P.
v. Munson

























Filed 1/24/13
P. v. Munson CA2/4

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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. KIMBERLY GRACE MUNSON, Defendant and Appellant.

B237606 (Los Angeles County Super. Ct. No. BA370981)

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

Libby A.
Ryan, 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, Chung L. Mar and
Seth P. McCutcheon, Deputy Attorneys General, for Plaintiff and
Respondent.

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Kimberly
Grace Munson appeals from her conviction by jury verdict of href="http://www.fearnotlaw.com/">child custody deprivation in violation of
Penal Code section 278.5, subdivision (a) (statutory references are to this
code). Her only contention on appeal is
that the trial court abused its discretion by declining to reduce the felony
charge to a misdemeanor. We find no
abuse of discretion and affirm.



FACTUAL AND PROCEDURAL SUMMARY

Appellant
dated John Usry and became pregnant in 2003.
They never married. Their
daughter, Tuesday Usry, was born in March 2004.
The relationship between appellant and Mr. Usry ended in 2006. They had an informal custody arrangement for
Tuesday, and John paid informal child support.
By September 2008, communication between appellant and John had broken
down. He went to family court for a
formal custody order. In January 2009,
the court issued a custody order which provided that Mr. Usry was to pick
Tuesday up from preschool every second and fourth Friday of the month and to
drop her off at school the following Monday morning. He also was to have reasonable telephone
contact with Tuesday.

Mr. Usry
picked up Tuesday according to this custody schedule in January and February
2009, but appellant did not allow him to speak with the child on the
telephone. On Friday, March 20, 2009, he went to Tuesday’s
preschool to pick her up at the scheduled time, but the child was not
there. He was told that appellant had
picked her up two hours before. He was
not able to see the child that weekend.
The next visit with Tuesday was scheduled for April 10, 2009.
Mr. Usry saw the child briefly on Wednesday of that week when he brought
her an Easter basket at the school. He
went to the preschool on Friday April 10th at the scheduled time, but Tuesday
was not there. He was told that
appellant had taken her out of the preschool and moved her to another
school. He did not have an address for
appellant, but found an address on the internet. He contacted law enforcement to assist him in
seeing Tuesday, without success.

The next
time Mr. Usry saw Tuesday was a year later, on May 15, 2010. He
had no contact with the child between dropping off the Easter basket in April
2009 and May 2010. He attempted to
telephone appellant but was unable to reach her. In December 2009, Mr. Usry went to family
court to advise the court that he was not being allowed visitation. Appellant appeared in family court at a
hearing in April 2010, and after that Mr. Usry was able to see Tuesday in May
2010.

Mr. Usry
did not change his telephone number during the period when he was unable to
visit Tuesday. Appellant never attempted
to contact him to find out why he was not visiting Tuesday, and she did not
contact Mr. Usry in any way. He felt
frustrated and helpless.

Appellant
was charged with one felony count of child custody deprivation, in violation of
section 278.5, subdivision (a). After
jury instructions were given, appellant moved for a reduction of the charge to
a misdemeanor based on the nature of the offense and her record. The prosecutor objected to the reduction in
light of the length of time Mr. Usry was deprived of visitation. The prosecutor also indicated an
understanding that appellant was continuing to prevent Mr. Usry from seeing
Tuesday in a dependency matter. The
court declined to reduce the charge to a misdemeanor “based upon the facts as
presented in court at this time.”
Appellant was convicted by jury verdict as charged. Sentence was suspended and appellant was
placed on formal probation for five years.
She appealed from the judgment of
conviction.



DISCUSSION

When this
crime was committed, section 278.5, subdivision (a) provided: “Every person who takes, entices away, keeps,
withholds, or conceals a child and maliciously deprives a lawful custodian of a
right to custody, or a person of a right to visitation, shall be punished by
imprisonment in a county jail not exceeding one year, a fine not exceeding one
thousand dollars ($1,000), or both that fine and imprisonment, or by
imprisonment in the state prison for 16 months, or two or three years, a fine
not exceeding ten thousand dollars ($10,000), or both that fine and
imprisonment.”href="#_ftn1" name="_ftnref1"
title="">^[1]

Appellant
was charged with a felony violation of section 278.5, a “wobbler” which may be
punished as either a felony or misdemeanor.
She argues the trial court abused its discretion in failing to reduce
the charge from a felony to a misdemeanor, citing section 17, subdivision (b)
and People v. Superior Court (>Alvarez) (1997) 14 Cal.4th 968, 974
(Alvarez).)

The trial
court had the discretion to reduce the charge against appellant to a
misdemeanor because the statute authorized alternative felony or misdemeanor
punishment. (People v. Mauch (2008) 163 Cal.App.4th 669, 674.) We review the court’s ruling on a motion to
reduce a felony to a misdemeanor for abuse of discretion. (Alvarez,
supra, 14 Cal.4th at pp.
976–977.) The Supreme Court explained
the broad discretion accorded the trial court under section 17, subdivision
(b): “By its terms, the statute sets a
broad generic standard. [Citation.] The governing canons are well
established: ‘This discretion
. . . is neither arbitrary nor capricious, but is an impartial
discretion, guided and controlled by fixed legal principles, to be exercised in
conformity with the spirit of the law, and in a manner to subserve and not to
impede or defeat the ends of substantial justice. [Citations.]’
[Citation.] ‘Obviously the term
is a broad and elastic one [citation] which we have equated with “the sound
judgment of the court, to be exercised according to the rules of law.” [Citation.]’
[Citation.]” (>Id. at p. 977.)

The >Alvarez court explained that “‘[t]he
burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing objectives,
and its discretionary determination to impose a particular sentence will not be
set aside on review.’ [Citation.]” (Alvarez,
supra, 14 Cal.4th at pp.
977–978.) We may not reverse a
sentencing decision “‘merely because reasonable people might disagree. . .
.’ [Citation.]” (Id.
at p. 978.) The court found various
factors relevant, including the nature and circumstances of the offense, the
defendant’s appreciation and attitude toward the offense, or his or her
character as evidenced by his or her behavior and demeanor at trial. (Ibid.)

Appellant
argues that reduction to a misdemeanor was appropriate because she had only
three prior minor misdemeanor offenses for battery in 2001, petty theft in 2002
and driving with a suspended license in 2009.
She notes that she had no felony convictions and that the probation
report recommended that she be placed on probation. She cites a statement about a prior offense
made later by the trial court when it was considering whether to remand her
into custody after her conviction.
Appellant also notes the family court granted her custody, and that Mr.
Usry wished Tuesday to remain in her care.
Appellant characterizes her offense as “a very minor one.”

On this
record, appellant has not carried her burden of demonstrating that the trial
court abused its discretion in declining to reduce her conviction to a
misdemeanor. Mr. Usry was deprived
of visitation with Tuesday for over a year.
We disagree with appellant’s characterization of this as a minor
offense.



DISPOSITION

The
judgment of conviction is affirmed.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







EPSTEIN,
P. J.

We concur:









WILLHITE,
J. MANELLA,
J.