Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA342148 John S. Fisher, Judge.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant Angel Espada appeals from the judgment following his convictions for felony child abuse and corporal injury to a child. He contends: (1) an element of felony child abuse was omitted from the jury instructions; (2) allowing the victim’s out-of-court statement into evidence violated his Sixth Amendment right to confrontation; (3) imposition of consecutive sentences was improper; and (4) insufficient evidence supported the use of a deadly weapon enhancement. We affirm.
FACTUAL AND PROCEEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established that on June 12, 2008, 22-month-old A.S. was treated for multiple burns on his torso and arms which he sustained while at home alone with defendant, his father, the day before. The medical professionals who examined A. also observed multiple bruises on his back. The Department of Children and Family Services (DCFS) removed A. and his eight-year-old sister, C., from the home that day; the children’s mother, M., accompanied them.
Unless otherwise designated, all future date references are to 2008. Defendant initially told the police that he did not know whether he was A.’s father, but at trial defendant testified that he was.
Defendant was charged by amended information with two counts of felony child abuse (§ 273a, subd. (a)) (counts 1 and 3) and two counts of corporal injury to a child (§ 273d, subd. (a)) (counts 2 and 4); as to all counts it was further alleged that defendant personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1) (an iron as to counts 1 and 2; a belt as to counts 3 and 4).
All undesignated statutory references are to the Penal Code.
A. The People’s Case
The pediatrician who examined A. at the medical clinic on June 12 testified that she observed first-degree burns on A.’s right arm, abdomen, back and earlobe, as well as bruising on his back. In her experience, a child A.’s age could not have inflicted all of these injuries on himself. Although she believed A. could pick up a four pound iron, it was unlikely that he could maneuver it to burn himself so many times on different parts of his body.
Los Angeles Police Officer William Acosta testified that when he and his partner arrived at the medical clinic in response to a call about suspected child abuse, defendant was outside in the parking lot and A. was inside with M. When Acosta spoke to defendant at the house that day, after M. and the children had been removed by DCFS, defendant said he was home alone with A., but in another room, when he heard A. crying; defendant “spanked” A. once on the back with a belt because he believed that A. was “acting out;” after spanking A., defendant noticed the burn marks and called M.; defendant speculated that A. might have been burned by an iron.
Nurse practitioner Elsie Alfaro worked in the violence intervention program at Los Angeles County U.S.C. hospital. Her duties included physical assessment of children to determine whether they had been abused. When Alfaro examined A. on June 13th, in M.’s presence, she found several second-degree burns and several bruises on A.’s face and body. All of the burns were consistent with having been caused by an iron. Alfaro believed that a child of A.’s age would not have the strength to pick up the iron that caused his injuries. Alfaro believed that A. could have caused some of the burns himself, but not all of them. The bruises on A.’s back were unlikely to have been caused by a fall, because one usually falls forward and the bruises were on A.’s back. Moreover, the presence of multiple bruises was inconsistent with having been caused by a fall, which would usually cause just one or two bruises. The fact that A. had multiple injuries caused by different things was inconsistent with the history Alfaro was given. During the examination, Alfaro pointed to A.’s arm and asked him, in Spanish, “What happened?” A. replied, “Papi.” “Papi” is Spanish for dad or father.
Los Angeles Police Officer Sandra Lopez and her partner, Tanya Hanamaikai, interviewed defendant at his home on June 13th. Defendant showed Lopez a black belt with an eagle buckle (People’s Exh. 6) but denied ever hitting A. with the belt; he explained that he told the other officers that he had done so because he felt the need to say something. Defendant said he was alone with A. – either in a different room or in the same room but turned away – when he heard a loud noise; when defendant looked at A., he did not immediately realize that A. had been burned and thought he was acting up but he did not hit A.; defendant was upset when he realized A. had burned himself. Defendant speculated that A. burned himself on an iron that M. left on when she went to work that morning. Defendant told Lopez that it could have been worse, because A. could have burned the brand new carpet.
B. Defendant’s Case
Defendant testified that on June 11th, M. followed her usual practice of ironing clothes on the carpet in defendant’s brother’s room; she was rushing because she was late and when she left the house, she left the iron plugged in – a fact defendant only noticed after A. was burned. Meanwhile, after M. left, defendant was in his bedroom fixing some furniture while A. played in the same room. At some point, A. left the room. A few minutes later, defendant heard A. yell. Defendant looked around the house until he found A. in the room where M. had been ironing. A. was next to the iron, crying. When defendant asked A. what was wrong, A. held up his right hand, which defendant could see was burned. Defendant demonstrated that the burn was “on the right side just below the arm part, armpit on the inner aspect of the right” and “on the right side just above the waist.” Defendant took A. into the other room, put him on the carpet with a pillow under his head, and waited for him to fall asleep. Once A. was asleep, defendant called M. to tell her what happened. Defendant did not call a doctor because nothing like this had ever happened to him before. Defendant stayed with A. until he woke up about an hour later. Defendant picked up M. from work the next morning and brought her home to change clothes for church. At church, M. noticed A.’s injuries for the first time. On the way home from church, they stopped to buy medicine for A.’s burns. At home, M. tried to put the medicine on the burns, but A. was crying too much. Eventually, A. fell asleep. The next day, they brought A. to the medical clinic.
Defendant denied ever hitting A. with a belt. Defendant admitted telling the policeman in the medical clinic parking lot that he had done so, explaining: “[W]ell, his mother had already told him and then the policeman was, like, threatening me saying that if I didn’t tell the truth he was going to arrest me. And that was where I said I got scared and I said, ‘Yes, it’s true.’ ” Defendant complained the policeman’s attitude was “a little bit like a jerk.” After speaking to defendant, the officers went back into the clinic. A few hours later, defendant saw M. and A. in the back of the patrol car that the officers parked behind defendant’s car. The officers took the baby seat from defendant’s car and told him he could pick up M. and A. after the police took photographs. Defendant went home and about an hour later, the same two police officers came to his house. Feeling pressured because they were taking M. and A. away and because they had threatened him in the parking lot, defendant said he hit A. with a belt, but this was not true. Defendant also told a social worker that he hit A. because the social worker had already been told this; the social worker threatened to take the children away and defendant “thought it was better to just keep going with the same version.” Regarding the comment, “It could have been worse, ” defendant explained that he actually said, “ ‘Well, can you just imagine, can you just imagine if it had fallen over? It could have burned the carpet.’ ”
Defendant testified that he saw M. hit A. hard; sometimes she spanked him on the back and sometimes she pulled him by the ear. Defendant told M. not to hit A.
Three witnesses testified to defendant’s good character: defendant’s mother, the mother’s long time employer, and the family’s pastor. Defendant’s mother testified that M. moved into the family home about seven months before the incident occurred. While M. was living there, defendant’s mother observed M. grab A. by the ear, drag him into the bedroom, and hit him. She saw M. hit A. hard many times. The pastor testified he had known defendant for 12 years. He characterized defendant as having a “peaceful character” and said the defendant communicated well with people and was very gentle. The pastor did not believe defendant had the ability to hurt anybody, particularly a child.
C. People’s Rebuttal
Officer Tanya Hanamaikai testified that she kept in contact with M. at the women’s shelter where she and C. were living. Hanamaikai brought M., A. and C. to defendant’s preliminary hearing. In the hallway outside the courtroom, Hanamaikai saw M. talking to the pastor who testified to defendant’s good character at trial; M. and C. were crying. When Hanamaikai drove M. and C. back to the shelter, their demeanor was completely different than when she brought them to court earlier that day in that they were no longer communicative. When Hanamaikai tried to contact M. the next day, she was told that M. and C. had left the shelter some time the night before and no one knew where they were. Hanamaikai never heard from M. or C. again.
D. Verdict and Sentencing
The jury found defendant guilty as charged, including the personal use of a deadly weapon. He was sentenced to eight years, eight months in prison, comprised of the six year upper term on count one (felony child abuse), plus a consecutive one year, four months (one-third the middle term on count three) (felony child abuse); plus a consecutive one year for the deadly weapon enhancement on count one; plus a consecutive four months (one third) for the deadly weapon enhancement on count three. Sentence on counts two and four (corporal injury to a child) was stayed pursuant to section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
A. Failure to Give CALCRIM No. 821 Was Harmless Error
Defendant contends, and the People concede, that although defendant was charged with felony child abuse, the trial court erroneously gave the pattern jury instruction for misdemeanor child abuse, which omitted an essential element of the felony offense. We agree, conclude the error was harmless.
The distinction between felony child abuse in violation of section 273a, subdivision (a) (the offense charged in counts 1 and 3) and misdemeanor child abuse in violation of section 273a, subdivision (b), is that the felony is committed “under circumstances or conditions likely to produce great bodily harm or death” (§ 273a, subd. (a)), whereas the misdemeanor is committed “under circumstances or conditions other than those likely to produce great bodily harm or death” (§ 273a, subd. (b)). This distinction is reflected in the jury instructions for each crime: CALCRIM No. 821 for felony child abuse and CALCRIM No. 823 for misdemeanor child abuse.
Section 273a, subdivision (a) provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished....” (Italics added.) Subdivision (b) of the statute provides: “Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.” (Italics added.)
Trial courts have a sua sponte duty to instruct the jury on the essential elements of an offense. (See People v. Mojica (2006) 139 Cal.App.4th 1197, 1208 (Mojica).) The failure to instruct on an element of the offense ordinarily requires reversal of a conviction unless the error was harmless under the standard announced in Chapman v. California (1967) 386 U.S. 18: we will affirm only if it appears beyond a reasonable doubt that the error did not contribute to the verdict. (Mojica, supra, at p. 1208; see also People v. Ortiz (2002) 101 Cal.App.4th 410, 416 (Ortiz) [“[I]f no rational jury could have found the missing element unproven, the error is harmless beyond a reasonable doubt and the conviction stands. [Citations.]”].) Instructions on charged enhancements may cure a defect in the instruction on the substantive offense. For example, in People v. Valdez (2002) 27 Cal.4th 778, 792 (Valdez), our Supreme Court held that the failure to instruct on the willfulness element of a violation of section 273a, subdivision (a) was harmless inasmuch as the jury found true a section 12022.95 enhancement, which required a finding that the defendant “ ‘under circumstances or conditions likely to cause great bodily harm or death, willfully caused or permitted [the victim] to suffer... or... willfully caused or permitted [the victim] to be injured or harmed, and that injury or harm resulted in her death.’ [Citation.]”
Here, the trial court gave CALCRIM No. 823, the pattern instruction for misdemeanor child abuse; it did not give CALCRIM No. 821, the pattern instruction for felony child abuse. The following italicized language, which is included in CALCRIM No. 821, was omitted from CALCRIM No. 823 as given: “To prove that the defendant is guilty of [felony child abuse], the People must prove that: [¶] The defendant inflicted pain or suffering on the child under circumstances or conditions likely to produce great bodily harm. [¶]... [¶] The phrase likely to produce great bodily harm means the probability of serious injury is great.” (Italics added.)
As given, CALCRIM No. 823 reads: “The defendant is charged in Counts 1 and 3 with child abuse in violation of Penal Code section 273a(b). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully inflicted unjustifiable physical pain or mental suffering on a child; [¶] AND [¶] (2/3). The defendant did not act while reasonably disciplining a child. [¶] Someone commits an act willfully when he does it willingly or on purpose. [¶] A child is any person under the age of 18 years. [¶] Unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances.”
But the trial court also gave CALCRIM No. 3145, which instructs on the elements of the personal use of a deadly or dangerous weapon enhancement charged as to each count pursuant to section 12022, subdivision (b)(1). As given, CALCRIM No. 3145 reads: “If you find the defendant guilty of the crimes charged in Counts 1, 2, 3, or 4, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant used a deadly or dangerous weapon during the commission of that crime.... [¶] A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Someone personally uses a deadly or dangerous weapon if he or she intentionally does any of the following: [¶] 1. Displays the weapon in a menacing manner... [¶] OR [¶] Hits someone with the weapon, or uses the weapon in a manner which is likely to cause great bodily injury or death. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” The jury found the personal weapon enhancement true as to each count.
Under these circumstances, the error in giving CALCRIM No. 823 rather than CALCRIM No. 821 was harmless beyond a reasonable doubt. No rational jury could have found true the enhancement, which required a finding that the defendant personally used a deadly or dangerous weapon in a manner capable of causing death or great bodily injury in the commission of the crimes alleged in counts 1 and 3, and not also found those offenses were committed under circumstances or conditions likely to produce great bodily harm. (Cf. Valdez, supra, 27 Cal.4th at p. 792.; Ortiz, supra, 101 Cal.App.4th at p. 416.)
The error as to count one, based on the iron burns, is harmless for another reason. No rational jury could find that burning a child multiple times with an iron would not cause great bodily injury.
B. The Confrontation Clause Error Was Harmless
Defendant contends that his Sixth Amendment right to confrontation was violated by the admission into evidence of A.’s hearsay statement to the nurse practitioner. At the outset, we address the People’s contentions that defendant has forfeited the issue by not formally objecting under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Before the nurse testified that A. had said “Papi” when he was asked, “What happened, ” the prosecutor raised the admissibility of the testimony with the court and defense counsel outside the jury’s presence. The District Attorney stated that she proceeded in that fashion because “I knew [defense] counsel would have an objection. There ensued a discussion among court and counsel on hearsay, hearsay exceptions, “Crawford, ” subpoenaed records, and whether the question the nurse asked was intended to elicit testimony. In fact it was the prosecutor, not defense counsel, who first uttered “Crawford.” The court and counsel were undoubtedly referring to Crawford, supra, 541 U.S. at page 59 and, by implication, the series of United States and California Supreme Court cases that discuss the relationship between state hearsay rules and the right to confront and cross-examine witnesses. (E.g. Davis v. Washington (2006) 547 U.S. 813 (Davis); People v. Cage (2007) 40 Cal.4th 965; People v. Geier (2007) 41 Cal.4th 555.) It is apparent to us that both the confrontation rights in Crawford and the state hearsay issues were properly before the court, which considered both aspects before ruling that the evidence was admissible. Under these circumstances, defendant did not forfeit the issue on appeal. We now discuss the correctness of the trial court’s ruling.
Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___ [129 S.Ct. 2527] and People v. Vargas (2009) 178 Cal.App.4th 647 (Vargas) are also part of this series of cases but they were decided after the trial here.
Under the Sixth Amendment to the United States Constitution, a defendant in a criminal trial has the right to confront and cross-examine adverse witnesses. In Crawford, supra, 541 U.S. at page 59, the United States Supreme Court held that testimonial out-of-court statements offered against a criminal defendant are rendered inadmissible by the confrontation clause unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination.
In Davis, supra, 547 U.S. at page 823, the United States Supreme Court fine-tuned the distinction between testimonial and non-testimonial out-of-court statements to law enforcement personnel: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
Davis consolidated two domestic violence convictions: Davis v. Washington and Hammon v. Indiana. In the Davis v. Washington conviction, the defendant was charged with violation of a domestic no-contact order, and the state’s only witnesses were the investigating officers. The victim, Michelle McCottry, did not appear. (Davis, supra, 547 U.S. at p. 818.) At issue was the admissibility of a recording of McCottry's call to 911. The court’s opinion sets out the 911 call. It is apparent from the recording that McCottry was in the process of being attacked; she identified the defendant as her assailant; in response to a question from the 911 operator, McCottry stated, “He’s here jumpin’ on me again;” and when the operator asked if there are any weapons, McCottry responded, “No. He’s usin’ his fists.” (Id. at p. 817.) The court in Davis concluded that the circumstances of the questioning by the 911 dispatcher “objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. [McCottry] simply was not acting as a witness; she was not testifying. What she said was not ‘a weaker substitute for live testimony’ at trial....” (Id. at p. 828.) The court noted that the emergency ended during the call when the defendant left the scene and “from that point on, McCottry’s statements were testimonial, ” but the only issue on appeal was the admissibility of McCottry’s statement identifying the defendant as her attacker during the nontestimonial portion of the call. (Id. at pp. 828-829.)
In the Hammon v. Indiana part of the opinion, the defendant was charged with domestic battery on his wife, Amy Hammon. (Davis, supra, 547 U.S. at p. 820.) Like McCottry, Hammon did not appear at trial. At issue was the admissibility of Hammon’s statements to a police officer responding to a domestic disturbance call at the Hammon home: Hammon was alone on the front porch when two officers arrived; she appeared somewhat frightened, but told the officers “nothing was the matter.” Inside the house, the defendant told the officers he and Hammon had been arguing but it never became physical. While one officer remained with the defendant in the kitchen, the other spoke to Hammon in the living room. She told the officer that the defendant “ ‘broke the phone, broke the lamp, broke the front of the heater. When it became physical he threw her down into the glass of the heater. [¶] She informed me [the defendant] had pushed her onto the ground, had shoved her head into the broken glass of the heater and that he had punched her in the chest twice I believe.’ ” (Id. at pp. 820-821.) The Supreme Court concluded that “[t]here was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything, (citation). When the first officers arrived, Amy told them that things were fine, [citation], and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis)[v. Washington] ‘what is happening, ’ but rather ‘what happened.’ Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime--which is, of course, precisely what the officer should have done.” (Id. at p. 830.) The court concluded Hammon’s statements were inadmissible under Crawford.
In People v. Saracoglu (2007) 152 Cal.App.4th 1584, the witness came to the police station after her husband choked her, pushed her, hit her and threatened to kill her if she called the police. The court in Saracoglu concluded that the officer was “[f]aced with an obviously distraught woman, who was crying, shaking and very afraid, [the officer’s] primary purpose was to ascertain what was going on. In doing so, [he] elicited the information he needed to understand [the witness’s] situation and to take action ‘to resolve the present emergency.’ [Citation.] These circumstances show the primary purpose of [the officer’s] interrogation was not to ‘establish or prove past events potentially relevant to later criminal prosecution’ [citation], but rather ‘to enable police assistance to meet an ongoing emergency’ [citation]... [¶] [The witness’s] account to [the officer] of having been assaulted and threatened by [the defendant] was nontestimonial within the meaning of Davis, and therefore its admission at [the defendant's] trial was not a confrontation clause violation.” (Saracoglu, supra, at p. 1598.)
In Vargas, supra, 178 Cal.App.4th 647 (review den. Feb. 3, 2010), the defendant was convicted of forcible rape and rape by a foreign object. At trial, a nurse who conducted a sexual assault exam of the victim testified about the victim’s statements during the exam in which the victim described the assault. The victim, a minor, did not testify. The Vargas court concluded that the victim’s statements to the examining nurse were testimonial because they were made as part of the evidence gathering process for possible use at trial, instead of as part of a medical examination designed to diagnose an injury and render treatment. (Vargas, supra, at pp. 660-662.) Although admission of the statements violated the confrontation clause, the court held the violation was harmless as to the conviction for forcible rape because substantial other evidence supported the conviction, but was not harmless, and therefore required reversal of, the conviction for rape by penetration with a foreign object, because the only evidence to support that charge came from the nurse's testimony. (Id. at pp. 662-664.)
Here, over defendant’s objections, the trial court allowed the nurse practitioner to testify that during her examination of A., in response to her pointing to his arm and asking what happened, A. said “Papi, ” the Spanish word for father. Whether A.’s statement to the nurse practitioner was more similar to McCottry’s 911 in Davis and to the victim’s statement to the police officer in Saracoglu, on the one hand, or to Hammon’s statement to the officer in Davis and to the rape victim’s statement to the nurse in Vargas on the other hand, is a close question. Like the police officer in Saracoglu, the nurse practitioner who examined A. was charged with making a determination of whether it was safe to send him home. On the other hand, like the nurse in Vargas, the nurse’s question to A. could be seen as part of the investigation into whether he had been abused. The court did not expressly find there was a non-investigating purpose for the nurse’s question. Nevertheless, implicit in the court’s ruling was the reasonable finding that even with the passage of time there was an ongoing emergency because the child might shortly be returned to either or both parents. Ultimately, we need not resolve the issue because, as in Vargas, any error in admitting A.’s statement was harmless beyond a reasonable doubt. Substantial other evidence supported the conviction. This included the undisputed evidence that defendant was alone with A. when A. was burned multiple times with an iron; the expert testimony that A. was not capable of causing all of the injuries to himself; defendant’s admission (albeit later recanted) that he hit A. with a belt; and the fact that defendant admitted lying to the police (either when he told them he hit A. with the belt, or when he recanted).
C. There Was No Sentencing Error Under Section 654
Defendant contends the separate sentences imposed for the two counts of felony child abuse (counts 1 and 3) violated section 654. He argues that acts involving the iron and acts involving the belt formed a single indivisible course of conduct. We disagree.
Characterizing this contention as a challenge to the trial court’s choice of consecutive sentences, the People argue it was waived by defendant’s failure to object in the trial court. But a fair reading of the Opening Brief establishes that the contention is actually a challenge to the failure to stay multiple punishments under section 654. Although defendant did not raise the multiple punishment issue in the trial court, “the waiver doctrine does not apply to questions involving the applicability of section 654.” (People v. Perez (1979) 23 Cal.3d 545, 549-550.)
Penal Code section 654, subdivision (a) prohibits multiple punishments for multiple offenses that arise from the same act or indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 18.) When the defendant commits more than one physical act during a criminal enterprise, the question is whether the course of criminal conduct is divisible and “therefore gives rise to more than one act within the meaning of [] section 654.” (Neal v. State of California, supra, at p. 19.) Resolution of that question, in turn, “depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses, but not for more than one.” (Ibid.) Whether the defendant harbored a single intent and objective is a factual question and, in order for multiple punishments to be allowed, there must be substantial evidence to support a finding, explicit or implicit, that the defendant formed a separate intent and objective for each offense for which he was sentenced. (People v. Coleman (1989) 48 Cal.3d 112, 162.) As with other factual questions, we review the trial court’s determination of this issue “in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Here, there was substantial evidence to support a finding that defendant had separate intents and objectives for burning A. and then hitting him with a belt. There was no evidence that A. was crying or otherwise “acting up” before he was burned with the iron, and thus no evidence that defendant burned A. with the intent and objective of punishing him for some misdeed. But defendant’s initial statement to the police officers was evidence that defendant hit A. with the belt to punish him for “acting up” after he was burned with the iron. From this evidence, the trial court could have reasonably found that defendant did not have the same intent or objective in first burning A. with an iron and then hitting him with a belt.
D. Substantial Evidence Supported the Deadly Weapon Enhancement
Defendant contends insufficient evidence supported the true finding on the section 12022, subdivision (b)(1) enhancement on counts 2 and 4. He argues that bruises caused by a belt cannot support such an enhancement. We disagree.
We review the record in the light most favorable to the judgment and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1175.) Our inquiry is directed to whether any rational trier of fact could have found the elements of the offense (or enhancement) beyond a reasonable doubt. We do not resolve credibility issues or evidentiary conflicts, because that is the exclusive province of the trier of fact. Unless the testimony is physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. (Id. at pp. 1180-1181.) These rules apply to circumstantial evidence, and we must also accept logical inferences that a jury might have drawn from such evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)
Section 12022, subdivision (b)(1) provides: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” In determining whether an object is a deadly weapon in the context of section 12022, subdivision (b)(1), we may also look to the definition of “deadly weapon” in the context of other statutes. (People v. Page (2004) 123 Cal.App.4th 1466, 1472 (Page) [“Cases discussing the definition of a deadly weapon routinely rely on other cases dealing with different statutes.”].)
“There are two classes of dangerous or deadly weapons: instrumentalities that are weapons in the strict sense, such as guns and blackjacks; and instrumentalities which may be used as weapons but which have nondangerous uses, such as hammers and pocket knives. [Citation.] Instrumentalities in the first category are ‘ “dangerous or deadly’ ” per se. [Citation.] An instrumentality in the second category is only ‘ “dangerous or deadly” ’ when it is capable of being used in a ‘ “dangerous or deadly” ’ manner and the evidence shows its possessor intended to use it as such. [Citation.]” (People v. Burton (2006) 143 Cal.App.4th 447, 457 (Burton).) In determining whether an object falls into the second category, the trier of fact may look to the nature of the weapon, the manner of its use, and any other relevant fact. (People v. Blake (2004) 117 Cal.App.4th 543, 555.) Evidence that the defendant struck someone with an instrument capable of inflicting great bodily injury will support a section 12022, subdivision (b)(1) enhancement. (Blake, supra, at p. 559 [chemical spray causing victims substantial, though transitory respiratory distress, burning sensation and blindness sufficient to support a § 12022, subd. (b) enhancement].) Although neither physical contact nor injury is required, the extent of any injuries and their location may be considered. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1086 (Beasley).)
In People v. Jaramillo (1979) 98 Cal.App.3d 830, 837, the court held that evidence the defendant used an 18 to 20-inch long, 1 inch in diameter stick to hit her young daughters on the arms and buttocks as a form of discipline, causing multiple contusions, abrasion and swelling, was sufficient to support a finding that the stick was a deadly weapon within the meaning of section 12022, subdivision (b). (Compare Beasley, supra, 105 Cal.App.4th at pp. 1086-1087 [evidence that the defendant struck the adult victim with a broom stick and a hollow plastic vacuum attachment insufficient to establish either instrument was used in a manner capable of producing great bodily injury].) In Page, supra, 123 Cal.App.4th at page 1472, evidence that the defendant touched a pencil against the victim’s neck was held to support a finding that the pencil was a deadly weapon. And in People v. Helms (1966) 242 Cal.App.2d 476, 486-487, evidence the defendant used a pillow in an attempt to smother the victim was held to support a finding that the pillow was a deadly weapon.
Here, there was substantial evidence that the belt with which defendant hit A. was an instrumentality capable of being used in a dangerous or deadly manner which defendant used in a manner showing that he intended to use it as such. (Burton, supra, 143 Cal.App.4th at p. 457.) This evidence includes A.’s young age (22 months) and concomitant vulnerability and the multiple bruises suggesting that defendant hit him multiple times. That A. fortuitously suffered only bruising does not compel a contrary result.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J., GRIMES, J.