P. v. Perez

Filed 9/29/06 P. v. Perez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed.

Wallin & Klarich and Robert C. Kasenow II for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Following a jury trial, defendant was convicted of multiple offenses involving three of his stepchildren, L.N., M.N., and Y.N. The convictions consisted of one count of torture (Pen. Code, § 206;^[1] count I); two counts of felony child endangerment (§ 273a, subd. (a); counts II & III); one count of child endangerment (§ 273a, subd. (b); count IV); four counts of child abuse (§ 273d, subd. (a); counts V-VIII); 10 counts of forcible rape (§ 261, subd. (a)(2); counts IX-XVIII); and 10 counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (a); counts XIX-XXVIII). The jury also found that defendant inflicted great bodily injury in count VIII. (§ 12022.7, subd. (a).) Defendant was sentenced to life in prison on the torture conviction (§ 206.1), plus 73 years 8 months on the other counts.^[2]

Defendant appeals. He contends: (1) he was denied his right to a unanimous jury verdict on the torture charge in count I; (2) there is no evidence he inflicted great bodily injury in count I; hence, there is insufficient evidence he committed torture; (3) the jury was erroneously instructed on the great bodily injury element of torture; (4) his sentences on counts II through VIII should have been stayed under section 654; (5) his trial counsel rendered ineffective assistance by conceding his guilt on counts II and III; and (6) the charges involving Y.N. (counts IX through XXVIII), were erroneously ordered consolidated for trial with the charges involving L.N. and M.N. (counts I through VIII), and the joinder denied defendant his due process right to a fair trial. We find each of these contentions without merit, and affirm.

FACTUAL BACKGROUND

A. Prosecution Evidence

At the time of the alleged offenses, defendant was married to Alma M., the mother of L.N., M.N., Y.N., and a fourth child, E.M. The family lived in a house in La Quinta. Defendant was not charged with any crimes involving E.M. Before trial, Alma pleaded guilty to one count of felony child endangerment. (§ 273a.)

1. Offenses Involving L.N. and M.N. (Counts I Through VIII)

L.N. was 14 years old at the time of trial in February 2005. M.N. was 15. On March 8, 2004, L.N. went to the office of Riverside County Sheriff’s Deputy Robert Burbach, a school resource officer at L.N.’s middle school, and asked Deputy Burbach whether it was “okay for a stepdad to beat a kid.” After briefly interviewing L.N., Deputy Burbach arranged to have L.N. and M.N. interviewed by sheriff’s investigators. Deputy Burbach also contacted the Riverside County Department of Child Protective Services (CPS).

L.N. testified that the week before he spoke with Deputy Burbach defendant forced him and M.N. to sleep in a doghouse located in a small building in the family’s backyard because their room was always dirty. M.N. corroborated L.N.’s testimony, but said he did not know why he and L.N. were made to sleep in the doghouse; he only knew defendant was angry. Both boys said defendant did not give them any blankets, pillows, or anything to sleep on. He made them remove their clothes, including their shoes and socks, and allowed them to sleep only in their undershorts. The floor was concrete and covered in mud. Defendant wet the mud with a hose before ordering the boys into the doghouse.

L.N. had to stay in the doghouse for a week. M.N. was allowed inside the house for two nights during the same week, but was then ordered back into the doghouse. During the middle of the week, defendant hosed down the mud again. The doors to the family home were locked, so L.N. and M.N. were unable to go inside the house. It rained for two days while both boys were in the doghouse, and the roof of the doghouse leaked. L.N. was unable to sleep at night because it was cold and he was shivering. M.N. was also cold and shaking.

The boys were briefly allowed inside the house to shower and dress each morning before school, then they were told to get out. M.N. was not allowed to use the bathroom, and did not have a toothbrush. L.N. had to wear the same clothes to school every day. Neither of the boys were given breakfast or dinner. M.N. ate breakfast and lunch at school. L.N. did not eat any breakfast and was only sometimes able to eat lunch at school. On weekends, the boys were not given any meals. Each day after the boys returned home from school, defendant ordered them to remove their clothing and go back into the doghouse. They were not allowed into the main house, even to relieve themselves or do their homework.

Defendant told L.N. he would hit him if he told anyone he was sleeping in the doghouse. L.N. had been forced to sleep outside “[a] few times” before. On one occasion, after defendant told L.N. to stay outside, L.N. went across the street to an empty lot, and dug a hole to hide from passers by. He fell asleep in the hole and was there for four hours. He awoke to find defendant laughing at him and his mother looking at him.

The weekend before March 8, 2004, defendant told L.N. he was going to leave him and M.N. somewhere in the Los Angeles area so they could not find their way back home. L.N. believed him. On March 8, Deputy Burbach noticed that L.N. had an injury on his left leg the size of an egg. L.N. explained that approximately two weeks earlier, defendant kicked him in his leg while wearing a boot. L.N. fell down, and defendant kicked him two more times, causing his leg to swell and making it difficult for him to walk.

In another incident that occurred in mid-February 2004, defendant hit L.N. with a metal bar, causing a scar and making L.N. have trouble walking for two days. L.N.’s friend, C.B., lived down the street from L.N. He heard L.N. say, “No, I didn’t.” Then C.B. heard a thud. C.B. turned and saw L.N. on the ground crying. A man with a metal pipe in his hand was standing over L.N. In another February 2004 incident, defendant hit L.N. on his back with a wet rope because L.N. had cut off the chains on some bicycles. Defendant hit M.N. with the same rope. And, in another February 2004 incident, defendant hit L.N. in the head with a wrench, causing L.N.’s head to bleed a little.

On February 25, 2004, defendant threw a bicycle frame at L.N., injuring L.N.’s arms. On the same day, defendant electrically shocked L.N. in the family garage. L.N. and M.N. were in the backyard fixing bicycles. Defendant came out of the garage and told L.N. to come inside the garage. Defendant was angry. There were two trucks inside the garage. One had a metal rack on it. Defendant told L.N. to “[s]tand there” and tied L.N.’s hand to the rack and tied his feet together. He placed duct tape over L.N.’s mouth, removed L.N.’s shoes, and spilled water where L.N. was standing, using a Baskin-Robbins bucket.

Defendant then hooked long wires to L.N.’s wrists. The wires ran into the antenna hole of the truck. Defendant tapped the two wires together, which caused a shock. He then asked L.N. questions, like whether L.N. knew who had broken a screwdriver. Defendant shocked L.N. four to six times. One of the shocks lasted longer than the others. L.N. was unable to control his body and began shaking. Defendant finally untied L.N. and told him to get out. L.N. stumbled and limped out of the garage. He was hunched over and had difficulty walking for the rest of that day. He had red marks on his wrists, which were gone by the following day. On the day of the incident, L.N. told his brother M.N. what defendant had done. M.N. saw that L.N. was limping and unable to stand up straight.

M.N. testified he did not have “that many” problems with defendant. He said defendant also hit him with a wet rope, and that L.N. was hit more often than he was. L.N. agreed that defendant hit him “a lot” more often than he hit M.N. M.N. said defendant struck him a few times in the lower back and buttocks area with the rope. This caused M.N. pain for half a day to a day, then the pain would go away. M.N. also recalled a time when L.N. fell off his bicycle and cut his leg. M.N. said L.N. was involved in a lot of fights and was hurt as a result of playing.

Riverside County Sheriff’s Deputy Robert Nagels went to the family home on March 8, 2004. The boys’ room appeared not “lived in” and set up for a “military inspection.” The girls’ room appeared lived in and in slight disarray. On March 12, L.N. showed Deputy Nagels how defendant had electrically shocked him in the garage.

Doctor Adam Weissman, an emergency room physician, treated L.N. on March 8, 2004. L.N. had pain in his lower leg and the back of his head; swelling in the back of his head; a mild muscle spasm in his neck; multiple contusions on his arms; old scars on his hands; tenderness in his left pinky finger; abrasions on his knees; a moderate to severe fungal infection on his feet; and a large contusion below his left knee. Dr. Weissman testified it was dangerous to be in a cold environment for a long period of time, especially with inadequate clothing. Long exposure to cold can lead to hypothermia, frostbite, and fungal infections. L.N. was also very thin, which led Dr. Weissman to conclude he was undernourished. The mild muscle spasm in L.N.’s neck could have been caused by an electrical shock. Based on L.N.’s condition, Dr. Weissman believed it was highly likely L.N. had been physically abused.

A neighbor of the family, Kim L., testified that the boys never seemed to be inside the house and were always working outside, fixing cars or working in the yard. She sometimes saw the boys outside at 2:00 to 3:00 a.m. She said the boys were subservient to defendant and “very, very well-behaved.” Kim L. recalled that defendant’s two dogs were in the front yard of the house for several days, rather than being in the backyard where they usually were. Kim L. did not speak Spanish, and did not believe defendant spoke English, but she tried to confront defendant about his dogs being in the front yard. Defendant ignored her. At that time, defendant was spraying water inside the doghouse.

Y.N. was 16 years old at the time of trial. She testified that defendant made the boys sleep in the doghouse for two to three weeks before March 8, 2004, because they had made defendant mad. On one or two occasions, Y.N. snuck food to the boys. Defendant often made the boys work outside until late into the night. Y.N. saw defendant hit M.N. and L.N.; he hit L.N. more often than he hit M.N.

On one occasion, Y.N. saw defendant hit L.N. in the head with a pair of metal scissors. On another occasion, she saw that defendant was in the garage with L.N. Defendant came out, got a paint bucket, returned to the garage, and played loud music in the garage for about a half an hour. L.N. came out of the garage limping and hunched over.

E.M. was 19 years old at the time of trial. She did not have a good relationship with defendant. He treated her brothers badly. He always had the boys outside helping him, and did not allow them to come inside and watch television. Defendant would hit the boys with his hand or a belt if they got into trouble. The boys feared defendant.

2. Offenses Involving Y.N. (Counts IX Through XXVIII)

Y.N. testified that defendant started doing “bad stuff” to her after Thanksgiving 2003. At that time, Y.N. was 15 years old. Two days to one week before defendant went to Mexico in December 2003, the boys were outside the house. Y.N.’s mother Alma and sister E.M. were at work. Defendant came into Alma’s room where Y.N. was watching television. Defendant closed the blinds and told her to lie down. His voice was “hard and angry.” Y.N. complied. Defendant touched Y.N.’s breasts and vagina under her clothes, and took his clothes off. Y.N. told defendant to stop and tried to push him away, but defendant ignored her and continued. Defendant stopped only when Y.N. said she heard someone at the door. Later, defendant told Y.N. not to tell anyone what he had done or he would do “something” to her.

During the first week of February 2004, after defendant returned from Mexico, defendant forced Y.N. to have sexual intercourse with him. Again, the boys were outside, and Alma and E.M. were at work. Y.N. was watching television in Alma’s room, defendant came in, closed the blinds and door, and took off his clothes. Y.N. tried to leave, but defendant grabbed her hand and pushed her down onto the bed. He ignored Y.N. when she told him to stop. He got on top of her, pulled her pants and panties off, and inserted his penis in her vagina while holding her down with his body weight. Later, he told her he would do something to her if she ever told anyone.

Y.N. testified that defendant forced her to have intercourse with him a total of 10 times during February 2004; twice during the first week; three times during the second week; three times during the third week; once during the fourth week; and once during the week beginning February 29. The circumstances of each incident were substantially the same. Y.N. recalled that, during the second week of February, one of the three incidents took place in her bedroom and the other two incidents occurred in her mother’s bedroom. In her mother’s bedroom, defendant again closed the door and blinds. During the fourth week of February 2004, defendant forced Y.N. to have sex with him in the living room. Each time, defendant overpowered Y.N. and ignored her pleas for him to stop.

Y.N. explained that she initially did not tell anyone what defendant was doing because she feared him. She recalled being interviewed by a male police officer on March 8, but did not tell him what had happened. She also did not tell a female CPS worker or her foster mother. She finally told the district attorney what happened because defendant was in jail and she did not believe he could harm her.

E.M. testified that defendant never sexually abused her, but one time he walked into her room late at night and sat on her bed. E.M. told him to leave, which he did, laughing as he left the room. E.M. told Alma about the incident, and defendant became angry when Alma confronted him.

B. Defense Case

Defendant testified on his own behalf. He denied ever hitting the children with a rope, depriving them of food, kicking L.N., or hitting L.N. with a metal pipe. He also denied electrically shocking L.N. He admitted he made the boys sleep in the doghouse for two nights to discipline them, but he said they had clothes and shoes. He denied putting mud in the doghouse. He admitted telling L.N. he was going to leave him somewhere in Los Angeles, but he said he did so because L.N. was laughing about being put in the doghouse. He never hit the girls, and disciplined M.N. and L.N. with a belt no more than two to three times each. He denied ever raping or inappropriately touching Y.N.

Alma testified that defendant initially had a good relationship with her children. He taught them things and made them laugh. Beginning in 1997, defendant began disciplining L.N. and M.N. by talking to them, hitting them with his hand, and using a belt.

Alma admitted that she and defendant forced L.N. and M.N. to sleep in the doghouse, but she said the boys only slept in the doghouse two nights, the Saturday and Sunday nights before March 8. She claimed she did not sleep at night and checked on the boys every two hours. It was chilly and drizzling at night, but the boys had clothes, shoes, and jackets to keep them warm. It was also dry inside the doghouse, and Alma made food for the boys. Alma pleaded guilty to one count of violating section 273a. She also admitted she initially lied to police by denying that the boys ever slept in the doghouse, and she accused the boys of lying.

The defense played a March 8, 2004, videotaped police interview of Y.N. In the interview, Y.N. said her relationship with defendant was “good sometimes” but sometimes she did not get along with him because he yelled at her brothers. She said she did not pay any attention to whether defendant hit her brothers, however, because she was either on the phone or watching television. Defendant was never mean to her and he let her do things. She said her brothers were always outside helping defendant and he would not let them come in the house or eat. She denied knowing they slept in the doghouse. At times, she snuck food to them.

Gloria Kelly, a social worker for CPS, interviewed Y.N. on March 25, 2004. Y.N. denied that defendant ever physically abused her, and did not tell Kelly that defendant had sexually abused her.

Michelle Brintle, a marriage and family therapist, interviewed Y.N. on March 15, 2004, when Y.N. was in a shelter home. During this interview, Y.N. did not say she was being sexually abused.

Social worker Kathleen Halkin interviewed Y.N. in September 2004. During this interview, Y.N. said her mother knew she was being sexually abused, but her mother did nothing about it.

DISCUSSION

A. The Failure to Give a Unanimity Instruction in Count I Was Not Prejudicial

Defendant contends he was denied his right to a unanimous verdict on the torture charge in count I, and the error was prejudicial. His claim is based on several factors. First, no unanimity instructions, including CALJIC Nos. 4.71.5 or 17.01, were given. In addition, the charge that was read to the jury alleged that defendant committed the crime of torture upon L.N. between February 1 and March 8, 2004. And, because the evidence showed that all of defendant’s alleged acts upon L.N. occurred between these dates, defendant argues that the guilty verdict in count I could have been based on any one or more of defendant’s acts, including the electrical shocking incident, the beating and kicking incidents, and the doghouse incident.

Defendant also points out that in closing argument the prosecutor referred to all of defendant’s acts as “sadistic” or as having been committed for “a sadistic purpose.” Thus, defendant argues, the prosecutor suggested that all of defendant’s acts constituted torture. (§ 206.) Finally, the jury submitted a note to the court during deliberations, saying it was unable to “match acts with counts. Must have the specific actions which resulted in Count [I], Count [II], et cetera (all counts).” In response, the trial court referred the jury to its existing instructions, reminded the jury it could have any witness’s testimony reread, and did not give a unanimity instruction.

For all of these reasons, defendant argues that the failure to give a unanimity instruction in count I was prejudicial. For the reasons that follow, we conclude that no prejudicial error occurred.

1. Background

(a) The Elements of Torture

The crime of torture is defined in section 206. The statute provides that “[e]very person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in [s]ection 12022.7 upon the person of another, is guilty of torture.

The crime of torture does not require any proof that the victim suffered pain.”^[3]

(b) The Prosecutor’s Argument

In closing argument, the prosecutor told the jury which alleged acts underlay each of the 28 counts. She said: “There are 28 counts in the information. That’s the bad news. It’s a lot. But there is [sic] only five separate crimes, so that’s the good news. Count [I], we have alleged the crime of torture. The act of torture is the defendant shocking, using electricity to shock [L.N.]”

The prosecutor then identified each of the alleged acts underlying counts II through VIII, and briefly distinguished counts IX through XXVIII as involving Y.N. The prosecutor told the jury: “Counts [II] through [IV] are commonly called child endangerment. The acts that constitute those counts: Count [II], that the defendant forced [L.N.] to sleep in the dog cage; Count [III], that he forced [M.N.] to sleep in the dog cage; Count [IV], that he hit [L.N.] in the back of the head with a tool.

“And Counts [V] through [VIII] are alleged the crime of child beating or child abuse. The acts that constitute those charges: Count [V], the defendant threw a bike or the bike frame at [L.N.], causing an arm injury; Count [VI], used a braided rope to hit [L.N.] on the back; Count [VII], the defendant used a metal bar, hitting [L.N.] on the back; and Count [VIII], the defendant kicked [L.N.] in the leg, causing that huge swollen contusion that lasted for weeks. Attached to Count [VIII] is a special allegation of great bodily injury.

Counts [IX] through [XVIII], the crime of forcible rape against [Y.N.]

And Counts [XIX] through [XXVIII], unlawful sexual intercourse with a minor, with [Y.N.], a different statement of the law.”

Next, the prosecutor said, “So starting with the law in Count [I], you will find the instruction for torture in CALJIC [No.] 9.90.” After reading CALJIC No. 9.90 to the jury, the prosecutor said, “The act of torture, the shocking of [L.N.], tying his hands, pouring water at his feet, creating what you have learned is a basic circuit, tapping wires together, causing his body to convulse and twitch as he felt pain. And for a day or two after he couldn’t walk, couldn’t walk up straight. He was hunched over when he left. He had pain in his body. About . . . three weeks later, the doctor sees a muscle spasm consistent with being shocked electrically.

. . . Who would do something like that? Somebody with a sadistic mind, for a sadistic purpose. So this is the law for Count [I], the act of electrically shocking [L.N.]”

As defendant points out, the prosecutor periodically referred to all of defendant’s acts as “sadistic” or as having been committed for “a sadistic purpose.” For example, after noting that defendant forced L.N. and M.N. to sleep in the doghouse, the prosecutor said, “Is that discipline? No. It’s abuse. It’s abuse that these kids suffered at the hands of this defendant. . . . who wanted to control them, for sadistic purposes. Not any reasonable reason for discipline. For sadistic purposes. These kids were abused. [Y.N.], sexually abused.” (Italics added.)

Similarly, after discussing Kim L.’s testimony that the two boys were subservient to defendant, the prosecutor said, “The defendant was the man of the house. He had control over that entire family. . . . But especially those boys . . . . Especially the target of his rage, his sadistic behavior, the youngest, the smallest, the runt of the pack, the most vulnerable: [L.N.] For whatever reason, the defendant targeted him for his sadistic behavior. And he targeted the quieter of the two girls for his sexual perversion.” The prosecutor also described defendant’s acts of depriving the boys of necessities, including lunch cards, clothes, and toothbrushes as “sadistic behavior.” Shortly thereafter, she called defendant “a sadistic man.”

In rebuttal argument, the prosecutor again focused the jury on the specific conduct upon which to base a conviction of count I, torture. The prosecutor said, “The circumstantial evidence in this case is really to Count [I], the torture, because it’s a specific-intent crime. What did the defendant intend to do when he was electrocuting [L.N.]?” In addition, the prosecutor used the term “sadistic” only in reference to the torture count; she said defendant electrically shocked L.N. for “a sadistic purpose.”

(c) The Charges That Were Read to the Jury

The charges and instructions were read to the jury after closing argument. The operative second amended information did not allege any specific acts in connection with any of the charges; accordingly, no alleged specific acts were read to the jury in connection with any of the charges. Furthermore, all of the charges in counts I through XXVIII were alleged to have occurred “on or about” one or more dates between February 1 and March 8, 2004.

The jury was told that count I allegedly occurred “on or about February 1, 2004 through March 8, 2004”; counts II and III were alleged to have occurred “on or about March 1, 2004”; counts IV and V “on or about February 25, 2004”; count VI “on or about February 29, 2004”; count VII “on or about February 1, 2004”; and count VIII “on or about March 1, 2004.” The dates underlying counts IX through XXVIII were similarly pleaded.

(d) The Jury’s Inquiry

During deliberations, the jury submitted a note to the court stating, “Cannot match acts with counts. Must have the specific action which resulted in Count [I], Count [II], et cetera (all counts). For example, Count [V], what action caused this count?”

In discussing the note with counsel, the trial court said, “I don’t think [the jury] can make sense of this, because of the way it’s pled. It’s not pled -- the court was confused when we discussed this matter in chambers with respect to the torture count, what action applied. And initially you [the prosecutor] requested instructions that all the conduct applied.” The prosecutor said, “Right. And we took that out, and I indicated it was just the shocking.” The court said, “Yes. But it doesn’t say any of that on the information.”

After further discussing the matter with counsel, the court told the jury that all of the alleged counts were listed in the jury instructions. It also reminded the jury that it could have the testimony of any witness read back. Later that day, the jury requested a readback of Y.N.’s testimony, and the testimony was reread. The following morning, the jury returned verdicts on all counts, finding defendant guilty as charged on all counts except count IV, in which it found defendant guilty of a lesser included offense.

2. Analysis and Conclusions

The People argue that no unanimity instruction was required because, contrary to defendant’s argument, the prosecutor made it clear in closing argument that the torture count was based solely on defendant’s electrical shocking of L.N. Regarding the jury’s inquiry, the People note that the jury asked only for a readback of Y.N.’s testimony, indicating it was only confused about the factual basis of counts IX through XXVIII, not count I or the other acts involving L.N. Thus, the People argue, the jury must have based its guilty verdict in count I on the electrical shocking incident, and only on that incident. We conclude that, based on the entire record, any error in failing to give a unanimity instruction on count I was harmless beyond a reasonable doubt.

A criminal defendant has a fundamental constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265, overruled on other grounds in Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 2416, 162 L.Ed.2d 129, 137-138].) This means that the jurors must unanimously agree that the defendant is criminally responsible for “one discrete criminal event.” (People v. Davis (1992) 8 Cal.App.4th 28, 41.) It follows that, “when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.” (People v. Gordon (1985) 165 Cal.App.3d 839, 853, fn. omitted and cases cited, disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737, 765 and in People v. Lopez (1998) 19 Cal.4th 282, 292; see also People v. Thompson (1995) 36 Cal.App.4th 843, 850.) We review the court’s failure to give a unanimity instruction under the Chapman^[4] standard of reversible error. (People v. Wolfe (2003) 114 Cal.App.4th 177, 187-188.)

Assuming that the trial court’s failure to give a unanimity instruction was error, the error was harmless beyond a reasonable doubt. In closing argument, the prosecutor made it very clear that the torture count was based solely on defendant’s electrical shocking of L.N. She also tied each of defendant’s other acts involving L.N. and M.N. to counts II through VIII, and briefly explained that counts IX through XXVIII involved the crimes against Y.N. The jury was also given CALJIC No. 17.02, which told them that each count charged a separate crime and they had to decide each count separately.

Additionally, the counts involving Y.N., counts IX through XXVIII, were the only counts for which the prosecutor did not identify each underlying specific act. The jury also requested a readback only of Y.N.’s testimony; it did not request readbacks of the testimony of L.N. or M.N. Thus, notwithstanding the jury’s note requesting that the court tie each alleged act to each count, it is reasonable to conclude that the jury was uncertain only about which specific acts underlay counts IX through XXVIII. This uncertainty was clarified when Y.N.’s testimony was read back.

Moreover, the electrocution incident was the only act for which reasonable jurors could have concluded that all of the elements of torture were present. Thus, based on this record, the failure to give a unanimity instruction did not contribute to the verdicts and was harmless beyond a reasonable doubt. (People v. Wolfe, supra, 114 Cal.App.4th at pp. 186-188.)

B. Substantial Evidence Supports Defendant’s Torture Conviction

Defendant contends there is insufficient evidence to support his torture conviction based on any of defendant’s acts, including his electrical shocking of L.N. Because we have determined that the torture conviction must have been based on the electrical shocking, we limit our review to this claim.

The proper test for determining a claim of insufficiency of evidence is well settled. 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 a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.)

The crime of torture is defined in section 206. That statute provides that “[e]very person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in [s]ection 12022.7 upon the person of another, is guilty of torture.

The crime of torture does not require any proof that the victim suffered pain.”

“‘As the statute states, torture has two elements: (1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.’” (People v. Pre (2004) 117 Cal.App.4th 413, 419, italics added.)

Defendant argues that the electrical shocking was insufficient to constitute torture, specifically because the shocks did not cause L.N. to suffer great bodily injury within the meaning of section 12022.7. We disagree. As the jury was instructed, great bodily injury means “significant or substantial physical injury.” (CALJIC No. 9.90.)

And here, the evidence showed that defendant inflicted “significant or substantial physical injury” upon L.N. as a result of electrically shocking him as many as six times. The shocks hurt L.N. “everywhere”; caused red marks on his wrists; and caused him to have difficulty walking. In addition, Dr. Weissman testified that, three weeks after the incident, L.N. had a mild muscle spasm in his neck that was consistent with having been electrically shocked.

Although L.N. said he felt “regular” the following day and the marks on his wrists had gone away, this does not preclude a finding of great bodily injury. Great bodily injury does not require that the victim suffer “‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (People v. Escobar (1992) 3 Cal.4th 740, 750.) Instead, the victim’s physical injuries must only be “significant or substantial,” and this is a question of fact for the jury. (Id. at pp. 749-750; § 12022.7.)

Reasonable jurors could have concluded that L.N.’s physical injuries -- the red marks on his wrists, his impaired ability to walk, and his muscle spasm -- constituted “significant and substantial physical injury” within the meaning of section 12022.7. On this basis, we reject defendant’s claim that insufficient evidence supports his torture conviction.

C. The Jury Was Properly Instructed on the Definition of “Great Bodily Injury” Within the Context of CALJIC No. 9.90

Defendant further contends the jury was erroneously instructed on the great bodily injury element of torture, because the definition of “great bodily injury” in CALJIC No. 9.90, which was given on torture, did not conform to the definition of “great bodily injury” in CALJIC No. 17.20, which was given on the great bodily injury enhancement allegation attached to count VIII. We reject this contention.

Defendant specifically complains that, although CALJIC Nos. 9.90 and 17.20 both defined “great bodily injury” as “a significant or substantial physical injury,” CALJIC No. 17.20 included the additional statement that “[m]inor, trivial or moderate injuries do not constitute great bodily injury.” CALJIC No. 9.90 did not contain this additional statement. Defendant argues that the failure to include this statement in CALJIC No. 9.90, in light of its inclusion in CALJIC No. 17.20, suggested to the jury that it could find great bodily injury for purposes of torture on a lesser standard of proof than that required for the great bodily injury enhancement in count VIII. We disagree.

There is no need to instruct a jury on the meaning of a term in common usage, because the term is presumed to be within the understanding of persons of ordinary intelligence. (People v. Raley (1992) 2 Cal.4th 870, 901.) The phrase “significant and substantial physical injury” on its face excludes and is commonly understood as excluding “minor, trivial, or moderate” physical injuries. It was therefore unnecessary that CALJIC No. 9.90 include the statement, “Minor, trivial, or moderate injuries do not constitute great bodily injury.”

D. Consecutive Sentences Were Properly Imposed on Counts II and IV through VIII

Assuming his torture conviction was proper, defendant contends the imposition of consecutive terms on his other convictions involving L.N., namely, counts II through VIII, violated section 654. We disagree.

First, defendant assumes that his torture conviction in count I was based on any or all of defendant’s acts involving L.N., and not solely on the electrical shocking of L.N. But as discussed, the torture conviction must have been based on the electrical shocking of L.N., in part because the prosecutor clearly identified the electrical shocking as the basis of count I, the conduct underlying the other counts was specifically identified by the prosecutor,^[5] and the electrocution incident was the only act for which reasonable jurors could have concluded that all of the elements of torture were present.

Moreover, each of defendant’s acts involving L.N. were separate acts and were divisible in time -- that is, the electrical shocking incident, the doghouse incident, and the four beating incidents occurred separately. It was therefore proper to punish such offenses separately, even though, as defendant asserts, all of his acts were incident to the single objective of controlling L.N. for a “sadistic purpose.” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11 [“course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment”]; § 654.)

E. Defendant’s Ineffective Assistance Claim Lacks Merit

Defendant claims his trial counsel rendered ineffective assistance because he told the jury it should find defendant guilty in counts II and III. Counts II and III were the child endangerment charges based on the doghouse incidents. Count II involved L.N.; count III involved M.N.

1. Defense Counsel’s Argument

During closing argument, defense counsel told the jury, “What [defendant’s wife] told you when she came into court and told you that, ‘Yeah, we did that, made them stay in that room. It was a mistake. It was a mistake what we did.’ She told you the truth about that.”

Counsel continued, “[Defendant] told you the truth about that. He admitted to the police that day on March the 8th, ‘Yeah. I did it. It was wrong.’” Counsel then told the jury that defendant was “probably guilty of Counts [II] and [III]. That’s for you to decide. But for everything else, he’s not.”

In conclusion, counsel told the jury: “And I ask you to find [defendant] guilty of putting those boys in that room, Count [II], I think Count [III]. But for everything else -- the rape, the torture -- he didn’t do that. He did not do that. He’s not guilty of those.

Thank you.”

2. Law and Analysis

It is not ineffective assistance for defense counsel to concede a defendant’s guilt of some actions or offenses where the concession is reasonably necessary to gain credibility with the jury and focus on weaker elements of the prosecution’s case. (People v. Welch (1999) 20 Cal.4th 701, 754; People v. Memro (1995) 11 Cal.4th 786, 858.) Indeed, in view of defendant’s and his wife’s concession that they forced L.N. and M.N. to stay in the doghouse and they were wrong in doing so, defense counsel had little choice but to concede defendant’s guilt in counts II and III. Moreover, the concession allowed defense counsel to gain credibility with the jury in arguing that defendant was not guilty of the other charges.

Thus, defense counsel’s concession of defendant’s guilt in counts II and III did not fall below “‘an objective standard of reasonableness . . . under prevailing professional norms.’” (People v. Ledesma (1987) 43 Cal.3d 171, 216.) Instead, it “‘resulted from an informed tactical choice within the range of reasonable competence . . . .’” (People v. Diaz (1992) 3 Cal.4th 495, 557.) We therefore reject defendant’s ineffective assistance claim.

F. The Charges Involving L.N. and M.N. (Counts I Through VIII) Were Properly Joined With the Charges Involving Y.N. (Counts IX Through XXVIII); Furthermore, the Joinder Did Not Prejudice Defendant

Defendant contends the trial court erred in joining the charges involving L.N. and M.N. (counts I through VIII) with the charges involving Y.N. (counts IX through XXVIII), because the offenses were not “‘connected together in their commission.’” He further contends the joinder was prejudicial because the evidence on counts I through VIII and IX through XXVIII was not cross-admissible, and the evidence on counts I through VIII was stronger than the evidence on counts IX through XXVIII. We reject these contentions.

1. Background

Originally, the charges involving L.N. and M.N. were filed separately from the charges involving Y.N. Before trial, the prosecution moved to consolidate the charges, and the motion was granted. A first amended information was later filed, stating all of the charges.^[6]

2. Law and Analysis

Joinder and severance of different criminal charges against the same defendant are governed by section 954. The statute provides, in relevant part: “[A]n ‘accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses . . . be tried separately . . . .’ ‘Offenses falling within this description, but charged in separate pleadings, may be consolidated for trial in order to promote judicial efficiency [citation] . . . .’” (People v. Maury (2003) 30 Cal.4th 342, 391.)

The charges involving L.N. and M.N. (torture, child endangerment, and child abuse or battery) and the charges involving Y.N., are all of the same class, namely, assaultive crimes. “‘[S]ection 954 permits joinder of all assaultive crimes against the person, all of them being considered “of the same class.”’ [Citations.]” (People v. Walker (1988) 47 Cal.3d 605, 622.)

Furthermore, the crimes were connected together in their commission. “‘Offenses “committed at different times and places against different victims are nevertheless ‘connected together in their commission’ when they are . . . linked by a ‘”common element of substantial importance.”’ [Citations.]”’ [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 119.) All of the crimes were committed against minors with whom defendant resided, and all were committed within a short time frame -- February 1, through March 8, 2004. The common element of the crimes is defendant’s assertion of dominance and control over the minors by means of physical abuse.

Thus here, the statutory requirements for joinder were met. “When, as here, the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant’s severance motion. [Citations.] In determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 160-161.) As relevant here, the factors to be considered are: “(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; [and] (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges[.]” (Id. at p. 161.)

Defendant argues that the evidence on counts I through VIII and counts IX through XXVIII was not cross-admissible. The People disagree, noting that Y.N. witnessed many of defendant’s acts involving L.N. and M.N. and her credibility was based, in part, on her relationship with M.N. The People also note that Y.N. feared defendant because of his physical abuse of L.N. and M.N., and that defendant raped Y.N. while he had locked the boys outside the house. We find it unnecessary to decide this question. Even if defendant is correct -- that the evidence on the two sets of charges was not cross-admissible -- section 954.1 prohibits courts from refusing joinder solely on the basis of lack of cross-admissibility of evidence. (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1285.) A lack of cross-admissibility does not by itself demonstrate prejudice. (People v. Mendoza, supra, 24 Cal.4th at p. 161.) To establish prejudice, “defendant must show more than the absence of cross-admissibility of evidence.” (People v. Mayfield (1997) 14 Cal.4th 668, 721.)

Defendant does not argue that the evidence supporting the charges involving L.N. and M.N. was more inflammatory than the evidence supporting the charges involving Y.N., or vice versa. Indeed, the evidence that defendant had unlawful sexual intercourse with Y.N. on numerous occasions was no more inflammatory than the evidence that he electrically shocked L.N., forced L.N. and M.N. to sleep in a doghouse, and kicked and repeatedly beat L.N. and M.N. with injurious objects, including a wet rope, metal bar, and bicycle frame.

The only other issue to be considered is whether, as defendant argues, the joinder resulted in a weak case (the charges involving Y.N.) being joined with a strong case (the charges involving L.N. and M.N.), such that the evidence supporting the strong case altered the outcome of some or all of the charges underlying the weaker case. Defendant argues that the prosecution’s case concerning L.N. and M.N. was much stronger than its case concerning Y.N., essentially because Y.N. did not promptly report and originally denied that defendant had sexual intercourse with her. We find this argument unpersuasive.

Before trial, Y.N. provided detailed descriptions of the times, circumstances, and manner in which defendant forcibly raped her. Also before trial, L.N. and M.N. provided similarly detailed accounts of defendant’s acts of torture, child endangerment, and child abuse. Thus, Y.N.’s credibility was not substantially weaker than L.N.’s or M.N.’s credibility. Thus, when the motion to consolidate was made, it did not appear that the evidence on any of the charges would be stronger than the evidence on any of the other charges. Nor did it appear likely that the total evidence on all of the charges would influence the verdicts on any of the individual charges. The trial court thus did not abuse its discretion in consolidating all of the charges for trial.

Finally, the joinder did not actually result in “gross unfairness“ amounting to a denial of due process at trial. (People v. Mendoza, supra, 24 Cal.4th at p. 162.) The trial testimony of the three minors did not substantially differ from their pretrial statements. Moreover, each minor’s testimony, standing alone, was very strong. Thus, the joinder of all of the charges could not have affected the verdicts on any of the individual charges, including the charges involving Y.N. (People v. Bean (1988) 46 Cal.3d 919, 940.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The trial court selected count VIII as the principal term, and imposed the midterm of four years on that count plus three years for the great bodily injury enhancement. Consecutive terms were imposed on counts II, III, V, VI, and VII, and a concurrent term was imposed on count IV. Consecutive terms were also imposed on counts IX through XVIII, and additional terms were imposed but stayed on counts XIX through XXVIII.

^[3] The jury was given CALJIC No. 9.90 (Torture) for purposes of count I, which read: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury upon the person of another, is guilty of the crime of torture in violation of section 206 of the Penal Code.

‘Great bodily injury’ means a significant or substantial physical injury.

The crime of torture does not require any proof that the person upon whom the injury was inflicted suffered pain.

In order to prove this crime, each of the following elements must be proved:

1. A person inflicted great bodily injury upon the person of another; and

2. The person inflicting the injury did so with specific intent to cause cruel or extreme pain and suffering for the purpose of revenge, persuasion, or for any sadistic purpose.”

^[4] Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].

^[5] As the prosecutor argued, defendant’s other acts were: forcing L.N. to sleep in the doghouse (count II); hitting L.N. in the back of the head with a tool (count III); throwing the bike or bike frame at L.N. (count V); using braided rope to hit L.N. on the back (count VI); hitting L.N. with a metal bar (count VII); and kicking L.N. in the leg, causing a swollen contusion (count VIII).

^[6] Following the close of the prosecution’s case, a second amended information was filed, amending the counts involving Y.N. Based on Y.N.’s trial testimony that defendant forced her to have sexual intercourse with him 10 times, the information alleged 10 counts of forcible rape in counts IX through XVIII (§ 261, subd. (a)(2)) and 10 counts of misdemeanor unlawful sexual intercourse with a minor in counts XIX through XXVIII (§ 261.5, subd. (a)). The first amended information charged defendant with multiple counts of statutory rape (§ 261.5, subd. (d)(2)) rather than unlawful sexual intercourse with a minor. None of these amendments to the charges involving Y.N. affect our analysis of the joinder issue.