Torture conviction predicated on natural and probable consequences doctrine is not improper under People v. Chiu (2014) 59 Cal.4th 155. Flores had three children, which he and his girlfriend, Shugg, nearly starved to death. Flores was charged with torture and other offenses and enhancements. The jury was instructed that Flores could be found guilty of torture based on a natural probable consequences theory: that he aided and abetted Shugg in committing felony child abuse, and torture was a natural and probable consequence of that child abuse. He appealed, arguing that his torture conviction could not be predicated on the natural and probable consequences doctrine in light of Chiu. Held: Affirmed. A jury can find an aider and abettor “guilty of unintended crimes under the natural and probable consequences doctrine: when the aider and abettor acts with knowledge of the criminal purpose of the direct perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the target offense, he or she is guilty of both the intended (target) crime and any other offense (the ‘nontarget offense’) committed by his or her confederate that was a ‘natural and probable consequence’ of the target crime he or she aided and abetted.” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Chiu, however, held that a premeditated murder conviction was improper when predicated on the natural and probable consequences doctrine. But Chiu cannot be extended to torture convictions. It expressly authorized second degree murder convictions predicated on the natural and probable consequences doctrine and “the crime of torture is akin to the crime of second degree murder” for purposes of Chiu. Furthermore, “the policy factors that animated Chiu to disapprove first degree murder culpability lack sufficient analogues to extend Chiu to aider and abettor liability for torture under the natural and probable consequences doctrine.” It was not error to instruct the jury on aider and abettor liability.
The evidence was sufficient to sustain defendant’s torture conviction. On appeal, Flores argued that the evidence was insufficient to establish that either he or Shugg had the intent required to be convicted of torture. The Court of Appeal disagreed. “Torture has two elements: (1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with the specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.” “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.” “Here, two of the victims were so obviously emaciated that a lay witness testified it looked as though they’d been in a concentration camp, and the doctor who examined them testified [one] was approaching death and [the other] could have died had he not been hospitalized.” That is substantial evidence that the defendants intended to cause cruel and extreme pain. There was also substantial evidence that they used starvation to discipline the children. Accordingly, the evidence was sufficient to sustain the torture conviction.
Penal Code section 273a is not unconstitutionally vague when its language is given the construction set forth in People v. Heitzman (1994) 9 Cal.4th 189. Shugg argued that the felony child abuse statute is unconstitutionally vague because it allows a defendant to be convicted if he or she permits a child to suffer the requisite injury at the hands of another without expressly limiting its reach to defendants who were under an affirmative duty to act to protect the child from such injury. The Court of Appeal disagreed. Section 237a provides in pertinent part that “Any person who . . . willfully causes or permits any child to suffer . . . shall be punished by imprisonment . . . .” In Heitzman, the Supreme Court found that the elder abuse statute, which used identical “Any person who . . . permits” language, to be unconstitutionally vague because it could be read as criminalizing a person’s inaction when he or she was not under an affirmative legal duty to act. Heitzman construed the language to limit its reach to persons who had a legal duty to exert control over the person causing or inflicting the injury on the victim. When given a similar construction, section 237a is not unconstitutionally vague. The court also rejected Shugg’s argument that the trial court erred by failing to instruct sua sponte with the limiting language.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069899.PDF
