P. v. Pettie
Filed 7/14/09 P. v. Pettie CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. CANDIE LEE PETTIE, Defendant and Appellant. | E045607 (Super.Ct.No. BAF005683) O P I N I O N |
APPEAL from the Superior Court of Riverside County. Thomas C. Hastings, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Reversed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Candie Lee Pettie guilty as charged of two counts of indirect misdemeanor child endangerment (Pen. Code, 273a, subd. (b);[1]counts 1 and 2), based on an incident in which she left her two youngest children L. and J., ages three and five, in the care of her older daughter T., age 12. The jury found defendant not guilty of an additional charge of willfully resisting, delaying, or obstructing a peace officer in the discharge of his or her duties, a misdemeanor. ( 148, subd. (a)(1); count 3.) Defendant was placed on four years summary probation and appeals.
Defendant claims the trial court prejudicially erred in failing to instruct the jury sua sponte on a material element, namely, the mental state or criminal negligence element, of the indirect misdemeanor child endangerment charges in counts 1 and 2. She claims the jury had to find she acted with criminal negligence, not merely general criminal intent, in order to find her guilty of indirect misdemeanor child endangerment. The trial court redacted the language concerning criminal negligence from CALJIC No. 16.170, the instruction it gave defining misdemeanor child endangerment, and instead instructed the jury it had to find defendant acted with general criminal intent. The People concede the instructional error but argue it was harmless beyond a reasonable doubt.
We agree with defendant that the trial court had a duty to instruct sua sponte on criminal negligence in counts 1 and 2. We further conclude the error was not harmless beyond a reasonable doubt in view of the entire record, including the evidence, the erroneous instruction, and the not guilty verdict on count 3. Although substantial evidence showed defendant acted with criminal negligence, the jury could have found her guilty in counts 1 and 2 based on evidence she acted only with general criminal intent, a less stringent mens rea standard. Accordingly, we reverse the judgment.
II. BACKGROUND
A. Prosecution Evidence
1. Background
On Monday, May 21, 2007, defendant lived in a house in Banning with her three children, her daughter T., age 12, her daughter L., age three, and her son J., age five. T. and J. attended school while L. attended day care. Jeffrey was the father of T. and shared custody of T. with defendant. Nathaniel was the father of L. and J. Neither Jeffrey nor Nathaniel lived in the house. The house was a single story home with three bedrooms and two bathrooms.
Jeffrey and defendant had known each other since high school and had lived together for around one year during 2005 to 2006. On May 21, Jeffrey lived with his parents, Patricia and Charles, about 10 minutes away from defendant. Jeffrey and defendant often argued and had disagreements. They had recently discussed getting back together, but defendant said no to the idea.
2. Jeffrey Speaks With T., Goes to the House, and Calls the Police
Around 7:00 a.m. on May 21, T. called Jeffrey from defendants house. T.s school began around 8:00 a.m. T. told Jeffrey she was not going to school that day and was going to stay home to watch L. and J., because her mother didnt have time to take everybody where they needed to be. Jeffrey knew T. had missed school before and was concerned that she was not going to school. He told T. to tell defendant that he was going to drive her to school. He also asked to speak to defendant, who was still at home, and sent several text messages to defendant. Defendant refused to speak to Jeffrey and did not respond to his messages. Jeffrey occasionally drove T. to school if defendant asked him, but defendant had not asked him to take T. to school that day.
Around 20 minutes after his initial telephone conversation with T., Jeffrey drove to defendants house, intending to drive T. to school. On the way there, he tried to call defendant and sent her several text messages but she did not respond. Jeffrey called T. eight or nine times that morning and spoke to T. three to five times. At one point, T. asked Jeffrey what he was going to do with the younger children. Jeffrey told T. to call Nathaniel and tell him to pick up the younger children before defendant left for work that day, to tell defendant he was not able to take the younger children with him because he did not have proper car seats for them, and if no arrangements could be made to pick up L. and J., then defendant or T. should call child protective services.
When Jeffrey arrived at the house, defendant had already left for work. T. came to the door but would not open it. While taking cell phone calls from both Jeffrey and defendant, T. told Jeffrey her mother had instructed her not to open the door for him. From outside the house, Jeffrey could not see T. or the younger children. Thereafter, T. stopped taking Jeffreys calls, and Jeffrey called the police.
According to Jeffrey, it was not unusual for his mother, Patricia, to take T. or all three children to school and day care in the mornings. Defendant frequently asked Patricia to pick up at least one of the children, and there was no set schedule. Jeffrey admitted he would occasionally pick up T. or all three children and knew where to take each of them.
Patricia testified she took T. to school [p]retty much . . . every day. Sometimes T. stayed overnight at Patricias house and Patricia would take T. to school from there. Other times, defendant would take T. to Patricias house in the morning. Patricia kept car seats in her garage for the times she picked up the younger children. Usually, defendant would call Patricia on Patricias house phone asking her to pick up the children, either the night before or the morning of, telling Patricia which way it was going to be or what time to come earlier.
According to Patricia, neither defendant nor T. called her on May 20 or 21, and Patricia did not recall receiving any telephone messages from defendant on May 20 or 21. Patricias husband, Charles, testified he did not receive any telephone calls from defendant on May 20 or 21, and defendant did not leave any messages asking for help with any of the children on May 21.
Still, Patricia knew defendant had to work early on May 21, so after defendant did not call her that morning, she tried to call T. but no one answered. Patricia thought T. might still be asleep or in the shower. After waiting a few minutes, Patricia drove to defendants house and arrived around 7:30 a.m. She was surprised to find Jeffrey there. Jeffrey told her, Im here. You can go. Patricia left after Jeffrey told her he had already called Nathaniel and the police and its going to be taken care of. Jeffrey denied telling Patricia the police were on their way, because he did not call them until after Patricia left.
On occasions when Patricia had all three children in her home, she may have left T. in charge of the younger children while she left to run and buy a bottle [of] pop or milk or something, but she never allowed T. to babysit the younger children for long periods of time. Although Patricia believed T. was mature for her age and old enough to babysit, she did not think a 12 year old should be allowed to babysit three- and five-year-old children for an entire day.
3. The Police Arrive at the House
Around 7:45 a.m., two Banning police officers, Detective Sandra Perea and Trainee Officer Nolan, arrived at the house. Upon arriving, Detective Perea asked Jeffrey why he was there and what was going on. Jeffrey told her he had been there knocking on the door for 30 minutes, and his mother, who usually picked up T. from school, just couldnt do it that day. The officers knocked on the front door and the adjacent side window, but no one answered. Officer Nolan then jumped over the fence and tried the rear sliding doors, banging loudly and identifying himself as Banning police. Still no one answered. The two younger children tried to unlock the front door but could not reach the deadbolt.
Detective Perea tried reaching defendant by cell phone. Initially, defendant did not answer. The detective left a voice mail message identifying herself and telling defendant she was at her house trying to make contact with the children and to return the call. Over a 35-minute period, Detective Perea repeatedly called defendants cell phone, the house phone, and T.s cell phone, but no one answered any of the calls. Finally, defendant answered her cell phone. The detective told defendant they were at her house, no one had been able to contact the children for around 55 minutes, and the detective and Jeffrey were concerned for the childrens welfare.
Defendant told Detective Perea that Jeffrey was just trying to start trouble because she wouldnt have sex with him. The detective told defendant she needed to return home with a key and unlock the door so they could check on the children. Defendant said she was not coming home and not leaving work. The detective told defendant that if she did not return home, the police would forcibly enter the home, Jeffrey would take T. to school, and the younger children would be taken into protective custody. Defendant told the detective, fine . . . do whatever you want, I dont care. Defendant did not tell the detective she needed a ride home. She did, however, tell the detective that Nathaniel was on his way to the house but if he did not arrive before [she] needed to leave, . . . the children could go to CPS.
Jeffrey first spoke to defendant after the officers arrived at the house. Defendant told Jeffrey she was trying to call Nathaniel but was carpooling on her way to work and could not do anything about it.
After defendant told Detective Perea she was not returning home, the detective obtained permission from her watch commander to forcibly enter the house, and Officer Nolan kicked in the front door. The detective found all three children in the bathroom just off the hallway, in the bathtub, which was filled nearly to the top with water. T. was lying in the tub with her head near the faucet, apparently asleep. The two younger children were seated next to her feet. The detective touched T. on her shoulder, and T. opened her eyes. T. then got out of the tub, wrapped herself in a towel, and walked out of the bathroom while ignoring the detectives questions. Jeffrey came into the bathroom several minutes later and helped get the younger children out of the tub.
Nathaniel arrived at the house while the younger children were being taken out of the tub and helped get them ready for school. Nathaniel saw that L. had a red mark on the left side of her stomach, which neither Jeffrey nor the officers had seen. L. did not know where the mark had come from.
4. The Condition of the House
Detective Perea saw that the living and dining room areas were relatively picked up and the kitchen was well stocked with food. She smelled urine in the house but could not pinpoint its source. The urine smell was strongest in the living room/dining room area. The bedrooms had clothing and other items scattered throughout so that a good portion of the floors were not visible. Items were spilling out [of J.s bedroom] into the hallway. There were dirty diapers on the bathroom floor and open dirty diapers on top of the washing machine and elsewhere in the nearby laundry room. The toilet in the bathroom where the children were found was not flushed and contained a large amount of urine and fecal matter. Inside the master bedroom, several items had been pulled from the bathroom cabinets and an unplugged curling iron was found near the sink. Inside the garage, the officers found a large pile of crushed aluminum cans with sharp edges. According to Jeffrey and Patricia, the house was usually not messy.
B. Defense Evidence
The defense theory was that defendant had in fact arranged to have Patricia pick up all three children on the morning of May 21, and only intended to leave the younger children alone with T. between the time defendant left for work and Patricia was to arrive and take the children to school and day care.
1. C. Richard Martins Testimony
Defense investigator C. Richard Martin testified that Jeffrey told him Patricia could not pick up the kids as she normally does on May 21 and that he and defendant had had a disagreement on May 21. Jeffrey did not tell Martin that, on May 21, T. told him she was not going to attend school that day.
2. T.s Testimony
T. testified that her mother had a rule that she could not participate in sports or dance if she did not attend school. During 2007, defendant had never asked T. to babysit the younger children. Usually, Patricia took T. to school and took the younger children when defendant was running late. Defendant would have T. call Patricia at her house phone the night before or the morning defendant needed Patricia to pick up any of the children. Patricia only picked up the children if she was called. Sometimes T. would call her father Jeffrey to pick her up.
T. had to be at school by 8:15 a.m. on May 21. She woke up early that morning. Jeffrey telephoned T.; T. did not call Jeffrey. The call came after defendant had already left for work. T. did not tell Jeffrey she was going to be staying home all day. She instead told Jeffrey to have Patricia bring the second car seat. The night before, T. had spoken with Patricia and arranged with her to pick up all three children on May 21. After Jeffreys initial call, Jeffrey called T. again and told her he would be taking her to school and they were going to leave the younger children there.
After speaking with Jeffrey, T. called defendant on defendants cell phone and told her what Jeffrey was planning to do. Defendant told T. to lock all the doors, not allow Jeffrey into the house, and to just worry about herself. T. threw her cell phone into her mothers room so she wouldnt have to worry about talking to Jeffrey. After Jeffrey arrived and began banging on the door, T. called her mother once more, then got into the bathtub to relax. She filled the water to just about her thigh. At that point, the younger children were still asleep. J. and L. later came into the bathroom and told T. Jeffrey was at the door and had said to unlock it. J. used the bathroom toilet, and J. and L. got into the tub with T. No one turned on the water again. Jeffrey continued knocking on the door. T. heard the police kick open the front door. Her mother told her to open the door if the police came.
T. testified she was awake the entire time she was in the tub but pretended to be asleep because she was frightened. T. admitted she had been untruthful when she told a man from child protective services, William Biles, that she had fallen asleep in the tub and woke only when she heard the police open the door. T. did not recall telling the man that, on May 21, defendant woke up late and had to rush to work. T. also did not recall telling that man that defendant told her that she, defendant, was going to call Patricia that morning. According to T., the house smelled clean on May 21. T. did not recall smelling any strange odors or seeing any diapers on the bathroom floor.
3. Shahaila Billss Testimony
Shahaila Bills worked with defendant in Palm Desert and drove her to work on May 21. They were both running late and were attending a sales training session that day. If they missed many training days they would have to repeat the training and not receive commissions they could have otherwise earned. Around 10 miles from defendants home, near the Cabazon area, defendant received a telephone call and began making calls. During the first call, defendant appeared shocked and upset and was shaking her head from side to side. Before they reached work, defendant received many calls. Defendant put one call on the speaker phone, and Bills heard a male voice yelling. During the training session, defendant kept getting up to receive and make calls and appeared worried and nervous.
4. Defendants Testimony
Defendant did not have a dependable car to drive to work and would commute to work with Bills. Some mornings, Patricia would pick up defendant and all three children, drop off defendant at a nearby Jack in the Box to meet Bills, and take the children to school and day care. Other times, defendant would drive her car to the Jack in the Box and meet Bills.
On May 21, defendant woke up around 6:30 or 6:45 a.m. She called Patricia and told her she was running late, so she would need Patricia to take the younger children, as well as T., to school and day care. Defendant understood that Patricia was coming to pick up all three children. She did not speak with Patricia again that day. Defendant told T., who had spoken to Patricia earlier that morning, that her grandmother was coming.
Jeffrey and defendant did not have a good relationship, and had disagreements because Jeffrey wanted an intimate relationship with defendant. On Friday, May 18, Jeffrey told defendant she did not appreciate the help his family provided her. On the morning of May 21, Jeffrey telephoned defendant while Bills was driving her to work and told her she needed to return home and get the younger children. He said he was going to pick up T., leave the younger children home alone, and his mother was not coming to take them. When defendant asked why, Jeffrey told her his mother would not be helping her with the younger children if she did not want to pursue a relationship with him. Defendant told Jeffrey she could not return home because she was carpooling. Jeffrey told her to get out on the side of the freeway then. Defendant then told Jeffrey she had to get back to T., who was upset and on the other line. Jeffrey was frustrated and hung up. Before Jeffrey called defendant, T. had already told defendant that Jeffrey intended to take T. to school and leave the other children behind.
After speaking with Jeffrey, defendant told T. not to worry because no one was going to leave the babies there, to lock all the doors in case Jeffrey came to the house, and defendant would be calling grandma and a couple of friends who lived nearby to see whether they could come to the house. Next, defendant called Patricias house phone, and Jeffrey answered. He told her she could not talk to his mother, she had to return home to get the younger children, and he hung up on her.
While trying to call other people to come to the house, defendant called T. while T. was on her cell phone with Jeffrey. Jeffrey called defendant back, yelled at her that he was going to go to her house, call the police and child protective services, and leave the younger children with child protective services. Defendant then told T. that Jeffrey was coming to the house and to lock the doors, but to open the door if and when the police got there. While Jeffrey was at defendants house, defendant kept trying to reach Patricia on her home phone but no one answered.
Defendant spoke with Detective Perea twice that morning. She believed she first spoke with the detective around the time the detective first arrived at her home. During that call, the detective told defendant that Jeffrey had called 911 because he was there to pick up T. and had no idea what to do with the two younger kids that were there and not his. Defendant explained to Detective Perea that Jeffrey knew exactly what to do with the younger children and where to take them, and he had extra car seats at his home. Defendant also told Detective Perea that she had spoken to T., who was going to get ready, and that Jeffrey was just trying to start trouble because he was upset that she did not want to do what he asked [her] to do previously. The detective said, I dont care about that . . . . [Y]ou have two younger children here that no one knows [sic] what to do with. Defendant explained she was unable to return home because she was carpooling to work in Palm Desert. The detective sighed out of frustration and asked whether anyone else knew what to do with the younger children. Defendant said Jeffrey and his mother knew exactly what to do with the younger children and [i]f we could contact his mother, that would probably be the fastest way for this to get handled. Lastly, defendant told the detective she would tell T. to open the door for the police and would try to contact Nathaniel, the father of L. and J., who also worked in the desert and against whom defendant had a restraining order.
Defendant kept trying but was unable to reach T. on T.s cell phone or defendants house phone. Jeffrey told defendant by telephone that T. was not answering either telephone. Defendant had never before been unable to reach T. by cell phone. During an initial conversation with Nathaniel after she reached work, defendant explained the situation and asked Nathaniel to pick up L. and J. At first Nathaniel said he would not do so because there was a restraining order against him. During a second call, Nathaniel agreed to come to the house to get L. and J.
Thereafter, defendant spoke with Detective Perea a second time. The detective asked defendant whether anyone else had a key to her house. Defendant told her no, and that she, too, had been unable to reach T. Defendant told the detective that Nathaniel was on his way and could get there faster than she could. She also told the detective she would contact her sister, who lived in Moreno Valley and was a child protective services worker, to see whether she could get to the house before Nathaniel could. By this time, defendant had arrived at work and was unable to find a coworker who would loan her a car or drive her home. Bills was unable to loan defendant her car because Bills did not own it. Defendant also called several neighbors and Nathaniels sister to enlist their help in going to the house.
Defendant testified the detective was really upset because she was not on her way home, and told her they would have to forcibly enter the house and call child protective services. Defendant told the detective she understood the detectives position and would not be upset if she contacted child protective services. Defendant denied telling the detective she did not care about her children or what the detective would do.
While defendant was at work, Jeffrey called her and told her they were about to kick down the door, and hung up. In subsequent calls, defendant learned the police had gained entry, Nathaniel had arrived, and they were trying to get the kids ready to take to school and day care. Defendants work trainer told her she would lose her job if she left the training session on May 21.
Through May 21, defendant had never had T. stay home from school to babysit the younger children. T. had always been very responsible. Jeffrey and defendant had allowed T. to stay home for 10 to 15 minutes at a time while running an errand, and had never had a problem. T. had never been instructed to bathe the younger children or allow them to bathe with her.
In August 2007, Patricia told defendant she did not recall defendant calling her on May 21, and did not recall or know the police were called or were at defendants house. Patricia did recall that Jeffrey sent her away and told her that he would take care of the kids. After May 21, Jeffrey admitted to defendant that he had known what do with the children when, on May 21, he told Detective Perea he did not know what to do with them.
The piles of clean clothes depicted in photographs of the childrens and defendants bedrooms were the result of defendants going through everyones clothing, and putting aside clothing that no longer fit. The children were not allowed in defendants bedroom without permission. On May 21, defendant left an unplugged and unused curling iron on her master bathroom sink, but closed her master bedroom door before she left.
The diapers shown in photographs belonged to L., who was responsible for changing her own diaper. Although L. had been potty trained and would go to bed diaperless, L. had recently gone through some changes and was putting diapers on during the night and wetting them instead of using the toilet in the bathroom. Defendant would find L.s used diapers in the bathroom trash can or hidden in L.s room. On May 21, before she left for work, defendant saw no diapers on the bathroom floor or in the laundry room.
Defendant said she first saw the red mark and some underlying bruising on L.s left side about five days before May 21, after she picked up L. from Nathaniels home and bathed her. She did not believe the mark required medical treatment. Neither L. nor Nathaniel could explain to defendant what had caused the mark.
C. Prosecution Rebuttal
Social worker William Biles testified that during a May 25, 2007, interview with T. at T.s school, T. said she had fallen asleep in the bathtub on May 21 because she was tired after having returned home late the previous evening from a trip to Temecula. During a second interview on August 28, T. said she did not know the younger children were in the bathtub until the police entered the bathroom. During a third interview in March 2008, T. told Biles she was unsure whether she had been asleep or awake in the bathtub on May 21.
III. DISCUSSION
The Trial Court Erroneously Instructed the Jury That Indirect Misdemeanor Child Endangerment, or Causing a Child to Be Placed in a Situation Where His or Her Health May Be Endangered, Requires General Criminal Intent Rather Than Criminal Negligence, and the Error Was Not Harmless Beyond a Reasonable Doubt
Defendant contends the trial courts instruction on indirect misdemeanor child endangerment, as charged in counts 1 and 2, misdirected the jury on a material element of the offense, namely, the mental state element. She argues the trial court had a duty to instruct sua sponte that the requisite mental state was criminal negligence, not general criminal intent, and the error was not harmless beyond a reasonable doubt. The People concede the jury was erroneously instructed; however, they argue the error was harmless beyond a reasonable doubt. We agree the jury was erroneously instructed and conclude the error was not harmless beyond a reasonable doubt.
1. Background
In defining the elements of indirect misdemeanor criminal negligence for the jury, as charged in counts 1 and 2, the trial court gave a modified version of CALJIC No. 16.170.[2] The modified instruction told the jury that, in order to find defendant guilty in counts 1 and 2, it had to find she acted with general criminal intent rather than criminal negligence. Over defense counsels objection,[3]the trial court redacted all references to criminal negligence in the standard-form version of CALJIC No. 16.170.[4]
2. AnalysisInstructional Error
A trial court has a duty to instruct the jury sua sponte on every material element of an offense. (People v. Flood (1998) 18 Cal.4th 470, 480.) Instructions that improperly describe or omit a material element of an offense violate a criminal defendants state and federal due process rights, because due process requires that the prosecution prove each essential element of a crime beyond a reasonable doubt. (Id. at p. 481.) Instructional error that misdescribes an element of an offense must be harmless beyond a reasonable doubt. (Id. at pp. 502-503.)
Defendant was charged in counts 1 and 2 with indirect misdemeanor child endangerment, as opposed to direct infliction of child abuse. That is, defendant was charged with having care and custody of a child and willfully causing the child to be placed in a situation which his or her person or health may be endangered, under circumstances or conditions other than those likely to produce great bodily harm or death, a misdemeanor. ( 273a, subd. (b), fourth prong, italics added.)
The mental state element of indirect child endangerment, whether felony or misdemeanor, is criminal negligence; it is not general criminal intent. General criminal intent is required for direct acts of child abuse, whether felony or misdemeanor. (People v.Burton(2006) 143 Cal.App.4th 447, 454 (Burton); People v. Valdez (2002) 27 Cal.4th 778, 787-791 [mental state element of indirect felony child endangerment is criminal negligence].) As the Burton court observed, [s]ection 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. [Citations.] When that harm is indirectly inflicted, the requisite mental state is criminal negligence. [Citation.] (Burton, supra, at p. 454, italics added.)
This is true regardless of whether the underlying conduct, or the indirect act or omission that constitutes child endangerment, constitutes a felony or a misdemeanor. Felony child endangerment is defined in subdivision (a) of section 273a as being committed under circumstances or conditions likely to produce great bodily harm or death. ( 273a, subd. (a).) In contrast, subdivision (b) of the statute defines misdemeanor child endangerment as being committed under circumstances or conditions other than those likely to produce great bodily harm or death. (Id., subd. (b), italics added.) As the court in Burton put it: The distinction between felony and misdemeanor child endangerment depends on whether the acts or omissions involved circumstances or conditions likely to produce great bodily injury or death to the child (if so, felony 273, subd. (a); if not, misdemeanor 273a, subd. (b)). (Burton, supra, 143 Cal.App.4th at p. 454, fn. 4.)
Still, the mental state element of indirect child endangerment, whether felony or misdemeanor, is criminal negligence; for direct acts of child abuse, whether felony or misdemeanor, it is general criminal intent. (Burton, supra, 143 Cal.App.4th at p. 454.) The reason for the distinction is clear. Indirect acts of child endangerment, regardless of the underlying circumstances, involve failures to act. Direct acts of child abuse involve just that: direct acts of child abuse, directly inflicted. (People v. Sargent (1999) 19 Cal.4th 1206, 1216.) Thus, when a defendant commits a direct act of child abuse, the law requires only that he or she act with general criminal intent, or that he or she intend to commit the proscribed act or omission. (Id. at pp. 1219-1221 [discussing general criminal intent element of direct acts of child abuse].) When, however, the defendant commits an indirect act of child endangerment, such as negligently allowing a child to be placed in a situation where his or her health is endangeredwhether under circumstances or conditions likely to produce great bodily harm or death, a felony, or under circumstances or conditions other than those likely to produce great bodily harm or death, a misdemeanor, the law requires that he or she act with criminal negligence. Ordinarily negligence, or an intent to do the proscribed act, will not suffice. (See Burton, supra, at p. 454.)
Criminal negligence has been defined as aggravated, culpable, gross or reckless conduct that is such a departure from that of the ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life [or an indifference to consequences]. [Citation.] A defendant may be deemed to be criminally negligent if a reasonable person in his or her position would have been aware of the risk. [Citation.] (Burton, supra, 143 Cal.App.4th at p. 454, citing People v. Valdez, supra, 27 Cal.4th at p. 783.)
Here, the jury was not instructed that, in order to find defendant guilty of indirect misdemeanor child endangerment as charged in counts 1 and 2, it had to find she acted with criminal negligence. Instead, the jury was instructed that the requisite mental state was general criminal intent. This was federal constitutional error. (People v. Flood, supra, 18 Cal.4th at pp. 502-503.) General criminal intent was defined for the jury as intentionally doing that which the law declares to be a crime. (CALJIC No. 16.170.)[5] This standard fell far short of criminal negligence, which requires negligent conduct that is aggravated, reckless, or flagrant, that is, conduct that is such a departure from what would be the conduct of an ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for the consequences of that conduct. (CALJIC No. 16.170; see People v. Valdez, supra, 27 Cal.4th at p. 788.) Thus here, the jury was misdirected on a material element of indirect misdemeanor child endangerment such that the prosecutions burden of proving this element of the crime beyond a reasonable doubt was substantially lessened.
3. AnalysisHarmless Error
When, as here, a jury is erroneously instructed on a material element of an offense, it must appear beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Flood, supra, 18 Cal.4th at p. 504; Chapman v. California (1967) 386 U.S. 18, 24.) If not, reversal is required.
Here, the trial courts failure to instruct the jury that indirect misdemeanor child endangerment requires criminal negligence, rather than general criminal intent, was not harmless beyond a reasonable doubt. Indeed, in view of the entire record, including the evidence, the jury could have reasonably found defendant guilty in counts 1 and 2 based on her intent to do what the law, according to the instructions, declared to be a crime, that is, causing her younger children L. and J. to be placed in a situation where their health may have been endangered, that is, home alone all day with only their 12-year-old sister T. to babysit them. Substantial evidence showed that defendant intended to do just thatleave the children home alone all day, without adult supervision.
More, however, was required to render defendants conduct misdemeanor child endangerment as defined in section 273a, subdivision (b), fourth prong. The jury had to find she acted with criminal negligence. [C]riminal negligence involves a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . or an indifference to consequences. [Citation.] (People v. Valdez, supra, 27 Cal.4th at p. 788.) On this record, it is reasonably possible that the jury convicted defendant in counts 1 and 2 based on its conclusion she acted with general criminal intent, a less stringent standard than criminal negligence. Defendants convictions in counts 1 and 2 must therefore be reversed.
IV. DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ McKinster
J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] As given, the modified version of CALJIC No. 16.170 told the jury: Defendant is accused in Counts 1 [and] 2 of having violated [section] 273a, subdivision (b) of the Penal Code, a misdemeanor. [] Every person who: [] . . . [] Has care or custody of a child and: [] . . . [] . . . Willfully causes . . . the child to be placed in a situation where his or her person or health may be endangered [] is guilty of violating section 273a, subdivision (b) . . . , a misdemeanor. [] The word willfully, as used in this instruction, means with a purpose or willingness to commit the act or make the omission in question. The word willfully does not require any intent to violate the law, or to injure another, or to acquire any advantage. [] In the crime charged, there must exist a union or joint operation of act or conduct and . . . general criminal intent . . . . [] To establish general criminal intent it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, . . . she is acting with general criminal intent, even though . . . she may not know that . . . her act or conduct is unlawful. [] . . . [] In order to prove this crime, each of the following elements must be proved: [] . . . [] A person had care or custody of a child and: [] . . . [] . . . Willfully caused . . . the child to be placed in a situation where his or her person or health may be endangered.
[3] Following the close of the evidence, the trial court told both counsel that it had the jury instructions finalized almost and 25 to 35 minutes would be more than enough time to discuss the instructions. The discussion of the instructions was held off the record. After both counsel gave closing arguments and the instructions were given, defense counsel stated on the record that she had objected to deleting the references to criminal negligence in CALJIC No. 16.170.
[4] The standard-form version of CALJIC No. 16.170 states, in pertinent part: Every person who: [] . . . [] Has care or custody of a child and: [] . . . [] . . . Willfully causes or willfully and as a result of criminal negligence permits the child to be placed in a situation where his or her person or health may be endangered [] is guilty of violating [section] 273a, subdivision (b) . . . , a misdemeanor. [] . . . [] In the crime charged, there must exist a union or joint operation of act or conduct and . . . general criminal intent or criminal negligence. (Italics added.) The italicized language was redacted form the given version of the instruction.
