Not to be published

III.

Citing cases in which a poet and a painter were prosecuted for making criminal threats through their art, defendant insists there is no clear and convincing evidence that his threats to kill Kyle were “true threats.” (In re George T. (2004) 33 Cal.4th 620, 631-632; In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) He urges us to independently review the evidence to insure his right to free speech under the First Amendment is adequately protected. He readily accepts the fundamental principle that “true threats” are unprotected, but he maintains he need only raise a “plausible” claim that the speech was constitutionally protected, and in his view, it was entirely plausible that he was just joking around when he threatened to kill Kyle.

Defendant’s characterization of plausibility is completely implausible. Nevertheless, we will not quibble over the appropriate standard of review because even if we accept defendant’s invitation to independently review the evidence, there is clear and convincing evidence the threats were not analogous to poems, paintings, or jokes but were designed to make Kyle ever more compliant and unwilling to disclose the abuse he suffered. In other words, defendant’s statements were “true threats” undeserving of protection under the First Amendment and ample evidence under any standard of review to support the jury’s conviction. To suggest otherwise is to demean the First Amendment and the important values it is designed to protect.

Penal Code former section 422 provides, in part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”

“[T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. [Citations.] In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is ‘ “communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one’s beliefs . . . .” ’ [Citation.] As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression. [Citation.] . . .

“A threat is an ‘ “expression of an intent to inflict evil, injury, or damage on another.” ’ [Citation.] When a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection.” (In re M.S. (1995) 10 Cal.4th 698, 710.)

We return once again to context. The victim is a 16-year-old boy. Defendant urges us to dissect the record and conclude, as he does, that it is plausible he made the threats before the beating, burning, mayhem, and torture really began in earnest in the last few months before Kyle escaped. His theory of plausibility rests entirely on timing, for even he must recognize that a person who beats and burns his victim and/or observes his neighbors torturing him has strayed as far as possible from First Amendment protection when he thereafter threatens to kill him. We reject defendant’s cribbed reading of the record and conclude there is clear and convincing evidence to support the inference that defendant made the threats in the midst of the violent treatment of Kyle.

There is overwhelming evidence that Carmen never stopped abusing Kyle. We know Kyle was taken to a receiving home after Carmen was arrested for child abuse. Once reunited, the abuse resumed. Thus, it is but raw speculation that defendant was unaware of the abuse until August of 2008, when, in fact, the boy had been beaten on a regular basis.

Moreover, Kyle testified he escaped because it was “now or never.” He explained that he ran because he believed he “was probably going to die that night.” He had good reason for that belief given that he had been beaten and burned with a bat, zip-tied and chained, sliced with a knife, and clawed with a meat cleaver, not to mention expressly threatened that he would be killed. The jury could reasonably infer the threats were made during the time defendant either knew Kyle was being abused or while he was abusing the boy himself.

Finally, even if he made the threat before he actually observed or perpetrated the violence, a reasonable person would have realized that a young boy in Kyle’s circumstances would have taken his threat seriously. The statute expressly states that the defendant did not need to intend to carry out the threat at the time it was made, so even if he did not then plan to execute on his threat he certainly would have realized that this isolated boy would have been “in sustained fear for his . . . own safety.” In short, the timing issue is nothing but another red herring, interesting in the abstract but absurd under the dreadful circumstances Kyle was in.

IV.

In closing argument, the prosecutor meticulously marshaled the evidence in support of each of the charges of which defendant stood accused, reserving her analysis of the torture count for last. Defendant accuses her of advancing a legally untenable theory of torture and urges us to reverse for prosecutorial misconduct. We find the prosecutor did not use any deceptive or reprehensible method in trying to persuade the jury (People v. Morales (2001) 25 Cal.4th 34, 44), nor did her argument infect the trial with such unfairness as to make the conviction a denial of due process (People v. Hill (1998) 17 Cal.4th 800, 819, 827-828). To the contrary, her argument was a fair comment on the abundant evidence that defendant aided and abetted his neighbors’ torture of Kyle for a sadistic purpose. There was no misconduct.

The jury was instructed on the elements of torture as follows: “The defendant is charged in Count 1 with torture in violation of Penal Code section 206.

“To prove that the defendant is guilty of this crime, the People must prove that:

“1. The defendant inflicted great bodily injury on someone else;

“AND

“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

“It is not required that a victim actually suffer pain.

“Someone acts with a sadistic purpose if he or she intends to inflict pain on someone else in order to experience pleasure himself or herself.” (CALCRIM No. 810.)

The prosecutor’s theory was not, as defendant argues, that he was criminally liable for failing to act, but rather that he aided and abetted his neighbors’ ongoing torture of Kyle when he was not torturing the boy himself. As a result, she chronicled all that occurred in the Schumacher household, beginning with a catalogue of the crimes defendant perpetrated on his own and ending with a description of other evidence of the torture he aided and abetted.

Because the theory of aiding and abetting was at the heart of the prosecution’s case against defendant for torture, it is helpful to consider the basic principles undergirding that doctrine. The doctrine of aiding and abetting “ ‘ “snares all who intentionally contribute to the accomplishment of a crime in the net of criminal liability defined by the crime, even though the actor does not personally engage in all of the elements of the crime.” [Citation.]’ [Citation.] Aiding and abetting does not require participation in an agreement to commit an offense, but merely assistance in committing the offense. [Citation.]” (People v. Morante (1999) 20 Cal.4th 403, 433.) However, “if a person in fact aids, promotes, encourages or instigates commission of a crime, the requisite intent to render such aid must be formed prior to or during ‘commission’ of that offense. [Citations.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) This does not mean advance knowledge is a prerequisite for liability (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 742); “[a]iding and abetting may be committed ‘on the spur of the moment,’ that is, as instantaneously as the criminal act itself. [Citation.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 532). Moreover, “it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances. [Citations.]” (Id. at pp. 531-532.)

The prosecutor began with the two counts of aggravated mayhem; the first when defendant branded Kyle with his bat and the second when he ground the knife back and forth across his forearm. As to the first count, she argued that defendant demonstrated an extreme indifference to Kyle’s pain. He placed the bat on Kyle’s bare back while chained and watched his skin burn. As to the second count, she argued: “So when you take a knife and you slice it, not just a little accidental jabbing, you intentionally slice it like you are cutting a steak, you have the intent . . . that’s permanent. Your intent is to injure the flesh permanently.”

The prosecutor pointed out the long-term nature of the abuse and explained to the jury that some of the counts were simply representative of a course of conduct. For example, defendant was charged with the infliction of corporal injury on a child, but there were a host of incidents upon which the jury could find him guilty of the charge. The prosecutor stated, “The twelve of you have to say, okay, we agree that on an occasion -- you don’t have to be date specific . . . [defendant] used the bat, hit Kyle, created a nosebleed, or created the loss of the use of his body part, or split his head open, [etc., etc.]”

And she proceeded through all of the counts, attempting to persuade the jury that there was ample evidence to prove each and every element of each and every crime. Then she came to torture and, by way of introduction, made the statement defendant objects so vehemently to on appeal. She began, “Torture. Okay, now we are back to Count 1. I call it the umbrella charge because it encompasses or covers everything that was going on by Michael Schumacher, Kelly Lau, Carmen Ramirez and Anthony Waiters. This is kind of the all inclusive charge as to all of their conduct. As I’ve said, it’s a continuous course of conduct crime, and based on testimony by Kyle, the charging document just alleges January 1st, 2008, until the day he escaped. Did it start January 2nd, January 3rd, with Carmen and Kelly, as he said, beating him and then it escalated? There is not a definitive date. It just started. At some point it went from, perhaps, child abuse, to felony child abuse, to infliction of great bodily injury, and ultimately torture. That’s why it’s a continuing course of conduct crime. It escalated and eventually everything that happened to this child was torture.”

Defendant contends that the prosecutor thereby advanced a legally untenable theory which sought to hold him responsible for all injuries and suffering inflicted on Kyle by members of his household—even injuries they inflicted when defendant was not present and was not aware of what they were doing. Defendant insists the prosecutor’s argument constituted misconduct because he had no special duty to either protect Kyle or control his neighbors, and in the absence of a duty, there were no legal grounds for holding him responsible for the abuse the others committed. (People v. Heitzman (1994) 9 Cal.4th 189, 197.)

We agree with the Attorney General that defendant misconstrues the prosecutor’s argument. Her theory was aiding and abetting torture, not a failure to act based on a special duty. But in context, her opening remarks do not constitute an untenable legal basis at all. Rather, they set the stage for a persuasive and effective argument demonstrating why the jury should convict defendant of torture, based not only on the great bodily injury he personally inflicted, but on the torture the others inflicted as well.

The prosecutor argued that the evidence satisfied each of the elements of torture, beginning with great bodily injury. “. . . Kyle was scarred, starving, soot covered, shackled, bloody and burned. He was scarred on his head, and on his arms, on his back, on his ankle. He was starved, he was an emaciated prepubescent sixteen-year-old boy. He was soot covered, head to toe . . . . He was shackled with a chain, a 4.6 pound chain. His arm and back were bloody, and he was burned, visibly burned, severely on his elbow, on his lower abdomen, and down his back.”

She also pointed out the absurdity of the notion that defendant did not know what was going on or that he did not enjoy the torture. Facetiously she argued, “How do you walk in, hi, neighbor. Oh, the kid is chained to the table? Hmm, okay. When I come back, I’ll bring a bat.” And to the prosecutor, that raised the very reasonable inference that defendant received some sadistic pleasure out of the torture. “[Defendant] was the neighbor. He didn’t live there. He didn’t have to be there. . . . And he keeps coming back for more.”

The prosecutor never suggests that defendant should have intervened and that his failure to do so made him vicariously liable for the neighbors’ torture of the boy. Rather, she explained that the theory of aiding and abetting applies to both torture and false imprisonment. She argued that all the facts and circumstances “circumstantially show that [defendant] knew what was going to happen to Kyle[.]” Of course, such proof was critical to proving aiding and abetting, which requires the defendant to “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. Beeman (1984) 35 Cal.3d 547, 560.)

Defendant picks apart the prosecutor’s argument, extracting bits and pieces purportedly to demonstrate her misconduct. We do not find any of the excerpts, when put into context, offensive, unsupported, or based on an erroneous legal basis. We examine defendant’s objections to her argument.

He objects to her argument that he is responsible for the beatings of Kyle when he was not there. But, as the prosecutor reminded the jury, defendant was the one who supplied the bat and told Carmen to use it. If that was not enough, he demonstrated how to use it effectively, for according to Kyle, defendant routinely beat him with the bat. Based on this evidence, the prosecutor’s argument that he was responsible for the beatings he encouraged was fair comment on the evidence.

Defendant next complains that the prosecutor argued he was also responsible for the burns to Kyle’s elbow he received in the fireplace after Kelly choked him with a belt. The prosecutor argued, “That wound was so completely visible, he told you, you heard, I thought my bones were sticking out, I thought my arm was broken, and Anthony Waiters may have not been there that day, but he had helped encourage and promote such an environment that that could happen to Kyle and nobody thought twice about it.” But, as the Attorney General points out, the defense objection to this argument was sustained.

Nevertheless, defendant objects to the prosecutor’s use of the “umbrella theory.” He claims he was not responsible for Kyle’s burning his elbow in the fire when he was not there, nor was he responsible for Carmen’s use of the meat cleaver on Kyle’s back on the day of his escape. The prosecutor used these incidents as yet more examples of the torture Kyle endured, defendant’s knowledge of what was occurring at the Schumacher residence, and his contribution to facilitating it. That is not to say defendant preplanned each incident or conspired with his neighbors in advance of each act of torture. What the prosecutor was arguing was much broader—that defendant was keenly aware Kyle was being tortured on an ongoing basis even while chained, that in supplying the bat and the meat cleaver he facilitated that torture, and that he not only intended Kyle continue to be tortured, but he enjoyed some sadistic pleasure in the knowledge that he was. In essence, although he did not live in the house of horrors himself, he helped create the torture chamber, supplied the implements to be used, and enjoyed the entire enterprise. The jurors, of course, were at liberty to accept or reject the inferences the prosecutor urged them to draw. But we find the prosecutor’s argument was fair advocacy that did not rely on an erroneous legal basis. There was no misconduct.