Opinion
H042598
03-14-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN JESSICA DEANDA et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS140641A&B)
A jury convicted defendants Christian DeAnda and Eraca Craig of multiple crimes related to the mistreatment of their children. DeAnda was convicted of torture (Pen. Code, § 206; further unspecified statutory references are to this code); six counts of child abuse (§ 273a, subd. (a)); three counts of inflicting corporal injury on a child (§ 273d, subd. (a)); three counts of false imprisonment by violence (§ 236), and three counts of child endangerment (§ 273a, subd. (b)). Craig was convicted of child abuse (§ 273a, subd. (a)); three counts of false imprisonment by violence (§ 236); and two counts of child endangerment (§ 273a, subd. (b)). The jury also found true as to each defendant an enhancement for inflicting great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced DeAnda to an indeterminate term of life in prison consecutive to a determinate term of 13 years and four months, and sentenced Craig to 11 years in prison.
Both defendants appeal. DeAnda contends the trial court erred in denying her motion to suppress evidence of photographs and videos found on electronic devices during a search of her home, and by allowing the prosecution to file an amended information during trial. She also contends her convictions must be reversed because facts not shown at the preliminary hearing were used to prove the torture charge; because the prosecutor committed misconduct; and because she received ineffective assistance of counsel. She alternatively asserts sentencing error based on a failure to apply section 654 to stay the prison terms imposed other than for the torture conviction. Craig contends there was insufficient evidence to support her conviction for child abuse, and insufficient evidence to support the corresponding enhancement for inflicting great bodily injury. We find no error and will affirm the judgments.
DeAnda also filed a petition for writ of habeas corpus, contending she received ineffective assistance of counsel. We have denied that petition in a separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
I. BACKGROUND
DeAnda and Craig, a married couple, lived in Monterey County with their three children: a girl (age eight) and two boys (ages five and three). The youngest is Craig's biological child. Neither DeAnda nor Craig is related to the other two children, but the women took them in after their mother left them. All the children referred to DeAnda and Craig as their "moms."
A psychologist at the eight-year-old girl's school was assigned to evaluate her because observed behavior suggested she might be having emotional problems. The psychologist reviewed the child's file, and became concerned as it noted that she had once come to school with a black eye and the parents gave conflicting explanations about how the injury happened. The psychologist reported those concerns to the county child protective services agency.
In response, a social worker requested that law enforcement conduct a welfare check at DeAnda and Craig's home. Several police officers arrived and spoke with the children. The eight-year-old girl was extremely thin and looked malnourished, so one of the officers called for an ambulance to transport her to the hospital. The social worker then arrived to interview the other two children and determine whether they were safe. He saw bruises on the five-year-old boy's legs, and though Craig stated that the bruises came from falling off a bike, the boy indicated that was not true. Because the social worker was concerned the injuries were caused by abuse, he took both boys into protective custody.
A medical examination at the hospital revealed the eight-year-old girl to be significantly underweight due to chronic weight loss that occurred over an extended period of time. She had bruising in many places on her body, a human bite mark on her arm, and a broken front tooth.
Police executed a search warrant at DeAnda and Craig's home, and found chains on the floor that fit into metal brackets secured to the wall. They found two laptop computers and two cameras containing digital photographs and videos, including a photograph of the eight-year-old with a chain around her ankle and a video of her in the bathtub putting her face underwater.
The children testified at trial. The eight-year-old (who was 10 at the time she testified) described horrific acts of abuse she experienced at the hands of DeAnda and Craig. She said DeAnda hit her with a closed fist and a belt, bit her, broke her tooth, and picked her up by the hair. DeAnda would also often hold her head under the bathtub faucet as a punishment. Both DeAnda and Craig withheld food from her; and when she tried to sneak food out of the refrigerator because she was starving, they chained her to the wall.
The boys (six and four at the time of trial) testified that they saw DeAnda and Craig hit their sister, and one of them also remembered seeing her chained up. DeAnda's brother, who lived in an adjoining house, testified that he saw DeAnda put the girl outside in the cold without shoes or socks as a way to impose discipline. DeAnda's niece, who briefly lived with DeAnda and Craig, saw them withholding food from the eight-year-old to get her to do things. A doctor testified that the child displayed symptoms of starvation and that her injuries were consistent with child abuse.
DeAnda testified that the eight-year-old was extremely violent, had severe behavior problems that required therapy, and once stabbed her in the arm. DeAnda denied ever abusing her, holding her head under the faucet, starving her, or chaining her up. Craig also denied abusing the children, and testified that she provided ample food and appropriate care for them. The jury rejected DeAnda and Craig's version of events and found them guilty of a number of crimes.
II. DISCUSSION
A. DENIAL OF MOTION TO SUPPRESS EVIDENCE
DeAnda contends the trial court erred by denying her motion to suppress evidence obtained from computers and cameras found during a search of her home. The search was conducted after police obtained a warrant authorizing the search of the residence, and authorizing police to seize, among other things, the following items of property: "Any materials that depict child abuse, including but not limited to, photographs, slides, negatives, motion pictures, video tapes, CD ROMs, DVDs, photographs ... whether stored in traditional form or digitized and stored in some computer media ...; [¶] Any computer equipment including but not limited to, desktop central processing units, laptop computers, personal digital assistants, removable hard drives, zip drives ... , still cameras, video cameras/camcorders ... ."
The warrant was issued based on an affidavit submitted by a police officer stating that interviews with the children and their physical appearances indicated there was ongoing child abuse and that evidence of the abuse would be found at the home. The officer stated in the affidavit that based on her training and experience, she believed police would find "electronic devices depicting either video or photographs of the victims being abused." The officer also stated in the affidavit that she believed DeAnda and Craig "have committed, and are engaging in an ongoing conspiracy to commit [] the felony crime(s) of possessing, distributing child pornography and/or sexual exploitation of a minor and that evidence of these crimes will be found at the premise(s)." Unlike the conclusion relating to the children being abused, the affidavit contained no facts to support that statement. When the officers searched the house, they seized laptop computers and cameras containing digital photograph and video files, including pictures of the eight-year-old girl chained on the ankle and the video of her with her face underwater.
DeAnda moved under section 1538.5 to suppress the photographs and videos on the ground that the search violated the Fourth Amendment to the United States Constitution. The trial court denied the motion based on the "good faith reliance" exception to the exclusionary rule. (See United States v. Leon (1984) 468 U.S. 897, 918 (Leon).) That is, the court found the warrant's authorization of the search of the computers and cameras was invalid because it was not supported by probable cause, but ruled that under Leon the evidence need not be suppressed because the officers relied on the warrant in good faith when conducting the search. The reason the court found the warrant not to be supported by probable cause was because the statement in the affidavit indicating there was a child pornography and child sexual exploitation conspiracy was not based on any specific facts. DeAnda now argues that while the trial court correctly determined that the seizure of the electronic devices was not supported by probable cause, it erred in determining the good faith exception applied.
Like the trial court, we conclude that the motion to suppress should have been denied, but we reach that conclusion for a different reason. (See Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568 [a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason].) We find the warrant's authorization to seize the electronic devices was supported by probable cause to believe evidence of child abuse would be found on the devices.
A search warrant is properly issued only when there is probable cause to believe evidence of a crime will be located in a particular place. (Illinois v. Gates (1983) 462 U.S. 213, 227.) "The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing." (People v. French (2011) 201 Cal.App.4th 1307, 1315.) The inquiry requires a totality of the circumstances analysis, where we must determine whether, given all the circumstances stated in the affidavit, there is a fair probability that evidence will be found in the identified places. (Illinois v. Gates, supra, 462 U.S. at p. 238.) Whether an affidavit gives rise to that fair probability is an issue of law subject to our independent review, but we must give deference to the magistrate's initial determination. (Ibid.) Doubtful or marginal cases should be resolved by upholding the search, consistent with the overall preference for searches conducted under a warrant. (People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 203.)
Applying those standards, we will not disturb the issuing judge's decision that the request to seize electronic devices was supported by probable cause. An experienced police officer stated in the affidavit that three children had made specific allegations of physical abuse, and the eight-year-old had visible bruises and scars. The officer further stated that searching electronic devices in the home would likely reveal evidence of child abuse. That information provides a substantial basis for believing there was a fair probability evidence of abuse would be found on the electronic devices. It was reasonable to assume photographs and video recordings would be on electronic devices kept in the home, and reasonable to assume that those images might show injuries to the children, which would be evidence of abuse. We agree with the trial court that the statement regarding a child pornography conspiracy lacked factual support and therefore added nothing to the probable cause analysis. (Illinois v. Gates, supra, 462 U.S. at p. 239 [A warrant cannot be issued based on "mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause."].) But there is a good deal more information contained in the affidavit. Even if the child pornography statement was a deliberate misrepresentation (and we have no evidence one way or the other on that point), we would be required to simply excise it from the affidavit and then determine whether probable cause existed based on the remaining facts. (See Franks v. Delaware (1978) 438 U.S. 154, 156.) Setting aside the unsupported conclusion that trafficking in child pornography and sexual exploitation was occurring, there is still sufficient information in the affidavit to allow the issuing judge to find probable cause to search the electronic devices. As the search warrant was valid, we need not reach the question of whether the good faith exception under Leon would apply. Denial of the motion to suppress was the correct result.
For the same reason, we do not reach DeAnda's contention that her counsel was ineffective for failing to argue that the good faith exception was inapplicable because statements in the warrant were made with reckless disregard for their falsity.
B. FILING OF THE AMENDED INFORMATION
DeAnda contends her convictions for count 9 (corporal injury to a child; § 273d, subd. (a)) and count 10 (child abuse; § 273a, subd. (a)) must be reversed because both counts were added in an amended information filed by the prosecution during trial, after the presentation of its case. She asserts a number of improprieties related to the filing of the amended information: that it is the product of prosecutorial misconduct because the prosecutor represented it merely renumbered, rather than substantively changed, the existing counts; that the prosecution was precluded from adding count 9 without a court order since it previously elected to dismiss that count; that the dismissal and re-alleging of the charge in count 9 is barred by the constitutional proscription against double jeopardy; that the charge in count 10 is barred because it was added without first obtaining leave of court; and that her trial counsel was ineffective for failing to object to the amended information.
1. DeAnda's Contentions Regarding the Amended Information Have Been Forfeited
The Attorney General argues, correctly, that because there was no objection by the defense to the filing of the amended information, defendant's contentions have been forfeited. (People v. Lewis (1983) 147 Cal.App.3d 1135, 1140 [When an amended information is filed in open court and the defendant offers no objection, the claim that the court erred in filing it may not be raised for the first time on appeal.].) DeAnda urges us to find no forfeiture because both the trial court and defense counsel were misled by the prosecutor into believing that the amended information only renumbered the counts, rather than substantively changed them. Amended counts 9 and 10 do contain substantive changes: count 9 charged a violation of section 273d, subdivision (a) based on the factual allegation that the child was bitten, though the prosecution previously elected to dismiss that charge; and count 10 charged a violation of section 273d, subdivision (a) based on holding the child's head under the bathtub faucet, facts that were not previously alleged in the information. But DeAnda's assertion that the prosecution misrepresented the nature of those changes is not supported by the record.
The record is sparse regarding the circumstances surrounding the filing of the amended information. The sole reference to that event is a statement made by the trial court just before the reading of instructions and closing arguments: "We are outside the presence of the jury. A few things we wanted to put on the record. [¶] There are 16 counts. After the People's case in chief, they moved to dismiss Count Number 11. [¶] ... [¶] The court granted that motion, and then they filed an amended information renumbering so they're in numerical order." Based on that statement, DeAnda infers that (1) the prosecutor misrepresented the nature of the amended information; and (2) both the court and defense counsel were unaware of the true content of the document. Neither of those inferences is adequately supported by the record. First, DeAnda does not point to any misrepresentation made by the prosecutor, and none appears in the record. We cannot assume the prosecutor made a misrepresentation simply because the court stated (accurately), "they filed an information renumbering so they're in numerical order." Second, DeAnda's position that the court and defense counsel were unaware of the nature of the changes in the amended information is belied by the record: shortly after memorializing the filing of the amended information, the trial court read the amended information—including amended counts 9 and 10—to the jury. Then, during closing argument, the prosecutor discussed, one by one, the various counts and the alleged factual basis for each. If, as DeAnda contends, neither the court nor defense counsel was aware of the content of the amended information at the time it was filed, they became aware of it when it was read to the jury and when the prosecutor discussed it during closing argument. No objection was raised to the amended information at the time of filing, when its filing was memorialized on the record, when it was read to the jury, or when it was referenced during closing argument. The contention that it was improperly filed has therefore been forfeited.
We do not suggest it would be anything other than serious misconduct for an attorney to deliberately misrepresent the content of a document to the court. But on this record we cannot conclude that is what occurred.
DeAnda argues, citing People v. Upshaw (1974) 13 Cal.3d 30, 34, that counsel's failure to object does not forfeit her double jeopardy argument. But even if the argument were not forfeited under these circumstances, it would fail on the merits. Jeopardy does not attach when a charge has been dismissed unless the reason for the dismissal is insufficiency of the evidence. (People v. Hatch (2000) 22 Cal.4th 260, 270-271.) While the record does not reveal the reason for the dismissal, it does contain sufficient evidence to support the charge DeAnda contends subjected her to double jeopardy (corporal injury to a child, based on biting): the victim testified DeAnda bit her, photographs of the bite were introduced into evidence, and medical experts testified the bite mark was made by a human. The dismissal and re-alleging of count 9 therefore does not implicate double jeopardy protections.
2. Counsel Was Not Ineffective for Failing to Object to the Amended Information
DeAnda asserts that notwithstanding any forfeiture of issues regarding the amended information, counts 9 and 10 must still be reversed because her counsel was ineffective for failing to object to its filing. To resolve an ineffective assistance of counsel contention, we examine whether counsel's representation fell below an objective standard of reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 688.) If the representation did fall below that standard, we must also determine whether prejudice to the defendant resulted. (Ibid.) Counsel is never required to make futile motions or indulge in idle acts, so failing to make an objection that does not have legal merit cannot give rise to a claim of ineffective assistance. (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1409.) We therefore first consider whether an objection to the filing of the amended information would have merit.
"A court may allow amendment of an accusatory pleading at any time up to and including the close of trial so long as there is no prejudice to the defendant." (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1580-1581.) There can be no prejudice to the defendant when an amendment merely conforms the pleading to the evidence already presented at trial and therefore requires no additional evidence or preparation by defense counsel. (People v. Jones (1985) 164 Cal.App.3d 1173, 1179.) Similarly, prejudice is unlikely when the amendment occurs before the defense puts on its case because defendant has an opportunity to defend against the charge. (See People v. Arevalo-Iraheta, supra, 193 Cal.App.4th at p. 1584 [trial court correctly permitted amendment to pleading prior to the defendant having completed putting on his case].) The amended counts with which DeAnda takes issue were based on biting the victim (count 9) and holding her head under the faucet (count 10). Evidence supporting both of those counts was introduced when the prosecution presented its case, and DeAnda provides no explanation of what additional evidence or preparation she needed to defend against those charges. Nor can she effectively argue that she was unfairly surprised by the amended counts—count 9 re-alleged a dismissed charge that had long been part of the case, and the factual basis for count 10, the bathtub faucet conduct, was established by evidence presented at the preliminary hearing. Since DeAnda was aware of the facts forming the basis for the amended counts before trial, she cannot show that she was prejudiced by the amended information. An objection would have been without merit, and counsel was not required to make it.
DeAnda cites People v. Graff (2009) 170 Cal.App.4th 345, 349-350, for the proposition that prejudice from an amended accusatory pleading can be shown when defense counsel limits the scope of cross-examination in reliance on the charges in the original information. But Graff held only that " 'a defendant may not be prosecuted for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based.' " (Id. at p. 360, citing People v. Burnett (1999) 71 Cal.App.4th 151, 165-166.) It has no application to these circumstances, where the evidence supporting the amended counts was introduced at the preliminary hearing and arose out of the same transaction as the rest of the charges. DeAnda argues that the evidence at the preliminary hearing regarding the bathtub faucet reflected only a trivial incident that is insufficient to constitute felony child abuse, and therefore cannot be relied on to support that charge in the amended information. We simply disagree with that characterization of the evidence. The testimony at the preliminary hearing was that DeAnda held the child's head under the faucet, causing her to have difficulty breathing. We reject the characterization of that conduct as trivial and not rising to the level of felony child abuse.
C. USE OF FACTS NOT SHOWN AT PRELIMINARY HEARING TO PROVE TORTURE CHARGE
DeAnda contends that her torture conviction must be reversed because the prosecution used facts not shown at the preliminary hearing to prove that charge, in violation of her constitutional right to due process. (People v. Dominguez (2008) 166 Cal.App.4th 858, 866 [due process of law requires that an accused be adequately advised of the charges in order to have a reasonable opportunity to prepare a defense].) Specifically, DeAnda asserts that while the evidence at the preliminary hearing only established one incident where she held the victim's head under the bathtub faucet, the prosecution introduced evidence at trial that this occurred on multiple occasions and argued those multiple incidents proved the torture charge. There was no objection made to the evidence or argument at trial, but we will address the issue on its merits because it involves a fundamental constitutional right (see People v. Brown (1993) 6 Cal.4th 322, 333-334) and because DeAnda argues her counsel was ineffective for not objecting.
The due process contention fails because evidence was presented at the preliminary hearing of multiple incidents of abuse using the bathtub faucet. A law enforcement investigator testified that the victim reported multiple occasions when she was sprayed with water in the bathtub, an incident where she was told to put her head under water for twenty minutes, and an incident where her head was held under the faucet. The evidence presented at the preliminary hearing adequately apprised DeAnda of the basis for the charges involving the bathtub faucet incidents, so there was no violation of due process. Any objection when the evidence was presented at trial would have been meritless, and counsel was therefore not ineffective.
Even assuming error in allowing the testimony about multiple incidents, it would be harmless beyond a reasonable doubt, the standard we apply to evaluate constitutional error. (Chapman v. California (1967) 386 U.S. 18, 23-24.) There was ample evidence to support the torture conviction besides the bathtub faucet incidents, such as the systematic withholding of food to the point where the victim suffered symptoms of starvation.
D. PROSECUTORIAL MISCONDUCT
DeAnda contends her convictions for count 1 (torture; § 206); count 9 (corporal injury to a child; § 273d, subd. (a)); and count 10 (child abuse, § 273a, subd. (a)) must be reversed because the prosecutor committed misconduct. DeAnda identifies two separate incidents of claimed misconduct: misrepresenting the content of the amended information to the court and defense counsel, and making improper arguments to the jury regarding the bathtub faucet incidents.
"Generally, a claim of prosecutorial misconduct is not cognizable on appeal unless the defendant made a timely objection and requested an admonition." (People v. Doolin (2009) 45 Cal.4th 390, 444.) Defense counsel did not object to either of the instances DeAnda now claims constitute prosecutorial misconduct, so the argument has been forfeited. But since she also argues that her counsel was ineffective for not objecting, we will address the substance of the contention.
As we have discussed, we find no merit to the argument that the prosecutor committed misconduct by misrepresenting the nature of the amended information, as no such misrepresentation appears in the record. Nor do we find the prosecutor committed misconduct during closing argument. A prosecutor commits misconduct by using "deceptive or reprehensible methods of persuasion." (People v. Doolin, supra, 45 Cal.4th at p. 444.) DeAnda asserts that the prosecutor deceptively exaggerated the number and significance of the bathtub faucet incidents and misrepresented what was shown on the video of the victim with her face in the water. But there was evidence to support the argument that the bathtub faucet abuse was a regular occurrence—the victim testified that it happened "a lot" —so there was no misrepresentation in that argument. And the video of the victim with her face in the water was shown multiple times to the jury, allowing jurors to draw their own conclusions about what it portrayed. The prosecutor was free to argue that the video showed the victim being abused, even if the defense would characterize it otherwise. (See People v. Valdez (2004) 32 Cal.4th 73, 134 [Whether the inferences the prosecutor draws from the evidence are reasonable is for the jury to decide.].) There was no prosecutorial misconduct, and no objection required of defense counsel.
E. SUFFICIENCY OF EVIDENCE TO SUPPORT CRAIG'S CHILD ABUSE CONVICTION AND GREAT BODILY INJURY ENHANCEMENT
Craig contends that the evidence is insufficient to support her conviction for child abuse based on starving the victim (§ 273a, subd. (a)); count 2). She alternatively contends that the evidence is insufficient to support the associated enhancement for inflicting great bodily injury (§ 12022.7, subd. (a)). In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We must affirm the judgment if any rational trier of fact could find the elements of the crime or enhancement beyond a reasonable doubt. (Ibid.)
Craig's theory is that since the jury was instructed only on abuse of a child by directly inflicting physical pain or mental suffering—as opposed to permitting a child to suffer such harm, which is also prohibited by section 273a—the evidence is insufficient to support her conviction because starvation cannot constitute direct infliction of harm. She asserts that starvation "at most constitutes passive conduct by extreme neglect" and the prosecution was required to prove willful infliction of harm, rather than harm caused by neglect.
Craig relies on People v. Sargent (1999) 19 Cal.4th 1206, 1223, which held that to convict a defendant of child abuse based on direct infliction of harm, it must be proven that the defendant willfully inflicted unjustifiable physical pain or mental suffering on a child, and did so while harboring general criminal intent (an intent to do the proscribed act). We reject Craig's argument because the record contains evidence that she intentionally withheld food from the victim, meaning she intended to do an act that caused the child pain and mental suffering: the victim testified that, although it was mostly DeAnda who withheld food, "they used to not feed me;" and she also testified that she was unable to get food when "they chained me up." DeAnda's niece corroborated the testimony regarding Craig's involvement when she related that "if she didn't do something, they would tell her she couldn't eat yet until she did that." The evidence was sufficient to allow the jury to conclude that the starvation was directly caused by Craig purposefully withholding food from the victim and chaining her to prevent her from getting food. The evidence was therefore sufficient to support a finding of willful infliction of harm.
Craig also argues that, even if starvation is considered directly inflicted harm, the evidence is insufficient to support the conviction because there is no evidence she was "directly involved" in the starvation of the child. That argument fails given the testimony of the victim and DeAnda's niece that both Craig and DeAnda withheld food and restrained the victim with chains. Craig points to other evidence in the record that she was not involved—she was rarely home during the children's waking hours, the victim testified about occasions when Craig did provide food, and Craig's own testimony—but our task is to determine if substantial evidence supports the verdict, even if the record contains conflicting evidence. (People v. Misa (2006) 140 Cal.App.4th 837, 842.) We do not reweigh the evidence or evaluate its credibility. (Ibid.)
Craig's alternative contention is that even if the child abuse conviction is supported by sufficient evidence, the sentencing enhancement for inflicting great bodily injury (§ 12022.7, subd. (a)) is not. The enhancement requires proof that Craig personally inflicted the injury in question, and she argues there is no such proof here. But again, that argument ignores the evidence indicating that both Craig and DeAnda withheld food from the victim and chained her to prevent her from obtaining food. The same evidence that is sufficient to support the underlying child abuse conviction is sufficient to support the conclusion that she "personally inflicted" the great bodily injury, as required for the sentencing enhancement.
Craig also asserts that even if she were directly involved with starving the victim, her conduct was not an affirmative act, and the great bodily injury enhancement requires proof that an affirmative act caused the injury. She acknowledges that People v. Warwick (2010) 182 Cal.App.4th 788, 795, rejected that argument and held that under appropriate circumstances a failure to act can support imposition of the enhancement; but she argues Warwick was wrongly decided and urges us not to follow it. We need not decide that issue because evidence of Craig's affirmative actions to prevent the victim from eating was sufficient to prove that Craig personally inflicted the victim's injuries resulting from starvation.
F. APPLICATION OF PENAL CODE SECTION 654
Having found no error affecting either defendant's convictions, we turn to DeAnda's contention that the trial court erred by not applying section 654 to stay execution of the prison terms imposed for her convictions other than for torture. Section 654 prohibits multiple punishments when a defendant is convicted of several crimes based on a single act or omission. (People v. Coleman (1989) 48 Cal.3d 112, 162.) It also applies when a defendant's indivisible course of conduct violates multiple statutes. (People v. Brown (1958) 49 Cal.2d 577, 590-591.) "The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent. If [s]he entertained multiple criminal objectives which were independent of and not merely incidental to each other, [s]he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.)
Whether a defendant had separate objectives is a factual determination made by the trial court at the time of sentencing. (People v. Braz (1997) 57 Cal.App.4th 1, 10.) We must uphold the trial court's finding of separate objectives so long as there is any substantial evidence to support it. (Ibid.) When the court does not make an express finding on the issue but sentences the defendant to separate terms, we infer a finding that each offense had a separate objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
DeAnda was convicted of torture, as well as six counts of child abuse; three counts of inflicting corporal injury on a child; three counts of false imprisonment by violence, and a misdemeanor count of child endangerment. The conduct alleged to constitute torture (count 1) was not specified in the information, jury instructions, or the verdict form. The conduct that formed the basis for the six counts of child abuse was the starvation of the eight-year-old girl (count 2); putting a knife up her nose (count 4); leaving her outside while wet (count 6); biting her arm (count 8); holding her face under the faucet (count 10); and hitting her with a belt (count 11). The conduct forming the basis of the three counts of inflicting corporal injury duplicated three of the child abuse counts (count 5, putting a knife up the victim's nose; count 7, leaving her outside while wet; and count 9, biting her arm). The three counts of false imprisonment by violence (counts 12, 13, and 14) were based on three separate incidents of chaining the victim to the wall. The child endangerment count (a lesser included offense to count 3) was based on breaking her tooth.
She was also convicted of two misdemeanor counts of child endangerment (§ 273a, subd. (b)) relating to the other two children, but does not challenge those convictions nor the sentences imposed. --------
The trial court sentenced DeAnda to the mandatory term of life in prison for the torture conviction in count 1. The court then stayed the sentence on the child abuse conviction in count 2 (abuse by starvation), finding that section 654 applied as a result of the torture conviction. The court did not stay any other prison term under section 654 due to the torture conviction. (Sentence was stayed on counts 5, 7, and 9 under section 654, but that was because the conduct in those counts duplicated the conduct forming the basis for the child abuse convictions in counts 4, 6 and 8).
Based on the way it applied section 654, the trial court's implied findings are that the conduct giving rise to the torture conviction in count 1 and the conduct giving rise to the child abuse conviction in count 2 had the same intent and objective; but that DeAnda had an intent and objective separate from torture when she engaged in the acts giving rise to the remaining convictions. In challenging those findings, DeAnda points to the prosecutor's closing argument to the jury that DeAnda's entire course of conduct (that is, all the abusive acts), resulted in a "dehumanization" of the victim accomplished for a sadistic purpose and therefore constituted torture. Further, she notes that torture can be proven by either a course of conduct or a particular act, and in this case the prosecution proceeded on the theory that the torture was accomplished through a course of conduct. According to DeAnda, the course of conduct theory pursued by the prosecution and the prosecution's reference to facts related to other offenses to argue she acted with a sadistic purpose (an element of the torture charge) required the trial court to apply section 654 to stay the non-torture sentences.
We begin by noting that the use of a course of conduct theory to prove torture does not necessitate a finding of a single intent and objective for purposes of section 654. A defendant may be punished for violations committed in pursuit of different objectives "even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon, supra, 8 Cal.3d at p. 639.) That the prosecution used facts related to other offenses in arguing that DeAnda acted with a sadistic purpose does not compel a later finding by the court of a single intent and objective. (See People v. Green (1988) 200 Cal.App.3d 538, 543-544; 545, fn. 5 [determination of separate objectives for purposes of section 654 is a question of fact for the trial court at sentencing, notwithstanding the position taken by the prosecution].) The question on appeal is not whether the torture was committed through a course of conduct, or what facts the prosecution argued were relevant to proving certain offenses. The question is whether there is sufficient evidence in the record to support the trial court's finding that the acts giving rise to the other convictions for which DeAnda was punished were committed with an objective separate from the torture offense.
In answering this question, we must adhere to the principles of substantial evidence review. Our task is not to decide whether the trial court's decision is the only reasonable outcome given the facts. Rather, we must decide whether, viewing the facts in the light most favorable to the decision, a rational decision maker could find as the trial court did. (People v. Johnson, supra, 26 Cal.3d 557, 576-577.) Put another way, we must decide whether it was irrational for the trial court to decide that the abusive acts other than starvation were committed with an intent and objective separate from torture.
We cannot conclude that the trial court erred in finding that DeAnda had an objective separate from torture when she broke the victim's tooth (count 3); put a knife up the victim's nose (count 4); left her outside while wet (count 6); bit her arm (count 8); held her face under the faucet (count 10); hit her with a belt (count 11); and chained her to the wall (counts 12, 13, and 14). The record supports a reasonable inference that DeAnda starved the victim with the objective of inflicting bodily injury for a sadistic purpose, but engaged in the other abusive acts for a different reason, independent of any sadistic purpose: a misguided attempt to discipline the child on separate occasions. (See People v. Healy (1993) 14 Cal.App.4th 1137, 1141 [finding sufficient evidence to support torture conviction based on abuse of a cohabitant because it was "not the case of a frustrated parent overreaching in an attempt to control a child's behavior."].)
We acknowledge that the record would also support the opposite conclusion, the one urged by DeAnda: that all the acts of abuse were committed with the same objective as the torture offense. But when reviewing for substantial evidence, we cannot reverse a judgment because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) We will uphold the judgment so long as substantial evidence supports the trial court's conclusion. (Ibid.)
DeAnda cites People v. Mejia (2017) 9 Cal.App.5th 1036, 1044-1045, for the proposition that "section 654 precludes imposition of unstayed sentences for both torture and any of the underlying assaultive offenses upon which the prosecution relies to prove that element." Mejia is distinguishable. In that case, the defendant was charged with torture, spousal abuse and spousal rape. The appellate court found that section 654 required a stay of the sentences imposed for the abuse and rape convictions because both offenses "were included among the acts underlying the torture count and were essential to establishing an element of that offense." (People v. Mejia, supra, at p. 1046, italics added.) Here, the acts constituting the offenses on which sentence was not stayed were not essential to establishing the torture offense, because starving the victim (as charged in count 2, the sentence for which the trial court did stay) was itself sufficient to establish the elements of torture. DeAnda argues that the facts of the remaining offenses were essential to prove the intent element of torture, namely inflicting pain for a sadistic purpose. But "[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th 413, 420.) The jury could reasonably have relied on the evidence of chronically depriving the victim of food to infer that DeAnda derived a form of satisfaction from inflicting that harm. (See People v. Healy, supra, 14 Cal.App.4th at p. 1142 [defining sadism as a form of satisfaction derived from inflicting harm on another].) The facts underlying the offenses other than starvation were therefore not essential to prove the intent element of torture. And though the prosecution argued to the jury that the entire course of conduct could be used to prove the intent element of torture, the trial court was not bound at sentencing by the prosecutor's argument. (People v. Green, supra, 200 Cal.App.3d 538, 543-544; 545, fn. 5.)
DeAnda argues that if starvation alone is considered the basis of the torture offense, then a unanimity instruction would have been required to inform the jury that it must agree on which act constituted the torture. But when a statute contemplates a continuous course of conduct or series of acts, no election of a particular act by the prosecution nor unanimity instruction is required. (People v. Thompson (1984) 160 Cal.App.3d 220, 224.) Torture can be committed by a course of conduct, and when it is alleged to have occurred over a period of time no unanimity instruction is needed. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1450.) The starvation of the victim necessarily occurred over a period of time, making torture by starvation a course of conduct offense that did not require a unanimity instruction.
The trial court did not err in applying section 654 to stay only the sentence on the child abuse by starvation count due to the torture conviction. The offenses for which sentence was not stayed were not essential to establishing the elements of torture, and substantial evidence supports the implied finding that DeAnda committed those offenses with an objective separate from torture.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Premo, Acting P. J. /s/_________ Bamattre-Manoukian, J.