Opinion
A jury found appellant guilty of two counts of child
endangerment (Pen. Code, § 273a, former subd. 1) and one count of second degree burglary (Pen. Code, §§ 459-460). The jury found appellant not guilty of murder and a mistrial was declared as to a charge of involuntary manslaughter on which the jury was deadlocked. Appellant was sentenced to state prison for eight years. On appeal, she contends that her burglary conviction must be reversed because of instructional error, legal impossibility and that the statute prohibiting the fraudulent use of a credit card supersedes the general burglary statute. She further contends that the trial court erred by failing to stay punishment for one count of child endangerment because there was no substantial evidence supporting the finding that there were two distinct acts of child endangerment. We affirm.
On January 18, 1993, at 12:20 a.m., police, paramedics and firefighters went to the Oasis Motel in response to appellant’s 911 call. Appellant’s
Appellant had been living with Anthony and her boyfriend, William Harrell, at the Oasis Motel since January 1,1993. In their room, police found several automated teller machine (ATM) printouts and a wallet belonging to Michael Dodge. Under questioning, appellant admitted trying to use the ATM card in the bank machine.
Appellant contends that her burglary conviction must be reversed because of instructional error. On November 8, 1995, the trial court instructed the jury regarding burglary and two lesser offenses, violations of Penal Code sections 484e (theft of ATM card) and 484g (unlawful use of ATM card). As to burglary, the trial court instructed the jury that “Every person who enters any building or ATM machine with the specific intent to steal, take and carry away the personal property of another of any value and with the further specific intent to deprive the owner permanently of such property, is guilty of the crime of burglary in violation of Penal Code section 459.”
The court further instructed the jury on the two crimes of unlawful use of an ATM card and theft of an ATM card as follows: “As to the lesser crime of unlawful use of an automatic teller machine card, I instruct you as follows: [<JD Every person who, with intent to defraud, uses an automatic teller machine card for the purpose of obtaining money, goods, services, or anything else of value, knowing that the card was lost or mislaid, is guilty of theft. Where nothing of value is obtained, the crime is petty theft. . . . [<fl] As to the lesser crime of theft of an automatic teller machine card, I instruct you as follows: [U Every person who acquires an automatic teller machine card that he or she knows to have been lost or mislaid, and retains possession with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder is guilty of petty theft.”
During the course of their deliberations this jury sent several notes to the court concerning the elements of other counts, the readback of testimony and
In response to this note, the court commented that it believed (mistakenly) that it hadn’t read the lesser charges to the jury. It then informed the jury that “there are two lesser offenses as to count four [the burglary].” The court then read the same instructions quoted above; however, the court substituted the Penal Code section numbers 484e and 484g in place of the words “petty theft” in the concluding phrase of each definition. 1 The court then told the jury “you don’t get to the lessers unless you find as to the underlying offense.” The court read the definition and elements of burglary and commented “[t]here is no element requiring the taking of money as long as the specific intent is present at the time . . . . It is immaterial whether the intent with which the entry was made was thereafter carried out. . . .”
Appellant contends that the court’s reading of this abridged version of the instructions on the lesser offenses, leaving out the reference to “the crime of petty theft,” was error. Appellant argues that the reference to petty theft was obviously what the jury had in mind in its note, and that the court’s response, omitting petty theft and rereading the burglary instruction with special emphasis on taking of money and intent, directed the jury to convict appellant of burglary.
We are not persuaded that the court’s response to the jury’s note presented the jury with “a set of legally insufficient instructions which virtually directed them to find the defendant guilty of burglary.” The note concerned the elements of burglary, in particular, whether an actual taking must occur for burglary to be completed. This is precisely the point the court addressed. The court’s instructions were potentially better for appellant, in that the court used the Penal Code section numbers in describing the lesser offenses, in conformity with their wording on the verdict forms. This was actually clearer than repeating the reference to petty theft, when those words were not on the verdict form. There was no error in the manner in which the court responded to the jury note.
Appellant contends it is legally impossible to commit a burglary by inserting an ATM card into a bank machine without knowledge of the
In support of her argument that it was legally impossible to commit burglary in this way, appellant cites
People
v.
Meyer
(1985)
The issue of legal impossibility invites discussions of factual impossibility and the sufficiency of the evidence to prove specific intent.
Meyer
focuses our attention on whether the results intended by appellant, if they happened as she envisioned them, would be a crime. Appellant testified she was just trying to show Harrell that she wouldn’t be able to obtain money from the account without the PIN. The jury was free to determine that, despite her testimony, she shared Harrell’s intent to obtain money, but just not his
Appellant contends that Penal Code section 484g is a special statute precluding the application of the burglary statute. Appellant states that her actions necessarily constituted a violation of section 484g. At the time of appellant’s offense, that section provided: “Every person, who with intent to defraud, (a) uses for the purpose of obtaining money, goods, services or anything else of value an access card obtained or retained in violation of Section 484e or an access card which he or she knows is forged, expired, or revoked, or (b) obtains money, goods, services or anything else of value by representing without the consent of the cardholder that he or she is the holder of an access card or by representing that he or she is the holder of an access card and the card has not in fact been issued, is guilty of theft. If the value of all money, goods, services and other things of value obtained in violation of this section exceeds four hundred dollars ($400) in any consecutive six-month period, then the same shall constitute grand theft.”
The distinction between general and special statutes is, rather than a rule of substantive law, a tool to effect legislative intent. When a particular statute covers much the same topic as a general law, it is an indication that the Legislature intended the more specific provision to apply. However, the legislative history of this section indicates the Legislature, in enacting this section and related sections (Pen. Code, § 484d et seq.), did not intend to preclude application of the burglary statute or any other statute. This history is summarized in
People
v.
Butler
(1996)
Although the passage of this statute may have had more immediate effect on prosecutions for theft or forgery, nothing in its language limits its application to the prosecution of other violations of the Penal Code. We conclude that Penal Code section 484g does not preempt application of Penal Code section 459 to the larcenous use of a bank’s automated teller machine.
Appellant contends there was no substantial evidence supporting a finding that the two distinct acts of child endangerment charged in counts 2 and 3 were attributable to two different courses of conduct and thus, the trial court erred by failing to stay punishment for count 3 pursuant to Penal Code section 654. 3 Count 3 alleged that appellant “while having the care and custody of [Anthony], did willfully cause and permit the person and health of said child to be injured, and did willfully cause and permit said child to be placed in such situation that its person and health were endangered.” Count 2 alleged the same conduct with the addition of an allegation that appellant did “inflict on [Anthony] unjustifiable physical pain and mental suffering.”
The prosecutor explained the theories behind the two counts as follows: “Now, with regard to count two, that’s the beating. ...[<]□ Now, count three deals with failing to render medical aid to Anthony. And we learned from the medical testimony that it was possible that Anthony could have been saved had proper steps been taken.” In a note, the jury said, “It appears that the difference between count two and count three is the use of the word ‘inflict’ in count two and ‘permits’ in count three. [*][] We would appreciate
Appellant argues that there was no substantial evidence that appellant’s failure to summon medical help for Anthony, represented by count 3, was a legally distinct course of conduct which can be separated from infliction of injury, count 2. Multiple punishment is permissible if appellant entertained multiple criminal objectives which were independent of and not merely incidental to each other.
(People
v.
Beamon
(1973)
At the time of sentencing, appellant’s trial attorney said, “I do think that 654 is an issue in this case with respect to count two and three. They are the same charge, . . . there is no way to deliberate between count two and three, there is no—it is not clear that she in fact inflicted the injuries and then failed to provide medical attention. In fact this is one offense, it all happened in one evening. It was not a long period of time from the time of the injuries were inflicted to the time that the paramedics were called. . . . This is a theory of the prosecution’s that she can separate these things out, one is conduct and one is failure to provide medical attention, that is simply the district attorney’s theory. The fact of the matter is all of this is one incident and I think those two things are 654.”
The prosecutor responded, “if the court looks at the information, between count two and three the language is different. The defense has known all along that count two is the actual abuse, and count three was the failure to obtain medical aid. The court denied their 995 motion prior to trial on that issue.”
Following the comments of counsel, the trial court sentenced appellant consecutively for count 3 and count 4 (the burglary) as well.
4
Appellant contends that these consecutive prison terms violated the prohibition of
Our Supreme Court has rejected the single intent and objective analysis in the context of sex offenses committed in rapid succession.
(People
v.
Harrison
(1989)
The evidence supports the prosecution’s two separate theories of liability for appellant’s two convictions for child endangerment. The trial court considered appellant an active participant in the physical abuse of Anthony. Several witnesses testified they had seen appellant strike Anthony in the past. Although she was Anthony’s primary caretaker, she indicated to the police she was unaware of the extensive bruising on Anthony’s body. Alone in the interrogation room with her codefendant, she said, “Because, you know why, I did it, but I guess I’m just not supposed to have him either.” 5
A separate and distinct harm to Anthony occurred when, after his injury, he was left to suffer until he lost consciousness. Expert witnesses testified that despite Anthony’s serious injury, he could have been saved with prompt medical attention. Their estimates varied as to how long it would have taken Anthony to die from his internal injuries, and the court was free to accept the high end of these estimates and conclude that appellant delayed seeking help for Anthony for hours. This evidence supports the trial court’s finding appellant subjected Anthony to a separate and distinct risk, perhaps to avoid detection of the earlier assault, by not obtaining medical help for his serious injuries. As appellant argues, there must be some separation between the
The judgment is affirmed.
Wunderlich, J., and Mihara, J., concurred.
Appellant’s petition for review by the Supreme Court was denied December 10, 1997. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
Notes
The court switched Penal Code section 484g and section 484e, subdivision (e), when it reread these instructions, but appellant concedes this is harmless.
Although not addressing the preemption issue raised here,
People
v.
Ravenscroft
(1988)
Penal Code section 654 reads in pertinent part: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .”
Appellant suggests that the trial court may have used appellant’s overall conduct, an improper basis for imposing consecutive sentences, rather than determining whether appellant held multiple criminal objectives. The court did describe the position of trust between a mother and child and stated that that trust had been violated “in the most egregious way . . . .” In sentencing appellant for count four, however, the court makes a comment that
The “either” may be a reference to appellant’s other son, also named Anthony, who, long before the second Anthony was bom, was adopted by foster parents when appellant’s parental rights were terminated.