Opinion
B227138
09-22-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CARLTON BARBERA, Defendant and Appellant.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA058278)
APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. Affirmed.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent
Richard Barbera was convicted of second degree murder and elder abuse in the death of his 74-year-old mother. Barbera contends that based on his history of mental illness, drug abuse, caretaking for his mother and the chronology of events, there is insufficient evidence that he acted with implied malice to support his conviction for second degree murder. We affirm.
PROCEDURAL BACKGROUND
In a two-count information, Barbera was charged with murder (Pen. Code, § 187, subd. (a) , count 1), and elder abuse resulting in the death of his mother (§ 368, subds. (b)(1), (b)(3), count 2.) He pleaded not guilty.
Unless otherwise stated, statutory references are to the Penal Code.
A jury found Barbera guilty of second degree murder and elder abuse. Barbera was sentenced to 15 years to life on count 1, and his sentence of 11 years on count 2 was stayed under section 654.
FACTUAL BACKGROUND
Prosecution case Crime scene
On Friday, February 29, 2008, at about 8:25 a.m., Police Officer Mitchell Riggs responded to a call regarding a suicidal man who had slashed his throat after severely beating his mother. When Riggs arrived, the apartment door was ajar and Barbera was standing in the living room holding his neck, which was bleeding profusely. Barbera was handcuffed and taken to the hospital.
Riggs checked the rest of the two-bedroom apartment Barbera shared with his mother. He found Barbera's mother, Mary Ellen Barbera (hereinafter Mrs. Barbera or Barbera's mother), lying unconscious on a bed in a rear bedroom. There was blood on her pillow, bed and the walls, some of which looked fresh. Riggs was assigned to keep an eye on Barbera at the hospital. Barbera asked Riggs how his mother was doing. When Riggs replied that he did not know, Barbera said "I beat my mom pretty bad, and I thought she was going to die." He said he then slit his own throat and called 911.
Detective Joel Price responded to the Barbera residence and conducted a walkthrough. He saw drops of blood on the floor as he entered and a large amount of fresh blood in the living room. There was a double-sided razorblade on the arm of a chair. In Barbera's room, Price found a bindle of marijuana, 12 vials of medical marijuana and smoking paraphernalia, three empty methadone bottles, and four bottles of other prescription drugs. Price saw a lot of blood on the countertop and sink of the bathroom. There was blood on the floor of Mrs. Barbera's bedroom, on almost every wall, the pillows, doorframe and door. The bathtub was full of water and bloodstained sheets. Clothes in a bathroom sink looked as though someone had tried to rinse blood from them.
Paramedic Ryan Medina was one of the emergency responders at the Barbera residence on February 29, 2008. Inside the apartment, Medina saw copious amounts of blood everywhere, some of which looked old and some looked fresh. Mrs. Barbera was lying in an awkward position on a bed. There were no sheets on the bed, and there was a lot of blood on the wall and pillows. Mrs. Barbera was lying in urine or fecal matter on the mattress. She was bruised from head to toe and appeared to have been severely beaten. Some of her bruises appeared to be more than a day old, but others looked new, and Medina saw signs that Mrs. Barbera had been abused. Mrs. Barbera was able to talk, but was confused and incoherent. Although Mrs. Barbera's injuries appeared significant, in his report of the incident Medina assessed Mrs. Barbera's trauma as "moderate" rather than "severe."
Police investigation
Detective Price tried to interview Mrs. Barbera at the hospital but she was not responsive. Price did interview Richard Barbera at the hospital. A recording of that interview was played for the jury, which was also provided a transcript of the colloquy. In that interview, Barbera admitted he had problems with severe rage. Barbera said his elderly mother used a cane to walk, and he had used that cane to hit his mother on her back. He was tired of taking care of his mother.
Barbera told Price the assault on his mother began on Tuesday, February 26, 2008, around 10:00 a.m. He told Price, "I hit her you know, and it's like I crossed the line that I couldn't go back." Barbera said he struck his mother repeatedly in the face with his fists, which caused her to the fall to the ground, and he hit her with her cane. He left her on the floor and she pulled herself onto her bed. Barbera hit his mother about 20 times both before and after she was on the bed; she never fought back. Barbera continued to assault his mother intermittently for 24-48 hours. Some blood in the apartment came from a beating Barbera gave his mother weeks earlier.
Barbera told Price his mother had walked around the apartment at times since Tuesday. He had asked her if he should call an ambulance or she should go to the hospital, but she said no. By Friday morning, his mother was nonresponsive and there was no doubt she needed to go to the hospital. Barbera said he felt like a "monster." Barbera said he called his doctor and said he thought his mother was dying. He then called 911 and told the operator he might have killed his mother. Barbera said this was not the first time he hit his mother. He had hit her in the past with his fist and also hit her in the face with a television remote in 2007.
Price observed that Barbera's hands were swollen and he had at least one abrasion. These signs were consistent with Barbera having struck someone. Mrs. Barbera had suffered injuries that could have been the result of having been kicked. Barbera had bruises on his legs that may have been due to kicking someone.
Mrs. Barbera's medical condition and hospital stay
Dr. Alicia Haglund was the emergency room physician at Northridge Hospital when Mrs. Barbera was brought in. Haglund said Mrs. Barbera smelled of urine, was dirty and bloody, had multiple bruises covering her body and looked "like a corpse." She was extremely dehydrated and emaciated and it appeared to Haglund that Mrs. Barbera had been abused. Mrs. Barbera's blood pressure was okay and she was breathing on her own. However, she had a fever, a fast heart rate and appeared very confused. She was unable to follow simple commands like, "'squeeze my hand.'" She had multiple facial fractures that required surgery and was transferred to the intensive care unit (ICU) for further care.
Dr. Jean Grant Hawkins, is a pulmonologist at Northridge Hospital and had also been Mrs. Barbera's primary care physician since 1991. Mrs. Barbera had multiple significant medical problems, including: two mitral valve replacements, one in 1984 and another in the mid-1990's, chronic atrial fibrillation, a stroke in 2005, diabetes and hardening of the arteries. She also took a prescription blood thinner. Mrs. Barbera's last appointment with Hawkins was in October 2007. Hawkins oversaw Mrs. Barbera's medical care during her hospitalization in February 2008.
Hawkins had met Barbera several times. He came to her office once to discuss his concerns regarding his mother's failing memory and increasing health problems. Hawkins said Mrs. Barbera was a very private person and seldom discussed her personal life. She once told Hawkins she cared for a son who suffered from mental illness, was bipolar and unable to work or live on his own. Mrs. Barbera spoke about her two daughters, but never mentioned her ex-husband, a psychiatrist or psychologist. Hawkins once saw Mrs. Barbera with a black eye, which she claimed to have sustained in a fall.
On February 29, 2008, Hawkins saw Mrs. Barbera in the ICU. She looked frail and weak. She was lethargic, and had numerous bruises on her ears, eyes, nose, jaw, sides, ribs, legs and a large scab on her right shin. Due to severe swelling, Mrs. Barbera had difficulty opening her eyes. The bruises on Mrs. Barbera's legs ran from her hip down to her toes. She appeared unkempt and dirty, smelled like urine and appeared to have lost a lot of weight since Hawkins had seen her last. Mrs. Barbera spoke only if asked questions and seemed to be suffering from an altered level of consciousness, although she did respond appropriately to medical questions. Hawkins noted that at one point during her hospital stay, Mrs. Barbera became more lucid and began to complain about the pain. When she did, she told Hawkins she "'fell at home,'" although she also kept mumbling, "'Rick, I'll be all right. Don't do it anymore.'"
Hawkins reviewed medical scans that showed Mrs. Barbera had suffered facial and rib fractures. She required surgery to repair multiple facial fractures and hematomas (severe bruising) on her ears, surgery which included implanting plates and screws in her face. The excessive swelling on Mrs. Barbera's ears was consistent with having been caused by trauma from an external force. Hawkins also believed Mrs. Barbera might have suffered a spleen laceration that could have been caused by blunt force trauma or abuse. Based on a review of a CT scan of Mrs. Barbera's ribs, Hawkins determined that some ribs had been fractured within recent days. The fractured ribs did not require surgery.
As of February 29, 2008, Mrs. Barbera was taking nine different medications for various illnesses, some of which were stopped in preparation for her facial surgery. At the hospital, Mrs. Barbera was medicated with antibiotics (for the bacteria in her blood stream), insulin (for her diabetes), ulcer medication, a blood thinner (to keep her heart valve safe), and morphine and Xanax (for pain and to calm her agitation). Hawkins was not concerned about drug interactions because the medications were monitored. Mrs. Barbera did not have any complications after the surgery for her facial fractures and the injuries to her ears. A CAT scan revealed a possible injury to the spleen, but the spleen, which was not bleeding, was not treated. Before March 8, 2008, Hawkins reduced Mrs. Barbera's morphine dosage out of concern she might stop breathing. On March 8, 2008, the hematologist noted Mrs. Barbera's anemia had improved and her platelets were back to the low end of normal. Mrs. Barbera remained in ICU and continued to be weak and lethargic throughout her hospitalization.
On March 9, 2008, Mrs. Barbera took an extreme turn for the worse. She became more lethargic, stopped breathing and her heart stopped beating. She was intubated and her heartbeat and bodily functions were restored, but she never woke up. A brainwave test showed she had suffered brain injury due to the lack of oxygen. Eventually, her daughters made the decision to remove Mrs. Barbera from life support. She died on March 14, 2008.
Dr. Diana Schneider-Homeier
Diana Schneider-Homeier is a geriatrician. She testified as an expert witness in the area of elder abuse. She reviewed reports, records and photographs of Mrs. Barbera's injuries, and prepared a report regarding her death.
A paramedic first found Mrs. Barbera supine on the bed, covered with bruises that were at least a day old. The emergency room nurse also noted that Mrs. Barbera was covered with bruises, appeared emaciated, unkempt or dirty, smelled of urine, and that she was confused or had an altered level of consciousness, and repeatedly said, "I'm sorry."
Also, photographs of Mrs. Barbera showed extensive swelling around both ears, thickened by pooled blood or bruising. Swollen ears are a significant sign of abuse, and swelling on both ears indicates repeated beatings. Mrs. Barbera also had significant bruising around both eyes, which were swollen shut. The bruising extended down one side of her face past her mouth and jaw and around her neck. There were lacerations on her forehead and on the side of her mouth. Mrs. Barbera had multiple facial bone fractures—two fractures to her right mandible (jaw bone), a fracture of her zygomatic arch (cheekbone), fractures to both sinuses, and an orbital blowup fracture of the right eye, consisting of three separate fractures. Her chest X-ray showed two left displaced fractures, and the coroners' report reflected multiple fractured ribs in various stages of healing, ranging from older fractures with new bone formation, to fractures with new healing and new fractures that had not yet begun to heal. A fractured rib can be re-fractured. Humans have 12 ribs on each side. There was evidence of some sort of fracture on eight of Mrs. Barbera's ribs. In Schneider-Homeier's opinion, the facial and rib fractures signaled abuse.
A hematoma on one hip also showed abuse may have occurred and may have been caused by kicking. A photograph depicted a very large bruise on one hip and along the thigh. Its bluish-purple discoloration indicated it was probably more than a day old. Abrasions, cuts and swelling on Mrs. Barbera's toes were consistent with some blunt force trauma to the foot, possibly caused by stomping. Mrs. Barbera had been taking Coumadin, a blood thinner, so she would have been more susceptible to bruising.
Schneider-Homeier opined that Mrs. Barbera was a victim of abuse. Mrs. Barbera was an elderly woman with many medical problems. Her age and medical problems placed her at great risk of injury and less able to recover from trauma or infection. Any of Mrs. Barbera's diseases could quickly have elevated into a life-threatening situation. She sustained multiple injuries consistent with physical abuse. Those injuries greatly strained Mrs. Barbera's body to the point where she suffered infection, which resulted in respiratory failure which caused brain injury and, eventually, her death. Mrs. Barbera's advanced age and seriously deteriorated medical condition were factors which contributed significantly to Schneider-Homeier's conclusion that complications from the assault by Barbera resulted in his mother's death. In sum, she died as a result of severe abuse. Schneider-Homeier conceded it was possible that a person who was younger or who did not have the same medical problems or susceptibility to infections might have survived the injuries Mrs. Barbera sustained.
Autopsy evidence
Dr. Pedro Ortiz, a deputy medical examiner, performed an autopsy on Mrs. Barbera. With respect to her external injuries, he saw evidence of blunt force trauma to her head, the left upper, and both lower extremities. She had several contusions on both sides of her face, one on the chin and on the neck, and contusions on a thighs, shin and foot. Ortiz did not find evidence of any internal injuries, but did find hemorrhaging under her scalp caused by direct trauma. Ortiz found no new or fresh rib fractures, but did find evidence of fractures three to five weeks old. He saw that Mrs. Barbera had a pacemaker.
Based on his autopsy, Ortiz found the cause of death to be a combination of circumstances. On the one hand, there was extensive evidence that Mrs. Barbera had diseases which had been present for many years, including heart disease and diabetes, and had had corrective surgery for some problems produced by disease. On the other hand, the stressing factor of the trauma inflicted upon her which required surgical intervention had a temporal and causal relationship to Mrs. Barbera's death. Even though Mrs. Barbera was a very sick, frail woman, the trauma played a pivotal role in her demise. Ortiz concluded the manner of death was homicide, because homicide is not just the killing of one human being by another, but also the effect of things done by someone in order to produce the death of another. Ortiz opined that Mrs. Barbera became more susceptible to death as a result of trauma inflicted upon her by her son. While it is true that as a result of her medical condition and age, even without the trauma inflicted upon her, Mrs. Barbera was in such a medical state that she could have passed away at any time, in Ortiz's opinion, the injuries to her face started a chain reaction that ultimately resulted in her death. In other words, while the trauma was not, per se, fatal, it set events in motion that eventually resulted in fatal consequences.
Defense case
Dr. Dennis Cabe
Dr. Dennis Cabe, a PhD. in psychology and clinical social work, treated Barbera from 1992 until May 2007. Cabe initially treated Barbera for an anxiety disorder, phobic behaviors, and panic attacks, and his diagnosis later evolved into posttraumatic stress disorder (PTSD). Apart from one telephonic conversation with Barbera's mother in 2006, none of the information Barbera shared with Cabe was independently confirmed by Cabe.
In that conversation Mrs. Barbera told Cabe she had a sense her son was telling the truth about the abuse he had suffered as a child, but she did not like dealing with it.
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Barbera told Cabe his father verbally and sexually abused him from the time he was very young until he was 13 years old. Cabe found Barbera had been traumatized by this molestation during his developmental years, and this was a pivotal component in Barbera's inadequate psychological development. It is common for the effects of molestation as a child to manifest as mental problems later in life. Barbera never overcame the effects of the molestation. Cabe also found that Barbera was the scapegoat and victim in his family, in terms of inappropriate behavior on the part of his mother, father and sisters.
Mrs. Barbera met her husband when he was hospitalized for a bipolar disorder. She was his nurse and took care of him, and they later married. Barbera told Cabe that his father had also physically abused his mother and his sisters. Once, his father attacked his sister Julie, injuring her face and breaking her jaw.
Barbera's relationship with his mother was complex and complicated. On one hand, he cared about her and took care of her as she aged. On the other hand, he was frustrated by her lack of acknowledgment of his father's abuse. Barbera's mother was distant and not very nurturing. Barbera said his mother was an alcoholic who would not admit her son had been abused. He said his mother dressed inappropriately in sheer lingerie. She would try to seduce him and he had to ward her off. Cabe never confronted Mrs. Barbera regarding Barbera's claims that she behaved in a sexually inappropriate manner with her son because she was highly defensive and not forthcoming. Barbera also told Cabe his sisters had acted inappropriately and that one of them had tried to seduce him. Collectively, Barbera's familial relationships stunted his emotional and psychological growth.
Barbera felt tremendous emotional and financial stress as his mother's sole care taker. His psychiatrist prescribed various psychotropic medications for anxiety, depression and other symptoms. Barbera was also on methadone, a replacement drug to wean him off heroin. Cabe opined that Barbera's depression arose from his childhood experiences of having been the scapegoat in a family in which all the family members' pathologies focused on him. The depression caused a sense of helplessness, hopelessness and worthlessness, which impacted Barbera's psychological development. PTSD is caused by a traumatic event that reverberates through a person's life with flashbacks causing one to re-experience the syndrome as a current event. The flashbacks cause the person to obsess about the traumatic experience which impacts his or her ability to function in a normal way. With an anxiety disorder, a person feels an overwhelming sense of anxiety, heart palpitations, sweating and fear. Since his psychological social development was impacted by his conditioning factors, Barbera reacted to situations differently than most people would. During his later years of counseling, Barbera showed impulse control and anger management problems. When he felt helpless, he acted out by punching walls or doors, but he usually internalized his stress. He felt guilty about what he did and took it out on himself by cutting himself. Barbera said his rage sometimes caused him to suffer blackouts and confusion. Rage is an expression of feeling that one is helpless to change one's life; it differs from anger. Rage is a rapid surge of emotion that erupts volcanically, then dissipates. Barbera felt helpless, hopeless, and worthless about his life and trapped by having to take care of his mother because he felt responsible to do so. A severe episode of rage can impede rational thinking to the extent that it is possible for one to not be consciously aware of the consequences of his or her acts. Barbera often spoke about suicide.
During his years working with Barbera, Cabe saw an improvement during the period when Barbera's band had a chance to get a recording contract. He was on the verge of being a very successful musician and that would have turned his life around. Unfortunately, the band fell apart. Barbera was married for a time and, as far as Cabe knew, never physically abused his wife.
Barbera loved his mother, but was angry that no one helped him care for her. His sisters visited periodically but he was the only one caring for her as her physical and medical condition deteriorated and her drinking got worse. After her heart bypass surgery, Barbera's mother's cognitive functions also weakened. During his last session with Cabe in May 2007, Barbera told him he choked and hit his mother. Cabe spoke to Mrs. Barbera. She said she was okay and told him not to report the incident because her son just felt hurt about the past. Barbera felt guilty about what he did to his mother.
Cabe was surprised to learn a few months later, that Barbera had severely beaten his mother. Cabe had not thought Barbera would engage in such behavior. In his 40-year career, Cabe has treated patients with severe mental illnesses. Comparatively speaking, Barbera is more functional than those patients. Cabe characterized Barbera as very intelligent and creative. Barbera was able to function, and drove his mother to and from her hospital visits.
Dr. Scott Miller
Dr. Scott Miller, a psychiatrist, treated Barbera from May 2006 until February 29, 2008, for major depression, panic disorder, and an ongoing opiate dependence. Rage is not ordinarily a manifestation of a panic attack. In Miller's experience, a person in the throes of a panic attack usually becomes disabled and unable to function; he does not suddenly go into a violent assaultive rage. Miller ruled out that Barbera might be bipolar; he believed he had PTSD, with panic attacks and depression about his life. Miller thought Barbera suffered from PTSD because of his history of sexual abuse. The molestation was very damaging to Barbera's personal growth, emotional maturity and ability to deal with others. Barbera tended to blame himself for the course his life had taken. He frequently expressed the sentiment that he bore some responsibility for what had happened to him during his childhood. That sense of responsibility contributed to Barbera's depression and panic disorders.
Barbera told Miller his father was physically abusive towards his mother who was an alcoholic. Barbera spoke about several occasions when his mother had passed out unconscious in the house, and he had to watch her, clean her up and make sure she did not choke on her vomit. Barbera told Miller about at least one incident during which his mother tried to seduce him, and also said one of his sisters had acted seductively towards both him and his father. Barbera said sometimes he felt highly anxious to the extent that he felt separated from himself; the pain from self-cutting returned him to the here and now. Such feelings are typical for patients with mental disorders such as panic attacks and PTSDs. Barbera also had a history of suicidal ideations and a slight problem with impulse control, although he only seemed to act violently towards himself.
Barbera's relationship with his mother was conflicted. He cared for her on a day-to-day basis and drove her to her appointments. But he had remained frustrated since childhood that his mother had failed to defend him from his father.
Barbera told Miller he had wanted to die since the fourth grade. Such suicidal ideations can result from prolonged depression. His history of sexual abuse from family members caused Barbera to have a very damaged sense of self-esteem and independence which stunted his psychological and emotional growth. While Barbera was under his care, Miller did not notice a marked increase in Barbera's rage or impulse control issues. Barbera never showed any violent behavior towards Miller. He never indicated he was violent toward his sisters or parents. Miller's last appointment with Barbera was on February 27, 2008. During that visit, Barbera did not say anything about having hurt his mother. Miller never knew Barbera had abused his mother in the past.
On February 29, 2008, Miller received a frantic phone call from Barbera. He said "he thought he had killed his mother and that he could not go to jail and that he would kill himself." Miller told Barbera to see if his mother was still breathing. Barbera said she was. Miller told him to call 911.
Miller never spoke with Mrs. Barbera, Barbera's sisters or Dr. Cabe, nor did he ever administer psychiatric tests to Barbera.
Dr. Joseph Simpson
Dr. Joseph Simpson, a forensic psychiatrist, was appointed by the court to conduct an evaluation of Barbera. Simpson interviewed Barbera, and reviewed his medical records for inpatient treatments in 1999 and 2001, his hospitalization in February 2008, his treatment at the county jail and Los Angeles County Medical Center, and treatment records from Cabe and Miller. Barbera, who was 46 years old at the time of his mother's death, had been in treatment since he was 16 and had taken psychotropic medications since he was 18.
Barbera told Simpson his father repeatedly sexually molested him from the earliest age he could remember. Barbera never told his mother about the abuse while it was happening because he did not believe he was being molested. At the time he thought molestation required penetration. Only later did he realize his father's behavior was sexual abuse. Notwithstanding the misunderstanding, the abuse negatively impacted Barbera. Simpson said such molestation leads to depression, PTSD, symptoms of stress and substance abuse. He saw those symptoms in Barbera.
Barbera's relationship with his mother was also complicated. Barbera had a sexual encounter with his mother when he was 22 years old. Simpson did not have specific information about Barbera's relationships with his sisters. In Simpson's opinion, Barbera was severely impaired by his upbringing and had become obsessed with the abuse he suffered. He had been involved in drug use since his teens and throughout his adult life. Barbera's emotional development was highly stunted, a condition quite common for severe substance abusers with an adolescent approach to their entire life. Barbera was on psychotropic medications, and taking methadone and medical marijuana. Marijuana can impair memory and lead to depression. In higher doses, Methadone can severely worsen depression as well as lead to very impaired judgment and anger problems. Simpson opined that depending on the dosage, if someone with depression, who is possibly bipolar and PTSD, takes Klonopin (one of Barbera's prescribed medications) or other antidepressants together with methadone and marijuana, it could significantly impair his thought processes and cognitive abilities, possibly resulting in an inaccurate perception of reality. An impairment of the cognitive process includes the failure to consider the consequences of a particular act.
From jail records, Simpson observed that Barbera developed bleeding stomach ulcers and pneumonia along with his mental health issues. He became delirious, out of touch with reality, confused and disoriented. Later, he was in a more traditional psychotic state and had delusions about the identity of his public defender. After Barbera's arrest, he had episodes of delirium most likely due to withdrawals from his existing use of Klonopin, and possibly methadone. That delirium ended when he was medicated again with Klonopin and his system was equilibrated. After Barbera's physical disorders were treated, his psychosis was treated and he was stabilized.
Simpson testified that rage is a symptom of serious mental disorders such as a mood disorder, bipolar disorder, PTSD and substance abuse. Barbera had rage issues with his mother. The rage arose mostly from his mother's failure to protect him from molestation by his father, and later from having to care for her. When Simpson spoke to Barbera about beating his mother, Barbera said he felt smothered living with her, but could not get his act together to move out. He also blamed his mother for not protecting him from the past molestation. He did not recall having previously hit his mother, except for a hazy memory of once hitting her with a television remote. He never reported hitting her with a cane.
After viewing photographs of Mrs. Barbera, Simpson agreed her injuries were the result of violent behavior. Barbera had poor behavioral controls over his anger. Barbera told Simpson he did not recall the entire two-day period when his mother was beaten. Barbera did not remember, so Simpson did not ask him why he did it.
Simpson diagnosed Barbera as having a severe mood disorder, most likely a major depressive disorder, while a bipolar disorder was also possible. A secondary diagnosis was an anxiety disorder, most likely PTSD. Simpson opined that the significance of Barbera's 911 call was that it showed he wanted his mother to live. In that call, Barbera was extremely emotional and crying when he told the operator, "I can't go to jail." He referred to himself as "a monster," and said "I'm horrible . . . I want to die." He also said, "I am a murderer." Simpson opined that Barbera's ensuing suicide attempt reflected guilt over his behavior and remorse for what he had done. Considering Barbera's response to the situation, Simpson believed it was possible Barbera was not aware of the potential consequences of his actions. He acknowledged that people facing prison sentences often exaggerate or lie, and conceded that some of Barbera's records indicated he might be malingering or feigning illness. However, based on his mental defects and the medications he was taking, it was highly unlikely Barbera perceived reality in a normal fashion. He believed Barbera suffered from delirium. He may not have been aware of what he was doing at the time, and may only later have realized what he had done. Simpson acknowledged that Barbera, who was calm and cooperative during his December 2009 interview, was "not unintelligent," and had "fairly good insight and judgment." He also acknowledged that a report from hospital staff, upon which he relied in forming his opinion, stated that on March 19, 2008, Barbera had been "awake and oriented to [his] name and some event, [sic] [and] state[ed] he wanted to kill his mom."
Barbera's testimony
Barbera was born in December 1961. His family moved to California before he entered the third grade. His sister Betsy is six years older than he, and his sister Julie is five years older. Both of his parents drank a lot, and Barbera's father was seeing a psychiatrist and taking lithium and other antipsychotic medications Barbera's whole life. His father was scary and unpredictable, and Barbera always feared him. He had frequent and unexpected temper explosions, and Barbera walked on eggshells to avoid upsetting him. His father was physically abusive toward his mother and sisters. Barbera never saw his father's violence on his mother, only its aftereffects. He heard sounds like punches, and then she would have black eyes and fat lips. His father punched and fractured Julie's face when she was 16. Years later, Julie told her brother she "was afraid [their father] was going to kill" her. Once, his father became enraged over a disagreement about a television program and stalked Betsy carrying a yardstick. Betsy screamed and ran downstairs. From upstairs, Barbera could hear his father hitting Betsy with the stick in the basement. His father had daily bouts of anger, and physically hit family members on a weekly basis. Barbera felt guilty that his father was so violent towards his mother and sisters, but never against him.
Barbera's father began molesting him when Barbera was in preschool. They played a game on the bed his father called "shark waters." His father also frequently sat Barbera on his lap and fondled him. The fondling stopped when Barbera's parents separated when he was 12 years old. Barbera first told Cabe about his father's abuse. For years, he had known his father's conduct had been inappropriate, but because there had been no penetration he was not sure it had been sexual molestation. After talking to Cabe, Barbera told his mother about the "shark waters" game. She recalled the game but had thought it innocuous at the time. He felt she should have known because his father had not been very discrete, and she should have protected him.
Growing up, Barbera's mother was his best friend. She treated him well and he was always a "mama's boy." He loved her more than anyone in the world and she spent a lot of money to help him try to start a career as a musician. Barbera's mother and sisters had engaged in sexually inappropriate behavior with Barbera. His earliest memory of such behavior on the part of his mother was when she bathed him when he was 12 or 13. In addition, his mother drank every night and she would walk around in sheer nightclothes. Once, when he was 22, Barbera had sex with his mother. Barbera's sisters also tried sexually to entice him and, on at least one occasion, Barbera and each of his sisters had engaged in inappropriate behavior.
Barbera first saw a psychiatrist when he was 16, and was prescribed Xanax and antidepressants for panic attacks. He sought treatment because he felt horrible and was always scared of people. At age 19, he was involuntarily hospitalized because he was suicidal. Barbera began cutting himself when he was 38. He was in a lot of pain and very frustrated. The cutting made him feel better and he became compulsive about it whenever he felt really bad. He attempted suicide several times because he was frustrated, unhappy, and in pain. He felt he had never really grown up or had his own life. He had always lived with his mother. He was married for a couple of years. He was a terrible husband. He always wanted to die because he was unhappy.
Barbera did not specifically remember what his relationship with his mother was like in February 2008, but he did recall that he was unhappy about having to care for her and that he felt as though he never grew up. He did not remember assaulting her in February, but did recall hitting her in the face in the past with a television remote control. Barbera did not remember calling 911. He had a sketchy memory of looking in the mirror and cutting his throat before seeing a white light. He did not recall going to the hospital or speaking to Price. He recognized his voice on the recorded confession but did not recall making it. He knew what he had done was wrong.
In the years leading up to 2008, Barbera felt more pent-up anger. He was frustrated about having to care for his mother and the inability to have his own life. He felt like a loser. Caring for his mother became increasingly stressful as she grew older and her needs increased. Barbera knew she would eventually require more care than he would be able to provide. He was also angry that his sisters did not help him, but that they criticized the quality of the care he gave their mother. Barbera and his mother lived on very limited incomes and had been forced to move into a smaller, less expensive apartment. Barbera was frustrated and angry about what his father had done and his mother's failure to protect him. But, she was his best friend and he loved her. Barbera began to yell at and hit his mother about a year before February 2008. He did not recall giving her a black eye. He vented his frustration by abusing his mother, knew he had hurt her and knew that it was wrong to do so. He missed his mother and said he did not know what to do without her.
In a letter to his sister Betsy postmarked October 22, 2008, Barbera wrote: "I'm sorry I killed mom." Barbera also wrote: "I just want to make it clear how sorry I am for what I've done. . . . My heart aches so bad. I miss mom so much. It's real hard to live with what I've done." Barbera said he fantasized constantly about having sex with Betsy.
Barbera has no memory of February 29, 2008 and does not know why he assaulted his mother that day. He does not remember how he felt or what he was thinking at the time of the assault. Barbera denied feigning memory loss in order to avoid responsibility for brutally beating his mother to death. He admitted what he did was "very horrible and traumatic."
Rebuttal case
Barbera's sister, Julie Barbera, is a registered nurse and lives in Texas. Her father had bipolar disorder. He was verbally abusive to everyone in the family and physically abusive to her. Julie's parents divorced when she was about 16.
During her childhood, Julie's mother frequently drank vodka and later switched to wine, which she carried all the time. Her mother hid her drinking. Julie moved out when she was 18. Betsy had already moved out.
Julie never saw her mother behave in a flirtatious manner with her brother or wear revealing clothing in front of him. Her mother was very modest woman. Julie did not believe her father molested Barbera. Julie denied having engaged in any sexually inappropriate conduct with her brother.
Julie tried to visit her mother at her home in during a family trip to California in August 2007. When she arrived at the apartment, her mother stepped outside. She looked thin, unkempt and, generally, "terrible." When Julie said she wanted to come in, Mrs. Barbera went inside to talk to Barbera. Julie heard her brother yell, "'No. They can't come in,'" and Julie and her children were not permitted to enter that day. Before she left, Julie invited her mother to dinner and asked her to call her to arrange to meet. Her mother never called and refused to give Julie her phone number. Barbera also told Julie not to come to California after their mother's stroke in 2005. Over the years, Mrs. Barbera stopped calling Julie, who could not get in touch with her mother. Mrs. Barbera ceased visiting her daughters, and did not attend the funeral of a granddaughter who was killed in a car accident. Julie believed that Barbera stopped her from doing so. In the past few years, when she wanted to visit her mother, Julie got the distinct impression from her mother and brother that she was not welcome. She knew her mother was being controlled by her brother, but did not press the issue because she feared for her mother.
DISCUSSION
Barbera's only argument is that his conviction for second degree murder must be reversed because there is insufficient evidence that he acted with implied malice.
1. Standard of review
In an appeal challenging the sufficiency of the evidence in support of a judgment, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.) We presume in support of the judgment "the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft, supra, 23 Cal.4th at p. 1053.)
Our role "is a limited one. "'"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]"' [Citations.] [¶] '"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" [Citation.]' [Citation.]" (People v. Smith (2005) 37 Cal.4th 733, 738-739.) The standard is the same in a case based on circumstantial evidence. (People v. Proctor (1992) 4 Cal.4th 499, 528-529.)
2. Substantial evidence supports Barbera's conviction of second degree murder
Second degree murder is the "unlawful killing of a human . . . being with malice aforethought," but without the premeditation, deliberation and willfulness necessary to elevate the offense to first degree murder. (§§ 187, subd. (a), 189; See People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) "[M]alice may be express or implied. 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 and malignant heart." (§ 188.) Malice is implied "when the killing is proximately caused by '"an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life."' [Citations.] In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less." (People v. Knoller (2007) 41 Cal.4th 139, 143.) The standard is subjective; the defendant must actually have appreciated the risk to human life involved. (Id. at p. 152; People v. Watson (1981) 30 Cal.3d 290, 296-297.)
"[A] conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life." (Knoller, supra, 41 Cal.4th at p. 156.) In the present case, the evidence that Barbera was aware of the risk to human life and consciously disregarded that risk is extremely strong. Substantial evidence supports his conviction of second degree murder. (People v. Kraft, supra, 23 Cal.4th at p. 1053; cf., People v. Contreras (1994) 26 Cal.App.4th 944, 956 [finding evidence was sufficient to show defendant tow truck driver was subjectively aware of risk to human life posed by his conduct and he consciously and deliberately disregarded that risk; upholding conviction of second degree murder based on implied malice for causing fatal traffic collision].)
The wounds on Mrs. Barbera's body and the expert testimony provide an ample evidentiary basis for the jury to conclude Barbera intentionally and repeatedly beat his medically fragile mother. Barbera used his fists and his mother's own cane to strike her. There is also evidence he may have kicked her. Barbera confessed that he beat his 74-year-old mother with about 20 fist strikes to her head and face. The beating sent Mrs. Barbera to the ground and continued over a 24 to 48 hour period. Barbera then left his severely beaten mother on the floor. She was able to pull herself onto a bed where she was found several days later, dehydrated, emaciated, incoherent, covered in blood and lying in her own urine.
Barbera's assault left his mother with evidence of blunt force trauma to her head and upper extremities, hemorrhaging under her scalp, and contusions to her face, neck, legs and feet. Barbera attended a meeting with his psychiatrist after the beating, but never mentioned the assault until days later when he called Dr. Miller to say he might have killed his mother. Reasonable jurors could conclude that Barbera's statements to Miller showed he slit his throat to avoid the prison sentence he knew would follow his assault on his mother. Reasonable jurors could also find that Barbera understood the severity of the beating he had given his mother, and the possibility it could have killed her when he told the police, "I thought she was going to die," referred to himself as a "murderer" in the 911 call and, as reflected in hospital records upon which Simpson relied in formulating his expert opinion, was "awake and oriented" on March 19, 2008, when he told hospital staff "he wanted to kill his mom." Although Barbera understood his mother could die, he did not seek medical help for her until Miller told him to do so and, even then, only after he had slit his own throat and needed medical assistance himself.
Barbera takes issue with numerous statements in the prosecution's summation of the evidence at trial, and argues that items upon which the prosecution relied were contradicted or nonpersuasive. We need not address his assertions. Barbera essentially invites us to reweigh the credibility of the evidence and draw conclusions contrary to those drawn by the jury. We must, of course, decline the invitation. That is not our role in reviewing the sufficiency of the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The jury found that Barbera's severe abuse of his mother caused her death. The fact that Mrs. Barbera was elderly, frail and in very poor health does not compel a different result. Barbera had always lived with his mother and had been her sole caretaker, watching as her health grew increasingly worse and she developed or suffered a multitude of debilitating medical problems, including a stroke, heart operations and diabetes. More than anyone, Barbera was intimately acquainted with his mother's failing health and fragile physical condition and, as a result, aware of the very real risk that any physical abuse, let alone the sustained beating he inflicted here, could kill her. On this record there is ample evidence of implied malice.
The record contains sufficient evidence for a jury to conclude that Barbera acted with a conscious disregard of the danger of his actions to human life. A rational trier of fact could find the essential elements of second degree murder beyond a reasonable doubt. (See Jackson v. Virginia, supra, 443 U.S. at p. 319.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.