Filed 12/13/17 P. v. Thongphun CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

LAE THONG THONGPHUN,

Defendant and Appellant.


G053338

(Super. Ct. No. 09WF1880)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Lae Thong Thongphun was convicted of involuntary manslaughter and assault on a child under eight years old with force likely to produce great bodily injury resulting in death. The victim was two-year-old Fox Chau Le (Fox), who died of blunt force trauma to his abdomen while in defendant’s care. Defendant argues three issues in this appeal: first, that his confrontation rights were violated because a pathologist who did not conduct the autopsy was permitted to testify, and Fox’s death certificates were admitted into evidence; second, that the prosecutor committed prejudicial misconduct by stating, during closing argument, that Fox’s injuries showed he had been “tortured;” and third, that defendant’s sentence of 50 years to life is unconstitutional. None of these contentions have merit, and accordingly, we affirm the judgment.
I
FACTS
Defendant was charged with murder of Fox (Pen. Code, § 187) (count one) and assault on a child under eight years old with force likely to produce great bodily injury resulting in death (§ 273ab) (count two). It was further alleged defendant had served a prior prison term (§ 667.5, subd. (b)), had a serious prior offense (§ 667, subd. (a)(1)), and a prior strike conviction (§§ 667, subd. (d), (e)(1), 1170.12, subd. (b), (c)(1).)
As of August 2009, Mary Kay Concepcion lived in an apartment with defendant and her two children from a previous relationship, A.L., then four years old, and Fox, two years old. Defendant and Concepcion owned a discount store in Long Beach.
During defendant’s visits with his own children, Concepcion noticed that defendant treated his children, who were nearly the same ages as A.L. and Fox, better than he treated hers. Defendant told Concepcion that Fox needed more discipline. She did not think it was appropriate for defendant to discipline Fox, but she witnessed defendant strike the child. Fox’s father, Chau Le, also saw bruises and scars on him.
A.L. saw defendant hit Fox “a lot,” including a punch to his stomach while wearing a boxing glove. A.L. saw bruises on Fox after he was punished.
Around August 24, A.L. saw Fox with a black eye after being hit by defendant. On August 26, defendant grabbed Fox by the arm and took him into a bedroom; Concepcion heard slapping sounds and told defendant to stop. The next morning, she saw a bruise above Fox’s left eyebrow.
On the evening of August 28, Concepcion planned to go out with friends to celebrate her birthday. When she left the apartment at approximately 10:00 p.m.,
Fox and A.L. were sleeping on the living room floor, and defendant was watching television in the bedroom.
When A.L. woke up, she saw defendant step on Fox’s head and stomach. She first thought defendant was playing, but then thought he stepped hard because he was mad. Fox rolled over and coughed up blood.
At 10:41 p.m., defendant called Concepcion, and she told him to call 911. He did so, telling the 911 operator that his girlfriend’s son was nonresponsive and coughing up blood. He told A.L. to hide in her room.
Paramedic Cheyne Maule, upon his arrival at the scene, observed Fox on the ground with “a lot of blood around his face.” Paramedics rushed Fox to the hospital. Shortly thereafter, Corporal Timothy Kovacs of the Garden Grove Police Department responded as the paramedics were rushing Fox out of the apartment. Kovacs entered and saw defendant, with blood on his shirt, and A.L., who was crying.
Defendant told Kovacs that at 10:30 p.m., A.L. had told him that something was wrong with Fox. Defendant saw Fox’s eyes rolled into his head, but no blood. He said he immediately called 911 and followed the operator’s instructions, and had not moved Fox. Kovacs noted bloodstained items inside the master bedroom, although defendant told him he had never left the front room with Fox. Defendant, at that point, stated Fox was bleeding when he first saw him, so he tried to clean him with a shirt, which he had placed in the back bedroom. When asked to repeat his story, he again stated Fox had not been bleeding when he first saw him, and had performed CPR before calling 911. After the interview, Kovacs suspected abuse and set up a crime scene. Defendant was taken to the police station.
Fox was pronounced dead at the hospital approximately 30 minutes after his arrival. The treating physician’s notes stated there was blood on Fox’s face, an older bruise on the left side of his face, an abrasion on his lower back, and trauma to his left armpit. There was blood in his vocal cords, which was probably from the lungs, and from above and behind the vocal cords. The physician’s notes indicated a high suspicion of nonaccidental trauma, which was brought to the attention of the police. Concepcion later discussed Fox’s bruises with a police officer, attributing them to defendant.
At the police station, defendant was interviewed by an investigator. His story was a combination of the versions he had told Kovacs. He also told police that a month or so earlier, in June, Fox had been taken to the hospital for vomiting and lack of appetite. He eventually recovered. Defendant denied hurting Fox, but said he disciplined him “for his own good.” Defendant was arrested at the conclusion of the interview.
A.L. later gave an extensive interview in which she stated that defendant hit Fox regularly, both with an open hand and closed fist, mostly when Concepcion was not present. She stated that on the night of Fox’s death, she saw defendant step hard on Fox’s head while he was sleeping. She thought Fox died because of what defendant did to him. The record as a whole indicates numerous other instances of defendant hitting Fox.
At trial, several expert witnesses testified. As relevant to this appeal, they included Dr. Sandra Murray, an expert in pediatrics and child abuse pediatrics. She reviewed Fox’s medical records, including primary care visits, the June 2009 emergency room visit, and records relating to his death, including the autopsy. These included photographs and a CT scan performed at the June emergency room visit. She also reviewed a report prepared by defendant’s expert, Dr. Janice Ophoven.
Fox had a history of being on the low end of weight for his age. In 2008, he was between the 10th and 25th percentiles, although his height was in the 75th percentile.
Approximately six weeks before his death, on June 17, Fox was brought to the emergency room after he had been vomiting and complaining about stomach pain. His weight had dropped to under the fifth percentile for his age, and he was suffering from dehydration. He was given medication to stop the vomiting. The radiologist’s report on the CT scan ruled out appendicitis, which is what Murray felt they were primarily looking for. The radiologist had noted something in the duodenum, which is part of the intestines, but had not known what it was. Fox was discharged with instructions for Concepcion to follow-up with Fox’s doctor.
After Murray’s review of the CT scan, she observed a “very large mass” which she opined was a hematoma, which is blood inside tissue, to the duodenum. Murray believed the hematoma was caused by “very forceful abdominal trauma.” She testified that if this type of injury was accidental in a two-year old, surely somebody would have known what had happened and provided an explanation for it. Murray stated that most injuries of this type would resolve over time.
Murray further testified Fox’s pathology was due to trauma and not natural causes. His autopsy showed an injury to the connective tissue of the abdomen, called the mesentery, due to trauma. There was very recent trauma as well as older injuries. He had white patches on his body from a deep skin injury. Fox’s injuries were not consistent with accidents. Murray testified that Fox had suffered for a long time. According to Murray, “The terminal event was he bled to death, and he bled to death from blood that was inside of his GI tract. He bled to death from blood that was in the peritoneal cavity. I think it is a result of blunt force trauma to the abdomen that occurred very close to the time where he lost all of that blood.” The same injury that led to the abdominal injury likely re-injured the duodenum.
Dr. Anthony Juguilon, a forensic pathologist, also testified for the prosecution. At the time of Fox’s autopsy, he was serving as assistant chief pathologist for the coroner’s office. He had performed over 7000 autopsies and supervised hundreds of others.
Juguilon’s testimony was largely consistent with Murray’s and to that extent, will not be repeated at length. He reviewed the reports prepared by Murray and Ophoven, as well as the autopsy report and supporting materials. He also reviewed the original death certificate, which did not include a cause of death, and the final one, which said death was caused by “mesenteric artery tear and gastrointestinal hemorrhage.” He did not consult with Dr. Duong, the doctor who had performed the autopsy, about his findings.
Based on Juguilon’s review of the record, he opined that Fox died as the result of blunt force abdominal trauma which precipitated bleeding inside his abdominal tract and into his abdominal cavity. He also saw evidence of repeated child abuse.
Juguilon saw evidence of trauma that was very recent at the time of Fox’s death, less than 24 hours old, as well as trauma that was several days old, and injuries that were weeks or months old. He opined the injuries were not consistent with a healing duodenum hematoma, but due to blunt trauma to the abdomen. He also testified that Fox was malnourished, had old injuries to his pancreas, and injuries to his back visible in photographs that were due to nonaccidental trauma. None of his injuries were consistent with accidents, but they were consistent with repeated abuse from less than 24 hours before his death to several weeks earlier. He disagreed with the defense’s expert in several respects, including both the nature of Fox’s injuries and their cause.
Ophoven testified for the defense as an expert in pediatric forensic pathology. She reviewed all relevant medical reports, the police report, and the death certificate. She concurred with the other experts that Fox was a battered child and suffered unexplained injuries on multiple occasions, with the appearance of a child who had been abused.
The autopsy report, Ophoven testified, showed that Fox’s stomach and intestines were full of blood. The coroner had also noted bruises on Fox’s body, and a bruise in the mesentery tissue of the bowel. She testified this was a “classic” gastrointestinal bleed that occurred rapidly, and that Fox bled to death. She called the preexisting hematoma a “time bomb,” which had the potential to result in catastrophic complications. She believed it was the direct cause of the hemorrhage that led to Fox’s death. She testified that without it, the bleeding that occurred on the night of Fox’s death would not have been fatal. The hematoma could have been accidental or nonaccidental. She disagreed with the other experts’ presumptions that a new injury preceded the bleeding on the night of Fox’s death. She disagreed with numerous findings in the autopsy report.
At the conclusion of trial, defendant was found guilty of the lesser offense of voluntary manslaughter on count one, and guilty as charged in count two. The court dismissed the prior prison term allegation and found the remaining prior allegations true. Defendant was eventually sentenced to five years plus 50 years to life in state prison, comprised of a 25-year-to-life term on count two, doubled pursuant to the Three Strikes law, plus five years for the serious felony prior. Sentence on count one was stayed pursuant to section 654.
II
DISCUSSION
Admissibility of Juguilon’s Testimony and Death Certificates
Defendant argues the court erroneously admitted Juguilon’s testimony and the death certificates. He argues Juguilon’s testimony was based on death certificates prepared by a nontestifying medical examiner, and therefore violated his right to confrontation under the Sixth Amendment pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
By way of procedural background, defendant’s counsel objected to the anticipated testimony of Juguilon, stating his understanding was that Juguilon would testify regarding the entirety of the autopsy performed by Duong in 2009, and he was being called to “relay” Duong’s findings. Duong, however, was not unavailable, and defense counsel argued Juguilon’s testimony would violate defendant’s confrontation rights and would be hearsay. The prosecutor countered that Juguilon was being called as an expert to render an opinion on cause of death, stating that Juguilon had reviewed a number of items including the autopsy report and slides. He would be offering his own opinion and not testifying as to what Duong would have said. The death certificates were official business records.
Defense counsel disagreed: “If Dr. Juguilon is not here to testify as to the actual subject and content of the findings and the conduct of the autopsy, then my argument becomes then that we have then everyone’s expert opinions in a lot of ways wind up being rendered moot and we don’t have any evidence about the findings of the autopsy whatsoever. [¶] It is impossible for Dr. Juguilon to present a case regarding his opinion of the autopsy itself without there actually being an actual direct testimony about the findings of the autopsy. No one has [presented] the actual findings of the autopsy, and that’s exactly where the problem lies.”
The trial court eventually overruled defense counsel’s objections, stating that People v. Dungo (2012) 55 Cal.4th 608 (Dungo), provided that a pathologist could rely on another pathologist’s autopsy report to form his own independent opinion as to cause of death. Defense counsel argued Dungo was distinguishable because in Dungo, there was no testimony as to the actual autopsy findings. The trial court clarified that the autopsy report was not introduced in Dungo and there was no testimony from the examiner who prepared it. After further discussion, the court ruled the testimony admissible.
During Juguilon’s testimony, he stated he was familiar with death certificates. He stated the amended death certificate in this case was kept in the normal course of business and was prepared at or near the time of the observations it recorded, and nothing made him doubt its authenticity. The court overruled defendant’s hearsay objection when the prosecutor asked Juguilon about the death certificate’s statement regarding a cause of death, which was mesenteric artery tear and gastrointestinal hemorrhage. When asked about what the certificate stated with respect to other conditions contributing to death, the defense objected on the basis of foundation and hearsay, which the court overruled.
The prosecutor then asked: “And in this particular record . . . did it go from pending investigation [as reflected in the first death certificate] to a manner of death a homicide?” Again defense counsel objected on hearsay grounds. The court replied the document spoke for itself and sustained the objection. At the close of evidence, the prosecutor moved to introduce all exhibits, including the death certificates, into evidence. Defense counsel had no objection and the exhibits were admitted.
Under the Sixth Amendment, a criminal defendant has the right to confront and cross-examine adverse witnesses. This bars the admission of a testimonial statement adverse to the defendant when the statement was made outside of court, unless the maker of the statement is unavailable at trial and the defendant had a prior opportunity to cross-examine that person. (People v. Lopez (2012) 55 Cal.4th 569, 580-581; see Crawford, supra, 541 U.S. 36 at p. 59.) To be considered testimonial, the out-of-court statement: (1) “must have been made with some degree of formality or solemnity”; and (2) must have a primary purpose that pertains in some fashion to a criminal prosecution. (Lopez, supra, 55 Cal.4th at p. 581.)
In Dungo, the California Supreme Court addressed whether a defendant’s confrontation rights were violated where a forensic pathologist testified as to the victim’s cause of death utilizing photographs and facts taken from an autopsy report prepared by a nontestifying pathologist. (Dungo, supra, 55 Cal.4th at p. 614.) The court rejected the defendant’s claim, holding that neither of the two requisite components of a testimonial statement were present. As to the formality prong, the statements contained in the autopsy report—which was not introduced into evidence—were “less formal than statements setting forth a pathologist’s expert conclusions” and were akin to a physician’s nontestimonial “observations of objective fact” in diagnosing a patient’s injury or malady and indicating the appropriate treatment for it. (Id. at p. 619.) As to the primary purpose of the report, the court explained “criminal investigation was not the primary purpose for the autopsy report’s description of the condition of [the victim’s] body; it was only one of several purposes.” (Id. at p. 621.) “The autopsy report itself was simply an official explanation of an unusual death, and such official records are ordinarily not testimonial.” (Ibid., citing Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 324; see People v. Rodriguez (2014) 58 Cal.4th 587, 643-644; People v. Edwards (2013) 57 Cal.4th 658, 705-707; People v. Huynh (2012) 212 Cal.App.4th 285, 320-321.)
Further, in People v. Sanchez (2016) 63 Cal.4th 665, the California Supreme Court further clarified the extent to which Crawford limits a witness from relating case-specific hearsay. “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (Id. at p. 686.) Thus, an expert may rely on nontestimonial hearsay in forming an independent opinion.
With respect to Juguilon’s testimony, we find no confrontation clause violation. He was not relating testimonial hearsay, and an expert may rely on nontestimonial hearsay in forming his own opinion. (Sanchez, supra, 63 Cal.4th at pp. 685-686.) Juguilon formed his opinions based on his own review of all relevant documents. He was asked by the prosecutor what he observed from the records and related that to the jury. He was not, as defendant suggests, a mere stand in for Duong. His testimony was based on his own knowledge and observations, and did not relate any case-specific hearsay statements made by Duong. Accordingly, his testimony did not violate the confrontation clause.
As to the death certificates, the Attorney General argues defendant waived this issue on appeal when he objected to the admission of these documents into evidence based on hearsay, but not confrontation clause grounds. A failure to raise confrontation clause grounds as a basis for the objection forfeits the issue. (People v. Redd (2010) 48 Cal.4th 691, 730.)
Defendant contends this is merely “splitting hairs” and that when he objected to Juguilon’s testimony on confrontation clause grounds, he was also objecting to the admission of any exhibit discussed in his testimony. This is not reflective of California law, however, which requires a specific, timely objection to evidence. Defendant cites no California authority supporting the contention that an objection to the testimony of a witness includes all exhibits that witness might mention. This requires mind reading by both the trial and appellate court, and is simply not the law.
A careful review of the record shows no objection to the death certificates on confrontation clause grounds. There was a lengthy discussion on the record between counsel and the court before Juguilon’s testimony, and defense counsel referred at numerous points to excluding Juguilon’s testimony as a mere rehash of the autopsy report. Counsel did not refer to the death certificates at all during this discussion, although the prosecutor did mention them on one occasion. Defense counsel stated instead: “My understanding . . . is that it appears that Dr. Juguilon would be . . . testifying as to the sum and substance of the autopsy.” (Italics added.) This is a different matter than any claim as to the death certificates, which are separate from the autopsy itself.
During Juguilon’s testimony, defense counsel objected to discussion of the death certificates on hearsay grounds. But this is not sufficient to preserve a confrontation clause claim. (People v. Burgener (2003) 29 Cal.4th 833, 869.)
Accordingly, defendant failed to preserve any claim regarding the admissibility of the death certificates for review.
Even if we were to agree with defendant that the death certificates should have been excluded, we would find their admission and the testimony about them harmless. Erroneous admission of evidence in violation of a defendant’s right to confront and cross-examine witnesses requires reversal unless the People can demonstrate beyond a reasonable doubt that the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24.) Defendant asserts that the death certificates “tipped the scales” in favor of Juguilon and Murray’s opinions over Ophoven’s. But this is pure speculation. Juguilon’s testimony about the death certificates was quite brief. All three experts agreed Fox had suffered abuse based on their own independent review of the relevant documents. They were in substantial agreement on the nature of the injuries he had suffered. The death certificate failed to comment on the primary disputed medical issue, which was whether Fox’s death was caused by the older hematoma or the fresh trauma. Accordingly, any error in the admissibility of this evidence was harmless beyond a reasonable doubt.

Prosecutorial Misconduct
During Murray’s testimony, the prosecutor asked her if there was another name, beyond battered child syndrome, for Fox’s injuries. Murray replied, “torture.” Defense counsel objected and argued that a discussion of torture would be more prejudicial than probative. The court ultimately agreed the term was inflammatory and stated: “I’m going to exclude the term torture. You can get [Murray] to confirm her opinion that this did not happen once—that the physical abuse was something that happened over time.” Juguilon testified Fox had old and fresh trauma, and that he was malnourished. His injuries suggested repeated beatings over a period of time.
The prosecutor began his closing argument as follows: “Ladies and gentlemen of the jury, back on August 28th, 2009 Fox Le, two years three months old, died from shock. He lost approximately 50 percent of his blood volume due to a series of four injuries at different times, from within 24 hours of the evening of his death dating back weeks or months all in the peri-pancreatic region. [¶] He died because of this defendant right here. He physically abused, assaulted, and when you look at some of the photo[s] that you saw in trial it actually rises up to the level of torture.”
Defense counsel objected as assuming facts not in evidence. The court said the objection was “noted,” and the jury was to disregard the term torture. The prosecutor continued: “Torture is not used as a legal term because it’s not a term of legal significance. But it’s common every day meaning everybody knows that torture is the unjust inflicting of pain. And when you look at the photographs that we’ve seen and we’ll have to review here today you can make you’re your own call as to what that really was.” There was no objection to this statement.
Prosecutorial misconduct violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643; People v. Hill (1998) 17 Cal.4th 800, 819.) 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.” (People v. Morales (2001) 25 Cal.4th 34, 44.) Only misconduct that prejudices a defendant requires reversal. (People v. Fields (1983) 35 Cal.3d 329, 363.)
Defendant has waived any objection to the prosecutor’s second statement, beginning with “[t]orture is not used as a legal term . . .” for failing to make a timely objection. (People v. Kipp (2001) 26 Cal. 4th 1100, 1130.) As to the first statement, which was objected to on the basis that it assumes facts not in evidence, we do not find it so egregious as to constitute a denial of due process. Further, we do not simply infer, as defendant asks us to, the most damaging interpretation of the prosecutor’s statement. We cannot conclude, based on this single use of the term torture, that the jury was so inflamed by passion or prejudice to find the defendant guilty. Indeed, the fact that he was found guilty of voluntary manslaughter, rather than intentional murder, suggests there was no likelihood the jury took the complained-of remark literally. (See People v. Smithey (1999) 20 Cal.4th 936, 960.) This is not the “close case” defendant believes it is. Accordingly, we find no error.

Sentencing
Finally, defendant contends his sentence of 50 years to life for assault resulting in the death of a child under eight years old is cruel and unusual punishment in violation of both the state and federal Constitutions. He objects to the sentence both on its face and as applied here.
As noted above, defendant was convicted of both voluntary manslaughter and assault resulting in the death of a child under eight years old. Defendant was eventually sentenced to 25 years to life in state prison on the assault charge, plus an additional consecutive term of 25 years to life under the Three Strikes law. The 25-year term for assault resulting in the death of a child under eight years old is prescribed in section 273ab.
The primary authority to define crimes and set forth punishments is a task that belongs to the Legislature. “‘Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.’” (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214.)
With regard to defendant’s claim under the federal Constitution, the standard is whether the sentence is “‘grossly disproportionate’ to the crime.” (Harmelin v. Michigan (1991) 501 U.S. 957, 997-998 (conc. opn. of Kennedy, J.).) We conclude it is not, as have other California courts that have reviewed this same issue. (People v. Lewis (2004) 120 Cal.App.4th 837; People v. Norman (2003) 109 Cal.App.4th 221 (Norman).)
As the Norman court pointed out that, because the United States Supreme Court has held that a “sentence of life without parole is not cruel and unusual for certain nonviolent offenses, then, a fortiori, a sentence of 25 years to life is not cruel and unusual for the death of a child under age eight.” (Norman, supra, 109 Cal.App.4th at p. 230.) We agree, and see no reason to deviate from this holding (see People v. Lewis, supra, 120 Cal.App.4th at p. 856).
With respect to the test set forth in In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch), a penalty is unconstitutional under California law only if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” “Because it is the Legislature which determines the appropriate penalty for criminal offenses, defendant must overcome a ‘considerable burden’ in convincing us his sentence was disproportionate to his level of culpability.” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)
To determine whether a sentence is disproportionate, we examine the nature of the offense and the offender to determine whether the punishment is unlawfully disproportionate. (People v. Cuevas (2001) 89 Cal.App.4th 689, 702.) We look to the offense as defined by statute, as well as the facts of the offense. (People v. Crooks (1997) 55 Cal.App.4th 797, 806.) The court may also consider “the violence or nonviolence of the crime, and whether anyone was injured in its commission,” as well as “the penological purposes of the prescribed punishment.” (People v. Almodovar (1987) 190 Cal.App.3d 732, 740.) “[T]he characteristics of the offender appear to weigh more heavily in determining whether a punishment is unconstitutional as applied, rather than on its face.” (Ibid.)
As to the nature of the offense, defendant argues that the 25 years to life sentence for section 273ab is equivalent to the punishment for first degree murder. He compares the facts in Norman, where the court noted the crime was both “horrific and the defendant is a violent recidivist.” (Norman, supra, 109 Cal.App.4th at p. 230.) But in asking us to distinguish Norman on its facts, defendant misses the mark. Norman does not present the only set of facts where the sentence mandated by the Legislature is permissible.
Defendant also focuses far too keenly on the fact that section 273ab is a general intent crime. But some crimes are so serious that harboring only the intent to commit the act leads to a result of such gravity that the lack of specific intent is simply not particularly pertinent. As defined by the Legislature, section 273ab is an extremely serious crime: “Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 25 years to life.” (§ 273ab, subd. (a).) Thus, the elements of the offense are: “(1) A person, having the care or custody of a child under the age of eight; (2) assaults this child; (3) by means of force that to a reasonable person would be likely to produce great bodily injury; (4) resulting in the child’s death.” (People v. Malfavon (2002) 102 Cal.App.4th 727, 735.)
Although the crime of murder already criminalized the acts set forth in section 273ab, the Legislature made a conscious policy choice to define a separate crime, with a harsh penalty, that applies to caretakers who assault a child under the age of eight, resulting in death. “The manifest purpose of section 273ab is ‘to protect children at a young age who are particularly vulnerable.’” (People v. Wyatt (2010) 48 Cal.4th 776, 780.)
Fox was such a victim. Indeed, he was among the very most vulnerable in our society – a two-year-old boy who could not defend himself or escape. Defendant does not contest that substantial evidence of each element of the crime was present. That evidence demonstrated that he was the victim of abuse for a long period of time. He suffered another serious injury just weeks before he died, and he had both older injuries and new ones at the time of his death. He bled to death as the result of blunt force trauma to his abdomen. This was a violent crime on a small child, and whether defendant had specific intent to kill is simply irrelevant. The outcome was the same. There is simply nothing about the nature of the crime that leads us to conclude the penalty is too harsh.
As to the nature of the offender, we examine the offender’s age, prior crimes, personal characteristics, and mental state. (People v. Crooks, supra, 55 Cal.App.4th at p. 806.) The record reflects defendant had a juvenile record for grand theft as well as gang ties. As an adult, defendant was convicted of several property crimes. He had rekindled a relationship with Fox’s mother, and began abusing Fox, only a short time after being released from prison. Thus, his record reflects criminal acts graduating from property crimes to violent crimes against vulnerable victims.
Defendant’s mental state at the time of the crime was to deny all culpability, telling various stories to first responders. Rather than addressing his personal characteristics or mental state, defendant asks that we look to “‘“evolving standards of decency,”’” to strike down his sentence. (See Miller v. Alabama (2012) 567 U.S. 460, 469.) We do not see any “evolution” in such standards that suggests the assault of a two-year-old boy of such severity that it led to his death does not justify the severe sentence prescribed by the Legislature.


III
DISPOSITION
The judgment is affirmed.



MOORE, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.