Opinion
E064735
05-18-2017
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR LEE HOLMES, Defendant and Appellant.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI902724) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed with directions. Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Arthur Lee Holmes of second degree murder and assault causing the death of his girlfriend's nine-month-old son. The trial court sentenced him to a total of 40 years to life in prison, comprised of 25 years to life for the assault and a consecutive term of 15 years to life for the murder.
On appeal, Holmes argues his assault conviction must be reversed because there was insufficient evidence the infant was in his "care or custody" at the time of the injury. He also contends the court improperly instructed the jury on the definition of those terms by reading the following language from this court's decision in People v. Cochran (1998) 62 Cal.App.4th 826, 832 (Cochran): "The terms 'care or custody' do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver." Holmes argues that if we uphold his assault conviction, we must stay the sentence on the murder because it is based on the same act or indivisible course of conduct as the assault. (Pen. Code, § 654.)
We agree Penal Code section 654 requires us to stay the sentence on the murder count, but in all other aspects, we affirm the judgment. The assault conviction stands because the jury instruction based on Cochran is a correct statement of the law and the record contains substantial evidence to support the jury's finding the victim was in Holmes's care or custody when Holmes killed him.
I
FACTUAL BACKGROUND
The victim is 9-month-old W.L. Around 11:00 p.m. on December 13, 2007, W.L.'s mother, Kristina, called the paramedics from her Hesperia apartment because W.L. was breathing abnormally and had thrown up. W.L. was taken to the hospital with extensive skull fractures and severe retinal hemorrhaging. He was pronounced brain dead on December 14 and taken off life support a few days later.
The jury heard extensive expert evidence on the nature and cause of W.L.'s injuries, and based on that evidence, determined Holmes had intentionally killed the child. Because Holmes does not challenge those findings, however, we focus our factual summary on the trial evidence relevant to whether W.L. was in Holmes's "care or custody" at the time of the assault.
A. Prosecution's Evidence
1. W.L.'s mother (Kristina)
Kristina testified Holmes came to her apartment around 5:00 p.m. on December 13, carrying computer equipment. She had been dating Holmes, whom she knew only as Jack Blackheart, for about three months. She said he did not live at her apartment permanently, but "would come and go." She estimated he had been to her place about 40 times since they met.
Holmes said Blackheart was his "stage name."
Around 5:00 or 6:00 p.m., Kristina began making dinner while Holmes sat at the kitchen table, working on the computer equipment. W.L. was in the living room in his rocking chair. The couple ate dinner, talked, and watched television on the living room couch until about 8:30 p.m., when Kristina got up to take a shower. She left W.L. in the rocking chair and was gone for about 20 to 30 minutes. When she came back into the living room, Holmes was sitting on the couch. Kristina noticed W.L.'s breathing seemed abnormal, as if he were gasping for air.
Kristina moved to pick W.L. up and thought it was strange that as she did so Holmes "ran and grabbed him and took him outside." Holmes started hitting W.L. on the back and told Kristina she "better call somebody." Kristina called her friend's father and also her own father, who told her to call 911. While she was on the phone, Holmes came back inside with W.L. and W.L. spit up. Kristina called the police and the paramedics arrived and took the child to the hospital.
Kristina testified Holmes had never given her a reason to worry about her son's safety in his presence. Before going into the bathroom, she had told Holmes she was going to take a shower and was leaving W.L. in his rocking chair. She clarified she had not left W.L. with Holmes, "like, for him to take care of," but then agreed that, as the only adult in the room, Holmes was "in charge" of her son while she was showering.
2. Holmes's police interviews
Holmes was arrested at his son's mother's home in Victorville on December 14, 2007. A detective from San Bernardino's child abuse unit interviewed him several times from December 14 through 20, and the prosecution played recordings of the interviews for the jury. Holmes initially claimed he had no idea how W.L. had been injured, but as the interviews progressed, he told the detective he had accidentally dropped a computer tower on W.L.'s head and then accidentally hit the child's head on the kitchen counter.
Holmes did not tell Kristina he had injured her son because he was scared of losing her. They had built up a trust he did not want to destroy. Instead of calling for help, Holmes rubbed W.L.'s head to comfort him, "same as I'd do with my son." Throughout his interviews, Holmes expressed affection for W.L. He broke down in tears when the detective showed him photographs of W.L. lying in the hospital bed and at one point commented that he wanted to see W.L. "so bad."
Holmes told the detective he had "major love" for Kristina and knew she and W.L. were a "package deal." He and Kristina "used to always play with [W.L.]" and tell him, "'You a good kid.'" He had been hoping to "hook [W.L.] up with [his] son" who was only two months older than W.L. by setting up "play dates." Holmes said he and Kristina had even talked about him adopting W.L. He said Kristina was "always" bringing up "those conversations" and they had talked about adoption as recently as the day before the incident. He called Kristina his "woman," adding, "[W.L.] was gonna be my little brat, my son."
B. Defendant's Testimony
At trial, Holmes told a different story than the one he told the detective during his interviews. He said he drank a copious amount of rum that evening and "passed out" when Kristina was in the shower. He claimed he had no idea how W.L. had been injured. He said he did not accompany Kristina to the hospital because he had to remove his narcotics from her apartment before the police arrived.
When the prosecutor asked Holmes if he had lied to the detective about dropping the tower on W.L.'s head and accidentally hitting his head on the kitchen counter, Holmes replied, "everything I said to him was pretty much a lie except for the fact that I told him that everything I told him was going to be a lie." Holmes added, "he wasn't leavin' me alone anyways . . . I guess I figured he was gonna keep houndin' me until I gave him information on whatever the case may be." The prosecutor asked Holmes if he often lies to the police, to which Holmes responded, "Every chance I get."
II
DISCUSSION
Holmes contends there was insufficient evidence to support the jury's implicit finding that W.L. was in his "care or custody" at the time of the assault. He argues his relationship with W.L. was insignificant and that he just happened to be there when Kristina left the room to shower. He also argues the trial court erred when it answered the jury's question about the meaning of "care" in section 273ab by providing language from Cochran, supra, 62 Cal.App.4th 826. We take each contention in turn.
Unlabeled statutory citations refer to the Penal Code.
A. Sufficiency of the Evidence
When a defendant challenges the sufficiency of the evidence supporting his or her conviction, "'the relevant question 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.'" [Citation.] '[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] 'Unless it is clearly shown that 'on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict[s,]' we will not reverse. [Citation.]'" (People v. Perez (2008) 164 Cal.App.4th 1462, 1468-1469 (Perez).)
Under section 273ab, "Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life." (Italics added.) In Cochran, this court held that section 273ab does not require a defendant to occupy a formal "caretaker" role with regard to the victim. (Cochran, supra, 62 Cal.App.4th at p. 832.) Because the provision seeks to protect young children who are particularly vulnerable, we concluded there was "no special meaning to the terms 'care and custody' beyond the plain meaning of the terms themselves. The terms 'care or custody' do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver." (Ibid., italics added.)
Several years after Cochran, our colleagues in Division One provided further guidance on the term "care" as used in child abuse statutes. (Perez, supra, 164 Cal.App.4th 1462.) Perez involved section 273a, the child endangerment analog to section 273ab, which, like section 273ab, requires the victim be in the "care or custody" of the defendant. (§ 273a.) As Holmes does here, Perez argued his relationship with the victim was insufficient to rise to the level of caretaker and cited to cases involving defendants with "a more clearly defined role" in the victim's life. (Perez, at pp. 1469-1470, citing Cochran, supra, 62 Cal.App.4th at pp. 832-833, [child lived in defendant's home at defendant's invitation, and defendant had assumed "parent-like" role]; People v. Culuko (2000) 78 Cal.App.4th 307, 335 [defendant lived with mother, "took care of the baby," and "at times, [he] was left alone with the baby"]; Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 260 [defendant was a licensed daycare provider].)
The Perez court disagreed the statute requires the defendant to occupy a clearly defined role in the victim's life. "Whether one is 'caring' for a child is determined not by agreement, but instead, as a matter of fact based upon the surrounding circumstances." (Perez, supra, 164 Cal.App.4th at p. 1471.) The court held the term "care" "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." (Id. at p. 1469, italics added.) It explained: "[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." (Id. at p. 1476, italics added; accord, People v. Morales (2008) 168 Cal.App.4th 1075, 1083 (Morales).)
The particular conduct and circumstances in Perez were that the great-niece would often stay at the residence where Perez lived with his sister. Perez's sister was in charge of caring for the child during those times; however, the child testified Perez was always at the house when she was there, and the record indicated there were times Perez was the only awake adult in the house when she was there. (Perez, supra, 164 Cal.App.4th at pp. 1466, 1471.) The court concluded this evidence permitted a reasonable inference the child "was left in [Perez's] care on such occasions" and that he "was much more than an acquaintance who had only minimal contact with [the child]." (Id. at p. 1471.)
Similarly here, the jury heard sufficient evidence to reasonably infer Holmes was much more than an acquaintance to Kristina and W.L. and that Kristina had left W.L. in Holmes's care when she took a shower. Kristina and Holmes were dating and, according to Kristina, Holmes spent a significant amount of time at her home. Kristina testified she had told Holmes she was taking a shower and leaving W.L. in his rocking chair. Furthermore, the jury saw the videos of Holmes's interviews where he expressed concern and affection for W.L. and cried when he saw photographs of the child's injuries. In one such interview, Holmes told the detective Kristina frequently discussed adoption with him and had broached the subject as recently as the day before the incident. From all of this evidence, the jury could conclude Kristina viewed Holmes as someone who could care for W.L. and had assumed he would do so while she showered.
Holmes attempts to downplay his relationship to Kristina and contends he never babysat W.L. in the past and was "simply there" when Kristina placed the infant in his rocker and took a shower. At trial, during closing, defense counsel made a similar argument by comparing Kristina's actions to those of a hypothetical baseball game spectator who left her child in the stadium seat next to a stranger when she went to the restroom. It is clear the jury rejected this characterization and instead believed Holmes's statements to the detective about the more committed nature of their relationship.
Holmes makes much of Kristina's testimony that she had not "left" her son for "[Holmes] to care for." However, Kristina's opinion about what it means to leave her son "for [someone] to care for" is not dispositive to the jury's determination of whether the prosecution proved Holmes was caring for W.L. while she was in the shower. The jury could reasonably disregard that single statement from Kristina and place more weight on the moment in her examination when she agreed Holmes was "in charge of" W.L. while she was in the shower. (See People v. Fuentes (1967) 253 Cal.App.2d 969, 974 [sufficient evidence of care where mother left her children in her apartment when she left for work and the defendant was the only adult present].)
In any event, courts have upheld child abuse and endangerment convictions on less defined relationships between the defendant and the victim. For example, in Morales, there was no evidence Morales had any interaction, let alone relationship, with the 16-year-old victim before the incident. (Morales, supra, 168 Cal.App.4th at pp. 1078, 1083-1084.) He presumably met her shortly before the incident, when he asked her to get in his car and give him directions. (Id. at p. 1078, fn. 2.) During their ride, Morales crashed into a telephone pole attempting to outrun a police officer. (Id. at p. 1078) On appeal, he argued he could not be guilty of child endangerment under section 273a because he was not related to the victim, she did not live with him, and he had never driven with her in the past. (Morales, at p. 1083.) The court concluded the victim was under Morales's care because he had "tak[en] it upon himself to control [her] environment and safety" by allowing her to be a passenger in his car. (Id. at pp. 1083-1084.)
In People v. Malfavon (2002) 102 Cal.App.4th 727 (Malfavon), Malfavon, like Holmes, was the boyfriend of the child's mother, and, like Holmes, did not live with her. One day, the mother went to "get a few things" from her apartment and left one of her children in the car with Malfavon. (Id. at p. 731.) Shortly after she left, Malfavon brought the child up to the apartment. The child was spitting up blood and died the next day. (Id. at pp. 732-733.) The jury found Malfavon had severely shaken the child and convicted him under section 273ab. (Malfavon, at pp. 731, 733.) On appeal, our colleagues in Division Three rejected Malfavon's argument the mother had not left the child in his care, explaining "Malfavon jumps to the conclusion that his relationship is insufficient to come within the penumbra of the child abuse statute. However, his argument fails to provide any authority to conclude that care or custody may not be established on a less substantial relationship." (Id. at p. 737.) The court found sufficient evidence to support a care or custody finding in Malfavon's admission he was "watching" the child while the mother went up to the apartment and the mother's testimony Malfavon had babysat her daughter before. (Ibid.)
The evidence of care in this case is stronger than the evidence in Morales and Malfavon. Like the mother in Malfavon, Kristina left her young child alone in a small space where her boyfriend was the only adult present. However, the record also contains evidence Kristina viewed Holmes as someone who could occupy a fatherly role in W.L.'s life. Viewed in the light most favorable to the jury's verdict, the evidence reasonably supports an inference that Kristina left her son in a room with the man she was thinking about making a family with.
We conclude there is substantial evidence that W.L. was in Holmes's care at the time of the assault.
B. Jury Instruction
1. Additional factual background
The court instructed the jury on the assault charge with CALCRIM No. 820, which requires the prosecution prove Holmes had "care or custody" of W.L. when he committed the assault causing the child's death. During deliberation, the jury asked whether there was a "legal definition" of "care," and if not, whether the court could provide "some further guidance" on the term. After discussing the issue with counsel, the court responded, "There is no special meaning to the word care."
Later, the jury indicated it was able to come to a unanimous decision on the murder charge but not on the assault charge, and asked "Must we come to a consensus on both counts?" The court responded, "No, but please keep trying." The jurors continued to remain deadlocked, and the foreperson informed the court the definition of "care" was the crux of their indecision. One of the jurors asked the court to explain why section 273ab was enacted and whom it was intended to punish. The court declined to provide legislative history and the jury agreed to continue deliberating.
Out of the jury's presence, the court suggested allowing argument on the meaning of "care" or instructing the jury based on Perez, which held the term "clearly covers . . . [those who] 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.) Upon defense counsel's objection to an instruction based on Perez, the court stated it was inclined to provide the jury the following language from Cochran, because the authors of CALCRIM had included it in "Related Issues" under the heading, "Care or Custody": "The terms 'care or custody' do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver." (See Related Issues to CALCRIM No. 820 (2016 ed.) p. 527.) The prosecutor agreed with the use of Cochran and defense counsel suggested the court simply reiterate there is no special meaning of the term "care."
The court gave the jury the quote from Cochran. After asking one more unrelated question, the jury returned its verdict of guilty on both charges.
2. Analysis
Whether a trial court properly instructed a jury is a question of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) The inquiry is whether the instructions, as construed by a reasonable juror, state the law correctly. (People v. Warren (1988) 45 Cal.3d 471, 487.) There is no question that such was the case here. The instruction the court gave was a direct quote from our decision in Cochran, which the authors of CALCRIM selected for guidance on the meaning of the term care in section 273ab. (Cochran, supra, 62 Cal.App.4th at p. 832; Related Issues to CALCRIM No. 820, supra, at p. 527.)
Holmes incorrectly contends Perez disapproved of the instruction. In Perez, the defendant had asked the trial court to add the Cochran language to the section 273a instruction, but the court refused. (Perez, supra, 164 Cal.App.4th at p. 1474.) The appellate court held the trial court did not err in refusing to give further guidance on "custody or care" because the instruction in CALCRIM was sufficient and the Cochran language "could have erroneously implied that the defendant must have affirmatively demonstrated or expressed a willingness to assume caretaker duties, even though there is no such requirement under the statute." (Perez, at p. 1476.) Concluding the trial court was not required to give an instruction based on Cochran is far different from concluding such an instruction would be improper.
If anything, Holmes benefitted from the court's use of Cochran because, since that decision, appellate courts have articulated less stringent definitions of care. (E.g., Perez, supra, 164 Cal.App.4th at p. 1476; Morales, supra, 168 Cal.App.4th at p. 1083.) In other words, courts have determined that satisfying Cochran's definition of care is sufficient—but not necessary—for a section 273ab conviction. (E.g., Perez, at p. 1476; Morales, at p. 1083.) The Cochran instruction made proving the "care" element harder for the prosecution than an instruction based on, say, Perez, which held a defendant need not assume the duties "correspondent to the role of a caregiver" but simply must "have been entrusted with the care of a child, even for a relatively short period of time." (Perez, at p. 1462.) We find no error in the court's use of Cochran to provide further guidance on the meaning of care.
C. Section 654
Holmes argues, and the People concede, that if we uphold the assault conviction we must stay the sentence on the murder under section 654. We agree.
Section 654 prohibits multiple sentences based on a single act or indivisible course of conduct in which there was only one victim and during which the defendant harbored only one criminal objective. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Islas (2012) 210 Cal.App.4th 116, 130.) Where, as here, there is no dispute over the underlying facts, we review the applicability of section 654 de novo. (People v. Valli (2010) 187 Cal.App.4th 786, 794.) Both the murder and assault convictions are based on Holmes's killing W.L. The experts testified the cause of W.L.'s death was the blunt injury to his head. Because Holmes inflicted that injury in either a single act or, more likely, multiple acts in an indivisible course of conduct, section 654 requires us to stay the sentence on the murder. (See People v. Milan (1973) 9 Cal.3d 185, 197 [under section 654, the lesser penalty is stayed and the more severe penalty is imposed].)
III
DISPOSITION
We modify the judgment to stay execution of the sentence on the murder count. As modified, we affirm the judgment, and we direct the trial court to prepare an amended abstract of judgment that reflects the modified sentence and to forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.