P. v. Andrews

 

 

 

 

 

 

 

 

Filed 9/11/13  P. v. Andrews 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NOT TO BE PUBLISHED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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

(Trinity)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   JUDITH D. ANDREWS,                           Defendant and Appellant.

C071899   (Super. Ct. No. 11F147)

 

 

            In this case defendant Judith D.
Andrews drove a three year old and a 10 month old in her car without car
seats.  The information charged defendant
with two counts of felony child endangerment,
but the information described the offenses as misdemeanor child endangerment
(felony child endangerment is that likely to produce great bodily injury or
death but the misdemeanor offense omits that requirement).  The jury instruction similarly listed the
elements only for misdemeanor child endangerment and the jury so found. 
At sentencing, the trial court reduced the convictions to misdemeanor child
endangerment and placed defendant on four years’ informal probation. 

             We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

            On August 4, 2011, social workers from the Trinity County
Health and Human Services, Child Protective Services (CPS) sought to serve
warrants to remove the three year old and the 10 month old from their mother
and place them in protective custody. 
The two social workers, Nicole Hays-Bradford and Elizabeth Hamilton,
believed the children were staying with their great-grandmother,
defendant.  They went to the mother’s
home with Trinity County Sherriff’s Deputy William Robles.  Mother told them the children were with her
mother (the children’s grandmother), and with her grandmother (who was
defendant and the children’s great-grandmother), who were all on the way back
to the campground where defendant was staying.

            The social workers left the mother’s
residence and spotted defendant in the driver’s seat of her car, which was
parked by a supermarket.  Grandmother was
leaving the market very quickly with the three year old and a bag of
groceries.  She put the three year old in
the backseat and then got into the front passenger seat next to defendant.  There was no upright car seat for the three
year old in the backseat.

            As defendant drove out of the
parking lot and headed west on State Route 299, she recognized the two social
workers.  Defendant stopped at a stop
sign, but when the car in front of her turned left, she rolled through the stop
and followed, making a left turn behind the car in front of her.  This caused defendant’s tires to squeal and
another vehicle had to swerve to avoid her. 


            The CPS workers followed defendant
and notified Deputy Robles, who activated his lights and siren and drove to the
location.  When Deputy Robles got within
a car length of defendant, she was going about 60 miles per hour in a
55-miles-per-hour zone, and less than one car length behind the car in front of
her.  Defendant was “darting back and
forth, left and right, in her lane several times.”  Defendant aggressively slammed on the brakes
and the accelerator as she apparently tried to pass the vehicle in front of
her.  Defendant pulled over a few miles
later.  The three year old was turned
around on his knees looking at the officer out the back window; he was not in a
car seat or wearing a seat belt.  The ten
month old was in the backseat in an infant carrier that was not restrained by
seat belts. 

            Testifying in her defense, defendant
said the infant seat was put in her car by the children’s aunt, and she assumed
that the aunt properly attached the seat to the car.  Defendant knew that the children’s
grandmother properly buckled the three year old into his seat belt.  

            The charges of child endangerment
were based on defendant’s act of driving with the two small children while they
were not properly placed in child seat restraints.  Defendant was charged in two counts with “a
felony, to wit:  a violation of  ADDIN
BA xc <@st> xl 44 s GHPYCO000028 l "Section 273a(a) of the
California Penal Code" Section 273a(a) of the California Penal
Code.”  Both counts provided an identical
definition of the charged offense, that defendant “having the care and custody”
of the three year old (count one) and the ten month old (count two), “under
circumstances and conditions other than those likely to produce great bodily
injury and death, did willfully cause and permit the person and health of said
child to be injured and did willfully cause and permit said child to be placed
in such a situation that its person and health may be endangered.”

            Because felony child endangerment requires the child to be endangered under
circumstances or conditions “likely >to produce great bodily harm or death”  (Pen. Code,href="#_ftn1"
name="_ftnref1" title="">[1] § 273a, subd. (a)) the information
described misdemeanor child
endangerment, an offense not requiring a likelihood of great bodily harm or
death (§ 273a, subd. (b)). When the trial court reduced both counts from
felonies to misdemeanors, it, in effect, conformed the proof at trial to the
allegations in the information.

            This straightforward result has been
challenged by defendant who raises a myriad of unmeritorious claims.  Thus, we affirm.

DISCUSSION

I

Child
Endangerment Instruction

            The trial court gave a modified
version of the felony child endangerment instruction (CALCRIM No. 821) which
omitted the reference to “under
circumstances or conditions likely to produce great bodily harm or death.”  By this modification, the jury was not
instructed on felony child endangerment at all. 
The defendant claims this was reversible error.  While it was error if the offense charged was actually felony child endangerment,
the People claim any error was harmless because defendant’s convictions were
reduced to misdemeanor violations of section 273a.  The People are correct and the defendant’s
argument is frivolous.

II

Other
Jury Instructions

            Defendant contends instructions on
the elements of child endangerment, criminal negligence, and  ADDIN
BA xc <@st> xl 26 s GHPYCO000001 l "Vehicle Code section
27360" Vehicle Code section 27360 combined to
create an impermissible presumption of guilt. 
We disagree.

            The trial court gave the standard
jury instruction on the required union of act and general criminal intent,  ADDIN
BA xc <@trt> xl 16 s GHPYCO000002 l "CALCRIM No. 250:" CALCRIM No. 250, as follows:  “The crime[s] charged in this case require[s]
proof of the union, or joint operation, of the act and wrongful intent.  [¶] 
For you to find a person guilty of the crime[s], that person must not
only commit the prohibited act [or fail to do the required act], but must do so
with wrongful intent.  A person acts with
wrongful intent when he or she intentionally does a prohibited act [or fails to
do a required act]; however, it is not required that he or she intend to break
the law.  The act required is explained
in the instruction for that crime.” 

            The jury was also given a modified
version of the standard instruction on the union of act and href="http://www.fearnotlaw.com/">criminal
negligence,  ADDIN
BA xc <@trt> xl 16 s GHPYCO000003 l "CALCRIM No. 253:" CALCRIM No. 253, as follows:  “For you to find a person guilty of the
crime[s], a person must do an act [or fail to do an act] with negligence.  Negligence is defined in the instructions for
that crime.” 

            The trial court instructed on child
endangerment with the following modified version of the standard instruction,  ADDIN
BA xc <@trt> xl 16 s GHPYCO000005 l "CALCRIM No. 821:" CALCRIM No. 821, as follows:

            “The defendant is charged [in counts
1 & 2] with child endangerment [in violation of  ADDIN
BA xc <@st> xl 18 s GHPYCO000006 l "Penal Code 273a(a)" Penal Code section 273a(a)].  [¶]  To
prove the defendant is guilty of this crime, the People must prove that:  [¶] 
[1. The defendant, while having care or custody of a child, willfully
caused or permitted the child to be placed in a situation where the child’s
person or health was endangered]; 
[¶]  [AND]  [2. The defendant caused or permitted the
child to be endangered];  [¶]  [AND] 
[3. The defendant was criminally negligent when she caused or permitted
the child to be endangered].  [¶]  A child is any person under the age of 18
years.  [¶]  Criminal negligence involves more than
ordinary carelessness, inattention, or mistake in judgment.  A person acts with criminal negligence when:  [¶] 1. He or she acts in a reckless way
that is a gross departure from the way an ordinarily careful person would act
in the same situation;  [¶]  2. The person’s acts amount to disregard for
human life or indifference to the consequences of his or her acts,  [¶] 
AND  [¶] 3. A reasonable person
would have known that acting in that way would naturally and probably result in
harm to others.”

            Defendant notes this instruction
omits the definition of “willfully” provided in  ADDIN
BA xc <@trt> xl 15 s GHPYCO000007 l "CALCRIM No. 821" CALCRIM No. 821.href="#_ftn2" name="_ftnref2" title="">[2] 

            Immediately after the modified  ADDIN
BA xc <@$trt> xl 15 s GHPYCO000007 CALCRIM No. 821, the trial court properly
instructed the jury on  ADDIN
BA xc <@$st> xl 26 s GHPYCO000001 Vehicle Code section 27360, an infraction,
as to when a child must be put in a car seat.

            “On review, we examine the jury
instructions as a whole, in light of the trial record, to determine whether it
is reasonably likely the jury understood the challenged instruction in a way
that undermined the presumption of innocence or tended to relieve the
prosecution of the burden to prove defendant’s guilt beyond a reasonable
doubt.  [Citation.]”  ( ADDIN BA xc <@cs> xl 49 s
GHPYCO000008 xhfl Rep xpl 1 l "People
v. Paysinger(2009) 174 Cal.App.4th 26" People
v. Paysinger (2009) 174 Cal.App.4th 26, 30.)  Since defendant did not object to the
instructions, her contention is forfeited unless the instruction affected her
substantial rights.  ( ADDIN BA xc <@st> xl 17 s
GHPYCO000010 xpl 1 l "Pen. Code, § 1259" § 1259;  ADDIN
BA xc <@cs> xl 57 s GHPYCO000011 xhfl Rep l ">People v. Christopher(2006)
137 Cal.App.4th 418" People
v. Christopher (2006) 137 Cal.App.4th 418, 426-427.)  Substantial rights are equated with a
miscarriage of justice, which results if it is reasonably probable the
defendant would have obtained a more favorable result had the instruction been
given.  ( ADDIN BA xc <@$cs> xl 34 s
GHPYCO000011 xhfl XRef xpl 1 Christopher,> at pp. 426-427;  ADDIN
BA xc <@cs> xl 46 s GHPYCO000012 xhfl Rep xpl 1 l ">People v. Watson(1956) 46
Cal.2d 818" People
v. Watson (1956) 46 Cal.2d 818, 835-836.)

            Defendant claims the trial court’s
modifications of  ADDIN BA xc <@trt> xl 24 s
GHPYCO000013 l "CALCRIM Nos. 253 and 821" CALCRIM Nos. 253 and 821 constituted
prejudicial error by allowing the jury to find defendant guilty based on
ordinary negligence rather than criminal negligence, and by failing to define
the term “willfully,” a term she asserts “is critical to the jury’s
understanding of the offense.”  She
further claims the instruction on  ADDIN
BA xc <@$st> xl 26 s GHPYCO000001 Vehicle Code section 27360 was incorrect,
misleading, and when combined with the other two alleged instructional errors,
would lead the jury to impermissibly presume guilt from a violation of that
statute.

            Defendant is correct that she could
not be convicted on a finding of ordinary negligence because criminal
negligence involves “ â€˜ â€œa higher degree of negligence than is
required to establish negligent default on a mere civil
issue.” â€™ â€  ( ADDIN BA xc <@cs> xl 43 s
GHPYCO000014 xhfl Rep xpl 1 l "People
v. Valdez(2002) 27 Cal.4th 778" People
v. Valdez (2002) 27 Cal.4th 778, 788.) 
Read in isolation, the trial court’s version of  ADDIN
BA xc <@$trt> xl 15 s GHPYCO000004 CALCRIM No. 253 could induce the jury to
apply the incorrect standard of negligence. 
The problem with defendant’s contention is that this instruction cannot
be read in isolation.  In addition, the
instruction here specifically informs the jury that “[n]egligence is defined in
the instructions on that crime.”  The
instruction on the only charged crime, the modified  ADDIN
BA xc <@$trt> xl 15 s GHPYCO000007 CALCRIM No. 821, instructed the jury that it
must find defendant “criminally negligent” in order to convict and then gave
the standard instruction on criminal negligence.href="#_ftn3"
name="_ftnref3" title="">[3]  Read
in their proper context, the instructions correctly instructed the jury that it
had to find defendant criminally negligent in order to find her guilty.  The modification of  ADDIN
BA xc <@$trt> xl 15 s GHPYCO000004 CALCRIM No. 253 was not erroneous.

            Defendant’s contention that the
trial court should have defined the term “willfully” in its version of  ADDIN
BA xc <@$trt> xl 15 s GHPYCO000007 CALCRIM No. 821 is equally unavailing.

            “In general the trial court has a href="http://www.mcmillanlaw.com/">sua
sponte duty to give amplifying or clarifying
instructions ‘ â€œwhere the terms used [in an instruction] have a technical
meaning peculiar to the law.” â€™ â€ 
(
ADDIN BA xc <@cs> xl 49 s GHPYCO000015 xhfl Rep xpl 1 l ">People v. Richie(1994) 28
Cal.App.4th 1347" People
v. Richie (1994) 28 Cal.App.4th 1347, 1360 ( ADDIN BA xc <@$cs> xl 6 s
GHPYCO000015 xpl 2 Richie).)  “When a term is commonly understood by those
familiar with the English language and is not used in a technical sense
peculiar to the law, an instruction as to its meaning is not required in the
absence of a request.”  ( ADDIN BA xc <@cs> xl 46 s
GHPYCO000016 xhfl Rep xpl 1 l "People
v. Williams(1988) 45 Cal.3d 1268" People
v. Williams (1988) 45 Cal.3d 1268, 1314.)

            In  ADDIN
BA xc <@$cs> xl 6 s GHPYCO000015 Richie, the defendant was convicted
of violating Vehicle Code  ADDIN
BA xc <@$st> xl 14 s GHPYCO000018 section 2800.2, which prohibits evading a
pursuing peace officer with “a willful or wanton disregard for the safety of
persons or property.”  (Veh. Code,  ADDIN
BA xc <@osdv> xl 19 s GHPYCO000037 xpl 1 l "§ 2800.2,
subd. (a)" § 2800.2, subd. (a);  ADDIN
BA xc <@$cs> xl 47 s GHPYCO000015 xhfl Rep xpl 1 Richie, supra,
28 Cal.App.4th at pp. 1351, 1353.) 
The jury was given a modified version of the standard instruction at the
time,  ADDIN BA xc <@trt> xl 16 s
GHPYCO000017 l "CALJIC No. 12.85" CALJIC No. 12.85, which stated that the
People must prove the defendant “drove the vehicle in a willful and wanton
disregard for the safety of persons or property,” but did not further define
willful or wanton.  ( ADDIN BA xc <@$cs> xl 25 s
GHPYCO000015 xhfl Rep xpl 1 Richie, at pp. 1353-1354 & fn. 1.)  Defendant argued on appeal the trial court
committed reversible error by failing to define the terms “willful” and
“wanton.”  ( ADDIN BA xc <@$id> xl 14 s ID
xhfl Rep xpl 1 Id. at p. 1360.)

            The Court of Appeal rejected the
contention.  ( ADDIN BA xc <@$cs> xl 40 s
GHPYCO000015 xhfl Rep xpl 1 Richie, supra, 28 Cal.App.4th at p. 1362.)  The dictionary defined “willful” as:  “ â€˜1: 
obstinately and often perversely self-willed 2:  done deliberately:  Intentional’ â€;
and “wanton” as:  “ â€˜3a:  Merciless,
Inhumane . . . b:  having no just foundation or
provocation:  Malicious.’ â€  ( ADDIN BA xc <@$cs> xl 18 s
GHPYCO000015 xhfl Rep xpl 1 Richie, at p. 1361, quoting Webster’s New
Collegiate Dict. (1977) pp. 1341, 1318.) 
There was no different technical legal definition of those terms.   ADDIN
BA xc <@$trt> xl 16 s GHPYCO000017 CALJIC No. 12.85 defined “ ‘willful and
wanton;’ ” as “ â€˜an intentional and conscious disregard for the safety of
. . . persons or property.  It
does not necessarily include an intent to injure.’ â€  ( ADDIN BA xc <@$cs> xl 18 s
GHPYCO000015 xhfl Rep xpl 1 Richie, at p. 1361, quoting  ADDIN
BA xc <@$trt> xl 16 s GHPYCO000017 xqt xpl 1 CALJIC No. 12.85.)  This definition was taken from a decision
that defined “ â€˜willful’ . . . as ‘intentional’ and . . .
‘wanton’ as . . . ‘includ[ing] the elements of consciousness of one’s
conduct, intent to do or omit the act in question, . . . and reckless
disregard of consequences.’ â€  ( ADDIN BA xc <@$cs> xl 18 s
GHPYCO000015 xhfl Rep xpl 1 Richie, at p. 1361.) 
There was also no meaningful distinction between the dictionary
definition of those terms and their meaning in  ADDIN
BA xc <@st> xl 27 s GHPYCO000018 l "Vehicle Code section
2800.2" Vehicle Code section 2800.2.  ( ADDIN BA xc <@$cs> xl 18 s
GHPYCO000015 xhfl Rep xpl 1 Richie, at p. 1361.)

            Agreeing with  ADDIN
BA xc <@$cs> xl 6 s GHPYCO000015 Richie,
we find “willfully” is not a technical term which requires further
explanation.  Since defendant did not
request further explanation of the term, no additional instruction was required.

            The trial court gave the following
instruction on  ADDIN BA xc <@st> xl 27 s
GHPYCO000019 l "Vehicle Code section 27360:" Vehicle Code section 27360:  “ ADDIN BA xc <@$st> xl 26 s
GHPYCO000001 A driver shall not transport on a highway in
a motor vehicle a child who is under eight years of age, without properly
securing that child in the rear seat without an appropriate child passenger
restraint system.” 

            Defendant first contends that the
instruction applies the wrong version of the statute.  The instruction uses the language of the most
recent version of  ADDIN BA xc <@$st> xl 26 s
GHPYCO000001 Vehicle Code section 27360, which became
effective on January 1, 2012, after the incident at issue in this
case.  At the time of the incident,  ADDIN
BA xc <@$st> xl 26 s GHPYCO000001 Vehicle Code section 27360 stated in
pertinent part:  “A driver may not
transport on a highway a child in a motor vehicle . . . without
properly securing the child in a rear seat in a child passenger restraint
system meeting applicable federal motor safety standards, unless the child is
one of the following:  [¶]  (a)  Six years of age or older. [¶]  (b)
Sixty pounds or more.”  (Former  ADDIN
BA xc <@$st> xl 18 s GHPYCO000001 xpl 1 Veh. Code, § 27360.)

            Defendant claims the older version
of  ADDIN BA xc <@$st> xl 26 s
GHPYCO000001 Vehicle Code section 27360 meaningfully
differs from the version given in the instruction by using the term “may not”
rather than “shall not,” and by covering children under the age of six rather
than children under eight years old. 
Neither difference is meaningful. 
This is another frivolous argument. 
Also, since the children in this case were three years old and 10 months
old, both versions of  ADDIN
BA xc <@$st> xl 26 s GHPYCO000001 Vehicle Code section 27360 applied to the
children in defendant’s car.

            Finally, defendant finds the
instruction “did not have any direct application to the legal issues to be
decided in the case.”  ADDIN
BA xc <@$st> xl 26 s GHPYCO000001  She
is wrong.  This instruction informed the
jury of the legal duty of a driver to properly secure small children with
appropriate child passenger restraint systems, upon which a claim of negligent
conduct is based.    Defendant claims
this instruction informed the jury that it could “conflate the strict liability
of the traffic infraction with the intent required for a violation of the child
abuse statute.”  According to defendant,
when combined with the allegedly erroneous modifications of  ADDIN
BA xc <@trt> xl 24 s GHPYCO000020 l "CALCRIM Nos. 821 and
253" CALCRIM Nos. 821 and 253, a burden was
created that shifted the presumption of guilt. 
She is wrong.  This instruction
did not create the risk of a presumption of guilt or the jury ignoring the
instructions on the mental element of child endangerment.

III

Sufficiency
Of The Evidence

            Defendant claims there is
insufficient evidence to support convictions for felony or misdemeanor child
endangerment.

            In addressing a challenge to the
sufficiency of the evidence, we view the entire record in the light most
favorable to the judgment and presume in support of the judgment the existence
of every fact that the jury reasonably could deduce from the evidence.  ( ADDIN BA xc <@cs> xl 47 s GHPYCO000033
xhfl Rep xpl 1 l "People v.
Golde(2008) 163 Cal.App.4th 101" People
v. Golde (2008) 163 Cal.App.4th 101, 108.)  Since defendant is convicted of misdemeanor
child endangerment, we review the sufficiency of the evidence to support her
conviction for that offense.  As relevant
here, misdemeanor child endangerment is willfully causing or permitting a child
to be placed in a situation where his or her person or health may be endangered
“under circumstances or conditions other than those likely to produce great
bodily harm or death.”  ( ADDIN BA xc <@$osdv> xl 17 s
GHPYCO000042 xpl 1 § 273a, subd. (b).) 

            The evidence shows that defendant
drove dangerously.  As she tried to avoid
CPS and law enforcement, defendant rolled through a stop sign causing another
vehicle to swerve out of her way, she exceeded the speed limit, and she swerved
in her lane while her 10-month-old and three-year-old great-grandchildren were
in the backseat.  Witnesses testified that
the person who put the three year old in the backseat did not take enough time
to secure the child before defendant drove off. 
In addition, there was no child restraint for the three year old and he
was not in a seat belt after the stop. 
While the 10 month old was in an infant carrier, it was not attached to
the car.  Since defendant was the driver,
it was her duty to properly secure the children.  At a minimum, she knew or reasonably should
have known that the children were not secured in the backseat.  Defendant’s claim that she thought the
children were secured was not a defense. 
In any event, the claim was based on her own testimony, which the jury
was free to disregard.

            Defendant’s driving put the children
at risk of being in an auto accident. 
Her vehicle could have been hit had the other car not swerved when
defendant rolled through the stop sign. 
Speeding, swerving in the lane, and tailgating likewise placed the
children in her care at a significantly higher risk of being in an accident.  Doing so while she knew or reasonably should
have known that the children were not secured was criminally negligent and
endangered her great-grandchildren’s health. 
Substantial evidence supports defendant’s convictions for misdemeanor
child endangerment.

IV

Cumulative
Error

            Defendant contends that cumulative
error warrants reversal.  Given the
result of convictions for misdemeanor child endangerment, there was, in fact,
no error.

DISPOSITION

>            The
judgment is affirmed.

 

 

 

                                                                                       ROBIE          , J.

 

 

 

We concur:

 

 

 

          RAYE           , P. J.

 

 

 

          NICHOLSON      , J.