P. v. White
















Filed 4/26/17 P. v. White CA3







NOT TO BE PUBLISHED




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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Shasta)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JAMES WHITE,

Defendant and Appellant.

C081700

(Super. Ct. No. 15F3684)







A jury convicted defendant Michael James White of multiple crimes including two counts of misdemeanor child endangerment. (Pen. Code,§ 273a, subd. (b).)[1]On appeal he contends the trial court erred in instructing the jury on direct infliction of child abuse, instead of indirect infliction of child abuse. The People concede instructional error but maintain the error was harmless beyond a reasonable doubt. We agree with the People. Defendant also contends insufficient evidence supported one of the counts of child endangerment under either theory of abuse, direct or indirect. We disagree and affirm.
BACKGROUND
The facts surrounding the challenged misdemeanors involved two of defendant’s children, ages 11 and four. Defendant, who lived with his mother off and on, claimed to have drunk a fifth of whiskey and smoked methamphetamine before the incidents.
The incident with the older child
Defendant’s mother took the two childrenout to a movie and dinner. When they got home late that night, defendant and his girlfriend were there. Defendant’s mother put the younger child(who was asleep)on the couch. She then took the older child to his room to get ready for bed—along the way, she said “hi” to defendant, who was washing dishes.
As defendant’s mother put the older child in his room, she heard dishes breaking. She went out and told defendant she would do the dishes in the morning if he wanted. Defendant said, “No, I’ll do it right now.” She left, butcontinued to hear dishes breaking.
She returned to the kitchen and said she would do the dishes. Defendant and his mother then argued about defendant’s girlfriend. The mother wanted the girlfriend to leave. Defendant got upset and said, “[I]f she has to leave, then I’ll leave too.”
His mother went back to the older child’s bedroom (defendant’s girlfriend was in the mother’s room). Shortly after that, defendant came into the bedroom holding a 10-inch kitchen knife. He yelled, “You F-ing B[itch].” (Sic.) Then, facing his mother, held the knife to her throat and said something to the effect of, “I’ll kill you.” The knife touched her throat but did not cut her. The older child was awake and saw defendant hold the knife and say he would kill her.
With the knife to her throat, the mother fell backward, onto the bed behind her.As she did so, defendant put his head down, as though he were thinking or confused. He then dropped the knife and returned to the kitchen.
The mother took the older child and left the house. She left the younger child because he was asleep and because she interpreted defendant’s body language as not wanting her to take him. Away from the house, she called 911. Police arrived 15 minutes later.
The incident with the younger child
A little over an hour later, around 12:39 a.m., two officers located defendant and the four-year-old child walking along a narrow rural roadway. Defendant was carrying a large rolledup rug over his left shoulder. Both defendant and the child were barefoot. Prior to walking on the roadway, defendant had taken the child from the home, had broken into the nearby home of hisgrandmother (while the child waited outside),and had stolen a rug and a bird.
One of the two officers directed defendant to stand infront of the squad car, to get him out of the way of traffic. Defendant said he would continue walking home. The officer again directed defendant to stand in front of the squad car. Defendant kept walking.
The officer grabbed defendant’s left arm, to place him in a control hold and to arrest him. The child was standing on the roadway shoulder.
Defendant tensed up and started pulling away(the sweat on his arm made it difficult for the officer to control). Attempting to gain control, the officer hit defendant’s face with a palm heel strike. The struggle continued.
Defendant raised his free hand to his shoulder as if to punch the officer. The officer’s partner took defendant’s free arm in a control hold. Together, the two officers brought defendant mostly to the ground, but defendant still refused to lie flat (he was on his knees with one hand on the ground). One officer started hitting defendant with a baton. The otherofficer pepper sprayed defendant’s face. Defendant, shortly after,lay down on the ground and stopped resisting.
Jury instructions, verdict, & sentencing
The jury was instructed, as to the child endangerment counts, counts 3 and 4 (using CALCRIM No. 823): “To prove that the defendant is guilty of this crime, the People must prove that the defendant willfully inflicted unjustifiable physical pain or mental suffering on a child. Someone commits an act willfully when he or she does it willingly or on [] purpose. A ‘child’ is any person under the age of 18. ‘Unjustifiable physical pain or mental suffering’ is pain and suffering that is not reasonably necessary or is excessive under the circumstances.”
The jury thereafter convicted defendant of assault with a deadly weapon (§ 245 subd. (a)(1); count 1); criminal threats (§ 422; count 2); misdemeanor child endangerment (§ 273a subd. (b); counts 3 & 4); andresisting, obstructing, or delaying an officer (§ 148 subd. (a)(1); counts 5 & 6).
The court imposed an aggregate four-year eight-month prison term: the four-year upper term for count 1; eight months (one-third the middle) for count 2; 180 days each for counts 3 and 4, to run concurrently; and one year each for counts 5 and 6, to run concurrently.
DISCUSSION
I
The Instructional Error was Harmless Beyond a Reasonable Doubt
On appeal, defendant first contends the trial court erroneously instructed the jury on direct infliction of abuse, when the evidence supported only indirect infliction of abuse. The People concede instructional error, but maintain any error was harmless beyond a reasonable doubt. We agree with the People.
Section 273a, subdivision (b) proscribes four branches of conduct: (1) willfully causing or permitting a child to suffer, (2) inflicting unjustifiable physical pain or mental suffering, (3) having care or custody of a child, willfully causing or permitting the child to be injured, or (4) willfully causing or permittinga child to be placed in a situation where his health may be endangered. (See People v.Valdez (2002) 27 Cal.4th 778, 783 (Valdez).)
The second category involves “ ‘direct infliction,’ ” the remaining three categories involve “ ‘indirect infliction.’ ” (In re L.K. (2011) 199 Cal.App.4th 1438, 1445.) Direct infliction requires general criminal intent, similar to battery or assault with a deadly weapon. (Ibid.) Indirect infliction requirescriminal negligence. (Ibid.)
“Criminal negligence is ‘ “aggravated, culpable, gross, or reckless . . . conduct . . . [that is] 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. . . .” ’ [Citation.] ‘Under the criminal negligence standard, knowledge of the risk is determined by an objective test:“[I]f a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.” ’[Citations.]” (Valdez, supra,27 Cal.4th at p. 783.) “ ‘[T]here can be no criminal negligence without actual or constructive knowledge of the risk.’ ” (Ibid.)
Here, the jury was instructed as to the second category: thatdefendant’s mens rea must be willful, rather than criminally negligent. We agree with the parties that defendant’s conduct is more aptly described as indirect abuse, and thus the court should have instructed on indirect abuse. Nevertheless any error in instructing on direct abuse was harmless beyond a reasonable doubt. (See People v. Tripp (2007) 151 Cal.App.4th 951, 959, fn. 3 [“[F]ailure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury’s verdict”].)
As to count 4, involving the older child, defendant argues the direct abuse instruction was prejudicial because there was no evidence he knew the 11-year-old child was in the room when he assaulted his mother. He is mistaken.
The jury was instructed that it must find “defendant willfully inflicted unjustifiable physical pain or mental suffering on a child.” On the facts, the jury could not have found infliction of physical pain. Thus, it must have found defendant willfully inflicted mental suffering on the child. That finding necessarily entails a finding defendant knew the child was in the room when he willfully inflicted mental suffering on him. Accordingly, any error in instructing did not contribute to the verdict. (See People v. Merritt(2017) 2 Cal.5th 819, 825.)
Indeed, holding a knife to the throat of a child’s grandmother, in the child’s presence, while saying, “I’ll kill you,” and calling her an “F-ing B[itch] [sic],” is plainly criminally negligent in that it is such a departure from what would be the conduct of an ordinarily prudent person as to be incompatible with a proper regard for human life. (See Valdez, supra,27 Cal.4th at p. 783.)
Similarly, as to count 3,against the younger child, defendant argues the instruction was prejudicial because he “did nothing whatsoever”to the child, averring the extent of his noncompliance was to raise his fist and fail to lay flat. He argues this was not incompatible with proper regard for human life. Again, the jury, as instructed, found defendant willfully inflicted mental suffering on the child. That finding contravenes defendant’s assertion hedid nothing whatsoever to the child. To the contrary, defendant, intoxicated, and just after assaulting his mother, took his barefoot four-year-old child out at night. He took him as he broke into his grandmother’s home and stole a rug and a bird. Then he took the child down a narrow rural roadway in the dark. When police arrived, defendant refused to comply with instructions to stand in front of the squad car. He was confrontational and repeatedly resisted physically as the officers struggled to subdue him. His conduct—all done in front of the child—amply establishes criminal negligence. Accordingly, any error in instructing was harmless.
II
Substantial Evidence Supports Count 3[2]
Defendant next contends count 3 must be reversed for another reason:his conduct was merely reactive and did not violate section 273a, subdivision (b), under either a direct or indirect theory. But as discussed above, defendant’s conduct amply constitutes substantial evidence in support of the conviction as to the four-year-old child.
DISPOSITION
The judgment is affirmed.



NICHOLSON , Acting P. J.



We concur:



ROBIE , J.




DUARTE , J.




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[1] Undesignated statutory references are to the Penal Code.
[2] Defendant argues insufficient evidence as to count 4; the record makes clear count 3 refers to the younger child.