P. v. Kelley

Filed 9/13/06 P. v. Kelley 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, Frederick Maguire, Judge. Affirmed.

A jury convicted Karen Kelley of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 1) and felony child endangerment (Pen. Code,^[1] §273a, subd. (a); count 2). The trial court suspended imposition of sentence and placed Kelley on probation for five years with the condition she serve 365 days in jail.

Kelley appeals, contending her conviction of child endangerment was based on insufficient evidence. We affirm the judgment.

FACTUAL BACKGROUND

On July 6, 2005, Kelley was living with her seven-year-old daughter, Natalie, in a home in San Diego. Kelley rented a room in her home to Edward Coyle and his seven-year-old daughter, Sarah. Early that morning, police officers from the Chula Vista Police Department conducted a search of Kelley's house. Upon entering the home, Detective Leliza Prodigalidad and other officers smelled a strong odor of dog feces, rotting food, and garbage. Dog feces had been ground into the living room carpet and a large outdoor garbage can containing trash, was in the living room. The smell of rotting food emanated from the closed refrigerator. The smell was worse outside near construction of an addition to the house. The house was cluttered with a tremendous amount of furniture, trash, and debris.

The officers found Kelley in a bedroom in the back of the house and Coyle and his daughter in a second bedroom. Natalie was not in the home because she had spent the night at her grandmother's house. The police searched Kelley's bedroom and found two small unused baggies, a kind commonly used to hold drugs. Police also found $465 in cash and six unidentified pills in Kelley's purse, and a picture of a woman smoking a glass pipe in a duffel bag. The officers searched an unlocked bathroom that was connected to Kelley's bedroom. Inside a cabinet that stood about three and a half feet from the ground, officers found a glass pipe that had been used to smoke methamphetamine and a bronze-colored vial.

Detective Prodigalidad then searched an unlocked bedroom which had been converted into an office. Inside was a computer table which sat about 30 inches from the ground and a small, two drawer file cabinet which was about 24 inches tall. The officers found an open tin on top of the computer table. The tin contained three glass pipes, .17 grams of methamphetamine residue, and an unidentified tablet. On top of the filing cabinet, officers found an open tin which said "Bell Bear." Inside this tin, officers found a plastic baggie containing .47 grams of methamphetamine, a credit card, and several unidentified pills.^[2] An unlocked safe on the floor of the office contained a digital scale covered in methamphetamine residue, unused plastic baggies, pills, $439 in cash, and pay-owe sheets.

At trial, Kelley admitted to using drugs daily for the last few years.

DISCUSSION

I

ELECTION OF ACTS

Kelley contends the prosecutor elected the act of making drugs accessible to the children to establish felony child endangerment and that there was no substantial evidence to support this theory.

A defendant is entitled to a verdict in which all 12 jurors concur beyond a reasonable doubt as to each count charged. (People v. Jones (1990) 51 Cal.3d 294, 305.)

Where an accusatory pleading charges the defendant with one criminal act, and the evidence shows more than one unlawful act, either the prosecutor must elect which act she is relying on to prove the charged act, or the court must instruct the jury that they must unanimously agree on which criminal act the defendant committed. (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)

Here, the prosecutor did not elect whether she was relying on the condition of the home or the availability of narcotics to prove the charge of child endangerment. In both her opening statement and closing argument, the prosecutor stated that Kelley committed child endangerment by maintaining a filthy house and by allowing drugs to be accessible to a child. During trial, the prosecutor presented evidence of both. Because either act, if proved, would be sufficient for a conviction under section 273a, the court was correct in giving a unanimity instruction to the jury.^[3]

II

SUFFICIENCY OF THE EVIDENCE

Kelley first asserts there was no substantial evidence to prove that she had "care or custody" of Sarah, a necessary element of section 273a, subdivision (a). Continuing her claim the prosecution elected to pursue only the access to drugs, Kelley asserts that only speculation could support the conclusion that Natalie had access to the methamphetamine.

We need not reach the question of whether Kelley had "care or custody" of Sarah because Kelley was charged with endangering her child, Natalie. Kelley was neither charged nor convicted of endangering Sarah. It is therefore irrelevant whether Kelley was the caretaker of Sarah. Further, as we have already discussed, there was no election of acts by the prosecution and therefore we will discuss both theories presented.

When reviewing a claim of insufficiency of the evidence, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Before a judgment of conviction may be set aside for insufficiency of the evidence, " ' "it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached" ' " by the trier of fact. (People v. Fowler (1987) 196 Cal.App.3d 79, 89, quoting People v. Newland (1940) 15 Cal.2d 678, 681.) Evidence is substantial when it is reasonable, credible, and of solid value. (Kraft, supra, 23 Cal.4th at p. 1053.)

Here, to prove Kelley committed child endangerment under section 273a, subdivision (a), the prosecution had to prove beyond a reasonable doubt (1) Kelley had care or custody of Natalie; (2) Kelley willfully caused Natalie to be placed in a situation where her person or health may be endangered; and (3) Kelley's conduct occurred under circumstances likely to produce great bodily harm to, or the death of Natalie.

Kelley admitted that Natalie was her daughter and that Natalie lived with her. Undeniably, Natalie was in the care or custody of Kelley. Kelley also admitted to using drugs daily for the last few years. Based on Kelley's level of usage and the unsanitary condition of the house, a jury could reasonably draw the inference that both accessibility to the drugs and the condition of the house had existed for some time and that they existed while Natalie was present. Kelley has a long, unbroken history of drug use. Kelley admitted she used the digital scale to measure the amount of drugs she bought. She kept the scale on the floor of an unlocked office. A reasonable inference is that Kelley conducted her drug transactions and kept her drugs, in the office. Furthermore, Kelley kept her methamphetamine in a "Bell Bear" jar on a desk only a few feet off the ground. This jar would be attractive to a small child and its location would make it easy for a child to access its contents. While Kelley might protest that she forbade her daughter to enter the unlocked office, the jury could reasonably conclude that given the inherent curiosity of children, Natalie knew or would learn that drugs were in the office, seek them out, and use them to her physical harm. On this theory, the evidence was sufficient to convict Kelley of child endangerment.

Detective Prodigalidad testified to the smell of rotten food which could be detected even though the refrigerator door was closed. These conditions arise over a period of time, not overnight. It takes days for food kept in a refrigerator to deteriorate to such conditions. Furthermore, dog feces and garbage covered the living room and other parts of the house. Undoubtedly, any resident of that house would have been exposed to those unsanitary conditions. Ingesting this food or living in such filth is extremely hazardous to a child's health. (People v. Little (2004) 115 Cal.App.4th 766, 772.) Kelley testified that Natalie had been at her grandmother's house the previous couple of days. Even if this testimony was accepted by the jury, the jury could still reasonably conclude that such unsanitary conditions existed while Natalie was in the home. Since the jury was properly instructed on unanimity, it could have properly found child endangerment on either, or both theories presented by the prosecution.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

McINTYRE, J.

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

^[2] It was stipulated that the pills were identified as alprozolam, morphine sulphate, hydrochlorothiazide, hydrocodone, and Ambien.

^[3] CALJIC No. 17.01 as given to the jury read: "The defendant is accused of having committed the crime of Child Endangerment in Count Two. The prosecution has introduced evidence for the purpose of showing that there is more than one act or omission upon which a conviction on Count Two may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that she committed any one or more of the acts or omissions. However, in order to return a verdict of guilty to Count Two all jurors must agree that she committed the same act or omission or acts or omissions. It is not necessary that the particular act or omission agreed upon be stated in your verdict."