P. v. Merchant

Filed 8/17/07 P. v. Merchant CA4/2

Opinion following remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed in part and reversed in part with directions as to defendant Michael C. Gramaje. Affirmed as modified as to defendant Eileen M. Merchant.

Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant Michael C. Gramaje.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Eileen M. Merchant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia and Steve Oetting, Supervising Deputy Attorneys General, and Ivy Fitzpatrick, Deputy Attorney General, for Plaintiff and Respondent.

This decision is the result of a transfer from the Supreme Court after it issued an order granting the Attorney Generals petition for review of our original decision and deferred briefing pending resolution of People v. Modiri (2006) 39 Cal.4th 481 (Modiri). The pertinent procedural details are that a jury found defendants and appellants Eileen M. Merchant (hereafter defendant Merchant) and Michael C. Gramaje (hereafter defendant Gramaje) (collectively defendants) guilty of numerous charges including felony child endangerment, torture, and assault with a deadly weapon (the latter two as to defendant Merchant only). In their consolidated appeal, we held that the various claims of error raised by defendant Gramaje were meritless, but we agreed with defendant Merchants claim that the evidence was insufficient to support the jurys true findings on two allegations under Penal Code section 12022.7, subdivision (d)^[1]that in committing the felony child endangerment and the assault with a deadly weapon, defendant Merchant personally inflicted great bodily injury on K., the six-month-old victim of all the crimes. Accordingly, we affirmed as to defendant Gramaje and struck the two section 12022.7, subdivision (d) enhancements as to defendant Merchant and affirmed as modified.

Both defendants and the Attorney General petitioned for review. The Supreme Court denied defendants petitions but, as previously noted, granted the Attorney Generals petition and then held the matter pending its decision in Modiri. In March 2007, the Supreme Court transferred the case back to this court with an order directing us to vacate our original decision and reconsider defendants appeal in light of Modiri. We have complied with that directive and, for reasons we now explain, conclude the evidence is insufficient to support the jurys true finding on the section 12022.7, subdivision (d) enhancement the jury found true in connection with count 2, defendant Merchants conviction for felony child endangerment. Defendant Merchants other contentions are meritless. Therefore, we will modify her sentence by striking the enhancement on count 2 and will otherwise affirm.

With respect to defendant Gramaje, we will vacate his upper term sentence and remand to the trial court for resentencing in accordance with People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ [2007 Cal. Lexis 7606] and will otherwise affirm.

STATEMENT OF FACTS

The pertinent facts^[2]are that in January 2001 Lisa S. left her two young daughters, then four-month-old K. and 18-month-old S., with Terri Gramaje, a friend who had agreed to care for the girls because Lisa was living in a mobilehome that in Lisas view was not safe for the children. Terri along with her husband, defendant Gramaje, and their two sons, 14-year-old M. and 12-year-old B., lived in a large barn-like structure on property owned by Terris mother. Defendant Merchant and her 10-year-old son R. lived in a mobilehome located on the same property. Before K. was born Lisa and S. had lived for about eight months in the mobilehome with defendant Merchant and R., but Terris mother ultimately kicked Lisa out.

During the time her daughters lived with the Gramajes, Lisa provided for the girls basic needs, including food, clothes, diapers, and medication. Although Lisa intended for the children to stay with Terri Gramaje, K. and S. frequently also stayed with defendant Merchant in her mobilehome. S., in fact, lived primarily with defendant Merchant while K. primarily stayed with the Gramajes. Lisa regularly visited her daughters, seeing them at least one to two times a week. In about mid-February, Terri began preventing Lisa from seeing K. when she came to visit, often putting Lisa off by claiming that K. was asleep or ill. The times Terri did allow Lisa to see K., the child was fully clothed.

On March 3, 2001, Lisa went shopping with Terri, K., and S. but she did not see K.s body that day. On about March 8, Lisa took S. to live with her but left K. with Terri because Lisa thought Terri would like a little catch up time with the infant. According to Lisa, Terri loved K. so Lisa wanted to give her a little time with K. before she took the baby back permanently. Lisa did not see K. again until March 11, 2001, when Terri and defendant Merchant drove K. to Lisas house and Terri told Lisa to take the infant to a doctor because K.s leg was infected. Terri removed a bandage from the babys leg. According to Lisa, the leg looked like raw hamburger and the skin was open from the knee to the hip. When Lisa asked Terri what had happened to K.s leg, Terri said only that K. had a bruise that had turned purple and then had ruptured. In fact, and as defendant Merchant later told the police, Terri believed the bruise was an infection that needed to be drained so Terri used a box cutter to make a two- to three-inch incision on the babys leg. Defendant Merchant and Terri then put a topical antibiotic ointment on the wound and bandaged K.s leg.

Terri Gramaje and defendant Merchant drove Lisa to a local hospital emergency room, where they dropped her off with K. and then drove away. In the emergency room, medical personnel immediately recognized that K. was gravely ill. They intubated the infant and had her transported to Loma Linda University Medical Center where doctors immediately performed surgery to remove dead tissue in order to save K.s life. Surgeons removed dead tissue from K.s left thigh and both sides of her buttocks, incised a lesion on her left foot, and also took skin from her back which they grafted to her thigh and buttocks.

Rebecca Piantina, a forensic pediatrician at Loma Linda University Childrens Hospital, first evaluated K. on March 11, 2001, and continued to treat K. for the two months the child was hospitalized. According to Dr. Piantina, the lesion on K.s left thigh was caused by necrotizing fasciitis, a rare and life-threatening infection that attacks the deep layers of the skin. The infection causes death of the deep skin tissue which then causes blood vessels to clot off as a result of which the surrounding tissue also dies. The first symptoms of the disease are extreme pain, flu-like symptoms, and swelling of the infected area. Because it rapidly progresses, necrotizing fasciatus must be treated quickly in order to avoid shock and ultimately death. Dr. Piantina testified that in K.s case the infection was caused by a break in the skin, possibly caused by rodent or insect bites, which in turn caused E. coli (Escherichia coli) and other organisms to mix and, in combination, to develop into necrotizing fasciatus. K.s infection could have developed between a few weeks or a few days before March 11.

Dr. Piantina also testified that she evaluated K. the day after she was admitted into Loma Linda University Childrens Hospital. That examination, which included laboratory tests, X-rays and CT scans, revealed that K. had subdural hematomas (chronic bleeding) on two sides of her brain, as well as retinal hemorrhages in both eyes, all of which were caused by someone violently shaking the infant. K. also had crusted lesions around her nose, and lesions around her mouth that were most likely caused by insect bites that became infected due to unsanitary living conditions; very significant cockroach bites all over her body, including her genital area; rodent bites on her shoulder; scarring and tearing in her mouth, under and on her tongue, and at the back of her throat that was consistent with having had a spoon shoved down her throat; three- to six-week-old fractures of both pelvic bones, the type of fractures that are very unusual in a seven-month-old child and that happen in motor vehicle accidents but could also possibly be caused by an adult kicking the child; a three-week-old fracture of the left tibia that was caused by a lot of force such as a kick from an adult; advanced decubitus ulcers (bed sores) that appeared to be weeks old and would have resulted from being in one position for a prolonged period, and were consistent with K. being strapped in a car seat or lying on her back in a bassinet for a long period of time; and a very, very horrible bad tear on her rectum that went up towards her vaginal area and back from the anal area, caused by trauma to the rectum either from penetration or blunt force, such as having been kicked or hit. The rectal tear damaged K.s sphincter muscle and deformed the rectal folds and required that she wear a colostomy bag for six months in order for the damage to heal.

In consent searches of both the Gramajes house and defendant Merchants mobilehome, conducted later in the day on March 11, 2001, sheriffs deputies discovered deplorable living conditions. In defendant Merchants trailer, among other things, there was a strong odor of urine and dog feces with dog and cat feces, both fresh and old, on the carpets, and cockroaches in every room. The Gramajes barn also smelled of urine and dog feces, the carpets were wet, and dog feces, fresh and old, were throughout the house. Bugs, spiders and cockroaches were also all over the house. Under a bassinet, presumably K.s, located in the Gramajes bedroom, there was a puddle of urine and dog feces as well as a dead mouse. The house was filthy and rodents could be heard scratching behind furniture and walls.

When sheriffs deputies initially contacted defendant Gramaje at his home on March 11 to tell him there was something wrong with K., he stated that they had been watching the child for a few months and that he had treated the baby as his own, taken it in. When later interviewed, defendant Gramaje stated, in pertinent part, that he did not know much about the situation with K. because he spent long hours away from home, commuting to and working at his job as a cook at the Marriott in Irvine. Defendant Gramaje stated that K. had been living at his house since October 2000 and that his wife Terri watched K. most of the time but that defendant Gramaje also cared for the child. Although he claimed not to know how K. came to be living in his house, defendant Gramaje did acknowledge that he told his wife that he did not want the responsibility of looking after someone elses child, but because it was something Terri wanted to do, defendant Gramaje accepted it.

Defendant Gramaje also stated that he had noticed sores around K.s mouth and nose and that Terri said the former were caused by an allergic reaction to apple products and the latter were the result of a cold. Defendant Gramaje had not noticed other sores or injuries on K. but if he had, he would have made sure she received medical attention. When told about K.s injuries, defendant Gramaje stated that he was confused, that he had never seen the injuries, and did not know how they had occurred. He admitted, however, that the Gramajes house was filthy and not the proper place for a seven-month-old infant to live.

When interviewed, defendant Merchant initially told sheriffs deputies, among other things, that she first noticed the so-called bruise on K.s leg on March 10 and that on the morning of March 11, the bruise began opening up, like the skin had peeled apart. After she and Terri looked at the bruise, Terri said they needed to take the baby to Lisa so she could take K. to the doctor. Defendant Merchant later admitted that she had seen the bruise or black mark on K.s leg earlier in the week, and that she had seen bedsores on K.s buttocks for two to three weeks. She then explained how on March 10 Terri brought K. to defendant Merchants trailer and used a box cutter to open K.s leg, in a misguided attempt to drain the apparent infection.

When asked about K.s other injuries, defendant Merchant said she had no idea how K. had come to have a broken left tibia and broken hip bones. She admitted that K. had a lot of cold sores and purported bite marks from her sister S. and recently had been breaking out with black and blue marks all over her body. Defendant Merchant also said that she never saw Terri Gramaje drop or hit K. but that she had seen her spank the child. According to defendant Merchant, who acknowledged having been hit by her, Terris got a hard hand when she hits. In a second interview two days later, defendant Merchant disclosed that K. had twice gone into convulsions. The first time, which occurred about a month before the interview, Terri called defendant Merchant at work and said that K. had been convulsing and had stopped breathing but started to breathe again after Terri performed CPR. Defendant Merchant returned home and she and Terri poured cold water on the baby to shock her and bring some life back into her. A week later, K. convulsed again and this time Terri poured water on her to revive her. Although they considered taking K. to the hospital, Terri decided not to because the infant had sores on her buttocks and Terri didnt know where they were from and she didnt want any trouble, any problems . . . .

Defendant Merchants son, R., testified at trial, among other things, that because K. did not like to eat with a spoon, Terri Gramaje would shove the spoon in her mouth and make K. cry. When Terri got mad she would throw K. down on the couch or in her bassinet and K. would cry loudly. R. also saw Terri hit K. hard more than 10 times, kick K.s walker while the infant was in it, and shake K. two to three times. R. also saw two of K.s seizures. During the first one, R. saw Terri shake K. and then heard her tell her sons, B. and M., to throw water on the baby. During the second seizure, Terri called defendant Merchant at work, and by the time she arrived home, K. was awake. According to R., when defendant Merchant told Terri to take K. to the doctor, Terri said she did not want the police to be involved. R. also testified that he had noticed that K. had sores around her nose and mouth and had dime-sized bruises on her buttocks. R. was in the trailer when Terri cut open K.s leg with the box cutter and he saw his mother hold K.s legs still while Terri made the incision.

B. and M., the Gramajes sons, also testified at trial. In his testimony B., the younger of the two boys, stated, among other things, that he had seen some of K.s injuries, including the scabs all over her mouth. He remembered when the bruise on K.s leg opened up and that his dad told his mother to take K. to a doctor. B. also testified that his dad did not want K. and S. living with them because he felt the house was not fit for girls to live in. B. acknowledged that he told an investigator that his dad was afraid something would happen to K. and S. and that his mother would be involved. B. also acknowledged but denied the truth of other statements he had made to investigators, including a statement that his parents screamed at K. and called her a fucking bitch, that his mother spanked K., that she slammed the infant into her bassinet, that his mother hit him hard, and that defendant Merchant had been present when his mother hit K.

M. testified in pertinent part that his mother threw K. down hard on the waterbed, yelled and cussed at K. and forcefully put the child in her bassinet. M. recalled that K. had a seizure and that B. and his mother threw water on her and his mother shook K. hard to revive her. M. testified that he later told his father about the seizure and his father was upset that his mother had not taken K. to the hospital.^[3]

Additional facts pertinent to the issues raised on appeal will be recounted below.

DISCUSSION

We first address the claims raised by defendant Gramaje and begin with his contention that section 273a, subdivision (a) is constitutionally vague and therefore we must reverse his conviction for that crime.^[4]

1.

SECTION 273a, SUBDIVISION (a)

The child endangerment statute, section 273a, subdivision (a), states in pertinent part that, Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered is guilty of a crime punishable as either a misdemeanor or a felony.

Defendant Gramaje raises various challenges to his conviction for violating that statute. First, he contends that the statute is vague and therefore unconstitutional because it applies to [a]ny person who . . . willfully causes or permits a child to suffer and does not limit criminal liability to those who are under a duty to act. To support his claim, defendant Gramaje cites People v. Heitzman (1994) 9 Cal.4th 189, in which the Supreme Court declared that the identical language in the elder abuse statute, section 368, subdivision (a), did not meet the constitutional requirement of certainty as applied to a person, such as the defendant in that case, who was not the abuser, did not live with, and was not the caretaker of the elder parent who was being abused. (People v.Heitzman, supra, at p. 209.)

Defendant Gramaje was not prosecuted under the [a]ny person who . . . willfully causes or permits provision of section 273a, subdivision (a); he was prosecuted under the care or custody provision, specifically the provision applicable to any person having the care or custody of any child. Consequently, although we are inclined to agree, for the reasons stated in People v. Heitzman, that the [a]ny person who . . . willfully causes or permits provision in section 273a, subdivision (a) is constitutionally uncertain, we will not resolve that issue.

The issue pertinent under the care or custody provision, and the next issue that defendant Gramaje raises, is whether sufficient evidence was presented at trial to show that he had care or custody of K. Defendant Gramaje contends the evidence was insufficient. We disagree.

In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (Peoplev. Mincey (1992) 2 Cal.4th 408, 432.) Substantial evidence is evidence which is reasonable, credible, and of solid value. (Peoplev. Johnson (1980) 26 Cal.3d 557, 578.)

We begin our assessment of the sufficiency of the evidence with our observation in People v. Cochran (1998) 62 Cal.App.4th 826 (Cochran), that there is no special meaning to the terms care and [sic] custody beyond the plain meaning of the terms themselves. The terms care or custody do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver. (Id. at p. 832.)

Defendant Gramaje contends the evidence is insufficient to show he had care or custody of K. because it does not show that he actually took care of the child and instead shows that he merely tolerated the infants presence in his home. In other words, defendant Gramaje is of the view that in order to prove K. was in his care or custody, the evidence had to show that he fed, bathed or otherwise attended to the immediate physical needs of the infant. In our view, evidence that defendant Gramaje tolerated the infants presence in his home is sufficient to show that defendant Gramaje provided care for K. The evidence is undisputed that K. lived in defendant Gramajes home, with his knowledge, from January 2001 to March 2001, and according to his statement to the police, defendant Gramaje took K. in and treated her as his own. By providing K. with a roof over her head, defendant Gramaje provided care to K. Thus, the evidence is sufficient to show that K. was in defendant Gramajes care for purposes of section 273a, subdivision (a).

Although there is no evidence to show that defendant Gramaje caused K.s injuries or that he permitted anyone else to injure the infant, section 273a, subdivision (a) also imposes liability for willfully permitting a child to be placed in a situation where his or her person or health is endangered. ( 273a, subd. (a).) The evidence presented at trial, as recounted above, shows at the very least that the Gramajes home was filthy and infested with rodents and insects. Infected insect bites were the most likely cause of the necrotizing fasciatus on K.s leg. Evidence regarding the deplorable conditions of the home is sufficient to show that defendant Gramaje willfully permitted K. to be placed in a situation where her health was endangered. That evidence combined with the evidence that defendant Gramaje tolerated K.s presence in his home and thereby undertook to provide care for the child, is sufficient to support his conviction for violating section 273a, subdivision (a) as alleged in count 2. Accordingly, we reject his contrary claim.

2.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant Gramaje next contends that his trial attorney should have requested a pinpoint instruction on the definition of care or custody after the jury sent a note during their deliberations asking the court to explain the legal definition of those terms and the next day submitted another note in which they asked if they could have a law dictionary and also whether defendant Gramaje is bound by the verbal contract made between Lisa S. and Terri G. regarding the care of those kids ([S.] & [K.]). The trial court responded to the jurys first note as follows: Refer to Instruction number 9.37 [which defines the section 273a, subdivision (a) violation]. The term is care or custody. There is no special legal definition of those words that would apply here. Use the common, everyday meanings of those words in your deliberations. In response to the second note, the trial court told the jurors they could not have a legal dictionary and referred them to CALJIC instruction Nos. 9.37 and 3.01 for an answer to the first part of [their] question.

According to defendant Gramaje, the jurys notes indicate that the jurors were seriously grappling with the issue of whether [he] had care or custody of the children and therefore trial counsel should have requested a pinpoint instruction which would have advised the jury that care or custody means a willingness to assume duties correspondent to the role of a caregiver. We disagree.

An ineffective assistance of counsel claim has two components: deficient performance, namely, that counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms; and prejudice, namely, that it is reasonably probable, but for counsels error, that the outcome of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Ledesma (1987) 43 Cal.3d 171, 217.)

Defendant Gramaje has not demonstrated that trial counsels representation was deficient. As discussed above, the terms care or custody as used in section 273a, subdivision (a) do not have any special meaning beyond the plain meaning of the terms themselves. (Cochran, supra, 62 Cal.App.4th at p. 832.) The defendant in Cochran claimed that although he had taken the infant victim and her mother into his home he did not have care or custody of the infant (who was not his child) and therefore he did not come within the purview of section 273ab at issue in that case. In rejecting the defendants claim we not only concluded that the terms care or custody have no special meaning but we also noted that, The terms care or custody do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver. (Cochran, at p. 832.)

Contrary to defendant Gramajes view, the above quoted language is not a definition of either term in question but rather a clarification that neither concept is dependent on a familial connection. Therefore, we reject defendant Gramajes assertion that trial counsel should have requested a pinpoint instruction that advised the jury that care or custody means a willingness to assume duties correspondent to the role of a caregiver. Because no such instruction was warranted we conclude that trial counsels representation was not deficient. In short, we reject defendant Gramajes ineffective assistance of counsel claim.

3.

RESPONSE TO JURY INQUIRY

As noted above, in response to the jurys question whether defendant Gramaje was bound by his wifes verbal contract with Lisa S. to take care of K. and S., the trial court answered by referring the jury to CALJIC Nos. 9.37 and 3.01, the latter of which defines aiding and abetting. Defendant Gramajes attorney objected to referring the jury to the aiding and abetting instruction on the ground that the case against defendant Gramaje had been predicated on a theory of criminal negligence and that aiding and abetting was inconsistent with that theory.

Defendant Gramaje reasserts that objection in this appeal. Specifically, he contends there was no evidence that he aided and abetted in the commission of any criminal act committed by his wife, Terri. Therefore, the trial court should not have referred the jury to CALJIC No. 3.01 and, by doing so, the trial court led the jury to believe that defendant Gramaje did aid and abet in the crimes that resulted in K.s severe injuries. Again, we disagree.

The jurys question asked whether defendant Gramaje was responsible for the acts of his wife, that is, was he under an obligation to provide care for K. and S. based on Terris agreement with Lisa to care for the children. In response to that question, the trial court correctly referred the jury to CALJIC No. 3.01, the only theory under which defendant Gramaje could be held criminally responsible for acts committed by someone other than himself. By referring the jury to the aiding and abetting instruction, the trial court directed the jurors to the legal principles from which they would be able to answer their question. Contrary to defendant Gramajes view, the trial court did not implicitly or expressly suggest that defendant Gramaje was liable as an aider and abettor. After considering the definition of aiding and abetting and reviewing the evidence, the jury would have found that defendant Gramaje was not an aider and abettor. Defendant Gramajes assertion otherwise is speculation. For these reasons, we reject this claim of error.

4.

PROSECUTORIAL MISCONDUCT

Defendants contend that the prosecutor committed misconduct when during closing argument, he put a photograph of then-two-year-old K. on the courtroom monitor and addressed the jury as if he were K. After the prosecutor completed his argument, defendants objected, asked the court to admonish the jurors to disregard the argument, and then moved for a mistrial. The trial court denied defendants mistrial motions and also declined to admonish the jury. The court reasoned that the jury already had been admonished not to consider sympathy in their deliberations and that although the prosecutors argument was clearly designed to appeal to at least some sense of emotion, what the prosecutor said found at least some support in the evidence and the prosecutor was very careful in that he did not depart from what the testimony brought out.

Defendants contend that the prosecutor engaged in misconduct and that the trial court, therefore, erred in denying their mistrial motions. We agree that this aspect of the prosecutors closing argument was improper. Contrary to the trial courts view, the prosecutor did not limit his argument to facts adduced from the evidence. He also undertook to express K.s emotions and to attribute thoughts to the child. The pertinent details^[5]are that after the prosecutor projected K.s image on the monitor he stated, Thats my last slide. Thats the best witness in this case. You dont get to hear from her. But based upon the evidence as we know it, as you heard it, this is what she would tell you:

Hi. My name is [K.] Im gonna be three this summer. I have a great new mom and dad and a great new home. But it wasnt always like that. I used to live in a barn, in a trailer, and I hated it there. I hated the smell. I hated the mold. I hated the spiders. I hated the cockroaches. I hated everything that scurried along the floor at night. The cockroaches were really bad. . . . They bit my private parts. They bit my bottom. They bit my legs, my body, arms, head, and mouth. And I would try to get rid of them, but it wasnt as good as my big stepbrother had it; they would just bite his hands. The prosecutor, speaking in K.s voice, also said, Eileen, Eileen was worse. Her house stunk, too. The roaches and spiders and webs scaredme there too . . . . The prosecutor also argued, The last night I spent there on March 10th was the scariest. Eileen and Terri only cared about saving their own skin. They sure didnt care about my skin. Eileen Merchant knew that my leg was getting blacker and blacker and swollen, and it smelled really bad. She took me into her room and put me on her own bed. And then I saw the box cutter and Terri coming with the box cutter. And I tried to get away. I tried to kick away. Even though it hurt because of my broken pelvis, I thought it was gonna hurt more with that box cutter. And I was right. But I couldnt kick away because she held my leg down so it could be ripped apart, amongst all the roaches and the spiders and the webs and the smell. The prosecutor concluded his closing argument in K.s voice by stating, Doing a lot better now. The bag attached to my body[^[6]] came out a little bit after my first birthday party. I can walk. Even though I limp, I am happy about that [presumably referring to the ability to walk, not the limp]. I have lots of scars the other kids dont have. I dont know if theyll go away. But I am alive. (Italics added.)

We are inclined to agree with defendants that it was improper for the prosecutor to deliver part of his closing in K.s voice and attribute to her thoughts and emotions that were purely speculation and potentially inflammatory. By doing so, the [p]rosecutor inappropriately obscured the fact that his role is to vindicate the publics interest in punishing crime, not to exact revenge on behalf of an individual victim. Furthermore, the prosecutor seriously risked manipulating and misstating the evidence . . . . Finally, by testifying as [K.], the prosecutor also risked improperly inflaming the passions of the jury through his first-person appeal to its sympathies for the victim . . . . (Drayden v. White (9th Cir. 2000) 232 F.3d 704, 712-713.)^[7] However, we will not address the issue further because defendants were not prejudiced by the prosecutors conduct.

In order to constitute a violation of a defendants due process right to a fair trial under the federal Constitution, the prosecutors misconduct must render the trial fundamentally unfair. (Drayden v. White, supra, 232 F.3d at p. 713.) Misconduct by a prosecutor that does not render a criminal trial fundamentally unfair is error under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. [Citation.] Misconduct that infringes upon a defendants constitutional rights, mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jurys verdict. [Citations.] A violation of state law only is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward [argument]. [Citations.] (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)

The prosecutors misconduct in this case did not render defendants trial fundamentally unfair. First, the objectionable portion comprised only the last few minutes of the prosecutors closing argument, and even though it was related to the jury from K.s purported perspective, most of what the prosecutor said was based on facts derived from the evidence. Second, the trial court instructed the jury not only that statements of the attorneys are not evidence but also that the jury should not base its verdicts on sympathy. In addition, given the subject matter of the trial, which includes the fact that the victim was a baby, and the nature and extent of K.s injuries, we must presume that the trial was fairly emotional and that the prosecutors argument only minimally increased the level of emotion. In short, we cannot say that the prosecutors closing argument rendered defendants trial fundamentally unfair. Accordingly, defendants rights under the due process clause of the United States Constitution were not violated.

For these same reasons, we cannot say that the prosecutors conduct violated state law. However, if a violation occurred, it was harmless. Simply stated, it is not reasonably probable the jury would have reached a result more favorable to either defendant on any of the charged crimes if the purported misconduct had not occurred.

5.

SUFFICIENCY OF THE EVIDENCE

A. Torture

Defendant Merchant contends the evidence is insufficient to support the jurys verdict finding her guilty of torture in violation of section 206 as alleged in count 1 because neither she nor Terri Gramaje harbored the requisite intent to cause cruel or extreme pain. We disagree.

Our task on appeal is to determine based on a review of the entire record, whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. (Peoplev. Mincey, supra, 2 Cal.4th at p. 432.) In order to make this determination, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (Ibid.)

Torture, as defined in section 206, requires, among other things, that great bodily injury be inflicted with the intent to cause cruel or extreme pain and suffering. ( 206.) In challenging the jurys verdict finding her guilty of torture, defendant Merchant contends the evidence shows that she participated in only one act -- she assisted Terri Gramaje in cutting open K.s leg in order to drain the infection. Defendant Merchant argues that neither she nor Terri Gramaje intended to cause cruel or extreme pain and suffering when they inflicted that injury on K. but, instead, intended only to drain the infection. Because neither she nor Terri Gramaje harbored the required intent, defendant Merchant contends that the act does not support a conviction for the crime of torture. Defendant Merchant asserts that all other injuries were inflicted by Terri Gramaje alone and defendant Merchant was prosecuted for those injuries on an aiding and abetting theory. As to those injuries, defendant Merchant argues that Terri Gramaje inflicted them while acting in fits of rage or out of explosive anger rather than with the intent to cause cruel or extreme pain. Because Terri Gramaje, the actual perpetrator, did not harbor the required intent, defendant Merchant argues that she cannot be guilty of torture.

Although we are inclined to agree with defendant Merchants initial assertion, we will not address it because we do not agree with her assertion that Terri did not harbor the requisite intent in inflicting the other injuries. Defendant Merchant bases this claim in part on People v. Steger (1976) 16 Cal.3d 539, in which the defendant fatally beat her three-year-old stepdaughter and was convicted of first degree murder by torture. The Supreme Court modified the defendants conviction by reducing the degree of murder from first to second degree based on the courts view that the evidence was insufficient to show the defendant harbored the requisite intent. The court held, Viewed in the light most favorable to the People, the evidence shows that defendant severely beat her stepchild. But there is not one shred of evidence to support a finding that she did so with cold-blooded intent to inflict extreme and prolonged pain. Rather, the evidence introduced by the People paints defendant as a tormented woman, continually frustrated by her inability to control her stepchilds behavior. The beatings were a misguided, irrational and totally unjustifiable attempt at discipline; but they were not in a criminal sense willful, deliberate, or premeditated. (Id. at p. 548.) In the Supreme Courts view, the fact that the beatings occurred and the victims wounds were inflicted over an extended period of time, likewise, did not necessarily support an inference that the defendant intended to inflict pain -- In some cases this fact might lend support to a torture murder conviction. For example, if a defendant had trussed up his victim, proof that pain was inflicted continuously for a lengthy period could well lead to a conclusion that the victim was tortured. But in the present case the fact that [the victim] was injured on numerous occasions only supports the theory that several distinct explosions of violence took place, as an attempt to discipline a child by corporal punishment generally involves beating her whenever she is deemed to misbehave. (People v. Steger, supra, 16 Cal.3d at pp. 548-549, fn. omitted.)

Defendant Merchants reliance on People v. Steger, and the cases cited therein, is misplaced. First, Terri Gramaje testified at trial that she had pleaded guilty to various charges including the torture of K. By her guilty plea, Terri Gramaje admitted that she inflicted great bodily injury on K. with the intent to cause the infant cruel or extreme pain. Thus, unlike People v. Steger, in which the defendants intent arguably was equivocal, the perpetrators intent in this case is clear and established by her admission of guilt. Next, we note that the Supreme Court has in more recent cases clarified that the nature and severity of the victims wounds are probative of the defendants intent to inflict pain and that a misguided attempt at discipline can also involve an intent to inflict extreme pain and suffering. (See, e.g., People v. Mincey, supra, 2 Cal.4th at pp. 432, 434.) Therefore, even absent Terri Gramajes guilty plea, a jury could reasonably infer from the fact that K.s injuries were extensive and had been inflicted over a period of time that Terri Gramaje intended to cause K. extreme pain and suffering. Not only did the evidence show that over the course of at least a month, Terri Gramaje used her foot or some blunt object on K. causing the infants rectum to tear, but that she also must have stomped on the infant, which crushed K.s pelvis, and may also have caused her left tibia to break. Terri also repeatedly jammed a spoon down K.s throat when she fed the infant causing tears in K.s mouth and tongue and scarring in her throat. Terri must also have immobilized K. by strapping her into a car seat or leaving her for extended periods of time in her bassinet, which caused K. to develop severe and advanced pressure sores on her buttocks.

That Terri Gramaje might have acted out of anger or frustration, as defendant Merchant claims, does not preclude a finding that she also intended to cause K. cruel or extreme pain. From the number and severity of the injuries Terri inflicted, a jury reasonably could infer that she intended to cause K. cruel or extreme pain, even if she had been motivated by frustration and anger to inflict the injuries. In short, we conclude a jury could reasonably infer from the evidence recounted above that Terri Gramaje intended to cause K. cruel or extreme pain and therefore that she possessed the mental state necessary to support a torture conviction. From that we must in turn conclude that the evidence is sufficient to support defendant Merchants conviction for torture as an aider and abettor to Terri Gramajes acts of child abuse and torture.

B. Section 12022.7 Enhancements

Defendant Merchant moved in the trial court to dismiss the section 12022.7 great bodily injury enhancements the jury found true in connection with her felony child endangerment conviction (count 2) and her assault conviction (count 3) on the ground that the evidence did not show she had personally inflicted any injury on K., and therefore the evidence was insufficient to support those true findings. The trial court, after first acknowledging that the enhancement applies only to the person who actually inflicted the great bodily injury, nevertheless denied defendant Merchants motion. The trial court reasoned that the group beating principle set out in People v. Corona (1989) 213 Cal.App.3d 589 applied in this case because although Terri Gramaje actually cut open K.s leg with the box cutter, defendant Merchant held the infants leg and thereby participated in inflicting that injury. We originally agreed with defendant Merchant, and as previously noted, struck the two enhancements. Upon reconsideration in light of Modiri, supra, we conclude, for reasons we now explain, that the evidence is sufficient to support the section 12022.7 enhancement found true in connection with the jurys verdict finding defendant Merchant guilty of assault with a deadly weapon or by means likely to produce great bodily injury, as alleged in count 3.

In Modiri, the jury convicted the defendant of assault with a deadly weapon or by means of force likely to produce great bodily injury, in violation of section 245, subdivision (a)(1), and also found true an allegation under section 1192.7, subdivision (c)(8) (referred to in Modiri and hereafter as section 1192.7(c)(8)), that the defendant personally inflicted great bodily injury on the victim based on evidence that the defendant was one of several people who had attacked and beaten the victim. On appeal, the defendant claimed that CALJIC No. 17.20, the instruction the trial court gave with respect to the group beating, negated the requirement of true personal infliction, and improperly allowed a section 1192.7(c)(8) finding based on injuries other assailants had caused. (Modiri, supra, 39 Cal.4th at p. 491.) The appellate court agreed and vacated the section 1192.7(c)(8) finding. The Supreme Court granted review in order to decide whether the group beating principles routinely given to juries (CALJIC No. 17.20; See CALCRIM No. 3160) . . . conflict with the requirement that the defendant personally inflict[] great bodily injury ( 1192.7(c)(8); see 12022.7(a)), as construed and applied by the courts. (Modiri, supra, 39 Cal.4th at p. 491.)

The Supreme Court held in Modiri that CALJIC No. 17.20 reasonably conveys the requirement in section 1192.7(c)(8) that the defendant personally inflict great bodily injury, a concept that calls for the defendant to administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result. (Modiri, supra, 39 Cal.4th at p. 493.)

The sentence enhancement set out in section 12022.7, subdivision (d), at issue in this appeal, also requires that the defendant personally inflict great bodily injury,^[8]and consequently is also defined by the language, quoted above, in Modiri. Application of that definition to the facts in this case leads us to conclude that the evidence supports the jurys finding that in assaulting K. with a deadly weapon, as alleged in count 3, defendant Merchant personally inflicted great bodily injury on K. because the evidence shows defendant Merchant held K.s leg so that Terri Gramaje could cut the infants leg with a box cutter. By holding K.s leg, defendant Merchant directly used force on K. with the result that K. suffered great bodily injury. Accordingly, we conclude the evidence in this case is sufficient to support the section 12022.7, subdivision (d) finding on count 3, defendant Merchants conviction for assault with a deadly weapon on K.

The evidence that defendant Merchant held K.s leg while Terri Gramaje cut the leg open with a box cutter is the only evidence that defendant Merchant actually administered a blow or used force on K., the Attorney Generals contrary suggestion notwithstanding. The Attorney General cites to evidence that while in the care of defendant Merchant and Terri Gramaje, K. suffered numerous other serious injuries, including broken bones, malnutrition, severe pressure sores, and a life-threatening infection. However, as recounted above, the evidence presented at trial showed that only Terri Gramaje inflicted the other physical injuries K. suffered. There was no evidence to show that defendant Merchant inflicted any of those other injuries or participated in the infliction of those injuries in any way. Consequently, the evidence presented at trial supports only one of the jurys section 12022.7 true findings. Therefore, we will strike the enhancement on count 2, defendant Merchants conviction for felony child endangerment in violation of section 273a, subdivision (a).

6.

INSTRUCTIONAL ERROR

Defendant Merchant also claims that we must reverse the jurys true findings on the section 12022.7 enhancements because the trial court incorrectly instructed the jury according to a modified version of CALJIC No. 17.20, the so-called group beating jury instruction, that, When a person applies unlawful physical force upon the victim, she may be found to have personally inflicted great bodily injury upon the victim, if at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that another person, as part of [the] same incident, had applied, was applying, or would apply unlawful physical force upon the victim, and the defendant then knew or reasonably should have known that the cumulative affect [sic] of the unlawful physical force would result in great bodily injury to the victim.

Defendant Merchant contends there was no group beating in this case and therefore the trial courts instruction was irrelevant. In addition, defendant Merchant relies on the appellate decision in People v. Modiri (2003) 112 Cal.App.4th 123, that has been superseded by the Supreme Courts decision in Modiri, supra, 39 Cal.4th 481. Unlike the Attorney General, defendant Merchant did not file a supplement brief after the Supreme Court transferred this case back to this court (Cal. Rules of Court, rule 8.200(b)), and consequently she has not addressed the accuracy of the above noted instruction in light of Modiri. We construe defendant Merchants silence as a concession that the instruction is a correct statement of the pertinent legal principles as articulated in Modiri. Moreover, we are persuaded that the trial courts modified version of CALJIC No. 17.20 is a correct articulation of the legal principles set out Modiri. As previously discussed in addressing defendant Merchants challenge to the sufficiency of the evidence to support the jurys true findings, those principles are pertinent to the section 12022.7 allegation because like the section 1192.7 allegation at issue in Modiri, a true finding on a section 12022.7 allegation also requires the jury to find that the defendant personally inflicted great bodily injury. In other words, defendant Merchants argument misses the point. The trial courts modified version of CALJIC No. 17.20 was both legally correct and properly given, and we reject her contrary claim.

7.

EXCLUSION OF EVIDENCE

Defendant Merchant next contends that the trial court erred by excluding evidence that Terri Gramaje had threatened defendant while the two were in jail, awaiting trial. According to her offer of proof, within a few weeks of trial, Terri Gramaje told defendant Merchant that when you go up to state, Im gonna see that you get hurt. If someone doesnt do it for me, I will do it myself. Defendant Merchant intended to call as witnesses two sheriffs deputies who were on duty in the jail at the time the threat was made and who prepared a report of the incident. Defendant Merchant argued that the evidence regarding Terri Gramajes recent threat corroborated her defense of domination, physical force, threats and duress in this case from Terri Gramaje . . . . The trial court ruled that the jailhouse threat was irrelevant and excluded it from evidence.

We agree with the trial court that the evidence was irrelevant. Relevant evidence as defendant correctly points out is evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 132.) We review a trial courts exercise of discretion in admitting or excluding evidence for abuse of that discretion. (People v. Rodriguez (1999) 20 Cal.4th1, 9.)

Defendant Merchant argued in the trial court as she does on appeal that Terri Gramajes jailhouse threat was relevant because it corroborated defendant Merchants defense of duress, specifically, that she had been dominated by Terri Gramaje at the time the crimes took place. We disagree. Evidence that two years after their arrest and after the crimes occurred Terri Gramaje threatened to hurt defendant Merchant sometime in the future has no tendency in reason to prove that defendant Merchant was dominated by Gramaje and acted under duress created by that domination two years earlier when the crimes occurred. Stated simply, the trial court did not abuse its discretion by excluding the proffered evidence.

But even if we were to conclude otherwise, any error in excluding the jailhouse threat from evidence necessarily was harmless. The erroneous exclusion of evidence requires reversal of a conviction only if that error was prejudicial in that it resulted in a miscarriage of justice. (Evid. Code, 354.) In this context, a miscarriage of justice occurs when this court is able to say, absent the erroneously excluded evidence, that it is reasonably probable the jury would have reached a result more favorable to the defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Other evidence was presented at trial to support defendant Merchants duress claim, namely, the testimony of defendant Merchants son, R., that he saw Terri Gramaje hit his mother; defendant Merchants statement to the police that Terri had hit her and that Terris got a hard hand; and the testimony of Mandy Smyth, the roommate of K.s mother, Lisa, who stated that defendant Merchant seemed like a slave or puppet to Terri Gramaje. The noted testimony involved events that occurred and observations that were made at the time that K. was in the care of defendant Merchant and the Gramajes, and as such was probative of defendant Merchants state of mind at the time the crimes occurred. Despite that evidence, the jury rejected defendant Merchants duress defense and found her guilty of torture, child abuse, and assault, as charged. It is not reasonably probable the jury would have reached a more favorable result in this case if the evidence regarding the jailhouse threat had been admitted at trial. (People v. Watson, supra, 46 Cal.2d at p. 836.)

8.

UPPER TERM SENTENCES

The trial court imposed upper term sentences on defendant Gramajes conviction for felony child endangerment (count 2), and on defendant Merchants convictions for felony child endangerment (count 2), assault with a deadly weapon or by means likely to produce great bodily injury (count 3), and mayhem (count 5).^[9] Both defendants contend that the upper term sentences are based on facts other than those found by the jury, and therefore those sentences violate defendants rights under the Sixth and Fourteenth Amendments to the United States Constitution to have a jury determine all questions of fact. While this case was pending in the state Supreme Court, the United States Supreme Court held in Cunningham v. California that Californias determinate sentencing law runs afoul of the Sixth and Fourteenth Amendments because it allows a judge to impose an upper term sentence based on facts found true by the judge rather than the jury. (Cunningham v. California, supra, 127 S.Ct. at p. 860.) As the high court explained, [T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Ibid.)

With respect to defendant Merchant, the trial court imposed upper term sentences based on the fact that the victim was particularly vulnerable, a valid circumstance in aggravation. (Cal. Rules of Court, rule 4.421(a)(3).) The California Supreme Court recently held that because a single circumstance in aggravation is sufficient to support imposition of the upper term sentence when that circumstance is established in a manner that comports with the federal Constitution, i.e., by a jury, by the defendants admission, or based on a prior conviction, it renders a defendant eligible for the upper term sentence . . . . (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 Cal. Lexis 7604, *19].) In this case, the fact that K. was particularly vulnerable was not established in a constitutionally permissible manner because it was neither found by the jury, nor admitted by the defendant, and is not a fact based on or related to a prior criminal conviction. However, the Supreme Court also recently held that such a violation is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18: If we are able to conclude, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been to submitted to the jury, the Sixth Amendment error properly may be found harmless. (People v. Sandoval, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7606, *19].)

We have no reasonable doubt that a jury presented with