People v. Kinkead

• Decision Date: 22 May 2000
• Docket Number: No. E024597.,E024597.
• Citation: 96 Cal.Rptr.2d 121,80 Cal.App.4th 1113
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Robert KINKEAD, Defendant and Appellant.

96 Cal.Rptr.2d 121

80 Cal.App.4th 1113

The PEOPLE, Plaintiff and Respondent, v. Michael Robert KINKEAD, Defendant and Appellant.

No. E024597.

Court of Appeal, Fourth District, Division 2.

May 22, 2000.

Certified for Partial Publication.^*

Rehearing Denied June 19, 2000.

Review Denied September 13, 2000.^**

Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Esteban Hernandez and Janelle M. Boustany, Supervising Deputy Attorneys General, and A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P.J.

A jury convicted Michael Robert Kinkead of child endangerment (Pen.Code, § 273a, subd. (a))¹ and found true the allegation that it resulted in the victim's death (§ 12022.95). In bifurcated proceedings, Kinkead pled guilty to two counts of possessing methamphetamine (Health & Saf.Code, § 11377, subd. (a)) and one count each of being under the influence of a controlled substance (Health & Saf.Code, § 11550, subd. (a)), possessing 28.5 grams or less of marijuana (Health & Saf.Code, § 11352, subd. (b)), keeping a lost credit card (§ 485) and possessing methamphetamine for sale (Health & Saf.Code § 11378), the latter while on bail (§ 12022.1). He was sentenced to prison for 13 years 4 months and appeals, claiming that the jury was misinstructed, the evidence is insufficient to support his conviction of child endangerment and the true finding/admission of his enhancements should be reversed. We reject his contentions and affirm.

Facts

Kinkead, a regular user of methamphetamine, had gone for days without sleep due to his ingestion of the drug and had also ingested marijuana and a wine cooler. He wanted to sleep when he lay down on the sofa with his 30-pound 3year-old daughter, the victim, on the night of October 13, 1999. The following night, the victim's mother found the child dead under Kinkead's sleeping body and the sofa cushions. The victim had died of asphyxia due to chest compression. The prosecution presented the testimony of a friend of Kinkead's that methamphetamine keeps one who ingests it awake for days at a time; then, the user sleeps for days. The facts of the other offenses are irrelevant to this appeal.

1. Jury Instructions

a. Failure to Instruct on Willfulness²

One of the child endangerment provisions of section 273a, subdivision (a), under which Kinkead was charged, punishes anyone who "under circumstances or conditions likely to produce great bodily harm or death, . .. having the care or custody of any child, ... willfully ... permits that child to be placed in such a situation where his or her person or health is endangered ...."

The jury was instructed that as to this crime there must exist a union of act (or conduct) and criminal negligence. Further, the jury was instructed that section 273a, subdivision (a) prohibited anyone who, "under circumstances or conditions likely to produce great bodily harm or death[,] ... as a result of criminal negligence,[³] permitted the [victim] to be placed in a situation where her person or health was endangered...." The elements of section 273a, subdivision (a) were provided to the jury as a slight restatement of the foregoing.

In relation to the section 12022.95 enhancement alleged in connection with the section 273a, subdivision (a) charge, which the jurors found to be true, the jurors were instructed that the People must prove that, "[a] person having the care or custody of a child ... [¶] ... [u]nder circumstances likely to produce great bodily harm or death ... [¶] ... [p]ermit[ted] the child to be injured or harmed ... and [¶] ... [t]he injury or harm result[ed] in death." As to this allegation, the jury was told that there must exist a union or joint operation of act or conduct and general criminal intent.⁴ Specifically, the jurors were told: "When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful." (Italics added.) This allegation was elsewhere restated for the jury as follows: "[It is alleged that] ... Kinkead[ ] did wilfully[⁵ and unlawfully, under circumstances likely to produce great bodily harm and death, having the care and custody of a child, under circumstances likely to produce great bodily harm and death, permit that child to be injured or harmed which resulted in death...." (Italics added.)

Although not framed by Kinkead as such, the issue here is whether Kinkead was prejudiced by the failure of the instructions given on child endangerment to require that the jury find he willfully permitted the victim to be placed in a situation where the latter's person or health was endangered.⁶ In light of the requirement, set forth above, as to the enhancement allegation that the jury find that Kinkead intentionally permitted the victim to be injured or harmed, and the restatement of that allegation to the effect that Kinkead willfully permitted the victim to be harmed or injured, we find no error.⁷

We disagree with Kinkead's contention that the holding in People v. Sargent (1999) 19 Cal.4th 1206, 81 Cal.Rptr.2d 835, 970 P.2d 409 (Sargent) is relevant to the propriety of the instructions given here. In Sargent, the California Supreme Court rejected the defendant's contention that criminal negligence instructions, rather than general criminal intent instructions, were appropriate for active infliction of injury on a child (versus, as here, child endangerment).⁸ Although dicta, as part of its analysis, the court cited a multitude of other opinions holding that criminal negligence⁹ is required¹⁰ for child endangerment. (Id. at pp. 1216-1219, 81 Cal. Rptr.2d 835, 970 P.2d 409.)¹¹ Even this dicta, however, did not touch on the requirement, which is the true relevant issue here, that the defendant's acts or conduct in permitting the child to be endangered be willful. Section 273a, subdivision (a) expressly requires as much and we do not dispute this. The crucial question here is whether the failure to include the willful requirement as part of the instructions on section 273a, subdivision (a) prejudiced Kinkead, and our conclusion, as stated above, is no. To the extent Kinkead appears to suggest that Sargent stands for the proposition that criminal negligence is not relevant to liability for endangerment under section 273a, subdivision (a), he is entirely incorrect.

b. Failure to Identify the Act Constituting the Offense

The charging document alleged that Kinkead "permit[ted the victim] to be placed in a situation where her person or health was endangered." As stated above, the jury was informed that in order to convict Kinkead of a violation of section 273a, subdivision (a), it had to find that he "permitted [the victim] to be placed in a situation where her person or health was endangered...." In argument to the jury, the prosecutor contended that Kinkead's culpable act was sleeping near the much smaller victim, knowing that he was "crashing" from sleepless days, due to the ingestion of methamphetamine, having also ingested marijuana and a wine cooler. We are at a loss to understand Kinkead's present contention that the prosecutor failed to identify for the jury what the dangerous situation was.

In an effort to show that the argument made by the prosecutor or the instructions given were somehow defective, Kinkead cites a portion of Sargent, a case we have already stated is distinguishable because it deals with active infliction of injury and not child endangerment. This crucial fact aside, Kinkead again misconstrues what the court held in Sargent, supra, 19 Cal.4th 1206, 81 Cal.Rptr.2d 835, 970 P.2d 409. Therein, the court refuted the defendant's contention that a requirement of criminal negligence be grafted onto the active infliction of injury on a child due to the existence of the element of the offense that the defendant's acts be under circumstances or conditions likely to produce great bodily harm. The court explained that this element is not the equivalent of criminal negligence. Sargent makes clear that the intent requirement of section 273a, subdivision (a) applies to the act, not to the circumstances of the offense, which is the above mentioned element.¹² Kinkead fails to cite to any portion of the prosecutor's argument in which she urged the jury to apply the relevant intent element, which is willfulness, to the circumstances of the offense, rather than to the act of permitting the victim to be endangered. In fact, the prosecutor never mentioned willfulness in connection with the charged offense.

Kinkead also now objects, for the first time, to the italicized portion of the statements by the prosecutor during argument: "[To find criminal negligence] we are not going to be looking at what the defendant could foresee, what he did foresee, what he thought would be a consequence of his actions, but you need to put a careful person, ordinary prudent, careful person in his shoes.... The standard is not what he thought.... [The question is] would the consequences of what he did reasonably have been foreseen by a careful, prudent person? [¶] ... In order to answer whether the consequences were foreseeable, here's what you need to look at. Would a careful person have foreseen that him being in the condition that he's in, meth, smoke a joint, drink a wine cooler, up a couple of days, laying [sic ] down with a little girl ... a fraction of his size, on a sofa, knowing he's ready to [crash].... [¹³] Would a careful person have foreseen danger to [the victim]? And the answer is yes, of course."

The instructions given on criminal negligence, with which Kinkead here takes no issue (save that they should not have been given at all, a position we have already rejected) provided: "The facts must be such that the...