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In Chaffin, a panel of the Fourth District questioned "whether Wilson should have relied so heavily on Ghilotti because the considerations pertinent to the SVPA... are not raised by section 273a."
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No. E046217.
May 14, 2009. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, the introduction paragraphs and parts 2.b. and 4. of this opinion are certified for publication.
Appeal from the Superior Court of Riverside County, No. RIF137419, Roger A. Luebs, Judge.
Phillip I. Bronson, 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, Robin Derman and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Introduction
All statutory references are to the Penal Code unless stated otherwise.
Defendant Michael Houston Chaffin was prosecuted for criminal conduct occurring in 2005 and 2007. A jury convicted defendant of four offenses: one count of domestic battery (§ 243, subd. (e)(1)); one count of child endangerment (§ 273a, subd. (a)); and two counts of vandalism (§ 594, subd. (b)(1)). The jury found defendant not guilty on count 5, brandishing a deadly weapon. The court sentenced defendant to 48 months of probation, including 180 days in county jail.
On appeal, defendant argues there was not sufficient evidence to support his conviction for child endangerment (count 3) and the court committed two kinds of instructional error (counts 1 3). We reject his contentions and affirm the judgment.
1. Facts
See footnote, ante, page 1348.
a. The contentions on appeal relate only to counts 1 and 3. Defendant was also convicted on count 4 and acquitted on count 5.
b. Counts 1, 2, and 3
Defendant and his girlfriend, S.S., were living together in her mother's house in Norco when their son, C.C., was born in March 2007. Later defendant moved to a house in Mira Loma. Although S.S. asserted she had custody of C.C., the baby stayed with defendant about five times.
On the evening of May 17, 2007, S.S. took C.C. to visit defendant in Mira Loma. Because he was not home yet, she waited inside the house with two of defendant's friends.
Before defendant arrived at 8:45 p.m., he called S.S. and demanded she move her car out of the driveway. S.S. put C.C. in his car seat and moved her car, allowing defendant to pull in while she parked behind him. Leaving C.C. in his car seat, she returned to the house to get her tote bag and purse.
Inside the house, defendant and S.S. argued about why she was leaving. Defendant called her names. He wanted her to bring her personal belongings from the Norco house and live with him.
Instead S.S. decided to leave. Defendant followed her out of the house and pushed her in the front yard. She slapped him. He punched her in the face. He ordered her to leave and threatened to knock her "F'ing teeth out." Then he punched her in the nose, knocking her against a fence, and causing her to suffer a bloody nose, swollen lip, and bruises. Defendant warned her, "[S]ee what happens when you don't do what I say."
As S.S. got in her car, defendant began throwing rocks, some as large as golf balls. She may have returned fire. A rock shattered her rear window and two rocks entered the car. Defendant continued to bang on the car windows and throw rocks at the car as S.S. backed out of the driveway.
When S.S. stopped the car to check on C.C., she found glass shards in his hair and car seat. Defendant was pursuing them on foot so she drove to a convenience store and called the police and her mother.
When a deputy sheriff contacted S.S. at the convenience store, she was shaken, nervous, and appeared to have been crying. The deputy confirmed that she had a bloody nose and a swollen upper lip. Her car's rear window, side, and hood were damaged. C.C. had glass in his hair and his car seat. S.S.'s mother arrived and found glass slivers in C.C.'s hair and about 15 pieces of glass in the car seat. It cost $2,517.78 to repair the car.
On five other occasions, defendant had behaved physically violent toward S.S. He hit, kicked, pushed, and threw her and tried to run her over with his car. She occasionally tried to defend herself but she did not report defendant to the police because he made her feel she was at fault.
The deputy contacted defendant at his residence. Defendant was upset but not visibly injured. Defendant told the deputy S.S. had "headbutted" him and he may have hit her in the face while blocking her. Defendant denied throwing rocks but the deputy found similar rocks in the driveway.
Defendant testified that he intended to live in the Mira Loma house with S.S. and C.C. On May 17, defendant argued with S.S. about where she was planning to live. He told S.S. the Mira Loma house was her home or she could leave.
S.S. became upset, got in and out of her car, and continued to argue with defendant. Defendant repeated his comments about the Mira Loma home and called S.S.
a "cunt." She slapped him three times but he did not initiate physical contact. After she headbutted him, she landed on the ground.
Some passing horseback riders laughed at S.S. and she began throwing rocks at defendant, her car, the fence, and the street. He threw some rocks back but not at her.
When S.S. backed out of the driveway, defendant walked into the street and she tried to hit him with her car. He saw the broken rear window, which he blamed on her rock throwing. He was not hurt but S.S. did have a bloody nose.
c. Counts 4 and 5
Defendant had another son with a former girlfriend, K.M. In October 2005, defendant threatened K.M.'s boyfriend with a pocket knife. The incident escalated until defendant began kicking K.M.'s car, breaking off the rear-view mirror, and causing damage of $596.
2. Child Endangerment — Count 3 a. Care and Custody
See footnote, ante, page 1348.
Defendant contends there was not sufficient evidence that he had custody and control of C.C. to support his conviction for child endangerment on count 3. (§§ 273a, subd. (a).) ( People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Mincey (1992) 2 Cal.4th 408, 432.) Section 273a, subdivision (a), provides: "Any person who, under circumstances or conditions 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 is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years."
There is "no special meaning to the terms `care and custody' beyond the plain meaning of the terms themselves. The terms `care or custody' do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver." ( People v. Cochran (1998) 62 Cal.App.4th 826, 832; People v. Perez (2008) 164 Cal.App.4th 1462, 1468-1472.)
Here C.C. had lived with defendant, his natural father, from the time he was born until defendant moved to Mira Loma on May 17. When S.S. worked at night, defendant watched C.C. Defendant expected and intended for C.C and S.S. to live with him in his new residence. Defendant was legally obligated to support C.C. (Fam. Code, §§ 3900; In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555.) Based on these circumstances, defendant unquestionably occupied the role of caretaker to his son, C.C. Substantial evidence exists in this record to support the jury's determination that defendant was a person having custody and care of C.C.
b. "Likely"
As we have already identified in an unpublished portion of the opinion, the child endangerment statute refers to conduct by a person "under circumstances or conditions likely to produce great bodily harm or death." (§ 273a, subd. (a), italics added.) In People v. Wilson (2006) 138 Cal.App.4th 1197, 1204 [ 41 Cal.Rptr.3d 919], the court offered a definition of "likely": "`[L]ikely' as used in section 273a means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death." In challenging count 3, defendant argues the court erred by not instructing the jury sua sponte on the meaning of "likely" as defined by Wilson.In the absence of a request, the trial court has a general duty to instruct the jury sua sponte, including giving amplifying or clarifying instructions where the term used in an instruction has a "`particular and restricted meaning' [citation], or has a technical meaning peculiar to the law or an area of law [citation]." ( People v. Roberge (2003) 29 Cal.4th 979, 988 [ 129 Cal.Rptr.2d 861, 62 P.3d 97]; see People v. Abilez (2007) 41 Cal.4th 472, 517 [ 61 Cal.Rptr.3d 526, 161 P.3d 58].) A word has a technical, legal meaning when it has a definition that differs from its nonlegal meaning. ( People v. Estrada (1995) 11 Cal.4th 568, 574 [ 46 Cal.Rptr.2d 586, 904 P.2d 1197].) The trial court has no duty to give a clarifying instruction, absent a request, if the term in the instruction has a plain and unambiguous meaning that is "`commonly understood by those familiar with the English language'. . . ." ( People v. Kimbrel (1981) 120 Cal.App.3d 869, 872 [ 174 Cal.Rptr. 816].)
The Wilson court did not address whether a jury should have received additional instruction on the meaning of "likely." Instead, for purposes of evaluating a claim of insufficient evidence, the Wilson court determined that "likely" connotes a greater degree of certainty than "`more likely than not.'" ( People v. Wilson, supra, 138 Cal.App.4th at p. 1203.) Wilson based most of its analysis on People v. Superior Court ( Ghilotti) (2002) 27 Cal.4th 888 [ 119 Cal.Rptr.2d 1, 44 P.3d 949], which was "concerned with the meaning of the word `likely' in the context of the Sexually Violent Predators Act (SVPA) (Welf. Inst. Code, § 6600 et seq.)" in predicting whether a sex offender is "likely" to reoffend. ( Wilson, supra, at p. 1202.)
We question whether Wilson should have relied so heavily on Ghilotti because the considerations pertinent to the SVPA (Sexually Violent Predators Act) are not raised by section 273a. Both the SVPA and section 273a serve to protect others from abuse. The SVPA operates by providing procedures for the involuntary civil commitment of those sexually violent predators who, in fact, pose a high risk of reoffense in the future. Section 273a protects children from existing abusive situations by punishing offenders upon conviction of the offense.
Secondly, the word "likely" in section 273a does not serve as a measure for the difficult and imprecise task of predicting future human behavior. Rather, it is merely a measure for determining the risk of present injury created by external and tangible circumstances or conditions. ( People v. Sargent (1999) 19 Cal.4th 1206, 1223 [ 81 Cal.Rptr.2d 835, 970 P.2d 409].) Case law has long recognized that the phrase "likely to produce great bodily harm or death" in section 273a means "`the probability of serious injury is great.'" ( Sargent, supra, at p. 1223.)
In the present case, the jury was instructed based on CALCRIM No. 821 as follows:
"The defendant is charged in Count 3 with child abuse likely to produce great bodily injury in violation of Penal Code section 273a subdivision (a). To prove that the defendant is guilty of this crime the People must prove that: One, the defendant while having care or custody of a child willfully caused or permitted a child to be placed in a situation where the child's person or health might have been endangered.
"Two, the defendant caused or permitted the child to be endangered under circumstances or conditions likely to produce great bodily injury or death. And, three, the defendant was criminally negligent when he caused or permitted the child to be in danger.
"Someone commits an act willfully when he or she does it willingly or on purpose. . . . Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"Criminal negligence involves more than ordinary negligence, inattention, or mistake in judgment. A person acts with criminal negligence when, one, he or she acts in a reckless way that creates a high risk of death or great bodily injury. And, two, a reasonable person would have known that acting in that way would create such a risk.
"In other words, a person acts with criminal negligence when he or she — when the way he or she acts is so different than an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life, or indifference to the consequences of that act."
Defendant argues the jury should have been instructed more specifically about the meaning of "likely." But, even if we accepted his contention, we conclude the instruction, as given, was adequate. In People v. Sedeno (1974) 10 Cal.3d 703 [ 112 Cal.Rptr. 1, 518 P.2d 913], our Supreme Court held that the failure to give an instruction is harmless error if "the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context. . . ." ( Id. at p. 721.)
In our case, the jury could have been informed that the term "likely," as defined by Wilson, means a defendant's willful actions have exposed the child to "a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death." ( People v. Wilson, supra, 138 Cal.App.4th at p. 1204.) However, the jury was instructed that in order to convict defendant of child endangerment, he must have acted with criminal negligence, i.e., "in a reckless way that creates a high risk of death or great bodily injury," which also meant that he acted with "disregard for human life, or indifference to the consequences of that act."
Thus, by convicting defendant of child endangerment, the jury necessarily found appellant's actions "create[d] a high risk of death or great bodily harm." This finding is at least the functional equivalent of a finding that defendant put his son in "substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death," if not higher. ( People v. Wilson, supra, 138 Cal.App.4th at p. 1204.) Thus, the failure to give an instruction on the legal definition of "likely" could not have been prejudicial to defendant since the factual question posed by the omitted definition was resolved adversely to defendant under the other, properly given, instruction.
The record establishes beyond a reasonable doubt that the court's failure to give the jury a legal definition of the term "likely" could not have affected the verdict and was therefore harmless. (See People v. Flood (1998) 18 Cal.4th 470, 507 [ 76 Cal.Rptr.2d 180, 957 P.2d 869].)
3. Domestic Battery — Count 1 fn_
Defendant was convicted of domestic battery (§§ 243, subd. (e)), as a lesser offense of the charge of inflicting corporal injury on S.S. in violation of section 273.5, subdivision (a). Defendant rather improbably argues the court should have given an instruction sua sponte on the right of a land owner to use reasonable force to eject a trespasser. (CALCRIM No. 3475.)
We do not agree. A trial court has a duty to instruct on the law applicable to the facts of the case and a defendant has a right to an instruction that pinpoints the theory of the defense. ( People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) However, a trial court's duty to instruct on particular defenses arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of the defense. ( People v. Barton (1995) 12 Cal.4th 186, 195.) The trial court need not instruct on a defense when the evidence is minimal, that is, it is not substantial enough to merit consideration by the jury. ( People v. Roldan (2005) 35 Cal.4th 646, 716.)
The requested instruction, CALCRIM No. 3475, relates to the right of an owner or a lawful occupant of property to use reasonable force to eject a trespasser, an affirmative defense. ( People v. Corlett (1944) 67 Cal.App.2d 33, 51.) The defense of habitation applies where the defendant uses reasonable force to exclude someone he reasonably believes is trespassing in, or about to trespass in his home. ( People v. Curtis (1994) 30 Cal.App.4th 1337, 1360.) By its terms, the instruction refers to the need to use reasonable force to make the trespasser leave. (CALCRIM No. 3475.)
In this case, the instruction was not supported by substantial evidence. If the jury believed S.S.'s testimony, it could not have found defendant used reasonable force to eject S.S. Instead, he hit her, punched her, and threw rocks with enough force to break a car window — all as she was attempting to leave the property.
In contrast, according to defendant's version of events, he never considered S.S. as a trespasser, even though he portrayed her as acting irrationally and aggressively. Defendant testified that his argument with S.S. stemmed from her refusal to remain at the Mira Loma house and agree to live with him. After he deliberately provoked her by calling her a "cunt," she slapped him, headbutted him, and threw some rocks wildly. Other than tossing a few rocks back, he did not to try to use any force to eject her. An instruction based on CALCRIM No. 3475 would have been entirely inconsistent with defendant's theory of the case. ( People v. Elize (1999) 71 Cal.App.4th 605, 611-612, 615; People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055, 1059.)
The court gave a self-defense instruction (CALCRIM No. 3470), which was consistent with the defendant's theory of the case, but the court was not required to instruct the jury on the right to eject a trespasser in the absence of evidence to support such a defense. Finally, any error was harmless. A rational jury could not have found the instruction to be applicable based on either version of the events related to count 3. ( People v. Elize, supra, 71 Cal.App.4th at p. 616; People v. Shelmire, supra, 130 Cal.App.4th at p. 1059.)
4. Disposition
We affirm the judgment.McKinster, Acting P. J., and King, J., concurred.
On May 14, 2009, the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied August 12, 2009, S173089. Moreno, J., and Corrigan, J., did not participate therein.