Not to be published

II.

The court instructed the jury on the intent necessary for the crime of torture as follows: “When inflicting the injury, the defendant intended to cause cruel or extreme pain and suffering for the purpose of revenge, persuasion, or for any sadistic purpose.” (CALCRIM No. 810, as modified.) Defendant contends that the prosecution’s burden of proving the requisite intent for torture was impermissibly diluted by an unrelated instruction informing the jury that motive is not an element of the crime. (CALCRIM No. 370.) This same argument was rejected by the California Supreme Court most recently in People v. Whisenhunt (2008) 44 Cal.4th 174 (Whisenhunt) and by our court in People v. Hamlin (2009) 170 Cal.App.4th 1412 (Hamlin).

Defendant argues that a juror might reasonably equate the meaning of motive with the meaning of purpose. If so, the instruction stating that motive is not an element of the crime would have the effect of negating the element of sadistic purpose required for torture. As demonstrated in Whisenhunt and Hamlin, the essential flaw in defendant’s argument is conflating the meaning of intent with motive. The Supreme Court explained: “As we have noted in rejecting another similar challenge to [CALCRIM No. 370], ‘although malice and certain intents and purposes are elements of the crimes, . . . motive is not an element.’ (People v. Hillhouse (2002) 27 Cal.4th 469, 503-504 . . . .) ‘Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.’ (Id. at p. 504.)” (Whisenhunt, supra, 44 Cal.4th at p. 218.)

In Hamlin, we elaborated on the differentiation between motive and purpose. The fact that a crime requires the intent to achieve a particular purpose does not elevate motive to the status of an element of the crime. We wrote, “[M]otive is not an element of the crime of murder by torture, even though one of the essential elements of that crime is that the prohibited act be committed with the intent to cause pain for a specific purpose.” (Hamlin, supra, 170 Cal.App.4th at p. 1453.)

Defendant recognizes that Hamlin rejected a similar challenge in a torture case, but he attempts, without success, to distinguish the holding based on the change in the jury instruction on motive. In Hamlin, CALJIC No. 2.51 provided: “ ‘Motive is not an element of the crime charged and need not be shown.’ ” (Hamlin, supra, 170 Cal.App.4th at p. 1451.) By contrast, the jury in the case before us was instructed, “The People are not required to prove that the defendant had a motive . . . .” (CALCRIM No. 370.) He contends that CALCRIM No. 370 implies that proof of motive is never required for any reason when, in fact, proof of torture requires proof of purpose and purpose is the same as motive. But defendant’s reasoning is circular and depends on the same erroneous premise—that motive is synonymous with purpose.

Although the facts do not involve torture, People v. Hernandez (1988) 46 Cal.3d 194 (Hernandez) provides additional clarity on the distinction between motive and “penal statutes [that] describe a specific mens rea by defining certain prohibited conduct done ‘for the purpose of’ achieving some further end.” (Id. at p. 201.) The court stated simply, “Where a statute specifically requires that an act or offense be done ‘for the purpose of’ achieving a further goal, we are no longer dealing with mere motive, a useful but optional aspect of the crime. We are dealing with a required, specific mental state.” (Id. at p. 202.)

Defendant extrapolates the logic of Hernandez to suggest that torture requires proof of motive as well as specific intent. But that is not what Hernandez held. The court in Hernandez refined the meaning of specific intent in those cases in which the Legislature has determined that the prohibited conduct must be done to achieve a particular purpose. The court did not equate motive with purpose or suggest that, contrary to the general rule, the prosecution must prove motive.

It is true that in People v. Maurer (1995) 32 Cal.App.4th 1121 (Maurer) we reversed a conviction for misdemeanor child annoyance because the jury was given explicitly conflicting instructions. On the one hand, the court instructed the jury that misdemeanor child annoyance required proof the defendant was “ ‘motivated by an unnatural or abnormal sexual interest’ ” (id. at p. 1125), and on the other hand, it was told that motive was not an element of the crime (id. at p. 1126). “[T]he question,” we observed, “whether ‘motive’ is somehow different from ‘motivation’ or ‘motivated by’ is a question of some academic interest but of little practical significance. . . . We must bear in mind that the audience for these instructions is not a room of law professors deciphering legal abstractions, but a room of lay jurors reading conflicting terms.” (Id. at p. 1127.) We reversed for instructional error.

Our focus in Maurer on how a reasonable juror would be confused by overtly conflicting instructions goes to the heart of the question. In considering a claim of instructional error we must ask whether it is reasonably likely the jurors would have construed the instructions in a manner that would have diluted the prosecution’s burden of proof, negated an element of the crime, or otherwise misstated the law. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) Here we conclude there is no reasonable likelihood the jurors misunderstood the instruction on torture because they had also been told the prosecution did not need to prove motive.

We need not reiterate the lessons taught in Whisenhunt, Hamlin, and Hernandez other than to state the obvious that motive is not synonymous with intent. Whisenhunt and Hamlin remind us that torture requires a specific mens rea, including the specific intent to achieve a particular objective. That objective or “purpose” does not explain why a defendant wants or needs to inflict extreme pain on his victim other than to satisfy some vague sadistic purpose. It is not likely a juror would ignore an instruction requiring a jury finding that the defendant acted for a sadistic purpose based on the mere admonition that the prosecution did not have to prove motive. Neither the law nor a reasonable assessment of the impact on a jury supports defendant’s claim that the court erred by giving the motive instruction.

Defendant asserts the trial court committed reversible error by failing to give six instructions sua sponte on lesser included offenses. He correctly points out the distinction between appellate review of a challenge to the sufficiency of the evidence and appellate review of whether the evidence is substantial enough to trigger a trial court’s sua sponte obligation to instruct. Whereas we must review the whole record in the light most favorable to the jury’s verdicts in determining whether there is sufficient evidence to support the judgment (People v. Cravens (2012) 53 Cal.4th 500, 507), we must view the evidence in the “light most favorable to the defendant” and resolve all doubts in favor of the accused in determining whether the trial court erred by failing to instruct sua sponte on a lesser included offense (People v. Barnett (1998) 17 Cal.4th 1044, 1151; see People v. Wilson (1967) 66 Cal.2d 749, 763). The trial court must instruct on a lesser included offense if there is substantial evidence that the defendant is guilty only of the lesser and not the greater offense. (People v. Carter (2005) 36 Cal.4th 1114, 1184 (Carter); People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).)

As to the first three of the omitted instructions, defendant also argues that the evidence is insufficient to support the conviction of the greater offense. As to those crimes, we will consider both challenges under one heading, analyzing whether the evidence was substantial enough to trigger the trial court’s sua sponte duty to instruct on the lesser included offense and whether the evidence was substantial enough to support the conviction of the greater offense.

1. Aggravated Mayhem/Battery with Serious Bodily Injury

Defendant was charged with two counts of aggravated mayhem, and the jury was instructed on both aggravated and simple mayhem. Penal Code section 205 defines aggravated mayhem as follows: “A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body.” Simple mayhem is defined by Penal Code section 203, which provides: “Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.”

Rejecting the simple mayhem option, the jury found defendant guilty of both counts of aggravated mayhem. He argues the jury might have convicted him of battery with serious injury had the court instructed on the lesser included offense because the evidence he intended to permanently disfigure Kyle, or that Kyle was in fact permanently disfigured, was “borderline.”

There is no dispute that battery with serious injury is a lesser included offense of aggravated mayhem. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1168.) The question is whether the evidence viewed in the light most favorable to defendant is substantial enough for a jury to convict him of battery and not aggravated mayhem, either because Kyle did not suffer a permanent disfigurement or defendant did not intend to permanently disfigure him.

Defendant contrasts the scars on Kyle’s back and arm with bigger, more visible scars on the face or a woman’s breast, suggesting that his were benign by those standards. He emphasizes that the burn marks on his back were described merely as “pink circular” marks, and one doctor could not tell whether they were burn marks or abrasions. The scar on his arm was small and much unlike the type of atrocious disfigurement featured prominently in the mayhem cases.

As with other issues raised by defendant, the argument is enticing when examined at close range and removed from the context in which it arises. The challenge in resolving this issue and others is to keep in mind the broader context in which they are raised and the evidence of the facts and circumstances occurring over many, many months in the Schumacher house.

During closing argument the prosecutor told the jury that count two involved the incident when defendant burned Kyle’s back with an aluminum bat that had been heated in the fireplace, and count four involved the episode when defendant sliced Kyle’s arm with a sawing motion with a kitchen knife. Doctors testified that both injuries produced permanent scarring on Kyle’s back and arm, respectively. Defendant denigrates the seriousness of the injuries, insisting that neither the scarring on Kyle’s back from the bat nor the one-and-one-half- to two-inch scar on his arm qualify as the type of serious permanent disfigurement necessary for mayhem. Both incidents, he continues, were more in the nature of the type of “indiscriminate attack” that did not constitute mayhem in People v. Anderson (1965) 63 Cal.2d 351, 359. In other words, there was insufficient evidence that the injuries resulted in permanent disfigurement and that he intended to permanently disfigure Kyle.

Defendant reminds us that “not every visible scarring wound can be said to constitute the felony crime of mayhem” (Goodman v. Superior Court (1978) 84 Cal.App.3d 621, 625) and a cut that heals “without serious scarring [is] not mayhem” (id. at p. 624). In Goodman, the defendant slashed the victim’s face with a knife and she, like Kyle, had a permanent scar. While the court acknowledged that not every visible scar means felony mayhem, it refused to hold as a matter of law that a trier of fact could not reasonably conclude that mayhem had been committed. (Id. at p. 625.)

As for the count involving the knife wound, we summarily reject defendant’s challenge to the sufficiency of the evidence. The jury heard the savage account of how defendant retrieved a knife from the kitchen and sawed Kyle’s arm while Carmen, and maybe Kelly, restrained him. That account certainly constituted substantial evidence that he intended to slice and disfigure him. This, the jury could conclude, was not a wild or random attack but a deliberate infliction of a maiming injury following months of beatings and other cruel punishments. There is not substantial evidence the crime constituted only battery with serious injury and not aggravated mayhem. The scarring confirmed that the injury was both serious and permanent. The court therefore had no sua sponte duty to instruct on the misdemeanor charge.

The count involving the burns to Kyle’s back presents a somewhat closer question only because the scars themselves were harder to detect. But defendant would have us upset a jury verdict convicting him of aggravated mayhem for putting an aluminum bat heated in a fireplace directly on Kyle’s bare back based on the lucky fact the burns healed better than what might have been expected. This we cannot do for two reasons: 1) the act of placing a heated bat directly on bare skin constitutes substantial circumstantial evidence defendant intended to inflict a permanent disfigurement, and 2) while the scar may not have been grotesque, there was substantial evidence it is permanent. Thus, viewing the evidence in the light most favorable to the prosecution, we must conclude there is more than ample evidence of aggravated mayhem.

Nor do we conclude the trial court was obligated to instruct on battery even though we must review the evidence in the light most favorable to the defense. The circumstances under which Kyle was scorched simply do not allow an inference that defendant intended to inflict a serious injury but not to permanently disfigure Kyle, or that the scars do not constitute a permanent disfigurement. Defendant’s argument is divorced from the reality of what he did. He finds a minuscule gap in the evidence such as whether he or Carmen or Kelly actually placed the bat in the fire to heat it up, as if it mattered, when Kyle testified plainly that it was defendant who seared his back while the women held him down. And, of course, the burning incident followed months of brutal beatings with the bat. We cannot accept defendant’s argument that a jury might have concluded under these circumstances that when defendant held a heated aluminum bat on the back of a boy he routinely beat, watched others beat, and who was restrained, he did not intend to permanently disfigure him. Nor when both doctors testified the scars were visible and permanent do we conclude the judge erred in failing to give the jury the option to find battery instead of mayhem.

2. Felony/Misdemeanor Child Abuse

Defendant contends the trial court had a sua sponte duty to instruct on misdemeanor child endangerment in violation of Penal Code section 273a, subdivision (b) as a lesser included offense of felony child endangerment in violation of section 273a, subdivision (a). The difference between the two crimes is whether the circumstances or conditions were likely to produce great bodily injury or death. (People v. Moussabeck (2007) 157 Cal.App.4th 975, 980.) The phrase “ ‘likely to produce great bodily harm or death’ ” means “ ‘ “the probability of serious injury is great.” ’ [Citation.]” (People v. Chaffin (2009) 173 Cal.App.4th 1348, 1352.) Defendant argues that pouring bleach, “a well-know[n] germicide and disinfectant,” on the open gash in Kyle’s arm, after he sliced it with a knife, was not under conditions that were likely to produce great bodily injury. We disagree.

To be fair, defendant’s argument is in the context of his claim that the court should have instructed on the lesser included offense, asserting that there was a possibility the jurors might find pouring bleach on the wound was not likely to produce great bodily injury. We have no difficulty dismissing his tangentially related argument that there is insufficient evidence to support the jury’s conviction of felony child endangerment, based as it is on only a selective parsing of the record.

The prosecutor framed the argument on felony child endangerment as follows: “Count 9 is child abuse or endangerment likely to cause great bodily injury or death. This crime is not unlike the torture crime that I’ll talk about later. It [c]an be a continuing course of conduct, it can just occur repeatedly. In this instance, though, these are the elements, you have to -- the defendant has to willfully cause or permit the child to suffer unjustifiable physical pain or mental suffering under circumstances likely to produce great bodily harm or death.

“Well, in this particular case the definitions of this charge are similar to what you have heard before, willfully, on purpose, it has to be done on purpose, not an accident. Unjustifiable physical pain or mental suffering, again, not reasonably necessary or excessive under the circumstances. In this case, how do you cause or permit unjustifiable physical pain or mental suffering? After the aggravated mayhem has occurred, that’s the infliction of the knife wound, Anthony Waiters, along with Carmen Ramirez, poured bleach on the wound.

“I don’t know if that’s something Anthony learned during his CPR training that we heard about that he said he had taken, but Dr. Rosas said that would cause more infection and more pain, and the purpose was unjustifiable pain, because Kyle told you that Mr. Waiters knew it would burn and knew it would hurt. We’ve just pulled out that one instance of conduct for that charge, that’s Count 9. They got no stitches, they just put tape on it.”

Kyle testified to two incidents when defendant, with the help of Carmen or Kelly or both, poured bleach into his open wounds—once on his scorched elbow and once into the laceration on his arm. Although felony child endangerment can be a continuing course of conduct crime, the prosecutor highlighted the incident during which defendant poured bleach into Kyle’s open wound on his arm where defendant had sliced it. The doctor’s testimony, however, referred to both incidents in describing the likely consequences of pouring bleach into burns and cuts.

While it is true that Dr. Rosas testified that bleach was not caustic enough to cause second-degree burns unless Kyle’s skin was extra sensitive and there is no direct evidence the bleach exacerbated the injuries, defendant ignores the testimony of Dr. Greenhalgh, the burn expert from Shriner’s Hospital, that Clorox was a toxic agent that would probably injure the tissues and could cause a chemical burn if left on the skin for 10 to 20 minutes, and Kyle’s testimony attesting to how badly the bleach burned. Moreover, the prosecutor reminded the jury that Dr. Rosas testified that pouring bleach into the laceration “would cause more infection and more pain.” Defendant dismisses Dr. Rosas’ testimony, however, relying on Dr. Greenhalgh’s statement that the bleach could cause injury, which in defendant’s view does not meet the “probability” standard to render the injury likely. We certainly cannot say evidence by medical professionals that pouring bleach on an open wound would be painful, can cause infection, and can be toxic, coupled with the victim’s testimony that it burned and was painful, was insufficient to support a jury finding that pouring the bleach into such severe open wounds was likely to produce great bodily injury.

The more difficult question is whether the evidence, viewed in the light most favorable to defendant, triggered a sua sponte obligation to instruct on misdemeanor child endangerment; the easier question is whether, in any event, it is reasonably probable the jury would have convicted defendant of misdemeanor endangerment rather than the charged offense of felony endangerment if it had been instructed as defendant now urges on appeal.

We opt for the easier question because it is dispositive. Rather than splitting hairs over whether the evidence, when viewed liberally in favor of defendant, might have provided the jury with a theoretical option to convict him of a misdemeanor, we conclude it is not reasonably probable the jury would have convicted him of the lesser charge. We mine the entire record to evaluate the probability the jury might have found it was unlikely that pouring bleach into Kyle’s wounds would cause great bodily injury.

First, of course, is the nature of the wound identified by the prosecutor and the circumstances under which it was inflicted. Defendant began beating Kyle in July of 2008. Over a course of months he observed Carmen and Kelly also beating, zip-tying, and finally chaining Kyle. By the time Kyle suffered third-degree burns on his elbow from the fireplace where he was forced to sleep and remained restrained and defendant sliced his arm with the kitchen knife, defendant had been an active participant in the child’s torture for five or six months.

The wound itself was ghastly. Kyle described blood pouring out of the laceration defendant inflicted by sawing his arm with a knife. Despite the serious nature of the wound, defendant insists the jury might have concluded that pouring bleach into it was not likely to exacerbate the injury any further. Defendant acknowledges that felony endangerment does not require the actual infliction of great bodily injury (People v. Valdez (2002) 27 Cal.4th 778, 784), but only the likelihood that it might result. Thus the crucial inquiry is timing; that is to say, at the time defendant participated in pouring bleach into an open laceration, was it likely to produce great bodily injury?

Given the gravity of the circumstances under which the bleach was used, the seriousness of the wound, and the alternatives defendant and the others might have used to treat or get treatment for the wounds, we agree with the Attorney General there is no reasonable likelihood the jury would have convicted defendant of misdemeanor rather than felony endangerment. The failure to instruct sua sponte on the lesser included offense was harmless given a record replete with an escalating pattern of inflicting egregious pain and suffering on Kyle. It simply is not reasonably probable the jury would have concluded that in the midst of this ongoing torture, defendant sought to cleanse the wound in an effort to promote healing when but a few seconds earlier he was slicing Kyle’s arm.

In this, as in many of the arguments he raises on appeal, defendant balks at the notion that he is responsible for the cruelty of his neighbors and Kyle’s caretakers. He insists he had no duty to intercede on Kyle’s behalf and he should not be held vicariously liable, in this particular instance, for chaining him to the table by the fireplace in the absence of evidence that he participated in the chaining. But the prosecution’s theory was not one of vicarious liability predicated on the failure or duty to act, but on the abundance of evidence that defendant knowingly and effectively aided and abetted the crimes committed next door.

In attempting to distance himself from the moment when Kyle was first chained, defendant seems to forget that he was the one who supplied the bat they all used to beat Kyle, he was the one who poured lighter fluid on him and lit him on fire, he was the one who sawed his arm with the knife, and he was the one who gave Carmen the meat cleaver. Yet he argues that those crimes are separate and apart from the false imprisonment. He would have us ignore all the violence, both that which he perpetrated and that which he aided and abetted, in order to conclude there was insufficient evidence of felony false imprisonment and sufficient evidence that he was guilty only of misdemeanor false imprisonment. We reject his clever, but ineffectual, attempt to separate the act of chaining from the context in which Kyle was restrained and thereby to inoculate him from the violence.

There is ample evidence to support the prosecution’s theory that defendant aided and abetted Carmen and Kelly in keeping Kyle a chained captive and that his captivity was by means of violence. To suggest, as defendant does, that no more violence was used than necessary to chain this boy is to ignore volumes of testimony, including the damning account of how defendant sawed his arm with a knife while he was chained. It was the jury’s prerogative, not ours, to draw the logical and imminently reasonable inference that by observing Kyle’s treatment, supplying the weapons, and participating in the beating, burning, and torturing, defendant knew that the others were falsely imprisoning him and he intended to aid and assist his restraint. The jury could have, but did not, accept defendant’s argument that by asking Carmen and Kelly why Kyle was being restrained he had not participated in the decision to restrain him. And it offends any notion of civilized conduct to suggest that the type of protracted and cruel conduct Kyle endured “could have been a lawful act of discipline” by a “parental authority” he should not have “second-guessed.” The court had no sua sponte obligation to instruct on misdemeanor false imprisonment as there was simply no credible evidence to suggest that defendant participated only in a nonviolent restraint of Kyle.

Defendant was charged and convicted in count twelve of violating Penal Code section 244, which provides: “Any person who willfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, any vitriol, corrosive acid, flammable substance, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of that person, is punishable by imprisonment in the state prison for two, three or four years.” As used in section 244, flammable substance means gasoline, petroleum products, or flammable liquids with a flashpoint of 150 degrees Fahrenheit or less.

As the Attorney General argues, Kyle testified to at least two different incidents during which defendant threw lighter fluid on him. On the night before Thanksgiving 2008, defendant beat him, threw lighter fluid on him, and then lit his pants on fire while he and the others laughed, watching Kyle attempting to put out the fire. However, in her closing argument the prosecutor relied on the second incident, which occurred on Thanksgiving Day when defendant threw lighter fluid all over Kyle’s body and would not allow him to wash it off for at least 40 minutes. The fluid burned his lower abdomen.

Holding the prosecutor to an election of the Thanksgiving Day lighter fluid incident, defendant contends the trial court had a duty to instruct on the lesser included offense of simple battery. (Pen. Code, § 242.) He argues that because Carmen and Kelly had doused Kyle in lighter fluid on previous occasions and he did not appear to have suffered serious injury, the evidence left room for doubt whether he had the specific intent to “ ‘injure the flesh or disfigure the body.’ ” And despite the fact that Kyle did suffer a second-degree burn on his lower abdomen following the Thanksgiving incident, he maintains that “the issue at hand does not involve the injury that was actually suffered, but whether the infliction of such injury was intended.”

Once again, defendant would have us lose sight of context and common sense. He would have us forget that the night before Thanksgiving he had used the lighter fluid to set Kyle on fire, and the following day he again poured it all over the boy and made him soak in it until Kelly could no longer stand the smell. He would have us ignore the fact that soaking in lighter fluid has the potential to burn the skin, whether it results in a second-degree burn or not, and of course in this case it did exactly that. Thus, we conclude there is not substantial evidence that defendant was guilty of the lesser offense, simple battery, rather than the greater offense of assault with a caustic chemical. His ongoing participation in the brutal treatment of his vulnerable neighbor evidenced a culpable mens rea commensurate with felony assault, and the court was not obligated to instruct on the sheer fantasy that maybe he only inflicted a simple battery.

5. Corporal Injury on a Child/Misdemeanor Battery

Continuing in the same vein, defendant asserts that if we view the evidence in the light most favorable to him, the jury might have concluded that hitting Kyle with a bat and punching him hard enough with a boxing glove to cause his head to hit the fireplace did not cause a wound or external or internal injury, whether of a serious or minor nature. In other words, the jury should have been instructed not only on the greater offense of corporal injury on a child, but on the lesser included offense of misdemeanor battery, because Kyle did not necessarily suffer a “traumatic condition” as that term is defined by Penal Code section 273.5, subdivision (c).

It is important to remember that despite a lay understanding of the word “traumatic” suggesting a grievous or significant injury, the traumatic condition described in Penal Code section 273.5 does not need to be serious. A minor injury suffices. A “ ‘traumatic condition’ ” is a “ ‘wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.’ ” (People v. Gutierrez (1985) 171 Cal.App.3d 944, 951, fn. 6; see CALCRIM No. 822.) Defendant points out the jury found he did not inflict great bodily injury as it relates to counts seven and eight involving corporal injury to a child.

According to Kyle, defendant directly applied physical force by hitting him with a bat and a boxing glove. Kyle’s blood was found on the bat, and he testified the beatings hurt really badly and he could not use a body part. His head injuries were consistent with having been beaten with a bat. Similarly, Kyle testified defendant hit him with a boxing glove, causing him to cut his head on the fireplace.

Defendant poses a number of far-fetched hypotheticals. The blood on the bat came from Carmen’s, not defendant’s, pummeling. The jury rejected Kyle’s testimony as an exaggeration because if, as Kyle asserted, defendant had hit him with full force with a bat, he would have sustained great bodily injury, which the jury found he did not. And finally, Kyle’s vague description of his inability to use his body part is akin to mere “soreness and tenderness” that does not amount to a “traumatic condition.” (People v. Abrego (1993) 21 Cal.App.4th 133, 138.)

We disagree. There is no reasonable reading of this evidentiary record to support a finding that defendant’s exertion of physical force on both occasions did not result in a traumatic condition of Kyle’s body under the statute. The evidence was overwhelming that in each case he did inflict injury, even if the injury was not severe enough to constitute great bodily injury. Because there is not substantial evidence to support a conviction for misdemeanor battery and not corporal injury to a child, the trial court had no duty to instruct on the lesser included offense. (Carter, supra, 36 Cal.4th at p. 1184; Breverman, supra, 19 Cal.4th at p. 162.)

6. Criminal Threats/Misdemeanor Child Abuse

According to the Attorney General, defendant’s sixth and final complaint about the court’s failure to instruct on lesser included offenses suffers from a different defect. Whereas the other challenges pertain exclusively to the quantum of evidence available to support the greater offense, the Attorney General argues that defendant’s contention the trial court should have instructed on misdemeanor child abuse compels us to ask the preliminary question whether misdemeanor child abuse is a lesser included offense of criminal threats based on the associated allegations made in this case. Defendant readily admits that in comparing the elements of each offense, misdemeanor child abuse is not a lesser included offense of criminal threats. We need not address this issue because defendant’s argument fails for the same evidentiary reason his five other contentions have failed—there is not substantial evidence he was guilty only of the lesser offense. His argument is plagued with the same mischief as the others in asking us to not only consider the evidence in the light most favorable to him but to ignore the entire context in which he acted and which the jury considered to evaluate his guilt.

Here he suggests “there is a reasonable ‘chance’ that the jury could have found that [defendant], while in a state of inebriation, was making bad jokes to make women laugh, without realizing that his comments would cause Kyle genuine mental suffering, and without specifically intending the same, and that he was guilty only of misdemeanor child abuse.” In other words, he contends there was substantial evidence he did not specifically intend to threaten Kyle, nor did his comments have the effect of making Kyle feel threatened. Let us examine the context of how, when, and where he threatened Kyle.

The criminal threats charge was predicated on the several times that defendant and Michael Schumacher told Kyle they would cut him up and throw him in the river or aqueduct. Taken alone, the threat might have seemed preposterous. But by the time defendant made these threats on multiple occasions, Kyle had been isolated, starved, confined, and routinely beaten. It is unreasonable to suggest that under these circumstances defendant might not have realized that threats to kill the boy would be taken seriously. To the contrary, Kyle remained so traumatized after his escape that he lied to the authorities about being abducted and did not identify his captors for nearly a week. We reject defendant’s attempt on appeal to recast the threats as harmless banter by drunken neighbors designed merely to make Carmen and Kelly laugh when together they were involved in a cruel, criminal enterprise to persecute this young teen. There is no substantial evidence, when reviewed in light of the whole record, that defendant is guilty only of the lesser and not the greater offense, and therefore there was no sua sponte obligation to instruct on misdemeanor child abuse.

Presumably because the law is clear that the trial court has no obligation to instruct on voluntary intoxication in the absence of a defense request for the pinpoint instruction (People v. Clark (1993) 5 Cal.4th 950, 1022, disapproved on an unrelated point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), defendant contends his lawyer was ineffective for failing to request an instruction explaining that intoxication might have inhibited his ability to formulate the specific intent necessary to commit many of the charged offenses (People v. Pearson (2012) 53 Cal.4th 306, 325). Defendant predicates his argument on Kyle’s testimony he either had been drinking or was drunk several of the nights he was alleged to have beaten, burned, or threatened Kyle. Defendant bears the burden of proving his lawyer’s performance was constitutionally inadequate and his deficiencies were prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687, 693-694 [80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.). He falls woefully short of meeting his burden.

“[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel’s performance.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015; see People v. Ochoa (1998) 19 Cal.4th 353, 434.) “[C]ounsel does not render ineffective assistance by choosing one or several theories of defense over another. [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1007 (Cunningham).) As long as trial counsel could have had some satisfactory explanation for the conduct complained of, a claim of ineffective assistance must be rejected on direct appeal. (People v. Mai (2013) 57 Cal.4th 986, 1009.)

At trial, defendant did not raise the defense of voluntary intoxication. There is nothing in the record to suggest defense counsel was asked for an explanation as to why he adopted this trial strategy. In choosing third party culpability to the exclusion of the exceedingly weak, if not totally incredible, defense that he was too drunk to specifically intend to torture, maim, or injure Kyle, counsel was employing an imminently reasonable trial tactic. He simply elected to pursue the strongest defense he had and to reject the much flimsier, indeed inculpatory, fallback position that he was too drunk to form the mens rea necessary to commit each of the charged offenses over a six-month period.

The evidence that defendant was drunk was vague. Although we reject the Attorney General’s implication that Kyle needed to demonstrate some kind of expertise in recognizing the symptoms of intoxication, he simply did not testify how much alcohol defendant had actually consumed, over what period he had consumed it, or just how drunk he was during the episodes Kyle described he had been drinking. Scant evidence that a defendant has consumed alcohol does not necessitate an instruction on voluntary intoxication.

The principles of law involved here are straightforward. “Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.” (Pen. Code, § 29.4, subd. (a) [formerly Pen. Code, § 22, renumbered by Stats. 2012, ch. 162, § 119].) “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” (Pen. Code, § 29.4, subd. (b).) However, “[a] defendant is entitled to such an instruction only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of specific intent.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 677 (Williams).)

In Williams, the defendant requested an instruction on voluntary intoxication as a defense to homicide based solely on a witness’s testimony that the defendant was “ ‘probably spaced out’ on the morning of the killings.” (Williams, supra, 16 Cal.4th at p. 677.) The trial court refused to give the requested instruction. (Ibid.) On review, the defendant contended the trial court erred in refusing to give the instruction, and he sought “to bolster that argument by pointing to comments he had made in the recorded interview with police that around the time of the killings he was ‘doped up’ and ‘smokin’ pretty tough then.’ ” (Ibid.) The Supreme Court rejected the defendant’s argument, stating as follows: “Even if we consider all three of these statements, there was no error. Assuming this scant evidence of defendant’s voluntary intoxication would qualify as ‘substantial,’ there was no evidence at all that voluntary intoxication had any effect on defendant’s ability to formulate intent.” (Id. at pp. 677-678.)

The same conclusion applies here. As in Williams, the evidence of intoxication here was scant. Just as in Williams, there was no evidence at all that defendant’s voluntary intoxication had any effect on his ability to formulate intent. As a result, defense counsel might have drawn the reasonable conclusion that a request for an instruction on voluntary intoxication would have been fruitless. Or, he might have decided to rely exclusively on third party culpability as his sole defense.

We will not second-guess trial counsel’s tactical decision to forego such a weak defense, particularly in light of the fact that, according to Kyle, defendant visited the house and participated in the abuse several times a week for nearly six months. There certainly was no evidence that he was drunk each and every time he came over to the house and aided and abetted the charged offenses. Thus, defense counsel may have made the reasonable decision to minimize the drinking issue by ignoring it. The choice to present the innocence defense over the intoxication defense is not a decision that creates ineffective assistance of counsel. (Cunningham, supra, 25 Cal.4th at p. 1007.) Accordingly, we conclude trial counsel did not render ineffective assistance.

8. Parental Right to Discipline

Defendant next contends the trial court had a sua sponte obligation to instruct the jury on a parent’s right to discipline a child as a defense to felony false imprisonment (count ten) and two counts of corporal injury to a child (counts seven and eight) despite the fact that he, a mere neighbor, was not a parent, guardian, or other person legally permitted to discipline the child. He argues vehemently in other contexts that he had no duty to care for or protect Kyle, and therefore he cannot be held criminally liable for his failure to act to stop the torture and mayhem. Yet he insists the court should have given CALCRIM No. 3405, presumably because as a friend of the boy’s de facto guardian, he should have been entitled to help her discipline him. More specifically, if defendant believed that Kyle was being restrained by Carmen in the exercise of lawful parental discipline, he would lack the criminal intent necessary to make him criminally liable on an aiding and abetting theory. We need not address the preposterous notion that the type of discipline he inflicted was justifiable because there is no authority for the proposition that someone as tangentially related to a child as defendant has any authority to exert physical force to discipline him.

Defendant’s lopsided recitation of the facts bears no resemblance to the story Kyle told and the jury was free to accept. He recited incident after incident during which defendant not only saw him bound in restraints but took full advantage of it. We cannot accept the notion he believed Carmen was acting within the scope of her lawful parental authority and he was merely deferring to it. Because there are no facts or law to support defendant’s argument, the trial court had no obligation to instruct the jury in the language of CALCRIM No. 3405. (People v. Checketts (1999) 71 Cal.App.4th 1190, 1194-1195.)