Filed 4/2/14 P. v. Vicente CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057003
v. (Super.Ct.No. RIF134517)
GERARDO VICENTE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed as modified.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Ron Jakob, and Joy Utomi,
Deputy Attorneys General, for Plaintiff and Respondent.
1 In December 2006, defendant Gerardo Vicente was under the influence of
methamphetamine and thought he heard voices coming from the walls in his home. He
accused his wife, Malinda S., of cheating on him. He threatened to kill her. When she
tried to escape, he held a crowbar to her neck. She was able to get outside but their twin
babies were still in the house. Defendant stood at the door of the house and held up one
of the babies by only her shirt collar until her face changed colors. With the help of her
church pastor, Malinda was able to free the two babies and leave. That evening, the
house was set on fire and the first responders found defendant sitting in his car in front of
the house. The fire was determined to be the result of arson.
Defendant was convicted of assault with a deadly weapon, arson, two counts of
felony child endangerment, making a criminal threat, false imprisonment, intimidating a
witness, and misdemeanor domestic battery.
Defendant now contends on appeal as follows:
1. The trial court erred and violated his federal and state constitutional rights
to present a defense by excluding evidence that another person was in the house prior to
the house catching on fire.
2. The evidence was insufficient to support his convictions of felony child
endangerment under Penal Code section 273a, subdivision (a).1
3. The trial court erred by failing to instruct the jury on the lesser included
offense of misdemeanor child endangerment.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 4. His conviction of intimidating a witness pursuant to section 136.1,
subdivision (c)(1) should be reduced to a violation of section 136.1, subdivision (b).
5. His sentence on the criminal threats conviction should have been stayed
pursuant to section 654.
6. He should have received additional conduct credits for time he served after
October 1, 2011, pursuant to the amended version of section 4019.
7. His presentence actual custody credits were incorrectly calculated.
We agree that the abstract of judgment should be corrected to show a conviction of
subdivision (b) of section 136.1 in place of subdivision (c)(1). We also reduce the
amount of actual custody credits and the award of conduct credits, which we have
calculated under section 2933.1 as required due to his conviction of arson of an inhabited
structure. In other respects, we affirm the judgment.
I
PROCEDURAL BACKGROUND
Defendant was convicted by a Riverside County jury of arson of an inhabited
structure (§ 451, subd. (b); count 1); assault with a deadly weapon (§ 245, subd. (a)(1);
count 2); making a criminal threat (§ 422; count 3); false imprisonment (§ 236; count 4);
two counts of child endangerment (§ 273a, subd. (a); counts 5 & 6); intimidating a
witness (§ 136.1, subd. (c)(1); count 9); and misdemeanor domestic violence (§ 243,
subd. (e)(1); count 10). The jury found him not guilty of an additional charge of
intimidating a witness (§ 136.1, subd. (c); count 8) and count 7 (a charge of making a
criminal threat) was dismissed prior to being presented to the jury.
3 Defendant was sentenced to three years on count 1, one year on count 2, one year
and four months on count 5, and two years on count 9, for a total of seven years and four
months to be served in state prison. The sentences on the remaining convictions were
ordered to run concurrent to the imposed sentence. He was awarded 475 actual
presentence custody credits, plus 226 conduct credits pursuant to section 4019, for a total
of 701 days.
II
FACTUAL BACKGROUND
A. People’s Case-in-Chief
On December 31, 2006, Malinda was at her home in Riverside. She lived with
defendant and their five-month old twin daughters, who were all home that day. Two
friends from their church, Michael and Carissa Brunelle, were living with them and
stayed in the basement. Malinda woke up that morning intending to go to church.
Defendant did not want to go to church and encouraged her to go back to bed.
Malinda woke up some time later and defendant was standing in the doorway of
the bedroom holding a metal crowbar. Defendant asked her who she was talking to and
where they were located. Malinda did not know what he was talking about; Malinda had
been asleep and had not been talking to anyone. Defendant asked her “How are they
getting in?” Malinda tried to get out of bed. Defendant hit her in the face with the back
of his hand. Defendant told her he was going to “fucking kill her.” Malinda believed he
would kill her.
4 Malinda begged defendant not to hurt her. Defendant held the crowbar with both
hands and pushed it against her neck and started choking her. Defendant again
threatened to kill her if she did not tell him who was in the house. Malinda was having
trouble breathing.
Defendant let go of Malinda and she grabbed the telephone. Defendant took the
phone from her and threw it outside. In order to get away from defendant, Malinda
pretended she was going to show defendant where “they” were coming from. She took
him outside and pointed to a spot in the house where she said they were getting in. She
talked him into trying to pull a board off the house so she could try to escape. She tried
to run away but defendant chased after her and grabbed her. He pinned her up against the
car by holding the crowbar to her neck. He choked her with the crowbar. Malinda
screamed for him to let her go and defendant eventually let her go. She ran into the street
and yelled for help.
Malinda ran into Juan Landin, the pastor at her church, who was driving down the
street toward her house. He had come to the house to see why they had not been to
church for one week. She was hysterical and crying. Malinda told Landin what had
happened. Malinda advised Landin that their twin daughters were still in the house and
she was worried that defendant would hurt them.2
Landin and Malinda approached the house. Defendant was standing at the door.
He had one of the babies, Jane Doe 1, in one hand and a crowbar in the other hand.
2 Landin recalled at trial that Malinda was holding one of the babies when he arrived.
5 Defendant was holding Doe 1 up off the ground by only the back of her shirt collar. Doe
1’s face started changing colors. Defendant appeared very angry. Defendant threatened
that if Malinda did not get back in the house, he was going to “fucking kill” Doe 1.
Defendant lifted the crowbar and moved it toward Doe 1, simulating what he would do to
her. Defendant also threatened Landin that he was going to hit him.
Defendant then threatened that if anyone called the police, he would kill both of
the babies and they would be dead by the time the police arrived. Landin eventually was
able to calm defendant enough for him to give Doe 1 and Jane Doe 2 to Landin. Malinda
took the babies and left the house. Landin and defendant went outside the house and they
prayed together. Landin then left the house. Landin and Malinda did not call the police
because they did not want defendant to get in trouble.
Malinda went to Landin’s house. Later that day, defendant called Malinda and
threatened to kill himself if she did not come home. He told her that his death would be
on her hands. Malinda heard a loud whistling sound in the background. When she asked
defendant about the sound, he refused to tell her what was making the noise. Malinda
went to church that evening. Landin told her that something had happened to her house.
She immediately rushed to the home and discovered it had burned down.
At around 5:00 p.m. on that same day, the Riverside Fire Department responded to
a fire alarm at the house. Riverside Police Officer Jeffrey Acosta also responded. When
Officer Acosta arrived, the house was on fire. Defendant was seated in his car parked in
front of the house. Officer Acosta helped defendant out of his car because he was
6 disoriented, confused and slurring his words. Defendant admitted to recently using
methamphetamine. He was taken to the hospital.
Defendant spoke to Officer Acosta at the hospital. Defendant claimed he had
come home and was planning to lock all of the doors and windows. He was going to
leave for the weekend and no one was in the house so he wanted to lock up. He also
planned to turn on the lights so it appeared that there was someone in the house. He
came in the back door of the house. He turned on the light in the kitchen. A few minutes
later, the windows exploded and the house was on fire.
A fire investigation was conducted at the house. The cause of the fire was ruled
arson. There were several possible points of origin (where the fire could have started),
including a hole in a mattress and other areas in the hallway, living room, the entrance to
the bedroom, the baby crib and near the front door. There was no trace of accelerants
(which could be gasoline or kerosene) used in the fire. The fire could have been started
by a match or lighter.
A gas line leading from the dryer had been cut by what appeared to be a saw and
the valve was turned on. Another gas line leading to the stove was cut. However, neither
of these areas were the cause of the fire. A pair of jeans was on the kitchen stove that
was covered in smoke and soot. Someone likely tried to start a fire with this on the stove.
Several experts testified that electrical issues were not the cause of the fire. There was no
evidence of an explosion.
Around this same time, Malinda had been charged with domestic violence against
defendant for scratching him but she had been acquitted. Defendant had
7 methamphetamine in his system at the time of this incident. Defendant had a prior
conviction of misdemeanor spousal abuse in 1999 against another victim.3 The victim
had redness and bruising on her face. During the prior incident, defendant had barricaded
himself in the house.
B. Defense
Defendant, who testified on his own behalf, admitted he had been using
methamphetamine several days prior to the fire. Malinda was also using
methamphetamine and they argued over other people finding out about their drug use.
Malinda left the house on her own volition and he never threatened her or hit her. He
never hurt Does 1 and 2. He never had a crowbar and never threatened Landin. He did
not set the fire.
Defendant talked to Michael Brunelle that day and then left the house to buy a
battery for his car. He was intending to drive to Los Angeles. When he arrived back
home, he opened the back door and turned on the light. He locked a front window, and
as he turned to leave the house, the windows exploded and the house was on fire.
Defendant tried to get in his car and drive away but he had not put the new battery in the
car and the car would not start. He sat in the car. Defendant never called the fire
department.
3 The victim testified for defendant that he never hit her.
8 III
EXCLUSION OF THIRD-PARTY CULPABILITY EVIDENCE
Defendant contends that the trial court erred by excluding relevant evidence that a
tenant was in the home during the day the house caught on fire. He claims such
exclusion violated his federal and state constitutional rights to present a defense.
A. Additional Background
Prior to trial, the People brought a motion in limine to exclude any third-party
culpability evidence. According to the motion, defendant told the victim two weeks after
the incident that he had gotten into a fight on the day of the fire with Michael Brunelle.
According to the victim, defendant told her he had accused Michael of sleeping with
Malinda and told him to move out. Michael wanted his money (presumably for rent) and
when defendant refused to give it to him, defendant told Malinda that Michael threatened
to do something if he did not get his money back.
The People argued the evidence was only hearsay from defendant that Michael
had threatened him and that he would do something to him. There was no other evidence
that Michael started the fire or had the motive or opportunity. The People filed an
additional motion to exclude third-party culpability evidence arguing that the evidence
was marginal and speculative.
The parties discussed the motion in limine. The trial court noted that it could not
keep defendant from testifying that he saw other persons in the house the day of the fire.
Defendant, however, could not present evidence or speculate that someone else set the
fire.
9 During cross-examination of Malinda, defendant’s counsel asked her if Michael
was paying rent. The relevancy objection was sustained.
Defendant told Officer Acosta that night at the hospital that no one else was home
on the day of the fire.
During defendant’s testimony, defendant’s counsel sought to elicit from defendant
testimony about what he talked to Michael about that day. A sidebar conference was
conducted. Defendant’s counsel made an offer of proof that defendant would testify that
he asked Michael and Carissa Brunelle to move out so that defendant and his family
could be alone. Defendant would testify that when he left the house, Michael was still in
the house. The trial court ruled as follows: “Well, that might be true; however, that
could amount to third-party culpability evidence. And it could later be used to make the
argument that Mr. Brunelle had the motive and/or opportunity to commit the crime. And
there is case law, in particular a case called People versus Hall, and that is a 1986 case,
41 Cal 3d 826. And the Supreme Court then defined third-party culpability evidence and
placed a limit on it. There must be direct or circumstantial evidence linking the third
person to the actual perpetration of the crime. And there has been a number, of course,
without going into the citations, who applied the Hall standards and frequently concluded
that evidence providing only a possible motive or opportunity to some third party is
insufficient to or beyond a reasonable doubt of guilty.” The trial court then ruled, “At
this time, I’m going to rule that the question asked for a response that would not be
relevant evidence to any of the issues that we’re going to submit to the jury. In addition,
applying the Hall standard, it appears to the Court that that answer could only provide a
10 possible motive or opportunity that Mr. Brunelle set the house on fire, and that is
insufficient to raise a reasonable doubt of guilt. So therefore, my ruling is to sustained
[sic] the objection on the basis of third-party culpability, along with relevance.”
B. Analysis
All evidence having any tendency in reason to prove or disprove a disputed fact is
admissible. (Evid. Code, § 210.) Defendant claims that he did not seek to admit the
evidence as third-party culpability evidence. Rather, he claims that the only evidence
against him was that he was alone in the house at the time of the fire and therefore he had
to be the perpetrator. He did not intend the evidence to show that Michael set the fire, but
rather that Michael and defendant “stood in exactly the same position in terms of the
jury’s determination of guilt.”
Initially, defendant’s offer of proof below was clearly based on the admission of
the evidence to show that Michael had a motive to set the fire at the house. Further,
although defendant claims the evidence was relevant only to show someone else was in
the house, it is simply an attempt to avoid the strict rigors of the admission of third-party
culpability evidence. Moreover, the trial court clearly considered defendant’s offer of
proof to be that Michael had a motive to set the fire, and based on its first ruling,
defendant was not foreclosed from introducing evidence that he and Michael had been at
the house. Defendant cannot complain on appeal that the trial court erred when he did
not make an offer of proof below based on the same grounds for which he claims error on
appeal. (See People v. Holford (2012) 203 Cal.App.4th 155, 169 [“‘A party cannot argue
11 the court erred in failing to conduct an analysis it was not asked to conduct.’
[Citation.].”], italics omitted.)
Additionally, the evidence was properly excluded as improper third-party
culpability evidence. “In general, third party culpability evidence is admissible if it
‘rais[es] a reasonable doubt of defendant’s guilt.’ [Citation.] This does not mean,
however, that no reasonable limits apply. Evidence that another person had ‘motive or
opportunity’ to commit the charged crime, or had some ‘remote’ connection to the victim
or crime scene, is not sufficient to raise the requisite reasonable doubt. [Citation.] . . .
[T]hird party culpability evidence is relevant and admissible only if it succeeds in
‘linking the third person to the actual perpetration of the crime.’ [Citations.]” (People v.
DePriest (2007) 42 Cal.4th 1, 43; see also People v. Hall (1986) 41 Cal.3d 826, 833.)
Third-party culpability evidence should “simply [be] treat[ed] . . . like any other
evidence [and] if relevant it is admissible [citation] unless its probative value is
substantially outweighed by the risk of undue delay, prejudice, or confusion [under
Evidence Code section 352].” (People v. Hall, supra, 41 Cal.3d at p. 834.) The trial
court’s ruling on the evidence may not be disturbed absent a showing that its ruling was
an abuse of discretion. (People v. Harris (2005) 37 Cal.4th 310, 337.)
Here, the trial court did not abuse its discretion by excluding evidence that
Michael had a motive to set the fire in the house. The only evidence was defendant’s
self-serving testimony that he had told Michael to move out and he was angry. There
was no other evidence connecting Michael to the setting of the fire or even evidence that
Michael was present at the house around the time the fire started. When defendant was
12 first asked if anyone else was in the house, he said he was alone. The evidence only went
to motive and did not show direct or circumstantial evidence linking Michael to starting
the fire.
Moreover, even if the trial court erred, we find that it was not prejudicial. “When
the reviewing court applying state law finds an erroneous exclusion of defense evidence,
the usual standard of review for state law error applies: the court must reverse only if it
also finds a reasonable probability the error affected the verdict adversely to defendant.
[Citations.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1089; People v. Watson
(1956) 46 Cal.2d 818, 836.) Defendant contends that his state and federal constitutional
rights were violated by the exclusion of the evidence. However, the usual standard of
review for exclusion of evidence is state law error. Moreover, defendant was not
foreclosed from presenting a defense. Hence, we reject that defendant was foreclosed
from presenting a defense or that such exclusion of his third-party culpability evidence
requires review under the Chapman v. California (1967) 386 U.S. 18, 23 beyond-a-
reasonable-doubt standard.
Here, the evidence that defendant set the fire was strong. Defendant and Malinda
got into a very heated argument and she was forced out of the house with their two
babies. Defendant called Malinda and told her that if she did not come home, he would
kill himself and his death would be on her hands. She heard an unexplained whistling
sound. Defendant was present at the house when the first responders arrived. He was
seated in his car near the house, which was on fire. He never called the fire department to
report the fire despite claiming that it had just happened. His explanation of how the fire
13 started, in light of the evidence of multiple origins of the fire which were intentionally
set, was unbelievable. Hence, even if the jury had been presented with evidence that
Michael had been in the house and that he was angry with defendant, the result would be
the same.
IV
INSUFFICIENT EVIDENCE OF FELONY CHILD ENDANGERMENT
Defendant contends that insufficient evidence of felony child endangerment was
presented to support his convictions in counts 5 and 6.
“Our task is clear. ‘On appeal we review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence –– that
is, evidence that is reasonable, credible, and of solid value –– from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The
standard of review is the same in cases in which the People rely mainly on circumstantial
evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court which must
be convinced of the defendant's guilt beyond a reasonable doubt. ‘“If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.”’ [Citations.]” [Citation.]’ [Citations.] The
conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there
14 sufficient substantial evidence to support [the conviction].”’ [Citation.]” (People v.
Cravens (2012) 53 Cal.4th 500, 507-508.)
A child endangerment conviction under section 273a, subdivision (a) requires
evidence that the defendant “(1) willfully and directly inflicts ‘unjustifiable physical pain
or mental suffering’ upon the child, (2) merely willfully ‘permits’ the infliction of such
pain or suffering or injury to the child’s ‘person or health,’ or (3) willfully places or
permits the child to be placed ‘in such situation that its person or health is endangered.’”
(People v. Vargas (1988) 204 Cal.App.3d 1455, 1465.)4
A “‘[v]iolation of section 273a, subdivision (a) “‘can occur in a wide variety of
situations: the definition broadly includes both active and passive conduct, i.e., child
abuse by direct assault and child endangering by extreme neglect.’ [Citation.] . . .
Section 273a[, subdivision (a) ] is ‘intended to protect a child from an abusive situation in
which the probability of serious injury is great.’ [Citation.] ‘[T]here is no requirement
4 The jury was instructed on section 273a, subdivision (a), in pertinent part, as follows: “[W]hile having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child’s person or health was in danger; . . . the defendant caused or permitted the child to be in danger under circumstances or conditions likely to produce great bodily harm; And . . . the defendant was criminally negligent when he caused or permitted the child to be in danger.” “Likely to produce great bodily injury” was defined as “the probability of great bodily harm is high. Great bodily harm means significant or substantial physical injury. It is an injury that is greater that [sic] is minor or moderate harm.” Further, “criminal negligence was defined as a person who acts “in a reckless way that is a gross departure from the way an ordinary careful person would act in the same situation; . . . the person’s acts amount to disregard for human life or indifference to the consequences of his act; . . . a reasonable person would have known that acting in that way would naturally and probably result in harm to others.”
15 that the actual result be great bodily injury.’ [Citation.]” [Citation.]’ [Citation.]”
(People v. Cockburn (2003) 109 Cal.App.4th 1151, 1160.)
“[S]ection 273a, subdivision (a) sets forth a standard of conduct that is rigorous.
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.”’ [Citation.]”
(People v. Valdez (2002) 27 Cal.4th 778, 788.)
Initially as to Doe 1, there was direct evidence of harm likely to cause great bodily
injury. Defendant held Doe 1 by her shirt collar until her face changed colors. Doe 1
was held up off the ground by her shirt collar and easily could have fallen. She also
could have choked had Landin not intervened. It must be remembered that Doe 1 was
only five months old and particularly vulnerable. Additionally, defendant had a crowbar
in his hand and moved it toward Doe 1. Such action could have resulted in grave injury
to Doe 1. The evidence clearly established that defendant acted in a grossly reckless
manner with a complete disregard for Doe 1’s life. (People v. Valdez, supra, 27 Cal.4th
at p. 788.)
As for Doe 2, there was no direct evidence that defendant held or threatened her.
However, defendant was so intoxicated that he was hearing voices in the house.
Additionally, defendant committed serious domestic violence against Malinda. He hit
16 her with the back of his hand and threatened to kill her. He also held a crowbar to her
neck two times. Malinda was so terrified that she had to leave the house, leaving Doe 2
in the care of defendant, who clearly could not care for her based on his drug use. As the
prosecutor argued, “[A]ny man or any woman that gets so high that they are talking about
guys in the wall, guys sneaking in the house somehow, so high that he’s acting so
aggressively to the woman that he loves, is putting children at risk.”
Based on the foregoing, sufficient evidence supported the jury’s verdict finding
defendant guilty of two counts of child endangerment in violation of section 273a,
subdivision (a).
V
LESSER OFFENSE OF CHILD ENDANGERMENT
Defendant contends the trial court should have instructed the jury on misdemeanor
child endangerment as a lesser included offense of counts 5 and 6 (felony child
endangerment against Does 1 and 2) because the jury could have concluded defendant
was guilty only of misdemeanor child endangerment pursuant to section 273a,
subdivision (b).
‘““It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence.”’ [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 154.)5 “‘“That
5 We note that the trial court put on the record that defendant was only requesting a lesser included offense instruction of simply battery for count 2 and attempted false imprisonment for count 4. He requested that no other lesser included [footnote continued on next page]
17 obligation has been held to include giving instructions on lesser included offenses when
the evidence raises a question as to whether all of the elements of the charged offense
were present [citation], but not when there is no evidence that the offense was less than
that charged.” [Citations.]’” (Ibid.)
Section 273a, subdivision (b) provides in pertinent part, “[a]ny 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 . . .
.” We previously set forth the elements of felony child endangerment.
The only difference between misdemeanor and felony child endangerment is that
the felony requires evidence the defendant placed the child under circumstances likely to
produce great bodily injury or death. (People v. Burton (2006) 143 Cal.App.4th 447,
454, fn. 4.) Less aggravated actions, which are “other[ ] than those likely to produce”
great bodily harm, is deemed misdemeanor conduct. (People v. Deskin (1992) 10
Cal.App.4th 1397, 1401.)
[footnote continued from previous page] offense instructions be given for strategic and tactical reasons. The People also did not want any other instructions given. However, the trial court was required to give the instruction if supported by the evidence.
18 The trial court did not have a sua sponte duty in this case to instruct the jury with
misdemeanor child abuse as the only reasonable finding a jury could make in this case is
that defendant committed child abuse under conditions likely to produce great bodily
injury or death. Defendant had ingested so much methamphetamine that he was hearing
voices in the walls. He verbally and physically attacked Malinda in the home where both
Does 1 and 2 were present. Although Does 1 and 2 apparently did not witness the abuse,
it put them in grave danger since they were only five months old and needed constant
care. Malinda was unable to care for them because of her fear of defendant.
Further, defendant held Doe 1 by her shirt collar until her face changed colors.
Doe 1 could have fallen or choked. Further, defendant simulated what he was going to
do to both babies by swinging the crowbar toward Doe 1. In his condition, great bodily
injury or death was likely in moving the crowbar toward Doe 1.
During this time, Doe 2 was left unattended in the house. Defendant continued to
be angry and hear voices due to the consumption of methamphetamine. At the age of
only five months, Doe 2 required constant supervision. As such, the jury could only
conclude he was guilty of felony child endangerment.
Even if the trial court erred in not instructing on misdemeanor child
endangerment, such error was harmless since it is not reasonably probable the jury would
have returned a more favorable verdict had an instruction on misdemeanor child
endangerment been given. (People v. Breverman, supra, 19 Cal.4th at p. 178; People v.
Watson, supra, 46 Cal.2d at p. 836.)
19 Defendant’s actions were particularly egregious as outlined in the previous
section. The evidence overwhelmingly established that defendant was guilty of felony
child endangerment.
VI
INSTRUCTION ON AGGRAVATED ELEMENTS
OF WITNESS INTIMIDATION
Defendant contends that the abstract of judgment must be modified to reflect that
the trial court reduced his violation of section 136.1, subdivision (c)(1), to a violation of
subdivision (b) of that section. We agree.
“Subdivisions (a) and (b) of Penal Code section 136.1 require that a defendant
knowingly and maliciously prevent or dissuade or attempt to prevent or dissuade a victim
or witness from reporting or testifying. . . . Subdivision (c)(1) of Penal Code section
136.1 adds force or an express or implied threat of force or violence as an element.”
(People v. Neely (2004) 124 Cal.App.4th 1258, 1261.)
Here, the jury was instructed with CALCRIM No. 2622, which defined knowingly
and maliciously but did not instruct the jury, as required pursuant to section 136.1,
subdivision (c)(1), that it must find force or threat of force. After the jury verdict, the
trial court noted that it had failed to instruct the jury with CALCRIM No. 2623, which
should have been given with the charge of violating section 136, subdivision (c)(1). The
trial court noted that at the time of sentencing that defendant would only be sentenced on
a section 136.1, subdivision (b) charge. At sentencing, the trial court imposed sentence
as follows: “With regard to Count 9, the violation of Penal Code section 136.1,
20 subdivision (b), subsection (1), the mid term of 2 years, and that’s full middle term,
consecutive to all other time imposed pursuant to Penal Code section 1170.15.” The
abstract of judgment reflects that defendant was convicted of a violation of section 136.1,
subdivision (c)(1) on count 9.
Where there is a discrepancy between the oral pronouncement of the sentence and
the abstract of judgment, the oral pronouncement controls. (People v. Zackery (2007)
147 Cal.App.4th 380, 385.) As such, we will order that the abstract of judgment be
corrected to reflect that defendant was convicted of a violation of section 136.1,
VII
SECTION 654
Defendant contends that his sentence for his conviction of making criminal threats
in Count 3 should have been stayed pursuant to section 654 because it was part of a
continuous course of conduct with Count 2, the assault with a deadly weapon conviction.
Under section 654, “[a]n act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” The statute thus prohibits punishment for two
crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5
Cal.4th 1203, 1208.)
‘“Whether a course of criminal conduct is divisible and therefore gives rise to
more than one act within the meaning of section 654 depends on the intent and objective
21 of the actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.’ [Citation.]” (People v.
Latimer, supra, 5 Cal.4th at p. 1208.) On the other hand, if the evidence discloses that a
defendant entertained multiple criminal objectives, which were independent of and not
merely incidental to each other, the trial court may impose punishment for independent
violations committed in pursuit of each objective even though the violations shared
common acts or were part of an otherwise indivisible course of conduct. (People v.
Centers (1999) 73 Cal.App.4th 84, 98 [Fourth Dist., Div. Two].)
The prosecutor argued that there were two incidents that could support that
defendant committed assault with a deadly weapon: both times that he held the crowbar
to Malinda’s neck. The jury was given a unanimity instruction and advised that it could
decide which of the times they agreed determined the conviction. The jury found him
guilty of assault with a crowbar. The prosecutor argued that he made criminal threats as
he held the crowbar in his hand and threatened to kill her. This was immediately after he
had slapped her in the face.
The trial court impliedly found that the incidents all had a separate intent and
objective as there was no discussion of section 654 at the time of sentencing. The
evidence supports the concurrent sentences on counts two and three.
Defendant threatened to kill Malinda if she did not tell him who was in the house.
He slapped her in the face. Defendant clearly was angry with Malinda because he
thought she was in the house with someone other than him. Defendant’s objective was to
threaten to kill her for being with someone else. Once defendant struck her in the face
22 and threatened her, she was in sustained fear for her safety. She begged him not to hurt
her.
It was not necessary that defendant additionally hold the crow bar to her neck to
instill this fear. In putting the crowbar to her neck, he did so with the objective that he
did not want her to run away and he wanted to inflict pain on her.
Based on the foregoing, defendant had separate intents and objectives in making
the criminal threats and committing assault with a deadly weapon. The trial court
properly sentenced defendant to concurrent sentences on counts 2 and 3.
VIII
CUSTODY CREDITS
Defendant contends, and respondent concedes, that his actual custody credits were
improperly calculated. “A defendant is entitled to actual custody credit ‘for all days of
custody’ in county jail and residential treatment facilities, including partial days.
[Citations.]” (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.)
Defendant was arrested on February 3, 2007, and released on March 2, 2007 (a
total of 28 days). He was taken back into custody on April 6, 2011, and was sentenced
on June 22, 2012 (a total of 444 days). The parties agree that the proper calculation of
actual custody credits should have been 472 days.
Defendant additionally claims that he was entitled to 142 additional days of
presentence custody credits under section 4019 as amended on October 1, 2011.
Respondent has contended that defendant was not entitled to the increased custody credits
under section 4019 and has assumed that the credits were properly calculated pursuant to
23 section 4019. However, based on defendant’s conviction of arson of an inhabited
property pursuant to section 451, subdivision (b), he was only entitled to 15 percent
custody credits as calculated under section 2933.1.
Pursuant to section 2933.1, subdivision (a), for a defendant convicted of any
“violent felony” listed in section 667.5, subdivision (c), worktime credit is limited to no
more than 15 percent of the total worktime that would otherwise be included in the award
of presentence credits. Section 667.5, subdivision (c)(10), lists “[a]rson, in violation of
subdivision (a) [causing great bodily injury] or (b) [causing an inhabited structure or
property to burn] of Section 451.” Defendant was convicted of a violation of subdivision
(b) of section 451. As such, the trial court should have limited the award of conduct
credits to 15 percent of the actual custody credits.
An incorrect calculation of custody credits results in an unauthorized sentence,
which may be corrected at any time. (People v. Duran (1998) 67 Cal.App.4th 267, 270.)
Defendant should have been awarded 472 days of actual custody credit plus 70 days of
conduct credit, for a total of 542 days of presentence custody credit.
IX
DISPOSITION
The superior court clerk is directed to prepare a corrected abstract of judgment as
follows: (1) the violation of section 136.1, subdivision (c)(1) shall be reduced to a
violation of section 136, subdivision (b); (2) the actual custody credits shall be modified
to reflect 472 days; and (3) the conduct credits shall be reduced to 70 days, calculated
pursuant to section 2933.1. A corrected abstract of judgment shall be sent to the
24 California Department of Correction and Rehabilitation. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
RAMIREZ P. J.
CODRINGTON J.