Filed 8/19/14 P. v. Delgado CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058109

v.                                                                       (Super.Ct.No. RIF1200777)

JOSE RICARDO DELGADO, JR.,                                               OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.

Affirmed.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Linh Lam,

Deputy Attorneys General, for Plaintiff and Respondent.




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                                    I. INTRODUCTION

       Early one morning, while high on methamphetamine, defendant and appellant

Ricardo Delgado, Jr. and his live-in girlfriend were arguing in a bedroom they shared

with their three-year-old daughter Jane Doe. Defendant retrieved a handgun from under

the bed and it discharged. A bullet grazed the girlfriend’s skull and pierced the wall

approximately one foot above the crib where Doe lay sleeping. A jury found defendant

guilty as charged of felony child endangerment (Pen. Code, § 273a, subd. (a)),1 among

other offenses.

       Defendant was sentenced to 18 years 4 months in prison and appeals, claiming the

trial court prejudicially erred in failing to instruct sua sponte on the lesser included

offense of misdemeanor child endangerment. (§ 273a, subd. (b).) We affirm. No

instructions on the lesser offense were warranted because insufficient evidence showed

defendant committed the lesser but not the greater offense. Even if, as defendant

testified, he did not mean to shoot his girlfriend and was not pointing the gun when it

accidentally discharged, under the circumstances his actions were likely to produce great

bodily harm or death to Doe. (§ 273a, subd. (a).) Under no view of the evidence did

defendant’s actions occur “under circumstances or conditions other than those likely to

produce great bodily harm or death,” which the jury had to find in order to find him

guilty of misdemeanor child endangerment. (§ 273a, subd. (b), italics added.)




       1   All further statutory references are to the Penal Code unless otherwise indicated.

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                             II. FACTUAL BACKGROUND

A. Prosecution Evidence

       In December 2011, defendant lived in a house with his girlfriend of eight years,

Stacy C., their three-year-old daughter Doe, his parents, and other family members.

Defendant, Stacy C., and Doe shared a bedroom and Doe slept in a crib next to Stacy C.’s

side of the bed.

       On December 29, defendant arrived home around 11:00 p.m., after working late at

his job as a maintenance supervisor at an apartment complex. Doe had a fever, and Stacy

C. was lying next to her on the couple’s bed in the bedroom. Defendant kissed Doe

goodnight and went into the garage. Stacy C. was upset with defendant for working late

and ignored him when he came into the bedroom.

       Hours later, Stacy C. sent defendant out to purchase medicine for Doe. Defendant

returned around 3:00 a.m. with the wrong medicine, then refused to give Stacy C. his car

keys so she could buy the correct medicine. Around 4:00 a.m., Stacy C. called her father

and asked him to take her to buy the right medicine. Stacy C. and defendant continued

arguing while she waited for her father. Meanwhile, Stacy C. took defendant’s cell

phone and left it in the garage.

       After Stacy C. returned home from the store, she was still upset with defendant

and ignored him when he asked for his cell phone. Defendant began looking through

Stacy C.’s purse for his cell phone, and the arguing continued. When defendant was out

of the bedroom, Stacy C. knocked over defendant’s briefcase. After defendant told Stacy


                                            3
C. to pick up the briefcase, Stacy C. told him to “shut . . . up” and she was “done”

arguing.

       Defendant retrieved a revolver from under the bed, took the bullets out, held them

in his hand, and told Stacy C. to “pick a bullet.” Stacy C. told defendant to “pick a

bullet” and to “pick a side” to shoot her on, and lifted her hair. Defendant put a bullet in

the gun and spun the cylinder. After spinning the cylinder a second time, defendant

moved toward Stacy C. and threatened to shoot her in her head if she did not “shut up.”

Stacy C. was standing by her side of the bed and Doe was asleep in her crib behind Stacy

C., as defendant approached Stacy C. from the other side of the room. As defendant

flicked his wrist to close the cylinder, he “put the gun up” and it discharged.

       A bullet grazed Stacy C.’s skull and hit the wall around one foot above the top of

the crib where Doe lay sleeping. Defendant dropped the gun and immediately became

hysterical. He screamed to Stacy C. that he was sorry, he loved her, and he did not mean

to shoot her.

       At first, Stacy C. did not realize she had been shot or that her head was bleeding,

but after she saw blood she called 911 and told the operator her boyfriend had shot her.

At trial, Stacy C. denied that defendant pointed the gun at her, saying “he didn’t have a

chance to point it anywhere” and his finger was not on the trigger. She later admitted he

pointed the gun at her.

       As Stacy C. was speaking to the 911 operator, defendant’s brother Rigoberto

Delgado took the phone from Stacy C. and completed the call while Stacy C. sat on the


                                              4
sofa waiting for paramedics. Rigoberto was asleep when he woke to a loud noise and

screaming. He told the police that defendant “said he shot her in the head” and “[l]ook

what I did to her.”

       Stacy C. was treated at the scene for her gunshot wound. She required eight

stitches and spent three to four days in the hospital. The gun and several rounds of

ammunition were found under the bed in the bedroom, and pieces of Stacy C.’s skin and

hair were on the bedroom ceiling and floor. Stacy C. had gunshot residue or stippling on

her face, indicating the gun discharged one to five feet from her face. A criminalist

testified the gun had safety features that would have prevented it from accidentally

discharging; it would not have fired unless the trigger was pulled.

B. Defense Evidence

       Rigoberto had never witnessed any physical abuse between defendant and Stacy

C., though he heard them argue, and testified the shooting was out of character for

defendant because he was not the type of person “to get mad or hit anybody.” Maria

Delgado, defendant’s mother, had never seen defendant and Stacy C. argue or strike one

another. After the shooting, defendant was running around the house “jumping” and

“crying” and appeared distant, as though he were not there.

       A toxicologist testified defendant’s blood contained 144 nanograms per milliliter

of methamphetamine and eight nanograms per milliliter of amphetamine, the metabolite

of methamphetamine, around 1:30 p.m. on December 30, 2011, approximately eight




                                             5
hours after the shooting. The levels would have been double at the time of the shooting,

and at those levels a person can be agitated and react very quickly to situations.

       Defendant testified in his own defense. He smoked methamphetamine at work on

the day of the shooting and twice in the garage after he returned home. He was feeling

the effects of the drug at the time of the shooting; “mentally” he “wasn’t normal.” He

intended only to frighten Stacy C. when he raised the gun, but he did not point it at her

and he was surprised when it went off.

C. Verdicts and Sentencing

       A mistrial was declared on the principal charge of premeditated attempted murder

in count 1 (§§ 664, 187, subd. (a)), after the jury deadlocked 11 to 1 on that count. The

jury found defendant guilty as charged of felony child cruelty in count 2 (§ 273a, subd.

(a)), assault with a firearm in count 3 (§ 245, subd. (a)(2)), and assault on a cohabitant in

count 4 (§ 273.5, subd (a)). Personal firearm use enhancements were found true in counts

3 and 4 (§ 12022.5, subd (a)) and the jury also found defendant personally inflicted great

bodily injury in count 4 (§ 12022.7, subd. (e)).

       Defendant was sentenced to 18 years 4 months in prison: three years on count 4,

the principal count, plus 10 years for the personal use enhancement and three years for

the great bodily injury enhancement on count 4, plus 16 months on count 2. Additional

terms were imposed but stayed on count 3 and the personal use enhancement on count 3.

(§ 654.)




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                                      III. ANALYSIS

       Defendant claims the court prejudicially erred in failing to instruct sua sponte on

the lesser included offense of misdemeanor child endangerment to the charge of felony

child endangerment in count 2. No instructions on the lesser offense were required

because insufficient evidence showed defendant committed the lesser, misdemeanor

offense but not the greater, felony offense.

       “The trial court is obligated to instruct the jury on all general principles of law

relevant to the issues raised by the evidence, whether or not the defendant makes a formal

request. [Citations.] ‘That obligation encompasses instructions on lesser included

offenses if there is evidence that, if accepted by the trier of fact, would absolve the

defendant of guilt of the greater offense but not of the lesser.’ [Citations.] ‘To justify a

lesser included offense instruction, the evidence supporting the instruction must be

substantial—that is, it must be evidence from which a jury composed of reasonable

persons could conclude that the facts underlying the particular instruction exist.’

[Citations.]” (People v. Burney (2009) 47 Cal.4th 203, 250.)

       Felony child endangerment is committed by a person who, “under circumstances

or conditions likely to produce great bodily harm or death, willfully causes or permits

any child . . . to be placed in a situation where his or her person or health is endangered

. . . .” (§ 273a, subd. (a), italics added.)2 Misdemeanor child endangerment is a lesser

       2  Section 273a, subdivision (a) defines felony child abuse and endangerment:
“Any person who, under circumstances or conditions likely to produce great bodily harm
or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable
                                                                   [footnote continued on next page]

                                               7
included offense of felony child endangerment (People v. Moussabeck (2007) 157

Cal.App.4th 975, 980) and is committed by a person who willfully causes or permits the

health of a child to be endangered, “under circumstances or conditions other than those

likely to produce great bodily harm or death . . . .” (§ 273a, subd. (b), italics added.)3

        As Justice Stanley Mosk observed in a 1999 concurring opinion, misdemeanor and

felony child endangerment are distinguished by their “context element,” that is, by the

context in which the act of abuse or endangerment occurs. (People v. Sargent (1999) 19

Cal.4th 1206, 1230-1231 (conc. opn. of Mosk, J.).) As the statutes state, the felony

offense occurs in “circumstances or conditions likely to produce great bodily harm or

death” (§ 273a, subd. (a)), while misdemeanor offense occurs in “circumstances or

conditions other than those likely to produce great bodily harm or death” (§ 273a, subd.

(b); People v. Sargent, supra, at p. 1231 (conc. opn. of Mosk, J.)).




[footnote continued from previous page]
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 is
endangered, shall be punished by imprisonment in a county jail not exceeding one year,
or in the state prison for two, four, or six years.”

        3 Section 273a, subdivision (b) defines misdemeanor child abuse and
endangerment: “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.”

                                              8
       Viewing the evidence in the light most favorable to defendant, even if defendant

did not mean to shoot Stacy C. or fire his revolver, his act of pointing the loaded revolver

at the wall as Doe lay sleeping in her crib nearby, was without a doubt likely to produce

great bodily harm or death to Doe. (§ 273a, subd. (a).) Under no view of the evidence

did defendant’s act of wielding occur under conditions or circumstances other than those

likely to produce great bodily harm or death. (§ 273a, subd. (b).)

       People v. Sheffield (1985) 168 Cal.App.3d 158 does not assist defendant’s claim.

There, the defendant was convicted of felony child abuse based on his continuous course

of conduct in beating two children over a period of several months. (Id. at p. 166.) The

defendant denied inflicting the more serious incidents of alleged abuse and minimized the

seriousness of other alleged acts of abuse. (Id. at p. 167.) If the jury believed him, it

could have found him guilty of misdemeanor but not felony child abuse. (Ibid.) But here

defendant admitted wielding a loaded firearm during a heated argument with Stacy C.

and while extremely high on methamphetamine. His actions amounted to nothing less

than felony child endangerment, because they were likely to produce great bodily injury

or death to Doe and did not occur under circumstances other than those likely to produce

great bodily harm or death. (§ 273a, subds. (a), (b).)

       Defendant maintains his “act of firing a gun in the proximity of the child was

ambiguous,” but he does not explain the ambiguity. He posits that “under the worst case

scenario” he intended to harm Stacy C., but there was no evidence he intended to harm

Doe or “directed” any anger toward Doe. He reasons that if the jury believed he intended


                                              9
to harm Stacy C., then “[t]here was no evidence,” or the jury could not have reasonably

inferred, that he knew his act of firing the gun at Stacy C. “would or could endanger” Doe

“since one had to believe he intended the bullet to hit [Stacy C.], not miss [Stacy C.] and

hit the wall.”

       These arguments emphasize defendant’s lack of intent to harm Doe but disregard

the likely, grave consequences to Doe of his act of wielding the loaded firearm while high

on methamphetamine during a heated argument with Stacy C. Defendant’s actions were

likely to result in Doe being fatally shot or seriously injured, even though defendant did

not intend to harm her or “direct” anger toward her. (See People v. Sanders (1992) 10

Cal.App.4th 1268, 1273 [felony child endangerment does not require specific intent to

harm child].) In sum, no instructions on misdemeanor child endangerment were required

to be given here because the evidence was insufficient to show defendant committed

misdemeanor but not felony child endangerment.

                                   IV. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                KING
                                                                                             J.
We concur:

RAMIREZ
                        P. J.

CODRINGTON
                           J.
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