Opinion Bank # O-192
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE THIRD APPELLATE DISTRICT
THE PEOPLE, C017810
Plaintiff and Respondent, (Super.Ct.No. CM001823)
CHARLES DANIEL SMART,
Defendant and Appellant.
Defendant was convicted by jury of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a); count 1) and two counts of child endangerment (formerly Pen. Code, § 273a, subd. (1) (Stats. 1984, ch. 1423, § 2, pp. 4994-4995, urgency, eff. Sept. 26, 1984]; see now Pen. Code, § 273a, subd. (a); counts 2 & 3). In connection with count 1, the jury found defendant was personally armed with a. firearm within the meaning of Penal Code section 12022, subdivision (c).
Sentenced to state prison for an aggregate term of eight years and four months, defendant appeals, contending (1) insufficient evidence supports his convictions for child endangerment in that there was no showing that he had the care and custody of the children, (2) the trial court prejudicially failed to instruct sua sponte on the definition of care and custody required for child endangerment, and (3) insufficient evidence supports the jury’s finding that he was armed within the meaning of Penal Code section 12022, subdivision (c), because he neither had possession of the gun nor was it available for immediate use. Only defendant’s first contention has merit; we will reverse his convictions for child endangerment based on insufficient evidence. Otherwise, we will affirm the judgment.
On September 15, 1992, Butte County Deputy Sheriffs Richard Graves, Mark Hidalgo, and Scott Parks went to 7489 Feather Falls Star Route to serve an arrest warrant on Coy Staton who was the owner of a car registered to the address. Upon their arrival, they noticed defendant standing in the doorway of a pole barn. They asked defendant if he knew the whereabouts of Coy or his son Bruce Staton. Defendant had not seen either of them for two weeks and claimed he was staying on the property with his girlfriend Connie and her children.
When asked if there were any guns on the property, defendant stated there was one on the front seat of his International Scout parked six to eight feet from the pole barn. Officer Hidalgo found a loaded pistol (a .357 Ruger) on the front seat. In the back of the truck, he found items related to the manufacture of methamphetamine including some plastic baggies, one of which contained red phosphorous, coffee filters, bottles and glassware. Tire tracks matching those of the Scout led to an area, camouflaged with tree limbs and brush, where officers found more bottles, glassware, filters, and some tubing.
Defendant was arrested and a search of his person revealed $630 and a filter used during the manufacturing process.
In a mobile home defendant said he moved to the property approximately a month earlier, officers found ephedrine in a kitchen cupboard; a rifle and a loaded shotgun were leaning against the living room wall; seven firearms were located in the middle bedroom closet and ten more throughout the mobile home. A small amount of methamphetamine and a scale were hidden between the mattress and box springs in the middle bedroom. A Pacific Bell calling card belonging to Connie Limbaugh was found in the living room near the television. In the middle bedroom, officers found some freshly laundered and dirty children’s clothing stacked in piles.
During the search of the property, Limbaugh arrived in a car with her two children, six-year-old Randy Nigrow and seven-year-old Thomas Macias. She had a bag of groceries, enough for one meal.
Butte Interagency Narcotics Task Force Detective Leslie Sturdy spoke to defendant who claimed he had been on the property “off and on” for a month but also lived with his mother in Palermo. Defendant stated he only stayed on the property occasionally and that Limbaugh stayed two days and her children stayed one day per week. Sturdy found boxes as if someone was packing. There was no electricity (there was a generator but it was not on), no refrigeration, no water service, no electrical heater, and no washer or dryer. Dirty dishes sat in the sink. Clothing, belonging to both children and adults, was found in boxes as well as hanging in a closet.
Neither defendant nor Limbaugh testified. Defense rested on the basis of the prosecution’s evidence.
“We think it sufficient to reaffirm the basic principles which govern judicial review of a criminal conviction challenged as lacking evidentiary support: the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Challenging his child endangerment convictions, defendant contends the evidence did not show he had the care or custody of Limbaugh’s two children. We agree.
Penal Code section 273a provides in relevant part as follows: “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 such child to be injured, or willfully causes or permits that child to be placed in such a situation that its person or health is endangered” shall be punished.
The jury was instructed on the elements of the offense [FOOTNOTE 1] and as follows: “[T]he evidence . . . available to you in deciding the child endangerment charges [i] Counts  and  . . . is limited to the alleged loaded shotgun in the mobile home, the children’s alleged status with regard to the mobile home, [defendant] and the shotgun.”
The district attorney argued defendant was living with the children’s mother so he had care or custody. Defense argued a loaded shotgun did not amount to endangerment in that there was no showing the safety was off. Defense further argued there was no proof the children were even in the mobile home or were in the home when the shotgun was where it was found or that defendant had control of the children.
In support of his claim of insufficient evidence, defendant relies on People v. Harris (1966) 239 Cal.App.2d 393, and People v. Fuentes (1967) 253 Cal.App.2d 969.
In Harris, an officer went to defendant Harris’s home to investigate a complaint. Defendant Harris and six children were in the home. Defendant Harris claimed three children, Andrea, Artie, and Crystal, as hers. The other three belonged to codefendant Blackston. The home was extremely filthy -cockroach infested, littered with dirt, debris, and dirty clothes. Old food was mashed on the floor. An overpowering outhouse stench emanated from the floors and bedding. One child had raw buttocks and thighs and what appeared to be dried excrement on his legs. According to a neighbor, defendant Harris and eight children had lived in the home for eight to ten months but codefendant Blackston had not been there until the day the officers investigated the complaint. (239 Cal.App.2d at pp. 394-395.) Defendant Harris and codefendant Blackston were charged with violating Penal Code section 273a in that they “‘did willfully, unlawfully and feloniously cause and permit Margarett R. Blackston. . . . Derral E. Blackston, . . . and Andria M. Hunter, . . . to be placed in such situation that their life and limb might be endangered and their health likely to be injured.'” (Id. at p. 399.) A court convicted defendant Harris but acquitted codefendant Blackston. (Id. at p. 394.) On appeal, defendant Harris challenged the sufficiency of the evidence based on the lack of expert testimony. The court disagreed with defendant Harris’s assertion that expert testimony was required. The court then discussed the evidence finding that it supported the conclusion that “at least some of the children found in defendant’s home . . . were in her custody” since she had been living there for eight to ten months and she claimed three children as her own including Andrea who was named in the information. The court found it reasonable to infer Andrea had been living in the home in her custody. (Id. at p. 398.) Defendant Harris also challenged the sufficiency of the information contending it failed to allege she had the care or custody of any children. (Ibid.) The appellate court concluded the charging language that “she did ‘feloniously cause and permit, the children to be placed in such situation’ carries the implication that defendant [Harris] had some control or responsibility for the children.” (Id. at p. 400.) Any alleged defect was waived, however, because she failed to raise the issue in the trial court. (Ibid.)
In Fuentes, Alice Cole and her four children lived with defendant. (253 Cal.App.2d at p. 971.) When Cole worked, defendant watched the children. One day when Cole left for work, three-year-old Lawrence was sick. When she returned, Lawrence was worse. Defendant admitted to Cole that he had spanked Lawrence with a belt. Cole took Lawrence to the hospital but he died before she could enter the hospital doors. The cause of death was an internal injury with massive hemorrhaging that could only have been caused by the use of a human fist. (Id. at pp. 972-973.) After a court trial, defendant was found guilty of killing Lawrence without malice and of inflicting unjustifiable physical pain and mental suffering (Pen. Code, § 273a). (Id. at p. 971.) On appeal, defendant challenged the sufficiency of the evidence. (Id. at p. 973.) In discussing the same, the Fuentes court stated in relevant part the following: “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.” (Id. at p. 974.) The discussion of custody and control in Fuentes related to the ultimate question of whether the evidence was sufficient to establish defendant as the person who hit Lawrence.
Here, defendant contends “the [Harris] 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.” Defendant argues “the evidence fails to meet the standard set forth in Harris which requires a sufficient showing that the accused actually exercised care or custody over the child named in the information.” Defendant contends, unlike Fuentes, there is no evidence that he exercised custody or control over the children.
Neither Harris nor Fuentes can be interpreted as setting forth the standard for determining whether a defendant has care or custody; neither case raised the issue of insufficient evidence of care or custody. In Harris, the defendant raised insufficient evidence based on the lack of expert testimony and claimed the information failed to allege she had care or custody of the children, a defective pleading issue. In Fuentes, the defendant challenged the sufficiency of the evidence but the discussion of care or custody related to whether or not the defendant was the one who had inflicted unjustifiable physical pain. Nevertheless, we agree with defendant that the evidence fails to show that he had care or custody of Limbaugh’s children.
The purpose of the child endangerment statute (Pen. Code, § 273a, subd. (1)) is to protect children from exposure to potential harm. (People v. Odom (1991) 226 Cal.App.3d 1028, 1033.) When “care” and “custody” are construed in their ordinary sense, the purpose of the statute is met by those persons with the responsibility for a child’s supervision and control.
Defendant told Officer Sturdy that Limbaugh brought her children to his mobile home once a week for a month, for a total of apparently four days. There was no evidence Limbaugh expected defendant to assume or that defendant assumed responsibility for the children while they were in his home. Limbaugh had the children with her when she drove up to the property on the date of the search which is evidence of her care or custody of the children. Insufficient evidence supports defendant’s convictions for child endangerment and the convictions must be reversed.
Defendant contends “care” and “custody” are technical terms which require the trial court to instruct sua sponte on the meaning of such terms. Because we have found insufficient evidence supports the child endangerment convictions, we need not reach defendant’s instructional challenge.
Defendant contends insufficient evidence supports the jury’s finding that he was armed with a firearm (Pen. Code, § 12022, subd. (c)) because he was not in possession of the gun and it was not available for his immediate use. He relies on People v. Balbuena (1992) 11 Cal.App.4th 1136. We recognize that numerous cases have been granted review by the Supreme Court on the issue of when a person is armed in connection with a possession of a controlled substance. (People v. Bland (1993) 29 Cal.App.4th 1031, review granted July 15, 1993 (S032900); and cases cited in People v. Orbe (1994) 29 Cal.App.4th 1532, 1542, fn. 7, review granted Feb. 16, 1995 (S043613).) Nonetheless, we decide the issue based on current case law.
Balbuena is distinguishable. when officers executed a search warrant, they entered and found defendant and his spouse lying on the floor. Ten to twelve feet away and separated by a sofa bed were three latched but unlocked suitcases with clothing, personal belongings, and an unloaded pistol. In one suitcase, narcotics were found. There was no evidence any ammunition was found. There were no closets in the house and the defendant testified they kept their belongings in suitcases and boxes. (11 Cal.App.4th at p. 1138.) The appellate court determined that insufficient evidence showed defendant was personally armed. (Id. at p. 1139.)
Here, defendant had been using his truck for the manufacturing process. Numerous items related to manufacturing were found in the back of his truck and tire tracks led to a brush area which hid additional manufacturing items. A filter used in the manufacturing process was found in defendant’s pocket. The loaded pistol was found on the front seat of the truck. [FOOTNOTE 2] The pistol was in a position of ready access and was ready to use in the offense of manufacturing. Sufficient evidence supports the jury’s finding that defendant had the weapon available for offensive or defensive use. (People v. Mendival (1992) 2 Cal.App.4th 562, 573-574; People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1467, 1471-1472;
The jury was instructed as follows: “The Defendant is accused in Count  of the information of having violated §273-A subdivision 1 of the Penal Code, a crime.
“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 a violation of §273 subdivision [sic] A subdivision 1 of the Penal Code, a crime.
“The word willfully as used in this instruction means with knowledge of the consequences or purpose fully.
“In the crime charged in the information, there must exist a union or joint operation of act or conduct, either general criminal intent or general criminal negligence.
“To establish general criminal intent, it is not necessary there should exist an intent to violate the law. The person who intentionally does that which the law declares to be a crime is acting with general criminal intent, even though he may not know that such act or conduct is unlawful.
“‘Unjustifiable physical pain or mental suffering is the infliction of pain or suffering which cannot be defended or excused under the circumstances as reasonable both as to necessity and degree.
“Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury.
“If a child is placed in a situation likely to produce great bodily harm or death, it is not necessary that actual bodily injury occur in order to constitute the offense. However if such bodily injury does occur, its nature and extent are to be considered in connection with all the evidence in determining whether the circumstances were such as were likely to produce great bodily harm or death.
“In order to prove such crime, each of the following elements must: be [proved]: one, 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 two, such conduct occurred under circumstances likely to produce great bodily harm or death.”
The district attorney only referred to the .357 Ruger found in the Scout.