(Super. Ct. No. 09F8453) APPEAL from a judgment of the Superior Court of Shasta County, Cara L. Beatty, Judge. Affirmed as modified.
The opinion of the court was delivered by: Murray , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury found defendant not guilty of assault with a deadly weapon of his wife (Pen. Code, § 245, subd. (a)(1))*fn2 and not guilty of assault by means of force likely to cause great bodily injury of his 14-year-old son (§ 245, subd. (a)(1)), but found him guilty of the lesser included misdemeanor offense of simple assault (§ 240) of both his wife and son. The jury also found defendant guilty of felony child abuse (§ 273a, subd. (a)) of his son. Defendant admitted serving a prior prison term. (§ 667.5, subd. (b).)
The trial court sentenced defendant to state prison for the felony child abuse and recidivist enhancement. It later imposed a concurrent term for the assault of his wife and a stayed concurrent term for the assault of his son. It also entered a no-visitation order with respect to defendant's son under the authority of section 1202.05.
On appeal, defendant asserts the following: (1) the evidence supporting his conviction for felony child abuse is insufficient to establish that the circumstances were likely to cause great bodily injury, or that defendant acted with criminal negligence; (2) the trial court erred by failing to instruct on unanimity in connection with the child abuse charge; (3) the trial court erred by failing to instruct on self-defense in connection with the child abuse charge and the lesser included offense of simple child abuse; (4) the trial court erred by failing to instruct on the right of reasonable parental discipline in connection with the felony assault charge and the lesser included offense of simple assault; and (5) the trial court did not have authority to impose the no-visitation order.
In the published portion of this opinion, we reject defendant's contentions concerning the sufficiency of the evidence of felony child abuse. We agree that the trial court erred by giving the jury instructions that allowed them to consider self-defense only in connection with the assault count and not in connection with the child abuse count. We also agree that the court erred in failing to instruct that the parental discipline defense applied to the assault count. However, these instructional errors were harmless.
In the unpublished portion of this opinion, we address and find harmless the court's failure to instruct that direct child abuse requires general criminal intent, and we reject defendant's contention concerning the need for a unanimity instruction on the child abuse count. We agree, and the People appropriately concede, that the court erred in issuing the no-visitation order. Finally, we correct a clerical error we found in the abstract of judgment.
As modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant had been separated from his wife for five years. He had custody of their 14-year-old son, with whom he had an up-and-down relationship. The wife had moved in with defendant a couple of weeks before the day of the incident out of which the charges arose. She wanted to help take care of the children because defendant had a hernia. There had been previous domestic violence between defendant and his wife, which resulted in defendant's 2004 felony conviction for spousal abuse. For "a few weeks" before the incident, defendant and his son were angry at each other, and had barely spoken.
On the morning of the incident, defendant's son and the wife were sitting on the sofa watching television when defendant entered the room and asked what had happened to his Honda 90 motorcycle and who had broken the mirror on his truck. Defendant's son denied knowing anything about the motorcycle or the truck. Defendant then pretended to throw a glass knickknack at his son and wife, boasted that he had made them flinch, and left the room.
Defendant returned shortly afterward and began questioning his wife in a raised voice. Defendant's son thought his mom was "a little freaked out" because of defendant's tone of voice. It seemed to the son that defendant was trying to start a fight with the wife; he said something about wanting to throw her out of the house. Defendant's eight-year-old daughter was running around the room playing at the time.
Defendant walked over to the bookshelves and picked up a river rock, which he began to toss up and down. He threatened to "hit somebody" with the rock when he did not get any answers to his questions about the motorcycle and truck.
Defendant walked close to the wife, at which point the son got up to intercede in case anything happened. Defendant got angrier and appeared to the son to be in a "pissed off" mood. He threw the rock at the son's cell phone, which was lying on the couch. Both defendant and the son went to grab the phone, wrestling each other on the couch for it. The two were "basically on top of each other." The son heard the phone cracking from defendant's grip.
At some point during the wrestling over the phone, the son was on top of defendant. Defendant told his son, "[l]et me stand up and I'll give you the cell phone back." The son agreed and got off defendant. The son demanded his cell phone back and admitted breaking the mirror on the truck. Defendant then pushed the son back onto the sofa and threw the phone to the ground, smashing it.
The wife, who was hustling their daughter out of the house to prevent her from witnessing the scuffle, had a cordless phone in hand and said she was going to call the police. Defendant chased after his wife. As he pursued, defendant swore at her, calling her a bitch and "a whole bunch of bad words." Defendant's wife called 911 as she fled.
The son ran outside after them. The son was angry about the cell phone, which cost $700, and he wanted to fight defendant. However, he was primarily concerned about preventing defendant from hurting his mother. He explained, "I really didn't care about the phone once he was chasing my mom." "He was going to go for my mom, and I was tired of seeing that happen."
The son caught defendant near the outside steps. He could not jump on defendant's back because defendant was "too tall." Instead, the son pushed and tried to hit defendant. Defendant slapped his son, pushed him away and continued to chase after his wife. The son caught up with defendant again. Defendant tripped his son, causing the son to fall on the ground onto his back.
After his son fell to the ground, defendant got on top of his son and slapped him on the sides of his head with open palms. As he struck his son, defendant said something like, "I don't want to do this." The son was unsure how many times defendant slapped him, but estimated it may have been more than five times. The son called the slaps "bitch slap[s]" and testified that the slaps did not hurt.
After slapping his son, defendant got up and resumed the pursuit of his wife, who was on the phone with 911. Defendant threw one or two pieces of asphalt at his wife during the chase. Defendant fell down and the wife made it to the neighbor's yard. Defendant then broke off his pursuit, went back inside the house to put on a shirt, and drove off. At some point before leaving, defendant told his wife, "You're going to regret that call, bitch."
The son had dried mud on the back of his shirt when later photographed. He sustained "cuts" and a "gash" on his mid and lower back. Photographic exhibits introduced into evidence depicted patches of discoloration that had the appearance of superficial abrasions in the area of these injuries.
The defense rested without calling any witnesses.
The trial court instructed the jury on the offense of simple assault as a lesser included offense to the felony assault counts on defendant's wife (assault with a deadly weapon) and son (assault with force likely to cause great bodily injury). Additionally, the court instructed the jury on the offense of simple child abuse on count 3, a lesser included offense of child abuse under circumstances and conditions likely to produce great bodily harm, a felony.
A. Sufficiency of the Evidence ...