Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. BA288376, Anne H. Egerton, Judge. Modified and, as so modified, affirmed.
John Doyle, 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, Mary Sanchez and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Monique Antoinett Givens appeals from the judgment entered following a bench trial in which she was convicted of assault on a child causing death, second degree murder, and child abuse. Givens was sentenced to a prison term of 25 years to life.
Givens contends the evidence was insufficient to support her conviction for second degree murder. The People request that the abstract of judgment be corrected to conform to the trial court’s oral pronouncement of judgment. We correct the abstract as requested by the People. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
In August 2005, Casino Sears and appellant Givens were living in the Santa Barbara Motel in Los Angeles with appellant Givens’s three young children, three-year-old Monee, two-year-old T., and newborn A. Casino’s father, Gregory Sears, was living at the nearby Harvard Motor Inn.
For ease of reference we hereinafter sometimes refer to Gregory Sears and Casino Sears by their first names.
On August 7, 2005, Casino went to Gregory’s motel to pick up money to pay for Casino’s and Givens’s room. Casino stayed for a brief period and then left. Approximately 10 to 20 minutes later, Casino called Gregory and informed him he was having problems with the motel manager and requested that Gregory come assist him. When Gregory arrived at the Santa Barbara Motel, Casino met him in the parking lot and asked him to come to his room. Casino appeared worried. When Gregory entered the room, he observed Monee lying on the bed on her back, unmoving. Casino and Givens were both crying. Givens stated that Monee had jumped off the bed and hit her head on a pipe. Gregory attempted to revive Monee by breathing into her mouth and nose, and told defendants to call 911.
When paramedics and firefighters arrived, Monee was unconscious and not breathing, and had no pulse. There were scars and bruises, in various stages of healing, all over her body, “pretty much from her head to her lower extremities.” During the trip to the hospital, medical personnel attempted cardiopulmonary resuscitation (CPR) without success.
Detectives investigating Monee’s death searched the motel room and discovered a blue belt underneath some bags on the dresser; a pair of pink flip-flop sandals; 10 rounds of live .9-millimeter ammunition; a baggie containing marijuana; and a baby bottle that had been altered to be used to smoke marijuana.
An autopsy conducted on Monee’s body revealed the following. At the time of her death, Monee weighed 27 pounds and was 39 inches tall. She had scarring over her body in various stages of healing, including on her neck, upper chest, back, arms, legs, hips, fingers, and arms. She had fresh abrasions to her abdomen, hip, right cheek, back, and leg. An internal injury to her scalp indicated she had fallen and hit her head on something shortly before her death. Round pattern imprints, consistent with the metal rivets found on the belt in the motel room, were observed all over Monee’s body, including on her back, legs, buttocks, and abdomen. Imprint marks on her abdomen could not have been caused by being whipped with the belt alone. Instead, they were consistent with an adult wrapping the belt around a fist and punching Monee “with significant compression.” There were at least 17 different areas on Monee’s body showing pattern marks from the rivets or scarring. Some of the injuries were fresh, while others appeared to have been healing for days or months. Her injuries indicated multiple episodes of corporal punishment.
Monee’s death was caused by blunt force trauma to the abdomen. She had been hit in the abdomen, from the front, with such force that her liver “was torn and split from front to back” and was “torn apart.” Further, her pancreas, diaphragm, and intestines were bruised. There was a small amount of bleeding in her lungs. Monee’s kidney was lacerated, and her ureter was avulsed. The injuries to Monee’s liver, diaphragm, and intestines were likely caused by a single punch. The injury to her kidney was caused by a separate blow inflicted from a different direction in the same fashion.
The injury to Monee’s liver resulted in massive bleeding. Over 600 milliliters of blood had pooled in her abdomen. Over 100 milliliters of blood had pooled in other areas of her soft tissue as a result of other blows inflicted on her. The pooled blood accounted for over 90 percent of Monee’s entire blood supply. Due to the pooling of blood, Monee would have lost consciousness within minutes of infliction of the injury to her liver. Monee’s internal injuries could not have been caused by an open-handed slap from an adult or from being slapped with a belt, nor could they have been caused or exacerbated by the administration of CPR.
Givens was interviewed by detectives on several occasions, and gave an inconsistent account of what had transpired. Her initial story was that Monee had been playing when she unexpectedly stated her stomach hurt. She was suddenly unable to stand, fell onto the bed, and lost consciousness. Givens told detectives that when disciplining her children, she used “time outs,” and sometimes spanked them on the buttocks with her hand. She had not spanked Monee for at least two weeks.
At a subsequent interview, Givens stated that on the morning in question, Monee was playing and tripped, hitting the front of her head on something when she fell. Monee then stated that her stomach hurt. When Monee began to lose consciousness, Givens threw water on her to revive her. Givens admitted that Monee had gotten in trouble in the morning for something, and she had given her “a little pop” on the buttocks with a pink flip flop sandal. Givens also admitted hitting Monee with a belt in the past, but denied having done so on the morning of her death. She volunteered that she did not “sock” the children because they were “too little to be socked.” When questioned further, she admitted hitting Monee on “the backside” with the belt the morning of her death, but denied hitting her stomach.
Later, Givens admitted that she had hit Monee on the legs with a different belt on earlier occasions, leaving scars. Givens reiterated that on the morning of Monee’s death, Monee had gotten in trouble and she had hit her with the belt. Givens then made Monee stand in the corner and jump 10 times. While jumping, Monee fell and hit her head on a pipe or rod that was attached to the motel room wall. Monee got up and continued jumping. Shortly thereafter, she stated her stomach hurt and collapsed. Givens stated she had pressed on Monee’s stomach in a mistaken attempt to do CPR. She repeatedly denied hitting Monee in the stomach.
Givens was interviewed again after taking a polygraph test. She admitted that on the morning Monee died, she had hit her approximately five times with the belt and had struck her while she was on the floor, but continued to vehemently deny punching Monee in the stomach or kicking her. Givens agreed that because Monee was moving around while being beaten, she might have hit her in the stomach by accident.
2. Procedure.
Givens and Casino were jointly tried in a bench trial. The trial court found Givens guilty of assault on a child causing death (Pen. Code, § 273ab), second degree murder (§ 187, subd. (a)), and child abuse (§ 273a, subd. (a)). The trial court sentenced Givens to 25 years to life in prison. It imposed a restitution fine, a suspended parole restitution fine, and a court security fee. Givens appeals.
The evidence did not show Casino participated in the beating that caused Monee’s death, and the trial court found him not guilty of murder. He was convicted of child abuse (Pen. Code, § 273a, subd. (a)) because he failed to take action to protect Monee. Only Givens’s appeal is before us in the instant matter.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The evidence was sufficient to support Givens’s conviction for second degree murder.
Givens contends the evidence was insufficient to support her conviction for second degree murder because there was no evidence of express or implied malice. She urges that because there was also insufficient evidence to establish voluntary manslaughter, her conviction for murder should be reduced to involuntary manslaughter. We disagree.
When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine “ ‘whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Halvorsen (2007) 42 Cal.4th 379, 419; People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.)
Murder is an unlawful killing committed with malice aforethought. (§ 187, subd. (a); People v. Robertson (2004) 34 Cal.4th 156, 164.) Second degree murder is an unlawful killing with malice aforethought, but without the elements of willfulness, deliberation, and premeditation that elevate the killing to the first degree. (People v. Robertson, supra, at p. 164; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) “Malice may be express or implied. Malice is express ‘when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.’ (§ 188.)” (People v. Robertson, supra, at p. 164; People v. Knoller (2007) 41 Cal.4th 139, 151.) It is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, deliberately performed by a person acting with knowledge of the danger to, and with conscious disregard for, human life. (People v. Knoller, supra, at p. 143; People v. Cook (2006) 39 Cal.4th 566, 596; People v. Nieto Benitez, supra, at pp. 102-103.) When it is established that the killing was the result of an intentional act committed with implied malice, no other mental state need be shown in order to establish malice aforethought. (People v. Nieto Benitez, supra, at p. 103.)
In the instant case there was ample evidence supporting the second degree murder conviction. Givens does not dispute that the evidence showed she beat Monee to death. Expert testimony established that Monee died due to one or more blows to her stomach area, which tore and split her liver, causing the majority of the blood in her body to pool in her abdominal area and her heart to stop. Pattern injuries near Monee’s navel matched the pattern of rivets on a plastic belt recovered from Givens’s motel room. Expert testimony established that the injuries to Monee’s liver and adjacent organs were caused by an adult wrapping the belt around a fist and punching Monee in the stomach with significant force. As the trial court found, the evidence established Givens was the only person present with Monee during the period in which the injuries were inflicted. The injuries would have been rapidly fatal, indicating Givens, the only person with Monee at the time, must have inflicted them. Indeed, Givens admitted hitting Monee with the belt that morning. The evidence thus showed that Givens whipped Monee with the belt found in the motel room, punched her in the stomach with extreme force at least once, and additionally punched her in the back, in the area of her kidney. This evidence was more than sufficient to prove Givens unlawfully killed Monee.
The trial court concluded the evidence did not establish Givens intended to kill Monee, but clearly established implied malice. The evidence amply supported the elements necessary to show implied malice. Givens’s actions of beating and punching Monee were obviously intentional and deliberate, and there was no evidence to the contrary. Likewise, her conduct was obviously dangerous to human life, as tragically and indisputably shown by Monee’s death.
Givens complains, however, that the evidence was insufficient to show the remaining elements of implied malice, i.e., that she had knowledge her actions were dangerous to human life and acted with conscious disregard. We are unconvinced. As the trial court found, “the victim was hit in the stomach area. The hit or punch tore and split her liver. Approximately 90 percent of the blood in her body ended up in her abdominal area as a result, and her heart then stopped.” The court concluded that a “reasonable person would realize that beating a child with the force that caused Monee’s injury would directly and probably result in great bodily injury to the child.” This conclusion was eminently reasonable. Monee was only three years old and weighed only 27 pounds. Common sense dictates that any adult, punching such a small child in an area known to contain vital organs, with the tremendous force necessary to tear the child’s liver apart, certainly must have known such conduct was dangerous to human life. Indeed, any other conclusion flies in the face of reason. Thus, contrary to Givens’s arguments, it was not necessary that the People present evidence Givens had previously been warned or instructed regarding the potential consequences of punching her small daughter in the stomach with great force. The further inference that Givens must have acted with conscious disregard for that danger to life when administering the fatal blows is inescapable. Givens purposely beat her child, and the medical evidence did not support a finding that the fatal blow to the liver could have been inflicted accidently.
While the nature of the injuries is alone sufficient to establish knowledge, additional evidence bolstered that finding. Givens volunteered that she did not “sock” the children because they were “too little to be socked.” Given that she obviously believed other forms of physical discipline were appropriate for Monee, this statement implied she knew punching such a small child was dangerous. Further, before she learned the cause of Monee’s death, Givens repeatedly and vehemently stated she had not punched Monee in the stomach. This denial contrasted with her admissions that she sometimes hit Monee with a belt and engaged in other actions (improper CPR, throwing water on Monee) which she believed might have accidentally harmed the child. Had she actually been unaware that punching a three-year-old, 27-pound child in the stomach with extreme force was not dangerous to human life, she would have had no reason to persist in such falsehoods. Instead, her refusal to admit punching Monee while at the same time admitting other actions suggested she did, in fact, know that such conduct was dangerous to human life.
Givens argues that lack of knowledge is shown by the facts “[p]revious punishment” had not resulted in life-threatening injuries, and there was no evidence Monee experienced “unusual discomfort as a result” of the prior abuse. In essence, Givens argues that because her repeated beatings of Monee with a belt did not kill or seriously injure the child, she could not have known that punching Monee in the stomach with her belt-wrapped fist would result in harm. These arguments are singularly unpersuasive. That prior abuse did not result in Monee’s death or serious injury appears merely fortuitous. That Monee was not hospitalized previously does nothing to demonstrate Givens was ignorant of the likely consequences of punching her three-year-old child in the stomach so forcefully as to split her liver. There was no showing Givens had previously punched her daughter in the area of vital organs without ill effect. The assertion that Monee suffered no “unusual discomfort” is unsupported; given that Monee’s body was covered with bruises and scars in various stages of healing, it is obvious that this three-year-old was routinely subjected to extreme “discomfort.” Further, Givens was 23 years old and had completed high school. The evidence demonstrated she did not suffer from any unusual condition or mental deficiency that would have rendered her unable to use basic common sense or appreciate the nature of her actions. In short, the fact Givens previously and routinely abused her child can hardly be seen as exculpatory evidence. The evidence was sufficient to support the conviction for second degree murder.
Because Givens’s contention that the evidence was insufficient to support the second degree murder verdict lacks merit, we need not reach her further contention that there was insufficient evidence to prove voluntary manslaughter.
2. Correction of the abstract of judgment.
When orally pronouncing its verdict, the trial court found Givens guilty of second degree murder. The abstract of judgment, however, states that Givens was found guilty of first degree murder. Where an abstract of judgment differs from the court’s oral pronouncements, the abstract does not control. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; cf. People v. Price (2004) 120 Cal.App.4th 224, 242 [“Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error”].) Here, the abstract of judgment clearly contains a clerical error, which may be corrected by this court on appeal. (People v. Mitchell, supra, at p. 185; People v. Garcia (2008) 162 Cal.App.4th 18, 24, fn. 1.) We order the abstract of judgment modified accordingly.
DISPOSITION
The abstract of judgment is ordered modified to show Givens was found guilty of second degree murder, not first degree murder. The clerk of the superior court is ordered to prepare a corrected abstract of judgment and to forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.