People v. Flores

• Decision Date: 29 July 2016
• Docket Number: D069899
• Citation: 206 Cal.Rptr.3d 732,2 Cal.App.5th 855
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Erik Austin FLORES et al., Defendant and Appellant.

2 Cal.App.5th 855

206 Cal.Rptr.3d 732

The PEOPLE, Plaintiff and Respondent

v.Erik Austin FLORES et al., Defendant and Appellant.

D069899

Court of Appeal, Fourth District, Division 1, California.

Filed July 29, 2016

Athena Shudde, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Erik Austin Flores.

Gregory L. Cannon, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Mariah Rita Sugg.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.

McDONALD

, J.

Defendant Erik Flores is the father of three young children (John Doe 1, John Doe 2, and Jane Doe) who were the victims of the charged offenses. The information alleged that, between April 1, 2011, and June 5, 2014, Flores committed torture (Pen. Code, § 206

, count 3)¹ and child abuse (§ 273a, subd. (a), count 4) on Jane Doe. The information further alleged that, during that same period, Flores committed torture (§ 206

, count 7) and child abuse (§ 273a, subd. (a), count 8) on John Doe 2. The information further alleged that, during the same period, Flores committed child abuse (§ 273a, subd. (a), count 10) on John Doe 1. Finally, the information specifically alleged that Flores personally inflicted great bodily injury (§ 12022.7, subd. (d)) on the victims in connection with counts 4, 8 and 10.

Defendant Mariah Sugg had an “off-and-on” girlfriend relationship with Flores, and was separately charged with the same set of offenses against the same victims, but with differing windows of commission. The information alleged that, between December 1, 2012, and June 5, 2014, Sugg committed torture (§ 206

, count 1) and child abuse (§ 273a, subd. (a), count 2) on Jane Doe. The information further alleged that Sugg committed torture (§ 206, count 5) and child abuse (§ 273a, subd. (a), count 6) on John Doe 2. The information further alleged Sugg committed child abuse (§ 273a, subd. (a), count 9) on John Doe 1. Finally, the information specifically alleged that Sugg personally inflicted great bodily injury (§ 12022.7, subd. (d)) on the victims in connection with counts 2, 6 and 9.

The jury convicted Flores and Sugg on all counts, and found true the allegations Sugg personally inflicted great bodily injury in connection with counts 2 and 6 and that Flores personally inflicted great bodily injury in connection with counts 4 and 8. The court sentenced each defendant to two life terms plus six years, and imposed but stayed the sentence on the remaining convictions and true findings.

On appeal, Flores argues the court prejudicially erred by instructing the jury it could return guilty verdicts on the torture counts as an aider and abettor of Sugg under the natural and probable consequences doctrine. He also asserts the evidence was insufficient to support the torture convictions because there was no evidence either he or Sugg had the specific intent to cause cruel or extreme pain or suffering for the purposes of revenge, persuasion or any sadistic purpose.² In Sugg's separate appeal, she claims section 273a, subdivision (a), is unconstitutional based on vagueness and, alternatively, that the court was sua sponte required to instruct that the jury could not find her guilty of violating section 273a under the “willfully ... permits” prong of that statute unless the jury found she had a duty to control Flores's conduct.

FACTS³

A. Background

Flores is the father of John Doe 1, John Doe 2, and Jane Doe. The children's biological mother left Flores and took the children with her to Oregon in September 2011, but a few months later she sent the children to live with Flores because she had no money and was unable to care for them. She expected that it would be a temporary placement and that she would take the children back after she found a good job.

Flores was living with Janice N. (his then-girlfriend) and Janice's mother (Claudia) when the children were sent to live with him. Because Flores and Janice were homeless but Janice had a job, Flores would drive Janice to work and then take the children to the park, and they would return to Claudia's home after Janice finished work. Claudia noticed the children always returned home hungry, and she asked Flores on several occasions whether the children ate during the day, but Flores responded angrily by telling her, “Don't tell me f– – – what to do with my kids, what to feed my kids.”

Janice's aunt and uncle, Jose and Erika, also saw that Flores's children were skinny, hungry, dirty and neglected. Jose offered them food every time he saw them, and they would eat over and over again, consuming as much as possible. When Jose offered the children food while Flores was present, the children would ask Flores for permission to eat, which Jose thought was unusual. When he learned Flores, Janice and the children were living out of their car, Jose offered to let the children stay with him and his wife, and Flores accepted. The children lived with Jose and his wife for a couple of months beginning around April 2012. The children were pale and hungry when they came to live with Jose, and ate “a lot” during the months they lived with him. One day, while changing Jane Doe's diaper, Claudia noticed her genital area looked very red and swollen, and they suspected there had been sexual abuse, but made no report of the suspected abuse until later.⁴

Jose wanted to keep the children but ultimately had to return them after Flores called police and claimed Jose had kidnapped them. When police came to Jose's home, Jose did not mention the suspected sexual abuse but did say the children were not ready to go home because Flores had no home, but police told Jose that Flores was the father and could take the children. Jose reported the suspected sexual abuse after Flores removed the children from Jose's home.

B. Flores's Relationship With Sugg

By the summer of 2012, after Flores regained custody of his children from Jose, he and his children had moved to Hesperia, California. A social worker, apparently responding to Jose's report of possible abuse, visited the children at Flores's mother's home sometime in May 2012 to investigate the condition of the children. When the social worker visited them, they appeared healthy. After a few follow-up visits that summer, including one after Flores and the children moved in with Sugg, the social worker closed the case.

Flores was involved in an “off-and-on” romantic relationship with Sugg. By August of 2012, Flores and the children had moved in with Sugg, and they were living with Sugg when the authorities finally intervened in June 2014 to remove the children from their care.⁵

C. The 2014 Reports and Actions

Sonia Jorge worked as a clerk at a grocery store in Hesperia, California. Beginning sometime in the first quarter of 2014, Jorge noticed Sugg (accompanied by a small boy and small girl) frequenting the store on Mondays. Both children were “so skinny” they were “almost bones.” On one occasion, the girl's forehead was bruised

and the boy had a black eye. Another employee asked Sugg if she could give the children some change. When the children lifted their hands to accept the change, they were looking at Sugg and their hands were shaking. Jorge also offered the children a cookie, but Sugg refused the offer, saying they could not have cookies because they would make a mess in the car. Jorge responded she was sure they were good kids, but Sugg said they were only good around other people and told Jorge she could take the children. Jorge telephoned the Department of Children's Services (DCS) and reported the bruising she had seen and provided DCS with Sugg's license plate number, but DCS did not follow up on that report.

In May 2014 Sugg and Flores went to a beauty school to enroll Sugg in a program offered at the school. They were accompanied by Jane Doe and John Doe 2. The school director, Ms. Armas, saw the children were so thin their skin hung off their arms and they were able to sit side by side in a normal chair. She tried to talk to the children, but they “had no energy whatsoever.” John Doe's eyes were dark and sunken, and he had dark circles under his eyes. He also had bruises on his forehead and shins, and his skin had no color.⁶

Armas telephoned the San Bernardino County Department of Children and Family Services and reported Flores and Sugg, and told the authorities the children looked malnourished, emaciated, and looked as though they'd been in a concentration camp. Ms. Jones, a social services worker, went to Sugg's home on May 22, 2014, to investigate the report, but Sugg told her that Flores was not home and said Jones would need Flores's permission to have contact with the children. Jones returned a week later, after obtaining Flores's permission, and saw the children in their backyard. John Doe 2 and Jane Doe appeared thin, and Jane Doe (then four years old) was wearing a diaper and not speaking. Sugg told Jones they received food stamps and WIC nutrition money for Jane Doe, and Jones checked and found there was adequate food in the house. Sugg told Jones that Sugg cared for the children during the day while Flores was in school, and claimed she fed the children during the day and typically at night. Jones told Sugg a public health nurse would be coming to their home.

Jones spoke with the nurse on June 5, 2014, who expressed concerns about possible malnourishment. Jones contacted Flores and told him he needed to get the children to a doctor as soon as possible. After several conversations, he told Jones he could not get an appointment until the end of June. Jones was uncomfortable with that timetable but Flores became upset at her insistence that immediate action was required and demanded to talk to a supervisor. That request was accommodated, and Flores then called Jones...