Filed 5/22/18 P. v. Wallis CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

CRAIG LOKEN WALLIS,

Defendant and Appellant.
H044215
(Monterey County
Super. Ct. No. SS141415A)
I. INTRODUCTION
Defendant Craig Loken Wallis appeals after a jury convicted him of felony stalking (Pen. Code, § 646.9, subd. (a)) and four misdemeanors: two counts of cruelty to a child (§ 273a, subd. (b)) and one count each of false reporting of an emergency (§ 148.3, subd. (a)) and battery (§ 242). Defendant’s convictions related to three victims: Jane Doe, John Doe #1, and John Doe #2.
The trial court imposed a three-year upper-term prison sentence for the felony, with concurrent or stayed jail terms for the misdemeanors. The trial court issued a 10-year criminal protective order as to Jane Doe, John Doe #1, and John Doe #2.
On appeal, defendant contends his convictions of cruelty to a child (§ 273a, subd. (b); counts 4 & 7) were not supported by substantial evidence. He specifically contends that there was insufficient evidence of his criminal negligence and of the victims’ unjustifiable mental suffering. Defendant alternatively contends both of those convictions must be reversed because the trial court erroneously instructed the jury that cruelty to a child required general criminal intent. Additionally, defendant contends the criminal protective order was unauthorized as to two of the victims: John Doe #1 and John Doe #2.
For reasons that we will explain, we will affirm the judgment but order the abstract of judgment corrected.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Background
Defendant and Jane Doe began a dating relationship in 2005. They had a son together—John Doe #1—while they were living in Pebble Beach.
In April or May 2007, when John Doe #1 was about five months old, defendant and Jane Doe broke up. Jane Doe moved into a housing development for single parents who had experienced domestic violence. John Doe #1 lived with her. Defendant stayed in Pebble Beach. Defendant had “intermittent visitation” with John Doe #1.
In 2009, after about 20 months, Jane Doe and defendant “got back together” and lived together at Jane Doe’s grandmother’s house. They remained together for about a year, then separated again. Defendant refused to move out, however, so Jane Doe paid someone to help “physically move him and his belongings.” Defendant visited with John Doe #1 about once a week.
During their relationship, there had been “[m]inor” domestic violence, mostly consisting of yelling and intimidation, which occurred in front of John Doe #1. Defendant had also made lots of threatening phone calls, saying things like, “I’m going to ruin you, I’m going to ruin your family.” There had also been some pushing. On one occasion while Jane Doe was driving a car, defendant had punched Jane Doe several times. On another occasion, defendant had “shoved” Jane Doe up against his car.
In 2012, when John Doe #1 was about six years old, Jane Doe moved to Lobos Street in Monterey. She moved in with John Doe #2, her boyfriend of two years. Defendant was living with Jane Doe’s parents, and he was visiting with John Doe #1 more often.
In 2013, defendant moved to the Magic Carpet Lodge in Seaside. He saw John Doe #1 every week or two.
B. Early 2014
In February and March of 2014, defendant was making “very accusatory, threatening” phone calls, voicemails, and text messages to Jane Doe. Jane Doe felt that defendant was “acting so out of his mind” that she asked the police to do welfare checks on him.
During a phone call on April 6, 2014, defendant acknowledged that he had been telling John Doe #1 to call him “uncle” instead of “dad.” His explanation had to do with his suspicion that Jane Doe was colluding with people “to defame him.”
On April 28, 2014, Jane Doe requested that defendant get evaluated at the hospital because “his behavior was escalating.” Defendant was texting and calling her in the middle of the night and exhibiting paranoia. Jane Doe continued to ask defendant to seek help in the ensuing weeks. She also told defendant that she would not allow him to see John Doe #1 until he got help.
On May 10, 2014, defendant called the police and requested a welfare check of John Doe #1. An officer responded to the home of Jane Doe and John Doe #2. The officer saw John Doe #1 playing with toys. There were no signs of drugs in the house. The officer declined to make a report to Child Protective Services, but he did request a welfare check of defendant. Jane Doe and John Doe #2 provided the officer with text messages and voicemail messages from defendant.
On May 14, 2014, defendant again requested a welfare check be performed at the home of Jane Doe. Based on that phone call and other calls defendant had made to the police in the prior weeks, the responding officer “gathered that [defendant] wanted us to basically harass [Jane Doe].” The officer declined to do a welfare check because another officer had recently done one and found John Doe #1 “in a happy, safe place.”
C. May 16, 2014 School Incident
On May 16, 2014, defendant came to John Doe #1’s school, saying he was there to visit John Doe #1, explaining that he “hadn’t seen his son in a long time.” The school principal, Phillip Menchaca, called Jane Doe to alert her.
Jane Doe went to the school, where she saw defendant, Principal Menchaca, and John Doe #1 in the principal’s office. Through a window, she watched defendant get up out of his seat, come towards the window, and mouth “You made my son afraid of me, and I’m going to fucking kill you.” She then saw John Doe #1 crying and shaking.
According to Menchaca, defendant “jumped up out of his seat, clenched his fists and his arms, and stood up” before mouthing the words to Jane Doe. Defendant walked toward the door in an “aggressive” manner. Menchaca felt it “looked dangerous,” so he got up and blocked the door. Defendant, who was agitated, made “brief physical contact”—a chest bump—with Menchaca.
Menchaca briefly argued with defendant and then calmed defendant down. He escorted defendant into the reception area. Defendant then approached John Doe #1, telling him that he had “great things for him,” including video games, a puppy, and a nice home. John Doe #1 began crying when defendant approached. He appeared to be “uncomfortable and very emotional.” Defendant said he wanted to take John Doe #1 with him, but John Doe #1 said he did not want to go.
Defendant had a brief verbal altercation with Jane Doe. He then left the school with his mother, who had been waiting outside the principal’s office. Jane Doe then sat down with John Doe #1, who was “confused, afraid, relieved, teary.” Jane Doe and Menchaca decided to keep John Doe #1 in school, with Jane Doe remaining on campus for the rest of the day.
Jane Doe went to a school parking lot to wait for John Doe #1. Defendant approached while Jane Doe was nursing her seven-month-old baby. Defendant was angry. He was “insulting, rude, menacing, aggressive.” He told Jane Doe, “You’re going down.” He also reached in and touched the baby. Jane Doe felt vulnerable and afraid. After defendant “said his piece,” he left.
A witness to the parking lot incident saw and heard defendant yelling at Jane Doe. Defendant used curse words, yelled, and made derogatory comments to Jane Doe. He said things like, “bitch, fuck, I’m going to ruin you.” Afterwards, Jane Doe was shaking.
Jane Doe continued to receive voicemail messages and texts from defendant. On May 21, 2014, Jane Doe applied for and obtained a restraining order.
D. May 31, 2014: False Reporting of an Emergency
At about 6:00 a.m. on May 31, 2014, Monterey Police officers were dispatched to conduct a welfare check as to John Doe #1 at the home of Jane Doe and John Doe #2. Defendant had called 911. Defendant indicated that his concerns were raised by a phone call he had received from John Doe #1 that morning. However, when the officer arrived at the home, he found John Doe #1 sleeping in bed and found no outgoing calls on the cell phone defendant claimed the call had come from.
E. June 2014
By June 2014, John Doe #2 had been dating Jane Doe for four years and was like a stepfather to John Doe #1.
On June 2, 2014, John Doe #1 was at home with John Doe #2 and John Doe #2’s grandmother. As the three of them left the house to go meet Jane Doe for dinner, defendant and his mother “appeared out of nowhere,” entering the carport. John Doe #2 told defendant to go away, reminding him of the restraining order. Defendant “came at” John Doe #2 aggressively, as if he wanted to “get past” him to where John Doe #1 was standing. Defendant’s breath smelled of liquor. John Doe #2 decided to stand his ground, so he crossed his arms in front of his chest. Defendant moved forward, made contact with John Doe #2, and fell to the ground.
John Doe #2 started to call 911 after defendant fell to the ground. Defendant put John Doe #2 in a choke hold and started punching John Doe #2 in the back of the head. John Doe #2 managed to call 911 and reported that he was being assaulted. Defendant began to leave, saying that “he was going to take his son.” Defendant also punched the back of John Doe #2’s car as he left, causing damage to the car.
John Doe #1 was “cowering” during the incident. He was visible from the carport, and John Doe #2 believed defendant was aware of John Doe #1’s presence because of his attempt to get past John Doe #2 and his statements about taking John Doe #1.
After the incident, John Doe #1 appeared to be in shock. His behavior changed: he was sleepless, he had “constant anxiety” and nightmares, and he had more tantrums. Jane Doe, too, seemed “perpetually anxious” and afraid.
An officer called defendant after the incident. During the conversation, defendant was very agitated. He yelled and used “a lot of obscenities.” He agreed to meet with the officer the following day, but he failed to show up.
F. Defense Case
Defendant testified that he loved John Doe #1 and that although he and Jane Doe had split up, they “always communicated well” and put John Doe #1 first. However, in 2014, things changed: John Doe #1 was “being withheld” from defendant. Defendant bought John Doe #1 an iPhone so they could communicate more often.
Defendant became concerned for John Doe #1’s safety after learning that John Doe #2 was “abusing drugs.” At the same time, defendant was not able to see John Doe #1. He left messages with Jane Doe expressing that he wanted to “work this out.” He acknowledged he probably left Jane Doe over 100 messages.
Defendant discussed the May 16, 2014 incident at John Doe #1’s school. He intended to surprise John Doe #1, show him a house he had just purchased, and take him to lunch. At the school office, the principal asked defendant to come into his office. John Doe #1 then arrived. He was “kind of upset” and stood in a corner. Defendant started to talk to John Doe #1, saying he would let John Doe #1 stay in school and that he missed him and loved him. John Doe #1 said he missed and loved defendant but that Jane Doe had told him not to go with defendant.
When defendant saw Jane Doe come into the office, he “softly” said, “How can you do this to us?” Defendant denied moving aggressively toward the door or having an angry demeanor. He denied having any conversation with Jane Doe.
Defendant returned to the school later that day and saw Jane Doe sitting in a car in the parking lot, but he did not approach her or say anything to her. Jane Doe yelled at him, however.
Defendant admitted making a 911 call on May 31, 2014. He had been listening to voicemail messages and thought a message from John Doe #1 had come in that morning, although “in retrospect” he realized the message could have been left at another time. He truly believed John Doe #1 “was in a crisis” and did not intend to make a false report or use law enforcement to harass Jane Doe.
Defendant also discussed the June 2, 2014 incident. He acknowledged going to the Lobos Street residence with his mother, claiming he wanted to take John Doe #1 to a barbeque. He had called Jane Doe and some of her relatives, saying “[i]f there’s a problem let me know,” but he had received no response.
When defendant arrived at the Lobos Street residence, he saw John Doe #1 come out of the house, along with John Doe #2 and a woman he did not recognize. John Doe #2 ran towards defendant and defendant’s mother and began yelling at them. He told them, “You’re not supposed to be here. Get off this property. We have a restraining order against you.” Defendant responded, “I’m here to pick up my son.”
Defendant noticed that John Doe #1 had “moved off behind [some] bushes.” John Doe #2 then hit defendant, causing defendant to fall down. John Doe #2 also pushed defendant’s mother and caused her to fall down. Defendant got up and held John Doe #2 up against the car. He denied punching John Doe #2 or the car. He admitted he saw John Doe #2 trying to make a phone call but claimed he did not know John Doe #2 was trying to call 911.
Defendant acknowledged he was “aware” that Jane Doe had filed for a restraining order, but he claimed he had not been served with the restraining order and “didn’t know any of the contents.”
Defendant denied he had ever pushed Jane Doe up against a car. He admitted he had hit Jane Doe once during a car ride.
G. Charges, Convictions, and Sentence
Defendant was charged with felony stalking of Jane Doe between April 2014 and June 5, 2014 (count 1; § 646.9, subd. (a)), felony criminal threats to Jane Doe on May 16, 2014 (count 2; § 422, subd. (a)), felony dissuading a witness as to John Doe #2 on June 2, 2014 (count 3; § 136.1, subd. (b)(1)), misdemeanor cruelty to a child of John Doe #1 on May 16, 2014 (count 4; § 273a, subd. (b)), misdemeanor false reporting of an emergency on May 31, 2014 (count 5; § 148.3, subd. (a)), misdemeanor battery of John Doe #2 on June 2, 2014 (count 6; § 242), misdemeanor cruelty to a child of John Doe #1 on June 2, 2014 (count 7; § 273a, subd. (b)), and misdemeanor vandalism of John Doe #2’s vehicle on June 2, 2014 (count 8; § 594, subd. (a)).
A jury found defendant guilty of count 1 and counts 4-7 but found him not guilty of counts 2, 3, and 8.
At the sentencing hearing held on December 6, 2016, the trial court imposed a three-year upper-term prison sentence for felony stalking, with concurrent or stayed jail terms for the four misdemeanors. The trial court issued a 10-year criminal protective order as to Jane Doe, John Doe #1, and John Doe #2.
III. DISCUSSION
A. Counts 4 and 7 – Sufficiency of the Evidence
Defendant contends his two convictions of cruelty to a child (§ 273a, subd. (b); counts 4 and 7) were not supported by substantial evidence. He specifically contends that there was insufficient evidence of two elements: criminal negligence and unjustifiable mental suffering.
1. Standard of Review
“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
2. Statutory Language and Charges
Section 273a, subdivision (b) provides: “Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.”
As to both counts 4 and 7, the prosecution charged defendant with violating section 273a, subdivision (b) under the third and fourth branches of the statute. The amended information alleged that defendant “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.”
3. Criminal Negligence
Section 273a can be violated by both direct and—as alleged in this case—indirect conduct. (See People v. Burton (2006) 143 Cal.App.4th 447, 454 (Burton).) “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.] Criminal negligence is 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. [Citation.] A defendant may be deemed to be criminally negligent if a reasonable person in his position would have been aware of the risk. [Citation.]” (Ibid.; see also People v. Valdez (2002) 27 Cal.4th 778, 788 [to meet the standard of criminal negligence, the defendant’s conduct “ ‘ “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” ’ ”].)
In Burton, the defendant was charged under the first two branches of section 273a, subdivision (b): it was alleged that he “willfully caused or permitted his older son to suffer”; and “inflicted on his older son unjustifiable mental suffering.” (Burton, supra, 143 Cal.App.4th at p. 454.) The defendant had punched the mother of his children in the presence of his eight-year-old son. (Id. at p. 451.) The child’s mother suffered severe cuts that required over 200 stitches and resulted in permanent disfiguration. (Ibid.) Prior to the attack, the defendant had been crouching down on the driver’s side of a car, and he attacked the mother while the child was urinating on the passenger side of the car.
On appeal, the Burton defendant challenged the sufficiency of the evidence that he acted with criminal negligence toward his son, claiming the attack did not occur in his son’s presence. The appellate court found “no doubt” that the defendant had committed a willful act and that the child was at the scene. (Burton, supra, 143 Cal.App.4th at p. 455.) The court also found substantial evidence to support a finding that the defendant knew of his son’s presence, since the defendant would have been able to hear the son saying that he had to urinate. Further, the son saw the results of the attack. “A reasonable person would easily recognize that a child would endure unjustifiable mental suffering by being on the scene while his father slashed his mother’s face several times, and then immediately seeing the horrible, bloody aftermath.” (Ibid.)
a. May 16, 2014 Incident – Count 4
Defendant contends that he was not criminally negligent during the May 16, 2014 incident at the school office because he did not engage in behavior that showed he had a disregard for human life or indifference to the consequences of his act. Defendant acknowledges that he did “[s]how[] anger” toward Jane Doe and that John Doe #1 became upset during the incident, but he contends he did not raise his voice, physically threaten anyone, or direct anger toward John Doe #1 himself.
The record contains ample evidence to support a finding that defendant engaged in behavior that showed indifference to the consequences of his acts on John Doe #1’s mental health. When Jane Doe arrived at the school office, defendant angrily got up out of his seat, went towards the window aggressively, and mouthed a threat to kill Jane Doe. Defendant’s actions “looked dangerous” to the school principal. At that point, John Doe #1 began crying and shaking. Defendant remained agitated, and he chest bumped and argued with the principal in front of John Doe #1. Defendant remained in the office and approached John Doe #1, who cried and appeared to be “uncomfortable and very emotional.” Defendant then had a brief verbal altercation with Jane Doe.
While the facts here are not as egregious or violent as in Burton, the analysis is the same. “A reasonable person would easily recognize that a child would endure unjustifiable mental suffering by being on the scene” while his father became aggressive and threatening towards his mother, made aggressive physical contact and argued with the school principal, and had a verbal altercation with his mother. (See Burton, supra, 143 Cal.App.4th at p. 455.) Defendant’s decision to engage in those acts in John Doe #1’s presence showed disregard for human life and indifference to the consequences of his acts on John Doe #1’s mental health and thus constituted criminal negligence within the meaning of the child endangerment statute.
b. June 2, 2014 Incident – Count 7
Defendant also argues that he was not criminally negligent during the June 2, 2014 incident in which he struggled with John Doe #2 in the carport. Defendant contends there was no evidence he had “reason to know” of John Doe #1’s presence and that his conduct was not “aggravated, culpable, or reckless.”
Contrary to defendant’s claim, there was substantial evidence that defendant knew of John Doe #1’s presence. John Doe #2 testified that John Doe #1 was visible from the carport, and that defendant appeared to be attempting to get past John Doe #2 in order to get to John Doe #1. And defendant himself testified that he saw John Doe #1 come out of the house and then saw that John Doe #1 had “moved off behind [some] bushes.”
The record also contains ample evidence to support a finding that defendant engaged in behavior that showed indifference to the consequences of his acts on John Doe #1’s mental health. Defendant entered the carport, ignored John Doe #2’s reminder about the restraining order, and “came at” John Doe #2 aggressively. Defendant made physical contact with John Doe #2, fell to the ground, then got up and put John Doe #2 in a choke hold. Defendant also punched John Doe #2 in the back of the head and punched the car as he left—hard enough to cause damage to the car.
Again, the analysis of Burton can be applied here. “A reasonable person would easily recognize that a child would endure unjustifiable mental suffering by being on the scene” while his father assaulted the person who was like a stepfather to him. (See Burton, supra, 143 Cal.App.4th at p. 455.) Defendant’s decision to engage in those acts in John Doe #1’s presence showed indifference to the consequences of his acts on John Doe #1’s mental health and thus constituted criminal negligence within the meaning of the child endangerment statute.
4. Unjustifiable Mental Suffering
Defendant contends there was insufficient evidence that he caused John Doe #1 unjustifiable mental suffering during the May 16, 2014 and June 2, 2014 incidents. He contrasts the evidence of John Doe #1’s reactions to the reactions of the child in Burton and to the reactions of the adult female victim in People v. Ewing (1999) 76 Cal.App.4th 199 (Ewing).
After the father’s attack in Burton, the son screamed that he wanted to leave because he believed the father was going to come back, and the son attempted to drive the car away. The son also “expressed his suffering by writing in his journal” that he hated his life and wished he was not alive. (Burton, supra, 143 Cal.App.4th at p. 455.) The son also began getting in trouble at school and seeing a counselor. The Burton court held this constituted substantial evidence that the defendant’s attack on the child’s mother had caused or inflicted unjustifiable mental suffering on the child. (Ibid.)
In Ewing, the issue was whether the defendant had caused “substantial emotional distress” within the meaning of the stalking statute, section 646.9. The court assumed that the phrase meant “something more than everyday mental distress or upset,” such as “a serious invasion of the victim’s mental tranquility.” (Ewing, supra, 76 Cal.App.4th at p. 210.) The court found “only scant evidence of emotional distress” where the victim testified that she was afraid and there was evidence that she “suffered sleepless nights and had joined a support group for battered women.” (Id. at p. 211.) The court found that this evidence “fell far short” of showing substantial emotional distress since there was no showing “as to the severity, nature or extent” of the distress. (Id. at pp. 211-212.)
a. May 16, 2014 Incident – Count 4
The evidence showed John Doe #1 was crying and shaking after defendant angrily got up out of his seat, went towards the window aggressively, and mouthed a threat to kill Jane Doe. John Doe #1 also cried and appeared to be “uncomfortable and very emotional” after defendant chest bumped and argued with the principal in front of John Doe #1. And, after defendant’s verbal altercation with Jane Doe, John Doe #1 was “confused, afraid, relieved, teary.”
Defendant nevertheless contends this evidence did not show unjustifiable mental suffering because John Doe #1 never “felt fear for his or his mother’s safety, [n]or suffered subsequent difficulties in school, [n]or expressed suicidal thoughts in subsequent journal entries.” Defendant also points out there was evidence that John Doe #1 cheered up and stayed in school after the incident.
Contrary to defendant’s implicit suggestion, Burton does not establish a minimum quantum of evidence required to show unjustifiable mental suffering. Further, as defendant acknowledges, Ewing involved a different statute and different standard. We have no trouble concluding that on this record, where the evidence showed that John Doe #1 became very scared and upset because of defendant’s actions, there was substantial evidence of injury or endangerment to John Doe’s mental health as required for his conviction of child endangerment in count 4.
b. June 2, 2014 Incident – Count 7
The evidence concerning the June 2, 2014 incident showed that John Doe #1 was “cowering” while defendant assaulted John Doe #2 and that after the incident, John Doe #1 appeared to be in shock. There was also evidence that John Doe #1’s behavior changed after the incident: he was sleepless, he had “constant anxiety” and nightmares, and he had more tantrums.
This evidence is similar to the evidence of the child’s unjustifiable mental suffering in Burton, and again we have no trouble concluding that there was substantial evidence that defendant caused injury or endangerment to John Doe #1’s mental health as required for his conviction of child endangerment in count 7.
B. General Intent Instruction
Defendant alternatively contends that both of his convictions of cruelty to a child (§ 273a, subd. (b); counts 4 and 7) must be reversed because the trial court erroneously instructed the jury that cruelty to a child required general criminal intent. According to defendant, the general criminal intent standard falls “short of criminal negligence.”
1. Proceedings Below
Pursuant to CALCRIM No. 252, the jury was instructed: “The crimes charged in Counts 1 through 8 require proof of the union or joint operation of act and wrongful intent. The following crimes require general criminal intent: [¶] Child endangerment . . . . [¶] For you to find a person guilty of these crimes, that person must not only commit the prohibited act but must do so with wrongful intent. [¶] A person acts with wrongful intent when he or she intentionally does a prohibited act. However, it is not required that he or she intend to break the law. The act required is explained in the instruction for each crime.”
Pursuant to CALCRIM No. 823, the jury was instructed: “The defendant is charged in Counts 4 and 7 with child endangerment, in violation of Penal Code Section 273(a)(b). To prove that the defendant is guilty of this crime the People must prove that: [¶] One, the defendant willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering; and two, the defendant was criminally negligent when he caused or permitted the child to suffer or be endangered. [¶] A ‘child’ is any person under the age of 18 years. [¶] ‘Unjustifiable physical pain or mental suffering’ is pain or suffering that is not reasonably necessary or is excessive under the circumstances. [¶] ‘Criminal negligence’ involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] One, 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; two, the person’s acts amount to disregard for human life or indifference to the consequences of his or her acts; and three, a reasonable person would have known that acting in that way would naturally and probably result in harm to others.”
2. Standard of Review
The question of whether a trial court correctly gave a particular jury instruction is a “predominantly legal” question that is reviewed under the independent or de novo standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
3. Analysis
In Valdez, the California Supreme Court clarified that when a defendant is charged with violating section 273a, subdivision (b) through “direct infliction of abuse,” the required mens rea is general criminal intent (i.e., willfulness), whereas “a different standard of culpability, criminal negligence,” applies when the violation is through “indirect abuse.” (Valdez, supra, 27 Cal.4th at p. 789.) The court explained that “[c]riminal negligence is not a ‘lesser state of mind’ ” than willfulness/general criminal intent but rather “a standard for determining when an act may be punished under the penal law because it is such a departure from what would be the conduct of an ordinarily prudent or careful person under the same circumstances.” (Id. at pp. 789-790.) The Valdez court also explained that as used in section 273a, subdivision (b), the word “ ‘willful’ ” is not inconsistent with a criminal negligence standard, because “an act or omission amounting to criminal negligence can constitute a willful violation of the law. [Citation.]” (Valdez, supra, at p. 790.)
The Attorney General asserts that the mental state required for a violation of section 273a, subdivision (b) is general criminal intent and that the requirement of criminal negligence “does not technically describe a mental state at all, but rather describes the quality of a defendant’s action.”
Even assuming the trial court erred by including counts 4 and 7 in the general criminal intent instruction, any instructional error was harmless beyond a reasonable doubt in light of the jury instructions given on the elements of child endangerment, which properly informed the jury that it could not convict defendant unless it found he was criminally negligent. (See Chapman v. California (1967) 386 U.S. 18, 24.)
Prior cases have found similar instructional errors harmless. For instance, in People v. Lyons (1991) 235 Cal.App.3d 1456 (Lyons), the defendant was charged with attempting to dissuade a witness, a specific intent crime. Although the jury was instructed that the crime required general criminal intent, the jury also received an instruction based on the statute, which “unambiguously told the jury that for conviction defendant must have had the intent to prevent [the witness] from testifying.” (Id. at p. 1462.) The effect of the general criminal intent instruction was dependent on “the substantive elements of the offense to which it is applied,” and since those elements set forth “the correct intention,” the error was harmless. (Id. at pp. 1462-1463; see also People v. Ngo (2014) 225 Cal.App.4th 126, 162 [error in instructing the jury that specific intent offense required general criminal intent was harmless where jury received a proper instruction on the elements of the crime, including requirement of specific intent].)
Here, although the jury was generally instructed that counts 1 through 8 required general criminal intent, the instruction on the elements of child endangerment properly told the jury that it had to find “the defendant was criminally negligent” in order to convict defendant of counts 4 and 7. The child endangerment instruction further explained that “ ‘A person acts with criminal negligence when: [¶] One, 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; two, the person’s acts amount to disregard for human life or indifference to the consequences of his or her acts; and three, a reasonable person would have known that acting in that way would naturally and probably result in harm to others.” Thus, the trial court ultimately instructed the jury that it had to find defendant committed the offense with criminal negligence. Because the jury received the “correct substantive instructions,” any error in also listing counts 4 and 7 in the general criminal intent instruction was harmless. (See Lyons, supra, 235 Cal.App.3d at p. 1463.)
C. Criminal Protective Order
Defendant contends the criminal protective order was unauthorized as to two of the victims: John Doe #1 and John Doe #2. He points out that the stalking statute authorizes a 10-year protective order only as to “the victim” of the stalking offense (§ 646.9, subd. (k)(1)) and argues that although he was “convicted of a crime involving domestic violence”—i.e., stalking Jane Doe—neither John Doe #1 nor John Doe #2 was “a victim” of such a crime. (§ 136.2, subd. (i)(1).) The Attorney General contends that the protective order was authorized by section 136.2, subdivision (i)(1) because for purposes of that statute, the term “victim” is broadly defined.
We requested supplemental briefing on (1) whether the trial court could impose a protective order under the version of section 136.2, subdivision (i)(1) in effect at the time of sentencing and (2) whether, under that version of the statute, defendant’s convictions of cruelty to a child (§ 273a, subd. (b); counts 4 and 7) qualify as “crime[s] involving domestic violence as defined in . . . Section 6211 of the Family Code” (§ 136.2, subd. (i)(1)) because those convictions involved “abuse perpetrated against” a “child of a party” (Fam. Code, § 6211, subd. (e)). As explained below, we find that the protective order was authorized.
1. Terms of the Protective Order
The written protective order signed by the trial court provided as follows: “Must not annoy, harass, strike, threaten, sexually assault, batter, stalk, destroy personal property of, or otherwise disturb the peace of the protected persons named below. [¶] Must surrender to local law enforcement or sell to a licensed gun dealer any firearm owned or subject to his or her immediate possession or control within 24 hours after issuance of this order. [¶] Must have no personal, telephonic or written contact with the protected persons named below. [¶] Must have no contact with the protected persons named below through a third party, except an attorney of record. [¶] Must not come within 200 yards of the protected persons named below. [¶] Name of protected person(s): Jane Doe, John Doe #1, John Doe #2.”
“May have peaceful contact with the protected persons named above, as an exception to the no-contact or stay away provision . . . of this order only for the safe exchange of children and court-ordered visitation as stated in any family, juvenile or probate court issued after the date of this order. [¶] The protected persons may record any prohibited communications made by the restrained person.”
At the sentencing hearing, the trial court reminded defendant that if he wanted to have visitation with John Doe #1, he would have to get “another order from the family law court.” The trial court specified that the family court could order “changes to this protective order.”
2. Relevant Statutes
When defendant committed the offenses in 2014, section 136.2, subdivision (i)(1) provided: “In all cases in which a criminal defendant has been convicted of a crime of domestic violence as defined in Section 13700, . . . the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. The order may be valid for up to 10 years, as determined by the court.” (Stats. 2013, ch. 291, § 1.)
At the time of sentencing in 2016, section 136.2, subdivision (i)(1) provided: “In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code . . . the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. The order may be valid for up to 10 years, as determined by the court. . . .” (Stats. 2015, ch. 60, § 1, eff. Jan. 1, 2016, italics added.)
Section 136, subdivision (3) defines “ ‘[v]ictim’ ” as “any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated.”
Section 13700, subdivision (b) provides: “ ‘Domestic violence’ means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.”
Family Code section 6211 provides: “ ‘Domestic violence’ is abuse perpetrated against any of the following persons: [¶] (a) A spouse or former spouse. [¶] (b) A cohabitant or former cohabitant, as defined in Section 6209. [¶] (c) A person with whom the respondent is having or has had a dating or engagement relationship. [¶] (d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12). [¶] (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected. [¶] (f) Any other person related by consanguinity or affinity within the second degree.” (Italics added.)
Family Code section 6203, subdivision (a) defines “ ‘abuse’ ” for purposes of Family Code section 6211 as follows: “(1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.”
Family Code section 6320 authorizes a restraining order “enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, . . . harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party . . . .”
3. Standard of Review
Resolution of defendant’s claim turns on the proper interpretation of the above statutes. “When interpreting a statute, we view the statutory enactment as a whole; consider the plain, commonsense meaning of the language used in the statute; and seek to effectuate the legislative intent evinced by the statute. [Citation.]” (People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 (Beckemeyer).)
4. Application of the Amended Version of Section 136.2
Defendant contends he was not “convicted of a crime involving domestic violence” as to either John Doe #1 or John Doe #2 and thus that neither was “a victim” of such a crime under the version of section 136.2, subdivision (i)(1) in effect at the time of the offenses, since that version of the statute defined a “crime involving domestic violence” with reference only to section 13700.
As noted above, we requested supplemental briefing on whether the trial court could impose a protective order under the version of section 136.2, subdivision (i)(1) in effect at the time of sentencing, since that version of the statute defined a “crime involving domestic violence” more expansively, with reference to both section 13700 and Family Code section 6211.
Defendant argues that the constitutional prohibitions against ex post facto laws (U.S. Const., art. I, § 9; Cal. Const., art. I, § 9) require that the statute in effect at the time of the offense governs the scope of the trial court’s authority.
“[T]he ex post facto clauses of the state and federal Constitutions are ‘aimed at laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.” ’ [Citations.]” (People v. Grant (1999) 20 Cal.4th 150, 158.) Defendant contends that although the Legislature enacted section 136.2, subdivision (i)(1) “for the purpose of victim protection,” a protective order that prohibits him from contact with his son “is so punitive in nature or effect that it must be found to constitute [increased] punishment.”
In determining whether the amendment to section 136.2, subdivision (i)(1) increased the punishment for defendant’s crime, “we consider ‘whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature’s contrary intent.’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 755 (Alford ).) “ ‘If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” [Citation.] Because we “ordinarily defer to the legislature’s stated intent,” [citation], “ ‘only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,” [citations].’ [Citations.]” (Ibid.)
Section 136.2, subdivision (i)(1) sets forth legislative intent: “It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.” (§ 136.2, subd. (i)(1).) As defendant concedes, given this stated intention, it is apparent that the Legislature enacted section 136.2, subdivision (i)(1) for the purpose of victim protection, a nonpunitive intention. Thus, the issue is whether section 136.2, subdivision (i)(1) is so punitive in nature or effect that it must be found to constitute punishment.
Defendant argues that the amended version of section 136.2, subdivision (i)(1) has a punitive nature and effect because defendant is John Doe #1’s father. Defendant stresses the importance of the parent-child relationship, and he contrasts the impact on his parental bond with the “slight discomfort or inconvenience” caused by a blood draw for an AIDS test, which “does not rise to the level of punishment.” (See People v. McVickers (1992) 4 Cal.4th 81, 88 [considering whether section 1202.1 violates ex post facto principles].)
Defendant has failed to show that application of the amended version of section 136.2, subdivision (i)(1) is so punitive in nature or effect that it constitutes punishment. The amended version of the statute permits the trial court to issue a protective order as to a child victim of domestic violence. Such an order is rationally related to the nonpunitive purpose of victim protection and cannot be deemed excessive with respect to that purpose. (Alford, supra, 42 Cal.4th at p. 757 [relevant factors in determining whether a statute is punitive include whether the statute has a rational connection to a nonpunitive purpose and whether the statute is excessive with respect to this purpose].) In addition, as the trial court explained and as stated in the written order, defendant may seek visitation with John Doe #1 through the family court. Thus, the protective order does not place such a high burden on the parent-child relationship so as to constitute punishment, and application of the amended version of the statute in defendant’s case does not violate ex post facto principles.
5. Counts 4 and 7 Were Crimes Involving Domestic Violence
Having concluded that the trial court could impose a protective order under the version of section 136.2, subdivision (i)(1) in effect at the time of sentencing, we now address whether, under that version of the statute, defendant’s convictions of cruelty to a child (§ 273a, subd. (b); counts 4 and 7) qualify as “crime[s] involving domestic violence as defined in . . . Section 6211 of the Family Code” (§ 136.2, subd. (i)(1)).
Defendant asserts that neither of his convictions of cruelty to a child involved “abuse perpetrated against” a “child of a party” (Fam. Code, § 6211, subd. (e)) because his actions did not qualify as abuse of John Doe #1.
The Attorney General argues that during both the May 16, 2014 incident and the June 2, 2014 incident, defendant perpetrated abuse against John Doe #1 in that he placed John Doe #1 “in reasonable apprehension of imminent serious bodily injury to that person or to another.” (See Fam. Code, § 6203, subd. (a)(3).)
The record supports a finding that defendant placed John Doe #1 “in reasonable apprehension of imminent serious bodily injury” to Jane Doe during the May 16, 2014 incident. (Fam. Code, § 6203, subd. (a)(3).) When Jane Doe arrived at the school office, defendant became aggressive and threatening towards her. Defendant made aggressive physical contact with the school principal as he moved toward the door to the area where Jane Doe was present. John Doe #1’s reaction’s included crying and shaking, indicating that he feared defendant was going to assault Jane Doe.
The record also supports a finding that defendant placed John Doe #1 “in reasonable apprehension of imminent serious bodily injury” to John Doe #2 during the June 2, 2014 incident. (Fam. Code, § 6203, subd. (a)(3).) During that incident, defendant charged towards John Doe #2, put John Doe #2 in a choke hold, and punched John Doe #2 in the back of the head. John Doe #1 was cowering during the incident. Defendant’s actions constituted abuse within the meaning of Family Code section 6203, subdivision (a)(3).
Because defendant’s convictions of cruelty to a child (§ 273a, subd. (b); counts 4 and 7) qualify as “crime[s] involving domestic violence as defined in . . . Section 6211 of the Family Code” (§ 136.2, subd. (i)(1)), and because John Doe #1 was the victim of those crimes, the protective order was authorized as to John Doe #1.
6. The Protective Order was Authorized as to John Doe #2
With respect to John Doe #2, we find instructive Beckemeyer, supra, 238 Cal.App.4th 461. The Beckemeyer defendant had assaulted both his girlfriend and her adult son during the same incident, and he ultimately pled guilty to attempted murder of the girlfriend and assault with a deadly weapon of her adult son. (Id. at p. 464.) The trial court imposed a protective order under section 136.2 that included the girlfriend’s adult son. The appellate court upheld the protective order over the defendant’s argument that the son did not qualify as a domestic violence victim. The appellate court reasoned that section 136.2 “encompasses a person, like [the adult son], who was actually assaulted during the domestic violence incident, and who accordingly meets the broad definition of ‘victim’ set forth in the statutory scheme.” (Id. at p. 463; cf. People v. Delarosarauda (2014) 227 Cal.App.4th 205, 209, 211 [trial court improperly issued protective order as to defendant’s son and stepdaughter, who were not the victims of “any crime”].)
Here, defendant assaulted John Doe #2 during the June 2, 2014 incident leading to defendant’s conviction of cruelty to a child, which—as we held in the previous section—qualified as “a crime involving domestic violence.” (§ 136.2, subd. (i)(1).) Although John Doe #2 was not the victim of the cruelty to a child offense, section 136.2 “encompasses a person, like [John Doe #2], who was actually assaulted during the domestic violence incident, and who accordingly meets the broad definition of ‘victim’ set forth in the statutory scheme.” (Beckemeyer, supra, 238 Cal.App.4th at p. 463.)
D. Abstract of Judgment
We requested supplemental briefing regarding the abstract of judgment, which incorrectly reflects that defendant was convicted of criminal threats (§ 422, subd. (a)) rather than stalking (§ 646.9, subd. (a)). As noted above, defendant was charged with criminal threats in count 2 of the amended information, but he was found not guilty of that count. Thus, both parties agree that this court should order the abstract of judgment corrected. We will do so.
IV. DISPOSITION
The judgment is affirmed. The trial court is directed to issue a new abstract of judgment reflecting that defendant was convicted of felony stalking (Pen. Code, § 646.9, subd. (a)) rather than criminal threats (Pen. Code, § 422, subd. (a)). The trial court is further directed to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.








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BAMATTRE-MANOUKIAN, J.






WE CONCUR:






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GREENWOOD, P.J.






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GROVER, J.