P. v. Villanueva
Filed 3/2/12 P. v. Villanueva CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE CARLOS VILLANUEVA,
Defendant and Appellant.
D057712
(Super. Ct.
No. SCS228201)
APPEAL from
a judgment of the Superior Court
of
County, Stephanie Sontag, Judge. Affirmed.
A jury
convicted Jose Carlos Villanueva of assault with a deadly weapon and by means
of force likely to cause great bodily injury, and two counts of felony child
endangerment. The jury also found true
that Villanueva personally used a deadly weapon (a voltage meter) in the
commission of the assault. He appeals,
contending: (1) the evidence was
insufficient to establish felony child
endangerment; (2) the trial court abused its discretion by denying his
request to reduce the child endangerment convictions to misdemeanors; and (3)
the prosecutor committed prejudicial misconduct. We reject Villanueva's contentions and affirm
the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
People's Case
Villanueva
had two children with X.R. and dated her for several years, but the couple
separated in 2007. That same year, X.R.
entered into a romantic relationship with Villanueva's cousin, Osvaldo Flores. In February 2009, Villanueva, who did not
know that X.R. was dating Flores, approached her car in
a parking lot. X.R. was in the car
orally copulating Flores at the time. After Villanueva opened the door and
attempted to punch Flores, Flores
put the car in reverse and tried to drive off.
Villanueva tried to hold on to the car, but eventually fell to the
ground and was injured.
Two months
later, Villanueva contacted X.R. to make arrangements to pick up his
children. Flores
used X.R.'s car and brought the children to the park where Villanueva agreed to
pick them up. The children, who were two
and four years old at the time, were seated in a car seat and booster seat in
the back of the car. Villanueva approached
Flores's vehicle, opened the rear door on the driver's
side, and started to unbuckle the seat belt on one child. Villanueva then suddenly started stabbing Flores
with a voltage meter that had a probe over six inches long.
Villanueva
first stabbed Flores in the hand as Flores
attempted to protect his neck and face.
As Villanueva continued to stab Flores, Villanueva's brother, Luis,
entered the car through the front passenger door. Luis also tried to stab Flores
and attempted to prevent Flores from putting the car
into gear. Flores
was able to put the car into gear and accelerated to try to get the men off of
him. As the car moved forward,
Villanueva continued to stab Flores in the neck, back
and head. The car went onto the grass in
the park and then down into a ditch.
Upon
impact, Villanueva was thrown toward Luis and the car's air bag deployed. Flores got out of the
car and ran toward the street to try to get away. As he looked back, Flores
saw that Villanueva was chasing him.
Villanueva caught up to Flores and the men had
another confrontation in the middle of the street. Villanueva got Flores
to the ground and continued to stab him.
Multiple
people witnessed parts of the altercation.
Marsha Downs was at the park when she saw a car go down into the
ravine. She observed two men running
from the ravine and two children following one of the men. The children were on the sidewalk jumping up
and down and crying. Mari Beth Meyers
was at her house overlooking the park when she saw two men fighting in the
street. She saw the children standing
"just off the curb in the street" facing the fight. Migdalia Monroy was driving her car when she
saw two children going on and off the sidewalk.
Monroy was alarmed because there was nobody with the children and they
were running in and out of the street.
Monroy eventually observed a man motion to a parked car to come
over. The man grabbed the children and
put them in the back seat. After the man
got into the car, he made a gesture to the driver indicating that they should
go.
Chula Vista
Police Officer Elman Gashymov responded to the scene. Officer Gashymov saw Flores
stumbling and then eventually lay down in the grass. Flores was covered in
blood and had 10 to 15 puncture wounds on his back. He told Officer Gashymov that he had been
stabbed with a voltage meter.
Defense Evidence
Villanueva
testified on his own behalf. He stated
that he made arrangements with X.R. to pick up his children so that he could
take them fishing. Villanueva and Luis
drove to the park and backed into a parking spot. A few minutes later, Villanueva saw X.R.'s
car approach. As Villanueva walked up to
X.R.'s car, he noticed that Flores was the driver. Villanueva opened the back car door and
proceeded to unbuckle one child's seat belt.
When Villanueva started to unbuckle the second child, Flores
accelerated the car and Villanueva jumped in.
The car hit the embankment, Villanueva was thrown to the front, and Flores
started punching him. As he blocked Flores's
punches, Villanueva noticed a tool underneath Flores's
legs on the driver's side of the vehicle and grabbed it. Villanueva started swinging the tool and it
caught Flores in the arm.
Flores
got out of the car and Villanueva told him to "come back and fight like a
man." The men proceeded to the
street where they punched at each other.
At this point, Villanueva's children were standing in the grass next to
the street. Villanueva went over to his
children, his brother pulled up in a car, and they all left together, leaving
Flores behind.
X.R.
testified that she recognized the voltage meter and had previously seen one
like it in her car. She also stated that
the voltage meter was in the backseat of her car when Flores took the car to
the park.
DISCUSSION
I. Sufficiency
of the Evidence
Villanueva
argues the evidence was insufficient to support his convictions for felony
child endangerment because there was no evidence that either child was harmed
or put in circumstances or conditions that were likely to produce great bodily
injury or death. We disagree.
A. Standard
of Review
When a defendant challenges the
sufficiency of the evidence on appeal, we " 'review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence — that is, evidence which is reasonable, credible, and of solid value
— such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.' " (People
v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Pugh (2002) 104 Cal.App.4th 66, 72.) The same standard of review applies to cases
in which the prosecution relies primarily on circumstantial evidence. (People
v. Rodriguez (1999) 20 Cal.4th 1, 11.)
"An appellate court must accept logical inferences that the jury
might have drawn from the circumstantial
evidence." (
396.)
The determination of a witness's credibility
and the truth or falsity of the facts upon which such determination depends is
within the exclusive province of the jury.
(People v. Barnes (1986) 42
Cal.3d 284, 303.) If the circumstances
reasonably justify the jury's findings, our opinion that the circumstances
might also be reasonably reconciled with a contrary finding does not warrant
reversal of a conviction. (
1124.) "The test is whether
substantial evidence supports the decision, not whether the evidence proves
guilt beyond a reasonable doubt." (
432.)
B. Analysis
"Public policy supports the
protection of children against risks they cannot anticipate. The felony child abuse statute 'was enacted
in order to protect the members of a vulnerable class from abusive situations
in which serious injury or death is likely to occur.' " (
618, 622.) Felony child endangerment
occurs when "[a]ny person who, under circumstances or conditions likely to
produce great bodily harm or death, . . . willfully causes or permits the
person or health of [any] child to be injured, or willfully causes or permits
that child to be placed in a situation where his or her person or health is
endangered." (Pen. Code, § 273a,
subd. (a), undesignated statutory references are to this code.)
Although section 273a, subdivision
(a), uses the word "willfully," the crime is one of general
and does not require malice or specific intent.
(People v. Sargent (1999) 19
Cal.4th 1206, 1224; People v. Hansen
(1997) 59 Cal.App.4th 473, 478.) "Criminal negligence 'means that the
defendant's conduct must amount to a reckless, gross or culpable departure from
the ordinary standard of due care; it must be such a departure from what would
be the conduct of an ordinarily prudent person under the same circumstances as
to be incompatible with a proper regard for human life.' " (
1028, 1032; see also People v. Valdez
(2002) 27 Cal.4th 778, 788, 791 (Valdez).) A finding of criminal negligence is made by
applying the objective test of whether a reasonable person in defendant's
position would have been aware of the risk involved. (Valdez,
at pp. 790-791.) If a reasonable person
in defendant's position would have been aware of the risk involved, defendant
is presumed to have had such an awareness.
(Ibid.) "Criminal negligence may be found even
when a defendant acts with a sincere good faith belief that his or her actions
pose no risk." (
Cal.App.3d 1667, 1682; Valdez, at p.
785 [approving cases that require only proof of criminal negligence].)
Here, the jury could have concluded
that Villanueva committed felony child endangerment by either stabbing Flores
in a moving vehicle or leaving his children unsupervised in the street. Viewed in the light most favorable to the
judgment, the evidence showed that Villanueva unbuckled the children's seat
belts and then stabbed Flores with a voltage meter. Even after the car started to move forward,
Villanueva continued his attempts to stab Flores in the neck, back and
head. The car then crashed into a
ditch. A reasonable person in
Villanueva's position would have been aware of the risks involved in stabbing
the driver of a moving vehicle. (
Moreover, Villanueva was aware of Flores's propensity to accelerate
vehicles to try to get away because a similar situation occurred in February
2009, resulting in injury to Villanueva.
By stabbing the driver of a moving vehicle, Villanueva willfully placed
his unrestrained children who were in the backseat of the car at risk of great
bodily harm. Thus, even without
considering Villanueva's conduct of leaving his children unsupervised in the
street, we conclude substantial evidence
supports Villanueva's convictions for felony child endangerment.
II. Denial
of Request to Reduce Child Endangerment Offenses to Misdemeanors
A. Background
Prior to
sentencing, Villanueva requested that the child endangerment convictions be
reduced to misdemeanors. Villanueva
argued that there was no showing that he acted in a reckless manner that would
likely result in death or great bodily injury because he did not drive the car
down into the ditch and the jury found the stabbing took place at the bottom of
the hill. The trial court disagreed with
Villanueva's characterization of when the stabbing took place and also noted
that it was particularly troubled that after the crash, Villanueva chased after
the victim rather than attending to his children who were unrestrained in the
street and in "grave danger."
The trial court then denied Villanueva's request.
B. Analysis
Villanueva asserts the trial court
abused its discretion when it refused to reduce his "wobbler"
offenses of child endangerment to misdemeanors.
Specifically, he contends that allowing his children to be in the street
does not constitute felony child endangerment; thus, the court erred in using
that fact to deny his request to reduce the crimes to misdemeanors. We disagree.
The decision whether to reduce a
"wobbler" to a misdemeanor is one of the sentencing choices within
the trial court's broad discretion. (§
17, subd. (b).) The party attacking the
sentence must show that the decision was irrational or arbitrary; in the absence
of such a showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives. (
977-978.) A sentence will not be
reversed because reasonable people might disagree with the trial court's
decision. (Ibid.) In deciding whether
to exercise its discretion, the trial court should consider several factors,
including the nature and circumstance of the current offense, and the
defendant's attitude, traits or character and history. (Id.
at pp. 981-982, 978.)
Applying these standards, we find
no abuse of discretion. Villanueva's
argument is premised on the notion that leaving his children unsupervised in
the street as he chased after and continued to fight with Flores does not
constitute felony child endangerment.
However, the trial court found that such conduct put the children in
"grave danger." Based on the
evidence, we agree with the trial court that Villanueva put his children at
risk of great bodily injury. At least two
witnesses saw the children unsupervised in the street. One of the witnesses was particularly
concerned because the children were running in and out of the street, which was
busy at the time. Villanueva displayed
no regard for his children's safety; rather, he focused on chasing after Flores
and continuing the fight. We conclude
this conduct put the children at risk of great bodily harm. Thus, Villanueva failed to meet his burden of
showing that the trial court's decision was irrational and arbitrary, and we
find no abuse of discretion.
III. Alleged
Prosecutorial Misconduct
A. Background
At trial,
Villanueva claimed that he found the tool he used to defend himself underneath
Flores's legs on the driver's side of the vehicle. To support this claim, Villanueva intended to
introduce photographs establishing that the fuse box in the car was open. The prosecution, however, argued that the
photographs were misleading because the initial pictures taken of the car during
processing showed the fuse box closed.
Villanueva's counsel complained that she was not previously shown the
photographs with the closed fuse box.
Thereafter, David Garber, a forensic specialist with the Chula Vista
Police Department, testified that he processed the car after it was recovered
from the park. Garber stated that the
cover to the fuse panel was closed when the vehicle first came to him and that
he later opened it.
During
closing argument, the prosecutor argued:
"[D]efense [Exhibit] A
pretty much shows what I'm showing you now, the little, for lack of a better
term, instrument dangling out of the fuse box.
Okay. And the defense has this
picture and they're going to come up here and tell you this thing was out. The victim was working on the car with that
fuse tester. That's why this thing was
out and that's why the weapon was right there in the car. They're going to say the -- the defendant
didn't introduce it. It was in the car
all along. That's what they're going to
say and they have this picture to try to argue that fact to you.
"Well, let's talk about
that. We heard testimony from Mr. Garber
that when the car was taken to the station -- to the impound lot -- I'm sorry
-- not the impound lot, but the place where it got processed, not where it was
stored, but the place where it was processed, this little box was closed. That's what he said. And then he said I opened it. And he took pictures of him opening it."
Villanueva objected to the argument and the court deferred
discussion about the objection. The
prosecution then argued that although defense counsel would argue that Garber
was biased or not reliable, the jury should believe Garber because the evidence
supported his claim that the fuse box was closed.
At a break
in the prosecutor's argument, the trial court addressed Villanueva's
objection. Villanueva argued that the
defense did not realize the fuse box was closed during the incident until trial
because certain photographs were not provided by the prosecution. Thus, Villanueva argued that it was improper
for the prosecution to suggest that the defense would claim the fuse box was
open because the evidence now demonstrated it was closed. The court stated that it was not sure why the
prosecution made the argument concerning the defense's stance on the fuse box because
it was clear that the defense had abandoned its position that the fuse box was
open at the time of the incident.
Villanueva moved for a mistrial, but the court denied it and instead
decided to admonish the jury that closing argument is not evidence. In that regard, before the prosecution
finished its closing argument, the trial court made the following statement to
the jury:
"I just want to remind you before we get started,
again, ladies and gentlemen, that argument is just that. It's just what the different sides believe
the evidence shows and how the law I gave you applies to the evidence. It is not -- don't listen to the argument and
then expect that the other side is going to -- to -- let's say there is -- was
this morning an argument that made mention of an anticipated argument by the
defense. It is not necessarily going to
be made. We're going to wait. We're going to hear whether there is an
argument being made. But don't
anticipate that argument has to be made because it was suggested by the
prosecution. Don't expect it to have to
be refuted by the defense just because it was suggested by the prosecution that
it might be made. Just listen to each
side, what they say they believe the evidence shows, how the law affects the
evidence, and, of course, it's ultimately your determination."
After the
jury's verdicts, Villanueva moved for a new trial, contending the prosecutor
committed misconduct by failing to disclose relevant photographs and by arguing
that the defense would claim the fuse box was open when it was irrefutably
closed. The court denied the motion,
stating that although the discovery issue was troubling, the error did not
result in a miscarriage of justice because the photographs were not
exculpatory. The court also noted that
Villanueva was acquitted on an attempted murder charge and that there was not a
reasonable probability that the outcome would have been different had the
photographs been disclosed because there was overwhelming evidence that
Villanueva used a voltage meter to stab Flores.
As to the prosecution's argument concerning the fuse box, the trial
court stated that its admonition to the jury was sufficient.
B. Analysis
Villanueva
argues the prosecution committed prejudicial misconduct by attributing an
argument to defense counsel that was irrefutably false. We disagree.
Improper
remarks by a prosecutor can so infect the trial with unfairness as to make the
resulting conviction a denial of due process.
(People v. Earp (1999) 20
Cal.4th 826, 858; Darden v. Wainwright
(1986) 477 U.S. 168, 181.) The defendant
need only show the prosecutor's misconduct prejudiced his right to a fair
trial, regardless of whether the misconduct was intentional or inadvertent. (People
v. Hill (1998) 17 Cal.4th 800, 822.)
"Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves the use of deceptive or reprehensible methods to attempt to persuade
either the trial court or the jury."
(People v. Morales (2001) 25
Cal.4th 34, 44.) When the claim focuses
on comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood the jury construed or applied any of the
complained of remarks in an objectionable fashion. (People
v. Ayala (2000) 23 Cal.4th 225, 283-284; People v. Frye (1998) 18 Cal.4th 894, 970.) The defendant has the burden of showing the
existence of prosecutorial misconduct. (
430.)
Here, even after Villanueva
abandoned his claim that the fuse box in the car was open at the time of the
incident, the prosecutor commented that defense counsel would raise that
argument and that the evidence showed it was false. While a prosecutor must not cast aspersions
on defense counsel (People v. Hill,
argument at issue in this case does not rise to the level of error under state
or federal law. The prosecutor's
argument was not " 'so
egregious' " as to
render the trial fundamentally unfair, nor was there "a reasonable
likelihood" the jury construed or applied the remarks in an objectionable
way. (People v. Ochoa (1998) 19 Cal.4th 353, 427.) Rather, the jury convicted Villanueva of
assault with a deadly weapon, a crime of which there was overwhelming
evidence. Moreover, the court adequately
admonished the jury regarding its consideration of counsel's arguments and that
those arguments are not determinative.
We presume the jurors understood and followed the court's
admonishment. (People v. Holt (1997) 15 Cal.4th 619, 662.)
DISPOSITION
The judgment is affirmed.
McINTYRE,
J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
