Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA339469 Drew E. Edwards, Judge.
Maggie Shrout, by appointment of the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
A jury convicted defendant and appellant Henry Posadas of two counts of felony child abuse (Pen. Code, § 273a, subd. (a)) and two counts of corporal injury to a child (Pen. Code, § 273d, subd. (a)). On appeal, Posadas contends the trial court erred by failing to instruct the jury on a lesser included offense of misdemeanor child abuse. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the evidence in accordance with the usual rules on appeal. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) On January 5, 2008, defendant’s seven-week-old son was taken to the emergency room at Los Angeles Children’s Hospital because of pain, swelling, and decreased use of his femur, or thigh bone. The baby had several injuries including soft tissue swelling on his forehead, bruising and swelling on his right cheek, and bruising and an abraded area on his left cheek. One of his toes was infected, and other toes had cuts and peeling skin. There was a red mark on one of his heels and linear abrasions on one of his arms. X-rays taken on January 5 and January 16, 2008, revealed 16 bone fractures. He had a left clavicle fracture that was healing. Three of his ribs were fractured on his left side. He also had two rib fractures on his right side. The x-rays additionally revealed an acute fracture of the baby’s right femur and a fracture of the tibia near his knee. He also had fractures of the left femur near his knee, and the left tibia near the ankle. He further had multiple fractures in the bones of both arms.
According to the baby’s mother, Roxana M., on the evening of January 5, 2008, defendant was holding the baby and hugging him. Roxana heard her son’s leg crack. He began to cry as if in pain. Roxana removed the blanket covering him and saw that his leg looked swollen. On previous occasions Roxana saw defendant hug and kiss the baby and suck his cheeks with his mouth, giving him “hickeys.” Roxana testified that marks on the baby’s face depicted in photographs taken on or around January 5, 2008, were the result of defendant sucking on the baby’s face. Once Roxana heard her son cry while she was in the kitchen. She went to see what had happened and saw defendant stroking the baby’s arm. Defendant said “perhaps his arm hurts, and that’s why he’s crying[.]” Roxana said defendant would always hug the baby very hard to his chest, and she would tell him he was hugging too hard. However, Roxana testified that defendant was never trying to discipline or punish the baby when he hugged him, nor was he angry on January 5, 2008, while he was holding him. Roxana indicated that she could see defendant loved his son but he did not know how to treat a baby.
Physician and child abuse expert Dr. Karan Kayimagawa examined the baby and became involved in his case after he was referred to the child abuse team at Children’s Hospital. According to Dr. Kayimagawa, the erosion or abrasions on the baby’s cheeks could have been caused by inappropriate or forceful pinching or biting. She opined that the marks could not be caused by a regular kiss. She further noted, “you are talking about a seven-week-old infant here who is not yet mobile. He’s not moving. He’s not rolling. So he didn’t do this to himself.” There was no evidence of an underlying medical condition that would have caused the injuries. Some of the bone fractures were acute, and others were older. While an older child might sustain a clavicle fracture in an accident, such as by playing football, Dr. Kayimagawa indicated that a seven-week-old infant would not spontaneously suffer a clavicle fracture and some force would have to have been applied.
Several of the baby’s other injuries also indicated the application of significant force. Dr. Kayimagawa testified that the rib fractures would typically result from “significant compression, meaning you are grabbing the child and squeezing really, really hard or you step on the child or something falls and really squeezes the child and then you get the rib fractures.” According to Dr. Kayimagawa, “there was no explanation given by the family in terms of explaining all of these injuries, ” and the long bone fractures “are highly specific for child abuse if not diagnostic for child abuse.” Not all of the injuries were consistent with a child being hugged. Moreover, Dr. Kayimagawa explained:
“Again, when we’re talking about the rib fractures, rib fractures can be from significant compression. When you are talking about a seven-week-old baby, however, if you are holding the baby up and you are squeezing like this, they have absolutely no head control, so their head is going to be bobbing around, so it would be inappropriate to handle a child that way. If you were to squeeze hard enough, again, you have some support on the back and on the front, so you need to get the compression to cause the compression around the rib cage. So part of it would depend on how you are actually holding it and what is the leverage that you are getting to compress the child that forcefully. [¶] The other thing to remember is a child’s rib cage is very pliable. It’s [more] pliable than yours or mine or adults, and an older child, it takes significant force because the ribs will give because they’re flexible that you really have to have a significant force to cause those fractures.”
Similarly, Dr. Kayimagawa testified that the clavicle and long bone fractures were not consistent with a hug. The femur fracture would also require the application of significant force.
Defendant told a social worker from Children’s Hospital that he believed he had squeezed his son too hard. Defendant also said he may have kissed the baby too hard and he had attempted to treat his son’s bruises with lotion. Defendant told the social worker he had pulled the baby’s fingers and toes and also used lotion to try to treat the resulting bruises. Defendant explained that he was trying to show the baby affection. Defendant told an investigating police officer that he took his son to the hospital because he had hugged him tightly and heard a crack, then he saw the baby’s leg hanging. Defendant also admitted that he sucked on the baby’s cheeks and saw that it caused bruises, and that he sucked on the baby’s arm, pinched his toes, and bit his heel through the sock.
The jury found defendant guilty of two counts of felony child abuse and two counts of corporal injury to a child. (Pen. Code, §§ 273a, subd. (a), 273d, subd. (a).) As to each of the four charged counts, the jury also found true allegations that defendant personally inflicted great bodily injury upon the baby within the meaning of Penal Code section 12022.7, subdivision (d). The trial court sentenced defendant to a total prison term of 12 years.
DISCUSSION
The Trial Court Did Not Err in Failing to Sua Sponte Instruct on Misdemeanor Child Abuse
Counts 1 and 2 alleged against defendant were for felony child abuse pursuant to Penal Code section 273a, subdivision (a). Accordingly, the trial court instructed the jury on felony child abuse. Defendant’s sole contention on appeal is that the trial court should have instructed the jury on misdemeanor child abuse as a lesser included offense. We disagree.
All further statutory references are to the Penal Code.
The parties agree that misdemeanor child abuse as set forth in Penal Code section 273a, subdivision (b) is a lesser included offense of felony child abuse. (People v. Moussabeck (2007) 157 Cal.App.4th 975, 980; People v. Sheffield (1985) 168 Cal.App.3d 158, 166, overruled on another ground by People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12.) However, the trial court was not necessarily required to instruct the jury on the lesser offense. As our high court recently explained in People v. Booker (2011) 51 Cal.4th 141, 181, “a trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. [Citation.] It is error for a trial court not to instruct on a lesser included offense when the evidence raises a question whether all of the elements of the charged offense were present, and the question is substantial enough to merit consideration by the jury. [Citation.] When there is no evidence the offense committed was less than that charged, the trial court is not required to instruct on the lesser included offense.... On appeal, we review independently whether the trial court erred in failing to instruct on a lesser included offense. [Citation.]”
In this case, there was no substantial evidence for the jury to conclude defendant engaged in misdemeanor child abuse, but not felony child abuse. Section 273a, subdivision (a), sets forth punishment for “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....” “Section 273a, subdivision (b), makes it a misdemeanor to engage in the same conduct under circumstances or conditions other than those likely to produce great bodily injury.” (People v. Wilson (2006) 138 Cal.App.4th 1197, 1201.) The difference between the two crimes is whether the suffering or physical pain was caused or inflicted under circumstances or conditions likely to produce great bodily harm or death. Here, there is no question but that defendant’s son actually suffered great bodily harm. In addition to observable abrasions, he suffered 16 bone fractures. There was undisputed expert testimony that such injuries were inconsistent with an accidental cause. There was also undisputed expert testimony that someone would had to have applied significant amounts of force to cause many of the fractures. There was no underlying medical condition that would have caused the baby’s injuries. The jury verdict demonstrates it found defendant was responsible for the injuries. It simply had no basis to conclude that he caused the injuries under circumstances or conditions other than those likely to produce great bodily harm or death.
Defendant contends that because Roxana testified defendant was hugging the baby when the January 5, 2008 injury occurred, or that defendant was not angry or attempting to discipline the child, the jury could have concluded the injuries occurred under circumstances other than those likely to produce great bodily harm. This is incorrect. Roxana’s testimony suggested defendant did not intend to hurt his son. Her testimony did not, however, eliminate the evidence that defendant willfully applied an unreasonable amount of force to the baby’s body, thereby fracturing his bones. (See People v. Odom (1991) 226 Cal.App.3d 1028, 1032 [“willful” does not require a specific intent to violate the law or to injure another, only a purpose or willingness to commit the act or commission].) There was no evidence that the infant was predisposed to bone fractures such that normal handling of him might have caused the injuries. Instead, the evidence was undisputed that significant force had to be applied to fracture the baby’s bones, force that was likely to—and did—produce great bodily harm.
Defendant’s reliance on People v. Lacefield (2007) 157 Cal.App.4th 249, a decision of this court, is misplaced. In Lacefield, the defendant was convicted of obstructing or resisting an executive officer in the performance of duty in violation of Penal Code section 69. (Id. at p. 251.) The defendant argued the jury should have been instructed on Penal Code section 148, subdivision (a)(1), a lesser included offense that does not require the use of force or violence. This court concluded there was an evidentiary basis for instructing the jury on section 148, subdivision (a)(1) “because there were different versions of how the incident occurred, such that the jury might have found that appellant violated section 148(a)(1) and not section 69, if it had been given section 148(a)(1) as an option.” (Id. at p. 260.)
This case is different. None of the evidence presented would have allowed the jury to reasonably conclude defendant was guilty only of misdemeanor child abuse. Defendant’s son suffered not one, but 16 bone fractures, not all of which were acute. (See People v. McDaniel (2008) 159 Cal.App.4th 736, 748 [although not conclusive, the results of an assault are often highly probative of the amount of force used].) According to Dr. Kayimagawa’s undisputed testimony, a significant amount of force was required to cause the fractures. Whether defendant was “hugging” his son or doing something else to him, there was no evidence that defendant was engaging in such activities under circumstances not likely to produce great bodily harm. If the jury found defendant responsible for the injuries at all, it could only find he inflicted the injuries under circumstances likely to cause serious bodily harm or death.
The trial court did not err in not instructing the jury on misdemeanor child abuse.
DISPOSITION
The judgment is affirmed.
We concur: FLIER, J., GRIMES, J.