P. v. >Zamora>



















Filed 12/17/12 P. v. Zamora CA3















NOT TO BE PUBLISHED







California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.











IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

THIRD APPELLATE DISTRICT

(Sacramento>)

----


>

THE PEOPLE, Plaintiff and Respondent, v. EDUARDO ZAMORA, Defendant and Appellant.	C067275 (Super. Ct. No. 09F04787)
THE PEOPLE, Plaintiff and Respondent, v. AMBER INGRAM, Defendant and Appellant.	C067276 (Super. Ct. No. 09F04787)

Defendants
Eduardo Zamora and Amber Ingram murdered Ingram’s five-year-old son, Braeden
Gardner. Zamora
beat the child to death. Ingram, with
knowledge that Zamora was
repeatedly and severely beating her son, did nothing to prevent the abuse and
facilitated it by providing Zamora
with unsupervised access to the child. Zamora
and Ingram were charged with murder. (Pen. Code, § 187, subd. (a).)href="#_ftn1" name="_ftnref1" title="">[1] With respect to Zamora,
the murder charge included a special circumstance allegation that the murder
was intentional and involved the infliction
of torture. (Former § 190.2,
subd. (a)(18).) Zamora
was also charged with assault on a child involving force likely to produce
great bodily injury and resulting in death (§ 273ab, subd. (a)) and the
substantive crime of torture (§ 206).
Ingram, in addition to murder, was charged with permitting a child to
suffer unjustifiable physical pain or injury with an enhancement allegation
that such conduct resulted in the child’s death. (§§ 273a, subd. (a), 12022.95.)

Defendants
were tried together before separate juries.
Ingram was convicted as charged, including href="http://www.fearnotlaw.com/">second degree murder. Zamora
was convicted of the charged crimes, including first degree murder, but the
jury found the special circumstance allegation to be not true. Zamora
was sentenced to state prison for an indeterminate term of 25 years to life
plus a consecutive life term. Ingram was
sentenced to state prison for an indeterminate term of 15 years to life.

Defendants
filed separate appeals, which we consolidated for purpose of opinion. Ingram’s appeal raises two claims of
error: (1) her murder conviction must be
reversed because there was insufficient evidence that she intended to aid and
abet Zamora’s abuse of her son; and (2) the prosecutor engaged in prejudicial
misconduct and violated her constitutional right to due process by arguing
mutually exclusive versions of the events leading to Braeden’s death to the
separate juries. Zamora’s
appeal raises a single claim of sentencing error. He asserts that the trial court violated
section 654 by imposing and executing sentence on both the conviction for
assault on a child resulting in death and the conviction for torture.

We shall
affirm both judgments. As we explain, href="http://www.mcmillanlaw.com/">substantial evidence supports Ingram’s
murder conviction. “[A] parent who
knowingly fails to take reasonable steps to stop an attack on his or her child
may be criminally liable for the attack if the purpose of nonintervention is to
aid and abet the attack.” (>People v. Rolon (2008)
160 Cal.App.4th 1206, 1219 (Rolon).) Here, based on Ingram’s own statements to
police following her son’s death, a reasonable jury could have concluded that
she chose not to intervene in order to facilitate the abuse of her son and that
murder was a natural and probable consequence of the severe and repeated abuse
inflicted by Zamora on a
five-year-old child. We further reject
Ingram’s contention that the prosecutor argued mutually exclusive versions of
her son’s death to the separate juries.
With respect to Zamora’s
appeal, we conclude that section 654 did not require the trial court to stay
execution of his torture conviction.

FACTUAL BACKGROUND

When
Braeden was born on July 28, 2003,
Amber and William Ingram were dating.href="#_ftn2" name="_ftnref2" title="">[2] The two married in September 2006. William was not the biological father, but
took on the role of Braeden’s father from the child’s birth. Initially, the biological father had some
contact with his son, but this stopped at the age of two. Braeden called William “daddy Will.” At the age of three, Braeden was trained to
use the toilet and “picked it up pretty quickly,” with accidents being “few and
far between.” At around the same age,
Braeden was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and
prescribed certain medications to manage the symptoms. These medications “calmed him down quite a
bit” and made him better able to focus.
William reported no significant disciplinary problems with Braeden.

In
January 2009, Ingram informed William that she wanted a divorce. The following month, she and Braeden moved
into a house with Tammy Barron, one of Ingram’s close friends. Ingram began dating Zamora
shortly after the move. Zamora
frequently came over to the house.
Barron described Ingram as an “awesome mother” prior to this new
relationship. But when she started
dating Zamora, the amount of time
Ingram spent with her son decreased because “her attention was somewhere
else.”

Around
this time, Braeden began having “bathroom accidents.” On several occasions, he urinated in
inappropriate places around the house, e.g., the toy box, the bathroom trash
can, and the laundry hamper in Barron’s closet.
He also urinated in his pants on one occasion. When Barron told Ingram about this, Ingram
responded, “Whoop his fucking ass.”
Barron took this comment to be a joke.
However, she was concerned that Ingram’s relationship with Zamora
was having a negative impact on Braeden.
For example, Barron described an incident in which Ingram and Zamora
were kissing each other in front of Braeden and ignoring his cries for them to
stop. Barron confronted Ingram about
this incident, telling her to “get her head out of her ass” and “be a better
mother.” A couple days later, Ingram and
Braeden moved out of the house they shared with Barron and into Zamora’s
house.

During
this time period, William took care of Braeden two days a week. Braeden had no behavioral problems while he
was with William. Braeden was enrolled
in daycare in March 2009. He had no
behavioral problems while he was at daycare.
Nor did he have any bathroom accidents.
After Zamora lost his job in April 2009, Ingram withdrew Braeden from
daycare so that Zamora could watch him during the day. Ingram also ended Braeden’s visits with
William because he was “being difficult” when he returned from William’s house.

The
beatings began a few weeks later. The
first beating Ingram knew about occurred when Braeden purportedly lied to
Zamora. Zamora called Ingram while she
was at work, told her that he had hit Braeden with his belt, and added, “[T]his
is how Mexican fathers deal with their kids that lie.” According to Ingram, she thought that was a
“normal” reaction because Zamora was raised in a different culture, but told
him not to hit her son anymore. When
Ingram got home and examined her son, she saw that Zamora had “spanked him a
lot of times” on his buttocks and back.
She gave him Motrin and put ice packs on the bruises. A short time later, Braeden began “peeing the
bed” and “pooped his pants” on two occasions.
These incidents also prompted beatings.
During the last month of Braeden’s life, Zamora beat him “10, 11, 12
times.” Each time, Ingram would give her
son Motrin and put ice packs on the bruises.


The fatal
beating occurred the morning of June 17, 2009.
Zamora called Ingram while she was at work and told her that Braeden had
“pooped his pants.” According to Ingram,
she told Zamora to “just put him in his room” and that she would clean it up
when she got home. Zamora then sent “a
picture of the poop on the wall” to Ingram’s cell phone. About 30 minutes later, Zamora called Ingram
again and said, “ ‘Braeden’s not breathing. He’s throwing up and I don’t know what to
do.’ ” Ingram told him to call 911,
hung up the phone, and drove home to check on her son. Zamora called 911 as instructed and informed
the operator, “I’ve been grounding [Braeden’s] ass and I’ve been fucking
disciplining him and he shit in his room and I think he ate shit. And he’s not fucking breathing.” When paramedics arrived, they found Braeden’s
bruised and lifeless body on the floor.
Zamora told one of the paramedics that Braeden “ate shit and then he
stopped breathing.” When asked about the
bruises, Zamora answered, “He came back from his father’s that way.”

Braeden
was dead before he reached the hospital.
His clavicle was broken and “widely displaced,” meaning that the break
was complete and each side of the bone could be moved “quite freely.” He had five rib fractures on the left side of
his chest. His left lung and thymus
gland were bruised. There was bleeding
in the lining of the heart, the spleen, and the left kidney. The stomach and intestinal lining were also
superficially torn. These injuries would
have required the infliction of multiple forceful blows, such as punches or
kicks to the chest and abdomen.
Consistent with these internal injuries, Braeden had “numerous
overlapping bruises” on his chest, abdomen, back, buttocks, arms, hands, legs,
and feet. His lower chest had a
“strap-like horizontal” bruise and several oval-shaped bruises that were
“reminiscent of fingertips or knuckles.”
His chest, back, arms, and legs had several “loop-shaped” bruises. Most of these bruises appeared to have been
inflicted within the previous 48 hours, while some appeared to be a few days
old.

Braeden’s
face and head were also severely beaten.
He had “numerous overlapping” bruises and scrapes on his forehead,
eyelids, nose, cheeks, jaw, and ears.
There was bleeding inside both of Braeden’s eyes, in the muscles of the
front of his neck, and in five separate locations under his scalp. On the left side of the child’s neck, there
was a “patterned injury” consisting of a “central circular abrasion surrounded
by a rim of bruising.” Nine more of
these “pattern” injuries were found on his chest, abdomen, arms, and legs. These injuries could have been caused by
being hit with Zamora’s glass pipe. Heat
from the center of the pipe bowl could have caused the central circular
abrasion, while the cooler outside of the bowl would account for the rim of
bruising surrounding the abrasion.
Braeden also had two “V-shaped or curvilinear” bruises on his left thigh
that were “reminiscent of bite marks,” bruising on his penis and scrotum that
was consistent with “something like a pinch,” and bruising on the skin
surrounding his anus.

Zamora is
the only person who knows exactly what transpired the morning of Braeden’s
death. According to his account, told to
Detective Tom Koontz later that day, he noticed that Braeden had “shit on
himself” as Ingram was leaving to go to work.
He took the soiled mattress, comforter, and clothes outside and told
Braeden to take a shower. Braeden took a
shower, changed into a clean pair of underwear and T-shirt, and sat down in his
bedroom watching a movie. Zamora then
fed Braeden a hotdog for breakfast.
About two hours later, Zamora went into the bedroom to check on Braeden
and found him on the floor in the corner of the room, leaning against the wall
with his eyes open and fluttering. He
had again “shit himself” and “there was shit on the wall.” Braeden was not breathing and Zamora believed
that he had eaten some of his own feces.
Zamora was “panicking,” picked Braeden up off the floor, carried the
child into the master bedroom, placed him on the bed, and put his finger down
Braeden’s throat to make him throw up.
He then called 911. Zamora
admitted to hitting Braeden in the past, but denied doing so that morning,
saying, “I figured he had enough—I mean, look at him, he had enough.”

Later in
the interview, Zamora admitted to hitting Braeden after he “shit himself” that
morning. Zamora claimed that Braeden ran
from him after he spanked the child, so Zamora “fucking hit him.” He might have used a closed fist, but said
that he did not remember. Braeden “just
grabbed his side and he sat down.”
Zamora then took Braeden to the shower and cleaned him up. When he did so, his finger might have gone up
the child’s rectum “a little bit.” After
Braeden was clean, Zamora changed his clothes and put him in his room. A couple hours later, Zamora checked on
Braeden and found him “sitting in the fucking corner” with his eyes
fluttering. He could smell feces on
Braeden’s breath and saw that the substance had been smeared on the wall. Zamora thought that “when [he] spanked
[Braeden], [he] must have fucking hurt him.”
Zamora repeated that he then carried Braeden to the master bedroom, made
him throw up, and called 911. He denied
putting feces in Braeden’s mouth to try to teach him a lesson. When asked whether he hit Braeden hard enough
to cause internal injuries, Zamora answered, “Maybe I hit him that fucking
hard.”

Detective
Koontz then informed Zamora that Braeden had died and confronted him with
pictures showing the severity of the injuries.
Zamora responded, “I fucking hit him too hard, Officer. It’s obvious I fucking hit him too hard and I
beat the shit out of him too much.”
Zamora denied knowing how Braeden received the pattern injuries on his
body and denied causing them by burning or hitting Braeden with his glass pipe,
but he did admit to having bitten the child on one occasion. According to Zamora, most of the bruises on
Braeden’s body were from the previous two weeks. He denied hitting Braeden with anything other
than his hand and a belt. He admitted to
slapping the boy in the face on one occasion.
When Koontz pointed to a large bruise on Braeden’s side, Zamora said
that he believed he inflicted that injury when Braeden tried to run from him
that morning.href="#_ftn3" name="_ftnref3"
title="">[3]

Ingram
also spoke to police following her son’s death.
At first, she denied seeing the bruises on Braeden’s body and claimed
that he had been wearing “long-sleeve shirts and sweats” for the previous week,
which was not “normal” because the weather was hot. She also denied seeing him naked at all
during that week, saying that he took a bath or shower in the morning after she
had already gone to work. Ingram then
acknowledged that Zamora had spanked Braeden for “peeing the bed” the previous
day and claimed that she threatened to move out because of it. She also said that Braeden had hit his head
“a week and a half, two weeks ago,” while he was running down the hallway. Other than that, he had “just normal boy
bumps and bruises.”

Later in
the day, Ingram gave a more detailed statement to Detective Bruce Wanner. She continued to claim that she did not know
about the bruises on Braeden’s body except for one that she saw on his buttocks
and lower back from when Zamora spanked him the previous day for peeing the
bed. Ingram also maintained that Braeden
had hit his head while running down the hallway. She then slowly began to acknowledge the
extent of the abuse her son suffered at the hands of Zamora. First, she said that Zamora had “spanked him
a couple of times for peeing the bed.”
Both times, according to Ingram, Zamora said that he used his hand and
that he would not hit Braeden with anything else. Ingram also claimed that she made an
appointment for Braeden to see a psychologist to find out whether he was
“acting out” because she had left William and moved in with Zamora. When Detective Wanner asked her what happened
that morning, Ingram said that she threatened to move out and told Zamora, “I
don’t think it’s right for you to spank a kid over peeing the bed because he’s
five years old.” When Ingram got to
work, she e-mailed a friend and told her that she was “thinking about moving
out.” Ingram explained that even though
she only knew about two spanking incidents, she did not think Zamora “was going
to stop at that.”

Detective
Wanner then confronted Ingram with the fact that Braeden had “very, very severe
bruising and injuries” and told her that she was being “less than truthful”
about the injuries she saw on her son.
Ingram agreed and said that she was “trying to find a place to go.” She felt “stuck” and Zamora “made [her] feel
on top of the world,” telling her that he loved and cared for her, and that she
was “the best thing to ever happen to him.”
Ingram then described the first incident of abuse, recounted in greater
detail above, in which Zamora hit Braeden with a belt for purportedly lying to
him. According to Ingram, she told Zamora
not to hit Braeden and threatened to leave, but he “got in [her] head” and
convinced her to stay. She saw the
bruises following this incident, gave her son Motrin for the pain, and put ice
packs on the bruises. Ingram also
described an incident that occurred about a week before Braeden’s death in
which Zamora hit him with a belt because he “shit on himself.” Ingram again told Zamora not to hit Braeden
and checked her son’s injuries when she got home from work. There were 10 or 11 bruises on his back and
15 to 20 bruises on each leg. Ingram
again gave Braeden Motrin for the pain, put ice packs on the bruises, and told
her son, “I love you, it’s going to be okay.
We’re going to figure this out.”
Ingram again threatened to leave, but Zamora again “got completely in
[her] head” and convinced her to wait until she took Braeden to the
psychologist to see if that straightened everything out. Ingram also stated that she was responsible
for Braeden’s death because she “could have protected him more.” When asked why she did not do so, Ingram
answered, “Because of him. He was in my
head.”

According
to Ingram, the last time she saw her son naked was two nights before his
death. When Detective Wanner showed her
pictures of Braeden’s bruises, she acknowledged that he had some of the bruises
then, but not “the big ones.” She then
ended the interview, saying, “I can’t look at that. I want to leave.” Ingram returned to the police station the
following day to finish her statement.
She again explained that Zamora started beating Braeden “a few weeks
after he started watching him.” But this
time, she acknowledged seeing bruises on her son’s body “10, 11, 12
times.” Each time, she gave him Motrin
and ice packs. She also admitted to
being “ashamed” that she “was letting that happen to him and [she] didn’t do
anything about it and [she] could have.”


DISCUSSION

I. Ingram’s
Appeal

Ingram’s
appeal raises two claims of error.
First, she asserts that her second degree murder conviction must be
reversed because there was insufficient evidence that she intended to aid and
abet Zamora’s abuse of her son. Second,
she argues that the prosecutor engaged in prejudicial misconduct and violated
her constitutional right to due process by arguing mutually exclusive versions
of the events leading to Braeden’s death to the separate juries. We reject each of these contentions.

A. Sufficiency
of the Evidence

Ingram
argues that there is insufficient evidence
to support her second degree murder conviction because the only evidence that
her failure to prevent Zamora’s abuse of her son was intended to aid and abet
the abuse was Zamora’s self-serving trial testimony, which she describes as
“inherently incredible.” We
disagree.

“A person
who aids and abets the commission of a criminal offense is considered a
principal in the crime. [Citation.] In order for criminal liability to be imposed
under an aiding and abetting theory, the person must ‘act with knowledge of the
criminal purpose of the perpetrator and
with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense.’ ” (People
v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 740, quoting >People v. Beeman (1984) 35 Cal.3d
547, 560.) “A person who aids and abets
a crime may be liable ‘ “for any other offense that was a ‘natural and
probable consequence’ of the crime aided and abetted.” [Citation.]’
[Citation.] ‘[W]hen an
individual’s criminal liability is based on the failure to act, it is well established that he or she must first be
under an existing legal duty to take positive action. [Citations.]’ ” (Rolon,
supra, 160 Cal.App.4th at
p. 1212, quoting People v. Heitzman
(1994) 9 Cal.4th 189, 197.)

“ ‘When
a criminal statute does not set forth a legal duty to act by its express terms,
liability for a failure to act must be premised on the existence of a duty
found elsewhere.’ [Citation.] A criminal statute may incorporate a duty
imposed by another criminal or civil statute, and ‘may also embody a common law
duty based on the legal relationship between the defendant and the victim, such
as that imposed on parents to care for and protect their minor children. [Citations.]’
[Citation.] ‘The common law
imposes affirmative duties upon persons standing in certain personal
relationships to other persons‒‒upon
parents to aid their small children . . . a mother [may be guilty of
criminal homicide] for failure to prevent the fatal beating of her baby by her
lover . . . .’ ” (>Rolon, supra, 160 Cal.App.4th at p. 1215.)

Thus,
“parents have a common law duty to protect their children and may be held
criminally liable for failing to do so:
a parent who knowingly fails to take reasonable steps to stop an attack
on his or her child may be criminally liable for the attack if the purpose of
nonintervention is to aid and abet the attack.”
(Rolon, supra, 160 Cal.App.4th at p. 1219.) Such inaction, with the requisite intent to
aid the perpetrator, “can support liability for implied malice murder.” (Ibid.)

In >Rolon, supra, 160 Cal.App.4th 1206, the Court of Appeal found
sufficient evidence to support the defendant’s murder conviction where her
boyfriend (Lopez) killed their one-year-old child (Isaac) while she “made no
effort to aid her son.” (>Id. at p. 1221.) Although a court order prevented Lopez from
staying at the defendant’s apartment or having unmonitored contact with her
children, she allowed him to stay there anyway.
(Id. at
pp. 1209-1210.) One night, Lopez
immersed Isaac in a tub of water and unspecified chemicals and then threw him
against a wall in front of the defendant.
The child, who had been crying, stopped when he hit the wall. Later, Lopez went to sleep and awoke to the
sound of Isaac crying. He punched the
child in the chest. When the defendant
told Lopez to leave Isaac alone, he told her to shut up and hit the child
several more times. Early the next
morning, Lopez said that he would take care of Isaac and told the defendant to
go to bed, which she did. When Isaac
began to cry, Lopez muffled his cries with a stuffed toy and a jacket. (Id.
at p. 1210.) At some point, the
child was also given a lethal dose of children’s cough medicine. Isaac died of a combination of blunt force
injuries, suffocation, and pseudoephedrine overdose. (Id.
at p. 1211.)

Affirming
the defendant’s second degree murder conviction, the Court of Appeal in >Rolon explained, “In this case, [the
defendant] attempted to strike Lopez at least once during the week before the
homicide. According to her statement to
the interrogating officers, she reprimanded Lopez when he punched her son, and
after he told her to ‘shut up’ and not involve herself, she continued
‘fighting’ with him. She did not explain
what she meant by ‘fighting.’ She made no
effort to aid her son: she did not
scream, call 911, ask a neighbor to help or call for help, or do anything
else. Instead, she went to sleep and
left her son alone with Lopez although she knew Lopez had recently punched him
and thrown him against a wall. From this
evidence, a reasonable jury could infer that [the defendant] was capable of
taking some action to protect her child and that she chose not to do so, but to
go to sleep and leave her son alone with Lopez.
These inferences support the conclusion that [the defendant] did not
take every step reasonably necessary under the circumstances to protect her
son.” (Rolon, supra,
160 Cal.App.4th at p. 1221.)

Ingram
argues that the Rolon decision was
“predicated on case-specific evidence proving that the defendant mother’s
inaction was intended to aid and abet the abuse,” while the record in this case
“contains no such evidence, and allows no such conclusion.” “Most notably,” argues Ingram, “[she] was not
present at the scene of the crime. She
did not fail to act after seeing Zamora beat [Braeden] in a killing
frenzy. Indeed, she had not been present
at any time Zamora hit [Braeden].” We
are not persuaded. While the >Rolon court stated that “the jury could
reasonably infer [the defendant’s] intent to aid Lopez from >her presence at the scene of the crime,
her duty to protect her child and her failure to do so” (Rolon, supra,
160 Cal.App.4th at p. 1219, italics added), the court did not state
that presence at the scene of the crime was necessarily required in order for
accomplice liability to attach. Nor
would such a statement be consistent with the law. (§ 31 [principals in a crime defined as
those who “directly commit the act constituting the offense, or aid and abet in
its commission, or, not being present,
have advised and encouraged its commission” (italics added)].)

Moreover,
the Rolon court cited with approval a
number of out-of-state cases, including People
v. Stanciel (1992) 153 Ill.2d 218, two consolidated appeals, both of which
involved “the death of a child, murdered by the boyfriend of the child’s
mother,” and in which “the mother knew of the on-going abuse of the child by
the murderer.” (Stanciel, at p. 232.)
In one of the appeals, the mother (Peters) was not present when the
fatal blows were struck. (>Id. at p. 237.) The Illinois Supreme Court held that in both
appeals “the mother’s knowledge of [the] on-going abuse, coupled with the
continued, sanctioned exposure of the child to this abuse, is sufficient to
hold the mother accountable for the murder of the child.” (Id.
at p. 232.) Rejecting the argument
that “because Peters was not present when the fatal blows were struck, she
could not have aided [her boyfriend] in the murder,” the court explained,
“First, actual presence at the commission of a crime is not a requirement of
accountability. [Citation.] Second, a defendant may be found to have
aided and abetted without actively participating in the overt act itself. [Citation.]
In Peters’ case, the aid rendered may be found in Peters’ act of placing
[her son] in the control of the principal, a known abuser. This delegation of exclusive control of the
child to [the abuser] constituted the act of aiding a principal under the
accountability statute.” (>Id. at p. 237.)href="#_ftn4" name="_ftnref4" title="">[4]

Similarly,
here, substantial evidence supports the conclusion that Ingram knew about the
severe abuse Zamora was inflicting upon Braeden during the month leading up to
his death and aided Zamora by continuing to expose her son to the abuse. While she claims that “[s]he was only aware
that Zamora was hitting [Braeden] with a belt more often than the twice he had
admitted,” this mitigated statement of her knowledge is belied by the
record. As mentioned, Ingram told
Detective Wanner that Zamora started beating Braeden “a few weeks after he
started watching him.” She acknowledged
seeing bruises on her son’s body “10, 11, 12 times.” Rather than remove Braeden from this abusive
environment, or at the very least ensure that Zamora did not have unsupervised
access to her son, Ingram continued to allow Zamora to watch the child while
she was at work. And when she came home
to new bruises on her son’s body, she simply gave him Motrin for the pain and
put ice packs on the bruises.

As in >Rolon, supra, 160 Cal.App.4th 1206, Ingram’s jury was justified in
concluding that Ingram failed to take reasonable steps to protect her son. Indeed, she admitted as much to Detective
Wanner when she said that she was “ashamed” that she “was letting that happen
to [Braeden] and [she] didn’t do anything about it and [she] could have.” The reason she chose not to intervene, by her
own words, was that Zamora “was in [her] head.”
She felt “stuck” in the relationship because Zamora “made [her] feel on
top of the world,” told her that he loved and cared for her, and said that she was
“the best thing to ever happen to him.”
Rather than leave Zamora to protect her son, she opted to schedule an
appointment for Braeden to see a psychologist—thinking if Braeden stopped
aggravating Zamora by “acting out,” perhaps the abuse would stop. The law requires more from a parent than
wishful thinking. It requires the parent
to take reasonable steps to protect his or her child from abuse, which Ingram
failed to do.

Finally,
Ingram appears to concede that substantial evidence supports her second degree
murder conviction if we consider Zamora’s trial testimony. Zamora testified that both he and Ingram hit
Braeden. According to Zamora, he caused
some of the bruises on Braeden’s legs, feet, buttocks, and “[a] little bit
above the waist.” He also “accidentally”
hit Braeden once in the face with the belt.
Zamora denied causing any of the bruises on Braeden’s chest, back,
shoulders, neck, and face. He also
claimed that on two occasions he heard “smacking,” “a thump now and then,” and
“crying” coming from Braeden’s bedroom while Ingram was in the room with her
son. According to Zamora, the morning
Braeden died, he spanked the child three or four times with the belt for
defecating in his pants. Then, while Zamora
got “stoned” in the living room, Ingram cleaned Braeden up in the shower and
took him into his bedroom. Zamora heard
“smacking” and “crying” coming from Braeden’s room. When Ingram came out, she said that Braeden
was grounded and left to go to work.
Zamora checked on Braeden a couple hours later and found him leaning
against the wall with his eyes fluttering back and forth. He noticed that Braeden had feces in his
mouth and put his finger down the child’s throat to make him throw up. He then carried Braeden to the master
bedroom, again tried to make him vomit, noticed his eyes were still fluttering,
rushed to the bathroom to try to revive him in the shower, and then carried the
child back to the bedroom. At this
point, Ingram called. He told her that
Braeden was not breathing, hung up the phone, and called 911. Later in Zamora’s testimony, he claimed that
Ingram inflicted the injuries on Braeden’s body “two days before he passed
away.”

Ingram
asserts that Zamora’s “self-serving” and “internally inconsistent” testimony
cannot support her murder conviction, pointing out that it “was so patently
false that the prosecution did not even argue it.” Instead, the prosecution argued that she
“knew Zamora had beaten [Braeden], not that she ever hit him herself.” Ingram also asserts that Zamora’s trial
testimony was “inherently improbable” because (1) “it was vividly contradicted
by Zamora’s own admissions to the police,” and (2) the claim that Ingram
inflicted the injuries two days before Braeden’s death “was contradicted by the
physical evidence,” specifically, the medical evidence that Braeden’s internal
injuries were likely “inflicted on the morning of his death.” It doesn’t matter because, as we have
explained, Ingram’s own statements to Detective Wanner are sufficient to
establish that she knew about the severe abuse Zamora was inflicting upon
Braeden during the month leading up to his death and aided Zamora by continuing
to expose her son to the abuse.

The jury could also have reasonably concluded
that murder was a natural and probable consequence of the severe and repeated
abuse inflicted by Zamora on a five-year-old child. (See People
v. Culuko (2000) 78 Cal.App.4th 307, 333 [murder was natural and
probable consequence of felony child abuse].)
Thus, we affirm Ingram’s murder conviction as supported by substantial
evidence.

B. Prosecutorial
Misconduct

We also
reject Ingram’s contention that the prosecutor violated her href="http://www.mcmillanlaw.com/">constitutional right to due process by
“deceptively and unfairly argu[ing] mutually exclusive versions of crucial
facts,” i.e., the events leading up to Braeden’s death, to the separate
juries.

1. The prosecutor’s closing arguments.

As
mentioned, Ingram and Zamora were tried together before separate juries. In her closing argument before Ingram’s jury,
the prosecutor argued that “Ingram watched over time as the violence by her
boyfriend against her son escalated and escalated and escalated over and over
and over again.” The prosecutor argued
that when Ingram went to work the morning Braeden died, she “knew that [her
son] was beaten and suffering and injured and looked like [the autopsy photos]
when she left him that morning, okay.
Not only all of the other times that this was happening, but that
morning, on June 17th, she took a look at her son, looking like [the autopsy
photos], she had to know he was in agony, she had to know he was in pain, she
saw the injuries to him.” According to
the prosecutor, “This beating did not happen in less than three hours. You saw Braeden’s body, okay. She leaves for work. She leaves her child in the care of this man
that she knows caused those injuries to him, such that you saw [in] the autopsy
photos. Those photos tell you what she
saw, because, folks, those didn’t all
happen in that very small window period of time that morning. Yes, they are acute, and acute means that
morning, and it could have been up to a day, even one before that, according to
the coroner.” The prosecutor continued,
“She does nothing to protect this child.
And, again, she makes a fatal decision on the 17th of June to let that
man be alone with her child in that condition, suffering and dying, and >then he gets another final fatal beating
and it’s over.” (Italics added.)

Later in
the argument, the prosecutor repeated that the abuse “escalated over a period
of at least a week where Braeden was beaten so badly, his body gave out.” Still later, she argued, “[Ingram] was only
gone for a few hours, less than three that morning, okay. All that abuse and this shutdown of
[Braeden’s] system and his death did not
all happen in three hours, okay.
That child was significantly bruised and beaten with developed colored
scarring to his body from head to toe when she saw him and left him that
morning.” (Italics added.) The prosecutor then stated, “That child had >a number of those injuries when she left
him—when she left him with [Zamora] and you know that from the nature and
extent of those blows and those injuries and the well-developed color on those
bruises on the outside markings and what he must have been exhibiting—what he
must have been exhibiting in terms of pain, in terms of discomfort, in terms of
lethargy, okay. A child doesn’t endure
this kind of trauma and not exhibit symptoms.
[¶] He is not a toddler, he can
speak. He had to have been telling his
mother to help him. He had to have been
telling his mother he hurt. He had to
have been asking for protection, and she doesn’t protect him. She abandons him again and leaves him trapped
alone in this prison with this man, and those are her choices and those choices
allowed Zamora to kill [>Braeden] that morning.” (Italics
added.)

The
prosecutor continued, “They didn’t all
happen during that short time frame.
Look at the pictures yourself.
It’s clear, it took time to do this.
This wasn’t a blowup of rage that morning. It escalated, it became fatal that morning, but [Ingram] certainly is on notice
well before that that this could possibly happen.” (Italics added.) The prosecutor then pointed out that Ingram
admitted to Detective Wanner that Zamora had beaten her son in the past. She also quoted from Zamora’s statement to
Detective Koontz, in which he initially denied hitting Braeden that morning
because, in Zamora’s words, “look at him, he [had] had enough.” The prosecutor added, “He is telling you that
child looked like that that morning before
his fatal beating where he inflicted some new injuries, but make no
mistake, for the most part that child
looked like that that morning.” (Italics
added.) The prosecutor also pointed out
that Ingram claimed to have threatened to leave Zamora the night before and
argued, “Why? Because [her son] looked
like that. That is another reason you
know she saw those injuries and how severe they were the night before.”

In front
of Zamora’s jury, purportedly in irreconcilable conflict with the foregoing
argument, the prosecutor argued, “The internal injuries and bone breaks are
acute, okay. Those are the most severe,
the most significant injuries [the coroner] believes happened that
morning. And who is with Braeden that
morning? Zamora.” The prosecutor further argued, “So who
inflicted these injuries? It’s clear
beyond much debate who is responsible.
How do you know that [Zamora] is responsible? Well, because of the timing of the onset of
the symptoms and when Braeden died and the coroner’s opinion about those
traumas being so acute that they would cause symptoms that would have been
immediately apparent, like unconsciousness, like stopping breathing, all of
those things happened during the three-hour window of time that [Zamora] is
alone with this child that day.”

2. Analysis.

“[T]he
People’s use of irreconcilable theories of guilt or culpability, unjustified by
a good faith justification for the inconsistency, is fundamentally unfair, for
it necessarily creates the potential for‒‒and,
where prejudicial, actually achieves‒‒a
false conviction or increased punishment on a false factual basis for one of
the accuseds.” (In re Sakarias (2005) 35 Cal.4th 140, 159-160 (>Sakarias); see also Nguyen v. Lindsey (9th Cir.2000) 232 F.3d 1236, 1240 (>Nguyen) [“a prosecutor’s pursuit of
fundamentally inconsistent theories in separate trials against separate
defendants charged with the same murder can violate due process if the
prosecutor knowingly uses false evidence or acts in bad faith”].)

In >Sakarias, our Supreme Court explained,
“By intentionally and in bad faith seeking a conviction or death sentence for
two defendants on the basis of culpable acts for which only one could be
responsible, the People violate ‘the due process requirement that the
government prosecute fairly in a search for truth . . . .’ [Citation.]
In such circumstances, the People’s conduct gives rise to a due process
claim (under both the United States and California Constitutions) similar to a
claim of factual innocence. Just as it
would be impermissible for the state to punish a person factually innocent of
the charged crime, so too does it violate due process to base criminal
punishment on unjustified attribution of the same criminal or
culpability-increasing acts to two different persons when only one could have
committed them. In that situation, we >know that someone is factually innocent of the culpable acts attributed to
both.” (Sakarias, supra,
35 Cal.4th at p. 160; see also Thompson
v. Calderon (9th Cir.1997) 120 F.3d 1045, 1057 (Thompson) [prosecutor “asserted as the truth before Thompson’s jury
the story he subsequently labeled absurd and incredible in Leitch’s trial”],
revd. on other grounds sub nom. >Calderon v. Thompson (1998)
523 U.S. 538 [140 L.Ed.2d 728].)


Ingram
argues that her due process rights
were violated because the prosecutor argued to her jury that “the killing blows
were inflicted the night before [Braeden’s] death,” while she argued to
Zamora’s jury that “the internal injuries had occurred the morning of
[Braeden’s] death.” We disagree for two
reasons. First, viewing the argument
delivered to Ingram’s jury in its entirety, we cannot conclude that a
reasonable jury would have understood the prosecutor to be arguing that the
killing blows were delivered the night before Braeden’s death. The point the prosecutor was making was that
Braeden was suffering ongoing abuse, that many of the child’s injuries were
visible and known to Ingram the night before his death, and that she
nevertheless chose to leave him with Zamora the next morning. Indeed, the prosecutor clearly stated, “She
abandons him again and leaves him trapped alone in this prison with this man,
and those are her choices and those choices allowed
Zamora to kill him that morning.”
(Italics added.) Even the
portions of the argument so heavily relied upon by Ingram, i.e., that Braeden
“looked like [the autopsy photos] when she left him that morning,” were clarified
later in the argument when the prosecutor stated that Braeden “had >a number of those injuries when she left
him” and that “for the most part that
child looked like that that morning.”
(Italics added.)

Second,
unlike Thompson, supra, 120 F.3d 1045, this is not a situation in which the
prosecutor argued that both defendants committed a murder that was committed by
only one of them. And unlike >Sakarias, supra, 35 Cal.4th 140, this is not a situation in which the
prosecutor argued that one defendant inflicted certain blows and then turned
around and argued that the same blows were inflicted by the other
defendant. Here, both Ingram and Zamora
could be found guilty of Braeden’s murder—Zamora as the direct perpetrator who inflicted the fatal
blows, and Ingram as an aider and abettor who knew about the severe abuse Zamora was inflicting upon Braeden
during the month leading up to his death and aided Zamora by continuing to
expose her son to the abuse. These were
the theories used to convict each defendant.
Nothing in the prosecutor’s closing arguments suggested that Ingram was
the one who inflicted the fatal blows.
Thus, regardless of what the prosecutor said about >when the fatal blows were struck, this
is not the type of situation in which “we know
that someone is factually innocent of
the culpable acts attributed to both.” (>Sakarias, supra, 35 Cal.4th at p. 160; see Nguyen, supra,
232 F.3d at p. 1240 [“both defendants could be guilty of the same
crime because of the nature of the crime—the murder of an innocent bystander
during gang warfare”].)

We find
no prosecutorial misconduct. Nor do we
find a violation of Ingram’s due process rights. And because the prosecutor’s arguments were
not irreconcilable, Ingram’s claim of judicial estoppel also fails.

II. Zamora’s
Appeal

Zamora’s
appeal raises a single claim of sentencing error. He asserts the trial court violated section
654 by imposing and executing sentence on both the conviction for assault on a
child resulting in death and the conviction for torture. He is mistaken.

As
relevant, section 654, subdivision (a) provides: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one
provision.”

This
section has been interpreted to preclude multiple punishment for “a single act
or indivisible course of conduct.” (>People v. Assad (2010) 189 Cal.App.4th
187, 200.) “ ‘The divisibility of a
course of conduct depends upon the intent and objective of the defendant.
. . . [I]f the evidence
discloses that a defendant entertained multiple criminal objectives which were
independent of and not merely incidental to each other, the trial court may
impose punishment for independent violations committed in pursuit of each
objective even though the violations shared common acts or were parts of an
otherwise indivisible course of conduct.’ ” (People
v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Nubla (1999) 74 Cal.App.4th 719, 730.) However, as our Supreme Court recently
explained, a defendant may not be punished twice for a single act simply because he or she harbored multiple criminal
objectives. (People v. Mesa (2012) 54 Cal.4th 191, 199-200.) Instead, the intent and objective test
determines whether a course of conduct is indivisible and must therefore be
treated as a single “act” within the meaning of section 654. (People
v. Akins, supra, 56 Cal.App.4th
at pp. 338-339.) Whether a
defendant harbored multiple criminal objectives is a question of fact, the
trial court’s determination of which must be upheld on appeal if supported by
substantial evidence. (>People v. Nubla, supra, 74 Cal.App.4th 730; People
v. McKinzie (2012) 54 Cal.4th 1302,1368-1369.)

Here, as
mentioned, Zamora was convicted of murder (count one), assault on a child
involving force likely to produce great bodily injury and resulting in death
(count two), and torture (count three).
At sentencing, Zamora’s attorney argued that section 654 precluded the
trial court from imposing and executing sentence on both counts one and three
because “the murder that was found to be true by [Zamora’s] jury was committed
during the course of a torture.”
Zamora’s attorney explained, “I believe by a finding that the special
circumstance was not true [the jury] rejected the notion that this was an
intentional murder. And I say that
because the special circumstance adds the element of an intentional murder, um,
on top of elements that the jury did find to be true. So I think it’s safe to say that this jury
convicted [Zamora] of murder on a felony murder theory, the murder being during
the course of torture, so I find it problematic that the Probation Department
would recommend sentencing to consecutive terms on that same course of
conduct.”

The
prosecutor agreed, but urged the trial court to sentence Zamora to a term of 25
years to life on count two, as the principal term, and then impose a full consecutive
term of life on count three. The
prosecutor explained that the trial court could “use count two as the principal
term and avoid the [section] 654 issue because the torture that happened in
count three went well above and beyond, um, the conduct that led to the child’s
death in this case. There was evidence
of pinching, biting, burning, other types of, um, injuries to this child that
were not necessarily causes of death and are not shared within the same kind of
intent required for count two.” The
prosecutor further explained that any of the blows inflicted the morning of
Braeden’s death that resulted in the child’s death “would have been enough to
hold [Zamora] accountable for count two and 25-to-life,” while the torture
alleged in count three “went above and beyond the assaultive conduct [that
caused Braeden’s death] and went into the realm of torturing this child and
doing things to this child that did not result in his death that were for a
sadistic purpose[.]” Moreover, argued
the prosecutor, “the time frames are different in count two and count
three.”

The trial
court imposed and executed sentence on counts two and three, finding that “the
assault resulting in death, as well as the torture, are separate events” and
that “the separate events are involved with different time frames.”

Zamora
argues that “since the evidence showed that he acted with only one intent—an
intent to harm the child that resulted in death—the torture conviction should
also have been stayed.” We are not
persuaded. Torture involves the
infliction of 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.”
(§ 206.) The evidence
revealed that Zamora tortured Braeden for at least two weeks prior to the
child’s death. According to his own
words, he beat Braeden “fucking two, three times a week.” Zamora admitted to biting Braeden during this
period of time. And while he denied
burning or hitting Braeden with his glass pipe, the jury could have concluded
from the coroner’s testimony concerning the pattern injuries on Braeden’s body
that Zamora did so. As Zamora stated to
Detective Koontz, that would be “fucking cruel.” Thus, the evidence supports the trial court’s
conclusion that Zamora tortured Braeden during the weeks leading up to the
final beating that ended the child’s life.


Conversely,
it was Zamora’s final beating of Braeden, by means of force likely to produce
great bodily injury and resulting in the child’s death, that made Zamora liable
for violation of section 273ab charged in count two. While, as Zamora argues, he may well have had
the same intent in committing this crime, i.e., “to torture [Braeden],” he had
time to reflect on his prior torturous conduct and renew his intent to
sadistically inflict pain and suffering on this five-year-old child. (See People
v. Harrison (1989) 48 Cal.3d 321, 335-336 [section 654 did not apply
where the defendant committed three acts of vaginal penetration during a span
of seven to 10 minutes; each time the initial attack was interrupted by the
victim’s struggle, the defendant voluntarily resumed his sexually assaultive
behavior]; People v. Trotter (1992)
7 Cal.App.4th 363, 367-368 [section 654 did not apply where the defendant
had time to reflect between the shots he fired at a police officer and renewed
his intent to harm the officer].)

We
conclude that substantial evidence supports the trial court’s conclusion that
Zamora’s final assault resulting in Braeden’s death was punishable separately
from the torture that occurred in the weeks leading up to this assault. This conclusion is consistent with the
purpose of section 654, which is “to insure that a defendant’s punishment will
be commensurate with his culpability.” (>People v. Perez (1979) 23 Cal.3d
545, 552.) A defendant who tortures a
child over the course of at least two weeks, has time to sleep on his decision
to so ruthlessly abuse the child, and then beats the child to death the next
morning, is more culpable than a defendant who either commits the torture or
commits the assault resulting in death.
This conclusion is also consistent with People v. Assad, supra,
189 Cal.App.4th 187, in which we recently held that the trial court did
not err in separately punishing the defendant for three incidents of domestic
violence and for torture where the defendant did not carry his burden of
showing that the incidents of domestic violence were part of the course of
conduct on which the torture conviction was based. (Id.
at p. 201.)

DISPOSITION

The judgments are affirmed.







BUTZ , J.







We concur:







BLEASE , Acting P. J.







NICHOLSON , J.