Opinion
A156359 A156455
06-18-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHARD KILLINGSWORTH, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. JESSICA KOUGH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR181516) (Napa County Super. Ct. No. CR179059, CR179060)
A jury convicted Richard Killingsworth (Killingsworth) and Jessica Kough (Kough) of misdemeanor child endangerment. (Pen. Code, § 273a, subd. (b).) Killingsworth was also convicted of several additional counts, including possession of a controlled substance while armed with a firearm. (Health & Saf. Code, § 11370.1 subd. (a).)
All further references are to the Penal Code unless stated otherwise.
Both appeal, contending there was insufficient evidence to support their convictions. Killingsworth also claims the trial court erred in denying his motion to unseal, quash and traverse the search warrant that led to his arrest, while Kough claims she received ineffective assistance of counsel.
We reverse Killingsworth's misdemeanor conviction for child endangerment, but otherwise affirm both judgments.
BACKGROUND
On February 4, 2016, Napa Police Department officers executed a warrant to search Killingsworth's person, apartment, and vehicles for evidence of the possession and sale of controlled substances. Killingsworth lived with Kough and her thirteen-year-old son, and the son was alone at the apartment when the officers arrived to execute the warrant.
In Kough's and Killingsworth's shared bedroom, officers found an unloaded, sawed-off .22-caliber rifle in the bed between the mattress and box spring. Ammunition was spread throughout the room, including a high capacity magazine containing 21 rounds of .22 caliber ammunition in the dresser drawer, shotgun shells in the closet, multiple boxes of rounds under a table, and 525 rounds in an unlocked safe on the floor. Both Killingsworth and Kough claimed possession of the gun.
In the top drawer of a nightstand, officers found two smoking pipes with methamphetamine, a box containing approximately 0.4 grams of methamphetamine, and prescription pill bottles bearing Killingsworth's name. There was a methamphetamine water pipe on a shelving unit, as well as 43 grams of marijuana in the corner of the room.
Killingsworth and Kough drove into the parking lot of their apartment complex while officers were conducting the search. Officers had Killingsworth exit the vehicle and he was searched pursuant to the search warrant. Killingsworth had a baggie containing 1.5 grams of methamphetamine in his pants pocket, and a .22 caliber handgun loaded with ten rounds in the middle of the trunk of the car.
While being interviewed during the search, Kough denied knowledge of any methamphetamine in her house. She used methamphetamine six hours before the search of her apartment and had been using methamphetamine for 10 years with a three-year period of sobriety during that time.
Based on these facts, an information was filed charging Killingsworth with several counts, including possession of a controlled substance with a firearm. (Health & Saf. Code, § 11370.1, subd. (a).) Both Kough and Killingsworth were charged with misdemeanor child endangerment. (§ 273a, subd. (b).) The case proceeded to a single trial where a jury found both defendants guilty on these counts.
In case number 179059, Killingsworth was also found guilty of carrying a loaded firearm with a prior felony (§ 25850, subd. (c)(1)), two counts of possession of a firearm by a felon (§ 29900, subd. (a)), and three counts of possession of ammunition by a prohibited person (§ 30305, subd. (a)). The jury found the special allegation that Killingsworth had a prior conviction for a serious or violent felony to be true. (§§ 1170.12, subs. (a)-(d), 667, subds. (b)-(i)). In case number 181516, Killingsworth was convicted of carrying a loaded firearm with a prior felony conviction (§ 25850, subd. (c)(1)), and the special allegations that the offense was committed while Killingsworth was out on bail (§ 12022.1) and that he had a prior conviction for a violent or serious felony (§ 1170.12, subds. (a)-(d)) were true.
On January 22, 2019, the trial court suspended imposition of sentence and placed Kough on probation for four years. As relevant here, the court sentenced Killingsworth to six years in prison. This appeal followed.
DISCUSSION
Both Killingsworth and Kough ask us to review the denial of motions to unseal and suppress evidence obtained pursuant to the February 2016 search warrant.
I. Killingsworth's Motion to Unseal the Search Warrant Affidavit
The February 4, 2016 search warrant affidavit alleging Killingsworth was selling methamphetamine was partially based on information from confidential informants contained in a sealed affidavit. In July 2016, Killingsworth moved pursuant to section 1538.5 to unseal the affidavit and to traverse and quash the search warrant for lack of probable cause. He claimed the search warrant affidavit contained nothing but conclusory statements, uncorroborated hearsay, and stale information from unreliable sources. After conducting an in camera review of the sealed affidavit, the trial judge denied Killingsworth's motion, ruling there were sufficient grounds to keep the entire affidavit sealed. The court further found no reasonable probability the defense would prevail on the motion to quash.
Killingsworth now asks us to independently review the sealed record of the in camera proceeding to confirm the propriety of the trial court's rulings. The Attorney General does not oppose the request.
Courts are not required to disclose "the identity of an informant who has supplied probable cause for the issuance of a search warrant . . . where such disclosure is sought merely to aid in attacking probable cause." (People v. Hobbs (1994) 7 Cal.4th 948, 959, italics omitted (Hobbs).) Where a defendant moves to traverse, or quash a warrant supported by a sealed affidavit, the defendant may file a Hobbs motion requesting in camera review of the affidavit to determine whether there are sufficient grounds, such as maintaining the confidentiality of an informant's identity, to keep the entire affidavit or any portion of it sealed. (Hobbs, at p. 972.)
If deemed properly sealed, the court then—on a motion to quash—assesses "whether, under the 'totality of the circumstances' presented in the search warrant affidavit and the oral testimony . . . there was 'a fair probability' that contraband or evidence of a crime would be found in the place searched pursuant to the warrant." (Id. at p. 975.) On a motion to traverse, the court determines whether the defendant's general allegations of misrepresentations or omissions are supported by the search warrant affidavit or testimony offered at the in camera hearing. (Id. at p. 974-975.)
We have reviewed the sealed trial court record and there was no error. (See People v. Martinez (2005) 132 Cal.App.4th 233, 241-242 [appellate court conducts an independent review of the sealed materials].) Sufficient grounds support maintaining the confidentiality of the informants' identities. Releasing any information would tend to reveal those identities. There were no material misrepresentations or omissions in the sealed affidavit. We agree with the trial court and conclude that under the totality of the circumstances, the warrant was supported by probable cause.
II. Ineffective Assistance of Counsel
Kough claims her first counsel was ineffective for his failure to file a Hobbs motion. We reject this claim because Kough does not demonstrate how she was prejudiced by the alleged error.
A criminal defendant has a right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-688; People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim that counsel was ineffective, a defendant must demonstrate: 1) counsel's performance "fell below an objective standard of reasonableness under prevailing professional norms"; and 2) this deficient performance resulted in prejudice. (People v. Ledesma (2006) 39 Cal.4th 641, 746 [quoting Strickland, at p. 688].) If a defendant fails "to show that the challenged actions of counsel were prejudicial . . . [we] may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Kipp (1998) 18 Cal.4th 349, 366.)
Kough's first counsel was served, but did not join, Killingsworth's unsuccessful July 2016 motion to unseal, traverse, and quash the search warrant. Later in the pretrial proceedings, Kough's counsel moved under section 1538.5 to suppress the evidence obtained from the search of Kough's bed and bedroom, claiming the search was warrantless. When the motion was heard, Kough's counsel orally asserted that the warrant should be quashed because the informants' tips lacked reliability or credibility. The trial court denied Kough's motion and rejected counsel's oral assertion, indicating the point should have been raised in a motion to unseal and traverse on proper notice.
According to Kough, her counsel's failure to file a Hobbs motion deprived her of the opportunity to discover inappropriately sealed information, and stymied her ability to demonstrate the information was stale, incorrect, and unreliable. But Kough does not demonstrate any reasonable possibility that the court would have granted the motion, even if it was properly filed and litigated. (See Strickland, supra, 466 U.S. at p. 688.) The same trial court rejected Killingsworth's 2016 motion to unseal, suppress, traverse, and quash the same warrant, based on the same arguments that Kough asserts and claims she was precluded from litigating.
Kough's counsel was not ineffective simply because she did not file an independent suppression motion when the same arguments and claims in her codefendant's motion were rejected. (People v. Mattson (1990) 50 Cal.3d 826, 876 [ineffective assistance of counsel claims based on the failure to make a motion requires demonstrating "the motion or objection would have been meritorious"); People v. Thompson (2010) 49 Cal.4th 79, 122 ["Counsel is not ineffective for failing to make frivolous or futile motions"].)
Because Kough fails to demonstrate prejudice, her claim of ineffective assistance of counsel fails.
III. Jurisdiction of Second Suppression Motion
Kough next argues the trial court erred by rejecting her second section 1538.5 motion to unseal, traverse, and quash filed by new counsel more than one year after the first motion due to a lack of jurisdiction. She claims that since ineffective assistance of counsel tainted her first suppression motion, she was deprived of a full and fair opportunity to litigate that motion on the merits. Again, the trial court's ruling caused her no prejudice.
If a pretrial suppression motion has been fully litigated, a court generally lacks jurisdiction to entertain a second one. (People v. Nelson (1981) 126 Cal.App.3d 978, 981 (Nelson).) Kough is correct that courts have exercised jurisdiction over a second suppression motion "if the ineffectiveness of counsel infected the first suppression hearing, [and] the defendant cannot be said to have had opportunity for 'full determination' " on the merits. (People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 200.) But those cases do not help her.
In People v. Camilleri (1990) 220 Cal.App.3d 1199, 1202 (Camilleri), the defendant pled guilty to sale and possession for sale of cocaine after two motions to suppress were denied. Camilleri's first counsel moved to suppress evidence, claiming a lack of consent to search and failure to comply with knock and notice provisions in the Penal Code. (Camilleri, at p. 1202.) After that motion was denied, his new counsel brought a second suppression motion, claiming illegal warrantless entry, and included a declaration from the original defense counsel that he failed to make this argument because of neglect. (Id. at p. 1202-1203.) The trial court denied the second motion on the merits. (Id. at p. 1203.) The appellate court avoided assessing whether the trial court had jurisdiction to entertain the second suppression motion and instead affirmed the ruling and judgment because exigent circumstances justified the search, and defense counsel's admitted neglect did not prejudice Camilleri. (Id. at p. 1211.)
Like the court in Camilleri, we similarly do not need to reach the issue of whether the trial court should have exercised jurisdiction over Kough's second suppression motion. The trial court considered whether her prior counsel ineffectively argued her first suppression motion. Citing Nelson, supra, 126 Cal.App.3d at p. 981, it rejected Kough's second motion after finding the first motion had been fully litigated. But more importantly, the court recognized Kough was not prejudiced. As the court stated, "not only was there a motion filed on behalf of Ms. Kough, but Mr. Killingsworth litigated the [section] 1538 [motion] fully, in the Court's view, on this—on these very issues." Thus, "[g]iven the lack of merit of this theory for suppressing evidence, it is not reasonably probable that the outcome would have been altered had the theory been asserted in the first suppression motion." (See Camilleri, supra, 220 Cal.App.3d at p. 1211.) There was no ineffective assistance for Kough's first motion to suppress, and the court properly denied her second.
There is no merit to Kough's final argument that a prior judge made an implicit finding of potential ineffective assistance of her original defense counsel that should control our disposition of the issue. The prior judge commented that she would conduct an in camera review to foreclose any possible issue that could arise from counsel's failure to make a Hobbs motion. That judge ultimately recused herself from considering Kough's second suppression motion. Even though, before her recusal, the judge ruminated about an issue arising from possible ineffective assistance, she did not issue an order. (Ketscher v. Superior Court (1970) 9 Cal.App.3d 601, 604 [order is a directive by a court or judge that is in writing and filed with the clerk or entered in the court's minutes].)
IV. Sufficiency of the Evidence
Both Killingsworth and Kough maintain there was insufficient evidence to sustain their convictions. When assessing a claim of insufficiency of the evidence, we must "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." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) After conducting that review here, we reverse Killingsworth's conviction for child endangerment. We otherwise affirm his convictions and affirm Kough's conviction for child endangerment.
A. Possession of an Unlawful Substance While Armed
Killingsworth argues there was insufficient evidence he was armed as required for a conviction under Health and Safety Code section 11370.1, subdivision (a). He relies entirely on the fact his loaded .22 caliber handgun was in the trunk of the car while he was sitting in the front passenger seat. His reliance is misplaced.
Health and Safety Code section 11370.1, subdivision (a) says that anyone in possession of methamphetamine, in any amount "while armed with a loaded, operable firearm is guilty of a felony." The phrase "armed with" means having a firearm "available for immediate offensive or defensive use." (Ibid.) "This definition is consistent with the well-established construction of 'armed' given to firearm enhancements such as section 12022." (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 989 [cases interpreting section 12022's language "personally armed with a firearm in the commission" of a felony aids interpreting the definition of "armed" under the Health and Safety Code section 11370.1].)
As Killingsworth acknowledges, " ' "[i]t is the availability—the ready access—of the weapon that constitutes arming." ' " (People v. Bland (1995) 10 Cal.4th 991, 997 (Bland).) There is no requirement that a defendant be physically carrying a firearm to be considered "armed." (Martinez, supra, 225 Cal.App.4th at p. 990.) Nor is a person required to have unhindered access to a weapon. For example, the court in Bland concluded the defendant was "armed" even though cocaine and the defendant's firearm were both located in his bedroom and the defendant was outside of his house. (Bland, supra, 10 Cal.4th 991 at p. 995.) In Martinez, the court affirmed the defendant's conviction under Health and Safety Code section 11370.1, subdivision (a) where shotguns were found in the bedroom and a closet and the defendant was in the house's kitchen. (Martinez, supra, 225 Cal.App.4th at p. 985.)
Here, although Killingsworth would have been required to take some steps to retrieve the gun, its placement in the middle of the trunk, without anything impeding access to it offered Killingsworth quick access if he needed it. If a firearm is found "in close proximity to the illegal drugs in a place frequented by the defendant," a jury may reasonably infer the firearm had been available for a defendant's immediate use. (Bland, supra, 10 Cal.4th at pp. 1002-1003.) That proximity exists here. There is sufficient evidence to support Killingsworth's conviction for Health and Safety Code section 11370.1, subdivision (a).
B. Child Endangerment
Both Kough and Killingsworth also challenge the sufficiency of the evidence for their misdemeanor convictions for child endangerment. Under section 273a, "[a]ny person . . . 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." (§ 273a, subd. (b).)
" 'Although . . . section 273a . . . does use the word "willfully," the crime described is one of criminal negligence and not of malice or specific intent. [Citations.] [¶] A finding of criminal negligence is made by the application of the objective test of whether a reasonable person in the defendant's position would have been aware of the risk involved. . . . [Citation.] Criminal negligence may be found even when a defendant acts with a sincere good faith belief that his or her actions pose no risk.' " (People v. Hansen (1997) 59 Cal.App.4th 473, 478 (Hansen).)
We address the claims of each defendant in turn.
1. Kough
Kough claims there was a lack of evidence that she exposed her 13-year-old son to danger. She makes this argument because the evidence showed only the presence of illegal drugs and a gun in her room behind a closed, but unlocked door. We agree there is no suggestion that Kough intended to directly injure her son. Rather, the question is whether she permitted him to be placed in a potentially dangerous situation such that "a reasonable person in his or her position would have been aware of the risk." (People v. Burton (2006) 143 Cal.App.4th 447, 454 (Burton) [identifying the standard for criminal negligence for section 273a].) Sufficient facts exist here.
" ' "The number and kind of situations where a child's life or health may be imperiled are infinite." ' " (Hansen, supra, 59 Cal.App.4th at p. 479.) But caselaw expressly recognizes the danger of children living in homes with drugs and firearms. (See, e.g., People v. Perez (2008) 164 Cal.App.4th 1462, 1473 (Perez) [upholding child endangerment conviction where heroin was found in defendant's bedroom in plain view and within an unlocked door within four-year-old child's reach]; Hansen, at pp. 480-481 ["Storing loaded firearms in a home occupied by children without denying access to the weapons creates a potential peril under [section 273a]"]; People v. Odom (1991) 226 Cal.App.3d 1028, 1034 (Odom) [presence of loaded and unloaded guns, chemical components for manufacturing methamphetamine sufficient to support felony conviction of child endangerment of defendant's two children, aged nine and seven].)
Here, the prosecution presented evidence that the drugs, gun, and ammunition in Kough's room were easily accessible to her teenage son. There was further testimony that teenagers are curious, and he could have easily found, loaded, and discharged the gun, potentially injuring himself. Kough protests the lack of any testimony or other evidence regarding restrictions she may have imposed within her house, her son's character, age, or maturity, or whether he was actually tempted to access the items in her bedroom. No matter. Even without this information, the jury could reasonably conclude based on everyday, common experience and common sense that leaving a gun, ammunition, and drugs in an accessible location placed her son in danger. (See Burton, supra, 143 Cal.App.4th at p. 454.)
Although these facts may not be the most egregious (see e.g., Odom, supra, 226 Cal.App.3d at p. 1034), viewing the evidence in the light most favorable to the verdict, there is sufficient evidence supporting Kough's conviction. (See Rodriguez, supra, 20 Cal.4th at p. 11.)
2. Killingsworth
Killingsworth, on the other hand, challenges the jury's implicit finding of the first element for a finding of child endangerment, that he had the "care and custody" of Kough's son, because he did not have substantial caretaking responsibilities. (See § 273a.) Here, Killingsworth has a point.
"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.) Although the statute covers parents, guardians and babysitters, it also covers individuals who have nevertheless been "entrusted with the care of a child, even for a relatively short period of time." (Perez, supra,164 Cal.App.4th at p. 1469.) The relevant inquiry is "whether the individual in question can be found to have undertaken the attendant responsibilities at all." (Id. at p. 1476; see People v. Malfavon (2002) 102 Cal.App.4th 727, 735-737 [defendant babysat child while mother was away]; People v. Toney (1999) 76 Cal.App.4th 618, 621-622 (Toney) [defendant married child's mother, gave child a room of his own and allowed him to use area of living room for play].)
There was no evidence in this case concerning Killingsworth's relationship with Kough's son. Killingsworth was Kough's boyfriend and shared a bedroom with her. But unlike the defendant in Toney, there was no indication that Killingsworth provided anything to Kough's son, including a place to live. (Toney, supra 76 Cal.App.4th at pp. 621-622.) There must be some evidence, however minor, of the adult's willingness or assumption of caretaker duties. (Id. at p. 621-622.) As the Attorney General acknowledges, "there was no evidence Killingsworth played an overt caretaking role vis-à-vis" Kough's son. Neither are there facts in the record from which such a role should be implied. Killingsworth's conviction for child endangerment is reversed.
In light of our resolution of Killingsworth's challenges to his convictions for lack of substantial evidence, it is unnecessary to address his claim that he was convicted without due process.
DISPOSITION
Killingsworth's conviction for misdemeanor child endangerment is reversed. In all other respects the conviction of Killingsworth and Kough are affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.