P. v. Brown CA1/1

Filed 5/31/13 P. v. Brown CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

A134696

v.

ALVIN E. BROWN, (Contra Costa County

Super. Ct. No. 51105592)

Defendant and Appellant.

PEOPLE,

Plaintiff and Appellant,

A134697

v.

ALVIN E. BROWN, (Contra Costa County

Super. Ct. No. 51105592)

Defendant and Respondent.

Defendant Alvin E. Brown and the People appeal a judgment following jury trial,

in which defendant was convicted of several serious felonies and sentenced to a

determinate prison term totaling over 29 years. Defendant contends substantial evidence

does not support his conviction for felony child abuse (Pen. Code, § 273a, subd. (a)),1

and further claims the court erred in imposing a consecutive sentence for his conviction

for false imprisonment by violence (§§ 236, 237, subd. (a)). The People urge the trial

court erred in striking two of the three strikes alleged and proved against defendant.

We affirm.

1 All further statutory references are to the Penal Code.

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BACKGROUND2

An information filed April 21, 2011—as subsequently amended and presented to

the jury—charged defendant with the following offenses committed against Erica McCoy

on October 3, 2010: attempted murder (§§ 187, subd. (a), 664, subd. (a)) (count 1);

assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2); and false imprisonment by

violence (§§ 236, 237, subd. (a)) (count 3). Each of these counts included enhancements

for use of a deadly weapon (§ 12022, subd. (b)(1)) or inflicting great bodily injury (§

12022.7, subd. (a)), or both. The information additionally charged defendant with child

abuse likely to produce great bodily harm (§ 273a, subd. (a)), committed against

McCoy‘s then four-year-old son, who was present when defendant attacked McCoy. The

information also included other charges and alleged sentencing enhancements, including

that defendant had three strikes and two serious prior felonies (§§ 667, 1170.12).

On October 5, 2011, the jury found defendant guilty of counts 1 through 4.

Defendant waived jury trial on the prior felonies, which the trial court subsequently found

to be true.

Four months later, on February 3, 2012, the trial court sentenced defendant. It

commenced by partially granting his Romero motion3 and striking two of defendant‘s

―strikes.‖ It then imposed a total determinate term of 29 years four months: 14 years on

count 1 (seven-year midterm doubled, plus three years great bodily injury, plus one year

deadly weapon); stay of sentence on count 2; one year four months on count 3,

consecutive (one-third the midterm doubled); eight years on count 4, concurrent.

Defendant and the People each appealed. (See §§ 1237, subd. (a), 1238, subd.

(a)(10).)

2 We provide only a summary of the case here, and discuss the facts and

circumstances of the crimes in further sections of this opinion addressing defendant‘s

arguments on appeal.

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530.

2

DISCUSSION

I. Conviction for Child Abuse

Defendant contends his attack on McCoy was not likely to cause her son great

bodily injury and therefore the evidence is insufficient to support his conviction for child

abuse under section 273a, subdivision (a).

―In determining the sufficiency of the evidence, we review the whole record in the

light most favorable to the judgment for substantial evidence—that is, evidence which is

reasonable, credible, and of solid value—such that any rational trier of fact could find the

allegation true beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578

. . . .) ‗[We] presume[] in support of the judgment the existence of every fact the trier

could reasonably deduce from the evidence. [Citations.] The same standard applies

when the conviction rests primarily on circumstantial evidence. [Citation.]‘ (People v.

Kraft (2000) 23 Cal.4th 978, 1053 . . . .) If the circumstances reasonably justify the fact

finder‘s findings, a contrary finding reasonably reconciled with the circumstances does

not warrant reversal of the judgment. (See People v. Bean (1988) 46 Cal.3d 919, 933

. . . ; In re George T. (2004) 33 Cal.4th 620, 631 . . . .)‖ (In re L.K. (2011)

199 Cal.App.4th 1438, 1446.)

―Section 273a, subdivision (a) ‗is an omnibus statute that proscribes essentially

four branches of conduct.‘ ([People v.] Sargent[ (1999)] 19 Cal.4th [1206,] 1215 . . . .)

These four branches or prongs are: ‗ ―Any person who, under circumstances or

conditions likely to produce great bodily harm or death, [1] willfully causes or permits

any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering,

or [3] having the care or custody of any child, willfully causes or permits the person or

health of that child to be injured, or [4] willfully causes or permits that child to be placed

in a situation where his or her person or health is endangered . . . .‖ ‘ (People v. Valdez

(2002) 27 Cal.4th 778, 783 . . . (Valdez).)‖ (In re L.K., supra, 199 Cal.App.4th at

pp. 1444–1445.)

―In addressing these four separate types of conduct, our Supreme Court describes

the second category as ‗direct infliction‘ and the first, third and fourth categories as

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‗indirect infliction.‘ (Valdez, supra, 27 Cal.4th at p. 786, italics omitted.) Under Sargent,

the appropriate mens rea for the second category of direct infliction is general criminal

intent, similar to battery or assault with a deadly weapon. (Sargent, supra, 19 Cal.4th at

p. 1220.) Under Valdez, the necessary mens rea for the other three categories of indirect

infliction is criminal negligence. (Valdez, supra, at p. 789.) In addressing indirect

infliction, the Valdez court concluded, ‗criminal negligence is the appropriate standard

when the act is intrinsically lawful . . . but warrants criminal liability because the

surrounding circumstances present a high risk of serious injury. Criminal negligence is

not a ―lessor state of mind‖; it is a standard for determining when an act . . . is such a

departure from what would be the conduct of an ordinarily prudent or careful person

under the same circumstances.‘ (Id. at pp. 789–790.) Thus, this standard applies to the

first, third and fourth prongs of section 273a, subdivision (a), where indirect infliction of

harm on a child has occurred, such as failing to seek medical treatment, child

endangerment, or willfully permitting situations that imperil children. (Sargent, supra, at

p. 1218.)‖ (In re L.K., supra, 199 Cal.App.4th at pp. 1445–1446.)

These authorities dispense with defendant‘s assertion that he could not be

convicted of felony child abuse because he physically assaulted and injured only McCoy,

and did not directly harm her four year old son. The statute is ― ‗ 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 that the actual result be great bodily injury.‖

[Citation.]‘ [Citation.]‖ (Valdez, supra, 27 Cal. 4th at p. 784.)

Turning to the evidence, McCoy and her son were visiting defendant at his home,

when defendant, sitting next to McCoy, suddenly stabbed her in the upper abdomen with

a knife and then pulled the blade downward to just above her naval. The child was within

arm‘s reach of McCoy, and her first thought was defendant was trying to kill her in front

of her son. When defendant pulled the knife out, McCoy‘s ―guts came out‖ and she

began bleeding. Defendant put the knife down on a TV tray next to McCoy, and then

forced McCoy into another room and partially closed the door. The boy tried to follow

his mother, but defendant pushed the child away, and said, ― Get out of here.‘ ‖ McCoy

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could hear her son yelling ―Mommy.‖ Although defendant partially tied her hands and

she was bleeding profusely, McCoy managed to escape through a window. Defendant

followed her through the window and began beating her. A police officer responding

soon afterward found the child standing in front of defendant‘s residence, crying. The

boy pointed to his mother, who by then was lying on her back on the sidewalk. McCoy

sustained life threatening injuries, and during the two-and-a-half weeks she was in the

hospital, her mother cared for the child. During that time, ―his personality . . . completely

changed.‖ He cried a lot, was very quiet, and displayed aggressive temper tantrums.

This evidence is more than sufficient to establish that defendant ―willfully caused‖

McCoy‘s son to ―suffer unjustifiable mental suffering‖ under ―circumstances or

conditions likely to produce great bodily harm‖ to the child. The four year old was

essentially in the midst of the knife attack on his mother. He was in arm‘s length of

McCoy, and defendant could easily have struck the child had he lost his balance himself,

or been thrown off balance by any effort by McCoy to fight back. Then, defendant put

the bloodied knife down on a TV table, within easy reach of the four-year old. He then

knocked the child aside as he forced the bleeding and gutted McCoy into another room,

leaving the terrified child, calling for his mother, within reach of the knife.

―The felony child abuse statute ‗was enacted in order to protect the members of a

vulnerable class from abusive situations in which serious injury or death is likely to

occur.‘ ‖ (People v. Toney (1999) 76 Cal.App.4th 618, 622.) Such were the

circumstances here. (See People v. Pantoja (2004) 122 Cal.App.4th 1, 3, 15–16

[reversing conviction, but also rejecting section 654 sentencing argument and holding

defendant convicted of first degree murder and child endangerment after killing his

girlfriend in the presence of their daughter could be separately punished for murder and

child endangerment; there was ―no doubt that defendant‘s acts harmed [the daughter]‖

and defendant could be ―punished separately for that separate crime‖ of violence].)

II. Consecutive Sentence for False Imprisonment Conviction

Defendant also contends the trial court abused its discretion in imposing a

consecutive, rather than concurrent, sentence for his false imprisonment conviction.

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Citing California rules of court, rule 4.425, subdivision (a)(3), he asserts ―the false

imprisonment offense occurred so closely in time to the attempted murder that it was

committed during a single period of aberrant behavior.‖

Our standard of review is well established. We will not disturb the trial court‘s

exercise of discretion in sentencing unless, all circumstances being considered, it is clear

the court decision exceeded the bounds of reason. (People v. Bradford (1976) 17 Cal.3d

8, 20.)

California Rules of Court, rule 4.425, sets forth ―[c]riteria affecting the decision to

impose consecutive rather than concurrent sentences . . . .‖ This includes ―whether or

not: [¶] (1) The crimes and their objectives were predominantly independent of each

other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or

[¶] (3) The crimes were committed at different times or separate places, rather than being

committed so closely in time and place as to indicate a single period of aberrant

behavior.‖ (Cal. Rules Ct., rule 4.425, subd. (a).)

The trial court did not abuse its discretion in viewing the attempted murder and

subsequent false imprisonment as sufficiently separate to warrant consecutive sentences.

The offenses occurred in different areas of the house, and involved different conduct. As

discussed above, the defendant, after stabbing McCoy, removed the knife from her gut

and set it down, took her into a separate room, and there attempted forcibly to bind her

hands, with partial success, as she bled profusely. The attempted murder may well be

deemed to have involved conduct and objectives predominantly independent of the false

imprisonment, and most certainly they involved separate acts of violence. (Cal. Rules of

Court, rule 4.425(a)(1), (2).) Accordingly, there was no abuse of discretion imposing a

consecutive sentence.

III. Striking Two of the Three Strikes

Pursuant to section 1385 and in the interest of justice, the trial court struck two of

the three strikes against defendant. (See Romero, supra, 13 Cal.4th at pp. 529–530.) The

People urge this was error, in that the trial court based its decision solely on the

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―remoteness‖ of the two prior convictions, without considering defendant‘s entire

criminal history.

On this sentencing issue, too, we review the trial court‘s decision for abuse of

discretion. (Romero, supra, 13 Cal.4th at p. 531.) The court based its decision not only

on the remoteness of the two older convictions, but also their lack of similarity to the

present offenses. Specifically, the court struck two prior 1985 convictions for robbery

and attempted robbery, but retained the third strike—a 1989 conviction for assault with

great bodily injury—because it was similar to the present offenses. While striking the

robbery priors may be a debatable proposition, we certainly cannot say the trial court‘s

perspective on the matter ―exceeded the bounds of reason.‖ We therefore conclude there

was no abuse of discretion.

DISPOSITION

The judgment is affirmed.

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P. J.

_________________________

Dondero, J.

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