People v. Hamlin (170 Cal. App. 4th 1412, 2009)

Court of Appeal of the State of California 2009-02-09

Citations

Full opinion text

Opinion

ROBIE, J.

A jury found defendant Richard William Hamlin guilty of torture, making a criminal threat, three counts of inflicting corporal injury on his wife, and three counts of misdemeanor child abuse. The trial court sentenced him to life in prison for torture, the upper term of three years for making a criminal threat, and the upper term of four years for each of the three counts of inflicting corporal injury, but the court ordered the terms on the latter four counts stayed pursuant to Penal Code section 654. The court also sentenced defendant to three consecutive terms of 180 days each for the child abuse counts.

On appeal, defendant raises numerous issues, including claims of insufficiency of the evidence, evidentiary errors, instructional errors, error in denying his new trial motion, and sentencing errors.

We reject defendant’s challenges to the sufficiency of the evidence and most of his claims of error, with two exceptions: we conclude (1) the trial court erred in imposing upper terms on defendant’s convictions for making a criminal threat and inflicting corporal injury on a spouse based on facts not found to exist by the jury, admitted by defendant, or justified based on defendant’s record of prior convictions; and (2) the trial court erred in imposing a no-contact order on defendant. Accordingly, we will strike the no-contact order and remand the case to the trial court for resentencing. With these exceptions, defendant’s convictions are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and his wife, S., lived with their four children in El Dorado Hills. Sometime after 1999, defendant — who worked as a criminal defense attorney — began to physically abuse S. By 2003, the abuse escalated. According to S., defendant eventually abused her physically “on a daily basis, more than once a day.” “He would strangle [her]. He would hit [her] in the head. He would throw [her] into furniture. He would hold [a] gun to [her] head. He would use a knife and push and just gradually increase the pressure and see how long he could push before he would break the skin . . . .” “He would hold lit cigarettes to [her] face.” As a result, she had bruises, cuts, and split lips. Sometimes she had black eyes, and sometimes a swollen jaw.

The escalation in the abuse was related to defendant’s efforts to put together a million-dollar lawsuit against S.’s father for molesting her as a child. S. claimed at trial that the molestation never occurred, but defendant insisted that it did and that she had repressed her memories of it. Defendant would tell S. what her memories were, and she started believing him. Eventually, defendant focused almost all of his attention on the claims against S.’s father, and “if [she] didn’t do [her] part, [she] would get beat.” S. later testified that if she did not tell defendant what he wanted to hear, “[h]e would hit [her], he would hold a gun to [her] head and pull the thing on the gun. Ask [her] if [she] was ready to die. He would tell [her] that he was going to tie [her] up and leave [her] under the house or gut [her] and leave [her] out in some field or chop [her] into pieces.”

By December 2003, defendant and S. were out of money and their house was in foreclosure. In January 2004, defendant obtained a book on “surviving ritualistic satanic abuse, or something to that effect,” and defendant’s story of S.’s molestation took on “a satanic cult theme.” Around this time, defendant took to wearing “guns bolstered through the house,” and he also had a Taser and a sword in the bedroom.

While putting the molestation story together, defendant had S. contact old friends to see what they remembered. One of the friends was Lisa Clum. Once the “story evolved into the satanic theme,” defendant “started weaving all kinds of people into the story,” including Lisa Clum. According to defendant, “there was a plot to kill him and [they] were all involved in wanting to kill him. And it was all tied to this satanic cult that was supposedly in place.” When Lisa Clum called and invited S. “to go to her church to listen to some talk that was being given,” defendant “said that she was trying to set a trap to get [them] there to her church, which wasn’t really a church, so that he would be killed.”

By the time of Super Bowl Sunday in 2004, “[t]he story had evolved to where [S.] was now one of the child molesters of’ her own children, and defendant wanted to record her confession. Defendant pointed a gun at S. and hit her until she told him what he wanted to hear.

In the first week of February 2004, an incident occurred in which defendant accidentally shot himself in the leg. Before law enforcement or medical personnel arrived, defendant told S. to “stick to the story,” which at that time was that Lisa Clum and her husband, Rock, as well as S., “were all planning to kill [defendant].” Because S. had visible bruises on her, defendant told her “to say that Rock Clum . . . had attacked [her] in Starbucks’ parking lot.”

After defendant was taken to the hospital, S. spoke with a detective and “told him the story.”

On the night of February 10, 2004, defendant “was trying to get something from [S.] as far as the story goes” and “he had [her] pinned up against the wall in the bedroom with the sword pointed to [her] left shoulder/chest area.” He began swinging the sword around, and as S. tried to block the sword she was cut on the finger. Defendant then stabbed the sword into the mattress and threw S. into the wall. While choking her with one hand, he hit her in the side of the head with other. That night, defendant made S. sleep next to him at gunpoint.

The next day, they “were going to go to Granite Bay looking for Lisa [Clum] to kill her.” S. arranged to drop the girls off with a neighbor, and defendant told the two boys to “put their paintballs in the freezer and pack their paintball guns in the van.” Defendant took his derringer and the Taser and the sword. They drove to a Starbucks to look for Lisa. They then drove all over Granite Bay looking for an address. At first, S. was driving, and defendant was telling her she had “better find Lisa’s house.” After he started driving, “he started hitting [her] and being very threatening.” “He hit [her] with his fist. He hit [her] with the gun in the face. He hit [her] with [the] Taser in the ribs and threw [her] into the window.” As a result, her “nose was swollen” and it “felt like he had broke[n her] nose.” Her “face was bloody and bruised and swollen” and her “ear was swollen.” Eventually, when they could not find Lisa’s house, defendant “dragged [S.] out of the car with a gun to the head and walked [her] out to [a] field.” “He kept hitting [her] in the head and he held the gun to [her] head and asked if [she] was ready to die.” He did not shoot her, however, and instead “dragged [her] back to the van, threw [her] in ... , and . . . drove away.” When they went to pick up the girls, defendant had her remain in the van with the boys pointing their paintball guns at her.

On February 22, 2004, when defendant and S. had returned home from somewhere and were coming into the house through the garage, defendant “started hitting [S.] and threw [her] into the trash cans and onto the floor and kicked [her].” He told her not to act like she was hurt, and she tried, but she was “unconsciously holding [her wrist] up because it was throbbing.” Defendant picked up a metal pipe and hit her in the part of her arm that was starting to swell, then punched her in the face. S.’s nose began to bleed and she was coughing up blood. Defendant told her to go into the laundry room, and there he “started hitting [her] in the stomach and the ribs, hit [her] again in the face,” “hit [her] in [her] ears,” and “threw [her] into the wall.” He then hit her in her left side with a piece of wood. As a result of this incident (sometimes referred to as the laundry room incident), S.’s nose “was very swollen and bruised, th[e] side of [her] face . . . was bruised all the way down into [her] neck, and it was swollen, and [she had] black eyes.”

On February 26, 2004, defendant and S. went to the sheriff’s department and S. gave a detailed statement in which she admitted molesting her children. To explain the marks on her, she told the authorities Rock Clum had hit her. The authorities did not arrest S., but did send child protective services to remove the children from the home. Two days later, however, defendant was arrested.

On March 1, 2004, an examination conducted on S. at a hospital revealed the following injuries: both of her ears were extremely swollen and bruised, with one ear canal 90 percent swollen shut; she had bruising on her face from underneath her eye all the way down to underneath her chin; her nose was broken; she had bruising on her neck, shoulder, arm, abdomen, and thigh; and she had five broken ribs.

On March 2, 2004, a criminal complaint was filed against defendant (case No. P04CRF0132). In June 2004, a nine-count information was filed in the case.

The prosecution of defendant proceeded under the information until April 2005, when the grand jury returned an 18-count indictment (case No. P05CRF0161). The charges in the indictment were as follows:

1. Torture;

2. Child abuse (victim R.);

3. Child abuse (victim A.);

4. Child abuse (victim C.);

5. Assault by means of force likely to produce great bodily injury;

6. Making a criminal threat;

7. Inflicting corporal injury on a spouse;

8. False imprisonment by violence;

9. Inflicting corporal injury on a spouse (with a great bodily injury enhancement);

10. Assault with a deadly weapon or by means of force likely to produce great bodily injury;

11. Making a criminal threat (with an arming enhancement);

12. False imprisonment by violence (with an arming enhancement);

13. Inflicting corporal injury on a spouse;

14. Assault with a deadly weapon or by means of force likely to produce great bodily injury (with a firearm use enhancement);

15. Making a criminal threat (with a firearm use enhancement);

16. Discharge of a firearm with gross negligence;

17. Inflicting corporal injury on a spouse (with a great bodily injury enhancement); and

18. Assault by means of force likely to produce great bodily injury.

The case was ultimately tried to a jury from October 2005 through January 2006. The jury found defendant guilty of torture (count I), three counts of misdemeanor child abuse (lesser included offenses of counts II, III & IV), one count of making a criminal threat (count VI), and three counts of inflicting corporal injury on a spouse (counts IX, XIII & XVII). The jury rejected the great bodily injury enhancements on counts IX and XVII, found defendant not guilty on counts VII, VIH, X, XI, XH, XVI, and XVIII, and was unable to reach verdicts on counts V, XIV, and XV. The prosecution elected not to retry defendant on those counts.

After denying defendant’s new trial motion, the court sentenced him to life in prison for torture, with the upper term of three years on the charge of making a criminal threat and the upper term of four years on each of three charges of inflicting corporal injury on a spouse, stayed pursuant to section 654. The court also sentenced defendant to three consecutive terms of 180 days each on the misdemeanor child abuse charges.

DISCUSSION

I

Sufficiency of the Evidence

Defendant offers two different challenges to the sufficiency of the evidence to support his convictions. Before we address each of those arguments, we set forth the governing legal principles.

“ ‘The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] “ ‘[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’ ” [Citation.] “The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] ‘Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.’ ” ’ [Citation.]

“ ‘An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.’ [Citation.] ‘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 of the [finder of fact].’ ” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572-1573 [43 Cal.Rptr.3d 741].)

A

Torture

A person is guilty of torture if he “inflicts great bodily injury” “with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.” (§ 206.) Defendant argues there was insufficient evidence he acted with the requisite intent here because his acts were not sufficiently “brutal.” We disagree.

“Courts have interpreted intent to inflict ‘cruel’ pain and suffering as intent to inflict extreme or severe pain.” (People v. Burton (2006) 143 Cal.App.4th 447, 452 [49 Cal.Rptr.3d 334].) Thus, the question here is whether there was substantial evidence that defendant intended to inflict extreme or severe pain on S.

“Absent direct evidence of such intent, the circumstances of the offense can establish the intent to inflict extreme or severe pain.” (People v. Burton, supra, 143 Cal.App.4th at p. 452.) For example, “a jury may infer intent to cause extreme pain from a defendant who focuses his attack on a particularly vulnerable area, such as the face, rather than indiscriminately attacking the victim.” (Ibid.)

Before we turn to the evidence of defendant’s intent, we must address whether torture can be committed by a course of conduct. As will be seen, this issue is significant to resolution of whether there was substantial evidence that defendant had the intent required for the crime.

1. Torture as a Course of Conduct Crime

“[W]here violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged,” either the state must “ ‘ “select the particular act upon which it relied to make good the allegation of the information” ’ ” or the jury must be instructed “that they must agree unanimously on which act they based their guilty verdict.” (People v. Thompson (1984) 160 Cal.App.3d 220, 223-224 [206 Cal.Rptr. 516].) “Neither instruction nor election are required, however, if the case falls within the continuous course of conduct exception,” which arises “when the acts are so closely connected that they form part of one and the same transaction, and thus one offense” or “when ... the statute contemplates a continuous course of conduct [or] a series of acts over a period of time.” (Id. at p. 224.)

It is clear the torture statute, section 206, does not require the intent to cause or the actual causing of prolonged pain. (People v. Hale (1999) 75 Cal.App.4th 94, 108 [88 Cal.Rptr.2d 904].) But that is not the same thing as saying the prosecution is precluded from proving infliction of bodily injury or a defendant’s intent to cause cruel or extreme pain by a course of conduct occurring over time.

Here, the prosecution proceeded on the theory that defendant committed the crime of torture against S. by a course of conduct between June 2003 and February 2004. Defendant argues, however, that torture is not a crime that can be committed by a course of conduct. As we will explain, defendant is mistaken.

“Decisions on the continuous course of conduct exception have focused on the statutory language in an attempt to determine whether the Legislature intended to punish individual acts or entire wrongful courses of conduct.” (People v. Salvato (1991) 234 Cal.App.3d 872, 882 [285 Cal.Rptr. 837].) “[C]ertain verbs in the English language denote conduct which occurs instantaneously, while other verbs denote conduct which can occur either in an instant or over a period of time.” (People v. Gunn (1987) 197 Cal.App.3d 408, 415 [242 Cal.Rptr. 834].) In the latter situation, where the statute “may be violated by a single act” or “repetitive or continuous conduct,” and the charging instrument “allege[s] a course of conduct in statutory terms which . . . occurred between two designated dates,” “[t]he issue before the jury [i]s whether the accused [is] guilty of the course of conduct, not whether he . . . committed a particular act on a particular day.” (People v. Ewing (1977) 72 Cal.App.3d 714, 717 [140 Cal.Rptr. 299].)

Here, defendant argues that the operative language of section 206— specifically, the word “inflicts” — does not denote conduct that can occur over a period of time. He contends that “[infliction of injury normally occurs as the result of a violent act” and “[t]he infliction of great bodily injury is not a gradual or continuous process. It is a discrete criminal event.”

Defendant’s argument is contradicted by the plain meaning of the word “inflict,” which includes “to cause (something unpleasant) to be endured.” (Merriam-Webster’s Collegiate Diet. (11th ed. 2006) p. 641, col. 1.) Obviously a person can be forced to endure something unpleasant over a period of time. Indeed, anyone who has visited a chamber of horrors in a wax museum can conjure up any number of classic instruments of torture — such as the rack — that are specifically designed to inflict pain and injury over an extended period of time.

Defendant’s argument is also contradicted by case law applying the continuous course of conduct exception to other criminal statutes that penalize the “infliction” of pain or injury. For example, child abuse may be committed by “willfully causing] or permitting] any child to suffer, or infiict[ing] thereon unjustifiable physical pain or mental suffering.” (§ 273a, italics added.) In People v. Ewing, this court held that “[ajlthough the child abuse statute may be violated by a single act [citation], more commonly it covers repetitive or continuous conduct.” (People v. Ewing, supra, 72 Cal.App.3d at p. 717.) Similarly, the crime of spousal abuse (also, spousal battering or infliction of corporal injury on a spouse) is committed by “willfully inflict[ing] upon a . . . spouse . . . corporal injury resulting in a traumatic condition.” (§ 273.5, subd. (a), italics added.) In People v. Thompson, the appellate court followed Ewing in holding that the spousal abuse statute, like tiie child abuse statute, is “aimed at repetitious activity which culminates in prohibited conduct.” (People v. Thompson, supra, 160 Cal.App.3d at p. 225; see also People v. Sanchez (2001) 94 Cal.App.4th 622, 632-633 [114 Cal.Rptr.2d 437] [the crime of animal abuse, which includes “ ‘inflicting] unnecessary cruelty upon [an] animal,’ ” can be committed by a course of conduct].)

Defendant contends a comparison of the torture statute with the spousal abuse statute is “inapt because the spousal abuse statute requires a continuing domestic relationship between the parties, whereas the torture statute does not.” Defendant is wrong. The spousal abuse statute does not require “a continuing domestic relationship” between the perpetrator and the victim because while the statute applies where the victim is a “spouse” or “cohabitant” of the perpetrator, it also applies where the victim is a “former spouse” or “former cohabitant” — i.e., where there is no longer a domestic relationship between the parties.

In any event, the nature of the relationship between the perpetrator and the victim is not the reason spousal abuse can be committed by a course of conduct. The reason spousal abuse can be committed by a course of conduct is because the infliction of corporal injury resulting in a traumatic condition can, as a matter of simple reason, occur either as the result of a single act or as the result of a series of acts.

Just as child, spousal, and animal abuse can be committed by a course of conduct rather than a single act, so can torture. In People v. Salvato, supra, 234 Cal.App.3d 872, the court held that the crime defined by section 136.1 (dissuasion of a witness) set forth a course of conduct crime because the statute “focuses on an unlawful goal or effect . . . rather than on any particular action taken to produce that end. . . . The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal. Thus it falls within the continuous conduct exception . . . .” (People v. Salvato, supra, 234 Cal.App.3d at p. 883.) The same goes for the torture statute. For torture, the “unlawful goal or effect” is the infliction of great bodily injury with the intent to cause severe pain for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. Where (as here) torture is charged and tried as a course of conduct crime, no single act in the perpetrator’s course of conduct may result in great bodily injury. But where the cumulative result of the course of conduct is great bodily injury, and the requisite intent can be found, then the crime of torture has been committed under the course of conduct exception to the election/unanimity requirement.

2. Intent to Cause Severe Pain

With the understanding that torture can be a course of conduct crime, we turn back to whether there was substantial evidence that when defendant inflicted great bodily injury on S., he did so with the intent to cause her severe pain.

As we have noted, the intent to cause severe pain need not be proven by direct evidence, but can be inferred from the circumstances of the offense, such as a focused attack on a particularly vulnerable area. (People v. Burton, supra, 143 Cal.App.4th at p. 452.) Here, in explaining why she did not seek medical treatment for the injuries defendant inflicted on her, S. testified she “wasn’t allowed to” because if she “acted like [she] was hurt, [defendant] would kick [her] again or hit [her] where he had just hurt [her] before. He targeted already broken bones and swollen bruises.” As an example, S. had earlier testified about the incident when she and defendant were coming inside from the garage. Defendant “started hitting [her] and threw [her] into the trash cans and onto the floor and kicked [her].” She jumped up and tried to pretend she was not hurt, but was unconsciously holding her wrist up because it was throbbing. When defendant saw that she was favoring her wrist, he picked up a metal pipe and hit her “on the part of [her] arm that was starting to swell.” S. also testified that on another occasion defendant “hit [her] in the ribs which were already sore from a few nights before that.”

We believe a jury could reasonably determine that a person who deliberately strikes his victim on an area of the body that is already injured has the intent to cause severe pain — or, as defendant puts it, “a level of pain over and above the level of pain that a victim would suffer in an ordinary assault or battery.”

Defendant contends S.’s “generic claim that he would hit her in sore ribs and target already broken bones” will not support his torture conviction because “there was no evidence that he knew that she had sore ribs and already broken bones when he did these generic acts.” Later, he complains that the People “do[] not cite substantial evidence to show that [he] had that knowledge.”

Defendant’s argument misapprehends the burden imposed on a defendant who challenges the sufficiency of the evidence. It is not enough for defendant to simply say “there was no evidence”; instead, “he must affirmatively demonstrate that the evidence is insufficient” on the point in dispute. (People v. Sanghera, supra, 139 Cal.App.4th at p. 1573.) For the same reason, defendant’s complaint that the People have not cited substantial evidence misses the point. The People do not bear the burden of showing the conviction is supported by substantial evidence; instead, because “we must begin with the presumption that the evidence . . . was sufficient,” it is defendant, as the appellant, who “bears the burden of convincing us otherwise.” (Ibid.)

The question here is whether there was sufficient evidence that defendant knew he was striking S. where she was already injured when he “targeted already broken bones and swollen bruises.” Defendant has not carried his burden of showing there was no such evidence. In any event, the incident in the garage supplies one example of such evidence, because the jury could have found based on S.’s testimony regarding that incident that defendant knew her arm was injured when he struck her there with a metal pipe. Indeed, we believe the jury could have reasonably inferred more generally from the evidence, including (but not limited to) the evidence regarding the frequency of defendant’s physical assaults on S., that he knew where he had struck her recently and therefore knew where he could strike her again to cause her greater pain.

Defendant argues, however, that to convict him of torture, the jury had to find not only that he acted with the intent to cause extreme pain, but that the action he undertook with that intent was one that in fact caused great bodily injury. Thus, he contends, “[i]f S. claimed that [he] struck her on the arm because he saw that she was favoring it, that would not be torture unless there was concomitant proof that the blow resulted in great bodily injury.” By inference, defendant suggests there was no such proof here.

It is with regard to this argument that the nature of the crime of torture as one that can be committed by a course of conduct becomes significant. Defendant’s argument presumes that each act of violence he committed on S. must be analyzed separately to determine if there was evidence that particular act was committed with the intent to cause severe pain and evidence that particular act resulted in great bodily injury. This is incorrect. Where, as here, torture is charged and tried as a course of conduct crime, such analysis is unnecessary. The question for the jury was not whether S. suffered great bodily injury from a particular act defendant committed on a particular day with the intent to cause her severe pain. Rather, the question was whether, with that intent, defendant engaged in a course of conduct toward S. that resulted in great bodily injury. As long as the jury could reasonably find that defendant had the requisite intent when he engaged in the course of conduct, and that the course of conduct resulted in great bodily injury, then the evidence is sufficient to support a torture conviction.

Here, S.’s testimony was sufficient to support the reasonable inference that during his course of physical assaults on her, defendant intentionally targeted areas of her body where he had injured her already and thus acted with the intent to cause her severe pain. This was enough to support a finding that defendant had the intent required for the crime of torture.

B

Criminal Threat

A person is guilty of making a criminal threat if he “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... 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.” (§ 422.)

The criminal threat charge of which defendant was convicted was based on the tape recording he made in February 2004. S. testified that defendant wanted to record her confessing that she had molested their children. He turned on the tape recorder and sat with a gun in his lap as he questioned her. During the recording session, defendant found a piece of paper on which Lisa Clum had written the name of a Christian counseling center three months earlier. The piece of paper was actually an appointment reminder for an orthodontic appointment for Lisa’s daughter, Ashley. Upon defendant’s discovery of the reminder slip, the following exchange occurred (according to the transcript of the recording):

“Richard: [W]hat is it, what is this, Ashley? What is it? What is this? What is this? What is it?

“[S.]: I don’t know. I want to know as much as you do. I honestly do not know.

“Richard: [Bjelieve ....

“[S.]: I do not know.

“Richard: Oh, but you’re [s/c] know lots of other things, so you just start answering these fucking questions.

“[S.]: Okay. I want to. Ask me, please.

“Richard: (Yelling) You (Inaudible) shit. Raw shit. (Inaudible) time you leave me. With your fucking whore fake pastor, what, did you fuck her? Yeah. Get indoctrinated into the church? You better fucking come clean.

“[S.j: I (Inaudible)

“Richard: I wouldn’t (Inaudible) up, [S.]. Because I’ll kill you now if you (Inaudible). You’re not escaping this one. And you give me information you just start talking. Get going.”

Defendant contends that, because his threat to kill S. was conditional (“I’ll kill you now if you”) but due to the inaudible portion of the tape “the condition was never established,” the evidence was insufficient to support his conviction of making a criminal threat. We disagree.

“To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier ‘so’ unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861 [123 Cal.Rptr.2d 193].) “[W]hether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an . . . immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone.” (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728].) “[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.” (People v. Butler (2000) 85 Cal.App.4th 745, 753 [102 Cal.Rptr.2d 269].) The jury is “free to interpret the words spoken from all of the surrounding circumstances of the case.” (Mendoza, at p. 1341.)

Here, in arguing the evidence is insufficient to show his threat conveyed the requisite “gravity of purpose and immediate prospect of execution,” defendant ignores all of the surrounding circumstances and bases his argument on the words of the threat alone — or, more accurately, on the words that are missing from the recording of the threat due to the inaudible portion of the recording. But, as we have seen, the law does not permit such a myopic examination of the evidence. Rather, we must look to all of the surrounding circumstances, including the words that were recorded, to determine if the jury could have reasonably found that the threat carried the requisite gravity of purpose and immediate prospect of execution, despite the inaudible portion of the tape following the word “if.”

We conclude the evidence was sufficient for this purpose. Although the recording does not reveal exactly what condition defendant placed on his threat, from the context and surrounding circumstances the jury reasonably could have determined that defendant essentially threatened to kill S. if she did not cooperate and answer his questions about the slip of paper he had found. Indeed, virtually everything defendant said immediately before and after his threat supports such a determination. Before his threat, he demanded that she “just start answering these fucking questions” and that she “better fucking come clean.” Immediately after the threat, he told her she was “not escaping this one” and told her to “give [him] information,” “just start talking,” and “[g]et going.” Under these circumstances, the jury did not need to know the exact words of the condition defendant placed on the threat to conclude that the threat was so unconditional as to convey a gravity of purpose and an immediate prospect of execution. Accordingly, defendant’s sufficiency of the evidence challenge to his conviction of making a criminal threats fails.

II

Misdemeanor Child Abuse Convictions

A person is guilty of misdemeanor child abuse if (among other things), he “willfully causes or permits any child to suffer, or inflicts thereon unjustifiable . . . mental suffering” “under circumstances or conditions other than those likely to produce great bodily harm or death.” (§ 273a, subd. (b).) If the abuse occurs “under circumstances or conditions likely to produce great bodily harm or death,” then the crime is a felony. (§ 273a, subd. (a).)

Here, defendant contends his misdemeanor child abuse convictions must be reversed because they were barred by the one-year statute of limitations. In the alternative, he contends the convictions must be reversed “[b]ecause the prosecutor’s theory intruded upon the fundamental constitutional rights of parenting and of free expression.” We disagree on both points.

A

Procedural Background

A criminal complaint was originally filed against defendant on March 2, 2004, in case No. P04CRF0132 (the 2004 case). The complaint did not contain any child abuse charges.

On May 27, 2004, an amended complaint was filed in the 2004 case. The amended complaint included three charges of felony child abuse alleged to have occurred between February 1, 2004, and February 22, 2004. Each child abuse charge in the amended complaint broadly alleged that defendant “did willfully and unlawfully, under circumstances likely to produce great bodily harm and death, did cause and permit a child ... to suffer unjustifiable physical pain or mental suffering or to be placed in such situation that his/her person and health may be endangered.”

On June 10, 2004, defendant waived his right to a preliminary hearing, and on June 21 an information was filed containing the same three child abuse charges as the amended complaint.

In January 2005, defendant filed a motion seeking to force the prosecution to elect the acts on which various charges in the information — including all three child abuse charges — were based. In response to that motion, the prosecution informed defendant an election was impossible because the child abuse charges were based on a continuing course of conduct. At the hearing on the motion, defendant argued that the child abuse charges were apparently based on “the prosecution theory . . . that . . . there was violence to [the children’s] mother and that it was in or about their presence.” When the court pointed out that “each count [was] alleged to have occurred between February 1st and February 22nd of 2004” “[s]o you are on notice in that regard,” defendant complained that he “didn’t know what incident — what claimed incident that they are going to be relying on.” The prosecutor responded, “And the People’s answer is it is a continuing course of conduct during that time frame. It is our contention that the defendant beat his wife in the presence of his children four out of seven days a week, five out of seven days a week. [f] We have statements from the children as to witnessing these acts of violence and seeing the injuries on their mother. ...[][] We have statements of the victim of those acts herself who says that they occurred in the presence of her children . . . .” The prosecutor later added “that the People’s theory is one of mental suffering caused in the children by the environment that they were subjected to by the defendant’s continuous abuse and beating and, essentially, torture of their mother in their presence.” The court concluded “sufficient notice ha[d] been given” because “[w]e have the specific time period, the specific theory of mental suffering, [f] We know by established law that any — if the children witnessed any physical harm, threats, injuries between the parents, that that is sufficient to violate those code sections.”

Trial was eventually set for April 26, 2005. At the readiness conference on April 1, 2005, defendant asked for a continuance. Trial was reset for May 24.

Meanwhile, in mid-April, the prosecutor sought an indictment from the grand jury. Before the grand jury, R. testified that he saw and heard defendant hit S. and that these incidents occurred with increasing frequency in the three or four months before February 2004. He also testified that defendant told him his grandfather was the head of a demonic cult, that the cult was trying to kill defendant, that his grandfather had molested S. and the children, and that S. had molested the children also.

A. testified similarly about seeing defendant strike S. and about what defendant told him.

C. testified that although she never saw defendant hit or kick S., she heard them fighting, heard S. say that she did not want defendant to hit her, and saw S.’s injuries. C. also testified that defendant told her S. was molested by her father and that S. molested the children.

On April 15, 2005, the grand jury presented an indictment against defendant, which was assigned case No. P05CRF0161 (the 2005 case). As relevant here, the child abuse charges in the indictment were identical to those in the information in the 2004 case — one for each of the three children — with the exception that the indictment alleged that the child abuse occurred between November 1, 2003, and February 26, 2004.

Defendant was arraigned on the indictment that same day and pled not guilty. When defense counsel asked if the 2004 case was dismissed, the prosecutor objected to a dismissal, asserting that she wanted the indictment to supersede the charging instrument in the earlier case. The court declined to decide the issue, leaving it open for further argument or briefing later.

On April 27, 2005, defendant filed another motion to continue the trial, which was granted. Trial was reset to October.

On July 22, 2005, defendant filed a motion to dismiss the information in the 2004 case, asserting dismissal was required because of the filing of the indictment in the 2005 case. In defendant’s view, “An Information and indictment cannot logically exist at the same time.” The People opposed the motion, asserting that “[a]n indictment may supersede a pending Complaint or Information.”

Defendant’s motion to dismiss the information was heard on August 19, 2005. The trial court apparently concluded that “the Indictment does supersede the Information or Complaint as long as the basic facts are the same.” A handwritten note on the indictment that appears to be dated October 18, 2005 (the fourth day of trial, during jury selection), states that the indictment “Supercedes Information case #P04CRF0132.”

On December 16, 2005, following the close of evidence, the parties and the court discussed jury instructions. Defendant argued that the child abuse charges were “spread out from 11/1 to 2/26” and “[w]e don’t know what the particular act has been on this. And we’d like some — I think that we should have had clarification on this.” The prosecutor explained that she was going to request the jury be instructed with those portions of the felony child abuse instruction (CALJIC No. 9.37) that refer to a person who willfully inflicts unjustifiable mental suffering on a child or willfully causes a child such suffering.

For tactical reasons, defendant asked the trial court not to instruct the jury on misdemeanor child abuse as a lesser included offense of felony child abuse, but the court concluded it had to instruct on the misdemeanor.

In instructing on felony child abuse, the trial court instructed the jury that “[ejvery person who, under circumstances or conditions likely to produce great bodily harm or death, willfully inflicts unjustifiable mental suffering on a child, or willfully causes or permits a child to suffer unjustifiable mental suffering, is guilty of a violation of Penal Code Section 273a(a).” Later, however, in instructing the jury on the elements of the crime, the court omitted the word “permits” and instructed the jury that “[i]n order to prove this crime, each of the following elements must be proved: [f] One, a person willfully inflicted unjustifiable mental suffering on a child. []Q Or, two, a person willfully caused a child to suffer unjustifiable mental suffering. [f] And, three, the person’s conduct occurred under circumstances likely to produce great bodily harm or death.”

With regard to the mental element of the crime, the court instructed the jury that “there must exist a union or joint operation of act or conduct and general criminal intent.” The jury was not instructed on criminal negligence with relation to this crime.

The court’s instructions on misdemeanor child abuse paralleled its instructions on felony child abuse, except for the obvious omission of the “circumstances” that turn the misdemeanor into a felony.

The jury acquitted defendant on the felony child abuse charges but found him guilty of the lesser included misdemeanors.

B

Statute of Limitations

With this background, we turn to defendant’s argument — which he raises for the first time on appeal — that his convictions for misdemeanor child abuse must be reversed because they were “facially time-barred.”

With exceptions not applicable here, the prosecution for a misdemeanor must be commenced within one year after commission of the offense. (§ 802, subd. (a).) This limitation period applies to a misdemeanor that is a lesser included offense of a charged felony. (§ 805, subd. (b) [“The limitation of time applicable to an offense that is necessarily included within a greater offense is the limitation of time applicable to the lesser included offense, regardless of the limitation of time applicable to the greater offense”].)

“[P]rosecution for an offense is commenced when any of the following occurs: [ft] (a) An indictment or information is filed, [ft] (b) A complaint is filed charging a misdemeanor or infraction, [f] (c) The defendant is arraigned on a complaint that charges the defendant with a felony, [ft] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.” (§ 804.)

Defendant’s statute of limitations argument rests on the premise that his prosecution on the lesser included misdemeanor child abuse charges of which he was convicted began on April 15, 2005, when the indictment was filed against him. We agree, because “multiple prosecutions for the same acts are distinct.” (People v. Le (2000) 82 Cal.App.4th 1352, 1358 [98 Cal.Rptr.2d 874].) Thus, when the indictment was filed on April 15, 2005, in the 2005 case, that filing commenced a different prosecution than the prosecution in the 2004 case.

But the fact that the prosecution in the 2005 case did not commence until April 15, 2005, more than a year after the child abuse ended, is not dispositive of whether the prosecution on the misdemeanor charges was time-barred. This is so because “[n]o time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter.” (§ 803, subd. (b).) Thus, if the child abuse charges in the 2004 case were based on the “same conduct” as the child abuse charges in the 2005 case, then the prosecution in the 2005 case was timely because the entire period of the earlier prosecution would not count toward the one-year limitation period.

Defendant contends that for the People to claim the benefit of the tolling provision in section 803, they had to plead and prove that the child abuse charges in the 2004 case were based on the “same conduct” as the child abuse charges in the 2005 case, which they did not do; accordingly, the misdemeanor child abuse charges were barred by the statute of limitations. The People offer several arguments in response, which we will address in turn.

First, the People argue that “the issuance of a valid arrest warrant commences the prosecution and tolls the statute of limitations,” and defendant “was arrested on February 28, 2004”; therefore, “the statute [of limitations] was tolled on [that date].” The People are mistaken. It is true, as we have noted, that the issuance of an arrest warrant commences the prosecution of an offense “provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.” (§ 804, subd. (d).) Here, however, the People do not direct our attention to any evidence that any such arrest warrant was ever issued for defendant on the child abuse charges now at issue. Instead, the People refer only to the fact of defendant’s arrest, which was followed by the filing of a complaint that, according to the People, contained charges that “included the conduct which later formed the basis of the child [abuse] charges.” This is insufficient, however, to show that the statute of limitations was tolled on the charges of misdemeanor child abuse of which defendant was convicted in the 2005 case. Absent evidence of an arrest warrant on those charges that met the specificity requirements of section 804, the People’s first argument fails.

The People next argue that the limitation period was “clearly tolled on May 27, 2004, when the prosecutor amended the complaint [in the 2004 case] to include the felony charges of child [abuse].” The validity of this argument depends on whether the child abuse charges in both cases were based on the “same conduct,” thereby triggering the tolling provision in section 803, subdivision (b). The People acknowledge defendant’s argument that they had to “plead and prove the application of [that tolling provision],” but they argue their obligation in that regard arises only if the defendant “ ‘puts the prosecution to its proof’ ” in the trial court. (Italics omitted.) The People are mistaken. The rule is this: If the People plead facts to avoid the bar of the statute of limitations, and the defendant fails to put the People to their proof in the trial court, then the defendant forfeits the statute of limitations issue and cannot raise it for the first time on appeal. (See People v. Thomas (2007) 146 Cal.App.4th 1278, 1287-1289 [53 Cal.Rptr.3d 473].) However, “when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time.” (People v. Williams (1999) 21 Cal.4th 335, 341 [87 Cal.Rptr.2d 412, 981 P.2d 42].) Here, the indictment filed in April 2005 did not contain any allegations of facts tolling the statute of limitations on the lesser included offenses of misdemeanor child abuse of which defendant was ultimately convicted. Therefore, the charging document showed on its face that the charges were time-barred, and defendant did not forfeit his statute of limitations argument by failing to put the People to their proof in the trial court.

When the charging document shows on its face that the charges were time-barred and the appellate court “cannot determine from the available record whether the action is barred, ... it should remand for a hearing.” (People v. Williams, supra, 21 Cal.4th at p. 341.) Here, the People argue the record clearly shows the action was not barred because the record shows the prosecution for child abuse in the 2004 case was based on the “same conduct” as the prosecution for child abuse in the 2005 case. We agree.

It is important to recall that after the indictment was filed in the 2005 case, the trial court denied defendant’s request to dismiss the information in the 2004 case and instead ruled that the indictment superseded the information. In doing so, the trial court effectively treated the indictment as an amendment of the prior pleading, rather than as an entirely new pleading. As the People point out, this means “the grand jury indictment was not a new action, but rather a continuation of the previous action,” particularly since “the charges were identical, consistently named the same victims, and always encompassed the time period of the month of February in 2004.”

Defendant nevertheless contends that “[bjecause [he] was held to answer upon waiver of preliminary hearing, the record does not show a factual basis for these events” on which the 2004 case was based. He contends that “[w]ithout a factual basis, there is no way to determine whether the prior charges involved the ‘same conduct’ as the child endangerment charges alleged in the indictment.”

We reject defendant’s suggestion that only evidence from a preliminary hearing could show the conduct on which the child abuse charges in the 2004 case were based. On the record before us, the People’s response to defendant’s motion seeking to force the People to make an election on the child abuse charges in the 2004 case shows just as clearly as any transcript from a preliminary hearing could (if not more so) the conduct on which the People based those charges. As we have explained, in asserting she did not have to make an election, the prosecutor expressly told defendant and the court that the charges were based on “a continuing course of conduct” that consisted of “defendant’s continuous abuse and beating and, essentially, torture of the[ children’s] mother in their presence” between February 1, 2004, and February 22, 2004.

The question for us is whether this conduct was the “same conduct” as the conduct on which the child abuse charges in the 2005 case were based. Two factors complicate the analysis of that question. First, although she elicited evidence the children had seen and/or heard defendant physically abusing S., in closing argument the prosecutor emphasized the mental suffering defendant inflicted on the children by telling them “[something so horrific that children just don’t have any business knowing.” Second, and more importantly, the jurors were not instructed on the legal principles that would have allowed them to convict defendant of indirect child abuse based on their seeing and/or hearing defendant’s physical abuse of S. Instead, they were instructed only on the theory of direct abuse.

“Section 273a encompasses a wide variety of situations and includes both direct and indirect conduct. [Citations.] When the harm to a child is directly inflicted, the requisite mental state for the section 273a offense is general criminal intent. [Citation.] When that harm is indirectly inflicted, the requisite mental state is criminal negligence.” (People v. Burton, supra, 143 Cal.App.4th at p. 454.) When a charge of child abuse is based on the mental suffering resulting from a child being exposed to physical abuse by one parent against the other, the theory at issue is indirect child abuse, for which criminal negligence is the requisite mental state. (See id. at pp. 450-451, 454-455 [indirect child abuse at issue where physical attack on child’s mother occurred in child’s presence].)

As we have noted, the jury here was not instructed on criminal negligence in connection with the child abuse charges against defendant. Rather, the jury was instructed only on general criminal intent. Thus, the question here is this: Given that defendant was convicted of child abuse on a theory of direct abuse based on the things he told the children that caused them mental suffering, were the child abuse charges in the indictment nevertheless based on the “same conduct” as the child abuse charges in the superseded information, which the prosecutor said were based on indirect abuse defendant inflicted on the children by physically abusing their mother in their presence?

Defendant does not address this question, but we conclude the answer is “yes.” The drafters of the pertinent statute observed that “ ‘[t]he test of the “same conduct,” involving as it does some flexibility of definition, states a principle that should meet the reasonable needs of prosecution, while affording the defendant fair protection against an enlargement of the charges after running of the statute.’ ” (People v. Bell (1996) 45 Cal.App.4th 1030,1064 [53 Cal.Rptr.2d 156].) Applying that “flexibility of definition,” the appellate court in Bell determined that charges of forgery and false filings of petitions for bankruptcy or grant deeds were based on the “same conduct” as rent skimming charges where “the forgery and false filings were merely aspects of [the] rent skimming scheme.” (Id. at pp. 1039, 1064.) Similarly, in People v. Greenberger (1997) 58 Cal.App.4th 298 [68 Cal.Rptr.2d 61], the appellate court determined that kidnapping and murder charges were based on the “same conduct” where “the facts . . . clearly established] that the kidnapping was part of the same conduct that resulted in [the] murder.” (Id. at p. 369.)

Given the “flexibility of definition” in the phrase “the same conduct,” we conclude the child abuse charges in the 2005 case were based on the same conduct as the child abuse charges in the 2004 case, notwithstanding the change in theory from direct child abuse to indirect child abuse. The victims were the same, the indictment covered the entire period previously covered by the information, and the trial court determined that the indictment superseded the information. Moreover, unlike in either Bell or Greenberger, the same criminal charges (child abuse) were alleged in both the information and the indictment. This is not a case involving “completely separate instances of criminal conduct,” where the tolling provision in section 803, subdivision (b) does not apply. (People v. Terry (2005) 127 Cal.App.4th 750, 769 [26 Cal.Rptr.3d 71].)

Because the child abuse charges in both cases were based on the same conduct, the prosecution of the 2004 case tolled the statute of limitations on the misdemeanor child abuse charges of which defendant was convicted. Therefore, those charges were not time-barred.

C

Infringement of Defendant’s Constitutional Rights

Defendant’s alternate challenge to his convictions for misdemeanor child abuse rests on the prosecution’s theory of direct abuse. Defendant contends that “the People elected to prosecute [him for child abuse] on the narrow theory that he . . . inflict[ed] unjustifiable mental suffering on his children by telling them upsetting stories.” He further contends that “[bjecause the prosecutor’s theory intruded upon the fundamental constitutional rights of parenting and of free expression, the attempt to criminalize parental storytelling must fail, and the three convictions for misdemeanor child [abuse] must be reversed.”

The People dispute the initial premise of defendant’s argument, asserting that the child abuse charges were based not only on what defendant told the children, but also on his conduct, including (but not limited to) “the act of firing a gun in the vicinity of the children and . . . leaving his unsecured weapons around the house in areas easily accessible to the children.”

Defendant contends the child abuse charges could not have been based on this conduct, which was not directed at the children, because any such conduct would have amounted to only indirect child abuse, not direct child abuse, and the jury was not instructed on indirect child abuse because no instruction on criminal negligence — one of the elements of indirect child abuse — was given.

Although defendant is correct on this initial point, we conclude his argument ultimately fails because a parent does not have a constitutional right to willfully inflict unjustifiable mental suffering on his children, even if the instrument of this suffering is “parental storytelling.”

“[W]hen a defendant raises a plausible First Amendment defense” to a criminal charge, “a reviewing court should make an independent examination of the record ... to ensure that [the defendant’s] free speech rights have not been infringed by [the] trier of fact’s determination that the communication at issue constitutes a [crime].” (In re George T. (2004) 33 Cal.4th 620, 632 [16 Cal.Rptr.3d 61, 93 P.3d 1007].) Here, even assuming defendant’s constitutional defense is “plausible,” we find no infringement of his constitutional rights by his child abuse convictions.

Defendant contends a conviction for child abuse based on things he told his children impermissibly infringes on his “fundamental constitutional rights of parenting and of free expression.” He asserts that “[w]hether or not the children had any business knowing [what he told them] is a decision to be made by parents, not by the state. The decision as to whether or not to tell children about matters affecting the family and family relationships — even if they are upsetting or disturbing or false — belongs to the parent.” He further contends that because his statements to his children “were not indecent, lewd, or obscene,” his speech was constitutionally protected under “his right of free expression in his home.”

We are not persuaded. By his own admission, the evidence showed that defendant told his children that:

(1) their grandfather was a child molester who molested their mother (S.) throughout her childhood;

(2) their grandfather was the leader of a satanic cult that was plotting to kill him (defendant) and either abduct or kill the children; and

(3) their grandfather and their mother had molested them.

Moreover, defendant does not deny that the evidence before the jury would have allowed the jury to reasonably conclude that these things he told the children were false. Thus, given the nature of defendant’s convictions, he is essentially arguing that he had a constitutional right to willfully inflict unjustifiable mental suffering on his children by falsely telling them that their mother and grandfather were both child molesters, that they themselves had been molested by their mother, and that their grandfather was the leader of a satanic cult that was plotting to kill their father and kidnap or kill the children. None of the cases he cites, however, comes close to supporting this proposition.

In Emery v. Emery (1955) 45 Cal.2d 421 [289 P.2d 218], in the course of explaining why “an unemancipated minor may sue his parent for a wilful or malicious tort,” our Supreme Court stated that “[s]ince the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right wilfully to inflict personal injuries beyond the limits of reasonable parental discipline. No sound public policy would be subserved by extending it beyond those limits. While it may seem repugnant to allow a minor to sue his parent, we think it more repugnant to leave a minor child without redress for the damage he has suffered by reason of his parent’s wilful or malicious misconduct. A child, like every other individual, has a right to freedom from such injury.” (Id. at pp. 429-430.)

Although Eme