Filed 9/11/13 P. v. Andrews 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



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



THE PEOPLE,                                                                                  C071899

                   Plaintiff and Respondent,                                       (Super. Ct. No. 11F147)

         v.

JUDITH D. ANDREWS,

                   Defendant and Appellant.




         In this case defendant Judith D. Andrews drove a three year old and a 10 month
old in her car without car seats. The information charged defendant with two counts of
felony child endangerment, but the information described the offenses as misdemeanor
child endangerment (felony child endangerment is that likely to produce great bodily
injury or death but the misdemeanor offense omits that requirement). The jury
instruction similarly listed the elements only for misdemeanor child endangerment and
the jury so found. At sentencing, the trial court reduced the convictions to misdemeanor
child endangerment and placed defendant on four years’ informal probation.
          We affirm.




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                   FACTUAL AND PROCEDURAL BACKGROUND
       On August 4, 2011, social workers from the Trinity County Health and Human
Services, Child Protective Services (CPS) sought to serve warrants to remove the three
year old and the 10 month old from their mother and place them in protective custody.
The two social workers, Nicole Hays-Bradford and Elizabeth Hamilton, believed the
children were staying with their great-grandmother, defendant. They went to the
mother’s home with Trinity County Sherriff’s Deputy William Robles. Mother told them
the children were with her mother (the children’s grandmother), and with her
grandmother (who was defendant and the children’s great-grandmother), who were all on
the way back to the campground where defendant was staying.
       The social workers left the mother’s residence and spotted defendant in the
driver’s seat of her car, which was parked by a supermarket. Grandmother was leaving
the market very quickly with the three year old and a bag of groceries. She put the three
year old in the backseat and then got into the front passenger seat next to defendant.
There was no upright car seat for the three year old in the backseat.
       As defendant drove out of the parking lot and headed west on State Route 299, she
recognized the two social workers. Defendant stopped at a stop sign, but when the car in
front of her turned left, she rolled through the stop and followed, making a left turn
behind the car in front of her. This caused defendant’s tires to squeal and another vehicle
had to swerve to avoid her.
       The CPS workers followed defendant and notified Deputy Robles, who activated
his lights and siren and drove to the location. When Deputy Robles got within a car
length of defendant, she was going about 60 miles per hour in a 55-miles-per-hour zone,
and less than one car length behind the car in front of her. Defendant was “darting back
and forth, left and right, in her lane several times.” Defendant aggressively slammed on
the brakes and the accelerator as she apparently tried to pass the vehicle in front of her.
Defendant pulled over a few miles later. The three year old was turned around on his

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knees looking at the officer out the back window; he was not in a car seat or wearing a
seat belt. The ten month old was in the backseat in an infant carrier that was not
restrained by seat belts.
       Testifying in her defense, defendant said the infant seat was put in her car by the
children’s aunt, and she assumed that the aunt properly attached the seat to the car.
Defendant knew that the children’s grandmother properly buckled the three year old into
his seat belt.
       The charges of child endangerment were based on defendant’s act of driving with
the two small children while they were not properly placed in child seat restraints.
Defendant was charged in two counts with “a felony, to wit: a violation of Section
273a(a) of the California Penal Code.” Both counts provided an identical definition of
the charged offense, that defendant “having the care and custody” of the three year old
(count one) and the ten month old (count two), “under circumstances and conditions other
than those likely to produce great bodily injury and death, 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 a situation that its person and health may be endangered.”
       Because felony child endangerment requires the child to be endangered under
circumstances or conditions “likely to produce great bodily harm or death” (Pen. Code,1
§ 273a, subd. (a)) the information described misdemeanor child endangerment, an offense
not requiring a likelihood of great bodily harm or death (§ 273a, subd. (b)). When the
trial court reduced both counts from felonies to misdemeanors, it, in effect, conformed
the proof at trial to the allegations in the information.
       This straightforward result has been challenged by defendant who raises a myriad
of unmeritorious claims. Thus, we affirm.




1      Undesignated statutory references are to the Penal Code.

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                                       DISCUSSION
                                               I
                              Child Endangerment Instruction
       The trial court gave a modified version of the felony child endangerment
instruction (CALCRIM No. 821) which omitted the reference to “under circumstances or
conditions likely to produce great bodily harm or death.” By this modification, the jury
was not instructed on felony child endangerment at all. The defendant claims this was
reversible error. While it was error if the offense charged was actually felony child
endangerment, the People claim any error was harmless because defendant’s convictions
were reduced to misdemeanor violations of section 273a. The People are correct and the
defendant’s argument is frivolous.
                                              II
                                   Other Jury Instructions
       Defendant contends instructions on the elements of child endangerment, criminal
negligence, and Vehicle Code section 27360 combined to create an impermissible
presumption of guilt. We disagree.
       The trial court gave the standard jury instruction on the required union of act and
general criminal intent, CALCRIM No. 250, as follows: “The crime[s] charged in this
case require[s] proof of the union, or joint operation, of the act and wrongful intent. [¶]
For you to find a person guilty of the crime[s], that person must not only commit the
prohibited act [or fail to do the required act], but must do so with wrongful intent. A
person acts with wrongful intent when he or she intentionally does a prohibited act [or
fails to do a required act]; however, it is not required that he or she intend to break the
law. The act required is explained in the instruction for that crime.”
       The jury was also given a modified version of the standard instruction on the
union of act and criminal negligence, CALCRIM No. 253, as follows: “For you to find a



                                              4
person guilty of the crime[s], a person must do an act [or fail to do an act] with
negligence. Negligence is defined in the instructions for that crime.”
       The trial court instructed on child endangerment with the following modified
version of the standard instruction, CALCRIM No. 821, as follows:
       “The defendant is charged [in counts 1 & 2] with child endangerment [in violation
of Penal Code section 273a(a)]. [¶] To prove the defendant is guilty of this crime, the
People must prove that: [¶] [1. The defendant, while having care or custody of a child,
willfully caused or permitted the child to be placed in a situation where the child’s person
or health was endangered]; [¶] [AND] [2. The defendant caused or permitted the child
to be endangered]; [¶] [AND] [3. The defendant was criminally negligent when she
caused or permitted the child to be endangered]. [¶] A child is any person under the age
of 18 years. [¶] Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal negligence when: [¶]
1. He or she acts in a reckless way that is a gross departure from the way an ordinarily
careful person would act in the same situation; [¶] 2. The person’s acts amount to
disregard for human life or indifference to the consequences of his or her acts, [¶] AND
[¶] 3. A reasonable person would have known that acting in that way would naturally and
probably result in harm to others.”
       Defendant notes this instruction omits the definition of “willfully” provided in
CALCRIM No. 821.2
       Immediately after the modified CALCRIM No. 821, the trial court properly
instructed the jury on Vehicle Code section 27360, an infraction, as to when a child must
be put in a car seat.




2     CALCRIM No. 821 states, in pertinent part: “Someone commits an act willfully
when he or she does it willingly or on purpose.”

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       “On review, we examine the jury instructions as a whole, in light of the trial
record, to determine whether it is reasonably likely the jury understood the challenged
instruction in a way that undermined the presumption of innocence or tended to relieve
the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt.
[Citation.]” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.) Since defendant did
not object to the instructions, her contention is forfeited unless the instruction affected her
substantial rights. (§ 1259; People v. Christopher (2006) 137 Cal.App.4th 418, 426-427.)
Substantial rights are equated with a miscarriage of justice, which results if it is
reasonably probable the defendant would have obtained a more favorable result had the
instruction been given. (Christopher, at pp. 426-427; People v. Watson (1956) 46 Cal.2d
818, 835-836.)
       Defendant claims the trial court’s modifications of CALCRIM Nos. 253 and 821
constituted prejudicial error by allowing the jury to find defendant guilty based on
ordinary negligence rather than criminal negligence, and by failing to define the term
“willfully,” a term she asserts “is critical to the jury’s understanding of the offense.” She
further claims the instruction on Vehicle Code section 27360 was incorrect, misleading,
and when combined with the other two alleged instructional errors, would lead the jury to
impermissibly presume guilt from a violation of that statute.
       Defendant is correct that she could not be convicted on a finding of ordinary
negligence because criminal negligence involves “ ‘ “a higher degree of negligence than
is required to establish negligent default on a mere civil issue.” ’ ” (People v. Valdez
(2002) 27 Cal.4th 778, 788.) Read in isolation, the trial court’s version of CALCRIM
No. 253 could induce the jury to apply the incorrect standard of negligence. The problem
with defendant’s contention is that this instruction cannot be read in isolation. In
addition, the instruction here specifically informs the jury that “[n]egligence is defined in
the instructions on that crime.” The instruction on the only charged crime, the modified
CALCRIM No. 821, instructed the jury that it must find defendant “criminally negligent”

                                              6
in order to convict and then gave the standard instruction on criminal negligence.3 Read
in their proper context, the instructions correctly instructed the jury that it had to find
defendant criminally negligent in order to find her guilty. The modification of
CALCRIM No. 253 was not erroneous.
       Defendant’s contention that the trial court should have defined the term “willfully”
in its version of CALCRIM No. 821 is equally unavailing.
       “In general the trial court has a sua sponte duty to give amplifying or clarifying
instructions ‘ “where the terms used [in an instruction] have a technical meaning peculiar
to the law.” ’ ” (People v. Richie (1994) 28 Cal.App.4th 1347, 1360 (Richie).) “When a
term is commonly understood by those familiar with the English language and is not used
in a technical sense peculiar to the law, an instruction as to its meaning is not required in
the absence of a request.” (People v. Williams (1988) 45 Cal.3d 1268, 1314.)
       In Richie, the defendant was convicted of violating Vehicle Code section 2800.2,
which prohibits evading a pursuing peace officer with “a willful or wanton disregard for
the safety of persons or property.” (Veh. Code, § 2800.2, subd. (a); Richie, supra,
28 Cal.App.4th at pp. 1351, 1353.) The jury was given a modified version of the
standard instruction at the time, CALJIC No. 12.85, which stated that the People must
prove the defendant “drove the vehicle in a willful and wanton disregard for the safety of
persons or property,” but did not further define willful or wanton. (Richie, at pp. 1353-
1354 & fn. 1.) Defendant argued on appeal the trial court committed reversible error by
failing to define the terms “willful” and “wanton.” (Id. at p. 1360.)
       The Court of Appeal rejected the contention. (Richie, supra, 28 Cal.App.4th at
p. 1362.) The dictionary defined “willful” as: “ ‘1: obstinately and often perversely self-
willed 2: done deliberately: INTENTIONAL’ ”; and “wanton” as: “ ‘3a: MERCILESS,



3     Defendant does not contest the definition of criminal negligence given in the
modified CALCRIM No. 821.

                                               7
INHUMANE . . . b: having no just foundation or provocation: MALICIOUS.’ ”
(Richie, at p. 1361, quoting Webster’s New Collegiate Dict. (1977) pp. 1341, 1318.)
There was no different technical legal definition of those terms. CALJIC No. 12.85
defined “ ‘willful and wanton;’ ” as “ ‘an intentional and conscious disregard for the
safety of . . . persons or property. It does not necessarily include an intent to injure.’ ”
(Richie, at p. 1361, quoting CALJIC No. 12.85.) This definition was taken from a
decision that defined “ ‘willful’ . . . as ‘intentional’ and . . . ‘wanton’ as . . . ‘includ[ing]
the elements of consciousness of one’s conduct, intent to do or omit the act in question,
. . . and reckless disregard of consequences.’ ” (Richie, at p. 1361.) There was also no
meaningful distinction between the dictionary definition of those terms and their meaning
in Vehicle Code section 2800.2. (Richie, at p. 1361.)
       Agreeing with Richie, we find “willfully” is not a technical term which requires
further explanation. Since defendant did not request further explanation of the term, no
additional instruction was required.
       The trial court gave the following instruction on Vehicle Code section 27360: “A
driver shall not transport on a highway in a motor vehicle a child who is under eight years
of age, without properly securing that child in the rear seat without an appropriate child
passenger restraint system.”
       Defendant first contends that the instruction applies the wrong version of the
statute. The instruction uses the language of the most recent version of Vehicle Code
section 27360, which became effective on January 1, 2012, after the incident at issue in
this case. At the time of the incident, Vehicle Code section 27360 stated in pertinent part:
“A driver may not transport on a highway a child in a motor vehicle . . . without properly
securing the child in a rear seat in a child passenger restraint system meeting applicable
federal motor safety standards, unless the child is one of the following: [¶] (a) Six years
of age or older. [¶] (b) Sixty pounds or more.” (Former Veh. Code, § 27360.)



                                                 8
       Defendant claims the older version of Vehicle Code section 27360 meaningfully
differs from the version given in the instruction by using the term “may not” rather than
“shall not,” and by covering children under the age of six rather than children under eight
years old. Neither difference is meaningful. This is another frivolous argument. Also,
since the children in this case were three years old and 10 months old, both versions of
Vehicle Code section 27360 applied to the children in defendant’s car.
       Finally, defendant finds the instruction “did not have any direct application to the
legal issues to be decided in the case.” She is wrong. This instruction informed the jury
of the legal duty of a driver to properly secure small children with appropriate child
passenger restraint systems, upon which a claim of negligent conduct is based.
Defendant claims this instruction informed the jury that it could “conflate the strict
liability of the traffic infraction with the intent required for a violation of the child abuse
statute.” According to defendant, when combined with the allegedly erroneous
modifications of CALCRIM Nos. 821 and 253, a burden was created that shifted the
presumption of guilt. She is wrong. This instruction did not create the risk of a
presumption of guilt or the jury ignoring the instructions on the mental element of child
endangerment.
                                               III
                                 Sufficiency Of The Evidence
       Defendant claims there is insufficient evidence to support convictions for felony
or misdemeanor child endangerment.
       In addressing a challenge to the sufficiency of the evidence, we view the entire
record in the light most favorable to the judgment and presume in support of the
judgment the existence of every fact that the jury reasonably could deduce from the
evidence. (People v. Golde (2008) 163 Cal.App.4th 101, 108.) Since defendant is
convicted of misdemeanor child endangerment, we review the sufficiency of the evidence
to support her conviction for that offense. As relevant here, misdemeanor child

                                               9
endangerment is willfully causing or permitting a child to be placed in a situation where
his or her person or health may be endangered “under circumstances or conditions other
than those likely to produce great bodily harm or death.” (§ 273a, subd. (b).)
       The evidence shows that defendant drove dangerously. As she tried to avoid CPS
and law enforcement, defendant rolled through a stop sign causing another vehicle to
swerve out of her way, she exceeded the speed limit, and she swerved in her lane while
her 10-month-old and three-year-old great-grandchildren were in the backseat. Witnesses
testified that the person who put the three year old in the backseat did not take enough
time to secure the child before defendant drove off. In addition, there was no child
restraint for the three year old and he was not in a seat belt after the stop. While the 10
month old was in an infant carrier, it was not attached to the car. Since defendant was the
driver, it was her duty to properly secure the children. At a minimum, she knew or
reasonably should have known that the children were not secured in the backseat.
Defendant’s claim that she thought the children were secured was not a defense. In any
event, the claim was based on her own testimony, which the jury was free to disregard.
       Defendant’s driving put the children at risk of being in an auto accident. Her
vehicle could have been hit had the other car not swerved when defendant rolled through
the stop sign. Speeding, swerving in the lane, and tailgating likewise placed the children
in her care at a significantly higher risk of being in an accident. Doing so while she knew
or reasonably should have known that the children were not secured was criminally
negligent and endangered her great-grandchildren’s health. Substantial evidence supports
defendant’s convictions for misdemeanor child endangerment.
                                             IV
                                     Cumulative Error
       Defendant contends that cumulative error warrants reversal. Given the result of
convictions for misdemeanor child endangerment, there was, in fact, no error.



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                                 DISPOSITION
     The judgment is affirmed.



                                          ROBIE   , J.



We concur:



     RAYE        , P. J.



     NICHOLSON        , J.




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