Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08SF0713, John Conley, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury convicted defendant Lee Curtis Metcalf, Jr., of three counts of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); all further statutory references are to this code), misdemeanor child abuse (§ 273a, subd. (b)), stalking (§ 646.9, subd. (a)), misdemeanor identity theft (§ 530.5, subd. (a)), making criminal threats (§ 422), fourteen counts of misdemeanor violation of a protective order (§ 166, subd. (c)(1)), and domestic battery inflicting bodily injury (§ 273.5, subd. (a)). The trial court found true one prior prison term and three prior convictions (§ 667.5, subd. (b)) and sentenced defendant to a term of seven years, four months.
Defendant contends there was insufficient evidence to support the conviction for identify theft, the jury was not properly instructed as to the lesser included offense of attempted identity theft or the proper mental state for child abuse, and the convictions for 11 of the counts should be for attempted violation of the protective order. We find no error and affirm.
FACTS
Over the span of 13 years, defendant and L.L. had an intermittent sexual relationship, including a period of over three years when they lived together. The two had a daughter, M.L., born in 2001. In August 2008 defendant, L.L., and M.L. had dinner out; the adults each had at least three alcoholic beverages. They then went to L.L.’s apartment and smoked marijuana. By this time M.L. was asleep in L.L.’s bed. After L.L. received a phone call that upset defendant the two got into an argument. Defendant called L.L. a “whore” and began choking her to the point where she was having a hard time breathing and began to black out. When defendant released her, L.L. ran upstairs to her bedroom, believing defendant would not hurt her if M.L. was there.
Defendant followed and kept advancing toward L.L., forcing her backwards to the bathtub, where she fell in. After getting out, L.L., who was “hysterical, ” went to sit on the bed where M.L. was sleeping. Defendant followed her back into the bedroom, closing the window, unplugging the phone, and taking off his belt. When he told her he had “really, really tried” “to get along with [her], ” M.L. sat up and said, “No, you haven’t, daddy” and went back to sleep.
Defendant then started choking L.L. agaiN.M.L. testified at trial when she saw defendant with his hand around L.L.’s neck she was sad and afraid. Defendant was insisting L.L. write out a visitation agreement. L.L. told him she did not want to without a lawyer’s advice. Fearing defendant would kill her or take M.L. from her forever, L.L. tried to run downstairs. When defendant followed she returned to sit on the bed next to M.L., where defendant choked her for the third time. He then pulled her off the bed by her legs, dragging her along the floor toward the stairs, and said: “If you want to go down here, I will take you down.” As L.L. cried and screamed, M.L. awoke and sat up, also crying and screaming, “Mommy, mommy.” Defendant demanded L.L. tell her she was alright. He put his hands over L.L.’s mouth and then said to M.L., “Mommy is okay. She just had too much to drink.” Defendant left and L.L. called 911.
After police arrived, defendant called L.L. “a few times just breathing in the phone and hanging up.” Officers helped L.L. get an emergency protective order that night. When defendant again called L.L.’s cell phone an officer told him about the protective order and that it barred him from contacting L.L. or approaching her house. Defendant replied that police better spend the night and the officer took L.L. and M.L. to a motel.
Defendant sent several texts to L.L. the next day, including one that stated, “Now I’m pissed. Finally you will see me upset. I share no L-O-L love for you.” Another called L.L. “a liar and a whore” and said “when I see you today I’m going to fuck you up.” These scared L.L., who believed defendant was threatening her and M.L. She called the sheriff’s office to report some of the texts. Defendant also told L.L. he expected the custody agreement by the next day. The next day L.L.’s sister, Stephanie, told her defendant had called and said if L.L. did not send the agreement by his deadline, he would “give [L.L.] what was coming to her” and “what she deserves” and both of them “would be gone.”
The following day defendant, identifying himself as Irvine Police Department investigator Damon Tucker, spoke by telephone to the human resources manager where L.L. worked. After learning L.L. was not at work that day, he told the manager he needed to speak with L.L., a “known criminal, ” and made an appointment to review L.L.’s personnel file. Suspicious, the manager called the Irvine Police Department and was told Tucker now worked elsewhere. Officers were at L.L.’s workplace at the time of defendant’s appointment, but he did not show up. At trial Tucker testified that, while he worked for the Irvine police, he had had contact with defendant four times, including one visit with him, L.L., and M.L. at their residence. He did not call L.L.’s workplace or authorize defendant to use his personal information.
Within a few weeks defendant was arrested. Subsequently L.L. obtained a permanent restraining order prohibiting defendant from any kind of contact with her and M.L., including personal, written, telephonic, and electronic. He was barred from coming within 300 yards and contacting them through a third person. Defendant was in court when the order was issued and was also personally served with it that day.
While incarcerated defendant, acting in pro. per., filed a lawsuit against L.L. concerning a couch. Pursuant to his subpoena she had to appear in court two times and defendant would talk to her there. In addition, L.L. received several calls from a woman using defendant’s cell phone; she could hear defendant in the background. L.L. told the caller about the protective order and reported the calls to investigators. Further, defendant placed a number of collect calls to L.L. on her cell phone and at work from a telephone in the jail. This became a daily occurrence. When L.L. reminded him of the protective order he responded he had a right to speak to her to investigate his lawsuit.
The court, in defendant’s presence, revoked his telephone privileges. Defendant then called L.L. through a three-way conference call. A few months later defendant called L.L. at work and on her cell phone “really pressuring” her to have the restraining order vacated and not to cooperate with the district attorney, warning of “some kind of federal charges” against her if she did not comply with his demand.
DISCUSSION
1. Jury Instruction as to Required Intent for Child Abuse
Defendant was convicted of misdemeanor child abuse pursuant to section 273a, subdivision (b), which states: “Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.”
Violation of this statute may be direct or indirect. (People v. Burton (2006) 143 Cal.App.4th 447, 454.) “When the harm to a child is directly inflicted, the requisite mental state for the section 273a offense is general criminal intent. [Citations.] When that harm is indirectly inflicted, the requisite mental state is criminal negligence. [Citations.]” (Ibid.)
The child abuse count was based on M.L.’s mental suffering as a result of her witnessing defendant choking L.L. When defendant threatened to drag L.L. down the stairs, M.L. woke up and screamed for her mother. She saw L.L. sitting on the floor with one of defendant’s hands on her neck. She screamed, “You are hurting my mommy.” She was sad and afraid. She told police she heard defendant and L.L. arguing. L.L. then came into her bedroom where M.L. was sleeping. She saw defendant choke L.L. and was scared and “didn’t know... what to do.”
A neighbor testified she heard M.L. scream “at the top of her lungs, ” “‘Stop. You are choking my mommy. That’s my mommy. You are hurting her.’” Upon entering L.L.’s apartment she saw M.L. “just trembling like a leaf.” M.L. told her defendant was choking and hurting her mother.
Here the jury was instructed with CALCRIM No. 823 as follows: “To prove that the defendant is guilty of [child abuse] the People must prove that: [¶]... the defendant willfully inflicted unjustifiable physical pain or mental suffering on a child. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] A child is any person under the age of 18 years. [¶] Unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary, or is excessive under the circumstances.” The court also instructed the jury that defendant had to commit the acts “with wrongful intent, ” that is, “intentionally do[ing] a prohibited act on purpose. However, it is not required that he intend to break the law.” (CALCRIM No. 252.)
Defendant claims that these instructions as to general criminal intent were erroneous because they are appropriate for a theory of direct infliction of child abuse whereas the prosecution’s theory was based on indirect conduct requiring criminal negligence. Despite the Attorney General’s argument to the contrary, we agree. The child abuse here was based on M.L.’s seeing and hearing defendant harm L.L. (People v. Burton, supra, 143 Cal.App.4th at pp. 454-455 [the defendant’s infliction of several deep cuts on child’s mother indirect child abuse although child, though nearby, did not see actual attack]; see People v. Hamlin (2009) 170 Cal.App.4th 1412, 1440-1441 [dictum that child seeing or hearing the defendant physically abuse his mother would be indirect child abuse].)
“The trial court has a sua sponte duty to instruct the jury on the general principles of law that are necessary for the jury’s understanding of the case. [Citation.]” (People v. Butler (2010) 187 Cal.App.4th 998, 1013.) The instruction for indirect child abuse that should have been given states the jury must find “defendant was criminally negligent when he caused or permitted the child to suffer, be injured, or be endangered. [¶]... [¶] Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that is a gross departure from the way an ordinarily careful person would act in the same situation; [¶] 2. The person’s acts amount to disregard for human life or indifference to the consequences of his or her acts; [¶] and [¶] 3. A reasonable person would have known that acting in that way would naturally and probably result in harm to others.” (CALCRIM No. 823, italics and capitalization omitted.)
“A trial court’s failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury’s verdict. [Citations.]” (People v. Tripp (2007) 151 Cal.App.4th 951, 959, fn. 3.) The error here was harmless.
The evidence establishes defendant’s conduct caused seven-year-old M.L. unjustifiable mental suffering. She was compelled to watch her father choke her mother right next to where M.L. was lying in bed after being woken up from sleep. She was fearful and screamed “at the top of her lungs, ” quite aware defendant was hurting her mother. There can be no doubt defendant’s conduct was reckless, showing a total lack of concern for the effect on M.L. Even after she protested once and began crying, defendant again choked L.L. Any reasonable person would have realized that conduct would cause mental anguish to a child. The elements of criminal negligence were proven and the record shows that failure to give the instruction was harmless beyond a reasonable doubt.
2. Identity Theft
a. Willfulness of Act
Section 530.5, subdivision (a) prohibits a person from “willfully obtain[ing] personal identifying information... of another person[] and us[ing it] for any unlawful purpose... without the consent of that person....” Defendant was charged with a violation of this section based on his use of Tucker’s identity to call L.L.’s workplace, learn that she was not present at work, and set an appointment to review her personnel records. Defendant contends there was insufficient evidence to show he willfully obtained Tucker’s personal identification because Tucker gave him his name and occupation when he visited defendant’s residence.
Defendant’s argument is based on the assumption that to “willfully obtain” means he had to proactively seek out the identifying information. We see no such requirement in the statute. Once defendant heard it from Tucker, he intentionally remembered it. That was enough. Nor did he have to obtain it unlawfully. Thus People v. Tillotson (2007) 157 Cal.App.4th 517 where the defendant illegally obtained victims’ credit reports does not support defendant’s position.
b. Instruction on Lesser Included Offense
As an alternate theory, defendant claims the court was required to instruct on the lesser included offense of attempted identity theft. One of the elements of the crime is use of another’s personal information for an unlawful purpose. (§ 530.5, subd. (a).) He claims that none of the acts he committed when using Tucker’s personal information were unlawful – not arranging an appointment or making a defamatory statement (L.L. was a “known criminal”).
Defendant acknowledges that using Tucker’s identity to attempt to obtain confidential information from L.L.’s personnel file is an unlawful purpose, and the jury was instructed to that effect. (CALCRIM No. 2040.) He argues, however, that he never appeared at L.L.’s workplace or actually looked at her file, so he merely attempted to obtain her personal information. Not so. Defendant used the information for the unlawful purpose of looking at her personnel file. That satisfied the element whether or not he appeared at the appointment.
Defendant analogizes his case to a conviction for false impersonation, relying of People v. Cole (1994) 23 Cal.App.4th 1672 to support his argument but another case on which he relies, People v. Tillotson, supra, 157 Cal.App.4th 517, dealing with identity theft, is more on point. There, the defendant improperly obtained personal information, including a credit report, about a number of police officers. After learning of it, one of the officers, Kenneth Ramsey, obtained a restraining order prohibiting the defendant from, among other things, harassing, stalking, molesting, or surveilling him. The defendant then contacted a nonprofit organization that investigated alleged police misconduct using hidden cameras. She entered into a contract to investigate two police departments, one of which was Ramsey’s employer. Later, after providing the nonprofit with Ramsey’s home address, the defendant sought to have it surveil Ramsey when he was not on duty. The nonprofit declined, explaining it did not investigate off-duty police officers.
The defendant challenged her conviction for identity theft, asserting that giving Ramsey’s address to the nonprofit was not illegal because no surveillance was ever conducted. The court disagreed, pointing out that when she provided Ramsey’s address she knew it would violate the restraining order. Because the evidence supported a conviction for attempted contempt of court, the court concluded the defendant was using Ramsey’s information for an unlawful purpose. (People v. Tillotson, supra, 157 Cal.App.4th at p. 533.) Although here defendant was not charged with contempt, he engaged in the same conduct as did the defendant in Tillotson.
The court is not required to instruct on a lesser included offense without sufficient evidence the defendant did not complete the crime. (People v. Strunk (1995) 31 Cal.App.4th 265, 271.) There was no such evidence here.
3. Violation of Protective Order
Defendant challenges 11 of the 14 convictions for violation of the protective order, arguing that the evidence supported only attempted violations. The basis for this claim is that on those 11 occasions when he contacted L.L. by phone he never completed the act because L.L. did not accept the calls. But the fact L.L. refused defendant’s calls does not mean he did not contact her. The injunction was not limited to actual conversations. The whole purpose of the injunction was to keep defendant from harassing L.L. and M.L. His incessant telephone calls to L.L., whether answered or not, were harassment. And, for the same reasons as stated above regarding identity theft, defendant was not entitled to an instruction on attempted violation of the protective order.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., IKOLA, J.