APPEAL from a judgment of the Superior Court of Kern County. Jon Edward Stuebbe, Judge. (Super. Ct. No. JW123927-00)
The opinion of the court was delivered by: Franson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant L.K., 15 years old at the time of the offenses, appeals from
the juvenile court's true finding that she committed a violation of
Penal Code*fn2 section 273a, subdivision (a)
(hereafter § 273a, subd. (a)), as alleged in count 1 (child abuse
likely to produce great bodily harm), when she drove her mother's
truck over 17-month-old M.S., severely injuring him.*fn3
She also raises two procedural issues with the juvenile
court's disposition imposing a maximum term of confinement of
consecutive six- and one-year terms for the two counts the juvenile
court found true.
FACTUAL AND PROCEDURAL BACKGROUND*fn4
1. Jurisdictional Hearing
Appellant and her mother, Latasha,*fn5 among others, went to the S. residence the day after Easter. At some point, appellant was outside with three other children, including M.S. Other family members and acquaintances were inside the house.
Ten-year-old Robert L. testified he was walking to his home that day. He resided on the same block as the S. residence, and had a direct, unobstructed view of the S. residence. He had known appellant for approximately two weeks, having seen her several times over that period. He also was familiar with Latasha's white Chevy truck. He testified he saw appellant in the white truck, alone in the driver's seat. He saw M.S. in front of the truck. He then saw the truck back up, then move forward and the driver's side wheel hit M.S. He testified, "[t]he baby went in the wheel and went around it." Scared at what he had just witnessed, he ran home. Two days later, he talked to a police officer and provided the same description of events. Several days later, he spoke with a social worker and, although nervous, provided the same essential facts.
No one else witnessed M.S. being actually injured. Defense witnesses suggested M.S.'s mother, Ebony, was the one who had hit M.S., not appellant.
Family members in the house were alerted that M.S. was hurt at approximately 10:00 a.m. When he was brought into the house crying, by his 9-year old aunt Gracey, he appeared to have a burn mark on his arm. Latasha testified she saw no other injuries and treated M.S. for the burn, but that "[n]o one called the paramedics or anything, because nobody thought it was serious." Latasha also testified that she was told by Gracey and 8-year old Jonathan that "[they] heard a monster noise and then when [they] turned around, the baby was at the edge of the driveway." Appellant was present in the house, yet remained silent as family members treated M.S.
Ebony returned from running an errand and was alerted that M.S. was hurt, but did not know the extent of his injuries. M.S.'s grandmother, Diana, suggested they take M.S. to the hospital, but Ebony hesitated due to a pending Child Protective Services action involving her. At about 12 noon, approximately two hours after M.S. was injured, appellant and Latasha left the S. residence. M.S. had yet to receive medical attention at that time.
Eventually, M.S. was taken to a medical clinic. At approximately 4:00 p.m. a police officer, who was also an experienced paramedic, observed at the clinic that M.S. showed signs of shock and his condition was consistent with being run over by a vehicle. M.S. was then transferred to a hospital. The parties stipulated that M.S. suffered great bodily harm, including "a broken rib, abrasions, lacerations to his arm, injuries to his liver and kidneys which subsequently required the removal of one of his kidneys surgically."
After the People had presented their case, appellant's counsel essentially made a motion to dismiss the allegations based on insufficient evidence. As to the section 273a, subdivision (a) allegation (count 1), counsel argued no evidence indicated appellant willingly ran over the baby. The court denied the motion and specifically stated it understood the motions with regard to count 1, and commented it had spent some time looking at the jury instructions for the offense. The court noted the willfulness requirement, and further noted that "the act in question can qualify based on the criminal negligence conduct which is criminally negligent and a violation of a code driving a vehicle without a license, and then causing injury would be criminal negligence." While clarifying that the court was not deciding whether or not there was criminal negligence along those lines, the court did explain it would be a basis for denying the motion.
After the defense presented their case, defense counsel argued in closing that there was insufficient evidence to find that appellant was driving the truck. The juvenile court then found count 1 and count 2 (Veh. Code, § 20001 [leaving the scene of an accident and failure to render assistance to an injured person]) to be true. The court focused on two main evidentiary points: 1) testimony and photographs indicating where M.S. was found after he was injured, and where vehicles were parked on or near the driveway, was consistent only with the version of events, related by Robert L., where Latasha's truck hit M.S.; and 2) Robert L.'s testimony, as the only eyewitness, was credible and consistent. From those evidentiary conclusions, the juvenile court found that "this minor was driving the vehicle," and "absolutely - accidentally, I think she ran over this little boy [while] concentrating on other things. It's not an intentional act, but it certainly is a criminally negligent act that she was operating a motor vehicle without a license in a way that is criminally negligent."
The juvenile court continued, "[a]nd once the incident occurred and she realized what she had done, she did not take appropriate steps to try to help that little boy. And that's Count II ...she didn't tell anybody, she didn't get him medical care. She ...