P. v. Kingsland

























Filed 12/17/12 P. v. Kingsland CA2/3

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SECOND
APPELLATE DISTRICT



DIVISION
THREE




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THE PEOPLE, Plaintiff and Respondent, v. WILLIAM EDSON KINGSLAND, Defendant and Appellant.

B234053 (Los Angeles County Super. Ct. Nos. MA047628 & MA051159)

APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Christopher G.
Estes, Judge. Modified and,
as so modified, affirmed.

Joy A.
Maulitz, under appointment by the Court of Appeal, for Defendant
and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Kim
Aarons, Deputy Attorneys General, for Plaintiff and Respondent.



_________________________









William Edson Kingsland
appeals the judgment entered following his conviction by jury of desertion of a
child under the age of 14 years with the intent to abandon (child abandonment)
and misdemeanor child endangerment. (Pen. Code, §§ 271, 273a, subd. (b).)href="#_ftn1" name="_ftnref1" title="">[1] We order the judgment modified to stay,
pursuant to section 654, the concurrent six-month term imposed with respect to
misdemeanor child endangerment in count 1. At the request of the People, we further
order the judgment modified to reflect a $40 court
security assessment (§ 1465.8, subd. (a)(1)) and a $30 court facility
assessment (Gov. Code, § 70373) as to
count 1. As so modified, the judgment is
affirmed.

FACTS AND
PROCEDURAL BACKGROUND

1.
The
prosecution’s evidence.

On the morning
of Monday,
November 15, 2010, Jessica Sanchez, a
resident of an apartment complex on Beech
Avenue in Lancaster,
prepared to walk her children and her nieces to school. Sanchez’s sister telephoned at 7:23 a.m.
to advise Sanchez she and her daughters were leaving their home. Sanchez walked outside with her children at 7:25 a.m. As she exited the gate to the complex, she
saw Kingsland leaning over the fence next to a baby in a stroller. Sanchez had never seen Kingsland or his child
and asked Kingsland if he wanted to enter the complex. Kingsland responded, “no,” and indicated he
“was just waiting right there.”

As Sanchez
waited for her sister, Kingsland asked how long Sanchez had lived in the
complex. When Sanchez told him she had
been there for more than a year, Kingsland responded he had been there for six
months and he was ready “to get the ‘F’ out.”

Kingsland then began speaking into a
cell phone to someone named Tiffany.
Sanchez overheard Kingsland tell Tiffany “she
wasn’t going to leave him,” and “he wasn’t scared” even though “she could get
her brothers to come and beat his ass.”
Sanchez knew a Tiffany who lived in the complex and assumed she was the
baby’s mother. Kingsland then asked
Sanchez the time. When Sanchez wondered
why Kingsland did not look at the time on his cell phone, Kingsland told her
his phone was broken and showed Sanchez the phone had a cracked screen.

When Sanchez’s sister arrived,
Sanchez, her nieces and her children began walking toward the school. Sanchez looked back and saw Kingsland was
gone but the stroller and baby were still there. As Sanchez walked toward the stroller, she
saw Kingsland across the street and down the block and yelled. “Hey, your
baby.” Kingsland continued to walk from
the baby and responded, “Fuckin’ leave him there, or if you want [sic].” Sanchez then said, “It’s your baby,” and
Kingsland responded, “Fuckin’ take him if you want him or let the cops or his
foster parents come and get him.” As Sanchez
reached the stroller, Kingsland again stated Sanchez could take the baby. He then turned and walked away. At that point, Kingsland was approximately 50
yards from the stroller.

Sanchez found
the baby was not strapped into the stroller and the stroller wheels were
not locked. Although it was cold, the
baby was wearing only a “onesie,” i.e., a T-shirt that fastened between the
baby’s legs. There was a receiving blanket
in the stroller but it was not covering the baby.

Sanchez pushed
the stroller to the school where she located the Tiffany she knew but learned
she was not the baby’s mother. Tiffany
called 911. As Sanchez waited for a
sheriff’s deputy to arrive and take custody of the child, she found a burn mark
on his right hand and noticed his diaper was “soaked” with urine. When she changed the baby’s diaper, she
noticed he had a “really bad” rash, and his “private was swollen.” The baby also drank a cup of milk “very
fast.”

Angelica L.,
the foster mother to the baby and his older sister, testified that, at the time
of the incident, Kingsland and his wife, Tiffany, had custody of the children
from Friday evening until Monday.
Angelica L. normally picked the children up on Monday at either 9:00
a.m. or later in the day, at around 6:00 p.m.


Early on the
morning of November 15, 2010, or perhaps the previous evening, Angelica L.
received a telephone call from Tiffany stating Tiffany and her daughter had
missed the bus home from Disneyland.
Angelica L. agreed to pick the children up later in the day. She subsequently received a telephone call
from the sheriff’s department and went to the sheriff’s station. When Angelica L. received the baby, she
noticed his diaper rash was worse than usual.


Deputy Sheriff
Richard Ellis testified the temperature in Lancaster on the morning of the
incident was 41 degrees. Deputy Ellis
also testified Sanchez’s apartment complex is in one of the “rougher
neighborhoods” in Lancaster, making it a particularly unsafe area to leave a
child unattended.

2.
Defense evidence.

Kingsland
testified in his own defense. On the
Saturday prior to the incident, his wife went to Disneyland with their
daughter. She did not return on Sunday
afternoon as he anticipated and, by Monday morning, he still had not heard from
her. Kingsland’s cell phone “locked . .
. because [he] didn’t have the right security code” and he was having “major
anxiety” because he did not know where his wife was or whether she would be
home by 9:00 a.m. to return the children to the foster mother.

At 7:30 a.m.,
Kingsland dressed the baby in a long sleeve onesie and socks, covered the child
with the blanket and went outside to meet the foster mother and to try to find
a telephone to contact his wife.
Kingsland asked several people in the apartment complex if they had seen
his wife. Kingsland was “very worried”
and a “perhaps a little angry” with his wife.
He had been outside approximately 20 minutes when he saw Sanchez. He recognized Sanchez from the apartment
complex and struck up a conversation with her in order to judge her character
because he wanted someone to watch the baby while he went down the street to a
friend’s house to use the telephone.
Although he appeared to be talking on his cell phone in Sanchez’s
presence, he was “just going over things in [his] head.”

Kingsland spoke
to Sanchez for about five minutes and, at the end of the conversation, Sanchez
agreed to watch the baby. Kingsland told
Sanchez the child’s foster mother would arrive at 9:00 a.m. in a red van, or his
wife might return and take the baby.
Kingsland claimed Sanchez was alone and had no children with her. However, he previously had seen her caring
for children in the apartment complex.

Kingsland went to his friend’s house but no one answered the
door. He then walked to a Boost Mobile
store to get his phone fixed, but the store was not open, so he took a bus to a
Wal-Mart to buy a new phone. When
Kingsland returned at approximately 11:30 a.m., Sanchez and his son were gone. Kingsland called his wife, who
told him the police had taken custody of their son.

3.
Verdicts
and sentencing.

In count 1, the
jury acquitted Kingsland of felony child endangerment in violation of section
273a, subd. (a), but convicted him of misdemeanor child endangerment in
violation of section 273a, subdivision (b).href="#_ftn2" name="_ftnref2" title="">>[2] In count 2, the jury convicted Kingsland of
child abandonment in violation of section 271.
The trial court sentenced Kingsland to the upper term of three years for
child abandonment and imposed a concurrent term of six months for misdemeanor
child endangerment.href="#_ftn3" name="_ftnref3"
title="">[3] With respect to count 2, the trial court
ordered Kingsland to pay, inter alia, a $40 court security assessment (§
1465.8, subd. (a)(1)) and a $30 court facility assessment (Gov. Code, § 70373).


>CONTENTIONS

Kingsland contends the punishment for misdemeanor child
endangerment should have been stayed pursuant to section 654
as the offense arose out of the same, indivisible course of conduct as the
conviction of child abandonment.

The People contend the trial court erred in failing to impose a
court security and a court facility assessment with respect to count 1.

DISCUSSION

1.
The concurrent term imposed with respect to
count 1 must be stayed.

Section
654 prohibits punishment for two crimes arising from a single, indivisible
course of conduct.href="#_ftn4" name="_ftnref4"
title="">[4] (People v. Latimer (1993) 5 Cal.4th
1203, 1208.) Thus, if all of the crimes
were merely incidental to, or were the means of accomplishing or facilitating a
single objective, the defendant may receive only one punishment. (Ibid.) “The defendant’s intent and objective are
factual questions for the trial court; [to permit multiple punishments,] there
must be evidence to support a finding the defendant formed a separate intent
and objective for each offense for which he was sentenced. [Citation.]”
(People v. Adams (1982) 137 Cal.App.3d 346, 355.) When a trial court sentences a defendant to
separate terms without making an express finding the defendant entertained
separate objectives, the trial court is deemed to have made an implied finding each
offense had a separate objective. (>People v. McKinzie (2012) 54
Cal.4th 1302, 1368; People v. Osband (1996) 13 Cal.4th 622,
730-731.) “A trial court’s implied
finding that a defendant harbored a separate intent and objective for each
offense will be upheld on appeal if it is supported by substantial
evidence.” (People v. Blake
(1998) 68 Cal.App.4th 509, 512.)

Kingsland contends
his single objective with respect to both offenses was to free himself of the
care of his child while he tried to contact his wife. He argues the abandonment of the child was
the only criminal act in question and it was the means by which both offenses
were committed. Because both charges
involved the same conduct, the punishment for the lesser offense must be
stayed.

The People
claim the crime of child endangerment occurred when Kingsland failed to provide
adequate food, clothing, shelter, or hygiene for the baby. Specifically, Kingsland failed to dress the
baby adequately in light of the temperature, failed to provide adequate hygiene
by changing the baby’s diaper with enough frequency to prevent diaper rash, and
failed to provide adequate hydration as demonstrated by the baby’s thirst. They assert the failure to provide such care
is sufficient to support the conviction of misdemeanor child endangerment. Thus, according to the People, the crime of
child endangerment was complete before Kingsland abandoned the baby. Therefore, the trial court properly imposed a
concurrent term for misdemeanor child endangerment.

Had the People
proceeded at trial on the theory the crime of child endangerment was complete
before Kingsland left the child in the stroller, their current assertion might
be tenable. However, the prosecutor
relied on the act of leaving the child to support both the count of child
endangerment and the count of child abandonment.

In opening argument,
the prosecutor noted child endangerment required proof the child was
placed in a situation in which his person or health may be endangered. The prosecutor asked: “Now, what situation are we talking about? .
. . [¶] . . . He dressed [the child] up in only a onesie; he brought [the
child] outside in 41° temperature; he didn’t fasten [the child] into the
stroller; he didn’t secure the stroller in any way; . . . and he left the
stroller 7 feet from a public street; he then left the location northbound on
Beech Avenue and [walked] out of sight.
[¶] So this is what is
constituting Count 1, this is what we are looking at. This is what the defendant did to put [the
child] in this situation. [¶] So when I refer to ‘situation,’ I’m referring
to all of these things that he did.”

After noting a
reasonable person would not even leave a cell phone on the sidewalk, the
prosecutor asked: “is putting [the
child] in this situation, leaving him out in the street, in 40° weather,
wearing barely anything, not strapped into a stroller, is that the kind of
situation that an ordinary and careful parent would do under the
circumstances? [¶] Absolutely not.” The prosecutor concluded the People had
proved “guilt beyond a reasonable doubt as to Count 1.” The prosecutor thereafter addressed count 2,
child abandonment.

In rebuttal argument, the prosecutor asserted that, even if the
jury believed Kingsland’s testimony, “you can still find him guilty on count 1,
because leaving your child with a complete stranger whose name you don’t know,
whose address you don’t know, who you don’t know anything about, certainly is
something that is likely to cause great bodily injury.”

Given the prosecutor’s
argument, the People cannot be heard to argue the conduct underlying count 1,
child endangerment, was separate from the conduct underlying count 2, child
abandonment. (See
People v. McKinzie, >supra, 54 Cal.4th at p. 1369 [defendant
could not be punished for both carjacking and kidnapping for robbery because
the prosecutor
argued
to the jury the victim’s car was the object of the robbery].)>

We shall
order the judgment modified to stay the term imposed for child endangerment.

2. >The abstract of judgment must be corrected
to reflect additional assessments.

With respect to
the principal term, child abandonment in count 2, the trial court ordered
Kingsland to pay a $40 court security assessment (§ 1465.8, subd. (a)(1)), and
a $30 court facility assessment (Gov. Code, § 70373). The People contend the trial court should
have imposed the same fees with respect to count 1. It appears this contention is well taken.

Section 1465.8,
subdivision (a)(1), states “an assessment of forty dollars ($40) shall be imposed
on every conviction for a criminal offense, including a traffic offense, except
parking offenses . . . .” Government
Code section 70373, subdivision (a)(1) states an assessment in the amount of
$30 “shall be imposed on every conviction for a criminal offense, including a
traffic offense, except parking offenses . . . .”

Because these
assessments are mandatory, their omission constitutes an unauthorized sentence
which may be corrected at any time. (See
People v. Castellanos (2009) 175
Cal.App.4th 1524, 1530; People v.
Valenzuela (2009) 172 Cal.App.4th 1246, 1249.) We shall order the judgment amended to
include a $40 court security assessment and a $30 court facility fee as to
count 1.

DISPOSITION

The
judgment is modified with respect to count 1, misdemeanor child endangerment in
violation of section 273a, subdivision (b), to reflect a stay
pursuant to section 654 of the concurrent term imposed, and to
reflect a $40 court security assessment (§ 1465.8, subd. (a)(1)) and a $30
criminal conviction assessment (Gov. Code, § 70373). As so modified, the judgment is
affirmed. The clerk of the
superior court shall prepare and forward to the Department of Corrections and
Rehabilitation an amended abstract of judgment reflecting these modifications.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:







KITCHING,
J.









ALDRICH,
J.