Filed 5/11/16 P. v. Moore CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON HARLEY MOORE,

Defendant and Appellant.

 D069310

(Super. Ct. No. SWF10001680)

APPEAL from a judgment of the Superior Court of Riverside County, Timothy F. 

Freer, Judge. Affirmed.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Arlene A. 

Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Jason Harley Moore guilty of assaulting a child by means of force 

likely to produce great bodily injury, resulting in death of the child. The trial court 

sentenced Moore to an indeterminate sentence of 25 years to life in prison. Moore 
2

appeals, contending the trial court abused its discretion in precluding him from calling an 

expert witness. Should we disagree and conclude the trial court properly excluded the 

expert witness based on deficiencies in defense counsel's representation, Moore 

alternatively argues that he received ineffective assistance of counsel.

We conclude the trial court did not abuse its discretion in precluding the expert 

witness testimony and, to the extent defense counsel provided ineffective assistance, the 

error was harmless.

FACTUAL AND PROCEDURAL BACKGROUND

On July 27, 2010, Jane Doe, who was about three and a half months old, lived 

with Laura Morales, her mother, and Moore, her father, in Hemet, California. While 

Morales worked, Moore stayed home to care for Doe. That afternoon, Morales got a 

phone call from Moore telling her that she needed to hurry home because Doe had 

stopped breathing. When paramedics arrived at the home, Doe appeared slightly blue, 

was not breathing and was in cardiopulmonary arrest, meaning her heart was beating but 

not effectively.

Doe eventually arrived at Loma Linda University Medical Center (Loma Linda) 

where she died from her injuries about a week later. Dr. Mark Massi, a forensic 

pediatrician, examined Doe when she arrived at Loma Linda. Doe had elevated 

intracranial pressure and her entire brain was swelling. Dr. Massi noted subdural 

bleeding in Doe's brain which, for a child of Doe's age, is mainly caused by some sort of 

trauma such as shaking. Dr. Massi also observed extensive retinal bleeding which

suggested that Doe has suffered child abuse.
3

Dr. Massi felt a swollen area on the right side of Doe's head and the ridge of a 

skull fracture, consistent with a fracture he saw on a CT scan of Doe's head. Looking at a 

3D rendering of Doe's skull, Dr. Massi explained that Doe suffered a fracture of the right 

parietal bone that continued past the suture (fibrous tissue between the skull bones that

allow the skull to compress during birth) into the temporal bone. This fracture suggested 

to Dr. Massi that Doe suffered a traumatic event.

Dr. Massi stated that in falls from a distance of two to three feet, such as from a 

bed, a child may suffer a skull fracture, but opined that Doe had suffered injuries more 

traumatic than a "common household injury." Although Dr. Massi observed no bruising 

on Doe's body that would suggest she had been shaken, he opined that Doe had been 

shaken, that the shaking caused the skull fracture, and Doe's injuries were due to 

nonaccidental abusive head trauma.

Dr. Mark McCormick, a forensic pathologist, performed an autopsy on Doe. In 

examining Doe's skull, Dr. McCormick noted a fracture to the right parietal area of the 

skull that extended into a suture. Dr. McCormick opined that a fall from a bed would not 

have caused the fracture and brain injuries similar to Doe's, even if she had hit her head 

on a wooden bed frame. Dr. McCormick believed Doe's injuries were of the type he 

would expect to see in an unrestrained infant involved in a car accident or from a fall out 

of a second or third story building onto concrete. In Dr. McCormick's opinion, Doe's

injuries were likely inflicted and not accidental.

Dr. Christina Stanley, a forensic pathologist and neuropathologist, examined Doe's 

preserved brain. She testified that the location of the subdural hemorrhaging suggested 
4

inflicted head trauma. Dr. Stanley opined that the hemorrhaging Doe suffered was

inconsistent with a three-month-old infant falling off a bed. Dr. Stanley agreed with

Dr. McCormick that the injuries Doe suffered had been inflicted and were consistent with 

abusive head trauma.

Moore testified on his own behalf. Moore stated that he set Doe on the bed and 

went to take a shower. From the shower, Moore heard Doe crying loudly. He left the 

shower and found Doe on the floor. Doe cried as Moore checked to see if she had broken 

any limbs. A short time later as Moore held Doe, she went limp and stopped breathing. 

Moore began administering CPR as he called 911 and Morales. Moore never mentioned 

to Morales, the paramedics or law enforcement that Doe had fallen. At trial, Moore

admitted staging the bed with blankets to make himself look better.

Dr. Ronald Gabriel, a pediatrician and neurologist, prepared a report for the 

defense stating that Doe had suffered a skull fracture. Similar to Dr. Massi, Dr. Gabriel 

testified that a three- or four-month-old infant could suffer a parietal skull fracture from a 

fall of one to two feet from a bed onto the floor. With respect to Doe, Dr. Gabriel opined 

that Doe could have suffered a parietal skull fracture falling from a bed and hitting a hard 

railing during the fall. At trial, Dr. Gabriel changed his opinion and stated that Doe had 

not suffered a skull fracture and what he initially believed was a skull fracture, was 

actually a "congenital accessory variant suture" or anomalous suture that was there long 

before Doe's birth.

Dr. Gabriel concluded that Doe suffered a fall and after she stopped crying, Doe

had an apnea spell and stopped breathing. This caused her to turn blue which meant that 
5

she was not getting enough oxygen. Lack of oxygen caused the heart to stop, which in 

turn stopped the flow of blood to Doe's brain. The lack of blood flow to the brain caused 

Doe's brain cells to die. He explained that when the cells start to die, the brain swells.

As the brain swells, it takes the path of least resistance and begins poking through the 

sutures, which, in Dr. Gabriel's opinion, ultimately resulted in Doe's death.

Dr. Gabriel believed the subdural and subgaleal hemorrahaging that Doe suffered 

were the result of the combination of a fall to the floor and a blood clotting deficiency 

noted by the hospital upon her admission. With respect to the notion that retinal 

hemorrhaging indicated abuse, Dr. Gabriel testified that this has been proven false on 

many occasions. World literature on this subject and his personal experience indicate 

that such hemorrhaging cannot be used as a diagnostic tool because it can result from 

clotting problems, leukemia, or infections. The retinal hemorrhaging did not surprise

Dr. Gabriel because of Doe's blood clotting problem and the very high pressure in her

brain.

DISCUSSION

I. Exclusion of Expert Testimony

A. Background

At the preliminary hearing, Dr. Massi testified that when he examined Doe's scalp 

he felt swelling and a ridge that was later determined to be a linear parietal fracture. He 

testified that a child could sustain a skull fracture after falling from a bed onto either a 

carpeted or hard floor, whether or not the child hit a wood railing on the way to the floor. 
6

He also testified that the skull fracture did not cause the retinal hemorrhaging and opined 

that Doe had been shaken.

Based on Dr. Massi's preliminary hearing testimony, defense counsel did not 

provide Dr. Gabriel with all of the CT scans and instructed him to not spend time on the 

skull fracture because defense counsel believed Dr. Massi had conceded that the skull 

fracture could have resulted from a short fall. During trial, defense counsel believed that 

Dr. Massi testified for the first time that Doe's fracture was inconsistent with a fall from a 

bed because it extended into the temporal bone. During an extended trial recess, defense 

counsel gave Dr. Gabriel a 3D CT image of Doe's skull that counsel possessed, but 

previously had not provided to Dr. Gabriel, and asked him to determine whether the skull 

fracture extended into the temporal bone.

The following day, Dr. Gabriel told defense counsel that after examining the 3D 

imaging scan he suspected that, in fact, no fracture existed. Dr. Gabriel had taken the 

scan to Dr. James D. Collins, a board certified radiologist for consultation. Dr. Collins 

opined that Doe had been misdiagnosed and that the scan actually showed an "anomalous 

parietal suture." Defense counsel filed an emergency request for funding to have

Dr. Collins prepare a report and notified the prosecution of the request. Thereafter, 

defense counsel made an oral request and a number of written requests to allow

Dr. Collins to testify at trial or declare a mistrial. Defense counsel and the court made an 

extensive record regarding this issue.

The trial court ultimately ruled that allowing Dr. Collins to testify would be unfair 

because the prosecution did not receive information regarding Dr. Collins until after the 
7

trial had started, Dr. Collins's CV consisted of 126 pages and it could take weeks for the 

prosecution to do a basic investigation. The trial court concluded that an "unintentional"

discovery violation had occurred when the defense provided new information to the 

prosecution mid-trial because the defense had all of the information Dr. Gabriel needed to 

have reached his revised opinion before trial, but Dr. Gabriel never asked for the 3D scan.

The trial court allowed Dr. Gabriel to testify as to why his opinion regarding the 

skull fracture changed, that he had consulted with Dr. Collins and that Dr. Collins was a 

distinguished radiologist. The trial court explained, under the circumstances, it fashioned 

its ruling to protect Moore's due process rights.

B. Analysis

Moore asserts the trial court erred in determining that the defense had violated the 

discovery rules and claims the trial court abused its discretion imposing any sanction. He 

argues the late discovery resulted from the defense's reliance on Dr. Massi's preliminary 

hearing testimony and the prosecution's pretrial representation that it had no additional 

statements to disclose. Moore asserts the trial court missed the point regarding the 

significance of the change in Dr. Massi's opinion between the preliminary hearing and 

trial. In making this argument, Moore contends the prosecution committed a discovery 

violation by not disclosing Dr. Massi's statements about the nature of the fracture. 

Assuming a defense discovery violation occurred, Moore argues the trial court erred by 

imposing the most severe discovery sanction of precluding Dr. Collins's testimony. 

Moore also claims the trial court abused its discretion in excluding Dr. Collins's 

testimony under Evidence Code section 352. We are not persuaded.
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Discovery in criminal cases is governed by statute. (Pen. Code, § 1054 et seq.) 

The prosecution is required to disclose all written or recorded statements of witnesses 

who are expected to be called at trial. (Pen. Code, § 1054.1, subd. (f).) The defense must 

disclose to the prosecutor the names and addresses of persons the defendant reasonably 

anticipates will likely be called as witnesses at trial and provide any relevant written or 

recorded statements of those witnesses. (Pen. Code, § 1054.3, subd. (a)(1).) A court may 

prohibit the testimony of a witness "only if all other sanctions have been exhausted."

(Pen. Code, § 1054.5, subd. (c).) "[P]rohibiting the testimony of a witness is not an 

appropriate discovery sanction in a criminal case absent a showing of significant 

prejudice and of willful conduct." (People v. Gonzales (1994) 22 Cal.App.4th 1744, 

1747, 1758.) We generally review a trial court's discovery ruling for an abuse of 

discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299.)

Additionally, a trial court may exclude otherwise relevant evidence when its 

probative value is substantially outweighed by concerns of undue prejudice, confusion, or 

consumption of time. (Evid. Code, § 352.) Evidence is more prejudicial than probative 

if it poses an intolerable " 'risk to the fairness of the proceedings or the reliability of the 

outcome.' " (People v. Waidla (2000) 22 Cal.4th 690, 724.) We review a trial court's 

exercise of discretion in admitting or excluding evidence for abuse and will not disturb

the ruling "except on a showing the trial court exercised its discretion in an arbitrary, 

capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." 

(People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
9

As a threshold matter, we reject Moore's contention that the prosecution 

committed a discovery violation by not disclosing Dr. Massi's statements about the nature 

of Doe's fracture. Defense counsel had a copy of Dr. Massi's report which noted that Doe

suffered a "parietal skull fracture possibly extending into the temporal bone." During 

trial, defense counsel tried to impeach Dr. Massi's testimony that the complex nature of 

Doe's skull fracture indicated her fracture did not occur from a common household fall, 

with Dr. Massi's preliminary hearing testimony. At the preliminary hearing, Dr. Massi 

stated that Doe could have suffered a linear skull fracture falling from a bed and it would 

not be surprising for "an infant" falling from a bed and not hitting anything on the way 

down to suffer a skull fracture. The trial court found there was no inconsistency "if the 

question specifically wasn't asked at the preliminary hearing, or if it isn't covered, or he 

doesn't mention it's a complex fracture, doesn't talk about it...." After reviewing the 

preliminary hearing transcript, we agree that neither the People or defense counsel 

specifically asked Dr. Massi at the preliminary hearing about the finding in his report 

regarding the nature of Doe's fracture, nor what this finding implied regarding how Doe's 

injuries might have occurred. For this reason, we reject Moore's contention that the 

prosecution committed a discovery violation.

Accordingly, we turn to Moore's argument that the trial court erred when it 

excluded Dr. Collins's testimony under Evidence Code section 352 and because the 

defense violated the discovery rules. As a reviewing court, we look at the result reached 

by the trial court, and not its rationale. (People v. Zapien (1993) 4 Cal.4th 929, 976.) 

Accordingly, because a sanction for a violation of the discovery rules or a ruling under 
10

Evidence Code section 352 is reviewed for an abuse of discretion, we proceed directly to 

whether the trial court abused its discretion when it excluded Dr. Collins's testimony.

First, before deciding to exclude Dr. Collins's testimony, the trial court evaluated

its options under Penal Code section 1054.5, including sanctioning defense counsel, 

granting a continuance, or reading jury instructions on late discovery. The trial court 

rejected these options finding defense counsel had done nothing wrong as Dr. Gabriel 

could have asked for any additional material from defense counsel before formulating his 

opinion, a lengthy continuance would be required to address the prejudice to the 

prosecution and a jury instruction would not address the prejudice to the prosecution.

The trial court concluded it would be fundamentally unfair to the prosecution if it 

allowed the defense to introduce Dr. Collins's testimony, after the People had already 

rested their case, as a means of bolstering Dr. Gabriel's trial testimony. We agree.

First, the trial court allowed Dr. Gabriel to fully testify regarding when he first saw 

the 3D scan, his change in opinion and his consultation with Dr. Collins, a radiology 

expert. Accordingly, we reject Moore's argument that excluding Dr. Collins's testimony 

violated his due process rights by denying him a defense. Defense counsel essentially 

agreed with the trial court's assessment that Dr. Collins's testimony would corroborate

Dr. Gabriel's testimony and impeach the testimony of the prosecution witnesses that Doe 

had suffered a skull fracture.

We agree that Dr. Collins's proposed testimony that Doe had not suffered a skull 

fracture would have been cumulative of Dr. Gabriel's testimony. Additionally, as to 

impeachment, the trial court correctly noted that Dr. Gabriel had essentially impeached 
11

himself by changing his opinion based on a piece of evidence Dr. Gabriel never indicated 

he needed to formulate an opinion. While the prosecution challenged Dr. Gabriel's 

qualifications to render an opinion regarding the skull fracture because he was not a 

radiologist, the jury was aware that Dr. Gabriel changed his opinion regarding the skull 

fracture after consulting with Dr. Collins a "distinguished and experienced professor of 

radiology."

Moreover, as the trial court noted, Dr. Collins had "a very, very, detailed CV" with 

126 pages of attachments. The trial court reasonably concluded it would take the 

prosecution "weeks" to do a basic investigation regarding publications, reports or studies 

by Dr. Collins that addressed unknown sutures versus skull fractures and then prepare 

cross-examination. Under the unusual circumstances of a defense expert changing his

opinion mid-trial regarding an injury, we cannot conclude the trial court abused its 

discretion in precluding Dr. Collins's testimony.

Even assuming the trial court erred in excluding Dr. Collins's testimony, the 

assumed error was harmless because it was not reasonably probable that a more favorable 

result would have been reached if Dr. Collins had testified. As we noted above, the trial 

court allowed Dr. Gabriel to testify regarding his changed opinion; thus, the jury was well 

aware of the defense contention that Doe had been misdiagnosed with a skull fracture. 

Defense counsel also argued during closing argument that the misdiagnosis regarding the 

skull fracture "infect[ed] the reliability of everything else" about Doe's injuries. Even if 

the defense had been allowed to present Dr. Collins's testimony that Doe had been 

misdiagnosed with a skull fracture based on his review of Doe's skull images, the jury 
12

would have still been required to weigh this testimony against the testimony of Drs. 

Massi and McCormick, who did not rely on images to make their diagnoses. Rather,

Dr. Massi testified he felt swelling above the fracture and the ridges created by the 

fracture when he physically palpated Doe's skull. Additionally, Dr. McCormick 

physically examined Doe's actual skull during an autopsy and observed the fracture.

More importantly, however, Dr. Gabriel testified that his change of opinion 

regarding whether Doe had suffered a skull fracture was a "non-issue" as "[w]hat 

happened to . . . Doe [was] quite independent of whether or not there [was] a skull 

fracture." Dr. Gabriel noted that after Doe fell, she cried and then went silent. When 

Doe stopped crying, Dr. Gabriel opined that Doe suffered an apnea spell (stopped 

breathing). He further opined that Doe's heart then stopped from lack of oxygen, 

resulting in no blood flow to Doe's brain and cardiopulmonary arrest. Dr. Gabriel 

explained that Doe's brain tissue started to die causing the brain to swell. Dr. Gabriel 

concluded that this brain swelling resulted in Doe's death. Dr. Gabriel also testified that 

Dr. Stanley's neuropathology report supported his opinion as Dr. Stanley noted that Doe's 

brain cells were damaged by lack of oxygen.

Dr. Massi similarly testified that Doe's entire brain swelled after being injured. 

Thus, the critical issue at trial was not whether Doe had suffered a skull fracture, but what 

caused her brain to swell — an accidental fall or nonaccidental abusive head trauma. On 

this issue, the jury had before it Moore's admissions that he failed to tell Morales, the 

paramedics or law enforcement that Doe had fallen and had staged the bed to make 

himself look better.
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On this record, we conclude it is not reasonably probable that a more favorable 

result would have been reached if Dr. Collins had testified.

II. Alleged Ineffective Assistance of Counsel

Moore submits that any alleged deficiencies on behalf of defense counsel were the 

result of the prosecution's failure to timely disclose Dr. Massi's opinion. As an 

alternative argument should we disagree, Moore contends he received ineffective 

assistance of counsel. Specifically, he asserts no competent attorney would fail to retain 

an expert critical to the defense or violate discovery rules resulting in exculpatory 

evidence being excluded from trial. To the extent defense counsel stated that a 

significant factor in not having Dr. Gabriel fully investigate the alleged skull fracture at 

the outset was to save his client's money, counsel acted unreasonably because as later 

demonstrated, counsel was able to secure funding from the court to retain Dr. Collins in 

less than 24 hours.

During the pendency of the appeal, we asked the parties to submit supplemental 

briefs on whether defense counsel's pretrial investigative work, including his decision to 

not provide his medical expert with all available discovery material, amounted to 

ineffective assistance of counsel. Both sides did so. As we shall explain, while we find 

defense counsel provided ineffective assistance by not providing Dr. Gabriel with all 

discovery materials, the error was harmless.

A defendant claiming ineffective assistance of counsel has the burden to show: (1) 

counsel's performance was deficient, falling below an objective standard of 

reasonableness under prevailing professional norms; and (2) the deficient performance 
14

resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); 

People v. Ledesma (1987) 43 Cal.3d 171, 216, 218 (Ledesma).) To establish prejudice, 

the defendant must show it is reasonably probable a more favorable determination would 

have resulted in the absence of counsel's failings. (Strickland, at pp. 693-694; Ledesma, 

at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine 

confidence in the outcome." (Strickland, at p. 694.)

We exercise deferential scrutiny in examining counsel's performance. (Strickland, 

supra, 466 U.S. at p. 689; Ledesma, supra, 43 Cal.3d at p. 216.) The defendant must 

affirmatively show counsel's deficiency involved a crucial issue and cannot be explained 

on the basis of any knowledgeable choice of tactics. (People v. Jackson (1980) 28 Cal.3d 

264, 289.) In examining a claim of ineffective assistance of counsel we defer to counsel's 

reasonable tactical decisions and presume counsel's conduct fell within the wide range of 

reasonable professional assistance. (People v. Weaver (2001) 26 Cal.4th 876, 925.) 

The right to counsel includes the right to effective assistance of a reasonably 

competent attorney during the pretrial stage of a proceeding. (People v. Pope (1979) 23 

Cal.3d 412, 423.) "[A] defendant can reasonably expect that before counsel undertakes 

to act, or not to act, counsel will make a rational and informed decision on strategy and 

tactics founded on adequate investigation and preparation." (In re Fields (1990) 51 

Cal.3d 1063, 1069.) "[A] defense attorney who fails to investigate potentially 

exculpatory evidence, including evidence that might be used to impeach key prosecution 

witnesses, renders deficient representation. [Citations.] California case law makes clear 

that counsel has an obligation to investigate all possible defenses and should not select a 
15

defense strategy without first carrying out an adequate investigation." (In re Edward S.

(2009) 173 Cal.App.4th 387, 407.)

Here, defense counsel stated in a sworn declaration that he hired Dr. Gabriel to 

formulate an opinion as to whether Doe suffered inflicted abuse or a tragic accident. 

Based on Dr. Massi's preliminary hearing testimony that Doe could have sustained a skull 

fracture falling from a bed and hitting a wooden railing before hitting the floor, defense 

counsel concluded that how the skull fracture occurred was "a non-issue" and he 

"believed this to be an extent of injury case; this was not a couldn't get 'the' skull fracture 

case." Accordingly, defense counsel did not provide every skull imaging picture to

Dr. Gabriel because he did not want Dr. Gabriel spending the family's limited funds 

reviewing an issue counsel believed had been conceded at the preliminary hearing.

We conclude there was no reasonable or tactical explanation for defense counsel's 

failure to provide Dr. Gabriel with all discovery materials. Defense counsel hired

Dr. Gabriel, a medical expert, to review the extent of Doe's injuries and opine as to 

how they occurred. Defense counsel's declaration, however, suggests he accepted the 

opinion of the prosecution's medical experts regarding the injuries that Doe suffered, 

including the skull fracture, and thus decided to not give Dr. Gabriel all of the skull 

images.

Defense counsel's decision to not provide Dr. Gabriel with all discovery materials 

was not reasonable. First, it is not likely that providing Dr. Gabriel with all discovery 

materials would have greatly increased the cost to mount a defense. Additionally, it is 

impossible for Dr. Gabriel to provide an informed medical opinion regarding how Doe's 
16

injuries occurred without reviewing all available materials to determine what injuries Doe 

suffered. Although defense counsel acknowledged that the entire case revolved around 

the extent of Doe's injuries, he apparently assumed the role of a medical expert and 

agreed with the prosecution's medical experts at the outset of the case that the extent of 

Doe's injuries included a skull fracture. This decision amounted to a failure to perform 

an adequate investigation. Nonetheless, as we detailed above, exclusion of Dr. Collins's 

testimony was harmless. (Ante, pt. I.) Thus, Moore cannot show he was prejudiced by

defense counsel's error. (Ledesma, supra, 43 Cal.3d at p. 217 [defendant must establish 

prejudice to obtain relief on an ineffective assistance claim].)

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.