Filed: 1/22/15 P. v. Stansell CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B252639

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA056070)
         v.

JACQUORIE CHARLES STANSELL et
al.,

         Defendants and Appellants.


         APPEALS from judgments of the Superior Court of Los Angeles County, Lisa
Mangay Chung, Judge. Reversed in part, modified in part, and affirmed in part.
         Maxine Weksler, under appointment by the Court of Appeal, for Defendant and
Appellant Jacquorie Charles Stansell.
         Janet J. Gray, under appointment by the Court of Appeal, for Defendant and
Appellant Nailah White.
         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Victoria B. Wilson, Erika D. Jackson and Zee Rodriguez, Deputy Attorneys
General, for Plaintiff and Respondent.
                                     I. INTRODUCTION


       A jury convicted defendants, Jacquorie Charles Stansell and Nailah White, of:
child abuse (Pen. Code, § 273a, subd. (a))1; assault by means of force likely to produce
great bodily injury (§ 245, subd. (a)(4)); battery with serious bodily injury (§ 243, subd.
(d)); mayhem (§ 203); and torture (§ 206). The jury further found that with respect to the
child abuse and aggravated assault counts, defendants personally inflicted great bodily
injury on the victim. (§ 12022.7, subd. (a).) Defendants were each sentenced to life with
the possibility of parole. We hold battery with serious bodily injury is a lesser included
offense of simple mayhem. Therefore, we reverse defendants’ battery with serious bodily
injury convictions. We modify the judgments with respect to assessments. We affirm the
judgments in all other respects.


                                     II. THE EVIDENCE


                                   A. The Prosecution’s Case


                                         1. Overview


       Ms. White had two children, A. and Lailah. A. is the victim in this case. At the
time of the events leading to defendants’ convictions, A. was seven and Lailah was six.
Mr. Stansell was Ms. White’s live-in boyfriend. The two adults and two children lived in
a Palmdale apartment complex. Mr. Stansell had a history of whipping, slapping and
punching A.
       Shortly before 5:30 p.m. on April 29, 2012, Mr. Stansell decided to take the
children to the apartment complex’s swimming pool. Mr. Stansell told A. to put on his



1      Further statutory references are to the Penal Code except where otherwise noted.


                                              2
swimming trunks. A. did not want to go to the pool because it was cold outside and he
did not know how to swim. According to witnesses, April 29, 2012 was a windy, cool
day. The temperature was around 60 degrees. The pool water was very cold. When A.
started to cry, Mr. Stansell slapped him across the face and told him to stop.
       After arriving at the pool, over the course of the ensuing two hours, Mr. Stansell
verbally and physically abused A. This ongoing abuse caused A. to nearly drown and,
ultimately, to lose consciousness. Ms. White both participated in the abusive conduct and
failed to protect A. Mr. Stansell ostensibly attempted to teach A. to swim in a manner
described by witnesses as “excessively rough.” Mr. Stansell threw A. into the pool. Mr.
Stansell forced A. to remain in water eight feet deep. Mr. Stansell knew A. could not
swim. A. could barely keep his head above water, was swallowing water and was
choking. Mr. Stansell slapped A. in the back of the head with an open hand. Mr. Stansell
held A. under water with one hand. While doing so, Mr. Stansell punched A. with the
other hand. Mr. Stansell punched A. at least three times with a closed fist. Mr. Stansell
used profanity toward A. Mr. Stansell screamed and yelled at A. Mr. Stansell called A.
stupid and “dumb ass.” Mr. Stansell left the child alone in the pool while sitting in the
Jacuzzi. Mr. Stansell left A. floating face down in the water for 30 seconds. Mr. Stansell
threw, shoved and dragged A. out of the pool onto concrete. Mr. Stansell stood over A.
and demanded that the youngster get up. Mr. Stansell demanded that A. “man up.” Mr.
Stansell threatened A. saying, “You better get up or I’m going to fuck you up.” Mr.
Stansell stood A. upright then backed away even though the child was visibly dizzy and
stumbling. Mr. Stansell watched as A. fell face first onto the concrete.
       Firefighters found A. lying on the apartment floor unconscious. He was shivering
and hyperventilating. He was suffering from hypothermia. He had a large hematoma on
his forehead, chipped teeth, a swollen lip and was bleeding from his mouth. A. showed
signs of brain injury due to oxygen deprivation. A. was evacuated by helicopter to
Children’s Hospital.


                                 2. The Six Eyewitnesses

                                             3
                                    a. Andrew Proctor


       Mr. Proctor was at the apartment complex pool for 30 to 40 minutes on the
evening in question. Defendants, A. and Lailah were also there. When Mr. Proctor first
arrived at the pool, defendants and A. were in the eight-foot deep end. Mr. Proctor
testified, “[Defendants] were teaching [A.] how to swim in an excessively rough way.”
Mr. Proctor explained what he meant by “excessively rough”: “I saw the female
defendant, the mother, she wouldn’t let him out of the pool. The father, he was just - - he
was verbally abusive. I did see him slap the boy in the back of the head. It was an open
hand.” Mr. Stansell called A. “stupid” and “dumb ass” and words to that effect. Mr.
Proctor testified, “[Mr. Stansell was] just being cruel in the way he was speaking to [A.].”
Defendants were verbally abusive toward A. throughout Mr. Proctor’s observation of the
events. Five minutes after arriving at the pool, Mr. Proctor started a spontaneous game of
volleyball with Mr. Stansell. The two men were in the shallow end of the pool. The
game lasted 20 to 30 minutes.
       During that time, Ms. White was in the deep end with A. Ms. White was holding
onto the pool’s edge. A. tried to exit the pool approximately 10 times. Each time, Ms.
White prevented A. from reaching the pool’s edge or its shallow end. She pushed A.
back into the middle of the deep end. It was apparent to Mr. Proctor that A. did not know
how to swim. A. could barely keep his head above the water. He was struggling to stay
above the water. He was also swallowing water and choking. A. appeared to be cold and
very tired.
       During the 30 to 40 minutes he was present, Mr. Proctor saw A. go under the
water approximately 10 times. Mr. Proctor testified: “[A.] was having trouble staying
afloat. It was clear he could not swim.” In Mr. Proctor’s view, “[A.] was not having
fun.” After 20 to 30 minutes, Mr. Proctor got out of the pool because he was cold. He
went into the Jacuzzi, as did defendants. Defendants left A. in the pool Defendants sat



                                             4
side by side in the Jacuzzi, talking to each other and with Mr. Proctor for about 10
minutes.
       Defendants were facing a parking lot; the pool was to their left. While Mr. Proctor
and defendants were in the Jacuzzi, Mr. Proctor saw A. crawl out of the pool on his hands
and knees. A. crawled slowly up the stairs in the shallow end of the pool. A. was crying.
He lay on the concrete three feet from the pool’s edge. He was laying face down on the
concrete, choking and coughing. His arms and legs were outstretched. Mr. Proctor
described A. as “exhausted.” Mr. Stansell called A., who was lying on the ground, a
“dumb ass.” Mr. Proctor left the pool area. Later, after viewing a television news report
of the incident, Mr. Proctor went to the Palmdale sheriff’s station and reported what he
had observed.
       A. was told by defendants he had to learn how to swim. Defendants were, in Mr.
Proctor’s words, “[V]ery motivated to teach him how to swim.” Mr. Proctor testified, “I
remember [Mr. Stansell] yelling at [A.] to try and keep his hands and legs above the
water because he kept on going underneath the water.” Mr. Proctor believed that
defendants wanted A. to stay above the water. Mr. Proctor did not think A. was in any
immediate danger. Mr. Proctor testified, “When I left [the pool], I believed that [A.] was
simply overreacting.”


                                  b. Esteban Rodriguez


       Mr. Rodriguez was delivering furniture to the apartment complex. He heard a
noise that caused him to look toward the pool. The pool was about 10 feet away. Mr.
Rodriguez saw only two people in the pool—Mr. Stansell and A. Ms. White and Lailah
were outside the pool. Ms. White was lying on a lounge chair. Mr. Stansell was
speaking in a “very loud,” upset voice. Mr. Stansell was reprimanding A. Mr. Stansell
said to A. in a “rough” voice, “What are you thinking.” Mr. Rodriguez saw Mr. Stansell
holding A. underwater with one hand. Mr. Stansell was punching A. with his other hand.
Mr. Rodriguez saw Mr. Stansell punch A. with a closed fist at least three times. Mr.

                                             5
Rodriguez was certain he saw the punches. After being punched, A. remained under the
water for 20 to 30 seconds. Mr. Rodriguez testified: “[Mr. Stansell] was upset of the kid
and he was kind of, like, reprimanding saying ‘What are you thinking?’ And I saw at
least three punches, one hand holding him and stay under the water and the other one
hitting him. And that’s what I saw immediately.” Mr. Stansell then grabbed A. Mr.
Stansell pushed and shoved A. out of the water onto concrete. Mr. Stansell was upset. A.
landed “pretty hard” on the concrete. He was on his hands and knees, almost lying down.
A. vomited water. Mr. Rodriguez testified, “I [was] worried about the kid’s safety . . . .”
Mr. Rodriguez observed A. off and on for 20 or 30 minutes. Some time later, Mr.
Rodriguez saw Mr. Stansell carrying A. into the apartment building. Mr. Rodriguez
never saw anyone in a Jacuzzi. He did not remember seeing a Jacuzzi. Mr. Rodriguez
testified what he observed was not a swimming lesson. In Mr. Rodriguez’s opinion: “[It
was] somebody being upset of a person and punching him. It was not swim lessons.”


                                     c. Mario Escobar


       Mr. Escobar had accompanied Mr. Rodriguez to the apartment complex. The two
men were dropping off some mattresses for Mr. Escobar’s mother-in-law. They made
four or five trips from their Suburban to the apartment complex and back. Mr. Rodriguez
told Mr. Escobar something was going on in the pool, somebody was being hit. Mr.
Escobar looked towards the pool and saw A. floating face down in the pool. A. was
floating with his arms out and his head and legs underwater. A. was not moving. Mr.
Stansell was nearby. Mr. Escobar watched A. float face down for 30 seconds. At first,
Mr. Escobar thought A. was just playing. Mr. Escobar saw Mr. Stansell walk away. Mr.
Stansell returned 20 to 30 seconds later. Mr. Stansell went into the pool, picked A. up,
and threw the youngster toward the shallow end. Mr. Stansell picked A. up a second time
and threw the child again. Mr. Escobar described Mr. Stansell’s actions: “[He] grabbed
[A.] with both hands and just kind of threw him into the shallow water and then grabbed
him again and then threw him into the thing and he finally got him out of the pool.” Mr.

                                             6
Stansell dragged A. out of the pool. Mr. Escobar testified: “[A]fter like three throws,
[Mr. Stansell] got [A.] out of the pool and then . . . the kid was on the ground. He was
laying there. And then I just - - I guess that’s when I realized something just wasn’t right
. . . .” A. was lying on the concrete coughing and was moving very little. Mr. Stansell
walked away. Thirty seconds later Mr. Stansell returned.
       Mr. Stansell and Ms. White yelled at A. to get up. They told A., “Come on you”
and “Get up.” Mr. Stansell told A., “[M]an up.” Mr. Stansell and Ms. White were
speaking to A. in an aggressive manner. They were using profanity towards A. Mr.
Stansell said, “[Y]ou better get up or I’m going to fuck you up.” Mr. Stansell attempted
to stand A. upright. A. stood briefly. He looked dizzy, dazed and woozy. A. was
stumbling. Mr. Stansell and Ms. White backed away. A. fell face forward to the
concrete. He did not get up again. Mr. Stansell was standing six or seven feet away
when A. fell. Mr. Stansell was facing A. Ms. White was also present. Mr. Escobar did
not see either parent take any action. Mr. Escobar could hear Lailah crying. After A. fell
face first to the concrete, Mr. Stansell and Ms. White left him there. Mr. Escobar
described Mr. Stansell’s and Ms. White’s behavior toward A. as “aggressive.” Mr.
Escobar did not see anyone perform cardiopulmonary resuscitation on A. He did not hear
anyone call for emergency assistance.
       On cross-examination, Mr. Escobar testified Ms. White was present when A. fell
face first to the concrete. But Mr. Escobar did not know exactly where she was or what
she was doing. Mr. Escobar testified: “She was there. I just don’t know what she was
doing or where exactly she was, but she was there. At some point, they were both pretty
much in front of the child.”




                                     d. Jose Martinez


       Mr. Martinez was the apartment complex’s on-site maintenance manager. Mr.
Martinez saw A. kneeling down outside the pool. A.’s arms were on the cement. A. was

                                             7
vomiting water. A. looked tired. He looked like he wanted to cry. Ms. White was in the
Jacuzzi. Mr. Stansell was standing outside the Jacuzzi. Mr. Stansell grabbed A. by one
arm and dragged the youngster closer to the Jacuzzi. The last time Mr. Martinez saw A.,
Mr. Stansell was carrying the youngster. It looked like A. was unconscious.


                                       e. Marvin V.


       Ten-year-old Marvin was also swimming in the pool that day. Marvin testified A.
did not want to go into the pool. A. looked “a little bit scared.” Then Mr. Stansell threw
A. into the pool. Mr. Stansell and Ms. White were throwing A., who could not swim, in
the pool. Marvin saw A. “drowning.” Marvin testified that drowning meant a person
could not breathe underwater. A. could not breathe because he was under the water. A.
struggled to get out of the pool by himself. He lay down on the cement. Mr. Stansell and
Ms. White were in the Jacuzzi. They were talking and laughing. When asked how often
A. was under the water, Marvin testified, “Probably a lot.”


                                     f. Nelson Peraza


       Mr. Peraza watched the events in the pool unfold from a neighbor’s front porch.
Mr. Peraza testified Mr. Stansell and Ms. White were forcing A. to swim. Ms. White was
in the pool for about five minutes but then got out. Ten minutes later, Mr. Stansell also
got out, leaving A. alone in the pool. A. was under the water for “quite a minute,” in Mr.
Peraza’s words. Mr. Stansell got out of the Jacuzzi and went back to the pool. Mr.
Stansell grabbed A. by one arm and pulled the youngster out of the pool onto the cement.
Mr. Peraza testified, “He didn’t care any more or nothing, just pulled him.” Mr. Peraza
further testified: “He pulled him out, dragged him onto the concrete. So he didn’t pick
him up at all.” A. was on his knees on the concrete, crying and coughing up “a lot” of
water three to four feet from the Jacuzzi. Mr. Stansell and Ms. White were in the Jacuzzi.
They left A. there on the concrete. At one point Mr. Stansell brought A. over to the hot

                                             8
tub and placed the youngster on Ms. White’s lap. A. remained there for five minutes.
Mr. Peraza described Mr. Stansell as “upset.” Mr. Peraza said Mr. Stansell spoke to A. in
a rough tone of voice about wanting to come to the pool but not knowing how to swim.
Mr. Stansell and Ms. White began to walk away from the pool area. But A. was
paralyzed. He could not move or walk. Mr. Stansell went back for A. Mr. Stansell
carried A. like a sack and walked into the apartment building.


                             3. The Emergency Responders


      Mr. Stansell telephoned an emergency operator. When firefighters arrived, A. was
lying on the floor of the family’s apartment shivering and hyperventilating. He was
unresponsive. He had a hematoma on his forehead with significant swelling. Firefighter
Ryan Golphenee testified, “[A] hematoma is the swelling resulting from . . . some kind of
impact.” A.’s two upper front teeth were chipped and his mouth was bleeding. He had
cuts on his lips and his gums. His lip was swollen. He showed signs of brain injury due
to oxygen deprivation. His pupils were not responsive. He had enough water in his
system to cause him to pass out. A. was treated by paramedics. He was subsequently
transported by helicopter to Children’s Hospital. When firefighter paramedic Lyle
Koegler arrived at the apartment complex, he was approached by two men. The men said
they had seen a father beating up a kid. Mr. Koegler reported the comments to his
superior on the scene.
      Ms. White told a firefighter, Mr. Golphenee, that Mr. Stansell and she had exited
the pool area and gone into their apartment for a few minutes; when they returned, A. was
lying unconscious on the ground next to the pool. Upon further questioning, Ms. White
changed her story. She told Mr. Golphenee she was in the Jacuzzi with Mr. Stansell and
had looked away from the pool for a moment; when she looked back, A. was
unconscious. Mr. Golphenee attempted to get as much information as he could about
how A. was injured. He directed questions to both Ms. White and Mr. Stansell. But Mr.
Stansell did not respond. Mr. Golphenee testified, “[Mr. Stansell] just stood there and

                                            9
watched . . . .” Ms. White was not crying. Mr. Golphenee described her demeanor as
“task oriented.” He explained: “She appeared to be . . . task oriented. Like really
focused on what was going on . . . .”
       Mr. Stansell was initially questioned by Captain Lawrence Gorrindo concerning
how A. was injured. Mr. Stansell was then questioned by David Ball, a firefighter
paramedic. Mr. Ball’s notes of the conversation on the patient care report form state,
‘“Father states that patient crawls out of the pool, stood up and fell striking head.”
Captain Gorrindo wrote on the patient care report form , “Conflicting stories, possible
abuse.”
       Ms. White accompanied A. to the hospital. Brett McGillivray, a social worker,
spoke with Ms. White at the hospital in an attempt to determine how A. was injured. Ms.
White was evasive and provided very little information. She became dismissive and
waived off the questions. She asked why doctors could not treat A. just by looking at
him. Mr. McGillivray asked Ms. White to be more specific in order to help medical
personnel treat A. Ms. White did not respond to Mr. McGillivray’s request. Ms. White
did tell Mr. McGillivray they had been swimming and it was cold. And A. fell by the
side of the pool. Ms. White said she was a lifeguard and had performed “mouth-to-
mouth” on A. even though he was awake at the time.
       Deputy Erica Martinez questioned Mr. Stansell at the scene. Mr. Stansell said he
was trying to teach A. how to swim. Mr. Stansell admitted tossing A. five to ten feet into
the pool. Mr. Stansell said, “I just . . . threw him, and like, ‘swim.’” Mr. Stansell
admitted he became angry and frustrated. A. kept putting his head under the water and
opening his mouth. Mr. Stansell denied remembering hitting A. He said, “I just slapped
his face with my finger tips” on the cheek. Mr. Stansell told Deputy Martinez: “I was
just trying to teach [A.] how to swim. And, like I said, my wife took over because I was
getting too angry . . . Like I said, I slapped him in the face one time. Then I was
throwing him around the pool. Then, after he got out, after he got out, I got back in.
Then I pulled him back in, I threw him back in the pool. But, then he started to sink.
And I, I just jumped in after him. I pulled him up, and like I said, after that I got out of

                                              10
the pool. And he, he was shaking, and I sat him down and I tried to put him in the
Jacuzzi. And he, he, I was like, ‘Are you alright, son?’ And then I took him out and
wrapped him in a towel. And I sat him in the [chair]. He couldn’t sit up. And then I
started, I tried to see if he could walk. And when I sat him down and tried to let him
walk, he just . . . .” Mr. Stansell was arrested. Deputies noted that an open package of
uncooked spaghetti was the only food in the family’s apartment. Mr. Stansell admitted to
Deputy Martinez, “All we had was spaghetti.”


                                      4. The Children


       Deputy Susan Velazquez interviewed A. at his school several days after the
incident. A. could not remember what had happened. But he knew that his teeth got
chipped that day at the pool. A. denied being punched or hit with a belt by Mr. Stansell.
Deputy Velasquez interviewed A. multiple times thereafter. A.’s testimony at trial was
consistent with those interviews.
       A. testified at trial that he did not want to go swimming that day. But Mr. Stansell
said, “Get your swimming trunks on.” A. started to cry. Mr. Stansell slapped A. in the
face. The slap in the face hurt A. Mr. Stansell then ordered A. to stop crying. When
they reached the pool, Mr. Stansell threw A. into the water and then jumped into the deep
end. Mr. Stansell told A. to swim to the deep end. A. testified, “I stayed on the side that
wasn’t deep.” A. recalled swallowing “[a] little bit” of water. He did not remember what
happened next. The next thing he remembered was being in a helicopter.
       This was not the first time A. was struck by Mr. Stansell. A. testified, “He used to
give me whoopings.” A. would be ordered by Mr. Stansell to stand up and bend down.
Mr. Stansell hit A. with a belt “[a] lot” and it hurt. Also, A. testified, “He used to sock
me in the stomach.” Being “socked” in the stomach hurt and A. would cry. A. testified
he would lose his breath a “little bit” when he was struck in the stomach. Similarly, A.
characterized being struck in the stomach as something that occurred only “[a] little bit”
rather than “a lot.”

                                             11
       As noted above, emergency personnel reported A. had two chipped front teeth. At
the time of trial, A. had lasting dental issues. Anthony W. is A.’s biological father.
Anthony testified, “[A.] constantly complained of pain in the front top of his mouth.”
A.’s front adult tooth had been fractured above the gum line; the entire right front tooth
was severed from the portion above it. The tooth had been repaired. But the tooth had
some movement. The dentist told Anthony that A. should not bite down on the tooth
when eating.
       Lailah testified she went to the pool with Mr. Stansell, Ms. White and A. Mr.
Stansell told A. to get in the pool. But A. did not want to get in the pool. Mr. Stansell
threw A. into the shallow end of the pool. Lailah saw A. under the water. He could not
swim. Lailah saw A. swallowing water. Ms. White twice told A. to stop swallowing
water. A. was coughing. After a while, A. got out of the pool and lay on the ground.
Mr. Stansell and Ms. White were in the Jacuzzi. Ms. White told Lailah to go tell A. to
get up. But A. would not get up. Mr. Stansell put A. back in the pool, into the deep end.
Ms. White also got into the pool. Then Ms. White took A. out of the pool and put him in
the Jacuzzi. Lailah testified the family returned to their apartment, “[A]fter my mom had
seen [A.] was shocked.” A. coughed out blood on Mr. Stansell.




                             5. Defendants’ Criminal Records


       Mr. Stansell admitted he had a prior conviction for misdemeanor petty theft. The
parties stipulated that Ms. White had a prior misdemeanor conviction of abuse, neglect
and child endangerment. The crime occurred on or about October 16, 2007, in Las
Vegas, Nevada. The victim was Ms. White’s daughter Lailah. Ms. White had also been
convicted of assault by means of force likely to produce great bodily injury, a felony.
The crime occurred on or about March 30, 2010, in Los Angeles County. The victim was
Ms. White’s mother, Mayisha Akbar. At that time, Ms. White was dating Mr. Stansell.
Ms. White, Lailah and A. had been living in Ms. Akbar’s home. The children were

                                             12
present during the aggravated assault. They were subsequently taken into protective
custody. Mr. Stansell testified at trial that Ms. Akbar had attacked Ms. White. Mr.
Stansell testified Ms. White was simply defending herself.


                                   B. The Defense Case


       Mr. Stansell testified in his own defense. He admitted he generally cursed at the
two children. He admitted he had whipped the two children with a belt when they
misbehaved. Mr. Stansell started whipping them when Lailah was five and A. was six.
Mr. Stansell denied ever punching A. in the stomach. Mr. Stansell said, “we used to play
fight.” He denied ever slapping Lailah.
       With respect to the events at the pool, Mr. Stansell denied that he was angry. At
first, while testifying, Mr. Stansell denied throwing A. into the pool. Mr. Stansell
admitted, however, “I just, like, tossed him in a little bit.” Mr. Stansell subsequently
admitted throwing A. into the pool. This occurred after A. was lying on the concrete
after getting out of the pool. A. then started to sink. Mr. Stansell denied slapping A. on
the day in question. Mr. Stansell conceded, however, that while teaching A. to swim: “I
had slightly hit [A.] in the face with the tip of my fingers. I slapped [him]—not [a cross]
slap, but playing around.” A. was whining during the swimming lesson, but he was not
crying. A. said he was tired and cold. Mr. Stansell testified: “Most of the time he was
underwater, he was trying to swim. He was swimming underwater.” In terms of
swallowing water, Mr. Stansell testified, “And as he would come up, I guess -- I guess he
was swallowing water at those times.” Mr. Stansell subsequently heard a scream and
then a thump. Mr. Stansell turned around and saw A. on the ground. A. was flat on his
face. Ms. White performed cardiopulmonary resuscitation on A. “[as] a precaution” even
though he was breathing.
       Mr. Stansell originally told the emergency operator, “My son, I don’t know, he
like got shocked or something from being in the pool. . .’” Mr. Stansell testified that A.
was shocked from being in the pool. Mr. Stansell testified, “His body was cold and

                                             13
shaking.” When asked by an emergency operator if A. was drowning, Mr. Stansell said,
‘“Yes, I guess so.”’ When cross-examined, Mr. Stansell admitted knowing A. was
drowning. Representatives of the media were present when Mr. Stansell was arrested.
Someone put a camera in Mr. Stansell’s face. Some of the neighbors were screaming, “I
hope you die.”


                                     III. DISCUSSION


                                         A. Torture


                                     1. State of the law


       Pursuant to section 206, “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 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.” The Court of Appeal has held: “As the statute states,
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; accord,
People v. Massie (2006) 142 Cal.App.4th 365, 370-371.) Pursuant to section 12022.7,
subdivision (f), “‘[G]reat bodily injury’ means a significant or substantial physical
injury.” Whether a physical injury is significant or substantial is a question of fact for the
trier of fact. (People v. Cross (2008) 45 Cal.4th 58, 64; People v. Escobar (1992) 3
Cal.4th 740, 750.) The damage need not be permanent, prolonged or protracted. (People
v. Cross, supra, 45 Cal.4th at p. 64; People v. Escobar, supra, 3 Cal.4th at p. 750.) It is
well established that abrasions, contusions, lacerations, bruising and soreness can
constitute great bodily injury. (People v. Cross, supra, 45 Cal.4th at p. 64; People v.

                                             14
Escobar, supra, 3 Cal.4th at p. 750; People v. Pre (2004) 117 Cal.App.4th 413, 420;
People v. Hale (1999) 75 Cal.App.4th 94, 108; People v. Jung (1999) 71 Cal.App.4th
1036, 1042.) Our Supreme Court has further explained: “Proof that a victim’s bodily
injury is ‘great’ . . . is commonly established by evidence of the severity of the victim’s
physical injury, the resulting pain, or the medical care required to treat or repair the
injury. [Citations.]” (People v. Cross, supra, 45 Cal.4th at p. 66; accord, People v. Wade
(2012) 204 Cal.App.4th 1142, 1149-1150; People v. Harvey (1992) 7 Cal.App.4th 823,
827-828; 22 Cal.Jur.3d Criminal Law: Post-Trial Proceedings, § 236.) “Cruel” pain is
equivalent to “extreme” or “severe” pain. (People v. Jung, supra, 71 Cal.App.4th at p.
1041; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1202.)
       Torture focuses upon the perpetrator’s mental state, not the pain inflicted on the
victim. (People v. Massie, supra, 142 Cal.App.4th at p. 371; People v. Hale, supra, 75
Cal.App.4th at p. 108.) The Court of Appeal has explained: “In this respect, revenge,
extortion, and persuasion are self-explanatory. Sadistic purpose encompasses the
common meaning, ‘“the infliction of pain on another person for the purpose of
experiencing pleasure.”’ (People v. Aguilar[, supra,] 58 Cal.App.4th [at p.] 1203.) . . .
[¶] Torture does not require that the defendant act with premeditation and deliberation,
and it does not require that he [or she] intend to inflict prolonged pain. (People v. Hale,
supra, 75 Cal.App.4th at p. 107.) Accordingly, the length of time over which the offense
occurred is relevant but not necessarily determinative. (Id. at pp. 107-108.) Likewise,
the severity of the wounds inflicted is relevant but not necessarily determinative. (People
v. Pre[, supra,] 117 Cal.App.4th [at pp.] 420-421.) [¶] The intent with which a person
acts is rarely susceptible of direct proof and usually must be inferred from facts and
circumstances surrounding the offense. (§ 21, subd. (a); People v. Pre, supra, 117
Cal.App.4th at p. 420.)” (People v. Massie, supra, 142 Cal.App.4th at p. 371; accord,
e.g., People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426-1427, 1429-1431; People v.
Quintero (2006) 135 Cal.App.4th 1152, 1162-1164; People v. Jung, supra, 71
Cal.App.4th at pp. 1042-1043.)



                                              15
                                      2. Mr. Stansell


                               a. Sufficiency of the evidence


       Mr. Stansell contends there was insufficient evidence of torture. Mr. Stansell
reasons neither his conduct nor A.’s injuries are of the type contemplated by the torture
statute. We disagree. We apply the well-established sufficiency-of-the-evidence
standard of review: “[W]e must determine whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime . . . beyond a reasonable doubt. We review the entire
record in the light most favorable to the judgment below to determine whether it discloses
sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—
supporting the decision, and not whether the evidence proves guilt beyond a reasonable
doubt. (People v. Mincey (1992) 2 Cal.4th 408, 432.) We neither reweigh the evidence
nor reevaluate the credibility of witnesses. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
We presume in support of the judgment the existence of every fact the jury reasonably
could deduce from the evidence. (Ibid.) If the circumstances reasonably justify the
findings made by the trier of fact, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary finding.
(Ibid.)” (People v. Jennings (2010) 50 Cal.4th 616, 638-639; accord, People v. Hajek
(2014) 58 Cal.4th 1144, 1260.)
       Viewed in the light most favorable to the verdict, the jury could reasonably
conclude Mr. Stansell inflicted great bodily injury on A. And the jurors could reasonably
conclude Mr. Stansell did so with the specific intent to cause cruel or extreme pain or
suffering to persuade or for a sadistic purpose. Mr. Stansell had a history of whipping,
slapping and punching A. On the day in question, Mr. Stansell, along with Ms. White,
physically and verbally abused A. for two hours. Mr. Stansell was cruel, aggressive and
excessively rough. He yelled and screamed at A. He admittedly was upset and
frustrated. Mr. Stansell acted in total disregard for A.’s physical safety. Mr. Stansell

                                             16
threw A. into the pool. Mr. Stansell forced A. to attempt to swim in very cold water on a
cool and windy day. Mr. Stansell threw A. into the pool knowing the youngster could not
swim. Mr. Stansell prevented A. from leaving the pool despite the fact A. repeatedly
went under the water and was in significant danger of drowning. When cross-examined,
Mr. Stansell admitted knowing A. was drowning. Mr. Stansell forced A. to stay in the
pool. Mr. Stansell did so despite the fact that the youngster was scared, cold and,
eventually, exhausted. Mr. Stansell did so despite the fact that A. was struggling and
choking. Mr. Stansell walked away leaving A. alone in the pool. Mr. Stansell sat three to
four feet away in the Jacuzzi with Ms. White talking and laughing. At another point, Mr.
Stansell walked away leaving A. floating face down and unmoving in the water. After
A., exhausted and waterlogged, crawled out of the pool onto the concrete, Mr. Stansell
threw A. back in. Mr. Stansell used profanity toward A. and taunted the youngster. In a
loud and upset voice, he called the drowning child “stupid” and a “dumb ass.” There was
evidence Mr. Stansell: slapped A. in the back of the head with an open hand; held A.
underwater and punched the youngster with a closed fist at least three times; threw A.
from the deep end of the pool to the shallow end; and forcefully shoved and dragged A.
out of the pool. A. landed hard on concrete. A. was crying and coughing up water. Mr.
Stansell stood over A. and yelled at the youngster to “man up” and to “get up.” Mr.
Stansell threatened A. Mr. Stansell said, “[Y]ou better get up or I’m going to fuck you
up.” Mr. Stansell forced A. to stand upright. Mr. Stansell backed away from A. even
though the youngster was visibly dizzy and stumbling. Mr. Stansell watched as A. fell
face forward to the concrete. A. was unconscious. Mr. Stansell walked away leaving A.
on the ground. Mr. Stansell returned, grabbed A. by one arm and dragged the youngster
toward the Jacuzzi. Finally, Mr. Stansell carried the unconscious child into the family’s
apartment.
       Firefighters found A. lying on the apartment floor. There was evidence: A. was
shivering, hyperventilating and unresponsive; showed signs of brain injury from lack of
oxygen; had a significantly swollen hematoma on his forehead, the result of an impact;
had two chipped front teeth, and a swollen lip; and was bleeding from his mouth. At

                                            17
trial, A. could not recall what happened after he was thrown into the pool except that he
swallowed water. The jury could reasonably conclude Mr. Stansell: was cruel and
excessively abusive both physically and verbally; displayed extreme and callous
indifference to A.’s plight, including the youngster’s need for medical intervention; and,
with the intent to cause cruel or extreme pain or suffering for the purpose of persuasion or
for a sadistic purpose, inflicted great bodily injury on A.
       Mr. Stansell argues application of the torture statute to his conduct violated his
substantive due process rights under the federal Constitution. Mr. Stansell contends,
“The application of section 206 . . . in this case violates substantive due process . . . by
reaching conduct that does not rationally relate to the [statutory purpose] to justify
imposition of a life sentence.” Mr. Stansell reasons, “The torture statute, as applied in
this case, infringes on [defendant’s] right to liberty; its application is irrational by placing
a lifelong restraint on his liberty for his overreaching and misguided swim lesson, the
unintended consequences of which [were A.’s injuries].” Mr. Stansell claims his conduct
was not sufficiently heinous and A.’s injuries were not sufficiently gruesome to support a
torture conviction. Mr. Stansell did not raise this due process argument in the trial court.
(See People v. Lopez (2013) 56 Cal.4th 1028, 1050, fn. 10; People v. Avila (2006) 38
Cal.4th 491, 527, fn. 22; People v. Partida (2005) 37 Cal.4th 428, 433-439.) In any
event, because we find sufficient evidence to support the jury’s torture verdict,
defendant’s constitutional claim fails. (People v. Jennings (2010) 50 Cal.4th 616, 648-
649; People v. Solomon (2010) 49 Cal.4th 792, 811, fn. 8.) No separate constitutional
discussion is required. (People v. Avila (2014) 59 Cal.4th 496, 513, fn. 3; People v.
Solomon, supra, 49 Cal.4th at p. 811, fn. 8.)


                              b. Instructional error contention


       Mr. Stansell contends it was prejudicial error to instruct the jury it could find him
guilty of torture as a natural and probable consequence of child abuse, assault, battery or
mayhem. A “natural and probable consequences” theory is a form of aider and abettor

                                              18
culpability. (§ 31; People v. Chiu (2014) 59 Cal.4th 155, 158 (Chiu); People v. Medina
(2009) 46 Cal.4th 913, 920.) As our Supreme Court explained in Chiu, supra, 59 Cal.4th
at page 158: “There are two distinct forms of culpability for aiders and abettors. ‘First,
an aider and abettor with the necessary mental state is guilty of the intended crime.
Second, under the natural and probable consequences doctrine, an aider and abettor is
guilty not only of the intended crime, but also “for any other offense that was a ‘natural
and probable consequence’ of the crime aided and abetted.”’ (People v. McCoy (2001)
25 Cal.4th 1111, 1117.)” Mr. Stansell asserts, “The only purpose of the prosecutor’s
attempting to [impose liability on a natural and probable consequences theory] was to
confuse the jury and lower his burden of proof.” Mr. Stansell’s trial counsel, Michael
Morse, did not object to the natural and probable consequences instruction. As a result,
Mr. Stansell forfeited the present argument. (People v. Virgil (2011) 51 Cal.4th 1210,
1260; People v. Hillhouse (2002) 27 Cal.4th 469, 504.) Even if not forfeited, there was
insufficient prejudice under any standard of reversible error. (See People v. Gamache
(2010) 48 Cal.4th 347, 376; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101.)
As Mr. Stansell concedes, he was tried as a direct perpetrator of the torture. Moreover,
the record as a whole demonstrates the jury convicted Mr. Stansell of torture as the direct
perpetrator of that crime. It is not reasonably probable the result would have been more
favorable to Mr. Stansell had the instruction been omitted as to him.
       Mr. Stansell briefly argues our Supreme Court’s decision in Chiu, supra, 59
Cal.4th at pages 158-159, should be extended to preclude a torture conviction on an
aiding and abetting theory of criminal culpability. In Chiu, our Supreme Court held:
“[A]n aider and abettor may not be convicted of first degree premeditated murder under
the natural and probable consequences doctrine. Rather, his or her liability for that crime
must be based on direct aiding and abetting principles. [Citation.]” (Ibid.; see People v.
McCoy, supra, 25 Cal.4th at p. 1117.) As discussed above, Mr. Stansell was not
convicted of torture as an aider and abettor. Therefore, the argument is of no
consequence to him.



                                             19
                                        2. Ms. White


       Ms. White argues there was insufficient evidence of her guilt as an aider and
abettor because torture was not a natural and probable consequence of: child abuse;
assault by means of force likely to produce great bodily injury; battery with serious
bodily injury; or mayhem. Our Supreme Court has explained: “[S]ection 31 provides in
relevant part that ‘[a]ll persons concerned in the commission of a crime, . . . whether they
directly commit the act constituting the offense, or aid and abet its commission . . . are
principles in any crime so committed.’ . . . [¶] Aider and abettor culpability under the
natural and probable consequences doctrine is vicarious in nature. [Citations.] ‘By its
very nature, aider and abettor culpability under the natural and probable consequences
doctrine 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 a
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.’ [Citation.] [¶] 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. [Citations.]” (Chiu, supra, 59 Cal.4th at pp. 164-165; see
People v. Prettyman (1996) 14 Cal.4th 248, 260-262.) Further, in Chiu, our Supreme
Court explained: “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. (People v. Nguyen (1993) 21 Cal.App.4th
518, 531. . . .) 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

                                              20
offense was a reasonably foreseeable consequence of the act aided and abetted by the
defendant. (Ibid.)” (Chiu, supra, 59 Cal.4th at pp. 165-166.)
       We apply the substantial evidence standard of review set forth above. To begin
with, there is substantial evidence Ms. White was a direct perpetrator. Mr. Proctor
testified that defendants were teaching A. in a “excessively rough” way. Marvin, the 10-
year-old who was in the pool, testified that Ms. White was throwing A., who could not
swim, into the pool. According to Mr. Proctor, Ms. White would not allow A. to get out
of the pool. While Mr. Proctor was at the pool for 30 to 40 minutes, Ms. White was
verbally abusive towards A. Mr. Proctor, while playing volleyball with Mr. Stansell, saw
Ms. White in the deep end of the pool with A. Ms. White, while holding onto the pool’s
edge, kept A., who could barely keep his head above the water, from getting out of the
pool. As Ms. White was doing this, A., who was very cold and tired, struggled to keep
his head above water. In fact, A. sunk below the water line approximately 10 times while
he was with Ms. White. Marvin testified that A. was drowning. Despite the cool
weather, both Ms. White and Mr. Stansell left A. in the pool as they sat laughing in the
Jacuzzi. Further, Ms. White stood by while A. was floating face down in the pool for 30
seconds. When A. fell face down onto the pool deck, Ms. White yelled for him to get up
and spoke to him in an aggressive manner. After A. fell forward onto his face, Ms. White
did nothing. Ms. White took no steps to seek paramedic assistance.
       Thus, any contention concerning aiding and abetting is irrelevant in terms of
evidentiary insufficiency as there is substantial evidence Ms. White tortured A. There
was overwhelming evidence Ms. White was present when Mr. Stansell engaged in
intentional, cruel, assaultive, abusive conduct toward A. There was also overwhelming
evidence she made no effort to intervene, to prevent the extreme harm that was being
inflicted on her son. In fact, she participated in the conduct, albeit to a lesser degree. The
jury could reasonably find Ms. White’s presence, participation and failure to protect A.
encouraged Mr. Stansell. The jury could reasonably conclude Ms. White’s presence,
participation and failure to protect A. also encouraged him to submit rather than resist.
(See People v. Ogg (2013) 219 Cal.App.4th 173, 179-182; People v. Rolon (2008) 160

                                             21
Cal.App.4th 1206, 1212-1219; People v. Swanson-Birabent (2003) 114 Cal.App.4th 733,
740-746.) Moreover, a reasonable person in Ms. White’s position would or should have
known that torture would result absent her intervention to stop Mr. Stansell. Mr.
Stansell’s conduct was so extreme that a reasonable person would or should have
foreseen he would inflict great bodily injury. In other words, the jury could reasonably
conclude torture was a natural and probable consequence of the child abuse, assault,
battery or mayhem.
       Ms. White argues the natural and probable consequences instruction allowed the
jury to convict her of torture—a continuous course of conduct crime—without making
two findings. Ms. White contends the instructions erroneously did not require the jurors
to first, identify the actual perpetrator and second, unanimously agree on the particular
act that was aided and abetted. Ms. White never objected to the instruction in the trial
court on these grounds. As a result, she forfeited the present argument. (People v. Lucas
(2014) 60 Cal.4th 153, 291, fn. 51; People v. Virgil (2011) 51 Cal.4th 1210, 1260.) Even
if not forfeited (§ 1259; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
432), no such determination or agreement was required. (People v. Culuko (2000) 78
Cal.App.4th 307, 324-329; see People v. Prettyman, supra, 14 Cal.4th at pp. 267-268;
Levenson, et al., Cal. Criminal Law (The Rutter Group 2014-2015) ¶ 3:6.)
       Ms. White further asserts the natural and probable consequences instruction
allowed the jury to find her guilty of torture without requiring it to find at least one of the
defendants harbored the requisite specific intent for torture. We disagree. This case was
tried on the theory Mr. Stansell perpetrated the torture. Further, the case was tried on the
theory Ms. White aided and abetted Mr. Stansell’s conduct and torture was a natural and
probable consequence thereof. In convicting defendants of torture, the jury necessarily
found Mr. Stansell had the requisite intent. (See People v. Culuko, supra, 78 Cal.App.4th
at pp. 328-329; Levenson, et al., Cal. Criminal Law, supra, ¶ 3:6.)
       Ms. White has not raised any specific argument based on Chui, supra, 59 Cal.4th
at pages 161-168. Ms. White’s general joinder in Mr. Stansell’s arguments first asserted
in her reply brief is legally insufficient and thus is forfeited. (People v. Bryant (2014) 60

                                              22
Cal.4th 335, 408; People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) In any
event, Chui is inapplicable.
       Chui was concerned with an aider and abettor’s liability on a natural and probable
consequences theory for first degree murder. First degree murder requires that the
perpetrator act willfully, deliberately and with premeditation. Our Supreme Court in
Chiu held such a mental state is unique. The unique aspect of the willful, deliberate and
premeditated finding mental state was explained in Chiu by our Supreme Court thusly:
“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.
(People v. Koontz (2002) 27 Cal.4th 1041, 1080; People v. Anderson (1968) 70 Cal.2d
15, 26-27.)” (Chiu, supra, 59 Cal.4th at p. 166.)
       Our Supreme Court also held the public policy underlying aider and abettor
liability 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.).
       By contrast, the crime of torture is not divided into degrees based on a uniquely
subjective or personal intent element. And the public policy concerns discussed in Chiu
are satisfied if Ms. White is responsible for Mr. Stansell’s violent conduct. Under the
natural and probable consequences doctrine she is responsible for the natural and

                                              23
probable consequences of her aiding and abetting child abuse, assault, battery and
mayhem. She could have intervened but chose not to do so. These factors have no
relationship with the first and second degree culpability and policy factors discussed in
Chiu.


                                          B. Mayhem


        Defendants were each convicted of mayhem in violation of section 203.
Defendants assert there was insufficient evidence A. suffered a permanently disfiguring
or disabling injury. Section 203 provides, “Every person who unlawfully and maliciously
deprives a human being of a member of his body, or disables, disfigures, or renders it
useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is
guilty of mayhem.” The modern underlying principle of mayhem is preservation of the
human body’s natural completeness and normal appearance. (People v. Santana (2013)
56 Cal.4th 999, 1004; People v. Newble (1981) 120 Cal.App.3d 444, 451.) A disabling
injury must be more than slight and temporary. (People v. Santana, supra, 56 Cal.4th at
p. 1007; see People v. Thomas (1979) 96 Cal.App.3d 507, 512, disapproved on another
point in People v. Kimble (1988) 44 Cal.3d 480, 496 & fn. 12.) A disfiguring injury must
be permanent. (People v. Santana, supra, 56 Cal.4th at p. 1007; People v. Newby (2008)
167 Cal.App.4th 1341, 1347.) An injury may be permanent even though cosmetically
repaired or repairable. (People v. Santana, supra, 56 Cal.4th at p. 1007; People v.
Newby, supra, 167 Cal.App.4th at p. 1348.)
        The well-settled rules governing the assessment of evidentiary sufficiency have
been set forth above. Here, as a result of Mr. Stansell’s intentional wrongful conduct, A.
suffered a fractured adult front tooth. The tooth was completely fractured above the gum
line. The entire right front tooth was severed from the portion above it. The tooth was
cosmetically repaired but continued to cause A. pain. A. was instructed not to bite down
on it. This was substantial evidence supporting the injury element of defendants’
mayhem convictions. (See, e.g., People v. Caldwell (1984) 153 Cal.App.3d 947, 952

                                               24
[defendant bit through victim’s lower lip]; People v. Keenan (26) 227 Cal.App.3d 26, 29,
33-34, 35-36 [cigarette burns on both breasts leaving scars]; People v. Newble, supra,
120 Cal.App.3d at p. 448 [three-inch facial laceration]; People v. Thomas, supra, 96
Cal.App.3d at p. 512 [disabled ankle continuing for more than six months]; People v.
Foster (1934) 3 Cal.App.2d 35, 37-38 [defendant bit off part of victim’s ear].)
       Mr. Stansell argues, “[Defendant’s] intent as to committing mayhem is not at all
inferable from the injuries sustained by A.” Mr. Stansell contends: A. did not drown;
there was no medical evidence A.’s lungs had filled with water; there was no evidence of
brain damage from oxygen deprivation; and A. fell of his own accord and cracked his
tooth. Mr. Stansell claims, without citing any evidence in support, that A. fainted
because he was immersed in hot water after being in the pool for almost two hours. Ms.
White asserts the evidence was insufficient as to her in that, “[T]here is no evidence that
[she] had any intent to act maliciously or with the intent to injure someone else . . . .”
       Mayhem is a general intent crime. (People v. Park (2003) 112 Cal.App.4th 61,
64; People v. Villegas (2001) 92 Cal.App.4th 1217, 1226.) No specific intent to maim or
disfigure is required. (People v. Newby, supra, 167 Cal.App.4th at p. 1347; People v.
Hayes (2004) 120 Cal.App.4th 796, 804-805; People v. Sekona (1994) 27 Cal.App.4th
443, 453; Goodman v. Superior Court (1978) 84 Cal.App.3d 621, 624.) “Maliciously”
within the meaning of section 203 means an intent to vex, annoy or injure, or an intent to
do a wrongful act. (People v. Santana, supra, 56 Cal.4th at p. 1007; People v. Bryan
(1961) 190 Cal.App.2d 781, 787.) The requisite malice may be inferred from the fact of
the injury resulting from intentional conduct. (People v. Hayes, supra, 120 Cal.App.4th
at p. 805; People v. Villegas, supra, 92 Cal.App.4th at p. 1226; People v. Sekona, supra,
27 Cal.App.4th at p. 457.) As the Court of Appeal explained in People v. Nunes (1920)
47 Cal.App. 346, 349, “If a person unlawfully strikes another, not with the specific intent
to commit the crime of mayhem, and the blow so delivered results in the loss or
disfigurement of a member of the body of the assaulted party . . . , the crime is
nevertheless mayhem. [Citations.]” (Accord, People v. Park, supra, 112 Cal.App.4th at
p. 64 [“the crime is mayhem if the blow results in putting out the eye even if the person

                                              25
who unlawfully strikes another does not have the specific intent to commit the offense”];
People v. Villegas, supra, 92 Cal.App.4th at p. 1226 [same].)
       Here, the jury could reasonably conclude Mr. Stansell’s intentional, abusive,
assaultive conduct, aided and abetted by Ms. White, resulted in A. suffering a fractured
adult tooth. After two hours of nearly drowning, A. was unable to stand. When forced to
do so, he was visibly unsteady. Nevertheless, defendants backed away and allowed A. to
fall face first to the concrete. The jury could infer the requisite malice from the fact of
that injury.


                                         C. Battery


       Mr. Stansell contends battery with serious bodily injury is a lesser included
offense of simple mayhem, therefore he could not be convicted of both crimes. (See
People v. Ausbie (2004) 123 Cal.App.4th 855, 859, disapproved on a related point in
People v. Santana, supra, 56 Cal.4th at pp. 1010-1011 & fn. 6 [Court of Appeal accepted
concession that battery with serious bodily injury is a lesser included offense of simple
mayhem].) The test for a lesser, necessarily included offense is as follows: “[I]f the
statutory elements of the greater offense include all of the statutory elements of the lesser
offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38
Cal.4th 1224, 1227; accord, People v. Sloan (2007) 42 Cal.4th 110, 117.) Where a
defendant has been convicted of the greater offense, he or she cannot be punished or
convicted for the lesser offense. (People v. Reed, supra, 38 Cal.4th at p. 1227; People v.
Montoya (2004) 33 Cal.4th 1031, 1034.) The statutory elements test is applied to
determine whether one charged offense is necessarily included in another charged
offense. (People v. Sloan, supra, 42 Cal.4th at pp. 113-114; People v. Reed, supra, 38
Cal.4th at p. 1231.)
       We have previously identified the elements of mayhem. (See pages 34-36 above.)
As noted above, mayhem is a general intent crime. Pursuant to section 242, “A battery is
any willful and unlawful use of force or violence upon the person of another.”

                                              26
Aggravated battery occurs, “When a battery is committed against any person and serious
bodily injury is inflicted . . . .” (§ 243, subd. (d).) “Serious bodily injury” within the
meaning of section 243, subdivision (d), means, “[A] serious impairment of physical
condition, including, but not limited to, the following: loss of consciousness; concussion;
bone fracture; protracted loss or impairment of function of any bodily member or organ; a
wound requiring extensive suturing; and serious disfigurement.” (§ 243, subd. (f)(4).)
Under these statutory definitions, acts constituting an aggravated battery are necessarily
satisfied by acts of simple mayhem. (1 Witkin & Epstein, Cal. Criminal Law (4th ed.
2012) Crimes Against the Person, § 85, p. 875.) An injury amounting to mayhem is
necessarily a serious bodily injury within the meaning of section 243, subdivision (d).
Thus, as substantial evidence supports defendants’ convictions of simple mayhem,
defendants’ convictions of battery with serious bodily injury must be reversed. In
addition, the per count assessments imposed under Government Code section 70373,
subdivision (a)(1), and section 1465.8, subdivision (a)(1), must be reduced to $120 and
$160 respectively. (People v. Rios (2013) 222 Cal.App.4th 542, 576; see People v.
Sencion (2012) 211 Cal.App.4th 480, 484-485 [court operations and facilities
assessments apply to each count of which a defendant is convicted]; People v. Castillo
(2010) 182 Cal.App.4th 1410, 1415, fn. 3 [same].)


                                  D. Booking Photograph


       Mr. Stansell asserts the trial court’s failure to exclude an “unflattering” booking
photograph was prejudicial error. Mr. Stansell reasons, “The booking photograph likely
swayed the jury to find that his mean-looking face was indicative of his mean character
and criminal intent.” At trial, Deputy Martinez testified, without objection, that the
booking photograph was, “[A]n accurate photograph of defendant Stansell at or near the
time he was arrested.” As noted above, Mr. Stansell was arrested shortly after
committing the present crimes. Mr. Stansell did not raise an Evidence Code section 352
objection in the trial court. As a result, this argument was forfeited. (People v. Valdez

                                              27
(2012) 55 Cal.4th 82, 138; People v. Alexander (2010) 49 Cal.4th 846, 905.) Even if not
forfeited, we find no manifest abuse of discretion resulting in a miscarriage of justice.
(People v. Williams (2013) 58 Cal.4th 197, 267; People v. Thomas (2011) 51 Cal.4th 449,
485.) The booking photograph was edited so that no booking number or other evidence
of its source remained. And, contrary to Mr. Stansell’s assertions, his booking
photograph does not depict him as “frowning, sullen, cross, mean-looking, and
disheveled” or otherwise surly. The trial court could reasonably conclude how Mr.
Stansell looked on the date he was arrested was relevant as a comparison to his
appearance at trial. The trial court could further conclude that the probative value was
not substantially outweighed by any prejudicial effect. (Evid. Code, § 352.) Even if the
trial court abused its discretion, any error was harmless under any standard of reversible
error. There was overwhelming evidence of Mr. Stansell’s guilt. There is no reasonable
probability the booking photograph swayed the jury to convict Mr. Stansell.
                               E. Prosecutorial Misconduct


       Mr. Stansell argues Deputy District Attorney Jon Hatami committed numerous
acts of misconduct, the cumulative effect of which requires reversal of the judgment. Mr.
Stansell’s counsel did not object to the purported misconduct in the trial court. And we
are not persuaded that an objection and request for admonishment would have been futile.
As a result, Mr. Stansell forfeited his prosecutorial misconduct claims. (People v. Fuiava
(2012) 53 Cal.4th 622, 679-680; People v. Crew (2003) 31 Cal.4th 822, 839.)
       In any event, we find no misconduct. Mr. Hatami properly argued the facts of the
present case amounted to torture and mayhem. Mr. Hatami did not misled the jury to
believe it could find Mr. Stansell guilty of torture based solely on a natural and probable
consequences theory. It was undisputed, and the jury no doubt understood, that Mr.
Stansell was tried as the direct perpetrator of the torture. Nor do we find that Mr.
Hatami: improperly accused defense counsel, Michael Morse, of lying about the law;
improperly invoked the prestige of his office to bolster his case; or referenced
defendants’ booking photographs in an effort to disparage their character and prove

                                             28
criminal intent. Mr. Hatami’s arguments were permissible responses to Mr. Morse’s
closing argument. Even if there had been misconduct, it is not reasonably probable a
result more favorable to Mr. Stansell would have been reached absent the misconduct or
with a curative admonition. (People v. Tully (2012) 54 Cal.4th 952, 1010; People v.
Crew, supra, 31 Cal.4th at p. 839.)


                             F. Great Bodily Injury Infliction


       Ms. White challenges the sufficiency of the evidence to support the great bodily
injury infliction finding under section 12022.7, subdivision (a), as to the child abuse and
assault charges. Ms. White asserts: “[T]here is no evidence to support the conclusion
that [she] personally inflicted great bodily injury. Her liability was premised on the
theory that she aided and abetted [Mr.] Stansell, who made all physical contact with A.
during the incident. . . . There was evidence that she prevented A. from holding onto the
ledge of the pool for a brief period of time while [Mr.] Stansell played volleyball. . . .
However, . . . this cannot be considered personal infliction of great bodily injury, even
assuming, arguendo, there [was] evidence suggesting that A.’s injuries were caused by
having to remain in the middle of the pool, rather than hanging onto the edge. At best,
there is only proximate cause, though that link itself is tenuous because of the lack of
medical evidence suggesting that A.’s problems began at the outset of his swimming
lesson.”
       The section 12022.7, subdivision (a) enhancement applies only to a person who
personally inflicts injury. (People v. Cole (1982) 31 Cal.3d 568, 572, 579; see People v.
Modiri (2006) 39 Cal.4th 481, 485; People v. Bland (1995) 10 Cal.4th 991, 998, fn. 3.)
The word “personally” in section 12022.7, subdivision (a) excludes liability as an aider
and abettor. (People v. Cole, supra, 31 Cal.3d at pp. 572, 579; see People v. Elder (2014)
227 Cal.App.4th 411, 418.) But more than one person may be found to have been
involved in directly inflicting great bodily injury. (People v. Elder, supra, 227
Cal.App.4th at pp. 419-420; cf. People v. Wilson (2013) 219 Cal.App.4th 500, 512.) Our

                                             29
Supreme Court has held that to “personally inflict” injury within the meaning of section
12022.7 means, “[The defendant] directly and not through an intermediary, ‘cause[s]
something (damaging or painful) to be endured.’ [Citation.]” (People v. Cross, supra, 45
Cal.4th at p. 68; cf. People v. Warwick (2010) 182 Cal.App.4th 788, 794.) But to
personally inflict injury does not require affirmative action. A failure to act where action
is required may also amount to personal infliction. (People v. Warwick, supra, 182
Cal.App.4th at p. 795; 3 Witkin & Epstein, Cal. Criminal Law, supra, Punishment, § 352,
p. 541.)
       There was sufficient evidence for a reasonable jury to conclude Ms. White
personally inflicted great bodily injury on A. As noted above, for a significant period of
time—20 to 30 minutes—Ms. White prevented her drowning son from exiting the pool.
Moreover, Ms. White failed to act where action was required to protect her son from Mr.
Stansell’s intentional, abusive and assaultive conduct resulting in great bodily injury to A.


                    G. CALCRIM No. 3405: Parental Right To Punish


       Defendants contend the trial court had a sua sponte duty to instruct with
CALCRIM No. 3405. The instruction states: “A (parent/guardian) is not guilty of ___ if
(he/she) used (justifiable physical force/ [(a/or) another] justifiable method) to discipline
a child. (Physical force/ [or] [other method of punishment] is justifiable if a reasonable
person would find that punishment was necessary under the circumstances and that the
(physical force/ [or] method) used was reasonable. [¶] The People must prove beyond a
reasonable doubt that the (force/ [or] method of punishment) used was not justifiable. If
the People have not met this burden, you must find the defendant not guilty of _____.”
(CALCRIM No. 3405, parenthetical instructions omitted.) The Court of Appeal has
explained: “A parent has a right to reasonably discipline by punishing a child and may
administer reasonable punishment without being liable for a battery. (Emery v. Emery
(1955) 45 Cal.2d 421, 429; People v. Stewart (1961) 188 Cal.App.2d 88, 91.) This
includes the right to inflict reasonable corporal punishment. (People v. Curtiss (1931)

                                             30
116 Cal.App. Supp. 771, 775.) [¶] However, a parent who willfully inflicts unjustifiable
punishment is not immune from either civil liability or criminal prosecution. (People v.
Stewart, supra, 188 Cal.App.2d 88, 91; People v. Curtiss, supra, 116 Cal.App. Supp.
771, 777.) . . . [C]orporal punishment is unjustifiable when it is not warranted by the
circumstances, i.e., not necessary, or when such punishment, although warranted, was
excessive. [(People v. Curtiss, supra,] 116 Cal.App.] at p. Supp. 780.) ‘[B]oth the
reasonableness of, and the necessity for, the punishment is to be determined by a jury,
under the circumstances of each case.’ (Id. at p. Supp. 777.)” (People v. Whitehurst
(1992) 9 Cal.App.4th 1045, 1050; see Emery v. Emery, supra, 45 Cal.2d at pp. 429-430
[child has a right to freedom from a parent’s willful or malicious misconduct causing
injury].) Here, no reasonable juror could conclude defendants were engaging in
necessary discipline or that the physical force used was reasonable. Therefore, the trial
court had no duty to instruct with CALCRIM No. 3405. (See People v. Clark (2011) 201
Cal.App.4th 235, 252-253; People v. Checketts (1999) 71 Cal.App.4th 1190, 1197.)


                                 H. Unanimity Instruction


       Ms. White challenges her convictions of child abuse, torture, assault with a deadly
weapon, battery, false imprisonment by violence, and mayhem, because no unanimity
instruction, CALCRIM No. 3550, was given. It is well established that no unanimity
instruction is required when the wrongful acts are closely connected and take place over a
relatively short period of time. (E.g., People v. Benavides (2005) 35 Cal.4th 69, 98 [lewd
conduct upon a child]; People v. Stankewitz (1990) 51 Cal.3d 72, 100 [robbery]; People
v. Crandell (1988) 46 Cal.3d 833, 875 [murder]; People v. Napoles (2002) 104
Cal.App.4th 108, 115-117 [child abuse]; People v. Rae (2002) 102 Cal.App.4th 116, 122-
124 [elder abuse]; People v. Jenkins (1994) 29 Cal.App.4th 287, 297-300 [torture];
People v. Vargas (1988) 204 Cal.App.3d 1455, 1464 [child abuse].) In Napoles, the
Court of Appeal held, “‘[W]here . . . the evidence establishes a pattern of physical trauma
inflicted upon a child within a relatively short period of time, a single course of conduct

                                             31
is involved and no justification exists for departing from the well-established rule . . . that
jury unanimity is not required . . . .’ (People v. Napoles, supra, 104 Cal.App.4th at p.
116, quoting People v. Vargas, supra, 204 Cal.App.3d at p. 1464.) Further, as our
Supreme Court has held, “‘[T]he “continuous conduct” rule applies when the defendant
offers essentially the same defense to each of the acts, and there is no reasonable basis for
the jury to distinguish between them.’” (People v. Williams (2013) 56 Cal.4th 630, 682,
quoting People v. Stankewitz, supra, 51 Cal.3d at p. 100; accord, People v. Ervine (2009)
47 Cal.4th 745, 788.) The acts constituting the crimes of which Ms. White was convicted
were closely connected and occurred over a two-hour period in a single place.
Defendants offered the same defense to all of the acts. Mr. Stansell claimed to only be
trying to teach A. to swim.


                     I. Evidence Code Section 1109 Prior Convictions


       Ms. White asserts reversible error in the admission of her prior convictions under
of Evidence Code section 1109. Our review is for a manifest abuse of discretion upon
finding the trial court’s decision was palpably arbitrary, capricious, and patently absurd.
(People v. Johnson (2010) 185 Cal.App.4th 520, 531; People v. Jennings (2000) 81
Cal.App.4th 1301, 1314-1315.) The trial court did not abuse its discretion. Ms. White’s
prior convictions were admissible under Evidence Code section 1109 precisely because
they suggested a propensity for abuse, neglect and physical violence. The former neglect
of her child and physical violence towards her mother in her children’s presence were
sufficiency similar to the present crimes to support the intended inference. (See People v.
Johnson, supra, 185 Cal.App.4th at pp. 531-532; People v. Morton (2008) 159
Cal.App.4th 239, 245-247.) Even if the trial court had abused its discretion, there is no
possibility the verdicts would have been more favorable to Ms. White absent the prior
acts evidence. Six independent witnesses testified to the abusive, assaultive conduct by
both parents. Ms. White not only participated in the abuse of her son but failed to protect
him from abuse by another.

                                              32
                                   IV. DISPOSITION


       Defendants’ battery with serious bodily injury convictions are reversed. These are
to be dismissed. The assessments imposed on each defendant pursuant to Government
Code section 70373, subdivision (a)(1) and Penal Code sections 1465.8, subdivision
(a)(1) are reduced to $120 and $160 respectively. The judgments are affirmed in all other
respects. Upon remittitur issuance, the clerk of the superior court is to prepare amended
abstracts of judgment and deliver a copies to the Department of Corrections and
Rehabilitation.
                           NOT TO BE PUBLISHE IN THE OFFICIAL REPORTS




                           TURNER, P.J.


       I concur:




                                            33
      GOODMAN, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                           34
Mosk, J., Concurring and Dissenting


       I dissent as to the convictions on Count 5, mayhem, and Count 6, torture.
Although defendants treated the child abysmally and criminally, the convictions for
mayhem and torture, which carries life sentences, are legally inappropriate and unjust.
The conduct involved, although serious, is no worse than we see in many dependency
cases that do not even result in prosecutions. (See, e.g., 10 Witkin, Summary of Cal. Law
(10th ed. 2005) Parent and Child, § 546, p. 670 [child not even removed from Parent for
severe physical abuse unless social worker makes required allegation]; In re Joshua H.
(1993) 13 Cal.App.4th 1718, 1726; Welf. & Inst. Code, § 332; Myers, Symposium:
Child Abuse (1996) 28 Pac. L.J. 1.)1 The convictions of a mother and her boyfriend—
who are very young and obviously immature—for torture and mayhem, resulting in life
imprisonment sentences are not in accordance with the applicable statute and serve no
useful purpose and certainly are not in the best interests of the child.


A.     Torture
       1.     Lack of Substantial Evidence
       Torture under Penal Code section 206 is when a person “inflicts great bodily
injury” “with the intent to cause cruel or extreme pain and suffering for the purpose of
revenge, extortion, persuasion, or for any sadistic purpose.”2 None of the published
torture cases involves anything similar to the type of acts here. There is no indication
that defendants held the child under water, forced him to swallow water, intended to

1      It is reported that the “1980s witnessed a significant increase in the prosecution of
child abuse.” (Myers, “A Decade of International Legal Reform Regarding Child Abuse
Investigation and Litigation: Steps Toward a Child Witness Code” (1996) 28 Pac. L.J.
169-170.)

2      Apparently California and Michigan are the only two states that have specific anti-
torture statutes. (Browne, Tortured Prosecuting: Closing the Gap on Virginia’s
Criminal Code by Adding a Torture Statute (2014) 56 Wm. & Mary L.Rev. 269, 275
(Browne).
cause his hyperthermia, or otherwise intended to inflict cruel or extreme pain or suffering
upon the child so as to constitute torture. Defendants’ overly harsh and unacceptable
measures to teach the child to swim do not fit within the type of heinous conduct deemed
to be torture and deserving of a life sentence.
       Penal Code section 206 was enacted in response to the facts in People v. Singleton
(1980) 112 Cal.App.3d 418, in which a defendant kidnapped and sexually abused his
victim, chopped off her hands, and dumped her in a ditch in a remote location. He was
sentenced to fourteen years and four months in prison and was paroled after serving
seven years. The crime of torture was included in Proposition 115 “to insure that crimes
such as Singleton’s receive a minimum punishment of life imprisonment.” (Sen. Com.
on Judiciary, Assem. Com. on Public Safety, Joint Hearing on Crime Victims Justice
Reform Act (1990) § 3, at p. 005; see Glynn, Review of Selected (1990) California
Legislation —Addendum—Proposition 115: The Crime Victims Justice Reform Act
(1990-1991) 22 Pacific L.J. 1010, 1012). This case does not resemble the type of case for
which Penal Code section 206 was promulgated.
       I realize that the crime of torture has been judicially expanded (see People v.
Assad (2010) 187 Cal.App.4th 187, 196; People v. Hamlin (2009) 170 Cal.App.4th 1412,
1426-1430.) I agree with those justices who conclude that such expansion “‘redefine[s],
and minimize[s], the gruesome and sadistic nature of torture, which has long been
recognized as among the most heinous of human conduct . . . .’ ( People v. Jung, supra,
71 Cal.App.4th at p. 1049 (dis. opn. of Armstrong, J.).)” (People v. Pre (2004) 117
Cal.App.4th 413, 426 (conc. & dis. opn. of McIntyre, J.); see also People v. Misa (2006)
140 Cal.App.4th 837, 847-848 (conc. opn. of McIntyre, J.); see also Browne, supra, 56
Wm. & Mary L.Rev. at p. 297.)
       2.     Natural and Probable Consequences Instruction
       Defendant Stansell was tried as a direct perpetrator; yet the trial court gave a
natural and probable consequences instruction and the prosecutor argued a natural and
probable consequences theory. At oral argument, the Attorney General commented that
this was an error but said it was not prejudicial. However, it allowed the jury to find

                                              2
Stansell guilty of torture without the requisite proof of intent. There was no forfeiture for
failure to object in this case, for the error affected defendant’s substantial rights. (People
v. Valdez (2012) 55 Cal.4th 82, 151.)
       As to defendant White, the trial court erred because the jury instruction did not ask
the jury to determine who was the actual perpetrator and allowed the jury to find her
guilty without her being the perpetrator or aider or abettor. In short, the jury was allowed
to find White guilty of the specific intent crime of torture even though criminal
negligence may have been the basis of a jury finding of guilt of one of the listed target
crimes. “[W]hen the prosecution presents its case to the jury on alternate theories, some
of which are legally correct and others legally incorrect, and the reviewing court cannot
determine from the record on which theory the ensuing general verdict of guilt rested, the
conviction cannot stand.” (People v. Green (1980) 27 Cal.3d 1, 69, superseded by statute
on other grounds, quoting People v. Stanworth (1974) 11 Cal.3d 588, 601, superseded by
statute and overruled on another ground in People v. Martinez (1999) 20 Cal.4th 225,
237.) Similarly, As White’s substantial rights were affected, she has not forfeited her
contentions.


B.     Mayhem
       The child fell and chipped a tooth. Somehow this resulted in the crime of
mayhem. A person is guilty of mayhem “who unlawfully and maliciously deprives a
human being of a member of his body, or disables, disfigures, or renders useless, or cuts
or disables the tongue, or puts out an eye, or slits the nose, ear, or lip . . . .” (Pen. Code,
§ 203). The offense of mayhem punishes a person for causing permanent disfigurement.
(See Goodman v. Superior Court (1978) 84 Cal.App.3d 621, 625).
       Here the child’s tooth was restored. He was not disfigured or disabled. Under the
prosecution’s theory, any time an assault or battery results in a cracked tooth, that would
constitute the crime of mayhem. Defendants did not even intend that the child suffer a
cracked tooth. His fainting and subsequent fall resulted in the cracked tooth. What



                                                3
occurred here was not even close to the type of mutilation associated with the crime of
mayhem.
       What occurred here is not only contrary to law, but unjust. As Justice Cardozo
once wrote, “The law has ‘its cesspools of ebb and flow.’ One of the flood seasons is
upon us. Men are insisting, as perhaps never before, that law shall be made true to its
ideas of justice. Let us gather up the driftwood, and leave the waters pure.” (Cardozo, A
Ministry of Justice (1921) 35 Harv. L.Rev. 113, 126.)
       I would reverse the convictions based on torture and mayhem, otherwise would
affirm the judgment, and would remand for resentencing.




                                   MOSK, J.




                                             4
