NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
Plaintiff and Respondent,
RICHARD CARLTON DAVIDSON,
Defendant and Appellant.
(San Benito County
Super. Ct. No. CR-10-00879)
Defendant Richard Carlton Davidson was convicted by jury trial of child abuse (Pen. Code, § 273a, subd. (a); count 1),1 two counts of aggravated assault (former § 245, subd. (a)(1); counts 2 & 3),2 and two counts of misdemeanor vandalism (§ 594, subd. (a); counts 6 & 7). On appeal, defendant argues: (1) insufficient evidence supports his conviction for felony child abuse, (2) the trial court failed to instruct the jury that defendant’s knowledge of the victim’s age is a necessary element of child abuse, (3) the trial court failed to instruct the jury on the lesser included offenses of misdemeanor child abuse and simple assault, (4) a pervasive pattern of prosecutorial misconduct warrants reversal of his convictions, (5) cumulative error requires reversal of his convictions, (6) his sentence for one of his convictions for misdemeanor vandalism was statutorily unauthorized, (7) his two assault convictions were based on alternate legal theories and therefore one conviction must be vacated, (8) one of his sentences for misdemeanor vandalism must be stayed pursuant to section 654, (9) the court erred in calculating his restitution and parole revocation fines, and (10) he is entitled to additional conduct credit.
For the reasons set forth below, we reverse the judgment. On remand, the trial court is directed to resentence defendant for his conviction for misdemeanor vandalism (count 6), vacate his conviction for assault with force likely to produce great bodily injury (count 3), stay his sentence for misdemeanor vandalism (count 7), recalculate the restitution and parole revocation fine, and award defendant a total of 202 days conduct credit.
Factual and Procedural Background
On May 20, 2010, the San Benito County District Attorney’s office filed a complaint charging defendant with a count of felony child abuse of Amber V. (§ 273a, subd. (a); count 1), two counts of felony aggravated assault of Amber V. (former § 245, subd. (a)(1); counts 2 & 3), two counts of felony aggravated assault of Shawn Little (former § 245, subd. (a)(1); counts 4 & 5), a count of felony vandalism of Little’s truck (§ 594, subd. (a); count 6), and a count of misdemeanor vandalism of Vanessa Valdez’s car (ibid.; count 7). The complaint also alleged defendant had served three prior prison terms (§ 667.5, subd. (b)) and had suffered two prior strike convictions (§§ 667, subds. (b)-(i)).
Trial began on July 11, 2011. On July 12, 2011, the trial court reduced count 6 to a misdemeanor.
The Prosecution’s Evidence Amber V.’s Testimony
Amber V. testified at defendant’s trial. Amber V., 15 years old at the time, was friends with Valdez, who lived in a trailer with Little. On February 22, 2010, Valdez and Amber V. were sitting inside Valdez’s car, which was parked in front of Little’s trailer. Defendant drove up to the trailer in a white Ford Expedition, exited his car, and began smashing Little’s truck, which was parked near the trailer, with a metal bat while yelling.
Amber V. and Valdez locked the doors of the car they were in. Defendant walked over, made eye contact with Amber V., and said: “Do you want some of this, too, bitch?” Defendant then struck the passenger side car window where Amber V. was sitting with the bat, shattering the glass on impact. Amber V. moved to avoid being hit and said she believed if she had not moved the bat would have struck her face. The bat touched her shoulder but did not cause her injury. She sustained cuts on her face from the shattered glass. Amber V. said she did not know defendant before the incident.
Amber V. testified that after a while, Little came out of the trailer and yelled at defendant. Defendant then proceeded to chase Little around while swinging the bat. Little avoided being hit. Defendant returned to his car and drove away shortly after. Amber V. said the entire incident took place over the course of approximately two minutes, with the attack on Valdez’s car lasting around five seconds. A neighbor called the police.
Officer Vining’s Testimony
Hollister Police Department Officer Steven Vining arrived at Little’s trailer shortly after defendant left. Vining took photographs of the scene and of Amber V.’s facial injuries and conducted interviews with Amber V., Valdez, and Little. Amber V. told Vining that the bat had not struck her. At trial, Amber V. asserted she did not tell Vining the bat touched her shoulder because it had not injured her, and she was more concerned about the cuts on her face. Vining testified he did not recall Amber V. telling him that defendant had chased Little with the bat.
That same day, Officer Vining drove to a house where defendant was reportedly living. No one answered the door, and Vining did not see defendant’s car nearby. Vining drove to defendant’s workplace but did not find defendant or his car there. A day later, Vining returned to defendant’s house and saw defendant standing outside next to a Ford Expedition. Defendant explained that he used to live in Little’s trailer but had moved out because Little was a “tweaker,” which Vining understood meant he used methamphetamine. Defendant denied being at Little’s trailer the previous day and denied vandalizing any property or assaulting anyone. Vining looked into defendant’s car and did not see a bat.
Officer Vining took an older booking photograph of defendant and created a six-photo lineup, which he presented to Amber V. after giving her an admonishment. Amber V. identified defendant from the lineup.
The Defense’s Evidence
Defendant testified on his own behalf. He denied any wrongdoing and insisted he was home at the time of the incident.
Defendant said he had lived at Little’s trailer for a month and a half but had moved out because there were drugs. He denied ever using drugs at the trailer. Defendant may have met Valdez at some point but did not know Amber V.
Defendant acknowledged he had previous convictions for dissuading a witness and being a felon in possession of a firearm.
Verdict and Sentencing
On July 14, 2011, the jury returned guilty verdicts on count 1 (felony child abuse), count 2 (aggravated assault of Amber V.), count 3 (aggravated assault of Amber V.), count 6 (misdemeanor vandalism of Little’s truck), and count 7 (misdemeanor vandalism of Valdez’s car), and a not guilty verdict on counts 4 and 5 (aggravated assault of Little). The trial court found true the allegations that defendant had suffered two prior strike convictions (§ 667, subds. (b)-(i)) and served three prior prison terms (§ 667.5, subd. (b)) after a bifurcated bench trial.
On December 9, 2011, the court sentenced defendant to a term in prison of 25 years to life plus 13 years each for counts 1, 2, and 3. The sentences for counts 2 and 3 were stayed pursuant to section 654. The court also imposed a term of 25 years to life plus 13 years for count 6 (misdemeanor vandalism), to be served consecutively to the term imposed on count 1. For count 7, the court imposed a term of one year in county jail to be served concurrently with defendant’s aggregate indeterminate term of 50 years to life plus a determinate term of 26 years.
Defendant was awarded 486 days of presentence credit consisting of 405 actual days and 81 days conduct credit. The court also imposed various fines and fees, including an $800 restitution fine pursuant to section 1202.4, subdivision (b), with a matching $800 parole revocation fine (§ 1202.45) that was imposed but suspended.3 Defendant appealed.
Sufficiency of Evidence for Felony Child Abuse Conviction
First, defendant challenges the sufficiency of the evidence supporting his conviction for felony child abuse (§ 273a, subd. (a)). Specifically, he claims there was insufficient evidence he knew Amber V. was a child.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . .” (People v. Guerra (2006) 37 Cal.4th 1067, 1129; see also People v. Meza (1995) 38 Cal.App.4th 1741, 1745.)
Section 273a, subdivision (a) provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or 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 is endangered, shall be punished . . . .”
Defendant reads a knowledge element into section 273a, subdivision (a). He argues that in order for his conviction to stand, there must be sufficient evidence he knew Amber V. was a child. We disagree.
Defendant acknowledges there is no case law construing a knowledge element into section 273a, subdivision (a). Therefore, we must determine whether the statute should be interpreted as requiring, as an element of the offense, that a defendant know his victim is a child.
The rules of statutory interpretation are well-settled. “Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning.” (Day v.City of Fontana (2001) 25 Cal.4th 268, 272.) “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) “If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.” (Day v. City of Fontana, supra, at p. 272.)
We find no ambiguity inherent in the statute. Given the plain language of section 273a, in order for a defendant to be convicted of the crime of child abuse it must be established that the victim was in fact a child. Therefore, the victim’s age is an element of the crime that must be proven by the prosecution. However, defendant’s argument that the prosecution must also prove an additional element--that the perpetrator of the abuse knew the victim’s age--is unavailing. There is no language in the statute that suggests this is an element of the offense.
Indeed, if the Legislature had intended for a defendant’s knowledge of the victim’s age to be a required element, it would have included such wording in the statute. For example, section 368, the statute that criminalizes elder abuse, was modeled after section 273a. In pertinent part, it states that “[a]ny person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering . . .” shall be punished. (§ 368, subd. (b)(1), italics added.)4 Accordingly, a defendant’s knowledge of the victim’s age is an essential element of the offense of elder abuse, as expressly stated in section 368. This language is conspicuously absent from section 273a.
“Because the wording of these statutes shows the Legislature, if it wishes, knows how to express its intent that knowledge be an element of an offense, the absence of such a requirement . . . indicates it intended no such requirement. [Citation.] ‘It is a settled rule of statutory construction that where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to the different statutes.’ ” (In re Jennings (2004) 34 Cal.4th 254, 273.) Here, the language of section 368 tracks that of section 273a. By adding a knowledge requirement to section 368, it seems the Legislature impliedly acknowledged the lack of a similar requirement in section 273a. Otherwise, the addition of the knowledge element to section 368 would have been superfluous and unneeded.
Nonetheless, defendant insists the statute’s declaration that a defendant must “willfully” cause harm to a child should be construed as a requirement that the defendant know the victim’s age.5
Defendant notes that in People v. Valdez (2002) 27 Cal.4th 778, our Supreme Court stated that the “mens rea for the crime [of child abuse] was the intent to perform the underlying injurious act on a child.” (Id. at p. 786, italics added.) Valdez, however, did not consider whether “willfully” imparted a requirement that a defendant know his victim’s age. Valdez discussed the appropriate mens rea needed for a defendant to be convicted of indirect infliction of harm on a child in violation of section 273a. “[I]t is axiomatic that cases are not authority for propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Defendant’s reliance on Valdez is unavailing.
Defendant is correct that “the meaning of the term ‘willfully’ varies depending on the statutory context.” (People v. Garcia (2001) 25 Cal.4th 744, 753 (Garcia).) Certainly, in criminal statutes involving a failure to act--such as a violation of section 290 for failing to register as a sex offender--our Supreme Court has interpreted the term to require the defendant actually know of the duty to act. (Garcia, supra,at pp. 752-754.) This is because in the context of a defendant’s failure to register, one cannot logically “purposefully fail to perform an act without knowing what act is required to be performed.” (Id. at p. 752.) However, the Garcia court’s interpretation of “willfully” is readily distinguishable, because section 273a does not criminalize a failure to act in a certain manner. Therefore, we reject defendant’s claim that “willfully” in this context imparts a knowledge requirement.6
Indeed, we find that the term “willfully” in section 273a does not mandate the prosecution prove knowledge of the victim’s age; it requires the prosecution prove the defendant acted with the requisite criminal intent.
Section 273a is not a strict liability offense, and the criminal intent needed to support a conviction under section 273a is established. Section 273a, subdivision (a) “ ‘is an omnibus statute that proscribes essentially four branches of conduct.’ [Citation.] These four branches or prongs are: ‘ “Any person who, under circumstances or conditions 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 is endangered . . . .” ’ ” (In re L.K. (2011) 199 Cal.App.4th 1438, 1444-1445.)
The second category of offenses has been described by our Supreme Court as “direct infliction,” whereas the first, third, and fourth categories are “indirect infliction.” (People v. Valdez, supra, 27 Cal.4th at p. 786.) For a “direct infliction” offense, a defendant must possess a “general criminal intent, similar to battery or assault with a deadly weapon.” (In re L.K., supra, 199 Cal.App.4th at p. 1445.) The intent for the other three categories of “indirect infliction” offenses is criminal negligence. (Ibid.) Therefore, “willfully” in this context is best understood as requiring a defendant possess either a general criminal intent or criminal negligence.
We note that our conclusion that section 273a does not require the prosecution to prove knowledge of age is consistent with other criminal statutes involving minors. (See People v. Zeihm (1974) 40 Cal.App.3d 1085, 1089 [concluding that “belief as to age is a matter of defense and is not a part of the prosecution’s burden of proof” for crime of unlawful sexual intercourse with a minor (§ 261.5)], disapproved of on other grounds in People v. Freeman (1988) 46 Cal.3d 419, 428, fn. 6; In re Jennings, supra, 34 Cal.4th at pp. 260, 276, 279-280 [mistake of age defense may be raised by defendant, but prosecution need not prove knowledge of age to establish offense of purchasing alcohol for persons under the age of 21].) Furthermore, this interpretation is also consistent with the statute’s purpose to protect children, who are “ ‘members of a vulnerable class,’ ” from situations where serious injury or death is likely to occur. (People v. Toney (1999) 76 Cal.App.4th 618, 622.)
In sum, defendant’s offense is best characterized as a “direct infliction” offense under the statute, and he does not argue there is insufficient evidence he possessed a general criminal intent. He merely insists the prosecution failed to present evidence he knew Amber V. was a minor. Since we determine a defendant’s knowledge of the victim’s age is not a required element of a violation of section 273a, we find sufficient evidence supports his conviction on this count.
Failure to Instruct on Knowledge of Age as an Element of Section 273a
Defendant argues the court erred by failing to instruct the jury that a defendant’s knowledge of the victim’s age is a necessary element of section 273a. A court is required to provide instructions on every material element of an offense. (People v. Flood (1998) 18 Cal.4th 470, 480.) However, based on our conclusion that a defendant’s knowledge of the victim’s age is not an element of section 273a, the court did not err by not instructing the jury on this matter.
Failure to Instruct on Lesser Included Offenses of Misdemeanor Child Abuse and Simple Assault
Next, defendant insists the trial court was required to instruct the jury on the lesser included offenses of misdemeanor child abuse and simple assault.
“ ‘ “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. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That 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.] The obligation to instruct on lesser included offenses exists when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
Therefore, “[a] trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense.” (People v. Manriquez (2005) 37 Cal.4th 547, 584.) “In deciding whether evidence is ‘substantial’ in this context, a court determines only its bare legal sufficiency, not its weight.” (People v. Breverman, supra, 19 Cal.4th at p. 177.) On appeal, we apply a de novo standard of review and independently determine whether the court erred in failing to instruct on a lesser included offense. (Ibid.) Failure to instruct requires reversal only if we conclude that it is reasonably probable the erroneous instruction affected the outcome. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Misdemeanor Child Abuse
Preliminarily, we note that “[m]isdemeanor child abuse (§ 273a, subd. (b)), is a lesser included offense of felony child abuse (§ 273a, subd. (a)).” (People v. Moussabeck (2007) 157 Cal.App.4th 975, 980.) The difference between misdemeanor child abuse and felony child abuse is whether the abuse was committed “under circumstances or conditions likely to produce great bodily injury or death.” (Ibid.) Accordingly, at issue here is whether there was substantial evidence from which a jury could have found defendant committed child abuse under circumstances or conditions that were not likely to produce great bodily injury or death and therefore committed misdemeanor child abuse, not felony child abuse. In the absence of such evidence, the court did not err by not instructing on the lesser included offense of misdemeanor child abuse. (People v. Blair (2005) 36 Cal.4th 686, 744-745, overruled on a different point in People v. Black (2014) 58 Cal.4th 912.)
Defendant insists People v. Racy (2007) 148 Cal.App.4th 1327 (Racy) is instructive. The Racy defendant appealed his conviction of felony elder abuse in violation of section 368, subdivision (b)(1), arguing in part that the trial court erred in failing to instruct on the lesser included offense of misdemeanor elder abuse (§ 368, subd. (c)). (Racy, supra, at p. 1330.) The Racy defendant “ ‘zapped’ ” the 74-year-old victim with a stun gun, which the victim described as pain similar to a “ ‘poke’ ” from an ice pick. (Id. at pp. 1330-1331.) The victim was able to retreat to his bedroom where he tried to lock the door, but the defendant followed so closely behind that the victim was unable to do so. However, the victim was able to get in a defensive position on the bed. The defendant asked the victim for money, “ ‘zapped’ ” the stun gun “ ‘in the air’ ” and tipped the victim over, exposing his wallet. The victim struggled with the defendant, but the defendant was able to take the wallet. The victim tripped at some point, and the defendant ran out of the house. The victim called the police but did not seek medical attention because there was no evidence of burns or other injuries to his leg. (Id. at p. 1331.)
The appellate court concluded the trial court should have instructed the jury on the lesser included offense of misdemeanor elder abuse. (Racy, supra, 148 Cal.App.4th at pp. 1335-1336.) The court noted the victim “did not suffer great bodily harm during the incident, so the jury was left to draw inferences about whether the circumstances or conditions under which defendant inflicted physical pain or mental suffering were likely to produce great bodily harm or death.” (Id. at p. 1335.) Furthermore, the court opined that “it is reasonable the jury could have viewed [the victim] as a rather large man who was not likely to suffer great bodily injury or death during the incident despite his age and physical limitations.” (Id. at p. 1336.) Additionally, the victim, despite being zapped with the stun gun, was able to retreat to his room, call 911, and get in a defensive position on the bed. He emerged “unscathed after being tipped and tripped.” (Ibid.) Therefore, the court concluded that based on this evidence there was a “ ‘reasonable chance’ defendant ‘would have obtained a more favorable outcome’ had the jury been instructed on misdemeanor elder abuse.” (Ibid.)
We find Racy distinguishable. The Racy defendant used a stun gun, “tripped,” and “tipped” the victim, conditions that were not necessarily likely to cause great bodily injury or death to the elder victim. Here, defendant swung a bat at Valdez’s passenger car window where Amber V. was sitting with enough force that the glass shattered. The only reasonable finding a jury could have made if it concluded defendant was responsible for the crime was that the offense was committed under circumstances or conditions likely to produce great bodily harm or death. It is well-settled that “instructions on lesser included offenses are not required when the evidence shows that, if guilty at all, [the] defendant committed the greater crime.” (People v. Lema (1987) 188 Cal.App.3d 1541, 1545.)
Additionally, it is not dispositive that Amber V. did not sustain more serious injuries during the incident aside from the cuts on her face from the shattered window. The issue is whether defendant’s act of hitting the car window is a condition likely to produce great bodily injury. The fact that defendant’s actions did not actually cause great bodily injury does not necessarily warrant instruction on the lesser included offense. People v. Rupert (1971) 20 Cal.App.3d 961, cited by defendant, does not dictate a different result. The Rupert court concluded the trial court erred when it failed to instruct on the lesser included offense of simple assault after the defendant was convicted of assault with force likely to produce great bodily injury. (Id. at pp. 968-969.) The court recognized an instruction on a lesser included offense is only necessary when “the evidence would support such a determination.” (Id. at p. 968.) In contrast, there is no such evidence here.
People v. Roman (1967) 256 Cal.App.2d 656, also relied on by defendant, is similarly distinguishable. The Roman defendant argued on appeal that the trial court erred in failing to instruct the jury on the misdemeanor provision of section 273a. (People v. Roman, supra, at p. 661.) The evidence established the child “had blood around its nostrils, red marks on its face, neck, back, legs, and arms, discoloration on one arm, apparently as the result of blows, but that it had not sustained any serious injury requiring medical treatment.” (Ibid.) The defendant testified he had spanked the child with a belt but had not struck the child on the head or face and had not seen any marks on the child after the spanking. (Ibid.) The appellate court concluded a jury could have found the beating was one likely to produce great bodily harm or could have accepted the defendant’s testimony and determined it was a beating under any other circumstance and therefore only a misdemeanor. (Ibid.) The court noted the defendant’s testimony “raised the issue of the severity of the beating, and the jury should have passed on that issue.” (Id. at p. 662.)
Defendant claims Roman is analogous, because Amber V.’s testimony cast doubt on the amount of force used by defendant since she asserted the bat merely touched her shoulder and did not cause her injury. Defendant is incorrect. This testimony does not cast doubt on the amount of force used by defendant. Rather, it concerns the extent of injuries suffered by Amber V. as a result of the attack. There was no conflicting testimony about the severity of the force used by defendant when he swung the bat. The only evidence presented was that defendant was forceful enough to shatter the car window. This action unequivocally placed Amber V. in a condition likely to produce great bodily harm or injury. Amber V.’s testimony does not warrant an instruction on a lesser included offense. Therefore, the trial court did not err.