Filed 7/29/16 P. v. Flores CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069899

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FVI1403349)

ERIK AUSTIN FLORES et al.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County, Debra

Harris, Judge. Affirmed as modified.

         Athena Shudde, under appointment by the Court of Appeal, for Defendant and

Appellant Erik Austin Flores.

         Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and

Appellant Mariah Rita Sugg.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.
McGinnis and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and

Respondent.

       Defendant Erik Flores is the father of three young children (John Doe 1, John Doe

2, and Jane Doe) who were the victims of the charged offenses. The information alleged

that, between April 1, 2011, and June 5, 2014, Flores committed torture (Pen. Code,

§ 206, count 3)1 and child abuse (§ 273a, subd. (a), count 4) on Jane Doe. The

information further alleged that, during that same period, Flores committed torture

(§ 206, count 7) and child abuse (§ 273a, subd. (a), count 8) on John Doe 2. The

information further alleged that, during the same period, Flores committed child abuse

(§ 273a, subd. (a), count 10) on John Doe 1. Finally, the information specifically alleged

that Flores personally inflicted great bodily injury (§ 12022.7, subd. (d)) on the victims in

connection with counts 4, 8 and 10.

       Defendant Mariah Sugg had an "off-and-on" girlfriend relationship with Flores,

and was separately charged with the same set of offenses against the same victims, but

with differing windows of commission. The information alleged that, between

December 1, 2012, and June 5, 2014, Sugg committed torture (§ 206, count 1) and child

abuse (§ 273a, subd. (a), count 2) on Jane Doe. The information further alleged that Sugg

committed torture (§ 206, count 5) and child abuse (§ 273a, subd. (a), count 6) on John

Doe 2. The information further alleged Sugg committed child abuse (§ 273a, subd. (a),

count 9) on John Doe 1. Finally, the information specifically alleged that Sugg



1      All further statutory references are to the Penal Code unless otherwise noted.
                                              2
personally inflicted great bodily injury (§ 12022.7, subd. (d)) on the victims in connection

with counts 2, 6 and 9.

       The jury convicted Flores and Sugg on all counts, and found true the allegations

Sugg personally inflicted great bodily injury in connection with counts 2 and 6 and that

Flores personally inflicted great bodily injury in connection with counts 4 and 8. The

court sentenced each defendant to two life terms plus six years, and imposed but stayed

the sentence on the remaining convictions and true findings.

       On appeal, Flores argues the court prejudicially erred by instructing the jury it

could return guilty verdicts on the torture counts as an aider and abettor of Sugg under the

natural and probable consequences doctrine. He also asserts the evidence was

insufficient to support the torture convictions because there was no evidence either he or

Sugg had the specific intent to cause cruel or extreme pain or suffering for the purposes

of revenge, persuasion or any sadistic purpose.2 In Sugg's separate appeal, she claims

section 273a, subdivision (a), is unconstitutional based on vagueness and, alternatively,

that the court was sua sponte required to instruct that the jury could not find her guilty of


2       Flores also asserts, in a claim joined in by Sugg, there are clerical errors in the
minute order and abstract of judgment that must be corrected, because the court's oral
pronouncement of sentence imposed a life term on counts 3 and 7 (as to Flores) and
counts 1 and 5 (as to Sugg) but the minute order and abstract of judgment show a term of
seven years to life was imposed on each of those counts. Flores and Sugg argue, and the
People concede, that because the court's oral pronouncement of sentence controls over
the minute order and abstract of judgment (People v. Farell (2002) 28 Cal.4th 381, 384,
fn. 2), it must be corrected to show life terms on each of the correct counts. We agree
and, on remand, the trial court shall correct the minute orders and abstracts of judgment
to reflect imposition of life terms on counts 3 and 7 as to Flores and counts 1 and 5 as to
Sugg. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)

                                              3
violating section 273a under the "willfully . . . permits" prong of that statute unless the

jury found she had a duty to control Flores's conduct.

                                          FACTS3

       A. Background

       Flores is the father of John Doe 1, John Doe 2, and Jane Doe. The children's

biological mother left Flores and took the children with her to Oregon in September

2011, but a few months later she sent the children to live with Flores because she had no

money and was unable to care for them. She expected that it would be a temporary

placement and that she would take the children back after she found a good job.

       Flores was living with Janice N. (his then-girlfriend) and Janice's mother (Claudia)

when the children were sent to live with him. Because Flores and Janice were homeless

but Janice had a job, Flores would drive Janice to work and then take the children to the

park, and they would return to Claudia's home after Janice finished work. Claudia

noticed the children always returned home hungry, and she asked Flores on several

occasions whether the children ate during the day, but Flores responded angrily by telling

her, "Don't tell me f--- what to do with my kids, what to feed my kids."




3     Where, as here, a defendant contends the evidence is insufficient to support his
conviction, we must "review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557,
578.) We state the facts in the light most favorable to the judgment.

                                              4
       Janice's aunt and uncle, Jose and Erika, also saw that Flores's children were

skinny, hungry, dirty and neglected. Jose offered them food every time he saw them, and

they would eat over and over again, consuming as much as possible. When Jose offered

the children food while Flores was present, the children would ask Flores for permission

to eat, which Jose thought was unusual. When he learned Flores, Janice and the children

were living out of their car, Jose offered to let the children stay with him and his wife,

and Flores accepted. The children lived with Jose and his wife for a couple of months

beginning around April 2012. The children were pale and hungry when they came to live

with Jose, and ate "a lot" during the months they lived with him. One day, while

changing Jane Doe's diaper, Claudia noticed her genital area looked very red and swollen,

and they suspected there had been sexual abuse, but made no report of the suspected

abuse until later.4

       Jose wanted to keep the children but ultimately had to return them after Flores

called police and claimed Jose had kidnapped them. When police came to Jose's home,

Jose did not mention the suspected sexual abuse but did say the children were not ready

to go home because Flores had no home, but police told Jose that Flores was the father




4       Jose and Erika enrolled the children in preschool and daycare, and the owner of
the daycare (Ms. Moran) noticed Jane Doe did not talk (which Moran thought unusual for
that age), kept to herself, and her hair was thin. They had to feed Jane Doe, even though
she was two years old, and Moran saw Jane Doe's ribs protruded. Moran also noticed
Jane Doe would flinch when her diaper was changed and that her "private area looked
swollen." Moran ultimately reported her concerns of possible sexual abuse because of
the flinching and the swelling around Jane Doe's genital area.

                                              5
and could take the children. Jose reported the suspected sexual abuse after Flores

removed the children from Jose's home.

       B. Flores's Relationship With Sugg

       By the summer of 2012, after Flores regained custody of his children from Jose, he

and his children had moved to Hesperia, California. A social worker, apparently

responding to Jose's report of possible abuse, visited the children at Flores's mother's

home sometime in May 2012 to investigate the condition of the children. When the

social worker visited them, they appeared healthy. After a few follow-up visits that

summer, including one after Flores and the children moved in with Sugg, the social

worker closed the case.

       Flores was involved in an "off-and-on" romantic relationship with Sugg. By

August of 2012, Flores and the children had moved in with Sugg, and they were living

with Sugg when the authorities finally intervened in June 2014 to remove the children

from their care.5

       C. The 2014 Reports and Actions

       Sonia Jorge worked as a clerk at a grocery store in Hesperia, California.

Beginning sometime in the first quarter of 2014, Jorge noticed Sugg (accompanied by a

small boy and small girl) frequenting the store on Mondays. Both children were "so



5      In a statement to police after the children were taken away, Flores said he moved
in with Sugg to help with rent and expenses. He said he had moved back in with his
mother for a period beginning in October 2013 because she had back surgery and needed
his help, but by March 2014 Flores and the children had moved back in with Sugg.

                                              6
skinny" they were "almost bones." On one occasion, the girl's forehead was bruised and

the boy had a black eye. Another employee asked Sugg if she could give the children

some change. When the children lifted their hands to accept the change, they were

looking at Sugg and their hands were shaking. Jorge also offered the children a cookie,

but Sugg refused the offer, saying they could not have cookies because they would make

a mess in the car. Jorge responded she was sure they were good kids, but Sugg said they

were only good around other people and told Jorge she could take the children. Jorge

telephoned the Department of Children's Services (DCS) and reported the bruising she

had seen and provided DCS with Sugg's license plate number, but DCS did not follow up

on that report.

       In May 2014 Sugg and Flores went to a beauty school to enroll Sugg in a program

offered at the school. They were accompanied by Jane Doe and John Doe 2. The school

director, Ms. Armas, saw the children were so thin their skin hung off their arms and they

were able to sit side by side in a normal chair. She tried to talk to the children, but they

"had no energy whatsoever." John Doe's eyes were dark and sunken, and he had dark

circles under his eyes. He also had bruises on his forehead and shins, and his skin had no

color.6

       Armas telephoned the San Bernardino County Department of Children and Family

Services and reported Flores and Sugg, and told the authorities the children looked


6      Other people at the beauty school were equally shocked by the children's
appearance, looking like they had come out of a horror movie. One witness indicated
they sat in a chair, holding hands, and did not move or make a sound, and "you could just
see and sense the fear . . . of these kids."
                                              7
malnourished, emaciated, and looked as though they'd been in a concentration camp.

Ms. Jones, a social services worker, went to Sugg's home on May 22, 2014, to investigate

the report, but Sugg told her that Flores was not home and said Jones would need Flores's

permission to have contact with the children. Jones returned a week later, after obtaining

Flores's permission, and saw the children in their backyard. John Doe 2 and Jane Doe

appeared thin, and Jane Doe (then four years old) was wearing a diaper and not speaking.

Sugg told Jones they received food stamps and WIC nutrition money for Jane Doe, and

Jones checked and found there was adequate food in the house. Sugg told Jones that

Sugg cared for the children during the day while Flores was in school, and claimed she

fed the children during the day and typically at night. Jones told Sugg a public health

nurse would be coming to their home.

       Jones spoke with the nurse on June 5, 2014, who expressed concerns about

possible malnourishment. Jones contacted Flores and told him he needed to get the

children to a doctor as soon as possible. After several conversations, he told Jones he

could not get an appointment until the end of June. Jones was uncomfortable with that

timetable but Flores became upset at her insistence that immediate action was required

and demanded to talk to a supervisor. That request was accommodated, and Flores then

called Jones back and asked if taking the children to an emergency room would "just end

this." Jones agreed, and Flores took the children to an emergency room.

       The emergency room doctor diagnosed the children with severe malnutrition and

neglect and told Jones the children needed to be admitted to a hospital within a week.

The next day, Jones obtained a detention warrant and removed the children from Flores

                                             8
and Sugg's home. Jones stopped at a McDonald's with the children and John Doe 2 ate

all of his breakfast, part of Jane Doe's breakfast, and said he was still hungry and

repeatedly asked for more food. Jane Doe vomited 20 to 30 minutes after eating. Jones

also changed Jane Doe's diaper and notice she was inflamed and red, and flinched when

Jones wiped her. Jane Doe's vagina appeared "a lot more open than what a four-year

old's vagina . . . should look like, it looked like there was a hemorrhoid and discharge."

       Dr. Massi, a forensic pediatrician, examined John Doe 2 and Jane Doe. He

concluded their condition resulted from deprivation of adequate nutrition for a long

period of time. Jane Doe's condition was "approaching death": she was four years ten

months old but weighed only 22 pounds. John Doe 2, who was five years old but

weighed just over 32 pounds, could have died had he not been hospitalized. Both had

abnormally low heartbeats that were concerning, had developed Lanugo from prolonged

malnutrition, and had suffered pancreatic injury. Jane Doe also had scarring and trauma

to her genitalia consistent with having been penetrated, and showed behavioral signs of

emotional trauma as well. John Doe 2 had scrapes and abrasions on his legs, left

shoulder and forehead. Dr. Massi also explained the deleterious consequences of their

condition over the remainder of their lives. The social worker who had investigated the

condition of the children in mid-2012 saw them again after they had been detained in

June 2014 and described them as "[u]nrecognizable" at that time.

       D. Evidence from John Doe 1 and John Doe 2

       A social worker interviewed John Doe 2, who described Sugg as his "new mom

that's mean." John Doe 2 told the social worker that Sugg did not feed him or his brother,

                                              9
and John Doe 2 told Flores about that. John Doe 2 told the social worker Sugg made him

stay outside and in the garage when Flores was gone, but Flores told John Doe 2 that he

did not want to stand up for the children because they were too old and did not behave for

him. Sugg beat John Doe 1 and John Doe 2 because she wanted them to go outside.

John Doe 2 told the social worker that, in one incident, Sugg beat him with a belt and

didn't care that it made him bleed. Flores saw this and told her to stop, and physically

assaulted Sugg, but Flores then left the house and left the children alone with Sugg.

       John Doe 1 testified at trial that Sugg was abusive, including making them run

around the car in the garage at night until they had to go to bed. He described an

occasion when Sugg and Flores punished the children (because John Doe 2 took some

cookies while John Doe 1 was supposed to be watching him) by making all three children

spend part of the night in the garage without blankets. John Doe 1 testified he was scared

because he thought the garage was full of spiders that would bite him, but Flores and

Sugg were laughing about it.

       Sugg did not feed them enough food,7 and Flores was aware the children were not

getting enough food. Sugg forced the children to do exercises all day while she watched

television or laughed at them. She denied their requests for more food, and even denied

requests for water and made them stand in the corner for asking for water. On one

occasion, John Doe 1 saw Jane Doe drinking water from the toilet.



7      For example, John Doe 1 told a detective Sugg would give a him a third of a cup
of macaroni and cheese for dinner, or would strip off the breading from a single corn dog
and give him one half of the remaining meat for his meal while she consumed the rest.
                                            10
       Sugg hit all three children, including the use of a belt and a hanger, and did so

without explanation. Flores also hit the children. Sugg frequently made the children

stand in the corner, from breakfast until lunch, and John Doe 1 often did not know why.

When Flores came home, he did not stop it, but made them continue standing in the

corner. Sugg assigned John Doe 1 over 30 chores, including cleaning the toilets, which

were impossible to complete in a single day. Sometimes he had to stand in the corner all

day as punishment for not finishing his chores the previous day, and was only allowed to

sit to eat his meals. Sugg also punished the children by forcing them to do exercises, like

pushups, sit-ups, jumping jacks, or running in place, and sometimes required such

exercise all day until it was bedtime. Flores was aware of Sugg's methods of punishment

and disagreed with them; although Flores occasionally took the children away for a few

days, he always returned to Sugg with the children.

       E. The Defense

       When asked if he had ever seen the children mistreated, a neighbor testified he

never saw anything out of the ordinary.

                                              II

                   ANALYSIS OF FLORES'S APPELLATE CLAIMS

       A. The Aider and Abettor Instruction Was Proper

       Flores argues the court's instructions were prejudicially erroneous because this

permitted the jury to find Flores guilty of the nontarget offense of torture if it concluded

(1) he aided and abetted Sugg in the target offense of felony child abuse and (2) the

torture by Sugg was a natural and probable consequence of the felony child abuse he

                                             11
aided and abetted. He argues that, under People v. Chiu (2014) 59 Cal.4th 155 (Chiu),

that instruction was erroneous and the error cannot be deemed harmless.

       Aider and Abettor Liability

       An aider and abettor may be convicted for crimes committed by the direct

perpetrator under two alternative theories: under direct aiding and abetting principles and

under the so-called "natural and probable consequences doctrine." (People v. McCoy

(2001) 25 Cal.4th 1111, 1117-1118.) Under direct aiding and abetting principles, the

defendant is guilty of the intended (or "target") offense if he or she acted with knowledge

of the criminal purpose of the direct perpetrator and with an intent or purpose either of

committing, or of encouraging or facilitating commission of, the target offense. (Id. at

p. 1118.) However, an aider and abettor can also be guilty of unintended crimes under

the "natural and probable consequence" doctrine: when the aider and abettor acts with

knowledge of the criminal purpose of the direct perpetrator and with an intent or purpose

either of committing, or of encouraging or facilitating commission of, the target offense,

he or she is guilty of both the intended (target) crime and any other offense (the

"nontarget offense") committed by his or her confederate that was a "natural and probable

consequence" of the target crime he or she aided and abetted. (Id. at p. 1117; accord,

People v. Sattiewhite (2014) 59 Cal.4th 446, 472 [" ' "an aider and abettor is guilty not

only of the offense he intended to encourage or facilitate, but also of any reasonably

foreseeable offense committed by the perpetrator he aids and abets" ' "].) Under the

natural and probable consequences doctrine, "[b]ecause the nontarget offense is

unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant

                                             12
and culpability is imposed simply because a reasonable person could have foreseen the

commission of the nontarget crime. It follows that the aider and abettor will always be

'equally guilty' with the direct perpetrator of an unintended crime that is the natural and

probable consequence of the intended crime." (People v. Canizalez (2011) 197

Cal.App.4th 832, 852.)

       Chiu

       In Chiu, supra, 59 Cal.4th 155, the court addressed whether an aider and abettor

who knew of and intended to facilitate a target offense could be convicted of the

nontarget offense of premeditated murder under the natural and probable consequences

doctrine if the direct perpetrator committed premeditated murder and premeditated

murder was a natural and probable consequence of the target crime. Chiu concluded that,

although an aider and abettor may be convicted of premeditated murder under direct

aiding and abetting principles, an aider and abettor cannot be convicted of the nontarget

offense of first degree premeditated murder under the natural and probable consequences

doctrine, but may only be convicted of second degree murder under that doctrine. (Id. at

pp. 158-159, 165.)

       Chiu, after noting it had not considered aider and abettor liability for first degree

premeditated murder under the natural and probable consequences doctrine, articulated

its reasons for concluding an aider and abettor cannot be convicted of the nontarget

offense of first degree premeditated murder under that doctrine. (Chiu, supra, 59 Cal.4th

at pp. 163-167.) Chiu noted the natural and probable consequences doctrine is a common

law doctrine "firmly entrenched in California law" (id. at p. 163) but, because it is not

                                             13
part of the statutory scheme, the court "may . . . determine the extent of aiding and

abetting liability for a particular offense, keeping in mind the rational function that the

doctrine is designed to serve and with the goal of avoiding any unfairness which might

redound from too broad an application." (Id. at p. 164.) Chiu recognized aider and

abettor culpability under the natural and probable consequences doctrine "is vicarious in

nature" because it is " 'not premised upon the intention of the aider and abettor to commit

the nontarget offense because the nontarget offense was not intended at all. It imposes

vicarious liability for any offense committed by the direct perpetrator that is a natural and

probable consequence of the target offense. [Citation.] Because the nontarget offense is

unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant

and culpability is imposed simply because a reasonable person could have foreseen the

commission of the nontarget crime.' [Quoting People v. Canizalez, supra, 197

Cal.App.4th at p. 852)]." (Chiu, at p. 164.)

       Chiu explained the natural and probable consequences doctrine is based on the

principle that liability extends to reach " 'the actual, rather than the planned or "intended"

crime, committed on the policy [that] . . . aiders and abettors should be responsible for the

criminal harms they have naturally, probably, and foreseeably put in motion.' [(Quoting

People v. Luparello (1986) 187 Cal.App.3d 410, 439.)]" (Chiu, supra, 59 Cal.4th at

pp. 164-165, italics added by Chiu.) Chiu concluded that, because the application of the

natural and probable consequences doctrine does not depend on the foreseeability of

every element of the nontarget offense but instead (at least in the context of murder under

the natural and probable consequences doctrine) has focused on the reasonable

                                               14
foreseeability of the actual resulting harm, "the legitimate public policy concern of

deterring aiders and abettors from aiding or encouraging the commission of offenses that

would naturally, probably, and foreseeably result in an unlawful killing . . . is served by

holding them culpable for the perpetrator's commission of the nontarget offense of

second degree murder." (Id. at p. 165.) Chiu declared that limiting aider and abettor

liability under the natural and probable consequences doctrine to second degree murder

is:

          "consistent with reasonable concepts of culpability. Aider and
          abettor liability under the natural and probable consequences
          doctrine does not require assistance with or actual knowledge and
          intent relating to the nontarget offense, nor subjective foreseeability
          of either that offense or the perpetrator's state of mind in committing
          it. [Citation.] It only requires that under all of the circumstances
          presented, a reasonable person in the defendant's position would
          have or should have known that the nontarget offense was a
          reasonably foreseeable consequence of the act aided and abetted by
          the defendant. [Citation.] [¶] However, this same public policy
          concern loses its force in the context of a defendant's liability as an
          aider and abettor of a first degree premeditated murder. First
          degree murder, like second degree murder, is the unlawful killing of
          a human being with malice aforethought, but has the additional
          elements of willfulness, premeditation, and deliberation, which
          trigger a heightened penalty. [Citation.] That mental state is
          uniquely subjective and personal. It requires more than a showing of
          intent to kill; the killer must act deliberately, carefully weighing the
          considerations for and against a choice to kill before he or she
          completes the acts that caused the death. [Citations.] Additionally,
          whether a direct perpetrator commits a nontarget offense of murder
          with or without premeditation and deliberation has no effect on the
          resultant harm. The victim has been killed regardless of the
          perpetrator's premeditative mental state. Although we have stated
          that an aider and abettor's 'punishment need not be finely calibrated
          to the criminal's mens rea' [(quoting People v. Favor (2012) 54
          Cal.4th 868, 878)], the connection between the defendant's
          culpability and the perpetrator's premeditative state is too
          attenuated to impose aider and abettor liability for first degree

                                             15
           murder under the natural and probable consequences doctrine,
           especially in light of the severe penalty involved and the above
           stated public policy concern of deterrence." (Chiu, supra, 59
           Cal.4th at pp. 165-166, italics added.)

       Analysis

       Flores, although acknowledging Chiu examined only an aider and abettor's

liability for first degree murder on a natural and probable consequences theory, asserts

the same rationale employed in Chiu should apply to an aider and abettor's liability for

torture on a natural and probable consequences theory, because torture is also focused on

the mental state of the direct perpetrator rather than on the pain inflicted on the victim.

(See, e.g., People v. Pre (2004) 117 Cal.App.4th 413, 419-420.)

       We conclude Chiu is limited to an aider and abettor's liability on a natural and

probable consequences theory for first degree murder, and the animating concerns of

Chiu are not sufficiently analogous to extend its application to an aider and abettor's

liability on a natural and probable consequences theory for torture. First degree murder,

apart from the felony-murder variety, requires both that the direct perpetrator acted with

the specific intent to kill and that the direct perpetrator acted willfully, deliberately and

with premeditation. (Chiu, supra, 59 Cal.4th at p. 166.) Our Supreme Court in Chiu held

the latter components of that mental state (the willful, deliberate and premeditated aspect)

was unique, explaining "[t]hat mental state is uniquely subjective and personal. It

requires more than a showing of intent to kill; the killer must act deliberately, carefully

weighing the considerations for and against a choice to kill before he or she completes

the acts that caused the death." (Ibid.) However, although our Supreme Court concluded


                                              16
that policy reasons will excuse the aider and abettor from vicarious liability for the

enhanced punishments applicable to first degree murder, it also concluded public policy

underlying aider and abettor liability does not excuse the accomplice entirely, but instead

is satisfied by an accomplice's second degree murder conviction: "In the context of

murder, the natural and probable consequences doctrine serves the legitimate public

policy concern of deterring aiders and abettors from aiding or encouraging the

commission of offenses that would naturally, probably, and foreseeably result in an

unlawful killing. A primary rationale for punishing such aiders and abettors—to deter

them from aiding or encouraging the commission of offenses—is served by holding them

culpable for the perpetrator's commission of the nontarget offense of second degree

murder. (People v. Knoller (2007) 41 Cal.4th 139, 143, 151-152 . . . [second degree

murder is the intentional killing without premeditation and deliberation or an unlawful

killing proximately caused by an intentional act, the natural consequences of which are

dangerous to life, performed with knowledge of the danger and with conscious disregard

for human life].)" (Chiu, supra, 59 Cal.4th at p. 165.)

       In contrast, the crime of torture is akin to the crime of second degree murder and

imposes punishment when the perpetrator causes a harm and has a specific mental state.

Moreover, torture is not divided into degrees in which a uniquely subjective or personal

intent element elevates the punishment above that imposed for a lesser form of torture.

Finally, the public policy concerns discussed in Chiu are satisfied if Flores is held

culpable (as an aider and abettor) for Sugg's conduct under the natural and probable

consequences doctrine, because he aided and abetted the target offense of felony child

                                             17
abuse and facilitated escalation of that conduct into the nontarget offense.8 We conclude

that, because Chiu approved liability for an aider and abettor for second degree murder

under the natural and probable consequences doctrine, and the policy factors that

animated Chiu to disapprove first degree murder culpability lack sufficient analogues to

extend Chiu to aider and abettor liability for torture under the natural and probable

consequences doctrine, the court did not err in instructing the jury on aider and abettor

liability.

        B. Substantial Evidence Supports the Convictions for Torture

        Flores secondarily argues the evidence was insufficient to support the convictions

for torture, because there is no substantial evidence either he or Sugg intended to inflict

severe pain and suffering, and there was insufficient evidence they intended to inflict

such pain for a purpose proscribed by statute.

        Legal Framework

        The crime of torture, as set forth in section 206, provides: "Every person who,

with the intent to cause cruel or extreme pain and suffering for the purpose of revenge,

extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in


8      Our evaluation of Flores's argument, and our conclusion Chiu's limitations on the
natural and probable consequences doctrine should not be extended to the offenses here,
proceeds from the unstated assumption the jury found Flores guilty of felony child abuse
(and the greater related crime of torture) on aiding and abetting principles rather than as
the direct perpetrator of the felony child abuse and torture. However, we note the jury
found true the allegations Flores personally inflicted great bodily injury in connection
with the felony child abuse of the victims of the torture charged in counts 3 and 7, which
undercuts the assumption the jury found him guilty based on aider and abettor principles.
(See fn. 15, post.)

                                             18
Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture

does not require any proof that the victim suffered pain." Thus, "torture has two

elements: (1) a person inflicted great bodily injury upon the person of another, and (2) the

person inflicting the injury did so with specific intent to cause cruel and extreme 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.)

       When evaluating a challenge to the sufficiency of the evidence, our role is limited.

The appellate court " 'must "review the whole record in the light most favorable to the

judgment below to determine whether it discloses substantial evidence—that is, evidence

which is reasonable, credible, and of solid value—such that a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt." [Citations.] [¶] . . . But it is

the jury, not the appellate court, which must be convinced of the defendant's guilt beyond

a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its

judgment for that of the jury.' " (People v. Sanchez (1998) 62 Cal.App.4th 460, 468,

quoting People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) We must " ' "presume in

support of the judgment the existence of every fact the trier could reasonably deduce

from the evidence" ' " (People v. Davis (1995) 10 Cal.4th 463, 509), and we may not

reweigh the evidence or reevaluate the credibility of witnesses. (People v. Green (1997)

51 Cal.App.4th 1433, 1437.) "Before a judgment of conviction can be set aside for

insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear

that upon no hypothesis whatever is there sufficient evidence to support it." (People v.

Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)

                                              19
       Analysis

       The first element of torture requires evidence Flores or Sugg intended to inflict

extreme or severe pain. (People v. Burton (2006) 143 Cal.App.4th 447, 452.) The courts

have recognized that "[i]ntent is rarely susceptible of direct proof and usually must be

inferred from the facts and circumstances surrounding the offense" (People v. Pre, supra,

117 Cal.App.4th at p. 420), and "[a]bsent direct evidence of such intent, the

circumstances of the offense can establish the intent to inflict extreme or severe pain."

(Burton, at p. 452.) Flores does not dispute that prolonged starvation or excessive

corporal punishment can qualify as extreme or severe pain within the meaning of the

torture statute,9 and instead asserts only that there was no evidence they intended their

conduct to inflict severe pain. However, a jury may consider all of the circumstances

(People v. Misa (2006) 140 Cal.App.4th 837, 843), including the severity of the injuries

(People v. Burton, supra, 143 Cal.App.4th at p. 452) to determine whether the defendant

intended to inflict cruel or extreme pain. Here, two of the victims were so obviously

emaciated that a lay witness testified it looked as though they'd been in a concentration

camp, and the doctor who examined them testified Jane Doe's condition was

"approaching death" and that John Doe 2 could have died had he not been hospitalized.




9      Both forms of abuse appear to qualify under the torture statute (see People v.
Lewis (2004) 120 Cal.App.4th 882, 887 [stating in dicta that withholding food and water
causing starvation can qualify as torture]; People v. Assad (2010) 189 Cal.App.4th 187,
196 [beating with hose and belt]), and there is ample evidence from which a jury could
conclude Flores and Sugg inflicted both forms of physical abuse here.

                                             20
There was substantial evidence from which a jury could infer Flores and Sugg intended to

inflict cruel and extreme pain on these victims.

       Flores alternatively argues there is no substantial evidence to satisfy the second

prong of torture because, even assuming the evidence supported a finding that Flores and

Sugg intended to cause cruel and extreme pain and suffering, there was no evidence they

did so "for the purpose of revenge, extortion, persuasion, or for any sadistic purpose."

However, inflicting cruel and extreme pain and suffering to discipline children appears to

be encompassed within the torture statute (see, e.g., People v. Jennings (2010) 50 Cal.4th

616, 685 [noting deliberate act of starving a child when employed as a behavior

modification technique can qualify as torture]), and there is evidence from which a jury

could have concluded Sugg employed beatings and food deprivation to discipline Flores's

children, and Flores knew of and acquiesced to Sugg's methods.10

       We conclude there was evidence from which a jury could have inferred Flores and

Sugg inflicted great bodily injury on the victims with the intent to cause cruel and




10      For example, when Sugg elected to discipline all three children (because one had
eaten a cookie without permission) by making them sleep in the garage without blankets,
and despite the distress it caused the children, Flores and Sugg were in the house
laughing about it. Sugg also disciplined the children by making them stand all day in a
corner and, when Flores returned home, he did nothing to relieve the children of that
punishment; instead, they continued to have to stand in the corner. Indeed, when John
Doe 2 told Flores about Sugg's mistreatment of them, Flores said he would not stand up
for the children because they were too old and were not well-behaved. On another
occasion, when Sugg disciplined John Doe 2 by making him stand outside while
everyone else was inside eating dinner, Flores did not countermand that discipline but
instead told John Doe 2 to "just roll with it."

                                             21
extreme pain and suffering for the purpose of persuasion, and therefore we affirm the

convictions for torture as alleged in counts 3 and 7 against Flores.

                                              III

                      ANALYSIS OF SUGG'S APPELLATE CLAIMS

       Sugg argues section 273a is unconstitutionally vague under the rationale of People

v. Heitzman (1994) 9 Cal.4th 189 (Heitzman) because it facially permits a defendant to be

convicted if he or she "permits" a child to suffer the requisite injury at the hands of

another without expressly limiting its reach to defendants who were under an affirmative

duty to act to protect the child from such injury. Sugg alternatively asserts that, even

assuming the statute can be given the judicial gloss Heitzman superimposed on section

368, reversal is still required because the trial court's instructions did not sua sponte

incorporate that narrowing construction, and such omission cannot be deemed harmless

under Chapman v. California (1967) 386 U.S. 18 or even under the lesser standard of

People v. Watson (1956) 46 Cal.2d 818, 836, and therefore asserts we should reverse all

of the convictions.

       A. Legal Framework

       Section 273a

       Section 273a has been described as "an omnibus statute that proscribes essentially

four branches of conduct." (People v. Sargent (1999) 19 Cal.4th 1206, 1215 (Sargent).

The court in People v. Valdez (2002) 27 Cal.4th 778, 783 (Valdez), characterized those

four branches of proscribed conduct as follows:



                                              22
          "As relevant here, [section 273a] provides: 'Any person who, under
          circumstances or conditions likely to produce great bodily harm or
          death, [1] willfully causes or permits any child to suffer, or [2]
          inflicts thereon unjustifiable physical pain or mental suffering, or [3]
          having the care or custody of any child, willfully causes or permits
          the person or health of that child to be injured, or [4] willfully causes
          or permits that child to be placed in a situation where his or her
          person or health is endangered, shall be punished by imprisonment
          in a county jail not exceeding one year, or in the state prison for two,
          four, or six years.' [Fn. omitted.]"

       The courts have also stated that "a violation of [section 273a] can occur in a wide

variety of situations: the definition broadly includes both active and passive conduct, i.e.,

child abuse by direct assault and child endangering by extreme neglect." (People v.

Smith (1984) 35 Cal.3d 798, 806.) In cases in which the defendant directly inflicted the

requisite injury, the mens rea for the offense is the general intent to perform the

underlying injurious act. (Sargent, supra, 19 Cal.4th at pp. 1219-1224.) However, in

examining the so-called "indirect abuse" (Valdez, supra, 27 Cal.4th at p. 784) or

" 'passive conduct' " (Sargent, at p. 1216) context, in which the defendant's actions or

inactions indirectly cause the requisite harm to the child, Valdez concluded the mens rea

for those aspects of section 273a criminalizing conduct that "willfully causes or permits"

the requisite injury is a criminal negligence standard. (Valdez, at pp. 787-791.)

       Heitzman

       In Heitzman, supra, 9 Cal.4th 189, our Supreme Court addressed a void-for-

vagueness challenge to a section 368, a statute "based almost verbatim on section

273a . . . ." (Valdez, supra, 27 Cal.4th at p. 788.) Heitzman summarized the void-for-

vagueness principles by explaining that a penal statute must " 'define the criminal offense


                                             23
with sufficient definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and discriminatory

enforcement.' (Kolender v. Lawson (1983) 461 U.S. 352, 357 . . . ; [citation].) [¶] It is

established that in order for a criminal statute to satisfy the dictates of due process, two

requirements must be met. First, the provision must be definite enough to provide a

standard of conduct for those whose activities are proscribed. [Citations.] Because we

assume that individuals are free to choose between lawful and unlawful conduct, 'we

insist that laws give the person of ordinary intelligence a reasonable opportunity to know

what is prohibited, so that he [or she] may act accordingly. Vague laws trap the innocent

by not providing fair warning.' (Grayned v. City of Rockford (1972) 408 U.S. 104, 108

. . . ; [citation].) [¶] Second, the statute must provide definite guidelines for the police in

order to prevent arbitrary and discriminatory enforcement." (Heitzman, supra, 9 Cal.4th

at p. 199.)

       The Heitzman court evaluated a challenge to a segment of section 368, which

facially criminalized passive conduct (resulting in the requisite injury) by a certain

category of persons, under these void-for-vagueness principles. (Heitzman, supra, 9

Cal.4th at p. 193.) The court began by noting the structure of section 368 "reaches two

categories of offenders: (1) any person who willfully causes or permits an elder to suffer,

or who directly inflicts, unjustifiable pain or mental suffering on any elder, and (2) the

elder's caretaker or custodian who willfully causes or permits injury to his or her charge,

or who willfully causes or permits the elder to be placed in a dangerous situation." (Id. at

p. 197.) The Supreme Court in Heitzman examined whether a defendant in the former

                                              24
category, who the prosecutor acknowledged was not the victim's caretaker or custodian

prosecutable under "that portion of the statute pertaining to caretakers or custodians" (id.

at p. 206), could constitutionally be prosecuted as a member of the "any person" category

of potential defendants when her culpability under section 368 rested on her inaction.

(Id. at pp. 206-214; Valdez, supra, 27 Cal.4th at p. 785 ["[i]n [Heitzman] . . . we

addressed the class of persons who, in addition to caretakers and custodians, had a duty to

prevent elder abuse"].)

       Heitzman, after observing the statute "may be applied to a wide range of abusive

situations, including within its scope active, assaultive conduct, as well as passive forms

of abuse, such as extreme neglect" (Heitzman, supra, 9 Cal.4th at p. 197), noted the

defendant in that case was charged under former section 368, subdivision (a), with

"willfully permitting" her elder father to suffer the requisite injury. (Ibid.) Heitzman,

concluding "[i]t was thus her failure to act, i.e., her failure to prevent the infliction of

abuse on her father, that created the potential for her criminal liability under the statute"

(ibid.), therefore examined the constitutionality of that portion of section 368 imposing

criminal liability for the failure to act as applied to "any person who willfully . . .

permits" the requisite injury. (Heitzman, supra, 9 Cal.4th at p. 197.) Heitzman began

with the recognition that, "[u]nlike the imposition of criminal penalties for certain

positive acts, which is based on the statutory proscription of such conduct, when an

individual's criminal liability is based on the failure to act, it is well established that he or

she must first be under an existing legal duty to take positive action." (Ibid.) The duty to

take positive action can find its source in the statute itself. (Id. at p. 198 ["[a] legal duty

                                               25
to act is often imposed by the express provisions of a criminal statute itself"].)

Alternatively, "[w]hen a criminal statute does not set forth a legal duty to act by its

express terms, liability for a failure to act must be premised on the existence of a duty

found elsewhere" (ibid.), such as another criminal or civil statute or "a common law duty

based on the legal relationship between the defendant and the victim, such as that

imposed on parents to care for and protect their minor children." (Ibid.) Heitzman

summarized the "void for vagueness" challenge presented there by stating that, "for

criminal liability to attach under section 368[, subdivision] (a) for willfully permitting the

infliction of physical pain or mental suffering on an elder, a defendant must first be under

a legal duty to act. Whether the statute adequately denotes the class of persons who owe

such a duty is the focus of the constitutional question presented here." (Id. at p. 199.)

       Heitzman concluded section 368, subdivision (a), insofar as it purported to

criminalize the willful failure to prevent abuse by the class of potential defendants

encompassed by the "any person" language of section 368, would be void for vagueness

without a limiting principle that a person falling within that class had an affirmative duty

to act to prevent the harm to the victim, because neither the statutory language itself nor

the case law construing it contained that limitation. (Heitzman, supra, 9 Cal.4th at

pp. 199-207 ["In sum, contrary to constitutional requirements, neither the language nor

subsequent judicial construction of section 368[, subdivision] (a) provides adequate

notice to those who may be under a duty to prevent the infliction of abuse on an elder.

Moreover, the statute fails to provide a clear standard for those charged with enforcing

the law."].) However, Heitzman then explained that, although the court:

                                             26
           "determined that the portion of section 368[, subdivision] (a)
           purporting to impose on any person the duty to prevent the infliction
           of pain or suffering on an elder fails to meet the constitutional
           requirement of certainty[,] [b]efore declaring a statute void for
           vagueness, . . . we have an obligation to determine whether its
           validity can be preserved by 'giv[ing] specific content to terms that
           might otherwise be unconstitutionally vague.' (Associated Home
           Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 598
           . . . ; [citations].) Indeed, we cannot invalidate a statute as
           unconstitutionally vague if ' "any reasonable and practical
           construction can be given to its language." ' (Walker v. Superior
           Court (1988) 47 Cal.3d 112, 143 . . . ; [citation].) [¶] As we shall
           explain, the constitutionally offensive portion of the statute is indeed
           susceptible of a clarifying construction . . . ." (Heitzman, at p. 209,
           italics added.)

       The Heitzman court ultimately concluded the validity of the challenged portion of

section 368, subdivision (a), could be preserved by giving the "constitutionally offensive

portion of the statute . . . a clarifying construction," (Heitzman, supra, 9 Cal.4th at p. 209)

and did so by superimposing on the "any person who willfully . . . permits" (id. at p. 197)

portion of the statute a judicial gloss that limited its reach to those who had an affirmative

duty to exert control over the actor causing or directly inflicting the injury on the victim.

(Id. at pp. 212-214 ["[A] special relationship between the defendant and the person

inflicting pain or suffering on the elder does provide the basis for a reasonable and

practical interpretation of the statutory language at issue here. Under such a statutory

construction, in order for criminal liability to arise for permitting an elder to suffer

unjustifiable pain or suffering, a defendant must stand in a special relationship to the

individual inflicting the abuse on the elder such that the defendant is under an existing

duty to supervise and control that individual's conduct."].) Thus, Heitzman preserved the

validity of the challenged portion of section 368, subdivision (a), by judicially construing

                                              27
the "any person who . . . willfully . . . permits " portion of the statute to limit its reach to

those persons who, by statutory or common law principles, had an affirmative duty to

exert control over the actor causing or directly inflicting the injury on the victim.

       B. The Due Process Claim

       Sugg argues that, under Heitzman, section 273a is unconstitutionally vague. We

begin by noting that Sugg raises no challenge to the constitutionality of those portions of

section 273a, subdivision (a), that impose criminal penalties on that class of persons "who

. . . willfully causes . . . or inflicts . . . unjustifiable physical pain or mental suffering" on a

child, nor does she challenge to the constitutionality of those portions of section 273a,

subdivision (a), that impose criminal penalties on the class of persons who "hav[e] the

care or custody of any child" and either "willfully cause[] or permit[] the person or health

of that child to be injured" or "willfully cause[] or permit[] that child to be placed in a

situation [in which] his or her person or health is endangered."11 Instead, Sugg

challenges only the constitutionality of that aspect of section 273a, subdivision (a),




11      Other courts have rejected void-for-vagueness challenges to the liability imposed
on persons having the care and custody of the child (see, e.g., People v. Beaugez (1965)
232 Cal.App.2d 650, 655-657), and Heitzman (although questioning the statute insofar as
it imposed liability on a noncaretaker who "willfully permits" the victim to be injured)
expressed no concerns with the "caretaker" aspects of the statute, because Heitzman
expressly observed that "[b]ased on their status as [victim's] caretakers, felony criminal
liability was properly imposed on Richard, Sr., and Jerry pursuant to section 368[,
subdivision (a) for the role they played in bringing about their father's demise."
(Heitzman, supra, 9 Cal.4th at pp. 214-215.) Indeed, Heitzman noted that once a
defendant has assumed custody and care over the victim, the duty to affirmatively act to
protect a victim is inherent in the statutory scheme. (Id. at p. 208 & fn. 16.)

                                                28
which, as in Heitzman, imposes criminal penalties on "any person who . . . willfully . . .

permits" the requisite injury to be inflicted.

       We conclude that, because "the legislative history reflects that the language of

section 368[, subdivision] (a) derives verbatim from the felony child abuse statute,

section 273a" (Heitzman, supra, 9 Cal.4th at pp. 204-205), the same limiting construction

adopted by Heitzman can appropriately be adopted as an overlay to "the constitutionally

offensive portion of the statute" (id. at p. 209), and thereby preserve the constitutionality

of section 273a. Accordingly, we follow our Supreme Court's analysis in Heitzman and

construe that portion of section 273a that imposes criminal penalties on noncaretakers

who "willfully permit[]" the requisite injury to be inflicted on a victim is limited to those

persons who had an affirmative duty, under statutory or common law principles, to exert

control over the actor who caused or directly inflicted the injury on the victim. As so

construed, we follow Heitzman and conclude section 273a comports with relevant due

process principles, and we therefore reject Sugg's assertion that section 273a is

unconstitutional.

       C. The Instructional Claim

       Sugg argues that, even if adopting Heitzman's limiting construction preserves the

constitutionality of that portion of section 273a—the section 368 counterpart of which

was examined in Heitzman, reversal of her convictions is nevertheless required because

there was instructional error in not instructing on the principles embodied in Heitzman.

Sugg argues the trial court instructed the jury on all possible theories of guilt embodied in

section 273a, including the "constitutionally offensive portion of the statute" (Heitzman,

                                                 29
supra, 9 Cal.4th at p. 209) of being a person who "willfully permit[ted]" the requisite

injury to be inflicted. Sugg asserts that, as to this aspect of the court's instructions, the

court erred by not sua sponte instructing the jury (under Heitzman) it could only convict

Sugg as a "person who . . . willfully permit[ted]" the requisite injury to be inflicted if the

jury also found Sugg had an affirmative duty, under statutory or common law principles,

to exert control over Flores as the person who caused or directly inflicted the injury on

the victims. Absent this clarifying instruction, Sugg asserts that (although it is possible

the jury convicted Sugg based on one of the other correct theories) it is possible the jury

convicted her on all counts under a legally erroneous theory, i.e. that she "willfully

permit[ted]" Flores to inflict the injuries without a prefatory finding by the jury that she

had a duty to control his actions. She asserts such error requires reversal unless this court

can conclude, beyond a reasonable doubt, that the jury based its verdict on a legally

accurate theory, and she argues the facts presented here cannot support that conclusion.

       No Sua Sponte Instructional Obligation Arose Under the Evidence Here

       We initially reject Sugg's claim that, on the facts presented here, the trial court was

sua sponte obligated to provide a clarifying instruction that the jury could only convict

Sugg if it found she had an affirmative duty to exert control over Flores. Although the

sua sponte obligation requires a trial court to "instruct on general principles of law that

are commonly or closely and openly connected to the facts before the court and that are

necessary for the jury's understanding of the case . . . [citations] . . . [and instruct] upon

every theory of the case supported by substantial evidence, including defenses that are

not inconsistent with the defendant's theory of the case" (People v. Montoya (1994) 7

                                               30
Cal.4th 1027, 1047), that sua sponte obligation arises only for "an issue 'closely and

openly' connected with the case." (Id. at p. 1050.) Here, the evidentiary presentation, as

well as the prosecution's theory, was that both Sugg and Flores either directly inflicted or

caused the requisite injuries to the victims (by denying them adequate food and water and

punishing them by forcing them to exercise until they were exhausted, or by hitting them

or forcing them to sleep in the garage), or at a minimum that both Sugg and Flores had

custody and care of the victims and permitted the other caretaker to inflict those injuries.

On this set of facts, the "constitutionally offensive portion of the statute" (Heitzman,

supra, 9 Cal.4th at p. 209) had no close and open applicability to this case, because the

other statutory grounds were applicable to Sugg. Because the theories under which Sugg

was prosecuted fell squarely within those portions of section 273a that did not trigger the

application of the "constitutionally offensive portion of the statute" (Heitzman, at p. 209),

the principles adopted by Heitzman pertaining to which bystanders might also be liable

for willfully permitting the injury to be inflicted were not so " 'closely and openly'

connected with the case" (Montoya, supra, 7 Cal.4th at p. 1050) that the sua sponte

instructional obligation arose in this case.12 (Cf. People v. McKelvey (1991) 230



12      Sugg's argument appears to be that there was some evidence from which the jury
could have concluded Flores was the direct perpetrator of denying the children adequate
food (because the children were denied adequate food even before Flores moved in with
Sugg), and she merely permitted this pattern of conduct to continue after Flores and the
children moved in with her. Although that evidence (even if credited) may have provided
an argument for exoneration under the prong of section 273a criminalizing the direct
infliction of the requisite injury (Sargent, supra, 19 Cal.4th at pp. 1219-1224), the
evidence was overwhelming that Sugg was a person who was at least a joint caretaker of
the children, which triggered liability under those prongs in which a caretaker or
                                             31
Cal.App.3d 399, 404 [court noted portion of statute potentially uncertain because it "does

not describe those persons liable for permitting or causing a dependent adult to suffer"

but rejected defendant's vagueness challenge because his conduct was clearly

encompassed by a different portion of statute because he had care and custody of

victim].)




custodian willfully permitted injury to his or her charge (Heitzman, supra, 9 Cal.4th at
p. 197), and not a mere bystander to whom Heitzman's analysis might have sufficient
application to trigger sua sponte instructional obligations. Under these facts, "the trial
court was under no obligation to sift through the evidence to identify an issue that
conceivably could have been, but was not, raised by the parties, and to instruct the jury,
sua sponte, on that issue. (See, e.g., People v. Wade (1959) 53 Cal.2d 322, 334-335 . . .
['[T]he trial court cannot be required to anticipate every possible theory that may fit the
facts of the case before it and instruct the jury accordingly. The judge need not fill in
every time a litigant or his counsel fails to discover an abstruse but possible theory of the
facts. [¶] . . . [¶] . . . [The defendant's] theory . . . was not one that the evidence would
strongly illuminate and place before the trial court. On the contrary, it was so far under
the surface of the facts and theories apparently involved as to remain hidden from even
the defendant until the case reached this court on appeal. The trial court need not,
therefore, have recognized it and instructed the jury in accordance with it. Omniscience
is not required of our trial courts.'].) The instructions given the jury were adequate in light
of the evidence presented, and the trial court was under no obligation further to instruct
the jury, sua sponte." (People v. Montoya, supra, 7 Cal.4th at p. 1050.)

                                              32
       Any Instructional Defect Was Harmless13

       We alternatively conclude that, even if the court should have provided a different

instructional charge to the jury, any instructional error was harmless beyond a reasonable

doubt. The instructions included numerous legally correct theories on which a jury could

have relied to convict Sugg of violating section 273a (and of the greater related offenses

of torture): that Sugg was "the individual inflicting the abuse" (Heitzman, supra, 9

Cal.4th at p. 212) because she "willfully . . . inflict[ed] unjustifiable physical pain or

mental suffering" on the victims or "willfully cause[d]" the victims to suffer that injury

(§ 273a, subd. (a)), or that Sugg was a caretaker or custodian who permitted the victim to

be injured or endangered. (Heitzman, at p. 214 ["the statutory scheme also provides that

a caretaker or custodian who causes or permits injury or physical endangerment will

incur criminal liability".]) However, we agree that, by including the "or permitted"



13      It appears the court's instructions, if the court had merely omitted the words "or
permitted" from segment 1-B of its instruction, would have been accurate and required no
amplification under Heitzman. Sugg's argument regarding sua sponte instructional
error—that once the court included the "willfully . . . permits" prong it was also required
to instruct the jury to determine whether the defendant owed a duty to control the actions
of the actual perpetrator—does not assert (nor did Heitzman suggest) a similar limiting
principle with its corresponding instructional obligation applies to caretakers who
"willfully permit[]" the child to suffer such injury. Indeed, Heitzman appears to accept
that, unlike the bystander liability on which Heitzman was focused, the duty of a child's
caretaker to protect against injury is not a duty to control the acts of a third party, but is
instead a duty to protect the victim's well-being. (See Heitzman, supra, 9 Cal.4th at
p. 198 [noting a "criminal statute may also embody a common law duty based on the
legal relationship between the defendant and the victim, such as that imposed on parents
to care for and protect their minor children," and citing with approval People v. Burden
(1977) 72 Cal.App.3d 603, 615, in which the court noted defendant father was under
common law duty to care for young son].)

                                              33
language, when divorced from that aspect of the instruction describing Sugg's liability in

her capacity as a caretaker or custodian for the victims and without inclusion of

Heitzman's limiting principles, the jury was provided a potentially legally incorrect

theory for convicting Sugg.

       However, even when a jury is provided a potentially legally incorrect theory, a

reviewing court may nevertheless affirm when that error can be deemed harmless beyond

a reasonable doubt. (People v. Calderon (2005) 129 Cal.App.4th 1301, 1306 [harmless

beyond a reasonable doubt standard applies when prosecutor presents both correct and

incorrect theories of guilt to jury].) As explained by the court in People v. Brown (2012)

210 Cal.App.4th 1, 12-13:

          "Although the general rule in cases involving a legally inadequate
          theory 'has been to reverse the conviction because the appellate court
          is " 'unable to determine which of the prosecution's theories served
          as the basis for the jury's verdict' " ' [(quoting People v. Guiton
          (1993) 4 Cal.4th 1116, 1130)], even this type of error can, in an
          appropriate case, be harmless: 'If other aspects of the verdict or the
          evidence leave no reasonable doubt that the jury made the findings
          necessary [with respect to the element of the crime at issue], the
          erroneous . . . instruction [on that element] was harmless.' (People v.
          Chun (2009) 45 Cal.4th 1172, 1205 . . . ; see People v. Harris (1994)
          9 Cal.4th 407, 424 . . . [harmless error test traditionally applied to
          misinstruction on the elements of an offense is 'whether it appears
          "beyond a reasonable doubt that the error complained of did not
          contribute to the verdict obtained" ' (quoting Chapman v.
          California[, supra,] 386 U.S. 18, 24) . . . .) ' "To say that an error
          did not contribute to the verdict . . . is . . . to find that error
          unimportant in relation to everything else the jury considered on the
          issue in question, as revealed in the record." ' [(Quoting People v.
          Harris, supra, at p. 430, italics omitted.)]"

       We conclude the inclusion of the legally erroneous theory was harmless beyond a

reasonable doubt. The evidence showed Sugg was a direct perpetrator of the requisite

                                            34
injuries caused by depriving the children of the necessary nutrition,14 and/or the

children's caretaker liable insofar as Sugg permitted them to suffer the requisite injuries,

and the closing arguments of counsel never suggested Sugg's liability was premised on

anything other than her conduct as a direct perpetrator or caregiver for the children. (Cf.

People v. Aguilar (1997) 16 Cal.4th 1023, 1036 [court considers closing argument to

evaluate whether legally erroneous alternative theory was harmless].) The prosecution's

summation emphasized her role as the direct perpetrator of starving the children, and well

as her role as a caretaker of the children, and Sugg's counsel did not argue she was not a

direct perpetrator in the level of nutrition given to the children but instead merely argued

she was herself anorexic and believed the level of nutrition given to the children was

appropriate.

       We reject Sugg's argument that the inclusion of the legally erroneous theory

cannot be deemed harmless beyond a reasonable doubt. Her principal argument appears

to rest on her claim that, because the evidence was "weak and conflicting" on whether she


14     When "other aspects of the verdict . . . leave no reasonable doubt" that the jury
rested its verdict on a legally correct theory, the inclusion of a legally incorrect theory
may be deemed harmless beyond a reasonable doubt. (Cf. People v. Chun, supra, 45
Cal.4th at p. 1205.) Here, other aspects of the verdict reinforce our conclusion the jury
based its verdict on a legally correct theory that Sugg directly caused the injuries. The
jury was instructed on, and found true, the allegations that Sugg personally inflicted great
bodily injury on Jane Doe in connection with Sugg's section 273a, subdivision (a),
offense against Jane Doe, and that Sugg personally inflicted great bodily injury on John
Doe 2 in connection with Sugg's section 273a, subdivision (a), offense against John Doe
2. The determination Sugg personally inflicted the injuries associated with the section
273a offenses appears incompatible with a determination she was guilty of the underlying
offenses as a mere bystander who failed to prevent Flores from inflicting the great bodily
injuries.

                                             35
was a caregiver for the victims (in that the evidence permitted the conclusion she acted as

the primary caregiver only two days week while Flores was home providing care for the

victims for the rest of the time), it was possible the jury convicted her of the offenses as a

mere bystander who "permitted" Flores to inflict the injuries on the victims. However,

that argument disregards that the evidence overwhelmingly demonstrated she was "the

individual inflicting the abuse" (Heitzman, supra, 9 Cal.4th at p. 212), which renders her

status as a caregiver irrelevant.15

       Moreover, even assuming the jury concluded Sugg merely "permitted" (rather than

directly inflicted) the requisite injury, the fact Flores was a caregiver (or even the

principal caregiver) is irrelevant to whether Sugg also qualified as a caregiver who could

be liable under section 273a for permitting the children to suffer the requisite harm, and

the evidence overwhelmingly established she was a caregiver for the victims: (1) Flores

and Sugg lived together with the children as a family unit for many months; (2) the

children described her as their "new mom" and as "act[ing] as [their] stepmom"; (3) Sugg

was the sole caregiver for at least part of the week, and (4) Sugg dispensed discipline for

the children while they lived under the her roof. The fact Sugg was not their biological



15      John Doe No. 2 told the social worker Sugg was mean and personally denied food
to them, and personally used corporal discipline with a belt and made him bleed. John
Doe No. 1 testified Sugg personally denied adequate food to them (and even scolded him
when he tried to share his food with his siblings) even though there was food in the
refrigerator, personally used a belt to inflict corporal discipline, and also punished the
children by requiring them to sleep in the garage (as a punishment for one of them taking
some cookies) or stand in a corner for an entire day or do exercises until they were
"falling down."

                                              36
mother, and not wed to Flores, is irrelevant to whether she had "care and custody" over

the victims within the meaning of the statute. (People v. Morales (2008) 168 Cal.App.4th

1075, 1083 [" '[t]he terms "care or custody" do not imply a familial relationship but only

a willingness to assume duties correspondent to the role of a caregiver' "].) As the court

explained in People v. Perez (2008) 164 Cal.App.4th 1462, 1476: "[T]he relevant

question in a situation involving an individual who does not otherwise have a duty

imposed by law or formalized agreement to care for a child (as in the case of parents or

babysitters), is whether the individual in question can be found to have undertaken the

attendant responsibilities at all. 'Care,' as used in the statute, may be evidenced by

something less than an express agreement to assume the duties of a caregiver. That a

person did undertake caregiving responsibilities may be shown by evidence of that

person's conduct and the circumstances of the interaction between the defendant and the

child; it need not be established by an affirmative expression of a willingness to do so.

[Fn. omitted.]" For all of these reasons, we are convinced beyond a reasonable doubt that

inclusion of the legally erroneous theory was harmless beyond a reasonable doubt.

                                      DISPOSITION

       The matter is remanded to the trial court with instructions that the court shall

correct the minute orders and abstracts of judgment to reflect imposition of life terms on

counts 3 and 7 as to Flores and counts 1 and 5 as to Sugg and, as so modified, the

judgment is affirmed.




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                           McDONALD, J.

WE CONCUR:



BENKE, Acting P. J.



IRION, J.




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