California Court of Appeal Aug 10, 2015 No. D066122Unpublished
Filed 8/10/15 P. v. Badasso CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066122
Plaintiff and Respondent,
v. (Super. Ct. No. SCD243068)
ZEWOINESH BADASSO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant and appellant Zewoinesh Badasso murdered her infant son in an
episode of child abuse that ended with her strangling him to death. Following the
murder, defendant placed her son in an alley and claimed he fell to his death from an
open window. Medical examination revealed defendant's ruse and she was arrested,
charged, and convicted of first degree murder.
Defendant does not contest her guilt, but claims her conviction should be reduced
to second degree murder because the prosecution failed to present substantial evidence
that the murder was premeditated. We disagree, concluding there is substantial evidence
in the record from which a reasonable jury could find premeditation. Affirmed.
FACTUAL OVERVIEW
Defendant murdered her seven-month-old son on September 7, 2012. Defendant
was a single mother, unemployed, and staying temporarily with other Ethiopian
immigrants in an apartment in San Diego, California. At trial, defendant testified her son
was conceived from a sexual assault. Defendant had a history of depression, post-
traumatic stress disorder, lack of impulse control, and anger problems for which she had
been undergoing psychiatric treatment. Defendant's ex-husband testified that she had
been violent towards him in the past, including biting him and cutting him with a knife.
Shortly before the murder, defendant's depression and anxiety worsened as she was
overwhelmed by poverty.
On September 7, a man and a woman were walking past an apartment building
where defendant lived when they noticed an infant (the child) lying face down in an
alleyway. The man ran for help while the woman went to see if the child had a pulse.
The child showed no signs of life, and there was no blood on the ground. While checking
for a pulse, defendant appeared before the woman, speaking in broken English and
pointing up towards a window and towards the child. The woman believed defendant
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was indicating that the child was her baby and that the child fell out of the window. The
first police officer to arrive at the scene attempted to resuscitate the child by performing
CPR, but the child was unresponsive. The child was transported to a hospital where he
was pronounced dead.
Both civilian witnesses and police officers noticed lacerations and bruising around
the child's neck. A police sergeant at the scene of the incident concluded the child was
likely murdered and defendant staged the accident scene. San Diego police officers
detained and briefly interviewed defendant at the scene. She told them she accidently
dropped the child out of a third-story window while trying to open it. Both bystanders
and police officers noted that defendant was oddly calm and seemed undisturbed by the
child's death. Witnesses described defendant picking the child's limp body up by one arm
without supporting his head, holding him like a "sack of potatoes." Nobody except
defendant and the child were present in the apartment when the murder occurred.
The autopsy confirmed the child died from a combination of manual and ligature
strangulation. The pathologist's opinion was based on the number of bruises and
abrasions found around the child's neck, eyes and cheeks. Some of these abrasions
indicated the use of a ligature. Others appeared to have been made by fingernails. The
fingernail marks on the back of the child's neck suggested defendant repositioned her
hand while strangling the child, applying pressure, releasing, and then reapplying
pressure to the child's neck. The pathologist testified that it generally would take around
three minutes of constant pressure around the neck to kill, though much longer if pressure
was released and reapplied as appeared to be the case here.
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The autopsy also revealed a number of other injuries inflicted upon the child prior
to or at the time of death. Most of the child's fingernails had been cut or torn off past the
quick and into the nail bed, causing the fingers to bleed. Bruising around the ankle
indicated that the child had probably been either bound or grabbed forcefully. Various
abrasions on the body pointed to the child being dragged across a surface.
A pattern of bruising and burst blood vessels on the child's face showed he had
been forcefully struck or stomped on the face. The pattern on the bottom of defendant's
sandals matched the pattern of the bruising on the child's face, and DNA from the child
was recovered from the sole of one of the sandals. The pathologist stated all of the
child's bruising occurred while he was still alive.
The examination also revealed numerous rib fractures and a separation of the
spine. According to the pathologist, defendant likely inflicted these injuries by placing
one hand under each armpit and squeezing and shaking the child with significant force.
Because there was little bleeding, the pathologist estimated the injuries occurred
within an hour of the child's death or soon thereafter. The pathologist testified that the
injuries would have taken some time to inflict, perhaps 10 minutes, and that such injuries
likely did not result from a fall out of the third-story apartment window.
The defense did not rebut the evidence showing defendant killed the child, but
instead based its case on defendant's sanity, or lack thereof. The defense relied upon
expert witnesses, defendant's mannerisms at the crime scene, and testimony from
defendant that she experienced auditory hallucinations to argue that defendant was in a
psychotic state at the time of the murder and did not volitionally kill the child. The
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defense also argued that the drug trazodone—which defendant was taking to help her
sleep—might have triggered a psychotic episode.
In rebuttal, the prosecution called Katherine Dixon, a psychiatrist who treated
defendant in jail, and Sheila Wendler, a forensic psychiatrist. Dr. Dixon testified that
defendant first reported auditory hallucinations while in jail and might have been coached
by fellow inmates. She also prescribed trazodone for defendant while in jail and noted no
side effects. Dr. Wendler agreed that defendant fabricated the auditory hallucinations and
contended there was no evidence of psychosis. Dr. Wendler also opined that a person in
a psychotic state would be unlikely to answer questions lucidly or concoct a story as
consistent with the evidence as the story defendant told police.
PROCEDURAL OVERVIEW
The San Diego County District Attorney charged defendant with first degree
murder and assault on a child resulting in death. (Pen. Code,1 §§ 187, subd. (a) & 273ab,
subd. (a).) Criminal proceedings were suspended in October 2012 to evaluate defendant's
competency for trial under section 1368. After a jury found defendant competent to stand
trial, defendant pled not guilty by reason of insanity.
A jury convicted defendant on both counts in February 2014. A separate jury
found defendant sane at the time of the murder. In April 2014, the court sentenced
defendant to prison for 25 years to life.
1 All further statutory references are to the Penal Code unless otherwise noted. 5
DISCUSSION
A homicide that is "willful, deliberate, and premeditated" is murder in the first
degree. (§ 189.) " 'Deliberation means careful consideration and examination of the
reasons for and against a choice or measure.' [Citation.] The verb 'premeditate' means
'To think on, and revolve in the mind, beforehand; to contrive and design previously.'
[Citation.]" (People v. Bender (1945) 27 Cal.2d 164, 183.) " 'The true test is not the
duration of time, but rather the extent of the reflection. A cold, calculated judgment and
decision may be arrived at in a short period of time, but a mere unconsidered and rash
impulse, even though it include[d] an intent to kill, is not such deliberation and
premeditation as will fix an unlawful killing as murder of the first degree." (People v.
Perez (1992) 2 Cal.4th 1117, 1124.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our Supreme Court
identified three types of evidence that can show deliberation and premeditation: (1)
planning activity; (2) motive; and (3) "facts about the nature of the killing from which the
jury could infer that the manner of killing was so particular and exacting that the
defendant must have intentionally killed according to a 'preconceived design' to take his
victim's life in a particular way for a 'reason' which the jury can reasonably infer from
facts of type (1) or (2)." (Id. at pp. 26-27.) "Anderson does not require that these factors
be present in some special combination or that they be accorded a particular weight, nor
is the list exhaustive." (People v. Pride (1992) 3 Cal.4th 195, 247.)
We apply a substantial evidence standard of review on the issue of whether there
is sufficient evidence in the record to support a finding of premeditation. Specifically,
the question before us is whether a reasonable jury could find on this record that
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defendant killed the child as a "result of preexisting thought and the careful weighing of
considerations" when the facts are viewed in a light most favorable to the prosecution.
(People v. Boatman (2013) 221 Cal.App.4th 1253, 1270.)
Citing to the Anderson factors, defendant contends that the prosecutor failed to
produce substantial evidence of motive or planning and contends that the manner in
which the child was killed does not provide substantial evidence of premeditation. We
disagree with these contentions.2
Defendant claims that the prosecutor failed to make a case for any specific motive
and that the prosecutor instead suggested equivocally that the murder could have been
motivated by either an angry outburst or by psychosis. She further claims the prosecutor
left it up to the jury to speculate as to what the motive of the murder could have been.
In making this argument, defendant misrepresents what the prosecutor actually
said during closing argument. The record shows the prosecutor was not relying on
psychosis as a theory as equally valid as any other. Instead, our independent review of
the record shows the prosecutor was favorably contrasting her position that defendant
killed the child during a fit of rage with the defense's theory that defendant murdered the
child while in a psychotic state.
In addition, there is sufficient evidence in the record to support the prosecution's
theory. Defendant had a long history of being treated for lack of impulse control and
rage issues. Though no evidence of previous child abuse was presented, the record does
contain evidence of domestic violence committed by defendant. This evidence, and the
2 As noted, a jury found defendant was sane and not operating under a psychotic delusion at the time of the murder. Defendant does not contest this finding on appeal. 7
inferences that can be drawn from it, support a finding that defendant killed the child in a
fit of rage and thus support the prosecution's theory.
Defendant contends that the circumstances of the crime do not indicate any
planned murder. We disagree. The murder occurred not spontaneously in a public place,
but rather in her apartment at a time when none of defendant's roommates were present.
After the murder, defendant attempted to escape culpability by staging an accident scene.
Defendant argues this is not evidence of premeditation because the attempted plan could
never have worked because the child's injuries were plainly inconsistent with a fall.
Assuming arguendo defendant is correct that the plan was flawed, she cites no case law in
support of her contention that to show premeditation the planning activity must have
allowed the murderer to avoid detection and apprehension. In any event, we conclude the
staging of the accident scene along with the time and location of the murder supports an
inference that the murder was planned.
In addition, the manner in which defendant murdered the child supports an
inference that she had developed a premeditated intent to kill by the time he finally died.
Our high court has held that "[l]igature strangulation is in its nature a deliberate act."
(People v. Bonillas (1989) 48 Cal.3d 757, 792.) "This prolonged manner of taking a
person's life, which requires an offender to apply constant force to the neck of the victim,
affords ample time for the offender to consider the nature of his deadly act." (People v.
Hovarter (2008) 44 Cal.4th 983, 1020.)
In People v. Davis (1995) 10 Cal.4th 463, 510, testimony that strangulation would
have taken between one to five minutes to kill the victim was found sufficient to support
a finding of premeditated intent to kill. Moreover, our high court has found substantial
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evidence of premeditation where a defenseless victim is killed though strangulation
following an attack. (See People v. Bonillas, supra, 48 Cal.3d at pp.792-793 [sufficient
evidence of premeditation existed when defendant strangled the victim to death after
rendering her unconscious with a blow to the back of the head].)
In the present case, the evidence in the record supports the finding that defendant
stomped on her infant son's head with her foot and that she shook and compressed him
hard enough to break several ribs and sever his spine. The evidence also supports the
finding that defendant cut off the child's fingernails; that she dragged the child across the
floor or some other surface leaving abrasions on the skin; and that she killed the child
using both her hands and a ligature to strangle him. Moreover, the record includes the
testimony of the pathologist. He opined it typically takes about three minutes of constant
pressure on the neck to kill a victim. However in this case, the pathologist opined it
likely took longer than three minutes because the record supports a finding that defendant
released and then reapplied the pressure to the child's neck. The pathologist also opined
it would have taken a considerable amount of time, perhaps 10 minutes, to inflict all of
the injuries the child suffered.
On this record, we conclude there is substantial evidence about the nature of the
killing from which a reasonable jury could infer that the manner of killing was "so
particular and exacting that the defendant must have intentionally killed according to a
'preconceived design' to take his victim's life in a particular way for a 'reason' which the
jury can reasonably infer." (See People v. Anderson, supra, 70 Cal.2d at p. 27.)
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Finally, the evidence that defendant also used a ligature further supports a finding
of deliberation and premeditation, particularly in light of the evidence that defendant also
had used her hands to strangle the child.
Defendant disputes such a finding, relying heavily on People v. Rowland (1982)
134 Cal.App.3d 1. We conclude Rowland's holding that ligature strangulation does not
demonstrate a deliberate and premeditated intent unconvincing and unsupported by
subsequent decisions of our high court, which have consistently held that ligature
strangulation is evidence of premeditation and deliberation. (People v. Shamblin (2015)
236 Cal.App.4th 1, 12, citing People v. Davis, supra, 10 Cal.4th at p. 510; People v.
Hovarter, supra, 44 Cal.4th at pp. 1019–1020; People v. Stitely (2005) 35 Cal.4th 514,
544.) Even if Rowland is still good law, it is inapplicable here. In Rowland, no
testimony was presented regarding any attack prior to strangulation or how long it took
the victim to die from strangulation. In the present case, the evidence supports the
finding that defendant attacked the child multiple times over a possibly 10-minute period
that ended with her strangling him to death. Such evidence supports a finding of
premeditation and deliberation.
Defendant also contends that the forensic evidence only shows an unconsidered
and frenzied attempt by a stressed mother to silence a crying child. Such an inference
might have been drawn by a reasonable fact finder, but as a court of review our task at
hand is to review the record in light of the findings made by the trier of fact, as opposed
to making new findings based on other evidence in the record. (See People v. Albillar
(2010) 51 Cal.4th 47, 60 [noting under the substantial evidence standard of review, we
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will not disturb a jury's finding "simply because the circumstances might also reasonably
be reconciled with a contrary finding"].)
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
McDONALD, J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 11
AI Brief
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Holding. There was substantial evidence of premeditation and deliberation to support the defendant's first degree murder conviction, as the nature of the prolonged, multi-faceted attack and the subsequent staging of the crime scene allowed a reasonable jury to infer a preconceived design.
Issues
Whether there was substantial evidence of premeditation and deliberation to support a first degree murder conviction.
Whether the trial court erred in finding the defendant's actions constituted first degree murder rather than second degree murder.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“This prolonged manner of taking a person's life, which requires an offender to apply constant force to the neck of the victim, affords ample time for the offender to consider the nature of his deadly act.”
“The staging of the accident scene along with the time and location of the murder supports an inference that the murder was planned.”