People v. Luporini

An information filed by the District Attorney of Los Angeles County charged defendant with the commission of three felonies: Count I, assault with intent to commit murder in violation of section-217 of the Penal Code; Count II, assault by means of force likely to produce great bodily injury in violation of section 245 of Penal Code; and Count III, infliction of cruel and inhuman corporal punishment and injury, resulting in a traumatic condition, upon a child in violation of section 273d of the Penal Code. Defendant entered a plea of not guilty. Trial by jury was duly waived by defendant personally and all counsel. The trial court found defendant not guilty of Counts I and III, but guilty of Count II, assault by means of force likely to produce great bodily injury. Probation was denied, and defendant was • sentenced to state prison for the term prescribed by law. This is an appeal from the judgment and order denying motion for new trial.

Christina Maria Luporini, an infant born on April 17, 1961, was admitted to Los Angeles Children’s Hospital on May 29, 1961, with severe injuries which included: a subdural hematoma, a subarachnoid hemorrhage resulting in permanent brain damage, chip fracture of the femur, 20 fractures of the rib cage, and numerous marks of discoloration on the body. Although there was medical testimony of either spontaneous causation of the head injuries due to a weak vascular structure or traumatic injuries sustained at childbirth, there was substantial evidence offered by expert medical opinion to warrant a finding by the trier of fact that these injuries were caused by an external traumatic force. Doctors estimated that the head injury which caused internal bleeding occurred 24 to 72 hours before May 29, 1961. A radiologist stated that in his opinion the fractures of the ribs took place about two weeks before May 29, 1961. This estimate was based on the degree of healing before May 29, 1961, when X-rays were taken. The family pediatrician gave the child an examination'on May 18 and noted only a few scratches and minor bruises which he attributed to inexperienced handling of the new baby. He also saw the child two days after birth. He discovered no abnormalities at that time. She appeared normal.

Defendant and his wife, Mrs. Dorothy Luporini, told substantially the same story at the trial concerning the evening of May 28, 1961, when the child’s critical condition was first discovered. This was a Sunday, and the parents had been alone with the child in their apartment for the entire day.

The parents kept watch over the child until about midnight when defendant took the child’s temperature which according to his "reading of the thermometer was around 102 degrees. Defendant told his wife that he believed the high temperature was a normal reaction to the “crisis” which the child had been through, and they agreed to wait for further developments before calling a doctor. The wife stated her husband was up a couple of times during the night to look after the child; that she stayed in bed. Around 7 a. m. the parents uncovered the child and then noticed that her body was very tense with both of her hands clenched tightly. Defendant left for work instructing his wife to call a doctor. Defendant’s wife called the doctor at 8 a. m. The child had a fever of 101 degrees at that time. She got an appointment with the doctor for 10:30. Defendant returned home to take the baby and his wife to the family pediatrician. After a cursory examination by the doctor, in which he noted the child to be in an unconscious state with its eyes fixed and staring, he ordered the child taken directly to the hospital.

On May 31 and June 1, 1961, defendant was interrogated by two investigating police officers. The testimony of the police officers concerning the information elicited at the interrogation conforms substantially to the direct testimony of defendant and Mrs. Luporini in reference to the events of May 28 and 29, 1961. However, statements by the defendant gave added details. Defendant told the officers that when he first picked up the child on May 28 it appeared to be in shock; that he could not detect a heart beat and the child appeared to

During the interrogation defendant was asked if he could explain the reason for the child’s injuries. He replied that “he must have done it because his wife was very gentle with the baby. ’ ’ Defendant denied ever intentionally or knowingly injuring the child. He further related that his wife had scolded him on several occasions for being too rough with the baby when he picked her up; that he had on several occasions picked up the baby by the body, by the ribs around the chest area. Police informed him that the baby had approximately 20 fractures of the rib cage area; he stated to them that he felt that perhaps he was too strong and possibly when he picked up the baby he could have caused the injuries; when asked if he could explain any reason for the chip fractures to the legs of the baby he told them that he recalled that he had picked up the baby on two occasions by the feet, lower legs, holding the baby with the head down; he then stated that if the legs were fractured, he must have done it because his wife was very gentle with the baby. Defendant further stated he did not know why the baby had a head injury or brain damage and that if the child had such injuries or brain damage he must have caused them. He further stated to the police that he had never accidentally dropped the baby or intentionally struck her head; however, that he possibly had struck the baby’s head on the side of the crib when he had picked her up on one occasion, but if there had been head or brain damage he must have caused it unintentionally. He denied noting any discoloration on the baby’s face on the evening of May 28,1961.

At the trial defendant testified that after having had time to think the matter over he believed his wife might have injured

On one occasion about two weeks before the child was taken to the hospital Mrs. Luporini stated she slipped and the baby hit the side of her head on the crib.

The mother became pregnant by defendant at a time when they were unmarried. The marriage took place two and a half months prior to the baby’s birth. Mrs. Luporini’s mother lived near the family and was a daily visitor at the house. These three adults were the only persons known to have ready access to the child.

Defendant’s contention on appeal is that the evidence is not sufficient to sustain his conviction for violation of section 245 of the Penal Code, assault by means of force likely to produce great bodily injury. In order to sustain a criminal conviction, there must be some substantial evidence which would warrant findings of fact, first, that the crime has been committed; and second, that it was committed by the person charged. (People v. Williams, 151 Cal.App.2d 173 , 176 [ 311 P.2d 117 ].) Defendant concedes there was substantial evidence to warrant a finding as to the first element, that the crime was committed by someone. Defendant contends, however, that substantial evidence was lacking which would warrant a finding as to the second element, that defendant was the person who committed the crime. The medical testimony establishes that the injuries to the child were not inflicted upon one occasion alone but must have taken place on at least two separate occasions.

The trial court, sitting as the trier of fact, was free to disbelieve and reject the stories related by defendant and his wife concerning the events surrounding the discovery of the child’s injuries and their respective rationalizations as to how the injuries occurred. We hold that there was substantial evidence presented at the trial, direct and circumstantial, which supports a finding of defendant’s guilt.

Upon first discovery of the child’s critical condition oñ the evening of May 28, defendant stated to his wife, “Do not excite me, too, because if we both lose our minds, we are going to hurt the baby more.” The trial court could have construed this statement as an admission that they had hurt the child initially.

A further factor which the trial court no doubt considered in reaching its conclusion was the manner in which the defendant testified. A reading of the record indicates that he appeared to be very evasive and extremely forgetful with respect to some of the statements which he allegedly made to the investigating officer. This was in contrast to his very positive recollections as to other statements.

We must assume, in support of the judgment, the existence of every fact which the trial court could have reasonably deduced from the evidence and then determine whether the facts justify the inference of guilt. (People v. Deysher, 2 Cal.2d 141 , 149 [ 40 P.2d 259 ].) Applying this rule to the record in the instant ease leads to the conclusion that there was substantial evidence presented at the trial, direct and circumstantial, which will support the finding of defendant’s guilt.

Certain purported newly discovered evidence was presented upon the motion for new trial which was not in affidavit form. It consisted mostly of written statements by the wife made subsequent to the conviction of her husband whereby the former stresses her own responsibility and seeks to shift it from

The judgment of conviction is affirmed.

Burke, P. J., and Balthis, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied October 2, 1962. Peters, J., was of the opinion that the petition should be granted.