People v. Brown

• Decision Date: 08 June 1988
• Citation: 201 Cal.App.3d 1296,247 Cal.Rptr. 683
• Parties: The PEOPLE, Plaintiff and Respondent, v. Teron Jason BROWN, Defendant and Appellant. In re Teron Jason BROWN, Petitioner, On Habeas Corpus. Crim. B029120, B029419.
• Court: California Court of Appeals Court of Appeals

Page 683

247 Cal.Rptr. 683

201 Cal.App.3d 1296

The PEOPLE, Plaintiff and Respondent, v. Teron Jason BROWN, Defendant and Appellant In re Teron Jason BROWN, Petitioner, On Habeas Corpus.

Crim. B029120, B029419.

Court of Appeal, Second District, Division 3, California.

June 8, 1988.

As Modified June 24 and July 7, 1988.

Review Denied Aug. 11, 1988.

Wilbur F. Littlefield, Los Angeles County Public Defender, Laurence M. Sarnoff, Jane Marpet, Albert J. Menaster, Deputy Public Defenders, as amicus curiae

Julie Schumer, Encino, under appointment by the Court of Appeal, for appellant and petitioner.

John K. Van de Kamp, Atty. Gen., Steve White, Susanne C. Wylie, Cindy M. Lopez, Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Associate Justice.

INTRODUCTION

Appellant Teron Jason Brown suffered a conviction for involuntary manslaughter (Pen.Code, § 192, subd. (b)) following a court trial. The court sentenced him to the midterm of three years in state prison and enhanced the punishment five years pursuant to Penal Code section 667, finding that both his current offense and a prior conviction of robbery were serious felonies within the meaning of Penal Code section 1192.7, subdivision (c).

We determine as a matter of first impression that involuntary manslaughter may constitute a serious felony within the meaning of section 667 if the record establishes that the defendant "personally inflict[ed] great bodily injury" in the commission of the crime. (Pen.Code, § 1192.7, subd. (c)(8).) Accordingly, we affirm the judgment. ¹

FACTUAL BACKGROUND

The information originally charged appellant with the murder of 14-month-old Chela Brown. Chela died of sepsis resulting from second- and third-degree burns over 75% of her body. On March 26, 1985, as on several prior occasions, she had been left in appellant's care while her mother, Cheree Taylor, went to work. When appellant picked up Taylor that afternoon, Chela was with him wrapped in a blanket, and he indicated she had had an accident. Taylor noticed the child's skin "was a little red," and they took her to three hospitals where she was treated for severe burns.

Chela died one month later after "heroic measures" failed to control the resulting infection. During that period she was constantly in pain. Dr. William Davies, a burn specialist at Torrance Memorial Hospital, testified that Chela's burns were consistent with "the typical distribution of an immersion burn similar to sometimes seen in bathtubs." The severity of her injuries could have been caused by placing her in a tub of 122? water three to five minutes, which would have caused the child "mortal pain." Dr. Davies further opined that "[i]t is not possible to produce this type of a burn with spilling water."

Los Angeles Police Detective Connie Castruita investigated the incident. At the victim's residence, she examined the bathtub and filled it with hot water. With a thermometer she determined the temperature to be 122? ; she also placed her hand in the water for "just a few seconds," which caused her skin to turn red. The victim's grandmother, Emma Stokes, also reported to the police that she found "some burned skin in the tub" two days after her granddaughter's injuries.

Based upon her investigation, Detective Castruita and her partner arrested appellant for child abuse and transported him to jail. En route he related to the officers that he had been cooking potatoes and had accidently spilled some water on the victim, who was on the floor. When the officers indicated this was inconsistent with the physical evidence, he gave them a second explanation: He was holding the victim in his arms while cooking at the stove. She kicked a pot of boiling water, which flew back and burned her; he then accidently dropped her onto more hot water on the floor. Upon arrival at the police station for booking, appellant told yet a third version of the events, which also was inconsistent with the physical evidence.

ISSUE PRESENTED

The sole issue presented is whether involuntary manslaughter constitutes a serious felony within the meaning of Penal Code section 667. We hold that it may if the prosecution pleads and proves the defendant "inflict[ed] great bodily injury" in committing the offense. (Pen.Code, § 1192.7, subd. (c)(8).)

DISCUSSION

PENAL CODE SECTION 667² provides for a five-year enhancement upon conviction of a serious felony when the defendant also has suffered a prior conviction for a serious felony. ³ "Serious felony" is defined by reference to section 1192.7, subdivision (c), which lists specific crimes as well as certain circumstances for which the enhancement shall be imposed. ⁴

No reviewing court has yet ruled on the precise question of whether a current conviction for involuntary manslaughter can constitute a serious felony despite its non-enumeration as such in section 1192.7, subdivision (c). (But see People v. Cook (1984) 158 Cal.App.3d 948, 205 Cal.Rptr. 105.) However, in People v. Equarte (1986) 42 Cal.3d 456, 229 Cal.Rptr. 116, 722 P.2d 890, the California Supreme Court examined an analogous question of whether assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) may invoke the five-year enhancement notwithstanding its omission from Penal Code section 1192.7, subdivision (c). The Supreme Court answered that question in the affirmative. It held that the provisions of section 667 obtain if the prosecution establishes the defendant "personally used a dangerous or deadly weapon," thus making the crime a "serious felony" under one of the more general classifications of section 1192.7, subdivision (c), relating to the manner of committing the offense rather than the specific offense itself. (Pen.Code, § 1192.7, subd. (c)(23).) We are persuaded the analysis in Equarte applies with equal logic to the legal and factual issues before us; and we reach a similar conclusion: While not specified as a serious felony, involuntary manslaughter may come within the purview of section 667 if the defendant "personally inflict[ed] great bodily injury" in the commission of the crime. (Pen.Code, § 1192.7, subd. (c)(8).)

Since Equarte is dispositive, we review the opinion in some detail: The defendant was charged with two counts of assault with a deadly weapon. (Pen.Code, § 245, subd. (a)(1).) In a separate paragraph, he was further charged with having been previously convicted of a "serious felony" within the meaning of sections 667 and 1192.7, subdivision (c)(25), attempted robbery. However, "[t]he complaint did not explicitly allege either generally or by reference to any specific provision of section 1192.7, subdivision (c), that [his] current offenses were 'serious felonies' ..., and it contained no allegation that [he] had 'personally used a dangerous or deadly weapon' in the current offenses." ( People v. Equarte, supra, 42 Cal.3d at p. 459, 229 Cal.Rptr. 116, 722 P.2d 890.)

The jury found the defendant guilty of one count of assault with a deadly weapon; and the facts established that he acted alone in perpetrating the crime. (Id., at p. 467, 229 Cal.Rptr. 116, 722 P.2d 890.) At sentencing, the trial court imposed a five-year enhancement pursuant to sections 667 and 1192.7, subdivision (c)(23), apparently finding that the defendant's "personal use" of a weapon had been adequately established by the trial testimony and that a more explicit pleading of the basis for the enhancement was unnecessary. (Id., at p. 460, 229 Cal.Rptr. 116, 722 P.2d 890.)

In reviewing the propriety of the sentence, the Supreme Court first reaffirmed its conclusion in People v. Jackson (1985) 37 Cal.3d 826, 831-832, 210 Cal.Rptr. 623, 694 P.2d 736, that section 1192.7, subdivision (c), does not confine its enumeration of serious felonies to "specific, discrete offenses." (People v. Equarte, supra, 42 Cal.3d at pp. 463-464, 229 Cal.Rptr. 116, 722 P.2d 890.) Rather, the statute "is an amalgam of different elements." ( People v. Jackson, supra, 37 Cal.3d at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.) Accordingly, " 'the enhancement provisions ... refer to the criminal conduct described therein, not to specific criminal offenses and thus these provisions apply whenever the prosecution pleads and proves the specified conduct....' [Citation.]" (People v. Equarte, supra, 42 Cal.3d at pp. 463-464, 229 Cal.Rptr. 116, 722 P.2d 890, quoting People v. Arwood (1985) 165 Cal.App.3d 167, 174-175, 211 Cal.Rptr. 307.)

From the foregoing analysis, the court determined that "[b]y incorporating section 1192.7, subdivision (c)(23), into section 667, the drafters evidenced their conclusion that a defendant who 'personally uses a dangerous or deadly weapon' in the commission of a felony should be classified as a 'serious' felon and should be subject to an additional five-year enhancement if he has previously been convicted of a serious felony." ( People v. Equarte, supra, 42 Cal.3d at p. 464, 229 Cal.Rptr. 116, 722 P.2d 890.) Consequently, "under subdivision (c)(23), 'any felony'---including assault with a deadly weapon---may be found to constitute a serious felony if the prosecution properly pleads and proves that defendant personally used a deadly or dangerous weapon in the commission of the offense." (Id., at p. 465, 229 Cal.Rptr. 116, 722 P.2d 890.) Since the trial evidence established that the enhancement applied to defendant Equarte, the sentencing court properly augmented his punishment by five years notwithstanding the possible uncertainty created by the prosecution's failure to specify the basis for declaring the current offense a serious felony within the meaning of section 667. (Id., at pp. 466-467, 229 Cal.Rptr. 116, 722 P.2d 890.)

The manifest correspondence between subdivision (c)(23) and subdivision (c)(8) dictates a similar resolution of the case at bar. Although arguably dictum, we find particularly compelling the Supreme Court's conclusion "that in the case of the categories---like subdivision (c)(23)---that apply to...