P. v. Clark

Filed 1/18/07  P. v. Clark CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Jerome Donald Clark appeals from the judgment entered after conviction by a jury of eluding a pursuing peace officer (Veh. Code, §  2800.2), grand theft from the person (Pen. Code, §  487, subd. (c)),^[1] felony child endangerment (§273a, subd. (a)), and two counts of carjacking. (§ 215.) (CT 177-181)  Appellant admitted that he had served a prior prison term. (§  667.5, subd. (b).)  The trial court sentenced him to prison for 14 years, 4 months. 

Appellant contends that the trial court erred in failing to instruct sua sponte on the lesser included offense of misdemeanor child endangerment.  He also contends that, in violation of section 654, the court imposed consecutive sentences for felony child endangerment and a carjacking conviction involving the same victim.  We affirm.

Facts^[2]

             Erika Gomez drove her Ford Escort to a gas station.  Her three-year-old daughter, Delylah, was in a car seat in the back seat of the vehicle.  Delylah remained in the car seat while Gomez pumped gas and cleaned the windshield.  Appellant opened the driver's door of the Ford Escort and " jumped in the car real fast."   Appellant closed the door, and Gomez " tried to jump" into the car through the open driver's window.  Her torso was " halfway" inside the car. 

            Appellant started the engine with the keys, which Gomez had left in the ignition.  While struggling with Gomez, appellant drove the car out of the gas station.  Appellant hit Gomez three times in the face with a purse.  Delylah was screaming in the back seat.  After about half a block, Gomez fell onto the street.  She got back up and ran after the vehicle.  She was yelling, " Stop, my baby."  

            Appellant did not stop.  While the car was moving, appellant reached into the back seat, grabbed Delylah, held her head first outside the driver's window, and " dropped" her.  Appellant did not hand Delylah to Gomez.  Although Gomez " wasn't right next to" Delylah, she was able to grab Delylah's left arm before appellant dropped her.  Delylah landed on her hip and knee in " the middle of the street," where there was " oncoming traffic."   Her head did not hit the street.  Appellant drove away. 

Delylah " was shaken up," and her hip and knee were " scraped."   She did not bleed.  Gomez refused medical treatment for her daughter. 

Lesser Included Offense Of Misdemeanor Child Endangerment

Appellant was convicted of felony child endangerment, which encompasses acts committed " under circumstances or conditions likely to produce great bodily harm or death . . . ."   (§  273a, subd. (a).)  " 'Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury.'  [Citation.]  However, there is no requirement that the victim suffer great bodily harm.  [Citation.]"   (People v. Cortes (1999) 71 Cal.App.4th 62, 80.)

Appellant contends that the trial court erred in failing to instruct sua sponte on the lesser included offense of misdemeanor child endangerment, which encompasses acts committed " under circumstances or conditions other than those likely to produce great bodily harm or death . . . ."   (§  273a, subd. (b).) (AOB 8)

            A trial court is not required to instruct sua sponte on all lesser included offenses.  " [T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury.  [Citations.]  'Substantial evidence' in this context is ' " evidence from which a jury composed of reasonable [persons] could ... conclude[]"   ' that the lesser offense, but not the greater, was committed."   (People v. Breverman (1998) 19 Cal.4th 142, 162.) 

A reasonable jury could not have concluded that appellant had committed only the lesser offense of misdemeanor child endangerment.  The endangerment was based on appellant's act of dropping a three-year-old child from a moving vehicle into oncoming traffic.  Appellant did not hand the child to Gomez or drop her into Gomez's arms.  The child fell onto the street.  Appellant's act was committed " under circumstances or conditions likely to produce great bodily harm or death . . . ."   (§  273a, subd. (a).) 

Section 654

            Delylah was named as the victim in one of the two carjacking convictions. (CT 181)  Appellant contends that, in violation of section 654, the trial court imposed consecutive sentences for this carjacking and the felony child endangerment. (AOB 14-15)

Section 654 prohibits " multiple punishments for a single act or indivisible course of conduct.  [Citation.]"   (People v. Miller (1977) 18 Cal.3d 873, 885, disapproved on another ground in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8.)  A defendant's intent and objective generally determine whether a course of conduct is divisible.  " 'If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'  [Citation.]"   (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)  " On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.  [Citations.]"   (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.)  The divisibility of a course of conduct " is a question of fact for the trial court, and the trial court's findings will not be disturbed on appeal if they are supported by substantial evidence. [Citations.]" (People v. Kwok(1998) 63 Cal.App.4th 1236, 1253.)

Substantial evidence supports the trial court's implied finding that appellant entertained multiple criminal objectives.  When he committed the carjacking, his objective was to take Gomez's car.  When he dropped Delylah, his objective was to remove the child from the vehicle.  Appellant, therefore, was properly punished for both the carjacking and the felony child endangerment.

Disposition

            The judgment is affirmed.

           NOT TO BE PUBLISHED.

                                                                                                YEGAN, Acting P.J.

We concur:

                        COFFEE, J.

                        PERREN, J.

Tomson T. Ong, Judge

Superior Court County of Los Angeles

______________________________

                        Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. 

                        Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, John R. Gorey, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All further statutory references are to the Penal Code.

^[2] We summarize only the facts concerning the carjacking and felony child endangerment convictions.  The facts concerning the other convictions are not relevant to the issues on appeal.