Filed 1/27/20 P. v. Ernst CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

DOUGLAS CARTER ERNST,

Defendant and Appellant.

C082768 and C085532

(Super. Ct. No. P15CRF0124)

A jury convicted defendant Douglas Carter Ernst of elder abuse of his mother Louise under circumstances and conditions likely to produce great bodily injury or death and found true an allegation that in the commission of that crime, Louise was over 70 years old and suffered great bodily injury. The trial court sentenced defendant to nine years in prison and ordered him to pay the trustee of his mother’s family trust $64,840 in restitution.

Defendant now contends the trial court (1) failed in its sua sponte duty to instruct the jury with CALCRIM No. 3162 [great bodily injury: age of victim (Pen. Code, § 12022.7, subds. (c) & (d))], (2) erred in refusing to instruct on mistake of fact, (3) improperly refused to instruct on accident, and (4) erred in ordering defendant to pay victim restitution. Regarding the first and the last contentions, defendant alternatively asserts ineffective assistance of counsel.

We conclude (1) the trial court had no duty to instruct with CALCRIM No. 3162, (2) the trial court did not err in refusing to instruct on mistake of fact, (3) even if the trial court erred in refusing to instruct on accident, there was no prejudice, and (4) defendant forfeited his appellate contention regarding victim restitution. Regarding defendant’s ineffective assistance of counsel claims, we need not address ineffective assistance as to his first contention because defendant’s argument fails on the merits, and he has not established ineffective assistance of counsel in relation to his last contention. We will affirm the judgment.

BACKGROUND

Defendant lived with his 88-year-old mother Louise and he was her sole caregiver. When paramedics went to the home in response to a 911 call, they found trash and clutter in the home and spoiled food in the refrigerator. There was blood, urine and feces on Louise’s bed, pillow, sheets and carpet. Louise lay naked on the bed with dried vomit on her face. She was emaciated and had bruises in different stages of healing. A laceration on her heel oozed blood. Defendant reported that Louise slipped in the bathroom the prior day.

Louise was admitted to a hospital. She had a urinary tract infection, encephalopathy (confusion related to infection), severe dehydration, and possible pneumonia. She was malnourished and septic and there was damage to her kidneys, liver and heart. The doctor who treated Louise at the hospital described her condition as critically ill with life-threatening injuries.

Wound care nurse Karen Dax treated Louise in the hospital. She opined that Louise had sustained extensive injuries and would have been in tremendous pain. Louise had bruises, deep skin tears on her arms and legs, a pressure ulcer on her sacrum, damage to her heels, abrasions and a rash on her left thigh, and incontinence-associated dermatitis in her perineal area and buttocks caused by urine and feces contact. The skin on Louise’s right heel had turned black, indicating dead tissue. The pressure ulcer on her sacrum was the most serious injury. A pressure ulcer is an injury caused by lack of oxygen such as through immobility. Dax opined that the pressure ulcer on Louise’s sacrum took at least one or two weeks to develop. Left untreated, a pressure ulcer can lead to infection or sepsis. Dax opined that, although a patient can get a pressure ulcer even with good care, Louise would not have gotten the type of pressure ulcer to her sacrum if she had received good care.

Another wound care nurse who treated Louise in the hospital opined that the scattered bruising and lesions on Louise’s right hip and thigh usually took a little time to develop. She opined the wound to Louise’s right heel appeared to be several weeks old and a skin tear on Louise’s right shin was several days old. She opined that the number, size, extent, age, and location of Louise’s various wounds were not consistent with a fall; instead, the wounds indicated that Louise was in one position for a prolonged period of time.

Louise received care from hospice nurses and a caregiver at a board and care facility after she left the hospital. She continued to be treated for her wounds, the most serious of which remained the injury to her sacral area.

Defendant told Detective Simon Brown that he lived with Louise, took care of her finances, and was her caregiver. He bathed Louise, prepared her meals and helped her get around the house. Defendant said Louise fell while using the restroom and the skin on her arm tore when he picked her up. Louise was sore but was able to use the walker. However, she could not move the next morning. Defendant said he waited before calling 911 because Louise initially said she was fine and that she wanted to wait.

Defendant’s medical expert, Dr. Robert Lawrence, opined that there was no evidence of inflicted trauma or intentional injury and Louise’s injuries were consistent with normal care circumstances in a patient like her. He opined that some of Louise’s injuries could be from a fall, and that being handled by emergency personnel could be factor in the skin disruptions. Dr. Lawrence said the pressure ulcer on Louise’s sacrum had been there weeks and maybe even months, but he could not say it was the result of negligence. He conceded that Louise was not receiving optimal care.

The jury convicted defendant of elder abuse under circumstances and conditions likely to produce great bodily injury or death (§ 368, subd. (b)(1)) and found true the allegation that Louise was over 70 years old and suffered great bodily injury. The trial court sentenced defendant to nine years in prison and ordered him to pay the trustee of his mother’s family trust $64,840 in restitution.

DISCUSSION

I

Defendant contends the trial court failed in its sua sponte duty to instruct the jury with CALCRIM No. 3162 [great bodily injury: age of victim (§ 12022.7, subds. (c) & (d))]. We conclude the trial court had no such duty.

Count 1 of the first amended information charged defendant with elder abuse in violation of section 368, subdivision (b)(1), and it further alleged, pursuant to section 368, subdivision (b)(2), that in the commission of the elder abuse, the 88-year-old victim Louise suffered great bodily injury as defined in section 12022.7. Section 368, subdivision (b)(2)(B) authorizes a five-year sentence enhancement if a victim 70 years of age or older suffers great bodily injury as defined in section 12022.7. Section 12022.7, subdivision (f), defines great bodily injury as “a significant or substantial physical injury.” The jury found true the section 368, subdivision (b)(2) enhancement allegation and the trial court imposed the five-year enhancement pursuant to section 368, subdivision (b)(2)(B).

Defendant asserts on appeal that for a section 368, subdivision (b)(2) enhancement to be applicable, the jury must determine if the defendant personally inflicted great bodily injury. In support of this proposition, he cites People v. Lee (2003) 31 Cal.4th 613, 631, People v. Cole (1982) 31 Cal.3d 568, 571, and People v. Ramirez (1987) 189 Cal.App.3d 603, 627. But those decisions are inapposite because they did not involve a section 368, subdivision (b)(2) enhancement. Rather, they referenced sections 12022.7 and 12022.8, statutes with language quite different from section 368, subdivision (b)(2). For example, section 12022.7, subdivisions (c) and (d) contain the words “personally inflicts,” whereas section 368, subdivision (b) includes the word “permits.”

There is also no merit to defendant’s argument that the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 3162. CALCRIM No. 3162 applies to enhancements charged under section 12022.7, subdivisions (c) and (d), but in this case defendant’s enhancement was charged under section 368, subdivision (b)(2), not section 12022.7, subdivisions (c) and (d). The trial court did not have a duty to give an instruction that did not apply.

II

Defendant also claims the trial court erred in refusing to instruct on mistake of fact. He requested CALCRIM No. 3406 [mistake of fact], and his trial counsel argued the instruction was supported by evidence that defendant applied A&D ointment to Louise’s sacrum and that barrier cream is a treatment. The trial court refused to give the instruction, however, saying there was no evidence defendant reasonably and mistakenly believed a fact regarding use of the ointment.

A mistake of fact negates the requisite mental state for a crime. (§ 26, subd. Three; People v. Givan (2015) 233 Cal.App.4th 335, 345.) The mental state required for elder abuse in violation of section 368, subdivision (b)(1) is criminal negligence. (People v. Medlin (2009) 178 Cal.App.4th 1092, 1102.) Criminal negligence involves “ ‘aggravated, culpable, gross, or reckless conduct, which is such a departure from the conduct of an ordinarily prudent person under the same circumstances as to demonstrate an indifference to consequences or a disregard of human life.’ ” (Id. at p. 1103.) An objective standard applies; the question is whether a reasonable person in defendant’s position would have been aware that the defendant’s act would create a high risk of death or great bodily harm. (People v. Valdez (2002) 27 Cal.4th 778, 783 (Valdez); Medlin, at p. 1103.) The defendant’s subjective awareness or belief is irrelevant. (Medlin, at p. 1103; see Valdez, at pp. 781, 790.) Accordingly, mistake of fact is not a defense to the section 368 crime in this case. (See Givan, at pp. 345-348 [the defendant was not entitled to a mistake of fact instruction where the mens rea applied an objective standard].)

Defendant’s contention lacks merit.

III

In addition, defendant asserts the trial court improperly refused to instruct on accident. Defendant requested CALCRIM No. 3404 [accident], and his trial counsel argued the instruction was supported by defendant’s statement to Detective Brown that a skin tear on Louise’s arm resulted from defendant lifting her up after she fell off the toilet. The prosecutor objected to the instruction, arguing the evidence showed a continuous course of criminal negligence and a single unintended injury did not negate the course of conduct. The trial court agreed with the prosecutor and declined to give the instruction.

The defense of accident asserts that the defendant acted without the mental state necessary for the crime. (People v. Anderson (2011) 51 Cal.4th 989, 996-998 (Anderson).) CALCRIM No. 3404 would have instructed the jury that defendant was not guilty of elder abuse if he acted or failed to act accidentally without criminal negligence, and the jury could not find defendant guilty of elder abuse unless it was convinced beyond a reasonable doubt that defendant acted with criminal negligence.

Even if the trial court erred in refusing to give the instruction on accident, no prejudice resulted. The trial court instructed the jury that in order to convict defendant of elder abuse, the People must prove defendant was criminally negligent. The trial court defined criminal negligence as something more than carelessness, inattention or a mistake in judgment, and told the jury a person acts with criminal negligence when he acts in a reckless way that creates a high risk of death or great bodily harm and a reasonable person would have known that acting in that way would create such a risk. The jury convicted defendant of elder abuse, necessarily finding that defendant acted with criminal negligence and not by accident. (People v. Jones (1991) 234 Cal.App.3d 1303, 1314-1316, disapproved on other grounds in Anderson, supra, 51 Cal.4th at p. 998, fn. 3; see Valdez, supra, 27 Cal.4th at p. 790 [conduct prohibited by any statute requiring criminal negligence is not accidental, but a gross departure from the conduct of an ordinarily prudent person]; People v. Wooten (1996) 44 Cal.App.4th 1834, 1849.)

IV

Finally, defendant argues the trial court erred in ordering defendant to pay victim restitution. He asserts there was no evidence the claimed expenses were caused by his commission of elder abuse. We agree with the People that defendant forfeited this contention because he did not object to the restitution order in the trial court.

Defendant counters that he did not forfeit the issue because the award was unauthorized and the issue presents a pure question of law. He is wrong on both points. An unauthorized sentence is one which could not lawfully have been imposed under any circumstances in the particular case. (People v. Scott (1994) 9 Cal.4th 331, 354.) But the victim restitution award defendant challenges is not an unauthorized sentence because the award could be lawfully imposed under circumstances showing that the costs were caused by the conduct for which defendant was convicted. Whether the costs on which the award was based were the result of defendant’s criminal conduct is a question of fact and, therefore, cannot be raised for the first time on appeal. (People v. Roberts (1992) 2 Cal.4th 271, 320, fn. 11 [question of proximate cause is for the jury unless undisputed evidence reveals a cause was so remote that a court may properly decide no rational trier of fact could find the needed nexus]; People v. Harris (1975) 52 Cal.App.3d 419, 427.) Accordingly, defendant’s claims are forfeited. (People v. Brasure (2008) 42 Cal.4th 1037, 1075; People v. Mays (2017) 15 Cal.App.5th 1232, 1237-1238 (Mays).)

Anticipating forfeiture, defendant alternatively asserts ineffective assistance of counsel, which requires him to prove (1) that his trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) If defendant makes an insufficient showing on either of those components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland, at p. 687.) The record must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, defendant would have obtained a more favorable result. (Maury, at p. 389; People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland, at pp. 693-694.)

Here, defendant does not show it is reasonably probable he would have obtained a more favorable result had his trial counsel objected. (Mays, supra, 15 Cal.App.5th at p. 1238.)

A person who suffers loss as a result of criminal activity has the right to restitution from the person convicted of the crime causing the loss. (Cal. Const., art. I, § 28, subd. (b)(13); § 1202.4, subds. (a)(3)(B), (f).) Restitution “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.” (§ 1202.4, subd. (f)(3).) We broadly and liberally construe a victim’s right to restitution. (People v. Mearns (2002) 97 Cal.App.4th 493, 500.)

A defendant has the right to a hearing to dispute the determination of the amount of restitution. (§ 1202.4, subd. (f)(1).) A trial court may consider a victim’s testimony or other statement of the amount of loss as prima facie evidence of loss. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320; People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172; People v. Millard (2009) 175 Cal.App.4th 7, 26.) Once a prima facie showing of the victim’s loss is made, the burden shifts to the defendant to demonstrate that the amount of loss is other than that claimed by the victim. (Chappelone, at p. 1172; Millard, at p. 26.) We review the trial court’s restitution order under the abuse of discretion standard. (People v. Giordano (2007) 42 Cal.4th 644, 663.) Where there is a factual and rational basis for the restitution order, no abuse of discretion will be found. (Holmberg, at p. 1320; Millard, at p. 26.)

Betty Henry, the trustee of Louise’s family trust, submitted an itemized declaration requesting restitution in the amount of $64,840 from defendant. The declaration was prima facie evidence of Louise’s loss, and defendant’s appellate briefs do not show how he was prejudiced by his trial counsel’s failure to object to the restitution order. Accordingly, his claim of ineffective assistance fails.

DISPOSITION

The judgment is affirmed.

/S/

MAURO, Acting P. J.

We concur:

/S/

DUARTE, J.

/S/

HOCH, J.