P. v. Kao

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Filed 5/8/07 P. v. Kao CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
WEILI KAO,
Defendant and Appellant.
C050639
(Super. Ct. No.
04F04427)
A jury convicted defendant Weili Kao of three counts of
corporal injury to a child (counts two through four) and one
count of willful harm to a child (count five) as the result of
defendant’s physical assault upon her stepdaughter, T.L. (Pen.
Code, §§ 273a, subd. (a), 273d, subd. (a); further section
references are to the Penal Code.) The jury also found that
defendant inflicted great bodily injury in the commission of
counts two and three, and that she used a deadly or dangerous
weapon in the commission of count four. (§§ 12022, subd.
(b)(1), 12022.7, subds. (a) & (b).) It was unable to reach

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a verdict on the charge that defendant tortured T.L. within
the meaning of section 206.
Defendant was sentenced to an aggregate term of 16 years
and 4 months in state prison. On appeal, she challenges the
sufficiency of the evidence and raises various sentencing errors.
On October 23, 2006, we affirmed the judgment. On January 3,
2007, the California Supreme Court denied defendant’s petition for
review “without prejudice to any relief to which defendant might
be entitled after the United States Supreme Court determines in
Cunningham v. California, No. 05-6551, the effect of Blakely v.
Washington (2004) 542 U.S. 296 and United States v. Booker (2005)
543 U.S. 220, on California law.”
After the United States Supreme Court issued its decision
in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]
(hereafter Cunningham), we granted defendant’s motion to recall
the remittitur and file a supplemental brief addressing Cunningham
issues only.
We now agree only with defendant’s contention that imposition
of the upper term on her conviction for corporal injury to a child
violated the Sixth Amendment to the United States Constitution
because it was based on a fact not tried to the jury and proved
beyond a reasonable doubt. However, because the error was
harmless beyond a reasonable doubt, we shall affirm the judgment.
FACTS
Defendant, who was born and raised in Taiwan, married
Thomas L. in 2001 and became a stepmother to his young daughter,
T.L. Thomas’s previous wife died of cancer when T.L. was around

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two years old. Thomas and defendant had a daughter together,
and defendant stayed home to care for the two girls.
On May 11, 2004, defendant beat and strangled six-year-old
T.L. into a persistent vegetative state when defendant became
enraged by T.L.’s dishonesty and disobedience.
According to defense witnesses, which included several family
members and church associates, defendant’s violent outburst was
uncharacteristic because she loved T.L. and was a very caring
person. Various psychotherapists testified the episode likely
was the result of defendant’s own abusive upbringing; her rigid
culturally-influenced attitudes about her role as a wife and mother
and a child’s duty to unquestioningly obey parental authority; and
defendant’s mental problems, including depression and possibly
post-traumatic stress syndrome. According to them, these and
other factors culminated in her explosion into an atypical rage
on the night in question.
Whether or not defendant’s behavior was out of character is
irrelevant to the tragic consequences suffered by T.L. Defendant’s
statement to Detective Charles Husted revealed that she completely
overreacted to behavior that is typical of a six-year-old child.
The statement recounted the following events:
Around 9:00 p.m., defendant observed T.L. grab or push her
younger sister, who was 16 months old. When defendant questioned
T.L. about what had happened, T.L. lied and stated she had been
playing with a stuffed animal. Defendant confronted T.L. about
the lie, spanked her repeatedly on the buttocks and hands, slapped
her across the face four or five times, and pulled on her ears.

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After T.L. apologized for lying, they hugged and defendant then
sent the child to stand in the bathroom for a time-out.
When Thomas telephoned defendant around 10:00 p.m., she did
not mention punishing T.L. After the phone call, defendant went
to check on T.L., who had been in the bathroom about an hour.
T.L. was sitting down rather than standing up as defendant had
instructed her. Because defendant did not want to wake the baby,
who was sleeping in a room near the bathroom, defendant hauled
T.L. by the neck to the master bedroom walk-in closet. Defendant
scolded T.L. and when she did not receive a satisfactory response,
defendant spanked the child five or six times on the buttocks with
a plastic hanger, breaking the hanger in the process.
Still angry, defendant continued to press T.L. about her
lying and asked, “What if I told you I won’t push you again,
but I did? I lied to you. I’m lying to you. How do you feel?”
Defendant pushed T.L., who fell to the floor and hit her head.
Defendant heard a big bump and T.L. said it hurt. Defendant
made the girl stand up and then pushed her to the floor again.
T.L. blinked her eyes and then closed them. T.L. did not wake up
despite defendant’s repeated attempts to arouse her. Defendant
assumed T.L. had fallen asleep from exhaustion or was pretending
to be asleep so that she did not have to deal with defendant.
Defendant carried T.L. to bed and covered her with a blanket.
Although defendant claimed that she did not realize T.L. was
unconscious, her claim is belied by the fact she put a diaper
on the six-year-old child to ensure that she did not wet the bed.

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Defendant checked on T.L. twice during the night. When she
was still unresponsive at 6:00 a.m. the next morning, defendant
called a friend in New Jersey, who suggested that defendant call
someone who lived closer. Defendant telephoned a woman, who
attended the same church in Oakland. The woman told defendant
to take T.L. to the hospital immediately.
Upon her arrival at the emergency room, T.L. was lethargic
and limp, her eyes were closed, and her breathing was shallow.
Defendant admitted hitting T.L. and asked a nurse not to call
social services. Detective Husted responded to a child abuse
call and interviewed defendant later that day, during which she
made the statements we have summarized above.
Dr. Angela Rosas, a pediatrician specializing in child abuse
cases, examined T.L., who was comatose, completely unresponsive
even to painful stimuli, and on a ventilator. Her pupils were
fixed and dilated, indicating serious injury to the deep parts of
her brain. T.L. had multiple bruises and injuries all over her
body, including small bruises called petechiae on her face, neck,
chest and shoulders, bleeding from her mouth, bruises on both ears,
abrasions to her lips, and multiple linear bruises on her lower
back and buttocks. The linear bruises were consistent with being
beaten forcefully with a hanger.
Dr. Rosas also observed petechiae and bruises around T.L.’s
neck and chin, consistent with grab marks and strangulation.
Her suspicions regarding strangulation were confirmed when she
reviewed the scans of T.L.’s brain, which disclosed a “classic”
asphyxiation injury. The scans showed swelling and severe oxygen

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deficit, which Rosas opined was caused by the compression and
obstruction of T.L.’s windpipe for around four to six minutes,
or by a partial obstruction for a longer period of time. All of
the child’s brain tissue was destroyed, except for the portion
that controlled her breathing. She was in a persistent vegetative
state. If T.L. had received medical care significantly earlier,
she would have had a better outcome.
According to Dr. Rosas, T.L. also had a moderate subdural
hematoma on the left side of her head. This is a collection of
blood between the brain and the surrounding casing, and is usually
caused by an impact injury. The injury was consistent with T.L.
hitting her head on the closet floor. In Rosas’s opinion, the
hematoma did not contribute to T.L.’s persistent vegetative state,
but it had contributed to her need to be hospitalized.
Dr. Rosas concluded that the strangulation occurred after
defendant beat T.L. with the hanger and pushed her to the ground.
This was so because if T.L. had been asphyxiated first, she would
not have been able to stand up for the beating or to be shoved to
the ground. According to Rosas, T.L. will never be able to see,
talk, hear, walk, or eat again.
When Detective Husted told defendant that it looked as if
someone had choked T.L., defendant admitted she had pulled T.L.
up from the floor with both hands around her neck, but she denied
that she had squeezed her neck.
The jury convicted defendant of three counts of corporal
injury to a child based on defendant beating T.L. with a hanger
(count four), causing a subdural hematoma when she pushed T.L. to

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the floor (count three), and asphyxiating T.L. until she almost
died (count two). The jury also convicted defendant of willful
harm to a child based on defendant’s failure to obtain medical
care for T.L. in a timely manner (count five).
DISCUSSION
I
Defendant contends that section 654 prohibits the imposition
of separate punishment on counts three and four, which involved the
corporal injury counts in which defendant beat T.L. with a hanger
and pushed her to the floor, causing a subdural hematoma. This
is so, according to defendant, because the acts occurred during
a continuous course of conduct pursuant to a single intent and
objective of punishing T.L. for lying.
“Section 654 provides that even though an act violates
more than one statute and thus constitutes more than one crime,
a defendant may not be punished multiple times for that single
act. [Citations.] The ‘act’ which invokes section 654 may be
a continuous ‘“course of conduct” . . . comprising an indivisible
transaction . . . .’ [Citation.] ‘The divisibility of a course
of conduct depends upon the intent and objective of the defendant.
. . . [I]f the evidence discloses that a defendant entertained
multiple criminal objectives which were independent of and not
merely incidental to each other, the trial court may impose
punishment for independent violations committed in pursuit of
each objective even though the violations shared common acts
or were parts of an otherwise indivisible course of conduct.’

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[Citations.]” (People v. Akins (1997) 56 Cal.App.4th 331, 338-
339.)
People v. Harrison (1989) 48 Cal.3d 321 (hereafter Harrison)
held that in connection with sex offenses, each sexual assault
may be viewed as a separately punishable criminal act even if the
defendant claims that all the offenses were committed to obtain
sexual gratification. The Supreme Court observed “that such a
‘broad and amorphous’ view of the single ‘intent’ or ‘objective’
needed to trigger [section 654] would impermissibly ‘reward the
defendant who has the greater criminal ambition with a lesser
punishment.’ [Citation.] Rather, in keeping with the statute’s
purpose, the proper view [is] to recognize that a ‘defendant who
attempts to achieve sexual gratification by committing a number
of base criminal acts on his victim is substantially more culpable
than a defendant who commits only one such act.’” (Harrison,
supra, 48 Cal.3d at pp. 335-336.)
The Harrison rule has been extended to sequential crimes of
violence. (People v. Trotter (1992) 7 Cal.App.4th 363, 366-368;
People v. Kwok (1998) 63 Cal.App.4th 1236, 1255-1257; People v.
Nubla (1999) 74 Cal.App.4th 719, 730-731.) “[W]hen a defendant
maintains one criminal objective he may be convicted and punished
for each successive crime of violence against the same victim.”
(People v. Kwok, supra, 63 Cal.App.4th at p. 1256.) This rule is
particularly applicable if the defendant had an opportunity to
reflect between offenses, and each successive offense creates a new
risk of harm. (People v. Trotter, supra, 7 Cal.App.4th at pp. 367-
368.)

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Defendant challenges the extension of Harrison to cases that
do not involve sexual offenses. A similar contention was rejected
in People v. Surdi (1995) 35 Cal.App.4th 685, which observed that
People v. Trotter, supra, 7 Cal.App.4th 363 was cited with approval
by the Supreme Court in People v. Latimer (1993) 5 Cal.4th 1203,
which did not question the validity of decisions finding consecutive,
and thus separate, intents, or finding different, if simultaneous,
intents. (People v. Latimer, supra, 5 Cal.4th at pp. 1211-1212,
1216; People v. Surdi, supra, 35 Cal.App.4th at p. 689, fn. 7.)
Accordingly, defendant’s contention is not persuasive.
“[T]his was not a case where only one volitional act gave rise
to multiple offenses.” (People v. Trotter, supra, 7 Cal.App.4th
at p. 368.) Nor was it a case where the commission of one crime
facilitated the commission of another. (See, e.g., Neal v. State
of California (1960) 55 Cal.2d 11, 19-20 [attempt to murder the
victim by committing arson].) Rather, this was a case where
defendant committed successive acts of violence against T.L.
between which she had time to pause and reflect about what she
was doing. First, defendant beat the small girl with a hanger
until the hanger broke. Then defendant scolded her for lying
before shoving her to the ground, causing the subdural hematoma.
Defendant said that she “talk[ed]” to T.L. after spanking her with
the hanger and before she shoved her -- which means that defendant
had ample time to reconsider before committing another act of
violence. Furthermore, the evidence supports a determination that
she harbored multiple intents, i.e., defendant (1) beat T.L. with
the hanger for her disobedience and defiance in not standing up

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during the hour-long time-out as defendant had instructed, and
then (2) shoved T.L. as punishment for lying.
“Whether the acts of which a defendant has been convicted
constitute an indivisible course of conduct is a question of
fact for the trial court, and the trial court’s findings will
not be disturbed on appeal if they are supported by substantial
evidence.” (Kwok, supra, 63 Cal.App.4th at pp. 1252-1253.)
Here, the trial court’s findings are supported by substantial
evidence.
II
Defendant challenges the great bodily injury enhancement
on count three, in which T.L. suffered a subdural hematoma.
Section 12022.7, subdivision (f) defines great bodily injury
as “a significant or substantial physical injury.” This “standard
contains no specific requirement that the victim suffer ‘permanent,’
‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of
bodily function.” (People v. Escobar (1992) 3 Cal.4th 740, 750
(hereafter Escobar).) However, the victim’s injury must exceed the
injury inherent in the substantive offense. (Id. at pp. 746-747,
749-750.) Thus, a section 12022.7 enhancement may not be imposed
where great bodily injury is an element of the offense. (People v.
Parrish (1985) 170 Cal.App.3d 336, 344.)
Section 273d states in pertinent part: “(a) Any person who
willfully inflicts upon a child any cruel or inhuman corporal
punishment or an injury resulting in a traumatic condition is
guilty of a felony . . . .” A traumatic condition is a wound
or other abnormal bodily condition, either minor or serious,

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resulting from the application of physical force. (People v.
Thomas (1976) 65 Cal.App.3d 854, 857; CALJIC No. 9.36.) Because
a traumatic condition may be minor or serious, it follows that
(1) great bodily injury is not an element of the substantive
offense, and (2) a section 12022.7 enhancement may be imposed
upon a section 273d, subdivision (a) conviction. (Cf. People v.
Chaffer (2003) 111 Cal.App.4th 1037, 1042 [construing “traumatic
condition” for purposes of section 273.5].)
Defendant argues, however, there is insufficient evidence
the moderate subdural hematoma T.L. suffered was the equivalent
of a great bodily injury rather than simply a traumatic condition.
According to defendant, “[s]aying a single bruise is ‘moderate’
in size does not raise it to the level of a serious or substantial
injury.”
Defendant minimizes the nature of the injury by ignoring the
location of the “bruise.” A moderate subdural hematoma is not the
equivalent of a medium-sized bruise on the shin. It involves
“bleeding about the brain.” According to Dr. Rosas, T.L. required
surgery to relieve the pressure on her brain that was caused by
the swelling from the strangulation and from the subdural hematoma
caused by the impact injury. Although the hematoma did not cause
T.L.’s vegetative state, it “contributed to her illness and the
reason why she was in the hospital.” It was a contributing factor
to T.L.’s coma, which was the condition T.L. experienced before
she progressed to a persistent vegetative state. If T.L. had
suffered only the hematoma, she would have recovered but would

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have required medical attention to “make sure that the blood
resolve[d].”
This evidence amply supports the finding that T.L. suffered
great bodily injury. For example, Escobar upheld a finding of
great bodily injury based upon a rape victim’s bloody knees,
vaginal soreness, abrasions, and painful neck. (Escobar, supra,
3 Cal.4th at pp. 744, 749-750.) Here, unlike the victim in
Escobar, T.L. is unable to speak. Thus, she cannot relate the
degree of pain she suffered from the subdural hematoma. However,
T.L.’s injury to her head, which involved internal bleeding and
required surgery and medical monitoring, was at least as severe as
the injuries suffered in Escobar. The section 12022.7 finding is
supported by substantial evidence. (Id. at p. 750 [a great bodily
injury finding must be upheld if it is supported by substantial
evidence, even if the circumstances might reasonably be reconciled
with a contrary finding].)
III
According to defendant, the trial court erred in imposing
consecutive sentences based on the aggravating factor that the
manner in which the crime was carried out indicated planning.
(Cal. Rules of Court, Rule 4.421(a)(8).) She claims the only
evidence of planning is that because she did not want to awaken
the baby, who was sleeping in a room nearby, she took T.L. into
the closet before punishing her. Defendant acknowledges that
her attorney failed to object on this ground at the sentencing
hearing. She asserts, however, that if this oversight results

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in the waiver of her claim, then she received ineffective
assistance of counsel.
As we will explain, because such an objection ultimately would
have proved futile, defense counsel was not incompetent for failing
to object to the trial court’s consideration of the challenged
aggravating factor. (People v. Mendoza (2000) 24 Cal.4th 130, 171;
People v. Constancio (1974) 42 Cal.App.3d 533, 546 [“It is not
incumbent upon trial counsel to advance meritless arguments or to
undertake useless procedural challenges merely to create a record
impregnable to assault for claimed inadequacy of counsel”].)
It does not matter whether defendant took T.L. to the closet,
so as not to awaken the baby as defendant contends, or whether she
took her there so that the neighbors could not hear T.L.’s screams,
as the People contend. Both scenarios support the trial court’s
finding of premeditation and planning. Defendant did not simply
erupt in an uncontrollable fit of rage and lash out at her six-
year-old stepdaughter after defendant found T.L. sitting in the
bathroom during the girl’s lengthy time-out. Rather, defendant
marched T.L. from the bathroom into the master bedroom closet with
the intent of privately administering physical punishment therein,
without being inconvenienced by awakening her sleeping child as
the result of T.L.’s foreseeably voluble resistance. The court’s
determination that this conduct demonstrated planning was not
arbitrary or irrational. (People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 977-978.)

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IV
Lastly, defendant correctly contends the trial court’s
imposition of the upper term on her conviction for corporal
injury to a child (count two) violated the Sixth Amendment to
the United States Constitution as interpreted in Apprendi v.
New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter
Apprendi), Blakely v. Washington, supra, 542 U.S. 296 [159
L.Ed.2d 403] (hereafter Blakely), and Cunningham, supra,
549 U.S. ___ [166 L.Ed.2d 856].
Apprendi held that other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
statutory maximum must be tried to a jury and proved beyond
a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147
L.Ed.2d at p. 455].) For this purpose, the statutory maximum is
the maximum sentence a court could impose based solely on facts
reflected by a jury’s verdict or admitted by the defendant; thus,
when a court’s authority to impose an enhanced sentence depends
upon additional fact findings, there is a right to a jury trial and
proof beyond a reasonable doubt on the additional facts. (Blakely,
supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
Accordingly, in Cunningham, supra, 549 U.S. at p. ___ [166
L.Ed.2d at p. 864], the United States Supreme Court held that by
“assign[ing] to the trial judge, not to the jury, authority to
find the facts that expose a defendant to an elevated ‘upper term’
sentence,” California’s determinate sentencing law “violates a
defendant’s right to trial by jury safeguarded by the Sixth and
Fourteenth Amendments.” (Ibid., overruling People v. Black (2005)

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35 Cal.4th 1238 on this point, vacated in Black v. California
(2007) __ U.S. __ [167 L.Ed.2d 36].)
Here, the trial court imposed the upper term in reliance
on the fact that defendant, who had no prior criminal history,
occupied a position of trust with respect to the victim. (Cal.
Rules of Court, rule 4.421(a)(11).) This judicial fact finding
violated defendant’s constitutional right to a jury trial.
(Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864]
[court could not rely on the particular vulnerability of the
victim where such fact was not submitted to, and found by, the
jury].)
However, “Apprendi error--that is, error in failing to submit
a punishment-increasing factual issue to the jury--is subject to
harmless error analysis under the beyond-a-reasonable-doubt test
of Chapman v. California [1967] 386 U.S. [18,] 23 [17 L.Ed.2d 705,
710]. [Citation.] Indeed, even when jury instructions completely
omit an element of a crime, and therefore deprive the jury of the
opportunity to make a finding on that element, a conviction may be
upheld under Chapman where there is no ‘record . . . evidence that
could rationally lead to a contrary finding’ with respect to that
element. [Citations.]” (People v. Davis (2005) 36 Cal.4th 510,
564; see also U.S. v. Zepeda-Martinez (9th Cir. 2006) 470 F.3d
909, 913 [Apprendi error is harmless where the record contains
overwhelming and uncontraverted evidence supporting the sentencing
factor].)
Here, there is overwhelming and uncontroverted evidence that
defendant, the stepmother and primary caregiver of the six-year-old

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victim, occupied and took advantage of a position of trust to commit
the crimes. T.L. was in defendant’s sole care when defendant changed
the little girl’s life forever, and had depended on defendant to keep
her safe. Defendant’s husband, Thomas, who was opposed to corporal
punishment, also depended on defendant and entrusted her with T.L.’s
safety in his absence. Unfortunately, defendant abused their trust
by dragging T.L. into a closet, severely beating her with a hanger,
pushing her to the floor where she hit her head, and failing to
obtain timely medical attention for T.L. when she became comatose.
Absent defendant’s position of trust, T.L. would not have submitted
to defendant’s punishments and Thomas would not have left his child
in defendant’s care. The error in failing to submit the sentencing
factor to the jury is harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
SCOTLAND , P.J.
We concur:
BLEASE , J.
MORRISON , J.

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