P. v. Johnson

Filed 3/22/06 P. v. Johnson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Douglas M. Elwell, Judge. Affirmed in part with directions; reversed in part.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Lilia E. Garcia, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction

Delores Roberta Johnson provided grossly inadequate care to her elderly stepfather, Parris Bland, Sr., and her two dependent adult stepbrothers, Eric and William Bland, which resulted in Eric's death. The jury found defendant guilty of the following offenses: second degree murder of Eric (count 1) (Pen. Code, § 187, subd. (a));^[1] abuse of a dependent adult, Eric, with a special allegation that the abuse resulted in death (count 2) (§ 368, subds. (b)(1) & (b)(3)); embezzlement by a caretaker upon Eric and William (counts 3 and 5) (§ 368, subd. (e)); abuse of an elder, Parris, Sr., and dependant adult, William, with special allegations that defendant inflicted great bodily injury (counts 4 and 6) (§ 368, subd. (b)(1) & (b)(2)).^[2] The court sentenced defendant to 29 years to life in state prison.

On appeal, defendant claims that she should not have been charged and convicted of both the crimes of murder and dependent adult abuse resulting in death. Defendant also claims that insufficient evidence supported the murder charge, embezzlement charges, and great bodily injury allegations. In also challenging the embezzlement convictions, defendant argues that the court erred in failing to instruct the jury on the claim-of-right defense. Both parties agree that the court erred in imposing the full term of three years for count 4.

We conclude that the elder and dependent adult abuse statute does not bar prosecution for murder when there is evidence that defendant acted with malice. The record contains substantial evidence to support defendant's convictions for murder and embezzlement. Substantial evidence also supported the great bodily injury allegations. As to defendant's claim of instructional error, we conclude the court had no sua sponte duty to instruct on the claim-of-right defense because defendant was not entitled to use Eric's and Williams's disability benefits for her personal use. As noted by the parties, the court made a sentencing error in count 4.

We affirm in part and reverse in part.

2. Factual and Procedural History

Between August 1, 2002, and February 24, 2003, defendant lived with her 74-year-old stepfather, Parris, Sr., and her two stepbrothers, 38-year-old Eric and 41-year-old William, in a three- to four-bedroom house in Rialto. Parris, Sr. suffered from moderate dementia. Both Eric and William suffered from developmental disabilities. Eric also had autism and an estimated IQ of 34.^[3] All three required assistance for daily living. Eric required hand-feeding, except with finger foods. Eric had difficulty communicating and when he did communicate, used only basic words and hand motions.

Willie Brown lived nearby with his disabled wife and daughter. After forming a relationship with defendant, Brown spent most of his time at the Bland residence.

Eric, William, and Parris, Sr., shared the converted garage of the house. Parris Bland, Jr., purchased the house for his father, brothers, and stepsister. Apparently, Parris, Sr., chose to stay in the garage with his sons in order to watch them and prevent them from disturbing defendant. The garage door leading to the rest of the house had a board over the door. The door leading to the rest of the garage was chained shut with a padlock. The brothers were locked inside so they could not leave the room to eat the fruit off the trees outside or drink water from the sink.

On February 24, 2003, police officers went to the Bland residence in response to a 911 call and found Eric dead in the converted garage. Eric's body was on his bed without pillows, sheets, or blankets. Eric was not wearing any underwear and had two socks on his right foot. Eric appeared to be extremely malnourished. William also appeared very thin. William was taken into protective custody.

The officers noted that there was little food in the house. They noticed only some items in the pantry and a bag of frozen vegetables in the freezer.

At the time of his death, Eric, who was five feet 11 inches tall, weighed about 70 pounds without clothes. There was virtually no fat on Eric's body, i.e., no soft tissue between his bones and skin. Eric's eyes were sunken in. The pathologist later concluded that the cause of death was starvation as a result of gross neglect.

About five years earlier, in 1997, Eric was six feet two inches tall and weighed about 150 pounds. The height discrepancy could have been the result of a couple of factors, including an inaccurate measurement at death. The weight loss, as explained by the pathologist and another doctor, likely occurred over a period of months or years as a result of being deprived of adequate food.

According to his relatives, Eric had no problems eating. The pathologist also noted that there was no indication that Eric had problems digesting food. At death, Eric had nothing in his stomach, but had some beans in his small and large intestines.

According to the doctors, William's condition also was life threatening. He appeared very thin and gaunt. William was about five feet 10 inches tall and weighed 80 pounds. As with Eric, there was no indication that William had an eating disorder or any problems digesting food. Neither William nor Eric had received medical care in the past five years.

In contrast to the brothers, defendant and her boyfriend appeared well-fed. Defendant weighed about 200 pounds and Brown weighed about 320 pounds. Defendant and her boyfriend were arrested on March 13, 2003.

During his police interview, Brown explained that defendant provided food for Parris, Sr., and her stepbrothers, but she never provided enough. She gave Parris, Sr., more food than the other two. William would beg Brown for food, but defendant would say that he did not need more.

After defendant's arrest, Parris, Sr., was examined by a doctor. He had cataracts in both eyes and was legally blind. His doctor also noticed that his toenails were extremely long and infected, his ears were full of wax, and his underwear was soiled with urine and feces. At the time of his examination, Parris, Sr., measured five feet five inches tall and weighed 150 pounds. While Parris, Sr.'s weight seemed normal, his doctor explained that his blood tests results, specifically, the low plasma protein, suggested malnutrition. After two to three months, Parris, Sr.'s weight increased to about 172 pounds. Parris, Sr., also had high blood pressure. Parris, Sr., last received medical care in 2000.

Parris, Sr., received a $1,053 pension check and $899 in social security each month. Eric and William together received disability payments totaling $1,460 per month, which was deposited directly into a bank account. In 2002, defendant applied and was granted a total of about $334 per month to provide in-home services for her stepbrothers. Defendant had access to the bank accounts and controlled the household finances.

Defendant had no other source of income. Defendant also did not have a car and relied on Brown for transportation.

During his police interview, Brown stated that defendant used her stepfather and stepbrothers' money to buy rock cocaine. According to Brown, defendant spent about $70 to $80 a day. She used cocaine about four to five times a day.

3. Elder and Dependent Adult Abuse Statute

In 1983, the Legislature enacted section 368 to give special consideration and protection to elders and dependent adults who, because of their mental or physical incapacity, were less able to protect themselves. (§ 368, subd. (a), formerly § 367a.) The statute provides: â€