Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F06232
SCOTLAND, P.J.
Following the deaths of his twin infant daughters, defendant Ernest Dashon Noel was found guilty of two counts of felony child endangerment. He was sentenced to five years and four months in prison (the middle term of four years for the first count, and a consecutive term of 16 months for the second count); was awarded 13 days of presentence custody credit; was ordered to pay an $800 restitution fine, a $800 restitution fine suspended unless parole is revoked, a $20 court security fee for each conviction, a $213.37 main jail booking fee, and a $23.50 main jail classification fee; and was required to provide DNA samples.
Defendant appeals, and we appointed counsel to represent him on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant’s supplemental brief contends (1) “the lesser included charge [of misdemeanor child endangerment] was the only charge for which [he] could possibly be found guilty based upon the evidence,” (2) he was not present when the crimes allegedly took place, (3) he “did not live at that residence and [his] name was not on the lease,” and (4) Child Protective Services (CPS) and Birth & Beyond, not defendant, are criminally liable for the twins’ deaths. We shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Defendant and his girlfriend, Vanessa Rose Hackett, had three children together. Twin daughters, Ak. and Al., were born April 16, 2004, when daughter M. was approximately one year old.
In February 2004, before the twins were born, Hackett enrolled in Birth & Beyond, a voluntary program for families expecting or just having had a baby. Birth & Beyond provides education and training on proper parenting techniques, nutrition, clothing, diapering, sleeping, etc.
Following the twins’ birth, defendant, Hackett, and their three children, lived in a two-story apartment. Brandi Finley, a representative from Birth & Beyond, visited the apartment on April 27, May 6, and May 13, 2004. The apartment was clean, and Hackett appeared to be bonding with the twins, who appeared to be doing well.
On May 25, 2004, defendant was arrested for a misdemeanor theft offense. He pled guilty and was sentenced to 30 days of work project, which required him to work from 7:45 a.m. until 3:00 p.m., unless he was allowed to leave earlier.
On May 26, 2004, the day after defendant’s arrest, Finley received a call from another Birth & Beyond representative who had some concerns about Hackett. Finley telephoned Hackett, went to the apartment, saw that it was dirty and chaotic, found the twins in their car seats with bottles propped up in front of them, and observed that one of the twins had a rash under her neck and white “stuff” on her tongue.
Hackett agreed to voluntarily place the children in the crisis nursery for respite care. A medical exam revealed that both twins had thrush and diaper rash. The next day, Hackett and defendant told Finley they wanted the children returned to their custody that day. They eventually agreed to allow the children to stay in the crisis nursery until June 1, 2004.
On June 1, 2004, Finley and a social worker from CPS met with Hackett and defendant and explained that someone from the crisis nursery had contacted CPS about the children’s condition. Hackett and defendant agreed to “step up” their participation in Birth & Beyond to avoid further involvement by CPS. In particular, they agreed to three visits a week by Finley.
Finley visited the apartment on June 3, 2004. The twins’ thrush appeared to be clearing up and their rashes appeared to be healing. Defendant showed Finley a checklist that he made of the times the twins were to be given their medication. Defendant was quick in responding to the twins’ cries, while Hackett had to be encouraged to do so.
Finley returned the following day. Defendant was attentive to the twins’ needs, while Hackett was easily frustrated by their fussing.
Finley next visited the apartment on June 10, 2004. There were blankets on the downstairs’ floor, along with M.’s mattress. Defendant and Hackett said they were sleeping downstairs because it was too hot upstairs, but the twins were sleeping upstairs. The twins’ thrush appeared to be clearing up, but the rashes were still there.
Finley returned the next day. The twins were upstairs in their car seats. Al.’s thrush was almost gone, but Ak.’s was still there. Defendant prepared some bottles when the twins fussed, and he and Hackett fed the twins.
Finley’s next visit was on June 16, 2004. The twins’ thrush was gone, but their rashes persisted. Defendant prepared bottles for the twins. When the twins cried, defendant quickly responded, while Hackett had to be prompted to do so.
Defendant and Hackett cancelled a visit Finley had scheduled for June 24, and her next visit occurred on June 28, 2004. Hackett was unkempt and her bed was in the middle of the living room.
Finley dropped by the apartment unannounced on June 30, 2004. Hackett was disheveled, and the apartment was messy and smelled of soiled diapers and formula. The twins were upstairs, awake in their car seats. Both still had rashes under their necks.
Finley returned the following day with a public health nurse. The apartment was still messy and had a foul odor. When the public health nurse learned that the twins’ immunizations were not up to date, she made an appointment for them to be immunized the next day.
Finley accompanied Hackett and the children to the appointment on July 2, 2004. The twins were “dirty and very, very smelly,” and Al. had a severe diaper rash and her bottom was bloody. Finley returned home with Hackett and the twins after the appointment, watched as Hackett bathed the twins, and attempted to teach Hackett how to respond to the twins’ cues and how to calm them down. Hackett said that she expected defendant to return home soon.
Finley next visited the apartment on July 8, 2004, but Hackett was leaving to attend a “work orientation.”
Finley dropped by the apartment unannounced at around 9:00 a.m. on July 14, 2004. M. was downstairs and had bruises on her face. The twins were upstairs, but Hackett would not allow Finley to check on them. Thus, Finley returned to her office and arranged for a CPS investigator to go to the apartment that afternoon and take custody of the children. Defendant was released from the work project at about 2:00 p.m. that day. When he got home, he asked Hackett how the twins were doing. She responded, “Fine,” and said she had last checked on them “a couple of hours ago.” Defendant went upstairs and found the twins “stiff” in their car seats. He told Hackett, “Babe, you know, the kids are dead,” and she telephoned 9-1-1.
At 2:35 p.m. on July 14, 2004, the Sacramento Fire Department received a report of unresponsive infants at defendant’s and Hackett’s apartment. Paramedics and other fire personnel arrived there at 2:41 p.m., and the twins were pronounced dead at 2:42 p.m.
It was extremely hot in the upstairs area of the apartment where the twins were found. At 6:10 p.m., the temperature was 95 degrees.
A pathologist opined that the twins had been dead for “many hours.” They were dehydrated, malnourished, and dirty. Their bodies had been under “severe stress” for days or weeks. Both had sunken eyes and severe diaper rash. It appeared that the twins had not been bathed in days. Ak. had ulcers on her labia that were infected and had been there for a while; and there were old bruises on Al.’s brain and a fresh hemorrhage at the base of her head and the top of her neck. Although the pathologist could not determine the exact cause of death, he was able to narrow it down to one of two reasons, neither of which was natural. They died either from (1) environmental hyperthermia as a result of being kept “in a hot, stuffy room,” becoming dehydrated, and having their temperatures rise, or (2) because it was unlikely that they would both die of hyperthermia about the same time, they probably were smothered. Regardless of the cause of death, the pathologist noted that the twins “were clearly at risk of death from malnutrition, prone to infection, prone to . . . getting heart disease and whatnot from mal-nutrition [sic] for days to weeks.”
Following the twins’ deaths, defendant told investigators that he and Hackett shared the responsibilities of caring for the twins. Defendant did “more of like the feeding and bathing stuff,” while Hackett did “more of the clothing stuff.”
The parties stipulated that Hackett was serving a sentence in state prison having been found guilty in connection with the twins’ deaths, and admitted she was responsible for the bruises on M.’s face.
The trial court denied defendant’s motion “to present evidence of his [mental] disabilities and explain how they affected his ability to act as a prudent person in the same or similar circumstances”; rejected defendant’s contention that Penal Code section 25 is unconstitutional as applied because it denied him the right to prepare and present a defense under the Sixth Amendment; and denied defendant’s request for a jury instruction allowing the jurors to “evaluate the reasonableness of [his] actions in light of his disabilities” as a reasonable accommodation under the Americans With Disabilities Act.
Penal Code section 25 abolished the defense of diminished capacity. It states in part: “In a criminal action, . . . evidence concerning an accused person’s . . . mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.” (Pen. Code, § 25, subd. (a).)
After the jury rendered its verdict, the trial court denied defendant’s motion for a new trial on the ground that the People failed to allege a course of conduct by alleging that defendant committed the charged offenses “on or about July 14, 2004.”
DISCUSSION
I
Defendant first contends his convictions for felony child endangerment must be reversed because “the only charge for which [he] could possibly be found guilty based upon the evidence” was the lesser included offense of misdemeanor child endangerment. He is mistaken.
The court instructed the jury on felony child endangerment, as well as on the lesser included offense of misdemeanor child endangerment. The difference between the two offenses is that the former requires circumstances likely to produce great bodily harm or death while the latter does not. (Pen. Code, § 273a, subds. (a), (b).)
There was ample evidence to support defendant’s convictions for felony child endangerment. Indeed, the pathologist testified that the twins “were clearly at risk of death from malnutrition, prone to infection, prone to . . . getting heart disease and whatnot from mal-nutrition [sic] for days to weeks.”
II
Defendant claims “the evidence presented by the [People] relating to the deaths of [his] children concerned incidents that happened on [a] day . . . when [he] was not there.” His claim is not supported in the record.
The pathologist testified the twins had been under “severe stress” and “were clearly at risk of death” for days to weeks. Defendant lived with the twins and shared the responsibilities of caring for them. Following the twins’ deaths, defendant told officers that he did “more of like the feeding and bathing stuff.” While defendant worked from approximately 7:45 a.m. until 3:00 p.m. on the weekdays leading up to the twins’ deaths, nothing prevented him from taking care of them during the afternoons, evenings, or on weekends.
III
Defendant’s contention that he did not live at the apartment is not supported by the record. He told investigators he lived there, and he was present during several of Finley’s visits. Whether his name was on the lease is irrelevant.
IV
Finally, defendant claims (1) CPS should not have removed the children from the crisis nursery and returned them to their mother when they knew the children needed medical care, and (2) representatives from CPS and Birth and Beyond “were present at the residence more often than [he] was and . . . knew more about what was going on than [he] did.” Thus, defendant contends that CPS and Birth & Beyond are criminally responsible for the twins’ deaths.
The actions of CPS and Birth & Beyond have no bearing on defendant’s culpability. CPS’s and Birth & Beyond’s involvement did not absolve him of his own responsibilities in caring for his children.
V
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: SIMS , J., MORRISON , J.