P. v. Edgar

Filed 3/23/06 P. v. Edgar CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David Gill, Judge. Affirmed.

A jury found Guadalupe Mana Edgar willfully threw a flower pot that hit and injured her son, Romeo I., a freshman in high school; accordingly, it convicted her of misdemeanor child endangerment (Pen. Code, § 273a, subd. (b); count 1)^[1] and simple assault, a lesser included offense of assault with a deadly weapon or instrument (§ 240; count 2). The court sentenced Edgar to four years probation with various terms and conditions.

Edgar contends the trial court erroneously failed to instruct sua sponte on the defense of accident and misfortune. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY^[2]

On June 18, 2004, Edgar's boyfriend, Sven Lindqvist, arrived home to find her drunk. They immediately began to argue. Edgar threw objects at him, hitting him in the ear, which bled slightly. She also scratched him on the neck and chest. Dyanne, Edgar's daughter, separated the couple, and she and Romeo helped carry Edgar to her bedroom. She and Romeo held Edgar down on her bed. Edgar punched Romeo in the eye and scratched his arm. She also hit Dyanne.

Edgar eventually appeared to fall asleep. As Romeo and Dyanne walked toward the door, Dyanne turned around and saw Edgar pick up a square flower pot. Dyanne told Romeo to run, and pushed him out the room. Edgar threw the flower pot, which hit Romeo on the back of his head. Romeo and Dyanne noticed Romeo's head was bleeding. They went outside and met their neighbor, Raymond Nicolas, who earlier had heard yelling and screaming from their home. He saw blood running down Romeo's head and arm and called 911. He overheard Romeo say, "I can't believe my mom did it -- did this." Romeo required nine staples for his head wound.

Police Officers Denise Page, Mario Moreno, and Kevin Brooks responded to the 911 call. Brooks found Edgar on the living room floor; Edgar smelled of alcohol and urine. Moreno found blood in the hallway and on the living room floor. The officers found a flower pot next to the doorway inside Edgar's bedroom and other household objects on the ground. After Edgar's arrest, more than once she told the police she wanted another chance and did not want to go to jail.

Edgar's attorney, in a motion in limine, sought to mention in his opening statement the defense of accident or misfortune. He told the court, "[T]here won't be a theory that [Edgar] accidentally threw something at [Romeo]. We dispute that she threw anything at him at all as a factual matter. . . . ¶ . . . So there's kind of two ways to view it, your Honor. There's one, the factual defense of a flower pot was never thrown. And then there's, second, the accident defense, which is our burden -- an affirmative defense to establish; and, that is, could have been caused by that; could have been caused by the railing; could have been caused by being pushed out of the door."^[3] The court ruled that before the presentation of evidence, counsel could say no more than, "We believe the evidence will show that this is a case of misfortune or accident." The court also stated it would instruct on this defense if "any credible evidence was presented."

Edgar's attorney subsequently requested instruction under CALJIC 4.45^[4] or a modified version of it.^[5] The court noted, "The real theory is [Dyanne] grabbed him or shoved him or whatever, and [Romeo] had contact with the entertainment center. That's nothing that the defendant had anything to do with. That wasn't an act.

. . . They were leaving the room and he accidentally, in part I guess because either she shoved and punished [sic] him off balance, I mean that's an accident, and I think that negates any criminal activity on her part. . . . The injury was caused by the stereo, the entertainment center. If that's your theory, then it seems me [sic] giving this instruction would be an omission on the part of your client. Do you intend to argue that?" Defense counsel replied, "If I give an illustrative of the evidence, the flower pot that caused the injury, but if so, that that was the result of an accident or misfortune because she picked it up and threw it at him."

The court cautioned, "Arguably the court giving these instructions might put you in a position you would not want to be in." Defense counsel responded, "That's correct," and withdrew his specific request. Nevertheless, he asked the court to "express its view and in asking it under accident, just not under [CALJIC No. 4.45]." The court ruled, "[T]he use and comments tell me that I don't have any sua sponte [duty]," but promised to look into the matter. After this, defense counsel never submitted an alternate instruction. Defense counsel argued to the jury Edgar did not throw the flower pot, and maybe Romeo injured himself on the entertainment unit.

DISCUSSION

I.

A.

Edgar invited any error related to the trial court's decision not to instruct on accident or misfortune. When a defendant persuades the court not to give an instruction "for tactical reasons," such as when an instruction conflicts with the defendant's theory of the case, reversal may not be urged on appeal. (People v. Horning (2004) 34 Cal.4th 871, 904.) Contrary to Edgar's contention, defense counsel made a deliberate tactical choice in withdrawing both accident instructions because he agreed with the court's reasoning these instructions contradicted his theory of the case. (People v. Coffman (2004) 34 Cal.4th 1, 49 ["In cases involving an action affirmatively taken by defense counsel, [the court has] found a clearly implied tactical purpose to be sufficient to invoke the invited error rule"].)

Edgar also waived her claim regarding the court's failure to modify CALJIC No. 4.45. (People v. Cole (2004) 33 Cal.4th 1158, 1211.) Defense counsel made an ill-defined request that the court "express its view" under "pure" accident, but he did not press the court for a ruling regarding its earlier promise to investigate further whether it would so instruct, and never put on the record any ground for objection to the trial court's decision not to revisit the issue. Accordingly, the issue is not preserved for appeal. (Accord People v. Ramos (1997) 15 Cal.4th 1133, 1171.)

B.

In any event, the trial court committed no instructional error. "Penal Code section 26 provides in pertinent part: 'All persons are capable of committing crimes except those belonging to the following classes: Five -- Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.' " (People v. Gonzalez (1999) 74 Cal.App.4th 382, 389.) The accident or misfortune defense "amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime." (People v. Lara (1996) 44 Cal.App.4th 102, 110.) A trial court has a sua sponte duty to instruct on the accident or misfortune defense only if: (1) the defendant is apparently relying on the defense; or (2) substantial evidence supports the defense and the defense is not inconsistent with the defendant's theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157.) "Substantial evidence is evidence which is reasonable, credible, and of solid value" to be determined independently. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)

At trial, Edgar denied she accidentally applied force or inflicted pain on Romeo. Instead, she argued Romeo accidentally injured himself without her involvement. Thus, she did not rely on the defense of accident or misfortune as defined in CALJIC 4.45, which requires a causal connection between the defendant's act and the victim's injury. Although Edgar expressly argued at trial she did not throw the flower pot, she now contends substantial evidence existed to show she threw it, but because she was drunk she did not intend to hit Romeo. Generally, a party may not adopt a new theory on appeal; accordingly, we may treat this claim as waived.^[6] (People v. Yeoman (2003) 31 Cal.4th 93, 118.) In any case, Edgar presented no evidence, much less substantial evidence, that "at the time of the crime [she was] so intoxicated [she] was unable to form the basic mental intent to commit [the crime], or was rendered unconscious." (People v. Roldan (2005) 35 Cal.4th 646, 717.) Furthermore, no witness testified Edgar accidentally threw the flower pot. Similarly, we have not found evidence in the record that Edgar knocked the flower pot off the table.

Nor did substantial evidence support a "pure" accident theory. Dyanne testified that when she pushed Romeo out the door his head was not near the entertainment unit and she did not see him hit his head on it. Only defense counsel's closing argument, which was not evidence, supported Edgar's contention that Romeo's possible self-inflicted injury was a "pure" accident. (See People v. Perez (1992) 2 Cal.4th 1117, 1126.)

As previously discussed, CALJIC No. 4.45 was inconsistent with the defense theory regarding accident. Accordingly, the trial court had no sua sponte duty to instruct on accident or misfortune or the burden of proof accompanying that defense. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054 ["[T]he trial court is required to instruct on a defense (and, by extension, on the defendant's burden of proof as to that defense) only if substantial evidence supports the defense"].)

C.

Edgar has not shown prejudice under even the more stringent "harmless beyond a reasonable doubt" standard of Chapman v. California (1967) 386 U.S. 18, 24. The defense of accident or misfortune negates the intent element of the charged offense. (People v. Lara, supra, 44 Cal. App.4th at p. 110.) Here, the trial court instructed the jury on the concurrence of the act and general criminal intent under CALJIC No 3.30 as follows: "[T]here must exist a union or joint operation of act or conduct and general criminal intent. General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares a crime, she is acting with general criminal intent, even though she may not know that her act or conduct is unlawful." The court also instructed regarding the prosecution's burden to prove the elements of the offense beyond a reasonable doubt. The jury, presented with conflicting testimony, elected to believe Edgar willfully caused Romeo's injuries. Evidence supporting the convictions included the children's initial statements to the police, and Edgar's post-arrest statements that evinced a consciousness of guilt.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.

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^[1] All statutory references are to the Penal Code unless otherwise stated.

Section 273a, subd. (b) applies to "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering."

^[2] Shortly after the incident, Edgar's children told the police Edgar deliberately hurt Romeo. They later contradicted that claim. For example, Dyanne told the police she saw Edgar pick up the flower pot and throw it at the back of Romeo's head. At the preliminary hearing, Dyanne testified she saw Edgar pick up the flower pot. At trial, Dyanne denied seeing her mother pick up the flower pot. We state the facts in the light most favorable to the jury's verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

^[3] Edgar's attorney stated in discussions outside of the presence of the jury that he anticipated Dyanne would testify that when she pushed Romeo out the door, he hit his head on the entertainment unit.

^[4] CALJIC No. 4.45 states: "When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] [neither] [criminal intent [n]or purpose,] [nor] [[criminal] negligence,] [he] [she] does not thereby commit a crime."

^[5] The modified version stated:

"When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, she does not thereby commit a crime.

"It is not Ms. Edgar's burden to establish that Romeo was injured by accident; rather, if the evidence that you have received raises a reasonable doubt in your minds that Romeo's injuries were caused by accident, you must find Ms. Edgar not guilty."

^[6] Edgar also newly contends in her reply brief: "[Edgar's] apparent threatening actions while drunk caused Romeo to flee the bedroom, thus causing him to hit his head on the entertainment center." This alternate theory is waived because a "court will not consider points raised for the first time in a reply brief for the obvious reason that opposing counsel has not been given the opportunity to address those points." (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) A separate basis for waiver is that Edgar did not rely on this theory in the trial court. (People v. Yeoman, supra, 31 Cal.4th at 118.)