P. v. Galvez























Filed 3/25/13 P. v. Galvez CA2/1

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
ONE




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THE PEOPLE, Plaintiff and Respondent, v. HECTOR HUGO ARGUETA GALVEZ, Defendant and Appellant.

B237299 (Los Angeles County Super. Ct. No. MA051645)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Richard Naranjo, Judge. Affirmed.

Leonard J.
Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General and William H. Shin, Deputy Attorney
General, for Plaintiff and Respondent.

________________________

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A jury
convicted Hector Galvez of corporal injury to a spouse, felony child abuse,
criminal threats, and assault by means likely to cause great bodily href="http://www.sandiegohealthdirectory.com/">injury. Galvez appeals, arguing that there was
insufficient evidence to convict him of felony child abuse. We affirm.

BACKGROUND

A second amended information
filed April 13, 2011 charged Galvez with one count of corporal injury to a
spouse, cohabitant, or child’s parent, in violation of Penal Codehref="#_ftn1" name="_ftnref1" title="">[1]
section 273.5, subdivision (a) (count 1); one count of felony child abuse, in
violation of section 273a, subdivision (a) (count 2); one count of criminal
threats, in violation of section 422 (count 3) ; and three counts of assault by
means likely to produce great bodily injury or with a weapon, in violation of
section 245, subdivision (a)(1) (counts 4, 5, and 6). Galvez pleaded not guilty.

A jury
found Galvez guilty on all counts.
Galvez was sentenced to nine years and eight months in href="http://www.fearnotlaw.com/">state prison, with fines, fees, and
restitution. He filed this timely
appeal.

DISCUSSION

Galvez’s
sole argument on appeal is that there was insufficient
evidence to convict him of felony child abuse (count 2). We recount the evidence at trial.

In a call
to 911 at 2:00 a.m. on January 23, 2011, Estenia Rodriguez reported that her
sister-in-law’s husband was beating her sister-in-law up, keeping her inside
the house where the children were crying (Estenia was calling from outside).

The beating
victim was Gladys Soriano. Soriano
testified that she had lived with Galvez for approximately seven years. At the time of the 911 call Soriano and
Galvez lived in Palmdale, with their four-year-old son A.A., and Soriano’s eight-year-old
daughter by another father, K.F.
Soriano’s brother Illidio Rodriguez and Estenia, his wife, were visiting
from out of state and staying in the house.href="#_ftn2" name="_ftnref2" title="">[2]

The
previous day, Galvez, Soriano, the two children, and Illidio and Estenia went
to a baby shower. Galvez wanted to
dance, but Soriano said no. Galvez
started to drink beer and tequila.
Later, Soriano danced with a female friend and her male friend and then
sat back down. Galvez, who continued to
drink, was upset with Soriano. At the
preliminary hearing, Soriano had testified that Galvez called her a bitch and
said, “‘You went and danced with somebody, but you wouldn’t dance with me.’”href="#_ftn3" name="_ftnref3" title="">[3]

Soriano
left the party in her car, and Galvez left in his. Once home, Soriano was washing dishes in the
kitchen, and she and Galvez began to argue about her dancing with someone
else. At the preliminary hearing,
Soriano testified that Galvez said, “‘“You see, you bitch. You didn’t want to dance with me, but you
danced with others” and he hit me in my rear end three times.’” Galvez grabbed
her around her neck with both hands, squeezing until she found it hard to
breathe and felt she was losing consciousness.
She had also testified at the preliminary hearing that Galvez was
saying, “‘“You fucking bitch. You’re not
knowing what I’m capable of. I would
rather kill you.”’” Galvez then dragged
Soriano by the hair to the living room and threw her by the couch, leaving
scratches and marks on her neck. During
the struggle, Galvez threw kitchen items to the floor, and a chair was
overturned.

A close
friend of the couple, Sergio Herrera, was also at the house, and he went to get
Estenia and Illidio from their room.
Illidio told Galvez not to argue with Soriano, but Galvez “‘got me bent
against the cement table and I couldn’t get away from that and then he was
telling my brother that if he wanted to get involved, that he could kill—he
could get killed, too.’” The children
were in the room watching everything, crying and shaking, with K.F. saying,
“‘“Don’t beat up my mother.”’” Galvez
kicked Estenia and Illidio out of the house and locked the door.

Soriano
suffered scratches on her neck, an abrasion on her right knee, a bruise on her
left calf, and a four-inch bruise on her inner thigh; a neck injury prevented her
from turning her head for a week.

At the
preliminary hearing, Soriano had testified that in April of 2010, Galvez had
been drinking and approached her with a six-inch knife, holding it close to
her, cutting himself, and smearing her with his blood. Galvez said, “‘“You fucking bitch. You don’t know what I’m capable of.”’” Soriano had also testified that in October of
2010, Galvez was drinking with Herrera and threw an empty beer bottle at
Soriano, who was washing the dishes. She
dodged the bottle. Galvez picked up a
piece of the shattered bottle and made a fist around it, cutting his palm, and
said, “‘“This is how you shatter a glass.”’”

Herrera
testified that in October 2010, he and Galvez were drinking at Soriano’s
kitchen table, and Galvez threw an empty beer bottle at Soriano and then cut
himself by accident. On January 23,
2011, he had gone to the party with Galvez and Soriano. When they returned to the house, Galvez and
Soriano argued, and Herrera saw from the living room that Galvez had Soriano by
the neck with one hand, squeezing it so she couldn’t breathe, and was hitting
her with the other hand. Herrera went to
get the Rodriguezes from their room, and when he returned, Galvez was still
choking Soriano. The children were on
the living room couch, crying, when Galvez dragged Soriano by the hair into the
living room. He did not see K.F.
approach Galvez and Soriano.

Eight-year-old
K.F. testified that she could not remember what had happened the night after
the baby shower, and that she did not know what to say. She did not remember telling the deputy that
she heard arguing and saw Galvez grabbing Soriano by the hair and by the
throat. She also did not remember telling
the deputy that she grabbed Galvez by the arm and tried to stop him. K.F. said that when she told the deputy that
Galvez had punched her on the right side of her head, “I lied because I was mad
with my dad.” When she told the deputy
that Galvez also hit her on her left shoulder with his fist, she meant “he was
just like playing with me.” The
scratches on Soriano’s neck were from Soriano scratching her throat because it
was itchy. K.F. agreed that “things are very difficult because [she]
told the sheriff’s deputy what [she] told him the night of the baby
shower.” As she testified, K.F. was
looking at Soriano, who was crying. A
photograph of K.F.’s shoulder, taken that night, was “a lie.” A mark on her shoulder was a scar from a shot
when she was younger.

Deputy
Sheriff Charles Dana testified that on January 23, 2011, he responded to the
scene and found Soriano crying, with scrape marks all over her chest. He did not speak Spanish and there were no
Spanish-speaking officers working that night.
With a neighbor translating, Soriano told him that Galvez became angry
when she danced with someone else at the party, and back home Galvez called her
a bitch and grabbed her by the hair. He
then grabbed her by the throat and squeezed until she had difficulty breathing. Soriano told Deputy Dana that K.F. then came
into the kitchen and grabbed Galvez by the arm to stop him, and Soriano saw
Galvez punch K.F. once in the head and once in the left shoulder. K.F. ran off, and Galvez dragged Soriano by
her hair from the kitchen into the living room, and tried strangling her some
more. Estenia told Galvez that she was
calling 911, and Galvez and Soriano separated, yelling at each other. Deputy Dana saw red scratch marks on the base
of Soriano’s neck, and a red mark on K.F.’s left shoulder.

K.F. told
Deputy Dana that she saw Galvez holding Soriano by the hair with one hand and
by the throat with the other. When K.F.
tried to grab Galvez’s arm, he hit her once in the head and once in the left
shoulder. K.F. then ran to the
Rodriguezes’ room to get help. Estenia
told Deputy Galvez that K.F. told Estenia that Galvez had punched her in the
arm and shoulder, and she needed help.

Deputy Dana
did not see any injury to K.F.’s head, and a photograph did not show any. On K.F.’s shoulder, he saw a small red
abrasion shown in a photograph, which also depicted a vaccination mark which
was distinct from the abrasion.

Deputy
Gustavo Munoz testified that he was fluent in Spanish and spoke to Soriano two
months later, on March 23, 2011. Soriano
told him that in April 2010, after a party at which Galvez had been drinking,
they argued at home. Galvez grabbed a
kitchen knife and held the tip against her stomach, saying, “‘Don’t mess with
me because you don’t know what I’m capable of.’” A.A. was present. Soriano told Deputy Munoz that in October
2010, Galvez threw a 12-ounce beer bottle at her, and if she had not moved, it
would have struck her face.

Detective
India Inez testified as an expert about recanting witnesses in domestic
violence cases. She had been the initial
responder to hundreds of domestic violence calls, had investigated over 400
domestic violence cases, and was the lead investigator on a grant in the
Palmdale sheriff’s station examining the exposure of children who witness
domestic violence. At the href="http://www.fearnotlaw.com/">preliminary hearing, a domestic violence
incident often was still fresh to the victim, who might still have some
physical injury. By the time of trial,
however, victims tended to forget the fear they felt at the time of the
incident, and believe that the defendant had been in jail long enough and had
been punished. Victims with children
also would minimize or recant their statements, wanting their children to have
both parents and fearing the financial repercussions of losing a
wage-earner. Minimizing victims might
say the attack or injury was not as bad as it sounded or looked. Recanting victims might change their story
completely. Further, victims might love
the defendant and hope they would change.
“70 to 75 percent of my victims will minimize the incident or completely
recant their original statements,” and 90 percent were at least uncooperative.

The defense
presented no evidence. Defense counsel
moved to dismiss all counts for insufficient evidence. The court denied the motion, holding as to
count 2 that the issue of whether the evidence rose to the level of great
bodily harm was for the jury to decide.
The jury was instructed: “The
defendant is charged in count 2 with child abuse likely to produce great bodily
harm or death in violation of . . . section 273a,
[subdivision] (a). To prove that the
defendant is guilty of this crime, the People must prove that the defendant
willfully inflicted unjustifiable physical pain or mental suffering on a child
and the defendant inflicted pain or suffering on the child under circumstances
or conditions likely to produce great bodily harm or death. . . . The phrase ‘likely to produce great bodily
harm or death’ means the probability of great bodily injury or death is
high. Great bodily harm means significant
or substantial physical injury. It is an
injury that is greater than minor or moderate harm. If the child is a person under the age of 18,
the child does not have to actually suffer great bodily harm, but if a child
does suffer great bodily harm, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed the offense.”

DISCUSSION

Galvez argues that the jury’s
guilty verdict of felony child abuse
(count 2) was unsupported by substantial evidence that he struck eight-year-old
K.F. “under circumstances or conditions likely to produce great bodily harm or
death.” (§ 273a, subd. (a).) We disagree.

We review a
claim of insufficiency of the evidence by examining the evidence “‘“in the
light most favorable to the judgment,”’” and determining whether “‘“it
discloses substantial evidence—that is, evidence which is reasonable,
credible, and of solid value,”’” so as to allow “‘“a reasonable trier of fact
[to] find the defendant guilty beyond a reasonable doubt.”’” (People
v. Prince (2007) 40 Cal.4th 1179, 1251.)
The standard is the same under the federal due process clause. (Ibid.) In support of the judgment, we presume the
existence of every fact the jury could reasonably have deduced from the
evidence. (People v. Farnam (2002) 28 Cal.4th 107, 143.) “‘“Of course, all of the evidence must be
examined, but it is not weighed. All of
the evidence most favorable to the respondent must be accepted as true, and
that unfavorable discarded as not having sufficient verity to be accepted by
the trier of fact.”’” (>In re Gustavo M. (1989) 214 Cal.App.3d
1485, 1497.) “‘“Before the judgment of
the trial court can be set aside for the insufficiency of the evidence, it must
clearly appear that on no hypothesis whatever is there sufficient substantial
evidence to support the verdict . . . .”’”
(People v. Racy (2007) 148
Cal.App.4th 1327, 1332.)

“Any person
who, under circumstances or conditions likely to produce great bodily harm or
death, willfully causes or permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering” is guilty of felony child
abuse. (§ 273a, subd. (a).) “The difference between felony child abuse, a
violation of section 273a, subdivision (a), and simple child abuse, a violation
of section 273a, subdivision (b), is that the latter does not require that the
abuse occur under ‘circumstances or conditions likely to produce great bodily
harm.’” (People v. Clark (2011) 201 Cal.App.4th 235, 242, fn. 2.) Section 273a, subdivision (a) “does not
require force likely to produce great bodily injury. It requires the willful infliction of injury >under circumstances and conditions likely to
produce great bodily injury. While
force may be one circumstance or condition, it is not the only circumstance or
condition that may support a conviction for felony child abuse.” (Clark,> at p. 243.) “[C]ircumstances and conditions a reasonable
jury could consider include, but are not limited to: (1) the characteristics of the victim and the
defendant, (2) the characteristics of the location where the abuse took place,
(3) the potential response or resistance by the victim to the abuse, (4)
any injuries actually inflicted, (5) any pain sustained by the victim, and (6)
the nature of and amount of force used by the defendant.” (Id. at
p. 245, fn. omitted.) Actual great
bodily injury is not required. (>Id. at p. 245, fn. 6.)

Viewing the
evidence in the light most favorable to the jury’s guilty verdict, K.F., the
victim, was eight years old, while the defendant was an adult man who had been
drinking beer and tequila. The abuse
took place in the kitchen, in which Galvez threw kitchen items and a chair was
upended, when K.F. grabbed Galvez by the arm to try and stop him from
strangling her mother, Soriano. Galvez
punched K.F. once in the head and once on the shoulder; had K.F. responded to
the punches or resisted instead of letting go and running to get help, there
was a substantial danger of grave injury to her. There was evidence of an abrasion on K.F.’s
shoulder, but “[t]he fact that the injuries sustained did not rise to the level
of great bodily injury does not mean that there was not a substantial danger or
well-founded risk of great bodily injury.”
(People v. Clark, >supra, 201 Cal.App.4th at p. 246.) Although both Soriano and K.F. minimized or
recanted substantial portions of their initial descriptions of Galvez’s
violence, the jury heard testimony that nearly three-quarters of victims will
minimize or recant their original statements.

The jury
could reasonably have relied on the characteristics of the eight-year-old
victim and her adult male abuser, the danger presented by the violent struggle
in the kitchen, and the potential for serious harm had K.F. continued to try to
prevent Galvez from strangling her mother rather than running away. We conclude that there was substantial
evidence to support the jury’s determination that the abuse of K.F. occurred under
circumstances and conditions likely to produce great bodily injury.

DISPOSITION

The
judgment is affirmed.

NOT TO BE
PUBLISHED.



JOHNSON,
J.



We concur:



ROTHSCHILD,
Acting P. J.



CHANEY,
J.