P. v. Colver















Filed 4/26/13
P. v. Colver CA1/2

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
TWO




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THE PEOPLE, Plaintiff and Respondent, v. GREGORY D. COLVER, JR., Defendant and Appellant.

A133855 (San Mateo County Super. Ct. No. SC073442A)

>I. INTRODUCTION

After a jury
trial, appellant was convicted of violations of both Penal Code sections 273a,
subdivision (a) and 273dhref="#_ftn1"
name="_ftnref1" title="">[1] in
connection with burns incurred by his then 17-month-old son. He appeals, claiming that the two crimes of
which he was convicted were “mutually exclusive” and that, therefore, one of
those convictions should be set aside.
He also claims that the probation revocation fee imposed on him should
be set aside because the trial court did not properly assess his ability to pay
the same. We reject both arguments and
affirm both the conviction and the sentence, including the probation fee
imposed.

>II. FACTUAL AND PROCEDURAL BACKGROUND

Appellant
and his girlfriend, Elina Jimenez, are the parents of the victim in this case,
then 17-month-old John Doe. The three of
them lived together in an apartment in Daly City. They also shared a car and a very similar
job: Jimenez worked the day shift at two Shell gasoline stations in Daly City
and appellant the graveyard shift.

During
the afternoon of December 28, 2010, when Jimenez was working at one of those
stations, appellant was at their apartment with their son. There was a blackout at one of the Shell
stations and, as a result, Jimenez had to work later than usual, i.e., until
about 8:30 or 8:45 p.m. During this
period, appellant tried to call Jimenez several times, but she could not or did
not answer those calls. Appellant thus
left voicemails for her, advising her that “our son had burned himself and that
I needed to come home.”

When
Jimenez got to their apartment, she immediately saw that Doe had “burns on his
legs on both sides.” According to
Jimenez, appellant told her that when “he was asleep . . . the
baby burned himself, somehow.” Appellant
elaborated on this a bit, by stating to her that, when he was asleep he “woke
up to our son whining next to him, so he, thinking he just wants a bottle, got
him up, put him in the crib, went to go into the kitchen to make him a bottle,
noticed the oven was on and open, ran back to him, and seeing that his legs
were burned and called me.” Jimenez
conceded in her direct testimony that such was the “version of events
[appellant] told [her]” when she came home.

Jimenez,
however, testified that she concluded that a different “version” of events was
necessary “so this [the charges against appellant] wouldn’t wind up
happening.” The version of events
devised by Jimenez was that appellant was “preheating the oven” to cook a
pizza, then “went to the bathroom, and the baby touched the oven.”

Jimenez
took Doe to the Seton Medical Center, where Dr. Marc Levsky examined him and
treated his burns. She related to him
her “version” of the events that led to Doe’s burns.

Dr.
Levsky, however, noted that the burn marks on Doe were “not oriented in any
specific pattern.” More specifically,
only the back of Doe’s left leg, the front of his right leg, and one heel were
burned, and the burn lines “don’t follow any specific pattern that I can
recognize.” Levsky then thought this
might well be a “non-accidental trauma”, and arranged to get Doe transferred to
Saint Francis Hospital’s burn center for further evaluation; he also arranged
for contacts to be made with both Child Protective Services and the Daly City
Police Department.

Michelle
LeVynh, a CPS worker, came to the Seton Hospital’s emergency room and took
pictures of Doe’s injuries; later the same evening, she visited appellant’s
home with both Jimenez and Daly City Police Officer Andre Bray.

While
there, they observed the kitchen area and noted that there was a “baby gate
barricade” separating “the kitchen from the hallway,” and also a toy box next
to the oven door. A baking sheet was on
the lowest rack inside the oven, and a plate of cold, “half eaten pizza on the
counter” in the kitchen.

The
oven was off and cold to the touch, but when LeVynh turned it on to 450 degrees
(the temperature specified on the frozen pizza boxes in the refrigerator), it
heated up quickly. The oven rose about
three to three and a half feet above the kitchen floor. In that connection, while LeVynh and Officer
Bray were at the apartment, Jimenez repeated to them “the same version of
events” surrounding her son’s burning, and specifically noted that her son “was
a good climber.”

Later
that same evening, appellant arrived at Seton Hospital, and voluntarily
accompanied LeVynh and Officer Bray to the Daly City Police Department for an
interview. He claimed, in that
interview, that somehow his son had climbed over the baby gate barricade and
gotten onto the top of the stove, manipulated the knobs on the oven thus
turning it on, stepped down onto the open oven door, and fell “backwards into
the oven and burn[ed] himself.”
Appellant told Officer Bray and LeVynh that he was asleep at the time
and awoke up to find his son “whimpering beside him and he noticed
the . . . door to the oven was down.” Appellant admitted he did not see the event,
but told Bray and LeVynh his “surmising” as to how the accident happened.

After
that interview, Officer Bray and his superior determined that there was
probable cause to arrest appellant for child abuse.

As
noted above, Doe had already been transferred to Saint Francis Hospital where
he was examined and treated by Dr. Jeffrey DeWeese. The doctor noted that Doe had no burns on his
face or upper extremities, unlike other children who had somehow gotten into an
oven. He thus concluded that Doe’s
“injuries were suspicious for nonaccidental trauma.”

After
this examination, and as a result of Dr. DeWeese’s conclusions, Doe was placed
in protective custody and released to CPS, which permitted him to stay at home,
but only with Jimenez.

Two
days later, i.e., on December 30, 2010, Daly City Police Detective Ron Harrison
was assigned to investigate the matter.
He interviewed appellant later the same day and, in the course of that
interview, suggested that perhaps appellant had been trying to discipline Doe
regarding the danger of hot ovens, and that “he made a mistake” in the course
of so doing. Appellant then changed his
version of the events of two days earlier.
He stated to Detective Harrison that he had preheated the oven, then left
the kitchen to use the bathroom, and returned to the kitchen to observe his son
“smacking on the oven door.” Per
appellant’s statements to Harrison, he asked Doe if “you want to feel that
shit” and “[y]ou want to see what it feels like.” He then put his son by the oven but, when the
latter tried to get away from his father’s grasp, appellant lost his grip, and
Doe fell and his legs were then burned by the hot coils in the oven. Appellant even demonstrated “with his hands
how he put his child in the oven.”

Notwithstanding
these admissions by appellant, some days later Jimenez tried to establish that
Doe could have entered a heated oven on his own; she did so by videotaping him
as she tried to coax him to enter an open but unheated oven. After about eight minutes of standing on the
same oven door, Doe entered the oven, but then started crying when his mother,
Jimenez, tried to get him to insert “his legs . . . into that
oven.”

On
May 11, 2011, appellant was charged by an information with two counts, child
abuse in violation of section 273a, subdivision (a), and cruel or inhuman
corporal punishment in violation of section 273d. Both counts contained a special allegation
that appellant had personally inflicted great bodily injury on a child under
the age of five within the meaning of Penal Code section 12022.7, subdivision
(d).

An
expert witness for the prosecution, Dr. John Sterling, the Director of the
Center for Child Protection at the Santa Clara Valley Medical Center County
Hospital, opined that the best explanation for the burns suffered by Doe was
that he had been “suspended,” then inserted part way into a hot oven, and then
kicked his legs so that they hit the oven’s racks and were thus burned. When recalled to the witness stand later, Dr.
Sterling opined that it would be “very unreasonable” to infer that Doe would
have or could have opened the oven, climbed on top of it by himself, waited for
the oven to heat up, and then burned the outside of one leg and the back of
another.

Defense
experts Dr. Laura Liptai and Dr. Terri Haddix testified that the injuries
suffered by Doe were such that there was a reasonable possibility they were
caused by an accident.

On
July 18, 2011, the jury convicted appellant on both counts and found the
special allegations to be true.

In
an October 14, 2011, sentencing hearing, the trial court suspended imposition
of a sentence on appellant and, instead, placed him on five years of supervised
probation, including one year in county jail.

Appellant
filed a timely notice of appeal on November 21, 2011.

>III. DISCUSSION

As
noted above, appellant’s principal contention is that the two counts on which
he was convicted are “mutually exclusive” and, therefore, one of his two
convictions should be stricken. We
disagree, for the reasons which follow.

Count
1 of the information alleged that appellant had violated section 273a,
subdivision (a), thusly: “On or about 12/28/2010, Gregory David Colver Jr. did
willfully and unlawfully, under circumstances or conditions likely to produce
great bodily harm or death, cause or permit a child(ren) to suffer or inflicted
unjustifiable physical pain or mental suffering, or having the care or custody
of said child(ren), caused, or permitted the person or health of said
child(ren) to be placed in such a situation that his/her person and health was
endangered, in violation of Penal Code section 273a(a), a felony.”

Count
2 then charged: “On or about 12/28/2010,
Gregory David Colver Jr. did willfully and unlawfully inflict cruel or inhuman
corporal punishment or injury, resulting in a traumatic condition, upon a
child, to wit: John Doe, age 17 months old [,] in violation of Penal Code
section 273d, a felony.”

After
the evidence was completed, the court instructed the jury regarding the
elements of the two crimes charged. As
to the first count, the one alleging a violation of section 273a, it stated, in
relevant part: “To [p]rove that the
defendant is guilty of this crime [section 273a, subdivision (a)], the People
must prove that, one, 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 in danger.
[¶] And, two, the defendant caused or permitted the child to suffer
or be injured under circumstances or conditions likely to produce great bodily
injury or death. [¶] And, three,
the defendant was criminally negligent when he caused or permitted the child to
suffer or be injured. [¶] And,
four, the defendant did not act while reasonably disciplining a child. Someone commits an act willfully if he or she
does it willingly or on purpose.”

As
to the second count, i.e., the count charging a violation of section 273d, the
court instructed the jury that:
“. . . [T]he People must prove that, one, the defendant
willfully inflicted cruel or inhuman physical punishment or injury on a
child. And, two, the punishment or
injury inflicted by the defendant caused a traumatic physical condition to the
child. And, three, when the defendant
acted, he was not reasonably disciplining a child.”

As
noted above, the jury convicted appellant on both counts. This was error, appellant contends, because
(1) “[t]he prosecution expressly elected to proceed on the direct infliction
branch of child abuse” but (2) the jury was instructed only on indirect
infliction branch of section 273a, subdivision (a), because of the language
used in the instruction it was given regarding the first count. Thus, according to appellant, although “[n]o
court has expressly stated that the direct and indirect infliction of child
abuse constitute mutually exclusive offenses,” because “an omission is not an
act . . . [¶] . . . Colver should not have
been convicted of both passive conduct (count 1) and active conduct (count 2)
based on the same facts.”

One
of our sister courts has explained the differences in the four offenses
specified in section 273a thusly:
“Section 273a, subdivision (a) ‘is an omnibus statute that proscribes
essentially four branches of conduct.’ ([People
v.] Sargent [(1999)] 19 Cal.4th
[1206,] 1215.) These four branches or
prongs are: ‘ “Any person who, under circumstances or conditions likely to
produce great bodily harm or death, [1] willfully causes or permits any child
to suffer, or [2] inflicts thereon unjustifiable physical pain or mental
suffering, or [3] having the care or custody of any child, willfully causes or
permits the person or health of that child to be injured, or [4] willfully
causes or permits that child to be placed in a situation where his or her person
or health is endangered . . . .” ’ (People
v. Valdez (2002) 27 Cal.4th 778, 783 (Valdez).) [¶] In addressing these four separate
types of conduct, our Supreme Court describes the second category as ‘direct
infliction’ and the first, third and fourth categories as ‘indirect
infliction.’ (Valdez, supra, 27 Cal.4th at p. 786, italics omitted.) Under Sargent,
the appropriate mens rea for the second category of direct infliction is
general criminal intent, similar to battery or assault with a deadly weapon. (>Sargent, supra, 19 Cal.4th at p.
1220.) Under Valdez, the necessary mens rea for the other three categories of
indirect infliction is criminal negligence.
(Valdez, supra, at p.
789.) In addressing indirect infliction,
the Valdez court concluded, ‘criminal
negligence is the appropriate standard when the act is intrinsically
lawful . . . but warrants criminal liability because the
surrounding circumstances present a high risk of serious injury. Criminal
negligence is not a “lesser state of mind”; it is a standard for determining
when an act . . . is such a departure from what would be the
conduct of an ordinarily prudent or careful person under the same
circumstances.’ (Id. at pp.
789-790.) Thus, this standard applies to
the first, third and fourth prongs of section 273a, subdivision (a), where
indirect infliction of harm on a child has occurred, such as failing to seek
medical treatment, child endangerment, or willfully permitting situations that
imperil children. (Sargent, supra, at p. 1218.)”
(In re L.K. (2011) 199
Cal.App.4th 1438, 1444-1445, fn. omitted.)

However,
the fact that, under the terminology used in In re L.K. and by our Supreme Court in Valdez, one of appellant’s convictions pertained to a charged
indirect infliction of harm while the other, i.e., his conviction under count 2
of violating section 273d may have pertained to a more direct infliction of
harm, does not make these offenses “mutually exclusive.”

In
the first place, appellant acknowledges that “[n]o court has expressly stated that
the direct and indirect infliction of child abuse constitute mutually exclusive
offenses.” Second, in his reply brief,
he concedes that the Attorney General’s argument that they are not, as a matter
of law, mutually exclusive “is superficially compelling.” Third, the concept of “mutually exclusive”
offenses has apparently been recognized rarely in California criminal law,
e.g., a defendant cannot be convicted of being both a “principal” in a felony
conviction and also an accessory after the fact. (See People
v. Prado (1977) 67 Cal.App.3d 267, 273.)
As our Supreme Court has noted, even theft and the
receipt-of-stolen-goods convictions are not “mutually exclusive.” (People
v. Price (1991) 1 Cal.4th 324, 464; see also People v. Ceja (2010) 49 Cal.4th 1, 6.) Fourth, this is far from the only case in
which a defendant has been convicted of both
violations of sections 273a and 273d.
(See Sargent, supra, 19
Cal.4th at pp. 1219-1220, and cases cited therein.)

Fifth
and finally, in a case relied upon by the Attorney General, but not discussed
or even cited by appellant, the court made clear why a defendant may properly
be found guilty of violating both sections 273a and 273d: they are directed to
different types of offenses. In >People v. Moussabeck (2007) 157
Cal.App.4th 975, 981 (Moussabeck),
the defendant was convicted of one count of misdemeanor child abuse under
section 273a, subdivision (b), and one count of felony infliction of physical
injury on a child under section 273d, subdivision (a). On appeal—although apparently not
specifically asserting a “mutually exclusive” argument—the defendant contended
that he could not have properly been convicted of both offenses because the
former was a lesser included offense of the latter.

The
court rejected this argument and, in so doing, explained the difference between
the focus of the two statutes: “Sections
273a and 273d have different elements.
The former criminalizes child endangerment or the unjustifiable
infliction of pain or suffering upon a child, while the latter criminalizes the
infliction of a traumatic condition (i.e., physical injury) upon a child. Moussabeck contends that when one inflicts a
physical injury upon a child, he necessarily inflicts physical pain or mental
suffering, i.e., injury ‘equates’ to pain and suffering. Although that may often be the case, we
cannot say that is necessarily always
the case. And just because the same act
of child abuse under any given set of circumstances is criminal under both
sections 273a and 273d, does not mean the former is a lesser included offense
of the latter. A defendant may be
charged with and convicted of multiple offenses based upon the same act or
course of conduct (§ 954), although he may not be punished more than once (§
654).” (Moussabeck, supra, 157 Cal.App.4th at p. 981.)href="#_ftn2" name="_ftnref2" title="">[2]

Appellant
cites no authority even slightly at odds with this statement of the law. We thus conclude that there was no error in
the trial court’s instructions to the jury or in the jury’s verdict, regarding the two counts
charged against appellant.

Appellant’s
second contention is that the trial court erred in failing to inquire into his
ability to pay the probation supervision costs mandated by section
1203.1b.

At
the October 14, 2011, sentencing hearing, the trial court, contrary to the
recommendation of the probation department, determined that appellant should be
granted probation. In the course of so
doing, it imposed several fines and fees upon appellant, including a $75
monthly probation supervision fee pursuant to section 1203.1b. Appellant argues that such an imposition was
unjustified, because neither the probation department nor the trial court made
any inquiry as to his ability to pay such a fee.

It
is true the probation department did not inquire into that issue, for the
simple reason that it did not recommend probation; rather, it’s position was
that appellant should be sent to prison.
But the trial court determined otherwise and, at the sentencing hearing
where appellant was represented by counsel, no objection was made to any of the
terms and conditions of probation imposed by the court, including the probation
supervision fee. Appellant explicitly
accepted those terms, and his counsel confirmed that she had advised him of his
rights. Thus, under this court’s
decision in People v. Valtakis (2003)
105 Cal.App.4th 1066, appellant’s objection on appeal to the imposition of the
probation supervision fee has been waived.
(See also People v. Phillips (1994)
25 Cal.App.4th 62, 70.)

>IV. DISPOSITION

The conviction and
the sentence imposed are both affirmed.













_________________________

Haerle,
Acting P.J.





We concur:





_________________________

Lambden, J.





_________________________

Richman, J.