Opinion
F071457
02-09-2017
THE PEOPLE, Plaintiff and Respondent, v. VINCENT ALEXANDER DIAZ, Defendant and Appellant.
Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Charity S. Whitney, Deputy Attorneys General, for Plaintiff 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF304611)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Smith, J.
-ooOoo-
Defendant Vincent Alexander Diaz is the husband of Ashley, and the father of two daughters, A.D., who was four years old, and S.D., who was two years old in 2014.
On December 26, 2014, defendant was charged with five offenses: corporal injury to a spouse (count 1, Pen. Code, § 273.5, subd. (a)); spousal rape (count 2, § 262, subd. (a)(1)); corporal injury to a spouse (count 3, § 273.5, subd. (a)); and misdemeanor child endangerment (counts 4 and 5, § 273a, subd. (b)).
All statutory references are to the Penal Code.
Count 1 was alleged to have occurred on May 21, 2014. Counts 3 through 5 were alleged to have occurred on May 24, 2014.
On April 20, 2015, defendant was convicted of counts 1, 3, 4 and 5. Defendant was found not guilty of count 2. Defendant was sentenced to five years for count 1, 16 months for count 3, to run consecutive to count 1, and 180 days each for counts 4 and 5, to run concurrent to count 1. Defendant filed a timely appeal, arguing the child endangerment convictions were not supported by substantial evidence. We affirm the judgment.
FACTS
Defendant and Ashley have been married for seven years. On May 24, 2014, following a previous altercation, Ashley asked defendant to leave the house. She told defendant, "I'm not happy, I want you to leave." Defendant refused, and became angry when she repeatedly asked him to leave. Defendant started yelling and screaming at A.D. and S.D., who were running in the living room.
Ashley and the children then moved into the bedroom, when defendant came in and said, "That's it, I've had enough." Ashley again told defendant he needed to leave. Defendant started periodically taking things out to his car, but then returned to the house. When he returned, Ashley believed he took her phone, and when she asked for it back, he responded, "You find it, you find it." Defendant then went into the bathroom.
Ashley heard noises from the bathroom, and was scared defendant had her phone. She unlocked the bathroom door with a coin, and tried to get in. They tussled over the door, but defendant finally opened it and she entered the bathroom. She saw defendant was cutting his hair. She unplugged his clippers, and tried to get behind him to see if her phone was on the counter. Defendant then grabbed her in a headlock, and hit her in her head and stomach.
Both A.D. and S.D. were standing in the bathroom doorway, crying and screaming, while defendant was hitting their mother. The bathroom door was damaged or broken during the altercation. A.D. said something to defendant, and he released Ashley. Defendant left the house but remained outside the front door, and Ashley called 911.
Jeff Dowling, a police officer for the City of Visalia, was dispatched to Ashley's apartment on May 24, 2014. Officer Dowling observed old bruising, and some new injuries on Ashley, including a bump on her head. Defendant confirmed he had a struggle with Ashley in the bathroom, but denied hitting her or causing her injuries.
DISCUSSION
Whenever the evidentiary support for a conviction is challenged on appeal, this court reviews the whole record in the light most favorable to the judgment below, and determines whether the record discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562.) This court presumes in support of the judgment, the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Misdemeanor child endangerment is defined in section 273a, subdivision (b) as follows:
"Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child
to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation that his or her person or health may be endangered, is guilty of a misdemeanor."
The same behavior is punishable as a felony if it occurs "under circumstances or conditions likely to produce great bodily harm or death." (§ 273a, subd. (a), emphasis added.)
When the harm inflicted is indirect, the requisite mental state is criminal negligence. (People v. Burton (2006) 143 Cal.App.4th 447, 454 (Burton).) Criminal negligence is aggravated, culpable, gross or reckless conduct that is such a departure from that of the ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life. (People v. Valdez (2002) 27 Cal.4th 778, 783.) A defendant may be deemed criminally negligent if a reasonable person in his position would have been aware of the risk. (Ibid.)
Defendant argues there is no evidence A.D. and S.D. were in close enough proximity to the fighting that there was any risk they might have been physically injured. Defendant further argues mental suffering cannot be used as a basis for affirming the conviction, because the prosecution did not present this theory to the jury and the jury was not instructed they may find defendant guilty of child endangerment on the basis of mental suffering. Because this court concludes there was substantial evidence A.D. and S.D. were in a situation that endangered their health, we do not reach the question of whether mental suffering may be a basis for affirming the conviction.
The record reflects defendant's attack on Ashley was physical and violent—defendant placed her in a headlock and hit her in the head and stomach. The attack also extended beyond defendant and Ashley's persons, and damaged the bathroom door. Both A.D. and S.D. were in the doorway to the bathroom while this attack was happening, and were screaming and crying. A reasonable trier of fact could deduce, that because defendant's attack damaged the door, the attack could have similarly, physically harmed A.D. and S.D. since they were standing in the doorway while the attack was ongoing. A.D. and S.D.'s proximity to the damaged door constitutes substantial evidence that defendant's attack on their mother placed A.D. and S.D. in a situation where their health was endangered.
Defendant then argues there is not substantial evidence that he acted with criminal negligence, because he did not premeditate the fight with Ashley, or plan his actions realizing his children would be present.
In Burton, the defendant attacked the victim, Shanita S., while their eight-year-old son was nearby, but out of sight of the attack. (Burton, supra, 143 Cal.App.4th at p. 451.) Shanita S. sustained several deep cuts to her face, which required hospitalization, over 200 stitches, and caused permanent disfigurement. The son witnessed the immediate, bloody aftermath of the attack. (Id. at p. 457.)
The defendant was charged and convicted, in relevant part, of misdemeanor child endangerment. (Burton, supra, 143 Cal.App.4th at p. 454.) On appeal the defendant argued there was not sufficient evidence to support the misdemeanor child endangerment conviction, because the child did not see the actual attack, it did not occur in the minor's presence, and was not directed at him. (Id. at pp. 453-454.)
The court disagreed, noting there was "no doubt that the defendant's attack on Shanita was a willful act, and that defendant's older son was at the scene." (Burton, supra, 143 Cal.App.4th at p. 455.) The court further noted that the defendant knew of the minor's presence because before the attack, he was crouched near the driver's side front tire of Shanita S.'s car while Shanita S. placed the younger son in the car, and the older son said he had to urinate. (Ibid.) The court concluded the defendant was criminally negligent, because a reasonable person would have easily recognized that a child would endure unjustifiable mental suffering by being on the scene while his father slashed his mother's face several times, and then immediately seeing the horrible, bloody aftermath. (Ibid.)
Whether or not the defendant premeditated the attack, or planned the attack knowing his children would be present, is irrelevant. The only question is whether the defendant's conduct departed from that of an ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life.
In this case, there is no doubt defendant's attack on Ashley was a willful act, and that A.D. and S.D. were at the scene. A reasonable trier of fact could conclude that defendant was aware of the children's presence. The record shows A.D. and S.D. were in the bedroom prior to the attack, and defendant had entered the bedroom before Ashley asked him to leave. The children were also standing in the bathroom doorway when the attack was ongoing, and made their presence apparent by screaming and crying. In fact, A.D. and S.D.'s presence was more apparent than the child's presence in Burton, as A.D. and S.D observed and were in close proximity to the attack.
Having established there is substantial evidence to support a finding that defendant was aware A.D. and S.D. were present during the attack, a reasonable trier of fact could conclude defendant's conduct departed from that of an ordinarily prudent or careful person, so as to be incompatible with proper regard for human life. A reasonable person would easily recognize that a four-year-old and two-year-old child's health would be endangered when they are in close proximity to a violent beating, which harmed the victim and damaged nearby fixtures.
Likewise, the fact that defendant stopped the attack when A.D. said something does not absolve defendant. He initiated the attack knowing A.D. and S.D. were present, and continued the attack even as A.D. and S.D. screamed and cried in the bathroom doorway. There is substantial evidence defendant was criminally negligent when he attacked Ashley in close proximity to his children. We conclude there is substantial evidence to support the convictions.
DISPOSITION
The judgment is affirmed.