People v. Braz (57 Cal. App. 4th 1, 1997)

Opinion

ELIA, Acting P. J.

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 firefighters 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) printouts 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: [