Metropolitan News-Enterprise


Thursday, September 28, 2006


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Parent’s Assault While Son at Scene Held Child Endangerment


By TINA BAY, Staff Writer


A parent who viciously assaults the other parent while aware that their child is at the scene may be convicted of misdemeanor child endangerment, the Third District Court of Appeal ruled yesterday.

The court upheld Carlos Cortez Burton’s convictions for misdemeanor child endangerment stemming from his attack on his estranged girlfriend in May 2005. The justices also upheld Burton’s torture, aggravated mayhem, and corporal injury convictions.

At the time of the incident, Burton and “Shanita S.,” as his girlfriend was identified, had been involved in a turbulent relationship for over a decade during which they lived together on and off and Burton frequently threatened violence, according to testimony. Burton moved into his girlfriend’s Sacramento residence in 2004, apparently because she wanted her boys to be near their father.

Two days before the attack, however, Shanita S. asked Burton to move out after he accused her of cheating on him.

Prosecution Testimony

The prosecution presented testimony that Burton assaulted her on May 20, 2005 as she was preparing to drive to work with her sons. After she had placed her then-two-year-old son in his car seat, and after her then-eight-year-old, Carlos Jr., had gone behind a wall adjacent to the passenger’s side of the car to urinate, she approached the driver’s side and found Burton crouched near the front tire of her car. Burton allegedly stood and punched her in the face three or four times, then ran away.

The incident left Shanita S. permanently disfigured as a result of deep facial cuts that required over 200 stitches.

Carlos Jr. discovered his injured mother immediately following the attack, and screamed, “[W]e have to go, we have to get out of here, we have to leave, he’s going to come back.” He even attempted to put his mother’s car into reverse himself, according to testimony.

Carlos Jr. subsequently wrote in his journal that he hated his life and wished that he was dead, and also that he was never born. There was also evidence that he began a new pattern of getting in trouble at school on a daily basis and needed to see a counselor weekly.

Child Saw Aftermath

Though neither of the boys actually saw the attack happen, prosecutors charged Burton with misdemeanor child endangerment under Penal Code Sec. 273a(b)(1) and (2), on the theory that he willfully caused Carlos Jr. to suffer, and inflicted unjustifiable mental suffering on him, by subjecting him to the attack’s aftermath.

Burton on appeal challenged the sufficiency of the evidence for his Sec. 273a conviction, arguing the statute did not apply because the alleged conduct occurred outside Carlos Jr.’s presence and was not directed at him.

But Justice Rodney Davis, writing for the court, said the provision encompassed situations of indirectly inflicted harm.

“Section 273a applies to suffering resulting from direct physical and sexual abuse. It follows that section 273a should also protect children from actions that indirectly cause similar suffering,” the jurist wrote.

The requisite mental state for the offense in an indirect harm case is criminal negligence, he added, concluding that the evidence was sufficient to show that Burton acted with criminal negligence in inflicting unjustifiable mental suffering on his son.

“A reasonable person would easily recognize that a child would endure unjustifiable mental suffering by being on the scene while his father slashed his mother’s face several times, and then immediately seeing the horrible, bloody aftermath,” Davis wrote, pointing to evidence that Burton knew of Carlos Jr.’s presence at the time he attacked.

‘Unusual’ Decision

Justices Vance W. Raye and Harry Hull concurred in the opinion.

Burton’s attorney, Richard Power of the Shingle Springs-based Appeals Unlimited, told the MetNews he would seek Supreme Court review of the court’s ruling.

“The boy didn’t see anything, so this decision seems a little unusual,” he said.

“I think it’s a novel point of law, no question—I don’t see any prior California cases supporting it, and I don’t see the New York case [whose reasoning the court cited] supporting it either.”

Commenting on the state’s interest in protecting children, he added:

“We’re talking about a criminal statute and the question has to be whether or not there’s a crime committed. Lots of things could protect children. They don’t have to be crimes.”

Prosecutors did not immediately return calls seeking comment on the decision.

The case is People v. Burton, C051500.


Copyright 2006, Metropolitan News Company