Opinion
C095682
06-08-2023
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO ALCANTAR, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. STK-CR-FECOD-2018-0008813)
MAURO, Acting P. J.
A jury convicted defendant Roberto Alcantar of first degree murder and child abuse homicide for the killing of two-year-old Ares, the child of defendant's girlfriend Maria. The jury also convicted defendant of felony child abuse against two of Ares's brothers, Alfredo and Angel.
Defendant now contends (1) the evidence was insufficient to sustain any of the convictions, (2) the trial court gave an erroneous murder-by-torture instruction, (3) the felony child abuse instruction was prejudicially incorrect because it omitted an essential element of the crime, (4) the trial court abused its discretion by denying a motion for mistrial, (5) the trial court allowed the jury to make unconstitutional permissive inferences from evidence that defendant committed domestic violence against Maria, (6) the trial court's definition of great bodily injury was incorrect, and (7) trial counsel was ineffective concerning several jury instructions.
Finding no prejudicial error, we will affirm the judgment.
BACKGROUND
Maria and defendant took Ares to the hospital emergency department. Ares was badly beaten and unresponsive. Doctors and nurses worked to reestablish vital signs, but eventually they pronounced Ares dead. As the doctors and nurses were working on Ares, defendant stood by with a smile on his face, which struck a doctor as peculiar. Because Ares's injuries indicated abuse, hospital staff informed police, and defendant and Maria were detained at the hospital.
At the time of Ares's death on Saturday, July 14, 2018, defendant lived with Maria and her children Alexa (10), Alfredo (5), Angel (4), and Ares (2). Caroline, the two-month-old daughter of defendant and Maria, also lived in the household.
One month before Ares's death, Maria sent defendant a text message in a mix of Spanish and English. The translation said, among other things, that defendant should leave Ares alone, that Maria could not see her son like that again, that Ares was crying and in pain and his hands were bad, and that defendant should please respect her because she could not see her son the way he looked.
Defendant expressed frustration with the boys' lack of discipline. He would tell Maria she was too soft on them. He said bruising on the boys was due to their roughhousing.
After Alexa told Maria defendant had been hitting the boys in the evenings while Maria was at work, Maria talked to the boys. She asked whether defendant was hitting them, but they did not want to answer. Defendant came into the room smiling and asked the boys if he hit them. The boys did not want to talk and shook their heads no.
After that talk, defendant continued to hit the boys while Maria was at work. He also bit Ares and punched him in the chest. The autopsy showed that Ares had bite marks on his hands, head, foot, and penis. Defendant would wrap Ares tightly in a sheet to restrain him before putting him to bed. On one occasion, defendant kicked Ares with a steel-toed boot.
The day before Ares died, Alexa heard the boys crying and screaming from a bedroom. She could also hear hitting. Defendant walked out of the room smiling. Alexa found her brothers sitting in the corner of the room, looking at the door. They looked scared and did not want to move. Ares looked pale and threw up. Defendant texted Maria, who was at work, about the boys misbehaving. He told her a neighbor asked if everything was okay because the neighbor heard Ares crying. Defendant told Maria she needed to be harder on the boys. Maria testified that when she returned from work, Ares had new injuries.
Autopsy photos show Ares injured from head to toe. The pathologist said there were multiple skin abrasions, bruises, and lacerations, along with internal hemorrhages around the bladder and in the abdomen, lining of the rectum, and transverse colon. The pathologist said there was also a prolapse of the rectum.
The immediate cause of death was internal bleeding in the abdomen caused by blunt force trauma. The pathologist testified that old injuries may have weakened the blood vessels in Ares's abdomen and that the final injury, inflicted less than one day before Ares died, resulted in the internal bleeding.
A jury convicted defendant of the following: first degree murder of Ares (Pen. Code, § 187, subd. (a) -- count 1), child abuse homicide of Ares (§ 273ab, subd. (a) -- count 2), felony child abuse of Alfredo (§ 273a, subd. (a) -- count 3), and felony child abuse of Angel (§ 273a, subd. (a) -- count 4). At a bifurcated bench trial, the trial court found true the allegation that defendant had a prior strike conviction for rape. (§§ 667, subd. (d); 1170.12, subd. (b).)
Undesignated statutory references are to the Penal Code.
On the count 1 murder conviction, the trial court sentenced defendant to an indeterminate term of 25 years to life, doubled to 50 years to life, and imposed the same term for the count 2 child abuse homicide conviction but stayed the count 2 sentence under section 654. On the count 3 and 4 felony child abuse convictions, the trial court imposed consecutive determinate terms of two years eight months on each, for an aggregate determinate term of five years four months.
Additional facts and procedure are set forth in the discussion as pertinent to the contentions on appeal.
DISCUSSION
I
Defendant contends the evidence was insufficient to sustain the verdicts in several respects.
When we review contentions that the evidence was insufficient to sustain the verdicts, we must determine whether there was substantial evidence - that is, reasonable and credible evidence of solid value - to support the jury's verdicts, and we must presume the existence of every fact supporting the judgment that could reasonably be deduced from the evidence. Conflicts in the evidence, even those casting some suspicion on the verdicts, do not justify reversal if the evidence supporting conviction is substantial. (People v. Burgess (2023) 88 Cal.App.5th 592, 603.)
Defendant attempts to debunk or contradict the evidence against him, but we must view the evidence in the light most favorable to the judgment, and we do not reweigh the evidence or choose between competing inferences. (People v. Williams (2018) 23 Cal.App.5th 396, 408.) Our focus is whether, considering the record as a whole, substantial evidence supports the verdicts.
A
Defendant claims the evidence was insufficient to establish that he inflicted the fatal injuries on Ares. He argues no one saw him inflict the injuries.
The standard of review for substantial evidence is the same when the evidence is circumstantial. We determine, after reviewing the whole record, whether the identity evidence was sufficient for a reasonable trier of fact to find guilt beyond a reasonable doubt. But it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. (People v. Bean (1988) 46 Cal.3d 919, 932933.)
One month before Ares's death, Maria sent defendant a text message asking defendant to stop hurting Ares. Alexa subsequently told Maria that defendant was hitting the boys while Maria was at work. After Maria spoke with the boys, defendant continued hitting the boys while Maria was at work. In addition to hitting Ares, defendant also bit and punched him. Ares had bite marks on his hands, head, foot, and penis. Defendant kicked Ares and wrapped him tightly in a sheet.
The evening before Ares died, Alexa heard the boys screaming in a bedroom and she also heard hitting. Defendant came out of the room smiling, and she found her brothers sitting in the corner. Maria testified that Ares had new injuries when she returned from work. Ares died the next morning of internal injuries caused by blunt force trauma to his abdomen.
A jury could reasonably conclude from this evidence that defendant inflicted the fatal injuries by applying blunt force to Ares's abdomen in the bedroom the night before Ares died of internal injuries. Consequently, we need not consider defendant's theories about how it may have been someone else who inflicted the fatal injuries.
B
Defendant next contends the evidence was insufficient to sustain a conviction of first degree premeditated and deliberate murder or first degree murder by torture. While the trial court instructed the jury on two theories of first degree murder -- premeditated and deliberate murder and first degree murder by torture -- the prosecutor relied solely on a theory of first degree murder by torture. Because the first degree murder verdict was not based on a specific theory, and evidence of guilt was sufficient if it supported either theory, we will proceed directly to defendant's arguments concerning the murder-by- torture theory. (People v. Nelson (2016) 1 Cal.5th 513, 552 [verdict valid if facts support one of two alternative theories of guilt].)
Defendant contends the evidence was insufficient to sustain first degree murder by torture because his purpose was to impose discipline and there was insufficient evidence the fatal act involved a high probability of death.
" 'All murder which is perpetrated by means of . . . torture . . . is murder of the first degree.' (§ 189.) Murder by torture requires (1) an act or acts causing death that involve a high degree of probability of death, (2) a causal relationship between the torturous act and death, (3) a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain on a person for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose, and (4) commission of the act or acts with such intent." (People v. Edwards (2013) 57 Cal.4th 658, 715-716 (Edwards).)
The prosecutor argued defendant inflicted the pain for a sadistic purpose. A sadistic purpose is "infliction of pain on another person for the purpose of experiencing pleasure." (People v. Raley (1992) 2 Cal.4th 870, 901.) Here, the evidence supports a reasonable jury inference defendant inflicted pain on Ares for the purpose of experiencing pleasure.
When defendant left the bedroom where Alexis heard screaming and hitting, she saw defendant smile. At the hospital, as the doctors and nurses were attempting to resuscitate Ares, defendant also smiled. The extent and types of injuries found on Ares further support an inference defendant was inflicting pain for his own pleasure. The evidence provides reasonable inferences defendant bit Ares in several places, including his penis, pushed an object into Ares's anus causing the rectum to protrude outside the anus, and beat Ares all over the body. (See People v. Pre (2004) 117 Cal.App.4th 413, 424 [act of biting ear was evidence of sadistic purpose].)
Defendant argues his primary purpose was to discipline and that the discipline was simply misguided. He cites People v. Steger (1976) 16 Cal.3d 539 (Steger) and People v. Walkey (1986) 177 Cal.App.3d 268 (Walkey). But those cases do not undermine the reasonable inference in this case that pain was inflicted for a sadistic purpose.
In Steger, the defendant killed her three-year-old stepdaughter, who was covered head to toe with cuts, bruises, and other injuries. Convicted of first degree murder by torture, the defendant argued the evidence was insufficient to support the conviction. (Steger, supra, 16 Cal.3d at p. 542-543.) The California Supreme Court agreed because the evidence painted the defendant "as a tormented woman, continually frustrated by her inability to control her stepchild's behavior. The beatings were a misguided, irrational and totally unjustifiable attempt at discipline; but they were not in a criminal sense wilful, deliberate, or premeditated." (Id. at p. 548.) The Supreme Court concluded: "All we hold is that here the prosecution did not prove defendant murdered her stepchild with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain. It follows that the trial court erred in giving an instruction on torture murder." (Id. at p. 549.)
Defendant argues the evidence in this case also shows no more than a misguided attempt to discipline. But the extent and types of injuries to Ares and defendant's smiles indicate a more sinister aspect, the intent to inflict extreme and prolonged pain for defendant's pleasure. While the beatings may have been inflicted under the guise of discipline, the evidence supported the jury's reasonable inference that defendant had a willful, deliberate, and premeditated intent to inflict severe and prolonged pain and suffering for his own pleasure.
Walkey also does not support defendant's argument. In that case, the defendant killed his girlfriend's son by beating him and causing internal injuries. The victim in that case had bite marks and old bruises. (Walkey, supra, 177 Cal.App.3d at pp. 271-272.) Convicted of first degree murder, the defendant argued on appeal that the evidence did not support a murder-by-torture instruction. (Id. at p. 274.) Relying on Steger, the court held that the evidence showed only a misguided attempt to discipline and was insufficient to show the defendant's primary purpose was to cause the child to suffer. (Id. at p. 276.)
As with Steger, there was no evidence in Walkey, other than the severity of the injuries, that the defendant had an intent to inflict severe and prolonged pain and suffering for his own pleasure. But here there was additional evidence, including defendant's apparent pleasure in inflicting the pain and suffering. For this reason, the evidence, considered as a whole, is sufficient to support the first degree murder-by-torture conviction.
Defendant further argues there is insufficient evidence that the fatal act involved a high probability of death. According to the pathologist, Ares's fatal injury was the blow or blows to his abdomen that caused him to bleed to death internally from the mesentery, the colon, and the bladder. The bruising on Ares's abdomen indicated more than one blow, but it was also possible one blow caused all the damage.
"The' "finding of murder-by-torture 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."' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 716.)
Defendant points to the prosecutor's closing argument and responds that there is no evidence he punched Ares with the power of a boxer. But the prosecutor's argument was not evidence and does not limit our consideration of the evidence. (See People v. Perez (1992) 2 Cal.4th 1117, 1126.) An emergency room doctor testified that the injuries she saw on Ares required a "significant amount of force" and "very high force." The testimony related specifically to the condition of Ares's ears, but the jury could reasonably infer from this testimony, as well as the extent of Ares's injuries, that defendant's attacks on the rest of Ares's body, including the abdomen, were done with great force.
Defendant claims Ares may have been more susceptible to internal bleeding because of weakened blood vessels, and thus a less forceful blow may have caused the internal hemorrhaging. But the jury could conclude from the evidence that Ares's blood vessels had been weakened from the cumulative effect of the beatings. Defendant beat Ares so much and so hard that it cumulatively caused the internal bleeding that killed Ares. This is not a case in which a single blow unpredictably caused death. (People v. Spring (1984) 153 Cal.App.3d 1199, 1205 [weak punch not evidence of high probability of death].)
Defendant subjected Ares to beatings and abuse all over his body, including his mouth, head, ears, stomach, back, chest, anus, penis, and abdomen. The beatings were conducted with enough force to leave Ares badly injured and hemorrhaging internally. Subjecting a two-year-old to a course of high force blows all over the body, including to the abdomen, involved a high probability of death. Defendant's contention to the contrary lacks merit.
C
Defendant further contends that, if we conclude the evidence does not support a first degree murder conviction, it also does not support reducing the conviction to second degree implied-malice murder. Having concluded the evidence supports the first degree murder conviction, we need not consider this contention.
D
In addition, defendant claims the evidence is insufficient to support a conviction for child abuse homicide under section 273ab, subdivision (a) (count 2) because the evidence did not show defendant was aware of facts that would lead a reasonable person to know the act would result in great bodily injury.
"Section 273ab defines the offense of child abuse homicide. 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.' [Citations.]" (People v. Wyatt (2010) 48 Cal.4th 776, 780, fn. omitted (Wyatt).)
Defendant disputes only the third element, but he does so by arguing that a "reasonable person would not 'realize' that a weak or moderate punch could rupture already weakened blood vessels in the mesentery." We have already rejected defendant's claim that the blow or blows he inflicted on Ares were anything other than with great force. Accordingly, his argument that a reasonable person would not have realized his beatings of Ares would have caused great bodily injury fails. His sufficiency-of-the-evidence contention lacks merit.
E
The jury convicted defendant on count 3 of felony child abuse against Alfredo under section 273a, subdivision (a). Defendant contends the evidence was insufficient to sustain this conviction because there was no evidence Alfredo suffered unjustifiable pain, that defendant inflicted such pain, or that defendant's actions were likely to produce great bodily injury.
Section 273a, subdivision (a) provides, as applicable to this case: "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 . . . shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years."
Alfredo was five years old when defendant beat him and his brothers in a bedroom the evening before Ares died. Alexa heard screaming and hitting. Defendant later walked out of the room smiling. Alexa found her brothers sitting in the corner of the room. Alfredo sustained injuries, including abrasions and bruises, to his left ear, forehead, back, right leg, right knee, and right ankle. Even before the episode in the bedroom, defendant physically abused Alfredo and his brothers. Maria noticed bruising on their arms and legs after they had been in defendant's care. And whenever defendant came home, the boys would stop playing, get scared, and cry.
The jury could reasonably infer from the evidence that defendant inflicted unjustifiable pain on Alfredo. The evidence was also sufficient to establish that the abuse was committed under circumstances likely to produce great bodily injury. (See People v. Clark (2011) 201 Cal.App.4th 235, 243 [elements of felony child abuse conviction].)
Defendant nevertheless claims there was insufficient evidence that his discipline of the boys was unreasonable. For this proposition, defendant cites authority that a parent may reasonably discipline a child without being criminally liable. (People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.) But the jury was not required to believe that defendant's beatings of Alfredo and his brothers were meant as discipline or that any such discipline was reasonable. Indeed, the evidence showed that, even if defendant began with discipline in mind, he inflicted such discipline in an unreasonable and cruel manner constituting felony child abuse.
F
Moreover, defendant asserts the evidence was insufficient to support the count 4 felony child abuse conviction involving four-year-old Angel under section 273a, subdivision (a). The same evidence discussed above with respect to Alfredo also applies to Angel, except for the injuries inflicted. Angel's injuries were even worse. About a week before Ares's death, Angel had a severe gash on his right ear, with bruising and swelling. He had cuts and scraping from fingernails on his ears and neck, behind his ears, and across his back. The day after Ares died, an examination of Angel revealed bruising on his right forearm, his left and right front thighs, his right pelvic area and upper thigh, and the top and back of both legs.
As with Alfredo, the evidence concerning Angel was sufficient to establish that defendant inflicted unjustifiable pain on Angel, the injuries were not the result of reasonable discipline, and the abuse was committed under circumstances or conditions likely to produce great bodily injury.
All of defendant's sufficiency-of-the-evidence arguments are without merit.
II
Defendant contends the trial court gave an erroneous murder-by-torture instruction, causing prejudice.
The trial court gave the standard murder-by-torture instruction, with one change that we will discuss later. The standard murder-by-torture instruction is part of CALCRIM No. 521, concerning first degree murder theories. It states, in pertinent part:
"The defendant is guilty of first degree murder if the People have proved that the defendant murdered by torture. The defendant murdered by torture if: [¶] 1. He willfully, deliberately, and with premeditation intended to inflict extreme and prolonged pain on the person killed while that person was still alive...."
Defendant acknowledges that the first part of the last sentence quoted accurately reflects the mental state required for murder-by-torture. To be guilty of torture, a perpetrator must have inflicted extreme and prolonged pain willfully, deliberately, and with premeditation. (Edwards, supra, 57 Cal.4th at p. 716.) However, defendant claims the last part of the sentence - "while that person was still alive" - introduced a problematic timing element because, if the perpetrator developed the requisite mental state - willfulness, deliberation, and premeditation - after inflicting the fatal injuries but before the victim died, the evidence is insufficient to convict. The willfulness, deliberation, and premeditation must precede infliction of the fatal injuries.
We are not convinced there is a timing problem because CALCRIM No. 521 requires the requisite mental state at the time a defendant "intended to inflict" extreme and prolonged pain. In any event, defendant was not prejudiced. Instructional error resulting in the omission of an element of an offense is subject to harmless-error review under Chapman v. California (1967) 386 U.S. 18 ; People v. Flood (1998) 18 Cal.4th 470, 504.) We must determine whether it appears beyond a reasonable doubt that the error did not contribute to the jury's verdict. (Chapman, at p. 24; Flood, at p. 504.)
There is no reasonable indication in this case that the jury would not have convicted defendant of murder-by-torture if the trial court had not included in the instruction the phrase "while that person was still alive." Defendant engaged in repeated abuse of the boys and he was seen smiling about it both before and after the final beating. The jury found defendant "willfully, deliberately, and with premeditation intended to inflict extreme and prolonged pain."
Defendant suggests that because there was evidence he was frustrated with the lack of discipline administered by Maria, the jury could have found that when the beating in the bedroom began it was merely defendant's misguided attempt to administer discipline, thus negating the premeditation and deliberation element, and that the jury may have found that defendant developed the intent to inflict pain for sadistic purposes only after the fatal injury had been inflicted but before Ares died. We disagree. There is no basis to conclude defendant's intent changed after the beating in the bedroom, and there is no reasonable argument that a jury hearing the evidence would have found such a change in intent.
However, it is true that the trial court made an erroneous change to the standard murder-by-torture instruction. In a murder-by-torture situation, the premeditation and deliberation element applies to the intent to inflict extreme and prolonged pain, not to the killing. (Edwards, supra, 57 Cal.4th at p. 716.) Accordingly, a proper instruction on this mental state includes the following: "A person commits an act with premeditation if he decided to inflict extreme and prolonged pain on a person before completing the act[s] that caused death. [¶] . . . [¶] A finding of torture does not require that the defendant intended to kill." (CALCRIM No. 521, unnecessary punctuation and brackets omitted.) But in this case, the trial court instructed: "The defendant acted with premeditation if he decided to kill before completing the acts that caused death. [¶] . . . [¶] A finding of torture does not require that the defendant intended to kill." (Italics added.) The trial court added the "decided to kill" language ahead of the language that torture does not require an intent to kill.
The addition of the "decided to kill" language was error, but it did not contribute to the verdict beyond a reasonable doubt. Even if the instructions were contradictory, at most the jury found that defendant intended to kill and that the elements of the crime were satisfied. This did not prejudice defendant. The jury was correctly instructed that to find murder-by-torture it must conclude defendant "willfully, deliberately, and with premeditation intended to inflict extreme and prolonged pain ...." Defendant could not have been prejudiced by the misinstruction.
III
Defendant contends the felony child abuse instruction was prejudicially incorrect because it omitted an essential element of the crime.
The jury convicted defendant of felony child abuse (§ 273a, subd. (a)) on counts 3 and 4 pertaining to Alfredo and Angel. As pertinent to this case, the elements of felony child abuse are that the defendant inflicted unjustifiable pain or mental suffering on a child, the pain or suffering was inflicted "under circumstances or conditions likely to produce great bodily harm or death," the defendant was criminally negligent, and the defendant did not act while reasonably disciplining the child. (§ 273a, subd. (a); CALCRIM No. 821.)
The trial court gave the jury a modified version of the standard instruction on felony child abuse. In listing elements of the crime, the trial court left out the element that the pain or suffering was inflicted under circumstances or conditions likely to produce great bodily injury. Instead, the trial court referred to the crime as child abuse likely to produce great bodily harm or death. It instructed the jury: "The defendant is . . . charged in Counts 3 and 4 with child abuse likely to produce great bodily harm or death, in violation of Penal Code section 273A(a)....[¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] The defendant willfully inflicted unjustifiable physical pain or mental suffering on a child; [¶] And the defendant did not act while reasonably disciplining a child. [¶] . . . [¶] The phrase likely to produce great bodily harm or death means the probability of great bodily harm or death is high. [¶] Great bodily harm means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] . . . [¶] Unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances. [¶] A child does not need to actually suffer great bodily harm. But if a child does suffer great bodily harm, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed this offense."
Defendant contends the trial court omitted an essential element of the offense because the trial court did not repeat the requirement that the abuse be likely to produce great bodily injury when it listed other elements. We agree with the People that any error was harmless beyond a reasonable doubt.
As we have already explained, Alfredo sustained injuries, including abrasions and bruises, to his left ear, forehead, back, right leg, right knee, and right ankle. Angel's injuries were worse. About a week before Ares's death, Angel had a severe gash on his right ear, with bruising and swelling. He had cuts and scraping from fingernails on his ears and neck, behind his ears, and across his back. The day after Ares died, an examination of Angel revealed bruising on his right forearm, his left and right front thighs, his right pelvic area and upper thigh, and the top and back of both legs. Even before the episode in the bedroom, defendant physically abused Alfredo and Angel. Maria noticed bruising on their arms and legs after they had been in defendant's care. And whenever defendant came home, the boys would stop playing, get scared, and cry. The evidence concerning Alfredo and Angel was sufficient to establish that defendant inflicted unjustifiable pain on them, the injuries were not the result of reasonable discipline, and the abuse was committed under circumstances or conditions likely to produce great bodily injury.
Any instructional error was harmless.
IV
During trial, a prosecution witness stated that a man, whom the jury could have inferred was defendant, lived in an apartment with a woman and children and that the man was "on ankle, so I [guess] he probably got out of jail or prison." Defendant objected, and the trial court sustained the objection. Later, defendant moved for mistrial, and the trial court denied the motion. The trial court said: "Unfortunately this is something that got through that should not have. It went very quickly. It wasn't dwelled on. And I -- I don't think this is going to have a significant [effect] on the jury." Defendant declined the trial court's offer to admonish the jury. On appeal, defendant contends the trial court abused its discretion by denying the motion for mistrial.
We review the denial of a motion for a mistrial under the abuse of discretion standard. (People v. Cox (2003) 30 Cal.4th 916, 953.) The trial court should grant a mistrial when it becomes aware of prejudice incurable by admonition or instruction. (Ibid.) Whether a particular incident is incurably prejudicial requires a subjective analysis; therefore, the trial court retains considerable discretion in ruling on motions for a mistrial. (Ibid.) It is not an abuse of discretion when a trial court denies a motion for mistrial if the trial court is reasonably satisfied that no injustice has resulted and the party's chances of receiving a fair trial have not been irreparably damaged. (People v. Eckstrom (1986) 187 Cal.App.3d 323, 330.)
"Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial [instructions or] admonishment; absent evidence to the contrary the error is deemed cured." (People v. Martin (1983) 150 Cal.App.3d 148, 163.)
Here, the challenged comment was fleeting, the defense immediately objected, the trial court sustained the objection, and the defense did not seek a curative instruction. The jury was instructed to presume defendant was innocent and that the prosecution had the burden to prove defendant guilty beyond a reasonable doubt. We presume the jury complied with the trial court's instructions to ignore testimony when an objection is sustained and to presume defendant was innocent. (See People v. Jones (2011) 51 Cal.4th 346, 371 [presumption jury followed court's instructions].) The trial court did not abuse its discretion in denying the motion for new trial.
V
Defendant contends the trial court allowed the jury to make unconstitutional permissive inferences from evidence that defendant committed domestic violence against Maria.
Evidence Code section 1109, subdivision (a)(1) permits evidence of prior acts of domestic violence "in a criminal action in which the defendant is accused of an offense involving domestic violence." An action embraces every count and allegation charged. (People v. Dallas (2008) 165 Cal.App.4th 940, 958.) Evidence Code section 1109 allows the prosecution to use a defendant's prior domestic violence to establish defendant's propensity to commit such violence. (Dallas, at p. 956.)
The prosecution introduced evidence that defendant committed domestic violence against Maria by abusing her physically and mentally. She felt she had to walk on eggshells because, if she said the wrong thing, he would hit her, even when she was pregnant. He headbutted her, slapped her, choked her, bit her, hit her head against the wall, punched her, and pinched her arms. She had to quit a job because people were asking questions about her bruises. Alexa saw defendant get on top of Maria and yell "don't make me, like, kill you."
The trial court instructed with CALCRIM No. 852A as follows: "If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit the charge -- the crimes as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient to prove that the defendant is guilty of the crimes charged. The People must still prove each charge and allegation beyond a reasonable doubt. [¶] If you decide that the defendant committed the uncharged domestic violence, you may consider that evidence and weigh it together with all the other evidence received during the trial to help you determine whether the defendant committed the crimes charged. Remember, however, that evidence of uncharged domestic violence is not sufficient alone to find the defendant guilty of the crimes charged. The People must still prove each charge beyond a reasonable doubt."
Defendant argues that, under the test established in Ulster County Court v. Allen (1979) 442 U.S. 140, 157 (Ulster County), the admission of the domestic violence evidence and the trial court's instruction allowed the jury to draw unconstitutional permissive inferences because the inferences flowing from the domestic violence evidence were irrational, thus violating his due process rights.
" 'A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Ulster County], supra, 442 U.S., at [pp.] 157-163.'" (People v. Mendoza (2000) 24 Cal.4th 130, 180 (Mendoza).) "A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion." (Francis v. Franklin (1985) 471 U.S. 307, 314 , fn. omitted.) A party challenging the instruction must demonstrate its invalidity as applied to the party. (Ulster County, at p. 157.) "Because [the] permissive inference leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination." (Ibid.) Each case is to be decided on its own facts. (Id. at pp. 162-163.)
Defendant argues the following permissive inferences flowing from the challenged evidence were irrational: that defendant was the one who committed the crimes, that defendant had the required mental state for first degree murder, that defendant's acts led to a high probability of death for murder by torture, that defendant had the required mental state for child assault homicide, and that defendant was guilty of felony child abuse. But the evidence of defendant's prior domestic abuse was proper to establish defendant's propensity to commit violence in the domestic environment. As all the crimes charged were assaultive crimes committed against fellow occupants of defendant's residence, the jury could infer from defendant's propensity to commit violence in the domestic environment that defendant committed the charged assaultive crimes in the domestic environment. (People v. Johnson (2000) 77 Cal.App.4th 410, 419 (Johnson) [legislative recognition that norm is on-going domestic violence].) But, as the trial court instructed, such evidence was not enough to convict without proof beyond a reasonable doubt that defendant committed the charged crimes.
The permissive inference based on the prior domestic violence that defendant committed the charged assaultive crimes was rational. Reason and common sense suggest a defendant who has committed domestic violence in the past will likely continue to commit domestic violence. (Johnson, supra, 77 Cal.App.4th at p. 419.) Because a permissive inference violates due process protections only if it defies reason and common sense (Ulster County, supra, 442 U.S. at 157-163; Mendoza, supra, 24 Cal.4th at p. 180), the trial court's instruction to the jury under Evidence Code section 1109 did not violate defendant's due process rights.
Defendant attempts to apply the permissive inference test of Ulster County to every element of each crime. For example, he argues it is irrational to infer the required mental state for premeditation and deliberation in the murder of Ares from his prior domestic violence against Maria. He also asserts it is irrational to infer that defendant's actions had a high degree of probability of great bodily injury or death. And he claims it is irrational to infer that he was aware of facts that would lead a reasonable person to realize his actions would directly and probably result in great bodily injury. He bases this every-element approach on the principle that guilt as to each crime necessarily includes guilt as to each element of the crime. And he cites Court of Appeal precedent that" 'inferring that he actually did commit the offense impliedly proves all of the essential elements of the current offense.' [Citation.]" (People v. James (2000) 81 Cal.App.4th 1343, 1354.)
We reject this every-element approach to the permissive inference test of Ulster County. The trial court did not instruct the jury to consider the propensity evidence when considering each element of the charged crimes. Instead, it instructed the jury it could consider the propensity evidence in deciding whether defendant was "likely to commit and did commit" the crimes.
We presume a jury acted rationally. (See Ulster County, supra, 442 U.S. at p. 157 [jury is presumptively rational].) The domestic violence evidence and instruction did not require or invite the jury to act irrationally by inferring from the domestic violence that elements not rationally related to the prior domestic violence were present. The instruction did not lead the jury to believe it could use propensity evidence to fill in gaps in elements unrelated to the rational inferences to be drawn from the evidence of prior domestic violence. For example, child abuse homicide under section 273ab requires that a person had the care and custody of a child under eight, assaulted the child, used force that to a reasonable person would be likely to produce great bodily injury, and caused the child's death. (Wyatt, supra, 48 Cal.4th at p. 780.) A rational jury would not use inferences from the propensity evidence to conclude the child was under eight or that the child died. However, a jury could use the propensity evidence to infer the defendant assaulted the child if such an inference was consistent with the remaining evidence and was proved beyond a reasonable doubt. Accordingly, defendant's approach, applying the permissive inference test of Ulster County to every element, is inappropriate under the law and under the circumstances of this case in which the trial court instructed only generally that the jury could use propensity evidence to infer defendant's guilt of the charged crimes.
Because there was a rational inference from defendant's prior domestic violence that defendant committed each of these assaultive crimes in the domestic environment, the trial court's instruction allowing the jury to draw the inferences did not violate defendant's due process rights under the Ulster County test.
VI
The trial court instructed the jury using CALCRIM No. 820 on the elements of child abuse homicide (§ 273ab), including the element that the child was assaulted with "force likely to produce great bodily injury ...." The trial court further instructed:
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." (CALCRIM No. 820.) Defendant argues this definition of great bodily injury was prejudicial error because it allowed the jury to find great bodily injury if the injury was greater than minor.
The definition of great bodily injury in CALCRIM No. 820 is the same as the definition in other CALCRIM instructions, and defendant bases his argument on cases considering the definition in other CALCRIM instructions. We will do the same. Section 273ab does not define "great bodily injury," but cases have generally defined it as "bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.]" (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Section 12022.7, subdivision (f) defines great bodily injury, as used in that section, as "a significant or substantial physical injury."
Defendant argues the phrasing used in CALCRIM No. 820 to instruct the jury that great bodily injury is "significant or substantial" and "greater than minor or moderate" allowed the jury to convict even if the harm was only greater than minor. He relies on People v. Medellin (2020) 45 Cal.App.5th 519 (Medellin). In that case, the trial court instructed the jury with CALCRIM Nos. 875 and 3160 which, like CALCRIM No. 820, defined great bodily injury as" 'significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.'" (Medellin, at p. 531.) The prosecutor in Medellin misstated the law by arguing that he was required to prove only that" '[a]n injury is greater than minor.'" (Id. at pp. 531, 533.) A panel of the Fifth District Court of Appeal concluded there was a reasonable likelihood the jury understood or applied the prosecutor's argument in an improper or erroneous manner: "The arguments left the jury with two separate definitions for great bodily injury -- greater than minor harm, or, greater than both minor and moderate harms. After these competing arguments, the court's actual instructions informed the jury great bodily injury means 'greater than minor or moderate harm.'" (Id. at p. 533, italics omitted.) The majority in Medellin concluded the prosecutor's misstatement of the law, standing alone, was insufficient to reverse the defendant's convictions, but when combined with the ambiguity in the instruction, it required reversal. (Id. at pp. 533, 535-536.)
Since Medellin, two different panels of the Fifth District Court of Appeal have revisited the issue in People v. Sandoval (2020) 50 Cal.App.5th 357 (Sandoval) and People v. Quinonez (2020) 46 Cal.App.5th 457 (Quinonez), concluding the instructional language is not ambiguous or reasonably likely to result in the jury misapplying the law.
In Quinonez, the court concluded the instructions were not ambiguous when considered as a whole. "These instructions did not allow the jury to find defendant guilty and the enhancements true upon the determination that [the victim's injury] only constituted 'moderate' harm. Instead, the instructions expressly stated the jury had to find [the] injuries were 'significant or substantial,' consistent with the well-recognized definition of great bodily injury." (Quinonez, supra, 46 Cal.App.5th at p. 466.) In addition, the court noted that counsel did not misstate the law and the defense did not argue the victim had not suffered great bodily injury, but rather that defendant's actions were accidental, and she acted in self-defense. (Ibid.) Accordingly, the court held: "The instructions given in this case correctly stated the legal definition of great bodily injury, the prosecutor's closing argument was consistent with those definitions, defendant's substantial rights were not violated, and counsel was not prejudicially ineffective for failing to object to the instructions." (Id. at p. 467.)
In Sandoval, the majority explicitly disagreed with the reasoning of Medellin and concluded that the definition of great bodily injury in the instruction was not ambiguous." '[A] jury instruction cannot be judged on the basis of one or two phrases plucked out of context ....' [Citations.] Thus, it is improper to assess the correctness of the instructional definitions of great bodily injury by focusing exclusively on the use of 'or' in the phrase 'minor or moderate harm.' Rather, that phrase cannot be divorced from the one that immediately precedes it: 'injury that is greater than' (italics added). '[I]njury that is greater than minor or moderate harm' cannot reasonably be read to mean injury that is more than minor but less than moderate. Such an interpretation simply does not make sense, legally or grammatically, particularly when the phrase is preceded by the explanation that great bodily injury means physical injury that is 'significant or substantial.'" (Sandoval, supra, 50 Cal.App.5th at p. 361.)
Here, we conclude that when considered as a whole and in context, the definition of great bodily injury in CALCRIM No. 820 informed jurors that great bodily injury meant significant or substantial physical injury, i.e., injury that was greater than moderate harm. (Sandoval, supra, 50 Cal.App.5th at p. 362.) There is no reasonable likelihood the jurors misapplied the instruction to find great bodily injury based on injury that was more than minor, but not more than moderate. We therefore find no error.
Furthermore, the majority in Medellin found it significant that the prosecutor argued to the jury that the injury need only be greater than minor. (Medellin, supra, 45 Cal.App.5th at pp. 533-535.) Here, as defendant acknowledges, the prosecutor did not make the same erroneous argument. Defendant's contention is without merit.
VII
Defendant contends trial counsel provided ineffective assistance of counsel in several ways concerning several jury instructions.
"To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland [v. Washington (1984) 466 U.S. 668, 688, 691-692 ]; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To show prejudice, a defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland, supra, at p. 694.) [¶] There is no need to address the issue of whether counsel's performance was deficient when we can dispose of an ineffective assistance of counsel claim on the ground of lack of prejudice. (In re Fields (1990) 51 Cal.3d 1063, 1079.)" (People v. Nilsson (2015) 242 Cal.App.4th 1, 26.)
On direct appeal "we may reverse 'only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.'" (People v. Arredondo (2019) 8 Cal.5th 694, 711 (Arredondo).)
A
Defendant argues trial counsel was ineffective in not objecting to the trial court's reference to intent to kill in the instruction concerning murder-by-torture. Because we have already determined that any reference to intent to kill was harmless beyond a reasonable doubt, we also conclude there is no reasonable probability defendant would have received a more favorable result if trial counsel had objected to the instruction. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694 (Strickland); People v. Ledesma, supra, 43 Cal.3d at pp. 217-218 (Ledesma).) Furthermore, trial counsel may have had a rational tactical purpose for not objecting. (Arredondo, supra, 8 Cal.5th at p. 711.)
B
Defendant next claims trial counsel was ineffective in not objecting to the trial court's failure to include in the felony child abuse instruction the element that the pain or suffering was inflicted under circumstances or conditions likely to produce great bodily injury. We have already determined that any error was harmless. Thus, there is no reasonable probability defendant would have received a more favorable result if trial counsel had objected to the instruction. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
C
Defendant further argues his trial counsel was ineffective in not objecting to the trial court's definition of great bodily injury as including greater than minor harm. Because we have concluded the trial court's definition was correct, objecting to the instruction would have been futile. The failure to object to a correct jury instruction is not ineffective assistance of counsel. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1170 (Samaniego).)
D
In addition, defendant contends his trial counsel was ineffective in not objecting to the trial court's instruction, using CALCRIM No. 852A, about drawing permissive inferences from defendant's prior domestic violence. Because we have concluded the trial court's instruction did not violate defendant's due process rights, there was no need to object to the instruction. (Samaniego, supra, 172 Cal.App.4th at p. 1170.)
E
Finally, defendant argues trial counsel was ineffective in not requesting an instruction limiting the use of evidence that Maria pleaded guilty to child neglect.
During her testimony, Maria admitted to having been convicted by plea of two counts of child neglect under section 273a, subdivision (a). As part of her plea agreement she agreed to testify against defendant. Her trial testimony did not divulge the factual basis for the child neglect counts. The trial court instructed the jury that Maria was an accomplice and that defendant could not be convicted on her testimony alone but required corroboration. The trial court also instructed the jury to view an accomplice's incriminating testimony with caution. Defendant says the prosecutor told the jury in his opening statement that Maria was convicted of child neglect because she failed to protect Ares. But there was no evidence of the factual basis of Maria's convictions presented at trial.
Defendant's ineffective assistance claim is based on his view that trial counsel should have requested a jury instruction not only that an accomplice's testimony was to be viewed with caution but also that the testimony concerning the witness's conviction could be used only for the purpose of determining the witness's credibility. (See, e.g., CALCRIM No. 316.) He proposes the theory that, without such a limiting instruction concerning the jury's use of Maria's conviction, the jury may have reasoned that someone killed Ares, and it must have been defendant because Maria was convicted only of neglect. He notes that the prosecutor argued there were only two people capable of killing Ares; thus, according to defendant, the "jurors could conclude that the issue had already been decided by the court that accepted [Maria's] plea and convicted her for failing to protect Ares from [defendant], the killer. Jurors would feel it appropriate to conform their verdicts with what the court in her case already determined."
In California, as defendant acknowledges, trial courts generally have no obligation to give sua sponte limiting instructions. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) Although trial counsel could have requested a jury instruction limiting the jury's use of Maria's conviction to a determination of her credibility, the prosecutor did not encourage the jury to use Maria's conviction in the way defendant now theorizes - that is, to propose that defendant killed Ares because a court decided Maria did not kill Ares. Furthermore, there is no evidence in this record that the jury used the evidence of Maria's conviction in that way. This record establishes neither deficiency of trial counsel nor prejudice. (Strickland, supra, 466 U.S. at pp. 691-692; Ledesma, supra, 43 Cal.3d at pp. 216-217.)
All of defendant's ineffective assistance arguments lack merit.
DISPOSITION
The judgment is affirmed.
We concur: KRAUSE, J., MESIWALA, J.