PEOPLE v. MARQUEZ

No. E064234.

THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS MARQUEZ, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Two.


Attorney(s) appearing for the Case

John P. Dwyer , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Peter Quon, Jr. , and Susan Elizabeth Miller , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

CODRINGTON, J.

I

INTRODUCTION

Defendant Juan Carlos Marquez physically abused his girlfriend's three-year-old son over the course of three weeks, culminating in killing the child by punching him in the abdomen and back. Defendant appeals from judgment entered following jury convictions for first degree murder (Pen. Code, § 187, subd. (a)1; count 1); assault of a child under eight years old, while in the defendant's care, with force likely to cause great bodily injury (GBI), and resulting in death (§ 273ab, subd. (a); count 2); and torture (§ 206; count 3). In a bifurcated trial, the court found true allegations that defendant had a prior serious felony conviction (§ 667, subd. (a)) and a strike prior (§§ 667, subds. (b)-(i), 1170.12). The court sentenced defendant to 64 years to life in prison.

Defendant contends there was insufficient evidence to support his convictions for first degree murder and torture. We conclude there was sufficient evidence and therefore affirm the judgment.

II

FACTS

Carlos was born in 2006. After his mother, Nancy B., separated from Carlos's father, Nancy and Carlos lived with Nancy's mother and later with her sister. In 2008 and 2009, Nancy worked at a restaurant with her two sisters, a cousin, and her cousin's girlfriend, Monica C. In July 2008, Nancy met defendant, who was a customer at the restaurant where she was working. They began dating in October or November 2008. On January 24, 2009, defendant and Nancy began living together in an apartment. Defendant normally watched Carlos while Nancy was at work.

After defendant and Nancy moved into the apartment, Nancy began noticing injuries on Carlos. The injuries included bite marks on his abdomen, deep wounds that looked like he had been whipped on his thighs and bottom, and bruises on his cheek. Nancy asked defendant about the bites on Carlos's abdomen. Defendant said he was playing with Carlos. Nancy had not noticed any injuries before defendant and Nancy moved to the apartment.

Defendant would not allow Nancy's family to visit or allow her to take Carlos for medical treatment of his wounds. She noticed more than 10 bite marks on Carlos. Nancy was worried but, whenever she asked defendant how Carlos got the bite marks, defendant said, "Don't worry about it." When Nancy asked defendant how Carlos got a bruise above his eyebrow, defendant said he had pushed Carlos "over the wall" because Carlos had made him mad.

Defendant told Nancy that if she reported him to the police, he would harm her, Carlos, and other family members. He continually threatened her. Defendant also choked and punched her for no apparent reason. On the day Carlos died, Nancy had bruises on her neck from defendant's fingers and bruises on her chest from defendant punching her. He would get mad at her for no reason. This would happen every day. Nancy testified she did not leave defendant or ask her family or the police for help because she "was not in [her] right state of mind" from drinking alcohol and using cocaine. The cocaine made her feel numb.

After noticing a bruise on Carlos's cheek on February 12, 2009, Nancy made arrangements for defendant's mother to babysit Carlos because Nancy wanted to get Carlos away from defendant. Her mother and sisters did not babysit Carlos because defendant did not want Nancy or Carlos near her family. On February 12, 2009, defendant took Carlos to defendant's mother's home. Carlos stayed there for five days. On Monday, February 16, 2009, at around 5:30 or 6:00 p.m., defendant called Nancy, who was at work, and told her he was going to his mother's home to pick up Carlos. Nancy had not wanted or intended for defendant to do this. Defendant did not say why he was picking up Carlos.

Later that evening, at around 7:30 or 7:45, defendant called Nancy at work and told her she needed to come home because Carlos had fallen from the bathtub and was not breathing normally. Nancy left work early. A coworker, Monica C., drove Nancy home, which took about 15 or 20 minutes. When she got home, defendant told Nancy he had not called 911 because she was supposed to as Carlos's mother. As Nancy ran to Carlos, who was wrapped in a blanket on the living room floor, defendant finally called 911. Carlos was not moving or responding to her. Nancy noticed a new scratch extending from his chest to his stomach. He also had bite marks all over his body. He was barely breathing.

The paramedics arrived within 10 or 15 minutes. Carlos's condition did not change while waiting for them. The paramedics transported Carlos to the hospital. Defendant drove Nancy to the hospital. When they arrived, defendant saw police cars there. He grabbed Nancy and would not let her get out of the car. Defendant then drove away from the hospital and dropped off Nancy at a Denny's restaurant. Monica picked up Nancy at the restaurant and drove her back to the hospital. She never saw Carlos again after the paramedics took him from her apartment.

Nancy testified that at the beginning of the investigation, she falsely told the paramedics, coroner investigator and police that she had bitten her son. She also told the police during her initial interview that she had whipped Carlos with a wire, but conceded at trial this also was not true. Nancy admitted she had falsely told the police she had not been at work the day Carlos died. Defendant told her to say that she had been home with Carlos all day, and that Carlos fell from the tub after she left the bathroom. Nancy testified she lied at defendant's bequest because she was afraid of him. Nancy denied causing any of Carlos's wounds.

Paramedic Emanuel Vu testified he responded to a call on February 16, 2009, at 8:08 p.m., that a child fell in the bathtub. Vu arrived at Nancy's apartment in about 10 minutes. The child, Carlos, was limp, lethargic, and breathing very slowly. He was not wet and did not appear to have fallen. Carlos appeared very sick and had numerous bite marks and bruises on his chest, arms, and legs. Nancy told Vu the bite marks were "play bite marks," "for fun." Vu testified Nancy told him she had bitten Carlos. Carlos was transported by ambulance to the hospital around 8:28 p.m. Lifesaving measures were unsuccessful in reviving Carlos.

Coroner Denise Ferris testified she examined Carlos's body on February 16, 2009. She observed several bite marks and bruises in various stages of healing on Carlos's body, including on his face, abdomen, back, arms and legs. There was also an abrasion and bruises to the base of Carlos's penis and scrotum.

Forensic pathologist Mark Fajardo reviewed the autopsy results and concluded Carlos's death was caused by blunt force to his abdomen. Carlos's injuries included a large bruise on his left cheek, which was caused within 24 hours of his death; multiple old and new injuries, from recent to about a month old, which included multiple bite marks on his abdomen, chest, legs, and arms; linear scars around his neck caused by a ligature implement wrapped and pulled around Carlos's neck; other random marks on Carlos's neck; and a circular bruise below his left ear. There also was bruising and four contusions just above Carlos's belly button in the middle of his chest, consistent with someone striking Carlos with knuckles, a left elbow bruise, knuckle marks on his mid-back, and curvilineal scars on his left thigh, believed to be a week to one month old, caused by a cord.

Fajardo testified Carlos had two major internal injuries which caused significant internal bleeding: a two-inch laceration to his liver that split apart Carlos's liver and a quarter inch tear to his stomach. According to Fajardo, it would take great force to cause the two-inch liver laceration. The force would be greater than that caused by falling out of a bathtub or down stairs. There would have to be a "significant amount of energy imparted to the liver area itself," such as by impact from a fist to the area. Fajardo estimated it took 30 minutes to an hour for the amount of blood accumulated in Carlos's body cavity to flow from his liver.

A friend of defendant's, Rosa R., testified that defendant arrived at her home on February 16, 2009, at approximately 8:00 p.m. and seemed scared, nervous, and worried. Defendant borrowed her phone and made numerous calls, including calls to his mother and friends. Rosa took him shopping for clothes and a suitcase, because defendant said he was going to Mexico to find someone to stay with. Defendant told Rosa what had happened that evening and that he was not going back to his apartment. Defendant stayed at her home that night, and left the following day.

Defendant's former girlfriend, M.O., testified that in February 2009, after she and defendant had ended their relationship, defendant called and asked her to drive him to San Ysidro. He did not say why. M.O. picked up defendant at his mother's house and drove him there. She left him at the border and saw him cross over to Mexico.

M.O. further testified she had dated defendant for about three years, including in 2006. In July 2006, M.O. called the police after defendant punched her in the eyes and bit her all over her body, including her back, legs, arms, and hands. Defendant had done this to her several times. It was painful. She felt rage because she could not defend herself. On one occasion, defendant stabbed M.O. in the back with a pencil.

Defendant's younger sister testified that one time, when she was about 10 years old, defendant bit her on the cheek. She claimed they were just playing around.

III

STANDARD OF REVIEW

Defendant challenges the judgment on the ground there was insufficient evidence to support his convictions for murder and torture. When a criminal defendant challenges the sufficiency of the evidence, this court must "`review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)

"Substantial evidence must be more than evidence which merely raises a strong suspicion of guilt as mere suspicion will not support an inference of fact." (People v. Martin (1973) 9 Cal.3d 687, 695.) "We do not reweigh the evidence or reevaluate the credibility of witnesses." (People v. Clark (1996) 45 Cal.App.4th 1147, 1156.) "`"Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact]."'" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426.) "Convictions are seldom reversed based on insufficiency of the evidence." (People v. Pre (2004) 117 Cal.App.4th 413, 421 (Pre).)

IV

SUFFICIENCY OF EVIDENCE OF TORTURE

Defendant contends there was insufficient evidence of the requisite mens rea to support his conviction for torture. Defendant argues there was not substantial evidence he harbored intent to inflict cruel or extreme pain on Carlos for a sadistic purpose. We disagree.

"A person is guilty of torture if he `inflicts great bodily injury' `with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.'" (People v. Hamlin, supra, 170 Cal.App.4th at p. 1426, quoting § 206.) Although torture may be predicated on a single attack (People v. Hale (1999) 75 Cal.App.4th 94, 105-108 (Hale)), it may also be charged as a "course of conduct" crime in which a course of conduct is subject to punishment as a single violation of the statute (Hamlin, at p. 1427).

Torture under section 206 focuses on the perpetrator's mental state and not the actual pain inflicted. (Pre, supra, 117 Cal.App.4th at pp. 419-420.) Section 206 does not require permanent, disabling, or disfiguring injuries. It "only requires `great bodily injury as defined in Section 12022.7,' . . . `Abrasions, lacerations and bruising can constitute great bodily injury.'" (Hale, supra, 75 Cal.App.4th at p. 108; Pre, at p. 420.) Section 206 "does not require any proof that the victim suffered pain." (§ 206.)

Under section 206, intent to inflict "cruel" pain and suffering means an intent to inflict extreme or severe pain, and "`sadistic purpose' encompasses the common meaning, i.e., `"the infliction of pain on another person for the purpose of experiencing pleasure."'" (Pre, supra, 117 Cal.App.4th at p. 420.) "Intent to cause cruel or extreme pain can be established by the circumstances of the offense and other circumstantial evidence." (Ibid.) "`A defendant's state of mind must, in the absence of the defendant's own statements, be established by the circumstances surrounding the commission of the offense. [Citation.] The condition of the victim's body may establish circumstantial evidence of the requisite intent.'" (Pre, supra, 117 Cal.App.4th at p. 421, quoting People v. Mincey (1992) 2 Cal.4th 408, 433.)

During closing argument, the prosecutor argued defendant was guilty of torture from the time defendant began repeatedly hitting, whipping, and biting Carlos over the course of three weeks, up until the day of Carlos's death on February 16, 2009. The day Carlos died, defendant bit Carlos on the cheek, punched him in the face, and lethally punched Carlos in the stomach and back with such extreme force that Carlos's liver split open. This caused Carlos to bleed to death over a period of about an hour.

Defendant does not dispute he fatally injured Carlos on February 16, 2009, and inflicted injuries upon Carlos during the three-week period preceding Carlos's death. Rather, defendant argues that a dearth of evidence supports a finding defendant assaulted Carlos because he lost his temper, in an explosion of violence from anger, and not for a sadistic purpose. While there may have been evidence defendant acted in an explosion of violence, there was also substantial contrary evidence he acted with intent to cause extreme pain for a sadistic purpose. Because "[w]e do not reweigh the evidence or reevaluate the credibility of witnesses" (People v. Clark (1996) 45 Cal.App.4th 1147, 1156), we must affirm the conviction where there was substantial evidence of torture, regardless of there being evidence to the contrary. "We `"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Davis (1995) 10 Cal.4th 463, 509.) Here, the jury could reasonably find defendant acted for a sadistic purpose.

Even assuming the incident leading to defendant lethally injuring Carlos on February 16, 2009, was a brief explosion of violence, the brevity of the attack would not necessarily preclude a finding of torture. As explained in Pre, supra, 117 Cal.App.4th at page 420, "the torture offense in section 206 does not require that the defendant act with premeditation or deliberation or that the defendant have an intent to inflict prolonged pain. . . . Thus, the brevity of the attack does not, in and of itself, compel a conclusion the defendant must be acquitted of torture."

Defendant argues that the jury's finding that defendant acted with intent to cause extreme pain for a sadistic purpose was based on speculation and conjecture. We disagree. There was substantial evidence supporting such a finding. First, the nature of Carlos's prolific untreated wounds, in various stages of healing, reflects that Carlos had suffered extreme pain over the course of three weeks. At the time of Carlos's death, he had numerous scars and wounds caused by being punched, bitten, and whipped, and by cord constriction of Carlos's neck and thighs. Carlos had fresh wounds from physical abuse on February 16, 2009, which included a bruise on his cheek from a forceful knuckle punch, a bite wound to his chest, and fresh wounds from extremely forceful blows to Carlos's abdomen and back, causing a quarter-inch tear to his stomach and a two-inch laceration to his liver. The forensic pathologist testified Carlos's death was caused by blunt force to his abdomen, which split his liver, causing internal bleeding for up to an hour.

Second, there is overwhelming evidence that defendant caused these injuries when defendant was alone with Carlos, beginning right after defendant moved in with Nancy and Carlos on January 24, 2009. When Nancy noticed bite marks and bruises on Carlos's body after defendant moved in, she asked Carlos about the wounds. Defendant was evasive. He told Nancy not to worry about the injuries. He also told Nancy not to call the police and threatened to harm Nancy, her family, and Carlos if she did so. In addition, apparently in an attempt to prevent anyone from intervening, defendant isolated Nancy and Carlos from Nancy's family by not allowing Nancy's family to visit or see Carlos.

The evidence demonstrates defendant acted with cold-blooded intent to cause Carlos repeatedly to suffer severe pain. Defendant did not seek medical treatment for Carlos's injuries and discouraged Nancy from doing so, with the exception of calling the paramedics on February 16, 2009. By the time defendant called the paramedics, it was too late. Carlos had been bleeding from his liver injury for 30 minutes to an hour. The day Carlos died, he suffered extreme pain, as conceded by defendant. In addition, Carlos suffered excruciating pain during the previous three weeks, from defendant episodically biting, whipping, and punching Carlos, and constricting his thighs and neck with a chord.

Finally, evidence of the cruel nature of Carlos's prolific injuries was sufficient to support a finding that defendant intended to cause Carlos extreme pain for a sadistic purpose. Defendant bit Carlos all over his body. Carlos also had numerous bruises and abrasions on his face, body, arms, legs, and even on the base of his penis and scrotum. Evidence of defendant's sadistic propensity to harm others for pure pleasure, regardless of their age, included testimony by Nancy that he beat and bit her daily for no reason and testimony by defendant's former girlfriend, M.O., who testified that in 2006, she called the police after defendant punched her in the eyes, and bit her all over her body, including her back, legs, arms, and hands. M.O. stated that defendant had done this to her several times, and on one occasion, stabbed her in the back with a pencil. Defendant's younger sister also testified that one time, when she was about 10 years old, defendant bit her on the cheek.

There is no evidence defendant showed any remorse for repeatedly injuring Carlos and ultimately killing him. To the contrary, the jury could reasonably find that defendant acted with callous indifference and sadistic pleasure in repeatedly and severely injuring Carlos, a helpless, vulnerable three-year-old child. We therefore conclude there was substantial evidence supporting defendant's torture conviction.

V

MURDER BY TORTURE

Defendant contends there was insufficient evidence to support his conviction for first degree murder (§ 187). The prosecutor argued during closing argument that the jury could find defendant guilty of first degree murder based on either murder by means of torture (torture murder) or premeditated murder. The trial court instructed the jury accordingly. During closing argument, the prosecutor told the jury that, while there was sufficient evidence supporting a finding of premeditated murder, the jury should focus on finding defendant guilty based on the theory of torture murder.

Where the defendant challenges the sufficiency of evidence of a first degree murder conviction, in which the prosecution offers two theories, on appeal the defendant must demonstrate the evidence was insufficient to support both theories. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.) Here, defendant has not done so. Defendant argues there was insufficient evidence of torture murder based on the same reasons he argues there was insufficient evidence to support his torture conviction under section 206. Defendant further argues that, even if this court finds there was sufficient evidence to support his torture conviction, the evidence nevertheless is insufficient to support his torture murder conviction because proof is more demanding when proving torture murder. As explained in Pre, supra, 117 Cal.App.4th at page 420, the intent required for a torture conviction under section 206 "differs from the intent required for murder by torture since the torture offense in section 206 does not require that the defendant act with premeditation or deliberation or that the defendant have an intent to inflict prolonged pain."

The elements of torture murder are: "(1) acts causing death that involve a high degree of probability of the victim's death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. [Citations.]" (People v. Cook (2006) 39 Cal.4th 566, 602.) An intent to kill the victim is not required. (People v. Jennings (2010) 50 Cal.4th 616, 643.) However, the prosecution must prove a causal relationship between the torturous acts and the victim's death. (People v. Chatman (2006) 38 Cal.4th 344, 392.) A finding of torture murder "`encompasses the totality of the brutal acts and the circumstances which led to the victim's death. [Citations.] The acts of torture may not be segregated into their constituent elements in order to determine whether any single act by itself caused the death; rather, it is the continuum of sadistic violence that constitutes the torture.'" (Jennings, at p. 643, quoting People v. Proctor (1992) 4 Cal.4th 499, 530-531.)

Defendant argues there is no evidence of defendant's intent on February 16, 2009, or of how long the assault lasted. We disagree. There is substantial evidence establishing both elements of torture murder. There was strong evidence that defendant's acts leading to Carlos's death, involved a high degree of probability Carlos would die. There was evidence of a pattern of conduct in which defendant frequently physically abused Carlos while alone babysitting the vulnerable three-year-old child. Carlos's wounds revealed that defendant frequently inflicted excruciating pain on Carlos by biting, whipping, and punching Carlos. On the day of his death, there was a high probability Carlos would die from defendant punching the three year old in the abdomen and back with such force that the impact split Carlos's liver and tore his stomach.

The evidence also was more than sufficient to support a reasonable finding as to the second element of torture murder; that defendant intended to inflict extreme pain on Carlos for the purpose of defendant experiencing cold-blooded, sadistic pleasure. Defendant argues there was insufficient evidence he specifically intended, premeditated, and deliberated in inflicting the injuries that led to Carlos's death. Evidence of planning, motive, and manner of the killing may assist in reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) Such evidence, however, is not exclusive. Other types and combinations of evidence may also be considered. (Ibid.) "`"`Deliberation' refers to careful weighing of considerations in forming a course of action; `premeditation' means thought over in advance. [Citations.]" [Citation.] "`Premeditation and deliberation can occur in a brief interval. "The test is not time, but reflection. `Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.'"' [Citation.]" [Citations.]' [Citation.]" (Ibid.)

Defendant argues the only evidence explaining his actions was evidence he told Nancy a bruise on Carlos's eyebrow was the result of defendant getting mad at Carlos and pushing him "over the wall." Defendant argues this evidence shows defendant injured Carlos in this instance and on the other occasions because of explosive anger. While there may have been evidence supporting a finding defendant acted out of rage, there was also substantial evidence he acted with willful, deliberate, and premeditated intent to inflict extreme pain and suffering for a sadistic purpose when injuring Carlos. Because there was substantial evidence supporting such a finding, this court must defer to the findings of the jury that support the torture murder conviction. "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact," and this court must review the whole record in the light most favorable to the judgment. (People v. Young (2005) 34 Cal.4th 1149, 1181.) In doing so, we conclude there was sufficient evidence to support a finding that defendant acted with willful deliberate, and premeditated intent to torture Carlos.

Evidence that defendant acted with a sadistic purpose included evidence that, immediately upon moving in with Nancy and Carlos, defendant began physically abusing Carlos while alone with Carlos. Defendant bit, punched, and whipped Carlos. He also caused constriction wounds on Carlos's thighs and buttocks with a cord. Most of Carlos's injuries were of a type that a jury could reasonably conclude arose from a willful, premeditated, deliberate intent to harm the victim for sadistic pleasure. In addition, defendant attempted to conceal his sadistic conduct from others.

Defendant also made no reasonable efforts to seek medical treatment for Carlos's injuries. After lethally punching Carlos in the stomach and back, defendant delayed calling 911 for at least half an hour, until it was too late to save the child. Defendant also discouraged Nancy from seeking medical treatment for Carlos's injuries by intimidating, threatening, and physically abusing her as well, and by isolating her and Carlos from Nancy's family.

In addition, on the day of Carlos's death, defendant unilaterally decided to pick up Carlos, contrary to Nancy's arrangement for Carlos to remain in defendant's mother's care until Nancy came home from work. During that brief period while defendant was alone with Carlos, defendant bit Carlos and punched him with such force that there was a high probability Carlos would die. Defendant was well aware he had seriously injured Carlos, yet defendant did not seek life-saving treatment for over 30 minutes, until it was too late. A jury could reasonably have found that under these circumstances, defendant acted with willful, deliberate, cold-blooded brutality toward Carlos, ultimately leading to Carlos's death.

Relying on People v. Steger (1976) 16 Cal.3d 539 (Steger), defendant argues his torture murder conviction should be reversed because there was insufficient evidence defendant intended to inflict prolonged, extreme pain on the day he killed Carlos. In Steger, the defendant was convicted of murdering her three-year-old stepdaughter. The child died from head injuries. Her body was covered from head to toe with cuts, bruises, and other injuries caused by severe blows. Evidence revealed that most of the injuries were inflicted at different times during the last month of the child's life. The defendant failed to seek medical treatment for the injuries. The defendant testified she was continually frustrated by her inability to control the child's bad behavior. The defendant admitted she disciplined her child by beating her daily during the last week of the child's life. The defendant also admitted striking the child on the back and twice punching her in the arm, causing the child to fall down and hit her head on the floor. The defendant also confessed to the police she had beat the child, knocked the child down, banged the child's head against a wall, and struck the child on the side of the head. (Id. at p. 543.)

The court in Steger held there was insufficient evidence of torture murder. (Steger, supra, 16 Cal.3d at pp. 543, 549.) The court noted it was not enough to show the victim suffered severe pain. (Id. at p. 544.) "It is not the amount of pain inflicted which distinguishes a torturer from another murderer, as most killings involve significant pain. [Citation.] Rather, it is the state of mind of the torturer — the cold-blooded intent to inflict pain for personal gain or satisfaction — which society condemns." (Id. at p. 546.) The Steger court explained that the jury may consider all of the circumstances surrounding the killing when determining whether the defendant possessed the necessary intent to inflict extreme and prolonged pain. (Ibid.) The court further noted that cases reversing torture murder convictions have focused on the lack of evidence of calculation. In such instances, the defendant acted in a fit of anger or explosion of anger, rather than the primary purpose of the attack being to cause the victim to suffer. (Id. at p. 547.)

Here, viewed in the light most favorable to the judgment of conviction, the evidence shows that over the course of three weeks, defendant acted with recurrent cold-blooded intent to inflict pain on Carlos for personal sadistic gratification. Such ongoing acts culminated in defendant wounding Carlos so severely that Carlos died from his catastrophic injuries. Unlike in Steger, there is little, if any, evidence defendant injured Carlos out of desperation, because of an inability to control Carlos's bad behavior. To the contrary, there was evidence Carlos was well behaved, quite likely because the three-year-old feared defendant, who terrorized Carlos and his mother. Furthermore, Carlos's peculiar injuries included wounds caused by biting, whipping, and constriction with a cord, which are not typically associated with explosive rage or disciplining a child by means of corporal punishment.

Unlike in Steger, there is no evidence defendant inflicted Carlos's injuries during misguided discipline sparked by explosions of violence. Defendant relies on Nancy's testimony that, when she asked defendant how Carlos got a bruise above his eyebrow, defendant said he had pushed Carlos "over the wall" because Carlos had made him mad. But there was also substantial evidence that when defendant injured Carlos, he acted with a calculated, sadistic purpose to cause prolonged severe pain. Furthermore, there was evidence defendant callously ignored Nancy's inquiries about Carlos's injuries, lied about how the injuries were caused, and made every effort to conceal his abusive treatment of Carlos. Even if on one occasion he claimed he injured Carlos because he was angry at Carlos, there was substantial evidence supporting a reasonable finding Carlos's prolific injuries, particularly those causing his death, were caused by defendant's intent to inflict prolonged, severe pain and suffering upon Carlos for a sadistic purpose.

This court must review the totality of the evidence in the light most favorable to the judgment below when determining whether there is substantial evidence to support defendant's conviction. (Pre, supra, 117 Cal.App.4th at p. 421.) This requires according due deference to the trier of fact and not reweighing the evidence. (People v. Hamlin, supra, 170 Cal.App.4th at p. 1426; People v. Clark, supra, 45 Cal.App.4th at p. 1156.) In doing so, we conclude there was sufficient evidence to support defendant's first degree murder conviction based on the torture murder theory.

VI

DISPOSITION

The judgment is affirmed.

RAMIREZ, P. J. and SLOUGH, J., concurs.

FootNotes


1. Unless otherwise noted, all statutory references are to the Penal Code.

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