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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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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.

1 Undesignated statutory references are to the Penal Code.
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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 children out 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, but continued 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.
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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 rolled up 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 his grandmother (while the child waited outside), and had
stolen a rug and a bird.
One of the two officers directed defendant to stand in front 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
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baton. The other officer 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); and resisting, 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
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suffering, (3) having care or custody of a child, willfully causing or permitting the child
to be injured, or (4) willfully causing or permitting a 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 requires criminal 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: that defendant’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”].)
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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 he did 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.
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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
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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.

2 Defendant argues insufficient evidence as to count 4; the record makes clear count
3 refers to the younger child.