Opinion
A119307 A121844
2-19-2009
THE PEOPLE, Plaintiff and Respondent, v. RODOLFO FREDERICO DE SOUZA, Defendant and Appellant. In re RODOLFO FREDERICO DE SOUZA, on Habeas Corpus.
Not to be Published in Official Reports
I. INTRODUCTION
After a jury trial, appellant Rodolfo Frederico De Souza was found guilty of child endangerment, a felony (Pen. Code, § 273a, subd. (a)), driving under the influence of a controlled substance, a misdemeanor (Veh. Code, § 23152, subd. (a)) and possessing an open container of alcohol in a vehicle (Veh. Code, § 23223). Appellant contends that the trial court prejudicially erred in answering a question posed by the jury about the instructions defining the crime of felony child endangerment, which punishes a caretakers willful neglect or abuse of a child under circumstances "likely to produce great bodily harm or death." (Pen. Code, § 273a, subd. (a).) Appellant claims the court erred by failing to provide the jury with the technical legal definition of the term "likely." In a petition for writ for habeas corpus filed while his appeal was pending, appellant claims his trial counsel rendered ineffective assistance by failing to request proper instructions as to the legal definition of the term "likely." Appellant also claims his conviction for felony child endangerment must be reversed because the evidence required the trial court to instruct the jury, sua sponte, on the lesser included offense of misdemeanor child endangerment. (Pen. Code, § 273a, subd. (b).)
Penal Code 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." (Italics added.)
Because we find no reversible error by the trial court, and because we conclude appellant has not established his ineffective assistance of counsel claim, we affirm the judgment and deny the habeas corpus petition.
II. FACTS AND PROCEDURAL HISTORY
On November 24, 2006, appellant was stopped by Petaluma Police Officer Paul Accornero for speeding. Officer Accornero noticed appellants truck accelerate rapidly as it made a right-hand turn and move from the lane it was in to the next lane. Officer Accornero "paced" the vehicle to get an approximation of its speed. He estimated that it was traveling at 45 miles per hour, and explained that the posted speed limit was 35 miles per hour.
Officer Accornero approached the drivers side of the vehicle. Officer Accornero detected the odor of alcohol on appellants breath; and appellants eyes were red, watery, and bloodshot. Appellants speech was thick and slurred. Appellant said that he had consumed a couple of beers several hours earlier.
Officer Accornero noticed appellants seven-year-old son, N., sitting in the passenger side of the front seat of the vehicle. About two seconds after Officer Accornero began to speak with appellant, N. sat up, moved over, and said, "I wasnt wearing my seat belt." Officer Accornero asked N. where his seat belt was, and he pointed down, saying the seat belt was underneath his seat.
Officer Accornero had appellant get out and go to the sidewalk so that he could administer a series of field sobriety tests. Appellant appeared unsteady on his feet, and had to hold on to the vehicle to maintain his balance. In the first test, appellant recited the alphabet correctly, although his speech was slightly slurred. However, appellant was not able to perform the finger-to-nose test, the manual dexterity test, the modified balance test, or the horizontal gaze nystagmus test. After being administered a portable breath test, appellant was arrested.
Officer Accornero searched appellants vehicle. He found an open pint bottle of tequila on the front seat that was about half full, and another tequila bottle next to the front seat that had a little bit of alcohol left in the bottom. Officer Accornero found an unopened can of Budweiser beer in the front seat floorboard area and three or four open cans of Budweiser that were still cold to the touch.
Officer Accornero conducted a breath test on appellant about 5:50 p.m., approximately 45 to 50 minutes after the initial stop. Appellant blew into the machine, which registered a blood alcohol content of .16 percent. The second test was administered at 5:54 p.m., and again showed a blood alcohol level of .16 percent.
California Department of Justice Senior Criminalist John Yount testified that, in his opinion, "most people in the population are impaired with respect to the task of driving at a blood alcohol concentration of .05 percent." He believed that a person with a blood alcohol level of .16 percent would "definitely" be impaired with respect to the task of driving an automobile. In order for a male of 150 pounds (appellants weight) to register . 16 percent, it would require the consumption of eight ounces of 80-proof liquor, or about six and a half cans of beer.
Following a jury trial, appellant was acquitted of resisting arrest (Pen. Code, § 69). The jury also found "not true" an allegation that appellant had a blood alcohol level of .15 percent or more. (Veh. Code, § 23578.) Appellant was convicted of felony child endangerment (Pen. Code, § 273a, subd. (a)), driving under the influence of a controlled substance, a misdemeanor (Veh. Code, § 23152, subd. (a)) and possessing an open container of alcohol in a vehicle (Veh. Code, § 23223).
Given the jurys verdict, all facts have been omitted with regard to this charge.
Noting appellants extensive criminal history and that "the act in question in this case involved serious danger to society as well as the minor son," the court sentenced appellant to prison for four years for his conviction for child endangerment (Pen. Code, § 273a, subd. (a)). Appellant filed a timely notice of appeal.
III. DISCUSSION
A. Instructional Error
Appellant claims that the trial court failed to instruct the jury properly on the legal principles relevant to the proof of the crime of felony child endangerment. Specifically, he claims the trial court erred in failing to give the jury a special instruction defining the word "likely" when the court was called upon to address the meaning of the word as used in the phrase "likely to produce great bodily harm or death." (Pen. Code, § 273a, subd. (a).)
As our Supreme Court has noted in reviewing a former version of the child endangerment statute, "a violation of its terms can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect. Two threshold considerations, however, govern all types of conduct prohibited by this law: first, the conduct must be willful; second, it must be committed `under circumstances or conditions likely to produce great bodily harm or death. (§ 273a, subd. (1).) Absent either of these elements, there can be no violation of the statute." (People v. Smith (1984) 35 Cal.3d 798, 806, italics added.)
The jury was instructed, in accordance with these principles, pursuant to CALCRIM No. 821, that the prosecution had the burden of proving beyond a reasonable doubt that "(1) the defendant, while having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the childs person or health was endangered; (2) the defendant caused or permitted the child to be endangered under circumstances or conditions likely to produce great bodily harm or death; and (3) the defendant was criminally negligent when he caused or permitted the child to be endangered." (Italics added.)
The instructions given to the jury went on to define criminal negligence as involving "more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when (1) he or she acts in a reckless way that creates a high risk of death or great bodily harm; and (2) 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 the way he or she acts is so different from the way 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."
During deliberations, the jury sent a question which asked, "In the request for jury instructions on page 22, line 13, we are having trouble with the definition of the word `likely in context with the whole sentence." With the agreement of both counsel, the court sent the following written response to the jury: "Some words or phrases that may be used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in the instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in the instructions are to be applied using their ordinary, everyday meanings." The word "likely" was not specifically defined in the instructions so, in effect, the jury was told to define it as it is commonly used.
It is well settled that a trial court has an obligation to give amplifying or clarifying instructions when the terms used in an instruction have a technical meaning peculiar to the law. (People v. Woodward (2004) 116 Cal.App.4th 821, 834 (Woodward); People v. Estrada (1995) 11 Cal.4th 568, 574-575 (Estrada); People v. Howard (1988) 44 Cal.3d 375, 408.) "A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning." (Estrada, supra, 11 Cal.4th at p. 574.) Accordingly, we must initially determine whether the term "likely," as used in defining the elements of child endangerment (Pen. Code, § 273a, subd. (a)), has a technical legal meaning different from its common meaning which would require the trial court to instruct on the definition even in the absence of a request. (Woodward, supra, 116 Cal.App.4th at p. 834.)
The court in People v. Wilson (2006) 138 Cal.App.4th 1197 (Wilson) undertook an extended analysis of the definition of the term "likely," as used in the felony child endangerment statute, which punishes a caretakers willful abuse or neglect of a child under "circumstances or conditions likely to produce great bodily harm or death." (Pen. Code, § 273a, subd. (a)), emphasis added.) In defining the term "likely" in this context, the Wilson court stated: "[G]iven the interest protected, i.e., the lives of highly vulnerable children, the definition of `likely in the context of section 273a is not that death or serious injury is probable or more likely than not." (Id. at p. 1204.) Instead, the court held that " `likely as used in section 273a means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death. We believe in the context of child endangerment this definition of the term `likely draws a fair balance between the broad protection the Legislature intended for vulnerable children and the level of seriousness required for a felony conviction." (Ibid.)
In other words, Wilson held that "likely" was not to be defined in accordance with common parlance as requiring "that the chance . . . be better than even;" instead it meant that the child be exposed to "a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death." (Wilson, supra, 138 Cal.App.4th at p. 1204.) Because the Wilson decision gave the term "likely," as used in the context of a Penal Code section 273a, subd. (a) violation, a technical meaning peculiar to the law, we agree with appellant that the trial court had an obligation to define the term in response to the jurys inquiry.
Our conclusion is supported by the latest edition of CALCRIM, published after appellants trial, which contains use notes to CALCRIM No. 821. (Judicial Council of Cal. Criminal Jury Instructions (2008).) Under "Authority," it notes that "likely" is a defined term and refers to Wilson, supra, 138 Cal.App.4th at p. 1204 for the definition. (Id. at p. 580.)
The parties seriously dispute the consequences of this instructional error. Appellant claims that "[t]he courts misinstruction to the jury in response to their question regarding the correct meaning of the term `likely went to the heart of the defense, and resulted in appellants being convicted on a showing of less than a reasonable doubt of an element of the offense." Respondent urges that the error was harmless under any standard. (People v. Hoyos (2007) 41 Cal.4th 872, 915.) We agree with respondent.
Because appellants trial counsel agreed that the court could respond to the jurys question in the manner that it did, we note that appellants claim of instructional error is not preserved on appeal. (People v. Bohana (2000) 84 Cal.App.4th 360, 373.) However, appellant has filed a petition for habeas corpus claiming that his trial counsels failure to object to the courts instruction to the jury, or to request proper instruction as to the legal definition of the term "likely," violated appellants right to effective assistance of counsel. In this case, the habeas corpus petition largely reiterates the arguments made on appeal. However, it contains trial counsels declaration, stating that if he had "been aware of the . . . specific legal definition at trial, I would have objected to the courts instruction, and would have requested that the jury be instructed with the legal definition, . . ." Counsel further states that his "agreement to the instruction given was based on my mistake and inadvertence and was not based in any tactical decision or rationale."
In People v. Sedeno (1974) 10 Cal.3d 703, 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 jurys consideration since it has been resolved in another context . . . ." (Id. at p. 721.)
In our case, the omitted instruction would have informed the jury that the term "likely," as defined by Wilson, means a defendants willful actions have exposed the child to "a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death." (Wilson, supra, 138 Cal.App.4th at p. 1204.) However, the jury was instructed that in order to convict appellant of felony 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 harm" which meant that he acted with "disregard for human life or indifference . . . to the consequences of that act."
Thus, by convicting appellant of felony child endangerment, the jury necessarily found appellants actions "create[d] a high risk of death or great bodily harm." We believe this finding is at least the functional equivalent of a finding that appellant put his son in "substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death," if not higher. (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 appellant since the factual question posed by the omitted definition was resolved adversely to appellant in other properly given instructions.
We also point out that in all likelihood, appellant actually benefitted from the instruction that he claims was erroneously given. The trial court instructed the jury that it was to use the ordinary meaning of "likely" in determining whether the child was placed in circumstances "likely to produce great bodily harm or death." (Pen. Code, § 273a, subd. (a).) "[I]n ordinary usage and in many legal contexts `likely means `probable or . . . `more probable than not. " (People v. Savedra (1993) 15 Cal.App.4th 738, 744.) Accordingly, under the courts instruction, in order to secure a conviction for felony child endangerment, the prosecution had to show that it was "more probable than not" that death or serious injury could occur. (Ibid.) This is a much higher evidentiary threshold than the showing necessary to establish that the child has been placed in "substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death." (Wilson, supra, 138 Cal.App.4th at p. 1204.) Consequently, the instruction given by the trial court was actually favorable to appellants interests, and he has no reason to complain of an error in his favor. (See People v. Lee (1999) 20 Cal.4th 47, 57.)
We are therefore satisfied that the record establishes beyond a reasonable doubt that the courts 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.) Accordingly, appellant has failed to make a prima facie showing of prejudicial ineffective assistance of counsel, and no evidentiary hearing is warranted. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) We therefore deny the petition for writ of habeas corpus.
B. Lesser Included Offense
Appellant next argues his conviction for felony child endangerment must be reversed because the evidence required the trial court to instruct the jury, sua sponte, on the lesser included offense of misdemeanor child endangerment, and it is reasonably probable he would have been convicted of the lesser offense had the jury been so instructed. "An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense." (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Appellant made this identical argument in his motion for a new trial following the jurys verdict, but prior to sentencing. (Pen. Code, § 1181.) The trial court denied appellants motion, finding "I dont think that its reasonably probable that a lesser result would have occurred, or you would have requested the instruction."
Appellant was convicted of felony child endangerment, which encompasses acts committed "under circumstances or conditions likely to produce great bodily harm or death." (Pen. Code, § 273a, subd. (a).) The lesser included offense of misdemeanor child endangerment encompasses acts committed "under circumstances or conditions other than those likely to produce great bodily harm or death . . . ." (Pen. Code, § 273a, subd. (b), italics added.) It is undisputed that misdemeanor child endangerment is a lesser included offense of felony child endangerment. (People v. Sheffield (1985) 168 Cal.App.3d 158, 166, overruled on another ground in People v. Flood, supra, 18 Cal.4th at p. 490, fn. 12.)
"`"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense." (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).)
Appellant contends the trial court failed to instruct the jury sua sponte on the lesser included misdemeanor child-endangerment offense. He asserts that a misdemeanor instruction was warranted as the "evidence failed to establish that he had acted in a way that was `likely to result in great bodily harm or death." While appellant acknowledges that "it was uncontroverted that [he] was intoxicated," he emphasizes "there was no evidence that he was driving erratically or dangerously. He was not driving excessively fast, there was no traffic, it was daytime, it was dry, and the four lane roadway was clear." Appellant argues that, given these circumstances, a reasonable jury could have convicted him of the lesser charge of misdemeanor child endangerment if they had been so instructed.
We conclude that it was unnecessary for the trial court to have instructed on the lesser included misdemeanor child-endangerment offense. As already explained, the term "likely" in the context of Penal Code section 273a, subdivision (a) is defined as "a substantial danger, i.e., a serious and well-founded risk," not "more likely than not." (Wilson, supra, 138 Cal.App.4th at p. 1204.) The statute proscribes conduct that creates or allows the risk of great bodily injury when a child is placed in a situation where serious physical danger is reasonably foreseeable. (People v. Hansen (1997) 59 Cal.App.4th 473, 479.) The risk need not be life threatening (People v. Odom (1991) 226 Cal.App.3d 1028, 1033), and great bodily injury need not result (People v. Valdez (2002) 27 Cal.4th 778, 784).
Given this interpretation of the standard of conduct necessary to secure a conviction under the felony child endangerment statute, appellant undoubtedly created "a serious and well-founded risk" of great bodily injury or death by driving while highly intoxicated, speeding, and having an unrestrained child in his vehicle. (Wilson, supra, 138 Cal.App.4th at p. 1204.) If appellant had gotten into an accident, which was a real possibility given his degree of intoxication, his son could have been easily injured, given his size and the fact he was not properly secured in the vehicle. We therefore conclude "there is no evidence that the offense was less than that charged," and the trial did not err in failing to instruct sua sponte on the lesser included offense. (Breverman, supra, 19 Cal.4th at p. 154.)
IV. DISPOSITION
The judgment is affirmed. Appellants petition for a writ of habeas corpus is denied.
We concur:
Reardon, J.
Rivera, J.