Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL022549, Ronald P. Kreber, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Stephanie H. Chow and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
The juvenile court declared defendant Jesus P., born in October 1989, a ward of the court under Welfare and Institutions Code section 602. The juvenile court found beyond a reasonable doubt Jesus committed two counts of misdemeanor child endangerment, one misdemeanor count of possession of alcohol by a minor, and one misdemeanor count of making a false representation to a peace officer. Jesus contends there is insufficient evidence to sustain the juvenile court’s finding he committed the two counts of misdemeanor child endangerment. Jesus argues substantial evidence does not show he placed the children in a situation where their persons or health may have been endangered within the meaning of Penal Code section 273a, subdivision (b).
We affirm. Substantial evidence supports the juvenile court’s finding Jesus committed two counts of misdemeanor child endangerment. The record shows Jesus, with two very young children in his care, sat in a parked truck on a public street for an hour during which time he drank so much alcohol a police officer found him disheveled, emitting a strong odor of alcohol, and unable to take care of himself or others.
Facts
On May 21, 2007, Santa Ana Police Officer Paul McClaskey was dispatched to the area of 800 South Garnsey Street in the City of Santa Ana. When he arrived, he found a pickup truck parked on the west curb line. Another officer had already responded to the scene.
Officer McClaskey observed Jesus sitting in the driver’s seat of the pickup truck, holding a six-month-old infant. Julia R. was sitting in the passenger seat of the truck, holding a two-year-old child. There were no child safety seats inside the truck. On the floorboard of the truck, Officer McClaskey saw a 40-ounce bottle of beer, trash, and four empty baby formula bottles. On the ground outside the passenger side of the truck, Officer McClaskey saw a smashed 40-ounce bottle of beer.
The record is unclear whether the keys were inside the truck.
Julia referred to Jesus as her boyfriend.
Jesus initially told Officer McClaskey his name was Fernando Roman. Officer McClaskey observed Jesus’s face was red and his eyes were bloodshot; Jesus smelled of alcohol. Another officer administered a breath test, which showed Jesus had a .05 percent blood alcohol concentration. Officer McClaskey arrested Jesus for child endangerment and for being intoxicated in a public place. Officer McClaskey read Jesus his rights under Miranda v. Arizona (1966) 384 U.S. 436, which Jesus waived.
Officer McClaskey questioned Jesus at the Santa Ana Police Department. Jesus told Officer McClaskey he was at a friend’s house when Julia and Amber H. arrived. Amber is the mother of the two children Officer McClaskey found in the truck with Jesus and Julia. Amber asked Jesus and Julia to watch the children while she went to the store. Jesus stated he and Julia had been drinking in the truck with the children for “about an hour.” He also told Officer McClaskey he and Julia found the 40-ounce bottles of beer in the truck, and had consumed one and one-half bottles while waiting for Amber to return for her children.
Amber owns the truck in which Officer McClaskey discovered Jesus and Julia. Amber is the girlfriend of Julia’s brother, who is also the father of the children.
Procedural History
In October 2007, a petition was filed in juvenile court under section 602 of the Welfare and Institutions Code, alleging Jesus committed four misdemeanor offenses. The petition alleged two counts of child endangerment by a caretaker (Pen. Code, § 273a, subd. (b)), one count of possession of an alcoholic beverage by a minor (Bus. & Prof. Code, § 25662, subd. (a)), and one count of false representation to a peace officer for giving a false identification (Pen. Code, § 148.9, subd. (a)). On October 19, 2007, a notice of hearing on juvenile probation violation was filed, alleging that on December 13, 2005, the juvenile court had ordered Jesus “to obey the usual terms and conditions of probation, specifically to report to the probation officer as directed,” but Jesus failed to so report on July 18, August 22, September 12, 19, and 26, and October 10, 2007.
Following a bench trial, Jesus’s counsel moved to dismiss both counts of misdemeanor child endangerment on the grounds that the children had not been under Jesus’s care and custody and that Jesus had not been criminally negligent. The juvenile court denied the motion, stating “there’s [a] sufficient nexus regarding custody and care . . . . [¶] . . . [¶] . . . [A]nd . . . the number of people that were there, the adults, the number of people that were involved in drinking, would endanger children of this age, two years and six months.”
The juvenile court sustained the petition as to all four counts. Jesus admitted he had violated the terms of probation. The court declared Jesus a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 and placed Jesus in the custody of juvenile hall for a period of 247 days.
Jesus timely appealed.
Discussion
We review claims of insufficient evidence to sustain a criminal allegation in a petition under Welfare and Institutions Code section 602 using the same standard as in a criminal case. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) “‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] ‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Jesus contends substantial evidence does not show he committed two counts of misdemeanor child endangerment under Penal Code section 273a, subdivision (b). Section 273a, subdivision (b) provides: “Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or 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 may be endangered, is guilty of a misdemeanor.”
In the respondent’s brief, the Attorney General argues Jesus violated Penal Code section 273a, subdivision (b) because (1) the children were in Jesus’s care, and (2) Jesus willfully caused or permitted the children to be placed in a situation where their persons or health may have been endangered. Jesus’s sole contention on appeal is that substantial evidence fails to show that the children were placed in a situation where their persons or health may have been endangered.
In sustaining the two counts of misdemeanor child endangerment as alleged in the petition, the juvenile court stated: “The court found the officer to be credible. The officer was doing [the] investigation. In this particular case, the court would find that care and custody was taken of the children, ages of approximately two and six months, and the minor was holding the six-month-old child in the truck. [¶] The court found that the alcohol that was involved and the drinking that had taken place had endangered the health of the children. And the length of the drinking with the group made a difference, and the fact that they were drinking in a truck made a difference versus a residence. I don’t understand why the mother of the children would put two infants with people that were drinking in a group. Nevertheless, that was done in this particular case. [¶] For those reasons, the court would find that care and custody had been taken, as shown in this case, and it would appear to the court that— . . . the evidence shown in the case would indicate that the children would have been placed in health consequences as a result of this excessive drinking. [¶] The drinking done here, the .05 done on a breath test, does not equate to the symptoms that w[ere] described by the officer. The court took that into consideration. But nevertheless, that would be the ruling of the court.”
The record contains substantial evidence which supports the juvenile court’s finding Jesus placed the children in a situation in which their persons or health may have been endangered. Officer McClaskey, the only witness to testify at trial, testified about the children’s circumstances after he was dispatched to the scene. It was within the province of the juvenile court to evaluate Officer McClaskey’s testimony and determine the weight it should be given. (See People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
Officer McClaskey testified that, on May 21, 2007, he found a truck parked on a street; Jesus was seated in the driver’s seat, holding a six-month-old infant; and Julia was seated in the front passenger seat, holding a two-year-old child. Officer McClaskey saw a 40-ounce bottle of beer on the floorboard of the truck, and a smashed 40-ounce bottle of beer on the ground outside the passenger side of the truck. Jesus told Officer McClaskey he and Julia had been drinking in the truck “for about an hour,” during which time they consumed one and one-half bottles of beer “while they were holding and watching the kids in the truck with them.”
When asked about Jesus’s demeanor, Officer McClaskey testified, “his clothing was disheveled, and I noticed his eyes were bloodshot, and he seemed—his face was a little red and sweaty, and I smelled a strong odor of alcoholic beverages coming from him.” Officer McClaskey testified, “[Julia’s] eyes were bloodshot, and her clothing was disheveled, and she also smelled strongly of alcoholic beverages.” He further testified that “[Julia’s] speech was slightly slurred, and she tended to mumble as she spoke.” The prosecutor asked Officer McClaskey, “[a]nd these symptoms that you observed on [Jesus] and [Julia] who was in the passenger seat, are those symptoms consistent with intoxication, based on your experience as a police officer?” Officer McClaskey answered, “[y]es.” He testified Jesus was given a breath test which showed he had a blood alcohol concentration of .05 percent. When asked whether Jesus was “[s]o drunk that he couldn’t take care of himself or others,” Officer McClaskey replied, “[c]orrect.”
In People v. Little (2004) 115 Cal.App.4th 766, the appellate court concluded substantial evidence supported the defendant’s conviction for misdemeanor child endangerment under Penal Code section 273a, subdivision (b). In that case, police officers conducted a search of a filthy residence and found drugs and drug parapheranalia. (People v. Little, supra, 115 Cal.App.4th at p. 770.) In the master bedroom, a police officer found an infant “lying unsecured in the middle of a bed, which was around three feet high.” (Ibid.) The officer observed the bed did not have a railing or restraints that would prevent the infant from crawling or rolling off the edge. (Ibid.)
The defendant argued there was no basis for finding the infant’s person or health may have been endangered. (People v. Little, supra, 115 Cal.App.4th at p. 771.) The appellate court disagreed, stating: “Evidence of the child’s age range reasonably supports an inference that she was old enough to be able to crawl or at least roll over. This inference, her unsecured location on a bed without restraints or railings, and the height of the bed reasonably supported a finding that the child was left in a situation where she may have been injured by falling off the bed. Indeed, [the officer] testified that he feared the child might roll off the bed. Moreover, evidence concerning conditions inside the residence—the stench from rotten food and feces, piles of garbage, loose animals, and widespread vermin—reasonably supports a finding that the residence in general and master bedroom in particular were so unsanitary as to pose a potential danger to health. [Citations.] Thus, taken together, evidence of the child’s circumstances on the bed and the deplorable condition of her surroundings constitute ample evidence that defendant willfully engaged in conduct that placed his child’s person and health in danger.” (Id. at pp. 771-772.)
Here, the evidence shows Jesus, with two very young children in his custody and care, sat in a parked truck on a public street for about an hour, during which time he consumed so much alcohol Officer McClaskey found him disheveled, emitting a strong odor of alcohol, and unable to take care of himself or others. On this record, the juvenile court’s finding the two children were “placed in a situation where [their] person[s] or health may [have] be[en] endangered” within the meaning of Penal Code section 273a, subdivision (b) is supported by substantial evidence.
Jesus argues, “[t]he children were not injured, did not appear in distress, and were not being abused.” Penal Code section 273a, subdivision (b) does not require that a defendant’s conduct result in actual injury, distress, or physical or emotional abuse. As discussed ante, misdemeanor child endangerment only requires a caretaker or custodian place a child in a situation in which the child’s person or health may be endangered. (Pen. Code, § 273a, subd. (b).) Indeed, injury is not even an element of felony child endangerment under Penal Code section 273a, subdivision (a). (People v. Wilson (2006) 138 Cal.App.4th 1197, 1205 [“Actual physical injury is not an element of felony child endangerment”].)
Jesus contends he “registered a blood alcohol level which would have permitted an adult to drive and not violate the law.” But this case did not involve driving under the influence, nor did it involve an adult. As discussed ante, substantial evidence shows Jesus’s consumption of alcohol rendered him incapable of caring for himself or the children. In light of the children’s very young ages, the public setting, Jesus’s drinking, and Officer McClaskey’s testimony regarding Jesus’s appearance, it was reasonable for the juvenile court to find Jesus placed the children in a situation in which their persons or health may have been endangered.
In the reply brief, Jesus argues Penal Code “section 273a is not violated unless there is ‘a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.’ . . . What was the substantial harm and risk of injury or death from sitting in a parked car with two people who had had a beer?” But Jesus was convicted of misdemeanor child endangerment under section 273a, subdivision (b), which expressly applies to conduct “under circumstances or conditions other than those likely to produce great bodily harm or death . . . .” (Pen. Code, § 273a, subd. (b), italics added.) Consequently, the prosecution was not required to show, nor was the juvenile court required to find, evidence of a substantial risk of great bodily harm or death in this case. In contrast, the crime of felony child endangerment under section 273a, subdivision (a) applies to conduct “under circumstances or conditions likely to produce great bodily harm or death.” (Pen. Code, § 273a, subd. (a).) Section 273a, subdivision (a) does not apply in this case.
We find no error.
Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.