P. v. Pettie
A jury found defendant Candie Lee Pettie guilty as charged of two counts of indirect misdemeanor child endangerment (Pen. Code, 273a, subd. (b);[1]counts 1 and 2), based on an incident in which she left her two youngest children L. and J., ages three and five, in the care of her older daughter T., age 12. The jury found defendant not guilty of an additional charge of willfully resisting, delaying, or obstructing a peace officer in the discharge of his or her duties, a misdemeanor. ( 148, subd. (a)(1); count 3.) Defendant was placed on four years summary probation and appeals. Defendant claims the trial court prejudicially erred in failing to instruct the jury sua sponte on a material element, namely, the mental state or criminal negligence element, of the indirect misdemeanor child endangerment charges in counts 1 and 2. She claims the jury had to find she acted with criminal negligence, not merely general criminal intent, in order to find her guilty of indirect misdemeanor child endangerment. The trial court redacted the language concerning criminal negligence from CALJIC No. 16.170, the instruction it gave defining misdemeanor child endangerment, and instead instructed the jury it had to find defendant acted with general criminal intent. The People concede the instructional error but argue it was harmless beyond a reasonable doubt.
We agree with defendant that the trial court had a duty to instruct sua sponte on criminal negligence in counts 1 and 2. We further conclude the error was not harmless beyond a reasonable doubt in view of the entire record, including the evidence, the erroneous instruction, and the not guilty verdict on count 3. Although substantial evidence showed defendant acted with criminal negligence, the jury could have found her guilty in counts 1 and 2 based on evidence she acted only with general criminal intent, a less stringent mens rea standard. Accordingly, Court reverse the judgment.
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