Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC061604
Kline, P.J.
Darrin C. Saunders appeals from convictions of manufacturing methamphetamine and misdemeanor child endangerment. He contends the latter conviction must be reversed because there was insufficient evidence he had “care and custody” of the child as required for the offense. Alternatively, he urges the sentence on this count must be stayed under Penal Code section 654. We affirm.
STATEMENT OF THE CASE
Appellant was charged by an amended information filed on October 10, 2006, with unlawfully manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)) (count 1); renting or making available a building or other space for the purpose of unlawfully manufacturing, storing or distributing methamphetamine (Health & Saf. Code, § 11366.5, subd. (a)) (count 2); endangering the health of a child (Pen. Code, § 273a, subd. (a)) (count 3); and misdemeanor using a scanner to intercept police communications (Pen. Code, § 636.5) (count 4). It was alleged that appellant was personally armed with a firearm during the commission of counts 1 and 2 (Pen. Code, § 12022, subd. (c)), and that the offense charged in count 1 occurred in a structure where a child under the age of 16 years was present (Health & Saf. Code, § 11379.7, subd. (a)).
Jury trial began on March 25, 2008. On April 3, the jury found appellant guilty of manufacturing methamphetamine and found true the allegation that a child was present during the offense; it also found appellant guilty of misdemeanor child endangerment, a lesser included offense of the felony charged in count 3. The jury found appellant not guilty of the offenses charged in counts 2 and 4, and found the firearm allegations not true.
On May 8, 2008, the court sentenced appellant to a prison term of five years on count 1, consisting of the lower term of three years plus two years for the enhancement. The court imposed a concurrent sentence of 120 days in county jail on count 3.
Appellant filed a timely notice of appeal on June 24, 2008.
STATEMENT OF FACTS
As a result of a probation search at her home on June 21, 2006, Kathleen Wright was arrested on charges of manufacturing methamphetamine, child endangerment, possession of a gun, and maintaining premises used for the production or distribution of controlled substances. Also arrested at the same time were appellant and John Collins, a friend of appellant’s who had been storing his belongings in a room adjacent to Wright’s garage for a few months and often slept there. Wright testified at appellant’s trial after entering an agreement with the district attorney and understood that if she testified truthfully she would be convicted of the last of the charges against her; she believed testifying truthfully would help her in her own criminal case and would give her a better chance of not losing custody of her children. Wright testified that since the arrest, she had changed her lifestyle, stopped using methamphetamine, and stopped associating with the people she used to, including appellant.
At the time of trial, Wright had lived at 926 South Road in Belmont for about eight years. She and appellant lived together as boyfriend and girlfriend from about 2004 until their arrest in 2006, although about three months before their arrest Wright had stopped sleeping in the master bedroom and wanted appellant to move out. Both used methamphetamine and, in June 2006, Wright was on probation for a conviction of possession of methamphetamine. She was aware that appellant was making methamphetamine in her garage and bought pills for him to use, but did not help him with the manufacturing. Other friends of appellant’s, including Collins, also bought pills for appellant to use in making methamphetamine. She told appellant she was concerned about the manufacturing process starting a fire and he told her she was “stupid.”
A couple of months before the June arrest, Wright began electronic monitoring as part of her probation and told appellant she did not want methamphetamine in the house or him using it; he did not stop, they fought about it, and she was trying to get him to move out. A couple of weeks before the arrest, appellant told Wright that the methamphetamine related items had been removed from the garage and she did not see anything when she checked.
Appellant did not pay rent but did contribute to bills such as food and gas, sometimes picked up the tab for dinners out, and bought things for Wright’s son, Jason, and gave Wright methamphetamine. He took Wright and Jason to Hawaii.
Jason, 14 years old and in eighth grade at the time of trial, testified that appellant lived with him and his mother for about two years. Appellant sometimes played baseball with Jason and his mother, bought groceries, and did things like take Jason to the store to buy a new shirt. Appellant usually took Jason to school in the morning; Jason generally took the bus home, but appellant picked him up sometimes. Jason’s mother generally took care of him when he was sick, but appellant would give him medicine or bring him a drink.
Jason kept sports items, such as baseball gloves and soccer balls, in a chest in the garage. Appellant put a lock on the door from the house to the garage and while he lived at the house, the lock was sometimes locked, sometimes not. During the time appellant lived at the house, Jason sometimes found things in the garage including “medicine stuff” like empty Tylenol boxes and a jug containing a small amount of liquid. Sometimes when he was going to sleep Jason would notice a smell “like if you kept on smelling it it would give you a headache,” a battery acid or gasoline type smell. Before appellant moved in, Jason and his mother used the garage as a place to hang out, but this stopped when appellant lived with them. Appellant spent most of his time in the garage, sometimes all night. Jason would see him working on projects like fixing up and painting the house, and sometimes helped him. Appellant and his friends, who frequently were in the garage with him, warned Jason not to touch things in the garage. They were usually in the garage very late at night and Jason would ask his mother to tell them to quiet down so he could sleep.
Marilyn Corr, a good friend of Wright’s, testified under a grant of immunity. At the time of trial, Corr was in jail, having violated her probation by using methamphetamine. Corr had known appellant and Collins for many years, used methamphetamine with and bought it from both of them. She obtained methamphetamine from Wright’s house on several occasions, from an area in the garage where it was being made. She had not seen appellant actively making methamphetamine, but had seen chemicals in the garage and on one occasion got her methamphetamine from a coffee filter, which she knew was the last step in its production. On this occasion, Corr waited about 15 minutes for the methamphetamine to be ready.
On the evening of June 21, 2006, officers from the California Bureau of Narcotics Enforcement and the Belmont Police Department executed a probation search at Wright’s house. Wright was on the porch. Officers encountered James Obertini in the garage, located below the residence levels of the house, and Collins, known as Duke, coming out of a side room attached to the garage. During the course of the search, appellant came to the house and was asked to leave.
In the garage, located below the residence levels of the house, officers found various items consistent with all the stages of manufacturing methamphetamine, including glassware, funnels, filters, cans of chemicals commonly used in the process of manufacturing methamphetamine, ephedrine in the form of still boxed allergy medicine, a bottle of iodine and two bottles of hydrogen peroxide. They also found three small water bottles containing ephedrine soaking in solvent, and approximately one gram of methamphetamine in a form that could be ingested by a user, found in some of the tubing and glassware in the garage. Martin described one method by which methamphetamine is manufactured from ephedrine (cold medicine), red phosphorous (commonly extracted from the strike pad on matchbooks or emergency flares) and hydriatic acid (made from iodine and hydrogen peroxide). The procedure involves using liquids, solvents and filters to separate the desired substances, then combining the ingredients, creating from these flammable and acidic substances a volatile mixture which poses the danger of fire and release of caustic chemicals into the air. Martin opined that the premises contained all the ingredients and equipment necessary to manufacture methamphetamine, in this case an amount between a few grams and half an ounce. There also was an active police scanner in the garage. Officers found three pieces of paperwork in appellant’s name on a work bench in the garage, a receipt, a check and a paper from a county agency; there were other papers on the workbench that the officers did not seize. The officers did not find any methamphetamine related items in the storage area off the garage containing Collins’s belongings, and a locked tool box in the garage, which Collins said was his, contained only tools such as wrenches and sockets.
California Bureau of Narcotics Enforcement agent Ross Martin testified that a “dose” of methamphetamine would be 1/10 of a gram.
Martin testified that the majority of the items in the garage associated with methamphetamine manufacture were found in cabinetry on the south wall and on a workbench, with a small amount in a locker by the garage door. None of these items was locked up; all were accessible to anyone who came into the garage from the stairway that connected it to the residence. It appeared that the cabinetry above the bench in the southwest corner of the garage had at one time caught fire. Although Martin viewed the lab as small and not sophisticated, it still posed the inherent dangers of a meth lab. To illustrate the level of danger, Martin explained that officers processing such labs wore protective gear resistant to the chemicals, including gloves and booties, air purifying respirators and sometimes breathing apparatuses. Accordingly, Martin was very upset when he learned there was a child living in the house.
Inside the residence, the police found a 12-gauge Mossberg shotgun in the master bedroom closet. There was a safe in the master bedroom; Wright gave an officer a combination that failed to open the safe, then appellant supplied a combination that worked. Officer Koti Fakava testified that he did not know whether the combinations were different or he made a mistake when using the one Wright gave him. There were three methamphetamine smoking pipes and a package of pills in the safe, and another pipe in the top drawer of the dresser in the bedroom closet. The clothing in the closet was mostly men’s, but there was some women’s clothing. Appellant said the pipes, pills and shotgun were his.
Belmont Police Officer Clyde Hussey was sent to locate appellant when it appeared he was the primary suspect for the lab. Hussey found appellant at a local school, sitting in his truck while Jason and a friend played in the school yard, placed him under arrest, and took him back to the house. Appellant was surprised but cooperative. Jason was taken back to the house in a different vehicle.
Martin interviewed Wright, appellant, Obertini, Collins and Jason. Although Wright had said that Collins lived in the unit by the garage, Collins said he lived in his car. Collins’s dog slept in the side room, but Martin believed the room was so filled with “property” there was not enough room for Collins to have slept there.
Appellant agreed to talk with Martin after being informed of his Miranda rights. Appellant denied that the things in the garage belonged to him and said other people had access to the garage. Asked about the meth lab, appellant said he found a lot of “stuff” in the garage when he came and had thrown away a lot, but would not explain what he meant by “stuff.” When Martin pressed for more information, appellant became animated, agitated and confrontational.
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
I.
Penal Code 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 is endangered, is guilty of a misdemeanor.” The jury was instructed on the theory that appellant, having “care or custody” of Jason, exposed Jason to harm; it was not presented with a theory that appellant caused actual harm to Jason. Appellant contends his conviction must be reversed because there was insufficient evidence to support the required element that he had “care or custody” of Jason.
The felony form of the offense, defined in Penal Code section 273a, subdivision (a), applies “under circumstances or conditions likely to produce great bodily harm or death.”
“ ‘ “To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ (People v. Tafoya (2007) 42 Cal.4th 147, 170.) The pertinent inquiry is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)” (People v. Romero (2008) 44 Cal.4th 386, 399.) “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ (Id. at pp. 792-793.)” (People v. Rodriguez, supra, 20 Cal.4th at p. 11.)
In People v. Perez (2008) 164 Cal.App.4th 1462 (Perez), the defendant was convicted of offenses including child endangerment (Pen. Code, § 273a, subd. (b)) after officers executing a search warrant found heroin belonging to him in various unsecured locations in the home of his sister, Delgado, where he resided. Delgado’s daughter and 15-year-old grandson also lived in the home, and Delgado’s four-year-old granddaughter, S.F., spent a couple of nights per month there. Perez argued that there was insufficient evidence he had care or custody of S.F. to support his conviction of child endangerment. S.F. testified that Perez was at the residence all the time when she was there and babysat her “one day.” She called him “ ‘Daddy Joe,’ ” ate meals with him, and visited his parrot. Delgado and her daughter testified that Perez was not the child’s caretaker and was never required to babysit for her. (Id. at pp. 1466-1467, 1471.)
Perez rejected the argument that Penal Code section 273a, subdivision (b), “was intended to apply only to ‘caretakers’ whose role vis-à-vis the child is akin to parents, guardians, and babysitters,” holding that the “language of the statute clearly covers not only parents, guardians, and babysitters, but also individuals who do not necessarily have as substantial a relationship to a child as a parent, guardian, and/or babysitter, but who nevertheless have 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 court recognized that most of the cases involving the sufficiency of evidence supporting a conviction under Penal Code section 273a or similar statutes involved a defendant with “a more clearly defined role in the custody or care of the victim than Perez had.” (Perez, at pp. 1469-1470, citing People v. Cochran (1998) 62 Cal.App.4th 826, 832-833; People v. Culuko (2000) 78 Cal.App.4th 307, 335; Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 260.) It found, however, that this “does not mean that the phrase ‘having the care or custody of a[] child’ (§ 273a) is intended to apply only to individuals whose relationship with the victim child is as substantial as the relationship between the defendants and victims in those cases.” (Perez, at p. 1470.)
In Perez, the evidence supported the jury’s verdict in that it showed Perez “was much more than an acquaintance who had only minimal contact with S.F. in the home every now and then.” (Perez, supra, 164 Cal.App.4th at p. 1471.) The court noted S.F.’s testimony about her contact with Perez as well as the fact that Perez did not have a job and was at the house most of the time, including during the day when S.F.’s mother worked and her grandmother slept, which permitted a reasonable inference that there were times S.F. was left with Perez as the only adult in the house who was not asleep and, therefore, that he was, as a factual matter, caring for the child. (Ibid.) “Whether one is ‘caring’ for a child is determined not by agreement, but instead, as a matter of fact based upon the surrounding circumstances.” (Ibid.) The court explained that although Delgado and her daughter were S.F.’s primary caretakers, the evidence was sufficient to support the jury’s conclusion that “Perez was one of several adults in the home who had the care or custody of S.F.” (Id. at p. 1472.)
Appellant’s argument in the present case is that Perez went too far in imposing liability under Penal Code section 273a on a person who is neither a parent nor a “caretaker.” In his view, the offense should be limited to those with general or temporary custody of a child, not to persons “who have not been entrusted with quasi-parental authority at the time they allegedly exposed a child to danger.” The Legislature did not intend, he argues, to impose upon “unrelated adults” the responsibility to protect children from harms present in their own homes.
We do not share appellant’s view of Perez. Liability was imposed in that case because the evidence supported a conclusion that the defendant was not an “unrelated” adult: He was member of the household who played a role in caring for the child, at least at times, and even though not her primary caretaker. Here, appellant was not simply a boarder in Wright and Jason’s home. He was involved in an intimate relationship with Wright and, according to her testimony and Jason’s, assumed something akin to a familial role with respect to Jason, driving him to and from school, playing ball with him, working with him on household projects, at times helping to care for him when he was sick, vacationing with him, and contributing to the household finances. Perez’s observation is apt here: “It would be illogical to presume that a child who lives in a home with two adults, one of whom has primary child care duties, would not be protected from the actions of the other adult under this statute. The more reasonable reading is that the statute is intended to prevent all adults in such a situation from placing the child in a situation in which the child’s welfare is endangered.” (Perez, supra, 164 Cal.App.4th at p. 1472.) Appellant would have us hold that, although he shared a home and lived as a family with Wright and Jason, he had no responsibility to protect Jason from the danger he created in that home. This we will not do.
Nor are we persuaded by appellant’s argument that the “care or custody” element of Penal Code section 273a requires liability be limited, in the case of temporary caretakers, to persons who expose a child to danger while the child is in their care and the parent is absent. To say that appellant was responsible for protecting Jason only when appellant was driving the boy in his car, or “perhaps” when Jason was in the garage with appellant, is to ignore the reality of the circumstances shown by the evidence. Appellant was convicted of maintaining an ongoing hazard in the home he shared with his girlfriend and her son, a hazard equally present when Wright was at home with Jason and when she was not. Regardless of Wright’s separate responsibility for protecting Jason, there was sufficient evidence to support the jury’s conclusion that appellant’s relationship with Jason amounted to his having “care or custody” of the boy within the meaning of Penal Code section 273a.
Appellant acknowledges People v. Toney (1999) 76 Cal.App.4th 618, 622, as a “closer” case than others in which liability was imposed upon a defendant who was either an actual parent (People v. Odom (1991) 226 Cal.App.3d 1028 [father maintained methamphetamine lab and other dangerous and unsanitary conditions in home he shared with his children]) or acted as a surrogate parent (People v. Cochran, supra, 62 Cal.App.4th 826, 833 [defendant invited mother and child to live in his home and assumed “parent-like role”]). Toney upheld a conviction under Penal Code section 273a against a defendant who maintained a methamphetamine laboratory in his home. (People v. Toney, at p. 620.) The defendant’s wife’s son had a room in the house and visited on weekends. (Id. at p. 621.) Although he argued there was no direct evidence he voluntarily assumed the role of caregiver or lived with his stepson, the court found sufficient evidence of the defendant’s “willingness to assume the care or custody” of the child in the facts that he married the child’s mother, invited the child into his home, provided him with a room, and allowed him to use the living room (where the child’s papers were found). (Id. at p. 622.) Appellant finds a distinction in the fact that here, it was Wright who owned the home and invited appellant to live in it. As explained in Perez, however, willingness to assume care or custody is determined from the circumstances. Here, although appellant came to live with Wright and Jason rather than vice versa, the evidence supported the conclusion that he willingly assumed a role within the ambit of the child endangerment statute.
Odom involved no question about the “care or control” element of the offense; the courtrejected the defendant’s arguments that the children were not in danger because adults were present to supervise them and the conditions were temporary. (People v. Odom, supra, 226 Cal.App.3d at p. 1035.)
People v. Malfavon (2002) 102 Cal.App.4th 727 (Malfavon), also involved a defendant who did not have a “substantial caretaking relationship with the child.” (Perez, supra, 164 Cal.App.4th at p. 1471.) Malfavon was convicted of murdering his girlfriend’s baby and of assault resulting in the infant’s death. The girlfriend had gone into her apartment to get some belongings, leaving the baby sleeping in her car seat with Malfavon in the car. Malfavon appeared upstairs with the baby who was spitting up blood; she died a day later of severe skull fracture and brain injury. (Malfavon, at pp. 731-732.) The courtfound the “care or custody” element of the assault offense satisfied by Malfavon’s admission that he was responsible for watching the baby while her mother went into the apartment and the mother’s testimony that she had left the baby in his care in the past. (Id., at pp. 736-737.)
Appellant finds Malfavon “explained” by the temporary responsibility for care the defendant assumed when he stayed in the car with the baby in the mother’s absence. He urges that only in such a situation of exclusive responsibility should a person who does not have actual custody or ongoing responsibility for a child’s care be held liable for child endangerment. We decline to draw so distinct a line. As the cases demonstrate, there are situations in which a person who does not have an ongoing responsibility for care may be liable. (E.g., People v. Morales (2008) 168 Cal.App.4th 1075, 1082-1084 [defendant, driving with 16-year-old passenger and police car in pursuit, sped through stop sign and red light, and crashed car; sufficient evidence defendant assumed “care or custody” while child in car because she lacked freedom to leave or control over car].) “As stated in People v. Cochran[, supra, ] 62 Cal.App.4th 826, 832, ‘[t]he terms “care or custody” do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver.’ There is ‘no special meaning to the terms “care or custody” beyond the plain meaning of the terms themselves’ that is indicated or intended. (Ibid.) Interpreting Cochran, the court in [Perez, supra, ] 164 Cal.App.4th 1462, 1476, stated: ‘[T]he relevant question in a situation involving an individual who does not otherwise have a duty imposed by law or formalized agreement to care for a child (as in the case of parents or babysitters), is whether the individual in question can be found to have undertaken the attendant responsibilities at all. “Care,” as used in the statute, may be evidenced by something less than an express agreement to assume the duties of a caregiver. That a person did undertake caregiving responsibilities may be shown by evidence of that person’s conduct and the circumstances of the interaction between the defendant and the child; it need not be established by an affirmative expression of a willingness to do so.’ (Fn. omitted.)” (People v. Morales, supra, 168 Cal.App.4th at p. 1083.)
Here, as we have explained, the evidence concerning appellant’s relationship with Jason and role in the household he shared with Jason and Wright was sufficient to support the jury’s verdict that appellant had “care or custody” of Jason within the meaning of Penal Code section 273a.
Appellant’s reliance upon out-of-state case law to argue that he lacked sufficient caretaking responsibility to be liable for child endangerment is unavailing. State v. Galloway (N.J. 1993) 628 A.2d 735, 748-749, interpreted New Jersey’s child endangerment statute, which defined an offense by “[a]ny person having a legal duty for the care of a child or who has assumed responsibility for the care of the child,” as applying to “a person who has ‘assumed the care of a child’ or is ‘living with the child’ or has a ‘general right to exercise continuing control and authority over’ the child.” While appellant is correct that Galloway held the statute “should apply to those who have assumed a general and ongoing responsibility for the care of the child,” its interpretation of that requirement would clearly encompass appellant’s situation.
II.
As indicated above, in addition to the misdemeanor child endangerment conviction, appellant was convicted of manufacturing methamphetamine with an enhancement due to a child under age 16 being on the premises at the time the offense was committed. He contends the trial court should have stayed the sentence on the misdemeanor conviction because the two offenses were based on the same conduct. Respondent argues Penal Code section 654 does not apply to sentence enhancements and, in any event, does not preclude the sentences imposed.
Appellant has by this time fully served the concurrent sentence imposed on the misdemeanor conviction. Accordingly, staying the sentence would serve no practical purpose. Although appellant suggests potential adverse consequences that might adhere from having the misdemeanor conviction and sentence on his record with no indication the sentence was stayed, his suggestions are highly speculative. We conclude the issue is moot. (See People v. Hamilton (1968) 258 Cal.App.2d 511, 516.)
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.
In Lovisi v. Commonwealth (Va. 1972) 188 S.E.2d 206, 207-208, the court interpreted a statute referring to “any person employing or having the custody of any child” as “not restricted in application to those having legal custody of children” and “applicable to a person standing in loco parentis.” If anything, the limitation of the Virginia statute to persons with “custody” gives it narrower reach than our statute, which encompasses “care” as well as “custody.”
Hull v. State (Fla. App. 1996) 686 So.2d 676, held the defendant could not be convicted of sexual battery by a person “ ‘in a position of familial or custodial authority’ ” for having consensual sexual relations with his wife’s 17-year-old niece, who was living with him and his wife while attending college, but was supported by her parents and not under the defendant’s supervision. The court stated that the facts demonstrated a total absence of “the ‘recognizable bond of trust’ [citation], or the ‘duty or obligation to care for the other’ [citations], which are indispensable to a finding of the ‘familial or custodial authority’ required for a violation of the statute. [Citations.]” (Id. at pp. 676-677.) We fail to see the relevance of this case, interpreting different statutory language in the context of utterly different facts, to our determination of the meaning of Penal Code section 273a.