Filed 5/31/13 P. v. Brown CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
       Plaintiff and Respondent,
                                                                     A134696
v.
ALVIN E. BROWN,                                                      (Contra Costa County
                                                                     Super. Ct. No. 51105592)
       Defendant and Appellant.


PEOPLE,
       Plaintiff and Appellant,
                                                                     A134697
v.
ALVIN E. BROWN,                                                      (Contra Costa County
                                                                     Super. Ct. No. 51105592)
       Defendant and Respondent.


         Defendant Alvin E. Brown and the People appeal a judgment following jury trial,
in which defendant was convicted of several serious felonies and sentenced to a
determinate prison term totaling over 29 years. Defendant contends substantial evidence
does not support his conviction for felony child abuse (Pen. Code, § 273a, subd. (a)),1
and further claims the court erred in imposing a consecutive sentence for his conviction
for false imprisonment by violence (§§ 236, 237, subd. (a)). The People urge the trial
court erred in striking two of the three strikes alleged and proved against defendant.
We affirm.

         1   All further statutory references are to the Penal Code.


                                                             1
                                      BACKGROUND2
       An information filed April 21, 2011—as subsequently amended and presented to
the jury—charged defendant with the following offenses committed against Erica McCoy
on October 3, 2010: attempted murder (§§ 187, subd. (a), 664, subd. (a)) (count 1);
assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2); and false imprisonment by
violence (§§ 236, 237, subd. (a)) (count 3). Each of these counts included enhancements
for use of a deadly weapon (§ 12022, subd. (b)(1)) or inflicting great bodily injury (§
12022.7, subd. (a)), or both. The information additionally charged defendant with child
abuse likely to produce great bodily harm (§ 273a, subd. (a)), committed against
McCoy‘s then four-year-old son, who was present when defendant attacked McCoy. The
information also included other charges and alleged sentencing enhancements, including
that defendant had three strikes and two serious prior felonies (§§ 667, 1170.12).
       On October 5, 2011, the jury found defendant guilty of counts 1 through 4.
Defendant waived jury trial on the prior felonies, which the trial court subsequently found
to be true.
       Four months later, on February 3, 2012, the trial court sentenced defendant. It
commenced by partially granting his Romero motion3 and striking two of defendant‘s
―strikes.‖ It then imposed a total determinate term of 29 years four months: 14 years on
count 1 (seven-year midterm doubled, plus three years great bodily injury, plus one year
deadly weapon); stay of sentence on count 2; one year four months on count 3,
consecutive (one-third the midterm doubled); eight years on count 4, concurrent.
       Defendant and the People each appealed. (See §§ 1237, subd. (a), 1238, subd.
(a)(10).)




       2 We provide only a summary of the case here, and discuss the facts and
circumstances of the crimes in further sections of this opinion addressing defendant‘s
arguments on appeal.
       3    People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530.


                                             2
                                         DISCUSSION
I. Conviction for Child Abuse
       Defendant contends his attack on McCoy was not likely to cause her son great
bodily injury and therefore the evidence is insufficient to support his conviction for child
abuse under section 273a, subdivision (a).
       ―In determining the sufficiency of the evidence, we review the whole record in the
light most favorable to the judgment for substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that any rational trier of fact could find the
allegation true beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578
. . . .) ‗[We] presume[] in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence. [Citations.] The same standard applies
when the conviction rests primarily on circumstantial evidence. [Citation.]‘ (People v.
Kraft (2000) 23 Cal.4th 978, 1053 . . . .) If the circumstances reasonably justify the fact
finder‘s findings, a contrary finding reasonably reconciled with the circumstances does
not warrant reversal of the judgment. (See People v. Bean (1988) 46 Cal.3d 919, 933
. . . ; In re George T. (2004) 33 Cal.4th 620, 631 . . . .)‖ (In re L.K. (2011)
199 Cal.App.4th 1438, 1446.)
       ―Section 273a, subdivision (a) ‗is an omnibus statute that proscribes essentially
four branches of conduct.‘ ([People v.] Sargent[ (1999)] 19 Cal.4th [1206,] 1215 . . . .)
These four branches or prongs are: ‗ ―Any person who, under circumstances or
conditions likely to produce great bodily harm or death, [1] willfully causes or permits
any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering,
or [3] having the care or custody of any child, willfully causes or permits the person or
health of that child to be injured, or [4] willfully causes or permits that child to be placed
in a situation where his or her person or health is endangered . . . .‖ ‘ (People v. Valdez
(2002) 27 Cal.4th 778, 783 . . . (Valdez).)‖ (In re L.K., supra, 199 Cal.App.4th at
pp. 1444–1445.)
       ―In addressing these four separate types of conduct, our Supreme Court describes
the second category as ‗direct infliction‘ and the first, third and fourth categories as


                                               3
‗indirect infliction.‘ (Valdez, supra, 27 Cal.4th at p. 786, italics omitted.) Under Sargent,
the appropriate mens rea for the second category of direct infliction is general criminal
intent, similar to battery or assault with a deadly weapon. (Sargent, supra, 19 Cal.4th at
p. 1220.) Under Valdez, the necessary mens rea for the other three categories of indirect
infliction is criminal negligence. (Valdez, supra, at p. 789.) In addressing indirect
infliction, the Valdez court concluded, ‗criminal negligence is the appropriate standard
when the act is intrinsically lawful . . . but warrants criminal liability because the
surrounding circumstances present a high risk of serious injury. Criminal negligence is
not a ―lessor state of mind‖; it is a standard for determining when an act . . . is such a
departure from what would be the conduct of an ordinarily prudent or careful person
under the same circumstances.‘ (Id. at pp. 789–790.) Thus, this standard applies to the
first, third and fourth prongs of section 273a, subdivision (a), where indirect infliction of
harm on a child has occurred, such as failing to seek medical treatment, child
endangerment, or willfully permitting situations that imperil children. (Sargent, supra, at
p. 1218.)‖ (In re L.K., supra, 199 Cal.App.4th at pp. 1445–1446.)
       These authorities dispense with defendant‘s assertion that he could not be
convicted of felony child abuse because he physically assaulted and injured only McCoy,
and did not directly harm her four year old son. The statute is ― ‗ is ―intended to protect a
child from an abusive situation in which the probability of serious injury is great.‖
[Citation.] ―[T]here is no requirement that the actual result be great bodily injury.‖
[Citation.]‘ [Citation.]‖ (Valdez, supra, 27 Cal. 4th at p. 784.)
       Turning to the evidence, McCoy and her son were visiting defendant at his home,
when defendant, sitting next to McCoy, suddenly stabbed her in the upper abdomen with
a knife and then pulled the blade downward to just above her naval. The child was within
arm‘s reach of McCoy, and her first thought was defendant was trying to kill her in front
of her son. When defendant pulled the knife out, McCoy‘s ―guts came out‖ and she
began bleeding. Defendant put the knife down on a TV tray next to McCoy, and then
forced McCoy into another room and partially closed the door. The boy tried to follow
his mother, but defendant pushed the child away, and said, ― Get out of here.‘ ‖ McCoy


                                               4
could hear her son yelling ―Mommy.‖ Although defendant partially tied her hands and
she was bleeding profusely, McCoy managed to escape through a window. Defendant
followed her through the window and began beating her. A police officer responding
soon afterward found the child standing in front of defendant‘s residence, crying. The
boy pointed to his mother, who by then was lying on her back on the sidewalk. McCoy
sustained life threatening injuries, and during the two-and-a-half weeks she was in the
hospital, her mother cared for the child. During that time, ―his personality . . . completely
changed.‖ He cried a lot, was very quiet, and displayed aggressive temper tantrums.
       This evidence is more than sufficient to establish that defendant ―willfully caused‖
McCoy‘s son to ―suffer unjustifiable mental suffering‖ under ―circumstances or
conditions likely to produce great bodily harm‖ to the child. The four year old was
essentially in the midst of the knife attack on his mother. He was in arm‘s length of
McCoy, and defendant could easily have struck the child had he lost his balance himself,
or been thrown off balance by any effort by McCoy to fight back. Then, defendant put
the bloodied knife down on a TV table, within easy reach of the four-year old. He then
knocked the child aside as he forced the bleeding and gutted McCoy into another room,
leaving the terrified child, calling for his mother, within reach of the knife.
       ―The felony child abuse statute ‗was enacted in order to protect the members of a
vulnerable class from abusive situations in which serious injury or death is likely to
occur.‘ ‖ (People v. Toney (1999) 76 Cal.App.4th 618, 622.) Such were the
circumstances here. (See People v. Pantoja (2004) 122 Cal.App.4th 1, 3, 15–16
[reversing conviction, but also rejecting section 654 sentencing argument and holding
defendant convicted of first degree murder and child endangerment after killing his
girlfriend in the presence of their daughter could be separately punished for murder and
child endangerment; there was ―no doubt that defendant‘s acts harmed [the daughter]‖
and defendant could be ―punished separately for that separate crime‖ of violence].)
II. Consecutive Sentence for False Imprisonment Conviction
       Defendant also contends the trial court abused its discretion in imposing a
consecutive, rather than concurrent, sentence for his false imprisonment conviction.


                                              5
Citing California rules of court, rule 4.425, subdivision (a)(3), he asserts ―the false
imprisonment offense occurred so closely in time to the attempted murder that it was
committed during a single period of aberrant behavior.‖
          Our standard of review is well established. We will not disturb the trial court‘s
exercise of discretion in sentencing unless, all circumstances being considered, it is clear
the court decision exceeded the bounds of reason. (People v. Bradford (1976) 17 Cal.3d
8, 20.)
          California Rules of Court, rule 4.425, sets forth ―[c]riteria affecting the decision to
impose consecutive rather than concurrent sentences . . . .‖ This includes ―whether or
not: [¶] (1) The crimes and their objectives were predominantly independent of each
other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or
[¶] (3) The crimes were committed at different times or separate places, rather than being
committed so closely in time and place as to indicate a single period of aberrant
behavior.‖ (Cal. Rules Ct., rule 4.425, subd. (a).)
          The trial court did not abuse its discretion in viewing the attempted murder and
subsequent false imprisonment as sufficiently separate to warrant consecutive sentences.
The offenses occurred in different areas of the house, and involved different conduct. As
discussed above, the defendant, after stabbing McCoy, removed the knife from her gut
and set it down, took her into a separate room, and there attempted forcibly to bind her
hands, with partial success, as she bled profusely. The attempted murder may well be
deemed to have involved conduct and objectives predominantly independent of the false
imprisonment, and most certainly they involved separate acts of violence. (Cal. Rules of
Court, rule 4.425(a)(1), (2).) Accordingly, there was no abuse of discretion imposing a
consecutive sentence.
III. Striking Two of the Three Strikes
          Pursuant to section 1385 and in the interest of justice, the trial court struck two of
the three strikes against defendant. (See Romero, supra, 13 Cal.4th at pp. 529–530.) The
People urge this was error, in that the trial court based its decision solely on the



                                                 6
―remoteness‖ of the two prior convictions, without considering defendant‘s entire
criminal history.
       On this sentencing issue, too, we review the trial court‘s decision for abuse of
discretion. (Romero, supra, 13 Cal.4th at p. 531.) The court based its decision not only
on the remoteness of the two older convictions, but also their lack of similarity to the
present offenses. Specifically, the court struck two prior 1985 convictions for robbery
and attempted robbery, but retained the third strike—a 1989 conviction for assault with
great bodily injury—because it was similar to the present offenses. While striking the
robbery priors may be a debatable proposition, we certainly cannot say the trial court‘s
perspective on the matter ―exceeded the bounds of reason.‖ We therefore conclude there
was no abuse of discretion.
                                       DISPOSITION
       The judgment is affirmed.




                                                  _________________________
                                                  Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




                                             7
