P. v. Brown CA6

Filed 6/11/13 P. v. Brown CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037995

(Santa Cruz County

Plaintiff and Respondent, Super. Ct. No. F21069)

v.

FREDERICK BROWN,

Defendant and Appellant.

A jury convicted defendant Frederick Brown of corporal injury upon a cohabitant

(Pen. Code, § 273.5, subd. (a))1 and misdemeanor child endangerment (§ 273a,

subd. (b)). On appeal, defendant argues the child endangerment conviction must be

reversed because the trial court inadequately responded to a jury question regarding

endangerment of a child‟s mental health. In the alternative, defendant contends the child

endangerment conviction must be reversed because his trial counsel rendered ineffective

assistance in failing to request a clarifying instruction regarding endangerment of a

child‟s mental health. For the reasons set forth below, we will affirm.

STATEMENT OF THE FACTS AND THE CASE

Defendant and Brandi King began dating in early 2011. After approximately one

month of dating, defendant moved into Ms. King‟s Hayward home. Ms. King‟s four

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All further unspecified statutory references are to the Penal Code.

children—thirteen-year-old T.W., nine-year-old L.H., seven-year-old W.T., and three-

year-old A.M.—lived in the house with defendant and Ms. King. Shortly after defendant

moved into the house, he began complaining that Ms. King‟s children were disrespectful.

Defendant also complained that Ms. King was too lenient in her discipline of the

children. Ms. King and defendant engaged in “hostile” discussions regarding the

children‟s behavior.

Defendant and Ms. King decided to take the four children on a vacation to Santa

Cruz on June 25, 2011. That morning, defendant and Ms. King drank shots of tequila

while packing for the trip. Defendant drove Ms. King and the children to Santa Cruz, and

they checked into a hotel suite. Defendant and Ms. King drank more tequila in the suite,

and then they took the children to the Beach Boardwalk. The children rode the rides until

sunset, and then everyone walked back toward the car.

On the way to the car, T.W. asked Ms. King a question, and defendant answered

the question. T.W. said, “Can I please talk to my mom? I‟m asking my mom.”

Defendant responded, “You‟re being very disrespectful.” On the drive back to the hotel,

defendant yelled, cursed, and told Ms. King that she needed to discipline T.W. for being

disrespectful. When they arrived at the hotel parking lot, defendant jumped out of the

car, slammed the car door, and walked away from Ms. King and the children.

Ms. King and the four children went back to their suite. The children sat in the

living-room area, and Ms. King played with her cell phone in the bedroom area.

Defendant entered the suite, walked into the bedroom area, and yelled, “Your children are

so disrespectful. How dare you let them disrespect me like that.” He slapped the cell

phone out of Ms. King‟s hand and said, “I know you‟re not trying to call the damn

police.” Defendant then pushed Ms. King‟s head back, and she batted his hand away.

She tried to walk away from defendant, but he pushed her onto the bed. Defendant held

her down and slapped her head and face. He punched her in the face, head, and shoulder

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area. Ms. King shielded her face and tried to kick him away from her. Defendant pulled

her hair so hard that some of it came out of her scalp. She picked up a lamp and hit him

with it. She tried to leave the bedroom area, but defendant repeatedly pushed her into a

corner. He pushed her into the window, and the window screen broke off. He continued

to wrestle with her, but Ms. King eventually fought her way out of the suite.

While defendant was beating Ms. King, L.H. heard Ms. King yell for defendant to

stop. L.H. ran into the bedroom area, and he saw defendant hit Ms. King, punch her, and

slam her into the wall. L.H. said, “Stop. Don‟t hit my mom.” Defendant continued to hit

Ms. King, so L.H. ran out of the suite to find T.W., who had left the suite upon

defendant‟s arrival. L.H. found T.W. in the hallway, and he told T.W. to hurry back to

the suite because defendant was hitting Ms. King. L.H. was crying, and he looked

scared. T.W. and L.H. ran back to the suite, and T.W. heard Ms. King screaming, “Get

off me. Get off me.” T.W. saw defendant holding Ms. King down and hitting her. T.W.

said, “Get off my mom.” T.W. then ran to the lobby to get help. A desk attendant called

the police, and T.W began crying.

When police officers arrived at the hotel, defendant was yelling at Ms. King. The

officers saw that Ms. King had scratches on her cheek and chest, swelling near her ear,

and a torn and bloody toenail. One of the officers spoke to the four children, and he saw

that all of the children were upset, distraught, and scared. T.W. cried as she explained

how defendant had beaten Ms. King.

Defendant testified that Ms. King drank excessively on the Santa Cruz trip.

Defendant explained that Ms. King physically attacked him after he complained about

T.W.‟s disrespectful attitude. He further explained that he never hit Ms. King, and that

he only restrained her from attacking him.

An information charged defendant with infliction of corporal injury upon a

cohabitant (§ 273.5, subd. (a); count 1), misdemeanor endangerment of T.W. and L.H.

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(§ 273a, subd. (b); count 2), dissuading a witness from reporting a crime (§ 136.1,

subd. (b)(1); count 3), interference with a wireless-communication device (§ 591.5;

count 4), and vandalism causing less than $400 damage (§ 594, subd. (a); count 5). The

information alleged that defendant had served two prior prison terms (§ 667.5, subd. (b)).

A jury convicted defendant of count 1 and count 2. The jury was unable to reach a

verdict on the remaining counts, and the court declared a mistrial on those counts.

Defendant admitted the two prior prison terms.

The trial court sentenced defendant to a three-year prison term for count 1 and a

concurrent six-month jail term for count 2. On the day of the sentencing, defendant filed

a timely notice of appeal.

DISCUSSION

Defendant argues his child endangerment conviction must be reversed because the

trial court inadequately responded to a jury question regarding the meaning of the term

“child‟s person or health was endangered” as used in CALCRIM No. 823. Specifically,

defendant contends that when the jury asked a question regarding endangerment of a

child‟s mental health, the trial court had a sua sponte duty to provide examples and “draw

the line” between behavior that does and does not endanger a child‟s mental health. We

conclude that the trial court adequately responded to the jury‟s question, and that the trial

court was not required to engage in the line drawing that defendant proposes. We

therefore find no abuse of discretion in the trial court‟s response to the jury‟s question.

In the alternative, defendant argues his child endangerment conviction must be

reversed because his trial counsel failed to request a clarifying instruction that drew the

line between conduct that does and does not endanger a child‟s mental health. We

conclude that trial counsel‟s decision to not seek such an instruction was a reasonable

tactical decision. Accordingly, we conclude that the child endangerment conviction need

not be reversed due to ineffective assistance of counsel.

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I. The Trial Court’s Response to the Jury’s Question

A. Background

The trial court instructed the jury with CALCRIM No. 823, in relevant part: “The

defendant is charged in Count 2 with child abuse in violation of Penal Code section

273a(b). [¶] To prove that the defendant is guilty of this crime, the People must prove

that: [¶] 1) The defendant, while 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

endangered; [¶] AND [¶] 2) The defendant was criminally negligent when he caused or

permitted the child to be endangered.”

During deliberations, the jury sent the court the following note regarding

CALCRIM No. 823: “Can the „child‟s person or health was endangered‟ include

mental/emotional health? i.e., Can „health‟ include mental/emotional health?” The court

sent the following one-word response: “Yes.” Defense counsel objected to the court‟s

response, arguing that the court should have simply referred the jury to the original

instruction.

B. Standard of Review

“An appellate court applies the abuse of discretion standard of review to any

decision by a trial court to instruct, or not to instruct, in its exercise of its supervision

over a deliberating jury.” (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)

The following principles must guide an appellate court‟s abuse of discretion

analysis: “ „The discretion of a trial judge is not a whimsical, uncontrolled power, but a

legal discretion, which is subject to the limitations of legal principles governing the

subject of its action, and to reversal on appeal where no reasonable basis for the action is

shown.‟ (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 364, p. 420; see Westside

Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.) „The

scope of discretion always resides in the particular law being applied, i.e., in the “legal

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principles governing the subject of [the] action . . . .” Action that transgresses the

confines of the applicable principles of law is outside the scope of discretion and we call

such action an “abuse” of discretion. [Citation.] . . . [¶] The legal principles that govern

the subject of discretionary action vary greatly with context. [Citation.] They are derived

from the common law or statutes under which discretion is conferred.‟ (City of

Sacramento v. Drew (1989) 207 Cal. App. 3d 1287, 1297-1298.) To determine if a court

abused its discretion, we must thus consider „the legal principles and policies that should

have guided the court‟s actions.‟ (People v. Carmony [(2004)] 33 Cal.4th [367,] 377.)”

(Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747,

773).)

C. The Trial Court Did Not Abuse its Discretion

Section 1138 states that when jurors “desire to be informed on any point of law

arising in the case,” the trial court must provide “the information required.” Section 1138

imposes a mandatory duty “to clear up any instructional confusion expressed by the

jury.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on

another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.)

Although section 1138 imposes “a primary duty to help the jury understand the

legal principles it is asked to apply,” this “does not mean the court must always elaborate

on the standard instructions.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The court

“has discretion to determine what additional explanations are sufficient to satisfy the

jury‟s request for information.” (People v. Smithey (1999) 20 Cal.4th 936, 1009.) Where

the court‟s response to a jury question is “clear and correct,” the court has properly

exercised its discretion. (Id. at p. 985.)

In the instant case, it is undisputed that section 273a, subdivision (b) prohibits

endangerment of a child‟s mental or emotional health. Section 273a, subdivision (b)

specifically proscribes infliction of unjustifiable “mental suffering” upon a child.

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Moreover, case law confirms that a defendant violates section 273a, subdivision (b) if he

or she imperils the mental or emotional health of a child. (See People v. Burton (2006)

143 Cal.App.4th 447, 453-457 [substantial evidence supported a section 273a,

subdivision (b) conviction where a child experienced mental suffering—as evidenced by

his journal entries and problems at school—after witnessing the aftermath of the

defendant‟s attack on the child‟s mother]; see also People v. Hamlin (2009) 170

Cal.App.4th 1412, 1453 [a section 273a, subdivision (b) conviction may be “based on the

mental suffering resulting from a child being exposed to physical abuse by one parent

against the other”].) Thus, the trial court‟s succinct response to the jury‟s question

accurately informed the jury that the phrase “child‟s person or health was endangered,” as

used in the child endangerment instruction, included endangerment of a child‟s mental or

emotional health. Accordingly, because the trial court provided a clear and correct

response to the jury‟s question, the response constituted a proper exercise of the trial

court‟s discretion. (See People v. Smithey, supra, 20 Cal.4th at p. 985.)

Defendant argues People v. Giardino (2000) 82 Cal.App.4th 454 (Giardino)

required the trial court, on its own motion, to provide examples and draw the line

between behavior that does and does not endanger a child‟s mental or emotional health.

Defendant‟s reliance on Giardino is misplaced.

In Giardino, the jury asked the trial court to provide a legal definition of the term

“ „resistance‟ ” as used in an instruction for the crime of rape by intoxication. (Giardino,

supra, 82 Cal.App.4th at p. 464.) In response to the jury‟s question, the trial court

instructed the jury that “ „[t]his is an area in which you must use your common sense and

experience to determine the everyday meaning of resistance.‟ ” (Ibid.) Giardino held

that the trial court‟s response constituted an abuse of discretion. (Id. at p. 465.) Giardino

reasoned that “the correct interpretation [of the term resistance] focuses on whether the

victim‟s level of intoxication prevented him or her from exercising judgment,” and that

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the “defendant was entitled to have that concept correctly explained.” (Id. at p. 466.) In

reaching its holding, Giardino also noted that a trial court must provide “guidance and

clarification” when a jury has difficulty understanding and applying a statute. (Id. at

p. 466, internal quotation marks omitted.)

Defendant asserts that Giardino’s “guidance and clarification” language required

the trial court to engage in detailed line drawing in response to the jury‟s question

regarding mental and emotional health. Contrary to defendant‟s assertion, Giardino did

not hold that a trial court must engage in line drawing when a jury expresses confusion

regarding the meaning of a term used in a jury instruction. Rather, Giardino held that a

trial court erred in providing a legally incorrect response to a jury question. (Giardino,

supra, 82 Cal.App.4th at pp. 466-467). In the instant case, there was no such

misstatement of law. Additionally, although the trial court provided a concise response

to the jury‟s question regarding mental and emotional health, the response nonetheless

provided guidance and clarification as contemplated by Giardino. Defendant‟s reliance

on Giardino therefore is unavailing.

For the foregoing reasons, we conclude that the trial court adequately responded to

the jury‟s question regarding mental and emotional health. We accordingly find that the

trial court‟s response to the jury‟s question did not constitute an abuse of discretion.

II. Ineffective Assistance of Counsel

Defendant alternatively argues that his child endangerment conviction must be

reversed because his trial counsel failed to request a clarifying instruction regarding

endangerment of a child‟s mental or emotional health. Specifically, defendant contends

that trial counsel should have requested an instruction that drew the line between

behavior that does and does not endanger a child‟s mental or emotional health.

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A. Background

When discussing the trial court‟s response to the jury question regarding mental

and emotional health, trial counsel argued: “I certainly concede that [section 273a,

subdivision (b)], on its face, includes emotional/mental suffering. [¶] Further, I would

point out that the CalCrim Jury instructions specifically delineate such. What is not

delineated in the instruction is where does one draw the line? And, how is it to be

proven? For instance, does crying count? And, for how long would one have to cry?

The hypotheticals that could be pondered regarding where one is to „draw the line‟ are

numerous.”

Trial counsel then objected to the trial court‟s response to the jury question

regarding mental and emotional health: “Thus, it is really, as a practical matter, in the

jury‟s realm to draw that line in a case such as this. I believe the court should have

simply told the jury that [section 273a, subdivision (b)] has already been defined as

previously instructed. I am concerned that the court answering „yes‟ to this question is a

course of action that could potentially taint the jury regarding where to „draw the line.‟ ”

B. Trial Counsel was Not Ineffective

To obtain reversal due to ineffective assistance, a defendant must first show “that

defense counsel‟s performance fell below an objective standard of reasonableness, i.e.,

that counsel‟s performance did not meet the standard to be expected of a reasonably

competent attorney.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003

(Cunningham); Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).)

Second, the defendant must show that there is “a reasonable probability that defendant

would have obtained a more favorable result absent counsel‟s shortcomings.”

(Cunningham, supra, 25 Cal.4th at p. 1003.) “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at

p. 694.)

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Because the defendant bears this burden, “[a] reviewing court will indulge in a

presumption that counsel‟s performance fell within the wide range of professional

competence and that counsel‟s actions and inactions can be explained as a matter of

sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211; see also People v.

Witcraft (2011) 201 Cal.App.4th 659, 664.) “If the record contains an explanation for

counsel‟s actions, the ineffective assistance claim will fail because we will defer to

counsel‟s decision, and presume it falls within the wide range of reasonable tactical

decisions available to defense counsel under similar circumstances” (People v.

Montoya (2007) 149 Cal.App.4th 1139, 1150.) “In order to prevail on such a claim on

direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose

for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349.)

In the instant case, the record contains a rational tactical explanation for trial

counsel‟s conduct. Trial counsel‟s comments show that he wanted the jury to be

instructed in general terms, and that he believed giving the jury detailed examples of

endangerment of a child‟s mental health would encourage the jury to convict defendant

of child endangerment. Trial counsel‟s decision to seek vague instructions articulated in

general terms—instructions that could potentially cause jurors to doubt whether

defendant‟s behavior fell within the scope of the child endangerment statute—was a

reasonable tactical decision to which we must defer. (See People v. Lucero (2000) 23

Cal.4th 692, 731 [counsel was not ineffective in failing to seek a clarifying instruction

where counsel reasonably concluded such an instruction “would have done more harm

than good”].) We therefore conclude that trial counsel did not render ineffective

assistance in failing to request an instruction that drew the line between conduct that does

and does not endanger a child‟s mental or emotional health.

Defendant‟s ineffective assistance claim also fails because defendant does not

provide a specific instruction that trial counsel should have requested. Defendant asserts

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that trial counsel should have requested an instruction that drew the line between

behavior that does and does not endanger a child‟s mental or emotional health, but

defendant does not specify what examples and guidelines should have been included in

such an instruction. To prevail on a claim of ineffective assistance of counsel, a

defendant must “support his contentions” and establish ineffectiveness as “a

demonstrable reality and not a speculative matter.” (People v. Stephenson (1974) 10

Cal.3d 652, 661.) Here, because defendant does not delineate a specific instruction that

trial counsel should have requested, his ineffective assistance claim is merely speculative,

and he has failed to meet his burden of proof. (See U.S. v. Cronic (1984) 466 U.S. 648,

666 [a defendant “can . . . make out a claim of ineffective assistance only by pointing to

specific errors made by trial counsel”].)

Accordingly, for the foregoing reasons, we conclude that trial counsel‟s conduct

fell within the wide range of professional competence. We therefore hold that trial

counsel did not render ineffective assistance.

DISPOSITION

The judgment is affirmed.

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______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA J.

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