People v. Braz

• Decision Date: 15 August 1997
• Docket Number: No. H015235,H015235
• Citation: 66 Cal.Rptr.2d 553,57 Cal.App.4th 1
• Parties: , 97 Cal. Daily Op. Serv. 6518, 97 Daily Journal D.A.R. 10,656 The PEOPLE, Plaintiff and Respondent, v. Patricia Ann BRAZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 553

66 Cal.Rptr.2d 553

57 Cal.App.4th 1, 97 Cal. Daily Op. Serv. 6518,

97 Daily Journal D.A.R. 10,656

The PEOPLE, Plaintiff and Respondent, v. Patricia Ann BRAZ, Defendant and Appellant.

No. H015235.

Court of Appeal, Sixth District, California.

Aug. 15, 1997.

Review Denied Dec. 10, 1997.

Robert Spertus (Under appointment by the Court of Appeal in association with the Sixth District Appellate Program), Berkeley, for Defendant-Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Sr. Assistant Attorney General, Ronald E. Niver and Amy Haddix, Deputy Attorneys General, for Plaintiff-Respondent.

ELIA, Acting Presiding Justice.

A jury found appellant guilty of two counts of child endangerment (Pen.Code, § 273a, former subd. 1) and one count of second degree burglary (Pen.Code, §§ 459-460). The jury found appellant not guilty of murder and a mistrial was declared as to a charge of involuntary manslaughter on which the jury was deadlocked. Appellant was sentenced to state prison for eight years. On appeal, she contends that her burglary conviction must be reversed because of instructional error, legal impossibility and that the statute prohibiting the fraudulent use of a credit card supersedes the general burglary statute. She further contends that the trial court erred by failing to stay punishment for one count of child endangerment because there was no substantial evidence supporting the finding that there were two distinct acts of child endangerment. We affirm.

On January 18, 1993, at 12:20 a.m., police, paramedics and fire fighters went to the Oasis Motel in response to appellant's 911 call. Appellant's two-year-old son, Anthony S., was not breathing and had no pulse or blood pressure. He was taken to the hospital, and an emergency room physician worked on him until pronouncing him dead at 1:29 a.m. The physician noticed bruises on Anthony's body which looked like they had been sustained at different times. Dr. Vaneghi of the Santa Clara County Coroner's Office, who performed the autopsy, and several other doctors who examined Anthony's medical records, concluded that Anthony died of massive internal bleeding caused by tremendous blunt force trauma to the abdomen and liver.

Appellant had been living with Anthony and her boyfriend, William Harrell, at the Oasis Motel since January 1, 1993. In their room, police found several automated teller machine (ATM) print outs and a wallet belonging to Michael Dodge. Under questioning, appellant admitted trying to use the ATM card in the bank machine.

Appellant contends that her burglary conviction must be reversed because of instructional error. On November 8, 1995, the trial court instructed the jury regarding burglary and two lesser offenses, violations of Penal Code sections 484e (theft of ATM card) and 484g (unlawful use of ATM card). As to burglary, the trial court instructed the jury that "Every person who enters any building or ATM machine with the specific intent to steal, take and carry away the personal property of another of any value and with the further specific intent to deprive the owner permanently of such property, is guilty of the crime of burglary in violation of Penal Code section 459."

The court further instructed the jury on the two crimes of unlawful use of an ATM card and theft of an ATM card as follows: "As to the lesser crime of unlawful use of an automatic teller machine card, I instruct you as follows: [p] Every person who, with intent to defraud, uses an automatic teller machine card for the purpose of obtaining money, goods, services, or anything else of value, knowing that the card was lost or mislaid, is guilty of theft. Where nothing of value is obtained, the crime is petty theft.... [p] As to the lesser crime of theft of an automatic teller machine card, I instruct you as follows: [p] Every person who acquires an automatic teller machine card that he or she knows to have been lost or mislaid, and retains possession with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder is guilty of petty theft."

During the course of their deliberations this jury sent several notes to the court concerning the elements of other counts, the readback of testimony and scheduling issues. On November 20, the court responded to a question from the jury concerning the lesser offenses. The jury sent a note saying, "[w]e're unable to reach a final agreement on burglary. There was some concern that the fact no money was received reduces the charge to petty theft. [p] Should petty theft be considered as part of the burglary charge or is it a lessor [sic ] charge to the burglary charge?"

In response to this note, the court commented that it believed (mistakenly) that it hadn't read the lesser charges to the jury. It then informed the jury that "there are two lesser offenses as to count four [the burglary]." The court then read the same instructions quoted above; however, the court substituted the Penal Code section numbers 484e and 484g in place of the words "petty theft" in the concluding phrase of each definition. ¹ The court then told the jury "you don't get to the lessers unless you find as to the underlying offense." The court read the definition and elements of burglary and commented "[t]here is no element requiring the taking of money as long as the specific intent is present at the time.... It is immaterial whether the intent with which the entry was made was thereafter carried out...."

Appellant contends that the court's reading of this abridged version of the instructions on the lesser offenses, leaving out the reference to "the crime of petty theft," was error. Appellant argues that the reference to petty theft was obviously what the jury had in mind in its note, and that the court's response, omitting petty theft and rereading the burglary instruction with special emphasis on taking of money and intent, directed the jury to convict appellant of burglary.

We are not persuaded that the court's response to the jury's note presented the jury with "a set of legally insufficient instructions which virtually directed them to find the defendant guilty of burglary." The note concerned the elements of burglary, in particular, whether an actual taking must occur for burglary to be completed. This is precisely the point the court addressed. The court's instructions were potentially better for appellant, in that the court used the Penal Code section numbers in describing the lesser offenses, in conformity with their wording on the verdict forms. This was actually clearer than repeating the reference to petty theft, when those words were not on the verdict form. There was no error in the manner in which the court responded to the jury note.

Appellant contends it is legally impossible to commit a burglary by inserting an ATM card into a bank machine without knowledge of the personal identification number (PIN) which activates the card. During trial, appellant testified that she inserted Michael Dodge's ATM card into the bank ATM machine and entered random numbers for the PIN. Six ATM receipts for failed transactions were found in appellant's hotel room. Appellant testified that after her co-defendant found the wallet, he wanted to go to the bank and try to get money from the ATM machine. She said "I didn't have a code number. I was just punching anything. I told him that it was stupid to go, and I just was going to go to make a point." When they returned to the motel, she twice called the 800 number on the card. She said "It was ridiculous and it was stupid to go [to the bank] ... but Willie [the co-defendant] had been bugging me about it."

In support of her argument that it was legally impossible to commit burglary in this way, appellant cites People v. Meyer (1985) 169 Cal.App.3d 496, 504-505, 215 Cal.Rptr. 352. In Meyer, the court explained "The difference between factual impossibility ... and the legal impossibility for which defendant in the instant case argues is apparent in the decision in People v. Meyers (1963) 213 Cal.App.2d 518, 523, 28 Cal.Rptr. 753 ..., where the court stated: 'The courts of this state have not concerned themselves with the niceties of distinction between physical and legal impossibility, but have focused their attention on the question of the specific intent to commit the substantive offense. The hypothesis of the rule established in this state is that the defendant must have the specific intent to commit the substantive offense, and that under the circumstances, as he reasonably sees them, he does the acts necessary to consummate the substantive offense; but because of circumstances unknown to him, essential elements of the substantive crime are lacking. [Citations.] It is only when the results intended by the actor, if they happened as envisaged by him, would still not be a crime, then and only then, can he not be guilty of an attempt.' (See also People v. Peppars (1983) 140 Cal.App.3d 677, 687, 189 Cal.Rptr. 879, fn. 5 ... [' " 'Legal impossibility' denotes conduct where the goal of the actor is not criminal, although he believes it to be. 'Factual impossibility' denotes conduct where the objective is proscribed by the criminal law, but a circumstance unknown to the actor prevents him from bringing it about."...]')"

The issue of legal impossibility invites discussions of factual impossibility and the sufficiency of the evidence to prove specific intent. Meyer focuses our attention on whether the results intended by appellant, if they happened as she envisioned them, would be a crime. Appellant testified she was just trying to show Harrell that she wouldn't be able to obtain money from the account without the PIN number. The jury was free to determine that, despite her testimony, she shared Harrell's intent to obtain money, but just not his optimism that she might come up with the correct...