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Court of Appeal, Second District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Jose Montano PULIDO, aka Jose Pulido Montano, Defendant and Appellant.


Decided: May 30, 1986

James R. Bostwick, Jr., Pomona, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Andrew D. Amerson, Supervising Deputy Atty. Gen., and Susan D. Martynec, Deputy Atty. Gen., for plaintiff and respondent.

A jury convicted defendant of one count of attempted manslaughter, one count of mayhem, one count of child beating (Pen.Code, § 273d,) 1 and five counts of felony child abuse (Pen.Code, § 273a, subd. (1)).2  As to each of the charges, save the charge of mayhem, the jury also found that the defendant had personally inflicted great bodily injury on the victim.   (Pen.Code, § 12022.7.) 3  Defendant appeals.   We affirm.

The victim in each of the counts was defendant's eight-year-old daughter.   She resided with defendant, her mother and her younger sister in a camper and garage.

Early one morning the victim appeared at a liquor store near her home.   She told the proprietor she was hungry.   The proprietor gave her some milk and graham crackers and called the police after noticing that she was terribly thin, dirty and covered with bruises, scratches and dried blood.

At trial the child described numerous beatings at the hands of her parents who used variously their hands, a belt, an electric cord, a rubber hose and a golf club.   She told of repeated blows to one of her eyes.   She has lost the sight in that eye.

A neighbor testified to seeing defendant on one occasion beating the child with a stick and dragging her by the hair.   Doctors testified to finding numerous injuries of varying ages on the child's head and body and to determining that she was in a severe state of malnutrition and in an acute need of medical attention.

Finally, the child testified that defendant on one occasion had placed a belt around her neck and lifted her from the floor in an attempt to hang her.   She fell to the floor when the belt broke.

The information alleged that all of the various offenses were committed during a time period of about four months.   The different counts were distinguished by reference to particular injuries or acts.

 Defendant's first contention is that there was insufficient evidence to support the judgment as to count 6 which charged a violation of Penal Code section 273a, subdivision (1) in connection with a head injury.

The victim testified that one of the injuries on her head was inflicted by her mother using a rubber hose.   She did, however, have yet another injury to her head and she testified that defendant had also struck her on the head with a golf club.   There was sufficient evidence to support the judgment as to that count.

 Next, defendant contends that the court erred in its instructions to the jury as to the enhancement allegations that defendant personally inflicted great bodily injury within the purview of Penal Code section 12022.7.

When the jury inquired of the judge concerning those allegations, “Must the injuries be personally inflicted?”, the judge gave the following instruction:  “The word ‘personal’ as used in connection with the great bodily injury finding ․ is defined as an act or failure to act done in person without the intervention of another.   The individual accused of inflicting great bodily injury must be the person who directly acted or failed to act, and it must be proved that this act or failure to act resulted in great bodily injury.”

Defendant argues that the instruction was erroneous in that it permitted the jury to find the enhancement allegations to be true on the basis that defendant took no action to prevent his wife from inflicting injury.   He further argues that the enhancement allegations can only apply to assaultive conduct by the defendant and cannot be proved by evidence that defendant failed to provide nourishment and medical attention to the child.

It is true that People v. Cole (1982) 31 Cal.3d 568, 572, 183 Cal.Rptr. 350, 695 P.2d 1182 held the penalty enhancement under Penal Code section 12022.7 to apply only to the person who inflicts the injury and cannot be invoked on any theory of vicarious liability.

Also in People v. Bass (1983) 147 Cal.App.3d 448, 454, 195 Cal.Rptr. 153, the court concluded that “․ the intent requirement of [Penal Code] section 12022.7 is met when such injury is caused by the deliberate act of the defendant, and not accidentally.”  (Emphasis added.)

Nothing in those opinions, however, militates against application of the penalty enhancement to crimes based on a failure to act by a person under a duty to do so.

The issue really turns on the definition of the word “inflict” and whether, as used in the statute, it was intended to require active, rather than passive, conduct on the part of the defendant or was aimed at the result, i.e., the suffering of great bodily injury, as intended by the defendant, even though the product of inaction.

Webster's Seventh New Collegiate Dictionary defines “inflict” as “to give by striking” or “to cause [something damaging or painful] to be endured.”   Thus, intentional inaction which directly causes injury is tantamount to the infliction of injury.

Without question the statute itself has as its goal the prevention of serious bodily injury.   Such purpose is served by our more liberal interpretation of the statute rather than that proposed by defendant.

 The essential elements of substantive crimes are generally a culpable state of mind and a physical result—usually one which in some way injures another person.   We thus conclude that insofar as the penalty enhancement of Penal Code section 12022.7 is concerned, it is properly applied to a defendant who commits a crime based on a failure to act in the face of a duty to act and who, by such failure, intentionally and deliberately causes the victim to suffer great bodily injury.

As applied to the case at bench, clearly defendant's sentence could properly be enhanced by the jury's finding that, in criminally failing to furnish nourishment and medical attention to his daughter (another way of saying that he failed to protect her against the ravages of malnutrition and illness ) in violation of Penal Code section 273a, subdivision (1), he intended to and did inflict on her great bodily injury.   The situation should be no different where defendant failed to protect her against physical abuse.

 In People v. Jaramillo (1979) 98 Cal.App.3d 830, 837, 159 Cal.Rptr. 771, it was pointed out that a violation of Penal Code section 273a, subdivision (1) is committed by permitting a child to be endangered under circumstances where great bodily injury is likely.   Actual serious injury is not required.   Thus the enhancement of Penal Code section 12022.7 is not subsumed by the elements of the crime itself.

The gravamen of the offense in one of its forms is the intentional and deliberate failure to prevent injury to the child.   The statute in effect imposes a duty to prevent such injury.   That duty is not limited to situations in which the injury results from a particular source or takes a particular form.

 It follows that in the case of defendant here the penalty enhancement provided by section 12022.7 could also be applied where defendant violated Penal Code section 273a, subdivision (1) by failing to prevent his wife from inflicting great bodily injury.   In such a case the enhancement would not be based on a theory of aiding and abetting or other form of vicarious liability.   His failure to prevent the injury with the intent that it be inflicted would be tantamount to the personal infliction of the injury as we have earlier described.   The trial court's instructions were correct.

Next, the evidence establishes that the numerous injuries were inflicted on the child in separate incidents and over a period of time.   The crimes, as charged, cannot be viewed as part of a single act or single course of action or conduct.  Penal Code section 654 and the various rules for its application were not involved.

 Relying on the recent case of People v. Aguilar (1984) 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198, defendant finally contends that his conviction must be reversed because he was denied his constitutional right to an interpreter at the preliminary hearing.   During that proceeding the magistrate, over defense counsel's objection, appointed a single interpreter for both defendant and his wife who was at the time a codefendant.

In Aguilar, the Supreme Court found reversible error in the borrowng of a defendant's interpreter to translate the questions to and testimony of a Spanish-speaking witness.   The court noted that a criminal defendant's right to an interpreter is based on article I, section 14 of the California Constitution, which provides in pertinent part, “A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.”   The court concluded that, while the trial court had complied with this constitutional mandate in appointing an interpreter for the defendant, it had infringed on this right when it “borrowed” the interpreter in order to translate for a Spanish-speaking prosecution witness.

In People v. Carreon (1984) 151 Cal.App.3d 559, 566, 198 Cal.Rptr. 843, it was held that the constitutional right to an interpreter extended to preliminary hearings;  and in People v. Rioz (1984) 161 Cal.App.3d 905, 912, 207 Cal.Rptr. 903, the court found error in the use of the same interpreter to translate for several codefendants.4

Although defendant has established that he did not have his own interpreter during the preliminary hearing, he has failed to demonstrate on this appeal how the trial proceedings were adversely affected by this error.   Moreover, defendant did not raise the issue at any time in the trial court.5  It is well established that irregularities in preliminary examination procedures require reversal of a conviction only if the defect can affirmatively show he was denied a fair trial or otherwise suffered prejudice as a result of the error.  (See People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, 165 Cal.Rptr. 851, 612 P.2d 941.)   Having failed to make the requisite showing, defendant's claim of reversible error must be rejected.

The judgment is affirmed.


1.   Penal Code section 273d reads:  “Any person who willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for 2, 4, or 6 years, or in the county jail for not more than one year.”

2.   Penal Code section 273a, subdivision (1) reads:  “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for 2, 4, or 6 years.”

3.   Penal Code section 12022.7 provides in part:  “Any person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he is convicted.  [¶] As used in this section, great bodily injury means a significant or substantial physical injury.  [¶] ․ The additional term provided in this section shall not be imposed unless the fact of great bodily injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact.”

4.   Aguilar, Carreon, and Rioz were each decided subsequent to defendant's preliminary hearing.   These cases leave open the question of whether Aguilar is to be applied retroactively.   The issue as to the correct standard for assessing prejudice when a criminal defendant is not afforded his right to an interpreter is presently pending before the California Supreme Court in People v. Rodriguez, Crim. No. 24124.   For purposes of our discussion here we assume, but do not hold, that Aguilar and its progeny are to be given retroactive application.

5.   At trial defendant was not required to “share” his interpreter with any other party or witness.

COMPTON, Acting Presiding Justice.

BEACH, and GATES, JJ., concur.

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