P. v. Barlow



















Filed 1/25/13 P.
v. Barlow CA2/4

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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NOT TO BE PUBLISHED IN THE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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FOUR




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THE PEOPLE, Plaintiff and Respondent, v. PRISHA BARLOW, Defendant and Appellant.

B238943 (Los Angeles County Super. Ct. No. LA067572)

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Thomas Rubinson, Judge. Affirmed.

Johanna R. Shargel, 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, James William Bilderback II and Alene M. Games, Deputy
Attorneys General, for Plaintiff and Respondent.

>INTRODUCTION

Defendant Prisha Barlow
appeals from the judgment entered following her conviction by jury of href="http://www.fearnotlaw.com/">child endangerment. (§ 273a, subd. (a).)href="#_ftn1" name="_ftnref1" title="">>[1] She contends that the evidence is
insufficient to support the jury’s verdict.
We disagree and affirm the judgment.



STATEMENT OF
FACTS

1. Factual
Overview

Defendant works as a prostitute to
support her daughter and the child’s father, Jahamal Mayfield. While on the street with her three-month-old
daughter, she struck a bargain with Jairon Arreaga to orally copulate him at
her apartment. Arreaga drove defendant
and her daughter to the apartment. Once
there, defendant left her sleeping daughter in the bedroom and returned to the
living room where Arreaga awaited her.
What subsequently transpired was vigorously disputed at trial.

Arreaga testified that after he gave
defendant $30, defendant withdrew a gun hidden under an ottoman, pointed it at
him, and demanded the remainder of his money.
He gave her $20. He started to
leave the apartment but defendant continued to point the gun at him. Arreaga grabbed her hand. During the ensuing struggle, the gun
discharged. Neither individual was
hit. Arreaga left the apartment and
reported the matter to the police.

Defendant, in contrast, testified that
after she began to orally copulate Arreaga, he insisted upon sexual
intercourse. She refused. Arreaga forcibly removed her dress and pinned
her down on the couch. Fearing Arreaga
would rape her, defendant pulled a gun out from under the couch and told
Arreaga to leave. Arreaga tried to take
the gun away and during the struggle, the gun discharged.

The People charged defendant with
robbery (§ 211) and child endangerment (§ 273, subd. (a)). The jury deadlocked on the robbery charge (11
to 1 for not guilty) but convicted on the child endangerment charge.



2.
The
Prosecution’s Case

Arreaga testified as follows. At approximately 6:00 p.m. on January 25, 2011, he saw defendant on the sidewalk
with a baby stroller. He had never
before met defendant. Arreaga gave two
explanations as to why he stopped and
spoke with her. One was that defendant,
wearing “a nice sexy red dress,” had waved and said “hi” to him. The other was that because he saw that
defendant was trying to calm her crying baby, he stopped to ask her if she
needed any help. She replied “yes” and
asked him to pull over. In any event,
Arreaga drove into a parking lot and the two spoke. Defendant said that she needed money to buy
food for her baby. Eventually, she
agreed to orally copulate Arreaga for $30.
She asked him for a ride to her home which was “right across the
street.” Arreaga placed the baby
stroller in his car and defendant sat in the front passenger seat with her
three-month-old baby on her lap. They
drove to defendant’s apartment. The drive took “[n]ot even a minute.”

Once inside her apartment, defendant
put her infant in the bedroom. She
returned to the living room and asked Arreaga for the money. He gave her $30 whereupon defendant picked up
a gun from under an ottoman, pointed the weapon at Arreaga and demanded the
rest of his money. Arreaga gave her an
additional $20 as she pointed the gun at his chest. As Arreaga started to walk backwards towards
the front door, he grabbed defendant’s hand and pointed the gun upwards. Defendant bit the inside of Arreaga’s left
forearm, causing it to bleed; at about the same time, the gun fired. No one was injured by the discharge of the
firearm. Arreaga left the apartment and
ran to his car.

Later that day, Arreaga went to a
nearby police station and spoke with Los Angeles Police Office Cesar
Corrales. Officer Corrales testified
that Arreaga told him that he had been robbed at gunpoint. The officer took two photographs of the bite
mark on Arreaga’s arm.href="#_ftn2"
name="_ftnref2" title="">[2]

Arreaga gave the officer defendant’s
address. Officer Corrales and his partner
went to investigate. Officer Corrales
knocked on the apartment door but no one answered. Because Arreaga had told Officer Corrales
that a baby was in the apartment, the officer’s partner kicked down the door
out of concern for the infant’s safety.
No adult was present inside of the apartment. The baby was asleep on the bed in the
bedroom. Marijuana and two live rounds
of ammunition were found on the floor at the foot of the bed. In the living room, Officer Corrales found a
black pouch under an ottoman. The pouch
contained an unloaded revolver, ammunition, a spent casing and marijuana. A child’s toy lay next to the pouch. A bullet hole was in the ceiling in the
living room.

While Officer Corrales was conducting
his investigation, Mayfield arrived at the apartment.href="#_ftn3" name="_ftnref3" title="">>[3] He told the officer that the baby was his
daughter and that he lived in the apartment.
He had unloaded the gun and placed it under the ottoman. Lastly, he told the police that defendant
typically kept the gun under the ottoman.


Late that evening, defendant came to
the police station to ask about her baby.
Officer Corrales told her that she was charged with child endangerment,
robbery, and discharge of a firearm.
After being advised of and waiving her Miranda rights, defendant provided the following written
statement: “I did not fire a gun in my
life. I never endangered my
three-month-old child. I love her.”



3. The
Defense Case

Defendant testified on her behalf as
follows. She has worked as a prostitute
for five years. That work supports her
infant daughter and Mayfield, the child’s father. Approximately a month and a half prior to the
events underlying this case, Arreaga paid defendant $50 to perform oral sex in
his car.

On January
25, 2011, she was walking with her daughter when Arreaga pulled up in his car and
asked: “[Y]ou remember me?” She replied that she did. He asked:
“Are you working like right now?”
Initially, defendant replied no but soon agreed to perform oral sex for
$50. She told Arreaga that they would go
back to her apartment, “on the corner right here.” Arreaga put her stroller in his car and she
entered the vehicle with her baby. They
drove to her apartment, “[l]ike a half a block” away.

At her apartment, defendant placed her
sleeping daughter in the bedroom and closed the door. When she returned, Arreaga was seated in the
living room (approximately 20 to 22 feet from the bedroom). Defendant saw that he had placed cash on an
end table. She sat down on the couch
next to Arreaga. After the two drank
some vodka, defendant began to orally copulate Arreaga. At one point, Arreaga stated that he desired
sexual intercourse because “[i]t will be faster.” Defendant replied “no” whereupon Arreaga
forcibly removed her dress and began to fondle her. Defendant repeatedly told him to stop. Arreaga pinned her down on the couch. Defendant became scared because Arreaga was
bigger and stronger, six or seven inches taller and 40 pounds heavier than
she. Fearful that Arreaga would rape
her, defendant bit his forearm “hard” but Arreaga would not let go of her. Defendant remembered that Mayfield sometimes
kept his gun under the couch. She
reached underneath the couch, grabbed the gun, and told Arreaga “Get out of my
house. Just leave me alone.” Defendant did not know that the gun was
loaded and did not point it at Arreaga.
Arreaga “came and attacked [her] and tried to take the gun away from
[her] hand.” As the two struggled over
the gun, it discharged. Defendant ran
into the bedroom and Arreaga left through the front door.

Defendant testified that approximately
10 minutes later, Mayfield returned to the apartment. She told him what had happened. Mayfield, angry that she had invited a “john”
to the apartment and had pulled his gun on the man, told her to leave.href="#_ftn4" name="_ftnref4" title="">[4] She left.

Defendant denied that she either
attempted to rob Arreaga or had endangered her daughter through her
conduct. However, in regard to the
latter charge, she testified that she was aware that riding in Arreaga’s car with
her infant on her lap instead of in a car seat created the risk that the child
could have been severely injured or killed if there had been a car accident but
that, nonetheless, she had done so in order to earn $50 from Arreaga. Further, she conceded that “working as a
prostitute is pretty dangerous”; that she accepted rape as a danger of being a
prostitute; and that “there is a reason [she did not] bring people to [her]
apartment.”



3. The
Jury Instructions

The pattern CALCRIM instructions
explaining robbery and child endangerment were submitted to the jury. In addition, the jury was told: “The People have presented evidence of more
than one act to prove that the defendant committed [the] offense [of child
endangerment]. You must not find the
defendant guilty unless you all agree that the People have proved that the
defendant committed at least one of these acts and you all agree on which act
she committed.” (CALCRIM No. 3500.)



4. The
Closing Arguments

The bulk of each party’s closing
argument centered on the robbery charge and whether Arreaga or defendant was
telling the truth about why defendant used the gun: did she try to rob Arreaga or was she
defending herself against Arreaga’s attempt to rape her?

In regard to the child endangerment
charge, the prosecutor said only: “[I]n
the course of committing that robbery [of Arreaga], [defendant] did endanger
her child. When she decided to take a
john up to the apartment and introduced a gun into this equation, at that point
in time, ladies and gentlemen, any reasonable person would know that you were
putting your child’s life in danger[,] that is child endangerment.”

Defense counsel argued that
defendant’s conduct did not rise “to a level of child endangerment” because
while “it wasn’t a wise choice for her to take [Arreaga] home[,] . . . she was
not endangering her baby. She did not
intend to take [Arreaga] home and pull a gun on him. It just turned out to be like that.” When Arreaga tried to rape her, “she reaches
for a gun. She doesn’t intend to use it. She wants to scare him off and she is not
endangering her baby at that time.
What she’s doing is trying to
protect herself from being raped. She’s
not committing a felony child endangerment.
Her actions are reasonable.
Anyone would probably have done that in that situation.” Defense counsel also summarily dismissed the
theory that defendant committed child endangerment when she held her “baby on
her lap when driving [with Arreaga], not in a car seat, for half of a block.”

5. The
Jury’s Verdicts and Subsequent Proceedings

The jury convicted defendant of child
endangerment but deadlocked on the
robbery charge.

At the sentencing hearing, the trial
court granted the People’s motion to dismiss the robbery charge. (§ 1385.)



DISCUSSION

Insofar as is relevant to
this case, a defendant violates section 273a, subdivision (a) if “under
circumstances or conditions likely to produce great bodily harm or death [and]
having the care or custody of any child [she] willfully causes or permits that
child to be placed in a situation where his or her person or health is
endangered.” Decisional law consistently
has interpreted the statute to contain a criminal
negligence standard. (>People v. >Valdez (2002) 27 Cal.4th 778, 790.) Criminal negligence means that the
defendant’s conduct amounts to “‘a reckless, gross or culpable departure from
the ordinary standard of due care [that is] incompatible with a proper regard
for human life.’” (People v. Odom (1991) 226 Cal.App.3d 1028, 1032.) A defendant’s conduct is “likely” to produce
great bodily injury or death if it creates “a substantial danger” or a “serious
and well-founded risk” of either result occurring. (People
v. Wilson (2006) 138 Cal.App.4th
1197, 1204.)

Whether the evidence supports the
jury’s conviction of defendant on the child endangerment charge is subject, of
course, to the deferential substantial evidence standard of review that
recognizes that it is the exclusive province of the jury to determine the facts
and decide credibility. (>People v. Boyer (2006) 38 Cal.4th 412,
480.)

In this case, the evidence, viewed in
the light most favorable to the judgment, establishes that defendant supported
herself by working as a prostitute. She
recognized the dangers posed by this endeavor, including the possibility of
rape and the risks inherent in bringing a “john” to her apartment. Nonetheless, she brought Arreaga (a man she
did not know) to her apartment to engage in sexual conduct for money. She did so while her three-month-old daughter
(far too young to protect herself from any harm) was present in the next
room. A confrontation with Arreaga
ensued. Defendant withdrew a loaded gun
from under the ottoman (the location where she regularly kept the gun) and
pointed it at Arreaga. A struggle ensued
and the gun discharged. Based upon these
facts, a rational jury could find that defendant permitted her daughter to be
placed “‘in a situation in which serious physical danger or health hazard to
[her was] reasonably foreseeable.’”href="#_ftn5"
name="_ftnref5" title="">[5] (People
v. Hansen (1997) 59 Cal.App.4th 473, 479.)
That her daughter was not actually harmed does not matter. (Cline
v. Superior Court (1982) 135 Cal.App.3d 943, 948.) Section 273a “is intended to protect a child
from an abusive situation in which the probability of serious injury is
great.” (People v. Jaramillo (1979) 98 Cal.App.3d 830, 835.)

To avoid the force of this conclusion,
defendant argues that her use of the gun in her confrontation with Arreaga
cannot be considered criminally negligent because the jury deadlocked on the
robbery charge. She argues that the
“only sensible interpretation of the evidence—the one the jury seems to have
adopted—is that she took the gun out in self-defense [and] protecting oneself
against imminent rape is not a ‘gross
departure from the conduct of an ordinarily prudent person.’” The argument is not persuasive for two
reasons.

First, it ignores the fact that even
were one to credit her testimony that she used the gun in self-defense (a
conclusion we do not reach), she created the situation in which the need to use
the gun arose. She brought Arreaga back
to her apartment to engage in criminal conduct (prostitution), fully aware of
the risks inherent in that situation and the fact that her three-month-old
daughter was in the next room.

Second,
“‘[s]ufficiency-of-the-evidence review involves assessment by the courts of
whether the evidence adduced at trial could support any rational determination
of guilt beyond a reasonable doubt.
[Citations.] This review should be independent of the jury’s determination that
evidence on another count was insufficient.
The Government must convince the jury with its proof, and must also
satisfy the courts that given this proof the jury could rationally have reached
a verdict of guilt beyond a reasonable doubt.’”
(People v. Palmer (2001) 24
Cal.4th 856, 863-864, italics added, quoting from United States v. Powell (1984) 469 U.S. 57, 67.)

This approach is consistent with the
principle that “an inherently inconsistent verdict is allowed to stand; if an
acquittal of one count is factually irreconcilable with a conviction on
another, . . . effect is given to both.
[Citations.]” (>People v. Santamaria (1994) 8 Cal.4th
903, 911.) By a parity of reasoning, the same result follows
when, as here, the jury is unable to reach a verdict on one count (robbery) but
convicts on another (child endangerment).
“When a jury renders inconsistent verdicts, ‘it is unclear whose ox has
been gored.’ [Citation.] The jury may have been convinced of guilt but
arrived at an inconsistent acquittal [or deadlock] ‘through mistake,
compromise, or lenity. . . .’
[Citation.] Because the defendant is given the benefit of the acquittal [or
dismissal following a jury deadlock], ‘it is neither irrational nor illogical
to require her to accept the burden of conviction on the count[] on which the
jury convicted.’ [Citation.]” (Ibid.,
italics added.)

Defendant’s remaining arguments
“amount[] to no more than an invitation to this court to reweigh the evidence
and substitute its judgment for that of the jury. That is not the function of
an appellate court.” (>People v. Guzman (1996) 45 Cal.App.4th
1023, 1027.) Further, there is no need
to discuss whether the evidence would also be sufficient to support the
conviction on any of the other theories advanced in the trial court or the
appellate briefs.href="#_ftn6" name="_ftnref6"
title="">[6] Even were we to find that the evidence was
insufficient to support a conviction
based upon any one of those theories (findings we do not make), reversal would not be required because
substantial evidence supports the jury’s verdict on the theory set forth above
(the theory urged by the prosecutor in closing argument) and the jury was
instructed that all jurors had to agree that defendant committed the same act. No more is required. (People
v. Guiton (1993) 4 Cal.4th 1116, 1126-1129, relying upon Griffin
v. United States (1991) 502 U.S.
46; see, in general, 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)
Criminal Appeal, § 170, pp. 453-455.)



DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





WILLHITE,
J.





We concur:







EPSTEIN, P. J. MANELLA, J.