Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura No. 2007025739, Allan L. Steele, Judge
Juliana R. Marchel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Stephanie C. Brenan, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Daniel Lopez Portilla appeals from the judgment entered after the trial court found him guilty of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), misdemeanor child endangerment (§ 273a, subd. (b)), and false imprisonment by violence (§§ 236, 237). Appellant admitted a prior prison term enhancement (§ 667.5, subd. (b)) and had prior convictions for domestic violence. The trial court sentenced him to five years eight months state prison. We affirm.
All statutory references are to the Penal Code.
The trial court imposed a four year midterm on count 1 for corporal injury to a cohabitant (§ 273.5, subd. (a)) and a consecutive eight month term on count 3 for false imprisonment by violence (one-third the midterm; § 236), plus one year on the prior prison term enhancement (§ 667.5, subd. (b)). On count 2 for misdemeanor child endangerment (§ 273a, subd. (b)), appellant received a concurrent six month sentence.
Facts
On July 5, 2007, Akeme N. and appellant lived in a rented room at 630 Oleander Drive, Oxnard. During the course of an argument with appellant, Akeme tried to leave and make a phone call. Appellant grabbed Akeme by the arms, called her a "bitch," and pushed her down. Holding her head, he punched Akeme twice on the left side of the face -- once on the cheek and once on the ear.
Akeme's 11 year old son, Bryan M., saw the first punch. Akeme told him to go call the police. He called 911 on a neighbor's phone. During the call, Akeme picked up the phone and told the operator that appellant "punched me hard in my ear and my jaw."
Appellant called them "snitches," warned them not to talk to the police, and left.
Oxnard Police Officer Andrew Pinkstaff arrived minutes later and spoke to Akeme who was crying and very scared. Officer Pinkstaff observed that the left side of her face was red. Akeme was afraid that appellant would return and said that he had hit her before. Bryan was also scared about appellant returning. He told the officer that appellant grabbed Akeme by the arms, push her down, and punched her one time.
At trial, Akeme claimed she could not remember what was said to the officer. Bryan recanted and denied telling the officer that appellant punched his mother.
Elizabeth Deal testified that appellant assaulted her in 1996 when they were dating. Appellant saw a photo of her ex-boyfriend, was jealous, and punched her in the eye with a clenched fist.
Child Endangerment
Appellant argues that the evidence does not support the conviction for misdemeanor child endangerment. (§ 273a, subd. (b).) As in every substantial evidence case, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trial court could reasonably deduce from the evidence in support of the judgment. (People v. Mincey (1992) 2 Cal.4th 408, 432.) The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. ( Ibid. )
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 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." Section 273a protects children from willful mistreatment whether directly or indirectly applied. (People v. Deskin (1992) 10 Cal.App.4th 1397, 1402.)
"The distinction between felony and misdemeanor child endangerment depends on whether the acts or omissions involved circumstances or conditions likely to produce great bodily injury or death to the child (if so, felony - § 273a, subd. (a); if not, misdemeanor – 273a, subd. (b))." (People v. Burton (2006) 143 Cal.App.4th 447, 454. fn. 4.)
In People v. Burton, supra, 143 Cal.App.4th 447, defendant was convicted of misdemeanor child endangerment when he slashed his wife's face in the presence of their child. The child did not see the attack but witnessed the bloody aftermath. The Court of Appeal held that "a parent may be convicted of misdemeanor child endangerment under section 273a, subdivision (b), by engaging in serious domestic violence against the other parent while aware that his or her child is at the scene." (Id., at p. 450.)
Appellant argues that Bryan did not suffer extreme emotional distress like the child in People v. Burton, supra, who required counseling. (Id., at p. 455.) The nature and extent of the mental suffering is for the trier of fact to decide.
The trial court listened to the tape of the 911 call and observed Bryan's demeanor at trial. The evidence supported the finding that appellant caused Bryan to suffer unjustifiable mental suffering and placed the child "in a situation where his or her person or health may be endangered. . . ." (§ 273a, subd. (b).)
Appellant argues that he acted impulsively and did not intend to harm Bryan. When the harm is indirectly inflicted, the requisite mental state is criminal negligence and is based on the objective reasonableness of defendant's conduct, not defendant's subjective intent. (People v. Valdez (2002) 27 Cal.4th 778, 785.) "A defendant may be deemed to be criminally negligent if a reasonable person in his [or her] position would have been aware of the risk. [Citation.]" (People v. Burton, supra, 143 Cal.App.4th at p. 454.)
Appellant assaulted Akeme in front of Bryan, was angry about the 911 call, and called Bryan a "snitch." Bryan feared for his safety and the safety of his mother. The emotional harm was manifest when Officer Pinkstaff responded to the 911 call and interviewed Bryan and his mother. As discussed in Burton, "children witnessing such violence suffer adverse effects similar to victims of direct physical and sexual abuse. [Citations.] Section 273a applies to suffering resulting from direct physical and sexual abuse. It follows that section 273a should also protect children from actions that indirectly cause similar suffering." (People v. Burton, supra, 143 Cal.App.4th at p. 456.)
Section 654Appellant next argues that the trial court erred in not staying the sentence on count 3 for false imprisonment with violence. Section 654 prohibits multiple punishment for a single act or omission, or an indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) Whether a course of criminal conduct is divisible depends on the intent and objective of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
In People v. Nubla (1999) 74 Cal.App.4th 719, defendant received separate sentences for assault with a deadly weapon and corporal injury to a spouse. Defendant pushed his wife down on a bed, shoved a handgun against the back of her head, turned her over and forced the handgun into her mouth, chipping a tooth. The Court of Appeal rejected the argument that the offenses were part of an indivisible course of conduct incident to a single objective. "[Defendant's] act of pushing his wife onto the bed and placing the gun against her head was not done as a means of pushing the gun into her mouth, did not facilitate that offense and was not incidental to that offense. The trial court was entitled to conclude that each act was separate for purposes of Penal Code section 654." (Id., at p. 731.)
The same analysis applies here. Appellant entertained separate criminal objectives when he grabbed Akeme, pushed her to the floor, and punched her. After Bryan left to call 911, appellant punched her a second time. Angry about the call, he called Akeme a "snitch" and "a rat."
Substantial evidence supports the finding that the second blow to the head had an independent criminal objective. Section 654 does not "reward" a defendant for committing extra acts of gratuitous violence after he has falsely imprisons a victim. (See e.g., People v. Nubla, supra, 74 Cal.App.4th at pp. 730-731.) "Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) No abuse of discretion occurred here.
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.