Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, No. VCF196718B, Gary Paden, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Leopoldo Martinez appeals from a sentence of 75 years to life plus 32 years and four months for sexual molestation and child abuse of his three stepchildren, residential and commercial burglary, and spousal abuse. He contends that there was insufficient evidence to support the child abuse charges. He also contends that there was instructional error. For the following reasons, we affirm.
STATEMENT OF THE CASE
On April 14, 2008, appellant was charged in a 23-count information with oral copulation with a child under 10 (Pen. Code, § 288.7, subd. (b); counts 1 and 2), forcible lewd conduct upon a child (§ 288, subd. (b)(1); counts 3 through 11), residential burglary (§ 459; count 12), commercial burglary (§ 459; count 13), corporal injury to a spouse or the child’s parent (§ 273.5, subd. (a); count 14), felony child abuse (§ 273a, subd. (a); counts 15 through 17), misdemeanor child cruelty (§ 273a, subd. (b); counts 18 through 20), and misdemeanor contributing to the delinquency of a minor (§ 272, subd. (a)(1); counts 21 through 23).
All further section citations are to the Penal Code, unless otherwise stated.
As to counts 3, 4, 6, 7, 9, 10 and 11, the information also alleged that multiple victims were involved and there was substantial sexual conduct. (§§ 667.61, subd. (b); 1203.0666, subd. (a)(8).) As to counts 5 and 8, multiple victim allegations were made (§ 667.61, subd. (b)), and in count 14, the information alleged great bodily injury. (§ 12022.7, subd. (a).)
On November 13, 2008, the jury found appellant guilty on all counts, and found true the enhancements.
On February 3, 2009, the trial court imposed a sentence of 75 years to life, plus an additional and consecutive determinate term of 32 years and four months.
On April 8, 2009, appellant filed a timely notice of appeal.
FACTS
Deanna R. was appellant’s girlfriend. Her children are T.R., E.R., N.R., L.R., and F.R. L.R. and F.R. are children that Deanna had with appellant. She started dating appellant in 2001, and they moved to Ivanhoe in 2004. At trial, Deanna testified that she did not remember any incident where appellant caused her to be injured. However, she admitted that appellant would sometimes hit her when they lived in Ivanhoe. She remembered telling a detective that appellant kicked her in the rib and damaged it. The damaged rib subsequently broke when she picked up a car battery. Deanna also remembered getting a bloodied nose during a fight with appellant. Her kids where present when this occurred. Deanna also testified that she saw appellant “smack” the boys on the back of their head or neck area, but claimed that the smacks were not “hard.” However, she admitted that the smacks caused the boys to cry. Deanna denied ever seeing appellant touch her boys in a sexual manner, and she claimed that the boys were never home alone with appellant. However, she admitted that she left the boys alone with appellant sometimes.
At the time of the trial, T.R. was 12 years old and in the sixth grade. T.R. was 10 or 11 when he first met appellant. T.R. did not get along with appellant because appellant made his brother suck appellant’s “private, ” appellant constantly hit T.R.’s mother, and appellant hit T.R. and his brother in the back of the head.
According to T.R., he saw appellant hit his mother “constantly.” His mother told him that appellant broke her ribs three times. Appellant also hit T.R., N.R., and H.R., with his fist and knuckles on the back of their heads..R. testified that “[i]t felt like someone was hitting me in the head with a brick.” Appellant also forced N.R. to suck appellant’s private and made T.R. suck appellant’s “boob” at the same time. Appellant also made them steal from a Wal-Mart store.
N.R. was nine years old and in the fourth grade at the time of trial. N.R. testified that appellant often would make a fist and “smack” him and his brothers on the head for no reason. The smacks would hurt, give him a headache, and make him cry. N.R. also saw appellant kick N.R.’s mother in the stomach or in the nose, and once he saw appellant pull her hair. N.R. also was present when appellant kicked N.R.’s mother in the nose. N.R. testified that his mother’s nose bled for about half an hour and his mother told him it was broken.
N.R. also testified about an incident when he was in second grade. Appellant made him and T.R. take off their clothes. Once they were naked, appellant touched N.R.’s private. Soon after that incident, appellant made N.R. suck on his private. N.R. had to suck appellant’s private over several days. N.R. also testified about the incident when T.R. was present while N.R. had to suck appellant’s private. Appellant also forced N.R. to touch appellant’s private three or four times. N.R. did what appellant told him to do because N.R. was afraid appellant would hit him.
Appellant also made N.R. take items from Wal-Mart or another house. According to N.R., appellant “told me to get a bag and then put whatever he wanted in the bag and just walk out of the store.” Appellant also made them take things from other person’s houses, including, on one occasion, a television.
N.R. first told his grandmother about the things that appellant made him do. The grandmother reported the abuse to the Salinas Police Department. N.R. eventually told the police what had happened, and the police spoke with appellant about it. Later, appellant “smacked” N.R. on the head and told him not to talk with the police again.
H.R. was 10 years old and in fifth grade at the time of trial. He testified that appellant hit him and his brothers with appellant’s knuckles on top of their heads. H.R. did not want to tell his mother about the hitting because appellant hit them “really hard” sometimes and he did not want to burden his mother. H.R. also saw appellant kick his mother in the ribs and pull her hair. He also remembered seeing his mother get black eyes. H.R. also testified that appellant took him to Wal-Mart where he stole things with appellant. H.R. saw appellant enter a house and take a television.
Douglas Burch, a deputy sheriff, investigated the case in May of 2007. He spoke with T.R., N.R., and H.R. They told him that appellant hit them on the top of their heads with his fist. They also told the deputy that they were being told to go and steal things from orchards. Deanna told the deputy that she was under the influence of methamphetamine and did not recall if she saw anyone hit the kids.
Deputy Burch also spoke with appellant. Appellant denied that he hit the kids in an abusive manner. He claimed that he only spanked the kids on their bottoms. He also denied that he made the kids steal anything.
Rafael Vasquez, a detective with the Farmersville Police Department, later interviewed appellant. Appellant denied that a television in the house was stolen. He also claimed that it was Deanna who was violent most of the time. Appellant denied that he ever hit her or caused any physical injury to her. Appellant admitted that he used a closed fist to discipline the kids, but he claimed that he would just “nudge” them on the side of the head with his fist. He denied that he ever engaged in any sexual abuse of the children.
Detective Rodney Klassen of the Juvenile Sexual Assault Division of the Tulare County Sheriff’s Department spoke with Deanna on January 9, 2008. Deanna said that domestic violence existed in their relationship. She denied knowing about any thefts by appellant or her children, but she admitted that she was aware that things had been stolen from Wal-Mart. She also denied any knowledge of the alleged child molestation. Deanna told the detective that she saw appellant hit T.R., N.R., and H.R. in the back of their head or neck and she believed that it was an inappropriate form of discipline.
A Child Abuse Response Team (CART) interviewed T.R. and N.R. The CART interviews of T.R. and N.R. were played for the jury, and were consistent with their trial testimony.
Manuel Legarda was incarcerated for child molestation crimes at the time of his testimony. Legarda was sentenced to 24 years for the crimes he committed, and he could get two years removed from his sentence for testifying. Legarda testified that he knows appellant because the two were in a “program” together while in custody. Legarda knew what appellant was charged with because he read about it in the newspaper. Appellant told Legarda that he got into a fight with his wife and later he realized that he had broken her ribs. Appellant also told Legarda that, when his wife refused to have sex with him, he would have the children perform oral sex on him. Appellant also told Legarda that he took the children to Wal-Mart or Target and had them steal videos, DVDs and DVD players, movies or CDs. Appellant would also have the kids steal fruit.
Neal Mestas was a homeowner in Visalia, California. He testified that the television set in his house became missing, that he subsequently picked it up from the Farmersville Police Department after it was recovered from appellant, and that he did not know appellant and did not give appellant permission to take the television set.
Appellant testified on his own behalf. He denied all of the allegations. He admitted that he pulled the hair of the kids and hit the kids, but only with his hand and did not leave any marks. He asserted that he did not tell Legarda that he was guilty, but just told Legarda what the kids had accused him of doing. On cross-examination, appellant was asked what he had told the police about the stolen television set. He stated: “Oh, I told them that I had gotten it from the flea market, from the flea market. I don’t know. [$]55 or $60. That’s what I told them.”
DISCUSSION
A. Convictions for Felony Child Abuse
Appellant first contends that there was insufficient evidence to prove the felony child abuse charges because the occasional hitting of the boys in the head with his fist or knuckles is not likely to inflict great bodily injury or death. We disagree.
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.)
Section 273a, subdivision (a), provides in relevant part that: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes …, or inflicts thereon unjustifiable physical pain …, or having the care or custody of any child, willfully causes … the person or health of that child to be injured, … shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.” (§ 273a, subd. (a).) It is well-established “[t]hat the use of hands or fists alone may support a conviction of assault ‘by means of force likely to produce great bodily injury.…’” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) However, there is no requirement that the victim actually suffer great bodily harm. (People v. Jaramillo (1979) 98 Cal.App.3d 830, 835.) “Section 273a does not focus upon actual injury produced by abusive actions but ‘rather upon whether or not the attendant circumstances make great bodily injury likely. Occurrence of great bodily injury is not an element of the offense.’ [Citation.]” (People v. Lee (1991) 234 Cal.App.3d 1214, 1220.)
It is common knowledge that a hard blow to the head is likely to produce great bodily injury or death. Here, the mother testified that she saw appellant “smack” the boys on the back of their head or neck area and the smacks caused the boys to cry. T.R. testified that appellant hit him and his brothers with his fist and knuckles on the back of their heads, and that the smacks “felt like someone was hitting me in the head with a brick.” N.R. testified that appellant often would make a fist and “smack” him and his brothers on the head for no reason. The smacks would hurt, give him a headache, and make him cry. H.R. testified that appellant hit him and his brothers with appellant’s knuckles on top of their heads. H.R. testified that sometimes the hits were “really hard.” Thus, the record shows that appellant repeatedly directed blows to the back of a child’s head with his fist or knuckles with sufficient force to cause the child to cry. Based upon this record, a jury could find that appellant unjustifiably inflicted physical pain under circumstances or conditions likely to produce great bodily injury. Therefore, substantial evidence supports appellant’s three convictions for child abuse under section 273a, subdivision (a).
B. Convictions for Misdemeanor Child Abuse
Appellant next contends that there was insufficient evidence to support his misdemeanor convictions for child cruelty based on his beating of their mother in their presence. He asserts that the evidence was vague that the kids knew that appellant was hurting their mother. He also contends that there was no evidence that he knew that the children were present when he beat the mother. We disagree.
Section 273a, subdivision (b), provides in relevant part that: “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 … mental suffering, … is guilty of a misdemeanor.” (§ 273a, subd. (b).) The difference between felony child abuse, under section 273a, subdivision (a), and misdemeanor child abuse, under section 273a, subdivision (b), is whether the acts or omissions involved circumstances or conditions likely to produce great bodily injury or death to the child. (People v. Burton (2006) 143 Cal.App.4th 447, 454, fn. 4 (Burton).)
Here, the prosecution contended that appellant was guilty of misdemeanor child endangerment because he caused unjustifiable mental suffering to the three boys when he beat their mother in their presence. In a case involving similar facts, an appellate court held that a “[d]efendant’s conviction under section 273a, subdivision (b), then, rests on whether defendant indirectly inflicted harm on his older son by attacking [his son’s mother] while the minor was at the scene; more specifically, whether the evidence is sufficient that defendant willfully caused or permitted the minor to suffer, or inflicted unjustifiable mental suffering on him, and whether defendant did so with a mental state of criminal negligence toward the minor.” (Burton, supra, 143 Cal.App.4th at pp. 454-455.) The appellate court affirmed the conviction because “[t]he record contains substantial evidence that defendant’s attack on [the mother] caused or inflicted on his older son unjustifiable mental suffering.” (Id. at p. 455.) The court stated, “[w]e must bear in mind that the attacker was not just anyone, but the minor’s father, and the victim was not just anyone, but the minor’s mother, whose face had been slashed severely.” (Ibid.) The court also found that “[t]here is also sufficient evidence that defendant acted with criminal negligence toward the minor when he attacked [the mother]. There is no doubt that defendant’s attack on [the mother] was a willful act, and that defendant’s older son was at the scene.” (Ibid.) The court noted that appellant had argued that the attack on the mother did not occur in the presence of the son, but found that the “record shows that at the time of the attack, defendant knew of the minor’s presence” because “[b]efore the attack, defendant crouched near the driver’s side front tire of [the mother’s] car, where he would have been able to hear [the mother] place the younger son in the car seat, and the older son say that he had to urinate.” (Ibid.) The court concluded that appellant’s conduct towards his son constituted criminal negligence because “[a] reasonable person would easily recognize that a child would endure unjustifiable mental suffering by being on the scene while his father slashed his mother’s face several times, and then immediately seeing the horrible, bloody aftermath.” (Ibid.)
Here, T.R. testified that he saw appellant hit his mother “constantly.” His mother told him that appellant broke her ribs three times. N.R. also saw appellant hit his mother. He testified that appellant kicked his mother in the stomach or in the nose, and once he saw appellant pull her hair. N.R. also was present when appellant kicked N.R.’s mother in the nose. N.R. testified that his mother’s nose bled for about half an hour and his mother told him it was broken. H.R. testified that he saw appellant kick his mother in the ribs and pull her hair. Finally, Deanna testified that the children were present when she got a bloody nose in a fight with appellant. Thus, there was sufficient evidence to find that the children suffered unjustifiable mental suffering because they were present when appellant injured their mother on multiple occasions.
Appellant contends that there was no evidence that he knew of the children’s presence at the times that he assaulted their mother. We disagree. From the evidence, we can reasonably infer that appellant knew or should have known that the children were present when he beat their mother. T.R. testified that appellant would take his mother into a room to hit her and “she would like be yelling call the police.” T.R. testified that “one of me and my brothers would go up to see what was, what was happening.” T.R. also testified that the door to the room was “opened.” N.R. testified that his father beat his mother “right in front of him.” H.R. testified that he was sometimes present when appellant beat his mother and that he, T.R., and N.R. would go away into a room after the fighting started. From this testimony, a jury could reasonably infer that appellant knew the children were present because he could see them when he started fighting with their mother. There was no testimony that they were hiding from him and that he did not know they were present. Furthermore, when appellant tried to beat the mother outside of the children’s sight by taking her to a room on the second floor, a jury could reasonably infer that appellant could see, through the opened door to the room, the children who were checking up on their mother’s call for help. The fact that Deanna yelled out that someone should call for help also creates an inference that Deanna and appellant knew that the children were present in the house and that the children could hear appellant beating their mother.
Thus, there was sufficient evidence to support appellant’s conviction for misdemeanor child endangerment because appellant knew or should have known that beating up the children’s mother in their presence would inflict unjustifiable mental suffering.
C. Jury Instructions
Finally, appellant argues that the trial court erred in giving CALCRIM Nos. 361 [failure to explain or deny adverse testimony] and 362 [consciousness of guilt: false statement]. He contends that the giving of these instructions violated his constitutional rights to due process, trial by jury, and a fair trial. We examine each jury instruction in turn.
1. CALCRIM No. 361
The trial court instructed the jury with CALCRIM No. 361 as follows:
“If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based upon what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. “If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
Trial counsel did not object to CALCRIM No. 361. Thus, appellant has forfeited his claim of instructional error by failing to timely object during the trial. (People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Even if appellant has not forfeited the claim, we conclude that any error was harmless.
Initially, we address appellant’s contention that CALCRIM No. 361 violates his federal constitutional right to due process, trial by jury and a fair trial because it is partisan and argumentative, impermissibly reduces the prosecution’s burden of proof, and intrudes on the jury’s exclusive province as fact-finders. We disagree.
CALCRIM No. 361 is similar in content to CALJIC No. 2.62, which the California Supreme Court upheld in People v. Saddler (1979) 24 Cal.3d 671, 680-681 (Saddler). In Saddler, the court “determined that CALJIC No. 2.62 suffers no constitutional or other infirmity and may be given in an appropriate case.” (Id. at p. 681.) The court rejected arguments that the instruction creates an inference of guilt, relieves the prosecution of proving every element of the offense and its burden of proof of beyond a reasonable doubt, and singles out defendant’s testimony and unduly focuses on it. (Id. at pp. 680-681.) Furthermore, CALCRIM No. 361 is consistent with Evidence Code section 413 which provides that “the trier of fact may consider... the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him.”
In light of Saddler and the instruction given in this case, we conclude that CALCRIM No. 361 is not constitutionally infirm. The instruction is not partisan and argumentative because it does not unduly focus on appellant’s testimony. It does not reduce the prosecution’s burden of proof because, by its plain language, the prosecution must still prove each and every element of the offense beyond a reasonable doubt. Finally, CALCRIM No. 361 does not deny appellant’s right to trial by jury because it leaves it to the jury to determine the meaning and importance of any failure to explain or deny evidence against him.
Although CALCRIM No. 361 is not facially defective, appellant contends that it should not have been given in this case. Appellant asserts that he “testified and explicitly denied committing each and every offense. There was nothing he failed to explain or deny, and there was nothing so wildly implausible or bizarre that the instruction was warranted.” The People concede that the instruction should not have been given, but contend that any error was harmless.
In People v. Lamer (2003) 110 Cal.App.4th 1463 (Lamer), the appellate court concluded that, if CALJIC No. 262 was given improperly, the proper standard of review for the instructional error is the harmless error standard adopted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Under Watson, the relevant inquiry is whether it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Id. at p. 836.)
Here, it is not reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. First, as explained by an appellate court, “CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt). It is not reasonably probable a more favorable verdict would have resulted if the instruction had not been given.” (People v. Ballard (1991) 1 Cal.App.4th 752, 756-757.) Second, the evidence was strong in this case that appellant committed the charged offenses. His three stepchildren testified against him, and their testimony was consistent with other evidence including their CART interviews and the testimony of Legarda. Even the testimony of Deanna -- that she was an eyewitness to the appellant smacking the children in the head, that she left him alone sometimes with the children, and that the children were present when she got a bloody nose in a fight with appellant -- supported the children’s testimony on important factual issues. Thus, we conclude that any instructional error was harmless.
2. CALCRIM No. 362
The trial court instructed the jury on CALCRIM No. 362 as follows:
“If the defendant made a false or misleading statement relating to a charged crime knowing the statement was false or intending to mislead, that conduct may show that he was aware of his guilt of the crime and you may consider it in determining his guilt.
“If you conclude that the defendant made such a statement, it is up to you to decide its meaning and importance. However, evidence that a defendant made such a statement cannot prove guilt by itself.”
Trial counsel objected to giving CALCRIM No. 362. However, the trial court instructed the jury on CALCRIM No. 362 because appellant told an officer that he bought the television set for $55 or $60 at a flea market. The trial court found that appellant’s “statement is contrary to other witnesses and a jury may determine that, that was a misleading or false statement. It’s up to the jury to make that determination.”
Appellant argues that CALCRIM No. 362 improperly commented on the defense evidence, informed the jury that the trial court believed appellant lied about his defense, and fatally infected the fairness of his trial. We disagree.
As an initial matter, we conclude that CALCRIM No. 362 is not constitutionally defective and may be given in the appropriate case. We reject appellant’s contention that CALCRIM No. 362 violates his federal constitutional right to due process, trial by jury and a fair trial because it is partisan and argumentative, impermissibly reduces the prosecution’s burden of proof, and intrudes on the jury’s exclusive province as fact-finders. (See People v. Howard (2008) 42 Cal.4th 1000, 1025 [rejecting arguments that the predecessor to CALCRIM No. 362, CALJIC No. 2.03, “was impermissibly argumentative and encouraged the jury to irrationally conclude that false statements may manifest a consciousness of guilt, thereby violating his state and federal constitutional rights to due process, a jury trial before a properly instructed jury, and a fair and reliable capital trial.”]; People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224 [concluding that “these consciousness-of-guilt instructions [including CALJIC No. 203] did not improperly endorse the prosecution’s theory or lessen its burden of proof.”]; People v. Nakahara (2003) 30 Cal.4th 705, 713 [rejecting argument that CALJIC No. 2.03 “improperly allowed the jury to make irrational inferences.”].)
In People v. Edwards (1992) 8 Cal.App.4th 1092, 1103, this court held that “[t]he giving of CALJIC No. 2.03 is justified when there exists evidence that the defendant prefabricated a story to explain his conduct. The falsity of a defendant’s pretrial statement may be shown by other evidence even when the pretrial statement is not inconsistent with defendant’s testimony at trial.” Here, the falsity of appellant’s pretrial statement to the police that he bought the television for $55 or $60 at a flea market could be shown by the testimonies of N.R. and H.R. and the owner of the television set. Thus, the jury should have been instructed on CALCRIM No. 362 so that the jury could determine whether appellant’s pretrial statement was false or misleading, and, if false, its meaning and importance. Therefore, we conclude that the trial court did not err in giving CALCRIM No. 362.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, J., Gomes, J.