Filed 5/13/14 P. v. Barrientos CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057285

v.                                                                       (Super.Ct.No. RIF148667)

NANCY PEREZ BARRIENTOS,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge.

Affirmed.

         Michael B. McPartland, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M.

Friedman, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Nancy Barrientos and her three-year-old child, Ismael Galica1 began

cohabiting with Carlos Marquez (called Rudy) in January 2009. Although defendant

noticed bite marks, bruises, and marks from a cord on her child, defendant permitted

Rudy to watch her child while she worked. Approximately six weeks after moving in

with Rudy, Ismael was dead from blunt force injuries inflicted by Rudy, which lacerated

his liver and severed the connection between the child’s stomach and small intestine.

Defendant was charged with murder (Pen. Code,2 § 187, subd. (a), count 1), assault of a

child by means of force likely to produce great bodily injury, resulting in death (§ 273ab,

count 2), and torture (§ 206, count 2). After a jury trial, defendant was convicted of

involuntary manslaughter (§ 192, subd. (b)), as a lesser offense included in count one,

convicted of assault on a child causing death as charged on count two (§ 273ab), and was

acquitted of torture as to count 3. Defendant appealed.

       On appeal, defendant argues (1) there is insufficient evidence to support the

conviction for assault on a child with force likely to produce great bodily injury resulting

in death under the prosecution’s theory that she aided and abetted the abuse of her child

by Rudy, and (2) the court’s instructions to the jury on the elements of assault on a child

with force likely to produce great bodily injury resulting in death allowed the jury to


       1 Ismael’s first name is also Carlos, which is also the first name of Ismael’s
biological father. To avoid confusion, we refer to the child as Ismael, his father as
Carlos, and the killer of the child as Rudy.

       2 All further statutory references are to the Penal Code, unless otherwise
indicated.


                                             2
convict without finding all of the elements of that offense under the prosecution’s theory.

We affirm.

                                    BACKGROUND

       Carlos Ismael Galica (Ismael) was born on January 28, 2006. The defendant and

Ismael’s father, Carlos Galica, separated when Ismael was one year old, after an unstable

relationship, and defendant moved back with her family. In March 2008, defendant and

Ismael moved in with defendant’s older sister, Diana. In 2008, defendant went to work at

a fast food restaurant, where Diana, as well as her younger sister Lorena, her cousin Luis

and his girlfriend Monica, also worked. During 2008, while defendant worked, Ismael

was cared for by defendant’s mother or sister.

       Defendant met Rudy Marquez3 in August 2008 while working at the fast food

restaurant and by October of that year, they started seeing each other. Because Diana’s

husband had spanked Ismael, defendant decided to move out. Rudy helped defendant

find an apartment in Corona and defendant moved in with him in January 2009. Rudy

was not working, so he said he would take care of Ismael. Rudy did not want anyone to

know where they lived.

       After defendant moved in with Rudy, Ismael’s father called to request a visit with

his son, and when defendant told him he could not have a visit, the child’s father

threatened to seek custody of his son. Rudy got violent with defendant after that call.


       3  Rudy Marquez was apparently a nom de plume. He had several birth
certificates under various names, but his true name was apparently Juan Carlos Roman.


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Subsequently, neither the child’s father nor defendant’s family were permitted to see the

child. Defendant became more distant, and did not bring her son around the restaurant or

talk about him as she did previously.

       On February 8, 2009, defendant was in an automobile accident, which left her

without a car or her cell phone. On the day of the accident, Rudy called his mother,

Rosio Roman, and asked her to watch the child. Rosio and her teenage daughter Maribel

met Rudy at a liquor store near a fast food restaurant to pick up the child. Rosio and her

daughter met Rudy at that location because Rosio was afraid of her son and did not want

Rudy to know where they lived. Rudy had been kicked out his mother’s house several

years earlier. Rudy had been to prison and had a history of using cocaine. Maribel

noticed a big bite on Ismael’s shoulder. Maribel and her mother applied a medicated

cream or ointment to the bites. Rudy picked up the child that night.

       The next day, the child came back to Rudy’s family’s home. Rudy’s younger

sister, Maribel, noticed that Ismael had bruises and bites on him. While at Rosio’s home,

Maribel played with Ismael and gave him a bath. Maribel noticed a lot more bites on

Ismael’s back, stomach and leg, as well as a mark that resembled a big “W” on the inside

of the boy’s right thigh, that was open, like a cut. Rosio and Maribel applied more cream

on these injuries. That night, at 9:00 p.m., they took Ismael back to the liquor store

where Rudy picked him up. Ismael did not want to go with Rudy.

       Rudy dropped off Ismael to stay with his mother for the weekend of Valentine’s

Day, 2009. The couple also had a small party with Monica and Luis for defendant’s 21st



                                             4
birthday on Sunday, February 15th. At the party, alcohol was consumed by all, and, in

addition, Rudy snorted cocaine. Defendant wanted Ismael to stay at Rosio’s home until

the following Wednesday, when Rudy planned to leave for Mexico. By this time,

defendant had noticed the bites and bruises on her son, had been informed that Rudy had

sodomized Ismael, and she had been punched herself by Rudy.

       However, on Monday, February 16th, while defendant was at work, Rudy picked

up Ismael in the afternoon. At around 7:00 or 7:30 p.m., Rudy called defendant at the

fast food restaurant to tell her there was a problem and that she should come home. A

few minutes later, he called again to report that Ismael was not breathing and that she

needed to come home immediately. Defendant contacted her employer to report that she

had to leave for a family emergency, and Monica, who worked the same shift, drove

defendant to her apartment after they closed up the restaurant.

       At the apartment, defendant found Ismael on the living room floor, dressed in his

clothes and covered with a blanket; his lips were turning purple. Defendant tried to

uncover and undress the child to check him, but Rudy told her to wait for the paramedics.

However, Rudy had not called 911 yet, and when he did call, he gave the dispatcher the

wrong address, and indicated that the child had fallen in the bathtub or shower.

       Emergency personnel located the apartment despite the misdirection and arrived

within 10 minutes. They noticed the child was not wet, and that there were bite marks

and bruises, in various stages of healing, all over the child. One of the emergency

responders asked defendant about the bite marks, and she explained they were play bites



                                             5
and that she was responsible for them. Initially Ismael was responsive, but his condition

deteriorated. Ismael was transported to Corona Regional Medical Center. Ismael died of

severe blunt force abdominal trauma, which resulted in a two-inch laceration of the liver,

as well as a laceration to the junction between the stomach and the small intestine,

resulting in a seventy-five percent tear to the structure. There were knuckle marks on the

body consistent with the injury to the liver.

       After the emergency personnel had left the apartment with Ismael, Rudy got rid of

some cocaine that was in the apartment. Defendant and Rudy left in Rudy’s car, and

attempted to determine to which medical facility Ismael had been taken by going to the

nearest one first. However, at Corona Regional Medical Center, Rudy saw police cars

outside and refused to stop; he called Monica to meet them, in order for Monica to take

defendant to the hospital.

       At the hospital, Detective Voorhees interviewed defendant. Defendant told the

detective that she and her boyfriend had picked up her son at 7:00 p.m. and had driven

straight home. She explained that she went in to give Ismael a shower while Rudy

washed the dishes, and that she stepped out of the bathroom for a few minutes. When she

returned, Ismael was in the tub, and was having trouble breathing. She then explained

that she took the child out of the tub and into the living room, and that she told Rudy to

call 911. When asked about the bite marks, defendant stated that she had bitten the child

on a few occasions in a playful manner, a few weeks earlier.




                                                6
       In a subsequent interview, defendant was shown a photograph of her son, which

depicted 12 bite marks. Defendant initially identified four bites that she had inflicted, but

later admitted that her boyfriend admitted biting her child, and that Ismael had told her

that Rudy bit him. Defendant also admitted responsibility for curvilinear marks found on

Ismael’s body, explaining that she had disciplined him for defecating in his pants.

       Defendant was arrested and transported to the police station where she was read

her rights4 and allowed to sleep for several hours. Initially, defendant told the detective

the same story she had told the night before in the hospital. However, at some point,

defendant asked the detective if he could protect her, and went on to explain that Rudy

had inflicted the injuries while she was at work, and that she was afraid he would harm

her, or her family.

       Defendant was charged with murder (§ 187, subd. (a), count 1), assault of child by

force likely to produce great bodily injury, resulting in death (§ 273ab, count 2), and

torture (§ 206). Following a trial by jury, defendant was acquitted of murder and torture.

However, she was found guilty of involuntary manslaughter (§ 192, subd. (b)), a lesser

included offense within the charge alleged in count 1, and was convicted of count 2,

assault causing the death of a child. (§ 273ab.) The court denied probation and

committed defendant to state prison for 25 years to life for count 2, the violation of

section 273ab. The court stayed a midterm sentence of three years for count 1 pursuant

to section 654. Defendant timely appealed.

       4   She was admonished per Miranda v. Arizona (1966) 384 U.S. 436, 467-468.


                                              7
                                          DISCUSSION

       1.     There Is Substantial Evidence to Support the Conviction of Assault On a

Child By Force Likely to Produce Great Bodily Injury Resulting in Death.

       Defendant contends that her assault on a child with force likely to produce great

bodily injury resulting in death conviction must be reversed because the prosecutor’s

theory by which appellant could be found guilty of this offense was not supported by

substantial evidence. Acknowledging that there was evidence to support a finding that

she herself had committed a felony child endangerment (abuse) offense by allowing Rudy

to continue to babysit Ismael, even though he had been violent to her and Ismael, she

asserts there was no evidence she had aided and abetted Rudy in the commission of a

separate child endangerment offense by Rudy hitting and biting Ismael, because there is

no evidence she knew that Rudy intended to commit the violent act or that she intended

to aid him in its commission. We disagree.

       We begin with a recitation of the applicable standard of review. In reviewing a

sufficiency of evidence claim, our role is limited; we determine whether, on the entire

record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.

(People v. Smith (2005) 37 Cal.4th 733, 738-739.) On appeal, we must view the evidence

in the light most favorable to the People and must presume in support of the judgment the

existence of every fact the trier could reasonably deduce from the evidence. (People v.

Ochoa (1993) 6 Cal.4th 1199, 1206.) Reversal is unwarranted unless it appears that upon




                                             8
no hypothesis whatever is there sufficient substantial evidence to support the conviction.

(People v. Mason (2006) 140 Cal.App.4th 1190, 1199.)

       Substantial evidence must be of ponderable legal significance, reasonable in

nature, credible and of solid value. (People v. Concha (2008) 160 Cal.App.4th 1441,

1451.) While we must ensure that the evidence is reasonable, credible and of solid value,

it is the exclusive province of the judge or jury to determine the credibility of a witness

and the truth or falsity of the facts on which that determination depends. (People v.

Smith, supra, 37 Cal.4th at p. 739.) While the jury must agree unanimously the defendant

is guilty of a specific crime, there is no requirement that the jury unanimously agree on

the same theory of guilt. (People v. Russo (2001) 25 Cal.4th 1124, 1132, citing People v.

Jenkins (2000) 22 Cal.4th 900, 1024-1026.)

       As defined by Penal Code section 273ab, the crime of child abuse resulting in

death has four elements: (1) the person had the care or custody of a child under eight

years of age; (2) that person committed an assault upon the child; (3) the assault was

committed by means of force that to a reasonable person would be likely to produce great

bodily injury; and (4) the assault resulted in the death of the child. (People v. Albritton

(1998) 67 Cal.App.4th 647, 655.) The crime defined by section 273ab is neither a

murder statute, nor a felony murder statute; it is an assault statute. (People v. Norman

(2003) 109 Cal.App.4th 221, 227.)

       An aider and abettor is one who acts with both knowledge of the perpetrator’s

criminal purpose and the intent of encouraging or facilitating commission of the offense.



                                              9
(People v. Avila (2006) 38 Cal.4th 491, 564.) An aider and abettor is guilty not only of

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

offense committed by the perpetrator he aids and abets. (People v. Whalen (2013) 56

Cal.4th 1, 59.) Although the defendant must share the perpetrator’s specific intent when

aiding and abetting a specific intent crime (See People v. Houston (2012) 54 Cal.4th

1186, 1224), aiding and abetting a general intent crime does not require a specific intent

or an accompanying instruction to that effect. (People v. Olguin (1994) 31 Cal.App.4th

1355, 1380.)

        Additionally, while it is ordinarily true that mere presence at the scene of a crime,

mere knowledge that a crime is being committed, and the failure to prevent it, do not

amount to aiding and abetting (CALCRIM No. 401; People v. Stallworth (2008) 164

Cal.App.4th 1079, 1103), a failure to act can constitute aiding and abetting if the aider

and abettor has a legal duty to act. (People v. Swanson-Birabent (2003) 114 Cal.App.4th

733, 744, citing People v. Culuko (2000) 78 Cal.App.4th 307, 331, fn. 7.) “‘Although the

law does not generally require an individual to come to the aid of another, certain

relationships exist which require such action. Criminal conduct may arise not only by

overt acts, but by an omission to act where there is a legal duty to do so.’” (People v.

Ogg (2013) 219 Cal.App.4th 173, 182, quoting People v. Stanciel (1992) 153 Ill.2d 218,

236.)

        In California, parents have a statutory duty “to exercise reasonable care,

supervision, protection, and control over their minor child.” (§ 272, subd. (a)(2).) In



                                              10
addition, California recognizes a common law duty on the part of parents to protect their

children. (People v. Rolon (2008) 160 Cal.App.4th 1206, 1212, citing People v.

Heitzman (1994) 9 Cal.4th 189, 198.) In light of the duty of parents to protect their

children, defendant may be liable for their children’s homicides, as aiders and abettors,

based on their failure to protect them from abusive boyfriends. (People v. Rolon, supra,

at p. 1216, citing People v. Swanson-Birabent, supra, 114 Cal.App.4th at p. 745.)

         Here, defendant had a duty to protect her three year old child. She knew Rudy had

been abusing Ismael because of bruises and bite marks that no reasonable person could

believe were accidental, and because her son so informed her. In the days preceding the

fatal beating, defendant and others saw bruises towards Ismael’s bottom, bite marks and

bruises on his back, legs and stomach, an open wound in the shape of a W or M on his

thigh caused by some sort of electric cord or cable, and large purple bruise on his left

cheek.

         The abuse was continuous and escalating during the brief time that defendant and

Ismael lived with Rudy. It was not merely reasonably foreseeable that a fatal injury

would be inflicted; it was probable under the circumstances of this case. Nevertheless,

defendant took no protective action on behalf of her son, thereby aiding and abetting

Rudy’s abuse of Ismael. The jury was instructed as to the elements of the crime and the

applicable theories of principal liability. There is substantial evidence to support the

judgment.




                                             11
       2.     The Instructions Relating to the Charge of Assault on a Child With Force

Likely to Produce Great Bodily Injury Resulting in Death Were Proper.

       Defendant argues that the court erred when it gave instructions that allowed the

jury to find her guilty of the crime of assault on a child with force likely to produce great

bodily injury resulting in death without finding all the elements of that offense under the

prosecutor’s theory of prosecution. Specifically, defendant complains that the trial court

failed to read “the last two paragraphs in the standard version of CALCRIM 403.”

       We agree with the general premise that a trial court must instruct the jury on the

general principles of law relevant to the issues raised by the evidence. (People v. Blair

(2005) 36 Cal.4th 686, 744-745 [overruled on a different point in People v. Black (2014)

58 Cal.4th 912, 919].) These general principles of law include the elements of the

charged offenses. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)

       First, the omission of the two paragraphs complained of was not error. Those

paragraphs addressed situations in which there is more than one target offense, and one of

the crimes is alleged to be the natural and probable consequence of the crime that the

defendant aided and abetted. (See People v. Prettyman (1996) 14 Cal.4th 248, 267-268.)

Under these circumstances, the court must identify and describe for the jury any target

offense allegedly aided and abetted by the defendant. (Id., at p. 268.) Insofar as only one

target offense was involved here, there was no need to read the last two paragraphs of

CALCRIM No. 403.




                                             12
       Defendant also argues that, as instructed, the jury could have found her guilty of

assault on a child by force likely to produce great bodily injury resulting in death without

finding all of its elements under the prosecutor’s theory of prosecution, by which the jury

would have had to find that defendant aided and abetted Rudy in the commission of a

child abuse (endangerment) offense. She claims that the version of CALCRIM No. 403

that was given did not require the jury to find that defendant aided and abetted Rudy in

the commission of any crime, and that under the instruction given, the jury could find her

guilty of violating section 273ab without finding she aided and abetted Rudy in the

commission of any crime.

       The court read CALCRIM Nos. 400 and 401, explaining the concept of aiding and

abetting the commission of a crime, before instructing on any of the specific crimes. The

jury was thus admonished that defendant could be guilty as a perpetrator or as an aider

and abettor. The court also read CALCRIM No. 820, correctly setting out the elements

of the crime of assault causing the death of a child. Those elements included the

commission of an act that by its nature would directly and probably result in the

application of force to the child, and that the defendant did that act willfully. Under the

aiding and abetting instructions given, the defendant could be found guilty of the crime in

one of two ways: as the perpetrator, or as an aider and abettor.

       The court also admonished the jury to consider the instructions as a whole.

(CALCRIM No. 200.) Jurors are presumed to be intelligent persons capable of

correlating and following the instructions. (People v. Martin (2000) 78 Cal.App.4th



                                             13
1107, 1111.) When considering a challenge to a jury instruction, we do not view the

instruction in artificial isolation, but, rather, in the context of the overall charge. (People

v. Wallace (2008) 44 Cal.4th 1032, 1075, citing People v. Mayfield (1997) 14 Cal.4th

668, 777.)

       In addition to correct explications of the principles relating to aider and abettor

liability and the elements of the crime of assault causing death of a child, the jury was

also instructed elsewhere, “A parent has a legal duty to care for a child. [¶] If you

conclude that the defendant owed a duty to Carlos Ismael Galacia [sic], and the defendant

failed to perform that duty, her failure to act is the same as doing an injurious act.” This

statement reflects the current state of the law holding that aiding and abetting liability can

be premised on a parent’s failure to fulfill his or her duty to protect his or her child from

attack. (People v. Rolon, supra, 160 Cal.App.4th at p. 1219; People v. Culuko, supra, 78

Cal.App.4th at p.331, fn. 7.)

       Finally, the prosecutor emphasized during summation that the People’s theory of

liability for assault on a child resulting in death was that defendant aided and abetted

Rudy’s assault.

       Reading the instructions as whole, as the jurors are instructed to do and as

appellate courts must do, they did not allow the jury to convict defendant of child abuse

homicide without finding that she aided and abetted Rudy’s violent abuse of Ismael.

                                            DISPOSITION

       The judgment is affirmed.



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       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                 RAMIREZ
                                                           P. J.


We concur:

McKINSTER
                    J.

KING
                    J.




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