Opinion
2d Crim. No. B207540.
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. JUSTO BLANDON, Defendant and Appellant.
Janet J. Gray, Attorney, 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, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Tita Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Justo Blandon appeals from the judgment following a court trial and his conviction of felony child abuse. (Pen. Code, § 273a, subd. (a).) The court sentenced him to two years in state prison. Appellant challenges the sufficiency of the evidence to support his conviction. We affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2007, appellant, his wife, and their minor daughter (the victim) lived in an apartment complex. They went to a birthday party in the same complex on May 5th, in the early evening. After drinking three shots of tequila, appellant left the party at 8:30 p.m., to watch a boxing match with his friends. The victim and his wife remained at the party.
Appellant returned to the party at 10:00 p.m., and he seemed more intoxicated than hed been at 8:30 p.m. He started drinking beer. Appellant was upset that he had lost money on a boxing match bet. At 9:30 p.m., the victim asked appellants permission to go play with another little girl in her apartment, upstairs in the same complex. Appellant granted his permission, and the victim left the party with her friend.
A bit later, appellant decided that it was time to leave and whistled for the victim. (Both he and his wife usually whistled for her rather than calling or yelling her name.) When he asked, "Wheres my little girl," his wife replied that she was playing. Appellant got angry and yelled that he had not given her permission to play. His wife reminded him that he had given her permission. Still angry, appellant went upstairs to get the victim, and yelled that he had not given her permission.
Appellant returned, holding the victims hand or arm, dragging her downstairs, and cursing at her. He brought her into their apartment quickly. Appellant left the apartment briefly to yell at the residents of the apartment where the victim had been playing. His wife had never seen him so angry. She told the victim to go to bed and pretend to fall asleep quickly so that appellant would not hit her. The victim complied.
When appellant returned to their apartment, the victim was in bed. He scolded her and said that he had not given her permission to leave. When it seemed that the victim was feigning sleep, appellant became enraged and slapped her lower right jaw. After the victim opened her eyes, appellant hit her left arm five or six times with his open hand or fist. Appellants wife told him to stop hitting the victim. When he refused to stop, his wife tried to shield the victim from appellant, or push him away. Appellant then pushed his wife to the ground.
At trial, appellants wife testified that he hit their daughter with an open hand. On the night of the incident, a police officer interviewed appellants wife. At that time, she demonstrated the manner appellant had used to hit the victim by closing her fist and hitting her own arms.
After appellant hit her, the victim had purple bruises on her left arm that lasted for two weeks. Her cheek had three small red points, "like bruises." Her arm injuries were visible in the photographs that were taken on the night of the incident.
DISCUSSION
Appellant challenges the sufficiency of the evidence to support his conviction of felony child abuse. In reviewing an insufficient evidence claim, we consider the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (See People v. Wallace (2008) 44 Cal.4th 1032, 1077.) We presume the existence of every fact supporting the judgment that the trier of fact reasonably could have deduced from the evidence, and a judgment will be reversed only if there is no substantial evidence to support the conviction under any hypothesis. (People v. Crittenden (1994) 9 Cal.4th 83, 139; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Here, we conclude that sufficient evidence supports appellants felony child abuse conviction.
A person commits felony child abuse if, "under circumstances or conditions likely to produce great bodily harm or death," he "willfully causes or permits any child to suffer . . . unjustifiable physical pain or mental suffering . . . ." (§ 273a, subd. (a), see People v. Sargent (1999) 19 Cal.4th 1206, 1226.) Actual physical injury is not an element of felony child abuse. (People v. Valdez (2002) 27 Cal.4th 778, 784.)
Here, the court made the following findings: "I believe . . . that [appellant] dragged the victim down the stairs. [¶] [P]ictures speak louder than words. Taking a look at her marks, it looks like there are several hand prints. [¶] [H]e didnt have a right to discipline her, because he got it wrong. So no discipline was reasonable. Even if he hadnt given her permission, what he did wasnt reasonable, and the amount of punishment that he used at that time, hitting her very severely and very hard, which you can tell from the bruises, which [even] if he was going to hit an adult, . . . wasnt a slight tap. This was a strong hit, and it was repeated. It wasnt once or even twice, and he also hit her in the lower jaw area, could have broken her jaw. [¶] I find that his conduct was totally unreasonable. . . . I believe [that his conduct] could cause serious bodily injury. We know he was hitting her very hard because of the marks. He hit her on the arm, face, and lower arm, and putting the conduct together, the court finds him guilty of the [felony child abuse] charge . . . ."
In essence, appellant argues that because his conduct was not likely to produce great bodily harm, and because it was within the limits of reasonable parental discipline, there is not sufficient evidence to support the felony child abuse conviction. We disagree.
In a felony child abuse case, whether the "infliction of unjustifiable physical pain or mental suffering" occurred "under circumstances or conditions likely to produce great bodily harm or death is a question for the trier of fact." (People v. Sargent, supra, 19 Cal.4th at p. 1221.) Appellant, a grown man, dragged the victim, his nine-year old daughter, down a flight of stairs. He left their apartment briefly and returned when the victim was in bed. As she lay in bed, he slapped on the jaw, and repeatedly hit her arm in two places, using enough force to leave bruises that lasted for two weeks. The court reasonably concluded that appellants conduct exceeded the limits of reasonable parental discipline and that the circumstances and conditions were likely to produce great bodily harm. There is sufficient evidence to support appellants felony child abuse conviction.
The judgment is affirmed.
We concur:
GILBERT, P.J.
YEGAN, J.