Filed 3/25/13 P. v. Galvez CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B237299

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA051645)
         v.

HECTOR HUGO ARGUETA GALVEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Richard
Naranjo, Judge. Affirmed.
         Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General and William H. Shin, Deputy Attorney General,
for Plaintiff and Respondent.
                                         ________________________
       A jury convicted Hector Galvez of corporal injury to a spouse, felony child abuse,
criminal threats, and assault by means likely to cause great bodily injury. Galvez
appeals, arguing that there was insufficient evidence to convict him of felony child abuse.
We affirm.
                                      BACKGROUND
       A second amended information filed April 13, 2011 charged Galvez with one
count of corporal injury to a spouse, cohabitant, or child‟s parent, in violation of Penal
Code1 section 273.5, subdivision (a) (count 1); one count of felony child abuse, in
violation of section 273a, subdivision (a) (count 2); one count of criminal threats, in
violation of section 422 (count 3) ; and three counts of assault by means likely to produce
great bodily injury or with a weapon, in violation of section 245, subdivision (a)(1)
(counts 4, 5, and 6). Galvez pleaded not guilty.
       A jury found Galvez guilty on all counts. Galvez was sentenced to nine years and
eight months in state prison, with fines, fees, and restitution. He filed this timely appeal.
                                        DISCUSSION
       Galvez‟s sole argument on appeal is that there was insufficient evidence to convict
him of felony child abuse (count 2). We recount the evidence at trial.
       In a call to 911 at 2:00 a.m. on January 23, 2011, Estenia Rodriguez reported that
her sister-in-law‟s husband was beating her sister-in-law up, keeping her inside the house
where the children were crying (Estenia was calling from outside).
       The beating victim was Gladys Soriano. Soriano testified that she had lived with
Galvez for approximately seven years. At the time of the 911 call Soriano and Galvez
lived in Palmdale, with their four-year-old son A.A., and Soriano‟s eight-year-old
daughter by another father, K.F. Soriano‟s brother Illidio Rodriguez and Estenia, his
wife, were visiting from out of state and staying in the house.2


       1   All further statutory references are to the Penal Code unless otherwise indicated.
       2For clarity, we refer to the Rodriguezes as Estenia and Illidio. No disrespect is
intended.

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       The previous day, Galvez, Soriano, the two children, and Illidio and Estenia went
to a baby shower. Galvez wanted to dance, but Soriano said no. Galvez started to drink
beer and tequila. Later, Soriano danced with a female friend and her male friend and then
sat back down. Galvez, who continued to drink, was upset with Soriano. At the
preliminary hearing, Soriano had testified that Galvez called her a bitch and said, “„You
went and danced with somebody, but you wouldn‟t dance with me.‟”3
       Soriano left the party in her car, and Galvez left in his. Once home, Soriano was
washing dishes in the kitchen, and she and Galvez began to argue about her dancing with
someone else. At the preliminary hearing, Soriano testified that Galvez said, “„“You see,
you bitch. You didn‟t want to dance with me, but you danced with others” and he hit me
in my rear end three times.‟” Galvez grabbed her around her neck with both hands,
squeezing until she found it hard to breathe and felt she was losing consciousness. She
had also testified at the preliminary hearing that Galvez was saying, “„“You fucking
bitch. You‟re not knowing what I‟m capable of. I would rather kill you.”‟” Galvez then
dragged Soriano by the hair to the living room and threw her by the couch, leaving
scratches and marks on her neck. During the struggle, Galvez threw kitchen items to the
floor, and a chair was overturned.
       A close friend of the couple, Sergio Herrera, was also at the house, and he went to
get Estenia and Illidio from their room. Illidio told Galvez not to argue with Soriano, but
Galvez “„got me bent against the cement table and I couldn‟t get away from that and then
he was telling my brother that if he wanted to get involved, that he could kill—he could
get killed, too.‟” The children were in the room watching everything, crying and shaking,
with K.F. saying, “„“Don‟t beat up my mother.”‟” Galvez kicked Estenia and Illidio out
of the house and locked the door.




       3 Soriano was hesitant to testify and stated she did not want charges against
Galvez. After she repeatedly testified that she could not remember many of the events,
the prosecutor read her preliminary hearing testimony into the record.

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       Soriano suffered scratches on her neck, an abrasion on her right knee, a bruise on
her left calf, and a four-inch bruise on her inner thigh; a neck injury prevented her from
turning her head for a week.
       At the preliminary hearing, Soriano had testified that in April of 2010, Galvez had
been drinking and approached her with a six-inch knife, holding it close to her, cutting
himself, and smearing her with his blood. Galvez said, “„“You fucking bitch. You don‟t
know what I‟m capable of.”‟” Soriano had also testified that in October of 2010, Galvez
was drinking with Herrera and threw an empty beer bottle at Soriano, who was washing
the dishes. She dodged the bottle. Galvez picked up a piece of the shattered bottle and
made a fist around it, cutting his palm, and said, “„“This is how you shatter a glass.”‟”
       Herrera testified that in October 2010, he and Galvez were drinking at Soriano‟s
kitchen table, and Galvez threw an empty beer bottle at Soriano and then cut himself by
accident. On January 23, 2011, he had gone to the party with Galvez and Soriano. When
they returned to the house, Galvez and Soriano argued, and Herrera saw from the living
room that Galvez had Soriano by the neck with one hand, squeezing it so she couldn‟t
breathe, and was hitting her with the other hand. Herrera went to get the Rodriguezes
from their room, and when he returned, Galvez was still choking Soriano. The children
were on the living room couch, crying, when Galvez dragged Soriano by the hair into the
living room. He did not see K.F. approach Galvez and Soriano.
       Eight-year-old K.F. testified that she could not remember what had happened the
night after the baby shower, and that she did not know what to say. She did not
remember telling the deputy that she heard arguing and saw Galvez grabbing Soriano by
the hair and by the throat. She also did not remember telling the deputy that she grabbed
Galvez by the arm and tried to stop him. K.F. said that when she told the deputy that
Galvez had punched her on the right side of her head, “I lied because I was mad with my
dad.” When she told the deputy that Galvez also hit her on her left shoulder with his fist,
she meant “he was just like playing with me.” The scratches on Soriano‟s neck were
from Soriano scratching her throat because it was itchy. K.F. agreed that “things are very
difficult because [she] told the sheriff‟s deputy what [she] told him the night of the baby

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shower.” As she testified, K.F. was looking at Soriano, who was crying. A photograph
of K.F.‟s shoulder, taken that night, was “a lie.” A mark on her shoulder was a scar from
a shot when she was younger.
      Deputy Sheriff Charles Dana testified that on January 23, 2011, he responded to
the scene and found Soriano crying, with scrape marks all over her chest. He did not
speak Spanish and there were no Spanish-speaking officers working that night. With a
neighbor translating, Soriano told him that Galvez became angry when she danced with
someone else at the party, and back home Galvez called her a bitch and grabbed her by
the hair. He then grabbed her by the throat and squeezed until she had difficulty
breathing. Soriano told Deputy Dana that K.F. then came into the kitchen and grabbed
Galvez by the arm to stop him, and Soriano saw Galvez punch K.F. once in the head and
once in the left shoulder. K.F. ran off, and Galvez dragged Soriano by her hair from the
kitchen into the living room, and tried strangling her some more. Estenia told Galvez that
she was calling 911, and Galvez and Soriano separated, yelling at each other. Deputy
Dana saw red scratch marks on the base of Soriano‟s neck, and a red mark on K.F.‟s left
shoulder.
      K.F. told Deputy Dana that she saw Galvez holding Soriano by the hair with one
hand and by the throat with the other. When K.F. tried to grab Galvez‟s arm, he hit her
once in the head and once in the left shoulder. K.F. then ran to the Rodriguezes‟ room to
get help. Estenia told Deputy Galvez that K.F. told Estenia that Galvez had punched her
in the arm and shoulder, and she needed help.
      Deputy Dana did not see any injury to K.F.‟s head, and a photograph did not show
any. On K.F.‟s shoulder, he saw a small red abrasion shown in a photograph, which also
depicted a vaccination mark which was distinct from the abrasion.
      Deputy Gustavo Munoz testified that he was fluent in Spanish and spoke to
Soriano two months later, on March 23, 2011. Soriano told him that in April 2010, after
a party at which Galvez had been drinking, they argued at home. Galvez grabbed a
kitchen knife and held the tip against her stomach, saying, “„Don‟t mess with me because
you don‟t know what I‟m capable of.‟” A.A. was present. Soriano told Deputy Munoz

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that in October 2010, Galvez threw a 12-ounce beer bottle at her, and if she had not
moved, it would have struck her face.
       Detective India Inez testified as an expert about recanting witnesses in domestic
violence cases. She had been the initial responder to hundreds of domestic violence calls,
had investigated over 400 domestic violence cases, and was the lead investigator on a
grant in the Palmdale sheriff‟s station examining the exposure of children who witness
domestic violence. At the preliminary hearing, a domestic violence incident often was
still fresh to the victim, who might still have some physical injury. By the time of trial,
however, victims tended to forget the fear they felt at the time of the incident, and believe
that the defendant had been in jail long enough and had been punished. Victims with
children also would minimize or recant their statements, wanting their children to have
both parents and fearing the financial repercussions of losing a wage-earner. Minimizing
victims might say the attack or injury was not as bad as it sounded or looked. Recanting
victims might change their story completely. Further, victims might love the defendant
and hope they would change. “70 to 75 percent of my victims will minimize the incident
or completely recant their original statements,” and 90 percent were at least
uncooperative.
       The defense presented no evidence. Defense counsel moved to dismiss all counts
for insufficient evidence. The court denied the motion, holding as to count 2 that the
issue of whether the evidence rose to the level of great bodily harm was for the jury to
decide. The jury was instructed: “The defendant is charged in count 2 with child abuse
likely to produce great bodily harm or death in violation of . . . section 273a,
[subdivision] (a). To prove that the defendant is guilty of this crime, the People must
prove that the defendant willfully inflicted unjustifiable physical pain or mental suffering
on a child and the defendant inflicted pain or suffering on the child under circumstances
or conditions likely to produce great bodily harm or death. . . . The phrase „likely to
produce great bodily harm or death‟ means the probability of great bodily injury or death
is high. Great bodily harm means significant or substantial physical injury. It is an injury
that is greater than minor or moderate harm. If the child is a person under the age of 18,

                                              6
the child does not have to actually suffer great bodily harm, but if a child does suffer
great bodily harm, you may consider that fact, along with all the other evidence, in
deciding whether the defendant committed the offense.”
                                       DISCUSSION
       Galvez argues that the jury‟s guilty verdict of felony child abuse (count 2) was
unsupported by substantial evidence that he struck eight-year-old K.F. “under
circumstances or conditions likely to produce great bodily harm or death.” (§ 273a,
subd. (a).) We disagree.
       We review a claim of insufficiency of the evidence by examining the evidence
“„“in the light most favorable to the judgment,”‟” and determining whether “„“it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value,”‟” so as to allow “„“a reasonable trier of fact [to] find the defendant guilty beyond
a reasonable doubt.”‟” (People v. Prince (2007) 40 Cal.4th 1179, 1251.) The standard is
the same under the federal due process clause. (Ibid.) In support of the judgment, we
presume the existence of every fact the jury could reasonably have deduced from the
evidence. (People v. Farnam (2002) 28 Cal.4th 107, 143.) “„“Of course, all of the
evidence must be examined, but it is not weighed. All of the evidence most favorable to
the respondent must be accepted as true, and that unfavorable discarded as not having
sufficient verity to be accepted by the trier of fact.”‟” (In re Gustavo M. (1989) 214
Cal.App.3d 1485, 1497.) “„“Before the judgment of the trial court can be set aside for the
insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is
there sufficient substantial evidence to support the verdict . . . .”‟” (People v. Racy
(2007) 148 Cal.App.4th 1327, 1332.)
       “Any person who, under circumstances or conditions likely to produce great
bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering” is guilty of felony child abuse. (§ 273a,
subd. (a).) “The difference between felony child abuse, a violation of section 273a,
subdivision (a), and simple child abuse, a violation of section 273a, subdivision (b), is
that the latter does not require that the abuse occur under „circumstances or conditions

                                              7
likely to produce great bodily harm.‟” (People v. Clark (2011) 201 Cal.App.4th 235,
242, fn. 2.) Section 273a, subdivision (a) “does not require force likely to produce great
bodily injury. It requires the willful infliction of injury under circumstances and
conditions likely to produce great bodily injury. While force may be one circumstance or
condition, it is not the only circumstance or condition that may support a conviction for
felony child abuse.” (Clark, at p. 243.) “[C]ircumstances and conditions a reasonable
jury could consider include, but are not limited to: (1) the characteristics of the victim
and the defendant, (2) the characteristics of the location where the abuse took place,
(3) the potential response or resistance by the victim to the abuse, (4) any injuries actually
inflicted, (5) any pain sustained by the victim, and (6) the nature of and amount of force
used by the defendant.” (Id. at p. 245, fn. omitted.) Actual great bodily injury is not
required. (Id. at p. 245, fn. 6.)
       Viewing the evidence in the light most favorable to the jury‟s guilty verdict, K.F.,
the victim, was eight years old, while the defendant was an adult man who had been
drinking beer and tequila. The abuse took place in the kitchen, in which Galvez threw
kitchen items and a chair was upended, when K.F. grabbed Galvez by the arm to try and
stop him from strangling her mother, Soriano. Galvez punched K.F. once in the head and
once on the shoulder; had K.F. responded to the punches or resisted instead of letting go
and running to get help, there was a substantial danger of grave injury to her. There was
evidence of an abrasion on K.F.‟s shoulder, but “[t]he fact that the injuries sustained did
not rise to the level of great bodily injury does not mean that there was not a substantial
danger or well-founded risk of great bodily injury.” (People v. Clark, supra, 201
Cal.App.4th at p. 246.) Although both Soriano and K.F. minimized or recanted
substantial portions of their initial descriptions of Galvez‟s violence, the jury heard
testimony that nearly three-quarters of victims will minimize or recant their original
statements.
       The jury could reasonably have relied on the characteristics of the eight-year-old
victim and her adult male abuser, the danger presented by the violent struggle in the
kitchen, and the potential for serious harm had K.F. continued to try to prevent Galvez

                                              8
from strangling her mother rather than running away. We conclude that there was
substantial evidence to support the jury‟s determination that the abuse of K.F. occurred
under circumstances and conditions likely to produce great bodily injury.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                                 JOHNSON, J.


We concur:


              ROTHSCHILD, Acting P. J.


              CHANEY, J.




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