Genaro Lara, Attorney at Law, SBN 145659
550 West Vista Way, Suite 106
Vista, CA 92083
Tel: 760-8094942
Attorney for Azael Chavez, Defendant
SUPERIOR COURT STATE OF CALIFORNIA
COUNTY OF SAN DIEGO, NORTH COUNTY JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ) No. CN337854
To: District Attorney for County of San Diego, and Ryan Saunders, Deputy District
Attorney:
NOTICE IS HEREBY GIVEN THAT on the above stated date, time and place, or as soon thereafter as the matter may be heard, in Department 5 of the above entitled court, defendant, Azael Chavez will move the court to dismiss the information. The will be made on the grounds that (1) the parties entered into a stipulation for the admission of medical records from doctors whose findings until October 7, 2014, did not show any scientific medical evidence of child abuse or neglect. (2) The court unduly restricted the right to cross examine witnesses; (3) the magistrate erred in holding Mr. Chavez for trial in that the evidence submitted in support of such finding is inadequate at law. The court denied Azael Chavez the right to present expert admissible evidence of physicians who had treated and cared for the children of Mr. Chavez. The court further violated defendant’s basic fundamental rights of fairness, due process of law, under the 5th and 14th amendments of the United States and the constitution of the State of California, as will be described in this motion.
In support of his motion, Mr. Chavez has filed the instant notice of motion, motion, memorandum of points and authorities and citation by page and line number to relevant parts of the transcript of preliminary hearing. Mr. Chavez requests the court to take judicial notice of the filed documents in the court file together with exhibits and stipulations agreed to by the parties.
In addition to denying the rights to subpoena witnesses the court erroneously excused the appearance of some 14 doctors who had been subpoenaed by defense counsel thereby denying the accused the most basic constitutional right to present affirmative evidence. The court applied an illegal standard based on the misplaced and wrong basis to the effect that allowing the witnesses to testify on behalf of the accused, the testifying doctors would lose money. The treating physicians’ legal, ethical and moral obligation emanating from the physician-patient relationship is to appear in court to testify about their treatment of the twin children. The doctor’s failure to justify their absence in court constitutes an unethical, illegal blemish on their duties and the court’s illegal ruling in excusing their presence falls outside the legal parameters. The motion will address the unethical, oppressive, fraudulent and perjurious conduct of the deputy district attorney, R. Saunders, with his own words and actions
Dated this 3rd day of August, 2015____________________________________________
Genaro Lara, Attorney at Law, SBN 145659
550 West Vista Way, Suite 106
Vista, CA 92083
Tel: 760-8094942
Attorney for Azael Chavez, Defendant
SUPERIOR COURT STATE OF CALIFORNIA
SAN DIEGO COUNTY, NORTH COUNTY JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ) No. CN337854
)
)
CALIFORNIA, PLAINTIFF, ) MOTION TO SET ASIDE AND DISMISS
) INFORMATION
)
) Cal. Pen. Code § 995 (a) (2) et, seq.
VS. )
)
) Date:
) Time:
AZAEL CHAVEZ, DEFENDANT. ) Place:
______________________________)
Introduction:
Azael Chavez, dob December 6, 1975 was arrested on October 7, 2015 and charged with two count felony complaint alleging violation to California Penal Code 273a (a). He was arraigned on October 10, 2014 in Superior Court in Vista, California and entered a plea of not guilty. He was represented by the office of the public defender of San Diego County.
(a) The People filed a document under penalty of perjury. The felony complaint alleged in count one child abuse pursuant to PC 273a (a), in that “between the dates of March 1, 2014 through October 7, 2014, Mr. Chavez, the father of twins, had committed the crime against Isabella, while in count two, he had likewise violated the law as to Gabriella Chavez betweenn the dates of April 1, through October 7, 2015. Medical records from Rady Children’s Hosptial showed that Isabella was receiving medical treatment from her date of birth through March 10, 2015. Gabriella, was likewise interned at Rady Children’s Hospital receiving medical care from her date of birth, February 20, 2014 through April 12, 2014 when she was discharged to her parents after corrective surgery performed on her. The children were born prematurely and Gabriella was born with a defective condition knows as Gastroschisis, which is characterized by her intestines being outside her abdominal cavity. At least two dozen doctors, nurses and other medical personnel have treated the children at one time or another during the dates when the alleged crimes were being committed.
To be more specific, the felony complaint alleged as to Isabella was physically at at iem when she was confined to the hospital between the dates of March 1, through March 10, while Gabriella was being physically abused between April 1, through April 12, 2014, both assertions of fact alleged in a felony complaint filed under penalty of perjury were absurd, and there are hundreds of pages of medical records to prove beyond all doubt that the children during those days and during all the dates when the medical personnel documented their physical ailments were not abused, but being treated. Doctors’ reports consistently described the children as well developed, well nourished and there was no evidence of abuse or neglect. At least a dozen treating physicians who were subpoenaed by defense counsel would have testified as to the physical condition of the children, the medical challenges that premature children suffer as a a result of their prematurity and that after numerous medical examinations and testing, there was never any evidence of mistreatment by the parents, until a so called “child abuse expert,” Dr. Premi Suresh and a team of Escondido police investigators entered the picture and opined contrary to medical authority, then, medical observations noted by physicians suddenly took
a new meaning.
Thus this flawed prosecution from its inception was corrupted with perjury, alleging facts without any evidence to support the wild allegations stemming from unscientific, bigotry and ignorance prosecuted by deputy district attorney R. Saunders and the Escondido Police Department investigators and police officers. The medical evidence presented through fourteen distinguished physicians would have left no doubt that the charges were bogus, not supported by scientific evidence. The court, however, abandoning his judicial role as a neutral detached magistrate, refused to allow the doctors to testify as to their medical reports of their medical findings of the physical condition and medical problems of the infant twins. Some of the physicians’ testimony would have been limited to offer a detailed explanation of the medical problems associated with premature birth and their hospitalization until March 10 for Isabella and April 12, for Gabriella. The children were safe, nurtured, cared for, and well attended by doctors, nurses and other personnel. For the prosecutor to allege that during those days the children were in the hospital is a wild, preposterous, groundless allegation made in bad faith by R. Saunders and other cohorts from his office. Despite being asked by defense counsel to provide the name of the deputy district attorney who made such baseless accusation, R. Saunders, following a code of silence in protecting the fabricator of falsehoods, he has maintained a steadfast silence of iniquity.
On the day of hte preliminary hearing, three different attorneys appeared in court in department 12, where the case had been assigned to hear the preliminary hearing. Attorneey Lauren Hardisty appeared on behalf of doctors John Naheedy, Deborah Mills, Sharon Sternfield, Stephen Schneider and Dr. Leslie McCormick. Deborah Mills is a nurse practitioner. For Dr. Susan Duthie, and Shawna Siebold Jonna Lothyan appeared. Samantha Foulke apeared for Michelle Mayfield, and Jane Lennon appeared for Drs. Golembesky, Nabil Fatayerji, Charles Sauer, Yu Tsue Cheng, Sarah Judd, Brian Williams, Dr. Kamala Vaidya, and Andrew Skalsky.
The doctors requested the court not to allow the doctors to testify because they were taking care of other patients, running the hospitals and the doctors would lose money if they were compelled to testify througout the hearing. The court agreed with the doctor’s petitioners thereby denying the defendant the right to subpoena witnesses to presetn affirmative evidence on behalf of the accused. The court instead, in agreement with the district attorney, agreed that all of the docctors’ medical reports would be admissible as evidence that there was no medical scientific evidence of child abuse or neglect from the day of their birth until the evening of October 7, 2014.
The Court: Ms. Hardisty, so why are you here? Are you asking the court to take some action?
Ms. Hardisty: Yes, well, we would request that our doctors not have to personally appear. Essentially it’s a hardship on the practice. It is going to cost the practice a lot of money. These are physicians. They have busy schedules They have patients that they need to see. (Tr. p. 10, lines 9-13). The court inquired of Ms. Lennon who gave similar reasons why the court should dispense with the requirements that the doctors show up and testify in court. The court inquired of attorney Lothyan about the doctors she represented.
The court inquired the d.a. R. Saunders. “The father was with one of the girls; count one, Isabella. He had her by himself in that room. Then he left for work. Mom cane in. That daughter, that child was unresponsive, to a certain level. L
ow level of responsiveness. I should say. She was still conscious.
They happened to have a pre-planned wellness check that morning. So mom waited to take her there. The doctor immediately said you need to take her to Rady right now. She was examined by the Child Protective Team. They determined she had a subdural retinal hemorrhaging, bilateral retinal hemorrhaging. (Tr. p. 13, lines 1-6, page 12, 12-28). None of the medical descriptions provided in the medical reports agrees with the d.a.’s description of the injuries, as “retinal hemorrhaging.” “But again, she had bilateral retinal hemorrhaging.” (Tr. 13, lines 20-22). The term retina refers to a part of the eye. It has nothing to do with anything. But telling the truth is not the D.A.’s strong points.
Defense counsel offered an offer of proof why the doctors’ testimony was needed:
“And the reasons why I need these doctors is that the doctors are expert pediatricians who know their profession. They are outstanding doctors. The cream of the cream of the medical profession, these doctors in the United States. They prepare reports of their observations, of the physical exam of their conclusions, and they did not find a shred of evidence of physical abuse on the children. This will totally impeach and discredit the People’s allegation that Mr.havez committed crimes on these dates or the span of the dates.” (Tr. p. 20, lines 10-16).
When the court offers defense counsel to stipulate that the medical reports come into evidence, defense counsel explicitly defines the condition of the stipulation:
“I will stipulate that–well, I prefer to have them come here to tell Your Honor precisely, with the stipulation. But to add that thet are familiar with noticing evidence of child abuse or neglect and they found nothing, absolutely nothing on the twins.” (Tr. p. 41, lines 1-5).
Other stipulations followed with similar words:
Mr. Lara: Well, does the stipulation include that the findings made by Sharon Sterfiled show no sign whatsoever of child abuse or neglect? (Tr. p. 42, lines 20-22).
The Court: I think Mr. Saunders has stipulated to everything that’s in the reports, right?
Mr. Saunders: Absolutely. (Tr. p. 42, lines). I haven’t had a chance to review Mr. Lara’s Exhibit 3 up there, but I bet, after I take a look at that, I would be willing to stipulate that there was no findings of abuse up until the date that it was reported on October 7, by any other doctor. (Tr. p. 43, lines 1-3).
In reference to Dr. Leslie McCormick, the court stated: She is their treating–she is their family practitioner; she’s the one who treats them all the time, correct?
Mr. Lara: correct
The Court: And she saw them on October7. So are you okay with that?
The Court: So we can release Dr. McCormick?
Mr. Lara: May I point out that the People page 49 of this report, that we hae stipulated to. This is the reort on Gabriella dated 10-7-14, and here findings.
The Cour: You are stipulating to the admissibility of that report, correct, Mr. Saunders?
Mr. Saunders: yes, Your Honor, and everything in it. (Tr. p. 52, lines 6-28).
Dr. Susan Duthie’s medical reports was likewise admitted into evidence by stipulation.
(Tr. p. 73, lines 20-22).
DEGREE AND EXTENT OF STIPULATIONS B
The Court: So are you willing to stipulate to the admissibility of that report and then, that will satisfy their testimony? (Referring to the medical reports by Dr. Sternfeld and Deborah Mills. ( p. 41, lines 6-17).
Mr. Lara: Yes.
In Deborah Mills report she stated that on May 9, 2014, she examined Gabriella and concluded after her wellness examination that the child was “well developed, well noourished and no apparent distress and no sign of abuse and neglect. The child had full range of motion and no asymmetry or deformity, normal motor reflex, good muscle tone and good grasp. (Tr. p. 28, 29).
On May 23rd, 2014, she again conducted a wellness examination and noted in her report that the child’s medical history included congenital gastroschisis, preterm birth anemia of prematurity and hemangioma. Included in the stipulation to admit the medical reports is the report written by Sharon Sternfeld dated July 18, 2014, who wrote that the child (Gabriella), was hospitalized between July 13 and July 16 for pertussis pneumonia with impetigo after hand and foot and mouth disease. The general findings were that the patient was, “well developed, well nourished, alert, non-toxic, no increased work of breathing. Her skin was showed hemangioma on back, drying pustule on chin and dry plaques and papules on chest and back, no petechiae. On page 37, of this report, the doctor noted, “complicated twins with more than one infection.” page 37. “Impetigo improving with no more pustules but many dry plaque, looks like eczema, will try topicals but also thinking could be milk sensitive, will consider increased calorie of nutragen if not better next week..”
On August 4, 2014, Dr. Stephen Schneider authored the following “report on Gabriella, which became part of the stipulation: “Patient active problem list: Gastroschisis, preterm newborn, congenital gastroschisis, contact dermatitis, acute respiratory distress, PNA, rash. Gneeral: well developed, well nourished no apparent distress and no sign of abuse or neglect.
On September 9, 2014 Dr. Stephen Schneider performs a wellness examination on Gabriella and, among other findings, notes that she is well developed, well nourished, alert, and non-toxic.
On October 7, 2014, Dr. Lesllie McCormick writes that, “two days ago, she was vomiting. She was taken to PMCER, an X ray was done showing constipation. No fever, she is now keeping the formla down and has had softer BM’s she and her sister has multiple bloody transfusions abrasions around nose and mouth. Mom reports that they have beeb treated for eczema and impetigo. Sister is lethargic this morning.” Page 47 of medical records. D. McCormick concludes among other things, that the child is “well developed, well nourished, no apparent distress and no sgin of aguse or neglect. Head: symmetric, Fontanel, anterior fontanel open and flat. Eyes: attends to strabismus sclerae white, pupils, equal and reactive, red reflex, normal bilaterally. (Page 49) Neuro: strength normal and symmetric, tone, normal grasp, normal.
The stipulations as to Isabella admitted by agreement and its findings accepted as true for purposes of this hearing, and its terms respected. On May 9 2014, Isabella, the twin sister, was examined by Deborah Mills and concluded among other findings the following:
“General: well developed, well nourished, no apparent distress and no sing of abuse or neglect. Fontanel, open and flat. Neuro, alert, normal moves all 4 extremities. Spontaneously.normal motor reflex. Good muscle tone and good grasp.” (Pages 68 and 69 of medical report.)
On May 23rd, she wrote: “Mom was wondering if it is normal for patient’s bones to crack when picking up the child.” (Perhaps Deborah Mills should have asked if the cracking of the bones follows mom’s spanking the child).
On July 18, 2014, Dr. Sharon Sternfeld noted the following items in her report:
“Preterm newborn, gestational age 34 completed weeks, feeding problem of newborn, pertussis, RAD (reactive airway disease. (Page 74 and 75). Dr. Sterfeld added: “Well developed, well nourished, alert, no increased work of breathing, Skin: linear excoration on chin, scattered dry paples (sic), on chest, abdomen, legs, no petechiae. Head: normocephallic, atraumatic Neuro: alert and appropriate.
In her report of August 4, 2014, Dr. Stephen Schneider after concluding his wellness examination, wrote: “Well developed, well nourished, no apparent distress and no sign of abuse or neglect: eyes: attends no strabismus, sclerae white, pupils equal and reactive, red reflex bilaterally. Neuro: aleret, moves all 4 extremities spontaneously, good muscle tone and good grasp.
On September 9, 2014, Dr. Leslie McCormick wrote in her report: “Today she has been sleepy. She will startle herself then cry. Nasal congestion for 2 days. No fever, vomiting, diarrhea. She has taken very little this mornning. She definitely prefers to sleep, when touched, or with noise, she will just startle and cry, then, return
to sleep. No known injuries. Both have areas areas of facial excoriation ad bleeding, small areas of bruising. They have been diagnosed with eczema and impetigo. Well developed, well nourished, sleeping with hed turned left. Skin, facial excoriations around nose and moth without surrounding redness, small superficial lacerations around mouth. Eyes: will not attend. Sclerae white, pupils equal and reactive, red reflex. Head: Plagiocephaly, Fontanel: Anterior fontanel open full. Neuro: Poorly responsive, lethargic, cries with stimulation.
C. DR. PREMI SURESH’S TESTIMONY SHOULD BE STRICKEN FROM THE RECORD’ HER OPINIONS ABOUT CHILD ABUSE ARE CONTRADICTED AND IMPEACHED BY THE MEDICAL REPORTS BY ALL OTHER DOCTORS WHOSE MEDICAL REPORTS HAVE BEEN ADMITTED INTO EVIDENCE.
The Child Protection expert, Dr. Premi Suresh, was described by R. Saunders as the “lead,” care provider for the infant twins. The evidence flushed out at the preliminary hearing, speak a different picture. (“Dr. Suresh was the lead in it. She was the treating physician. She reviewed everything,” R. Saunders, tr. p. 14, 15, lines 28, 1, respectively). The D.A. quotes the Dr. Lesllie McCormick. “The doctor immediately said you need to take her to Rady right now. Nowhere in the medical report stipulated by the parties are those words cited by R. Saunders. Such allegation is another fabrication by the D.A. The stipulation agreed to by the parties do not contain the inappropriate terms invented by R. Saunders about “subdural retinal hemorrhaging.”(p. 7, line 4).
The stipulated medical reports do not list Dr. Premi Suresh as the primary treating physician. She was listed as the child abuse expert who misinterpreted the prior medical hisotry and her opinions about the condition of the children are contradicted by the expert reports written by Dt. Leslie McCormick, who was a treating physician and treated the twins. Dr. Suresh’s report was not stipulated to by the parties, unlike the medical reports written by twelve other doctors whose reports were admitted by stipulation
D/ THE PEOPLE’S FELONY COMPLAINT UPON WHICH THE PRELIMINARY HEARING UNFOLDED, CONSTITUTES A CRIME FOR PERJURY.
The Peoples complaint was filed under penalty of perjury. The allegation made that Azael Chavez physically abused his children or placed them in a dangerous situation while they were hospitalized is nothing if not a fictitious allegation made without any basis.
Ryan Saunders in open court explains to the court the reasons why the People filed a false complaint based on a falsehood. “I have explained to him that in cases like this, when injuries arise, we pick a range because we don’t know exactly when injuries occurred. (Tr. p. 35, lines 13-15). The People make an astounding admission of wrongdoing. When the prosecutors do not know when the injuries occurred, they cover their basis and invent, make up, fabricate dates to suit the People’s case. Perhaps the injuries happened when he was working in his construction job, and the children were under the spanking mom. According to the People’s theory, the injuries could have happened on April 1, 2, 3, 4, up until the 12th of April as to Gabriella. While the injuries to Isabella could have happened sometime during the time Isabella was hospitalized on March 1 up until March 10. That’s a creative falsehood. The People fabricate, make up and invent a llie withou no consequences for their despicable practice. The People’s custom and havbit of fabricating evidence and filing false charges is a reprehensible, unethical, and an insult to the intellligence of the court. One doubts whether courts possess any intelligence to be tweaked because when this issues are raised to them in court, the courts do not even yawn.
It is the poor, uneducated, unsophisticated people like Mr. Azael Chavez who suffer the consequences of a reckless prosecutor, whose moral spine is absent. He would make a greate Nazi soldier following orders with the obedience as only mindless bureaucrat can follow.
1. CHARGING DOCUMENT FAILS TO STATE A PUBLIC OFFENSE.
The complaint against Azael Chavez was filed on October 10, at around noon on the date
of his arraignment. The Public Defender office represented him at his arraignment. It was
probably an oversight committed by the deputy public defender in charge not to have taken
a closer look at the complaint to notice that the language in the felony charges alleging violation
of Cal. Pen. Code 273a (a), do not conform to the language found in the official California Penal
Code book.
Defendant requests the court to take judicial notice of the complaint found in the court
file dated October 10, 2014, whose language differs significantly from the official California
Penal Code 273a (a). People’s complaint contains the adverbs, “willfully and unlawfully, which are not found in the official description of the statute in question. The People’s terms in the second sentence read: “under circumstances likely to produce great bodily harm and death.” The official report states: “under circumstances likely to produce great bodily harm or death.”
The People’s complaint has replaced the term, “or” and instead, has replaced it with the conjunctive, “and.” The official report uses the adverb, “willfully,” three times. The People’s complaint has omitted the term once. The omission of a mental state radically changes the mental state requirement in the official statute and the impermissible change proposed by the People is an aberration. The problem cannot be resolved due to the complex jury instructions that have to be drafted to conform to the language of the statute
As can be inferred from comparing the People’s hodge-podge complaint and amended complaint illegally drafted and proposed by the court without legal authority for defendant to plead, a perjurious document, the complaint is defective and substantially differs from the official statute. In addition, the People’s allegation that the alleged crimes were committed sometime in the span of 217 days, from March 1, through October 7, 2014, imposes an impossible burden on the defendant to account for every day contained within that span of time. The task of attempting to account for every day required defendant to subpoena of fourteen doctors who treated at some time or another the premature twins. Their reports supported the defendant’s contentions that no sign of abuse or trauma was ever detected during the time the prosecution contended, and defeated the People’s and the Escondido Police investigators argument that the children suffered any abuse during those days.
The second part of defendant’s ground for demurrer is contained in the allegation stated
in counts 1 and 2. Count one alleges that between March 1, and October 7, Azael Chavez, “did willfully and unlawfully, under circumstances likely to produce great bodily harm and death, ..etc”, The People’s deputy contended in its factual allegations filed under penalty of perjury of material facts, all along from the date of the filing of the complaint until June 9, 2015, in asserting that Azael Chavez had committed such horrendous crimes. The truth is that from March 1, through March 10, 2014, Isabella remained at a hospital where she was receiving medical care resulting from her premature condition at birth. Gabriella, the People alleged, was physically abused, during the time she was interned at Rady Children’s Hospital while she received medical treatment. Thus, the People’s deputy engaged in a material misrepresentation of material fact in making reckless allegations, in utter disregard for the truth.
During the preliminary hearing held on June 8 and 9, 2014, the court suggested to the People that the complaint should be amended and the court proceeded to improperly amend the complaint. The proposed complaint further complicates the People’s abusive, malicious falsehoods as further follows:
2. THE COURT PROPOSED “AMENDED COMPLAINT,” TO CHANGE DATES WITHIN
WHICH THE CRIMES WERE ALLEGEDLY COMMITTED, IS IMPROPER, VOID ON ITS FACE AND SHOULD BE DISREGARDED. Cal. Pen. Code §1009.
The court proposed amended complaint is flawed from its inception. It was at the court’s own initiative, not the deputy district attorney’s motion, that the idea of amending the complaint originated. The Court’s initiative in taking sides and helping the district attorney puts into question the judicial integrity of the magistrate, aside from other questionable conduct. Secondly, the amendment may only be properly done without leave of court at any time before the defendant pleads. Since the defendant had already entered a plea of not guilty at his arraignment, the prosecutor was barred from filing an amended complaint. The court during the preliminary proceeding never made any findings on the record that the original complaint was defective, or insufficient in order for the amended accusatory pleading could be legally allowed to be filed. Had the court properly acknowledged that the complaint was fatally defective or insufficient, as pointed out by defense counsel, then, and only then, could the court properly allow an amended accusatory pleading, and defendant would have been forced to enter a plea. However, that event did not take place. Substantial rights of defendant would have been compromised, such as the right to present affirmative evidence through competent expert medical witnesses who had been subpoenaed to testify that from the date of the discharge the treating and examining physicians did not find any evidence of child abuse or neglect.
Furthermore, Cal. Pen. Code §1009 states that, “An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint.”
The amended complaint attempts to change an offense which was defective from the beginning in its defective language at odds with the formal statutory language found in the California Penal Code 273 a (a), and includes dates withing which overwhelming medical evidence establishes beyond doubt that treating physicians did not find any evidence of child abuse or neglect from the date of their discharge until the morning of October 7, 2014.
3. THE PEOPLE’S ORIGINAL COMPLAINT CONTAINED FALSEHOODS, AND MISREPRESENTATIONS, AND THE ENSUING PROSECUTION WAS TAINTED,
CORRUPTED, OPPRESSIVE, AND DETRIMENTAL TO THE RULE OF LAW.
The People’s false and malicious allegation that Azael Chavez during the time that the
infant prematurely born twins took place during the time they were being treated at the hospitals is based on lies, falsehoods, and misrepresentations made to the court in utter disregard for the truth. The complaint filed on October 10, 2014, at around 12:06 was filed under penalty of perjury by an unknown deputy or felony supervisor from the District Attorney’s Office. The allegations made in the charging document come within the criminal definition of Perjury, Cal. Pen. Code 118. Yet, the flawed prosecution remains above the law, unfazed by its brazen and shameless trampling on the truth. Because the prosecution’s obstreperous pursuit of a malicious and corrupt prosecution of an innocent man based on lies, and misrepresentations of fact, defense counsel was confronted with the task of bringing the truth to the court by way of competent and professional witnesses, the doctors themselves who treated the unfortunate children while they were interned at the hospitals. Fourteen doctors were subpoenaed from Rady Children’s Hospital. All of the doctors treated the children in one manner or another at different dates.
All had written reports about their findings, and conclusions Not one of the doctors who had been subpoenaed found any evidence of child abuse. Dr. Premi Suresh, a Child Protection Team leader, was the exception. She had been subpoenaed by the People and at the last minute the People declined to call her as a witness. Defense counsel did subpoena her only because the People had indicated they wanted her to present her testimony.
Three attorneys appeared at the preliminary hearing and pleaded with the court on behalf of the subpoenaed physicians that the doctors’ time was precious and they were needed in order to attend people in need. Defense counsel made an offer of proof as to the testimony of the doctors. The doctors would testify that they were well trained, professional doctors, that they at one time or another during the dates of the alleged crimes took place, March 1, 2014 through October 7, 2014, for Isabella, and April 1, through October 7, 2014, for Isabella, the children were being treated at the hospitals, and therefore could not possibly have been victims of crime during the dates of March 1, through March 10 for one and from April 1, through April 12, for the other, and that for the rest of the time spans, at least a dozen doctors and other medical technicians who treated the infants did not find any sign of abuse or neglect. The Court’s proposed amended complaint contradicts the stipulated agreement between defense counsel and the prosecutor that he medical records admitted into evidence by agreement showed no evidence of abuse or neglect. Unless an amended complaint reflects the evidence agreed to and the complaint contains legally appropriate language form the California Penal Code, nothing else will correct the defects.
The defense and the prosecution stipulated that between the relevant dates as described above, the medical records did not contain any findings of abuse or neglect. In the afternoon of October 7, 2014, a CAT scan showed that Isabella, was found to have “chronic subdural hematoma.” Dr. Suresh concluded that, in her opinion the findings was suspicious for NAT. (Not accidental trauma).
Notwithstanding the stipulation that medical records consisting of several hundred pages did not contain any evidence of physical abuse on either of the infant twins, the Court on its own motion, ignored the relevant dates, and continued to stick to its discredited dates that physical abuse took place on (amended dates) of March 10 through October 7, 2014 for Isabella and
April 12, through October 7, 2014.
Given the procedural defects in this malicious prosecution propelled by bad faith, perjury, falsehoods,