P. v. Arteaga
Filed 4/21/11 P. v. Arteaga CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. JOSE ALEJANDRO ARTEAGA, Defendant and Appellant. | E050363 (Super.Ct.No. RIF139794) OPINION |
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge. (Retired judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Emily R. Hanks, and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jose Alejandro Arteaga brutally stabbed his wife, Naomi Johnston in the presence of their two young children. Naomi miraculously survived the attack.
Defendant appeals from judgment entered following jury convictions for premeditated and deliberate attempted murder (Pen. Code, §§ 664, 187, subd. (a)[1]; count 1); first degree residential burglary (§ 459; count 2); corporal injury to a spouse (§ 273.5, subd. (a); count 3); child endangerment (§ 273a, subd. (a); counts 4 & 5); and criminal threats (§ 422; count 6). The jury also found true, as to counts 1, 3, and 6, allegations that defendant used a deadly or dangerous weapon, a knife (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (GBI) under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court sentenced defendant to seven years to life, plus 22 years four months in state prison.
Defendant contends there was insufficient evidence to support his convictions for child endangerment and the trial court erred in failing to instruct the jury on misdemeanor child endangerment as a lesser-included offense of felony child endangerment (counts 4 and 5). We reject these contentions and affirm the judgment.
I
FACTS
Defendant and Naomi began dating in 2003. They had two children together, Raylene, born in October 2004, and Joseph, born in October 2006. Six months after Raylene’s birth, Naomi and defendant separated because of domestic violence. Four to six months later they reconciled, married in 2006, and lived together with their children until separating again on September 12, 2007.
Before separating on September 12, 2007, defendant and Naomi had been living in Naomi’s mother’s home. On September 12, 2007, Naomi told defendant she was ending their relationship because it had become emotionally draining. Hoping defendant would leave her alone, Naomi told him she had been “talking” to another man. In response, defendant attempted to commit suicide by crashing his car. After defendant’s release from the hospital, he moved in with his parents.
Defendant became obsessed with Naomi leaving him and having a relationship with another man. He repeatedly called her. He wanted to know everything she was doing and to whom she was talking. Defendant followed Naomi around the Wal-Mart distribution center where they both worked.
On September 22, 2007, defendant called Naomi over 15 times, during which they engaged in heated conversations over Naomi ending their relationship. During their last telephone conversation at 11:30 p.m., defendant accused Naomi of talking on the phone that evening to a new boyfriend. Defendant said he was going to find her boyfriend and kill him. Naomi told defendant she would no longer answer the phone and was going to file for divorce and request a temporary restraining order. She then turned off the phone ringer and went to bed.
When Naomi fell asleep, Raylene, who was almost three years old, was sleeping in bed, next to Naomi. Their arms were touching as they slept. Joseph, who was 11 months old, slept in a crib three feet from Naomi’s bed. Naomi’s grandmother, Carol White, slept in another room in the house.
Enraged by their conversation, defendant grabbed a knife from his parents’ kitchen and drove to Naomi’s home. Upon arriving, he unlocked the door with a key, entered, and ran down the hall to Naomi’s bedroom. While Naomi and the children slept, defendant began repeatedly stabbing Naomi. Naomi awoke to sharp pain in her chest, with defendant on top of her, stabbing her. Defendant told her, “If I can’t have you, no one will.” Defendant told her he was going to kill her.
Naomi feared defendant would strike Raylene with the knife. Naomi tried to get defendant off her, away from Raylene. Naomi eventually pushed defendant off and stood up. Defendant kept stabbing her. The knife slipped in defendant’s hand but he continued stabbing Naomi while holding the blade, which cut his hands, causing him to bleed profusely. Finally defendant stopped stabbing Naomi and left the room. Naomi collapsed on the floor and went in and out of consciousness.
White testified she awoke to defendant barging into the home. She heard Naomi yell, “stop, stop,” and defendant say, “[y]ou made me do this.” White called 911 and told Naomi the police were on the way. After defendant left, White went into Naomi’s room and found her on the floor next to her bed. Blood covered the bedding and floor. Raylene was sitting on the bed, crying.
At 1:30 a.m., Police Officer Wilfert responded to the scene. When he arrived, he saw Naomi bleeding profusely and found both children in the bedroom crying. Raylene had blood all over her. A couple of feet away, Joseph was in his crib. The crib rails and bedding were splattered with blood. Neither child was injured.
Defendant’s father, Alberto Lopez, testified that, at 1:30 a.m., defendant returned home and woke up Alberto and his wife by breaking their bedroom window. Defendant yelled he believed he had killed Naomi and asked Alberto and his wife to go check on the children. Defendant’s hands were bloody. Lopez called 911 and the police took defendant into custody.
At 1:40 a.m., Police Officer Gandy responded to defendant’s parents’ home. Gandy went with defendant in an ambulance to the hospital. During the ride, defendant said, “I think I killed my wife.”
On September 23, 2007, Police Detective Samano (Samano) interviewed defendant while defendant was at the hospital being treated for his hand injuries. Defendant confessed to stabbing Naomi. When asked if he intended to take her life, he said, “[y]ou could say that, yeah.” He said he was angry at her because she left him, was cheating on him, and threatened to take away his children. After recording defendant’s interview, Samano went to the crime scene and observed blood splatter throughout the bedroom and along the crib rails. A bloody, serrated kitchen knife, with a six- to eight-inch blade, was found on the floor next to the bed.
Naomi sustained 15 stab wounds, including to her neck, chest, chin, shoulder, arm, hand, wrist, forearm, breast, armpit, pelvic area, stomach, and liver. The stab wounds to an artery in her left upper arm and to her chest wall were potentially life threatening.
Defendant testified that a few weeks before the stabbing, he and Naomi had separated. Defendant was depressed and not thinking rationally. On September 12, 2007, Naomi told him she had been talking to another man. This hurt defendant. Defendant wanted to work out his problems with Naomi and remain married. Naomi refused. Defendant unsuccessfully attempted to commit suicide by driving his car off a hill. Defendant became obsessed with finding out if Naomi was cheating on him.
Defendant testified that, on September 22, 2007, he called Naomi numerous times but the phone was busy. When he finally spoke to her, she refused to tell him to whom she had been talking on the phone. She said she was filing for divorce and they were no longer married. She also said she would take the children away and would report defendant to Child Protective Services if defendant did not stop bothering her. Defendant was angry and out of control. He took a knife from his parents’ kitchen, drove to Naomi’s house, entered using his old key, and went to Naomi’s bedroom. Naomi was standing beside her bed. Defendant repeatedly stabbed her. He stopped when he heard Raylene crying. He did not realize what he was doing until then or that he had cut his own hands with the knife. He dropped the knife and returned to his parents’ house.
II
SUFFICIENCY OF EVIDENCE
Defendant contends the evidence was insufficient to support his child endangerment convictions (counts 4 and 5).
A. Standard of Review
Upon a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment below and determine whether or not the record discloses substantial evidence upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Ceja (1993) 4 Cal.4th 1134, 1138.) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”’” (People v. Rayford (1994) 9 Cal.4th 1, 23.)
We may not reverse defendant’s conviction simply because differing inferences and findings could have been made by the trier of fact. “[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.]” (People v. Ceja, supra, 4 Cal.4th at p. 1139.)
B. Applicable Law Defining Child Endangerment
Section 273a, subdivision (a) provides in relevant part, “[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, . . . having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered . . . .” is guilty of felony child endangerment. Where the defendant does not, himself, inflict injuries upon the victim, conviction under the statute requires that the defendant have willfully caused or permitted the placement of the victim in a situation which is likely to produce great bodily injury or death. (People v. Valdez (2002) 27 Cal.4th 778, 787-788.) “‘[L]ikely’ as used in section 273a means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.)
“[S]ection 273a, subdivision (a) sets forth a standard of conduct that is rigorous. Ordinary negligence will not suffice. Specifically, criminal negligence involves ‘“a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . or an indifference to consequences.”’ [Citation.]” (People v. Valdez, supra, 27 Cal.4th at p. 788.)
“‘Criminal liability cannot be predicated on every careless act merely because its carelessness results in injury to another. [Citation.] The act must be one which has knowable and apparent potentialities for . . . death [or great bodily injury]. Mere inattention or mistake in judgment . . . is not criminal unless the quality of the act makes it so. The fundamental requirement fixing criminal responsibility is knowledge, actual or imputed, that the act of the accused tended to endanger life.’ [Citation.] [Citation.]” (People v. Peabody (1975) 46 Cal.App.3d 43, 47, quoting People v. Rodriguez (1960) 186 Cal.App.2d 433, 440.)
“‘Violation of section 273a, subdivision (a) “‘can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.’ [Citation.] . . . Section 273a[, subdivision (a)] 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.]” [Citation.]’ [Citation.]” (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1160.)
C. Discussion
Defendant argues there was insufficient evidence he willfully permitted his children to be endangered under circumstances likely to produce GBI or death within the meaning of section 273a, subdivision (a). Specifically, he asserts that stabbing Naomi, while the children were present in the bedroom, was not likely to cause the children to suffer GBI or death. We disagree.
There is substantial evidence the children were in danger of being stabbed or suffering other serious injury. Defendant barged into Naomi’s bedroom in a rage and pounced on top of her, with knife in hand, while Naomi and Raylene were sleeping next to each other on the bed. He wildly and brutally stabbed Naomi in the neck, chest, chin, shoulder, arm, hand, wrist, forearm, breast, armpit, pelvic area, stomach, and liver. Defendant thrust the serrated kitchen knife into Naomi’s body 15 times, with such force the knife blade bent and blood spurt all over the bed, Raylene, and Joseph’s crib rails and bedding. Defendant lost control of the knife when it slipped from his hand, yet continued stabbing Naomi with his hands on the blade, severely cutting his own hands.
The children’s exposure to serious physical harm was also demonstrated by Naomi’s testimony she pushed defendant off her because she feared for Raylene’s safety. Defendant continued stabbing Naomi after she stood up between the bed and Joseph’s crib. It was apparent the children were terrified of being harmed as well. Officer Wilfert testified that when he arrived at the scene, he found both children in the bedroom crying.
The evidence was more than sufficient to support defendant’s jury convictions for both counts of child endangerment. The jury could reasonably find defendant endangered his children by creating an abusive situation in which the probability of serious injury was great. (People v. Cockburn, supra, 109 Cal.App.4th at p. 1160.)
III
INSTRUCTION ON MISDEMEANOR CHILD ENDANGERMENT
Defendant contends the trial court failed to instruct the jury sua sponte on misdemeanor child endangerment as a lesser included offense of counts 4 and 5 (felony child endangerment). Defendant argues the instruction was required because the jury could have concluded defendant was guilty of misdemeanor child endangerment (§ 273a, subd. (b)), rather than felony child endangerment (§ 273a, subd. (a)).
“The trial court must instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.] On the other hand, if there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1063.)
The only difference between misdemeanor and felony child endangerment is that the felony requires evidence the defendant placed the child under circumstances likely to produce GBI or death. (§ 273a, subds. (a) & (b); People v. Burton (2006) 143 Cal.App.4th 447, 454, fn. 4.) Defendant argues it was questionable whether this element existed since “there was no evidence that [defendant’s] actions toward Naomi demonstrated a disregard or an indifference for human life. Raylene and Joseph were merely present in the bedroom.”
We disagree. To the contrary, there was substantial evidence of felony child endangerment, and no evidence the offense was less than as charged. Defendant’s wild and brutal stabbing of Naomi, within feet, if not inches, of the children demonstrated defendant had a total disregard and indifference for human life. There was no evidence, on the other hand, supporting a reasonable finding serious harm to the children was not a strong probability. The trial court thus did not have a duty to instruct sua sponte on the lesser included offense of misdemeanor child endangerment.
Even if the trial court erred in not instructing on misdemeanor child endangerment, such error was harmless since it is not reasonably probable the jury would have returned a more favorable verdict had instruction on misdemeanor child endangerment been given. (People v. Breverman (1998) 19 Cal.4th 142, 178 (Breverman); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Defendant cites People v. Ramkeesoon (1985) 39 Cal.3d 346, 351-352 and People v. Wickersham (1982) 32 Cal.3d 307, 335, in support of a more stringent standard of prejudice than set forth in Watson, at page 836. But Ramkeesoon and Wickersham predate, and were effectively overruled by, the California Supreme Court’s opinion in Breverman, at page 165.
Breverman pronounced that the Watson standard generally applies in determining whether instructional errors under California law are prejudicial. In Breverman, the defendant argued the trial court prejudicially erred in not instructing sua sponte on the lesser included offense of voluntary manslaughter on a heat of passion theory because the omission “deprived him of his ‘constitutional right to have the jury determine every material issue presented by the evidence.’ [Citations.]” (Breverman, supra, 19 Cal.4th at p. 153.)
Although Breverman agreed the trial court erred by not instructing on the lesser included offense of murder, it overruled the longstanding standard of prejudice set forth in People v. Sedeno (1974) 10 Cal.3d 703, and concluded the Watson standard should apply instead. (Breverman, supra, 19 Cal.4th at pp. 148-149, 164-165.) The court in Breverman stated: “[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility. We further determine, in line with recent authority, that such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Cal. Const., art. VI, § 13; Watson, supra, 46 Cal.2d 818, 836.)” (Id. at p. 165.)
Here, under Watson, if there was instructional error, it was harmless. There was substantial evidence the young children were subjected to the strong probability of GBI because they were so close to where defendant was wildly and brutally stabbing Naomi. Defendant did not provide any evidence refuting this. It is thus not reasonably probable the jury would have found defendant guilty of anything less than felony child endangerment.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Codrington
J.
We concur:
s/Ramirez
P.J.
s/Richli
J.
