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People v. Hamlin

February 9, 2009; as modified March 9, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD WILLIAM HAMLIN, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of El Dorado County, Eddie T. Keller, Judge. Affirmed as modified. (Super. Ct. No. P05CRF0161).

The opinion of the court was delivered by: Robie, J.

CERTIFIED FOR PUBLICATION

A jury found defendant Richard Hamlin guilty of torture, making a criminal threat, three counts of inflicting corporal injury on his wife, and three counts of misdemeanor child abuse. The trial court sentenced him to life in prison for torture, the upper term of three years for making a criminal threat, and the upper term of four years for each of the three counts of inflicting corporal injury, but the court ordered the terms on the latter four counts stayed pursuant to Penal Code*fn1 section 654. The court also sentenced defendant to three consecutive terms of 180 days each for the child abuse counts.

On appeal, defendant raises numerous issues, including claims of insufficiency of the evidence, evidentiary errors, instructional errors, error in denying his new trial motion, and sentencing errors.

We reject defendant's challenges to the sufficiency of the evidence and most of his claims of error, with two exceptions: we conclude (1) the trial court erred in imposing upper terms on defendant's convictions for making a criminal threat and inflicting corporal injury on a spouse based on facts not found to exist by the jury, admitted by defendant, or justified based on defendant's record of prior convictions; and (2) the trial court erred in imposing a no-contact order on defendant. Accordingly, we will strike the no-contact order and remand the case to the trial court for resentencing. With these exceptions, defendant's convictions are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and his wife, S., lived with their four children in El Dorado Hills. Sometime after 1999, defendant -- who worked as a criminal defense attorney -- began to physically abuse S. By 2003, the abuse escalated. According to S., defendant eventually abused her physically "on a daily basis, more than once a day." "He would strangle [her]. He would hit [her] in the head. He would throw [her] into furniture. He would hold [a] gun to [her] head. He would use a knife and push and just gradually increase the pressure and see how long he could push before he would break the skin . . . ." "He would hold lit cigarettes to [her] face." As a result, she had bruises, cuts, and split lips. Sometimes she had black eyes, and sometimes a swollen jaw.

The escalation in the abuse was related to defendant's efforts to put together a million-dollar lawsuit against S.'s father for molesting her as a child. S. claimed at trial that the molestation never occurred, but defendant insisted that it did and that she had repressed her memories of it. Defendant would tell S. what her memories were, and she started believing him. Eventually, defendant focused almost all of his attention on the claims against S.'s father, and "if [she] didn't do [her] part, [she] would get beat." S. later testified that if she did not tell defendant what he wanted to hear, "[h]e would hit [her], he would hold a gun to [her] head and pull the thing on the gun. Ask [her] if [she] was ready to die. He would tell [her] that he was going to tie [her] up and leave [her] under the house or gut [her] and leave [her] out in some field or chop [her] into pieces."

By December 2003, defendant and S. were out of money and their house was in foreclosure. In January 2004, defendant obtained a book on "surviving ritualistic satanic abuse, or something to that effect," and defendant's story of S.'s molestation took on "a satanic cult theme." Around this time, defendant took to wearing "guns holstered through the house," and he also had a Taser and a sword in the bedroom.

While putting the molestation story together, defendant had S. contact old friends to see what they remembered. One of the friends was Lisa Clum. Once the "story evolved into the satanic theme," defendant "started weaving all kinds of people into the story," including Lisa Clum. According to defendant, "there was a plot to kill him and [they] were all involved in wanting to kill him. And it was all tied to this satanic cult that was supposedly in place." When Lisa Clum called and invited S. "to go to her church to listen to some talk that was being given," defendant "said that she was trying to set a trap to get [them] there to her church, which wasn't really a church, so that he would be killed."

By the time of Super Bowl Sunday in 2004, "[t]he story had evolved to where [S.] was now one of the child molesters of" her own children, and defendant wanted to record her confession. Defendant pointed a gun at S. and hit her until she told him what he wanted to hear.

In the first week of February 2004, an incident occurred in which defendant accidentally shot himself in the leg. Before law enforcement or medical personnel arrived, defendant told S. to "stick to the story," which at that time was that Lisa Clum and her husband, Rock, as well as S., "were all planning to kill [defendant]." Because S. had visible bruises on her, defendant told her "to say that Rock Clum . . . had attacked [her] in Starbucks' parking lot."

After defendant was taken to the hospital, S. spoke with a detective and "told him the story."

On the night of February 10, 2004, defendant "was trying to get something from [S.] as far as the story goes" and "he had [her] pinned up against the wall in the bedroom with the sword pointed to [her] left shoulder/chest area." He began swinging the sword around, and as S. tried to block the sword she was cut on the finger. Defendant then stabbed the sword into the mattress and threw S. into the wall. While choking her with one hand, he hit her in the side of the head with other. That night, defendant made S. sleep next to him at gunpoint.

The next day, they "were going to go to Granite Bay looking for Lisa [Clum] to kill her." S. arranged to drop the girls off with a neighbor, and defendant told the two boys to "put their paintballs in the freezer and pack their paintball guns in the van." Defendant took his derringer and the Taser and the sword. They drove to a Starbucks to look for Lisa. They then drove all over Granite Bay looking for an address. At first, S. was driving, and defendant was telling her she had "better find Lisa's house." After he started driving, "he started hitting [her] and being very threatening." "He hit [her] with his fist. He hit [her] with the gun in the face. He hit [her] with [the] Taser in the ribs and threw [her] into the window." As a result, her "nose was swollen" and it "felt like he had broke[n her] nose." Her "face was bloody and bruised and swollen" and her "ear was swollen." Eventually, when they could not find Lisa's house, defendant "dragged [S.] out of the car with a gun to the head and walked [her] out to [a] field." "He kept hitting [her] in the head and he held the gun to [her] head and asked if [she] was ready to die." He did not shoot her, however, and instead "dragged [her] back to the van, threw [her] in . . ., and . . . drove away." When they went to pick up the girls, defendant had her remain in the van with the boys pointing their paintball guns at her.

On February 22, 2004, when defendant and S. had returned home from somewhere and were coming into the house through the garage, defendant "started hitting [S.] and threw [her] into the trash cans and onto the floor and kicked [her]." He told her not to act like she was hurt, and she tried, but she was "unconsciously holding [her wrist] up because it was throbbing." Defendant picked up a metal pipe and hit her in the part of her arm that was starting to swell, then punched her in the face.

S.'s nose began to bleed and she was coughing up blood. Defendant told her to go into the laundry room, and there he "started hitting [her] in the stomach and the ribs, hit [her] again in the face," "hit [her] in [her] ears," and "threw [her] into the wall." He then hit her in her left side with a piece of wood. As a result of this incident (sometimes referred to as the laundry room incident), S.'s nose "was very swollen and bruised, th[e] side of [her] face . . . was bruised all the way down into [her] neck, and it was swollen, and [she had] black eyes."

On February 26, 2004, defendant and S. went to the sheriff's department and S. gave a detailed statement in which she admitted molesting her children. To explain the marks on her, she told the authorities Rock Clum had hit her. The authorities did not arrest S., but did send Child Protective Services to remove the children from the home. Two days later, however, defendant was arrested.

On March 1, 2004, an examination conducted on S. at a hospital revealed the following injuries: both of her ears were extremely swollen and bruised, with one ear canal 90 percent swollen shut; she had bruising on her face from underneath her eye all the way down to underneath her chin; her nose was broken; she had bruising on her neck, shoulder, arm, abdomen, and thigh; and she had five broken ribs.

On March 2, 2004, a criminal complaint was filed against defendant (case No. P04CRF0132). In June 2004, a nine-count information was filed in the case.

The prosecution of defendant proceeded under the information until April 2005, when the grand jury returned an 18-count indictment (case No. P05CRF0161). The charges in the indictment were as follows:

1. Torture;

2. Child abuse (victim R.);

3. Child abuse (victim A.);

4. Child abuse (victim C.);

5. Assault by means of force likely to produce great bodily injury;

6. Making a criminal threat;

7. Inflicting corporal injury on a spouse;

8. False imprisonment by violence;

9. Inflicting corporal injury on a spouse (with a great bodily injury enhancement);

10. Assault with a deadly weapon or by means of force likely to produce great bodily injury;

11. Making a criminal threat (with an arming enhancement);

12. False imprisonment by violence (with an arming enhancement);

13. Inflicting corporal injury on a spouse;

14. Assault with a deadly weapon or by means of force likely to produce great bodily injury (with a firearm use enhancement);

15. Making a criminal threat (with a firearm use enhancement);

16. Discharge of a firearm with gross negligence;

17. Inflicting corporal injury on a spouse (with a great bodily injury enhancement); and

18. Assault by means of force likely to produce great bodily injury.

The case was ultimately tried to a jury from October 2005 through January 2006. The jury found defendant guilty of torture (count I), three counts of misdemeanor child abuse (lesser included offenses of counts II, III, and IV), one count of making a criminal threat (count VI), and three counts of inflicting corporal injury on a spouse (counts IX, XIII, and XVII). The jury rejected the great bodily injury enhancements on counts IX and XVII, found defendant not guilty on counts VII, VIII, X, XI, XII, XVI, and XVIII, and was unable to reach verdicts on counts V, XIV, and XV. The prosecution elected not to retry defendant on those counts.

After denying defendant's new trial motion, the court sentenced him to life in prison for torture, with the upper term of three years on the charge of making a criminal threat and the upper term of four years on each of three charges of inflicting corporal injury on a spouse stayed pursuant to section 654. The court also sentenced defendant to three consecutive terms of 180 days each on the misdemeanor child abuse charges.

DISCUSSION

I. Sufficiency Of The Evidence

Defendant offers two different challenges to the sufficiency of the evidence to support his convictions. Before we address each of those arguments, we set forth the governing legal principles.

"'The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] "'[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.'" [Citation.] "The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 'Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.'"' [Citation.]

"'An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.' [Citation.] 'Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].'" (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572-1573.)

A. Torture

A person is guilty of torture if he "inflicts great bodily injury" "with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or any sadistic purpose." (§ 206.) Defendant argues there was insufficient evidence he acted with the requisite intent here because his acts were not sufficiently "brutal." We disagree.

"Courts have interpreted intent to inflict 'cruel' pain and suffering as intent to inflict extreme or severe pain." (People v. Burton (2006) 143 Cal.App.4th 447, 452.) Thus, the question here is whether there was substantial evidence that defendant intended to inflict extreme or severe pain on S.

"Absent direct evidence of such intent, the circumstances of the offense can establish the intent to inflict extreme or severe pain." (People v. Burton, supra, 143 Cal.App.4th at p. 452.) For example, "a jury may infer intent to cause extreme pain from a defendant who focuses his attack on a particularly vulnerable area, such as the face, rather than indiscriminately attacking the victim." (Ibid.)

Before we turn to the evidence of defendant's intent, we must address whether torture can be committed by a course of conduct. As will be seen, this issue is significant to resolution of whether there was substantial evidence that defendant had the intent required for the crime.

1. Torture As A Course Of Conduct Crime

"[W]here violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged," either the state must "'select the particular act upon which it relied to make good the allegation of the information'" or the jury must be instructed "that they must agree unanimously on which act they based their guilty verdict." (People v. Thompson (1984) 160 Cal.App.3d 220, 223-224.) "Neither instruction nor election are required, however, if the case falls within the continuous course of conduct exception," which arises "when the acts are so closely connected that they form part of one and the same transaction, and thus one offense" or "when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time." (Id. at p. 224.)

It is clear the torture statute, section 206, does not require the intent to cause or the actual causing of prolonged pain. (People v. Hale (1999) 75 Cal.App.4th 94, 108.) But that is not the same thing as saying the prosecution is precluded from proving infliction of bodily injury or a defendant's intent to cause cruel or extreme pain by a course of conduct occurring over time.

Here, the prosecution proceeded on the theory that defendant committed the crime of torture against S. by a course of conduct between June 2003 and February 2004. Defendant argues, however, that torture is not a crime that can be committed by a course of conduct. As we will explain, defendant is mistaken.

"Decisions on the continuous course of conduct exception have focused on the statutory language in an attempt to determine whether the Legislature intended to punish individual acts or entire wrongful courses of conduct." (People v. Salvato (1991) 234 Cal.App.3d 872, 882.) "[C]ertain verbs in the English language denote conduct which occurs instantaneously, while other verbs denote conduct which can occur either in an instant or over a period of time." (People v. Gunn (1987) 197 Cal.App.3d 408, 415.) In the latter situation, where the statute "may be violated by a single act" or "repetitive or continuous conduct," and the charging instrument "allege[s] a course of conduct in statutory terms which . . . occurred between two designated dates," "[t]he issue before the jury [i]s whether the accused [is] guilty of a course of conduct, not whether . . . he committed a particular act on a particular day." (People v. Ewing (1977) 72 Cal.App.3d 714, 717.)

Here, defendant argues that the operative language of section 206 -- specifically, the word "inflicts" -- does not denote conduct that can occur over a period of time. He contends "[i]nfliction of injury normally occurs as the result of a violent act" and "[t]he infliction of great bodily injury is not a gradual or continuous process. It is a discrete criminal event."

Defendant's argument is contradicted by the plain meaning of the word "inflict," which includes "to cause (something unpleasant) to be endured." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 641 col. 1.) Obviously a person can be forced to endure something unpleasant over a period of time. Indeed, anyone who has visited a chamber of horrors in a wax museum can conjure up any number of classic instruments of torture -- such as the rack -- that are specifically designed to inflict pain and injury over an extended period of time.

Defendant's argument is also contradicted by case law applying the continuous course of conduct exception to other criminal statutes that penalize the "infliction" of pain or injury. For example, child abuse may be committed by "willfully caus[ing] or permit[ting] any child to suffer, or inflict[ing] thereon unjustifiable physical pain or mental suffering." (§ 273a, italics added.) In People v. Ewing, supra, this court held that "[a]lthough the child abuse statute may be violated by a single act [citation], more commonly it covers repetitive or continuous conduct." (72 Cal.App.3d at p. 717.) Similarly, the crime of spousal abuse (also, spousal battering or infliction of corporal injury on a spouse) is committed by "willfully inflict[ing] upon a . . . spouse . . . corporal injury resulting in a traumatic condition." (§ 273.5, subd. (a), italics added.) In People v. Thompson, supra, the appellate court followed Ewing in holding that the spousal abuse statute, like the child abuse statute, is "aimed at repetitious activity which culminates in prohibited conduct." (160 Cal.App.3d at p. 225; see also People v. Sanchez (2001) 94 Cal.App.4th 622, 632-633 [the crime of animal abuse, which includes "'inflict[ing] unnecessary cruelty upon [an] animal,'" can be committed by a course of conduct].)

Defendant contends a comparison of the torture statute with the spousal abuse statute is "inapt because the spousal abuse statute requires a continuing domestic relationship between the parties, whereas the torture statute does not." Defendant is wrong. The spousal abuse statute does not require "a continuing domestic relationship" between the perpetrator and the victim because while the statute applies where the victim is a "spouse" or "cohabitant" of the perpetrator, it also applies where the victim is a "former spouse" or "former cohabitant" -- i.e., where there is no longer a domestic relationship between the parties.

In any event, the nature of the relationship between the perpetrator and the victim is not the reason spousal abuse can be committed by a course of conduct. The reason spousal abuse can be committed by a course of conduct is because the infliction of corporal injury resulting in a traumatic condition can, as a matter of simple reason, occur either as the result of a single act or as the result of a series of acts.

Just as child, spousal, and animal abuse can be committed by a course of conduct rather than a single act, so can torture. In People v. Salvato, supra, 234 Cal.App.3d at page 872, the court held that the crime defined by section 136.1 (dissuasion of a witness) set forth a course of conduct crime because the statute "focuses on an unlawful goal or effect . . . rather than on any particular action taken to produce that end. . . . The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal. Thus it falls within the continuous conduct exception . . . ." (People v. Salvato, supra, 234 Cal.App.3d at p. 883.) The same goes for the torture statute. For torture, the "unlawful goal or effect" is the infliction of great bodily injury with the intent to cause severe pain for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. Where (as here) torture is charged and tried as a course of conduct crime, no single act in the perpetrator's course of conduct may result in great bodily injury. But where the cumulative result of the course of conduct is great bodily injury, and the requisite intent can be found, then the crime of torture has been committed under the course of conduct exception to the election/unanimity requirement.

2. Intent To Cause Severe Pain

With the understanding that torture can be a course of conduct crime, we turn back to whether there was substantial evidence that when defendant inflicted great bodily injury on S., he did so with the intent to cause her severe pain.

As we have noted, the intent to cause severe pain need not be proven by direct evidence, but can be inferred from the circumstances of the offense, such as a focused attack on a particularly vulnerable area. (People v. Burton, supra, 143 Cal.App.4th at p. 452.) Here, in explaining why she did not seek medical treatment for the injuries defendant inflicted on her, S. testified she "wasn't allowed to" because if she "acted like [she] was hurt, [defendant] would kick [her] again or hit [her] where he had just hurt [her] before. He targeted already broken bones and swollen bruises." As an example, S. had earlier testified about the incident when she and defendant were coming inside from the garage. Defendant "started hitting [her] and threw [her] into the trash cans and onto the floor and kicked [her]." She jumped up and tried to pretend she was not hurt, but was unconsciously holding her wrist up because it was throbbing. When defendant saw that she was favoring her wrist, he picked up a metal pipe and hit her "on the part of [her] arm that was starting to swell." S. also testified that on another occasion defendant "hit [her] in the ribs which were already sore from a few nights before that."

We believe a jury could reasonably determine that a person who deliberately strikes his victim on an area of the body that is already injured has the intent to cause severe pain -- or, as defendant puts it, "a level of pain over and above the level of pain that a victim would suffer in an ordinary assault or battery."

Defendant contends S.'s "generic claim that he would hit her in sore ribs and target already broken bones" will not support his torture conviction because "there was no evidence that he knew that she had sore ribs and already broken bones when he did these generic acts." Later, he complains that the People "do[] not cite substantial evidence to show that [he] had that knowledge."

Defendant's argument misapprehends the burden imposed on a defendant who challenges the sufficiency of the evidence. It is not enough for defendant to simply say "there was no evidence"; instead, "he must affirmatively demonstrate that the evidence is insufficient" on the point in dispute. (People v. Sanghera, supra, 139 Cal.App.4th at p. 1573.) For the same reason, defendant's complaint that the People have not cited substantial evidence misses the point. The People do not bear the burden of showing the conviction is supported by substantial evidence; instead, because "we must begin with the presumption that the evidence . . . was sufficient," it is defendant, as the appellant, who "bears the burden of convincing us otherwise." (Ibid.)

The question here is whether there was sufficient evidence that defendant knew he was striking S. where she was already injured when he "targeted already broken bones and swollen bruises." Defendant has not carried his burden of showing there was no such evidence. In any event, the incident in the garage supplies one example of such evidence, because the jury could have found based on S.'s testimony regarding that incident that defendant knew her arm was injured when he struck her there with a metal pipe. Indeed, we believe the jury could have reasonably inferred more generally from the evidence, including (but not limited to) the evidence regarding the frequency of defendant's physical assaults on S., that he knew where he had struck her recently and therefore knew where he could strike her again to cause her greater pain.

Defendant argues, however, that to convict him of torture, the jury had to find not only that he acted with the intent to cause extreme pain, but that the action he undertook with that intent was one that in fact caused great bodily injury. Thus, he contends, "[i]f S. claimed that [he] struck her on the arm because he saw that she was favoring it, that would not be torture unless there was concomitant proof that the blow resulted in great bodily injury." By inference, defendant suggests there was no such proof here.

It is with regard to this argument that the nature of the crime of torture as one that can be committed by a course of conduct becomes significant. Defendant's argument presumes that each act of violence he committed on S. must be analyzed separately to determine if there was evidence that particular act was committed with the intent to cause severe pain and evidence that particular act resulted in great bodily injury. This is incorrect. Where, as here, torture is charged and tried as a course of conduct crime, such analysis is unnecessary. The question for the jury was not whether S. suffered great bodily injury from a particular act defendant committed on a particular day with the intent to cause her severe pain. Rather, the question was whether, with that intent, defendant engaged in a course of conduct toward S. that resulted in great bodily injury. As long as the jury could reasonably find that defendant had the requisite intent when he engaged in the course of conduct, and that the course of conduct resulted in great bodily injury, then the evidence is sufficient to support a torture conviction.

Here, S.'s testimony was sufficient to support the reasonable inference that during his course of physical assaults on her, defendant intentionally targeted areas of her body where he had injured her already and thus acted with the intent to cause her severe pain. This was enough to support a finding that defendant had the intent required for the crime of torture.

B. Criminal Threat

A person is guilty of making a criminal threat if he "willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety." (§ 422.)

The criminal threat charge of which defendant was convicted was based on the tape recording he made in February 2004. S. testified that defendant wanted to record her confessing that she had molested their children. He turned on the tape recorder and sat with a gun in his lap as he questioned her. During the recording session, defendant found a piece of paper on which Lisa Clum had written the name of a Christian counseling center three months earlier. The piece of paper was actually an appointment reminder for an orthodontic appointment for Lisa's daughter, Ashley. Upon defendant's discovery of the reminder slip, the following exchange occurred (according to the transcript of the recording):

"Richard: [W]hat is it, what is this, Ashley? What is it? What is this? What is this? What is it?

"[S.]: I don't know. I want to know as much as you do. I honestly do not know.

"Richard: [B]elieve . . . .

"[S.]: I do not know.

"Richard: Oh, but you're [sic] know lots of other things, so you just start answering these fucking questions.

"[S.]: Okay. I want to. Ask me, please.

"Richard: (Yelling) You (Inaudible) shit. Raw shit. (Inaudible) time you leave me. With your fucking whore fake pastor, what, did you fuck her? Yeah. Get indoctrinated into the church? You better fucking come clean.

"[S.]: I (Inaudible)

"Richard: I wouldn't (Inaudible) up, Sue. Because I'll kill you now if you (Inaudible). You're not escaping this one. And you give me information you just start talking. Get going."

Defendant contends that because his threat to kill S. was conditional ("I'll kill you now if you"), but due to the inaudible portion of the tape "the condition was never established," the evidence was insufficient to support his conviction of making a criminal threat. We disagree.

"To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier 'so' unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution." (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) "[W]hether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an . . . immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone." (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) "[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422." (People v. Butler (2000) 85 Cal.App.4th 745, 753.) The jury is "free to interpret the words spoken from all of the surrounding circumstances of the case." (Mendoza, at p. 1341.)

Here, in arguing the evidence is insufficient to show his threat conveyed the requisite "gravity of purpose and immediate prospect of execution," defendant ignores all of the surrounding circumstances and bases his argument on the words of the threat alone -- or, more accurately, on the words that are missing from the recording of the threat due to the inaudible portion of the recording. But, as we have seen, the law does not permit such a myopic examination of the evidence. Rather, we must look to all of the surrounding circumstances, including the words that were recorded, to determine if the jury could have reasonably found that the threat carried the requisite gravity of purpose and immediate prospect of execution, despite the inaudible portion of the tape following the word "if."

We conclude the evidence was sufficient for this purpose. Although the recording does not reveal exactly what condition defendant placed on his threat, from the context and surrounding circumstances the jury reasonably could have determined that defendant essentially threatened to kill S. if she did not cooperate and answer his questions about the slip of paper he had found. Indeed, virtually everything defendant said immediately before and after his threat supports such a determination. Before his threat, he demanded that she "just start answering these fucking questions" and that she "better fucking come clean." Immediately after the threat, he told her she was "not escaping this one" and told her to "give [him] information," "just start talking," and "[g]et going." Under these circumstances, the jury did not need to know the exact words of the condition defendant placed on the threat to conclude that the threat was so unconditional as to convey a gravity of purpose and an immediate prospect of execution. Accordingly, defendant's sufficiency of the evidence challenge to his conviction of making a criminal threats fails.

II. Misdemeanor Child Abuse Convictions

A person is guilty of misdemeanor child abuse if (among other things), he "willfully causes or permits any child to suffer, or inflicts thereon unjustifiable . . . mental suffering" "under circumstances or conditions other than those likely to produce great bodily harm or death." (§ 273a, subd. (b).) If the abuse occurs "under circumstances or conditions likely to produce great bodily harm or death," then the crime is a felony. (§ 273a, subd. (a).)

Here, defendant contends his misdemeanor child abuse convictions must be reversed because they were barred by the one-year statute of limitations. In the alternative, he contends the convictions must be reversed "[b]ecause the prosecutor's theory intruded upon the fundamental constitutional rights of parenting and of free expression." We disagree on both points.

A. Procedural Background

A criminal complaint was originally filed against defendant on March 2, 2004, in case No. P04CRF0132 (the 2004 case). The complaint did not contain any child abuse charges.

On May 27, 2004, an amended complaint was filed in the 2004 case. The amended complaint included three charges of felony child abuse alleged to have occurred between February 1, 2004 and February 22, 2004. Each child abuse charge in the amended complaint broadly alleged that defendant "did willfully and unlawfully, under circumstances likely to produce great bodily harm and death, did cause and permit a child . . . to suffer unjustifiable physical pain or mental suffering or to be placed in such situation that his/her person and health may be endangered."

On June 10, 2004, defendant waived his right to a preliminary hearing, and on June 21 an information was filed containing the same three child abuse charges as the amended complaint.

In January 2005, defendant filed a motion seeking to force the prosecution to elect the acts on which various charges in the information -- including all three child abuse charges --were based. In response to that motion, the prosecution informed defendant an election was impossible because the child abuse charges were based on a continuing course of conduct. At the hearing on the motion, defendant argued that the child abuse charges were apparently based on "the prosecution theory . . . that . . . there was violence to [the children's] mother and that it was in or about their presence." When the court pointed out that "each count [was] alleged to have occurred between February 1st and February 22nd of 2004" "[s]o you are on notice in that regard," defendant complained that he "didn't know what incident -- what claimed incident that they are going to be relying on." The prosecutor responded, "And the People's answer is it is a continuing course of conduct during that time frame. It is our contention that the defendant beat his wife in the presence of his children four out of seven days a week, five out of seven days a week. [¶] We have statements from the children as to witnessing these acts of violence and seeing the injuries on their mother. . . . [¶] We have statements of the victim of those acts herself who says that they occurred in the presence of her children . . . ." The prosecutor later added "that the People's theory is one of mental suffering caused in the children by the environment that they were subjected to by the defendant's continuous abuse and beating and, essentially, torture of their mother in their presence." The court concluded "sufficient notice ha[d] been given" because "[w]e have the specific time period, the specific theory of mental suffering. [¶] We know by established law that any-- if the children witnessed any physical harm, threats, injuries between the parents, that that is sufficient to violate those code sections."

Trial was eventually set for April 26, 2005. At the readiness conference on April 1, 2005, defendant asked for a ...


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