Opinion
E065921
11-17-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE SEVILLA, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Hawley, Lynne G. McGinnis, and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1500508) OPINION APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Hawley, Lynne G. McGinnis, and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Juan Jose Sevilla of felony child abuse/endangerment (Pen. Code, § 273a, subd. (a), count 1), unlawful possession of a controlled substance (Health & Saf. Code, § 11375, subd. (b), count 2), and negligent storage of a firearm (Pen. Code, § 25100, subd. (c), count 3). A trial court sentenced him to four years in state prison, but suspended execution of the sentence and placed him on probation for four years, under specified terms.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant contends there was insufficient evidence to support his convictions on counts 1 and 3. We disagree and affirm.
FACTUAL BACKGROUND
In October 2014, members of the Coachella Valley Narcotics Task Force executed a search warrant at defendant's residence. Defendant lived there with his son (the child), who was four or five years old, the mother of the child, two brothers, and his parents. When the officers arrived, defendant was in the backyard, and the child was sitting on the couch, just inside the front door. Defendant's brother was in the kitchen.
The officers found four weapons and controlled substances in defendant's bedroom (the bedroom), which did not have a lock on it. The child regularly slept in that bedroom. Specifically, the officers found a .12-gauge Baikal shotgun leaning up against a shelf in the bedroom closet. The shotgun was not loaded and it was unsecured. The officers also found a Ruger .22-caliber rifle on the floor of the closet. It was not loaded, and it was unsecured and had no safety lock.
The officers further found a Beretta .22-caliber semiautomatic pistol, sitting on a shelf in the same closet. The shelf was about 64 inches off the ground. The gun was loaded. There was no safety lock on it, and it was not secured in any way. The officers also found a high capacity handgun magazine on the same shelf, but it did not appear to match any of the weapons found.
In addition, the officers found a Springfield Armory .45-caliber XD45 semiautomatic pistol on another shelf in the closet. The shelf was 78 to 79 inches above the ground. The pistol was partially under a box, and the grip and the slide were visible. The gun was loaded with a magazine containing 10 rounds of ammunition. There was no safety lock on the gun, and it was not secured in any way. The box contained an additional magazine for the pistol, which contained five rounds of ammunition.
When interviewed by the police, defendant said he liked guns, and that is why he had them. The closet where he kept all the guns was not locked. Near the shelves in the closet, there was a nightstand that was about 30 inches high. There was some clothing on top of the nightstand. There was nothing to obstruct a child from using the nightstand and pile of clothes to reach the shelves where the firearms were located. There were no baby gates or anything else to prevent a child from gaining access to the firearms.
In the same bedroom, the officers found a plastic baggie containing 42 and one-half Xanax pills. The pills were located on a television stand, which was about five feet tall. There was a dresser right next to the television stand and a basket of clothes near it, both of which the child could use to climb on and gain access to the pills. Defendant admitted the pills belonged to him. He said he suffered from anxiety and took them to be able to rest.
At trial, a doctor testified that Xanax is used for panic attacks as a calming agent. She said that Xanax is not approved by the Food and Drug Administration (FDA) for use by children. If a small child ingested it, the child would experience depressed consciousness. It would be difficult to arouse him, and he may become completely unconscious to the point where his stops breathing, his heart stops, and he dies.
One of the officers measured the child's height in order to determine if he would be capable of reaching the guns and other items. The child was about 42 inches tall. When he put his arms above his head, he could reach to a height of 50 inches.
ANALYSIS
There Was Sufficient Evidence to Support Defendant's Conviction on Counts 1 and 3
Defendant contends that his conviction of child endangerment (§ 273a, subd. (a), count 1) should be reversed because there was insufficient evidence he placed the child in a situation that was likely to produce great bodily harm or death. He asserts there was no evidence the child had permission to be in the bedroom, or that he had ever been in it, by himself. Defendant further argues the two loaded handguns were stored in a high place, out of the child's reach. He uses the same arguments to support his claim that there was insufficient evidence to support his conviction of negligent storage of a firearm (§ 25100, subd. (c), count 3). We conclude the evidence was sufficient on both counts.
A. Standard of Review
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. The Evidence Was Sufficient on Count 1
Section 273a, subdivision (a), provides: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer . . . 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 . . . ." In other words, the statute can be violated by a person who, "having the care or custody of the child, willfully places or permits the child to be placed ' "in such situation that its person or health is endangered. . . ." ' " (People v. Lee (1991) 234 Cal.App.3d 1214, 1220.)
Here, there was sufficient evidence for the jury to reasonably conclude that defendant willfully placed the child in a dangerous situation. Two loaded firearms were found in defendant's residence. They were located in an unlocked bedroom, where the child slept. The Springfield Armory XD45 semiautomatic handgun was on the top shelf of a closet in the bedroom and was in plain sight. The Beretta .22-caliber pistol was found on a shelf in the same closet. Both guns had no safety lock and were not secured in any way. In addition, the police found a baggie containing over 42 Xanax pills on a television stand in the same bedroom. There was evidence that if a child ingested Xanax, he could go into respiratory distress and die.
Defendant claims the firearms and pills were kept in places that were out of the child's reach. However, the evidence showed that the child could reach them without too much difficulty. The child was 42 inches tall and could reach up to a height of 50 inches. The Beretta pistol was sitting on a shelf about 64 inches from the ground. The Springfield pistol was sitting on a shelf about 78 inches from the ground. There was a nightstand near the shelves, which was about 30 inches high, and there was nothing to obstruct the child from climbing on it to reach the shelves where the firearms were located.
Similarly, there was a dresser and a basket of clothes next to the television stand where the baggie of Xanax was located, which the child could have used to reach the pills. Moreover, at the time the officer executed the search warrant, the child was left alone. Defendant was outside, and his brother was in the kitchen. In other words, there was nothing preventing the child from having access to the firearms and pills.
At oral argument, defense counsel requested this court to examine some photographs of the crime scene, and argued that the photographs showed there was no way the child could have reached the loaded firearms and pills. We note that "[i]t is the likelihood of foreseeable injury, rather than whether such injury in fact occurs, that is relevant." (People v. Lee, supra, 234 Cal.App.3d at p. 1220.) These photographs were before the jury, and the jurors clearly believed the guns and pills were accessible and harm was foreseeable.
At oral argument, defense counsel also requested this court to accept the late transmittal of the photograph exhibits. We denied the request without prejudice. We now accept the late transmittal of the exhibits. --------
Viewing the evidence in the light most favorable to the judgment, as we must, we conclude there was sufficient evidence to support defendant's conviction of child endangerment.
C. The Evidence Was Sufficient on Count 3
Defendant was charged in count 3 of negligent storage of a firearm. Section 25100, subdivision (c), provides: "Except as [otherwise] provided . . . a person commits the crime of 'criminal storage of a firearm in the third degree' if the person keeps any loaded firearm within any premises that are under the person's custody or control and negligently stores or leaves a loaded firearm in a location where the person knows, or reasonably should know, that a child is likely to gain access to the firearm without the permission of the child's parent or legal guardian, unless reasonable action is taken by the person to secure the firearm against access by the child."
Defendant contends there was insufficient evidence that he kept or stored a loaded firearm in a place where he knew, or should have known, a child was likely to gain access to it. He uses the same arguments as he did in challenging the conviction in count 1. He asserts that he actually "show[ed] a genuine regard for the health and safety of the child" by placing the two loaded handguns "far beyond the reach" of his son. As explained ante, the guns were not beyond the child's reach, and there was nothing to prevent him from accessing them. There was sufficient evidence to support the conviction in count 3.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.