P. v. Horton

Filed 2/28/07 P. v. Horton CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Matias R. Contreras, Judge. Reversed.

A jury convicted Debra Lee Horton (Debra) of abuse of a dependent adult (Pen. Code,former  368, subd. (b)(1)),^[1]arising out of the death of her 60-year-old mother, Concepcion Horton (Concepcion), who spent the last several years of her life bedridden and being cared for by Debra and Debra's father, John Kenneth Horton, Sr. (Kenneth, Sr.), in the family home.^[2] The jury also found that Debra proximately caused her mother's death. (Former  368, subd. (a)(3).)

The trial court granted probation to Debra, suspending an eight-year prison term, and imposed probation conditions, including the service of a 365-day sentence in county jail.

In her appeal, Debra argues that insufficient evidence supports her conviction, and that the trial court erred in responding to a jury note without first notifying counsel and by giving an answer that misstated the law.

As we will explain, we conclude (1) that the verdict is supported by substantial evidence, and (2) that the trial court erred by responding to the jury note without informing counsel, and the error was not harmless beyond a reasonable doubt. Accordingly, we reverse.

I

FACTUAL AND PROCEDURAL BACKGROUND

Concepcion developed rheumatoid arthritis when she was in her late thirties, around the time that Debra was born in 1972. Rheumatoid arthritis is a painful, chronic autoimmune disease, which causes the lining of the joints to become inflamed. In 15 to 20 percent of afflicted persons, the disease becomes severe enough that its complications cause death. Persons who suffer from severe rheumatoid arthritis find it very painful to move, and a person's immobility can cause damage to the bones as they are demineralized and weakened through lack of use.

Concepcion died at home on December 4, 1999, at age 60, after having been bedridden due to rheumatoid arthritis for several years. For the last four or five years before Concepcion's death, Debra took care of her mother at home during the day while Kenneth, Sr. was at work. Kenneth, Sr. would then take over Concepcion's care in the late afternoon until he left for work the next morning. At the time of Concepcion's death, the home was occupied by Concepcion, Kenneth, Sr., Debra, Debra's older brother John Kenneth Horton, Jr. (Kenneth, Jr.) and his daughter Stephanie, who was seven years old when Concepcion died.

By all accounts, Concepcion had no trouble making her desires known, was stubborn and had a fear of doctors. Despite the repeated pleas of her family and friends, she would not see a doctor or agree to have medical personnel or any outside person come into the house to take care of her. Concepcion had not seen a doctor since 1972 when she gave birth to Debra, and she had lost her teeth because she also refused to see a dentist. Family members tried to carry Concepcion out of the house to go to a doctor, but she violently resisted and they were afraid to injure her. According to Debra, two days before her death Concepcion agreed to Debra's suggestion that she go to a doctor but then changed her mind the next day, saying she wanted to wait and see how she felt.

According to Debra, she would take care of Concepcion's hygiene to the extent that Concepcion would allow. Debra stated that she gave sponge baths to Concepcion, but the bathing was often painful for Concepcion. Debra claimed that she was only able to clean the front of Concepcion's body because Concepcion would not let Debra lift her, and Concepcion sometimes had temper tantrums while Debra was trying to clean her. Kenneth, Jr. confirmed that his father and Debra had been bathing Concepcion and trying to take care of her. He reported that Debra and Kenneth, Sr. would close the door to Concepcion's room for privacy when they cared for her, and he would hear the sound of Concepcion's arguing coming from behind the door. Concepcion had last been given a sponge bath three weeks before her death because, according to Debra, Concepcion was not feeling well "and didn't wanna . . . be messed with."

While caring for Concepcion, Kenneth, Sr. also had a hard time getting Concepcion to turn over, and thus, according to him, there was a portion of Concepcion's back that he was not able to wash. If Kenneth, Sr. tried to lift Concepcion, she would fight him. Kenneth, Sr. stated that he could not wash Concepcion's feet or cut her toe nails because she would tell him to leave her feet alone. Similarly, Debra stated that when she tried to clean Concepcion's feet, Concepcion would push her away.

According to Kenneth, Sr., Concepcion could not sit up in bed and would lie on her right side with the bed slanted so she could watch television. Kenneth, Sr., at Concepcion's request, had purchased both an expensive adjustable hospital bed and a couch for her to lie on, but Concepcion decided she would rather lie on a regular bed. Debra and her father used a urination bottle and a bedpan for Concepcion and would clean Concepcion after she defecated. According to Kenneth, Sr., Concepcion's bedding was changed as often as possible, but doing so was difficult because it involved moving Concepcion.

In addition to giving sponge baths to Concepcion, Debra reported that she would cut and color Concepcion's hair, change Concepcion and do the laundry. The house contained medical supplies, such as bandages, Vaseline, and a medical reference book. Debra and her father gave over-the-counter pain relievers to Concepcion for her arthritis pain. Around 1996, Debra told one of Concepcion's sisters that Concepcion had a sore on her back and she was cleaning it and treating it with gauze, and that it was getting better. Kenneth, Sr. stated that he had used ointments and pads to heal a sore on Concepcion's buttocks that was caused by a bedpan. Soiled bandages and bloody hand towels that police found in the home after Concepcion's death indicated that at least some of Concepcion's sores were being cleaned and treated.

According to Kenneth, Sr., Concepcion ate two meals a day, including burritos and tacos. She also enjoyed eating McDonald's Happy Meals with her granddaughter Stephanie. Kenneth, Jr. confirmed that Debra and Kenneth, Sr. would feed Concepcion whatever she wanted. Concepcion had lost her appetite in the last few days before her death and was eating Jell-O with fruit, but the night before Concepcion died, Debra and Kenneth, Sr. fed her meatball soup at her request.

According to Debra, she last saw her mother alive after arriving home at 1:30 or 2:00 a.m. on December 4, 1999, from a birthday party for one of her brothers. Concepcion was coherent and yelled at Debra for coming home late. Another family member had spoken to Concepcion on the telephone earlier that evening, and Concepcion seemed normal and alert. Concepcion had spent the evening watching movies with Stephanie, and may have helped Stephanie with her homework.

Debra and Kenneth, Sr. found Concepcion unresponsive at around 10:00 a.m. on the morning of December 4, 1999, after first believing that she was merely sleeping peacefully. Debra changed her mother into clean clothes and cleaned her up.

Instead of calling 911, Debra and Kenneth, Sr., with the help of two of Debra's brothers, took Concepcion to the Calexico Fire Department in the passenger seat of Kenneth, Sr.'s pickup truck. Kenneth, Sr. did not want paramedics to see the filthy condition of the house.

At the fire station, paramedics determined that Concepcion was dead and noticed a foul odor and bedsores on Concepcion's body. A deputy sheriff, who conducted a preliminary examination of Concepcion's body without removing her clothes, noted that Concepcion appeared dirty and had several ulcerations on her body, including on the back of her neck and head and her right breast area. The ulceration on her breast appeared that it had not been healing properly and had not been cleaned or taken care of. Concepcion's hands appeared dirty and her fingernails were long and unkempt.

The medical examiner who performed an autopsy on Concepcion described approximately 30 bedsores on Concepcion's body. Bedsores are caused by the pressure of lying in one position for a prolonged period, causing blood flow to be cut off from the compressed tissue and leading to tissue breakdown. A bedsore contains dead tissue that can become infected and spread infection to other parts of the body.

Bedsores are primarily treated by frequent moving of the body and removing the dead tissue from the sore so that it does not get infected by bacteria. A caretaker will try to prevent bedsores by turning the patient every two hours and keeping the patient clean and dry. A bedsore usually will not heal if it is not cleaned. When a bedsore is being cared for in a medical setting, if there is any dead tissue in the sore, a physician will perform surgery to remove the dead tissue to allow the sore to heal.

Concepcion had two bedsores on the back of her head; one on the back of her right shoulder; several on the right side of her chest, back and hip area; several in her lower back area; several on her right leg and arm; and several on her feet. The bedsores were not clean. The medical examiner had never before seen so many bedsores on one person, and a nursing director for a home health care agency testified that she had never seen a worse case of bedsores as those evident in a photograph of Concepcion's body.

Bedsores develop in four different stages depending on how deep they are and what structures are involved. The fourth stage is where the ulcer has gone through the fatty tissue below the skin and into the underlying muscle or bone. Concepcion had several stage IV ulcers on her body, including four that went down to the bone. The medical examiner testified that it would have taken many months, if not years, for Concepcion to get into the condition he observed. It was obvious that Concepcion had, at times, been in the same position for an extended period.

In addition to the bedsores, the medical examiner noted that Concepcion appeared unkempt. She had build‑up of dead skin on her body and in between her fingers and toes, and her toenails and fingernails had not been trimmed. She had greasy residue from body oils and dead skin in some of her body crevices. Concepcion's legs were fractured in five places. Four of the fractures appeared to have occurred after Concepcion's death. One of the fractures was older. Consistent with this finding, Kenneth, Sr. reported that he had heard a popping sound when moving Concepcion's legs approximately a year before her death while positioning a urination bottle, and at the time he believed that he had broken the leg, but Concepcion denied the leg was broken.

On Concepcion's right foot, the medical examiner found a pupa casing for a bronze bottle fly. There was no other evidence of insect infestation on Concepcion's body. It appeared to the medical examiner that Concepcion had suffered from relatively severe rheumatoid arthritis, evidenced, for example, by the deformities in her feet and hands.

The medical examiner concluded that Concepcion died of bacterial meningitis caused by an infection in the bone resulting from chronic bedsores. According to the medical examiner, the bedsores were a substantial factor in causing Concepcion's meningitis. The medical examiner specifically identified two stage IV bedsores on Concepcion's lower back as the sores that likely led to her death. The defense's medical expert agreed that if Concepcion's bedsores had been properly treated, she probably would have lived longer.

Kenneth, Sr. stated to police that he did not know about the serious bedsores on Concepcion's back. Debra also told police that she was surprised at the condition of Concepcion's body.

Because of the condition of Concepcion's body, the police suspected abuse. The police arrived at the Horton house around noon on the day that Concepcion died. Debra let the police inside. Before the police arrived, Debra was cleaning the house; the sheets had been taken off Concepcion's bed and the mattress was flipped over.

The house had a strong odor of animal urine and contained what appeared to be cat and dog feces. Trash and rotting food were strewn on the floor. There were hundreds of dead cockroaches on the floor, and cockroaches infested every room and would scatter when items were moved. An insect expert who examined the house had never seen so many cockroaches in a single residence. In the bathroom and in Concepcion's bedroom several insect species were found, including moth flies, phorid flies and carpet beetles. The insect expert found a "small amount" of insect remnants along the edge of Concepcion's mattress, not in the center. Noting that the insects were "few and far between" on the mattress, the insect expert testified that he found the pupa of four or five phorid flies along the corner edge of the mattress and the remains of one beetle that had been crushed into the mattress.

On the floor around the toilet in the only functioning bathroom in the house there appeared to be a layer of human feces on the floor. Next to the toilet was a trash can filled with paper that appeared to be soiled with feces. The tub in the bathroom was filthy with green mold and what appeared to be dirt or feces on the inside of the tub and the shower curtain. A building inspector later concluded that the house was not habitable and posed a danger to the public. He directed that a notice be posted identifying the house as a dangerous building.

During their search of the house, police officers located bloody sheets in a trash can in the kitchen as well as bloody towels and a placemat with blood, skin and hair attached to it. In another trash can, police officers located a tank top that was soaked in blood, pants with feces on them, a blouse with blood and liquids on it, and bloody bandaging materials. In Concepcion's bedroom police officers found a small towel and a pillow with what appeared to be blood on them. Maggots were found on bandages and on Concepcion's clothing taken from a trash can in the house. It was not clear, however, how long the items had been in the trash can.

A medical expert called by the defense testified that the filthy condition of the home did not cause Concepcion's death in that the bacteria that colonized her and spread throughout her body were all human bacteria that are normally already in a human body. According to the expert, the only effect of the filthy house on Concepcion would have been psychological. There was no evidence to the contrary presented at trial.

Testimony at trial established that no one had been invited into the house to visit Concepcion in several years, but Concepcion had regular telephone conversations with family members, including her three sisters. Witnesses who described their last telephone conversations with Concepcion, including witnesses who last spoke to Concepcion on Thanksgiving 1999  a week before her death  indicated that Concepcion sounded competent and seemed to be doing fine.

A forensic psychiatrist called by the defense testified that Concepcion did not suffer from a mental illness and had the mental capacity to make an informed decision regarding her medical care. He opined that Concepcion chose not to go to a doctor because of her cultural background, family medical experiences and personality.

Over several days in December 1999, Debra and Kenneth, Sr. were interviewed at the police station, and the interviews were videotaped.

Debra and Kenneth, Sr. were indicted in 2004. They were charged with second degree murder ( 187, subd. (a)) and abuse of a dependent adult (former  368, subd. (b)(1)). The charges against both Debra and Kenneth, Sr. were tried to a jury. Videotapes of Kenneth, Sr.'s and Debra's police interviews were played at trial, but neither Kenneth, Sr. nor Debra testified. The jury was also shown several photographs demonstrating the condition of Concepcion's body and the condition of the house.^[3]

Kenneth, Sr. died at home on the day that the jury was being instructed by the trial court. The charges against him were dismissed, and the jury was instructed to consider only the charges against Debra.

The jury found Debra guilty of felony abuse of a dependent adult, with the further finding that she proximately caused Concepcion's death. The jury found Debra not guilty of murder and made no finding on whether she personally inflicted great bodily injury on Concepcion.

II

DISCUSSION

We first address Debra's contention that insufficient evidence supported her conviction for abuse of Concepcion under section 368, subdivision (b)(1).

A. Standard of Review

In assessing Debra's challenge to the sufficiency of the evidence, we apply a substantial evidence standard of review. "In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence  that is, evidence that is reasonable, credible, and of solid value  such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) "In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court '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.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise." (People v. Combs (2004) 34 Cal.4th 821, 849.)

B. Applicable Legal Standards

At the time of Concepcion's death in December 1999, former section 368, subdivision (b)(1) provided that "[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that he or she is an elder or a dependent adult, to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered[,]" is guilty of a violation of that provision. If the finder of fact determines that "the defendant proximately cause[d] the death of the victim" or "the victim suffer[ed] great bodily injury," an additional term of imprisonment applies. (Id., subd. (b)(3) & (2).) Further, if the circumstances of the crime are "other than those likely to produce great bodily harm or death," the defendant may be found guilty of a misdemeanor. (Id., subd. (c).)

As used in the statute, " 'dependent adult' means any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age." (Former  368, subd. (h).)^[4] Because of the extreme physical disability caused by her rheumatoid arthritis, which rendered her bedridden, there is no dispute that Concepcion was a dependent adult.

Section 368 "was enacted in order to protect the members of a vulnerable class from abusive situations in which serious injury or death is likely to occur." (People v. Heitzman (1994) 9 Cal.4th 189, 203 (Heitzman).) "The statute may be applied to a wide range of abusive situations, including within its scope active, assaultive conduct, as well as passive forms of abuse, such as extreme neglect." (Id. at p. 197.) However, "[t]he statute is aimed . . . at neglect, not valid choices as to medical care." (People v. Manis (1992) 10 Cal.App.4th 110, 116, disapproved on another ground in Heitzman,at p. 209, fn. 17.)

The mens rea needed for a conviction under section 368 is criminal negligence. (See People v. Superior Court (Holvey) (1988) 205 Cal.App.3d 51, 60 [applying a criminal negligence standard to  368]; People v. Valdez (2002) 27 Cal.4th 778, 786 (Valdez) [observing that "the Courts of Appeal have interpreted section 368 to contain a criminal negligence mens rea"]; Heitzman, supra, 9 Cal.4th at p. 213, fn. 20 [referring to the "judicially imposed requirement" that liability under  368, subd. (a) arises "only . . . when the defendant's conduct is found to be criminally negligent"].)^[5]

When a finding of criminal negligence is required, "[o]rdinary 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." ' " (Valdez, supra, 27 Cal.4th at p. 788, italics added.)^[6]

C. Substantial Evidence Supports the Conviction

Challenging the sufficiency of the evidence, Debra argues that she "provided as much care as could be expected of a layperson, and as much care 'as her mother would allow,' feeding, changing, providing medication, and trying to treat the bedsores." She argues that "[t]here was no evidence [she] did not feed [Concepcion], did not care for her, ignored her, neglected her nor abused her." Debra argues that "in light of the seriousness of Concepcion['s] condition, [she] simply could not handle someone in Concepcion's state. But she did try, and the evidence showed she was caring for her mother. As such, the care she provided did not amount to criminal negligence." As we will explain, we reject Debra's argument.

Debra does not dispute that she "ha[d] the care or custody of [a] dependent adult" as defined by the statute (former  368, subd. (b)(1)). Indeed, based on Debra's own description of her role in providing care to Concepcion, there is substantial evidence to support such a finding. Thus, according to the legal standards we have set forth above, we focus our analysis on whether there is substantial evidence that Debra, as a person who had undertaken to provide care to Concepcion, acted with criminal negligence in providing that care. Specifically, we evaluate whether the evidence is sufficient to support a finding: (1) that Debra "willfully cause[d] or permit[ted] the person or health of [Concepcion] be injured, or willfully cause[ed] or permit[ted] [Concepcion] to be placed in a situation in which . . . her person or health [was] endangered"; and (2) that the conduct occurred (a) under circumstances showing aggravated, culpable, gross, or recklessconduct incompatible with a proper regard for human life or an indifference to consequences, and (b) "under circumstances or conditions likely to produce great bodily harm or death." (Former  368, subd. (b)(1).)

Based on the record in this case, we conclude that substantial evidence existed for the jury to draw an inference that the care Debra provided to Concepcion was so inadequate that Debra "willfully cause[d] or permit[ted]" Concepcion "to be placed in a situation in which . . . her person or health [was] endangered" (former  368, subd (b)(1)) and that Debra acted with criminal negligence.

We base our conclusion on the evidence in the record concerning the condition of Concepcion's body at the time of her death and Debra's own admissions about her care of Concepcion. Concepcion's body was covered with 30 bedsores, and medical testimony established that Concepcion's bedsores were not clean and her body was unkempt. The medical examiner testified that it would have taken months or years for Concepcion's body to develop to the state it was in at the time of death. Further, despite the fact that bedsores covered Concepcion's body, Debra admitted to police that she was surprised at the condition of Concepcion's body on the morning of Concepcion's death. She also admitted that she had not bathed Concepcion for three weeks before Concepcion's death. Based on these facts, the jury had substantial evidence to infer that Debra intentionally neglected Concepcion's care by not examining Concepcion's body to determine whether Concepcion was developing bedsores that needed to be cleaned and cared for.

The record also contains substantial evidence for the jury to conclude that Debra's neglect of Concepcion's bedsores endangered Concepcion's life. The jury heard testimony that a bedsore usually will not heal if it is not cleaned, and the evidence established that Concepcion died because of the bacteria that infected her body through the bedsores. Even the defense's medical expert agreed that if Concepcion's bedsores had been properly treated, she probably would have lived longer.

Other evidence in the record strengthens the jury's inference that Debra neglected to properly care for Concepcion by not paying sufficient attention to the condition of her body. Concepcion's nails were not clipped. There was greasy residue on her body and a buildup of dead skin. A fly pupa had formed on Concepcion's foot, supporting an inference that Debra had not examined that part of Concepcion's body for a substantial amount of time. Further, although there was no evidence at trial that the filthy condition of the house directly contributed to Concepcion's death, the jury could have viewed Debra's extreme neglect of the house in which Concepcion was bedridden as an indication of Debra's criminally negligent attitude toward her mother's well-being.

Before concluding our analysis, we pause to discuss an issue raised in Debra's appellate briefing. Arguing that Concepcion was a competent adult who did not want medical treatment and often refused hygienic care, Debra argues that she should not be held to a different standard than a medical professional, who would have no duty to provide care to a patient who refuses it. (See Thor v. Superior Court (1993) 5 Cal.4th 725, 744 ["a competent, informed adult, in the exercise of self-determination and control of bodily integrity, has the right to direct the withholding or withdrawal of life-sustaining medical treatment, even at the risk of death . . . . Once a patient has declined further medical intervention, the physician's duty to provide such care ceases"]; see also Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 1015 ["a competent adult patient has the legal right to refuse medical treatment"]; Cobbs v. Grant (1972) 8 Cal.3d 229, 242 (Cobbs) ["a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment"].) Although we find substantial evidence for the jury's verdict, we clarify that by doing so we do not intend to endorse a rule that would require a layperson to provide medical care to an individual who refuses it when a medical professional has no such duty.

Instead, our decision is based on substantial evidence in the record to support a finding that Concepcion wanted certain care from Debra, and that Debra failed to provide that care by neglecting Concepcion's bedsores. As a dependent and bedridden adult, Concepcion relied on Debra to provide the essential care that she could not provide for herself. The record contains evidence that Concepcion had previously relied on Debra and Kenneth, Sr. to treat and heal other bedsores, supporting an inference that she continued to rely on them to properly care for her bedsores. Debra's admission that she was unaware of the condition of Concepcion's body and the medical evidence showing that the bedsores were not cleaned, provides substantial evidence to support a finding that Debra acted with criminal negligence in not providing the care that Concepcion wanted and expected from Debra.

In sum, like any competent adult, Concepcion had the right to die with dignity at home and, as the case law we have cited indicates, she had the right to refuse medical treatment. (See Cobbs, supra,8 Cal.3d at p. 242.) Although Debra honored her mother's wish to be able to die at home without medical intervention, substantial evidence nevertheless supports a finding that Debra undertook a duty to provide care to Concepcion and that she provided that care in a criminally negligent manner by not properly attending to the condition of Concepcion's body.

D. The Trial Court's Response to the Jury's Question

We next consider a second ground for reversal advocated by Debra. Debra contends that the trial court prejudicially erred in the manner in which it responded to a question asked by the jury during deliberations.^[7]

The jury instructions and the verdict forms contained a lesser included misdemeanor offense for the charge of abuse of a dependent adult. As we have explained, a misdemeanor offense under section 368 applies in circumstances "other than those likely to produce great bodily harm or death." (Former  368, subd. (c).)

During deliberations, after having sent six notes to the trial court on various subjects, the jury sent a seventh note which stated: "The jury would like to know if we cannot decide on charge #3 of a felony [i.e., former section 368, subdivision (b)(1)], can we go forward to the misd[emeanor] [i.e., former section 368, subdivision (c)]" (Note 7). Without consulting with either defense counsel or the prosecutor, the trial court sent a handwritten note back to the jury, which stated, "No you must find the defendant not guilty of count III, before you can convict of the lesser charge (misd[emeanor])."^[8]

1. The Trial Court Erred by Not Informing Counsel of the Jury's Note

Debra argues that the trial court erred by not informing the parties of the content or existence of Note 7 and by not giving counsel a chance to discuss the proper way to respond. Debra argues, "[b]y failing to notify [her] or her trial counsel of the jury's question and the court's response so that her trial counsel could object and/or comment on the court's response, the court violated Debra's statutory and constitutional right to be present at all trial proceedings, her right to counsel, and her due process right to a fair trial, as well as section 1138."

Debra also argues that the trial court's response of "No" with the clarification that "you must find the defendant not guilty of count III before you can convict of the lesser charge" did not answer the question that the jury asked in Note 7. She contends that in asking if it could "go forward" to the misdemeanor, the jury was asking whether it could deliberate on the misdemeanor before it reached a verdict on the felony, not whether it could return a verdict on the misdemeanor before it reached a verdict on the felony. She states that "[a]t the very least, the court's response was confusing, and the court should have directed the jury to CALJIC [No.] 17.10."^[9]

As we will explain, we conclude that the trial court erred in responding to Note 7 without first informing counsel and allowing counsel to be heard. Indeed, in light of the well-settled law prohibiting such a procedure, we are troubled that such an error occurred.^[10]

We begin our analysis with the observation that "it has long been the rule that the trial court should not entertain communications from the jury except in open court, with prior notification to counsel." (People v. Hogan (1982) 31 Cal.3d 815, 848 (Hogan), disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836.) " ' "This rule is based on the precept that a defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant's case." ' " (People v. Jennings (1991) 53 Cal.3d 334, 384 (Jennings).) When the jury's inquiry arises in a situation where "counsel could have taken some action on the defendant's behalf to amplify, clarify, or modify the supplemental instruction or procedure," a "court's failure to give notice or afford an opportunity to respond [to the jury's inquiry] constitute[s] statutory as well as constitutional error." (People v. Hawthorne (1992) 4 Cal.4th 43, 68-69 (Hawthorne).)

The statutory dimension of the rule is codified in section 1138, which provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." ( 1138.)

The rule has constitutional dimensions because a trial court's ex parte instructions to the jury deprives a defendant of the constitutional right to counsel. (Hogan, supra, 31 Cal.3d at p. 849; Hawthorne, supra, 4 Cal.4th at p. 69 [" 'Communication between judge and jury during deliberations without affording defendant and counsel an opportunity to be present impinges on a defendant's constitutional right to the assistance of counsel' "].) Further, "[e]x parte instructions also implicate the defendant's right to personal presence at all trial proceedings." (Hawthorne, at p. 69.) " 'A statutory or constitutional violation occurs . . . where the court actually provides the jury with instructions or evidence during deliberations without first consulting counsel.' " (People v. Avila (2006) 38 Cal.4th 491, 613.)

Applying these standards here, there is no dispute that (1) without informing counsel, the trial court responded to Note 7, which addressed a substantive legal issue, and (2) if afforded an opportunity, counsel could have offered substantial input on the form and content of the trial court's response to Note 7. Had defense counsel been informed of Note 7, counsel could have attempted to impact the trial court's response by requesting that a different response be made, such as a rereading of the CALJIC instructions or an inquiry of the jury to clarify what it meant by "go forward." Accordingly, the trial court plainly acted in contravention of section 1138 and deprived Debra of her constitutional right to counsel and right to personal presence during a critical portion of the trial proceedings. (See Hogan, supra,31 Cal.3d at p. 849 ["A jury request for exhibits during deliberation is a critical stage of the prosecution during which the right to counsel applies"]; People v.Dagnino (1978) 80 Cal.App.3d 981, 985-988 [trial court's sending of written instructions to the jury during deliberation is a critical stage of the proceedings].)

2. The Error Requires Reversal Because It Was Not Harmless Beyond a Reasonable Doubt

When the constitutional rights of a defendant are implicated by the trial court's ex parte instructions to the jury, we apply the test for harmless error set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (See Hogan, supra, 31 Cal.3d at p. 850 [applying the Chapman test when trial court erred by sending exhibits to the deliberating jury without notifying counsel]; Jennings, supra, 53 Cal.3d at pp. 383-384 [applying Chapman test when trial court erred by having ex parte communication with the jury].) " 'Under that test, an error is harmless only when, beyond a reasonable doubt, it did not contribute to the verdict.' " (People v. Carter (2005) 36 Cal.4th 1114, 1187.)^[11]

Prejudice is presumed when the constitutional right to counsel has been denied during jury deliberations. "[I]f the denial of the right to counsel during jury deliberations may have affected substantial rights of a defendant, prejudice is presumed and '[o]nly the most compelling showing to the contrary will overcome the presumption.' [Citation.] The reason for the strong presumption of prejudice when the assistance of counsel has been denied is both the fundamental nature of the right and its relation to a fair trial and the difficulty of a 'meaningful assessment of prejudice on the record.' [Citations.] When faced with a record of a proceeding conducted without counsel, a reviewing court assessing possible prejudice is compelled to speculate as to what might have occurred had counsel been present. The uncertain nature of such a determination requires [a] strong presumption of prejudice . . . ." (Hogan, supra, 31 Cal.3d at pp. 849-850.)

Applying the harmless error standard as set forth in Chapman, supra,386 U.S. at page 24, and the strong presumption of prejudice noted in Hogan, supra, 31 Cal.3d at pages 849-850, we conclude that the error was not harmless beyond a reasonable doubt. As we will explain, we reach this conclusion because (1) the trial court may have incorrectly precluded the jury's deliberative process on the misdemeanor by its response to Note 7, and (2) deliberations on the misdemeanor could have resulted in a different verdict.

We conclude that the trial court's response to Note 7 may have precluded the jury from deliberating on the misdemeanor because it was not clear from Note 7 whether the jury was asking whether it could (1) "go forward" to deliberate on the misdemeanor or (2) "go forward" to return a verdict on the misdemeanor. Depending on the meaning of the jury's ambiguous question, the trial court's answer of "No" could have had the effect of communicating an incorrect statement to the jury  i.e., that the jury could not deliberate on the misdemeanor without reaching a finding of not guilty on the felony. Such a statement would have been legally incorrect. (People v. Dennis (1998) 17 Cal.4th 468, 536 ["a court may restrict a jury from returning a verdict on a lesser included offense before acquitting on a greater offense, but may not preclude it from considering lesser offenses during deliberations. [A] trial court should not tell the jury it must first unanimously acquit the defendant of the greater offense before deliberating on or even considering a lesser offense," citation omitted].) If the jury took this legally incorrect meaning from the trial court's response, it would have been precluded from deliberating on the misdemeanor.

Moreover, under the circumstances presented by the record, we cannot conclude beyond a reasonable doubt that the verdict would have been the same if the trial court had properly and unambiguously given the jury permission to deliberate on the misdemeanor. Note 7 raises a reasonable inference that the jury was having difficulties arriving at a guilty verdict on the felony charge.^[12] The difference between misdemeanor and felony dependent abuse under section 368 is that a misdemeanor occurs in circumstances "other than those likely to produce great bodily harm or death." (Former  368, subd. (c).) The graphic facts of this case, including the condition of Concepcion's body and the house, would not necessarily preclude the jury from deciding that although Concepcion's bedsores were neglected, the neglect was nevertheless not under circumstances likely to produce great bodily harm or death. According to Debra's description, she was attempting to provide care for her mother, and there was evidence that Debra and her father had previously treated and healed some of Concepcion's bedsores. The jury could have credited this evidence to conclude that the level of care that Concepcion was receiving was not likely to cause great bodily harm or death. Further, all of the evidence at trial was that the filthy condition of the house did not cause physical injury to Concepcion, and thus the jury could have disregarded the condition of the house in deciding whether the circumstances were likely to cause great bodily harm or death. Accordingly, if the jury was unable to reach a verdict on the felony charge because it could not come to a unanimous decision on whether the circumstances of the abuse were likely to produce great bodily harm or death, deliberations on the misdemeanor might have been fruitful in resolving that issue in favor of an acquittal on the felony and a guilty verdict on the misdemeanor. As we have explained, the trial court's response may have precluded those deliberations and therefore prejudiced Debra.

As part of our harmless error analysis, we also observe that the second part of the trial court's response to Note 7 could have communicated a lack of impartiality by the trial court on the question of Debra's guilt or innocence. After confusingly answering "No" to the jury's ambiguous question, the trial court told the jury, "you must find the defendant not guilty of count III before you can convict of the lesser charge." (Italics added). By using the word "convict," rather than a neutral phrase such as "return a verdict" or "convict or acquit," the trial court improperly communicated its view of Debra's guilt. "[A] trial court may not directly express an opinion on the ultimate issue of guilt or innocence of the accused at any stage of the trial . . . ." (People v. Proctor (1992) 4 Cal.4th 499, 542.) Further, because the trial court wrote in the word "convict" after crossing through the word "consider," which was still visible underneath the interlineation, the trial court gave additional weight to the improper use of the word "convict." The interlineation not only drew attention to the word choice, but the jury may have interpreted the replacement of the word "convict" for the word "consider" to mean that, in the trial court's view, a conviction was the only logical outcome for the misdemeanor.

Input by counsel could have brought all of these problems to light and may have resulted in a different, clearer and more impartial response by the trial court to Note 7.

In sum, we cannot say beyond a reasonable doubt that the result of the trial would have been the same had the trial court not erred by foreclosing counsel from being heard before it responded to Note 7. The trial court's error accordingly requires that we reverse the conviction.

DISPOSITION

The judgment is reversed.

IRION, J.

I CONCUR:

McINTYRE, J.

NARES, Acting P. J., Concurring in Part and Dissenting:

I concur with the majority that there is substantial evidence to support the verdict. I dissent from the reversal of judgment.

The trial judge erred when, without notifying counsel and giving counsel the opportunity to comment, respond, or object, the judge responded to the jury's note (question No. 7) in violation of the defendant's right to be represented by counsel at all stages of the proceedings and in violation of Penal Code^[13]section 1138. Unlike the majority, I conclude the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S.18, 24 for the following reasons:

It is undisputed that the trial court correctly instructed the jury on how it was to deliberate on count 3, referred to by the jury as "charge #3," and the lesser included offense, when it gave CALJIC No. 17.10^[14]and CALJIC No. 17.41.^[15] At the request of the jury, the jury was provided with two sets of jury instructions for use during its deliberations.

Jury note 7 asked, "The jury would like to know if we cannot decide on charge #3 of a felony, can we go forward to the misd[emeanor]?" The trial court responded, "No─you must find the defendant not guilty of Count III [the felony] before you can convict of the lesser charge [misdemeanor]." The court construed the question to mean that the jurors wanted to know if they could return a verdict on the misdemeanor without first returning a verdict on the felony. The court's abbreviated response was correct.

In essence, the trial court construed jurors' note 7 as having two parts: 1) If we cannot decide [give judgment] on the felony, can we 2) go forward [to give a judgment] on the misdemeanor, a lesser and included offense of count III. The Concise Oxford English Dictionary (11th ed. 2004) at page 371 defines "decide" as "give a judgment concerning a matter or legal case."

Appellant acknowledges "the court's response that the jury must find Debra [a defendant] not guilty of the felony before they could convict [sic] her of the misdemeanor was correct." Appellant asserts that the question the jury was asking was whether it could go forward "to deliberate on the misdemeanor." However, the jury used the word "decide," not "deliberate," in its note. The note does not state, suggest or imply it was asking if it could deliberate on the misdemeanor before deciding on the felony.

We can presume the jury understood the jury instructions (e.g., CALJIC Nos. 17.10 & 17.49 et al.) and applied them. (People v. Sanchez (2001) 25 Cal.4th 834, 852 ["Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions"]; People v. Delgado (1993) 5 Cal.4th 312, 331.) Moreover, in ruling on the motion for new trial, the trial court stated that had defense counsel made the objection at the time the note was received, the judge would have given the jury the same response. The trial court did not err in its response.

I would affirm the judgment.

NARES, Acting P. J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1] All statutory references are to the Penal Code. All "former section 368" references are to the version of the statute in effect at the time of Concepcion's death unless otherwise indicated. (See Stats. 1998, ch. 936,  7.5.)

^[2] For the sake of clarity, we refer to the members of the Horton family by their first names and intend no disrespect by doing so.

^[3] We have reviewed those photographs as part of our assessment of the sufficiency of the evidence.

^[4] As used in section 368, " 'elder' means any person who is 65 years of age or older." (Id., subd. (g).) Because Concepcion was only 60 years old, she was not an " 'elder' " as defined by section 368.

^[5] We note that recent California Supreme Court decisions regarding the mens rea for the statute criminalizing child abuse ( 273, subd. (a)) have applied a general criminal intent mens rea to certain types of abuse. Because "[s]ection 368 was patterned on and is virtually identical to section 273[, subdivision (a)]" and "[c]ases interpreting one section are therefore appropriately used to interpret the other" (Valdez, supra, 27 Cal.4th at p. 786, fn. 4), our Supreme Court's pronouncements regarding the mens rea applicable to the child abuse statute are instructive as applied to section 368 as well. With respect to section 273, subdivision (a), "when the conduct at issue involves the direct infliction of unjustifiable physical pain or mental suffering on a child, criminal negligence is not an element of the offense. Rather, the defendant must have a mens rea of general criminal intent to commit the proscribed act." (People v. Sargent (1999) 19 Cal.4th 1206, 1224 (Sargent), italics added.) In cases, however, where the infliction of harm is indirect, such as in cases of neglect or endangerment, the criminal negligence standard applies. (Valdez, at p. 788.) Thus, "use of a general intent standard is appropriate when the statute criminalizes commission of a battery, or direct infliction of unjustifiable pain or suffering. By contrast, criminal negligence is the appropriate standard when the act is intrinsically lawful, such as leaving an infant with a babysitter, but warrants criminal liability because the surrounding circumstances present a high risk of serious injury." (Id. at p. 789.) Applying that distinction here, the evidence at trial did not suggest any battery or direct infliction of pain or suffering by Debra, and instead focused on Debra's alleged neglect of Concepcion. Accordingly, the correct standard by which to judge Debra's culpability is criminal negligence.

^[6] When the defendant's knowledge of the risk of injury is an issue in a prosecution for criminal negligence, " '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." ' " (Sargent, supra, 19 Cal.4th at p. 1215.)

^[7] Debra raised the trial court's handling of the jury note as a basis for a motion for a new trial prior to filing this appeal.

^[8] In its response to Note 7, the court had originally written "before you can consider the lesser charge," but then interlineated it to read "before you can convict of the lesser charge." (Italics added.) The original text was still visible below the interlineation.

^[9] The jury instructions included the following instruction, taken from CALJIC No. 17.10: "If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged in [count 3] dependent abuse you may nevertheless convict him/her of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. [] The crime of 368(c) is lesser to that of 368 (b)1 charged in [count 3]. [] Thus you are to determine whether the defendant[] [is] guilty or not guilty of the crimes charged [in count 3] or of any lesser crimes. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charges and lesser crimes before reaching any final verdicts. However, the court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the defendant not guilty of the greater crime."

The jury was also instructed, based on CALJIC No. 17.49: ". . . Since the lesser offenses are included in the greater, you are instructed that if you find the defendant guilty of the greater offenses, you should not complete the verdicts on the corresponding lesser offenses and that those verdicts should be returned to the Court unsigned by the Foreperson. [] If you find the defendants not guilty of the felonies charged[,] P.C.  368(b)1, you then need to complete the verdicts on the lesser included offenses by determining whether the defendant is guilty or not guilty of the lesser included crimes, and the corresponding verdicts should be completed and returned to the Court signed by the Foreperson."

^[10] We also disapprove of the grossly deficient state of the clerk's minutes in this case concerning the jury notes, which has unnecessarily complicated our r