In re K.H.

Filed 9/17/08 In re K.H. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe, Judge.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a contested jurisdiction hearing, the juvenile court found true an allegation that appellant K.H., a minor, committed felony child abuse (Pen. Code, 273a, subd. (a)).^[1] Following the subsequent disposition hearing, the court (1) adjudged appellant a ward of the court; (2) declared the instant offense to be a felony; (3) placed appellant on probation, with probation to terminate no later than appellants 21stbirthday; and (4) imposed various terms and conditions of probation, including that appellant serve 15 days in juvenile hall.

On appeal, appellant contends the evidence was insufficient to support the instant adjudication. We will affirm.

FACTS

On September 18, 2007 (September 18), T.L., accompanied by her mother, took her infant son, J.W., to the hospital emergency room. That same day, appellant went to the hospital, where appellants mother was visiting appellants sister.

T.L. testified to the following. Appellant and appellants mother were outside the hospital, talking, when T.L. exited the hospital, carrying her baby; T.L. was holding the child with two hands, with his face lying on her chest. As T.L. walked out the door, heading for her car, she saw appellant outside the hospital in the driveway area. As T.L. walked past appellant, she heard appellant telling appellants mother that T.L. was going around saying that J.D., whom T.L. was dating at the time and who was the father of one of appellants children, was also the father of T.L.s baby.

T.L. further testified to the following. She turned around and, still holding her baby with two hands, approached appellant. Appellant and T.L. ha[d] words, at which point appellant ran up to T.L. and started punching [her] in [the] face. Appellant hit T.L. approximately three times, causing T.L. to stumble backward and drop the baby on the ground.

At that point, a hospital staff member picked up the baby and carried him to the emergency room.

The hospital discharge summary, admitted into evidence, indicates the following. T.L.s baby, age three and one-half months, was brought to the emergency room on September 18. A [b]rain CT was done which showed a small amount of temporal area bleeding so [the] baby was hospitalized. A physical examination revealed some tenderness on the right side of the forehead[,] but no neurological deficit. The baby was discharged on September 20, 2007. The HOSPITAL COURSE section of the discharge summary states: Under the diagnosis of intercranial hemorrhage, Neurosurgical consultation was done and repeat CT scan shows improvement of hemorrhage. The baby shows no sign of neurological problems such as vomiting or loss of consciousness. Feedings have been okay and no temperature. [] On the day of discharge the baby was completely out of distress .

Appellant testified to the following. Prior to September 18, T.L. had threatened appellant, saying that when she (T.L.) saw appellant, she was going to hit [her] in the face. On September 18, appellant was standing next to a van outside the hospital when T.L. approached appellant, walking real fast, carrying her baby in one arm and swinging her [other] arm real fast. Appellant, thinking that T.L. intended to hit her, struck T.L. first. At that point, T.L. kind of took a step back and threw the baby, like, sideways of her. T.L. then addressed an epithet to appellant and started hitting [her].

Appellants mother, aunt and a neighbor each testified that T.L. threw the baby to the ground after appellant struck her.

DISCUSSION

Appellant contends the evidence was insufficient to establish she violated section 273a, subdivision (a) -- felony child abuse. Specifically, she argues that there was no evidence that there was a high degree of risk that great bodily injury or death would occur as a result of her conduct.

Standard of Review

In general, in determining whether the evidence is sufficient to support a finding in a juvenile court proceeding, the reviewing court is bound by the same principles as to sufficiency and the substantiality of the evidence that govern the review of adult criminal convictions. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Those principles include the following: The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1138.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1054.)

However, By definition, substantial evidence requires evidence and not mere speculation. (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.) Evidence which merely raises a strong suspicion of the defendants guilt is not sufficient to support a conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

Section 273a, subdivision (a)

Section 273a, subdivision (a) is an omnibus statute that proscribes essentially four branches of conduct. (People v. Valdez (2002) 27 Cal.4th 778, 783.) It provides: 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, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years. (Ibid.)

Section 273a encompasses a wide variety of situations and includes both direct and indirect conduct. (People v. Burton (2006) 143 Cal.App.4th 447, 454.) The statute is intended to protect a child from an abusive situation in which the probability of serious injury is great. [Citation.] [T]here is no requirement that the actual result be great bodily injury. [Citation.] (People v. Valdez, supra, 27 Cal.4th at p. 784.)

When the harm to a child is directly inflicted, the requisite mental state for the section 273a offense is general criminal intent. [Citations.] When that harm is indirectly inflicted, the requisite mental state is criminal negligence. [Citations.] (People v. Burton, supra, 143 Cal.App.4th at p. 454.) Under those circumstances, Ordinary negligence will not suffice. (People v. Valdez, supra, 27 Cal.4th at p. 788.) Criminal negligence is aggravated, culpable, gross or reckless conduct that is such a departure from that of the ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life. [Citation.] (Burton, at p. 454.) It is generally held that an act is criminally negligent when a man of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm. The risk of death or great bodily harm must be great. (People v. Peabody (1975) 46 Cal.App.3d 43, 47.) Whether conduct is criminally negligent must be determined from the conduct itself and not from the resultant harm. (Ibid.)

At issue here is the second type of conduct proscribed in section 273a, subdivision (a), and thus we consider whether the evidence was sufficient to establish that appellant willfully cause[d] or permit[ted] [J.W.] to suffer . ( 273a, subd. (a).) The word willfully, when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate [the] law, or to injure another, or to acquire any advantage. (People v. Valdez, supra, 27 Cal.4th at pp. 787-788.)

Analysis

At the outset we clarify what is not at issue. As the parties do not dispute, there was no evidence appellant directly caused injury to J.W. Rather, the instant case involves indirect conduct, and therefore the applicable mental state is criminal negligence. Further, there is no dispute that (1) the court was entitled to credit T.L.s version of events, i.e., appellant struck T.L. in the face approximately three times while T.L. was holding her baby, causing T.L. to drop the infant on the ground; (2) appellants conduct was willful and created a high degree of risk that T.L. would drop the baby; and (3) as appellant states, that conduct thus created some risk of some injury.

The question before us is whether the evidence was sufficient to establish that a reasonable person in appellants position would have realized that her conduct entailed a high risk of great bodily harm or death ( 273a, subd. (a)). Appellant contends her adjudication cannot stand because (1) the evidence established that J.W. suffered no more than minor injury, and (2) no expert testimony was presented here to show the likely effect of causing a mother to drop a three-month-old infant on the ground, and therefore the evidence was insufficient to establish that a reasonable person would recognize that hitting a mother holding her infant could likely result in death or great bodily injury to the infant from being dropped to the ground. We disagree.

First, as indicated above, it is not necessary that it be shown that conduct resulted in great bodily injury to establish either the existence of circumstances or conditions likely to produce great bodily harm within the meaning of section 273a, subdivision (a). (People v. Valdez, supra, 27 Cal.4th at p. 783) or criminal negligence (People v. Peabody, supra, 46 Cal.App.3d at p. 47).

Second, expert testimony was not required to establish that appellants conduct entailed a high risk that J.W. would suffer great bodily harm. [E]xpert testimony is not required where a question is resolvable by common knowledge. [Citations.] (Godfrey v. Steinpress (1982) 128 Cal.App.3d 154, 186; accord, People v. Chapman (1962) 207 Cal.App.2d 557, 573 [Expert testimony is required where the facts from which the conclusions are to be drawn are peculiarly within the experts knowledge and are not a matter of common knowledge].)

As demonstrated above, it is reasonably foreseeable that striking a person holding a baby will cause that person to drop the baby. And in our view, it is a matter of common knowledge that when an adult holding an infant chest high drops the infant on the concrete below, there is a high degree of risk that the infant will suffer serious injury. Although the victim in the instant case was fortunate enough to escape such injury, the risk was nonetheless present. Appellants conduct was so aggravated, culpable, gross [and/or] reckless that it constituted such a departure from that of the ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life. (People v. Burton, supra, 143 Cal.App.4th at p. 454.) Therefore, on this record, substantial evidence supports the conclusion that appellant committed felony child abuse in violation of section 273a, subdivision (a).

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Wiseman, J. and Levy, J.

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