P. v. Brown

 

 

 

 

 

 

 

 

 

 

 

 

Filed 6/11/13  P. v. Brown CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 

 
>

THE PEOPLE,   Plaintiff and Respondent,       v.   FREDERICK BROWN,   Defendant and Appellant.

H037995      (Santa Cruz County       Super. Ct. No. F21069)

 

            A jury
convicted defendant Frederick Brown of corporal injury upon a cohabitant (Pen.
Code, § 273.5, subd. (a))href="#_ftn1"
name="_ftnref1" title="">[1]
and misdemeanor child endangerment (§
273a, subd. (b)).  On appeal,
defendant argues the child endangerment conviction must be reversed because the
trial court inadequately responded to a jury question regarding endangerment of
a child’s mental health.  In the
alternative, defendant contends the child
endangerment conviction must be reversed because his trial counsel rendered
ineffective assistance in failing to request a clarifying instruction regarding
endangerment of a child’s mental health. 
For the reasons set forth below, we will affirm. 

Statement of the Facts and the
Case

            Defendant
and Brandi King began dating in early 2011. 
After approximately one month of dating, defendant moved into Ms. King’s
Hayward home.  Ms. King’s four children—thirteen-year-old
T.W., nine-year-old L.H., seven-year-old W.T., and three-year-old A.M.—lived in
the house with defendant and Ms. King. 
Shortly after defendant moved into the house, he began complaining that
Ms. King’s children were disrespectful. 
Defendant also complained that Ms. King was too lenient in her
discipline of the children.  Ms. King and
defendant engaged in “hostile” discussions regarding the children’s
behavior. 

            Defendant
and Ms. King decided to take the four children on a vacation to Santa
Cruz on June
25, 2011.  That morning,
defendant and Ms. King drank shots of tequila while packing for the trip.  Defendant drove Ms. King and the children to Santa
Cruz, and they checked into a hotel suite.  Defendant and Ms. King drank more tequila in
the suite, and then they took the children to the Beach Boardwalk.  The children rode the rides until sunset, and
then everyone walked back toward the car. 


            On the way
to the car, T.W. asked Ms. King a question, and defendant answered the
question.  T.W. said, “Can I please talk
to my mom?  I’m asking my mom.”  Defendant responded, “You’re being very
disrespectful.”  On the drive back to the
hotel, defendant yelled, cursed, and told Ms. King that she needed to
discipline T.W. for being disrespectful. 
When they arrived at the hotel parking lot, defendant jumped out of the
car, slammed the car door, and walked away from Ms. King and the children.

            Ms. King
and the four children went back to their suite. 
The children sat in the living-room area, and Ms. King played with her
cell phone in the bedroom area. 
Defendant entered the suite, walked into the bedroom area, and yelled,
“Your children are so disrespectful.  How
dare you let them disrespect me like that.” 
He slapped the cell phone out of Ms. King’s hand and said, “I know
you’re not trying to call the damn police.” 
Defendant then pushed Ms. King’s head back, and she batted his hand
away.  She tried to walk away from
defendant, but he pushed her onto the bed. 
Defendant held her down and slapped her head and face.  He punched her in the face, head, and
shoulder area.  Ms. King shielded her
face and tried to kick him away from her. 
Defendant pulled her hair so hard that some of it came out of her
scalp.  She picked up a lamp and hit him
with it.  She tried to leave the bedroom
area, but defendant repeatedly pushed her into a corner.  He pushed her into the window, and the window
screen broke off.  He continued to
wrestle with her, but Ms. King eventually fought her way out of the suite.

            While
defendant was beating Ms. King, L.H. heard Ms. King yell for defendant to
stop.  L.H. ran into the bedroom area,
and he saw defendant hit Ms. King, punch her, and slam her into the wall.  L.H. said, “Stop.  Don’t hit my mom.”  Defendant continued to hit Ms. King, so L.H.
ran out of the suite to find T.W., who had left the suite upon defendant’s
arrival.  L.H. found T.W. in the hallway,
and he told T.W. to hurry back to the suite because defendant was hitting Ms.
King.  L.H. was crying, and he looked
scared.  T.W. and L.H. ran back to the
suite, and T.W. heard Ms. King screaming, “Get off me.  Get off me.” 
T.W. saw defendant holding Ms. King down and hitting her.  T.W. said, “Get off my mom.”  T.W. then ran to the lobby to get help.  A desk attendant called the police, and T.W
began crying. 

            When police
officers arrived at the hotel, defendant was yelling at Ms. King.  The officers saw that Ms. King had scratches
on her cheek and chest, swelling near her ear, and a torn and bloody
toenail.  One of the officers spoke to
the four children, and he saw that all of the children were upset, distraught,
and scared.  T.W. cried as she explained
how defendant had beaten Ms. King.

            Defendant
testified that Ms. King drank excessively on the Santa
Cruz trip. 
Defendant explained that Ms. King physically attacked him after he
complained about T.W.’s disrespectful attitude. 
He further explained that he never hit Ms. King, and that he only
restrained her from attacking him. 

             An information charged defendant with
infliction of corporal injury upon a cohabitant (§ 273.5, subd. (a); count 1),
misdemeanor endangerment of T.W. and L.H. (§ 273a, subd. (b); count 2),
dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count
3), interference with a wireless-communication device (§ 591.5; count 4),
and vandalism causing less than $400 damage (§ 594, subd. (a); count 5).  The information alleged that defendant had
served two prior prison terms (§ 667.5, subd. (b)). 

            A jury
convicted defendant of count 1 and count 2. 
The jury was unable to reach a verdict on the remaining counts, and the
court declared a mistrial on those counts. 
Defendant admitted the two prior prison terms.

            The trial
court sentenced defendant to a three-year prison term for count 1 and a
concurrent six-month jail term for count 2. 
On the day of the sentencing, defendant filed a timely href="http://www.fearnotlaw.com/">notice of appeal.

Discussion

            Defendant
argues his child endangerment conviction must be reversed because the trial
court inadequately responded to a jury question regarding the meaning of the
term “child’s person or health was endangered” as used in CALCRIM No. 823.  Specifically, defendant contends that when
the jury asked a question regarding endangerment of a child’s mental health,
the trial court had a sua sponte duty to provide examples and “draw the line”
between behavior that does and does not endanger a child’s mental health.  We conclude that the trial court adequately
responded to the jury’s question, and that the trial court was not required to
engage in the line drawing that defendant proposes.  We therefore find no abuse of discretion in
the trial court’s response to the jury’s question. 

            In the
alternative, defendant argues his child endangerment conviction must be
reversed because his trial counsel failed to request a clarifying instruction
that drew the line between conduct that does and does not endanger a child’s
mental health.  We conclude that trial
counsel’s decision to not seek such an instruction was a reasonable tactical
decision.  Accordingly, we conclude that
the child endangerment conviction need not be reversed due to href="http://www.mcmillanlaw.com/">ineffective assistance of counsel.   

I.  The Trial Court’s Response to
the Jury’s Question

            A.  Background

            The trial court instructed the jury with CALCRIM No. 823,
in relevant part:  “The defendant is
charged in Count 2 with child abuse in violation of Penal Code section
273a(b).  [¶] To prove that the defendant
is guilty of this crime, the People must prove that:  [¶] 1) The defendant, while having care or
custody of a child, willfully caused or permitted the child to be placed in a
situation where the child’s person or health was endangered; [¶] AND [¶] 2) The
defendant was criminally negligent when he caused or permitted the child to be
endangered.” 

            During
deliberations, the jury sent the court the following note regarding CALCRIM No.
823:  “Can the ‘child’s person or health
was endangered’ include mental/emotional health?  i.e., Can ‘health’ include mental/emotional
health?”  The court sent the following
one-word response:  “Yes.”  Defense counsel objected to the court’s
response, arguing that the court should have simply referred the jury to the
original instruction.

            >B. Standard of Review  

            “An appellate court applies the
abuse of discretion standard of review to any decision by a trial court to
instruct, or not to instruct, in its name="citeas((Cite_as:_22_Cal.4th_690,_*746,_9">exercise of its supervision
over a deliberating jury.”  (>People v. Waidla (2000) 22 Cal.4th
690, 745-746.)

            The
following principles must guide an appellate court’s abuse of discretion
analysis:  “ ‘The discretion of a trial
judge is not a whimsical, uncontrolled power, but a legal discretion, which is
subject to the limitations of legal principles governing the subject of its
action, and to reversal on appeal where no reasonable basis for the action is
shown.’  (9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 364, p. 420; see Westside
Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348,
355.)  ‘The scope of discretion always
resides in the particular law being applied, i.e., in the “legal principles
governing the subject of [the] action . . . .”  Action that transgresses the confines of the
applicable principles of law is outside the scope of discretion and we call
such action an “abuse” of discretion. 
[Citation.]  . . .  [¶] 
The legal principles that govern the subject of discretionary action
vary greatly with context. 
[Citation.]  They are derived from
the common law or statutes under which discretion is conferred.’  (City
of Sacramento v. Drew (1989) 207 Cal. App. 3d 1287, 1297-1298.)  To determine if a court abused its
discretion, we must thus consider ‘the legal principles and policies that
should have guided the court’s actions.’ 
(People v. Carmony [(2004)] 33
Cal.4th [367,] 377.)”  (>Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 773).)

            >C. 
The Trial Court Did Not Abuse its Discretion

            Section 1138 states that when
jurors “desire to be informed on any point of law arising in the case,” the
trial court must provide “the information required.”  Section 1138 imposes a mandatory duty “to
clear up any instructional confusion expressed by the jury.”  (People
v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on
another ground as stated in In re Steele (2004) 32 Cal.4th 682,
691.) 

            Although
section 1138 imposes “a primary duty to help the jury understand the legal
principles it is asked to apply,” this “does not mean the court must always
elaborate on the standard instructions.” 
(People v. Beardslee (1991)
53 Cal.3d 68, 97.)  The court “has
discretion to determine what additional explanations are sufficient to satisfy
the jury’s request for information.”  (>People v. Smithey (1999) 20 Cal.4th
936, 1009.)  Where the court’s response
to a jury question is “clear and correct,” the court has properly exercised its
discretion.  (Id. at p. 985.)  

            In the
instant case, it is undisputed that section 273a, subdivision (b) prohibits
endangerment of a child’s mental or emotional health.  Section 273a, subdivision (b) specifically
proscribes infliction of unjustifiable “mental suffering” upon a child.  Moreover, case law confirms that a defendant
violates section 273a, subdivision (b) if he or she imperils the mental or
emotional health of a child.  (See >People v. Burton (2006) 143
Cal.App.4th 447, 453-457 [substantial evidence supported a section 273a,
subdivision (b) conviction where a child experienced mental suffering—as
evidenced by his journal entries and problems at school—after witnessing the
aftermath of the defendant’s attack on the child’s mother]; see also >People v. Hamlin (2009) 170
Cal.App.4th 1412, 1453 [a section 273a, subdivision (b) conviction may be
“based on the mental suffering resulting from a child being exposed to physical
abuse by one parent against the other”].) 
Thus, the trial court’s succinct response to the jury’s question
accurately informed the jury that the phrase “child’s person or health was
endangered,” as used in the child endangerment instruction, included
endangerment of a child’s mental or emotional health.  Accordingly, because the trial court provided
a clear and correct response to the jury’s question, the response constituted a
proper exercise of the trial court’s discretion.  (See People
v. Smithey, supra, 20 Cal.4th at p. 985.) 


            Defendant
argues People v. Giardino (2000)
82 Cal.App.4th 454 (Giardino)
required the trial court, on its own motion, to provide examples and draw the
line between behavior that does and does not endanger a child’s mental or
emotional health.  Defendant’s reliance
on Giardino is misplaced. 

            In >Giardino, the jury asked the trial court
to provide a legal definition of the term “ â€˜resistance’ ” as used in an
instruction for the crime of rape by intoxication.  (Giardino,
supra, 82 Cal.App.4th at p. 464.)  In
response to the jury’s question, the trial court instructed the jury that “ ‘[t]his is an area in which you must use
your common sense and experience to determine the everyday meaning of
resistance.’ ”  (Ibid.)  Giardino held that the trial court’s response constituted an abuse
of discretion.  (Id. at p. 465.)  >Giardino reasoned that “the correct
interpretation [of the term resistance] focuses on whether the victim’s level
of intoxication prevented him or her from exercising judgment,” and that the
“defendant was entitled to have that concept correctly explained.”  (Id. at
p. 466.)  In reaching its holding, >Giardino also noted that a trial court
must provide “guidance and clarification” when a jury has difficulty
understanding and applying a statute.  (>Id. at p. 466, internal quotation
marks omitted.)  

            Defendant
asserts that Giardino’s “guidance and
clarification” language required the trial court to engage in detailed line
drawing in response to the jury’s question regarding mental and emotional
health.  Contrary to defendant’s
assertion, Giardino did not hold that
a trial court must engage in line drawing when a jury expresses confusion
regarding the meaning of a term used in a jury instruction.  Rather, Giardino
held that a trial court erred in providing a legally incorrect response to
a jury question.  (Giardino, supra, 82 Cal.App.4th at pp. 466-467).  In the instant case, there was no such
misstatement of law.  Additionally,
although the trial court provided a concise response to the jury’s question
regarding mental and emotional health, the response nonetheless provided
guidance and clarification as contemplated by Giardino.  Defendant’s
reliance on Giardino therefore is
unavailing. 

            For the
foregoing reasons, we conclude that the trial court adequately responded to the
jury’s question regarding mental and emotional health.  We accordingly find that the trial court’s
response to the jury’s question did not constitute an abuse of discretion. 

II.  Ineffective Assistance of Counsel

            Defendant alternatively argues
that his child endangerment conviction must be reversed because his trial
counsel failed to request a clarifying instruction regarding endangerment of a
child’s mental or emotional health. 
Specifically, defendant contends that trial counsel should have
requested an instruction that drew the line between behavior that does and does
not endanger a child’s mental or emotional health.

 

 

            A.  Background

            When discussing
the trial court’s response to the jury question regarding mental and emotional
health, trial counsel argued:  “I
certainly concede that [section 273a, subdivision (b)], on its face, includes
emotional/mental suffering.  [¶]  Further, I would point out that the CalCrim
Jury instructions specifically delineate such. 
What is not delineated in the instruction is where does one draw the
line?  And, how is it to be proven?  For instance, does crying count?  And, for how long would one have to cry?  The hypotheticals that could be pondered
regarding where one is to ‘draw the line’ are numerous.”

            Trial
counsel then objected to the trial court’s response to the jury question
regarding mental and emotional health: 
“Thus, it is really, as a practical matter, in the jury’s realm to draw
that line in a case such as this.  I
believe the court should have simply told the jury that [section 273a,
subdivision (b)] has already been defined as previously instructed.  I am concerned that the court answering ‘yes’
to this question is a course of action that could potentially taint the jury
regarding where to ‘draw the line.’ ”

            B. 
Trial Counsel was Not Ineffective

            To obtain
reversal due to ineffective assistance, a defendant must first show “that
defense counsel’s performance fell below an objective standard of
reasonableness, i.e., that counsel’s performance did not meet the standard to
be expected of a reasonably competent attorney.name="citeas((Cite_as:_201_Cal.App.4th_659,_*6">”  (People v. Cunningham (2001) 25
Cal.4th 926, 1003 (Cunningham); Strickland
v. Washington (1984) 466 U.S. 668, 688 (Strickland).)  Second, the defendant must show that there is
“a reasonable probability that defendant would have obtained a more favorable
result absent counsel’s shortcomings.”  (Cunningham,
supra, 25 Cal.4th at p. 1003.)  “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.”  (Strickland, supra,
466 U.S. at p. 694.)

            Because the
defendant bears this burden, “[a] reviewing court will indulge in a presumption
that counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a
matter of sound trial strategy.”  (People
v. Carter (2003) 30 Cal.4th 1166, 1211; see also People v. Witcraft (2011) 201 Cal.App.4th 659, 664.)  “If
the record contains an explanation for counsel’s actions, the
ineffective assistance claim will fail because we will defer to counsel’s
decision, and presume it falls within the wide range of reasonable
tactical decisions available to defense counsel
under similar circumstances”  (>People v. Montoya (2007) 149
Cal.App.4th 1139, 1150.)  “In order to
prevail on such a claim on direct appeal, the record must affirmatively
disclose the lack of a rational tactical purpose for the challenged act or
omission.”  (People v. Ray (1996) 13 Cal.4th 313, 349.) 

            In the instant case, the record
contains a rational tactical explanation for trial counsel’s conduct.  Trial counsel’s comments show that he wanted
the jury to be instructed in general terms, and that he believed giving the
jury detailed examples of endangerment of a child’s mental health would
encourage the jury to convict defendant of child endangerment.  Trial counsel’s decision to seek vague
instructions articulated in general terms—instructions that could potentially
cause jurors to doubt whether defendant’s behavior fell within the scope of the
child endangerment statute—was a reasonable tactical decision to which we must
defer.  (See People v. Lucero (2000) 23 Cal.4th 692, 731 [counsel was not
ineffective in failing to seek a clarifying instruction where counsel
reasonably concluded such an instruction “would have done more harm than
good”].)  We therefore conclude that
trial counsel did not render ineffective assistance in failing to request an
instruction that drew the line between conduct that does and does not endanger
a child’s mental or emotional health. 

            Defendant’s ineffective assistance
claim also fails because defendant does not provide a specific instruction that
trial counsel should have requested. 
Defendant asserts that trial counsel should have requested an
instruction that drew the line between behavior that does and does not endanger
a child’s mental or emotional health, but defendant does not specify what
examples and guidelines should have been included in such an instruction.  To prevail on a claim of ineffective
assistance of counsel, a defendant must “support his contentions” and establish
ineffectiveness as “a demonstrable reality and not a speculative matter.”  (People
v. Stephenson (1974) 10 Cal.3d 652, 661.)  Here, because defendant does not delineate a
specific instruction that trial counsel should have requested, his ineffective
assistance claim is merely speculative, and he has failed to meet his burden of
proof.  (See U.S. v. Cronic (1984) 466 U.S. 648, 666 [a defendant “can . .
. make out a claim of ineffective assistance only by pointing to specific
errors made by trial counsel”].) 

            Accordingly, for the foregoing
reasons, we conclude that trial counsel’s conduct fell within the wide range of
professional competence.  We therefore
hold that trial counsel did not render ineffective assistance. 

Disposition

            The judgment is affirmed. 



 

 

                                                                        ______________________________________

                                                                                                RUSHING, P.J.

 

 

 

 

 

 

WE CONCUR:

 

 

 

 

 

 

____________________________________

PREMO, J.

 

 

 

 

 

 

____________________________________

ELIA
J.