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The People v. Jesse Leonardo Garcia

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


January 27, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JESSE LEONARDO GARCIA, JR., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. CRF09-3596, CRF05-7299)

The opinion of the court was delivered by: Butz , J.

P. v. Garcia

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a jury trial, defendant Jesse Leonardo Garcia, Jr., was convicted in case No. CRF09-3596 of criminal threats (Pen. Code, § 422--count 1),*fn1 two counts of dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)--counts 2 and 3), misdemeanor domestic battery (§ 243, subd. (e)(1)--count 4), and misdemeanor child endangerment (§ 273a, subd. (b)--count 6). The trial court found defendant violated his probation in case No. CRF05-7299. Sentencing defendant in both cases, the trial court imposed a seven year eight month state prison term.

On appeal, defendant contends: (1) there is insufficient evidence to sustain the dissuading conviction in count 3; (2) prosecution for count 3 was precluded by a more specific penal statute; (3) punishing dissuading a witness more severely than violations of section 137, subdivision (c) violated his rights to due process and equal protection of the law; (4) ineffective assistance of counsel; and (5) there is insufficient evidence to support the child endangerment conviction.

FACTUAL AND PROCEDURAL BACKGROUND

The People's Case

In July 2009, Raquel I. was defendant's girlfriend. They lived together with her four-and-one-half-year-old son in defendant's mother's West Sacramento home. On July 30, at approximately 11:20 p.m., Raquel I. went to the local fire station to report that her boyfriend assaulted her. Fire personnel called the West Sacramento Police Department, which sent officers to interview Raquel I.

The Incident

According to one of the interviewing officers, Raquel I. was barefoot, crying and trembling when she met them. She was very upset and kept looking around. Raquel I. said her boyfriend, defendant, struck her twice in the face during an argument.

Raquel I. told the officer defendant had agreed to drive her and their son to her mother's house in Elk Grove that day. While they were on the freeway, defendant told Raquel I. he would kill her if she ever lied to him again. Defendant then ordered Raquel I. to get out of the car while they were still on the freeway. Raquel I. got out of the car, and defendant drove off with their son. He then pulled over and let Raquel I. enter the car.

As defendant drove back to his mother's home, he continued arguing with Raquel I., striking her two times on the left side of her face. When they got home, Raquel I. asked defendant's brother to drive her to Elk Grove, but defendant told him not to take her anywhere. Defendant took Raquel I.'s cell phone and threatened to beat her if she called the police. He told Raquel I. that he was going to take the rims and stereo from her car, and she would report it to the police as stolen after he dumped it. Afraid for her life, Raquel I. grabbed a knife from the kitchen and hid it in her purse before taking her son and leaving the home.

Raquel I. stopped crying by the end of the conversation at the fire station, but was still trembling and scared. She told the officers this was not the first time defendant assaulted her. She agreed to have an emergency protective order, and asked to include her son and mother in the order.

Raquel I.'s car was found close to the home; all but one lug nut was removed from each wheel, and the stereo and amplifiers had been removed. Defendant was there, and Raquel I. identified him at a showup.

At trial, Raquel I. testified that she and defendant were at his mother's home on July 30, 2009, when he learned Raquel I. had loaned money to one of her friends without telling him. The ensuing argument moved to other matters, and Raquel I. told defendant she would be staying at her mother's house that night.

Defendant agreed, and they got in the car. Defendant was the driver, Raquel I. sat in the front passenger seat, and their son rode in the back seat. According to Raquel I., they continued to argue and she hit defendant in the face two or three times. Defendant then tried to swat her with an open hand, accidentally hitting her in the face. Defendant, upset that she hit him, yelled at Raquel I. to stop. She hit defendant two more times, and he turned the car around and went back to his mother's house.

When they returned home, defendant told Raquel I. they were done and he was going to take back the stereo and rims he had added to her car. As defendant reiterated he was done and started removing the radio, Raquel I. tried to convince him not to break up with her. Raquel I. then decided she was going to walk out with her son, so she took a kitchen knife for protection. She eventually walked to the fire station, where she made up a story about defendant assaulting her.

Raquel I. testified that she lied to the officers about defendant hitting her. She also lied about him telling her not to call the police and threatening to pull over on the freeway and beat her. Raquel I. testified she never got out of the car on the freeway and she lied about defendant threatening to beat her if she talked to the police.

Raquel I. said she made up the story about defendant because she was mad at him and wanted to get her car back. She denied telling the officers that defendant started to drive away from her on the freeway, that defendant threatened to strip her car if she left, or that she was afraid of defendant and afraid for her life. She also denied telling the officers this was not the first time defendant assaulted her.

Raquel I. admitted writing a letter to the district attorney after defendant's arrest. The notarized letter stated she lied about the assault, and defendant was just taking his belongings out of her car. Defendant asked her to write the letter and get it notarized, but Raquel I. asserted it was her idea to actually write it.

The Phone Calls

Defendant made numerous telephone calls to Raquel I. from jail, which were recorded by the jail authorities. The recordings were played at trial and the jury received transcripts.

During a call on August 2, 2009, defendant asked Raquel I. to write a notarized letter stating he did not steal her car, and she lied because she was mad at defendant and wanted him to go to jail. On August 3, defendant told Raquel I. to make sure her letter said that she told the police not to press charges against him, but the police told her they were going to nail him. He instructed Raquel I. to write a letter saying she lied and did not want this to happen, and that she inflicted the injury to her lip.

In an August 5 call, Raquel I. told defendant she told the authorities she did not want to press charges against him. Defendant then told her not to talk to the district attorney. He also instructed her that after police testified at the preliminary hearing regarding what she told them, Raquel I. would have to testify that the police either lied or misunderstood her.

In an August 6 call, defendant told Raquel I. not to trust her victim advocate. If the advocate asked her to talk to the police, defendant told Raquel I. to say she would not talk to the police anymore because they had already lied. Defendant wanted to know what Raquel I. told the officers. She did not want to tell him, but admitted telling "everything that happened."

Other Crimes Evidence

Defendant is the father of Tonie Adams's three-year-old child. Adams testified that on July 11, 2007, she went to the West Sacramento Police Department and falsely accused defendant of hitting her because she was mad at him for cheating on her. Defendant was prosecuted, and Adams wrote a notarized letter to the court stating she lied about his attack.

A West Sacramento police officer took Adams's statement at 3:00 a.m. on July 11, 2007. A visibly upset and crying Adams said defendant, her boyfriend of two years, beat her up and threatened to kill her. Adams was at her mother's house when defendant called to say he was coming over and taking their eight-month-old child. Adams told defendant she did not want him to come over because he was drinking. Defendant replied he was coming over anyway, and threatened to kick in the door and hurt everyone inside.

Defendant showed up at the home and argued with Adams in the driveway. Defendant eventually convinced Adams to accompany him and their baby to his mother's house. When they got to his mother's house, defendant alleged Adams had an affair. Defendant stopped arguing when some of his friends came by and defendant left Adams to be with them.

Adams decided to take a shower, which was interrupted when defendant entered the bathroom and yanked her by the hair and started hitting her in the face with his closed fist. Adams fell, and defendant kicked her in the head and smashed her finger while she was on the ground in a defensive posture. Defendant also kicked her in the back and whipped her with his belt.

The attack ended when defendant's mother and brother intervened. Defendant then got a gun from another room and told Adams he would kill her if she told the police. The officer who took Adams's statement observed injuries to her face, neck, back, and finger.

Adams was interviewed by another officer several hours later. Adams related this was not the first time defendant attacked her, but she did not report prior incidents because she was afraid of retaliation. She also reiterated details of the assault.

Joseph Topete was the boyfriend of defendant's sister, Selina Garcia, and has a child with her. Topete and Garcia were staying at her cousin's home on October 30, 2005. According to Topete's testimony, he fell asleep there and later woke up in the hospital to find he had been brutally beaten. He remembered trying to fight off multiple assailants and Garcia trying to get them to stop. Defendant eventually admitted being one of the assailants; he and others attacked Topete because they mistakenly thought he was an ex-boyfriend of Garcia who had assaulted her. Garcia later asked Topete to write a letter exonerating defendant.

Garcia testified that five to six people, including defendant and her cousin, attacked Topete as he slept because they thought he had assaulted her. She later wrote a letter exonerating defendant from the incident in order to protect him. Garcia maintained no one asked her to write the letter.

The Defense

On July 30, 2009, at approximately 11:15 p.m., Raquel I. asked defendant's brother, Michael McCullough, for a ride to Elk Grove. According to McCullough, her demeanor was fine and she was not crying.

DISCUSSION

I. Substantial Evidence in Count 3

Defendant contends there is insufficient evidence to sustain his conviction in count 3 for dissuading Raquel I. We disagree.

In addressing whether there is sufficient evidence to support defendant's conviction in count 3, we view the entire record in the light most favorable to the judgments and presume in support of the judgments the existence of every fact that the jury reasonably could deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

Section 136.1, subdivision (b) defines the crime of dissuading a witness, in pertinent part, as follows:

"Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:

"(1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.

"(2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof."

Defendant was charged in count 3 with violating section 136.1, subdivision (b)(1) on or about August 2, 2009, referring to his phone conversation with Raquel I. on that day.*fn2 Relying on People v. Fernandez (2003) 106 Cal.App.4th 943 (Fernandez) and People v. Womack (1995) 40 Cal.App.4th 926 (Womack), defendant asserts section 136.1, subdivision (b) does not encompass the acts alleged in count 3.

In Fernandez, the defendant was convicted under section 136.1, subdivision (b)(1). (Fernandez, supra, 106 Cal.App.4th at p. 946.) The only issue was whether making a "'report . . . to any judge'" includes an attempt to influence a victim's testimony at a preliminary hearing. (Id. at p. 945.) The court held it does not. (Ibid.)

Relying on Womack, supra, 40 Cal.App.4th 926, the court in Fernandez rejected any attempt to blur the distinctions among the statutes comprising part I, title 7, chapter 6 of 47 West's Annotated Penal Code (§§ 132-140), "which establishes a detailed and comprehensive statutory scheme for penalizing the falsification of evidence and efforts to bribe, influence, intimidate or threaten witnesses." (Fernandez, supra, 106 Cal.App.4th at p. 948.) The court pointed out: "[W]hen the Legislature intends to penalize an effort to influence or prevent testimony, or an effort to prevent the defendant from appearing in court, it does so explicitly." (Id. at p. 949.) The court noted that the Legislature did so in section 136.1, subdivision (a), among other provisions, while subdivision (b) does not mention courts or testimony. (Fernandez, supra, 106 Cal.App.4th at p. 949.)

In Womack, the defendant was convicted of attempted murder and of attempting to induce the would-be murder victim to give false or to withhold true testimony (§ 137, subd. (b)); he was not charged under section 136.1. (Womack, supra, 40 Cal.App.4th at pp. 928-929.) The victim, a prospective witness against a person the defendant knew, was ambushed, strangled, and stabbed by the defendant and another person, who told him he "should have kept his mouth shut" and "'should have left it alone.'" (Id. at p. 929.)

The appellate court found the evidence did not support the defendant's conviction under section 137. (Womack, supra, 40 Cal.App.4th at p. 933.) The court noted that generally, "[t]he intent to influence testimony is incompatible with the intent to kill," and the defendant did not tell the victim what he should or should not say, but only that he had already made a fatal mistake. (Id. at pp. 933-934.) The Court of Appeal rejected the People's argument that the defendant had the required intent under section 137 because he meant to "influence" the witness's testimony by preventing it from happening (cf. § 136.1): "[Section 136.1] clearly contemplate[s] that the perpetrator will prevent or dissuade a prospective witness from giving testimony, or will attempt to do so. Preventing or dissuading a witness from testifying altogether is incompatible with influencing or shaping the testimony the witness gives." (Womack, supra, 40 Cal.App.4th at p. 931.)

Defendant admits neither case is on point. Womack did not involve a prosecution under section 136.1, and, unlike the defendant in Fernandez, defendant here did not attempt to prevent Raquel I. from testifying at a preliminary hearing. Defendant argues that Fernandez and Womack counsel against a broad reading of section 136.1. Asserting his conduct in count 3 is addressed by section 137, subdivision (c),*fn3 defendant concludes section 136.1, subdivision (b) is inapplicable to that count.

The Attorney General replies that defendant was in fact convicted of violating subdivision (b)(2) of section 136.1. Admitting defendant was charged in count 3 with violating section 136.1, subdivision (b)(1), the Attorney General points out that the jury was instructed in count 3 with the language of subdivision (b)(2) of section 136.1,*fn4 and the prosecutor's theory was that defendant was guilty under this provision in count 3. The Attorney General argues section 136.1, subdivision (b)(2) is intended to cover attempts to prevent or dissuade someone from assisting in the prosecution of a person already arrested, and that substantial evidence supports defendant's conviction for this offense.

We agree with the Attorney General. Although defendant was charged in count 3 with violating section 136.1, subdivision (b)(1), the variance between the offense charged and the offense of which defendant was convicted is immaterial. Charging the defendant under the wrong statute is "'of no consequence'" when the defendant has not been prejudiced by the error. (People v. Thomas (1987) 43 Cal.3d 818, 826-827.) "No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits." (§ 960.) Prejudice in these circumstances implicates defendant's due process rights to right to notice of the charges, and the right to present a defense to those charges. (People v. Jones (1990) 51 Cal.3d 294, 317.) "'Notice of the particular circumstances of the offense is given not by detailed pleading but by the transcript of the evidence before the committing magistrate . . . .'" (Thomas, supra, 43 Cal.3d at p. 829.)

Defendant does not and cannot maintain that he was prejudiced by being charged under the wrong part of section 136.1, subdivision (b). The People presented evidence at the preliminary hearing that Raquel I. wrote a letter exculpating defendant after his arrest, and that in phone conversations after his arrest, defendant asked Raquel I. to write such a letter. The evidence presented at trial conformed to prosecution under section 136.1, subdivision (b)(2), and defendant did not object to instructing the jury in the language of subdivision (b)(2) or the prosecutor's closing argument relying on that instruction. Defendant "was plainly informed of the nature of his offense, and the designation of the wrong code section is immaterial. [Citations.] The defect was merely one of artificiality rather than substance." (People v. Rivers (1961) 188 Cal.App.2d 189, 195.)*fn5

Substantial evidence supports defendant's conviction under section 136.1, subdivision (b)(2). The August 2, 2009 tape shows defendant asked Raquel I. to write a letter asserting he did not steal her car and that she lied because she was mad at him. Defendant had been arrested based on Raquel I.'s initial statement to the police, but he was not charged until August 4. The jury could reasonably conclude that defendant's request was an attempt to keep Raquel I. from cooperating with the investigation and, by withdrawing her initial complaint, prevent a complaint, indictment, or information against him from being prosecuted.

Fernandez and Womack do not imply that defendant should have been prosecuted under section 137, subdivision (c) rather than section 136.1. Section 137, subdivision (c) primarily addresses efforts to "influence or prevent testimony, or an effort to prevent the defendant from appearing in court." (Fernandez, supra, 106 Cal.App.4th at p. 949; Womack, supra, 40 Cal.App.4th at pp. 930-931.) Defendant was not trying to influence Raquel I.'s testimony at some future hearing, but to get her help in derailing the prosecution. Any doubt regarding defendant's intent is dispelled by the August 5 call where defendant told Raquel I. to not talk to the District Attorney.*fn6 Also, the uncharged misconduct evidence showing defendant's pattern of getting his victims to write notarized letters exonerating him is further evidence of his intent to get Raquel I. to stop the prosecution of his case.

While Section 137, subdivision (c) also prohibits efforts to give false information or withhold material information from a law enforcement official, this provision does not justify a different result. Defendant asked Raquel I. to derail the prosecution by withdrawing her initial complaint. That is an effort to prevent his case from being prosecuted by influencing the victim, which is prohibited by section 136.1, subdivision (b)(2). Substantial evidence supports defendant's conviction for that crime.

II. The Preclusion Doctrine

Defendant asserts his conviction for violating section 136.1, subdivision (b)(2) in count 3 is precluded by the more specific section 137, subdivision (c). He is mistaken.

Defendant's argument is premised on the doctrine known as the Williamson rule, named after In re Williamson (1954) 43 Cal.2d 651, 654. (People v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy).) "Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. [Citation.] 'The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.' [Citation.] 'The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and "requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision . . . ."'" (Murphy, at p. 86.)

"[T]he Williamson preemption rule is applicable (1) when each element of the general statute corresponds to an element on the face of the special statute, or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute." (People v. Watson (1981) 30 Cal.3d 290, 295-296.) If the "more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general statute contemplates more culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct more severely." (Murphy, supra, 52 Cal.4th at p. 87.) However, the presence of different elements will not prevent preclusion when "it appears from the entire context that a violation of the 'special' statute will necessarily or commonly result in a violation of the 'general' statute[.]" (People v. Jenkins (1980) 28 Cal.3d 494, 502.)

Section 136.1, subdivision (b)(1) "is not a catchall provision designed to punish efforts to improperly influence a witness. Rather, it is one of several contained within part I, title 7, chapter 6 of [47 West's Annotated] Penal Code (§§ 132-140), which establishes a detailed and comprehensive statutory scheme for penalizing the falsification of evidence and efforts to bribe, influence, intimidate or threaten witnesses." (Fernandez, supra, 106 Cal.App.4th at p. 948.) Sections 136.1, subdivision (b) and 137 proscribe distinct conduct. Section 136.1, subdivision (b)(2) prohibits efforts to hinder the prosecution of a case, while section 137, subdivision (c) addresses attempts to influence the testimony of a witness at a hearing or to a law enforcement officer. In essence, section 136.1, subdivision (b) regulates efforts to keep a crime from being reported or prosecuted, while section 137 regulates attempts to influence the content of a witness's testimony. (Fernandez, supra, 106 Cal.App.4th at pp. 949-950.)

Fernandez demonstrates that conduct violating section 137 generally does not violate section 136.1, subdivision (b). Since section 136.1 is not a general statute and section 137 is not a more specific application of section 136.1, the Williamson rule does not apply.

III. Equal Protection

Violations of section 136.1, subdivision (b) are punished as a misdemeanor or a felony, while violations of section 137, subdivision (c) are misdemeanors. (§§ 136.1, subd. (b), 137, subd. (c).) Defendant asserts this violates his right to equal protection of the law. He is wrong.

In order to succeed in his equal protection claim, defendant must show "that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (Manduley v. Superior Court (2002) 27 Cal.4th 537, 568.) "'Equal protection applies to ensure that persons similarly situated with respect to the legitimate purpose of the law receive like treatment; equal protection does not require identical treatment.'" (People v. Gonzales (2001) 87 Cal.App.4th 1, 12.) Defendants sentenced under section 136.1, subdivision (b) are not similarly situated with defendants who violate section 137, subdivision (c). As we have already discussed, section 136.1, subdivision (b) penalizes efforts to keep a crime from being reported or prosecuted, while violations of section 137, subdivision (c) involve efforts to influence a witness's testimony, either in a legal proceeding or to a law enforcement official. (Fernandez, supra, 106 Cal.App.4th at p. 950.) These are different acts that involve distinct harms to society. It does not violate equal protection for the Legislature to conclude that preventing a crime from being reported or prosecuted is more harmful than efforts to influence testimony.

Successful efforts to prevent or influence testimony are more readily addressed than successful attempts to keep a crime from being reported or violated. There are many means of addressing successful violations of section 137, subdivision (c). False testimony can be impeached, and withheld material evidence need not prevent a prosecution where other evidence is available. By contrast, a successful violation of section 136.1, subdivision (b) prevents the crime from being reported or prosecuted, short-circuiting the entire criminal justice process.*fn7 The greater potential danger from violations of section 136.1, subdivision (b) justifies the disparate treatment.

The distinction between sections 136.1, subdivision (b)(1) and 137, subdivision (c) "is not merely a semantic one. The Legislature has taken pains to distinguish the various methods of influencing a witness and to establish a range of punishment for those offenses that reflects different levels of culpability." (Fernandez, supra, 106 Cal.App.4th at p. 950.) The provisions address different conduct, and the Legislature has chosen to mete out greater punishment to the more dangerous conduct. This does not violate equal protection.

IV. Ineffective Assistance of Counsel

Defendant contends he received ineffective assistance of counsel because trial counsel failed to raise a preclusion objection to prosecution under section 136.1, subdivision (b) and should have asked for instruction on section 137 as a lesser related offense. Both contentions are without merit.

To show ineffective assistance of counsel, a defendant must demonstrate that the counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)

As we have already determined, prosecution under section 136.1, subdivision (b) is not precluded by section 137, subdivision (c). Trial counsel need not make meritless arguments simply to avoid being called ineffective by appellate counsel. (People v. Cunningham (2001) 25 Cal.4th 926, 1038.)

A trial court may not instruct a jury on a lesser related offense unless the prosecutor agrees to the instruction. (People v. Birks (1998) 19 Cal.4th 108, 112-113.) Defendant claims an instruction on section 137, subdivision (c) would have benefitted him, but he presents no evidence or argument showing the prosecutor would have agreed to such an instruction. Defendant's inability to establish prejudice defeats his claim.

V. Child Endangerment

Defendant contends there is insufficient evidence to support his conviction for child endangerment.

Section 273a, subdivision (b) states: "Any person who, under circumstances or conditions other than those 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 that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor."

At trial, the People argued defendant committed child endangerment by striking Raquel I. while he was driving with her son in the back seat of the car. Defendant asserts there is no evidence Raquel I.'s son was ever in his care or custody.

"[W]e find no special meaning to the terms 'care and custody' beyond the plain meaning of the terms themselves. The terms 'care or custody' do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver." (People v. Cochran (1998) 62 Cal.App.4th 826, 832; see also People v. Culuko (2000) 78 Cal.App.4th 307, 335.)

Defendant was the driver of the car in which Raquel I.'s son was the passenger. It is absurd to argue that the driver is not a caretaker of any child in that car. The young child could not leave the car while defendant was driving, and was unable to assess whether defendant was driving safely. So long as the car is being driven, a child passenger is at the driver's mercy.

Defendant struck the child's mother while he was driving the child. This dangerous driving placed the child in danger and inflicted emotional harm on him. Viewing the entire record in the light most favorable to the judgments and presuming in support of the judgments the existence of every fact that the jury reasonably could deduce from the evidence, we conclude substantial evidence supports the conviction for child endangerment. (People v. Kraft, supra, 23 Cal.4th at p. 1053.)

DISPOSITION

The judgment is affirmed.

We concur: ROBIE , Acting P. J. MURRAY , J.


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