Opinion
B296334
04-22-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSSHUA NUNEZ, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. TA144794 APPEAL from a judgment of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Affirmed with directions. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Josshua Nunez of two counts of assault with intent to commit rape as well as two misdemeanors: battery on a spouse and willful infliction of unjustifiable mental suffering on a child. On appeal, Nunez challenges only the child abuse conviction. Nunez contends there was not enough evidence to support his conviction and the trial court committed instructional error by not instructing on criminal negligence. We find no prejudicial error and affirm.
FACTS AND PROCEDURAL BACKGROUND
Cinthia M. is Nunez's wife. They have four children; the youngest is Layla. Sometime in 2017 Cinthia told Nunez she was unhappy and wanted a divorce. Nunez told Cinthia "he would see [her] first 10,000 feet underground before he gave [her] the divorce." He also told her "he was going to take the children away from [her] and that [she] would never be able to see them again." Cinthia believed him "because he is a citizen, and [she] thought he could take them away."
Cinthia told Nunez she didn't want to have sex but "he said that I had to because legally I was his wife and I had to do it." In late November 2017, Cinthia and Nunez and their four children were living with Cinthia's mother, her husband, his brother, and Cinthia's two sisters. The three older children slept on the couch in the living room; Cinthia, Nunez, and Layla slept on a blanket on the floor. On November 27, 2017, around midnight, Nunez tried to get on top of Cinthia. He forced her clothing and bra off. He forced his penis into her vagina.
The next night, Cinthia tried to sleep "a little bit further away" from Nunez. Nunez again "insisted" on sex. Cinthia told Nunez she wanted nothing to do with him but he grabbed her by force. Cinthia told him, " 'This is a crime, and you can't be doing this.' " Nunez responded, " 'No. This is not a crime. You are my wife, and you have to do this. You're my wife, whether you like it or not.' "
Nunez again got on top of Cinthia, "started to force [her] clothing off," and tried to kiss her. She pushed him and tried to keep her knees together. He put his penis into her even though she struggled the whole time. Cinthia was "crying and crying."
The next night, November 29, 2017, Cinthia and the children returned from a tree lighting. Cinthia and Layla were lying on their blanket on the floor and looking at Cinthia's phone. Nunez began to push Cinthia, accusing her of seeing someone else, and "getting angrier." Nunez "got upset because he saw [Cinthia] was not paying attention to him" "so he grabbed the phone, and . . . hit [her] with it." Cinthia "felt the taste of . . . blood." Nunez told her, " 'You see this happens to you because you don't listen to me.' "
Nunez turned and grabbed Cinthia by the neck. He squeezed her neck "hard." Cinthia's "face was hot in pain . . . because of the pressure." When Layla saw her father grab her mother by the neck, she began to cry. Layla "started to scream, 'No, Poppy. No.' " Layla asked her father, " 'Why are you doing this to her?' " Nunez "twist[ed] a little harder and then . . . let [her] go." Nunez told Cinthia, " 'You see what you made me do?' "
We recognize the correct spelling is likely "Papi" but we quote the reporter's transcript.
"The phone dropped," and Layla picked it up. Cinthia told Layla, "[L]et's go get some water." Nunez grabbed Cinthia's arm as she got up and said, " 'Where are you going?' " When Cinthia went into the bathroom, she saw "a very small cut on the lip." Cinthia knocked on her sisters' door; Layla was still crying. One of Cinthia's sisters called the police.
The People charged Nunez with two counts of spousal rape in violation of Penal Code section 262, subdivision (a)(1) (counts 1 and 2); one count of felony infliction of corporal injury on a spouse in violation of section 273.5, subdivision (a) (count 3); and one count of inflicting mental suffering on a child or permitting a child to be placed in a situation where her health is endangered in violation of section 273a, subdivision (b), a misdemeanor (count 4).
References to statutes are to the Penal Code.
The case went to trial in December 2018. The prosecution called Layla as a witness. Layla was then six years old. Despite the prosecutor's repeated efforts to get Layla to answer questions, the child was not able or willing to testify. Layla simply did not respond to a number of questions. The trial court expressed concern about whether Layla even was competent to testify. Eventually Layla testified that her mom got hurt but, when asked how that happened, she answered, "Um." Finally, when asked if she wanted to leave, Layla nodded her head and counsel acquiesced and excused the witness.
The defense rested without calling witnesses.
The jury acquitted Nunez of spousal rape but convicted him of the lesser crime of assault with intent to commit rape in violation of section 220, subdivision (a) (counts 1 and 2). The jury also acquitted Nunez of felony spousal abuse but convicted him of the lesser crime of battery on a spouse in violation of section 243, subdivision (e)(1) (count 3). The jury convicted Nunez of the misdemeanor of infliction of mental suffering on a child (count 4). The trial court sentenced Nunez to eight years and four months in state prison: the upper term of six years on count 1, plus 16 months as one-third the midterm on count 2, plus one year on count 3. On count 4, the court sentenced Nunez to six months in custody and stayed that sentence under section 654.
DISCUSSION
1. Substantial evidence supports Nunez's conviction
Nunez contends there was insufficient evidence to support his conviction for misdemeanor child abuse because his conduct—hitting Cinthia in the face with her phone and then grabbing her neck and squeezing it hard as Layla lay next to her—was not as "egregious" as that in various reported cases. We are not persuaded.
In considering the sufficiency of evidence in a criminal appeal, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—so that any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Burton (2006) 143 Cal.App.4th 447, 451 (Burton); People v. Johnson (1980) 26 Cal.3d 557, 578; In re L.K. (2011) 199 Cal.App.4th 1438, 1446.) We must " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (Johnson, at p. 576; L.K., at p. 1446.) " 'The same standard applies when the conviction rests primarily on circumstantial evidence.' " (L.K., at p. 1446.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 273a, subdivision (b) provides (in pertinent part): "Any person who, under circumstances or conditions other than those likely to produce great bodily injury or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable . . . mental suffering . . . is guilty of a misdemeanor." "[A] parent may be convicted of misdemeanor child endangerment under section 273a, subdivision (b), by engaging in serious domestic violence against the other parent while aware that his or her child is at the scene." (Burton, supra, 143 Cal.App.4th at p. 450.) "Section 273a encompasses a wide variety of situations and includes both direct and indirect conduct." (Id. at p. 454.)
Nunez's infliction of mental harm on Layla here was indirect. There is no evidence he intended directly to inflict suffering on her, nor was she physically injured during his attack on Cinthia. (See Burton, supra, 143 Cal.App.4th at p. 454.) But Nunez grabbed the phone both Cinthia and Layla were looking at, hit Cinthia in the face with it, then grabbed Cinthia's neck and squeezed "hard." Cinthia described her face as "hot in pain . . . because of the pressure." Layla was right next to Cinthia. Layla began to cry, then screamed, "No, [Papi]. No[,]" then asked Nunez why he had done that to her mother.
Nunez attempts to contrast the facts of Burton in which the child did not witness his father's attack on his mother, S., but afterward saw her bloody face where the defendant had slashed her several times. In that case, S.'s eight-year-old son was urinating behind a wall when his father punched S. and "inflicted a series of deep cuts to her face." (Burton, supra, 143 Cal.App.4th at pp. 450-451.) When the child saw what his father had done to his mother, he screamed that they had to leave before his father came back, then tried to put his mother's car into reverse. (Id. at p. 455.) Affirming the defendant's misdemeanor conviction under section 273a, the court stated "[t]he record contains substantial evidence that defendant's attack on [S.] caused or inflicted on his older son[] unjustifiable mental suffering." The court noted, "We must bear in mind that the attacker was not just anyone, but the minor's father, and the victim was not just anyone, but the minor's mother." The court continued: "There is no doubt that defendant's attack on [S.] was a willful act, and that defendant's older son was at the scene. The record shows that at the time of the attack, defendant knew of the minor's presence." (Burton, at p. 455.)
S.'s two-year-old son also was in the car. (Burton, supra, 143 Cal.App.4th at pp. 450-451.)
The same is true here. That—fortunately—Nunez did not injure Cinthia more severely does not diminish the seriousness of the incident or the trauma to a six-year-old of watching her father begin to strangle her mother. Layla cried and screamed for her father to stop. Nunez obviously knew Layla was there: she was lying next to Cinthia on the blanket and the two had been looking at Cinthia's phone together—an activity that apparently enraged Nunez. A reasonable juror could conclude the child endured unjustifiable mental suffering as a result of Nunez's conduct.
As the Burton court explained,
"[c]hildren often witness domestic violence. (See Comment, The Child Witness as a Victim of Domestic Violence: Prosecuting the Batterer Under California's Child Abuse Statute (1998) 19 J. Juv. L. 196.) There are up to six million victims of domestic violence annually in the United States and half of these incidents occur in the presence of children. (Ibid.) Children witnessing such violence suffer adverse effects
similar to victims of direct physical and sexual abuse. (Id. at p. 197; see also [People v.] Johnson [(2000) 95 N.Y.2d 368, 372-373] & fn.) Section 273a applies to suffering resulting from direct physical and sexual abuse. It follows that section 273a should also protect children from actions that indirectly cause similar suffering."(Burton, supra, 143 Cal.App.4th at p. 456.)
2. Any instructional error was harmless
Nunez also argues the trial court violated his due process rights by failing to instruct the jury on criminal negligence. We conclude that any error did not prejudice Nunez.
Section 273a is an omnibus statute that proscribes essentially four branches of conduct. (People v. Valdez (2002) 27 Cal.4th 778, 783 (Valdez); People v. Sargent (1999) 19 Cal.4th 1206, 1215.) The mens rea required for indirect abuse—the sort of abuse charged and proven here—is criminal negligence. (Valdez, at p. 781.) "[C]riminal negligence involves ' "a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless[;] that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . or an indifference to consequences." ' " (Id. at p. 788, quoting People v. Penny (1955) 44 Cal.2d 861, 879.)
At the conclusion of the evidence, the trial court discussed proposed jury instructions with counsel. Apparently the prosecutor had edited CALCRIM No. 823, Child Abuse (Misdemeanor) (Pen. Code, § 273a(b)), to refer to Alternative 1B in the instruction: that the defendant willfully caused or permitted a child to suffer unjustifiable mental suffering. CALCRIM No. 823 includes a definition of criminal negligence and the Bench Notes instruct the court to give that definition and to include the element that "[t]he defendant was criminally negligent when [he] caused or permitted the child to [suffer]." There is no indication in the record that the prosecutor or defense counsel raised this issue with the court or asked the court to instruct on criminal negligence. Defense counsel did not object to the instruction as given on count 4.
Defense counsel did object to the inclusion of the words "physical pain" and the court struck that language before instructing the jury.
As given to the jury, CALCRIM No. 823 stated:
"The defendant is charged in Count 4 with child abuse in violation of Penal Code section 273a(b). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully caused or permitted a child to suffer unjustifiable mental suffering; [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] A child is any person under the age of 18 years. [¶] Unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances."
The court also instructed the jury with CALCRIM No. 250. In that instruction, the court told the jurors that, to find Nunez guilty of violating section 273a, subdivision (b), he must not only have committed the prohibited act but have done so with wrongful intent. The instruction continued: "A person acts with wrongful intent when he or she intentionally does a prohibited act or fails to do a required act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime."
The court gave CALCRIM No. 251 on specific intent for the spousal rape charges.
As the requisite mens rea for indirect child abuse is criminal negligence, the court should have included the second element—that the defendant was criminally negligent—as well as the bracketed definition of criminal negligence in CALCRIM No. 823. On appeal, Nunez—perhaps unaware of the bracketed language in CALCRIM No. 823 itself—argues the court should have given CALCRIM No. 253, Union of Act and Intent: Criminal Negligence. The Bench Note for that instruction states, "This instruction is provided for the court to use when instructing on an offense for which criminal or gross negligence is an element. . . . Although no case has held that the court has a sua sponte duty to give this instruction, the committee recommends that the instruction be given, if applicable, as a matter of caution."
In any event, the trial court's failure to instruct on criminal negligence was harmless beyond a reasonable doubt. (Chapman v. State of California (1967) 386 U.S. 18.) Nunez has shown no prejudice. He contends "[g]eneral criminal intent is a far less stringent mens rea standard than criminal negligence." Nunez cites no authority for this contention and it misstates the law. The jury instruction for the crime requires the prosecution to prove "[t]he defendant willfully inflicted unjustifiable . . . mental suffering on a child." Our Supreme Court has noted that "willfulness and criminal negligence are not necessarily inconsistent." (Valdez, supra, 27 Cal.4th at p. 791.) While the high court has said "[c]riminal negligence is not a 'lesser state of mind,' " it also has rejected the notion that a defendant must have "purposefully place[d] the child in a hazardous situation, while possessing a subjective awareness of this risk." (Id. at pp. 781, 789.)
Moreover, substantial evidence would have supported a jury finding that Nunez acted with criminal negligence in assaulting Cinthia in Layla's presence. By grabbing the phone that his wife and daughter were watching together, hitting Layla's mother in the face with it, then squeezing her neck "hard" while his daughter screamed, cried, and begged him to stop, Nunez chose to engage in conduct that was such a departure from what would be the conduct of an ordinarily prudent or careful person under the same circumstances as to reflect an indifference to the consequences. (Valdez, supra, 27 Cal.4th at p. 788.)
3. The trial court must correct the abstract of judgment
The Attorney General notes the abstract of judgment does not list the sentences of one year and six months, respectively, on counts 3 and 4. We direct the superior court to correct the abstract.
DISPOSITION
The trial court is directed to correct the abstract of judgment to reflect the sentences on counts 3 and 4 and to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation. We affirm Nunez's conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
Retired Presiding Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.