632–633.)   He testified that drug toxicity, physical abuse and neglect, malnutrition, and pneumonia were the causes of death.  (Id. at p. 633.)   Martin argued on appeal that, in light of the multiple causes attributed to him and Michelle, there was insufficient evidence that his acts were a but-for cause of death.   He said the drugs administered by Michelle were the primary cause.  (Id. at p. 642.)

The Supreme Court rejected Martins argument, holding that, in cases of concurrent causation, the substantial-factor test takes precedence over the but-for-cause test if the two standards conflict.   In fact, the potential for culpable defendants to escape liability in cases of concurrent causation is the reason the substantial-factor test was created:

[D]efendants focus upon but for causation, and whether the drugs were the primary cause of Arthurs death is misplaced.   But for or sine qua non causation provides that [t]he defendants conduct is a cause of the event if the event would not have occurred but for that conduct;  conversely, the defendants conduct is not a cause of the event, if the event would have occurred without it.  (Prosser Keeton, Torts (5th ed.1984) 41, p. 266, fn. omitted.)   By comparison, the substantial factor rule for concurrent causes was developed primarily for cases in which application of the but-for rule would allow each defendant to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result.  (Prosser Keeton, at p. 268.)   As we have stated in the civil context, the tests for but for and substantial factor causation usually produce the same result, but the substantial factor standard states a clearer rule that subsumes and reaches beyond the but for test to more accurately address situations in which there are independent concurrent causes of an event.  (Jennings, supra, 50 Cal.4th at pp. 643–644, fn. omitted.)

This analysis means that, in this case, there was sufficient evidence of causation if there was sufficient evidence to support a finding that Contrerass acts were a substantial factor contributing to Moores death.   There was ample evidence supporting that finding.   The fatal brain injuries were sustained after the emergency medical personnel arrived.   The beating Moore took in the period after they arrived was the beating administered on the gurney.   While Moore was on the gurney, Contreras and Lindini were the officers who struck Moores head and neck.   The medical testimony established that blows like those Contreras and Lindini delivered were consistent with Moores fatal injuries and could be substantial factors contributing to Moores death.   On the basis of this, the jury could reasonably find that Contrerass actions were a substantial factor.

No more was required.   Based on Jennings, it was unnecessary to prove that Contrerass acts were a but-for cause of Moores death.   When two or more assailants beat a victim to death, the law does not allow them to escape punishment merely because each can raise a doubt about whether the victim would have died anyway without his or her participation.

DISPOSITION

The judgment is affirmed.

Wiseman, Acting P.J.

WE CONCUR:

Levy, J.

Kane, J.

FOOTNOTES

FN1. Subsequent statutory references are to the Penal Code unless noted otherwise..  FN1. Subsequent statutory references are to the Penal Code unless noted otherwise.

FN2. A hematoma is “a local swelling or tumor filled with effused blood.”  (Webster's New World Dict. (2nd college ed.1982) p. 652, col. 2.).  FN2. A hematoma is “a local swelling or tumor filled with effused blood.”  (Webster's New World Dict. (2nd college ed.1982) p. 652, col. 2.)

FN3. The hyoid bones support the tongue and are located at its base.   (Webster's New World Dict. (2nd college ed.1982) p. 689, col. 2.).  FN3. The hyoid bones support the tongue and are located at its base.   (Webster's New World Dict. (2nd college ed.1982) p. 689, col. 2.)