(Super. Ct. No. 09F04787)
The opinion of the court was delivered by: Butz , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 09F04787)
Defendants Eduardo Zamora and Amber Ingram murdered Ingram's five-year-old son, Braeden Gardner. Zamora beat the child to death. Ingram, with knowledge that Zamora was repeatedly and severely beating her son, did nothing to prevent the abuse and facilitated it by providing Zamora with unsupervised access to the child. Zamora and Ingram were charged with murder. (Pen. Code, § 187, subd. (a).)*fn1 With respect to Zamora, the murder charge included a special circumstance allegation that the murder was intentional and involved the infliction of torture. (Former § 190.2, subd. (a)(18).) Zamora was also charged with assault on a child involving force likely to produce great bodily injury and resulting in death (§ 273ab, subd. (a)) and the substantive crime of torture (§ 206). Ingram, in addition to murder, was charged with permitting a child to suffer unjustifiable physical pain or injury with an enhancement allegation that such conduct resulted in the child's death. (§§ 273a, subd. (a), 12022.95.)
Defendants were tried together before separate juries. Ingram was convicted as charged, including second degree murder. Zamora was convicted of the charged crimes, including first degree murder, but the jury found the special circumstance allegation to be not true. Zamora was sentenced to state prison for an indeterminate term of 25 years to life plus a consecutive life term. Ingram was sentenced to state prison for an indeterminate term of 15 years to life.
Defendants filed separate appeals, which we consolidated for purpose of opinion. Ingram's appeal raises two claims of error: (1) her murder conviction must be reversed because there was insufficient evidence that she intended to aid and abet Zamora's abuse of her son; and (2) the prosecutor engaged in prejudicial misconduct and violated her constitutional right to due process by arguing mutually exclusive versions of the events leading to Braeden's death to the separate juries. Zamora's appeal raises a single claim of sentencing error. He asserts that the trial court violated section 654 by imposing and executing sentence on both the conviction for assault on a child resulting in death and the conviction for torture.
We shall affirm both judgments. As we explain, substantial evidence supports Ingram's murder conviction. "[A] parent who knowingly fails to take reasonable steps to stop an attack on his or her child may be criminally liable for the attack if the purpose of nonintervention is to aid and abet the attack." (People v. Rolon (2008) 160 Cal.App.4th 1206, 1219 (Rolon).) Here, based on Ingram's own statements to police following her son's death, a reasonable jury could have concluded that she chose not to intervene in order to facilitate the abuse of her son and that murder was a natural and probable consequence of the severe and repeated abuse inflicted by Zamora on a five-year-old child. We further reject Ingram's contention that the prosecutor argued mutually exclusive versions of her son's death to the separate juries. With respect to Zamora's appeal, we conclude that section 654 did not require the trial court to stay execution of his torture conviction.
When Braeden was born on July 28, 2003, Amber and William Ingram were dating.*fn2 The two married in September 2006. William was not the biological father, but took on the role of Braeden's father from the child's birth. Initially, the biological father had some contact with his son, but this stopped at the age of two. Braeden called William "daddy Will." At the age of three, Braeden was trained to use the toilet and "picked it up pretty quickly," with accidents being "few and far between." At around the same age, Braeden was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed certain medications to manage the symptoms. These medications "calmed him down quite a bit" and made him better able to focus. William reported no significant disciplinary problems with Braeden.
In January 2009, Ingram informed William that she wanted a divorce. The following month, she and Braeden moved into a house with Tammy Barron, one of Ingram's close friends. Ingram began dating Zamora shortly after the move. Zamora frequently came over to the house. Barron described Ingram as an "awesome mother" prior to this new relationship. But when she started dating Zamora, the amount of time Ingram spent with her son decreased because "her attention was somewhere else."
Around this time, Braeden began having "bathroom accidents." On several occasions, he urinated in inappropriate places around the house, e.g., the toy box, the bathroom trash can, and the laundry hamper in Barron's closet. He also urinated in his pants on one occasion. When Barron told Ingram about this, Ingram responded, "Whoop his fucking ass." Barron took this comment to be a joke. However, she was concerned that Ingram's relationship with Zamora was having a negative impact on Braeden. For example, Barron described an incident in which Ingram and Zamora were kissing each other in front of Braeden and ignoring his cries for them to stop. Barron confronted Ingram about this incident, telling her to "get her head out of her ass" and "be a better mother." A couple days later, Ingram and Braeden moved out of the house they shared with Barron and into Zamora's house.
During this time period, William took care of Braeden two days a week. Braeden had no behavioral problems while he was with William. Braeden was enrolled in daycare in March 2009. He had no behavioral problems while he was at daycare. Nor did he have any bathroom accidents. After Zamora lost his job in April 2009, Ingram withdrew Braeden from daycare so that Zamora could watch him during the day. Ingram also ended Braeden's visits with William because he was "being difficult" when he returned from William's house.
The beatings began a few weeks later. The first beating Ingram knew about occurred when Braeden purportedly lied to Zamora. Zamora called Ingram while she was at work, told her that he had hit Braeden with his belt, and added, "[T]his is how Mexican fathers deal with their kids that lie." According to Ingram, she thought that was a "normal" reaction because Zamora was raised in a different culture, but told him not to hit her son anymore. When Ingram got home and examined her son, she saw that Zamora had "spanked him a lot of times" on his buttocks and back. She gave him Motrin and put ice packs on the bruises. A short time later, Braeden began "peeing the bed" and "pooped his pants" on two occasions. These incidents also prompted beatings. During the last month of Braeden's life, Zamora beat him "10, 11, 12 times." Each time, Ingram would give her son Motrin and put ice packs on the bruises.
The fatal beating occurred the morning of June 17, 2009. Zamora called Ingram while she was at work and told her that Braeden had "pooped his pants." According to Ingram, she told Zamora to "just put him in his room" and that she would clean it up when she got home. Zamora then sent "a picture of the poop on the wall" to Ingram's cell phone. About 30 minutes later, Zamora called Ingram again and said, " 'Braeden's not breathing. He's throwing up and I don't know what to do.' " Ingram told him to call 911, hung up the phone, and drove home to check on her son. Zamora called 911 as instructed and informed the operator, "I've been grounding [Braeden's] ass and I've been fucking disciplining him and he shit in his room and I think he ate shit. And he's not fucking breathing." When paramedics arrived, they found Braeden's bruised and lifeless body on the floor. Zamora told one of the paramedics that Braeden "ate shit and then he stopped breathing." When asked about the bruises, Zamora answered, "He came back from his father's that way."
Braeden was dead before he reached the hospital. His clavicle was broken and "widely displaced," meaning that the break was complete and each side of the bone could be moved "quite freely." He had five rib fractures on the left side of his chest. His left lung and thymus gland were bruised. There was bleeding in the lining of the heart, the spleen, and the left kidney. The stomach and intestinal lining were also superficially torn. These injuries would have required the infliction of multiple forceful blows, such as punches or kicks to the chest and abdomen. Consistent with these internal injuries, Braeden had "numerous overlapping bruises" on his chest, abdomen, back, buttocks, arms, hands, legs, and feet. His lower chest had a "strap-like horizontal" bruise and several oval-shaped bruises that were "reminiscent of fingertips or knuckles." His chest, back, arms, and legs had several "loop-shaped" bruises. Most of these bruises appeared to have been inflicted within the previous 48 hours, while some appeared to be a few days old.
Braeden's face and head were also severely beaten. He had "numerous overlapping" bruises and scrapes on his forehead, eyelids, nose, cheeks, jaw, and ears. There was bleeding inside both of Braeden's eyes, in the muscles of the front of his neck, and in five separate locations under his scalp. On the left side of the child's neck, there was a "patterned injury" consisting of a "central circular abrasion surrounded by a rim of bruising." Nine more of these "pattern" injuries were found on his chest, abdomen, arms, and legs. These injuries could have been caused by being hit with Zamora's glass pipe. Heat from the center of the pipe bowl could have caused the central circular abrasion, while the cooler outside of the bowl would account for the rim of bruising surrounding the abrasion. Braeden also had two "V-shaped or curvilinear" bruises on his left thigh that were "reminiscent of bite marks," bruising on his penis and scrotum that was consistent with "something like a pinch," and bruising on the skin surrounding his anus.
Zamora is the only person who knows exactly what transpired the morning of Braeden's death. According to his account, told to Detective Tom Koontz later that day, he noticed that Braeden had "shit on himself" as Ingram was leaving to go to work. He took the soiled mattress, comforter, and clothes outside and told Braeden to take a shower. Braeden took a shower, changed into a clean pair of underwear and T-shirt, and sat down in his bedroom watching a movie. Zamora then fed Braeden a hotdog for breakfast. About two hours later, Zamora went into the bedroom to check on Braeden and found him on the floor in the corner of the room, leaning against the wall with his eyes open and fluttering. He had again "shit himself" and "there was shit on the wall." Braeden was not breathing and Zamora believed that he had eaten some of his own feces. Zamora was "panicking," picked Braeden up off the floor, carried the child into the master bedroom, placed him on ...