Not to be published

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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THE PEOPLE, Plaintiff and Respondent, v. ANTHONY VINCENT WAITERS, Defendant and Appellant.

C067669 (Super. Ct. No. SF111345D)

When an emaciated, filthy, and terrified 16 year old with a chain on his leg escaped into a gym seeking refuge, it was shockingly apparent he had been beaten, burned, starved, sliced, and shackled. His three adult caretakers eventually pleaded guilty to torture, aggravated mayhem, and other sordid crimes that occurred during the many months they held him captive. The essential question posed to the jury in the case before us was whether the next-door neighbor, Anthony Waiters, perpetrated or aided and abetted the host of horrific crimes against the boy, Kyle Doe.

The jury believed Kyle’s testimony that defendant Anthony Vincent Waiters was a key participant and found him guilty of torture, aggravated mayhem, corporal injury to a child, felony child abuse, false imprisonment by violence, assault with caustic chemicals, and criminal threats. Defendant’s skillful appellate counsel raises a huge number of seductive, abstract legal issues, none of which leads us to conclude that defendant’s fundamental right to a fair trial was compromised so as to require reversal. Nevertheless, we will carefully consider defendant’s challenges to the exclusion of evidence of his neighbors’ guilty pleas, the jury instructions that were given as well as those that were not, the prosecutor’s closing argument, the sufficiency of the evidence, and the correctness of his sentence.

Resolution of the many issues posed by defendant requires, as always, a scrupulous study of the record. Examination of the record leads ineluctably to the conclusion that the trial provided defendant, although not perfect, was fair and the verdicts are supported by the evidence. The record does not answer the haunting question of why these four adults perpetrated such unspeakable atrocities.

FACTS

For reasons not disclosed in the record, Kyle began living with Carmen Ramirez, a friend of his mother, when he was eight years old. They are not related. Carmen abused him. Though he earned a black belt in karate or taekwondo, he stopped going to school when he was 11 or 12. Carmen’s daughter eventually called the police, Carmen went to jail, and Kyle lived at a receiving home for three weeks before he ran away. Unfortunately, he reunited with Carmen.

Soon, Carmen left him with one of her friends for a couple of months in Pleasanton. The friend accused him of stealing. Carmen then moved him to the home of Michael Schumacher and Kelly Lau and their four children in the city of Tracy. Kyle did not go to school while he resided with the Schumacher family. He was forced to dress and feed the children, change the baby’s diapers, clean the floors and the bathroom, and perform other household chores. He had no friends and he never went anywhere.

Carmen moved in about January of 2008 and the abuse gradually escalated. After moving in, Carmen began to hit Kyle. It is difficult to reconstruct a precise chronology because Kyle remembered specific incidents but not exactly when they occurred. The indictment charged crimes over a period of time. What follows is a rough approximation of the deteriorating course of events from the beginning of 2008, when Carmen moved into the Schumacher residence, until Kyle’s escape and treatment in December 2008.

Once Carmen moved in, defendant began coming over to visit about two or three evenings a week. Michael and defendant often drank together. They both enjoyed sports, particularly football, and defendant coached a youth football team.

Initially, Kelly and Carmen began slapping Kyle, but then the violence escalated. They hit him with a mallet on his hand and a belt all over his body. Kyle remembers that after defendant’s brother came to visit on the Fourth of July, the abuse escalated in degree and frequency. The first time defendant hit him he “punched me a couple times” in the face with his fist. Defendant brought over an aluminum bat and told Carmen she could use it on Kyle. Carmen used it to hit him “everywhere,” then Kelly joined in, and they both used the bat to strike Kyle in defendant’s presence. During the hot summer, Kyle was forced to sit in the sun for the entire day in the backyard. For a while he slept in the garage with no pillows or blankets.

It appears that summer Carmen and Kelly began to tie his hands together by placing zip-ties around his wrists. They would tie his ankles together with zip-ties so he could not walk. While he was zip-tied, defendant, Carmen, and Kelly would hit him. Defendant hit him with the bat. Kyle told the jury that defendant hit him “[p]retty hard,” “so hard I couldn’t use the body part that he hit.” He estimated that defendant hit him with a bat once a week. Kyle explained that he did not resist, fight back, or tell anyone because he was afraid he would be hit even more. He was not allowed to eat. Yet he figured out how to get out of the zip-ties to get food. Kelly and Carmen poured lighter fluid on him about five times.

Kyle recounted a number of abusive events that occurred before they chained him to a table next to a fireplace. One night defendant came over with a boxing glove and hit him. He hit his head on the fireplace and was knocked out. His head bled. On other occasions, defendant would hit him with the bat with what appeared to Kyle to be full force. Meanwhile Carmen and Kelly would hit him with a belt and use the belt to choke him. One night, defendant was drinking with Michael at the house and someone tied a belt around Kyle’s neck. They were all hitting him with the bat.

In approximately October of 2008, the Schumachers were without electricity for about a month. On one occasion, defendant got drunk with Michael and hit Kyle with the bat. They heated up the bat in the fireplace. Kyle did not have on a shirt. Defendant burned him on his back with the bat; Carmen burned him just above his “private part.” Kelly, Carmen, and defendant burned him more than once with the hot bat.

One day Carmen discovered that Kyle knew how to get out of the zip-ties. Carmen used a metal chain, which Michael had purchased to hang a punching bag, and two padlocks to chain Kyle to a table and forced him to stay on the fireplace hearth. Defendant would come over and see Kyle chained but would not say anything about it.

Kyle slept on the bricks by the fireplace without a sleeping bag or pillow. He was not allowed to shower, but on rare occasions they took him to the backyard to hose off when there was too much blood. He would defecate and urinate on himself. Defendant hit him in the face and made his nose bleed. Kyle coaxed the two year old into bringing him Michael’s keys, and he took the key to the padlocks so he would be able to get food. Kyle remembered that one night one of the women choked him, he lost consciousness on the fireplace, and when he awoke his arm was in the fireplace. His skin was “all white and . . . falling off.” Defendant and Carmen poured Clorox bleach on the wound, and put butter and salt on it.

Another night got even worse. He had been hit with the bat a lot. Defendant retrieved a knife from the kitchen, and while Carmen, and possibly Kelly, held Kyle down, defendant sliced his arm in a sawing motion. Blood poured onto the table as Kyle screamed and cried. Defendant and Carmen then used their same remedy—pouring bleach into his open wound—and Carmen put butter and salt on it. On other occasions, defendant, Kelly, or Carmen would put candle wax, hot glue, or Super Glue on his open wounds. They poured Kingsford lighter fluid all over him while he sat chained by the fireplace. When the smell got too bad, they would hose him off outside. Of the five separate occasions on which he was doused in lighter fluid, only once did it burn his skin.

Kyle slit holes in the bottom of the couches in which to conceal food wrappers. He also put food in the fireplace. When Carmen discovered the hidden wrappers, she called defendant. Defendant beat him, put lighter fluid on his pants, and lit the pants on fire. It is unclear from the record whether Kyle was chained or zip-tied, but as he tried to put out the fire, they all laughed.

On Thanksgiving, defendant and Carmen took turns pouring Kingsford lighter fluid all over Kyle’s head and body, and he sat soaked in lighter fluid for 40 minutes to an hour. They finally hosed him off in the backyard. He was chained during dinner and not allowed to eat.

On November 30 Kyle slept in the garage unchained. Carmen brought him into the house the next morning and chained him to the table. Kyle unlocked his chain to get some food, but Kelly caught him and Carmen called defendant. Defendant had given Carmen a meat cleaver and she used it to slice Kyle’s back. Kyle testified that he cried because it hurt so badly. Carmen and Kelly began searching for the key but were unsuccessful.

Kyle believed they were going to kill him and decided he needed to escape. While Kelly was watching television and Carmen was upstairs, he unlocked his chain from the table, bolted through the sliding glass door, used the trampoline to jump the fence, and ran into a gym a short distance away. Because he was scared, he lied to the police that he had been kidnapped; he testified to the grand jury that Michael and defendant had threatened to chop him up and throw him into the “Delta River or the aqueduct.” It was not until six days later that he told the staff at Shriner’s Hospital what really happened.

Kyle insisted that he had not embellished the story. He testified, “[T]here’s no need to exaggerate what happened.”

Corroboration

Physical Injuries

Drs. Angela Rosas and David Greenhalgh testified that Kyle’s injuries were consistent with the abuse he reported. Although he was 16, he had failed to start puberty because he was undernourished. We will describe the physical injuries from head to foot.

Kyle had a healing abrasion on the side of his right cheek consistent with a heated aluminum bat touching his face He had multiple scars from cuts all over his head consistent with a bat hitting his head. He had a dried, gluelike residue stuck in his short hair.

There was a red line across the side of Kyle’s neck that was fairly fresh and consistent with his having been choked.

There were ligature marks on both wrists and healing wounds. He had a very long cut on his upper left arm, as well as cuts and scratches on his upper chest. He had three significant, deep, third-degree burns on his left arm, one above the elbow and two others on his forearm. These burns were open and chronic, and had not healed. They were all the way through the entire skin tissue and exposed the tissue below the skin. Dr. Greenhalgh estimated they were at least a couple of weeks old.

The doctors reported healing marks on the upper part of his shoulder but could not determine whether they were burns or abrasions. He had a very deep, severe cut across his back. He had a second-degree burn above his genitals, with some blistering that appeared to be a few days old. He had multiple cuts and abrasions on both legs. And he had a significant cut with a ligature mark around his entire right ankle.

The assistant manager at the gym testified that a boy who was very dirty and limping “kind of [came] running” into the gym with a chain tied to his ankle, appearing extremely frightened. He begged her, “ ‘Please hide me, they’re coming to get me, hide me.’ ” She saw a burn mark on his back and a fresh slice in his arm. She also noticed fresh bruises and blood on him.

A responding police officer offered a nearly identical description. The boy was dirty from head to toe, wearing only light cotton shorts with no shirt. He had cuts and bruises all over his body and a chain attached to his right ankle. To her, he seemed very, very frightened and shaky.

Hospital personnel found a key in Kyle’s shorts.

A firefighter removed the chain from Kyle’s ankle. A crime scene technician testified the chain weighed 4.6 pounds and was 33 inches in length.

A search was conducted of the Schumacher residence. The house had a stench of rotting food, garbage was strewn everywhere, and the garage overwhelmed the officers with the smell of urine. There was also a strong odor of urine and feces coming from the fireplace. The officers found a baseball bat next to the fireplace. A trampoline was pushed up against the sound wall in the backyard. The officers found candy wrappers in the fireplace and a slit in the bottom of the love seat near the fireplace. They found marijuana in the family room and on a nightstand in an upstairs bedroom, Kingsford lighter fluid in the laundry room, Clorox bleach in the garage, and a zip-tie in the living room.

Swabs from the bloodstains collected from around the fireplace and from the aluminum bat matched Kyle’s DNA profile.

Kyle was the only witness who was able to identify defendant as a perpetrator. Nevertheless, there were witnesses who testified that defendant visited the Schumacher residence with some regularity.

A neighbor who lived on the other side of the Schumachers has a son who is approximately the same age as Kyle. The children played together a few times when Kyle first moved in with the Schumachers. This neighbor testified that she saw defendant visiting the Schumachers. She also testified that on a hot summer afternoon she saw Kyle sitting in the yard for five hours. She tried to engage him in conversation, asked him if he was okay, and asked if he wanted to make some money helping her with chores. Kyle self-identified as Roger and refused her offer. Later that day, Kelly came to the neighbor’s door and asked her not to talk to Kyle. She appeared angry. The neighbor never observed any injuries on Kyle. She testified that the Schumachers’ house was without power for a few days.

Defendant’s niece testified she visited the Schumachers with her uncle on three occasions and she met Kyle. She told the jury that Kelly had poured Kyle a cup of alcohol and told him to drink it. She gave him a second cup and he vomited in the entryway. Kelly screamed at him and Carmen cleaned it up.

Defendant’s older sister testified that Carmen had visited her on the afternoon of December 1. The sister’s husband drove Carmen to a BART station, but she failed to pay the money she promised for the ride. Defendant went to his sister’s house to pay her the money that Carmen owed for the ride. He did not tell the investigating officers he had been there when asked.

The jury found defendant guilty as charged of torture, aggravated mayhem, corporal injury to a child, felony child abuse, false imprisonment by violence, criminal threats, and assault with caustic chemicals. As for the enhancement allegations, the jury found true the allegations he used a baseball bat when he inflicted corporal injury on a child and personally inflicted great bodily injury upon Kyle as to one of the corporal injury counts, and not true the allegations that he inflicted great bodily injury as to two of the other counts. Defendant was sentenced to concurrent terms of life in prison with the possibility of parole for torture and aggravated mayhem, and a consecutive determinate term of 11 years 8 months for the remaining counts. We address each of defendant’s contentions below.