Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07NCR04591
SCOTLAND, P. J.
A jury convicted defendant Abel Garcia Venegas of torture (Pen. Code, § 206) and found he personally inflicted great bodily injury under circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)). He was sentenced to state prison for an indeterminate term of seven years to life for torture, plus a consecutive term of three years for the great bodily injury enhancement.
On appeal, defendant raises various claims of instructional error, evidentiary error, prosecutorial misconduct, and ineffective assistance of counsel. We shall affirm the judgment.
FACTS
Deputy Sheriff Steven Monck responded to a 9-1-1 call made by the victim. When he arrived at her residence in a trailer park, the victim appeared to be “very defeated, afraid.” Speaking in Spanish, the victim said she and defendant, whom she called her husband, had argued because she burned some food. On the pretext of driving to the store, he took her to an orchard and struck her 200 times (because he thought the burnt food was worth $200), then punched her several times during the drive back home, bloodying her lip. She told Monck that she had not attempted to get away during the assault because she thought that trying to do so would have made the assault “worse.”
There were “fresh wounds” on the victim’s legs that “looked like she had been whipped severely with some type of slender object.” Her lip was bloody, she had a wound on her shoulder, and blood was on her blouse. The victim told Deputy Monck that she did not need medical treatment but that she feared defendant would return and injure her again. Thus, he took her to a shelter for battered women.
Later that evening, defendant called the sheriff’s department and asked to meet with Deputy Monck and “turn himself in.” Dispatch directed Monck to return to the trailer park. Defendant was there and wanted to confess to “what he had done to his wife.”
After being transported to jail, defendant admitted he “took” the victim to the orchard and hit her with a switch or stick “[a] lot,” “too many” times, because he was very angry with her over the burnt food. He beat her to get “information” out of her, but she did not talk to him; she just lay on the ground crying. He knew he had done “a bad thing” and had no defense for it. Defendant admitted that he had hit the victim on prior occasions. Deputy Monck could not recall what defendant said about the number of times he had hit the victim in the past.
After the interview, defendant wrote a statement in Spanish, which a jail officer translated in writing, confessing: “Everything [the victim] said is true [and] what happened.” The written statement was received in evidence, but is not in the record on appeal.
The following day, Detective Greg Felton went to the battered women’s shelter to interview the victim. In a car provided by the shelter, the victim led Felton to the orchard where the incident took place. He saw fresh vehicle tracks and burnt food on the ground, a pen the victim said was defendant’s, a condom, a condom wrapper, and six broken almond branches. He also observed a tree with missing branches.
The victim confirmed that defendant broke the branches from the tree, then hit her with them. He told her to eat the burnt food by the time he counted to 50, then started hitting her before he reached that number. He hit her 30 times, then had to rest, then resumed until he had reached 200 blows, counting them all aloud. After that, he lay on the ground, she got on top of him, and they had sex. The victim said defendant did not force her to have sex. She did it because she thought he was sorry for beating her. They then got back in the vehicle and left. As they drove, he punched her in the face and elsewhere with a closed fist.
The victim told Detective Felton that defendant had slapped her several times before. She did not want to leave him, however, because she thought it would harm their child.
Called as the first prosecution witness, the victim testified as follows:
She and defendant had lived together since 2002 or 2003 and had a three-year-old child, but had never legally married. On the date of the alleged crimes, they had not argued about burnt food or anything else. He looked sad, so she proposed going to the orchard because they had made love there before. They took food along for animals. On the way there, or after they got there, she confessed that she had had an affair. She cut some branches from a tree and gave them to defendant to use to hit her so that she would feel forgiven. When he would not do it, the victim beat herself on the legs with the branches as he watched her, crying. She then told him their child was not his. He got mad, took a branch, and hit her 15 to 30 times. He had never done anything like that to her before. She did not blame him for hitting her; according to the victim, she deserved it and most of her wounds were self-inflicted.
After the beating, they asked for each other’s forgiveness, hugged, and made love. However, once they got back in the car, defendant told her he would not marry her as they had planned. She got angry and tried to bite his hand, causing him to strike her involuntarily and injure her lip.
Because the victim was still angry at defendant after they got back home, and because she feared losing him, she called 9-1-1 to get him arrested. What she told the police was a lie. (The victim had trouble explaining why having defendant arrested would keep her from losing him.) She said that she and her son needed defendant financially, and her son was sad to be without defendant. Since his arrest, she had frequently talked to defendant on the telephone and visited him in jail.
When asked whether defendant had ever “done anything like this to you before,” the victim answered, “No.”
The prosecution impeached the victim’s testimony by having Deputy Monck and Detective Felton relate her statements to them.
DISCUSSION
I
Defendant contends his trial attorney “was ineffective by conceding an essential element of the torture.” According to defendant, his counsel admitted there was evidence of great bodily injury that would satisfy a requirement of the torture statute, which provides: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.” (Pen. Code, § 206; further section references are to the Penal Code unless otherwise specified.)
This contention ignores the entirety of defense counsel’s presentation to the jury, which plainly shows that counsel argued the evidence did not support a finding of torture.
In his opening statement to the jury prior to the introduction of any evidence, defense counsel acknowledged the evidence would show defendant had abused his wife. In counsel’s words: “[Defendant] admits he abused his wife. He admitted to Deputy Monck that the abuse was unjustifiable. He found out a very terrible thing to him and his family. She had an affair. He got angry. And [defendant] overreacted and he abused his wife.” Counsel went on to say, however, the evidence would show defendant “did not torture his wife” and “did not kidnap his wife. She went along with him willingly. And he did not rape her. They had sex consensually. Those are things he did not do.” Suggesting defendant was guilty of nothing more than violations of section 273.5 (corporal injury on a cohabitant) and section 245, subdivision (a)(1) (which counsel mistakenly characterized as “assault with great bodily injury” rather than assault by “means of force likely to produce great bodily injury”), counsel said the jury should find defendant guilty only “of what he did. Not what he didn’t do.”
Thereafter, defense counsel was unable to persuade the court to instruct the jury on sections 273.5 and 245, subdivision (a)(1), as necessarily included offenses of torture.
Thus, in closing argument to the jury after the introduction of evidence, defense counsel began by saying: “Ladies and gentlemen, when this case started, I told you that I was going to ask you to find my client guilty of corporal injury to a spouse, guilty of assault by means likely to produce great bodily injury, but I can’t ask you to do that because he is not charged with that. He’s charged with torture. He’s charged with kidnap, and he’s charged with rape.” Noting that torture requires the infliction of great bodily injury, counsel disputed the prosecutor’s assertion that the victim’s bloody lip and welts on her legs constituted great bodily injury. Counsel emphasized that the victim “did not seek medical treatment for these injuries. She did not go to the hospital. She did not see a doctor.” Counsel also pointed out that Deputy Monck, who saw the injuries, did not pursue treatment for the victim: “Did he call a paramedic? Did he call an ambulance? Did he call anybody to come treat her injuries? No. Because there wasn’t great bodily injury.”
Therefore, defense counsel argued, even though the jurors were entitled to feel that defendant should not have treated the victim as he did, the charge of torture was unjustified and “overzealous prosecution.” Counsel urged the jurors to be “impartial finders of the facts,” follow the instructions regarding the elements of the crime, and find defendant not guilty of torture.
Defense counsel went on to argue the evidence did not support the charges of kidnapping and rape; thus, the jury was required to “find [defendant] not guilty on all counts, not because he’s innocent of a crime, but he’s innocent of the crimes he’s charged with.”
The jury ended up acquitting defendant of everything other than the charge of torture and the great bodily injury enhancement.
The aforesaid summary of counsel’s statements to the jury shows that, contrary to defendant’s claim on appeal, defense counsel did not concede that the injuries inflicted by defendant constituted great bodily injury.
II
According to defendant, Detective Felton’s testimony that the victim said defendant hit her on prior occasions was hearsay not admissible for impeachment because, “although the prosecutor had questioned [her] in detail about some of her other statements to investigators, she was never asked about the statement she allegedly made to Detective Felton, and she had already been excused [as a witness].”
In support of his contention, defendant cites Evidence Code section 770, which states: “[E]xtrinic evidence of a statement made by a witness that is inconsistent with any part of [her] testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give [her] an opportunity to explain or to deny the statement; or [¶] (b) [She] has not been excused from giving further testimony in the action.”
Acknowledging this evidence came in without objection (Evid. Code, § 353, subd. (a) [failure to object forfeits claim of error]), defendant argues his counsel was ineffective for failing to object. Defendant offers no argument under this heading to support the claim of error. He simply asserts: “As discussed in Argument VI, post, there is no rational, tactical basis for trial counsel’s failure to object to this testimony.” However, his Argument VI contains no legal citations or analysis to support this claim. Therefore, the contention is forfeited. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; Atchleyv.City of Fresno (1984) 151 Cal.App.3d 635, 647 [where a point is asserted by counsel without argument or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court].)
In any event, aside from the fact that defense counsel might have had a legitimate tactical reason not to object to the statement (because defendant admitted hitting the victim on prior occasions), we are satisfied beyond any doubt that defendant would not have obtained a more favorable result if counsel had objected and the court had excluded the victim’s pretrial statement that defendant had hit her on prior occasions. The victim had severe, fresh wounds consistent with being whipped by a slender object. Consistent with the victim’s pretrial account of the beating, defendant confessed that he took her to the orchard and hit her with a stick a “lot” or “too many” times because he was angry with her over burnt food. Defendant admitted that he had done “a bad thing,” everything the victim had said was true, and he had hit her on prior occasions. The victim’s recantation at trial was feeble and lacked credibility.
Thus, the victim’s out-of-court statement that defendant had hit her on prior occasions, a fact admitted by defendant, was not the linchpin for the finding of guilt on the charge of torture. Indeed, the fact the jury acquitted him of charges of kidnapping and rape demonstrates that defendant was not prejudiced by the victim’s pretrial accusation of prior domestic violence.
III
Defendant contends the court erred in refusing his request to instruct on corporal injury to a cohabitant, assault with a deadly weapon, and assault by means of force likely to inflict great bodily injury. According to him, they were lesser included offenses of torture “under the circumstances of this case[.]” The claim of error lacks merit.
A trial court must instruct the jury on lesser included crimes when the evidence raises a question whether all of the elements of the charged offense were present, but not when there is no evidence that the offense was less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154.) In other words, such instruction is required only if substantial evidence would support a conviction of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 118.)
“An offense is a lesser included offense to a charged offense if the former is necessarily included in the latter. There are two tests to determine whether this is so: (1) if all of the elements of the lesser offense are included in the elements of the greater offense, or (2) if the allegations of the pleading describe the charged offense so that it necessarily includes all the elements of the lesser offense. [Citation.]” (People v. Martinez (2005) 125 Cal.App.4th 1035, 1042.) Enhancements are not considered under the pleadings test. (People v. Wolcott (1983) 34 Cal.3d 92, 101; see also People v. Sloan (2007) 42 Cal.4th 110, 119 & fn. 4.)
Corporal injury to a cohabitant and assault with a deadly weapon are not lesser included offenses of torture under the elements test. (People v. Martinez, supra, 125 Cal.App.4th at pp. 1042-1044.) And defendant cites nothing in the information that would require a different result under the pleadings test.
Defendant offers no argument regarding corporal injury to a cohabitant as a lesser included offense. Instead, he asserts that battery with serious bodily injury is a lesser included offense of torture and asks us to reject contrary case law. (People v. Lewis (2004) 120 Cal.App.4th 882, 888.) We see no reason to do so.
Assault by means of force likely to produce great bodily injury is not a lesser included offense of torture under the elements test because “[t]orture requires actual infliction of great bodily injury, but it does not require that the injury be inflicted by any means of force, let alone by means of force likely to produce great bodily injury. For example, a caretaker would be guilty of torturing an immobile person in his care if the caretaker, acting with the intent to cause extreme suffering for a sadistic purpose, deprived that person of food and water for an extended period of time, resulting in great bodily injury to the person. In such a circumstance, the caretaker would have inflicted great bodily injury without using any force and thus would not be guilty of committing assault by means of force likely to produce great bodily injury. Because the use of force is not a necessary element of the crime of torture, assault by means of force likely to produce great bodily injury is not a lesser included offense of torture.” (People v. Hamlim (2009) 170 Cal.App.4th 1412, 1456, orig. italics.)
In any event, there is no substantial evidence that defendant committed a crime less than torture, but did not commit torture. (People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Birks, supra, 19 Cal.4th at p. 118.)
We reiterate the definition of torture: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.” (§ 206.) Section 12022.7, subdivision (f) defines great bodily injury as “significant or substantial physical injury.”
Here, the evidence established all of the elements of torture. Infliction of significant or substantial physical injury is proved by evidence that defendant beat the victim on the legs with a tree branch 200 times, causing welts; and this conduct showed “the intent to cause cruel or extreme pain and suffering.” The evidence also satisfied three of the alternatives regarding the purpose element of torture. The victim said defendant whipped her to punish her for burning the food--i.e., for the purpose of revenge. According to defendant’s confession, he also acted to try to get “information” out of her--i.e., for the purpose of persuasion. And the jury could have found that, by continuing the beating as long as defendant did, he inflicted the injury for a sadistic purpose.
Because the evidence did not raise a question as to whether all the elements of the charged offense had been proved, the jury could not reasonably have convicted defendant only of a lesser offense.
IV
Defendant argues the court erred prejudicially by instructing with CALCRIM No. 852.
As given to the jury, CALCRIM No. 852 read in pertinent part: “The People presented evidence that the [d]efendant committed domestic violence that was not charged in this case, specifically prior slapping instances. Domestic violence means abuse committed against an adult who is a cohabitant or a person with whom the [d]efendant has a child. Abuse means intentionally or recklessly causing or intending to cause bodily injury or placing another person in reasonable fear of imminent, serious bodily injury to himself or someone else. [¶]... [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the [d]efendant, in fact, committed the uncharged domestic violence. [¶] Now, proof by a preponderance of the evidence is a different proof from proof beyond a reasonable doubt. A fact is proved by preponderance of the evidence if you conclude that it is more likely than not that the fact is true. Now, if the People have not met this burden, you must disregard this evidence entirely. [¶] If you do decide the [d]efendant committed uncharged domestic violence, you may but are not required to conclude from the evidence that the [d]efendant was disposed or inclined to commit domestic violence, and based upon your decision, also, then, conclude that the [d]efendant was likely to commit and did commit the crimes charged in Count[s] 1 and 4 of torture and rape. [¶] If you conclude that the [d]efendant committed the uncharged domestic violence, that conclusion, however, is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the [d]efendant guilty of the crimes in Counts 1 and 4, torture and rape. The People must still prove each element of every charge beyond a reasonable doubt.”
Defendant believes there was no evidence of “abuse” within the meaning of this instruction and, thus, the court erred in giving it.
Evidence Code section 1109, subdivision (a)(1) states, with exceptions not applicable to this case, that “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence” is admissible, unless the court exercises its discretion to exclude the evidence pursuant to Evidence Code section 352.
For purposes of Evidence Code section 1109, subdivision (a)(1), domestic violence “has the meaning set forth in Section 13700 of the Penal Code,” as well as “the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.” (Evid. Code, § 1109, subd. (d)(3).)
Section 13700, subdivision (b) defines domestic violence as “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” The statute defines “abuse” as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (§ 13700, subd. (a).) Similarly, “abuse” within the meaning of Family Code section 6211 includes “[i]ntentionally or recklessly to cause or attempt to cause bodily injury.” (Fam. Code, § 6203, subd. (a).)
According to defendant, his prior, unspecific acts of hitting the victim did not constitute “abuse” within the meaning of the domestic violence statutes because, in his counsel’s words, “there is nothing to show that he caused, or attempted to cause, bodily injury, or the unspecified events placed [the victim] in reasonable apprehension of imminent serious bodily injury.” The contention fails to persuade us.
In defining “abuse” for the purpose of section 13700 and, thus, for the purpose of Evidence Code section 1109, the Legislature made a distinction between “bodily injury” and “serious bodily injury.” Thus, any bodily injury--whether substantial or not--is sufficient to constitute abuse. If, however, the abuse is predicated on a threat to the victim, the threat must be such to have placed the victim in reasonable apprehension of imminent serious bodily injury to herself or another. (Evid. Code, § 1109.)
When interpreting statutory language, courts give the “words their usual, ordinary, and common sense meaning based on the language the Legislature used and the evident purpose for which the statute was adopted” (In re Rojas (1979) 23 Cal.3d 152, 155; accord, People v. Gonzalez (2008) 43 Cal.4th 1118, 1126), and if the statute is susceptible to two alternative interpretations, “‘the one that leads to the more reasonable result will be followed’” (People v. Shabazz (2006) 38 Cal.4th 55, 68, citations omitted).
The ordinary, common sense meaning of “injury” applies to “an act that damages, harms, or hurts: an unjust or undeserved infliction of suffering or harm.” (Webster’s 3d New Internat. Dict. (1986) p. 1164.) Injury, hurt, damage, and harm are synonymous in that they “mean in common the act or result of inflicting on a person... something that causes loss, pain, distress, or impairment.” (Ibid.)
Without question, hitting or slapping a person’s body meets the ordinary, common sense meaning of “injury” and, thus, constitutes infliction of bodily injury, i.e., abuse, i.e., domestic violence, within the meaning of section 13700, Family Code section 6211, and Evidence Code section 1109, subdivision (a)(1). Therefore, the court properly instructed with CALCRIM No. 852.
Defendant asserts that the only admissible evidence of his past acts “was the brief statement elicited through Deputy Monck that [defendant] admitted that he had hit [the victim] in the past, although the deputy could not recall any further details.” But the fact said evidence did not provide detail regarding the number and nature of the prior hittings does not mean that the evidence was insufficient to support the prior acts instruction. The lack of specificity goes only to the weight of the evidence.
V
Defendant contends the prosecutor committed misconduct by misstating the definition of great bodily injury, and defendant’s trial counsel was ineffective for failing to object.
During closing argument to the jury, the prosecutor stated: “Great bodily injury isn’t just going to be defined as something that is a significant or substantial physical injury. A facial cut, a split lip is enough to create great bodily injury. [¶] People’s No. 1: There’s her split lip. Great bodily injury does not have to be long-lasting, forever lasting, or that you’ll have it with you forever. Bruising is great bodily injury.” In rebuttal, the prosecutor argued: “I didn’t say what great bodily injury was. The California courts did. Great bodily injury -- split lip, facial cut. Good enough. That’s great bodily injury. Right there. Mr. Nelson [defense counsel], what he isn’t telling you is he knew about that all along. The split lip is great bodily injury. We have a split lip.”
These remarks constituted misconduct by the prosecutor. Section 12022.7, subdivision (f) plainly requires that an injury be “significant or substantial” to qualify as great bodily injury. We are aware of no authority holding that a split lip, by itself, constitutes great bodily injury.
However, rather than object to the prosecutor’s statements, defense counsel chose to quote the definition of great bodily injury in his own argument and tell the jury that the court would instruct on it. Counsel argued at length that the victim’s injuries were not “great bodily injury.” Counsel reasonably could have thought this method more effective than interrupting the prosecutor. Because there is a conceivable tactical reason for not objecting, we cannot deem defense counsel to have been ineffective. (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
Counsel did not hesitate to object to the prosecutor’s argument at other times. The prosecutor began by citing counsel’s “concession” in his opening argument that defendant inflicted great bodily injury. Counsel immediately objected that his prior remarks were not evidence and could not be cited as such. The trial court sustained the objection.
In any event, the court gave the jury the correct definition of great bodily injury and told the jury to take the law only from the court’s instructions. We must presume that the jury did so. (People v. Adcox (1988) 47 Cal.3d 207, 253.) Thus, defendant cannot show prejudice from the prosecutor’s remarks. People v. Anzalone (2006) 141 Cal.App.4th 380, on which defendant relies, is distinguishable because in that case neither the trial court nor defense counsel corrected the prosecutor’s misstatement of the law. (Id. at pp. 395-396.)
VI
Having concluded defendant has failed to demonstrate that his trial attorney was ineffective as asserted in parts I, II, and V of this opinion, his claim of prejudice due to cumulative error fails.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, J., BUTZ, J.