Brief Bank # B-657 (Re: F 9.37 n4 [Child Abuse: Definition Of “Care” And “Custody”].)
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NOTE: There are three documents below: Appellant’s Opening Brief, Respondent’s Brief, and Appellant’s Reply Brief.
Date of Brief: November 1994
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, 3 Crim. C000000
v. Butte Co.No.CM000000
JOHN DOE,
Defendant and Appellant.
_________________________________________/
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA FOR THE COUNTY OF BUTTE
HONORABLE WILLIAM R. PATRICK, JUDGE
APPELLANTS’ OPENING BRIEF
CAROLYN J. FERSHTMAN
Attorney at Law
P.O. Box 146
Philo, CA 9S466
(707) 895-3736
State Bar No. 119729
Attorney for Appellant
Appointed on an Assisted Basis
I.
THE EVIDENCE FAILED TO SHOW THAT APPELLANT HAD THE CARE OR
CUSTODY OF THE CHILDREN NECESSARY TO FIND HIM GUILTY OF CHILD
ENDANGERMENT AS CHARGED IN COUNTS TWO AND THREE
The jury found appellant guilty of child endangerment, in violation of Penal Code section 273a, subdivision (1) [Footnote 1], as charged in counts two and three of the information. The jury was instructed that in order to prove that appellant violated this section, “each of the following elements must be proved:
1. A person, who had care or custody of a child, willfully caused or, as a result of criminal negligence, permitted the child to be placed in a situation that endangered the child’s person or health. [] and
2. Such conduct occurred under circumstances likely to produce great bodily harm or death.” (CT 190-191.)
The jury was further instructed that,
“The evidence available to you in deciding the child endangerment charges in counts 2 and 3 is limited to the alleged loaded shotgun in the mobile-home and the children’s alleged status with regard to the mobile home, Mr. Doe and the shotgun.” (CT 192.)
The evidence failed to show that appellant had care or custody of the children, R.N. and T.M., necessary to sustain a conviction of section 273a, subdivision (1). Therefore, appellant’s convictions on counts two and three must be reversed.
The evidence introduced at. trial regarding appellant’s relationship to the children was insufficient to sustain a conclusion that appellant had care or custody of the children. Officer Richard Graves spoke to appellant at the time of his arrest. Detective Leslie Carl Sturdy testified that he searched the mobile home on the property. Inside the mobile home, he found a Pacific Bell calling card in the area by the television in the name of Ms. L. In the middle bedroom area, he found children’s clothing, some freshly laundered and stacked in piles, some dirty and in a pile. (RT 150-151.) Ms. L drove up to the property on the evening of appellant’s arrest, her two children were with her in the car. (RT 151.) Ms. L had a bag of groceries, she had apparently gone out to the store and returned. The groceries were enough for one meal. (RT 168.)
Appellant told Sturdy that the mobile home was his and that he had been on the property approximately one month. The mobile home appeared as if someone was living there and packing. There was a generator but it was not on; there was no refrigeration, no washer or dryer, no electrical heat and no water service. There was some evidence of habitation, there were dirty dishes in the sink, children’s clothing and some adult clothing, some in boxes, some hanging in the closet. (RT 163-165.)
Appellant indicated that he stayed at the mobile home occasionally, off and on. He stated that Ms. L was there with him two days a week, and the children were there one day a week. Appellant stated that he also stayed at his mother’s house in Palermo. (RT 163-165.)
No evidence was presented that indicated that appellant and Ms. L were married or living together on a permanent basis, or that appellant had any relationship with the children supporting an inference that he had care or custody of Ms. L’s children. There was no evidence that appellant was the biological or customary father of the children.
Care or custody of children, is not specifically defined in section 273a, subdivision (1). [Footnote 2] However, under any reasonable definition of care and custody, there was insufficient evidence upon which the jury could find that appellant had care or custody of the children as required by the child endangerment statute, section 273a, subdivsion (1).
In People v. Harris (1966) 239 Cal.App.2d 393, the court addressed the defendant’s contention that the evidence failed to show that she exercised care or custody of the children named in the information. There, the defendant lived in a home with eight children, three of whom were her biological children. In upholding the defendant’s conviction under section 273a, the court found that there was sufficient evidence to support the finding that “at least some of the children found in defendant’s home . . . were in her custody.” The court recounted the evidence that “defendant had been living in the home with a number of children for eight to ten months. When the investigator came, she told him that three of those who were then present . . . were her own.” One of these three children, Andrea, was specifically named in the information, with two children who were not her offspring. The court concluded that was a reasonable inference that Andrea had been living there in her mother’s custody, and that she was the person referred to the information. . . .” (Id. at p. 398.)
In other words, the court found care and custody was met as to the child that was defendant’s biological child, and implicitly found that care and custody was lacking as to the children that defendant lived with for eight months but who were not her biological children. In appellant’s case, there was no evidence that he was the biological parent or legally recognized caretaker of either of the children. Therefore, the evidence fails to meet the standard set forth in Harris which requires a sufficient showing that the accused actually exercise care or custody over the child named in the information.
In People v. Fuentes (1967) 253 Cal.App.2d 969, defendant was convicted of child endangerment based on a finding that he had care and custody of his girlfriend’s child, and that he subjected the child to unjustifiable pain and suffering. In reaching its determination that the defendant in that case had care and custody of the children, the court found it significant that,
“the child of Mrs. Cole . . . resided with Mrs. Cole and defendant. Mrs. Cole was employed and worked from 6 p.m. to 2 a.m. While Mrs. Cole was at work defendant supposedly attended and cared for the four children of Mrs. Cole. . . . [On the day of the offense] Defendant and the children were the only persons in the home when Mrs. Cole left for work.” (253 Cal.App.2d at pp. 971-972.)”
“Appellant was left by the mother with the children when she went to work. No one but appellant was with the children. No one other than appellant and the children was in the apartment when Mrs. Cole returned from work. It can be inferred that appellant had exclusive control over Lawrence during the time the mother was away on the night in question. Appellant resided with Mrs. Cole.” (Id. at p. 974.)
Unlike the defendant in Fuentes, there was no evidence that appellant exercised custody or control over the children. There was no evidence that appellant played a caretaker role for the children. There was no evidence that the children ever visited or spent time with appellant outside the presence of their mother, who was their primary caretaker.
The evidence was insufficient as a matter of law to sustain a conviction for child endangerment because the evidence failed to show that appellant at the time in question, or at any time, had care and custody of the children as required by the statute. In appellant’s case, there was no evidence that he was the biological father or legally recognized caretaker of the children. The children arrived at the house with their primary caretaker, Ms. L. Nothing in the evidence supports an inference that the children were ever left in the home outside of Ms. L’s presence. Appellant testified that he lived at the mobile home off and on. The children came to see him, with their mother, one day a week. There were children’s clothes at the trailer, but no electricity, water service, refrigeration, heat, or other services consistent with a finding that the dwelling was continuously inhabited. The only evidence of their mother’s presence at the residence was a Pacific Bell calling card. Such a card is customarily used by someone using a phone other than their home phone. The presence of the calling card indicates that the phone was not the primary or home phone used by the children’s mother. (RT 150-168.)
Under the standard set forth in Harris and Fuentes, supra, and under any reasonable interpretation of the facts, there was insufficient evidence to support a finding that appellant exercised care and custody of the children named in counts two and three.
“In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine ‘from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision,, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
In appellant’s case, the evidence presented at trial failed to establish that he had care or custody of the children as required by section 273a. Because there was not substantial evidence to support the jury’s finding of guilt on counts two and three, appellant’s convictions for child endangerment must be reversed.
THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY, SUA SPONTE, REGARDING THE DEFINITION OF CARE AND CUSTODY NECESSARY TO FIND APPELLANT GUILTY OF THE CHILD ENDANGERMENT COUNTS CONSTITUTED PREJUDICIAL ERROR REQUIRING REVERSAL
The jury was instructed that in order to find appellant guilty of the offense of child endangerment as charged in counts two and three, they had to find that appellant had care or custody of the child and placed that child in danger:
“Every person who, under circumstances or conditions likely to produce great bodily harm or death: has care or custody of a child, and willfully causes or, as a result of criminal negligence, permits the child to be placed in a situation that endangers the child’s person or health, is guilty of violation of Section 273 (a) (1) of the Penal Code. . . .
In order to prove such crime, each of the following elements must be proved:
(1] A person, who had care or custody of a child, [ ] willfully caused or, as a result of criminal negligence, permitted the child to be placed in a situation that endangered the child’s person or health, and
[2] such conduct occurred under circumstances likely to produce great bodily harm or death. (CT 189-191.)
The jury’ instruction failed to define for the jury the term “care and custody” of a child. This term has a particular and technical legal definition. A finding that appellant exercised such care and custody over the children was an element of the offense that the prosecution had a burden of proving. Had the jurors been correctly instructed as to the definition of the term “care and custody,” they would have been able to discern that the proof offered by the prosecution was insufficient to return a conviction. Because the trial court failed to correctly apprise the jury of the technical legal definition of the term “care and custody,” appellant was deprived of the right to have the jury adjudicate every element of the offense. This error is reversible per se.
“It is the trial court’s duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. (People v. Sanchez (1950) 35 Cal.2d 522, 528.) A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence (People v. Sedeno (1974) 10 Cal.3d 703, 715, []; disapproved on other grounds in People v. Flannel (1979) 25 Cal. 3d 668, 684, fn. 12, []) ; and (2) to give explanatory instructions when the terms used in an instruction have a technical meaning peculiar to the law (People v. Valenzuela (1985) 175 Cal.App.3d 381, 393, []). A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and a denial of that right constitutes a miscarriage or justice regardless of the strength of the prosecution’s case. (People v. Mayberry (1975) 15 Cal.3d 143, 157, (People v. Reynolds (1988) 205 Cal.App. 3d 776, 779.)
The recent Court of Appeal decision in People v. Black (1994) ___ Cal.App.4th ___, 28 Cal.Rptr.2d 546, 548, is in accord. In Black, the court reversed defendant’s conviction where the trial court had failed to instruct the jury on the definition of “legal justification,” a term with a technical meaning peculiar to the law. The court held that the term “without legal justification” was an element of the offense, and reversed, applying the harmless error standard of Rose v. Clark (1986) 478 US 570, 578-579 [106 S.Ct. 3101, 3106, 92 L.Ed. 2d 460, 471]), i.e., the court could not conclude beyond a reasonable doubt that the jury’s verdict was not affected by the erroneous instruction.
In another recent case, the Court of Appeal in People v. Shoals (1992) 8 Cal.App.4th 475, reversed defendant’s conviction for opening or maintaining a place for unlawfully selling, giving away or using any controlled substance where the trial court failed to orally define “opening” or “maintaining.” Relying on the reasoning set forth in Reynolds, supra, the Shoals court found that the court had a duty to instruct the jury on the technical legal meaning of these terms. The court ruled:
“Since defendant’s due process rights include the right to have the jury determine every element of the offense (People v. Reynolds, supra []), and since ‘[i]t is the trial court’s duty to see that the jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function’ (ibid.), appellant’s failure to request the instruction does not waive the issue. A denial of the right to have the jury determine every material issue ‘constitutes a miscarriage of justice regardless of the strength of the prosecution’ s case. [ ]’ The jury was not instructed fully on the meaning of the elements of the offense in this case. Therefore, (the conviction] must be reversed.” (People v. Shoals, supra, 8 Cal.App.4th at pp. 490-491.)
In appellant’s case, the court instructed the jury that to find appellant guilty of child endangerment, it must first find that he had care and custody of the children. Yet the court failed to define that term. The jurors were therefore not adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function.
Care and custody is an element of the offense of child endangerment. Care and custody are legal terms that have a technical meaning peculiar to the law which is not commonly understood by the average person. Therefore, the court had a sua sponte duty to instruct as to the definition of care and custody.
In People v. Harris, supra, 239 Cal.App.2d 393, 398, defendant was living with eight children, three of whom were her biological children. Only one of the three children named in the information was her biological child. The court found sufficient evidence to sustain her conviction f or child endangerment as to her biological child only, based on the court’ s reasoning that defendant exercised care and custody as to that child, because of her role as primary caretaker for that child. Implicitly, the court’s reasoning leads to a conclusion that even where the other children were in defendant’s home, but there. was no primary caretaker relationship, there was insufficient evidence of care and custody to sustain the conviction.
The court’s finding in Harris shows that the law requires some showing of a legal or technical relationship that is required to prove care and custody under the statute.
In People v. Fuentes, supra, 253 Cal.App.2d 969, 971-972, defendant was convicted of child endangerment based on a finding that he had care and custody of his girlfriend’s child, based on the fact that defendant resided with his girlfriend and her child, and the child was left in the exclusive care of the defendant while his girlfriend was at work.
In contrast to the standards set forth in Harris and Fuentes, supra, care and custody are defined in looser, more casual terms in the dictionary of common usage. Webster’s Dictionary defines. custody as “a guarding or keeping safe; care; protection; guardianship. . . .” Care is defined as “charge; protection; custody; or close attention or careful heed.” (Webster’s New World Dictionary, 1972.)
The more casual definition of “care” and “custody” as set forth in Webster’s dictionary of common usage would support a finding of child endangerment whenever a person had a child in his or her charge, temporarily, or even in the presence of the childrenst primary caretaker.
However, as the courts, opinions in Harris and Fuentes suggest, “care and custody” as included in section 273a is a technical legal term that requires some showing that the defendant was either the biological or otherwise legally recognized primary .caretaker of the children, or exercised exclusive control over the children on a long-term and regular basis in the absence of the primary caretaker.
The jury was not instructed as to the precise legal and technical definition of care and custody required to be proved as an element of the offense of child endangerment. Therefore, the jury could not properly perform its task of applying to the law to the f acts of the case. Had the jury been instructed as to the definition of care and custody as defined in the law, they would have been able to discern that appellant did not exercise care and custody over the children: i.e., he was not the biological or or legally recognized primary caretaker of the children, nor did he exercise exclusive control over the children in the absence of their biological mother and primary caretaker, Ms. L.
In the absence of proper instructions to guide the jury in its deliberations, appellant was deprived of his constitutional right to have the jury determine guilt or innocence as to an element of the offense of child endangerment. This court can not conclude beyond a reasonable doubt that the jury’ s verdict was not. affected by the erroneous instruction. Therefore, appellant’ s convictions on counts two and three must be reversed. (People v. Black (1994) Cal.App.4th 28 Cal.Rptr.2d 546, 548, Rose v. Clark (1986) 478 US 570, 578-579 [106 S.Ct. 3101, 3106, 92 L.Ed.2d 460, 471].)
RESPONDENT’S BRIEF
ARGUMENT
I.
SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT’S CONVICTION FOR CHILD ENDANGERMENT PURSUANT TO PENAL CODE SECTION 273A, SUBDIVISION (1)
Appellant was convicted of two counts of child endangerment, in violation of Penal Code section 273a, subdivision (1). (RT 264-265.) The third clause of that section provides that it is unlawful for any person, having the care or custody of any child, to willfully cause or permit the child to be placed in such a situation that his person or health is endangered.
Appellant argues that the evidence failed to show he had the care or custody of the child-victims in this case. (AOB 8-13.) He asserts there was no evidence that he and the children’s mother were married or living together on a permanent basis or that he was the biological or customary father of the children. (AOB 9-10.) Thus, he concludes, there was insufficient evidence to support his convictions “under the standard set forth in [People v. Harris (1966) 239 Cal.App.2d 393 and People v. Fuentes (1967) 253 Cal.App.2d 969].” (AOB 10-13.)
In Harris, the defendant and her codefendant, Beverly Blackston, were charged with child endangerment, in violation of Penal Code section 273a. (239 Cal.App.2d at p. 394.) Police officers had gone to Harris’ residence in response to a complaint from a neighbor. Upon entering, they saw five or six children. Harris told them that three of the children were her own, and three others in the house belonged to Mrs. Blackston. The residence was extremely filthy and roach-infested, and one of the children, who was in bed, had raw buttocks and thighs and encrustation of dried defecation on his legs. A neighbor testified that Harris and about eight children had lived at the residence for eight to ten months, but he had not seen Mrs. Blackston before the day the officers came. (Id., at pp. 395, 398.) Harris was found guilty as charged, and Mrs. Blackston was found not guilty. (Id., at p. 394.)
Harris argued that the evidence was insufficient because there was no expert testimony that the conditions shown by the evidence were likely to injury the health of any children. (239 Cal.App.2d at p. 398.) The court rejected this claim, stating that expert testimony was unnecessary, actual injury was not necessary, and the record disclosed conditions of filth and wanton neglect that even the most ignorant parent should recognize as hazardous to children. (Ibid.) The court continued,
“The evidence supports the finding that at least some of the children found in defendant’s home . . . were in her custody. We must assume in favor of the judgment every fact which the trial court could reasonably have inferred from the evidence. [Citation.] The evidence showed that defendant had been living in the home with a number of children for eight to ten months. When the investigator came, she told him that three of those who were then present, Andrea, Artie, and Crystal, were her own. The information charges that the children who were endangered were Margarett R. Blackston, Derral E. Blackston and Andria M. Hunter. It was a reasonable inference that Andrea had been living there in her mother’s custody, and that she was the person referred to in the information as Andria M. Hunter. If the child’s name was not ‘Hunter,’ the variance is immaterial.”
(Ibid.)
According to appellant, the court in Harris “found care and custody was met as to the child that was defendant’s biological child, and implicitly found that care and custody was lacking as to the children that defendant lived with for eight months but who were not her biological children.” (AOB 11.) Respondent disagrees.
Harris was charged with a single count of child endangerment, although three victims were named. (239 Cal.App.3d at p. 394, 399.) As the court noted, there was evidence that “at least” one of the victims had been living in the apartment in Harris’ custody. (Id., at p. 398.) Consequently, the evidence was sufficient to support her conviction for child endangerment, and the court did not need to decide, nor did it decide, the question of whether the other two victims had been in Harris’ care and custody.
In People v. Fuentes, supra, 253 Cal.App.2d 969, the defendant was charged with having killed three-year-old Lawrence Cole without malice and with inflicting unjustifiable physical pain and mental suffering on the child, in violation of Penal Code section 273a. (Id., at p. 971.) The evidence showed that Fuentes resided with Mrs. Alice Cole and her four children, one of whom was Lawrence, and he cared for the children while Mrs. Cole worked. (Id., at pp. 971-972.) Fuentes had exclusive control over Lawrence on a night when Lawrence received a number of injuries, which caused his death. (Id., at pp. 972-974.)
Appellant declares that “[i]n reaching its determination that the defendant [in Fuentes] had care and custody of the children,” the court found it significant that [the defendant resided with the children and their mother, he cared for the children while she worked, and no one but the defendant was with the children while their mother was gone.]” (AOB 11.) Accordingly, appellant notes, the court stated it could be inferred that the defendant “had exclusive control over Lawrence during the time the mother was away on the night in question.” (253 Cal.App.2d at p. 974, quoted at AOB 11-12 [emphasis added by appellant].)
Contrary to appellant’s implication, the question of whether Fuentes had care or custody of the child within the meaning of Penal Code section 273a was not before the court. Rather, the issue was whether the evidence was sufficient to prove that Fuentes was the person who had inflicted the fatal injuries. The court’s discussion about who had control over the child was offered as support for its ultimate conclusion that the evidence was clearly sufficient to warrant the determination that it was Fuentes who applied the external force that resulted in the child’s death. (253 Cal.App.2d at pp. 972-974.) The court’s discussion has no application to the instant case.
The cases thus do not support appellant’s attempt to restrict the application of the third clause of Penal Code section 273a, subdivision (1), so as to require “some showing that the defendant was either the biological or otherwise legally recognized primary caretaker of the children, or exercised exclusive control over the children on a long-term and regular basis in the absence of the primary caretaker.” (AOB 18.)
The evident purpose of section 273a is to protect children from physical and emotional harm. This purpose is best effectuated when the words “care” and “custody,” are construed in their ordinary sense, and there is nothing in the statute or in the caselaw to suggest they were meant to be used in any other way.
The question, then, is whether there is substantial evidence to support the jury’s verdict, including its implied finding that appellant had care or custody of the child-victims. (See People v. Johnson (1980) 26 Cal.3d 557, 576.) Thus, this Court must determine whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving appellant guilty beyond a reasonable doubt. (People v. Bloyd (1987) 43 Cal.3d 333, 346; Johnson, supra, at p. 576.) In making this determination, this Court must view all evidence in the light most favorable to the prosecution, and it must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.)
On the afternoon of September 15, 1992, three Butte County deputies went to a rural address in Butte County, looking for a man named Mr. S, who was the owner of a car registered to that address. (RT 38-40, 52-53.) When they arrived, they saw appellant, who was standing in the doorway of a building that looked like a barn or a shop. (RT 41.) Deputy Richard Graves asked appellant if he had seen either Mr. S or his son, Bruce, for both of whom there were outstanding arrest warrants. (RT 42, 47.) Appellant replied that he had not seen either man for two weeks, and that he, his girlfriend, Ms. L, and her two children were the only people staying at the property. (RT 42-43.)
Subsequently, the deputies searched appellant’s truck, a mobile home, which was the only residence on the premises, the surrounding area, and appellant’s person. They discovered evidence that appellant was involved in the manufacturing of methamphetamine, and they found a number of firearms. (Post, pp.14-15.)
The deputies also found what one described as “evidence of habitation.” (RT 165.) In addition to adult clothing and a phone calling card in the name of Ms. L, which was next to the television, they found evidence that children were living in the mobile home, including piles of clean clothes and dirty clothes in one of the bedrooms. (RT 150-152.)
While the deputies were at the premises, Ms. L arrived with her two boys, ages six and seven. (RT 151-152, 164.) They apparently had gone to the store, and they were returning with groceries. (RT 152.)
Appellant told the deputies that he had been living in the mobile home for approximately a month, he was staying there only occasionally, Ms. L stayed with him approximately two days a week, and the children were there about once a week. (RT 158, 161-164.)
Upon this evidence, the jurors reasonably could have found that Ms. L and her children were living with appellant some of the time, in a family-type arrangement. And, given the nature of the relationship, they could have drawn the reasonable inference that appellant exercised responsibility and control over the children, at least when they were staying at his residence. Accordingly, the evidence was sufficient to support the jurors’ implied finding that appellant exercised care or custody of the children and to support their verdict that appellant was guilty of child endangerment pursuant to Penal Code section 273a, subdivision (1).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, 3 Crim. C000000
v. Butte Co.No.CM000000
JOHN DOE,
Defendant and Appellant.
___________________________________________/
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA FOR THE COUNTY OF BUTTE
HONORABLE WILLIAM R. PATRICK, JUDGE
APPELLANT’S REPLY BRIEF
CAROLYN J. FERSHTMAN
Attorney at Law
P.O. Box 146
Philo, CA 9S466
(707) 895-3736
State Bar No. 119729
Attorney for Appellant
Appointed on an Assisted Basis
THE EVIDENCE FAILS TO SUPPORT A FINDING THAT APPELLANT HAD “CARE
OR CUSTODY” OF THE CHILDREN AS REQUIRED BY STATUTE. THE LACK OF
EVIDENCE AND THE TRIAL COURT IS FAILURE TO DEFINE THESE TERMS TO
THE JURY REQUIRES REVERSAL OF APPELLANT’S CONVICTION FOR CHILD
ENDANGERMENT.
Appellant maintains that the evidence presented at trial was plainly insufficient to support a conviction for child endangerment because the evidence failed to show that appellant had “care or custody” of the children as required by Penal Code section 273a. [Footnote 3] Appellant was prosecuted for allegedly violating the part of the section that requires a showing that “[a] ny person who, . . . having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health may be endangered, is punishable by imprisonment . . . .” (§273a, subd. (1))
There was no evidence presented at trial which supported a finding that appellant was a person “having care or custody” of the children in question. The particular language contained in the statute requiring a finding that the accused by a person “having care or custody of any child” implies that such finding is supported through a showing that the accused had a de jure custody relationship or a de facto relationship shown through practice. There was no evidence in appellant’s case to support either theory. The evidence presented at trial appellant acquiesced in the presence of the children with their biological mother and caretaker on the property. Mere acquiescence in the presence of the children with their mother on his property is plainly insufficient to meet the burden imposed by section 273a, i.e., that appellant is a person “having care or custody of any child.” In order to find that an accused is a “person having care or custody” the statute and case law requires a minimum showing that there was a parent-child like relationship between appellant and the children, mutually recognized by appellant and his girlfriend, or some evidence that appellant exercised a parental authority over the children.
Appellant’s position is supported by the court’s reasoning in People v. Harris (1966) 239 Cal.App.2d 393, 398, and People v. Fuentes (1967) 253 Cal.App.2d 969, 971-972. Respondent’s attempt to bring the facts in appellant’s case within the purview of the courts, findings in these cases is unpersuasive. (Respondent’s Brief at pp. 5-8.) Appellant maintains that the court’s decisions in each of these cases was based on findings that the accused in each case was found to be a person “having care or custody” of a child by virtue of a de jure relationship in Harris, supra, (biological motherhood) or a de facto relationship in Fuentes, supra, (live-in boyfriend having exclusive control on a regular basis while the mother was not present).
No showing of any kind regarding appellant’s relationship with the children was presented in appellant’s case. Therefore, there was no support for the jury’s finding that appellant had care or custody of the children as required by statute.
Section 273a is drafted to impose a greater responsibility on those having care or custody of children. A person without care or custody may be charged under the statute if such person willfully inflicts pain or suffering on a child. A person having care or custody is held to a higher standard under the statute–that of not allowing such child to be placed in a perilous situation. Appellant here was prosecuted under the second theory–i.e., that the children were placed in a perilous situation because there was a loaded gun in the vicinity. Yet in order to be convicted under this theory, the prosecution was required to show that appellant was a person “having care or custody of the child.” This they failed to do.
The trial court’s failure to instruct the jury as to the technical meaning of “having care or custody” left the jury without the tools necessary to perform its factfinding function. Had they been properly instructed, they would not have convicted appellant of child endangerment, because the evidence f ailed to show that appellant in fact had care or custody of the children.
CONCLUSION
Appellant maintains that the lack of evidence and the trial court’s failure to instruct the jury as to the technical meaning of “having care or custody” as contained in section 273a requires reversal of his conviction for child endangerment.
Appellant maintains that the evidence was insufficient to support a finding that appellant was armed during the commission of the offense of manufacturing methamphetamine, and reversal of his conviction for section 12022, subdivision (c) is required.
DATED: 28 NOVEMBER 1994 Respectfully submitted,
Carolyn J Fershtman
Attorney for Appellant
FOOTNOTES:
Footnote 1: All statutory references are to the Penal Code unless otherwise indicated.
Footnote 2: Care and custody are terms with a specific and technical legal meaning. Therefore, the court was under a duty to instruct the jury as to their meaning. The failure to do so constituted reversible error. (See Argument II, infra.)
Footnote 3: All statutory references are to the Penal Code, unless otherwise indicated.
