Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. FSB701531 of San Bernardino County. Annemarie G. Pace, Judge.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., Lilia E. Garcia, and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
A jury found defendant Ebone Leroy East guilty of attempted corporal injury to a spouse (count 1; Pen. Code, §§ 664, 273.5, subd. (a)), a lesser included offense of the charge of corporal injury to a spouse, misdemeanor assault (count 2; § 240), a lesser included offense of the charge of assault by means likely to produce great bodily injury, and misdemeanor cruelty to a child (count 5; § 273a, subd. (b)). The jury also found true an allegation of a prior conviction under the “Three Strikes” law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) He was sentenced to an aggregate term of four years six months.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) he was deprived of his statutory and due process rights to challenge his conviction with a motion for new trial; (2) the evidence is insufficient to sustain the conviction for child endangerment; and (3) the abstract of judgment erroneously refers to a sentence enhancement under section 667, subdivision (a). We disagree with the first two arguments and agree with the third. Accordingly, we affirm the judgment and direct the trial court to correct the abstract of judgment.
II. FACTUAL SUMMARY
In May 2007, defendant and Jane Doe had been married for approximately seven years. They had three children together. Doe had another child, B.W., from a previous relationship. B. was nine years old at that time. B. had known defendant for almost her entire life and referred to him as “daddy.” The family lived in a trailer home in Yucaipa.
In the evening of May 1, 2007, defendant was in his bed asleep. Doe left the trailer to get her children, who were playing outside. She was gone only a couple of minutes. Her four children and three of their friends came back to their home and began playing video games in a back room.
Doe went into the bedroom where defendant was awake and sitting on the edge of the bed. Defendant began arguing with Doe; he accused her of cheating on him and called her a “stupid fucking bitch.” He grabbed Doe by her throat. While holding onto her neck, he walked or pushed Doe backward through the trailer. Doe was screaming. Defendant then pushed or threw her to the floor. She was panicking and having a hard time breathing. It felt to Doe like defendant’s grip on her neck was cutting off the flow of oxygen.
Defendant called for one of the children to bring him a hammer. This scared Doe and made her think that defendant was going to hit her in the head with the hammer. Doe told defendant she would call the police. He told her he would kill her or get someone to do it if she turned him in.
From her position on the floor, Doe could see the children looking at her and watching. Doe or defendant, or both of them, told the children to get out of the house. The children ran out sreaming.
When defendant loosened his grasp, Doe got up and ran out the door after the children. Defendant got into his car and drove away. Doe went to a neighbor’s house and called 911.
B. was approximately 11 years old at the time of trial. She testified she saw defendant slap Doe in the face, grab her by the neck, and throw her to the ground. She said she felt sad as it happened, was scared, and did not like seeing her mother being treated that way.
A sheriff’s deputy responded to the 911 call and met with Doe. Doe was hysterical, crying, yelling, and talking quickly. Doe told the deputy that defendant had grabbed her by the neck, pushed her to the back of the trailer, threatened to kill her, and threw her to the ground. The deputy observed some redness to Doe’s neck and upper chest area that was consistent with Doe’s description of the incident.
The deputy interviewed B. According to the deputy, B. appeared to be frightened and was “hanging on to her mother.” B. told the deputy that defendant had his hands around Doe’s neck, threw her to the ground, and slapped her.
III. ANALYSIS
A. Request to File a Motion for New Trial
Defendant was represented by counsel at the sentencing hearing. His counsel told the court there was no legal cause why sentence could not be pronounced. After denying defendant’s motion to reduce the felony on count 1 to a misdemeanor, the court pronounced sentence. The court then informed defendant of his right to appeal and asked defendant if he had any questions. The following colloquy then took place:
“THE DEFENDANT: Yes. Can I file a motion pro[.] per[.] for a new trial?
“THE COURT: That’s kind of late. I just sentenced you.
“THE DEFENDANT: Can I still file a motion for a new trial?
“THE COURT: You might have spoken up before now. So you want to go pro[.] per[.] at this point and file
“THE DEFENDANT: A new trial motion.
“THE COURT: Give me a second.
“THE DEFENDANT: I would like to stay the sentence but file a new trial motion.
“THE COURT: What?
“THE DEFENDANT: Continue the sentence, but also file a new motion.
“THE COURT: I understand.”
The court then turned its attention to another matter pending in the courtroom and took a brief recess. When the session resumed, the court told defendant: “I have done a little research. Your motion for new trial is untimely because I have already pronounced judgment. [¶] If you feel that some of your rights were violated, you can bring that up with your attorney through the appellate process. Okay?” Defendant responded, “Okay.” The court indicated that it relied on People v. Taylor (1967) 250 Cal.App.2d 367 (Taylor) in denying defendant’s request.
On appeal, defendant contends the court’s ruling deprived him of his statutory and due process rights to file a motion for new trial. We disagree.
A motion for a new trial in a criminal case must be made orally and the defendant must specify the grounds relied upon. (People v. Jaramillo (1962) 208 Cal.App.2d 620, 626 (Jaramillo); Taylor, supra, 250 Cal.App.2d at p. 372.) “Otherwise, the right to make the motion is waived.” (Taylor, supra, at p. 372; People v. Grake (1964) 227 Cal.App.2d 289, 292 (Grake).) In addition, a motion “for a new trial must be made and determined before judgment....” (§ 1182.) If a defendant makes a timely motion for a new trial and the trial court refuses to hear the motion, the defendant “shall be entitled to a new trial.” (§ 1202.) However, if the motion is made after judgment, the court may not hear or grant the motion. (People v. Hales (1966) 244 Cal.App.2d 507, 511 (Hales); Taylor, supra, at p. 372.) Moreover, the right to move for new trial is waived if defendant, through counsel, informs the court prior to sentencing that there is no legal cause why judgment cannot be entered. (Hales, supra, at p. 513; Taylor, supra, at p. 372.)
Although the court may not ordinarily consider or grant a motion for new trial after judgment is pronounced, the trial court may vacate or set aside the judgment and thereafter entertain the motion. (Jaramillo, supra, 208 Cal.App.2d at p. 627; Hales, supra, 244 Cal.App.2d at p. 511.) Defendant relies heavily on Jaramillo to support his argument. In Jaramillo, the defendant asked the court after the pronouncement of sentence “if there is any possible way I can make a motion for a new trial?” (Jaramillo, supra, at p. 625.) The court said he could. (Id. at pp. 625-626.) The defendant’s counsel then asked for a stay of execution for one week to prepare the motion, which the court granted. (Id. at p. 626.) The defendant thereafter filed a written motion for new trial. (Ibid.) At a subsequent appearance, the court informed the defendant that it had “‘no authority to grant the motion for a new trial.... So the motion for a new trial is denied.’” (Ibid.)
On appeal, the Court of Appeal noted the rules that a motion for new trial must be made before judgment and that the Penal Code “does not empower the court to grant a motion for new trial after judgment.” (Jaramillo, supra, 208 Cal.App.2d at p. 626 .) However, the court reversed the judgment, explaining: “In this case it appears that, at the time sentence was pronounced, appellant expressed his desire to make a motion for a new trial and the judge expressed willingness to give him a week’s time within which to prepare. The fact that judgment had been pronounced orally was not a bar because the judgment would not be effective until entered by the clerk. Thus when appellant spoke up promptly, as he did, the trial court could have vacated the judgment prior to its entry. [Citation.] The trial court’s failure to take that step was apparently an inadvertence, for the colloquy between appellant and the court [at the time of sentencing] indicates a mutual intention that the motion would be prepared, made, and ruled upon a week hence. [¶] When appellant came back into court... with his motion prepared, it was too late because the judgment had been entered. The court was then obliged to inform appellant that ‘I have no authority.’ It appears that appellant has been deprived of a substantial right because of the inadvertent failure of the trial court to vacate the judgment prior to entry, so as to keep alive his power to rule upon the motion which he apparently intended to hear upon its merits. Justice requires that the judgment be vacated with directions to hear and determine the motion for a new trial.” (Id. at p. 627.)
A similar result was reached in Grake, supra, 227 Cal.App.2d 289. After sentencing, the defendant asked if he could move for a new trial. (Id. at p. 291.) The court responded, “Yes.” (Ibid.) A future date was selected for the hearing on the motion. (Ibid.) Prior to the date of the hearing, the sentence was entered in the court’s minutes. (Ibid.) The trial court denied the motion based on the assumption that the entry of the judgment deprived it of jurisdiction to hear it. (Id. at p. 293.) Although the Court of Appeal concluded that the court’s “understanding of the law was correct, ” it reversed the judgment based on Jaramillo and directed the trial court to consider the new trial motion. (Grake, supra, at pp. 292-293.)
The rule established by Jaramillo and followed in Grake was explained by the Court of Appeal in Hales: “The trial court has inherent power to modify or set aside its pronounced judgment if it has not been entered into the minutes of the court and if execution of its terms has not commenced. [Citations.] Consequently where the court after pronouncing, but before entry of judgment, is advised of the defendant’s desire to present a motion for new trial, and expresses a willingness to entertain it, a subsequent refusal to hear the motion because it was tardy will be reversed because of the trial court’s inadvertence in failing to set aside the judgment so it could properly entertain the motion.” (Hales, supra, 244 Cal.App.2d at p. 511 .) The Jaramillo rule, therefore, arises from the court’s inherent power to set aside a judgment and is applied when the court indicates its intention to hear a motion for new trial but inadvertently allows judgment to be entered without first setting aside the pronounced judgment.
Jaramillo and Grake were distinguished in Taylor, the case relied upon by the trial court. In Taylor, the court asked whether legal cause existed why judgment and sentence could not be pronounced and the defendant’s attorney said there was none. (Taylor, supra, 250 Cal.App.2d at p. 372.) After the court pronounced sentence, the following colloquy occurred: “‘THE DEFENDANT: Your Honor, I want to present this notice of appeal. THE COURT: Just file it with the clerk. THE DEFENDANT: I would like to ask for a new trial too. THE COURT: The defendant is remanded. The appeal can be filed and we will take care of it.’” (Ibid.) On appeal, the defendant argued that the court erred in refusing to hear his motion for new trial. (Id. at p. 370.) The Court of Appeal rejected the claim. After setting out the rules that a motion for new trial must specify the grounds for new trial and cannot be heard after judgment, the court explained: “Appellant’s counsel, by stating that no legal cause existed, waived the right to make a motion for a new trial. [Citation.] Appellant’s own statement indicates no more than a desire to move for a new trial and was not in itself a motion. This is not the same as the act of making a motion. Independent of its ambiguity and the impropriety of its source since appellant had counsel acting in his behalf, such a motion, assuming it was made, was untimely.... [T]here was no motion properly before the court before pronouncement of judgment and nothing for it to determine.” (Id. at p. 372.)
The Taylor court then distinguished Jaramillo and Grake: “Unlike Jaramillo, supra, there was no indication by the court that it was ‘willing’ to hear the motion but simply failed to take the procedural step of vacating oral judgment prior to entry in the minutes. Unlike Grake, supra, there is nothing to show that the parties and the court believed the court to be without jurisdiction to hear the motion because sentence had already been pronounced.” (Taylor, supra, 250 Cal.App.2d at pp. 372-373.)
Applying these principles here, we first note that defendant’s counsel’s statement that there was no legal cause at the outset of the sentencing hearing waives the right to move for a new trial. (Taylor, supra, 250 Cal.App.2d at p. 372; Hales, supra, 244 Cal.App.2d at p. 512.) Second, defendant did not make a motion for a new trial at the hearing; rather, he asked if he could still file a motion and said he “would like to... file a new trial motion.” Nor did he state any grounds for a motion. As with similar statements by the defendants in Taylor and Grake, such expressions merely indicate a desire to move for a new trial in the future; they do not constitute a motion for new trial. (See Taylor, supra, at p. 372; Grake, supra, 227 Cal.App.2d at pp. 291-292.) Third, to the extent defendant’s statements could be construed as a motion for new trial, the motion was untimely because it was made after sentence was pronounced. (§ 1182.) As in Taylor, “there was no motion properly before the court before pronouncement of judgment and nothing for it to determine.” (Taylor, supra, at p. 372.) In light of defendant’s waiver of the right to move for new trial (through counsel’s statement of no legal cause), the absence of an actual motion for new trial, and (to the extent defendant’s statements could be construed as constituting a motion), its untimeliness, the court’s decision was not error.
The rule applied in Jaramillo does not apply here. In Jaramillo, the court told the defendant he could make a motion for a new trial and granted a stay of execution of the sentence for that purpose. (Jaramillo, supra, 208 Cal.App.2d at pp. 625-626.) By the time the motion was subsequently presented, judgment had been inadvertently entered, thereby depriving the court of the power to grant a new trial. (Id. at p. 627.) Under those unusual circumstances, the Court of Appeal concluded that “[j]ustice require[d] that the judgment be vacated” so that the trial court could hear and decide the motion. (Ibid.) As the Hales court indicated, Jaramillo’s rule applies in a narrow situation: when the request to file a motion for new trial is made after the oral pronouncement of judgment and before judgment is entered, the request is deemed to be a motion to set aside the pronounced judgment to allow a hearing on a motion for new trial, the court “expresses a willingness to entertain” the motion, but the court inadvertently allows judgment to be entered, depriving the court of the power to order a new trial. (Hales, supra, 244 Cal.App.2d at p. 511, italics added.) Here, even if defendant’s statements could be construed as a request to vacate or set aside the judgment so that he could make a motion for new trial in the future, the court never expressed any willingness to hear such a motion and there is nothing to suggest the subsequent entry of judgment was inadvertent. Accordingly, Jaramillo has no application in this case. We thus reject defendant’s argument.
Because we hold the court did not violate defendant’s state law right to file a motion for new trial, his further claim that the violation deprived him of his right to due process necessarily fails. (See People v. Cornwell (2005) 37 Cal.4th 50, 102, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
B. Sufficiency of the Evidence of Child Endangerment
Defendant was convicted of misdemeanor child endangerment under section 273a, subdivision (b), based upon the theory that defendant inflicted mental suffering on B. because B. saw defendant attack her mother. Defendant contends the evidence is insufficient to support the conviction of the crime. We disagree.
When reviewing a challenge to the sufficiency of the evidence, an appellate court must view the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence to support the verdict. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence is evidence that is of ponderable legal significance; reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson, supra, at p. 576.) “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
Section 273a, subdivision (b) provides, as is relevant here: “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... is guilty of a misdemeanor.” A “parent may be convicted of misdemeanor child endangerment under section 273a, subdivision (b), by engaging in serious domestic violence against the other parent while aware that his or her child is at the scene.” (People v. Burton (2006) 143 Cal.App.4th 447, 450 (Burton).) Whether the child suffers mentally is a question of fact.
The statute “encompasses a wide variety of situations and includes both direct and indirect conduct.” (Burton, supra, 143 Cal.App.4th at p. 454.) Here, the prosecution’s theory was that by attacking Doe in B.’s presence, defendant willfully inflicted unjustifiable mental suffering on B. We hold that the evidence was sufficient to find such suffering.
B. testified that she saw her “dad” hit her mother, throw her to the floor, and grab her by the neck. Although B. did not testify as to what she heard, the jury could have reasonably concluded that B. heard Doe’s screams, defendant’s threat to kill Doe, and defendant’s direction to one of the children to get a hammer. The jury could reasonably believe that a child witnessing such an attack by one parent against the other will suffer mentally from the experience. As the Burton court noted: “Children witnessing [domestic] violence suffer adverse effects similar to victims of direct physical and sexual abuse.” (Burton, supra, 143 Cal.App.4th at p. 456, citing Comment, The Child Witness as a Victim of Domestic Violence: Prosecuting the Batterer Under California’s Child Abuse Statute (1998) 19 J. Juv. L. 196, 197.) In addition, B. testified she felt sad and scared by the incident. To the responding deputy she appeared frightened. The evidence of the attack and of B.’s response to seeing it provide sufficient evidence to support the jury’s finding that defendant willfully inflicted unjustifiable mental suffering on B.
It does not appear from the arguments made on appeal that defendant is asserting the evidence was insufficient to support the element of willfulness. If he is, we would disagree. It is clear from the directions to the children to get out of the house that defendant was aware of their presence during the attack. Engaging in a violent attack with such knowledge establishes the criminal negligence necessary to satisfy the element of willfulness. (See Burton, supra, 143 Cal.App.4th at p. 455.) Nor does defendant assert that the mental suffering was justifiable.
Defendant argues that Burton, which affirmed a conviction under section 273a, subdivision (b), is distinguishable and suggests that the act that is witnessed by the child must involve “serious and brutal domestic violence ending in serious injury or death.” In Burton, the defendant attacked his girlfriend, slashing her face several times, while their eight-year-old son was nearby. (Burton, supra, 143 Cal.App.4th at pp. 454-455.) Although the son did not actually see the attack, he was “on the scene while the attack took place and witnessed its bloody immediate aftermath.” (Id. at p. 454.) The son’s “presence... at the scene of the attack” and the sight of the “the immediate and bloody results of his father’s handiwork on his mother’s face, ” the court concluded, “likely caused... mental suffering.” (Id. at p. 456.) It is true that the physical injuries to Doe in this case are not as severe or “bloody” as those in Burton. However, the act of choking Doe while threatening to kill her was potentially more life-threatening than the attack in Burton. Moreover, it is significant that, unlike the child victim in Burton, B. actually observed the attack itself. We have no doubt that watching while one’s stepfather appears to be choking one’s mother to death is no less likely to cause mental suffering than being “at the scene of the attack” that occurred in Burton.
Defendant contends the evidence does not support the verdict because “there was no evidence that B. suffered any lasting impact, other than the ordinary pain of a child whose parents are not getting along.” We agree with the People’s statement that this characterization unfairly minimizes a “violent attack by [defendant] against [B.]’s mother [that] far exceeded a mere argument or dispute between parents.” Moreover, the statute does not require a “lasting impact”; it requires, in this case, the infliction of unjustifiable “mental suffering.” If there is sufficient evidence of mental suffering, that requirement has been met-even in the absence of long-lasting effects.
C. Abstract of Judgment
The abstract of judgment reflects the imposition of a two-year sentence enhancement pursuant to section 667, subdivision (a). Defendant asserts that this is error and must be corrected. The People agree.
Section 667, subdivision (a) imposes a five-year enhancement for certain enumerated serious felonies when the defendant has a prior conviction for a serious felony. In this case, a section 667, subdivision (a) enhancement was alleged as to counts 3 and 4, but defendant was acquitted of those counts. The only felony offense for which defendant was convicted was the offense of attempted corporal injury to a spouse under count 1. That offense is not one of the enumerated felonies to which section 667, subdivision (a) applies. (See §§ 667, subd. (a)(1), (5), 1192.7, subd. (c).) Thus, not only was a section 667, subdivision (a) enhancement not alleged or proved as to count 1, it could not have been properly alleged. The reference to the section 667, subdivision (a) enhancement, therefore, is an error.
An appellate court has the inherent power to correct any clerical errors in the abstract of judgment to reflect the true nature of the judgment or proceedings. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1183.) Accordingly, we will direct the court to correct the error.
IV. DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment that does not refer to a section 667, subdivision (a) enhancement. The trial court is further directed to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: McKinster Acting P.J., Miller J.