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Filed 9/8/14 P. v. Greenway 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Trinity)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JON SCOTT GREENWAY,

Defendant and Appellant.

C075640

(Super. Ct. No. 12F007A)

A jury found defendant Jon Scott Greenway guilty of felony child endangerment 

and possession of a controlled substance. Defendant appeals his conviction for felony 

child endangerment, arguing the People presented insufficient evidence that the 

conditions of the home where the child was found were likely to produce great bodily 

harm or death. We agree and accordingly reduce defendant’s conviction to misdemeanor 

child endangerment and remand for resentencing. 
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FACTUAL AND PROCEDURAL BACKGROUND

On January 5, 2012, Officer Marco Martin, a California highway patrol officer, 

searched defendant’s home pursuant to a search warrant. Officer Martin saw defendant 

and defendant’s three-year-old child when he first went into the home. 

Officer Martin found the trailer was generally messy, with the kitchen sink full of 

dishes. He found a marijuana pipe with burnt residue, a small tray with loose marijuana 

buds on it, and a closed folding knife all on top of a coffee table in the living room area. 

The coffee table was about one foot eight inches off the floor. The child was about three

feet three inches tall and her reach was just under four feet. Thus, the child had access to 

the marijuana that was out in the open. 

The child’s room was very messy as well, with clothes and toys strewn all over the 

place. There was a partially smoked marijuana cigarette on top of one of the child’s 

dressers. Officer Martin believed the child could have accessed the top of that dresser 

from her bed.

Officer Martin additionally searched the master bedroom and found a jar of 

marijuana, a small digital scale that had white residue on it, two methamphetamine pipes 

on top of a dresser, and a small plastic bindle with a white crystalline substance (later 

identified by the Department of Justice as methamphetamine). Another dresser in the 

master bedroom had a jar full of partially smoked marijuana cigarettes and a mirror with 

a razor blade and white residue on it. There was also a black case found next to the 

mirror, which contained 11 small plastic bags with white residue inside. 

Defendant was charged with receiving stolen property, felony child endangerment, 

and possession of a controlled substance. The jury found defendant guilty of felony child 

endangerment and possession of a controlled substance.1 Defendant was sentenced to 

 

1 The jury was not instructed on misdemeanor child endangerment (CALCRIM No. 

823) although defendant had proffered the instruction. 
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two years for the child endangerment conviction and to a concurrent term of 16 months 

for the possession conviction. 

DISCUSSION

There Was Insufficient Evidence Of Felony Child Endangerment

Defendant challenges the sufficiency of evidence to support his conviction for 

felony child endangerment. Specifically, defendant contends “there was insufficient 

evidence that the child’s circumstances or conditions in the home on the date alleged in 

the information were likely to produce or result in great bodily harm or death.” We agree 

and therefore reduce defendant’s conviction to misdemeanor child endangerment. 

The standard of review is well established. When reviewing the sufficiency of the 

evidence on appeal, we review the whole record in the light most favorable to the 

judgment to determine whether it discloses substantial evidence, that is, evidence which 

is 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 (1980) 26 Cal.3d 

557, 578.) 

Penal Code section 273a , subdivision (a) provides in relevant part as follows: 

“Any person who, under circumstances or conditions likely to produce great bodily harm 

or death . . . having the care or custody of any child . . . willfully causes or permits that 

child to be placed in a situation where his or her person or health is endangered, shall be 

punished by imprisonment.” (Italics added.) “ ‘ “Great bodily harm refers to significant 

or substantial injury and does not refer to trivial or insignificant injury.” ’ ” (People v. 

Clair (2011) 197 Cal.App.4th 949, 954).

Penal Code section 273a, subdivision (a) “is ‘intended to protect a child from an 

abusive situation in which the probability of serious injury is great.’ ” (People v. Sargent

(1999) 19 Cal.4th 1206, 1216, italics added.) However, there is no requirement “ ‘that 

the actual result be great bodily injury.’ ” (Ibid.)
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The People put forth no evidence at trial to establish that the conditions in which 

Officer Martin found the child were likely to produce great bodily harm or death. Officer 

Martin’s testimony was the only evidence presented concerning the conditions in which 

the child was living. The potentially dangerous items he found were some marijuana and 

a closed folding knife on the coffee table, some more marijuana on a dresser in the 

child’s bedroom, and additional marijuana and white residue on items on a dresser in the 

master bedroom. He did not testify how and why those findings were likely to produce 

great bodily injury or death. While this evidence was sufficient to demonstrate that the 

child was placed in a situation where her person or health might be endangered, and 

therefore sufficient for a misdemeanor conviction (Pen. Code, § 273a, subd. (b)), it was 

not sufficient enough to show that the conditions of defendant’s home were likely to 

produce great bodily harm or death. 

The People simply presented evidence that drugs were present and could 

potentially be accessed by the child. There was no evidence presented as to the potential 

dangerousness of the drugs had the child actually accessed them. Therefore, there was no 

evidence regarding the likelihood of the child suffering great bodily harm or death. 

The People rely heavily on People v. Perez (2008) 164 Cal.App.4th 1462 in 

contending that defendant put the child in a situation likely to produce great bodily harm. 

The circumstances in Perez are similar to the case here, but the defendant in Perez was 

convicted of misdemeanor child endangerment, not felony child endangerment. (Id. at 

p. 1467.) Thus, the People’s reliance on Perez is misplaced and goes against their 

contention that “the evidence presented to this jury is only consistent with circumstances 

implicating the threat of the more serious harm.” (Italics added.)

Additionally, the People direct us to People v. Toney (1999) 76 Cal.App.4th 618 in 

arguing the evidence was sufficient to find that the circumstances were likely to produce 

great bodily harm. The evidence presented in Toney revealed a pail of a “caustic 

chemical that could melt the skin on contact” and a bucket with cat litter and tubing, 
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“designed to absorb deadly fumes released during the manufacture of 

methamphetamine.” (Id. at p. 620). This evidence showed the potential for great bodily 

harm or death, which is lacking here.

The jury made all the necessary findings for the misdemeanor offense; therefore, 

rather than reverse defendant’s conviction, we reduce the conviction to one for 

misdemeanor child endangerment. (Pen. Code, § 1260; People v. Enriquez (1967) 65 

Cal.2d 746, 749.)

DISPOSITION

Defendant’s conviction for felony child endangerment is reduced to misdemeanor 

child endangerment, and the case is remanded to the trial court for resentencing. 

 ROBIE , Acting P. J.

We concur:

 BUTZ , J.

 DUARTE , J.