PEOPLE v. MARTIN

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Ivy Lynn MARTIN, Defendant and Appellant.

No. F014576.

Decided: January 31, 1992

Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, and John Fresquez, Deputy State Public Defender, Sacramento, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Asst. Atty. Gen., George M. Hendrickson and Edmund D. McMurray, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

Defendant, Ivy Lynn Martin, was found guilty of the first degree torture murder (Pen.Code, § 189) 1 of her three-year-old son, Jerome.   In addition, she was found guilty of child endangerment.  (§ 273a.)   She was sentenced to prison for 25 years to life for the murder;  a 4–year concurrent term was ordered for the child endangerment conviction.   Defendant appeals, claiming the evidence was insufficient to constitute murder by torture, the aiding and abetting instructions were incomplete, and concurrent terms were improperly imposed.   We affirm.

FACTS

Jerome Martin was born on April 25, 1985.   At the time she gave birth to Jerome, defendant was in the Army.   Defendant left the Army in April 1987 and met Teresa Patterson in August 1987.   Teresa and defendant began living in a Lesbian relationship.   In April 1988, Teresa, defendant and Jerome moved to California to be near some of Teresa's family.

Once they arrived in California, the three lived with Teresa's sister, Terrell Kelly, for approximately two months.   During this stay, Terrell did not notice Teresa or defendant treating Jerome badly.   Teresa, defendant and Jerome then lived with Teresa's grandmother for a short period of time, before moving into a trailer of their own.

On June 30, 1988, Jerome received treatment for a broken arm at Scenic General Hospital in Modesto.   Dr. Robert E. Caton, an orthopedic surgeon, found Jerome had a short, oblique fracture.   Jerome was not brought back to the hospital for his follow-up treatment appointment three weeks later.

Larry Logan, who lived with Patterson, defendant and Jerome for four months until approximately November 1988, testified that Patterson hit Jerome almost daily, inflicting multiple blows each day.   There were times when Patterson would take Jerome into the bedroom of the trailer;  on at least one of these occasions, Logan heard something hit the wall and then he heard Jerome crying.   Patterson's abuse of Jerome occurred mostly after defendant lost her job.   Defendant sometimes disagreed with Patterson's discipline of Jerome.   However, defendant failed to intervene to stop the beatings.   When defendant and Patterson argued about the beatings, Patterson would threaten to leave.   Defendant gave Patterson her way, especially when it pertained to Jerome.   Jerome was forced to stay in the bedroom every day.   Quite often when Jerome wanted to go to the bathroom, Patterson would not let him go;  consequently, Jerome would wet in his pants, to which Patterson would respond by hitting him.   She would also hit Jerome for no reason at all.

Kathy Hasten was a clerk at the Quik Stop market which defendant and Patterson frequently patronized.   Hasten saw Jerome in the store once with bruises on his face and a black eye.   On another occasion, Hasten went out to the car and gave Jerome a sucker.   Jerome had a black eye, a cut on his head, and bruises on his face.

Lori Bissell got to know Patterson, defendant and Jerome while they all resided at the same trailer park.   On December 19, 1988, Bissell went to their trailer.   She knocked on the door and Jerome answered.   Jerome was the only one home.   Jerome had marks on his neck, a scrape or burn mark on his nose, his face was black and blue and his eyes were almost swollen shut.   Bissell called child protective services.

Bissell saw Jerome the Thursday before his death.   On that occasion, defendant pushed Jerome into the bedroom and told him, “You know what you are supposed to be doing.”   Bissell had asked why Jerome was always in the bedroom, and Patterson said Jerome was always in trouble.   Patterson told Bissell she hated Jerome.

On Christmas Day of 1989, Patterson, defendant and Jerome went to a Christmas gathering at the home of Patterson's sister, Terrell.   Terrell noticed a mark on Jerome's nose, bruises on his face, and scratch marks on his neck.   Terrell was concerned and asked Patterson what happened.   Patterson said Jerome got in a fight at preschool.   Jerome never attended preschool.   A videotape of the Christmas gathering was made and was shown to the jury.   It pictured Jerome's battered condition.

On January 7, 1989, defendant went to the thrift store, leaving Jerome with Patterson.   Patterson came running into the store and told defendant Jerome was hurt and might be dead.   Patterson said Jerome had opened the refrigerator without permission.   Patterson grabbed his leg and Jerome fell and hit his head.   Defendant wanted to take Jerome to a doctor, but Patterson said no because of the bruises on his face.

Jerome was dead.   He was placed in the bedroom, where he remained all day.   That evening defendant buried Jerome in a shallow grave.   While defendant buried Jerome, Patterson went to the Quik Stop market and got a soda.

Patterson and defendant made up a story on the following day that Jerome was missing.   An extensive search was conducted.   Law enforcement officials became suspicious because defendant's story kept changing.   Defendant finally admitted Jerome was dead and led law enforcement officers to his body.   Jerome's body was exhumed.

Patterson and defendant were arrested for the murder of Jerome.   Patterson admitted she had previously hit Jerome 20 to 30 times.   Patterson hit Jerome because she was frustrated when she had to tell him to do things over and over again.   Jerome was kept in his room so Patterson would not have to deal with him.   Patterson admitted she burned Jerome twice with a cigarette, once by accident and once when he burned down the curtains in the bedroom.   When questioned by her grandmother as to how Jerome died, Patterson said she hit him and he fell and hit his head.

Defendant told officers she was not surprised Patterson hit Jerome.   She had never seen Patterson hit Jerome but she knew that Patterson did.   Defendant was afraid to ask Patterson about marks on Jerome's body.   Every time defendant said something to Patterson, Patterson would yell and threaten to leave.   Defendant admitted she should have stuck up for Jerome but thought maybe it would stop.   Defendant let Patterson do whatever made Patterson happy and tried not to think about anything.   Defendant wanted Patterson to love her.

Dr. William J. Ernoehazy, a forensic pathologist, performed the autopsy.   The examination of Jerome's body revealed that Jerome had received a multitude of injuries over a period of time.

A visual examination showed that Jerome's left arm was greatly distorted.   The distortion was caused by an irregularly healed fracture of the arm.   An internal examination revealed a spiral fracture.   Such a fracture is uncommon and is caused by some twisting motion, such as the grabbing and twisting of the arm.   A spiral fracture never occurs in a simple fall, and in a child of Jerome's age, it is usually caused by someone else.   The bowing of Jerome's arm was caused by the failure to follow up on treatment and/or a retraumatizing of the fracture.   The arm fracture was a painful injury.

A skull X-ray revealed Jerome had a widening of the sagittal suture line.   In this area there was also a fully formed scarring on the dura of the brain.   Such a fracture is caused by a fairly heavy trauma.   This injury occurred more than three months before Jerome's death.

Jerome had a separated shoulder.   Such an injury is caused by a fall with someone hanging onto the arm or by a jerking motion.   This too is a painful injury.   It occurred several months before Jerome's death.

Jerome had a scarring on the forehead which was somewhat circular in shape.   He had several irregular circular scars on his chest and abdomen.   These circular scars looked very much like cigarette burns.   These burn scars were healed and more than 14 days old at the time of Jerome's death.   The burn on Jerome's face, which could be seen in the Christmas video, looked like a cigarette burn that was still healing.   Repeated cigarette burns to the torso and face involve the infliction of pain.

An examination of Jerome's urinary tract revealed trabeculation.   Trabeculation is when the bladder mucosa is ridged instead of smooth.   Trabeculation is caused by the bladder being repeatedly over-distended because it is not emptied.   This condition could be caused by forcing a young child to hold his urine repeatedly for prolonged periods of time.   There was no anatomical problem in Jerome which could have caused trabeculation.   Such condition occurs only over a long period of time.   Forcing a child to hold his urine could be done for the purpose of inflicting pain.

Jerome had no lower frenulum, which is a small fibrous bend between the lower lip and the gum.   Loss of a frenulum could be caused by repeated blows to the face.   The loss of the frenulum would not occur with only one blow but would require several repeated blows over a period of time.

Jerome also had superficial abrasions over the left eyebrow, scarring on the bridge of his nose, superficial abrasions on the right and left side of his face and neck, abrasions on his flank, and finger marks and contusions on his left shoulder.   The scar on the nose was more than 10 days old.   The finger marks on the arm were recent but not fresh.   The abrasions above the left eye were one to fourteen days old.   The abrasions on the neck were less than 10 days old.   The shoulder discolorations occurred less than two weeks prior to Jerome's death.

In addition to the above injuries, Jerome had injuries relevant to the cause of his death.   Jerome had an irregular laceration of the upper lip.   The lip was badly swollen and the inside of the mouth was torn.   This injury occurred shortly before death and was caused by a blunt force trauma consistent with a fist.   The blow to the lip was done with such force that it caused a swelling of the brain.   There were two fresh contusions on the front of the brain which most likely arose from the head movement caused at the time of the blow to the lip.   There were bruises under the right and left eyes.   The bruises on the right side of Jerome's face and some of the bruises on the left side of his face were fresh, occurring within minutes of death;  they probably were caused by the blow to the lip.   Some of the bruising under the left eye was not fresh.

Jerome died from cardio-respiratory arrest (stoppage of the heart and breathing) caused by the blunt force injury to the head, resulting in swelling of the brain.   Jerome also had a hemorrhage on the back of his head which was less than two weeks old.   In addition, Jerome had minor hemorrhages in his lungs caused by a lack of oxygen.   This could have been caused by the blow to the mouth or by forcing Jerome to breathe against resistance, such as having a hand held over his mouth.

The most recent facial blow caused death.   Death would probably have occurred within a few minutes after that blow.   There was no evidence of prior cerebral edema (swelling).

Dr. Ernoehazy testified that if you have a trauma with an edema and that edema subsides, followed by an additional trauma, there is no cumulative effect.   However, if you have an edema which has not subsided and there is a new trauma, the edema is probably going to increase.   Dr. Ernoehazy was not able to determine one way or another whether Jerome had a previous edema to his brain.   Based on Dr. Ernoehazy's years of experience, it was his expert opinion that the blow to Jerome's lip and nothing else was the cause of his death.

Dr. Martin Cohen, an expert on the battered child syndrome, testified that the absence of bruises on Jerome's legs and lower body showed that he was not allowed to play or run around like a normal child.   Jerome fit the profile of a battered child.   Dr. Cohen has no knowledge or opinion as to the reason why Jerome was battered.   Jerome's injuries could have been a result of inappropriate discipline or other reasons, including the intentional infliction of pain.

Defense

Defendant testified on her own behalf.   When defendant noticed bruises and bumps on Jerome, she told Patterson not to do it again.   Patterson said she would not.   If defendant had known Patterson was beating Jerome all the time, she would have left.   She knew of only one occasion when Patterson beat Jerome.

DISCUSSION

I.Substantial Evidence

When faced with a substantial evidence challenge, we must determine, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt.  (People v. Johnson (1980) 26 Cal.3d 557, 575–578, 162 Cal.Rptr. 431, 606 P.2d 738.)

 “All murder which is perpetrated by means of ․ torture ․ is murder of the first degree.”  (§ 189.)  “Murder by means of torture is ‘murder committed with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain.’ ”  (People v. Walkey (1986) 177 Cal.App.3d 268, 274, 223 Cal.Rptr. 132.)  “ ‘The defendant need not intend that his victim die as a result of the torture, since his intention to commit acts that involve the substantial risk to human life makes him guilty of first degree murder if a death results.’ ”  (People v. Mattinson (1971) 4 Cal.3d 177, 183, 93 Cal.Rptr. 185, 481 P.2d 193.)   A murder is not a torture murder when a “killer who, heedless of the suffering of his victim, in hot anger and with the specific intent of killing, inflicts the severe pain.”  (People v. Bender (1945) 27 Cal.2d 164, 177, 163 P.2d 8.)  “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.”  (People v. Steger (1976) 16 Cal.3d 539, 546, 128 Cal.Rptr. 161, 546 P.2d 665.)

 “[M]urder by torture cannot be inferred solely from the condition of the victim's body [citation], or from the mode of assault or injury suffered [citation], but other evidence of intent to cause suffering is also required.”  (People v. Wiley (1976) 18 Cal.3d 162, 168, 133 Cal.Rptr. 135, 554 P.2d 881.)   There is no need to have multiple acts to find torture.   One “need only have inflicted extreme pain on their victim with the intent to inflict such pain for personal gain or satisfaction.”  (People v. Hoban (1985) 176 Cal.App.3d 255, 263, 221 Cal.Rptr. 626.)   The victim's awareness of pain is not an element of first degree murder by torture.  (People v. Wiley, supra, 18 Cal.3d at p. 171, 133 Cal.Rptr. 135, 554 P.2d 881.)

Defendant makes a two-pronged attack on the evidence supporting the torture murder conviction.   First, she argues there was no showing the torturous acts alleged by the prosecution caused death.   Secondly, she alleges there was no evidence Patterson had the requisite intent to torture when she fatally struck Jerome.   These claims require separate discussions.

For the moment, we focus on Patterson's activities because it must be shown that Patterson committed torture murder in order for defendant to be derivatively liable based on her failure to perform her parental duty.

A. Substantial Evidence of Causation.

Defendant asserts the conviction of first degree murder must be reversed because the evidence does not establish Jerome died as a result of the alleged torturous acts.   While Patterson inflicted serious injuries upon Jerome in the months preceding his death, those injuries had healed before death and thus could not have been utilized as a proximate cause of the torture murder of Jerome.   Defendant contends the prosecution did not assert that Patterson committed murder by torture as a result of the fatal blows struck the day Jerome died because there was no evidence that Patterson tortured Jerome on that day.

Respondent acknowledges the earlier “torturous acts” (cigarette burns, broken arm, urine retention, etc.) did not result in Jerome's death, but asserts there is no requirement that every act constituting torture must have contributed to Jerome's death.   Characterizing the series of acts as a continuum of sadistic violence constituting torture, respondent argues the final single blow was the last in a series of acts of torture perpetrated by Patterson.   Respondent asserts the jury could properly infer that the blows received earlier by Jerome may have caused edemas which had not subsided when the fatal blow was struck;  thus there was a direct causation between the earlier blows to Jerome's face and the final blow.   The final theory offered by respondent is that all of the acts of torture were related, constituting a series of acts resulting in the final torturous blow.

 Under proper circumstances, a jury might properly conclude that the torturous acts resulting in death “consisted of a combination of different painful injuries inflicted in the course of a single plan or scheme calculated to cause cruel pain and suffering culminating in death.   Thus, each separate pain-producing injury, though not necessarily fatal itself, was causally related to [the] victim's death.”  (People v. Hindmarsh (1986) 185 Cal.App.3d 334, 349, 229 Cal.Rptr. 640.)   However, we view this theory as applying only when the series of torturously inflicted injuries cumulatively result in death.2  The single plan or scheme theory does not apply to torturous injuries inflicted upon a victim which have healed and did not contribute to or were not a part of the series which resulted in the torturous death.   Healed injuries, although torturously inflicted, do not supply a causal connection between the torture and the death.   The need for a causal connection between the torturous acts and the death is illustrated by a comparison of first degree murder perpetrated by torture (§ 189) and the torture special circumstance (§ 190.2, subd. (a)(18)).

A first degree murder by torture is a murder which is perpetrated by torture.   The torture special circumstance requires that the murder was intentional and involved torture.   This distinction was discussed in People v. Hoban, supra, 176 Cal.App.3d 255, 221 Cal.Rptr. 626 when the court analyzed the meaning of the torture special circumstance.   In Hoban, the defendants contended:

“that the torture special circumstance allegation should be disallowed as the language of the section requires that the murder ‘involved’ the infliction of torture (Pen.Code, § 190.2, subd. (a)(18)).   Defendants interpret this to mean that the acts of torture must either be the same as, or occur simultaneously with, the acts that caused the victim's death.   As the act of torture in this case occurred quite some time before the victim was killed and did not result in his death, defendants contend that they are not liable under section 190.2.

“We do not accept such a narrow reading of the section.   Defendants are correct in noting that for torture to elevate a killing to the substantive offense of first degree murder under Penal Code section 189 the death must have been caused by torture.  (People v. Talamantez (1985) 169 Cal.App.3d 443, 455–456 [215 Cal.Rptr. 542]․)  However, that section of the Penal Code requires that the murder be ‘perpetrated by ․ torture.’   This is considerably narrower than the ‘involved torture’ language of section 190.2, subdivision (a)(18) and gives rise to the inference that if the electorate had intended such a construction, it could easily have adopted the ‘perpetrated by’ formulation.   Rather, the ‘involved torture’ language appears to refer to a longer period of time and encompasses torture that precedes the actual act of killing.”  (People v. Hoban, supra, 176 Cal.App.3d 255, 264, 221 Cal.Rptr. 626.)

 “Perpetrated by torture” requires a causal connection between the torturous act or acts and the death.   A “[m]urder by torture constitutes first degree murder, but differs from torture which is independent of the cause of death.”  (State v. Folk (1954) 78 Ariz. 205, 277 P.2d 1016, 1018.)   A causal connection occurs when the acts of the defendant are a substantial factor contributing to the resultant death.  “ ‘[N]o cause will receive juridical recognition if the part it played was so infinitesimal or so theoretical that it cannot properly be regarded as a substantial factor in bringing about the particular result.’ ”  (People v. Caldwell (1984) 36 Cal.3d 210, 220, 203 Cal.Rptr. 433, 681 P.2d 274.)

 Thus, the broken arm, the separated shoulder, the cigarette burns, the trabeculation, and the other healed injuries could not properly be considered as the cause of Jerome's death.   Regarding the earlier head injuries, there was insufficient evidence of prior cerebral edemas resulting in cumulative swelling.   Although Dr. Ernoehazy testified edemas can be cumulative, he stated more than once that he saw no evidence of any edemas prior to that caused by the fatal blow.   The evidence here was insufficient to uphold a finding of murder by torture based on cumulative effect of the entire series of injuries.   However, we still must determine whether the one fatal blow is sufficient to uphold the torture murder conviction.

In her reply brief, defendant contends that it is absurd to find that the single blow to Jerome's face on January 7, 1989, can in and of itself serve as a link between the death and the prior acts alleged to be torturous.

 A finding of torture can be based on one act;  there is no need for multiple acts.  (People v. Hoban, supra, 176 Cal.App.3d 255, 263, 221 Cal.Rptr. 626.)   Although the prior acts of abuse perpetrated on Jerome cannot be utilized to provide the torturous causal connection for Jerome's death, they are highly relevant to the question of whether on January 7 the blow inflicted to Jerome's face was done with a torturous intent, i.e., was intended to inflict extreme and prolonged pain for personal gain or satisfaction.   Assuming that all or some of the previous injuries were inflicted with the requisite intent, the pattern of torturous conduct is highly relevant in asserting that Patterson's conduct on January 7 was torturous.   Undoubtedly, the facial blow that Patterson inflicted upon Jerome that day was one which would have caused him extreme and prolonged pain had he lived longer.   Patterson's conduct is not made nontorturous simply because Jerome died shortly after the blow and did not suffer for the period of time expected.

The one blow to Jerome's face was sufficient to provide the causal connection between the torture and the death.   The prior acts were relevant only to show Patterson's intent on January 7, 1989.

B. Sufficient Evidence of Patterson's State of Mind.

 Defendant asserts there was insufficient evidence at trial to show Patterson struck Jerome with the intent and purpose required to show she committed first degree torture murder.   Relying on People v. Steger, supra, 16 Cal.3d 539, 128 Cal.Rptr. 161, 546 P.2d 665, defendant contends Patterson's actions were merely a misguided, irrational, and totally unjustifiable attempt to discipline.

In People v. Steger, supra, 16 Cal.3d 539, 128 Cal.Rptr. 161, 546 P.2d 665, the defendant was convicted of the first degree torture murder of her three-year-old stepdaughter, Kristen.  (Id. at p. 542, 128 Cal.Rptr. 161, 546 P.2d 665.)

“Kristen died from head injuries.   Viewed in the light most favorable to the People, the evidence discloses the fatal injury, a subdural hemorrhage covering almost the entire left half of the brain, was undoubtedly caused by trauma.   The child's body was also covered from head to toe with cuts, bruises and other injuries, most of which could only have been caused by severe blows.   Among the injuries were hemorrhaging of the liver, adrenal gland, intestines, and diaphragm;  a laceration of the chin;  and fractures of the left cheek bone and right forearm.   Medical evidence revealed that most of the injuries were inflicted at different times in the last month of Kristen's life.   Defendant failed to seek medical help for the injuries.

“Defendant's own statements provided much of the case against her.   In testimony she admitted she was continually frustrated by her inability to control Kristen's behavior.   The child would wet her pants, stick her tongue out, and generally disobey.   To effect discipline, defendant beat Kristen on the buttocks with a belt and a shoe.   The beatings were inflicted daily for the final week of the youngster's abbreviated life.   Defendant admitted striking Kristen on the back and twice punching her in the arm, causing her to fall down and hit her head on the floor.

“Defendant also told the police in a written statement that on the day before the death, she hit Kristen on the shoulder, knocking her down;  she pushed her, banging her head against a wall;  and she struck her on the side of the head.   Moreover, she orally told an officer, ‘I want to make a full confession.   I want you to know that I did it.   I beat her.’ ”  (People v. Steger, supra, 16 Cal.3d 539, 543, 128 Cal.Rptr. 161, 546 P.2d 665.)

The California Supreme Court found this was not sufficient evidence of torture murder.

“Viewed in the light most favorable to the People, the evidence shows that defendant severely beat her stepchild.   But there is not one shred of evidence to support a finding that she did so with cold-blooded intent to inflict extreme and prolonged pain.   Rather, the evidence introduced by the People paints 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.

“The People emphasize that the child's wounds were inflicted over a long period of time.   In some cases this fact might lend support to a torture murder conviction.   For example, if a defendant had trussed up his victim, proof that pain was inflicted continuously for a lengthy period could well lead to a conclusion that the victim was tortured.   But in the present case the fact that Kristen was injured on numerous occasions only supports the theory that several distinct ‘explosions of violence’ took place, as an attempt to discipline a child by corporal punishment generally involves beating her whenever she is deemed to misbehave.

“Child-battering is a crime universally abhorred by civilized societies, particularly when it results in death.   Yet our revulsion is based not so much on the means of killing, as on the realization that a defenseless, innocent life has been destroyed.   If defendant, instead of repeatedly beating her stepchild, had fatally shot her once in the head, it could not be claimed seriously that the shooting would be any less subject to deterrence or any less morally offensive than the beating in the present case.   Yet the shooting could not be categorized as murder by means of torture.   Nor can defendant's conduct here, however deplorable it appears to be.”  (People v. Steger, supra, 16 Cal.3d 539, 548–549, 128 Cal.Rptr. 161, 546 P.2d 665, fn. omitted.)

The court did not foreclose the possibility that a child batterer can also be a torturer.

“In holding the evidence does not support a conviction of first degree murder, we do not imply, of course, that a murder of a child can never be torture murder.   In appropriate circumstances a child batterer can be found to be a torturer.   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.”  (People v. Steger, supra, 16 Cal.3d 539, 549, 128 Cal.Rptr. 161, 546 P.2d 665.)

A similar result occurred in People v. Walkey, supra, 177 Cal.App.3d 268, 223 Cal.Rptr. 132.

“The People argue Walkey had the requisite deliberate and premeditated intent to torture Nathanel because Walkey resented taking care of Nathanel and had been seen spanking him.   The People further point to evidence Walkey got upset and yelled at Nathanel when the child had a toilet training accident.   However, this evidence merely shows the beatings Walkey inflicted on Nathanel were ‘a misguided, irrational and totally unjustifiable attempt at discipline;  but they were not in a criminal sense wilful, deliberate, or premeditated.’   (People v. Steger, supra, 16 Cal.3d at p. 548 [128 Cal.Rptr. 161, 546 P.2d 665].)   Moreover, the prosecution's own witness, Dr. Chadwick, testified as follows:  ‘Most instances of physical abuse are associated at the time of the individual act of abuse with some kind of immediate event that the abuser perceives as a stimulus to this.   Maybe it is prolonged crying on the part of the child, maybe it is a toilet training accident, maybe it is something that the infant or child does, something that the infant or child does which may well be within the range of normal behavior for the age, but which the adult caretaker perceives as inappropriate and becomes angry as a result.’   Such explosive violence on the part of the abusing adult, without more, does not support a torture murder theory.   Walkey's intent may have been to punish Nathanel after becoming frustrated or angry because Nathanel misbehaved or had difficulty being toilet trained.   However, the record dispels any hypothesis Walkey's primary purpose was to cause Nathanel to suffer.”  (People v. Walkey, supra, 177 Cal.App.3d 268, 276, 223 Cal.Rptr. 132.)

In People v. James (1987) 196 Cal.App.3d 272, 241 Cal.Rptr. 691 the appellate court upheld defendant's first degree torture murder of his three-year-old stepdaughter Christa.

“[W]e conclude substantial evidence supports the finding that James had the requisite willful, deliberate and premeditated intent to inflict extreme and prolonged pain on Christa.   Unlike the defendants in Steger and Walkey, James's various acts of cruelty toward Christa were not for the most part disciplinary in nature, nor done in explosive fits.   On the contrary, when James abused Christa—both physically and emotionally—he was often cool and calm.   Starting with bruises in October 1984 and continuing with a broken leg in January 1985 and up to her fatal injuries on March 30, 1985, Christa was, to all ostensible purposes, James's punching bag.   While a few of the physical injury incidents might be characterized as discipline-related, other evidence amply demonstrated James's sadistic nature.   Telling Christa to jump out the window of a moving automobile and deliberately popping her balloon at a party can in no sense be characterized as even ‘misguided’ attempts at discipline.   [Citation.]  Particularly significant in this regard was the testimony indicating that James forced Christa to lick urine off the seat of the car.

“But we need not rely solely on evidence of James's sadism derived from events prior to the fatal injuries of March 30, 1985.   The evidence of the events immediately preceding Christa's death also supports the jury's conclusion that James intended Christa to suffer extreme pain.   James did not phone his wife for advice on Christa's condition until 5 p.m., even though he had not hesitated in the past to phone Jane at work.   He did not seek paramedic assistance until Christa was beyond the point she could be saved.   In the opinion of the pathologist, Christa's fatal injuries would not have caused death until at least an hour had passed.

“The death-causing injuries were undeniably severe but, consistent with the principles of Steger and Walkey, this of itself would not support the torture-murder theory.  [Citation.]  Here, however, the evidence demonstrated that at some point on the afternoon of March 30 Christa ingested quantities of 151 proof rum and cigarettes.   The totality of circumstances appropriately convinced the jury that this ingestion was not voluntary;  rather, she was forced to consume them by James.   It is frankly impossible to reconcile this fact with a conclusion that Christa's fatal injuries were the product of an irrational ‘explosion of violence.’  [Citation.]  The record here contains more than substantial evidence from which a rational trier of fact could have found, beyond a reasonable doubt, James was guilty of torture murder in Christa's death.  [Citations.]”  (People v. James, supra, 196 Cal.App.3d 272, 293–294, 241 Cal.Rptr. 691, fn. omitted.)

We thus examine the instant record for evidence of Patterson's state of mind.   Dr. Cohen, an expert on the battered child syndrome, found Patterson's acts of child abuse to be definitely inappropriate activities, but could not attribute Patterson's actions as motivated by frustration, discipline, or a pure intent to simply inflict pain.   While discipline may have had some part in motivating Patterson's conduct, and certainly at times she told others that discipline was her objective, evidence of her demeanor showed she acted more with calm disdain than out of emotional frustration.

Patterson kept Jerome in his room most of the time.   Jerome was always in bed or in his bedroom because he was “in trouble.”   Patterson would force Jerome to repeatedly hold his urine for long periods of time and then when he wet his pants she would use that as an excuse to abuse him.   Patterson would tell Jerome to do the unreasonable;  when he would not, she would hit him.   Patterson left Jerome, a three-year-old child, alone in the trailer after having beaten his face to a pulp.   No matter what Jerome did, Patterson would find fault.   Patterson demonstrated hatred toward Jerome.   She would discipline him for no reason whatsoever.

Patterson went to get a soda while defendant buried Jerome.   By comparison, when a cat died, Patterson prayed over it and made a cross for its grave.

These actions did not portray Patterson as a frustrated, tormented individual acting on impulse.   She demonstrated a cool, calculated, deliberate and hateful intent to torture Jerome.   Her actions did not suggest that she was aroused by some sort of heat of passion.   In the time intervening between the numerous acts of abuse, Patterson had the opportunity to reflect upon her uncaring attitude toward Jerome.   Patterson's actions strongly suggested that she wanted to hurt Jerome and cause him to suffer, and that she got some sort of gratification from the beatings.   All of this evidence regarding her conduct with and attitude toward Jerome established torturous intent;  that on the day Patterson struck the fatal blow she was acting not out of a “misguided, irrational and totally unjustifiable attempt at discipline” (People v. Steger, supra, 16 Cal.3d 539, 548, 128 Cal.Rptr. 161, 546 P.2d 665), but in a willful, deliberate attempt to inflict prolonged pain and suffering on Jerome.   Substantial evidence supports this conclusion.

II.

Defendant's Intent

Defendant next contends that the trial court erred in eliminating the intent requirement from the aiding and abetting instruction.   She argues that her knowledge of Patterson's actions, coupled with her failure to act, could not alone constitute aiding and abetting and result in her liability for first degree murder by torture.   She contends her conviction could only be proper if the jury also determined she intended to aid Patterson in the commission of the crime.

The court instructed the jury as follows:

“A person aids and abets the commission of a crime when he or she,

“(1) having a legal duty to act and

“(2) with knowledge of the unlawful purpose of the perpetrator omits or fails to act thereby encouraging or facilitating the commission of the crime.

“A person who aids and abets the commission of a crime need not be personally present at the scene of the crime.”

In People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 the Supreme Court found that a person aids and abets the commission of a crime when she “acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.”  (Id. at p. 561, 199 Cal.Rptr. 60, 674 P.2d 1318.)   The court found the above intent portion must be included in instructions to the jury to avoid allowing a conviction when defendant knows of the perpetrator's purpose but merely negligently or accidentally aids the commission of a crime.  (Id. at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)

 Traditional concepts of aiding and abetting do not apply when a parent has an affirmative legal duty to act.   For example, under normal circumstances, “[m]ere presence at the scene of a crime ․ even if combined with knowledge that the crime is being committed, does not amount to aiding and abetting.”  (People v. Allen (1985) 165 Cal.App.3d 616, 625, 211 Cal.Rptr. 837.)   But in affirmative duty cases, liability could be imposed under such a circumstance.   It is the omission to act based on a duty of law that equals the act.   In other words, the omission to act is the same as if the defendant was the actual perpetrator.  (People v. Burden (1977) 72 Cal.App.3d 603, 616, 140 Cal.Rptr. 282;  see also People v. James, supra, 196 Cal.App.3d 272, 284, 241 Cal.Rptr. 691.)

Here, the question for the jury was one involving derivative liability rather than liability as a pure aider and abettor.   Defendant's role as a perpetrator derives from her duty to protect her child from what she knew to be the torturous intent and behavior of Patterson.   Defendant's failure to perform her legal duty was not mitigated by any evidence that her failure was due to negligence or accident.

That there was a derivative component to defendant's culpability does not mean that the intent element of the crime was eliminated.   Substantial evidence showed that defendant willfully failed to protect Jerome from Patterson, knowing of Patterson's torturous intent and pattern of conduct;  before Jerome's death, defendant weighed whether she would leave Jerome alone with Patterson.   The jury was instructed in the intent requirements of first degree murder by torture and was instructed that defendant's failure to act had to occur with knowledge of the unlawful purpose of Patterson.   Under this combination of instructions the jury, by its verdict, found that those requirements had been met.   Defendant's guilty mens rea was accordingly established.   Consequently, we need not discuss defendant's subordinate contentions that her federal constitutional rights were violated due to a claimed elimination of the intent element of the crime.

In asking the jury to find defendant not guilty of either degree of murder, defense counsel argued consistent with our analysis as follows:  Defendant had a duty to protect Jerome, but to find her guilty of murdering Jerome, the jury would have to be satisfied that she had guilty knowledge;  if defendant had knowledge of Patterson's torturous intent, she would be guilty of first degree murder;  if she only had knowledge that Patterson's actions involved a high probability of death, she would be guilty of second degree murder.

The question of defendant's derivative culpability did not call for instruction on intent sufficient to constitute liability as an aider and abetter because aiding and abetting was not the precise theory of defendant's liability for murder.

III.

Child Endangerment Count ***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All future code references are to the Penal Code unless otherwise noted.

2.   This does not mean that all the torturous injuries must have contributed to the death, only that some in the series did.

FOOTNOTE.   See footnote *, ante.

VARTABEDIAN, Associate Justice.

STONE (Wm. A.), Acting P.J., and HARRIS, J., concur.

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