Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA246618, Kathleen Kennedy-Powell, Judge.
Patricia A. Scott, 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, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Anthony Bill Lopez appeals his conviction for first degree murder and the finding that the murder involved infliction of torture. He argues that substantial evidence does not support the finding that he intended to inflict extreme pain for a sadistic purpose on his 21-month old son. We conclude the condition of the victim’s body and the circumstances of the crime support such a finding, and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Isaac Lopez was born to appellant and Sylvia Rolon on June 28, 2001. He was in foster care until Rolon took custody on or about January 6, 2003. Although a court order prohibited appellant from living in Rolon’s apartment, he began living there sometime in early April 2003, about two weeks before the events in this case.
During that two-week period, appellant’s stepson saw him strap Isaac to a car seat and strike him with his hands. Appellant daily immersed Isaac in a chemical mixture including Clorox and washing soap. After one such immersion, appellant threw Isaac to the floor.
On April 19, 2003, appellant hid in a bedroom closet while a social worker made an unannounced visit to the apartment. The social worker did not notice any injuries on Isaac during the visit.
Kristal Cardenas shared a wall with Rolon’s apartment. In the early morning hours of April 20, she heard a screaming child in Rolon’s apartment and a series of 10 to 20 thumps against the wall. The thumps and the screams ceased simultaneously.
Around 2:00 p.m. on April 22, 2003, appellant visited Candido Estrella at the school where Estrella worked. Appellant was nervous and told Estrella that, on April 20, 2003, Isaac had choked on a “little plastic toy” while appellant slept in another room. He told Estrella that Isaac’s body was in his van. Estrella did not look, but noted the van’s license plate number and alerted the Los Angeles County Sheriff’s Department that night. Around 2:00 p.m. on April 23, 2003, sheriff’s deputies noticed the van and arrested appellant. They discovered Isaac’s body inside the van, wrapped in several layers of plastic. The body was cold, livid and partially charred.
Appellant described Isaac’s death and subsequent events in an interview with police investigators on April 23, 2003. (Tapes and transcripts of this interview were presented to the jury at trial.) He said he fell asleep on April 21, 2003 around 4:00 a.m. after playing with Isaac, and woke around 6:30 a.m. that morning to discover Isaac dead in his car seat with a plastic bag over his head. He unsuccessfully attempted cardiopulmonary resuscitation. Early in the morning on April 22, 2003, he left the apartment with Isaac’s body. He stopped on the road to burn the body with alcohol, intending to keep the ashes, but put the fire out because he could not bear to watch. He said Isaac’s body was bruised because he folded it while wrapping it in plastic.
The investigators interviewed appellant again on April 24, 2003. (Tapes and transcripts of this interview also were presented to the jury.) At first, he repeated his earlier statements, adding that Isaac’s bruises may have resulted from his repeatedly throwing the body from his vehicle and retrieving it. When told that a corpse cannot bruise, appellant said Isaac would spontaneously throw himself around and injure himself, and that his children often wrestled with each other. He acknowledged spanking Isaac on the buttocks, hands and legs. Sometimes he did not realize how hard he spanked Isaac, and sometimes Isaac would move and the blow would land “wherever.”
Later in the interview, he admitted that Isaac did not choke on a plastic bag. He said that after playing with the child, he gave him a stuffed toy and left the room to sleep. When he returned, Isaac was dead in his car seat with the toy on top of him and a black jacket nearby. He burned Isaac’s body with gasoline in the apartment bathroom to prevent its discovery.
An investigation of Rolon’s apartment on April 25, 2003 revealed soot and traces of gasoline in the master bathroom. Deputies also discovered an infant’s car seat and a stuffed toy entangled with a string and a black jacket. The toy was stained with blood that matched Isaac’s DNA, and the jacket’s arms were tied in a knot.
An autopsy revealed that Isaac suffered 24 blunt force injuries before he died, four of which were inflicted near the time of death and the remainder of which were inflicted no more than one day before death. The tissue connecting his upper lip to his gum was torn, and one of his teeth was chipped. The pathologist who conducted the autopsy concluded that all of the injuries, with the possible exception of one bruise on Isaac’s chest, were nonaccidental.
Isaac’s lungs were blotchy, indicating that he suffocated. His blood, stomach and bile contained ethanol (drinking alcohol), isopropanol (rubbing alcohol), brompheniramine (an antihistamine), and pseudoephedrine (a decongestant). The pseudoephedrine was present in levels indicating that Isaac had been fed between five to twenty-five times the normal dose of children’s medicine. In the opinions of the pathologist and toxicologist who conducted the autopsy, Isaac had a lethal amount of pseudoephedrine in his system when he died. The pathologist concluded that Isaac’s death was probably caused by a combination of suffocation, the pseudoephedrine overdose and his injuries.
On March 1, 2005, an information was filed charging appellant with one count of assault on a child less than eight years of age resulting in death (Pen. Code, § 273ab), one count of murder committed during torture (§§ 187, 189), and one count of willfully causing a child to suffer. (§§ 273a, subd. (a).) It was further alleged that the murder was intentional and involved torture (§ 190.2, subd. (a)(18)) and that the child’s suffering resulted in the child’s death. (§ 12022.95.)
All further statutory references are to the Penal Code.
Appellant testified in his own defense. He said that shortly after 11:00 p.m. on April 20, 2003, he fell asleep after playing with Isaac and putting him to sleep in his crib. He woke the next morning while it was still dark and discovered that Isaac was dead. He carried Isaac to the living room, where he administered cardiopulmonary resuscitation and prayed. Isaac did not awaken, and after appellant’s other children went to bed that night, he burned Isaac’s body in the apartment bathroom with gasoline. Appellant said that on several occasions, including April 20, 2003, he saw his stepson force-feed pseudoephedrine to Isaac.
On June 26, 2006, appellant was convicted of all charges and both special circumstances were found true; the murder was found to be first degree. On July 11, 2006, he was sentenced to life in prison without the possibility of parole for murder, and his other sentences were stayed pursuant to section 654. This appeal followed.
DISCUSSION
The sole issue on appeal is whether substantial evidence supports the finding that appellant sadistically intended to inflict extreme pain for purposes of first degree murder by torture and the torture-murder special circumstance. In assessing this issue, we review the entire record in the light most favorable to the judgment for evidence upon which a reasonable jury could find appellant guilty beyond a reasonable doubt. (People v. Chatman (2006) 38 Cal.4th 344, 389.) “The same standard of review applies in considering circumstantial evidence and the support for special circumstance findings.” (Ibid.)
Murder perpetrated by torture is first degree murder. (§ 189.) “The elements of torture murder are: (1) acts causing death that involve a high degree of probability of the victim’s death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. [Citations.]” (People v. Cook (2006) 39 Cal.4th 566, 602.) “An intent to torture ‘“may be inferred from the circumstances of the crime, the nature of the killing, and the condition of the victim’s body.”’ [Citation.]” (Ibid.) There must be a causal relationship between the act of torture and the death. (People v. Chatman, supra, 38 Cal.4th at pp. 389-390.)
The penalty for first degree murder is death or life in prison without the possibility of parole if the murder is intentional and involves the infliction of torture. (§ 190.2, subd. (a)(18).) Unlike first degree murder by torture, the torture-murder special circumstance requires the defendant to act with intent to kill. (People v. Cole (2004) 33 Cal.4th 1158, 1226-1227.) Appellant does not dispute the finding that he acted with that intent.
Appellant argues the evidence does not support a reasonable inference that he intended to inflict extreme pain for a sadistic purpose. We disagree. The victim suffered 24 blunt force injuries over a period of 24 hours. There was significant internal bleeding around his groin and inner thighs, indicating that those areas were struck with severe force. His forehead, chin and mouth were bruised, one of his front teeth was chipped, and the tissue connecting his upper lip to his gum was torn, consistent with blows to the face. None of his bones was broken, and the injuries alone would not have been lethal. The victim was also forced to drink rubbing alcohol, which is extremely bitter.
The period of time over which the injuries were inflicted, the fact that none of the victim’s bones was broken and the nonlethal nature of his injuries imply that appellant beat the victim with controlled force rather than in an explosion of rage. The intent to inflict extreme pain for a sadistic purpose may be reasonably inferred from attacks focused on particularly vulnerable areas, such as the face and the groin. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1163-1164; People v. Burton (2006) 143 Cal.App.4th 447, 452.) That intent may also be inferred from the forced ingestion of an extremely unpleasant substance. (People v. Mincey (1992) 2 Cal.4th 408, 435 [victim forced to ingest feces]; People v. James (1987) 196 Cal.App.3d 272, 293 [victim forced to ingest urine and cigarettes].)
Appellant’s stepson testified that in 1996, when he was five or six years old, appellant beat him with shoes, belts, wires and his hands. He also testified that appellant used pliers to squeeze his fingers and ears. When he was seven years old, appellant shackled him to a bed for two months. While he was shackled to the bed, food was thrown to him in bags and he urinated and defecated in bags and bottles. From this, the jury could have reasonably inferred that appellant favored the infliction of extreme suffering as a means of disciplining his children.
Appellant’s stepson testified under Evidence Code section 1109.
Appellant argues the evidence implies he beat the victim in frustration and exhaustion. But a lack of substantial evidence is not implied merely because the evidence may also support a different finding. (People v. Sullivan (2007) 151 Cal.App.4th 524, 564.)
Appellant argues his statements regarding the incident preclude the reasonable inference that he intended to torture the victim. But the jury was not required to accept his testimony or the statements he made to investigators. His statements about how the victim was injured, how the victim died and where and how he burned the body contradicted each other as well as other evidence. The jury could reasonably reject his account of the incident in light of these inconsistencies.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J. SUZUKAWA, J.