Filed 8/24/20 P. v. Chavez CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                  2d Crim. No. B297349
                                                          (Super. Ct. No. 2018005242)
     Plaintiff and Respondent,                                 (Ventura County)

v.

MAYRA ALEJANDRA
CHAVEZ,

     Defendant and Appellant.


                   Mayra Alejandra Chavez appeals from the judgment
after a jury convicted her of torture (Pen. Code,1 § 206), assault
on a child causing death (§ 273ab, subd. (a)), and second degree
murder (§§ 187, subd. (a), 189, subd. (b)). The trial court
sentenced her to life in state prison on the torture conviction; a
consecutive 25 years to life on the assault; and 15 years to life on
the murder, to be served consecutively to the sentence on the
torture conviction but concurrently with the sentence on the


         1 All   statutory references are to the Penal Code.
assault. Chavez contends: (1) the judgment should be reversed
due to the erroneous admission of cadaver dog scent evidence, (2)
her torture conviction should be reversed because of insufficient
evidence, and (3) the sentence on her murder conviction should be
stayed. We affirm.
           FACTUAL AND PROCEDURAL HISTORY
              Chavez tortures K.L. for over two years
            In June 2012, Chavez gave birth to a daughter, K.L.,
who tested positive for methamphetamine and marijuana.
Chavez was dating K.L.’s father, Omar Lopez, at the time.2
Chavez had an older daughter, N.C., when K.L. was born. Lopez
was not N.C.’s father.
             A few days after her birth, Ventura County Child and
Family Services (CFS) took custody of K.L. and placed her in a
foster home. She was reunified with her mother in February
2013. Within days of reunification, Chavez began to abuse K.L.
She slapped her at nearly every meal, claiming she did not eat
fast enough. She pushed K.L. off a bed once because she thought
it would be funny.
             Lopez began a three-month-long work furlough
program in July. Chavez relapsed on methamphetamine and
heroin while he was away. At some point during that time,
Chavez’s stepsister saw Chavez drop K.L. into a crib and throw a
blanket and pillow over her face. The stepsister told Chavez to
remove the items so K.L. did not suffocate, but Chavez said that
she did not care. Chavez also said that she thought K.L. was


      2 Lopez pled guilty to child endangerment (§ 273a, subd.
(a)) and perjury (§ 118, subd. (a)) in exchange for a 14-year prison
sentence, the dismissal of a second degree murder charge, and his
testimony against Chavez.


                                 2
“annoying” and “ugly.” The stepsister noticed that K.L. had scabs
and bruises on her face. N.C. did not have similar injuries.
              In September, an anonymous tipster reported K.L.’s
injuries to CFS. A social worker went to Chavez’s house and saw
that K.L. was significantly underweight. She had bruises,
abrasions, bite marks, and burns all over her body. Chavez told
the social worker that she did not know the source of her
daughter’s injuries, but that K.L. was “always hurting herself.”
N.C. had no comparable injuries.
              Police conducted a physical abuse investigation at the
social worker’s request. A detective examined K.L. and
photographed her injuries. During an interview, Chavez told the
detective that K.L. fell down a lot. Her bruises may have been
from slipping in the bathtub or a seatbelt that pinched her
stomach.
              The detective was concerned for K.L.’s safety, and
granted CFS authority to remove her and N.C. from Chavez’s
care. After the girls’ removal, Chavez called the social worker
and reiterated the explanations for K.L.’s bruises she had given
the detective. She also claimed that another child had hurt K.L.
on the playground.
              A pediatrician later examined K.L. He documented
injuries all over her body. Given their large number and unusual
locations, the pediatrician believed K.L. was a victim of child
abuse. She had also failed to gain any weight in the previous six
months, which was unusual for such a young child.
              In October, another CFS social worker interviewed
Chavez. Chavez again denied hurting her daughter, and
repeated her claims about the seatbelt injuring K.L.’s stomach
and K.L. slipping in the bathtub. She said K.L. injured her




                                 3
fingers by slamming them in a dresser door. Chavez said she did
not seek out medical attention for K.L. because she was afraid of
losing her daughters. She admitted that she loved N.C. more
than she loved K.L., but said she wanted to regain custody of
both daughters.
             In August 2014, Lopez told the CFS social worker—
falsely—that N.C. and K.L. were in his sole care. He also
claimed—again, falsely—that his relationship with Chavez had
ended. In actuality, Chavez was living with Lopez and her
daughters, despite CFS orders against doing so.
             In September, a third social worker asked Chavez
about the child abuse allegations made against her. Chavez said
that she felt “horrible for everything that happened” and did not
“want to be that type of mom.” She expressed remorse for K.L.’s
injuries, and said that she had learned how to discipline her
daughter appropriately. She wanted to reunify with her family.
             Despite these claims, Chavez’s abuse of K.L.
intensified throughout the latter part of 2014. Once or twice each
day, she made K.L. stand in the corner for three or four hours
with a beanie covering her face. She forced K.L. to drink hot
sauce. She beat K.L. with her hands, shoes, or a spatula. She
poked K.L.’s eyes with her fingers, and hit her in the face or chest
at almost every meal. She regularly forced K.L. to bathe in cold
water, and would often pull a beanie down over her eyes and run
water over her covered head.
             Lopez tried to prevent Chavez’s abuse only once,
when he stopped her from pulling K.L.’s hair. Chavez grew
angry and threw a jar that hit K.L. in the head, causing her to
bleed. Chavez just laughed. Lopez did not intervene again




                                 4
because he feared CFS would get involved. He also thought his
intervention would cause Chavez to hurt K.L. more severely.
              In February 2015, another CFS social worker met
with Chavez and Lopez. Lopez told the social worker that he
could care for N.C. and K.L. without supervision. Chavez
claimed that she wanted to visit her daughters every day. She
also said she rarely disciplined her daughters, and only used
short timeouts when she did.
              By April or May, Chavez and Lopez were both using
methamphetamine. Sometime in mid-June, Lopez left the house
for several hours. When he returned, he saw that half of K.L.’s
face was bruised. He and Chavez did not seek medical treatment
for K.L. because they were afraid that CFS would take N.C.
away.
                         Chavez murders K.L.
              In late June, Chavez returned home around noon one
day and noticed that three-year-old K.L. had soiled her diaper.
Chavez yanked K.L.’s pants down and pulled her feet out from
under her. That caused K.L. to flip backward and slam her head
on the floor. K.L.’s head made a loud crunching noise when it hit,
but she neither cried nor had any visible injury. Chavez was
unconcerned, and finished changing her daughter’s diaper.
              A half-hour later, K.L. yelled “Mommy!” and fell to
the floor. She began to seize, went stiff, and struggled to breathe.
The seizure lasted about 30 seconds. K.L. was able to walk and
talk after it ended, so Chavez and Lopez assumed she was fine.
              K.L. had a second seizure around 45 minutes later.
She again went stiff and struggled to breathe. This seizure
lasted longer than the first, about 90 seconds. After it ended,
K.L.’s body felt like “Jell-O basically, soft,” and she was unable to




                                 5
walk or talk. Chavez and Lopez nevertheless decided against
seeking medical attention, afraid of losing N.C.
             Chavez and Lopez wrapped K.L. in a blanket and
hoped she would go to sleep. Red fluid leaked from her nose.
Around 10:00 that evening, K.L. was breathing on her own, but
her body still felt like Jell-O. Chavez and Lopez went to sleep.
             At 3:00 a.m., Lopez woke to check on K.L. She was
not breathing. Her body was stiff and she did not have a
heartbeat. Lopez woke Chavez and told her that their daughter
was dead.
              Chavez disposes of K.L.’s body in Mexico
             At 4:00 a.m., Lopez went to Chavez’s mother’s house
and told her that K.L. had died. Chavez’s mother told him to go
to Mexico. She lent him her Chrysler and $300.
             Lopez went home and put his daughter’s lifeless body
on the floor behind the driver’s seat in the Chrysler. He put
clothing around K.L to make it look like he was carrying a bag of
laundry. He and Chavez then departed for Mexico.
             Shortly before reaching the border, Lopez moved
K.L.’s body from the floor of the car to her car seat. He had to
apply pressure at the waist and knees to reconfigure her stiff
body into the car seat. Her body had already begun to smell and
decay.
             Chavez and Lopez crossed the Mexican border
around 9:00 a.m., and spent the next 10 or 12 hours looking for a
secluded spot to bury K.L. When they found one, they put her
body in a plastic bag and dug a shallow grave. They put the bag
into the grave and covered it with dirt and plants.
             After burying their daughter, Chavez and Lopez went
to a Tijuana bar and drank. They crossed the border again a




                                6
week later, still driving the Chrysler. They returned to their
house, gathered their belongings, and moved in with Chavez’s
mother. She told them that they should have burned the car.
              Chavez and Lopez drove back to K.L.’s burial site in
late July, again in her mother’s Chrysler. They retrieved K.L.’s
body, put it in the car, and drove to a house in Tijuana. There,
the two stripped the decaying flesh from K.L.’s bones and tried to
dissolve it in bleach. They then broke the bones into small
pieces, scattered them around Tijuana, and returned to Oxnard.
Chavez thereafter referred to K.L. as “the little bitch.”
                     Cadaver dogs search for K.L.
              Over the next two years, Chavez and Lopez
repeatedly lied about K.L.’s whereabouts. In late June 2017, an
Oxnard detective arranged for three cadaver dogs to search the
Chrysler for the scent of human remains. Two of the dogs alerted
to the presence of human remains in the area behind the driver’s
seat. The third dog showed interest in that area, but did not give
a definitive response.
                      Chavez admits K.L. is dead
              In August, Oxnard detectives interviewed Chavez.
She admitted that K.L. was with her and Lopez when they drove
to Tijuana in June 2015. Chavez said they left K.L. on the street
there and returned to Oxnard.
              Chavez subsequently admitted that K.L. was not
alive when she and Lopez took her to Tijuana. She said that K.L.
had fallen off a bed and had a series of seizures. Chavez thought
that she would be fine and did not take her to the hospital.
              Police later recorded a conversation between Chavez
and Lopez. During the conversation, Chavez said that she had
told police that K.L. had died, but did not tell them that she hit




                                7
her head while Chavez was changing her diaper. Chavez
instructed Lopez not to tell the “diaper part” to police. Lopez
ignored this instruction and told police.
            Detectives reinterviewed Chavez after Lopez told
them about K.L.’s cause of death. Chavez told the detectives that
she was changing K.L.’s diaper when she fell back and had a
seizure. Chavez claimed that the fall was an accident, and that
she did not know what caused it. She admitted, however, that
she did not seek medical attention for K.L. because she thought
that CFS would take custody of N.C. if she did. She also
admitted that she and Lopez scattered K.L.’s remains outside
Tijuana after her death.
                            DISCUSSION
                     Cadaver dog scent evidence
            Chavez contends we should reverse the judgment
because the trial court prejudicially erred when it admitted
“unreliable” cadaver dog scent evidence. We disagree.
                       1. Relevant proceedings
            Prior to trial, Chavez moved to exclude the cadaver
dog scent evidence as not accepted in the scientific community
under the standards of People v. Kelly (1976) 17 Cal.3d 24 (Kelly).
The trial court told Chavez that dog scent evidence was not
subject to Kelly, but instead fell within the framework of People v.
Malgren (1983) 139 Cal.App.3d 234 (Malgren). Chavez moved to
exclude the evidence under Malgren, specifically citing the fifth
factor (staleness).3 Because the dogs did not search her mother’s
Chrysler until June 2017—two years after K.L.’s death—she
argued the evidence was too stale and unreliable to be admitted.


      3 Chavez   did not contest any of the other Malgren factors.


                                  8
             The trial court disagreed and admitted the evidence.
It concluded that the two-year delay between K.L.’s death and
the search did not render the evidence inadmissible: Satisfying
the first four Malgren factors satisfied the fifth, as a qualified
and reliable dog would not alert to human remains if the scent
was stale or contaminated. Moreover, there was no evidence that
any other item that had been in the Chrysler would have caused
the dogs to alert their handlers to the scent of human remains.
             One of the handlers testified at Chavez’s trial. After
her testimony, the parties agreed there was no need for an
instruction on the dog scent evidence. During closing arguments,
defense counsel conceded that Chavez and Lopez transported
K.L.’s dead body to Mexico in the Chrysler.
             In a new trial motion, Chavez argued the trial court
erred when it admitted the cadaver dog scent evidence since
there was no scientific support for this evidence under Kelly. The
court denied the motion, again noting that Kelly does not apply to
such evidence.
                         2. Kelly challenge
             Chavez first asserts the trial court erred when it
failed to conduct a Kelly hearing before it admitted the cadaver
dog scent evidence. But as that court noted, Kelly does not apply
to this type of evidence. (People v. Jackson (2016) 1 Cal.5th 269,
316-317, 320 (Jackson).) Malgren sets forth the foundational
requirements for the admission of such evidence. (People v.
Westerfield (2019) 6 Cal.5th 632, 705-706.)




                                 9
                     3. Malgren challenge
            Chavez alternatively asserts that the evidence did
not qualify for admission under Malgren.4
             Before a trial court can admit cadaver dog scent
evidence, five preliminary facts must be established: (1) the dog’s
handler must be “qualified by training and experience to use the
dog,” (2) the dog must be “adequately trained,” (3) the dog must
be reliable, (4) the dog must be “placed on the track where
circumstances indicated the guilty party [may] have been,” and
(5) the scent must not have “become stale or contaminated.”
(Malgren, supra, 139 Cal.App.3d at p. 238.) Where, as here, “‘the
relevance of proffered evidence depends [on] the existence of a
preliminary fact, the trial court must determine whether the
evidence is sufficient to permit the jury to find the preliminary
fact true by a preponderance of the evidence.’ [Citation.]”
(Jackson, supra, 1 Cal.5th at p. 321.) “‘We review the trial court’s
conclusions regarding [preliminary] facts for substantial
evidence,’” and its “‘ultimate ruling [on the evidence’s
admissibility] for . . . abuse of discretion.’” (Id. at pp. 320-321.)
We will reverse that ruling only if the court “‘“‘exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.’” [Citation.]’
[Citation.]” (Id. at p. 321; see also People v. Marks (2003) 31
Cal.4th 197, 226-227 [“reasonable probability” standard set forth
in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), applies to
the erroneous admission of evidence].)


      4 Though  Chavez asserts the evidence did not meet several
Malgren requirements, we consider only her challenge to the fifth
requirement since that was the only challenge advanced at trial.
(People v. Doolin (2009) 45 Cal.4th 390, 438.)


                                 10
             There was no abuse of discretion here. The fifth
Malgren requirement “is not an independent requirement” and
can instead be “satisfied by evidence that establishes the other
four.” (Jackson, supra, 1 Cal.5th at p. 325.) “[T]he relevant
question is not . . . whether the scent is ‘stale’ or ‘contaminated,’
but whether a well-trained dog is able to alert its handler that it
is unable to discern a particular scent from the scent item or that
the scent on the scent item does not have a trail.” (Id. at p. 324.)
             Here, prior to trial, Chavez did not challenge the
qualifications of the handler of the two dogs who alerted to K.L.’s
remains, the training or reliability of those dogs, or that the
circumstances indicated that Chavez and K.L.’s remains had
been in the Chrysler. The trial court could thus rationally
conclude that the fifth Malgren requirement was satisfied since
reliable, well trained dogs would not have alerted to a scent that
was not present.
             Moreover, there was evidence from which the trial
court could rationally infer that the scent of K.L.’s remains had
not grown stale or become contaminated. K.L.’s lifeless body was
in the Chrysler for more than 15 hours while Chavez and Lopez
drove to Tijuana and searched for a place to bury her. Her body
was already decaying and beginning to smell during this trip.
K.L.’s body was in the car again the following month, after
Chavez and Lopez excavated her remains and took them to a
Tijuana house. It had decayed even further by this time. Thus
even if the fifth Malgren requirement were independent of the
other four, there was sufficient evidence to uphold the trial
court’s determination that it was satisfied here.
             But even if it were not, reversal would not be
required since there is no “reasonable probability” that the jury




                                 11
would have reached a different verdict if the cadaver dog scent
evidence had not been admitted. The dog scent evidence was not
“among the most damning pieces of evidence” offered at trial, as
Chavez characterizes it. In an interview with police, Chavez
admitted that K.L. was in the Chrysler when she and Lopez
drove to Tijuana in June 2015. She later admitted that K.L. was
dead when they made the trip. And she admitted that she and
Lopez were in the Chrysler when they scattered K.L.’s remains
around Tijuana in July.
             The evidence proffered at trial corroborated Chavez’s
admissions. Lopez confirmed all of Chavez’s admissions,
including that they used the Chrysler to transport K.L.’s dead
body over the border. Border crossing evidence confirmed Lopez’s
testimony and Chavez’s admission, showing the Chrysler crossing
back into the United States a week after K.L.’s burial. In light of
this evidence, defense counsel conceded during closing arguments
that Chavez and Lopez used the Chrysler to transport K.L.’s body
to Mexico. Chavez provides no good reason to reject that
concession now. There is no reasonable probability that the jury
would have reached different verdicts if the cadaver dog scent
evidence had not been admitted. (Watson, supra, 46 Cal.2d at p.
836.)
                  Sufficiency of evidence of torture
             Chavez next contends her torture conviction should
be reversed because prosecutors presented insufficient evidence
that she specifically intended to cause extreme pain and suffering
for some sadistic purpose. We again disagree.
             A torture conviction requires proof that the
defendant: (1) inflicted great bodily injury on another person,
and (2) “did so with specific intent to cause cruel and extreme




                                12
pain and suffering for the purpose of revenge, extortion,
persuasion, or for any sadistic purpose.” (People v. Baker (2002)
98 Cal.App.4th 1217, 1223; see § 206.) Whether Chavez intended
to cause extreme pain and suffering for some sadistic purpose is a
question of fact. (See People v. Hamlin (2009) 170 Cal.App.4th
1412, 1429.) Our review is thus limited to determining whether
substantial evidence—“evidence that is reasonable, credible, and
of solid value”—supports the jury’s verdict. (People v. Zamudio
(2008) 43 Cal.4th 327, 357 (Zamudio).)
             “Intent is rarely susceptible of direct proof,” however,
and must instead “be inferred from the facts and circumstances
surrounding the offense.” (People v. Pre (2004) 117 Cal.App.4th
413, 420 (Pre).) But the same standard of review applies. (People
v. Valencia (2008) 43 Cal.4th 268, 289.) We view the evidence “in
the light most favorable to the prosecution and presume in
support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence.” (Zamudio, supra,
43 Cal.4th at p. 357.) Reversal is warranted only if “‘it appears
“that upon no hypothesis whatever is there sufficient substantial
evidence to support”’ the jury’s verdict. [Citation.]” (Ibid.)
             Substantial evidence supports the jury’s
determination that Chavez intended to cause extreme pain and
suffering for some sadistic purpose. Chavez began to inflict
injuries on K.L. almost immediately after she gained custody of
her daughter, when K.L. was just eight months old. She slapped
K.L. at mealtimes. She bruised, scratched, bit, and burned K.L.
She made K.L. stand for hours with her face covered. She forced
her to drink hot sauce, poked her in the eyes, and hit her in the
face and chest. And at bathtime she would waterboard her
daughter. Such a horrific course of conduct, extending over a




                                 13
period of more than two years, provided circumstantial evidence
of Chavez’s intent to torture her daughter. (People v. Hamlin
(2009) 170 Cal.App.4th 1412, 1429; People v. Massie (2006) 142
Cal.App.4th 365, 371.) That such conduct can be distinguished
from other cases upholding torture convictions is irrelevant: “[A]
comparison to the facts in other cases is of little value in
assessing the sufficiency of the evidence in a particular case.”
(Pre, supra, 117 Cal.App.4th at p. 423.)
             The sheer number of injuries Chavez inflicted also
provided circumstantial evidence of Chavez’s intent to torture.
K.L. had bruises, abrasions, scratches, bite marks, and burns all
over her body. She had scabs and scars on her face, and chunks
of hair missing from her scalp. Her fingers and toes had been
smashed. These extensive injuries provided the jury with
circumstantial evidence of Chavez’s intent to torture. (People v.
Chatman (2006) 38 Cal.4th 344, 390-391 [scores of wounds on
unresisting victim is evidence of intent to torture]; People v.
Crittenden (1994) 9 Cal.4th 83, 141 [multiple nonfatal wounds is
consistent with intent to torture].)
             Chavez’s callous attitude toward K.L.’s injuries
provided further evidence of her torturous intent. Soon after
reunification Chavez laughed after she pushed K.L. off the bed.
She laughed again when she hit K.L. in the head with a jar and
caused her to bleed. She told her stepsister that she didn’t care if
K.L. suffocated. She called K.L. an “annoying” and “ugly” “little
bitch” and said she did not love her. And perhaps most
significantly, she regularly neglected to seek medical attention
for K.L., afraid of losing N.C., the daughter she did purportedly
love. Such indifference provided the jury with additional
circumstantial evidence of Chavez’s intent to cause extreme pain




                                14
and suffering for some sadistic purpose. (People v. Misa (2006)
140 Cal.App.4th 837, 843-844 [indifference to victim’s medical
needs is evidence of intent to torture].)
                 Punishment for assault and murder
             Finally, Chavez contends the trial court should have
stayed the sentence on her murder conviction because that
offense was indivisible from her assault on a child causing death.
We are not persuaded.
             “An act . . . that is punishable in different ways by
different provisions of law shall be punished under the provision
that provides for the longest potential term of imprisonment, but
in no case shall the act or omission be punished under more than
one provision.” (§ 654, subd. (a).) This prevents a defendant from
being punished for multiple offenses that are committed during
“a course of conduct deemed to be indivisible in time.” (People v.
Beamon (1973) 8 Cal.3d 625, 639.)
             “‘“‘Whether a course of criminal conduct is divisible[,]
and therefore gives rise to more than one act within the meaning
of section 654[,] depends on the intent and objective of the
actor.’”’” (Jackson, supra, 1 Cal.5th at p. 354.) If all of the
offenses were “merely incidental to” a single objective, or were all
“the means of accomplishing or facilitating” that objective, the
defendant “may be found to have harbored a single intent and . . .
may be punished only once.” (People v. Harrison (1989) 48 Cal.3d
321, 335 (Harrison).) But if the defendant “harbored ‘multiple
criminal objectives’ [that] were independent of and not merely
incidental to each other, [they] may be punished for each
statutory violation committed in pursuit of each objective, ‘even
though the violations shared common acts or were parts of an
otherwise indivisible course of conduct.’ [Citation.]” (Ibid.)




                                 15
             “Intent and objective are factual questions for the
trial court, which must find evidence to support the existence of a
separate intent and objective for each sentenced offense.”
(Jackson, supra, 1 Cal.5th at p. 354.) We will uphold the court’s
determination that Chavez had separate intents and objectives
when assaulting and murdering her daughter if supported by
substantial evidence. (People v. Osband (1996) 13 Cal.4th 622,
730.)
             Chavez’s assault conviction was based on pulling
K.L.’s pants down, grabbing her feet, and flipping her backward,
which caused K.L. to smash her head on the floor and ultimately
die. Chavez’s murder conviction was based on her failure to seek
medical treatment for K.L. after the assault, despite her
daughter enduring a series of seizures and difficulty breathing.
At sentencing, the trial court found that Chavez’s intent was to
punish and inflict pain on K.L. during the assault. In contrast, it
found that “self-preservation and a fear of losing . . . [N.C.]”
motivated Chavez to refrain from seeking medical treatment for
K.L. Substantial evidence supports these findings. Punishing
Chavez for both the assault and the murder was thus proper.
(Harrison, supra, 48 Cal.3d at p. 335.)
                           DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED.

                                     TANGEMAN, J.
We concur:

             GILBERT, P. J.

             PERREN, J.




                                16
                    Derek D. Malan, Judge

               Superior Court County of Ventura

                ______________________________


             Jennifer A. Mannix, under appointment by the Court
of Appeal, for Defendant and Appellant.

            Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster,
Deputy Attorneys General, for Plaintiff and Respondent.
