APPEAL from a judgment of the Superior Court of San Joaquin County, George J. Abdallah, Jr., Judge. Affirmed. (Super. Ct. No. SF105699A).
The opinion of the court was delivered by: Robie, J.
CERTIFIED FOR PUBLICATION
In this case, we conclude defendant's trial counsel was not ineffective in failing to request a jury instruction that would have directed the jury to consider whether evidence of defendant's cultural background raised a reasonable doubt as to whether defendant had the requisite intent to inflict torture and aggravated mayhem on his son when defendant physically disciplined him. Defendant was not entitled to the jury instruction he now proposes because his proposed instruction would have constituted an improper comment on the evidence.
A jury found defendant Loui Mahmoud Assad guilty of torturing his son, Y. (count 1), committing aggravated mayhem on Y. (count 2), five counts of inflicting corporal injury on Y. (counts 3 through 7), and one count of inflicting corporal injury on his daughter N. (count 9). The jury found that when inflicting corporal injury on Y. (counts 3 through 7) defendant personally inflicted great bodily injury. It acquitted him of one count of inflicting corporal injury on Y. (count 8) and one count of inflicting corporal injury on his other daughter, R. (count 10).*fn1
The trial court sentenced defendant to prison for a determinate term of nine years, consisting of the six-year upper term on count 5 plus three years for the enhancement, followed by concurrent indeterminate terms of life with the possibility of parole on counts 1 and 2. The court imposed concurrent terms of nine years on counts 6, 7, and 9. The court stayed sentence on counts 3 and 4 pursuant to Penal Code*fn2 section 654.
On appeal, defendant contends: (1) his trial counsel was ineffective in failing to request a pinpoint jury instruction on his "cultural defense"; (2) there was insufficient evidence to support his convictions for aggravated mayhem and torture; and (3) his sentences on counts 1 or 2 and 5 through 7 must be stayed pursuant to section 654. Finding no merit in these arguments, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On Sunday, September 9, 2007, defendant, age 35, disciplined his 12-year-old son, Y., for allegedly not listening to him. Defendant used black electrical tape to bind Y.'s hands together and then to bind them to the metal frame of defendant's bed. Y.'s feet were also bound to the bed with electrical tape, with one foot on each side of the bed. While Y. was lying face down, defendant struck him several times on his back and legs using a wooden garden stake and a short piece of garden hose that had a metal nozzle on one end. After a short break, defendant did it again, and Y. yelled out in pain both times. In addition, defendant bit most of Y.'s fingertips, biting each finger one at a time while Y. yelled in pain.
The next day, a Monday, Y. stayed home from school. Defendant tied Y.'s hands and feet to the bed again, but this time Y. was face up and the beating occurred on the front side of his body.
The following day Y., a seventh grade student, returned to school and was taken to the principal's office because of concern for his health. Two of his teachers had noticed that Y. had a black eye and cuts on his face, he was limping and moving very slowly, he kept falling asleep during class, and he was trying to keep the weight of his backpack off of his shoulder. When Y. arrived at the office, the principal noticed that Y. "looked very gray," "his left eye [wa]s black, he [had] scratches below it, and he ha[d] a scratch on his chin and on the right side of his upper lip." Additionally, even though it was a warm day, Y. was wearing a long-sleeve shirt and a T-style undershirt.
The principal asked Y. several times how he got the injuries, and each time he told her that he had hurt himself falling off of his bicycle. Y. lied to the principal because he did not want to get defendant in trouble. The principal did not believe Y., so school personnel called Child Protective Services and the police.
When Child Protective Services and the police arrived, Y. was brought back to the principal's office. He told the investigators the same thing he had told the principal, i.e., that his injuries resulted from a bicycle accident. The investigators asked Y. to roll up the sleeves of his shirt and to lift up his shirt, but Y. refused to do so in an effort to protect defendant.
Shortly thereafter, defendant arrived at the school to pick up his children. Defendant first told the police that Y. had been injured in a bicycle accident. After it became clear the police did not believe the bicycle accident story, however, defendant told the police he loses his temper sometimes and he had whipped Y.'s back one time. At that point, defendant was arrested.
Thereafter, Y. was taken to a hospital for a physical examination. During the initial stages of the exam, a physician's assistant noticed that Y. had bruises on his face and on both sides of most of his fingertips. After removing Y.'s clothing, it became evident that he had "multiple injuries to his chest, . . . arms, back, . . . fingers, and his legs." He had "significant . . . bruising to his posterior -- his thighs, his inner thighs, his feet, even his shoulders." He also had an "almost circumferential or completely 360 [degree] around his chest wall from his waist to his -- about his shoulder or mid nipple line was severely bruised with abrasions, open lesions, and multiple stages. So it's difficult to tell how old they were. Some were probably pretty fresh [and] some were probably several days if not weeks old."
During the examination, Y. stated that his voice was hoarse as a result of being choked by defendant. Y. said that defendant had caused his injuries by punching him, hitting him with a piece of garden hose, and biting his fingers.
Previously, defendant had used other similar methods of discipline. For instance, he used to strike the tops and bottoms of Y.'s feet with a belt, sometimes until Y.'s toenails turned black and blue. Defendant also hit Y.'s hand with a stick, and he struck Y.'s head with a spoon and a "glass thing." A few months earlier, in July 2007, defendant had punched Y. in the mouth, splitting his lip and necessitating stitches. On another occasion, defendant heated a knife on a stove burner and then placed the hot blade on Y.'s foot, causing his skin to burn.
Defendant also physically disciplined his two daughters, 8-year-old N. and 14-year-old R. Defendant slapped N. in the face and on her back and also pulled her by the ear. Defendant hit R. on her hands with a wooden rolling pin and slapped her in the face.
In February 2008, Dr. James Crawford, a physician with expertise in the medical evaluation of child abuse, examined Y. Dr. Crawford noted that Y. "had very extensive scarring [on] his torso and his upper extremities." Because the scars "were still quite . . . visible" five months after the beating, Dr. Crawford testified that the marks would be a "permanent disfigurement." He testified that, "other than children who've had extensive burn injuries, these [we]re definitely among the most prominent and extensive scars [he had] ever seen."
During the examination, Y. told Dr. Crawford that defendant had caused the injuries. When asked if the scarring was consistent with being beaten with the metal end of a hose, Dr. Crawford answered, "[i]f it was extremely violent, yes." ...