People v. Jaramillo

California Court of Appeal Nov 16, 1979 No. Crim. 34541Published

Before: Hastings

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Holding. The court held that the evidence supported the trial court's findings that the defendant's actions were likely to produce great bodily harm, that the victim suffered significant or substantial physical injury, and that the instrument used constituted a deadly weapon.

Issues

Whether the evidence supported a felony conviction under Penal Code section 273a for conduct likely to produce great bodily harm.
Whether the victim's injuries constituted 'great bodily injury' under Penal Code section 12022.7.
Whether Penal Code section 12022.7 enhancement applies to a violation of Penal Code section 273a.
Whether the stick used by the defendant constituted a deadly weapon under Penal Code section 12022, subdivision (b).

Disposition. affirmed

Quotations verified verbatim against the opinion

“For the felony punishment there is no requirement that the actual result be great bodily injury. The statute is intended to protect a child from an abusive situation in which the probability of serious injury is great.”

“A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Clearly it is the trier of fact that must in most situations make the determination.”

“Occurrence of great bodily injury is not necessary to find a violation of the section, therefore it is not an element of the offense.”

Opinion

HASTINGS, J.

Appellant, after waiving trial by jury, was found guilty by the court in two counts of violating Penal Code section 273a,

[833]

subdivision (1) (felony child endangering) and that in the commission of the offenses she used a deadly and dangerous weapon, to wit, a wooden dowel, said use not being an element of the offenses charged, within the meaning of Penal Code section 12022, subdivision (b). The court further found she committed great bodily injury as to her daughter Sheri Banuelos (Pen. Code, § 12022.7) but did not commit great bodily injury as to her other daughter Sonia Banuelos. This appeal is taken from the judgment (order granting probation).

Appellant contends:

1. The injuries sustained by appellant’s children were not sufficiently serious to support the trial court’s finding that her violation of section 273a was “likely to produce great bodily harm” and it was thus improper to find that violation to be a felony rather than a misdemeanor.

2. The injuries sustained by Sheri Banuelos were not sufficiently serious to support the trial court’s finding that appellant inflicted great bodily injury upon her within the meaning of Penal Code section 12022.7.

3. Penal Code section 12022.7 cannot be relied upon to enhance the punishment of a person convicted of a felony violation of Penal Code section 273a for the infliction of great bodily injury is an element of section 273a.

4. The stick with which appellant struck her daughters was not a deadly weapon within the meaning of Penal Code section 12022, subdivision (b).

We view the evidence in the light most favorable to the judgment as is required by the familiar rule governing appellate review.

(People

Henderson,

19 Cal.3d 86, 97 [137 Cal.Rptr. 1, 560 P.2d 1180].)

On March 2, 1978, Vernon Foster, school principal at the school attended by Sheri, observed her in the cafeteria during lunch. She caught his attention because she appeared to have a “look of anguish” on her face. Mr. Foster took no further action at that time but after lunch he again observed Sheri when she was sent to his office possibly by a teacher. He observed that the backs of the child’s hands were swollen and discolored. Sheri recalled that the day before when her mother (ap

People v. Jaramillo

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HASTINGS, J.

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