Opinion
F070627
01-30-2017
THE PEOPLE, Plaintiff and Appellant, v. EDWARD CZAJKA, Defendant and Respondent.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Appellant. Roger I. Stein for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. RF006831A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman, II, Judge. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Appellant. Roger I. Stein for Defendant and Respondent.
-ooOoo-
Witnesses testified that defendant Edward Czajka struck his two-year old son several times in the head and "slammed" him into a stroller. Defendant was convicted of a felony: willfully causing or permitting a child to suffer unjustifiable physical pain or mental suffering under circumstances likely to produce great bodily harm or death. (Pen. Code, § 273a, subd. (a).) After the jury returned its verdict, the trial court reduced the conviction to a misdemeanor (§ 17, subd. (b)) and the People appealed.
All further statutory references are to the Penal Code unless otherwise noted.
While substantial evidence and relevant sentencing considerations would support punishing this crime as a felony, we conclude the trial court did not abuse its discretion in reducing the conviction to a misdemeanor, and affirm.
BACKGROUND
In an information filed on December 9, 2013, defendant was charged with willfully causing or permitting a child to suffer unjustifiable physical pain or mental suffering under circumstances likely to produce great bodily harm or death. (§ 273a, subd. (a).)
Defendant was tried by jury. The trial court instructed the jury on the lesser offense of misdemeanor child abuse, and provided the jury with a corresponding verdict form. (§ 273a, subd. (b).) The jury convicted defendant of the felony as charged, leaving the verdict form on the misdemeanor offense blank.
Defendant filed a motion for new trial (§ 1181(6)) or to reduce his conviction a misdemeanor (§ 17, subd. (b).) The prosecution opposed both requests.
The trial court denied defendant's motion for a new trial, but granted his request to reduce the offense to a misdemeanor. The court sentenced defendant to four days in jail and four years of probation. Defendant was ordered to complete 960 hours of community service, anger management counseling "as deemed necessary by the probation officer," a 52-week child abuser treatment program, and to pay several fines and fees.
The People appealed the reduction of defendant's offense to a misdemeanor.
FACTS
Testimony of Valerie Watts
In the early morning hours of October 19, 2013, Valerie Watts (Watts) went to her garage to smoke a cigarette. She heard what she thought was an animal in distress. She also heard a voice and assumed the animal issue was being addressed. A few minutes later, she still heard the noise and thought someone needed her help. She went out to her driveway and saw the defendant "striking an infant in a stroller who sat there helplessly being hit." The stroller would move every time defendant hit the child. Defendant was hitting the child in the head and was saying, "No" and "Stop." Watts believed defendant was using an open hand. Defendant hit the child 10 to 20 times. Then defendant "slammed" the child into the stroller even though the "child did not appear to be trying to get out of the stroller." The child was crying and "didn't appear to be doing anything wrong."
Watts became very upset and began to walk towards a mailbox with the intent of approaching defendant. However, Watts ultimately did not approach defendant because she was concerned as to how defendant would respond. Earlier that year, Watts saw defendant "aggressively walking towards the end of the cul-de-sac with a club or a bat in his hand." Watts had intervened in the situation so that defendant would not hit a neighbor's dogs.
Watts called 911. While she was on the phone with emergency dispatch, she watched as defendant continued to hit the child. Watts observed other neighbors looking toward defendant and the child. Defendant eventually began walking away with the child.
Testimony of Cheyenne Watts
Valerie Watts's daughter, Cheyenne Watts, also testified. Cheyenne, a teenager, said that her mother came inside "freaking out and saying that our neighbor was hitting his child." Cheyenne went outside and saw defendant hitting the child. She could hear the child crying and the sound of the strikes themselves. Cheyenne told officers that she saw defendant hit the child more than 10 times in the head.
We will refer to most witnesses by their first names to distinguish them from their family members.
Testimony of Sheila Williams
Sheila Williams and her husband live next door to defendant. Around 7:30 a.m. on October 19, 2013, Sheila was watching TV with the volume turned up "very loud" when she heard screaming. She turned down the TV, opened her front door and saw a "baby" screaming. The child was defendant's youngest son, A., whom she had babysat once before. Defendant was hitting A. in the head and screaming at him to sit down. A. was trying to get out of the stroller, which Sheila believed was an attempt to get away from defendant. Sheila personally saw defendant strike A. five to six times.
See footnote 11.
Sheila ran in to her home, slammed the door, and woke up her husband. Sheila and her husband returned outside and saw defendant "slamming the baby in the stroller." A. was still crying. Sheila's husband said something to defendant. Defendant stopped, turned and looked at Sheila and her husband, and then turned back and continued to walk.
When police arrived, Sheila gave the officer a blanket because it was "very cold that morning" and A. was wearing only a coat and a diaper. Defendant's wife, Am., asked Sheila to babysit her two daughters while she went with A. in an ambulance.
Other Incidents
Before October 19, 2013, Sheila had been on speaking terms with defendant and his wife. They were acquaintances, but not close friends. After October 19, 2013, the relationship became "horrible." Am. would give Sheila dirty looks.
Sometime after October 19, 2013, an incident occurred involving defendant's mother. Sheila came home from work and heard banging on the fence she shared with defendant. She went to investigate and saw a rat run by, so she closed her door. When she opened the door again, another rat ran by. Sheila again went outside and this time saw defendant's mother, who was saying "Good rats. Go to the rats."
That day, cameras were installed on defendant's premises that pointed at Sheila's front door and driveway. Sheila felt this was an invasion of her privacy.
Testimony of David Williams
David Williams is Sheila Williams's husband. On the morning of October 19, 2013, Sheila came into his room yelling, "Oh, my God, you got to come see this. [Defendant is] hitting his son." David heard screaming and crying coming from outside. David went outside, heard yelling, and eventually saw defendant grabbing the little boy by what he believed was his shoulder and "slamming him back in the stroller." The boy was "really crying and yelling." David said to defendant, "That's a little bit harsh, isn't it?" Defendant gave him a look he had never seen before, as if defendant "was in another world." Defendant kept walking towards his garage.
Other Incidents
Prior to the October 19, 2013, incident, David would hear defendant yelling in his house. David also heard "a lot of crying and a lot of yelling" in defendant's house after the incident.
Maybe a month after the October 19, 2013, David was sitting in his house watching TV when he heard someone yell, "Bye-bye, nosey neighbor, bye-bye." David looked outside and saw defendant's parents outside. A heated verbal dispute between David and defendant's mother ensued, which involved David making vulgar gestures and comments.
David's granddaughter no longer plays with defendant's children.
Testimony of Kirk Hultgren
Kirk Hultgren lives across the street from defendant. He testified that about 7:30 a.m. on October 19, 2013, he was watching the news in his living room. Hultgren noticed that defendant and his family were getting ready to go for a family walk with two strollers. Hultgren then went to his bedroom to continue getting ready for the day. After a short time, Hultgren returned to his living room to resume watching the news when he saw Am. leave with one stroller. Defendant and his young child remained in the driveway. Hultgren saw the child was "having somewhat of a temper tantrum." Hultgren again went back to the other side of the house to continue getting ready. Later, Hultgren returned to the living room. This time he saw defendant picking up his child and "very forcefully setting it into the stroller." Hultgren observed this happen twice. Hultgren thought, "Well, that seems pretty strong to me." Defendant then struck the child twice on the head with an open hand. Hultgren felt "these last two events were too much" and thought maybe he should call the police. Hultgren grabbed his phone, but just then the police arrived.
At the time, Hultgren did not know the child's gender.
Presumably the two "events" corresponded to the two strikes.
Testimony of Officer Eric Clinton
Eric Clinton is a peace officer with the City of Ridgecrest. Officer Clinton responded to the scene at approximately 7:45 a.m. that morning. When Clinton arrived, A. was slumped over in the stroller, screaming and crying. Defendant was in the driveway, pacing back and forth.
Defendant told Officer Clinton he was attempting to get A. into the stroller to go on a walk but was "having difficulty." Defendant admitted he struck A. a "few times." As Clinton escorted defendant to his patrol vehicle, he noticed blood on defendant's knuckles.
Eventually EMTs arrived and tended to A. Officer Clinton spoke to the EMTs, who briefed him as to whether they wanted to transport A. for his injuries. The EMTs did decide to transport A. to the hospital.
Defendant later told Officer Clinton that he and his wife had gotten into an argument that morning, so she left ahead of him with the girls on the walk. Defendant admitted he struck A. in the head "a few times."
Officer Clinton obtained an emergency protective order preventing defendant from being near A.
Testimony of Officer Ricardo Garibay
Ricardo Garibay is a police officer with the City of Ridgecrest. Officer Garibay responded to the scene at about 7:50 a.m. When he arrived, Garibay saw A. slumped over, screaming and crying. A. was bleeding from his mouth and there was blood on the stroller.
When defendant's wife, Am. C., returned some time later, she asked why A. was bleeding.
INJURIES
Testimony of Joyce Lewis
Joyce Lewis is a registered nurse at Ridgecrest Regional Hospital. She cared for A. at the hospital on the morning of October 19, 2013.
A. arrived by ambulance and was transferred to a gurney. During triage, patients are assessed a level of acuity. There are five levels of acuity, with level one being the most urgent and level five being the least. A. was given a level three rating. A. had a laceration puncture to his lower lip, bruising on his upper thigh and groin, an abrasion on his left ankle, a contusion on his left shoulder area, erythema (i.e., redness) on his left scapula, chin and side/back area, and scrapes on his right foot. The injuries to A.'s foot and upper thigh appeared to have been older injuries.
Defendant's wife told the paramedic that the red marks on A.'s left flank were from her grabbing A. because he would not sit still.
Lewis testified the puncture wound on or near A.'s lip was certainly caused by a "direct blow." The wound was not caused by impacting a specific piece of plastic on the stroller.
In testimony summarized later in this opinion, defendant said A. broke off a plastic steering wheel on the stroller during the struggle. In closing argument, defense counsel urged the jury to look at a picture of the stroller and said, "And there just happens to be a jagged piece of plastic right on the steering column which would be basically at the level of the child's chin and lip when he is thrashing around."
Testimony of Dr. Philip Hyden
Dr. Philip Hyden testified as a medical expert for the prosecution. Dr. Hyden was asked to review medical records, statements from defendant and witnesses, and photographs depicting A.'s injuries and the stroller. Dr. Hyden opined that A.'s injuries were diagnosed as "non-accidental trauma because just on its face you see these multiple bruises that are consistent with the [defendant's account] and the several other witnesses that [sic] saw this." Dr. Hyden testified that he "absolutely" did not believe A.'s puncture wound was caused by plastic on the steering column but that "[a]nything's possible."
Dr. Hyden testified that a report dated October 30 did not note any injuries.
Testimony of Kim Duckworth
A social worker named Kim Duckworth testified that defendant was not able to live with A. after the October 19 incident, due to a criminal protective order. However, she did observe visits between defendant and A. During the first couple of visits defendant "was not sure how to handle the children, his voice would be raised, he would get angry ...." Over time, defendant improved his communication with A.
DEFENSE CASE
Testimony of Lydia Czajka
Defendant's mother, Lydia Czajka, lived in Adelanto, California, in October 2013. Since A. was born, Lydia visited defendant's family "[m]aybe every other month." Lydia had seen A. throw temper tantrums, which were more exaggerated than the tantrums of his sisters. Lydia had never seen defendant discipline A. Defendant would discipline his daughters with a stern voice, but never with physical discipline. Lydia never saw anything that would make her concerned for the safety of his children.
Lydia knew Sheila and David Williams because they lived next door to her son. Prior to October 13, 2013, Lydia had no problems with the Williams family. On December 30, 2013, Lydia and her husband, Edmund, were leaving defendant's house and saw David looking out his front door. Lydia and Edmund left in a car, and Lydia saw David "mouthing something and flipping us off." A heated verbal dispute ensued, which involved David making vulgar comments about Catholics and Mormons.
Later, counsel questioning the witness conceded he had been saying "October 13th" in his line of questioning when he meant to say "October 19th."
According to Edmund, Lydia said, "Oh look, there's the nosey neighbor." Lydia also said, "[B]ye-bye" and gave a little wave.
Defendant practices the Mormon religion, according to his mother.
Lydia testified that sometime after December 30, 2013, she was planning to install a privacy screen at defendant's residence. In preparation, debris needed to be cleared from a patio. When the debris was lifted up, rodents scattered in all directions, including some towards the Williams residence. Lydia did not know there were rodents in the debris. Lydia admitted she said, "[G]o over to the rat, good rat," but claimed the comment was directed toward her husband, not David or Sheila.
On another unspecified day, Lydia asked Am. if "the camera was on." She deliberately asked the question while David was in earshot, so that "[m]aybe he would behave himself ...." David made the motion of dropping his pants to the camera, though he did not actually drop his pants.
Lydia admitted that during trial, she and David were "both acting sort of like children, going back and forth at each other even outside of the courtroom."
Testimony of Am. C.
Czajkas's Discipline Discussions and Practices
At the time of trial, Am. C. had been married to defendant 11 years, and they had a six-year-old daughter, a four-year-old daughter, and a three-year-old son, A. Am. and defendant had talked about how they would discipline their children. They planned that when each child turned three, they would be disciplined by being placed in a corner. Before the children turned three, Am. and defendant would just talk to them and teach them. If the children lie or steal, Am. and defendant would "open-handedly spank them on the tushie once, and then that's it, after we have talked to them about what they did wrong." If there is something hot on the stove, Am. would "smack their hands and pull them away and tell them that it's hot, before they burn their hands." Other than that, they did not use corporal punishment. Am. would see defendant get frustrated with the kids, but she never saw him physically discipline the children while frustrated.
Am. testified on October 16, 2014, approximately one year after the incident. A.'s birthday is in June 2011, so he was approximately 2 years 4 months old at the time of the incident.
October 19, 2013, Incident
On the morning of October 19, 2013, Am. and her two daughters started ahead of defendant and A. for a walk. Before leaving, Am. saw defendant trying to put A. into the stroller, but A. kept kicking the stroller away and would say, "[N]o, no, no, no." Am. did not see A. scream, yell, thrash around, or anything like that. Am. then left and took her daughters on a walk. They traveled the span of seven houses when Am. heard A. "screaming" her name with an "irritation cry." Before she could even turn her stroller around she saw two police vehicles "flying down" the street.
Am. rushed back to her house and said, "[O]h no. Oh, no. What happened? What happened? Did you lose your temper?" Defendant, who was in a police vehicle, did not respond and "just looked straight ahead."
A. was being held by a police officer. Am. did not see any bleeding. She brought A. inside and stripped him down to his diaper. She told the EMT she saw a "pin prick" on his face then asked if the EMT saw anything else harmful to A. The EMT responded that he could not answer that question.
Am. went with A. in the ambulance. She was strapped into the gurney and held A. tightly without a seatbelt.
At the hospital, Am. spoke with Officer Clinton and a social worker named Jackie Maxwell (Maxwell). Am. was intimidated by them. Am. "tried" to tell Officer Clinton that she "misspoke" when she had said defendant lost his temper. She told Clinton it "takes a lot" for defendant to "lose his full-blown temper." Am. told Maxwell that defendant may have been rougher with A. than he should have been.
Am. denied telling Maxwell that she handles discipline at home so that defendant doesn't "over lose [sic] his temper," or that defendant would benefit from anger management courses She also denied telling Officer Clinton that she tries not to leave her children alone with defendant because defendant loses his temper.
Am. testified that the bruise on A.'s left arm was actually caused by him falling off of a bicycle; one of A.'s scratch marks and another mark on his chest near his left arm were self-inflicted; a handprint on A. was caused by her holding him in the ambulance; and a bruise on his back was the result of falling off of his bed. The only injury Am. would attribute to the October 19, 2013, incident was the "mark" on A.'s chin.
The Czajkas's Relationship with the Williams Family
Am. said she had had "difficulty with the Williams for a while." The difficulties concerned a barking dog owned by the Czajkas, the state of their lawn, and a Christmas lights display.
Testimony of Defendant
Events Before October 19, 2013
Defendant testified A. often had outbursts in public. As a result, defendant and his wife try to avoid taking A. out in public. Defendant did not recall ever using any form of physical discipline on A. before October 19.
Incident on October 19, 2013
On October 19, 2013, defendant was preparing to go on a walk with his wife and three children. They tried to start the walk together, but A. did not want to cooperate. A. had a tendency to "throw a fit" when his mother is not carrying him. A. "started to become combative with the idea of a stroller." Defendant told his wife to go ahead without them. Defendant tried to get A. seated and buckled into the stroller. A. was trying to stand up and jump out of the stroller, and he was screaming and crying. The stroller would shake with A.'s movements. Defendant told him, "[N]o, you need to sit down," but A. would not listen. He held A. down while trying to secure the buckle. Defendant also "was trying to tap him on the top of the head to try to get him to realize he needed to listen to me." He did not know the exact number of times he "tapped" A. on the head. However, he later estimated to Officer Clinton that he had come into contact with A.'s head about a dozen times.
A. began pushing on a bar on the stroller, so defendant "would slap the top of his hand and tell him no." Defendant tried to remove A.'s hand from a steering wheel on the stroller but A. was pulling "really hard" and the steering wheel broke off. Defendant eventually was able to fully buckle A. He walked down the driveway and turned left. A. was still trying to get out, so defendant "tried to ... get his back to go back up against the back of the stroller." Defendant turned around and walked A. back home. Defendant parked the stroller on the driveway and took a couple steps away because he wanted to "take a moment" because he knew he "needed to calm [him]self down." But defendant did not feel that he had lost his temper; used excessive force; or even hurt A. in any way.
Am. testified that when she had left for a walk, the stroller A. was going to be put in had a toy steering wheel that mounted in the front. At the time of trial, the stroller no longer had the steering wheel, and Am. did not know what happened to it.
When Officer Clinton arrived, he asked if defendant had struck his child and defendant said, "[Y]es, I did." What defendant had meant was that he had "slapped him or tapped him on the top of the head," but he did not express this to Clinton. Clinton told defendant his son was bleeding. Defendant had not known A. was bleeding. Defendant admitted at trial he had a "drop" of blood on the top of his right hand but did not know how it got there.
After the Incident
Defendant denied telling Maxwell that Am. usually disciplined the children because he was usually at work and because of his temper. He did tell Maxwell that he worried about "going too far."
PROSECUTION'S REBUTTAL CASE
Rebuttal Testimony of Officer Clinton
Officer Clinton testified that, at the scene, defendant told him he had lost his temper.
Am. told Officer Clinton that defendant commonly lost his temper; that she handled the discipline at home to prevent defendant from harming the children due to losing his temper; that she tries not to leave the children alone with defendant because he loses his temper; and that when she saw police cars drive by, she thought something to the effect of, "[O]h, no, Edward, what did you do."
Rebuttal Testimony of Jackie Maxwell
Am. told Maxwell that she handled most of the discipline because defendant was normally at work and because of his temper. Am. also said, "I know he has a temper," but he never hit the children because Am. would step in and tell him to "cool off." Am. also said defendant would benefit from anger management.
DEFENDANT'S POSTTRIAL MOTION TO REDUCE HIS CONVICTION TO A MISDEMEANOR
After the jury convicted defendant, he filed a motion requesting reduce his conviction a misdemeanor. (§ 17, subd. (b).) The prosecution opposed the motion.
The motion also requested a new trial, but that request was denied and neither party appeals that ruling.
The sentencing hearing was held on November 20, 2014, where the trial court also considered defendant's motion. Defendant called witnesses at the hearing.
Testimony of John Mooney
John Mooney had worked at the Naval Air Warfare Division with defendant since 2007. Defendant "provides technical communication support for the base." In Mooney's opinion, defendant had been an "exemplary employee." Mooney considered defendant's work to be vital to the defense of the country. In order to be employed in his position, defendant must have a security clearance.
Defendant reported his conviction for the October 19, 2013, incident to the base where he worked. Management at the base decided that if defendant's conviction remains a felony, "he's gone." With a felony conviction, defendant's security clearance would be revoked. If his conviction were reduced to a misdemeanor, he would be able to keep his job.
Testimony of Robert McGowan
Robert McGowan is an IT manager for the Naval Air Warfare Center. He holds a top secret security clearance. McGowan described defendant as "very detail-oriented" and "an excellent employee and very, very reliable." McGowan felt that the type of work defendant does is necessary for the security of the country.
At the time, defendant was on administrative leave pending the outcome of the sentencing hearing. If the conviction remained a felony, defendant's security clearance would be revoked and his employment terminated. If the conviction is reduced to a misdemeanor, he would "probably" be able to maintain his security clearance.
Testimony of Defendant
Defendant admitted that he started getting upset and frustrated with A. as he struggled to get him buckled in the stroller. He also admitted that he lost control of his temper, and that he had told police officers as much. He felt his actions "were not valid," and he did not handle the matter correctly. Defendant realized that A. could have been seriously hurt by what he had done. But, defendant said that either he hurt A. or A. was hurt by a broken piece of the stroller. Defendant took responsibility for "not taking him away from a potential danger of the piece of plastic." Defendant denied ever touching A. in the face. Defendant also said that marks on A.'s body were caused by his wife holding him tightly in the ambulance.
Defendant had taken anger management classes and had been living apart from his family for 13 months.
Testimony of David Williams
The prosecution called David Williams at the hearing. He testified:
"Well, your Honor ... these people, nice people, are all testifying he is a great guy, which he probably is. But they don't live next door to him. They don't hear all the loud noises the screaming, the crying, the yelling. His temper when he goes outside, it's bad at times. It hasn't been because he hasn't been around. But it has been at those times to where it concerned
me and my wife and some other neighbors. He would boss people around. His dogs - the children would go outside and play. He wouldn't let them play. He was yelling at them and screaming at them the whole time. I could hear him in the backyard doing it. I could hear him in his house screaming and yelling at his wife and kids."
Williams later added, "I heard his temper real bad all the time. He was always - always - you know, it's like the door was closed and you could hear him yelling and screaming." Williams also testified:
"You know, all of this seems like it's all about [defendant.] But everybody is forgetting about the little kid, the little boy. He's the one that went through all of this. I seen him firsthand when this was done, and it wasn't a pretty picture. [Defendant] says - I didn't see him hit him. I seen [sic] him jerking him around. I can't say that. But I seen him when he walked and when the cops arrived and when the paramedics arrived and the fire station arrived. The boy was not doing good. My wife and me give [sic] him a blanket so he could - so the officer could hold him. And he was screaming and yelling his head off. I have never heard anything like it."
Probation Report
The probation officer's report recommended defendant be given felony probation and sentenced to 270 days in jail. In a handwritten narrative, defendant admitted he committed "the crime" but denied "the severity of the charge." Defendant said he "tapped [A.] on the head a few times to get his attention, then started to slap his hands because he was trying to climb out of the stroller." Defendant said A. "must have touched his lip to the broken piece of plastic and cut his lip."
The probation report indicated that it was "concerning that [defendant] is not accepting full responsibility for his behavior."
Attached to the probation report was a certificate of completion awarded on October 28, 2013, indicating defendant had successfully completed a class on parenting and family stabilization. Also attached was a progress report from an organization called Legacy, indicating defendant had satisfactorily completed 13 sessions of a parenting program on February 6, 2014. Legacy did not recommend further participation in the program. A certificate dated May 30, 2014 indicated defendant had completed 26 weeks of physical abuse counseling for perpetrators at Tehachapi Wellness Center.
During argument, defense counsel referenced a "very good letter from Legacy where he went to counseling, saying how well he did, how he understood things, how he admitted that he had problems and how he corrected them." The referenced letter is not attached to the probation report.
Post-Testimony Discussion
After the testimony was presented but before counsel argued the matter, the court expressed that it understood the nature of its discretion:
"And let me also confirm that I have read and considered some of the relevant case law. And this is one of the cases [defense counsel] cited. The People vs. Superior Court Alvarez case, a 1997 case at 14 Cal.4th 968. And the discussion at Page 978 discussing the Court's discretionary authority. The Court should consider all the circumstances and all the factors that are relevant, including the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, and the defendant's traits of character as evidenced by his behavior and demeanor at the trial.
"The Court should also consider, when relevant or when appropriate, the general objectives of sentencing such as those set forth in [the] California Rules of Court."
During argument, the prosecutor expressed that she did not "have a problem with the defendant being put on probation. The People believe that it should be felony probation...." The prosecutor requested that defendant be subjected to supervised felony probation for at least "a couple" of years. If defendant complied with the terms of probation, the prosecutor expressed she "would not have a problem with it being made a misdemeanor" at that point.
The court asked the probation officer if he could require defendant complete one-year child abuse treatment counseling as a term of misdemeanor probation. The probation officer responded, "Yes, your Honor. As well as anger management counseling, not committing acts of violence against the victim, using no force or violence against the victim."
Court's Ruling and Reasoning
The court ruled that it would reduce defendant's conviction to a misdemeanor. It explained its reasoning as follows:
"I have considered the evidence, the arguments of counsel, all the different materials which have been provided to the Court. And again, I am considering all those factors that I must consider including the nature and circumstances of the offense.
"In that regard, in denying the motion for new trial I do believe that the credible evidence supports the jury's verdict that this was a serious crime. And what fortunately balances things favorably for the defendant in terms of my decision on the misdemeanor issue is that the child did not suffer serious bodily injury. And that is definitely a mitigating factor in terms of the nature and circumstances of the offense.
"With regard to the defendant's appreciation of and attitude toward the offense, I understand normal human behavior when accused of a crime, all the ramifications that come from that accusation, the natural tendency to downplay one's responsibility or one's behavior.
"I think for the first time today I have seen [defendant] express what I felt was a sincere belief that he is sorry for what he did, that what he did was wrong. I do believe that he has sincerely admitted that his conduct placed his son at risk of suffering great bodily harm.
"I do believe that [defendant] has sincerely admitted that he allowed his anger to take control of his conduct during this incident. And I do believe that [defendant] has sincerely taken responsibility for the problems this has caused not only for him but perhaps just as importantly for his wife and his children and that he has sincerely admitted that he is not the victim here; that he is not trying to place the blame on other people for the harm that's come to him and his family because of all this. So I certainly am taking that into consideration.
"Considering all the circumstances, I am going to exercise my discretion and reduce this crime to a misdemeanor pursuant to Penal Code Section 17 subdivision (b) (1)."
DISCUSSION
I. The Trial Court Did Not Abuse its Discretion in Reducing Defendant's Conviction to a Misdemeanor
The Attorney General's sole contention on appeal is that the trial court abused its discretion by reducing defendant's conviction to a misdemeanor under section 17, subdivision (b).
Standard of Review
We review the trial court's decision for abuse of discretion. " 'This discretion ... is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]' [Citation.] 'Obviously the term is a broad and elastic one [citation] which we have equated with "the sound judgment of the court, to be exercised according to the rules of law." [Citation.]' [Citation.] Thus, '[t]he courts have never ascribed to judicial discretion a potential without restraint.' [Citation.] 'Discretion is compatible only with decisions "controlled by sound principles of law,... free from partiality, not swayed by sympathy or warped by prejudice ...." [Citation.]' [Citation.] '[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).) "Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (Id. at p. 978.)
Framework for Deciding Whether to Reduce a "Wobbler"
A "wobbler" is a crime that is "chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor ...." (People v. Park (2013) 56 Cal.4th 782, 789.) Under sections 17, subdivision (b) and 273a, subdivision (a), the crime defendant was convicted of is a wobbler. Under section 17, subdivision (b), a trial court has discretion to reduce a felony conviction for such a crime to a misdemeanor. (Id. at p. 790.)
In determining whether to reduce a wobbler to a misdemeanor, "those factors that direct similar sentencing decisions are relevant, including 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' [Citations.]" (Alvarez, supra, 14 Cal.4th at p. 978.)
Analysis
The Attorney General argues that while A. did not "receive broken bones or other permanent physical injuries, 'actual physical injury' is not an element of felony child endangerment...." We agree. But the issue was not whether there was sufficient evidence of each element of the offense. Instead, the court was faced with a discretionary sentencing choice. The extent of the victim's injuries is a relevant consideration even if the charged crime was undoubtedly committed.
The Attorney General next points to the countervailing considerations against reducing the offense: A. was vulnerable; defendant struck A.'s head and face repeatedly, perhaps 20 times; defendant violated an important position of trust; defendant failed to take responsibility before the posttrial hearing; the interests of society generally and A. specifically are furthered by a harsher sentence; and the reduction lessens the incentive for defendant to act lawfully in the future and any deterrent effect.
While the Attorney General presents important factors for consideration, the trial court reached a different conclusion. It felt that the considerations identified by the prosecution were outweighed by the fact that A. did not suffer serious bodily injury and that defendant expressed remorse at the posttrial hearing. It is the trial court's job - not ours - to weigh competing considerations when making sentencing decisions. (See Cal. Rules of Court, rule 4.410(b); see also Alvarez, supra, 14 Cal.4th at p. 978.) Moreover, the court did impose several substantial conditions on defendant's probation, including 960 hours of community service, a 52-week child abuser treatment program, and anger management counseling as deemed necessary by the probation officer.
The Attorney General raises doubts regarding defendant's acceptance of responsibility. It is true that defendant had ample opportunities to take responsibility for his conduct earlier - whether to police officers at the scene, in his testimony at trial, or even after trial in his discussions with the probation officer.
Moreover, defendant's purported acceptance of responsibility was equivocal. Defendant said that either he hurt A. or A. was hurt by a broken piece of the stroller. While he admitted he lost control of his temper, defendant later took responsibility for "not taking him away from a potential danger of the piece of plastic." Defendant denied ever touching A. in the face.
But credibility determinations are the domain of the trial court. And the trial court concluded defendant had "sincerely admitted that he allowed his anger to take control of his conduct during this incident." We were not present in the courtroom and did not observe defendant's demeanor, tone of voice or facial expressions. It is not our role to overturn a credibility finding, unless it is completely unsupported. (See People v. Burnham (1961) 194 Cal.App.2d 836, 843.)
It is important to emphasize that, as an appellate court, we have a different role in the judicial system than the trial court. In this context, we are here to ensure the trial court does not abuse its discretion, not to require the trial court to exercise its discretion the same way we might have. Applying this standard, we cannot say the court abused its discretion. As has been said in another context, "Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with ... the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance. [Citation.]" (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
In sum, " 'a decision [to reduce a wobbler] will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (Alvarez, supra, 14 Cal.4th at p. 978.)
DISPOSITION
The order reducing defendant's conviction to a misdemeanor is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
KANE, J.