Opinion
F073750
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. CARLA MARIELA GARCIA TORRES et al., Defendants and Appellants.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Carla Mariela Garcia Torres, Defendant and Appellant. Diane E. Berley, under appointment by the Court of Appeal, for Alberto Faragia Garcia, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. BF133232A, BF133232B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Carla Mariela Garcia Torres, Defendant and Appellant. Diane E. Berley, under appointment by the Court of Appeal, for Alberto Faragia Garcia, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
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This is a joint appeal involving two defendants. Carla Mariela Garcia Torres appeals her convictions for second degree murder, fatal assault on a child under eight years of age, and two counts of child abuse or endangerment. Alberto Faragia Garcia appeals his convictions for second degree murder and two counts of child abuse or endangerment. We affirm.
PROCEDURAL HISTORY
Torres and Garcia, a married couple, were extradited from Mexico and charged, in an information filed in April 2015 in the Kern County Superior Court, with multiple felonies perpetrated on their foster children, Serenity G. and Isaiah G.
In 2009/2010, when the offenses at issue in this appeal were committed, Torres and Garcia were in the process of formally adopting Serenity and Isaiah and had changed the children's names to Caroline and David, respectively. In February 2012, Torres and Garcia were arrested in Mexico and, in October 2014, were extradited to the United States.
Torres and Garcia were both charged, in count 1, with the premeditated murder of Serenity. (Pen. Code, §§ 187, subd. (a), 189.) In count 2, Torres alone was charged with fatal assault on a child under eight years of age, i.e., assaulting a child under the age of eight, in her care or custody, with force likely to produce great bodily injury and resulting in the death of the child (Serenity). (§ 273ab.) In count 3, Torres and Garcia were both charged with felony child abuse/endangerment, i.e., abusing or endangering a child in their care or custody, under conditions likely to produce great bodily harm or death (Serenity). (§ 273a, subd. (a).) Count 4 also charged Torres and Garcia with felony child abuse/endangerment, i.e., abusing or endangering a child in their care or custody, under conditions likely to produce great bodily harm or death (Isaiah). It was further alleged, in connection with count 4, that Torres and Garcia, respectively, personally inflicted great bodily injury upon Isaiah, a child under five years of age.
Subsequent statutory references are to the Penal Code unless otherwise specified.
Serenity was born in February 2007 and the offenses concerning Serenity were alleged to have occurred on July 17, 2010, when she was three years old (counts 1, 2, 3). Isaiah was born in April 2006 and the offense concerning Isaiah was alleged to have occurred between April 2009 and July 2010, when he was four years old.
The precise time of Serenity's death is unclear as the evidence suggests it occurred sometime between the evening hours of July 17, 2010, and the early morning hours of July 18, 2010.
The matter proceeded to jury trial in March-April 2016. The jury found Torres and Garcia guilty of second degree murder in count 1 (Serenity). As for count 2, Torres was convicted of fatal assault on a child (Serenity). Torres and Garcia were also convicted of felony child abuse/child endangerment in counts 3 (Serenity) and 4 (Isaiah). The jury found the enhancement attached to count 4 alleging that Torres and Garcia, respectively, personally inflicted great bodily injury upon Isaiah, a child under five years of age, not proved.
Sentencing took place in May 2016. Torres was sentenced to 25 years to life on count 2 (fatal assault on a child-Serenity). Sentences of 15 years to life on count 1 (second degree murder of Serenity) and the middle term of four years on count 3 (abuse/endangerment of Serenity), were stayed pursuant to section 654. A consecutive sentence of the middle term of four years was imposed on count 4 (abuse/endangerment of Isaiah).
Garcia was sentenced to 15 years to life on count 1 (second degree murder of Serenity). A sentence of the middle term of four years on count 3 (abuse/endangerment of Serenity) was stayed pursuant to section 654. A consecutive sentence of the middle term of four years was imposed on count 4 (abuse/endangerment of Isaiah).
FACTS
A. Torres-Garcia Household
Torres and Garcia were a couple with two biological children, Crystal (born in 2004) and Albert, Jr. (born in 2006). They were also raising Torres's son from a previous relationship, Carlos (born in 2000). Torres ran a housekeeping business, Carla's Housekeeping; she had multiple clients and worked four to five days a week.
Serenity and Isaiah came to live with Garcia and Torres in June 2008, as foster children, through a lead from Garcia's mother, Maria G. (Maria). At that point, Serenity was under a year and half and Isaiah was just over two years old. They were the children of Garcia's sister. In August 2009, Garcia and Torres initiated the requisite process to adopt Serenity and Isaiah. Garcia and Torres received a monthly government check of approximately $900 for fostering Serenity and Isaiah.
Garcia worked on cars in the garage of the family home to make a living. He also watched the children while Torres went to work. After Torres returned from work, she would help the older children with homework and make dinner for the family. Eventually, in February 2010, Torres and Garcia got married.
The family rented a pleasant four-bedroom home in Bakersfield for a monthly rent of $1,900. Garcia and Torres shared the master bedroom. Carlos had his own bedroom. Crystal and Serenity shared a bedroom with bunk beds, while Albert, Jr. and Isaiah shared another bedroom with bunk beds. Torres kept the house clean and tidy.
Several witnesses testified about the relationship between Garcia and Torres. These witnesses described Torres as the more dominant person in the relationship. For example, Torres's sister, Elsa T. (Elsa), described Torres as the boss of the house because she worked and made money whereas Garcia did not work outside the home. Another sister of Torres, Sandra G. (Sandra), told an investigator from the district attorney's office that Torres ruled the household and what she said went. Similarly, Garcia's mother, Maria, testified that "[Torres] would always push [Garcia] to do whatever she would want him to do." Maura U. (Maura), who had lived next door to Garcia and Torres at one point and babysat their children, was also of the view that Torres was the more dominant person in the relationship.
At the time Serenity was killed on July 17, 2010, Garcia and Torres were both 26 years old.
B. Mistreatment of Serenity and Isaiah
There was considerable evidence to show that Torres treated Serenity and Isaiah extremely harshly and abusively, and was especially hostile towards Serenity, who was just a toddler at the time. There was also evidence showing Garcia would treat Serenity and Isaiah harshly on occasion as well.
Torres's sisters testified that they saw troubling bruises on Serenity's body on numerous occasions, which prompted them to raise the matter with Torres. However, Torres would dismiss their concerns with routine excuses to the effect that Serenity had fallen while playing or riding her bike.
Sandra, one of Torres's sisters, noticed bruises on Serenity's legs in 2008 or 2009. Torres dismissed Sandra's concerns, claiming Serenity had fallen while riding her bike and playing outside.
Similarly, Elsa recalled noticing bruises on Serenity when Serenity was three years old. Again, Torres minimized the bruises, blaming them on routine falls. Elsa also testified about other disturbing incidents. Elsa once had to intervene when Torres was hitting Serenity for peeing in her pants. In fact, not long before Serenity died, Elsa saw Torres spank Serenity excessively. On another occasion, Torres mentioned she had tied Serenity to a chair when Serenity fell over and injured her face. Elsa was concerned about Torres's behavior with Serenity and Isaiah to such an the extent that she suggested Torres stop fostering them, a suggestion Torres dismissed. In addition to Elsa's testimony on the stand, evidence was presented that Elsa told a police detective investigating the instant case that Torres had once struck Serenity so hard that the force lifted Serenity off the ground. Elsa also told the detective that Serenity and Isaiah were afraid of Torres.
Anita M. (Anita), another sister of Torres, had babysat Serenity and Isaiah for a period of time. Anita was concerned that Serenity was not getting enough to eat in light of how "little" and "skinny" she was. Serenity's hair was falling out, which was another indication of malnourishment. Torres gave smaller portions of food to Serenity as compared to the other children. On one occasion when Anita was babysitting Serenity and Isaiah, she spoon fed Serenity, which enraged Torres. Torres directed her anger at Serenity, telling her: "[Y]ou already fucking know better. You know how to eat by yourself."
Anita noted that Torres was usually the person who disciplined the children. Anita had seen Torres spank Serenity with her hand as well as with a sandal. Anita had heard Torres tell Serenity that Serenity was stupid. Torres also expressly said, on a couple of occasions, that she disliked Serenity. Another time, Anita heard Torres say she had tied Serenity to her bed, so Serenity would not wake Torres up at night (Serenity slept on the bottom bunk in the room she shared with Crystal as she was scared of heights).
Anita further testified that Garcia also mistreated Serenity. Garcia once threw a metal spoon at Serenity, hitting the top of her head. On another occasion, Garcia placed a "soft" chair on top of Serenity while she was in a "time out." Garcia said this was an effective tactic to make Serenity stop crying.
Renee H. (Renee), the biological paternal grandmother of Serenity and Isaiah, had periodic visits with her grandchildren when they were in the care of Torres and Garcia. Renee observed that Serenity was losing weight and had scratches on her face and bite marks on her hand. Isaiah was also losing weight. On one occasion, Renee noticed that Isaiah had a large, round circle around his eye. The children did not exhibit such bruises and nicks prior to being fostered by Torres and Garcia.
Renee started bringing food to her visits with the children. Isaiah and Serenity ate the food "like starving dogs," polishing off everything that Renee packed for them. During one visit, Torres saw Serenity eating food that Renee had provided. Shortly thereafter, Renee was prohibited from bringing food to the visits and she was eventually precluded from visiting the children entirely.
Maria, the children's maternal grandmother, also visited them at the Torres-Garcia residence. Torres would get upset whenever Maria gave food to the children. On one occasion, Maria gave Serenity a glass of water at the child's request. Torres got mad, snatched the cup of water from Serenity's hand, and told Maria not to give Serenity water. Maria had seen Serenity with a "busted lip" and observed Torres scolding Serenity and Isaiah. At one point, Maria confronted Torres about a red mark in the shape of a shoe on Isaiah's leg; Torres said she had hit him for peeing in his pants. Maria reported this incident to Child Protective Services (CPS). Thereafter, Torres isolated the children from Maria.
Acquaintances of the family also observed disturbing incidents. One acquaintance, Aurosol C., saw Torres grab Serenity by the wrist, hold her up off the ground, and spank her until she cried "really hard." Maura, the former neighbor who had babysat Isaiah and Serenity, noted the children were always famished when they came over. Maura had seen Torres spank Serenity and pull her hair as punishment. Maura had noticed marks and bruises on Serenity and Isaiah. She had observed the children were sometimes fearful when they saw Torres. Maura testified Torres favored her biological children over Serenity and Isaiah. Indeed, Torres expressly told Maura she did not like Serenity. Twice, Maura reported Torres's actions to CPS social workers.
District Attorney Investigator Herman Caldas spoke with Torres's son Carlos in September 2012. Carlos said he had seen Torres slap Serenity several times. Caldas spoke with Carlos again in November 2014. Carlos said he once saw Torres hit Serenity with a belt such that it left a "stripe." Carlos also stated that, not long before his family fled to Mexico, Isaiah was holding his arm as if he was in pain. In December 2015, Caldas spoke with Carlos for the third time. Carlos said he would turn away when Torres would hit Isaiah and Serenity with a belt, as he found the conduct difficult to witness. Carlos became "teary-eyed" during the discussion concerning the treatment of Isaiah and Serenity.
C. Events of the Night that Serenity was Killed
Torres's son, Carlos, testified that on the night of July 17, 2010, he went to bed at his usual bedtime of 8:00 p.m. (Carlos was 10 years old at the time). He subsequently heard doors opening and footsteps in the hallway. He drifted back to sleep but was later awakened by Torres, who told him the family was leaving for Mexico. Torres helped Carlos pack some personal items and instructed him to "run to the car." The family departed quickly thereafter.
Carlos was more specific in a prior interview with an investigator from the district attorney's office. The interview had occurred in September 2012, several years before the April 2016 trial. Then, Carlos noted that, after he went to bed that night, he heard Torres in Serenity's bedroom, followed by a loud thump consistent with something falling. He next heard Torres running out of Serenity's room. Carlos subsequently changed his statement, stating: "'I didn't see anything. My mother went into the room after the sound.'" Thereafter, Carlos recanted again, stating he heard Torres go into the room, followed by the thumping sound, followed by Torres leaving the room.
Regarding the trip to Mexico, Carlos testified that Torres told him they were headed to visit his maternal grandfather, whom he had never met. Torres, Garcia, Carlos, Crystal, and Albert, Jr. drove together in the family's vehicle. After arrival in Mexico, the vehicle was sold.
D. Physical Evidence at Crime Scene
On July 18, 2010, Torres called her sister, Sandra, around 8:15 in the morning. Torres told Sandra to go to Torres's house because Torres was on her way Mexico, Serenity was dead, and Isaiah was still in the house. Sandra was dumbfounded but Torres quickly hung up.
Sandra went to the house, entering through an unlocked door. She saw Serenity's body in the living room covered with a towel. She got Isaiah (who had marks on his face) from his room and carried him outside, shielding his eyes upon crossing the living room. She then called 911. Authorities arrived, confirmed that Serenity had passed away, and secured the scene.
Investigators and forensic technicians combed the house. Empty cans of SpaghettiOs and a bottle of liquid pain medicine were found on the kitchen counter. Serenity's body was in the living room, on the floor, in front of the couch. She was wearing underwear, a pair of pants, and a shirt. Her face and chest, as well as the floor, were spattered with vomit. There were paper towels on the floor; they had evidently been used to wipe up the vomit. A bottle of "medicinal ointment" was on the sofa near Serenity's body. A mop bucket, with a mop and soapy water, was in the kitchen.
Girls' bedding was found in the washing machine. A bathtub in the hallway bathroom was found to have spots of blood in it and wadded-up clothes were found under the sink (the clothes were mostly toddler clothing along with a men's t-shirt).
Stains on several of the clothes, including the men's t-shirt, subsequently tested positive for blood; vomit was also found on some of the clothes. Stains on the railing of a bunk bed in the girls' bedroom, on a wall in that bedroom, and on the carpet in that bedroom, also tested positive for blood.
DNA analysis was conducted on the blood stain on the carpet in the girls' room and on a toddler's t-shirt found under the bathroom sink. Serenity could not be excluded as a source for the DNA in the bloodstains on the carpet and t-shirt.
E. Autopsy of Serenity's Body
On July 19, 2010, Dr. Lesley Wallis-Butler performed an autopsy on Serenity, who was three years old at the time of her death.
Dr. Wallis-Butler testified that she "documented 27 individual injuries" to Serenity's head, face, and scalp, including bruises, abrasions, contusions, and lacerations. These included bruises and abrasions to her ear, contusions on the sides of her eyes, a laceration to the back of an ear, a "gaping laceration" on her chin, an abrasion to her forehead, and an injury to her jaw area, among other bruises and injuries. The injuries were on all sides of Serenity's head and represented blunt force trauma.
In addition, there was an injury inside Serenity's mouth. Dr. Wallis-Butler described it as follows: "There's a small piece of tissue, it's called a frenulum, that holds or attaches your gum to your upper lip. So if you flip your upper lip up, you can see a small piece of tissue. [¶] That piece of tissue was torn and scarred. And then the whole area up underneath the lip area had been undermined [or] forcefully torn away from the attaching tissues and a pocket had formed and healed. [¶] So rather than being able to just reach into the mouth and see a nice smooth lip, gumline, there was actually a pocket up underneath the lip and cheek area."
Dr. Wallis-Butler testified that the 27 head injuries she documented indicated that Serenity had suffered multiple "impacts" to the head. Indeed, "[Serenity] could have had 27 different impacts." Dr. Wallis-Butler explained: "It's definitely more than one impact. There's no way to impact the right side of your head and impact the underside of your chin at the same time unless you're hitting something that has that exact shape. [¶] So I can't give you a minimum number of strikes ... or actual contact with something. But because she has it, basically, circumferentially, there had to have been a number of impact[s]."
Dr. Wallis-Butler also documented numerous contusions, abrasions, scabbed lesions, and scars on other parts of Serenity's body, including on her torso, buttocks, limbs, and hands. The multitude of injuries were all blunt force trauma and showed that Serenity had "either fallen or [been] hit multiple times in different configurations." A single incident, for example, falling from a bunk bed, could potentially explain some but not all the injuries; rather, the injuries were the result of multiple incidents.
Dr. Wallis-Butler further addressed major internal injuries sustained by Serenity, including lacerations to her stomach, liver, pancreas, and mesentery. She testified: "The first thing that I noticed when I opened [Serenity's] abdomen was that it was filled with approximately a hundred cc's of a brownish liquid with circular noodles, like SpaghettiOs." Serenity had a "laceration to her stomach, which allowed for the stomach contents to extend out into the abdominal cavity itself." The laceration was "about 1.5 centimeters" in length. The brownish liquid "definitely" spilled out through this laceration in the stomach wall.
Dr. Wallis-Butler further explained: "[A]s soon as you create a hole in a viscus organ, your stomach, your intestines, if there's any fluid in there, you're going to release it. [¶] It's like a balloon. If you pop the balloon, the air will come out. So if you lacerate the stomach, any contents in the stomach [are] going to come out into the abdominal cavity. [¶] Then you develop metabolic issues and you develop peritonitis [inflammation of the lining of the inner abdominal wall] and become shocky. While you're becoming shocky, you can have nausea and vomiting and just be very sick." Dr. Wallis-Butler also noted that stomach lacerations and peritonitis are "[e]xtremely" painful.
In addition to the stomach laceration, Dr. Wallis-Butler found lacerations to "[Serenity's] liver, as well as to her pancreas and her mesentery." The mesentery is "the adipose tissue that ... surrounds and holds the pancreas and the stomach into place." These injuries, which were "anatomically located within the same general region," constituted "blunt force traumatic injuries to the abdomen area." Dr. Wallis-Butler reiterated that the lacerations to the internal organs would have been painful, and could be accompanied by "cramping, nausea, vomiting, just generally not looking well." She also repeated that losing bodily fluids would have affected the metabolic balance of Serenity's blood. The metabolic imbalance in conjunction with food leaking into the abdominal cavity and pancreatic enzymes flowing directly into the cavity, would have led to "shock." Serenity would have become increasingly lethargic until she eventually passed away.
The internal injuries constituted blunt force trauma. However, since they were "all in [the] same area," Dr. Wallis-Butler could not say whether they were caused by a "single blow" or "multiple blows." It was nonetheless clear that the injuries represented "a significant amount of trauma." Dr. Wallis-Butler observed: "Again, what happens is the individual will get a traumatic force being applied to the abdomen, but because the spine is holding everything in place, the liver, the stomach, the pancreas gets compressed between the force that's being applied and the spine. And so it causes that tearing of the tissues. [¶] So it's a pretty significant force. We generally see it in motor vehicle accidents. [¶] A child that's traveling very, very quickly [on a bike] and hits the handlebars as they're going over a bump can get generally just a liver laceration. They generally don't have all three injuries. [¶] So when you have all three injuries, it's much more traumatic force being applied, [as in a serious motor vehicle accident]."
Another major injury that Dr. Wallis-Butler found on Serenity's body was a skull fracture, more specifically a fracture "in the left occiput" or the "left back of the head." Dr. Wallis-Butler opined that "[s]kull fractures are blunt force trauma." She added: "It takes a significant amount of force. Your skull is pretty strong. It's supposed to protect your brain. So it takes a significant amount of force to fracture a skull." In sum, the force that Serenity experienced at various points on the night of her death was "strong enough to go through the entire abdomen and squash everything in between it and the spine" and "strong enough to fracture a bone."
Dr. Wallis-Butler also addressed the timing of various events. She believed Serenity would have eaten the SpaghettiOs before the stomach laceration occurred, because "the laceration to the stomach is going to be extremely painful and you're not going to want to eat." She indicated the SpaghettiOs were not digested at the time of the laceration and explained that a light meal would usually be digested after 30 minutes, while a heavy meal would take up to two hours. She pointed out, however, that "somebody who's stressed may not be digesting properly."
Regarding the laceration to the liver, Dr. Wallis-Butler observed "there was evidence of acute hemorrhage," as well as "evidence of fibrin." She explained: "Fibrin is when you injure something, your platelets will move into that area to try to wall off the blood vessels. It's basically like your first scab, if you will." She further explained that the production of fibrin is followed by "infiltration" of the injury by "neutrophils," which she described as "the body's second line of defense." "Neutrophils are coming in to help the healing and repair." Here, neutrophils were found on Serenity's liver laceration, suggesting the healing process was progressing before she died. Dr. Wallis-Butler concluded: "Scientific evidence shows that generally with the liver if neutrophils are present, there's been about a four-hour lag time between the time of the injury and the infiltration of the neutrophils."
Serenity's chin injury occurred before she died as well, as indicated by the evidence of hemorrhage in that area. As for Serenity's scalp, Dr. Wallis-Butler noted: "[Serenity] had areas of hemorrhage in the scalp area to where she had the injuries on her forehead. So that's consistent with her being alive prior to receiving the injuries to her forehead." Regarding, the timing of the skull fracture, Dr. Wallis-Butler opined it had very little hemorrhage associated with it, which suggested "it's either occurring sometime around the time that [Serenity's] heart is stopping or her heart had already stopped." Dr. Wallis-Butler pointed out, however, that there was "evidence of lividity in the scalp tissues," which may have masked "any true hemorrhage" (she described lividity as the tendency of the blood to "settle to the most dependent parts of [the] body"). Asked to discuss the time of occurrence of the skull fracture relative to that of the abdominal injuries, Dr. Wallis-Butler observed: "I would say that the skull fracture had to have occurred after the abdominal injuries. Because the abdominal injuries definitely had hemorrhage. [Serenity's] heart was still beating. There [were] signs of vital reaction going on. Whereas the skull fracture, again there was very minimal hemorrhage in that area."
Dr. Wallis-Butler enumerated the "pathologic diagnoses" she made in the course of the autopsy on Serenity's body: "My pathologic diagnoses number one was blunt force ... head trauma. And that listed all of the abrasions, contusions, and lacerations, along with the skull fracture. [¶] Number two was blunt force torso trauma. That included the - all of the abrasions and the contusions to her torso, her mesenteric laceration, her pancreas laceration, her stomach laceration, her liver laceration. [¶] And then there were blunt force extremity trauma with the multiple abrasions and contusions." Dr. Wallis-Butler opined that many of the injuries on Serenity's body could have been inflicted at or near the time of the fatal injuries, although some injuries were in various stages of healing. She noted, however, that the blunt force trauma to Serenity's head and abdomen both played "a contributory role" in causing her death. She also clarified that Serenity's abdominal injuries were not near her heart and they were not the result of any CPR performed on her in her final moments.
Dr. Wallis-Butler opined, based on her pathologic diagnoses, that the cause of Serenity's death was "blunt force trauma." As for the manner of death, Dr. Wallis-Butler opined it was a homicide, i.e., it was caused by another person. She explained: "It's obviously not natural, so the only manner of death that I'm left with is homicide. I don't have an explanation for how these injuries could have occurred, i.e., [Serenity] was in an extreme motor vehicle accident. She fell out of a window [from a high floor]. I don't have that information; therefore, it was a homicide."
F. Injuries on Isaiah's Body
Bakersfield Police Detective Keli Paulk saw numerous bruises on Isaiah's body on July 18, 2010, including on his face, forehead, scalp, shoulder blades, buttocks and hips, as well as genital area. Isaiah was taken to Kern Medical Center that day, where he was examined and photographed. He was found to have multiple abrasions on his limbs, forehead, and back. Isaiah also had a laceration on his scalp; although the laceration had healed, hair did not grow on that spot. In addition, he had an old scar above his penis. Isaiah's forearm also had a healed fracture, as revealed in an x-ray; the fracture was at least six weeks old but may have been as old as three years.
G. Alberto Garcia's Pretrial Statement to District Attorney Investigator
On October 24, 2014, the day Garcia was extradited to the United States, District Attorney Investigator Herman Caldas spoke with him. Garcia admitted he had hit Isaiah with a stick two or three times, one of which times he left a mark on the child. Garcia also described an occasion when he slapped Isaiah on the back of the head, while Isaiah was in a "time-out" facing a wall. The slap caused Isaiah's head to hit the wall. In addition, Garcia acknowledged he had hit Serenity with his hand, leaving marks on her, on two occasions. Finally, Garcia admitted he had tied Serenity to her bed, so she would not disturb his sleep.
H. Testimony of Carla Torres
Torres testified in her own defense. She testified that Garcia controlled the family's decision making and finances. The money the family received for fostering Isaiah and Serenity went into a bank account in Garcia's name, to which Torres had no access. At one point, Torres felt that taking care of Isaiah and Serenity was more than she could handle but Garcia made the call to continue to foster them on account of the money involved. Garcia was an American citizen and Torres was an undocumented immigrant, which gave Garcia leverage over Torres, as he would threaten to get her deported and keep the children.
Torres further testified that Garcia was violent and abusive. One incident even landed Garcia in court. Torres could not take Serenity or Isaiah to the doctor or dentist without Garcia's permission. If Torres stood up to Garcia, he would grab her and take her into their bedroom, where he would rape her. He had raped her three or four times in the six months before Serenity died.
Torres had seen Garcia take a belt to Serenity when Serenity was two years old. Torres herself would not hit the children with a belt but would spank them or give them a "time out." Torres had never tied Serenity to a bed although she had tied Serenity's booster chair to another chair to keep Serenity from falling over. Torres acknowledged she did not like Serenity, adding she did not dislike her, either.
A day or two before Serenity died, she suffered an injury to her head while Torres was at work. In addition, a few days before she died, Serenity slipped on the wet kitchen floor and cut her chin, which bled profusely. Garcia forbade Torres from taking Serenity to a doctor in light of other bruises on Serenity's body. The cut on Serenity's chin continued to bleed, staining Serenity's clothes. Torres changed Serenity's clothes several times and put the stained ones under the bathroom sink.
On the day Serenity died, a Saturday, Torres stayed home and cleaned the house. Garcia spent the morning at the Department of Motor Vehicles registering a car. He returned home at lunchtime and, during the afternoon, worked outside on a customer's car.
A little later, at about noon or 1:00 p.m., Garcia entered the house and said he had caught Serenity drinking water from the toilet in the master bathroom. Torres heard Garcia say, amid spanking sounds, "I don't know what the fuck I'm doing here stuck with you guys when your bitch ass mom is out there getting high and having fun." Torres went to check on the situation and found Serenity in the fetal position. When Torres asked Garcia for an explanation, he screamed, "[W]hat the fuck do you care? They're not your children." He then returned to the garage.
Torres subsequently gave Serenity a "time out" for hitting other children and spanked her for peeing in her pants, leaving a puddle of urine on the tile floor. At approximately 2:00 p.m., Torres gave Serenity a bath because she had peed in her pants. Serenity was bleeding from prior injuries to both her head and chin during the bath.
Around 2:30 p.m., Torres laid Serenity down, in the top bunk in the girls' room, for a nap. At 3:30 p.m., Serenity fell off the bed and hit her head on the carpeted floor. Serenity was "bleeding really bad" from her previous injuries. There was some discussion about taking Serenity to the emergency room, but Garcia rejected that plan. Thereafter, before dinner, between 5:00 p.m. and 6:00 p.m., Serenity complained of stomach pain. Torres gave Serenity some Motrin to help her with the pain. The children went to bed at 8:00 p.m. Torres again put Serenity in the top bunk. Torres and Garcia went to bed between 9:00 p.m. and 9:30 p.m.
Around 11:00 p.m., Torres heard Serenity moan, via the baby monitor, and went into the girls' room to check on her. Something seemed wrong with Serenity, so Torres awoke Garcia, who brought Serenity into the kitchen. Serenity was breathing but was nonresponsive. Garcia attempted to perform CPR on Serenity on the living room couch. Serenity vomited. Garcia continued CPR on the floor, with great force, noting he might have to break a bone. Thereafter Serenity appeared to be dead.
Garcia was wearing the men's t-shirt that was later found under the bathroom sink with blood spots. There were also blood stains in the tub, on Serenity's clothes from the previous few days, and on the carpet in the girls' bedroom (where Serenity had fallen earlier that day). At some point, Torres also put Serenity's sheets in the washing machine because Serenity had bled on them.
Garcia said he wanted to turn himself in. Torres wanted to leave because she did not want Garcia to go to jail and the family to be left without him. Garcia grabbed some personal items, the children were awoken, the car was packed up, and the family left for Mexico. Torres called her half brother for assistance in getting to Manzanillo, Colima, where Torres had family. Torres, Garcia, and the children stayed in Manzanillo for a year and half; they lived with Torres's biological father, whom Torres had not seen in two decades. Torres was fluent in Spanish; Garcia was not.
On cross-examination, when confronted with bank statements related to the family's bank account, Torres acknowledged her name was on the account along with that of Garcia. Torres said she had forgotten her name was on the account. Similarly, when confronted with the foster parent paperwork for Serenity and Isaiah, Torres acknowledged that she (not Garcia) had completed the paperwork. On cross-examination, Torres was also asked to describe the circumstances of the rapes she earlier said Garcia had committed; Torres was unable to provide any details regarding the rapes. Although Torres saw numerous bruises on Serenity's body and believed Garcia was abusing Serenity, she acknowledged she never informed CPS social workers about any abuse or injuries.
Torres was also confronted, during cross-examination, with letters she had written to Garcia when both were held in Mexican prisons pending the culmination of extradition proceedings. In these letters, Torres advised Garcia to lie about his identity to prevent potential extradition, implied that Garcia was not to blame for what happened to Serenity, and expressed her sexual desire for him in graphic terms.
I. Testimony of Alberto Garcia
Garcia testified in his own defense. He noted he disciplined all five children, and did not treat Serenity or Isaiah differently than the others. Garcia hit Carlos with a belt. He hit his own children with a stick. On one occasion, he had Isaiah sit in a corner as punishment for disobedience. He slapped Isaiah's head, which hit the wall and suffered a bruise. Garcia may occasionally have struck Serenity with his hand, although he could not remember specific incidents.
Torres favored her biological children over Serenity and Isaiah. Torres would punish Serenity and Isaiah more frequently and harshly than her own children. Torres struck Serenity and Isaiah with a belt and hit Isaiah with a mop or broomstick. The marks around Isaiah's penis were from Torres pinching him. A year before Serenity's death, Garcia was aware that Torres posed a danger to Serenity and Isaiah. Later, after he saw what happened to Serenity, he was also afraid for his own children.
On July 17, 2010, Garcia was working on a car in the garage of the family home. At some point during the day, he saw Torres giving Serenity and Crystal a bath. "[Serenity] was really small." Garcia testified he saw Torres strike Serenity in the stomach, in the bath. Earlier, Garcia had also told an investigator from the district attorney's office that he had seen Torres punch Serenity in the stomach. At trial, when asked whether Torres struck Serenity forcefully, Garcia responded: "I couldn't tell you how hard it was, but it was hard enough to be able to notice that Serenity - I just heard just kind of lose her breath like - like not a moan, but like a uhh kind of sound." Garcia noted that Serenity was not even able to cry because she was out of breath, i.e., the wind was knocked out of her. Garcia confronted Torres about hitting Serenity like that, but Torres just looked at Garcia and said nothing. Garcia pressed her because Serenity's reaction disturbed him; Torres denied hitting Serenity, dismissing his concern.
Later that afternoon, Serenity seemed dazed and woozy, with sunken eyes. Garcia asked Torres what was wrong with Serenity; Torres said Serenity was simply tired. Serenity also had a "cotton ball soaking [blood]" from a cut on her chin. Torres explained Serenity had slipped and fallen in the bathtub. Torres did not mention that Serenity had fallen from a bed.
Garcia went to bed at 10:00 p.m. or 10:30 p.m. Torres awoke him during the night because Serenity was moaning. Torres brought Serenity to the master bedroom and laid her on the floor, next to the bed. Garcia went back to sleep.
Subsequently, Torres said that Serenity had a fever and took her to the kitchen to give her some medicine. Serenity indicated the right side of her stomach was hurting. Garcia went to get dressed to take her to see a doctor, when Torres yelled, "Baby, she's not breathing." Garcia confirmed she was not breathing and carried her to the couch to administer CPR. He was not trained in CPR but tried to mimic the process he had seen on television. He did not use "extreme force" in doing so. Garcia testified: "I was yelling at [Torres], asking her what did you do [?]"
During CPR, fluids poured out of Serenity's nose and mouth. Garcia was "delusional" and "panicking" and telling Torres to call 911. Torres meanwhile had been "running around." Garcia also heard Crystal's voice. Eventually, Garcia looked around for his cell phone, grabbed it, and told Torres he was calling 911. Torres took the phone from Garcia and said: "'You're not dialing anybody. We need to go now.'" Torres informed him that the children were already in the family vehicle.
Serenity was not breathing and Garcia consequently believed she was dead; however, he was not absolutely sure of that fact. Garcia covered Serenity's body with a towel. He was "crying" and "frantic." Initially, he told Torres, "I can't leave. I can't just leave her like that." Torres told him: "Either you come with me or you stay, but I'm taking my kids." Garcia ultimately decided to go with Torres and the children. Garcia did not kill Serenity, nor did he think her death was accidental. Rather, he stated, "Something occurred that day."
J. Crystal's Testimony and Statement to Public Defender Investigator
Crystal, the daughter of Garcia and Torres, was 11 years old when she testified at trial; she was six years old in 2010, when Serenity was killed. Regarding the day her family left for Mexico, Crystal recalled: "We were asleep and my mom just woke us up." She remembered her father was crying in the living room that night and told her mother "he didn't want to leave."
An investigator from the public defender's office talked to Crystal in December 2014. At that time, Crystal recalled that on the night the family left for Mexico, she heard Serenity crying in the living room. Crystal was concerned and sneaked into the living room to ascertain what was going on; she saw her parents sitting on the couch attending to Serenity. Crystal then went back to bed. Crystal also recalled, with regard to the same night, that "her father was crying and he did not want to leave" for Mexico. Crystal noted that her father "wanted to stay with Serenity and Isaiah." Crystal also described an argument between her parents in Mexico. During the argument, Torres told Garcia that he was free to return to the United States if he wanted, whereupon Garcia responded that he wanted to take his children with him.
K. Other Evidence
Various witnesses testified that Garcia was nice with the children. For example, Garcia's long-time mentor in the car repair business, Jerry H. (Jerry), testified that Garcia was a "quiet" and "passive" person, a good worker and family man, who was "loving" toward the children. Jerry noted it was Torres who "wore the pants in the family." Greg R. (Greg) and his mother, Patricia C. (Patricia), lived next door to Garcia and Torres. Greg testified he hung out with Garcia "on a daily basis," and had never seen Garcia raise his voice with the children or spank them in a harsh way. He observed that Torres was more aggressive with the children. Patricia recalled that Garcia was "very calm" and "very sweet" towards the children. Patricia had, however, seen Torres repeatedly swat Serenity on her bottom, while holding her under the armpit. Patricia had also noticed, while attending the wedding of Garcia and Torres, that Serenity was shabbily dressed in "a nightshirt or a T-shirt," unlike Torres's own well-dressed children (Patricia did not recall seeing Isaiah on that occasion).
DISCUSSION
I. Admission of Prior Bad Act Evidence Pertaining to Torres
Torres makes a convoluted argument to the effect that the trial court prejudicially erred in admitting evidence of prior bad acts concerning her. However, by not objecting in the trial court to admission of this evidence, she has forfeited the claim.
The People filed a motion in limine seeking to present evidence of Torres's prior bad acts concerning Serenity and Isaiah pursuant to Evidence Code section 1101, subdivision (b). Garcia's defense counsel also filed a motion in limine seeking to present evidence of Torres's prior bad acts concerning Serenity and Isaiah pursuant to Evidence Code sections 1101, subdivision (b) and 1109.
At the hearing on the parties' motions in limine, the court first addressed the People's motion. Torres's defense counsel did not object to the motion other than to note that one piece of evidence the People sought to admit pursuant to Evidence Code section 1101, subdivision (b), constituted speculation. The court granted the People's motion, "absent the speculation."
Thereafter, the court addressed Garcia's motions in limine. The court had the following exchange with Garcia's defense counsel, Mark Aguilar:
"THE COURT: All right. We'll turn to Mr. Aguilar's motions in limine. [¶] ... [¶] We're going to start with [the] motion to introduce evidence of co-defendant Torres's prior misconduct under [Evidence Code sections] 1101 and 1109. [¶] Start with that one first. And, Mr. Aguilar, I believe we've covered that, have we not?
"MR. AGUILAR: I believe so, Your Honor.
"THE COURT: All right. We'll show that ruled on."
Thereafter, during the trial, various witnesses testified to prior incidents in which Torres mistreated Serenity or Isaiah. For example, witnesses testified that Torres would hit Serenity and Isaiah forcefully with a belt, had tied Serenity to her bed so Serenity would not awaken Torres at night, and spanked Serenity with a sandal when she was two years old. Witnesses also testified that Serenity and Isaiah had visible bruises and that Torres was reported to CPS for inflicting the bruises.
The trial court subsequently gave a limiting instruction to the jury, instructing it to consider the prior act evidence only as permitted by Evidence Code section 1109, subdivision (a)(3) (see below). Specifically, the trial court instructed the jury pursuant to CALJIC No. 2.50.04:
"Evidence has been introduced for the purpose of showing that the defendant committed a prior offense of child abuse on one or more occasions other than that charged in this case.
"If you find that the defendant committed a prior act of child abuse, you may, but are not required to, infer that the defendant had a disposition to commit another offense involving child abuse.
"If you find that the defendant had this disposition, you may, but are not required to, infer that he or she was likely to commit and did commit the crimes for which he or she is accused.
"However, if you find by a preponderance of the evidence that the defendant committed a prior offense of child abuse, this finding is not sufficient by itself to prove beyond a reasonable doubt that he or she committed the crimes charged.
"If you determine that an inference properly can be drawn from this evidence, this inference is one item for you to consider, along with all the other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime."
Torres now argues that, to the extent the court admitted the prior act evidence pursuant to Evidence Code section 1109, it prejudicially erred in failing to consider whether this evidence was admissible pursuant to Evidence Code section 352.
Evidence Code section 1109, subdivision (a)(3) provides, in pertinent part:
"[S]ubject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant's commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101."
Here, Torres's defense counsel did not object when the trial court determined that Garcia's motion in limine to admit evidence of Torres's prior bad acts under Evidence Code sections 1101, subdivision (b), and 1109, was effectively granted in light of the court's prior ruling on the prosecution's motion in limine to admit evidence of Torres's prior bad acts (the prosecution's motion sought to admit prior bad act evidence under Evidence Code section 1101, subdivision (b), alone). In addition, Torres's defense counsel did not object when evidence of Torres's prior bad acts was admitted at various points during the trial. Finally, Torres's defense counsel did not object when the trial court gave the jury the limiting instruction that applies when propensity evidence is admitted pursuant to Evidence Code section 1109, subdivision (a)(3). (See CALJIC No. 2.50.04.)
In sum, at no time did Torres's defense counsel object to admission of the prior act evidence or the related jury instruction, on grounds that, in admitting such evidence, the trial court had failed to comport with the requirements of Evidence Code section 1109, subdivision (a)(3) (which expressly incorporates Evidence Code section 352). Moreover, we are not persuaded by Torres's contention that, because Evidence Code section 1109 expressly incorporates Evidence Code section 352, the general forfeiture rule is inapplicable. Indeed, as noted above, counsel did not object on the basis of Evidence Code section 1109, nor on the basis of Evidence Code section 352. Accordingly, Torres's instant claim is forfeited. (See People v. Dykes (2009) 46 Cal.4th 731, 756 ["[N]umerous decisions by this court have established the general rule that trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal."]; People v. Partida (2005) 37 Cal.4th 428, 434 ["The objection requirement is necessary in criminal cases because a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal."'"].) II. Torres's Claim of Ineffective Assistance of Counsel
Torres argues the judgment in her case must be reversed because her trial counsel was ineffective. Specifically, she contends counsel was ineffective because (1) he did not properly argue Torres's motion for severance, and (2) he made a generic motion to join in all motions brought by codefendant Garcia unless specified otherwise. We reject these contentions.
A. Severance Motion
Torres's defense counsel moved in limine to sever Torres's trial from Garcia's trial. In the severance motion, Torres requested "an order that she be tried separately from her codefendant" on grounds that "a joint trial with the codefendant in this action would be unduly prejudicial." In the motion, Torres contended that severance was warranted because she and Garcia were pursuing antagonistic defenses. At the hearing on the parties' motions in limine, Torres's defense counsel iterated that severance was warranted because of the codefendants' "antagonis[tic]" defenses. More specifically, defense counsel explained that Torres would rely on a battered-partner defense and, in that connection, present expert testimony and evidence of Garcia's prior conviction for spousal battery, which would prejudice Garcia.
Counsel for Garcia noted that Garcia took "no position" on the question of severance.
The prosecutor countered:
"I would request that [the] case remain together, remain joined for a couple of reasons.
"One is judicial economy. All of the evidence is the same as to both cases. And as I have outlined in my motions, I'm not asking for any statements [that] would violate [People v.] Aranda [(1965) 63 Cal.2d 518] [and] Bruton [v. United States (1968) 391 U.S. 123] [and] cause two separate trials for those reasons.
"As far as [the evidence of Garcia's prior conviction for spousal battery] goes and that issue, I'm arguing that it's unfairly prejudicial to my case, as well.
"So his argument about it's - if Mr. Garcia weren't in the case, it would be somehow - you would allow that in, there's still the issue on my side. And I don't think that that one little issue justifies separating these two trials. The Court is going to rule on that as it should be ruled on when
it comes to that motion. And [other than] that[,] [the] evidence is exactly the same for both defendants. They should stay together.
"Additionally, I understand they're pointing fingers at each other, but there's also aiding and abetting and felony murder that applies to this case, and so it is not unfairly prejudicial to try the defendants [together]."
The trial court denied the motion to sever. The court recognized there was some divergence in the respective defenses put forward by the codefendants but noted the charges against the defendants were the same and "the evidence would primarily be the same evidence in both cases." In addition, the court observed that any Aranda issues could be avoided by excluding or sanitizing the defendants' pretrial statements. Finally, the court stated that disputes regarding evidence related to Torres's battered-partner defense could appropriately be resolved in a joint trial.
Torres now argues: "Defense counsel's argument in favor of severance was odd in that it was couched as an attempt to protect the codefendant from prejudice of a joint trial. Each defendant would attempt to deflect blame to the other, although they would be tried on a theory of aiding and abetting each other. [Torres's] defense would attempt to portray the codefendant as controlling and abusive, such that [Torres's] failure to protect the children and take them for medical treatment was explained and would hopefully be viewed by the jury as excused. There was a single incident of [Garcia] having been arrested and prosecuted for battery upon [Torres] in 2004. Defense counsel failed to argue the true merits of [Torres's] motion to sever, that being the prejudice to [Torres] from a joint trial where counsel for codefendant [Garcia] intended to act as a second prosecutor against [Torres]." (Footnote omitted.)
More specifically, Torres contends that defense counsel should have argued that severance was necessary because both the People and Garcia intended to present evidence of Torres's prior bad acts with respect to Serenity and Isaiah and Torres would be prejudiced by such a "joint attack" based on propensity evidence. Torres contends counsel's failure to advance this argument constituted ineffective assistance of counsel. We are not persuaded.
To establish ineffective assistance of counsel, a defendant must show that counsel's performance "fell below an objective standard of reasonableness" under prevailing professional norms, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see People v. Hester (2000) 22 Cal.4th 290, 296.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, at p. 694.) If the defendant makes an insufficient showing on either one of the components of an ineffective assistance claim, the claim fails. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
Section 1098 mandates joint trial for defendants who are "'jointly charged'" with any public offense "'unless the court order[s] separate trials,'" thereby reflecting a statutory preference for joint trials. (People v. Thompson (2016) 1 Cal.5th 1043, 1079, italics omitted.) "Severance is not required simply because one defendant in a joint trial points the finger of blame at another." (People v. Homick (2012) 55 Cal.4th 816, 850.) "Nor does the federal Constitution compel severance when codefendants present conflicting defenses." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 380.) "If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials 'would appear to be mandatory in almost every case.'" (People v. Hardy (1992) 2 Cal.4th 86, 168.) A defendant seeking severance has the burden to establish a substantial danger of prejudice requiring that the charges be separately tried. (People v. Catlin (2001) 26 Cal.4th 81, 110.)
Here, Torres and Garcia were charged with crimes involving a common victim and common events. Even Torres acknowledges, this was a "classic case" for a joint trial. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 ["When defendants are charged with having committed 'common crimes involving common events and victims,' ... the court is presented with a '"classic case"' for a joint trial."]; accord, People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 379.) Under these circumstances, the prosecution would marshal the same witnesses and evidence in separate trials. Furthermore, the most probative and damaging prior act evidence against Torres was proffered and presented by the People, not Garcia. Thus, much of the "mountain" of prior act evidence against Torres would be admissible against her, under Evidence Code sections 1101, subdivision (b) and/or 1109, subdivision (a)(3), in any separate trial. (See People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 381 [severance of trial of two defendants from trial of the third defendant under Pen. Code, § 1098 was not required where "much evidence about which they complain would have been relevant even at a separate trial"]; see also People v. Brown (2011) 192 Cal.App.4th 1222, 1237 ["[A] defendant's pattern of prior acts of domestic violence logically leads to the inference of malice aforethought and culpability for murder."].)
In light of the foregoing points, we agree with the People that the trial court was on "solid ground" in denying Torres's request for severance. Under the circumstances, even had Torres's counsel argued severance was warranted to the extent Garcia sought to present additional prior act evidence against her, the argument would have been futile. We therefore cannot say that counsel's failure to do so constituted deficient performance. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 ["It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel."]; People v. Price (1991) 1 Cal.4th 324, 387 [counsel's failure to make a futile or unmeritorious objection does not constitute ineffective assistance].) In turn, Torres's claim that counsel was ineffective in arguing the motion to sever, fails.
B. Torres's Request to Join Garcia's Motions and Objections Unless Specified Otherwise
Torres further contends that her trial counsel was deficient in effectively joining Garcia's motion to introduce evidence of Torres's prior acts of abuse against Serenity and Isaiah. Torres's argument is premised on a separate and unrelated generic request by her trial counsel to be deemed to have joined in motions and objections made by Garcia unless otherwise specified, "in order to obviate the need to duplicate such motions and objections when [Torres] would benefit by them." The court had granted the latter request.
Torres suggests this generic request automatically rendered counsel's performance deficient in the context of the court's resolution of Garcia's motion to introduce prior act evidence against Torres. However, counsel's generic request did not feature, in any way, in the court's resolution of Garcia's motion to introduce prior act evidence against Torres. Rather, the court indicated that Garcia's motion was effectively already ruled upon since the court had previously granted the prosecution's motion to present prior act evidence against Torres. Garcia's counsel concurred with the court that the issue was previously settled.
Furthermore, the request made by Torres's counsel to join in Garcia's motions was conditional in that it expressly permitted Torres's counsel to oppose any motion as he saw fit. Here, it appears counsel did not specifically object to Garcia's motion because the court had already ruled the prosecution could introduce prior act evidence against Torres, albeit under Evidence Code section 1101, subdivision (b). Indeed, in terms of the substantive evidence at issue, there was a significant overlap between the People's motion and Garcia's motion and Torres does not argue that this evidence was inadmissible under Evidence Code sections 1101, subdivision (b) and/or 1109, subdivision (a)(3).
In addition, the record suggests Torres's counsel had contemplated he would introduce prior act evidence against Garcia as part of a battered-partner defense for Torres (counsel represented to the court that he had retained an expert to assist with this defense and to testify at trial) and expected both the People and Garcia to object to such evidence. This begs the question whether, given that the prosecution's motion to introduce prior act evidence against Torres had already been granted, defense counsel opted, for strategic reasons, not to object to Garcia's motion.
In short, we cannot say that counsel was deficient in making a generic request to conditionally join in Garcia's motions and objections and failing to oppose Garcia's motion to introduce prior act evidence against Torres. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [an appellate court should not "brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed"]; People v. Lucas (1995) 12 Cal.4th 415, 436-437 ["Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'"]; People v. Jones (2003) 29 Cal.4th 1229, 1254 ["'"'"[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight."'"'"]; People v. Fosselman (1983) 33 Cal.3d 572, 581 [counsel's tactical decisions lead to reversal on grounds of ineffective assistance "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission"].)
In conclusion, we also reject Torres's suggestion that in filing a conditional request to join in Garcia's objections and motions, counsel's performance was deficient to the point that there was a breakdown of the adversarial process. (See United States v. Cronic (1984) 466 U.S. 648, 656-659.) III. Alleged Instructional Errors
Torres and Garcia raise several claims of instructional error. However, Torres and Garcia did not raise any of these claims of instructional error in the trial court. An appellate court may review any instruction given—even though no objection was made in the lower court—if the substantial rights of the defendant are affected. (People v. Christopher (2006) 137 Cal.App.4th 418, 426-427; People v. Rivera (1984) 162 Cal.App.3d 141, 146; see also § 1259.) A defendant's substantial rights are affected when the instruction results in a miscarriage of justice; a "miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error." (People v. Moore (1996) 44 Cal.App.4th 1323, 1331; People v. Christopher, supra, at pp. 426-427.) We have reviewed the instant challenges to the instructions given in this case, to determine whether the defendants' substantial rights were infringed by any error. We conclude there was either no error or any error did not affect the defendants' substantial rights. In turn, all the claims are rejected.
A. Instructions on Second Degree Murder
Torres and Garcia were both convicted of second degree murder. The jury was instructed on several theories of second degree murder: direct perpetrator theory of second degree murder, direct aider and abettor theory of second degree murder, and indirect aider and abettor theory of second degree murder. Torres and Garcia argue the instructions on the aider and abettor theories of second degree murder were erroneous. In addressing this claim, for purposes of clarity, we have set forth the relevant instructions as to the range of theories of second degree murder. We reject the contention that the instructions on the aider and abettor theories of second degree murder were erroneous.
(1) Instructions on Direct Perpetrator Theory of Second Degree Murder
The jury in this case was instructed:
"The word act as used in [the instructions on murder] includes an omission or failure to act in those circumstances where a person is under a legal duty to act. [¶] A parent/guardian has a legal duty to his or her minor child to take every step reasonably necessary under the circumstances in a given situation to exercise reasonable care for the child, to protect the child from harm, and to obtain reasonable medical attention for the child." (Special Instruction No. 2.)
The jury was further instructed on the elements of murder:
"To prove that the defendant is guilty of [murder], the People must prove that, one, the defendant committed an act that caused the death of another person; and two, when the defendant acted, he or she had a state of mind called malice aforethought; and three, he or she killed without lawful excuse or justification." (Special Instruction No. 6.)
The instruction on the elements of murder further delineated the definitions of express and implied malice; as to implied malice, it clarified that, under certain circumstances, malice can be implied from a failure to act in the face of a legal duty to act. The instruction also clarified that a failure to act in the face of a legal duty to act can satisfy the causation element of murder. The instruction further noted: "There may be more than one cause of death. An act or the failure to act in a situation where a person is under a legal duty causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes death." Finally, the instruction directed: "If you decide that the defendant committed murder, you must then decide whether it is murder of the first or second degree."
A dedicated instruction on implied malice similarly provided:
"Malice is implied when[:]
"[1] [T]he killing resulted from an intentional act or an intentional omission or intentional failure to act in those situations where a person is under a legal duty to act;
"[2] The natural consequences of the act or omission or failure to act are dangerous to human life[;] and
"[3] [T]he act or omission or failure to act was deliberately performed with knowledge [of the danger] to[,] and with conscious disregard for[,] human life.
"When it is shown that a killing resulted from the intentional doing of an act or the intentional omission or intentional failure to act with implied malice, no other mental state need be shown to establish the mental state of implied malice aforethought." (Special Instruction No. 7.)
"An act or the failure to act in a situation where a person is under a legal duty causes death if the death is [the] direct, natural, and probable consequence of the act and the death would not have happened without the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. [¶] In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence." (Italics added.)
Next, the jury was instructed on the degrees of murder. The jury was instructed first degree murder is a willful, deliberate and premeditated killing, committed with express malice aforethought. The jury was also instructed on second degree murder (of which the defendants were ultimately convicted). As to second degree murder, the jury was instructed:
Express malice was defined in the instruction on the elements of murder as follows: "The defendant acted with express malice if he or she unlawfully intended to kill."
"Murder in the second degree is the unlawful killing of a human being when, one, the killing resulted from an intentional act[,] or an intentional omission or intentional failure to act in those situations where a person is under a legal duty to act; number two, the natural consequences of the act or omission or failure to act are dangerous to human life; and three, the act or omission or failure to act was deliberately performed with knowledge of the danger to[,] and with conscious disregard for[,] human life.
"When the killing is [the] direct result of such an act or omission or failure to act, it is not necessary to prove that the defendant intended that the act or omission or failure to act result in the death of a human being." (Special Instruction No. 8; see CALJIC No. 8.31.)
Finally, the jury was instructed: "In order to return a verdict of guilty as to second-degree murder, you must unanimously find that the defendant acted with malice, but you do not have to unanimously agree if it was express or implied malice. [¶] It is sufficient that each juror is convinced beyond a reasonable doubt that the defendant committed the crime of second-degree murder as [that offense is] defined." (Special Instruction No. 1.)
(2) Instructions on Aiding and Abetting Theories of Second Degree Murder
The jury was also instructed on aiding and abetting. First, the jury was instructed, pursuant to CALJIC No. 3.00, that principals are persons who are involved in committing a crime and that each principal is equally guilty. The instruction defined principals as "those who directly and actively commit the act constituting the crime" and "those who aid and abet the commission of the crime."
Next, the jury was instructed on direct aiding and abetting, pursuant to CALJIC No. 3.01:
"A person aids and abets the commission of a crime when he or she, one, with knowledge of the unlawful purpose of the perpetrator; and two, with the intent or purpose of committing or encouraging or facilitating the commission of that crime; and three, by act or advice or by omitting or failing to act in those situations where a person is under a legal duty to act, aids, promotes, encourages or instigates the commission of the crime.
"Mere presence at [the scene of a] crime which does not itself assist the commission of the crime does not amount to aiding and abetting.
"In the absence of a legal duty to act, mere knowledge that a crime is being committed or the failure to prevent it does not amount to aiding and abetting." (Special Instruction No. 3 (italics added); see CALJIC No. 3.01.)
The jury was further instructed on indirect aiding and abetting based on CALJIC No. 3.02:
"One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is the natural and probable consequence of the crime originally aided and abetted.
"In order to find a defendant guilty of the crime of murder based upon aiding and abetting, you must be satisfied beyond a reasonable doubt
that, one, the crime of [felony] child endangerment was committed; two, the defendant aided and abetted the crime of felony child endangerment; three, a principal in the crime of felony child endangerment committed the crime of murder; and four, the crime of murder was a natural and probable consequence of the commission of the crime of felony child endangerment.
"In determining whether the crime of murder was a natural and probable consequence, you must determine whether a reasonable person in the defendant's position would have known that the crime was a reasonable, foreseeable consequence of the act aided and abetted.
"In making this determination[,] you must consider those circumstances which the defendant knew, taking into account all the facts and circumstances surrounding the particular defendant's conduct."
Finally, the jury was given an instruction to the effect that it did not need to "unanimously agree[,] nor individually determine[,] whether a defendant is an aider and abettor or a direct perpetrator." This is a standard instruction in the context of aiding and abetting and is frequently referred to in the caselaw as an "either/or" instruction. Here the jury was instructed with the "either/or" instruction as follows:
"Those who aid and abet a crime and those who directly perpetrate the crime are principals and equally guilty of the commission of that crime. [¶] You need not unanimously agree[,] nor individually determine[,] whether a defendant is an aider and abettor or a direct perpetrator.
"There may be a reasonable doubt that the defendant was the direct perpetrator[,] and a similar reasonable doubt that he or she was the aider abettor, but no reasonable doubt that he or she was one or the other." (Special Instruction No. 4; see CALJIC No. 3.02.)
(3) Analysis of Instant Claim of Instructional Error
Here, Torres and Garcia challenge the instructions permitting convictions for second degree murder based on the natural and probable consequences doctrine, given that the direct aiding and abetting instruction permitted liability for aiding and abetting the target crime of felony child abuse to accrue from a failure to act in the face of a legal duty to act. We detect no error in these instructions under People v. Culuko (2000) 78 Cal.App.4th 307 (Culuko) [approving instructions permitting conviction for second degree murder based on indirect aider and abettor theory where target crime of felony child abuse was affirmatively aided and abetted] and People v. Rolon (2008) 160 Cal.App.4th 1206 (Rolon) [approving instructions permitting conviction for second degree implied malice murder based on indirect aider and abettor theory, where aiding and abetting liability for the target crime of felony child abuse was itself based on a failure to act in face of legal duty to act].
Culuko considered a challenge to jury instructions permitting a conviction for murder based on a theory of indirect aider and abettor liability, where the target offense was felony child abuse. (Culuko, supra, 78 Cal.App.4th at p. 330.) The defendants argued that aider and abettor liability could not apply to the target offense of felony child abuse, as criminal liability for that crime could be triggered by an omission, whereas aider and abettor liability required an affirmative act. (Ibid.) However, the actual instructions for aider and abettor liability in Culuko required a finding that the defendant had aided and abetted the felony child abuse "'by act or advice.'" (Id. at p. 331, italics added.) Furthermore, the jury had to find the defendant aided and abetted the crime of felony child abuse in order to convict the defendant of murder as a "natural and probable consequence" thereof. (Ibid.) Culuko, in light of the instructions given there, upheld the defendants' convictions for both felony child abuse and murder. In doing so, Culuko simply assumed that aider and abettor liability required an affirmative act, thereby eliminating the failure to act version of felony child abuse as the predicate for indirect aider and abettor liability for murder.
The issue of whether the failure to act version of aiding and abetting can support liability for murder under the natural and probable consequences doctrine was, however, squarely addressed in Rolon. Rolon explained, "parents have a common law duty to protect their children and may be held criminally liable for failing to do so." (Rolon, supra, 160 Cal.App.4th at p. 1219.) Thus, "a parent who knowingly fails to take reasonable steps to stop an attack on his or her child may be criminally liable for the attack if the purpose of nonintervention is to aid and abet the attack." (Ibid.) The Rolon court therefore held: "[A]iding and abetting liability can be premised on a parent's failure to fulfill his or her common law duty to protect his or her child from attack. For the same reasons we conclude that such intentional conduct ... can support liability for [second degree] murder." (Ibid.) Rolon clarified that "liability as an aider and abettor requires that the parent, by his or her inaction, intend to aid the perpetrator in commission of the crime, or a crime of which the offense committed is a reasonable and probable outcome." (Ibid.) The instructions given here conformed to Rolon's holding and were therefore proper.
Torres and Garcia argue the instructions on aider and abettor liability for second degree murder were rendered erroneous on account of a standard "either/or" instruction that is routinely given in the context of aiding and abetting. As stated above, this instruction, as given here, provided:
"Those who aid and abet a crime and those who directly perpetrate the crime are principals and equally guilty of the commission of that crime. [¶] You need not unanimously agree[,] nor individually determine[,] whether a defendant is an aider and abettor or a direct perpetrator.
"There may be a reasonable doubt that the defendant was the direct perpetrator[,] and a similar reasonable doubt that he or she was the aider abettor, but no reasonable doubt that he/she was one or the other." (Special Instruction No. 4; see CALJIC No. 3.02.)
Torres and Garcia argue that this instruction, in conjunction with the instructions regarding failure to act aider and abettor liability and indirect aider and abettor liability for murder (under the natural and probable consequences doctrine), permitted the jury to convict the defendants of second degree murder without finding that either principal acted with malice. However, this argument was addressed and dispatched in Culuko, where an "either/or" instruction was given in conjunction with direct and indirect aiding and abetting instructions.
Culuko explained that the either/or instruction, along with the instructions on aider and abettor liability and the natural and probable consequences doctrine given in that case, were entirely proper. Culuko noted: "The natural and probable consequences doctrine ... allows an aider and abettor to be convicted of murder, without malice, even where the target offense is not an inherently dangerous felony." (Culuko, supra, 78 Cal.App.4th at p. 322.) Culuko agreed with the defendants in that case that, "'[w]here two or more defendants have committed an unlawful act in which a death has resulted, and the state has proven that one of the defendants actually harbored the malice necessary for a murder conviction (either express or implied), it [is] appropriate to rely on the natural and probable consequence doctrine to hold the other defendants liable.'" (Ibid.)
Culuko rejected the argument that the either/or instruction permitted the jury to find the defendants guilty of murder without finding that any one of them harbored malice. Culuko observed: "The 'either/or' instruction was a correct statement of law. It derived from cases holding the jury need not agree unanimously on whether the defendant was the perpetrator or the aider and abettor, and, accordingly, the trial court need not instruct the jury to agree unanimously on this." (Culuko, supra, 78 Cal.App.4th at p. 323.) Culuko held this is proper because, while the jury does not have to agree on the specific roles of each defendant, it necessarily has to find that someone was the direct perpetrator and acted with malice. (Ibid. [despite the either/or instruction, "the jury did have to find that some defendant harbored malice"].) Culuko's rationale applies to the instant instructions, which are therefore sound.
Indeed, our Supreme Court has explained: "'"[T]he jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator.... [¶] ... [¶] Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. Sometimes ... the jury simply cannot decide beyond a reasonable doubt exactly who did what. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other."'" (People v. Smith (2014) 60 Cal.4th 603, 618.)
Torres and Garcia argue that Culuko's rationale does not hold when the jury is permitted to convict on an aider and abettor theory based on a failure to act (as was the case in Rolon). This argument is, however, unavailing because even when aider and abettor liability may be premised on a failure to act, ordinarily the jury would still necessarily have to find that one of the defendants directly perpetrated the murder by means of an affirmative act and acted with malice. For example, in the instant case, based on the injuries suffered by Serenity and the cause of death, as well as the fact that she was with both defendants on the day she died, the prosecution's theory was that at least one of the defendants directly perpetrated the murder by affirmatively inflicting Serenity's injuries. Given the evidence and the prosecutor's argument, there is no reasonable likelihood the jury misapplied the instructions to find, as to one defendant, direct or indirect aider and abettor liability based on a failure to act, without also finding that the other defendant directly perpetrated the murder and acted with malice.
B. Torres's Conviction for Fatal Assault on a Child
Torres further argues that the instructions on aider and abettor liability and the "either/or" instruction also require reversal of her conviction in count 2, fatal assault on a child under eight years of age. (§ 273ab.) We disagree.
First, Torres argues, based on the dissent in the Culuko case, that unanimity as to whether Torres was the direct perpetrator of the assault or an aider and abettor was required here. Torres contends: "The dissenting justice [in Culuko] explained that while a jury need not unanimously determine if a defendant was a perpetrator or an aider/abettor of a single crime when both theories are argued, unanimity is still required when the jurors could disagree on which act constituting the charged crime was committed by the defendant." (See Culuko, supra, 78 Cal.App.4th at pp. 342-343, dissenting opn. of McKinster, P.J.) Torres's argument is premised on her contention that "[t]his case was tried on a theory of a single discrete act." We reject this characterization of the theory of the case because the prosecution's theory was, rather, that the defendants abused Serenity on the day she died over several hours, in a continuous course of conduct. Given its flawed premise, Torres's claim automatically fails.
People v. Napoles (2002) 104 Cal.App.4th 108, 116, held: "'[W]here ... the evidence establishes a pattern of physical trauma inflicted upon a child within a relatively short period of time, a single course of conduct is involved and no justification exists for departing from the well-established rule ... that jury unanimity is not required.'" Further, as our Supreme Court has held, "'[T]he "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.'" (People v. Williams (2013) 56 Cal.4th 630, 682; accord, People v. Ervine (2009) 47 Cal.4th 745, 788.)
Here, the prosecutor specifically argued that "[Serenity] was abused throughout [the] day" that she died, and that "[the] abuse was at the hands of these two defendants and nobody else." The prosecutor further clarified: "The final beating of Serenity that day took [place] over four hours. I'm not saying they beat her for a continuous four hours, but we know that it happened over four hours." The prosecutor went on to explain that the fatal abuse represented a continuous course of conduct over several hours that resulted in multiple blunt force trauma and various injuries to Serenity, including innumerable bruises, several internal, abdominal injuries, and eventually, a skull fracture. Thus, the relevant acts here were closely connected, occurring in the same place over a period of a few hours. Furthermore, Torres offered the same defense to all the acts. Therefore juror unanimity as to a specific act constituting the crime was not required. Similarly, unanimity as to whether Torres was the direct perpetrator of the assault or aided and abetted it was also not required.
We now turn to Torres's next argument with respect to her conviction for fatal assault on a child. The jury was instructed that the crime of fatal assault on a child is committed when a child is assaulted "by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death." (See CALJIC No. 9.36.5.) Torres argues that the instructions permitting aider and abettor liability based on a failure to act, along with the "either/or" instruction, meant, in the context of the charge of fatal assault on a child, that the prosecution did not have to prove an intent to aid and abet an affirmative act constituting the crime. We reject this contention.
Torres's conviction for fatal assault on a child reflects that the jury either convicted Torres as the direct perpetrator of the assault or, if it resorted to the theory of aider and abettor liability, it decided with respect to the two defendants, that one committed the lethal course of conduct constituting the assault and the other aided and abetted it. There is no reasonable likelihood, given the facts and the prosecutor's argument, that the jury would convict Torres of aiding and abetting the assault without also deciding that Garcia committed the lethal, affirmative course of conduct on July 17, 2010, that resulted in Serenity's death. Furthermore, while the aiding and abetting instruction encompassed the failure to act in the face of a legal duty as a basis for liability, the jury was also instructed that an aider and abettor must have the intent or purpose of committing, or encouraging or facilitating the commission of, the crime. Therefore, Torres's claim that "[a] finding on the element of intent to aid and abet was obviated by the instructions" has no merit.
C. Miscellaneous Claims of Instructional Error
Torres and Garcia also flag other alleged conflicts and discrepancies in the instructions that they claim served to confuse the jury. They argue that the jury was given "conflicting" instructions on a parent's duty to protect a child, which would have caused "confusion on the issue of the extent, legally, a parent is required to go to protect a child." The jury was first instructed, as a general matter, with the pattern CALJIC instruction on a parent's duty to protect a child. (See CALJIC No. 1.40; see also People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 745 [endorsing the language encompassed in CALJIC No. 1.40].) The jury was also instructed, in the context of the murder instructions, with a similar instruction, approved in Rolon, on a parent's duty to protect a child. (See Rolon, supra, 160 Cal.App.4th at p. 1221.) Torres and Garcia do not challenge the substance of either instruction. We conclude that, to the extent the court erred in giving two instructions that described the parental duty in slightly different terms, the error did not affect the defendants' substantial rights. In other words, it is not reasonably probable that absent the discrepancy, the result of the proceeding would have been more favorable to the defendants. The claim is therefore forfeited. Moreover, on the instant record, the discrepancy between the two instructions was harmless under any standard of prejudice.
This instruction provided: "A parent has a legal duty to take every step reasonably possible under the then existing circumstances to protect [his] [or] [her] child from harm including physical attack. The parent however need not risk death or great bodily harm in doing so, and in the case of an attack, the relative size and strength of the parties involved is relevant to a determination of what is every step reasonably possible." (See CALJIC No. 1.40.)
This instruction, Special Instruction No. 2, provided, in pertinent part: "A parent/guardian has a legal duty to his or her minor child to take every step reasonably necessary under the circumstances in a given situation to exercise reasonable care for the child, to protect the child from harm, and to obtain reasonable medical attention for the child."
Torres and Garcia further argue the trial court erred by giving conflicting instructions on the required mental state for felony child abuse/endangerment, which impacted the instructions on the felony child abuse counts (counts 3 and 4) as well as the instructions on the indirect aider and abettor theory of second degree murder (count 1) and fatal child abuse (count 2), respectively.
The court properly instructed the jury pursuant to CALJIC No. 9.37, on the elements of felony child abuse/endangerment. More specifically, as relevant here, the court correctly instructed the jury: "In the crime charged in the Information, there must exist a union or joint operation of act or conduct and either general [criminal] intent or criminal negligence." CALJIC No. 9.37, as given by the court, also correctly defined the terms "general criminal intent" and "criminal negligence." In addition to CALJIC No. 9.37, the court separately instructed the jury—referencing counts 2, 3, and 4—pursuant to CALJIC No. 3.30: "[T]here must exist a union or joint operation of act and conduct and general criminal intent. [¶] General [criminal] intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he or she is acting with general criminal intent, even though he or she may not know that his or her conduct is unlawful."
We recognize there is a discrepancy between the two instructions, i.e., CALJIC Nos. 9.37 and 3.30, as given here, in that the former instruction mentions criminal negligence while the latter one does not. We further note that the offense of felony child abuse/endangerment requires either general criminal intent, if the pain or suffering is directly inflicted, or criminal negligence, if the abuse or endangerment is indirect. (See People v. Valdez (2002) 27 Cal.4th 778, 789-790 [criminal negligence is "a gross departure from the conduct of an ordinarily prudent person"].)
Since the court properly instructed the jury on the elements of the offense of felony child abuse/endangerment and properly defined the relevant terms (general criminal intent and criminal negligence), the jury would reasonably have reconciled the instructions to remove the complained-of discrepancy in finding the elements of the offense proven beyond a reasonable doubt. We conclude, in turn, that the discrepancy in the two instructions did not affect the defendants' substantial rights. In other words, it is not reasonably probable that, absent the error, the result of the proceeding would have been more favorable to defendants. Accordingly, this claim of error is forfeited.
Finally, we reject the defendants' claim that all the instructions they challenge here together amounted to reversible error. IV. Sufficiency of Evidence to Support Garcia's Conviction for Second Degree Murder
Garcia challenges the sufficiency of the evidence supporting his conviction for second degree murder. Here, the record discloses substantial evidence to support Garcia's second degree murder conviction under both direct perpetrator and aider and abettor theories of second degree murder.
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which the finder of fact could make the necessary finding beyond a reasonable doubt. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding." (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
Serenity was a small, disturbingly thin, three-year-old child, who was malnourished to the point that her hair was falling out. Her head and body were covered with bruises. Even people with limited contact with Serenity (for example, Maria G. and Maura U.) had contacted CPS with concerns regarding Torres's treatment of Serenity. Torres's own sisters were concerned that Torres was mistreating Serenity, to the point that Elsa suggested Torres should not continue to serve as a foster parent for Serenity and Isaiah.
Garcia generally spent most of his time at home with the children and would reasonably be aware of day-to-day incidents concerning them. The jury could reasonably infer that Garcia was undoubtedly aware, at a minimum, that Serenity was the victim of serious ongoing abuse by Torres. Indeed, Garcia admitted that he was aware, at least a year before Serenity's death, that Torres was a danger to the well-being of Serenity and Isaiah.
Dr. Wallis-Butler conducted the autopsy on Serenity's body. She testified that Serenity had suffered multiple, blunt force trauma all over her head and body. The chart Dr. Wallis-Butler prepared to document these injuries showed numerous injuries all over Serenity's head and body. In addition, Serenity had massive internal injuries in her abdominal area. Hours after the internal injuries occurred, Serenity also suffered a skull fracture. These injuries, taken together, caused Serenity's death.
The evidence further showed that on the day Serenity died, a Saturday, Torres was home all day. Garcia went to the DMV in the morning but was home from noon onwards. He was mostly working in the garage during the afternoon but came into the house from time to time. Serenity had a recent wound to the head and a gaping laceration to the chin; she also had a cut to the ear that occurred that day.
Garcia testified that he came into the house at some point that afternoon and saw Torres bathing Serenity. He testified he saw Torres striking Serenity in the abdomen with enough force to knock the wind out of Serenity, such that she could not even cry. Indeed, he testified he was sufficiently disturbed by Serenity's reaction that he confronted Torres about what she had done. However, Torres apparently dismissed his concerns, whereupon Garcia dropped the issue, evidently to avoid an argument with Torres. Garcia also did nothing to assist Serenity or to protect her from further abuse from Torres.
The evidence showed that Serenity had bled during the bath; Torres testified that Serenity bled in the bathtub from various injuries; blood was also detected in the bathtub during the eventual police sweep of the house. The jury could thus reasonably infer that Garcia was aware that Torres was punching Serenity in the abdomen at a time when the child was already injured. Furthermore, the number and extent of the injuries on Serenity's head and body reasonably indicated she was hit or beaten repeatedly that day. In addition, after Serenity died, several items of her bloodstained clothing were found in the hall bathroom, under the sink. Since Garcia was at home that afternoon and evening, the jury could reasonably infer that he was aware of the ongoing beating.
Garcia also testified that Serenity looked troublingly unwell that afternoon. Her eyes were sunken-in and she appeared dazed and woozy. Torres testified that Serenity started complaining about abdominal pain before dinner. In light of the punching and beating that Serenity endured that day, these symptoms would reasonably have registered as warning signs that something was seriously wrong with Serenity, including injuries to internal organs. Indeed, Garcia testified Serenity's woozy state was sufficiently disturbing that he raised the issue with Torres. For her part, Torres testified she and Garcia discussed taking Serenity to the emergency room that afternoon. However, in the end Garcia did nothing to obtain medical treatment for Serenity or to protect her from further abuse.
The evidence also showed that Serenity's stomach was lacerated after she ate dinner but before what she ate for dinner was digested. Subsequently, Serenity's skull was fractured. Carlos testified, regarding that night, that after he went to bed at 8:00 p.m., he was awakened by various sounds. He heard Torres go into Serenity's room; he next heard a loud thud; and he also heard Torres leave Serenity's room. There was blood in various spots in Serenity's bedroom and her bedsheets were placed in the washing machine.
At some point, Torres awoke Garcia as Serenity's condition precipitously deteriorated. Garcia again did not call for emergency medical services. He fled to Mexico with his family, although he was not absolutely sure Serenity was dead.
On this record, the jury could reasonably find, based on Serenity's age, size, and overall condition, along with Garcia's testimony regarding the incident in the bathroom and its aftermath, that Torres severely injured Serenity's internal organs by repeatedly hitting her with considerable force and that Garcia was aware of the attacks as well as the fact, as Serenity's condition declined through dinner, that Serenity was grievously hurt. The jury could further reasonably find that Garcia nonetheless did nothing to obtain medical assistance or to protect Serenity, who eventually suffered a skull fracture at Torres's hands. Even as Serenity's life ebbed away, Garcia did not call for emergency medical services. Rather he fled to Mexico, despite not being absolutely sure Serenity was dead.
We conclude the evidence was sufficient for the jury to find Garcia guilty, as a direct perpetrator, of the failure to act version of second degree implied malice murder. (People v. Knoller (2007) 41 Cal.4th 139, 143, 151-152 [second degree murder includes an unlawful killing proximately caused by an intentional act [or failure to act when there is a duty to do so], the natural consequences of which are dangerous to life, performed with knowledge of the danger and with conscious disregard for human life].) The evidence was also sufficient for the jury to find Garcia guilty of second degree murder as either a direct or indirect aider and abettor. (See Rolon, supra, 160 Cal.App.4th at p. 1219 [a jury can reasonably infer a parent's intent to aid the direct perpetrator from the former's presence at the scene of the crime, duty to protect the child, and failure to do so].)
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
FRANSON, J.