Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF07684
CANTIL-SAKAUYE, J.
In a court trial, the court found defendant gave her 20-month-old granddaughter a fatal dose of methadone and then stole methadone and money from her sister. Pursuant to an agreement under which defendant waived a jury trial in exchange for a maximum charge of voluntary manslaughter instead of murder, defendant was convicted of voluntary manslaughter (Pen. Code, § 192, subd. (a)), administering a controlled substance to a minor (Health & Saf. Code, § 11353, subd. (c)), with an enhancement that the minor was at least four years younger (Health & Saf. Code, § 11353.1, subd. (a)(3)), child cruelty (Pen. Code, § 273a, subd. (a)), with an enhancement for causing death (Pen. Code, § 12022.95) and grand theft (Pen. Code, § 487, subd. (a).) Defendant was sentenced to an aggregate, unstayed term of 12 years and 8 months.
On appeal defendant contends there is insufficient evidence that she administered methadone to her granddaughter. She contends the evidence failed to exclude the possibility of an accident. She further contends the voluntary manslaughter conviction cannot stand; there was insufficient evidence of second degree murder and defendant’s crime was at most involuntary manslaughter. Defendant also challenges her sentencing under Penal Code section 2933.1, rather than section 2933, and the victim restitution fine. We affirm.
FACTS
Michelle Griffitts and Aaron Fleming had a 20-month-old daughter named Kaydence. Kaydence was a picky eater; if she tasted something she did not like, she spit it out or gave it to her mother. Defendant was Griffitts’s mother, but they had a rocky relationship. Defendant did not approve of Griffitts’s relationship with Fleming because he is African-American. Defendant referred to Kaydence as a “little nigger baby” and had tried to get Griffitts not to have the child.
Griffitts had lived with defendant’s sister, Tracy Neuner, after sixth grade because defendant was unable to care for her due to her drug usage. Neuner was like a mother to Griffitts. Griffitts took Kaydence to Neuner’s at least once a month.
Neuner had a prescription for methadone due to chronic neck pain. She took 10-milligram tablets, six a day. Neuner kept her methadone in her bedroom closet or on the top shelf of the armoire in the bathroom. She also kept two tablets in the middle drawer in the bathroom and sometimes two in a container in her nightstand. Neuner was careful with her pills and her house was immaculate.
On Friday, October 7, 2005, Griffitts and Fleming left Kaydence to stay with Neuner for the weekend. Neuner’s mother Kathleen Householder was also visiting that weekend. Householder stayed in a guest apartment on the property. Defendant arrived at Neuner’s Saturday to earn some money by cleaning for Neuner. That afternoon defendant tried to put Kaydence down for a nap, but she had trouble getting the child to stay down. Householder suggested defendant rock Kaydence. Defendant moved Kaydence from the guest bedroom to the master bedroom and rocked her; they were in there together for 30 minutes to an hour. Householder went in the master bedroom and asked if Kaydence was asleep. Defendant said no. Householder rocked her and Kaydence fell asleep.
After Kaydence went to sleep, Neuner’s friend Karen Meier arrived. Neuner and Meier decided to go to the casino that night; they left about 6:00. Neuner called later and asked them to wake Kaydence so she would not be up all night. Defendant thought Kaydence would sleep through the night, so they decided not to wake her. Householder checked on the child once that night and defendant checked on her twice.
Neuner and Meier left the casino shortly after 10:00 p.m. When Neuner went to bed she noticed Kaydence’s color did not look right. Kaydence was bluish and cold. Neuner yelled to call 911 and started CPR. Meier assisted with the resuscitation efforts; foam came out of Kaydence’s mouth.
Neuner called her son Andy and asked him to call Griffitts. Defendant and Meier drove to Griffitts’s and Fleming’s and brought them back to Neuner’s. On the way to Neuner’s, defendant said something about flushing pills down the toilet.
When the emergency medical personnel arrived, they noticed rigor mortis and lividity had occurred. Rigor begins 20 to 45 minutes after death. A volunteer for the Trauma Intervention Program noticed everyone appeared devastated except defendant who showed no emotion.
The next day, defendant brought Dave Olinger to Neuner’s. Defendant referred to Olinger as her sponsor. Olinger took a shower in the master bathroom. Defendant also went in the bath; she and Olinger quarreled and then left. After they left, the armoire was open and pills were spilled. Two pill bottles and $500 was missing. Olinger later called Neuner’s residence and said defendant took the pills. Neuner’s son Andy called defendant; she said she took everything so he would not. Defendant gave the money and a partial bottle of pills to her aunt who returned them to Neuner.
A toxicology report revealed the cause of Kaydence’s death was methadone toxicity. Methadone would take effect within 30 minutes and reach its peak effect in two and a half to three hours. Methadone has a bitter taste that a child would find unpleasant. A methadone tablet dissolves in 12 seconds in water. A 20-month-old child could swallow a tablet, but would be inclined to chew things. The parties stipulated the director of a methadone clinic would testify that methadone is an “‘inherently dangerous’” drug; it suppresses the central nervous system; and a very low dose could be fatal to a child.
After Kaydence died, Neuner discovered the pills she kept in her nightstand were gone. Defendant had previously stolen methadone from Neuner. She had once asked Neuner for methadone for her friend Olinger, who was a heroin addict. Olinger had taken liquid methadone.
Defendant told Neuner that methadone was horrible and she hated that Neuner took it. Defendant said it was a form of heroin and dangerous and addictive. According to Olinger, defendant did not like methadone and what it did to people; she thought it was very dangerous.
In her interview with a detective defendant asked at the outset if the toxicology report was back. When the detective told her Kaydence died from methadone toxicity, defendant covered her eyes. Defendant denied she said anything about flushing drugs down the toilet; she claimed she took the pills only so Andy would not get them.
Twice Griffitts wore a body wire and recorded conversations with defendant. In one conversation, defendant claimed there were pills everywhere at Neuner’s. When Griffitts suggested Kaydence took three or four pills, defendant responded that did not make sense. In another conversation, defendant wondered where the rest of the pill was. When Griffitts said Kaydence took three or four, defendant replied, “No!” Defendant said someone would be arrested and it was going down on Neuner. She suggested the methadone might have been in liquid. Several days after Kaydence’s death, Andy Neuner brought Griffitts Kaydence’s diaper bag. One of the bottles had a purple liquid in it. Griffitts thought it strange because Neuner had only white grape juice, but she threw the bottle out.
Defendant was originally charged with murder. The parties agreed that in exchange for defendant waiving a jury trial, the People would amend the information to charge voluntary manslaughter instead of murder. The People argued there was sufficient evidence of second degree murder based on implied malice or felony murder with furnishing a controlled substance or mingling poison with food or drink (Pen. Code, § 347). The trial court found the People proved second degree murder under all three theories and found defendant guilty of the agreed upon charge of voluntary manslaughter.
I.
There is Substantial Evidence that Defendant Gave Kaydence Methadone
Defendant contends there is insufficient evidence to support convictions for voluntary manslaughter, furnishing a controlled substance to a minor and child cruelty. She contends all three convictions are premised upon finding beyond a reasonable doubt that she gave Kaydence methadone, but Kaydence’s death could have been an accident. Neuner testified she kept methadone pills in her nightstand and told an officer she feared Kaydence could have accidentally taken one of them.
In evaluating a criminal case against an attack on the sufficiency of the evidence, we determine from the entire record whether a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) “In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.” (People v. Johnson (1993) 6 Cal.4th 1, 38.)
Viewed most favorably to the judgment, the evidence amply supports a finding that defendant administered methadone to Kaydence. Defendant was alone with Kaydence for over half an hour in the master bedroom where there was methadone in the nightstand. Defendant was having trouble getting the child down for a nap. Afterwards the methadone in the nightstand was missing. Defendant claims Neuner might have left a tablet on top of the nightstand as she feared she might have. But neither defendant nor Householder, who were in the room with Kaydence, saw the pill. There was testimony that Kaydence had picked things up and put them in her mouth, but this practice appeared to have stopped weeks before her death. Kaydence was a picky eater and spit out things she did not like the taste of; methadone has a bitter taste.
Further, defendant’s own words suggested she had given Kaydence methadone. That night both Fleming and Meier heard defendant talk about flushing pills down the toilet before the police arrived. When suspicion turned on defendant, she claimed there were pills everywhere, although she did not mention this at the time and earlier, like all witnesses, claimed Neuner’s house was very neat. When Griffitts suggested Kaydence took three or four pills, defendant claimed that was impossible and reacted strongly -- “No!” She wondered where the rest of the pill went and suggested on her own that the methadone was put in liquid.
Substantial evidence supports the finding that defendant gave Kaydence methadone.
II.
Defendant Was Properly Convicted of Voluntary Manslaughter
The People tried the case against defendant on three theories of second degree murder: implied malice, felony murder based on furnishing a controlled substance to a minor, and felony murder based on mingling a poison in food or drink. The trial court found the People proved all three theories and in accordance with an agreement convicted defendant of voluntary manslaughter. Defendant contends there is insufficient evidence to support any of the three theories of second degree murder and the proper lesser offense is involuntary manslaughter because defendant had no intent to kill or injure.
Defendant incorrectly states second degree felony murder was predicated on felony child abuse. Second degree felony murder cannot be based on felony child abuse due to the merger doctrine. (People v. Chun (2009) 45 Cal.4th 1172, 1200.)
Because the trial court found the People proved all three theories of second degree murder, we need find sufficient evidence only as to one of them. We begin our analysis by considering whether there is substantial evidence of implied malice second degree murder. “Second degree murder based on implied malice is shown when the defendant deliberately performed an act, the natural consequences of which are dangerous to life, knowing that the conduct endangers the life of another, but acting with conscious disregard for that risk of life. [Citation.]” (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Second degree murder based on implied malice requires proof defendant acted with conscious disregard for human life; conscious disregard for great bodily injury is insufficient. (People v. Knoller (2007) 41 Cal.4th 139, 156.)
Defendant contends there is insufficient evidence she acted with knowledge that giving Kaydence methadone could cause death and chose to disregard that danger. We disagree. Defendant knew that methadone was a dangerous drug, an addictive drug similar to heroin; she told both Neuner and Olinger that. Methadone is an opiate, a schedule II controlled substance. (Health & Saf. Code, § 11055, subd. (c)(14).) It suppresses the central nervous system and very low doses may be fatal to children. Defendant’s argument ignores that she was aware that Kaydence was a very young child. It is common knowledge that dangerous substances, even in small amounts, pose greater danger to young children.
Further, defendant’s actions subsequent to giving Kaydence the drug portrayed her callous indifference to Kaydence’s life. Defendant, despite knowledge Kaydence had consumed methadone, took no steps to revive Kaydence or seek help. The first time Householder went to check on Kaydence, defendant went instead and told her Kaydence was fine. Later she convinced Householder to let her sleep when Neuner asked them to wake the child. When Neuner returned, defendant said nothing about Kaydence, but invited Neuner to smoke pot. After it was confirmed that Kaydence had died, defendant showed little emotion, but appeared nervous and distracted. In conversations with her daughter, defendant focused on how events had negatively affected her, not acknowledging her daughter’s tremendous loss of a child.
Substantial evidence supports implied malice second degree murder. Since the evidence supports murder, the voluntary manslaughter conviction was proper as defendant agreed to it as part of the agreement to waive a jury trial.
III.
Defendant Was Properly Sentenced Under Penal Code Section 2933.1 Rather Than Section 2933
The trial court selected the furnishing controlled substance charge (Health & Saf. Code, § 11353) as the base term and imposed the upper term of nine years plus three years for the enhancement under Health and Safety Code section 11353.1. The sentence on voluntary manslaughter was stayed pursuant to Penal Code section 654. The court limited credit pursuant to the provisions of Penal Code section 2933.1, which limits worktime credit to 15 percent for those convicted of violent felonies listed in Penal Code section 667.5, subdivision (c). Voluntary manslaughter is listed as a violent felony (Pen. Code, § 667.5, subd. (c)(1)), but furnishing a controlled substance to a minor is not.
Defendant contends it was error to limit the worktime credit pursuant to Penal Code section 2933.1 where defendant was convicted for a violent felony, but sentence on that felony was stayed. Defendant relies on In re Phelon (2005) 132 Cal.App.4th 1214 (Phelon), which held section 2933.1 does not apply where sentence on the violent felony was stayed. We believe Phelon was wrongly decided and decline to follow it.
This issue is currently pending before the California Supreme Court in In re Pope, review granted April 9, 2008, S160930; People v. Duff, review granted May 31, 2007, S153917.
Penal Code section 2933.1 (section 2933.1) sets a 15 percent limit on worktime credits that may be accrued by a person convicted of violent felony offenses listed in subdivision (c) of Penal Code section 667.5. It applies to both presentence and postsentence credits. Subdivision (a) governs postsentence credits and subdivision (c) applies to presentence credits.
Section 2933.1 provides in full:
In Phelon, defendant was convicted of kidnapping with intent to commit rape, which was not a violent offense, and with assault with intent to commit rape and assault by means of force likely to produce great bodily injury, which are violent offenses. (Phelon, supra, 132 Cal.App.4th at p. 1216.) Because the kidnapping conviction carried the longest term of potential imprisonment, the trial court sentenced the defendant to an unstayed term of 11 years for that offense, and stayed the sentences imposed on the other counts pursuant to section 654. (Phelon, supra, at p. 1216.) The trial court also awarded the defendant full section 4019 presentence custody credit. (Phelon, supra, at p. 1217.)
When CDCR took the position that defendant’s worktime credit was limited under section 2933.1, defendant sought habeas corpus relief. The matter went to the Supreme Court which issued an order to show cause why both defendant’s presentence and postsentence credits should not exceed 15 percent pursuant to section 2933.1. (Phelon, supra, 132 Cal.App.4th at p. 1217.)
As to postsentence credit, the parties in Phelon conceded that In re Reeves (2005) 35 Cal.4th 765 (Reeves) was “determinative” of that issue. (Phelon, supra, 132 Cal.App.4th at p. 1218.) Reeves concluded that where an inmate is serving concurrent sentences for a violent and a nonviolent crime, and the inmate completes his sentence for the violent crime before completing the sentence for the nonviolent crime, the inmate is no longer subject to section 2933.1, subdivision (a)’s 15 percent limitation. (Reeves, supra, at p. 769.) In drawing this conclusion, the Reeves court stated: “ section 2933.1(a) has no application to a prisoner who is not actually serving a sentence for a violent offense; such a prisoner may earn credit at a rate unaffected by the section.” (Id. at p. 780, fn. omitted & italics added.)
Seizing upon this italicized language, Phelon concluded that “[u]nder Reeves, [Phelon’s] postsentence credits should not be limited by section 2933.1(a) because his sentences on the qualifying violent offenses were stayed pursuant to section 654.” (Phelon, supra, 132 Cal.App.4th at p. 1219.) In other words, where a sentence is stayed under section 654, the defendant “is not actually serving a sentence” for that conviction. Later, in addressing section 2933.1, subdivision (c)’s application to the defendant’s presentence custody credit, Phelon gave additional support for its conclusion regarding postsentence credit when it observed that the California Supreme Court had held in People v. Pearson (1986) 42 Cal.3d 351, (Pearson), that a defendant may not be subject to “any” punishment or “disadvantage[]” from a conviction where the sentence is stayed pursuant to section 654. (Phelon, supra, at pp. 1220-1221.)
We believe Phelon was wrongly decided. First, since Reeves did not involve a sentence stayed pursuant to section 654 and section 654 is never mentioned in Reeves, Phelon should never have accepted the parties’ stipulation that Reeves was dispositive. “[I]t is axiomatic that cases are not authority for propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Second, and more importantly, Phelon failed to consider whether section 2933.1, subdivision (a) could be considered an exception to section 654, a suggestion that was clearly set forth in Pearson--“[C]onvictions for which service of sentence was stayed may not be so used unless the Legislature explicitly declares that subsequent penal or administrative action may be based on such stayed convictions. Without such a declaration, it is clear that section 654 prohibits defendant from being disadvantaged in any way as a result of the stayed convictions.” (Pearson, supra, 42 Cal.3d at p. 361.)
Proper resolution of the instant issue is found by analogy to the reasoning of People v. Benson (1998) 18 Cal.4th 24, (Benson), wherein the Supreme Court concluded that a prior serious or violent felony conviction that had been stayed pursuant to section 654 could nevertheless be used as a strike within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). (Benson, supra, 18 Cal.4th at pp. 26-27.)
In arriving at its conclusions, the Benson court reasoned: “Section 1170.12, subdivision (b), part of the Three Strikes law enacted by the electorate, provides in pertinent part: ‘Notwithstanding any other provision of law... a prior conviction of a felony shall be defined as: [¶] (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.... None of the following dispositions shall affect the determination that a prior felony conviction is a prior felony...: [¶]... [¶] (B) The stay of execution of sentence.’ (Italics added; see also § 667, subd. (d) [legislative version].)” (Benson, supra, 18 Cal.4th at p. 28.)
Applying the well-settled rule of statutory construction that “‘[w]hen statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it’” (Benson, supra, 18 Cal.4th at p. 30), Benson concluded that section 1170.12, subdivision (b)’s “notwithstanding” language, coupled with language that a “stay of execution of sentence” shall not affect a conviction’s status as a prior felony, rendered section 1170.12, subdivision (d) clear and unambiguous and meant that a prior serious or violent felony conviction for which sentence had been stayed under section 654 was still available for purposes of the three strikes law. (Benson, at p. 36.)
Similar reasoning applies here. Section 2933.1, subdivision (a) states that its 15 percent limitation applies “[n]otwithstanding any other law” to “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5...,” i.e., to any violent felony. Likewise, section 2933.1, subdivision (c) provides “[n]otwithstanding Section 4019 or any other provision of law” the maximum credit earned in county jail shall not exceed 15 percent. Neither subdivision provides for its application to be subject to section 654. (Cf., e.g., section 1170.1, subdivision (a), governing consecutive sentencing, which provides that its application is “subject to Section 654.”) Like the language at issue in Benson, the language of section 2933.1, subdivision (a) and section 2933.1, subdivision (c) is clear and unambiguous--its application withstands any other law and applies to “any person who is convicted” of a violent felony.
The trial court did not err in limiting defendant’s credit under section 2933.1.
IV.
Neuner Was A Victim for Purposes of Restitution
The trial court granted $7,200 restitution to the restitution fund for services provided to Kaydence’s family. Originally, the court was going to deduct $1,350 from the $7,200 restitution order, which represented 15 counseling sessions for Neuner at $90 each, because it found Neuner did not qualify as a victim. Over defense objection, the court reinstated the full amount to the restitution fund, finding Neuner qualified as a derivative victim, as she was in essence Kaydence’s grandmother, and she was a direct victim of the theft. The court noted the very thing stolen from Neuner, the methadone tablets, was used to kill Kaydence.
Defendant contends Penal Code section 1202.4 does not permit court-ordered restitution to Neuner. While we find Neuner, as great aunt, does not meet the definition of a derivative victim, she was a direct victim of the theft. As the trial court found, the theft played a role in Kaydence’s death and on this record we cannot conclude the need for counseling sessions was completely unrelated to the theft.
Penal Code section 1202.4, subdivision (a) provides: “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” Subdivision (f)(2) provides the restitution shall be deposited in the Restitution Fund to the extent the victim has received assistance from the Victim Compensation Program. Subdivision (k)(1) defines a victim to include the immediate surviving family of the actual victim. Further, any person who sustained economic loss is a victim, if she satisfies any of the following conditions: (1) was the parent, grandparent, sibling, spouse, child or grandchild of the victim; (2) lived or had lived in the household with the victim; (3) is a family member who witnessed the crime; or is the primary caretaker of the minor victim. (Pen. Code, § 1202.4, subd. (k)(3).) Finally, a victim also includes those eligible to receive assistance from the Restitution Fund pursuant to Government Code section 13950 et seq. (Pen. Code, § 1202.4, subd. (k)(4).) Under those provisions of the Government Code, a derivative victim is defined the same as under Penal Code section 1202.4, subdivision (k). (Gov. Code, § 13955, subd. (c).)
Neuner was the great aunt of the victim and thus does not meet the statutory definition of a victim under Penal Code section 1202.4, subdivision (k) or Government Code section 13955, subdivision (c). Yet, unquestionably, she was a direct victim of the theft and afterwards she sought counseling. Nothing in the record permits this court to conclude the theft played no part in Neuner’s need for counseling or to apportion the restitution order.
The trial court did not err in ordering $7,200 in victim restitution payable to the Restitution Fund.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P. J., HULL, J.
“(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.
“(b) The 15-percent limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law. However, nothing in subdivision (a) shall affect the requirement of any statute that the defendant serve a specified period of time prior to minimum parole eligibility, nor shall any offender otherwise statutorily ineligible for credit be eligible for credit pursuant to this section.
“(c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).
“(d) This section shall only apply to offenses listed in subdivision (a) that are committed on or after the date on which this section becomes operative.”