Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F09697
BLEASE, Acting P. J.
Defendants Nzoto Gisele Muniangi (Mother) and Diangitukulu Diambu (Father) were tried in a joint trial before separate juries and found guilty of offenses committed against their seven-year-old son B. Father was found guilty as charged of three counts of felony false imprisonment (Pen. Code, §§ 236, 237, subd. (a); Cts. 1, 3, 4) and three counts of felony child abuse. (§ 273a, subd. (a); Cts. 2, 5, 6.) Mother was charged with the same crimes and found guilty of two counts of false imprisonment (§ 236, Cts. 1, 4) and three counts of felony child abuse. (§ 273a, subd. (a); Cts. 2, 5, 6.) The trial court placed Mother on five years formal probation conditioned on her serving 364 days in the county jail and sentenced Father to an aggregate prison term of six years eight months.
All further section references are to the Penal Code unless otherwise specified.
The trial court imposed four years on count two as the principal term and consecutive terms of eight months each on counts three and four, and one year and four months on count six. It stayed the sentences on counts one and five.
On appeal, defendants challenge the sufficiency of the evidence to support the verdicts for false imprisonment and child abuse and contend the trial court committed prejudicial error by failing to instruct sua sponte on the definition of the word “likely” within the meaning of section 273a, subdivision (a) (section 273a). In addition, Father argues that the trial court erred by failing to give special instructions sua sponte on his fundamental right to discipline his child and that conviction of false imprisonment requires proof he acted with intent to harm the child and without a lawful purpose.
The jury was instructed on the elements of child endangerment (§ 273a) and on the parental defense of right to discipline a child. In particular the jury was instructed by CALCRIM No. 3405 in pertinent part that “[a] parent is not guilty of any of the crimes charged . . . if he used justifiable physical force or another justifiable method to discipline a child” and “[p]hysical force or other method of punishment is justifiable if a reasonable person would find that punishment was necessary under the circumstances and that the physical force or method used was reasonable.”
We shall find that the jury was properly instructed on the issue of false imprisonment. We hold that a parent charged with the false imprisonment of his or her child may defend on the ground the imprisonment was lawful as an exercise of parental authority.
We further find the evidence is insufficient to support the conviction on count five for felony child abuse because it fails to show the abuse was committed under circumstances or conditions likely to produce great bodily harm or death.
We shall therefore modify that conviction to the lesser included offense of misdemeanor child abuse. Because the trial court stayed the sentence on this count, this modification has no effect on the disposition and sentence imposed. As modified, we shall affirm the judgments of conviction.
In Father’s appeal, respondent asks that we take judicial notice of certain exhibits contained in the augmented appellate record in Mother’s appeal, consisting of videotaped interviews with the victim. Because we have consolidated these two appeals, the exhibits are properly before us in both cases and we need not take judicial notice of them. We therefore deny respondent’s motion as unnecessary.
STATEMENT OF FACTS
A. The Prosecution’s Case
In late 2004, Mother and Father lived in a ground-level apartment in Sacramento County with their five-year-old daughter F., their one-year-old son A., and their seven-year-old son B.
Before B. was two years old, Mother immigrated to the United States and Father followed shortly thereafter. Once in this country, they had two more children and brought B. here on August 12, 2004. Five days after B. arrived, Mother took him for a physical examination. At that time, he was seven years, eight months old, weighed 52 pounds, and was in good health. He had no skin injuries, marks, or rashes on his body. His weight and body mass index were within the normal range for his age.
B. was born in the latter part of 1996.
The family had a shed located on the patio just off the living room that was visible through a sliding glass door leading to the patio. The shed was made of thin uninsulated walls, with a concrete floor, and a door that locked. The shed was packed with boxes from floor to ceiling, leaving a small space about 18 inches square in front of the door.
Shortly after B. arrived, defendants began to abuse him. According to B., his Father locked him in the shed for a long time on three occasions. He did not like being in there because it was dark and cold, he had to stand, and he could not go to the bathroom. It made him feel bad and his mother was present each time and knew he was in the shed. On one of those occasions, Father taped B.’s wrists and mouth before putting him in the shed. When Father finally let him out, he removed the tape and allowed B. to eat, but then made B. kneel with his head against the door until it was time to go to sleep. This position hurt his feet.
According to F., B. was put in the shed “everyday.” He was placed in the shed during the day while the rest of the family went somewhere, and except for the first night, he slept in the shed.
F. recalled that on one occasion, B. “got in trouble” and Father spanked him and told him to go into the shed.
Although B. was given food when he first joined the family, they stopped feeding him every day shortly after he arrived, particularly when he got in trouble or when he was in the shed. Defendants gave him the same food as the other members of the family, but he was not given enough food and he ate separately and at different times than the rest of the family.
B.’s father used duct tape to bind his wrists and feet together, so that his palms were turned inward and his ankles were touching. He would leave the tape on all day like this. He also taped his arms behind his back and put tape over B.’s eyes and his mouth, which prevented him from telling his parents he was hungry. Sometimes B. had to stand with the tape on while the rest of the family slept and this felt bad. Although Mother saw him when he was taped up, she never removed the tape or otherwise tried to help him. When his father removed the tape, it hurt and the tape left marks on his skin.
On more than one occasion, B.’s father put him in the bathtub without any clothes but with tape on his legs and held his head under the water so he could not breathe. When he came up for air, his father pushed his head down a second time.
On another occasion while B.’s mother was present, his father made him kneel with his head against the wall. Father also punished B. by making him do “fukama,” which involved kneeling on the floor while holding a heavy object.
B. slept on the floor in F.’s room because his father told him to. He did not attend school or have any toys although his brother and sister had toys and his father did not allow him to play with his brother and sister. Sometimes B. was bound with tape while the other children were playing.
On October 30th, B.’s father put him in the shed in the late afternoon and he remained there until he was discovered by some of the neighbors. Around 4:00 p.m. that day, Anthony Hyland, who lived in the apartment directly above defendants’ apartment, went out onto his balcony where he saw defendants drive away from the apartment complex with F. and A. Shortly afterwards, he heard continual banging noises and a child crying and calling out “daddy, daddy.” The crying continued until 10:30 p.m., so he rounded up a couple of other neighbors and began a search for the child. The three men discovered the cries were coming from defendants’ shed and the child was asking to use the bathroom.
After one of the men opened the locked door with a pocket knife, they saw B. standing in a small dark space with bare feet, wearing only a thin pair of pajamas. He had no other clothes and there was no food or water in the shed. The temperature was approximately 48 degrees outside and the concrete floor was cold. According to Hyland, the weather was “really freezing.” B. was crying “nonstop.” He was scared, confused, shaking, and cold. The men gave him a blanket and a sandwich and assured him they would get him help. B. had not been fed that day before he was put in the shed.
The parties stipulated that the temperature in Sacramento on October 30, 2004, was 64.4 degrees at 4:53 p.m. and by 10:53 it had dropped to 48.2 degrees.
A few minutes later, defendants drove up to the complex and were met by the apartment manager who told them a child had been found in their patio shed. Evidence presented only to Mother’s jury showed that Mother acted as if this was “no big deal.” She was dismissive and told the manager it was okay and not to worry about it. She was not crying and did not seem concerned about the child’s safety. Later, the manager went to defendants’ apartment and asked about the little boy because she had never seen him before. Mother told her he was her son and explained that he had just come from Africa and that they wanted to send him back but her attorney advised against it. Mother explained that they put B. in the shed because he “poops and pees” all over and he is “not all there in the head.”
Sacramento County Sheriff’s Sergeant Robert Rinelli arrived at defendant’s apartment around midnight. When he entered their apartment, B. was sitting alone at the table eating a full plate of spaghetti while repeatedly looking over his shoulder. Defendants were in the room but no one else was eating.
Sheriff’s Deputy Jeffrey Massagli arrived a short while later and spoke with Mother in English with no apparent difficulty. He was unable to communicate with Father who did not speak English. After being advised of her rights, Mother explained that B. began urinating and defecating in his pants after she discovered he was evil. She again indicated that it was her intention to send B. back to Africa as an orphan to prevent him from inflicting sorcery on the family.
Mother admitted that on October 30th, she and her husband put B. in the outdoor shed, left the apartment about 5 p.m. with the other two children, and did not feed him lunch or dinner, or leave him with any food or water in the shed. She also acknowledged that it was cold outside and that B. was lightly dressed and was not wearing shoes. She indicated that she was not remorseful because she believed as a result of her religion and visions and dreams she received from God, that B. was evil and a sorcerer and that one day, he would try to kill her and her husband.
Defendants’ three children were taken into protective custody that night. Just before leaving the apartment, Deputy Massagli told B. to choose a toy to take with him and he selected a stuffed animal. Seeing the toy, Mother became very angry and ripped it out of his hand and gave it to the baby. Father was present and did nothing to return the toy to B.
Medical examinations of all three children revealed that A. and F. were healthy and had no abnormalities while B. appeared “emaciated.” B. was admitted to the hospital at which time he weighed 44 to 45 pounds, which placed him in the third to tenth percentile for weight. Expert testimony established that he had not received adequate calories to maintain his weight and that he was malnourished and had “marked muscle wasting.” His malnourishment was due to lack of food rather than disease.
B.’s caloric intake was gradually increased from 50 percent of the recommended daily allowance in order to avoid triggering “re-feeding syndrome,” a dangerous and potentially fatal metabolic change that can affect malnourished children who are suddenly fed too many calories. Once that risk passed, B. was allowed to eat anything he wanted and his “appetite was outstanding. He ate a lot.” He liked a variety of foods, but he particularly liked ice cream and during the 11 days he was in the hospital, he gained 11 pounds, placing him in the 50th percentile for weight. Two months later, B. had gained 20 pounds and was in the 75th percentile for weight.
B.’s malnourished condition would have adversely affected his health over time. Malnourishment lowers the body’s immune system, which increases the risk of infection from childhood diseases and influenza. It also impairs the body’s ability to deal with stresses, infection or injuries by making it difficult to heal. Malnourishment also limits physical growth and brain development, which impairs the child’s ability to reach his full physical and intellectual potential.
B.’s face, arms, wrists, and knees also showed evidence of abrasions consistent with being taped. Expert medical testimony established that leaving a malnourished child in a storage shed for over seven hours with bare feet, wearing only thin pajamas in temperature ranging from 66 degrees to 48.2 degrees is injurious to the child’s mental health and to his physical health because it creates additional health stresses including the possibility of hypothermia, dehydration, and injury.
Social workers arranged a supervised visit between defendants and their three children. However, B. had to be dragged into the room because he was terrified to be in the room with defendants. Once he was in the room, defendants ignored him while they hugged and kissed the other two children and peppered them with questions.
B. Mother’s Defense
Mother testified on her own behalf and called several character witnesses who testified that she took good care of her children, and was nice, generous, hard working, compassionate,
Two of the three witnesses had never seen Mother with B.
According to Mother, she and Father married in 1996 in Congo, they immigrated to the United States around 1998 and then focused their efforts on bringing B. to the United States. When he finally arrived, he was thin and Mother took him to a clinic for a physical exam a couple of times. His appetite was good and he ate with the family.
Since Mother worked and attended school, she was frequently gone from the home. She denied leaving B. in the shed while the family went to the mall or to a friend’s house. In fact, she was not aware he had ever been placed in the shed. She further denied seeing B. bound with tape and testified she was not present when Father gave B. a bath and held his head under water.
On Saturday, October 30, 2004, Mother was gone all day, returned home to cook spaghetti, and left again about 6:00 p.m. She returned around 11:00 p.m. when she learned her step-mother had died. She was very upset and they decided to go to Modesto to be with family. She sat in the car while Father made preparations to leave. When they reached Elk Grove, they realized B. was missing and immediately returned to their apartment.
Blaming language difficulties, Mother denied making the incriminating statements Deputy Massagli put in his report and testified that he misunderstood her. She explained that the marks on B.’s body were caused when he scratched a rash that he had.
C. Father’s Defense
Father testified that when B. arrived in this country, he had marks on his arms and face. Other injuries were caused when B. peeled dead skin off his face. He fed the children three meals a day, and he and his wife fed B. the same food they ate, although B. did not like some of the American-style food at first.
Father admitted putting B.’s head under water but claimed he did so while washing his hair. He also admitted putting tape on B.’s wrists explaining that this was a method of teaching him to count. He denied placing tape anywhere else on B.’s body.
About a month after B. arrived, he began urinating and vomiting on his clothes. One time, he defecated in his pants. Father punished him for doing this once by spanking him, another time by making him kneel and by doing “fukama.”
Father also punished B. by giving him “time-out” in the shed for short periods of 10 to 15 minutes but he never locked the door when B. was inside. The first time he did this, he was punishing B. for defecating in his pants. He could not remember the reason for the second time but his wife was never around when B. was in the shed because she was either at work or at school.
Father also put B. in the shed on October 30th as punishment. He had fed the children breakfast and lunch and B. urinated, defecated, and vomited on his clothes three times that day. After the third incident somewhere between 8 and 9 p.m., he told B. to go into the shed and he closed the door but did not lock it. Around the same time, he received a telephone call from Africa advising him of the death of Mother’s step-mother. When Mother returned home around 9 p.m., they decided to go to Modesto and in the rush to leave, they forgot to take B. They did not realize he was missing until they got to Elk Grove and immediately returned home.
DISCUSSION
I.
There Is No Sua Sponte Duty To Instruct on the Definition of “Likely”
Relying on People v. Wilson (2006) 138 Cal.App.4th 1197 (Wilson), both defendants contend the trial court had a sua sponte duty to give a special instruction defining the word “likely” in section 273a because it has a specialized meaning. In their reply briefs, they assert Wilson was wrongly decided and propose definitions different than the one adopted in Wilson. Father argues the proper definition is one of “high probability.” Mother argues the definition is “perhaps ‘highly likely,’ or ‘more likely than not.’”
Respondent argues that Wilson was wrongly decided and there is no sua sponte duty to give a definitional instruction. We agree with respondent on both points.
The rules governing the trial court’s sua sponte duty to instruct the jury are well established. In the absence of a request, the trial court has a duty to instruct the jury “‘sua sponte on general principles which are closely and openly connected with the facts before the court.’” (People v. Abilez (2007) 41 Cal.4th 472, 517.) This duty extends to amplifying or clarifying instructions where the term used in an instruction has a “‘particular and restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of law [Citation].” (People v. Roberge (2003) 29 Cal.4th 979, 988.) A word has a technical, legal meaning when it has a definition that differs from its nonlegal meaning. (People v. Estrada (1995) 11 Cal.4th 568, 574.) The trial court has no duty to give a clarifying instruction in the absence of a request if the term in the instruction has a plain and unambiguous meaning that is “‘commonly understood by those familiar with the English language . . . .’” (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872.)
Because neither defendant requested an instruction defining the word “likely,” we shall consider whether it has a technical meaning particular to section 273a and find it does not.
Section 273a provides that “[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.” (Italics added.)
This section defines four types of child abuse. (People v. Sargent (1999) 19 Cal.4th 1206, 1215 (Sargent).) The element or requirement that the abuse be committed “under circumstances or conditions likely to produce great bodily harm or death” applies to all four types (§ 273a; Sargent, supra, 19 Cal.4th at p. 1216) and the determination of this element is a question for the jury based upon all the evidence. (Id. at p. 1221.)
Although the meaning of the word “likely” is flexible (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916 (Ghilotti)), both the legal and nonlegal sources define the word in terms of probability. (Compare sources collected in Ghilotti, supra, at p. 917; Webster’s Third New International Dictionary (1971) p. 1310.) Consistent with these definitions, case law has long recognized that the phrase “likely to produce great bodily harm or death” in section 273a means “‘the probability of serious injury is great.’” (Sargent, supra, 19 Cal.4th p. 1223, quoting People v. Jaramillo (1979) 98 Cal.App.3d 830, 835; People v. Valdez (2002) 27 Cal.4th 778, 784; People v. Cockburn (2003) 109 Cal.App.4th 1151, 1160; People v. Cline (1982) 135 Cal.App.3d 943, 948; People v. Northrop (1982) 132 Cal.App.3d 1027, 1035; People v. Hernandez (1980) 111 Cal.App.3d 888, 895.)
Because the legal and plain meanings of “likely” in section 273a are the same, we conclude there is no sua sponte duty to further define it. We also note that this definition is very similar to the one proposed by Father and see no real difference between a “high probability” and a “probability” that is “great.” (People v. Jaramillo, supra, 98 Cal.App.3d at p. 835; see People v. Kimbrel, supra, 120 Cal.App.3d at pp. 873-874.)
The court in Wilson, supra, 138 Cal.App.4th 1197, reached a somewhat different result by looking to Ghilotti, supra, 27 Cal.4th 888, and held that the proper definition is “a substantial danger, i.e. a serious and well founded risk, of great bodily harm or death.” (Wilson, supra, 138 Cal.App.4th at p. 1204.) The Wilson court believed this definition applied equally to section 273a because in its view it “draws a fair balance between the broad protection the Legislature intended for vulnerable children and the level of seriousness required for a felony conviction.” (Ibid.)
We are not persuaded by Wilson because it failed to consider the relevant authorities cited above and mistakenly relied on Ghilotti.
Ghilotti, supra, 27 Cal.4th 888, arose in the context of the Sexually Violent Predator Act, which authorizes the civil commitment of violent sex offenders following completion of their prison term. (Welf. & Inst. Code, § 6600 et seq.) The Supreme Court construed the meaning of the word “likely” in section 6601 of the Welfare and Institutions Code. That section requires two mental health professionals to evaluate the candidate for involuntary civil commitment by determining whether “the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody.” The defendant argued “likely” meant “highly likely” or at least “more likely than not.” The People argued it meant “‘a significant chance, not minimal; something less than “more likely than not” and more than merely “possible.”’” The Supreme Court concluded that neither party was entirely correct. (Id. at pp. 915-916.)
Recognizing the word “‘likely’ may be used flexibly to cover a range of expectability from possible to probable,” (27 Cal.4th at p. 916) the court concluded the proper definition under Welfare and Institutions Code section 6601 was the narrower definition of “a substantial danger, that is, a serious and well-founded risk . . . .” (Ghilotti, supra, 27 Cal.4th at p. 922.) The court arrived at this definition for two reasons. First, the word must be given a meaning consistent with the purpose of the SVPA. That purpose is to protect the public from the limited group of persons who currently suffer from a mental disorder that impairs their ability to control their violent sexual impulses such that they “do in fact present a high risk of reoffense if they are not treated in a confined setting.” (Id. at p. 921.) Second, the word must be construed “in light of the ‘difficulties inherent in predicting human behavior.’” (Ibid.; see also People v. Roberge, supra, 29 Cal.4th at pp. 988-989 [affirming that Ghilotti’s definition of “likely” was tailored to the purposes of the SVPA because the word has a particular and technical meaning under the SVPA].)
The considerations pertinent to the SVPA are not raised by section 273a. While both the SVPA and section 273a serve to protect others from abuse, the SVPA operates by providing procedures for the involuntary civil commitment of sexually violent predators who in fact pose a high risk of reoffense, while section 273a protects children from abusive situations by punishing offenders upon conviction of the offense. Secondly, the word “likely” in section 273a does not serve as a measure for making the difficult and imprecise task of predicting human behavior. Rather, it is merely a measure for determining the risk of injury created by external and tangible circumstances or conditions. (Sargent, supra, 19 Cal.4th at p. 1223.)
For these reasons, we hold that the word “likely” is to be given its plain and common sense meaning. As a result, the trial court had no duty to give a special instruction defining the word and committed no instructional error.
While judges and attorneys may discern the difference between “the probability of serious injury is great” and “a serious and well founded risk,” we doubt any juror would fully appreciate the difference so as to effect the verdict.
II.
The Jury Was Properly Instructed on the Parental Right to Punish a Child
Father contends his convictions must be reversed because the standard jury instruction on parental authority, CALCRIM No. 3405, failed to adequately protect his fundamental right to discipline his child. Respondent contends the trial court properly instructed the jury on that right and had no sua sponte duty to give any further instruction on parental authority. Respondent is correct.
CALCRIM No. 3405 in pertinent part provides that “[a] parent is not guilty of any of the crimes charged . . . if he used justifiable physical force or another justifiable method to discipline a child” and “[p]hysical force or other method of punishment is justifiable if a reasonable person would find that punishment was necessary under the circumstances and that the physical force or method used was reasonable.”
A parent’s right to discipline his or her child is subject to state restriction when it appears such discipline may jeopardize the child’s health and safety. (Johnson v. Department of Social Services (1981) 123 Cal.App.3d 878, 886-887; People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.) “Since the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right wilfully to inflict personal injuries beyond the limits of reasonable parental discipline.” (Emery v. Emery (1955) 45 Cal.2d 421, 429-430.)
This right to discipline one’s child includes the right to inflict reasonable corporal punishment. (People v. Whitehurst, supra, 9 Cal.App.4th at p. 1050.) However, such punishment is unjustifiable when it is not warranted by the circumstances, i.e., it is not necessary or it is excessive. “‘[B]oth the reasonableness of, and the necessity for, the punishment is to be determined by a jury, under the circumstances of each case.’” (Ibid., quoting People v. Curtiss (1931) 116 Cal.App.Supp. 771, 777.)
The trial court’s sua sponte duty to instruct on particular defenses raised by the evidence (People v. Breverman (1998) 19 Cal.4th 142, 157-158) includes the duty to instruct on the defense of parental discipline. (People v. Whitehurst, supra, 9 Cal.App.4th at p. 1049.) Here the trial court discharged that duty by giving CALCRIM No. 3405, the standard jury instruction on parental discipline.
Because this instruction correctly states the law governing parental discipline, the trial court had no sua sponte duty to give a further instruction on the defense.
The instruction proposed for the first time on appeal by Father states in pertinent part that “[d]iscipline and punishment are acceptable so long as they are not so grossly disproportionate to the rights of the parents as would shock the conscience of any reasonable person.”
This instruction sets forth an incorrect standard for determining whether the discipline was lawful. Since it would have been improper to give this instruction even upon request, Father’s claim fails.
III.
There Is No Sua Sponte Duty To Give A Pin-Point Instruction Relating Parental Immunity to False Imprisonment
Relying on People v. Checketts (1999) 71 Cal.App.4th 1190 (Checketts), Father argues the trial court had a sua sponte duty to instruct the jury that he could not be convicted of false imprisonment unless the evidence shows he had the intent to harm his child or he had an unlawful purpose. Respondent counters that Father has incorrectly read Checketts to limit the circumstances under which a parent can be found guilty of the false imprisonment of his child.
We reject Father’s argument because we find the proposed instruction is a pin-point instruction which the trial court has no sua sponte duty to give.
In Checketts, the defendant was convicted of false imprisonment after he beat his daughter and ordered her to go into the attic and remain there for a couple of days so the social worker would not see her injuries. (71 Cal.App.4th at p. 1193.) On appeal, he argued that he could not be convicted of false imprisonment because, as a parent, he has a right to control his own child. The court rejected this argument holding that “a parent is not immune from criminal prosecution for false imprisonment of his child where the act of confinement is done with an intent to endanger the health and safety of the child, or to achieve an unlawful purpose, because such an act exceeds the scope of parental authority.” (Id. at p. 1192.)
As discussed in Part II, the trial court has a sua sponte duty to instruct on the defense of a parent’s right to reasonably discipline his child (People v. Whitehurst, supra, 9 Cal.App.3d at p. 1050) and the trial court gave that instruction. As noted, CALCRIM No. 3405 in pertinent part provides that “[a] parent is not guilty of any of the crimes charged . . . if he used justifiable physical force or another justifiable method to discipline a child” and “[p]hysical force or other method of punishment is justifiable if a reasonable person would find that punishment was necessary under the circumstances and that the physical force or method used was reasonable.”
The trial court also has a duty to give “pin-point" instructions directed to the theory of the defense (People v. Harris (1989) 47 Cal.3d 1047, 1098, fn. 31; People v. Wright (1988) 45 Cal.3d 1126, 1137) but the duty to give such instructions arises only upon request when there is evidence supportive of the defendant’s theory of the case. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Pin-point “instructions relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant's case” by relating the defense to the elements of the offense. (Id. at pp. 1119, 1121.)
The proposed instruction states that “[t]he defendant, as a parent, is not guilty of false imprisonment for confining his or her child unless you find the confinement was done with an intent to endanger the health and safety of the child, or to achieve an unlawful purpose.”
Since CALCRIM No. 3405 applies generally to all discipline of a child by a parent and includes false imprisonment, the proposed instruction is a pin-point instruction because it relates the parental discipline defense to the offense of false imprisonment. Father’s failure to request this instruction in the trial court is fatal to his claim of error.
IV.
There is Substantial Evidence of Child Abuse
Defendants both contend the three convictions for felony child abuse must be reversed for insufficient evidence. They argue the evidence fails to show Father’s acts were likely to produce great bodily injury or death or that his acts were unjustified discipline. In addition, Mother argues there is no evidence she committed these offenses directly, aided and abetted the abuse, or was criminally negligent. Respondent counters that there is substantial evidence to support the verdicts as to both defendants.
We find the evidence fails to support the verdict of felony child abuse on count five and shall modify the judgment by reducing that conviction to misdemeanor child abuse. (§ 273a, subd. (b).) We find the evidence is sufficient to support the other two counts as to both defendants.
A. Standard of Review
When assessing the sufficiency of the evidence to support the verdict in a criminal case, we apply the substantial evidence test. Under that test, we consider the entire record in the light most favorable to the judgment below and presume in support of the judgment every fact the trier could reasonably deduce from the evidence. From that vantage we determine whether the record discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
B. Law Governing Felony Child Abuse
Section 273a is an omnibus statute that defines four types of child abuse. (Sargent, supra, 19 Cal.4that p. 1215.) It may be violated in a wide variety of situations that involve active or passive conduct ranging from direct assault to extreme neglect (id. at p. 1216) and may be based upon a single act or a continuing course of conduct. (People v. Lee (1991) 234 Cal.App.3d 1214, 1220.)
The four types of proscribed conduct specified by section 273a share two common elements. There must be proof the defendant’s conduct was (1) willful and (2) committed “under circumstances or conditions likely to produce great bodily harm or death . . . .” (§ 273a; Sargent, supra, 19 Cal.4th at p. 1216.) Great bodily harm is defined as a “‘significant or substantial injury and does not refer to trivial or insignificant injury.’” (People v. Cortes (1999) 71 Cal.App.4th 62, 80, quoting CALJIC No. 9.37.) There is no requirement that actual injury result. “It is the likelihood of foreseeable injury, rather than whether such injury in fact occurs, that is relevant.” (People v. Lee, supra, 234 Cal.App.3d at p. 1220.) Thus, as we held in Part I, in determining whether the harm to the child was inflicted “under circumstances or conditions likely to produce great bodily harm or death,” the jury must find based upon all the evidence that the “probability of serious injury [was] great.” (People v. Jaramillo, supra, 98 Cal.App.3d at p. 835; Sargent, supra, 19 Cal.4th at p. 1221.)
Penal Code section 273a, subdivision (a) provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four or six years.”
However, the required mens rea depends upon the type of abuse alleged. “[W]hen the conduct at issue involves the direct infliction of unjustifiable physical pain or mental suffering on a child, criminal negligence is not an element of the offense. Rather, the defendant must have a mens rea of general criminal intent to commit the proscribed act.” (Sargent, supra, 19 Cal.4th at pp. 1216, 1224.) In other words, the defendant must intend the act of infliction of unjustifiable physical pain or mental suffering.
Child abuse committed by indirect action requires proof the defendant was criminally negligent. (People v. Valdez, supra, 27 Cal.4th at p. 789.) Criminal negligence is defined as “‘“aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . .”’ [Citation.] ‘Under the criminal negligence standard, knowledge of the risk is determined by an objective test: “[I]f a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.”’ [Citations.]” (Id. at p. 783.)
With these principles in mind, we turn to the defendants’ specific contentions.
C. Analysis
1. Father
Count 2 - Father challenges his conviction on count two, which was based upon evidence he confined B. in the shed on October 30, 2004, for over six hours. He concedes leaving B. unattended in a small, locked shed for several hours “endangered [his] life” and was unjustified, but nevertheless asserts his actions were “not likely to cause great bodily injury” because the danger of substantial injury was simply too remote.
Father’s concession defeats his claim because felony child abuse may be committed “under circumstances or conditions likely to produce great bodily harm or death” (§ 273a) and as a matter of logic, if the circumstances were sufficient to endanger the boy’s life, they were necessarily likely to cause death. As we discuss in more depth in connection with Mother’s claim, the evidence established that the conditions of this offense were likely to cause hypothermia and over time, hypothermia may lead or contribute to death. (See People v. Smith (2003) 30 Cal.4th 581, 596, 612.) We therefore reject this contention.
Count Five - Father next challenges his conviction on count five, arguing that the evidence is insufficient to show his conduct was unjustified or that it involved the likelihood of great bodily harm or death.
This count was based on all the other acts of abuse leading up to October 30th and constitutes a course of conduct rather than a single act. Nevertheless, the prosecutor identified four types of abuse and told the jury it had to unanimously agree as to “which one” constituted this offense. The four types of abuse included locking B. in the shed for extended periods of time, binding his arms and legs with duct tape and taping his eyes and mouth shut, putting him in the shed while he was bound with tape, and holding his head under water so he could not breathe. After reviewing the entire record, we find none of the factual theories relied on by the prosecution support the jury’s verdict that the circumstances were likely to produce great bodily harm or death.
The first type of abuse, locking B. in the shed, fails because there is no evidence as to the time of day or the temperature inside or outside the shed while B. was inside the shed. Without this evidence, there is no basis to find he was in danger of hypothermia or heat stroke. Nor does the evidence support the People’s argument that B. could have been bitten by a poisonous spider, a rat, or a snake, or hit by a falling object. There is no evidence any of these creatures were in or had ever been in the shed or the immediate area, or that any of the boxes or other objects stored in the shed had fallen or were lodged in precarious positions that made it likely any one of them would fall on B.
The second type of abuse involved binding B.’s arms and legs with tape and the People argue that this created the risk that B. would fall and hit his head. While B. testified Father bound his legs so that his ankles were touching, there was no evidence he was unable to stand or that hobbling him in this fashion caused him to fall. Moreover, while B. testified that his father put him in the shed once while his legs were bound, since the shed only provided standing room, it was unlikely he could have fallen and hit his head with sufficient force to cause great bodily harm.
The third type of abuse cited involved taping B.’s eyes and mouth shut. Evidence that injury to a person’s eyes may result from the inability to blink is insufficient to establish the probability of such injury where as here there was no evidence B.’s eyes were taped open or that he was unable to blink. The evidence also showed that taping a person’s mouth shut could cause suffocation by obstructing his breathing if his nose was congested or if the person vomited. However, the evidence failed to show B. had difficulty breathing as a result of nasal congestion from a cold or allergies. Nor was there any evidence to support an inference he was at risk of choking. Father testified that B. started to urinate and vomit on his clothes shortly after he arrived in this country and that he vomited on October 30th. However, count five excluded the events on October 30th and there is no evidence B. vomited on a day when Father taped his mouth shut or that he had been vomiting regularly or around the time Father taped his mouth shut.
The fourth type of conduct involved holding B.’s head under water so he could not breathe. The evidence shows B. was unable to pull his head out of the water and when he finally was able to come up for air, Father pushed his head down a second time. However, during a recorded interview, B. told the investigator that he did not try to get away and he was not scared when Father held his head under water. Given B.’s lack of fear and the absence of any evidence he came close to drowning, it is not reasonably probable his head was submerged in water long enough to produce a great probability of drowning. We must conclude therefore that this incident was not likely to produce great bodily harm or death.
Having found none of the factual theories sufficient to support the jury’s verdict, we must reverse Father’s conviction on this count. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) However, where as here, the evidence is insufficient to support the greater offense but is sufficient to support the lesser offense, to avoid the necessity of a new trial, an appellate court may modify the judgment to the lesser and necessarily included offense. (People v. Matian (1995) 35 Cal.App.4th 480, 487.)
In Guiton, the Supreme Court held that when the jury is presented with legally correct instructions on one or more theories for which there was inadequate proof, reversal is not required if “a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (4 Cal.4th at p. 1129.)
The difference between felony and misdemeanor child abuse is that felony child abuse is committed under “circumstances or conditions likely to produce great bodily harm or death” while misdemeanor child abuse is committed “under circumstances or conditions other than those likely to produce great bodily harm or death . . . .” (§ 273a, subd. (b).) As this is the only difference between the two offenses, misdemeanor child abuse is a lesser included offense of felony child abuse. (People v. Sheffield (1985) 168 Cal.App.3d 158, 166.)
Thus, we shall address Father’s claim relating to reasonable justification because it is equally applicable to misdemeanor violations of section 273a. We reject it however because in making this argument, he ignores the substantial evidence test and asks us to reweigh the evidence. This we cannot do. (People v. Hill (1984) 37 Cal.3d 491, 499.)
Father testified that he confined B. in the shed as a form of “time out”, held B.’s head under water while he was washing his hair, and put tape on him to teach him to count. The jury rejected his testimony in favor of B.’s testimony that he was able to bathe himself, his father was not giving him a bath or washing his hair when he held his head under the water, nor was he teaching B. to count when he put tape on him. The jury could also reasonably find the circumstances and conditions of confinement in the shed were unjustified because they were unnecessarily harsh and cruel, namely that B. was confined in a small dark uninsulated shed without food, water, light or heat, for extended periods of time while his arms and mouth were taped shut.
Therefore, having found the evidence on this count fails solely for lack of evidence on the element required for the greater offense, we shall direct that the abstract of judgments be modified to reduce defendant’s convictions on count five to misdemeanor child abuse. (§ 273a, subd. (b).)
Count Six - This count was based upon Father’s failure to feed B. sufficient food to maintain his weight and health. Ignoring the substantial evidence in support of the judgment, Father argues there is no evidence he caused B.’s weight loss, the weight loss endangered B.’s health, or that he was criminally negligent.
To the contrary, the evidence showed B. came to this country as a healthy seven-year-old boy who weighed 52 pounds, which was within the normal range for his age. Shortly after he arrived, defendants began to believe B. was evil and the powers of a sorcerer at which time, Father began to systematically abuse the boy in the manner discussed in connection with count five. He also began to withhold food, putting B. in the shed for hours without feeding him and otherwise depriving him of sufficient food. After two months, he had lost eight pounds and dropped below the 10th percentile in weight. He was malnourished and appeared emaciated with marked muscle wasting. Expert medical testimony established that his weight loss was due to a lack of sufficient food rather than disease.
Father was the primary caretaker who fed the children while Mother worked outside the home. During this same period of time defendant’s other two children were well fed and remained healthy. Despite B.’s dramatic loss of weight and emaciated appearance, Father did nothing to increase the amount of food he gave B. or to seek medical care for his condition. This evidence supports the jury’s finding that Father willfully and purposefully withheld food from B. causing him to become malnourished and emaciated.
Nevertheless, Father asserts he was merely trying to maintain the family’s culture. Characterizing B. as a picky eater who refused to eat the same food as the rest of the family, he points to evidence that B. took only one bite of a sandwich offered him immediately after he was removed from the shed on October 30th. There is no evidence to support this theory. Father testified it was American-style food B. did not like. The evidence further showed that B. quickly consumed a plate of spaghetti upon his release from the shed on October 30th and once others were caring for him, he ate a range of food and gained 11 pounds while in the hospital and after two months, had gained 20 pounds.
The evidence also establishes the weight loss endangered B.’s health. Failure to provide proper nutrition and medical care may constitute felony child abuse. (People v. Pointer (1984) 151 Cal.App.3d 1128, 1131-1134; People v. Lee, supra, 234 Cal.App.3d at pp. 1217-1218 [mother convicted of second degree murder and felony child endangerment for the death of emaciated and dehydrated infant].) Here medical testimony established that malnourishment lowers the body’s immune system, which increases the risk of infection from disease, impairs the body’s ability to heal and deal with stress, infection or injury, and limits physical growth and brain development. During the first few days B. was in the hospital, medical staff controlled his caloric intake so as not to trigger re-feeding syndrome, a potentially fatal metabolic condition.
It is only because B. was taken into protective custody and fed a sufficient diet that his condition did not worsen to the point of actual life threatening harm. We therefore find the evidence supports the jury’s verdict that withholding food from a seven-year-old boy so as to cause malnourishment, emaciation, and marked muscle wasting constitutes conditions likely to produce great bodily harm.
2. Mother
Mother challenges her convictions for child abuse on the same grounds raised by Father. Having rejected these arguments, we shall now address her additional arguments.
As Mother correctly asserts, she was convicted on the theory she willfully permitted child abuse. Therefore, she is guilty of felony child abuse if there is substantial evidence that, under circumstances or conditions likely to produce great bodily harm or death, she willfully permitted B. to suffer or to be placed in a situation where his person or health was endangered. (§ 273a.) As stated, violations committed by indirect action require proof of criminal negligence (People v. Valdez, supra, 27 Cal.4th at p. 789), which requires proof a reasonable person in Mother’s position would have been aware of the risk involved. (Id. at p. 783.)
Count Two - Without any citation to the record or reasoned analysis, Mother contends there is no evidence she saw Father put B. in the shed on October 30th and because the circumstances were not likely to produce great bodily harm or death, she cannot be found criminally negligent.
Mother’s own statements defeat the first part of her argument. On October 30th after defendants returned to their apartment, Mother spoke to Deputy Massagli and admitted she and her husband had placed B. in the shed at 5:00 p.m. that day to prevent him from urinating and defecating in the apartment. She further admitted that she knew he went into the shed unfed, without shoes, clad only in thin shorts and a tee shirt, and acknowledged it was cold outside. She told the deputy she was not remorseful for her actions because as a result of her religion, she believed B. was evil. She demonstrated her hostility towards the boy when she grabbed the toy from his hand as he was being taken into protective custody. This evidence raises a reasonable inference Mother willfully and unjustifiably placed or knowingly permitted B. to be placed in the locked shed for over six hours and that she was fully aware of the nature and circumstances of his confinement.
We also reject Mother’s assertion that these circumstances were unlikely to produce great bodily harm or death. As stated, hypothermia may cause death. (See People v. Smith, supra, 30 Cal.4th at pp. 596, 612.) Here, the storage shed was located on defendants’ patio outside the apartment. It had thin uninsulated walls with no light or heat and was full of objects from floor to ceiling leaving a very small space that was large enough for a child to stand in and no more. B. was left alone in that shed for at least six hours in late October without adequate clothing. By 10:00 p.m., the temperature outside was 50 degrees and by 10:53 when the neighbors finally found B., the temperature had dropped to 48.2 degrees. Given the size and contents of the shed, he would not have been able to curl up on a raised surface to preserve his body heat. Moreover, he had not been fed before being put in the shed and was given no food or water. Being malnourished and emaciated, his immune system was impaired as was his ability to withstand the cold. Placing him in a locked shed under these conditions put him at serious risk of injury from hypothermia. These conditions constitute circumstances likely to produce great bodily harm.
Count Five - For the same reasons discussed with respect to Father, we shall order that Mother’s conviction on this count be reduced to the lesser included offense of misdemeanor child abuse (§ 273a, subd. (b)) because the evidence fails to support the jury’s implied finding that the offense was committed under circumstances likely to produce great bodily harm or death.
Count Six - Mother claims B.’s weight loss is not her responsibility because she was away from the home during the day and on week nights and therefore did not know what or how much the children were eating. The evidence does not support her claim. F. testified that B. was put in the shed while the rest of the family ate and B. testified that Mother was present whenever he was placed in the shed. In addition, Mother admitted she knew B. went into the shed on October 30th without food but did not appear surprised or concerned about his plight. Given B.’s significant weight loss and emaciated appearance, she could not have helped but notice B.’s condition. Nevertheless, once she believed he was evil, she did nothing to modify his diet, increase his food intake, or seek medical treatment for him because she feared him. Although she argues that B.’s weight loss began in Africa, there is no evidence to support this claim. Accordingly, the jury could reasonably find she knowingly permitted Father to withhold food from B. because of her hostile feelings towards the boy.
The evidence cited by Mother was hearsay evidence that was considered by the medical expert on cross-examination and the trial court admonished the jury it could not consider the information on the medical form for the truth of the matter asserted.
V.
There Is Substantial Evidence To Support the Convictions for False Imprisonment
Defendants challenge the sufficiency of the evidence to support their convictions for false imprisonment.
A. Unlawful Confinement
Relying on Checketts, supra, 71 Cal.App.4th 1190, defendants contend there is insufficient evidence to show Father intended to harm B. when he locked him in the shed or that he had an unlawful purpose in doing so. Respondent counters this claim has no merit in law or fact.
The defendants have misconstrued the holding in Checketts. Section 236 defines the crime of false imprisonment as “the unlawful violation of the personal liberty of another.” (Italics added.) The elements of false imprisonment are (1) a person intentionally and unlawfully restrained, confined, or detained another person to stay or go somewhere and (2) the victim did not consent to the restraint, confinement, or detention. (§ 236; CALCRIM No. 1240; Checketts, supra, 71 Cal.App.4th at p. 1194.)
Checketts says that it is “lawful” for parents to impose reasonable acts of discipline on their children. “[R]easonable acts of discipline, including confinement to a particular location for disciplinary purposes such as sending a child to his or her room, would not be false imprisonment, as they would constitute lawful exercise of parental authority.” (Checketts, supra, 71 Cal.App. at p. 1194.)
However, the holding in Checketts did not alter the elements of the crime. As we discussed in Part III, the court in Checketts held that a parent is not immune from criminal prosecution for false imprisonment of his child where the act of confinement is done with an intent to injure the child or to achieve an unlawful purpose, because such an act exceeds the scope of parental authority. (Checketts, supra, 71 Cal.App.4th at p. 1192.) Although sending a child to his room as a disciplinary measure would constitute a lawful exercise of parental authority (id. at p. 1194), that right does not extend to confinement for an unlawful purpose. (Id. at pp. 1195, 1197.)
As we held in Part II, the jury was properly instructed on the parental authority defense and that it is the prosecution’s burden to prove the imprisonment was unjustified. (CALCRIM No. 3405.) As noted, CALCRIM No. 3405 provides in pertinent part that “[a] parent is not guilty of any of the crimes charged . . . if he used justifiable physical force or another justifiable method to discipline a child” and “[p]hysical force or other method of punishment is justifiable if a reasonable person would find that punishment was necessary under the circumstances and that the physical force or method used was reasonable. [¶] The People must prove beyond a reasonable doubt that the force or method of punishment used was not justifiable. [If] the People have not met this burden, you must find the defendant not guilty [of false imprisonment].”
Applying the substantial evidence test (People v. Carter, supra, 36 Cal.4th at p. 1156), we find the jury rejected Father’s claim that he put B. in the closet as a time-out or to punish him for defecating in his pants. The evidence established that he frequently confined B. in the shed for lengthy periods of time without food and sometimes he taped his arms and mouth before putting him in the shed.
Under these circumstances, the jury could certainly find the conditions of confinement discussed in more detail in Part IV.D.2 were cruel and unreasonable and based upon the length and conditions of the confinement and Father’s belief that B. was evil, his intent was to injure the boy rather than to impose reasonable discipline. Accordingly, we find there is substantial evidence the confinement was not justified.
B. Mother’s Liability as an Aider and Abettor
Mother contends the evidence is insufficient to support her convictions for on counts one and four because it fails to show she aided and abetted either of these offenses.
Mother was tried on the theory she aided and abetted the false imprisonment and the jury found her guilty of felony false imprisonment on count one, the October 30th incident, and count four, which was based upon the last false imprisonment committed before October 30, 2004.
Count three, which Mother was acquitted of, charged the first false imprisonment committed between August 1, 2004, and October 30, 2004.
An aider and abettor is one who acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.) While mere presence at the scene of the crime or failure to take steps to prevent the crime do not establish aider and abettor liability (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1161), they are factors that may be considered in making that determination along with the defendant’s companionship with the perpetrator and her conduct before and after the offense. (In Re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)
Count One- As we have previously discussed (see Part IV.D.2: Count 2), the evidence in support of this count shows Mother told Deputy Massagli that she and her husband put B. in the shed on October 30th before leaving their apartment at 5:00 p.m. and that she had no remorse because she believed B. was evil and would try to kill her one day. She told the manager they put B. in the shed because he “poops and pees” all over. These admissions constitute substantial evidence she knowingly assisted Father in placing B. in the locked shed.
Count Four - The evidence shows the shed was visible through the sliding glass door in the living room and that Mother was present in the living room when B. went into the shed. From this vantage, she was able to see him enter the shed but did nothing to release him. Given these circumstances and the parties’ domestic and family relationship, the jury could reasonably conclude Mother was aware Father was confining B. in the shed. Additionally, her admissions to Deputy Massagli and the apartment manager on October 30th raise an inference she supported Father’s method of confining him in this way to prevent him from fouling their home with urine and excrement and to protect the family from his sorcery. Under these circumstances, the jury could reasonably find she actively promoted and encouraged Father to confine B. in the shed.
C. Menace
Mother argues the evidence is insufficient to support the jury’s finding of menace. We disagree.
False imprisonment is punishable as a felony when it is “effected by violence, menace, fraud, or deceit . . . .” (§ 237, subd. (a).) Menace is defined as the threat of harm express or implied by word or deed (People v. Reed (2000) 78 Cal.App.4th 274, 280) that operates upon the will of the victim. (People v. Zilbauer (1955) 44 Cal.2d 43, 51.)
Mother relies on People v. Matian, supra, 35 Cal.App.4th at pages 485-486, where the court upheld the sufficiency of the evidence to support menace. There the defendant sexually assaulted the victim by squeezing her breast, causing pain and possible bruising. When the victim was preparing to leave, he grabbed her arm and yelled at her not to go and that “nothing happened.” He then retreated into an office within view, but each time she started to leave, he glared at her as he got out of his chair and approached her. (Id. at pp. 485, 487.) Finding the cases of false imprisonment by menace fall into two categories, i.e. cases where the defendant used a deadly weapon to effect the offense and cases where the defendant verbally threatened the victim with harm, the court concluded the evidence was inadequate to establish menace. This was because there was no evidence of a deadly weapon, nothing to indicate the defendant verbally threatened the victim with additional physical harm, and no evidence to suggest he “raised his fist or otherwise made any threatening movements suggesting harm each time [the victim] got out of the chair to leave.” (Id. at p. 487.)
We find Matian inapposite and disagree with it to the extent it holds that menace cannot be implied from the defendant’s actions. (People v. Reed, supra, 78 Cal.App.4th at p. 280.) The facts recounted in Matian involved a single sexual battery on an adult woman while the present case involves the confinement of a young child who had been subjected to a continuing course of physical and mental abuse by his father.
Although defendant in Matian was convicted “of sexual battery by restraint, felony false imprisonment and genital penetration with a foreign object” (35 Cal.App.4th at pp. 482-483), the published portion of the case only discusses the part of the assault in which defendant pinched the victim’s breast. It is therefore unclear whether the foreign object penetration (§ 289) was committed on another victim.
Because of B.’s young age, his lack of familiarity with his new country due to his very recent immigration from Africa, and his lack of friends, teachers, and other family members to protect him, he was completely dependent upon Father who was his primary caretaker. Given both parents’ hostility towards him and the fact Father had been systematically abusing him for almost two months, B. knew Father would further abuse him if he did not obey him. B.’s loss of bladder and bowel control attests to the severity of the psychological trauma and mental suffering he endured as a result of this abuse. Under these circumstances, the jury could reasonably find that an order by Father to go into the shed carried an implied threat of further physical harm and punishment if he did not comply with his order. Accordingly, we find the evidence is sufficient to support the jury’s verdicts.
DISPOSITION
The convictions on count five are reversed and modified to the lesser included offense of misdemeanor child abuse. (Pen. Code, § 273a, subd. (b). The clerk of the Superior Court is directed to amend the abstract of judgment to reflect this modification and to transmit a copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgments of conviction are affirmed as to both defendants.
We concur: RAYE , J., ROBIE , J.