Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. F06500138-3, W. Kent Levis, Judge.
Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Louis M. Vasquez, Brian Alvarez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
On April 21, 2006, appellant Lino Manuel Pérez’s former live-in girlfriend María and her four-year-old granddaughter Gabrielle went to a school softball game to watch María’s eight-year-old granddaughter Monique play. Just after the game began, María’s daughter Janette arrived from work and joined María and Gabrielle in the stands.
After the game, María and Gabrielle walked hand-in-hand to the parking lot and, as María opened the door of her van to put Gabrielle inside, she suddenly saw Pérez right in front of her. He asked her, “Don’t you think you punished me long enough already by keeping me away from you?” He grabbed María by the hair, punched her in the eye, and pulled out a knife from inside his jacket. He stabbed her, time after time, inflicting deep gashes to her face, throat, chest, and hands, as he angrily told her, over and over, “You’re going to die.”
Falling to the ground, María managed to grab the knife from Pérez’s hand. Janette struggled to keep him away from María. One of Monique’s coaches tackled him and stayed on top of him until Janette, an off-duty district attorney’s office investigator, handcuffed him.
A jury found Pérez guilty of attempted second degree murder with personal infliction of great bodily injury (Pen. Code, §§ 187, subd. (a), 664, 12022.7, subd. (a); count 1), assault with a deadly weapon (knife) with personal infliction of great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a); count 2), criminal threats with personal use of a deadly weapon (§§ 422, 12022, subd. (b)(1); count 3), battery with infliction of serious bodily injury (§ 243, subd. (d); count 4), willful infliction of corporal injury on a former cohabitant with personal infliction of great bodily injury (§§ 273.5, subd. (a), 12022.7, subd. (a); count 5), two counts of misdemeanor child abuse (§ 273a, subd. (a); counts 6 and 9); and misdemeanor battery (§ 242; count 7). The court imposed an aggregate 12-year sentence (the aggravated 9-year term for attempted second degree murder plus a 3-year term for personal infliction of great bodily injury), imposed and stayed aggravated terms on each of the other felony counts, and imposed concurrent six month terms on each of the misdemeanor child abuse counts. (§§ 190, subd. (a), 273a, subd. (a), 664, subd. (a), 12022.7, subd. (a).)
All statutory references are to the Penal Code except where otherwise noted.
ISSUES ON APPEAL
On appeal, Pérez argues that (1) the use by CALCRIM Nos. 103 and 220 of the term “abiding conviction” so misstates the burden of proof beyond a reasonable doubt as to constitute structural federal constitutional error and prejudicial federal constitutional error, (2) an insufficiency of the evidence of misdemeanor child abuse of both Gabrielle and Monique is in the record, (3) omission of a definition of criminal negligence from the charge to the jury on misdemeanor child abuse denied him due process, and (4) in the absence of jury findings on circumstances in aggravation the court’s sentence choices of the aggravated terms violated his federal constitutional rights to due process and trial by jury. We will strike from the judgment his conviction of misdemeanor child abuse of Monique due to an insufficiency of the evidence but otherwise will affirm the judgment.
DISCUSSION
1. CALCRIM Nos. 103 and 220
Pérez argues that the use by CALCRIM Nos. 103 and 220 of the term “abiding conviction” so misstates the burden of proof beyond a reasonable doubt as to constitute structural federal constitutional error (Sullivan v. Louisiana (1993) 508 U.S. 275) and prejudicial federal constitutional error (Chapman v. California (1967) 386 U.S. 18). The Attorney General argues the contrary.
Pérez focuses on the use of the term “abiding conviction” in CALCRIM Nos. 103 and 220 alike: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” With commendable candor, he acknowledges that numerous Court of Appeal opinions have rebuffed challenges to the use of the term in analogous CALJIC No. 2.90. (See, e.g., People v. Aguilar (1997) 58 Cal.App.4th 1196, 1207-1209; People v. Hurtado (1996) 47 Cal.App.4th 805, 815-816; People v. Tran (1996) 47 Cal.App.4th 253, 262-263; People v. Light (1996) 44 Cal.App.4th 879, 884-888 (Light); People v. Torres (1996) 43 Cal.App.4th 1073, 1077, disapproved on another ground by People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3.) He argues, however, that those cases did not examine the term “abiding conviction” in the context of a CALCRIM charge to the jury, that the term states a burden of proof no different from the civil preponderance of the evidence standard, and that the California Supreme Court has not yet ruled on his argument.
Despite some differences between the CALJIC and the CALCRIM charges to the jury, Pérez fails to persuade us that our holding in Light or the holdings in the other Court of Appeal cases cited above were wrong. To the contrary, we consider those authorities, as well as the California Supreme Court’s rejection of an analogous challenge to CALJIC No. 2.90 just a few years ago, dispositive of his argument. “‘An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.’” (People v. Brown (2004) 33 Cal.4th 382, 392, quoting Victor v. Nebraska (1994) 511 U.S. 1, 14-15 (Victor).) The federal due process clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he [or she] is charged.” (In re Winship (1970) 397 U.S. 358, 364 (Winship).) The issue here is “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” (Victor, supra, at p. 6; see Estelle v. McGuire (1991) 502 U.S. 62, 72-73 (Estelle); People v. Clair (1992) 2 Cal.4th 629, 663.) Since Pérez fails to persuade us that the jury so understood the term “abiding conviction” in CALCRIM Nos. 103 and 220, we reject his argument.
2. Sufficiency of the Evidence of Misdemeanor Child Abuse
Pérez argues that an insufficiency of the evidence of misdemeanor child abuse of both Gabrielle and Monique is in the record. The Attorney General argues that a sufficiency of the evidence is in the record.
Preliminarily, we turn to two fundamental errors in Pérez’s argument. First, he argues that section 273a, subdivision (a) “states the felony provision” and section 273a, subdivision (b) “states the misdemeanor provision” of child abuse, but he is only half right. Contrary to his argument, section 273a, subdivision (a) defines a wobbler, not a felony (cf. § 17, subds. (a), (b)), although, consistent with his argument, section 273a, subdivision (b) defines a misdemeanor:
“(a) Any person who, under circumstances or conditions 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 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.
“(b) 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.” (§ 273a, subds. (a), (b); italics added)
Second, Pérez argues that the jury found him guilty of two counts of misdemeanor child abuse “in violation of section 273a, subdivision (b),” but he is wrong. The information charged him with, and the jury found him guilty of, two counts of misdemeanor child abuse in violation of section 273a, subdivision (a) (the wobbler), not two counts of misdemeanor child abuse in violation of section 273a, subdivision (b) (the misdemeanor).
The record shows that Gabrielle stood between María’s legs with her arms wrapped around her legs when Pérez began the attack from which Gabrielle broke free, crying and screaming, to run away. Monique was inside Janette’s van on the other side of the street when she started crying and screaming at the sight of María lying bloody on the ground. Both girls had counseling sessions after the attack. Gabrielle later told Janette, at times hysterically, that she was afraid of dying, but she never did that before. Monique simply refused to talk about the attack afterward.
Our limited role in an appellate challenge to the sufficiency of the evidence is to view the evidence in the light most favorable to the prosecution, to presume in support of the judgment every fact that is reasonably inferable from the evidence, and to determine if, on the entire record, a rational trier of fact could find the accused guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Snow (2003) 30 Cal.4th 43, 66.) Lamentably, Pérez’s errors result in a mischaracterization of the sufficiency of the evidence issue before us as a section 273a, subdivision (b) question whether a person can be found guilty of “willfully causing, inflicting or permitting a child to suffer pain or mental suffering … by an act not directed at the child itself.”
Correcting Pérez’s errors, we construe his argument as posing a section 273a, subdivision (a) sufficiency of the evidence question whether, “under circumstances or conditions likely to produce great bodily harm or death,” a person can be found guilty of “willfully caus[ing] or permit[ting a] child to be placed in a situation where his or her person or health is endangered.” (§ 273a, subd. (a).) On that issue, the California Supreme Court characterizes as “rigorous” the requirement of criminal negligence that section 273a, subdivision (a) imposes (People v. Valdez (2002) 27 Cal.4th 778, 788):
“Ordinary negligence will not suffice. Specifically, criminal negligence involves ‘“a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life ... or an indifference to consequences.”’”
Indisputably, a sufficiency of the evidence is in the record that Pérez willfully caused or permitted Gabrielle to be placed in a situation where her person or health was endangered under circumstances or conditions likely to produce great bodily harm or death. She was standing between María’s legs with her arms wrapped around her legs when Pérez commenced the attack from which she broke free, crying and screaming, to run away. Just as patently, an insufficiency of the evidence is in the record that Pérez willfully caused or permitted Monique to be placed in a situation where her person or health was endangered under circumstances or conditions likely to produce great bodily harm or death. She was in a position of safety inside Janette’s van on the other side of the street when she started crying and screaming at the sight of María lying bloody on the ground. So we will strike from the judgment his conviction of misdemeanor child abuse of Monique.
3. Instruction on Criminal Negligence in Misdemeanor Child Abuse
Pérez argues that the omission of a definition of criminal negligence from the charge to the jury on misdemeanor child abuse denied him due process. The Attorney General argues that the instruction was correct and that error, if any, was harmless.
Preliminarily, we note the limited application of Pérez’s argument. Our holding that there is an insufficiency of the evidence of misdemeanor child abuse as to Monique not only requires striking his count 6 conviction of misdemeanor child abuse from the judgment but also moots his instructional challenge with reference to Monique. (See ante, part 2.) So we will address his argument solely with reference to his count 9 conviction of misdemeanor child abuse of Gabrielle.
The court instructed the jury with portions of CALCRIM No. 821 that make no reference to criminal negligence:
“The defendant is charged in Count[s] 6 and 9 with child abuse likely to produce mental suffering. [¶] To prove that the defendant is guilty of this crime, the People must prove that, No. 1, the defendant willfully caused or permitted a child to suffer unjustifiable mental suffering. [¶] A child is any person under the age of 18 years. [¶] Unjustifiable mental suffering is suffering that is not reasonably necessary or is excessive under the circumstances.”
The court did not, however, instruct the jury with the portion of CALCRIM No. 821 that refers to criminal negligence:
“Criminal negligence in volves 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 creates a high risk of death or great bodily harm; [¶] AND [¶] 2[.] A reasonable person would have known that acting in that way would create such a risk.
“In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.” (Italics omitted.)
Nonetheless, the court did instruct the jury on the natural and probable consequence doctrine:
“With regards to Count[s] 6 and 9, an act causes mental suffering if the mental suffering is the direct natural and probable consequence of the act and the mental suffering would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.” (CALCRIM No. 240.)
Indubitably, a reasonable person would know that, if nothing unusual were to intervene, punching and repeatedly stabbing someone with a knife while a four-year-old child stood between her legs with her arms wrapped around her legs was likely to cause the child unjustifiable mental suffering as a natural and probable consequence of the act but for which that suffering would not have happened. On that record, instruction on the natural and probable consequence doctrine cured the error, if any, of the absence of an instruction on criminal negligence.
4. Aggravated Terms
Pérez argues that in the absence of jury findings on circumstances in aggravation the court’s sentence choices of the aggravated terms violated his federal constitutional rights to due process and trial by jury. The Attorney General argues that the sentence choices were proper.
Before Pérez’s probation and sentencing hearing, the court read and reviewed the probation officer’s report documenting, inter alia, his three misdemeanor convictions of driving a vehicle with 0.08 percent or more blood alcohol. (Veh. Code, § 23152, subd. (b).) At the probation and sentencing hearing, the court found no circumstances in mitigation and found as circumstances in aggravation, inter alia, that the victim was particularly vulnerable, that he took advantage of a position of trust and confidence, that his prior convictions as an adult were numerous, that he was on probation at the time of the crime, and that his prior performance on probation was unsatisfactory. (Cf. Cal. Rules of Court, rules 4.421(a)(3), 4.421(a)(11), 4.421(b)(2), 4.421(b)(4), 4.421(b)(5).) On that foundation, the court not only imposed the aggravated term on the attempted second degree murder count but also imposed and stayed the aggravated terms on each of the other felony counts.
“Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 873; 127 S.Ct. at p. 868], quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) (italics added).) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, [549] U.S. at p. __, [166 L.Ed.2d at p. 873] 127 S.Ct. at p. 868; Blakely [v. Washington (2004)] 542 U.S. [296,] 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 [] (Almendarez-Torres).” People v. Black (2007) 41 Cal.4th 799, 818 (Black II).) “‘[R]ecidivism … is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, at p. 243.)” (Black II, supra, 41 Cal.4th at p. 818.) The “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816; italics added.) That is so here.
DISPOSITION
The judgment is reversed on the count 6 misdemeanor child abuse conviction. (§ 273a, subd. (a).) The sentence is ordered stricken from the judgment on that count. The matter is remanded with the direction to the trial court to issue, and to send to every appropriate person a certified copy of, an abstract of judgment so amended. (People v. Mitchell (2001) 26 Cal.4th 181, 187-188.) Pérez has no right to be present at that proceeding. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) Otherwise the judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Dawson, J.