Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F8069
BLEASE, Acting P. J.
Following a jury trial, defendant Alli Kaarin Olson was convicted of felony child endangerment (Pen. Code, § 273a), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), and driving with a blood alcohol level in excess of.08 percent (Veh. Code, § 23152, subd. (b)).
On appeal the defendant does not challenge the drunk driving convictions. Rather, she claims (1) there was insufficient evidence to convict her of child endangerment; (2) the trial court erred in refusing to give an instruction on the definition of “likely” in connection with the charge of child endangerment; and (3) the trial court erred in denying her motions for a mistrial.
We conclude defendant’s claim that there was insufficient evidence to convict her borders on the frivolous; the trial court properly instructed the jury; and, the trial court properly exercised its discretion in denying defendant’s motions for a mistrial.
We shall affirm the judgment.
BACKGROUND
On October 2, 2008, at approximately 3:00 p.m., Karen Hart picked her grandchildren up from preschool and was securing them in their car seats when she heard a “scrape” on the pavement, followed by a baby’s cry. Telling her grandchildren to remain in their seats, Hart stepped away from the driver’s side of her car and turned to see defendant on the ground, holding a 16-month-old baby boy.
Sitting on the ground, defendant’s legs were “sprawled” out, she had a scrape on the side of her face, and she was trying to put a pacifier in the baby’s mouth. Hart saw that the baby, defendant’s son Quincy, had a large bruise and a “knot” on his forehead.
Hart spoke to defendant, but defendant seemed “dazed and confused.” Hart repeatedly asked defendant if she needed help, offering to call someone for her but defendant refused. Hart also suggested to defendant that Quincy needed medical attention. Defendant responded with, “no, we’ll be okay.”
When Quincy stopped crying, Hart offered to hold him so defendant could get up off the pavement. Defendant handed Quincy to Hart and, with some effort, was able to stand and walk to her car. Hart, who was still holding Quincy, followed defendant to her car. Hart handed Quincy over to defendant and watched defendant put Quincy in his car seat.
Hart was concerned that defendant hit her head on the pavement when she fell, so she worried about defendant’s ability to drive. Hart again offered to call someone for defendant and again suggested that Quincy needed medical attention. Defendant’s only response was that she may stop by the emergency room on her way home. Hart went to the school office to alert someone.
Linda Sellers was working in the school office that day. Hart came into the office and told Sellers that a parent had fallen in the parking lot and should not be driving. Sellers went to the parking lot and saw defendant putting Quincy in his car seat. As Sellers approached defendant and Quincy, she noticed a large “goose egg” on the right side of Quincy’s forehead and black, asphalt marks on defendant’s face.
Sellers also noticed that defendant was moving slowly, speaking slowly, and fumbling with the car seat latch. Sellers told defendant she would call for someone to come get them because she did not believe defendant could safely drive the car. Defendant refused, saying she was going to the emergency room.
Sellers went back to the office to find Quincy’s emergency contact information. Sellers continued watching defendant through the office window; she saw defendant start the car. Sellers also saw defendant’s car back up and hit a parked car. The force of the collision was so strong, it caused the back end of the parked car to lift off the ground. Defendant did not stop but pulled her car forward and drove quickly from the parking lot.
Defendant was next seen at Mercy Medical Center, where she parked her car in the entrance to the ambulance bay. David Fossum, the hospital’s security manager, did not see defendant drive in to the ambulance bay, but saw defendant sitting in the car; Quincy was crying in the backseat and defendant looked “confused.” Fossum approached defendant and asked if she needed help. Defendant told Fossum that Quincy had fallen at day care and hit his head; Fossum left and returned with a triage nurse, who took Quincy into the hospital.
Fossum then asked defendant to move her car. He directed defendant to a parking space and watched as defendant struggled to park. Fossum noted that defendant’s eyeliner was crooked, though she did not appear to be crying, and her pupils were dilated.
Inside the hospital, Jesse Wells, M.D. was on duty. Board certified in emergency medicine, Dr. Wells has specialized training in treating head trauma in adults and children. Dr. Wells was told that Quincy was in his mother’s arms when she tripped and fell, landing on Quincy. Dr. Wells examined and treated Quincy for head trauma.
During his examination of Quincy, Dr. Wells observed abrasions and a four centimeter contusion with a hematoma, bruising and swelling, on the right side of Quincy’s forehead. Dr. Wells also noted an injury to the posterior right shoulder with bruising and abrasions. The hematoma was evidence of direct blunt trauma to that portion of Quincy’s head. There was, thus, a risk of fracture and bleeding inside Quincy’s skull, which could put pressure on his brain, and possibly lead to his death. Dr. Wells opined that both injuries were very recent. Dr. Wells confirmed there was no bleeding inside the skull and discharged Quincy with instructions for monitoring a closed head injury.
Meanwhile, City of Redding Police Officer Michael Dimatteo responded to a call from the emergency room. When Officer Dimatteo arrived, he met defendant, who appeared to be intoxicated. Dazed and confused, defendant’s eyes were red and watery and her speech slow. Officer Dimatteo also noted that defendant was “swaying” from front to back and he smelled alcohol on her breath. Defendant would admit only that she had a single shot of vodka the night before; she denied consuming any alcohol that day. Officer Dimatteo relayed the information to Officer Smyrnos, a “DUI specialist.”
Officer Smyrnos arrived at the emergency room around 5:30 p.m. and was directed to defendant. Upon meeting defendant, Office Smyrnos noted defendant’s eyes were red and watery. He also noted defendant was emitting a strong, distinct odor of alcohol and her speech was slow and deliberate, as though she was having a hard time forming words and sentences. Officer Smyrnos saw scrapes on defendant’s knees and redness on her nose and face, and he saw a large, red abrasion on Quincy’s forehead.
Smyrnos asked defendant whether she had been drinking alcohol that day. Defendant again denied drinking anything other than a shot of vodka the night before. Defendant reported that she did not feel dizzy, light-headed, or intoxicated. She also reported no physical or medical problem that would impair her ability to perform field sobriety tests.
Officer Smyrnos then administered three separate field sobriety tests. Each test resulted in defendant demonstrating she was impaired. Officer Smyrnos thus concluded defendant could not safely operate a motor vehicle. Defendant was arrested and given two breath tests for the presence of alcohol. The first test was administered at 6:00 p.m. and the second at 6:05 p.m.; both measured a blood alcohol content of 0.14 percent. No bottles or containers of alcohol were found in defendant’s car.
Defendant was arrested and charged with felony child endangerment (Pen. Code, § 273a, subd. (1)) driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), and driving with a blood alcohol content at or exceeding.08 percent (Veh. Code, § 23152, subd. (b)). Defendant pleaded not guilty to the charges.
At trial, Michael Barnes, a senior criminalist at the Department of Justice testified that for purposes of operating a motor vehicle, a person is impaired with a blood alcohol level of.08 percent or more, but noted impairment could be detected at levels as low as.04 percent. Barnes explained that a person who had a greater “tolerance” for alcohol may appear less affected by the alcohol, but their impairment would be the same. Barnes opined that driving with a blood alcohol level in excess of.08 percent would increase the probability of a collision.
Barnes further opined that, to reach a blood alcohol level of.14 percent, a person of defendant’s approximate weight would need to have consumed at least four ounces of hard liquor, or four 4-ounce glasses of wine, or four 12-ounce cans of beer. Factoring in the two hours from the time defendant last operated a motor vehicle to the time she was tested, Barnes opined that a person would need to have consumed two additional drinks in order to reach a blood alcohol level of.14 percent. Barnes further indicated that, under those circumstances, a person’s blood alcohol level would have been.18 percent when they were driving the car.
Defendant testified on her own behalf. She claimed that she left work and went to a friend’s house near the preschool intending to go home soon thereafter. Defendant admitted she drank wine when she got to her friend’s house. Then, her friend’s husband mixed fruity, “little, fancy mixed drinks” in four inch glasses and defendant drank four of those. Defendant testified that she consumed her last alcoholic beverage approximately one hour and 20 minutes before she left to pick up Quincy.
Defendant said she was driving a car that she shared with her mother and she had a car seat for Quincy in the back seat. Defendant arrived at the preschool, walked up the stairs, spoke with Quincy’s teacher, signed Quincy out, and left with him. Defendant explained that Quincy wanted to hold her hand so they walked down the ramp instead of the stairs. At the bottom of the ramp, defendant picked Quincy up and carried him to the car.
Defendant walked to the car and opened the door on the passenger’s side. Defendant explained that Quincy liked to get into his car seat by himself so she set him down. Standing on the ground in front of defendant, Quincy threw his “sippy cup.” The sippy cup rolled into the parking lot where it broke into three pieces. Quincy darted out and attempted to grab his cup. Defendant claims she then yelled, “Quincy, baby stop, ” saw him turn his head and then slip or fall onto the pavement.
Defendant further testified that, just before Quincy fell, she went out to grab him. As she reached for Quincy, defendant claimed that she also fell and they hit the ground at nearly the same moment. Defendant described sliding hands down and head first. When Quincy hit the ground, he began crying. Defendant got to her knees, picked him up and held him; she also checked to see if he was injured. Defendant said she saw the injury on Quincy’s forehead.
As defendant remembers it, about the time she saw the injury on Quincy’s forehead is when Hart approached her and offered help. By the time Sellers arrived, Quincy was calm and already in the car. Defendant explained that, at Sellers’s request, she waited a few minutes, then she drove Quincy to the hospital where her mother worked.
Defendant remembered backing up the car and feeling “something, ” but was not aware that she had hit anything until much later because she was focused on Quincy who had begun crying in the backseat. Defendant also remembered speaking to the security guard at the hospital and several police officers, and performing numerous field sobriety tests. Defendant admitted she lied to Officer Dimatteo about consuming alcohol that day. She further admitted that she knew it was dangerous to drive after drinking alcohol, indeed her brother was killed by a drunk driver.
Defendant’s father testified that, other than a scratch on the rear bumper, the car defendant was driving on the day in question had no damage.
John Gates, a retired Salinas Police Officer, testified that the distance between the preschool and the hospital was eight-tenths of a mile, and the posted speed limit was 35 miles per hour.
The jury found defendant guilty as charged. The trial court subsequently imposed judgment but suspended imposition of sentence, ordering defendant to serve four years of formal probation. Defendant appeals her conviction.
DISCUSSION
A. Sufficient Evidence Supports Defendant’s Conviction for Felony Child Endangerment.
Defendant contends there was insufficient evidence to convict her of felony child endangerment.
In determining whether the evidence is sufficient to support a conviction, the court must review “the whole record in the light most favorable to the judgment” and decide “whether it 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, 578.) “Under this standard, the court does not ‘“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, 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.]” (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.)
Penal Code section 273a, subdivision (a), “‘is an omnibus statute that proscribes essentially four branches of conduct.’” (People v. Valdez (2002) 27 Cal.4th 778, 783, relying on People v. Sargent (1999) 19 Cal.4th 1206, 1215.) Section 273a proscribes both direct and indirect endangerment of a child. The felony child endangerment statute is “‘“intended to protect a child from an abusive situation in which the probability of serious injury is great.” [Citation.]’” (People v. Valdez, supra, 27 Cal.4th at p. 784.) Thus it is a felony where “Any person who, under circumstances or conditions likely to produce great bodily harm or death... willfully causes or permits [a] child to be placed in a situation where his or her person or health is endangered....” (Pen. Code, § 273a, subd. (a).) That is what the jury was instructed.
To support her contention, defendant argues that, “[n]otwithstanding public policy concerns, the child endangerment statute is not a ‘strict liability’ offense. Consequently, as a matter of law, it cannot always be said ‘children and parents driving under the influence of alcohol don’t mix.’” Thus, she contends, because no witness saw her drop Quincy in the parking lot and there was no evidence she committed any “speed or vehicular violations during the eight-tenths mile” drive to the emergency room, the People failed to prove she “caused or permitted Quincy to suffer, be injured, or be endangered under circumstances or conditions likely to produce great bodily harm or death.” This provision “‘requires proof of criminal negligence.’” (People v. Valdez, supra, 27 Cal.4th at p. 784, citation omitted.)
The defendant argues that she secured Quincy in his car seat and went inside the hospital to be with him while he was examined. These actions, she contends, are “certainly inconsistent with a person committing felony child endangerment.” We disagree.
The defendant does not challenge the drunk driving offenses. Nor could she. She concedes, as the evidence shows, that she was severely impaired both in walking and driving as a result of intoxication. The People’s expert testified that a person’s ability to drive is impaired at.08 percent and the risk of collision is increased. Defendant’s blood alcohol level, two hours after driving her car, was.14 percent - nearly twice the level at which she would have been impaired. Thus, whether defendant slipped, fell, or dropped Quincy in the parking lot at the preschool, she was, literally, falling down drunk when she drove him to the hospital. Accordingly, the evidence unequivocally supports a finding that defendant endangered Quincy under circumstances likely to produce great bodily harm.
B. The Trial Court Did Not Err in Refusing Defendant’s Proposed Definition of the Term “Likely” in the Jury Instructions.
Penal Code section 273a, subdivision (a) provides that “[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, ... willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.”
Relying on People v. Wilson (2006) 138 Cal.App.4th 1197, defendant also claims the trial court erred in refusing the defendant’s request to define the term “likely, ” as follows: “‘Likely’ requires a finding of a substantial danger, i.e. a serious and well-founded risk of great bodily harm or death, rather than a finding that the risk of great bodily harm or death is merely probable or more likely than not.” Specifically, defendant contends that in the context of a child endangerment charge, the term “likely” has a “technical meaning peculiar to the law” and should be given a more particular definition. We disagree.
Although the meaning of the word “likely” is flexible (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916 (Ghilotti)), both the legal and nonlegal sources define the word in terms of probability. (Compare sources collected in Ghilotti, supra, at p. 917; Webster’s 3d New Internat. Dict. (1971) p. 1310.) Consistent with these definitions, case law has long recognized that the phrase “likely to produce great bodily harm or death” in Penal Code section 273a means “‘the probability of serious injury is great.’” (Sargent, supra, 19 Cal.4th at p. 1223, quoting People v. Jaramillo (1979) 98 Cal.App.3d at 830, 835; People v. Cockburn (2003) 109 Cal.App.4th 1151, 1160; People v. Valdez, supra, 27 Cal.4th at p. 784; People v. Odom (1991) 226 Cal.App.3d 1028, 1033; Cline v. Superior Court (1982) 135 Cal.App.3d 943, 948; People v. Northrop (1982) 132 Cal.App.3d 1027, 1035; People v. Hernandez (1980) 111 Cal.App.3d 888, 895.)
The court in People v. Wilson, supra, 138 Cal.App.4th 1197, reached a somewhat different result by looking to Ghilotti, supra, 27 Cal.4th 888, and held that the proper definition is “a substantial danger, i.e. a serious and well-founded risk, of great bodily harm or death.” (People v. Wilson, supra, 138 Cal.App.4th at p. 1204.) The Wilson court believed this definition applied equally to Penal Code section 273a because in its view it “draws a fair balance between the broad protection the Legislature intended for vulnerable children and the level of seriousness required for a felony conviction.” (Ibid.)
We are not persuaded by Wilson because it failed to consider the relevant authorities cited above and mistakenly relied on Ghilotti. Ghilotti, supra, 27 Cal.4th 888, arose in the context of the Sexually Violent Predators Act (SVPA), which authorizes the civil commitment of violent sex offenders following completion of their prison term. (Welf. & Inst. Code, § 6600 et seq.)The Supreme Court construed the meaning of the word “likely” in section 6601 of the Welfare and Institutions Code. That section requires two mental health professionals to evaluate the candidate for involuntary civil commitment by determining whether “the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody....” (§ 6601, subd. (d).) The defendant argued “likely” meant “highly likely” or at least “more likely than not.” The People argued it meant “‘a significant chance, not minimal; something less than “more likely than not” and more than merely “possible.”’” The Supreme Court concluded that neither party was entirely correct. (Ghilotti, supra, at pp. 915-916.)
Recognizing the word “‘likely’ may be used flexibly to cover a range of expectability from possible to probable, ” (Ghilotti, supra, 27 Cal.4th at p. 916) the court concluded the proper definition under Welfare and Institutions Code section 6601 was the narrower definition of “a substantial danger, that is, a serious and well-founded risk....” (Id. at p. 922.) The court arrived at this definition for two reasons. First, the word must be given a meaning consistent with the purpose of the SVPA. That purpose is to protect the public from the limited group of persons who currently suffer from a mental disorder that impairs their ability to control their violent sexual impulses such that they “do in fact present a high risk of reoffense if they are not treated in a confined setting.” (Id. at p. 921.) Second, the word must be construed “in light of the ‘difficulties inherent in predicting human behavior....’” (Ibid.; see also People v. Roberge (2003) 29 Cal.4th 979, 988-989 [affirming that Ghilotti's definition of “likely” was tailored to the purposes of the SVPA because the word has a particular and technical meaning under the SVPA].)
The considerations pertinent to the SVPA are different from those raised by Penal Code section 273a. While both the SVPA and Penal Code section 273a serve to protect others from abuse, the SVPA operates by providing procedures for the involuntary civil commitment of sexually violent predators who in fact pose a high risk of reoffense, while Penal Code section 273a protects children from abusive situations by punishing offenders upon conviction of the offense. Secondly, the word “likely” in Penal Code section 273a does not serve as a measure for making the difficult and imprecise task of predicting human behavior. Rather, it is merely a measure for determining the risk of injury created by external and tangible circumstances or conditions. (Sargent, supra, 19 Cal.4th at p. 1223.) For these reasons, we hold that the word “likely” as used in Penal Code section 273a, subdivision (a) is to be given its plain and common sense meaning that “‘the probability of serious injury is great.’” (Sargent, supra, 19 Cal.4th at p. 1223.) Consequently, we find the trial court did not err in refusing the requested instruction.
C. The Trial Court Correctly Denied Defendant’s Request for a Mistrial.
Defendant further contends the trial court erred in denying defendant’s two motions for a mistrial when prosecution witnesses mentioned Child Protective Services’ involvement with defendant. We are not persuaded.
During his testimony, Dr. Wells explained that when he first examined Quincy, Quincy was “in the custody of Child Protective Services.” Defendant objected and a conference was held outside the presence of the jury. Immediately following the conference, the court went on the record to sustain defendant’s objection and strike Dr. Wells’s statement, “insofar as reference to Child Protective Services.” The court admonished the jury they were “not to consider that testimony for any purpose, ” and went on to preclude Dr. Wells and all other witnesses from making any reference to Child Protective Services.
A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (Ibid.) On review, we apply the deferential abuse of discretion standard. (Ibid.)
Here, the trial court immediately struck the reference to Child Protective Services and instructed the jury to disregard it. We presume the jury will follow an instruction to disregard improper evidence. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.)
Later during the trial, the People’s witness, Sellers, testified that, after defendant left the parking lot with Quincy, Sellers contacted Child Protective Services. Defendant objected; counsel and the court then had another conference out of the jury’s presence. Counsel for the People advised the court that the witness had been told not to mention Child Protective Services in her testimony.
Following the conference, the trial court gave the jury the following instruction: “That portion of this witness’ last response referring to CPS is stricken from the record. You are to disregard that testimony and treat it as though you did not hear it. The presence or absence of CPS has no bearing whatsoever on the issues you will be required to consider in this case.” Again, we presume the jury will follow an instruction to disregard improper evidence. (People v. Olivencia, supra, 204 Cal.App.3d at p. 1404.)
Defendant nevertheless argues that the cumulative impact of “multiple” references to Child Protective Services prejudiced defendant despite the court’s instruction that the jury disregard the statement. Defendant made this argument to the trial court and the trial court responded as follows: “The jury heard reference to CPS once before. It’s – the jury has, uh, through the voir dire process, we know – even before the issue of CPS came up, we know that this is a pretty sophisticated jury, and they have already made assumptions that CPS gets involved in cases of this nature, so I don’t know that I am convinced that it’s so prejudicial to the defendant’s case.”
We find the trial court’s analysis of the issue compelling and a proper exercise of its discretion. Accordingly, we conclude the trial court did not abuse its discretion in denying defendant’s mistrial motions.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J. MAURO, J.