Opinion
D055916 Super. Ct. No. SCN196581
09-01-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE CASTANEDA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed as modified.
A jury convicted Jose Castaneda of first degree murder of Cesar R., the two-year-old son of his live-in girlfriend Maria R. (Pen. Code, § 187, subd. (a)), and found true the special circumstance allegation the murder was intentional and involved the infliction of torture within the meaning of section 190.2, subdivision (a)(18). The jury also convicted Castaneda of assault on the child resulting in his death (§ 273ab), torture (§ 206), and felony child abuse (§ 273a, subd. (a)). The jury further found Castaneda had personally inflicted great bodily injury on a child under age five (§ 12022.7, subd. (d)). The jury also found him guilty of misdemeanor child abuse of a separate victim, Dulce R., the sister of Cesar, but acquitted him of two other abuse charges regarding Dulce. (§ 273a, subd. (b).)
All further statutory references are to the Penal Code unless noted otherwise.
Section 206 provides that a person "who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture."
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In the penalty phase, the jury failed to reach a unanimous verdict, and a mistrial was ordered. After the People declined to retry the penalty issue, the trial court sentenced Castaneda to life without parole (LWOP) for the torture murder, and life for torture. The trial court stayed the sentences on his remaining felony convictions (§ 654) and sentenced him to one year in jail, consecutive, for his misdemeanor conviction.
Castaneda appeals. He contends (1) the trial court prejudicially misinstructed the jury by refusing to give requested defense pinpoint instructions on the appropriate weight to be given the evidence of the severity of the injuries inflicted, with respect to any intent to torture; (2) the trial court prejudicially erred in refusing to instruct the jury with another requested pinpoint instruction regarding motive or proof of potential third party culpability of Maria or her mother; (3) there was insufficient evidence supporting either the torture murder conviction or the special circumstance finding; and (4) cumulative error affected the judgment. Finally, he contends the LWOP term reflected in the abstract of judgment for count 3, torture, was unlawful and the term should be reduced to life, which the People concede. (§ 206.1 [penalty for torture is life imprisonment].)
We concur with the People's concession that the term imposed for count 3 in the abstract of judgment (LWOP), must be corrected to the life term stated by the sentencing judge, and modify the judgment accordingly. The remainder of Castaneda's contentions have no merit, and we affirm the judgment as so modified.
I
BACKGROUND FACTS
When Castaneda began living with Maria R. in October 2004, her family from a previous relationship included her four-year-old daughter Dulce and her one and one-half-year-old son Cesar. Maria had argued with her mother, Matilde, and left home. Maria, the children, and Castaneda (sometimes called Mauricio) took up residence in one bedroom of a two-bedroom apartment, where they usually kept the door closed. Another family, Luisa S. and Alvaro G. and their children, occupied the second bedroom. Castaneda worked during the day doing yard work.
As a rule, Castaneda, Maria, and Dulce slept on the bed, and Castaneda told Maria to keep Cesar in the closet when he was around, and Cesar would cry there. From late 2004 until June 25, 2005, Castaneda physically abused Cesar, Maria and Dulce, using a cable cord, a belt, and broken plastic hangers. Castaneda often beat Cesar for crying, for other reasons or for no reason, while Maria and Dulce did other things, believing he would hit them if they objected. When using the cable cord, Castaneda would make loops in the cord and hit Cesar very hard, "everywhere," including his genitals and eyes. He hit Cesar "a lot in his belly." Cesar often bled and vomited on his clothes.
When Cesar cried in the closet, Castaneda hit him until he bled. Castaneda beat Cesar when he wet himself or when Castaneda thought Maria was spoiling him with hugs. Castaneda punched Cesar with a closed fist in his head and stomach, pulled his ears until they were marked and bleeding and kicked him. Cesar did not cry very loudly, and Castaneda kept the radio on at high volume, so that the neighbors could not hear what was going on.
While doing yard work, Castaneda stole a video camera from his employer's home. Around March through June 2005, Castaneda took several videotapes of Cesar, narrating them and addressing the grandmother. A week before Cesar was killed, Castaneda filmed Cesar naked. He zoomed in on some of his wounds, front and back, and told Cesar to lift his chin, which revealed there were scabs on his neck. Castaneda asked Cesar if Matilde hit him. Cesar had scars and bruises on his body. On his face was a bite mark and his left eye was red and puffy. Loop-shaped welts were visible on his belly. In an undated portion of the video, Castaneda pulled on Cesar's ear, which resulted in Cesar crying. Castaneda then told Maria not to let the boy out of the room or she was going to catch hell. That spring, Maria slept a lot and eventually wrote a suicide note and cut her wrists, and Castaneda found her and cleaned her up.
Beginning in late May of 2005, Castaneda was working nights as well as days. Maria took Cesar out of the closet when Castaneda was not there, but returned him there when Castaneda returned. On June 25, 2005, Castaneda came home in the morning from a night job, and left again for a day job. Maria went out to look for a job and then returned. When Castaneda came home from the morning job around 1:00 p.m., he cleaned up and ate. He had asked his employer for a raise, but was told the employer could not do it. Castaneda lay down to rest, and Cesar began whimpering. Castaneda told him to stop crying, and when Cesar did not, he bit his face, whipped him all over with the cable cord, threw his body against the wall, kicked him, punched him in the stomach and head, and kept choking him. Castaneda kept choking Cesar until Cesar stopped moving. When Cesar went limp and could not be revived, Castaneda and Maria put him in the bathtub and tried to awaken him using pieces of onion and rubbing alcohol, which they obtained from the neighbor.
Maria said they should call an ambulance, but Castaneda did not agree. He suggested throwing the body in the garbage, but Maria refused. After a while, they took Cesar to the hospital. Castaneda told Maria to tell the hospital staff that Cesar fell from a swing, which she did.
Emergency room personnel said Cesar seemed dead on arrival, and his body was "just covered from head to toe with bruises and marks . . . at different stages of healing." The doctor thought Maria did not seem as upset as some mothers would be under the circumstances. She suspected child abuse and was required to report it. A 20-minute effort to revive Cesar was unsuccessful, and he was pronounced dead. Castaneda started to leave, but hospital social workers called security and police, and both adults were arrested that afternoon. Dulce was turned over to child welfare authorities.
Pursuant to a search warrant, a police detective and evidence technicians searched the family's bedroom that night and found a large yellow cable cord in the closet. It had a three to four-foot loop at one end and was found to have Cesar's blood on it. A broken hanger was also found in the room. Cesar's clothes, covered with blood and vomit, were found in a bag. Cesar's blood was on the closet's door track, carpet, and drywall and on the bathtub. The stolen camcorder and tapes were in the closet in a bag containing martial arts supplies.
II
PROCEDURAL HISTORY
Both Castaneda and Maria were charged with murder and torture of Cesar. Child abuse of Dulce was also charged. Originally, the People sought to prove a felony murder theory against Castaneda, but did not pursue that alternative felony murder argument throughout trial.
Eventually, Maria pleaded guilty to voluntary manslaughter and two counts of felony child abuse causing great bodily injury. She agreed to serve a prison sentence of 16 years eight months, to be deported, and to testify truthfully at Castaneda's trial.
Maria testified extensively about how Castaneda started beating Cesar around December 2004, more and more until his death in June of 2005. She said that Castaneda was upset at her and jealous when she gave Cesar too much attention or hugs, and Castaneda hit her if she did not do what he wanted. Castaneda often hit Cesar and Dulce with his hand, a belt, the cord, and a hanger. When he was there, Castaneda did not allow Maria to take Cesar out of the room, or usually out of the closet. Matilde told Maria she wanted to take the children away because she did not think they were being properly cared for, which upset Maria. Maria did not leave because she had nowhere else to go.
The day of the killing, Maria testified Cesar cried, so Castaneda bit him and then began hitting him all over his body, with the cable cord, a hanger, and his hands. For 20 to 30 minutes, Maria and Dulce watched television while Castaneda whipped Cesar with the cable cord. When Cesar moaned and seemed to be hurt, Castaneda hit him harder. Castaneda threw Cesar, slamming his head against the wall, and then kicked him. Castaneda choked Cesar until he was no longer moving. Maria did not know why she did not try to stop Castaneda from beating Cesar. She testified that neither she nor her mother inflicted the injuries shown in Cesar's autopsy photographs.
In Dulce's testimony at trial, she described how Castaneda abused Cesar on an ongoing basis and one day, killed him. In transcripts of her two interviews with a forensic social worker, conducted days after Cesar died (and admitted into evidence), she explained Castaneda treated them all "very ugly." He locked Cesar in the closet and made him sleep and eat in the closet. Castaneda hit her, Cesar, and her mother "a lot." Maria hit or spanked both children. Castaneda choked Dulce and Cesar, and hit them with the cable cord, his belt, and hangers. Castaneda told Dulce not to tell or he would hurt her.
Other witnesses at trial included the residents of the other bedroom in the apartment (Luisa and Alvaro), and their visitor, Alvaro's brother Eduardo. Luisa saw Cesar in the closet one time, while the other family members were in the dining room and the bedroom. Luisa asked Maria about bruises that she saw on her and on Cesar, but Maria said they were just playing around or had sensitive skin. Luisa and Eduardo each testified that the last time they saw Cesar, a few weeks before his death, he seemed to be thinner and sadder than he had been when he first moved in. Eduardo was at the apartment on the day Cesar died and did not hear any banging or yelling.
Maria's sisters and Matilde testified, as did the investigating police officers. Castaneda's martial arts instructor testified that Castaneda had learned some dangerous moves in martial arts classes, including throat strikes, but sometime in 2004, Castaneda was barred from class for losing control and angrily hitting other students too hard during sparring. The videotape Castaneda made of Cesar was shown to the jury and a transcript provided.
At trial, autopsy evidence revealed that Cesar's body displayed over 350 external injuries in the form of bruises, abrasions, and "patterned" marks (U-shaped or lined contusions). The medical examiner determined that most of Cesar's external injuries were recent, inflicted within two or three hours of his death. He had approximately 233 recent injuries, 52 healing injuries, and 69 scars. The injuries to his face included a recent bite mark on his right cheek, consistent with being bitten on the day he died, and an earlier bite mark on his left cheek. Cesar's injuries extended to his genitalia, which showed deep bruises and recent linear marks on his penis and the upper and lower sides of his scrotum, consistent with being exposed and hit with a cable cord or hanger.
The postmortem examination revealed that Cesar's skull was fractured, consistent with his being thrown against a wall and hitting his head. His liver and colon were lacerated. The deputy medical examiner concluded Cesar's death was a homicide, with the cause of death described as a combination of abdominal and head injuries.
Castaneda was 24 years old at the 2009 trial, and testified in his own defense. He came from Guatemala to this country when he was 13, to help his mother, who still lived there. He denied hitting Maria, Dulce, or Cesar, and instead said that Maria and/or Matilde hit Cesar, and/or that Cesar fell in the bathroom or from a swing. He said he took the videos for the purpose of showing police that others were hitting the child. When asked to explain why Maria, Dulce and Cesar all had looped or U-shaped marks on their bodies from being hit with the cable cord, while he did not, he was not sure.
On the day Cesar died, Castaneda said he found him unconscious on the bed, and heard Maria say it was her fault. He gave several conflicting stories to the police about his own age, where he lived, and what happened to Cesar, saying Cesar fell from a swing or from some stairs, while Maria was watching him. He told police his only mistake was taking Cesar to the hospital for help.
Castaneda presented expert testimony from an expert on children's memories and from an anthropology expert on the Mayan culture in Guatemala, Castaneda's native country. Child abuse is not known to occur in the Mayan culture: "They don't treat children that way." In argument, defense counsel told the jury that Castaneda would have had no motive for intentionally planning to hurt Cesar, and neither would Maria, but rather this must have been a case of circumstances getting out of control, which would justify a finding of a lesser degree of culpability.
At the close of testimony, jury instruction proposals were heard and conferences held. The trial court refused to give several requested defense pinpoint instructions about the effect of evidence about severity of injury in torture murder cases, and about third party motive and culpability evidence. Standard and adapted CALCRIM instructions for the various charges were given. The jury returned verdicts convicting Castaneda of all charges, except for two child abuse counts as to Dulce.
After the penalty phase was mistried, the court imposed a sentence of LWOP on the torture murder count, noting that the evidence of torture was "overwhelming." Another life term was given on count 3, torture. The court also imposed a term for assault and a separate consecutive term for the child abuse conviction regarding Dulce. Appropriate stays on the other terms were ordered under section 654. Castaneda appeals.
III
INSTRUCTIONAL ERROR CLAIMS
A. Applicable Standards
Castaneda first contends the trial court prejudicially erred when it refused to instruct the jury with several proposed pinpoint instructions, on (1) the proper weight to be given to evidence about the severity of Cesar's wounds, and (2) potential third party culpability for his death. We first set forth rules of review, then address each theory of instructional error separately, by considering all relevant circumstances. These include the instructions in their entirety, the trial record, and the arguments of counsel. (See People v. Kelly (1992) 1 Cal.4th 495, 525-526.)
We review de novo claims that a trial court has failed to properly instruct on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) In doing so, we ascertain the relevant law and then " 'determine the meaning of the instructions in this regard.' [Citation.]" (Ibid.) The test for judging the adequacy of instructions "is to decide whether the trial court 'fully and fairly instructed on the applicable law. . . .' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]" ' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (Id. at pp. 1111-1112.)
It is the trial judge's function to facilitate the jurors' understanding of legal principles they are charged with applying, "by any available means." (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.) The trial court should allow pinpoint defense instructions that focus on issues highlighted by the theory of defense, if they "constitute accurate statements of law." (Id. at pp. 256-257.) The court may, however, "properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30 (Moon).)
Although a defendant generally has a right to a pinpoint instruction on a particular defense theory (People v. Earp (1999) 20 Cal.4th 826, 886), "instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories 'is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.' [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 570(Wharton).)
B. Asserted Error: Pinpoint Request on Severity of Injury
1. Background
Under section 189, torture murder is first degree murder. " ' "Torture murder is 'murder committed with a wilful, deliberate and premeditated intent to inflict extreme and prolonged pain.' [Citations.]" ' [Citations.] Such intent, considered sufficiently culpable to warrant punishing the perpetrator for first degree murder, is the calculated intent to cause pain for ' " 'the purpose of revenge, extortion, persuasion or for any other sadistic purpose.' " ' [Citations.] 'However, there must be a causal relationship between the torturous act and death, as Penal Code section 189 defines the crime as murder "by means of" torture. [Citation.]' [Citations.]" (People v. Proctor (1992) 4 Cal.4th 499, 530, italics added.) Thus, the elements of torture murder are (1) a killing of a person by another, (2) intent to inflict extreme and prolonged pain on that person for revenge, extortion, persuasion, or any sadistic purpose, and (3) a causal connection between the torturous acts and the victim's death. Notably, "a defendant need not have any intent to kill to be convicted of this crime [citation], but he or she must have the defined intent to inflict pain." (People v. Steger (1976) 16 Cal.3d 539, 546 (Steger).)
Section 190.2, subdivision (a)(18), sets forth a special circumstance when murder is intentional and involves the infliction of torture. This special circumstance differs from the first degree offense of torture murder in that it, unlike torture murder, requires the additional intent to kill. Moreover, the special circumstance, unlike torture murder, does not require a causal connection between the torturing acts and the death. (People v. Crittenden (1994) 9 Cal.4th 83, 142 (Crittenden).) Common to both the special circumstance and torture murder is the specific intent to torture the victim. As with torture murder, such "intent is a state of mind which, unless established by the defendant's own statements (or by another witness's description of a defendant's behavior in committing the offenses), must be proved by the circumstances surrounding the commission of the offense [citations], which include the nature and severity of the victim's wounds." (Id. at p. 141.)
The trier of fact must look to the totality of the circumstances of the offense, the nature of the killing, and the condition of the body, to determine whether the defendant intended to purposefully inflict extreme and prolonged pain for some sadistic purpose. (People v. Raley (1992) 2 Cal.4th 870, 888.) Such circumstances can include consideration of the severity of the victim's wounds, but "undue weight" ought not to be given such evidence, because heat of passion murders can likewise result in severe injuries. (Ibid.; Steger, supra, 16 Cal.3d at p. 546; People v. Pensinger (1991) 52 Cal.3d 1210, 1239 (Pensinger).)
2. Contentions and Instructions
In the present case, Castaneda's request took the above language from case law, to warn the jury against giving "undue weight to the severity of the victim's wounds," because his defense (in addition to third party culpability; see Pt. III.C., post)was that the beatings amounted to sudden explosions of violence, or misguided efforts at discipline, and the overall circumstances did not show he had any intent or motive to torture the child. His counsel argued neither parent figure had any motive to kill or harm. From Castaneda's point of view, the nature of this killing was consistent with a lack of any calculated planning on his part, and the infliction of lethal force that killed Cesar did not qualify as torture. Castaneda argues he had no intent to cause particular pain, and if the jury had been properly instructed, the verdict would have reflected a lesser degree of culpability. He further contends that the trial court had a duty to correct his proposed instruction, if it were not satisfactory. (Wharton, supra, 53 Cal.3d at pp. 569-571.)
At trial, the court instructed the jury pursuant to CALCRIM No. 521, which includes the elements of murder by torture, as set forth above. This instruction explained in standard language the definitions of "willfully, deliberately, and with premeditation." For this count, it explained that "[a] finding of torture does not require that the defendant intended to kill." (Ibid.)Further, the jury was told in this instruction that "[s]omeone acts with a sadistic purpose if he or she intends to inflict pain on someone else in order to experience pleasure himself or herself." The instruction next stated, "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime." (CALCRIM No. 521.)
Next, in CALCRIM No. 733, the jury was told that proof of the special circumstance of torture murder required the People to show there was: (1) an intent to kill; (2) an intent to inflict extreme physical pain and suffering; (3) for a calculated purpose of revenge or another sadistic reason; and (4) the defendant actually inflicted such extreme physical pain and suffering.
Another pertinent instruction given on motive or intent was CALCRIM No. 370: "The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." " 'Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.' " (People v. Whisenhunt (2008) 44 Cal.4th 174, 218 (Whisenhunt).)
3. Analysis
We inquire whether the denial of the requested pinpoint instruction was erroneous, or whether the instructions given adequately allowed Castaneda to present such a defense on his lack of the required intent. Such a specific intent to torture the victim was a state of mind that could be proved through the witnesses' descriptions of his behavior in committing the offenses, or the circumstances surrounding the commission of the offense, or "the nature and severity of the victim's wounds." (Crittenden, supra, 9 Cal.4th 83, 141-142.)
In Steger, supra, 16 Cal.3d at pp. 548-549, the court explained that evidence of an adult's severe beating of a child does not necessarily amount to support for a finding of the adult's "cold-blooded intent to inflict extreme and prolonged pain." Rather, in such a case, even where the child's wounds were inflicted over a long period of time, there is still a possibility that such "beatings were a misguided, irrational and totally unjustifiable attempt at discipline;" and "were not in a criminal sense wilful, deliberate, or premeditated." (Id. at p. 548.) Thus, a mere showing of "uncontrolled outbursts of frustration" is inconsistent with a theory of deliberate torture murder. (Id. at p. 549, fn. 4; People v. Walkey (1986) 177 Cal.App.3d 268, 276 (Walkey).)Where "the record dispels any hypothesis" that the defendant's primary purpose was to cause the child to suffer, it will be error to instruct the jury on torture murder. (Walkey, at p. 276.)
However, in a case of different facts of ongoing child abuse, a torture murder conviction might be supported: "For example, if a defendant had trussed up his victim, proof that pain was inflicted continuously for a lengthy period could well lead to a conclusion that the victim was tortured." (Steger, supra, 16 Cal.3d at pp. 540, 548-549.) The trial court should properly refuse a defendant's requested pinpoint instruction that invites "the jury to infer the existence of his version of the facts, rather than his theory of defense," or that is argumentative in nature or repetitive of instructions already given. (People v. Mincey (1992) 2 Cal.4th 408, 437 (Mincey).)
Castaneda argues his case is one of the "explosion of violence" category, and that the beaten condition of Cesar's body did not particularly support an inference of an intent to cause him cruel suffering, and the instructions should have more specifically focused on that factor. However, there was extensive, additional, relevant evidence going to the issue of Castaneda's intent to torture. Castaneda does not seriously attempt to controvert such other evidence that could have supported the jury's conclusions about his specific intent to torture, distinguishable from the condition of the body. That evidence related to the first two factors legitimately supporting inferences of such an intent, i.e., the nature of the killing (severe physical abuse taking place over a number of months), and the totality of the circumstances of the offense (confined domestic violence). (See Crittenden, supra, 9 Cal.4th at pp. 141-142.)
Among those two initial factors, some evidence shedding light on Castaneda's apparent intent to cause Cesar extreme and prolonged pain was the duration of the events giving rise to injury, while Cesar was usually confined in the closet, brought out by Castaneda only for abuse. The testimony of Maria and Dulce showed that the beatings had gone on for a number of months, often for no apparent reason. The violence took numerous forms, such as hitting with Castaneda's hand or fist, kicking, choking, pulling, whipping, and striking with a weapon (cable cord, belt, or hangers). The cable cord was looped and knotted, showing some degree of planning. (Whisenhunt, supra, 44 Cal.4th at p. 218.) Castaneda's repeated and escalating aggressive conduct resulted in evident damage to Cesar, when he cried, bled, vomited, and developed marks and bruises on his body, including his genitalia.
Evidence from Castaneda's videotapes, made over a few months, clearly demonstrated Cesar had significant injuries at several times, and it also showed the totality of the family circumstances, such that when Cesar started to follow Maria out of the room, Castaneda called her an idiot and told her she would "catch hell" if she let him out. Later, the medical evidence showed that Cesar had a shrunken thymus gland, indicating that he had been under emotional or physical stress for a period of time, such as "many days, maybe weeks to get to that point." He was found to be undersized and underweight, compared to when he was seen at a clinic three months previously. Such evidence strongly supported the torture allegations.
Castaneda nevertheless argues that more specific instructions should have been given to educate the jury that it could not give undue significance to the severity of the injuries, or the condition of the body, when assigning a degree of culpability on the torture allegations. In a proper case, such instructions are justified, as in Steger, supra, 16 Cal.3d at page 546, to caution the jury that, as finder of fact, it must be aware that "horrible wounds may be as consistent with a killing in the heat of passion, in an 'explosion of violence,' as with the intent to inflict cruel suffering." (Pensinger, supra, 52 Cal.3d at p. 1239.) The fact of death is not enough for a finding of torture murder. (Steger, at p. 546.)
There must be substantial evidence to support giving an instruction on a defense theory. (People v. Burney (2009) 47 Cal.4th 203, 251 (Burney).) Such substantial evidence might, theoretically, have consisted of additional evidence supporting the defense claims that only isolated or repeated incidents of passionate, sudden outbursts of rage, "without more," led to the death. (Walkey, supra, 177 Cal.App.3d at p. 276.) Here, however, the evidence about the totality of the circumstances of the events leading to Cesar's death justified findings of repeated incidents of intentional infliction of extreme and prolonged pain, for apparently sadistic purposes, as those are defined in CALCRIM No. 521. There would have been no justification for emphasizing one of the factors over the other, such as this requested cautionary instruction would have done, to tell the jury that it should not give a certain, lesser weight to evidence about the severity of the wounds. That would only have asked the jury "to infer the existence of his version of the facts, rather than his theory of defense," which is not a proper pinpoint instruction. (Mincey, supra, 2 Cal.4th at p. 437.)
In light of the above types of evidence presented about all the recognized indicators of an intent to torture, defense counsel was allowed to fully present his theories of how the death accidentally resulted from misguided discipline and sudden outbursts of rage, or from the acts of another. The jury was asked to consider the evidence of the tight living quarters, economic pressures on the group, possible jealousy or rivalry with the child on Castaneda's part, and possible physical abuse of Cesar by other family members, such as Maria. There was no undue focus on the evidence of the condition of the body, and in any case, with respect to the torture count and the special circumstance, the prosecutor could properly refer to the condition of the body to show an intent to inflict extreme pain and suffering. (Mincey, supra, 2 Cal.4th at pp. 432-444.)
Thus, the trial court properly refused to give Castaneda's proposed severe injury pinpoint instruction because it was unsupported by the evidence, confusing, and argumentative in attempting to relate particular facts to a legal issue. (Wharton, supra, 53 Cal.3d at p. 570.) " '[T]he effect of certain facts on identified theories 'is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.' [Citation.]" (Ibid.) The evidence as presented, and the proposals, did not place the trial court under a duty to modify or correct proposed language that was confusing (Moon, supra, 37 Cal.4th at p. 30), or duplicative of other instructions (People v. Bolden (2002) 29 Cal.4th 515, 558).
C. Asserted Error: Pinpoint on Third Party Culpability
Castaneda next contends the trial court erred in refusing to give a requested instruction about potential third parties' motives to cause Cesar's death (Maria or her mother Matilde). He sought to modify CALCRIM No. 370 to address their motives, and proposed a pinpoint instruction, reading: "The defendant has introduced evidence to show that another person committed the offense charged in the indictment. The prosecution has the burden of establishing beyond a reasonable doubt that it was the defendant who committed the charged offense. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was the person who committed the charged offense, you must find the defendant not guilty." The evident purpose of this proposal was to inform the jurors that Castaneda had no burden to prove that either Maria or her mother had any motive to or were guilty of torturing and killing Cesar, and instead, Castaneda only had to show a reasonable doubt of his own guilt. (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).)
In reviewing Castaneda's contention that the court erred in failing to inform the jury how properly to view such evidence, on the grounds that Maria had a motive to lie about who was guilty, we are guided by our Supreme Court's instructions in Hall as to the admissibility of third party culpability evidence. "To be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Hall, supra, 41 Cal. 3d at p. 833.)
In addition to CALCRIM No. 370, regarding consideration by the jury of whether the defendant had a motive (which would tend to show whether he was guilty of the charged offenses), the jury was instructed in the language of CALCRIM No. 226, to assist it in evaluating all the testimony from Maria, including her legal status while she was testifying. In particular, the instruction told the jury that in evaluating a witness's testimony, "you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." Among the allowable factors thus to be considered were Maria's plea bargain, and whether her testimony was "influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided." Likewise, whether she had been "promised immunity or leniency in exchange for. . . her testimony" was a valid factor.
Further, CALCRIM No. 226 allowed the jury to consider, both as to Maria and Matilde, their behavior and attitudes about the case or about testifying, and any past consistent or inconsistent statements. Defense counsel fully encouraged the jury to consider the evidence of Maria's plea bargain in evaluating her credibility. The jury was aware of her suicide attempt and possible mental instability, and could take that into account as to her credibility. The jury was not required to be significantly concerned with what her motive for her actions or inactions might have been, as defense counsel told it in argument.
Here, Castaneda's only evidence as to Maria's and/or her mother's potential culpability was evidence that would give rise to a speculative inference that Cesar's death was the direct result of beatings other than his own. He did not show that Matilde had adequate access to the child at the relevant times. He did not show that Maria had acted in the way that she and Dulce described him as consistently acting toward Cesar, even though Dulce said Maria was known to hit or spank both children. Instructions about why another person might have intended to commit a crime would not have assisted the jury in determining whether this defendant had the required mental state in committing the charged offenses. (Whisenhunt, supra, 44 Cal.4th at p. 218.) There was no substantial evidence supporting the requested instruction on third party culpability or motive.
Further, the given instructions did not preclude the jury from considering all the evidence in determining whether Castaneda had shown adequate support for his defense of third party culpability.
Finally, we do not find the court erred in failing to give any of these requested defense instructions, and accordingly, we need not consider any harmless error issues. (People v. Watson (1956) 46 Cal.2d 818, 836; Wharton, supra, 53 Cal.3d at p. 571; People v. Hughes (2002) 27 Cal.4th 287, 362-363.)
IV
SUFFICIENCY OF EVIDENCE; ASSERTED CUMULATIVE ERROR
To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (Burney, supra, 47 Cal.4th at p. 253; People v. Mayfield (1997) 14 Cal.4th 668, 790-791 [same standard of review applies to determine the sufficiency of the evidence to support a special circumstance finding].) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (Burney, at p. 253.) We will not reverse a conviction on the ground of insufficient evidence unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict . . . ." (People v. Hicks (1982) 128 Cal.App.3d 423, 429; People v. Pre (2004) 117 Cal.App.4th 413, 421 (Pre).) This standard applies to testing the sufficiency of the evidence for both the torture murder conviction and the special circumstance finding. (Crittenden, supra, 9 Cal.4th at p. 139.)
Evidence of a defendant's continuing and escalating acts of child abuse may support a guilty verdict of first degree murder on a theory of premeditated and deliberate intent to kill through the use of torture, especially in combination with other evidence presented at trial about the circumstances of the killing. (Whisenhunt, supra, 44 Cal.4th at pp. 201-203.) Even where there is no showing of any "discernable rational motive" for the acts of the defendant, other evidence may sufficiently support a verdict of first degree premeditated murder. (Id. at p. 202.)
Castaneda contends there was insufficient evidence to convict him of first degree murder under a torture murder theory and further, insufficient evidence supported the special circumstance finding that the murder was intentional and involved the infliction of torture. He argues the evidence failed to establish he had an intent to torture, on the same general basis that he sought pinpoint instructions. That is, he would explain Cesar's death as attributable to third party culpability or to his own sudden uncontrollable rages, which could properly lead to a lesser degree of intent and culpability. He presented his theories to the jury that he had no motive to harm the child, and he asked it to find that there was no meaningful planning or calculation in the manner in which he (or another) inflicted the injuries.
To the contrary, the whole record here demonstrates that there is sufficient support in the evidence for the jury's verdict and special circumstance finding. The evidence reveals not only that Castaneda had unlimited access to Cesar during the same three- to six-month period that the child's health was shown to be deteriorating, due to beatings, malnutrition, and confinement, but also that the family circumstances enabled Castaneda to dominate Maria and her children and to physically abuse them. "The length of time over which the beatings occurred, the number of injuries inflicted, the variety of objects with which the injuries were inflicted," all supported inferences of Castaneda's planning and preconceived design to inflict cruel pain and suffering. (Mincey, supra, 2 Cal.4th at p. 435.)
The physical evidence about the condition of Cesar's body strongly supports the conclusion Castaneda had the intent to inflict prolonged and severe pain on Cesar for some sadistic purpose. The medical examiner determined that the cause of death was a combination of severe abdominal and head injuries. Most of the external injuries were recent (approximately 233), inflicted within hours of Cesar's death, such as bite marks, bruises, and injuries to his genitalia. He also had 52 healing injuries and 69 scars. As a small child, Cesar was a vulnerable victim, and even more so, Castaneda consistently focused his violence upon sensitive areas of Cesar's body, such as his ears and his genitalia, using the twisted cable cord or broken hanger that were adapted to inflict maximal injury.
From this evidence and the fact that either the head or abdominal injuries could have caused Cesar's death, the jury could have reasonably concluded the beatings were the result of Castaneda's calculated intent to make Cesar suffer over time. That Castaneda did not simply stop with regular beating and confinement of Cesar in the closet over many months, but also beat him to death on the final occasion, with a cord that was looped for the purpose, supports reasonable inferences that the abuse was intended to be deliberately prolonged and painful, and was not simply done in one or more heats of passion that might justify lesser culpability determinations. This record amply demonstrates the type of continuing and escalating acts of child abuse that will support a guilty verdict in a case of this nature. (Whisenhunt, supra, 44 Cal.4th at pp. 201-202.) All of the evidence demonstrated that Castaneda's mindset toward the child during the relevant time period was consistently to torment, abuse, and ultimately to destroy him, for his own satisfaction or pleasure of some kind. (CALCRIM No. 521.)
[I]t is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury." ' " [Citations.] . . . [¶ ] . . . " 'Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.' [Citation.] Convictions are seldom reversed based on insufficiency of the evidence." (Pre, supra, 117 Cal.App.4th at p. 421.) This record requires that Castaneda's appellate claims of insufficient evidence about torture murder and the special circumstance must fail. The evidence was "overwhelming" and clearly sufficient for the jury to find that Castaneda had the specific intent to inflict extreme and prolonged pain on Cesar for some sadistic purpose of his own.
For the reasons explained above, we have not identified any prejudicial errors in the guilt phase, whether the claims are considered separately or cumulatively. (See Burney, supra, 47 Cal.4th at p. 256.)
V
ABSTRACT OF JUDGMENT ERROR: COUNT 3
At sentencing, the court orally imposed an LWOP sentence on the torture murder conviction (count 1). For the torture conviction under section 206 (count 3), a life term was ordered (along with other stayed terms for other counts). The count as to Dulce was accorded a consecutive term (count 5).
However, as argued by Castaneda, and conceded by the People, the abstract of judgment incorrectly reflects that his sentence to be served on count 3 is a term of LWOP. Under section 206.1, "torture is punishable by imprisonment in the state prison for a term of life."
On appeal, we are authorized to correct such an inadvertent clerical error in the abstract of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Brown (2000) 83 Cal.App.4th 1037, 1039, 1046-1047.) Accordingly, we order that the clerk of the superior court amend the abstract of judgment to correctly identify the term for count 3 as life imprisonment, stayed under section 654.
DISPOSITION
The clerk of the superior court is directed to amend the abstract of judgment as to count 3 in accordance with this opinion, and to forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR:
HALLER, J.
McDONALD, J.