People v. Cheam CA2/3 ( 2014 )

Filed 12/16/14 P. v. Cheam CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B251610
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA093626)
v.
CHANTHA CHEAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur Jean, Jr., Judge. Affirmed.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In a jury trial, Chantha Cheam (appellant) was convicted in count 1 of attempted
voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)),1 with true findings of the
personal use of a deadly and dangerous weapon, a knife, and of the personal infliction of
great bodily injury (§§ 12022, subd. (b)(1), 12022.7, subd. (a)), and in count 2 of felony
child abuse (§ 273a), with a true finding of the personal use of a deadly and dangerous
weapon, a knife (§ 12022, subd. (b)(1)).
At sentencing, the trial court imposed a total term in state prison of seven years,
consisting of a three-year middle term for the offense of attempted voluntary
manslaughter, enhanced by three years for the personal infliction of great bodily injury
and by a consecutive one-year term for the use of the knife, plus a concurrent four-year
middle term for the felony child abuse.
CONTENTIONS
1. The trial court prejudicially erred by charging the jury with an instruction on
felony child abuse that was flawed and incomplete. In the alternative, trial counsel was
constitutionally ineffective as he failed to request definitions of, and/or the amplification
of, the terms “criminal negligence” and “great bodily harm.”
2. Appellant was entitled to a sua sponte lesser included jury instruction on
misdemeanor child endangerment. In the alternative, appellant contends trial counsel’s
failure to request such an instruction constitutes the ineffective assistance of counsel.
3. The evidence is insufficient to support appellant’s conviction of attempted
voluntary manslaughter.
4. The evidence is insufficient to support appellant’s conviction of felony child
abuse.
5. Appellant requests this court to conduct an independent review of the in camera
Pitchess hearing. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)
None of the contentions requires a reversal, and we will affirm the judgment.
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
BACKGROUND
We view the trial evidence in the light most favorable to the judgment. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.)
At approximately 5:30 p.m. on October 9, 2012, Long Beach Police Officer Daniel
Mendoza received a call to respond to 1030 Grand Avenue concerning a battery. On the
ground level, next to an apartment complex, the officer found a wounded woman and a
female teenager with an injury to her leg. A number of persons were standing with them
outside the complex. No one spoke English. Sunra Sorn (Sorn), the occupant of
apartment No. 8, pointed upstairs to her apartment. About twenty minutes later, appellant
surrendered himself to the police and came downstairs from apartment No. 8.
The officers recovered two knives from the unit: one covered with dried blood in
a kitchen drawer and another folding utility knife, which was located behind the couch in
the living room. Sorn pointed out the knives for the officers.
After the uniformed officers responded, Long Beach Police Officer Udom Sawai
(Officer Sawai), a detective who spoke Khmer, also responded.2 Initially, he spoke to the
victims who were sitting outside apartment No. 8 with the other onlookers. Officer
Sawai discovered the assailant was refusing to emerge from the apartment. Officer Sawai
obtained the telephone number for the apartment and spoke to appellant, the assailant, by
telephone. After six or seven requests over ten minutes, appellant complied with the
officer’s requests to surrender. Appellant walked downstairs unarmed and was taken into
custody.
After the arrest, appellant showed officer Hector Gutierrez (Officer Gutierrez) a
small stab wound he had in his abdomen.
M.S (S.), the victim, testified at the trial on October 9, 2012, she and her teenage
daughters, C. and Ch., met her former husband, appellant, at Sorn’s apartment. S. wanted
to obtain her daughters’ birth certificates from appellant.
2
Khmer, or Cambodian, is the language of the Khmer people, an aboriginal people
of Cambodia, and the official language of Cambodia.
3
S. said she and appellant were sitting on the furniture in Sorn’s living room to talk.
Soy and appellant were divorced. S. wanted their daughters, who had been living in
California with appellant, to come to live with her. S. and appellant were discussing the
teenagers’ birth certificates in the presence of Sorn and her daughters, who were sitting in
close proximity to S.3 In the discussion, appellant changed the subject and asked S. to
come back to live with him. S. replied, “No.” Appellant became insistent. Suddenly,
appellant leapt up from his position on the sofa and approached S. and “wrestled” with
her. S.’s knees buckled, and she fell onto her knees on the floor. She felt numb in the
abdomen and hand. Her daughters shouted and pulled at appellant, attempting to separate
them. Sorn also attempted to pull appellant away from S.
To get away from appellant, S. ran out of the apartment and downstairs. As she
opened the front door, she saw blood on her hand. A crowd gathered, and three minutes
later, her daughters emerged from the apartment and joined her downstairs. Her younger
daughter, C., was wounded in the knee. S. was having difficulty breathing, and the
ambulance arrived.
At the hospital, S. discovered she had been stabbed in the abdomen and arm by
appellant. The wounds required surgery, and she spent three days in the hospital. During
the attack, she never saw the knife.
During cross-examination, S. explained she had immigrated from Cambodia and
had divorced appellant in Cambodia. She came to the United States and married a man
who lived in Kentucky. She had since divorced that man. Appellant had also immigrated
and was raising their two daughters in Los Angeles. S. was sorting out her immigration
status at the time she visited Los Angeles. She wanted her two daughters to be living
3
In her opening statement, the prosecutor explained the photographs taken of
Sorn’s living room would show a large sofa, a smaller one and an ottoman. She claimed
the testimony would show Sorn and appellant were sitting on the smaller sofa, C. and Ch.
were sitting on the larger sofa and S. sat on ottoman. In S.’s testimony, the prosecutor
had S point out in the photograph where everyone was sitting. Sorn testified the
teenagers were seated on the couch about four feet from location of the attack.
4
with her partially for reasons of improving her chances of immigrating. However, she
also wanted her daughters to live with her.
At the time of the stabbing, S. and appellant were arguing about whether both
daughters would go with S. to Kentucky or whether, as appellant wished, they should
split up the daughters. Appellant also asked S. to resume family life with him. S. told
appellant she did not want to live with him anymore, and she had another relationship.
C., age 12, testified that prior to the stabbing, she was sitting on the sofa between
her parents. Her parents were talking normally, and she was talking to her sister and
playing with a mobile phone. Suddenly, appellant rushed in as if to give S. a kiss. S. told
appellant, “Stay away.” C. grabbed appellant to prevent him from moving forward.
When C. did so, she felt a numbness in her leg. Later, C. looked down, and her knee was
bleeding. All C. saw concerning the stabbing was wrestling after appellant had hugged S.
C. never saw a knife.
C. identified the photograph of the stab wound to her knee. She explained she was
in the hospital overnight, but was released in the early morning hours of the following
day. The doctor sutured her wound. The stabbing left a scar on her knee.
Ch., age 14, testified that after S. stated she would refuse to live with appellant,
appellant rushed at S. Ch. had believed appellant was going to hug or to kiss S. When
appellant hugged S., Sorn and C. grabbed appellant and pulled him away from S. After
the wrestling, Ch. saw blood, and S. ran out the front door. There was blood on S.’s
back.
Ch. got a towel from the bathroom and wrapped it around her sister’s wounded
knee. Ch. said she felt sorry for appellant as Ch. was going to Kentucky to live with S.
She also felt bad as S. had been hurt. Ch. did not bring a knife to the meeting. When she
saw appellant after the stabbing, she saw no blood on his clothing.
Ch. testified she did not recall telling a police officer that after the stabbing, she
had returned upstairs to get her purse. When Sorn entered the apartment, appellant -- was
sitting there crying. She did not recall telling the officer she had observed her father
5
stabbing himself. She denied telling the officer at the hospital that during the melee, she
had seen appellant swinging a knife.
Sorn testified she was a friend of appellant. She had agreed to permit appellant to
meet with his former wife and children at her apartment. At the meeting, appellant was
behaving normally, and appellant told her he loved his former wife and children. During
the conversation, appellant asked S. to stay with him “for the time.” He pled with
S. to do so, but S. replied, “No.” Sorn had been concerned there would be an altercation.
So when appellant moved in S.’s direction, Sorn grabbed him.
Sorn saw appellant shout at S. and grab S. by the hair. Sorn tried to separate them.
Sorn told S. to leave. Sorn did not see the knife, but saw the blood on the door when
Sorn walked downstairs. Sorn was present after the stabbing when appellant stabbed
himself. At that time, appellant instructed Sorn to go downstairs and to take care of S.
Before Sorn did so, Sorn took the knife from him as she was concerned he would stab
himself again. When she went downstairs, the police had already arrived. She put the
knife away.
Sorn explained she had observed two knives before she went downstairs, one in
appellant’s stomach, a wood knife, and another on the carpet where S. had been sitting on
the sofa. Appellant had told her he wanted the knife to kill himself. Sorn picked up the
knife on the carpet and tossed it behind the sofa to prevent appellant from using it to stab
himself. One of the knives belonged to her. But the other one was not hers. Then she
contradicted herself and said, “I don’t know what knives I have at home.”
During cross-examination, Sorn admitted that prior to the stabbing, appellant had
gotten down on his knees and was pleading with S. to stay with him. He was crying.
When S. refused, appellant stood up. That was when Sorn grabbed his legs. She pulled
appellant and S. away from one another so there would be no contact and S. could leave
the apartment.
Officer Jayson Torres (Officer Torres) testified he spoke to Ch. at the hospital.
Ch. replied to him in broken English, but the officer had no difficulty understanding her.
Ch. told the officer she saw her father swing a knife at S. and stab S. When Ch. went
6
upstairs to get her purse, her father had a knife in hand and was using it on himself. He
was upset because their mother wanted to take the girls with her to live in Kentucky. Ch.
said in the melee, she also saw appellant swing his knife at C.
Dr. Mauricio Heilbron (Dr. Heilbron) testified he was a surgeon who worked at
various hospitals in Long Beach. When S. arrived at the hospital, it was determined S.
had a “level one trauma” wound and multiple stab wounds. He examined S. She had an
extremely deep laceration to the abdomen which was so deep, it required exploratory
surgery. Initially, he inserted a camera to determine the depth of the wound; he said the
wound went all the way through the abdomen. So he performed surgery.
Dr. Heilbron described there was a large amount of bleeding. The knife had cut
the rib and the subcostal artery, which can bleed torrentially. Dr. Heilbron had to stop the
internal bleeding. Then he had to go outside and open the wound to stop further bleeding
from the muscle. He then explored inside S.’s abdomen to ensure the internal bleeding
had stopped. S. had less serious cuts on her arm and hands. Dr. Heilbron used sutures
and stitches to repair the surgery wound and the knife wounds. Without surgery, S.
would have bled to death.
In defense, appellant produced no evidence and declined to testify on his own
behalf.
DISCUSSION
1. The contention the trial court delivered an incomplete and flawed jury instruction on
felony child abuse.
Appellant contends the jury instruction on felony child abuse was flawed and
incomplete and the errors are of federal dimension and structural error, requiring a per se
reversal.
7
a. Background.
(i) The jury instructions.
The trial court charged the jury as to attempted deliberate and premeditated
murder, attempted murder without deliberation and premeditation, and attempted
voluntary manslaughter, the personal infliction of great bodily injury, felony child abuse
and the use of the deadly or dangerous weapon, the knife.
With respect to felony child abuse, the trial court charged the jury with a modified
version of CALJIC No. 9.37. It charged the jury initially in the general language of the
statute. But in its specifics, at the end of the instruction, the charge was limited to that
part of section 273a, subdivision (a), prohibiting a person having the care or custody of a
child, under circumstances or conditions likely to produce great bodily harm or death,
from willfully causing or permitting the person or health of the child to be injured, or
willfully causing or permitting that child to be placed in a situation where his or her
person or health is endangered.
The trial court also delivered to the jury a set of written instructions for its use
during deliberations.4
4
Section 273a, subdivision (a), is an omnibus statute that proscribes essentially four
branches of conduct. It 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.”
The trial court charged the jury orally with a modified version of CALJIC
No. 9.37, as follows.
“Mr. Cheam is accused in count 2 of having violated § 273a, subdivision (a), of
the Penal Code of our state, involving the alleged victim C., the younger of the two of the
girls who testified.
“Every person who, under circumstances or conditions likely to produce great
bodily harm or death, willfully inflicts unjustifiable physical pain or mental suffering on a
child, or willfully causes or, willfully and as a result of criminal negligence, permits a
child to suffer unjustifiable physical pain or mental suffering, or has care or custody of a
8
(ii) The prosecutor’s comments to the jury with respect to felony child
abuse.
In commenting during final argument on felony child abuse, the prosecutor
explained to the jury the prosecution was not asserting appellant had the specific intent to
child and . . . willfully causes or, willfully and as a result of criminal negligence, permits
a child to be placed in a situation where his or her person or health may be endangered,
is guilty of a violation of this code section. [(Cont. on page 9)]
“The word ‘likely’ as used in this crime means that the circumstances or
conditions are such that they present a substantial danger, that is, a serious and well-
founded risk of great bodily harm or death.
“The word ‘willfully’ as used in this instruction, means with a purpose or
willingness to commit the act.
“The word ‘willfully’ does not require any intent to violate the law or to injure
another or to acquire any advantage.
“In the crime charged, there must [exist] a union or joint operation of act or
conduct and general criminal intent.
“To establish general criminal intent it [is not] necessary that there should exist an
intent to violate the law. A person who intentionally does that which the law declares to
be a crime, is acting with general criminal intent even though he may not know that his
act or conduct is unlawful.
“Unjustifiable physical pain or mental suffering is pain or suffering which is not
reasonably necessary or is excessive under the circumstances.
“ ‘Great bodily harm’ refers to significant or substantial injury and does not refer
to trivial or insignificant injury.
“If a child is placed in a situation likely to produce great bodily harm or death, it is
not necessary that actual bodily injury occur in order to constitute the offense.
“However, if great bodily injury does occur, its nature and extent are to be
considered in connection with all the evidence in determining whether the circumstances
were likely to produce great bodily harm or death.
“In order to prove this crime, each of the following elements must be proved: [¶]
“1. That a person who had care or custody of a [child] willfully caused or,
willfully and as a result of criminal negligence, permitted the child to be injured; or
willfully caused or, willfully and as a result of criminal negligence, permitted the child to
be placed in a situation where his or her person or health may be endangered; and
“2. The person’s conduct occurred under circumstances likely to produce great
bodily harm or death.”
The No. 2 element set out immediately above was crossed out in the written set of
instructions delivered to the jury. However, the trial court had placed a notation, “IN,”
on the written instructions in the left margin next to the paragraph specifically describing
the No. 2 element of the offense.
9
kill C., the intent with which he had attacked her mother, S. The prosecution’s theory of
felony child abuse was appellant had “created a dangerous and hazardous environment by
welding [sic] a knife toward his ex-wife, in front and around his daughters. And in the
process, his daughter, [C.], was cut.” The prosecutor argued: “So, element No. 1, a
person willfully caused or willfully and as a result of criminal negligence, permitted a
child to suffer unjustifiable physical pain and mental suffering.”
The prosecutor then described how the evidence showed C. had to have sutures to
her knee at the hospital, which amounted to the infliction of “undue physical pain.” The
prosecutor argued: “And as a result of criminal negligence, welding [sic] and swaying
[sic] a knife in the air around your ex-wife in close proximity to your children, four feet .
. . .welding [sic] a knife with your children in the way. That’s the child abuse in this
case. [¶] Two, the person’s conduct occurred under circumstances likely to produce
great bodily injury.”
b. The relevant legal principles.
“We determine whether a jury instruction correctly states the law under the
independent or de novo standard of review. [Citation.] . . . ‘Instructions should be
interpreted, if possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos (2008)
163 Cal.App.4th 1082, 1088.)
“ ‘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 jury’s understanding of the case.’ [Citation.]” (People v. Sedeno
(1974) 10 Cal.3d 703, 715 (Sedeno).)
“In reviewing a claim of instructional error, the ultimate question is whether ‘there
was a reasonable likelihood the jury applied the challenged instruction in an
impermissible manner.’ [Citation.] ‘[T]he correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of an
10
instruction or from a particular instruction.’ [Citation.] ‘Moreover, any theoretical
possibility of confusion [may be] diminished by the parties’ closing arguments . . . .’
[Citation.] ‘ “ ‘Jurors are presumed to be intelligent, capable of understanding
instructions and applying them to the facts of the case.’ ” ’ [Citation.]” (People v. Hajek
and Vo (2014) 58 Cal.4th 1144, 1220 (Hajek).)
c. The elements of the offense of child abuse.
In People v. Valdez (2002) 27 Cal.4th 778, 782-783 (Valdez), the court discussed
the elements of the offense of felony child abuse. Concerning the direct infliction of
unjustifiable pain or mental suffering on a child, “essentially a battery,” it said the mens
rea was “the intent to perform the underlying injurious act on a child.” (Id. at p. 786,
citing People v. Sargent (1999) 19 Cal.4th 1206.) It is a general intent crime. (Valdez, at
p. 787.)
However, for indirect abuse, the other prongs of the statute, the court in Valdez
determined the proper mens rea is criminal negligence. The court explained. “. . . [U]se
of a general intent standard is appropriate when the statute criminalizes commission of a
battery, or direct infliction of unjustifiable pain or suffering. By contrast, criminal
negligence is the appropriate standard when the act is intrinsically lawful, such as leaving
an infant with a babysitter, but warrants criminal liability because the surrounding
circumstances present a high risk of serious injury. Criminal negligence is not a ‘lesser
state of mind’; it is a standard for determining when an act may be punished under the
penal law because it is such a departure from what would be the conduct of an ordinarily
prudent or careful person under the same circumstances. When that departure endangers
the person or health of a child and is ‘under circumstances or conditions likely to produce
great bodily harm or death,’ it constitutes a felony violation of the child endangerment
statute. (§ 273a, subd. (a).)” (Valdez, supra, 27 Cal.4th at pp. 789-790.)
The court defined the term “criminal negligence” as follows: “Criminal
negligence is ‘ “aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a
departure from what would be the conduct of an ordinarily prudent or careful [person]
under the same circumstances as to be incompatible with a proper regard for human life
11
. . . .” ’ [Citation.] ‘Under the criminal negligence standard, knowledge of the risk is
determined by an objective test: “[I]f a reasonable person in defendant’s position would
have been aware of the risk involved, then defendant is presumed to have had such an
awareness.” ’ [Citations.] Under section 20, criminal negligence ‘may be sufficient to
make an act a criminal offense, without a criminal intent.’ [Citation.]” (Valdez, supra,
27 Cal.4th at p. 783.)
Criminal negligence is not accidental conduct. It is a gross departure from the
conduct of an ordinarily prudent person. (Valdez, supra, 27 Cal.4th at p. 790.)
d. The analysis.
As nearly as we can ascertain, appellant makes a general claim the jury instruction
was flawed, confusing and failed to define key legal terms. He argues: “As given, it was
impossible for the jury to have complied with the instruction and have concluded
appellant was guilty of felony child abuse.” He asserts the statute is complex as it
contains several ways in which a person might violate its prohibitions, and “[i]n order for
it to be ‘instructive,’ it must properly be tailored to [the] circumstances of the case. This
the trial court failed to do [so].” He also concedes the trial court’s instruction charged
the jury as to both direct and indirect child abuse and then claims surplusage in the
instruction likely confused or inflamed the jury.5 He complains the trial court reneged on
an agreement to charge the jury only as to the child endangering and omitted a definition
of “bodily harm.”
He then makes the following specific complaints of error: (1) The court erred by
omitting an instruction felony child abuse is required to be committed under
circumstances and conditions likely to produce great bodily harm or death; (2) the jury
instruction failed to contain a complete definition of the term, “bodily harm,” and, as
5
In discussing his surplusage claim, appellant conceded the following in briefing:
“The trial court instructed the jury with every option, direct and indirect, and with both
mental states when it should have instructed the jury consistent with the People’s theory
of the case. As such, the jury was allowed to chose from a multitude of inapplicable
options and mental states to find appellant guilty.”
12
given, impermissibly allowed the jury to find great bodily harm was done even if it had
concluded . . . the injury was moderate”; and (3) the jury instruction improperly failed to
define the technical term, “criminal negligence.”
He argues the failings above constituted prejudicial per se error as the “deficient
and confusing instruction relieved the prosecution of the burden of proving beyond a
reasonable doubt each element of the” offense, thereby depriving him of due process
under the state and federal constitutions, as well as his constitutional right to a jury trial.
We discuss these claims below.
(i) The general complaints of error.
Appellant’s general complaint the jury instruction given was hopelessly confusing
does not rise to a showing of error, much less reversible error. Cases are frequently tried
on multiple theories of liability. Absent a showing of error, we presume jurors
comprehend and accept the trial court’s directions. The crucial assumption underlying
our constitutional system of error of trial by jury is that jurors generally understand and
faithfully follow instructions. (Hajek, supra, 58 Cal.4th at p. 1216.)
Appellant generally complains of surplusage and that the instructions were not
tailored to the prosecution’s theory of the case. However, “ ‘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.]” (Sedeno,
supra, 10 Cal.3d at p. 715.) The trial court’s duty to instruct is grounded in its evaluation
of the charges and the trial evidence in the case, not in the theories the prosecutor selects
as those most likely to secure a conviction.
Furthermore, “ ‘[t]he language of a statute defining a crime or defense is generally
an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the
defendant fails to request amplification. If the jury would have no difficulty in
understanding the statute without guidance, the court need do no more than instruct in
statutory language.’ ” (People v. Estrada (1995) 11 Cal.4th 568, 574 (Estrada).)
Here, appellant concedes the jury instructions were complete, except as he
specifies. We conclude, in this particular case, the trial court’s charge evaluated as a
13
whole, set out all the applicable elements of the offense on theories of the direct infliction
of injury and child endangering. It also informed the jury the direct infliction of injury
required willfulness, which was defined, and that child endangering required a willful act
permitting or placing the child in circumstances that risk injury or death with criminal
negligence.
“Giving an instruction that is correct as to the law but irrelevant or inapplicable is
error. (People v. Rowland [(1992) 4 Cal.4th 238,] 282.) Nevertheless, giving an
irrelevant or inapplicable instruction is generally ‘ “only a technical error which does not
constitute ground for reversal.” ’ (Ibid.)” (People v. Cross (2008) 45 Cal.4th 58, 67.)
Given appellant’s outrageous conduct, appellant cannot complain instructing on alternate
but inapplicable theories of the case was so inflammatory as to prejudice him. Moreover,
the jury was charged that “[w]hether some of the instructions apply will depend upon
what you find the facts to be. Disregard any instruction which applies to facts determined
by you not to exist.”
Insofar as appellant complains the trial court reneged on an agreement to charge
the jury only as to child endangering, the claim in part rests on a misrepresentation of the
import of the trial court’s comments in discussing the jury instructions. The trial court
agreed only to charge the jury as to the last two subparts of the pattern instruction
CALJIC No. 9.37. As phrased in that pattern instruction, the language encompasses the
direct infliction of injury, as well as indirect child abuse. There appears to be no error in
such a charge as appellant’s conduct properly could be prosecuted as either direct or
indirect child abuse. The prosecutor made no explicit election here, and none was
required. The prosecutor’s comments during final argument appear to conflate theories
of direct and indirect conduct. The trial court’s comments in discussing jury instructions
suggest it agreed only to give the latter two charges as set forth in the pattern instruction,
which is exactly what the trial court did. If trial counsel believed the trial court had
reneged on its representations as to the charge given to the jury, trial counsel would have
objected to the instruction and requested the trial court reinstruct the jury as agreed. Trial
14
counsel in this instance made no objection to the jury instructions after the trial court had
completed its charge.6
We conclude the trial court did not err by failing to tailor the instruction to the
elements at issue, and any surplusage in the trial court’s instructions was nonprejudicial.
(ii) The specific complaints of error.
(a) The complaint the written instruction was incomplete.
In the modified CALJIC No. 9.37, the trial court charged the jury in pertinent part
the prohibited child abuse must occur “under circumstances or conditions likely to
produce great bodily harm or death.” Appellant argues the omission of this element of
the offense in the trial court’s written instructions likely confused the jury and prejudiced
him, thereby denying him due process and his right to a jury trial. We disagree.
Appellant never objected to the jury instructions on this ground. Consequently,
there is a forfeiture. However, we will address this claim on the merits to forestall his
claim of ineffective trial counsel. (Strickland v. Washington (1984) 466 U.S. 668, 697;
People v. Kipp (1998) 18 Cal.4th 349, 366-367 [“If a defendant has failed to show that
the challenged actions of counsel were prejudicial, a reviewing court may reject the claim
on that ground without determining whether counsel’s performance was deficient.”].)
On the merits, in the second and third paragraphs of the instruction, the trial court
charged the jury in the statutory language of the offense and informed the jury a
conviction required a finding the child abuse must occur “under circumstances or
conditions likely to produce great bodily harm or death.” The trial court also charged the
jury as to this element twice during its oral charge, particularly citing the element in the
latter part of its instructions where it was specific concerning the elements of child abuse.
In its written instructions, this latter advice was crossed off. However, next to the
6
We note the newer pattern instruction for felony child abuse in CALCRIM
No. 821 employs a different interpretation of the terms of section 273a. As those pattern
instructions apply here, we find no error in either interpretation of the statute. We were
unable to find any case authority holding CALJIC No. 9.37’s interpretation of section
273a is error where the conduct involved in the case fairly can be prosecuted as both
direct and indirect child abuse.
15
crossed-off text, the trial court had written, “IN,” in the left margin, indicating that it had
erred by crossing out that portion of the instruction. In addition, the prosecutor
commented in final argument, the abuse must take place “under circumstances likely to
produce great bodily harm or death.”
Appellant informs us when there is a discrepancy between the oral and written
instructions, we must presume the jury was guided by the written instructions. (People v.
Sparks (2002) 28 Cal.4th 71, 75, fn. 3.) However, we find the principle does not apply
here. There were no significant discrepancies between the trial court’s written and oral
instructions. We view the jury instructions as a whole and in the light of the trial court’s
oral instructions and the prosecutor’s final argument. In the circumstances, the jury
would have been well aware the abuse must take place “under circumstances likely to
produce great bodily harm or death.” There was no error or constitutional violation.
(b) Providing a further explanation as to the term “great
bodily harm.”
The trial court charged the jury, “Great bodily harm refers to significant or
substantial injury and does not refer to trivial or insignificant injury.” On appeal,
appellant complains the trial court failed to add to its charge the further phrase “great
bodily harm does not include moderate injury.” The claim is forfeited as no request was
made at trial for such an instruction.
Nevertheless, we address appellant’s claim on the merits to forestall appellant’s
claim of ineffective trial counsel, notwithstanding his substantial rights are not affected
thereby. (See People v. Lucas (2014) 60 Cal.4th 153, 300 [finding appellant’s failure to
be present at the readback of testimony did not affect the defendant’s substantial rights].)
On the merits, a trial court properly could have declined to modify the existing
definition of “bodily harm” by the reference to “moderate injury.” The charge given,
“Great bodily harm” requires more than an insignificant or trivial injury and is a correct
and complete statement of law requiring no further definition. (People v. Wolcott (1983)
34 Cal.3d 92, 108-109; § 12022.7, subd. (f) [“As used in this section, ‘great bodily
injury’ means a significant or substantial physical injury”]; see People v. Clark (2011)
16
201 Cal.App.4th 235, 243-245 (Clark) [addressing a similar issue in the context of
substantial evidence]; see also People v. Escobar (1992) 3 Cal.4th 740, 750, overruling
People v. Caudillo (1978) 21 Cal.3d 562; People v. Le (2006) 137 Cal.App.4th 54, 58-
60.)
Also, adding language to the instruction indicating no moderate injury is included
within “great bodily harm” might have confused the jury. The additional amplification
might cause an undue focus on whether an injury actually occurred and its specific
nature. “Section 273a does not focus upon actual injury produced by abusive actions but
‘rather upon whether or not the attendant circumstances make great bodily injury likely.
Occurrence of great bodily injury is not an element of the offense.’ [Citation.] It is the
likelihood of foreseeable injury, rather than whether such injury in fact occurs, that is
relevant. [Citation.]” (People v. Lee (1991) 234 Cal.App.3d 1214, 1220.)
Moreover, this point was not at issue. No reasonable juror would have believed
appellant’s conduct risked only moderate injury when appellant had stabbed S. when S.
was only four feet from the daughters.
(c) The failure to further define “criminal negligence.”
Appellant contends the trial court’s instruction failed to further define for the jury
the term “criminal negligence,” which is required with charges of indirect child abuse,
i.e., child endangerment. The Attorney General concedes error as the court in Valdez,
supra, 27 Cal.4th at page 783, settled the issue. Defining “criminal negligence” is
required so the jury knows the standard by which it must judge the breach of the duty of
care to the child. (See also People v. Peabody (1975) 46 Cal.App.3d 43, 48-49 [where
endangerment is at issue the jury must be informed “the defendants’ conduct must
amount to a reckless, gross or culpable departure from the ordinary standard of due care;
it must be such a departure from what would be the conduct of an ordinarily prudent
person under the same circumstances as to be incompatible with a proper regard for
human life.”].)
17
“In general the trial court has a sua sponte duty to give amplifying or clarifying
instructions ‘ “where the terms used [in an instruction] have a technical meaning peculiar
to the law.” ’ ” (People v. Richie (1994) 28 Cal.App.4th 1347, 1360.)
“When . . . the federal constitutional error involves the trial court’s failure to
instruct on a necessary element, reversal is required under the Chapman test when ‘the
defendant contested the omitted element and raised evidence sufficient to support a
contrary finding” (Neder v. United States (1999) 527 U.S. 1, 19); but the error is not
prejudicial when it is clear ‘beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence’ (id. at p. 17).” (People v.
Huggins (2006) 38 Cal.4th 175, 259; see also People v. Gonzalez (2012) 54 Cal.4th 643,
666 (Gonzalez).)
This court concludes it was error in this instance to fail to define the term,
“criminal negligence.” The courts in Valdez and Peabody found error in the failure to
define this term without discussing whether the error is Watson or Chapman error.
(People v. Watson (1956) 46 Cal.2d 818 (Watson); Chapman v. California (1967)
386 U.S. 18, 24 (Chapman).)
But regardless of whether the failure to define this term is mere state error or
federal constitutional error, the result is the same -- the error is harmless. The verdicts
and findings for count 1 indicate the jury concluded appellant attacked his wife viciously
with a knife. It also concluded in count 2 appellant personally inflicted injury by the use
of a knife. The witnesses agreed on one scenario: during the melee, appellant
approached his wife, stabbing at her. Despite some contrary testimony, the jury resolved
the issue of the use of the knife against appellant in both charged offenses. The children,
who were four feet away, predictably jumped in to assist their mother. There could be no
dispute at trial appellant’s conduct was reckless. No reasonable parent would plan or
make a knife attack on his or her spouse within an arm’s reach of his children. The
teenagers were reasonably likely to be physically injured by their proximity to, or in an
attempt to stop, the fray. The evidence of criminal negligence was overwhelming, and
appellant introduced no contrary evidence on the issue of whether his conduct constituted
18
criminal negligence at trial. (Gonzalez, supra, 54 Cal.4th at p. 666.) The trial court
charged the jury criminal negligence was an element of indirect child abuse. The
prosecution referred to that element in its final comments to the jury and referred
specifically to the undisputed conduct described by the witnesses as constituting criminal
negligence. Given this one scenario, the jury necessarily determined appellant acted
recklessly, i.e., with criminal negligence.
In the alternative, appellant argues his trial counsel was constitutionally
ineffective. But it is apparent here appellant suffered no prejudice from trial counsel’s
failure to bring to the trial court’s attention the need to define the term “criminal
negligence.” Making a proper request to define the term “criminal negligence” would not
have assisted appellant. The undisputed evidence overwhelmingly established that
element of the offense.
c. Cumulative instructional error.
Appellant also argues that the cumulative errors in the trial court’s jury
instructions require a per se reversal. (E.g., Sullivan v. Louisiana (1993) 508 U.S. 275,
277-278.) In People v. Mil (2012) 53 Cal.4th 400, 409-417, our Supreme Court set out
the test for determining whether structural error, or harmless error, has occurred: “The
critical inquiry, in our view, is not the number of omitted elements but the nature of the
issues removed from the jury’s consideration. Where the effect of the omission can be
‘quantitatively assessed’ in the context of the entire record (and does not otherwise
qualify as structural error), the failure to instruct on one or more elements is mere ‘ “trial
error” ’ and thus amenable to harmless error review.”
Appellant raises only one possible technical error with respect to surplusage and
one instructional error, the latter of which this court finds on the facts presented is
harmless beyond a reasonable doubt. There is no structural error. (People v. Mil, supra,53 Cal.4th at p. 416.) Even if viewed cumulatively, the errors are merely harmless
beyond a reasonable doubt.
19
2. The trial court should have instructed the jury as to a lesser included offense.
Appellant contends the trial court had a sua sponte duty to instruct the jury on a
lesser included offense of misdemeanor child abuse, the offense stated in section 273a,
subdivision (b). He cites the decision in Beck v. Alabama (1980) 447 U.S. 625, 637,
claiming the court must evaluate the error under Chapman, in lieu of the decision in
Watson.
The elements of felony child abuse under subdivision (a) of section 273a and the
misdemeanor provision, subdivision (b) of that section, are identical, with one exception.
To prove felony child abuse, the prosecution must demonstrate the abuse occurred under
“circumstances or conditions likely to produce great bodily harm or death.” (§ 273,
subd. (a); People v. Burton (2006) 143 Cal.App.4th 447, 454, fn. 4.)
A trial court’s obligation to give a sua sponte instruction has been held to include
giving instructions on lesser included offenses only where the evidence raises a question
as to whether all of the elements of the charged offense are present. However, the court
has no obligation to charge as to a lesser included offense where there is no evidence the
offense is less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154
(Breverman).)
Here, there is no substantial evidence supporting an instruction on the lesser
included misdemeanor offense of child abuse. The circumstances under which appellant
sliced C. on the knee in the melee posed a substantial danger of producing great bodily
harm or death. No rational jury would find otherwise. Consequently, there is no error.
Nor is there federal error. As is pointed out in Breverman, supra, 19 Cal.4th 142,
at pages 166 to 169, the United States Supreme Court’s decisions leave substantial doubt
the federal Constitution confers any right to lesser included offense instructions in
noncapital cases. They provide no basis for a conclusion the federal charter would
require such instructions. The right to sua sponte instructions on all lesser necessarily
included offenses supported by the evidence derives exclusively from California law.
(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1144 & fn. 10.)
20
3. Sufficient evidence supports the jury’s verdict of guilty of attempted voluntary
manslaughter.
Appellant contends the evidence is insufficient to support the guilty verdict in
count 1, attempted voluntary manslaughter.
Appellant makes the following argument. At trial, the prosecutor commented
during final argument appellant had the requisite specific intent required for a conviction
of attempted voluntary manslaughter as he brought a knife to the meeting and became
angry. Rather than punching S. in the stomach, appellant stabbed S. in a manner
calculated to cause death. On appeal, appellant argues the evidence supporting the
prosecutor’s theory was insufficient to show beyond a reasonable doubt appellant acted
with the specific intent to kill.
a. The standard of review.
In People v. Whisenhunt (2008) 44 Cal.4th 174, the California Supreme Court
summarized the well-established standard of review. “ ‘In reviewing a challenge to the
sufficiency of the evidence, we do not determine the facts ourselves. Rather, we
“examine the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—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.” [Citations.] We presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same
standard of review applies to cases in which the prosecution relies primarily on
circumstantial evidence . . . . [Citation.] “[I]f the circumstances reasonably justify the
jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.” [Citation.] We do not
reweigh evidence or reevaluate a witness’s credibility. [Citation.]’ [Citation.]” (Id. at
p. 200.)
“ ‘ “Although an appellate court will not uphold a judgment or verdict based upon
evidence inherently improbable, testimony which merely discloses unusual circumstances
does not come within that category. [Citation.] To warrant the rejection of the
21
statements given by a witness who has been believed by the [trier of fact], there must
exist either a physical impossibility that they are true, or their falsity must be apparent
without resorting to inferences or deductions. [Citations.] Conflicts and even testimony
which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is
the exclusive province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends. [Citation.]”. . . .’
[Citation.]” (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 306.)
The uncorroborated testimony of a single witness is sufficient to sustain a
conviction unless it is physically impossible or inherently improbable. (People v. Young
(2005) 34 Cal.4th 1149, 1181.) Indeed, “ ‘[t]he testimony of a single witness is sufficient
to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as
to other portions. [Citations.]’ ” (In re Robert V. (1982) 132 Cal.App.3d 815, 821.)
b. Other relevant legal authorities.
Voluntary manslaughter is the unlawful killing of a human being “upon a sudden
quarrel or heat of passion.” (§ 192, subd. (a).) “Voluntary manslaughter is a lesser
included offense of murder when the requisite mental element of malice is negated by a
sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the
necessity of self-defense.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.)
The completed crime of voluntary manslaughter may be committed with either an
intent to kill or implied malice, i.e., a conscious disregard for life. (People v. Lasko
(2000) 23 Cal.4th 101, 104; People v. Blakeley (2000) 23 Cal.4th 82, 91.) However,
attempted voluntary manslaughter requires proof of an intent to kill, not of only a
conscious disregard for life. (People v. Montes (2003) 112 Cal.App.4th 1543, 1546-
1547.)
c. The analysis.
Appellant argues the evidence is insufficient to support appellant’s conviction of
attempted voluntary manslaughter as “there was no competent reliable evidence
supporting the prosecutor’s theory” appellant brought the folding knife with him to
Sorn’s apartment. It is irrelevant to the validity of the verdict whether the evidence is
22
sufficient to support the prosecution’s theory of the case. When an appellant raises an
issue of insufficient evidence, the question this court addresses is not whether the
evidence is consistent with the prosecutor’s and trial counsel’s closing arguments or
theories of the case. We address whether the trial evidence is of solid and credible value
in supporting a rational conclusion by the jury that appellant committed the charged
offenses.
Here, the jury rejected the prosecution’s claim of attempted deliberate and
premeditated murder and found appellant guilty of the lesser included offense of
attempted voluntary manslaughter. The trial court orally and in its written instructions
informed the jury the specific intent to kill was necessary for a finding of guilt of
attempted voluntary manslaughter.7
7
In its oral instructions, the trial court charged the jury as to the elements of
attempted murder, explaining both malice aforethought and the specific intent to kill were
necessary elements. It told the jury the lesser included offense, attempted voluntary
manslaughter, had the following elements. “Voluntary manslaughter is the attempted
killing of a human being without malice aforethought. There is no malice aforethought if
the killing or attempted killing occurred upon a sudden quarrel or heat of passion or in the
act -- Let me start that again. [¶] There is no malice aforethought if the killing or
attempted killing occurred upon the sudden quarrel or heat of passion. [¶] In order to
prove this crime, each of the following elements must be proved: [¶] 1. A direct but
ineffectual act was done by one person toward killing another human; 2. That person had
the specific intent to kill; [¶] 3. The actions taken to kill were unlawful. [¶] Notice there
is no malice aforethought. [¶] In deciding whether a direct but ineffectual act was
committed -- and that’s the definition of the attempt that I have already read to you. I am
not going to read that portion again. [¶] To reduce an unlawful killing from murder to
manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must
be of the character and degree as naturally would excite and arouse the passion, and the
assailant must act under the influence of that sudden quarrel or heat of passion.”
The written instructions given to the jury charged it with CALJIC No. 8.41, as
follows: “Every person who unlawfully attempts without malice aforethought to kill
another human being is guilty of the crime of attempted voluntary manslaughter in
violation of sections 664 and 192, subdivision (a) of the Penal Code, a crime. [¶]
Voluntary manslaughter is the unlawful killing of a human being without malice
aforethought. [¶] There is no malice aforethought if the killing or attempted killing
occurred upon a sudden quarrel or heat of passion. [¶] In order to prove this crime, each
of the following elements must be proved: [¶] 1. A direct but ineffectual act was done
23
Appellant’s conduct circumstantially supports the jury’s finding of the specific
intent to kill. Appellant apparently had anticipated his wife would not be compliant with
his wishes, and in that event, he planned to fatally stab her in order to keep his children
with him in California. The evidence supported a jury conclusion appellant brought at
least one knife with him to the meeting with his former wife. Furthermore, the manner of
his attack demonstrated the specific intent to kill. Appellant suddenly rushed at S.,
stabbing her several times, and at least once deep in the abdomen. The intentional blow
with the knife into her abdomen supports a strong inference he intended to kill S. by
fatally damaging her internal organs.
It is settled such conduct demonstrates sufficient evidence of an intent to kill. (See
People v. Smith (2005) 37 Cal.4th 733, 741-742, citing People v. Arias (1996) 13 Cal.4th
92, 162, [an intent to kill can be inferred from a defendant’s purposeful use of a lethal
weapon with lethal force, even if the act was done without advance consideration and
only to eliminate a momentary obstacle or annoyance]; People v. Bolden (2002)
29 Cal.4th 515, 561 [there was no doubt the perpetrator had the intent to kill where the
victim died from a single stab wound to the back that penetrated the victim’s lungs and
spleen and was five inches long and five to six inches deep and there was no evidence of
by one person towards killing another human being; and [¶] 2. That person had the
specific intent to kill the other person; and [¶] 3. The actions taken to kill were
unlawful. [¶] In deciding whether a direct but ineffectual act was committed, it is
necessary to distinguish between mere preparation, on the one hand, and the actual
commencement of the doing of the criminal deed, on the other. Mere preparation, which
may consist of planning the killing or of devising, obtaining or arranging the means for
its commission, is not sufficient to constitute an attempt. However, acts of a person who
intends to kill another person will constitute an attempt . . . where those acts clearly
indicate a certain, unambiguous intent to kill. The acts must be an immediate step in the
present execution of the killing, the progress of which would be completed unless
interrupted by some circumstances not intended in the original design.” (Italics added.)
The trial court also charged the jury with CALJIC Nos. 8.42, 8.43 and 8.44,
concerning Sudden Quarrel or Heat of Passion and Provocation Explained, Murder or
Manslaughter -- Cooling Period, and Specific Emotion Alone Constitutes Heat of
Passion.
24
a struggle].) The evidence adduced at trial amply supports appellant’s conviction of
attempted voluntary manslaughter.
4. Sufficient evidence supports the jury’s verdict of guilty of felony child abuse.
Appellant contends the trial evidence is insufficient to support the jury’s verdict he
was guilty of felony child abuse.
a. The relevant legal authority.
The standard of review is the same as that set out in contention 3 of this opinion,
ante.
We have previously set out the elements of the offense of child abuse in its
statutory terms and also quoted extensively from Valdez, supra, 27 Cal.4th 778, which
fully explains the elements of the offense.
b. The analysis.
Appellant contends the evidence is insufficient to support his conviction of felony
child abuse. He argues there is an absence of evidence establishing beyond a reasonable
doubt appellant acted either willfully or was criminally negligent or that his conduct was
committed under circumstances likely to produce great bodily harm.
At the outset, we must clarify six points.
One, this court does not evaluate the sufficiency of the evidence based on the
theory the prosecutor articulates during his or her final comments to the jury. The
question this court addresses is whether the trial evidence supports a rational conclusion
appellant committed the offense within the limitations of the charges in the information
and delineated by the trial court’s jury instructions.
Two, in this case, the trial court charged the jury on theories of direct and indirect
child abuse with the following: “In order to prove this crime, each of the following
elements must be proved: [¶] 1. A person who had care or custody of a child [¶]
willfully caused or, willfully and as a result of criminal negligence, permitted the child to
be injured; or [¶] willfully caused or, willfully and as a result of criminal negligence,
permitted the child to be placed in a situation where his or her person or health may be
25
endangered; and [¶] 2. The person’s conduct occurred under circumstances likely to
produce great bodily harm or death.”
Three, regardless of the trial court’s or the prosecutor’s intent in drafting such
instructions, the instructions encompass theories of direct and indirect felony child abuse.
Therefore, for purposes of assessing the sufficiency of the evidence, we shall evaluate the
trial evidence against the language of section 273a, subdivision (a), keeping in mind child
endangerment requires criminal negligence.
Four, the word “willfully” as used in the child endangerment provisions of section
273 “ ‘when applied with the intent to which an act is done or omitted, implies simply a
purpose or willingness to commit the act or make the omission referred to. It does not
require an intent to violate [the] law, or to injure another, or to acquire any advantage.’ ”
(Valdez, supra, 27 Cal.4th at pp. 787-788.) Criminal negligence is not accidental
conduct, nor does it constitute ordinary negligence. It is a gross departure from the
conduct of an ordinarily prudent person. (Id. at p. 790.)
Five, the act here of willfully causing a child to be injured has elements similar to
battery of an unintended victim. (See Valdez, supra, 27 Cal.4th at p. 787; People v.
Trujillo (2010) 181 Cal.App.4th 1344, 1354 [“a defendant who harbors the requisite
mental state for assault while committing one or more acti rei such that a direct, natural,
and probable result is a battery against two persons may be convicted of assault against
each”]; see also People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1189 [the test for
whether the battery also occurred on the unintended victim of an assault “is whether an
objectively reasonable person with knowledge of these acts would appreciate that . . . a
battery would directly and probably result from his actions”].)
Six, we note the phrase “circumstances likely to produce great bodily harm or
death” in section 273a means “ ‘the probability of serious injury is great.’ ” (Sargent,
supra, 19 Cal.4th at p. 1223; People v. Chaffin (2009) 173 Cal.App.4th 1348, 1351-1353;
contra, People v. Wilson (2006) 138 Cal.App.4th 1197, 1204 [holding that “likely” as
used in section 273a means there likely is a substantial danger, i.e., a serious and well-
founded risk, of great bodily harm or death].)
26
Here, while the adults were talking, C. and Ch. were not paying attention, but
talking among themselves and playing on their mobile phones. They were four feet from
S. when appellant suddenly jumped up, rushed at S. and hugged S. to him, swinging the
knife wildly in order to stab at S. with sufficient force to cause a fatal wound. S. and
appellant fell to the ground and wrestled.
Predictably, when Sorn and the teenagers realized appellant was attacking S., they
jumped up and attempted to hold appellant back and pull him away so S. could escape
from the apartment. In the melee, appellant sliced C. in the knee, as well as landed the
potentially fatal stab wound to S.’s abdomen and stabbed S. several times on the arms
and hands.
The above evidence is sufficient to support appellant’s conviction of indirect child
abuse in circumstances likely to produce great bodily harm or death. Appellant
endangered his two daughters when he attacked his former wife in close proximity to
them. The daughters were in range of the attack as their mother was sitting within four
feet. It was reasonably foreseeable the teenagers and Sorn would come to S.’s aid upon
the attack. The attack demonstrates criminal negligence. A reasonable person would not
have engaged in such conduct in such close proximity to his own teenagers. And,
a reasonable person would have realized the attack in such close quarters was likely to
result in serious bodily harm or death to the teenagers.
Apparently, appellant did not seriously injure C. However, the circumstances of
his flailing around with the knife while his daughters grabbed him bodily to prevent the
stabbing made it likely he might cause a more serious injury to the other participants in
the melee. In this melee, one of the girls could have lost an eye, been disfigured or had a
body part severed resulting in a serious handicap. Even the apparently shallow cut
suffered by C. on a knee might easily have severed critical tendons, leaving her crippled.
Appellant argues there is no evidence of direct child abuse. However, here,
appellant was well aware of his children’s presence four feet from S. and that probably,
Sorn and the teenagers would intervene once they realized appellant was attempting to
injure S. In the circumstances, appellant’s course of conduct amounted to willfully
27
causing injury to C. A reasonable person would have been aware a battery of the others
in the room might directly and probably result from wildly flailing away at his wife with
the knife.
We also reject appellant’s claim Officer Torres’s testimony is insubstantial in
supporting the verdict insofar as the officer claimed at the hospital Ch. told him she saw
appellant swing the knife and cut C. C. testified she felt numbness in her knee during the
melee, and immediately afterwards, she looked down and discovered she was bleeding.
This evidence is sufficient circumstantial evidence to support appellant’s conviction of
felony child abuse without reference to Ch.’s out-of-court statement to Officer Torres.
Nevertheless, Evidence Code section 1235 permits the use of prior inconsistent
statements at trial as substantive evidence of guilt. (People v. Guerra (2006) 37 Cal.4th
1067, 1144, overruled in part on other grounds in People v. Rundle (2008) 43 Cal.4th 76,
151; People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4.) At trial, it was apparent the
witnesses, appellant’s friend and family, attempted to ameliorate appellant’s punishment
by denying appellant brought a knife to the meeting or that they had observed him with a
knife during the melee. Based on the officer’s testimony, it was reasonable for the jury to
conclude Ch. told the truth to the officer at the hospital, but at trial, Ch. hedged
concerning her observations of the knife in order to reduce appellant’s punishment. This
court does not reweigh evidence or reevaluate witness credibility. (People v. Alexander
(2010) 49 Cal.4th 846, 917.) It was up to the jury to determine whether the officer’s
testimony was credible in supporting a conclusion C. was injured by appellant’s flailing
knife.
To support his claim of insufficient evidence, appellant cites several cases
involving severe neglect. Then he argues, by contrast, the facts in this case are not severe
enough to demonstrate criminal negligence. However, the trial evidence here was
sufficient for a rational jury to conclude appellant acted recklessly and in a gross
departure from the way an ordinarily careful person would act in the same situation. The
infliction of injury did not amount to mere negligence or accident.
5. The Pitchess motion.
28
Appellant has requested an independent review of the in camera Pitchess
proceedings conducted by the trial court. (Pitchess, supra, 11 Cal.3d 531.)
a. Background.
On June 11, 2013, appellant filed a Pitchess motion. He requested the names and
addresses and contact information for all witnesses to any prior complaints filed against
Officer Gutierrez for acts involving moral turpitude. He requested any records of
statements or testimony given in relation to such complaints given by any witnesses.
Specifically, the supporting affidavit claimed appellant was charged with attempted
deliberate and premeditated murder and felony child abuse. On the date of the alleged
offense, Officer Gutierrez had spoken to appellant after a Miranda waiver. (Miranda v.
Arizona (1966) 384 U.S. 436.) The officer indicated in his report appellant told him he
was angry because his former wife wished to take the children with her to Kentucky. He
wanted the children to remain in Long Beach where he lives. Appellant admitted he had
stabbed his wife. Trial counsel claimed in the motion’s supporting affidavit that the
defense might well deny appellant made those statements at the trial.
On June 24, 2012, the trial court held a Pitchess hearing. At the hearing, trial
counsel argued even if appellant admitted making a statement to Officer Gutierrez, he
may well claim at trial the officer’s description in the arrest report concerning appellant’s
statement was incorrect and inaccurate. The trial court granted appellant’s motion for
disclosure. It later held an in camera review of any complaints Officer Gutierrez had that
were related to moral turpitude. The trial court ruled the scope of the hearing would be
limited to whether there were any allegations of filing a false police report against Officer
Gutierrez.
After an in camera review, the court ordered disclosure of certain discoverable
information.
29
b. The relevant authority.
The California Supreme Court in its decision in People v. Mooc (2001) 26 Cal.4th
1216, 1228, authorized appellate courts to review in camera Pitchess proceedings for
error. During an in camera hearing pursuant to Pitchess, the “trial court should then
make a record of what documents it examined before ruling on the Pitchess motion.
Such a record will permit future appellate review. If the documents produced by the
custodian are not voluminous, the court can photocopy them and place them in a
confidential file. Alternatively, the court can prepare a list of the documents it
considered, or simply state for the record what documents it examined.” (Mooc, at
p. 1229.) The standard for review is an abuse of discretion. (Id. at p. 1228; People v.
Samayoa (1997) 15 Cal.4th 795, 827 [trial courts have wide discretion when ruling on
motions to discover police officers’ personnel records].)
We have independently reviewed the sealed reporter’s transcripts of the in camera
hearings, and the trial court’s decision regarding the discoverability of material it found
in the officer’s personnel files. The transcripts constitute an adequate record of the
documents provided to, and reviewed by, the trial court in the hearings. Based on our
review of the court’s findings, we conclude the court fulfilled its responsibilities and
properly exercised its discretion with regard to any discovery it denied. (People v. Mooc,
supra, 26 Cal.4th at pp. 1228-1229.) The trial court conducted a diligent and thorough
review of pertinent documents in the deputies’ personnel files before concluding that only
certain evidence was properly discoverable. There was no error.
30
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
EDMON, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
31