Opinion
C040505.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. TERRY ALLEN SEWELL, Defendant and Appellant.
In a trial by court, defendant Terry Allen Sewell was convicted of willful infliction of injury upon a child (Pen. Code, § 273a, subd. (a) — count I) and of torture (§ 206 — count II). The court also found true, as to count I, an allegation that defendant personally inflicted great bodily injury upon the victim, a child under five years of age (§ 12022.7, subd. (d)). Defendant was sentenced to state prison for life for the section 206 conviction; a nine-year term was imposed for the section 273a, subdivision (a) conviction, but stayed pursuant to section 654.
Hereafter references to undesignated sections are to the Penal Code.
On appeal, defendant contends (1) the evidence is insufficient to support the conviction for torture; and (2) if the evidence is sufficient to support the torture conviction, section 206 is unconstitutional as applied to him. We shall affirm the judgment.
FACTS
On August 10, 2001, at about 4:45 a.m. Maria W. left her three-year-old daughter Amy with defendant while Maria went to work. When Maria returned home around 3 p.m., defendant told her that Amy was at his mothers home. At defendants mothers home, Maria found Amy laying on a couch, crying and bruised. At Marias request, defendants mother drove her and Amy to a hospital emergency room, dropped them off and left.
That same afternoon, Deputy Stephen Bruen was dispatched to the emergency room to investigate Amys injuries. When Deputy Bruen first saw Amy she was laying on a gurney with numerous nurses and doctors around her. Amy appeared "badly beaten" — she had swelling on the right side of her face and head, and she had bruises on her ears, neck, legs and abdomen.
On August 11, 2001, Dr. John McCann, a pediatrician and expert on child abuse, examined Amy, who was hooked up to monitors and intravenous solutions. Amy had bruises, abrasions and scratches on various parts of her body, including her abdomen and hipbone. Amy suffered serious injuries to her pancreas and liver, and she had several semi-circular bruises of similar formation and age. Amy had small lacerations on her nose which were "consistent with somebody grabbing the nose and forcefully squeezing the nose, digging in the fingernails." Dr. McCann attempted to count Amys bruises and got "somewhere around 50 bruises."
Maria testified that defendant "always had a MagLite with him." The MagLite was about eight inches long and Maria had seen defendant, when angry, use it to punch a hole in the wall of her residence. There were also holes in a door which were not there when Maria left for work on August 10. These holes in the door and wall looked similar.
Defendant testified that at the time of the incident with Amy, Maria W. was his girlfriend and they were living together. About five days prior to the incident with Amy, he had been using methamphetamine and had not slept. The night before Maria left Amy with him he ingested about a gram of methamphetamine, felt that he was under its influence and fell asleep.
Defendant was awakened by Amys playing in the cats litter box; he spanked her on the "butt," although not very hard, and went back to sleep. He was again awakened by Amys playing in the litter box. Defendant then admitted that, during a five-to six-minute period, he inflicted the injuries Amy suffered. Defendant beat Amy because he was angry, not because he wanted revenge or for any sadistic purpose.
Dr. Robert Lawrence, a forensic pathologist, reviewed Amys medical records and concluded that her injuries were consistent with having been inflicted by an "impaired perpetrator, somebody under the influence of something like amphetamine or PCP." Dr. Lawrence did not believe that Amys injuries were consistent with a "theory of torture" because "they all occurred very rapidly and indicate a frenzied attack rather than a deliberate infliction of pain over a prolonged period of time." Dr. Lawrence admitted the injuries and the manner in which they were inflicted showed an intent to inflict pain or punishment.
DISCUSSION
I
Section 206 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. [P] The crime of torture does not require any proof that the victim suffered pain."
Defendant contends that his conviction under section 206 must be reversed because the evidence is insufficient to support any of the purposes set forth in the section. We disagree.
"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence — i.e., evidence that is credible and of solid value — from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Green (1980) 27 Cal.3d 1, 55, 164 Cal. Rptr. 1, 609 P.2d 468.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal. (People v. Bradford (1997) 15 Cal.4th 1229, 1329, 939 P.2d 259.)
In this case, the trial court based the conviction for torture on its finding that the evidence showed that defendant "specifically intended to cause cruel or extreme pain and that he did that for the purpose of either persuasion or for his own pleasure." That finding is supported by the severity and multitude of Amys injuries, which showed an intent to inflict extreme pain; by defendants admitted reason for beating Amy, namely, that he was angry because her playing in the litter box had awakened him, showed that he inflicted the pain for the purpose of persuasion, i.e., to punish her so that she would not do it again; and by the five to six minute length of the beating from which it may reasonably be inferred that he was inflicting the pain for his own sadistic pleasure. Consequently, substantial evidence supports the courts finding.
Defendant cites People v. Hale (1999) 75 Cal.App.4th 94, People v. Jung (1999) 71 Cal.App.4th 1036, and People v. Baker (2002) 98 Cal.App.4th 1217, as instances wherein the acts of the respective defendants made it manifestly clear that they intended to cause pain for one of section 206s designated purposes. These cases are of no aid to defendant since they do not set a minimum standard of conduct required for proof of a violation of section 206. The point is whether a reasonable inference can be drawn in this case that defendants infliction of extreme pain on Amy was done with the intent of accomplishing one or more of the purposes of section 206. If such an inference can be drawn, as we have so concluded is the case here, it is immaterial that there exists conduct which makes clearer the intent to accomplish a section 206 purpose.
II
Defendant contends that section 206 is unconstitutional when applied to the circumstances of this case. He argues: "It would take an act of complete speculation to imagine in advance that lashing out impulsively and violently at a crying child might be construed as an act undertaken for the purpose of revenge, extortion, persuasion, or . . . sadistic purpose. No one could know in advance that the act of child abuse the evidence here proved might be held to violate this proscription."
With the exception of extortion, the argument ignores that children, unable to protect themselves, are frequently subjected to intentional infliction of extreme pain for a variety of reasons, including sexual sadism and/or punishment (persuasion). Indeed, section 273a, subdivision (a), of which defendant was also convicted, has long recognized this state of affairs by providing: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished . . . ."
In sum, there is nothing vague about section 206 as applied in the circumstances of this case.
DISPOSITION
The judgment is affirmed.
We concur RAYE, J. and ROBIE, J.