1

Filed 5/31/13 P. v. Brown CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ALVIN E. BROWN,

Defendant and Appellant.

 A134696

 (Contra Costa County 

 Super. Ct. No. 51105592)

PEOPLE,

Plaintiff and Appellant,

v.

ALVIN E. BROWN,

Defendant and Respondent.

 A134697

 (Contra Costa County

 Super. Ct. No. 51105592)

Defendant Alvin E. Brown and the People appeal a judgment following jury trial, 

in which defendant was convicted of several serious felonies and sentenced to a 

determinate prison term totaling over 29 years. Defendant contends substantial evidence 

does not support his conviction for felony child abuse (Pen. Code, § 273a, subd. (a)),1

and further claims the court erred in imposing a consecutive sentence for his conviction 

for false imprisonment by violence (§§ 236, 237, subd. (a)). The People urge the trial 

court erred in striking two of the three strikes alleged and proved against defendant.

We affirm.

 

1 All further statutory references are to the Penal Code.
2

BACKGROUND2

An information filed April 21, 2011—as subsequently amended and presented to 

the jury—charged defendant with the following offenses committed against Erica McCoy 

on October 3, 2010: attempted murder (§§ 187, subd. (a), 664, subd. (a)) (count 1); 

assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2); and false imprisonment by 

violence (§§ 236, 237, subd. (a)) (count 3). Each of these counts included enhancements 

for use of a deadly weapon (§ 12022, subd. (b)(1)) or inflicting great bodily injury (§ 

12022.7, subd. (a)), or both. The information additionally charged defendant with child 

abuse likely to produce great bodily harm (§ 273a, subd. (a)), committed against 

McCoy‘s then four-year-old son, who was present when defendant attacked McCoy. The 

information also included other charges and alleged sentencing enhancements, including 

that defendant had three strikes and two serious prior felonies (§§ 667, 1170.12). 

On October 5, 2011, the jury found defendant guilty of counts 1 through 4. 

Defendant waived jury trial on the prior felonies, which the trial court subsequently found 

to be true. 

Four months later, on February 3, 2012, the trial court sentenced defendant. It 

commenced by partially granting his Romero motion3 and striking two of defendant‘s 

―strikes.‖ It then imposed a total determinate term of 29 years four months: 14 years on 

count 1 (seven-year midterm doubled, plus three years great bodily injury, plus one year 

deadly weapon); stay of sentence on count 2; one year four months on count 3, 

consecutive (one-third the midterm doubled); eight years on count 4, concurrent. 

Defendant and the People each appealed. (See §§ 1237, subd. (a), 1238, subd. 

(a)(10).) 

 

2 We provide only a summary of the case here, and discuss the facts and 

circumstances of the crimes in further sections of this opinion addressing defendant‘s 

arguments on appeal.

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530.
3

DISCUSSION

I. Conviction for Child Abuse

Defendant contends his attack on McCoy was not likely to cause her son great 

bodily injury and therefore the evidence is insufficient to support his conviction for child 

abuse under section 273a, subdivision (a). 

―In determining the sufficiency of the evidence, we review the whole record in the 

light most favorable to the judgment for substantial evidence—that is, evidence which is 

reasonable, credible, and of solid value—such that any rational trier of fact could find the 

allegation true beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 

. . . .)  ̳[We] presume[] in support of the judgment the existence of every fact the trier 

could reasonably deduce from the evidence. [Citations.] The same standard applies 

when the conviction rests primarily on circumstantial evidence. [Citation.]‘ (People v. 

Kraft (2000) 23 Cal.4th 978, 1053 . . . .) If the circumstances reasonably justify the fact 

finder‘s findings, a contrary finding reasonably reconciled with the circumstances does 

not warrant reversal of the judgment. (See People v. Bean (1988) 46 Cal.3d 919, 933 

. . . ; In re George T. (2004) 33 Cal.4th 620, 631 . . . .)‖ (In re L.K. (2011) 

199 Cal.App.4th 1438, 1446.) 

―Section 273a, subdivision (a)  ̳is an omnibus statute that proscribes essentially 

four branches of conduct.‘ ([People v.] Sargent[ (1999)] 19 Cal.4th [1206,] 1215 . . . .) 

These four branches or prongs are:  ̳ ―Any person who, under circumstances or 

conditions likely to produce great bodily harm or death, [1] willfully causes or permits 

any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, 

or [3] having the care or custody of any child, willfully causes or permits the person or 

health of that child to be injured, or [4] willfully causes or permits that child to be placed 

in a situation where his or her person or health is endangered . . . .‖ ‘ (People v. Valdez

(2002) 27 Cal.4th 778, 783 . . . (Valdez).)‖ (In re L.K., supra, 199 Cal.App.4th at 

pp. 1444–1445.) 

―In addressing these four separate types of conduct, our Supreme Court describes 

the second category as  ̳direct infliction‘ and the first, third and fourth categories as 
4

 ̳indirect infliction.‘ (Valdez, supra, 27 Cal.4th at p. 786, italics omitted.) Under Sargent, 

the appropriate mens rea for the second category of direct infliction is general criminal 

intent, similar to battery or assault with a deadly weapon. (Sargent, supra, 19 Cal.4th at 

p. 1220.) Under Valdez, the necessary mens rea for the other three categories of indirect 

infliction is criminal negligence. (Valdez, supra, at p. 789.) In addressing indirect 

infliction, the Valdez court concluded,  ̳criminal negligence is the appropriate standard 

when the act is intrinsically lawful . . . but warrants criminal liability because the 

surrounding circumstances present a high risk of serious injury. Criminal negligence is 

not a ―lessor state of mind‖; it is a standard for determining when an act . . . is such a 

departure from what would be the conduct of an ordinarily prudent or careful person 

under the same circumstances.‘ (Id. at pp. 789–790.) Thus, this standard applies to the 

first, third and fourth prongs of section 273a, subdivision (a), where indirect infliction of 

harm on a child has occurred, such as failing to seek medical treatment, child 

endangerment, or willfully permitting situations that imperil children. (Sargent, supra, at 

p. 1218.)‖ (In re L.K., supra, 199 Cal.App.4th at pp. 1445–1446.)

These authorities dispense with defendant‘s assertion that he could not be 

convicted of felony child abuse because he physically assaulted and injured only McCoy, 

and did not directly harm her four year old son. The statute is ―  ̳ is ―intended to protect a 

child from an abusive situation in which the probability of serious injury is great.‖ 

[Citation.] ―[T]here is no requirement that the actual result be great bodily injury.‖ 

[Citation.]‘ [Citation.]‖ (Valdez, supra, 27 Cal. 4th at p. 784.)

Turning to the evidence, McCoy and her son were visiting defendant at his home, 

when defendant, sitting next to McCoy, suddenly stabbed her in the upper abdomen with 

a knife and then pulled the blade downward to just above her naval. The child was within 

arm‘s reach of McCoy, and her first thought was defendant was trying to kill her in front 

of her son. When defendant pulled the knife out, McCoy‘s ―guts came out‖ and she 

began bleeding. Defendant put the knife down on a TV tray next to McCoy, and then 

forced McCoy into another room and partially closed the door. The boy tried to follow 

his mother, but defendant pushed the child away, and said, ― Get out of here.‘ ‖ McCoy 
5

could hear her son yelling ―Mommy.‖ Although defendant partially tied her hands and 

she was bleeding profusely, McCoy managed to escape through a window. Defendant 

followed her through the window and began beating her. A police officer responding 

soon afterward found the child standing in front of defendant‘s residence, crying. The 

boy pointed to his mother, who by then was lying on her back on the sidewalk. McCoy 

sustained life threatening injuries, and during the two-and-a-half weeks she was in the 

hospital, her mother cared for the child. During that time, ―his personality . . . completely 

changed.‖ He cried a lot, was very quiet, and displayed aggressive temper tantrums. 

This evidence is more than sufficient to establish that defendant ―willfully caused‖ 

McCoy‘s son to ―suffer unjustifiable mental suffering‖ under ―circumstances or 

conditions likely to produce great bodily harm‖ to the child. The four year old was 

essentially in the midst of the knife attack on his mother. He was in arm‘s length of 

McCoy, and defendant could easily have struck the child had he lost his balance himself, 

or been thrown off balance by any effort by McCoy to fight back. Then, defendant put 

the bloodied knife down on a TV table, within easy reach of the four-year old. He then 

knocked the child aside as he forced the bleeding and gutted McCoy into another room, 

leaving the terrified child, calling for his mother, within reach of the knife. 

―The felony child abuse statute  ̳was enacted in order to protect the members of a 

vulnerable class from abusive situations in which serious injury or death is likely to 

occur.‘ ‖ (People v. Toney (1999) 76 Cal.App.4th 618, 622.) Such were the 

circumstances here. (See People v. Pantoja (2004) 122 Cal.App.4th 1, 3, 15–16 

[reversing conviction, but also rejecting section 654 sentencing argument and holding 

defendant convicted of first degree murder and child endangerment after killing his 

girlfriend in the presence of their daughter could be separately punished for murder and 

child endangerment; there was ―no doubt that defendant‘s acts harmed [the daughter]‖ 

and defendant could be ―punished separately for that separate crime‖ of violence].) 

II. Consecutive Sentence for False Imprisonment Conviction

Defendant also contends the trial court abused its discretion in imposing a 

consecutive, rather than concurrent, sentence for his false imprisonment conviction. 
6

Citing California rules of court, rule 4.425, subdivision (a)(3), he asserts ―the false 

imprisonment offense occurred so closely in time to the attempted murder that it was 

committed during a single period of aberrant behavior.‖

Our standard of review is well established. We will not disturb the trial court‘s 

exercise of discretion in sentencing unless, all circumstances being considered, it is clear 

the court decision exceeded the bounds of reason. (People v. Bradford (1976) 17 Cal.3d 

8, 20.)

California Rules of Court, rule 4.425, sets forth ―[c]riteria affecting the decision to 

impose consecutive rather than concurrent sentences . . . .‖ This includes ―whether or 

not: [¶] (1) The crimes and their objectives were predominantly independent of each 

other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or 

[¶] (3) The crimes were committed at different times or separate places, rather than being 

committed so closely in time and place as to indicate a single period of aberrant 

behavior.‖ (Cal. Rules Ct., rule 4.425, subd. (a).) 

The trial court did not abuse its discretion in viewing the attempted murder and 

subsequent false imprisonment as sufficiently separate to warrant consecutive sentences. 

The offenses occurred in different areas of the house, and involved different conduct. As 

discussed above, the defendant, after stabbing McCoy, removed the knife from her gut 

and set it down, took her into a separate room, and there attempted forcibly to bind her 

hands, with partial success, as she bled profusely. The attempted murder may well be 

deemed to have involved conduct and objectives predominantly independent of the false 

imprisonment, and most certainly they involved separate acts of violence. (Cal. Rules of 

Court, rule 4.425(a)(1), (2).) Accordingly, there was no abuse of discretion imposing a 

consecutive sentence.

III. Striking Two of the Three Strikes

Pursuant to section 1385 and in the interest of justice, the trial court struck two of 

the three strikes against defendant. (See Romero, supra, 13 Cal.4th at pp. 529–530.) The 

People urge this was error, in that the trial court based its decision solely on the 
7

―remoteness‖ of the two prior convictions, without considering defendant‘s entire 

criminal history. 

On this sentencing issue, too, we review the trial court‘s decision for abuse of 

discretion. (Romero, supra, 13 Cal.4th at p. 531.) The court based its decision not only 

on the remoteness of the two older convictions, but also their lack of similarity to the 

present offenses. Specifically, the court struck two prior 1985 convictions for robbery 

and attempted robbery, but retained the third strike—a 1989 conviction for assault with 

great bodily injury—because it was similar to the present offenses. While striking the 

robbery priors may be a debatable proposition, we certainly cannot say the trial court‘s 

perspective on the matter ―exceeded the bounds of reason.‖ We therefore conclude there 

was no abuse of discretion.

DISPOSITION

The judgment is affirmed.

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P. J.

_________________________

Dondero, J.