Return to CALJIC Part 9-12 – Contents
F 9.37 n1 Felony Child Abuse: Requires Conduct Harming Or Endangering A Child After Its Birth.
PC 273a(1) requires conduct which harms or endangers a child after its birth. Hence, the mother’s consumption of drugs during pregnancy does not violate the statute. (See Reyes v. Superior Court (77) 75 CA3d 214, 216-19 [141 CR 912].) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-610.]
(See also FORECITE F 9.37 n10.)
F 9.37 n2 Felony Child Abuse: New Four-Year Enhancement.
Effective 1/1/94, PC 273a includes a four-year enhancement for a person who is convicted of willfully causing the death of a child in circumstances likely to cause great bodily harm to the child. CJ 9.37 should be modified to add the enhancement elements when charged. Also note that an enhancement has been added for great bodily injury resulting in coma or paralysis.
F 9.37 n3 Felony Child Abuse: Effect Of Treatment By Spiritual Means (PC 273a(1)).
A sincerely belief in the efficacy of Christian service spiritual healing practices is not a defense to criminal negligence under PC 192(b) and PC 273a(1). (People v. Rippberger (91) 231 CA3d 1667, 1682 [283 CR 111].)
For purposes of the crime of abandonment and neglect of children, PC 270 specifically excludes parents who provide medical treatment for their child by “spiritual means.” The appropriate section of PC 270 provides as follows:
“If a parent provides a minor with treatment by spiritual means through prayer alone in accordance with the tenants and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof, such treatment shall constitute ‘other remedial care,’ as used in this section.”
However, it has been held that the exemption set forth in PC 270 does not provide a parallel exemption for spiritual healing methods under the provisions covering involuntary manslaughter (PC 192(b)) and felony child endangerment (PC 273a(1).) (Rippberger 231 CA3d at 1686.) [Compare Lybarger v. People (Colo. 1991) 807 P2d 570 discussed at 30 J. Family Law 667.]
RESEARCH NOTE: See “Putting Square Pegs in a Round Hole: Procedural Due Process and Effect of Faith Healing Exemptions on the Prosecution of Faith Healing Parents.” J.L.R. 29 U.S.F.L. REB. 43-119, Fall 1994.
F 9.37 n4 Child Abuse: Definition Of “Care” And “Custody.”
In People v. Smart UNPUBLISHED (4/13/95, C017810), the court held that the terms “care” and “custody” as used in PC 273a require that the defendant has “assumed responsibility” for the children. Because the evidence of such assumption of responsibility was insufficient in Smart, the court did not address the question of whether “care” and “custody” are technical terms which require sua sponte definition. [See Brief Bank # B-657 and Opinion Bank # O-192 for the briefing and opinion in Smart.]
F 9.37 n5 Child Abuse Resulting In Death: Intended To Be A Murder Statute.
PC 273ab was intended to be a murder statute, not simply an assault statute with an enhanced penalty. (People v. Preller (97) 54 CA4th 93, 98 [62 CR2d 507].)
F 9.37 n6 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of CJ 9.37 had a definition which was unclear and inaccurate. Also, it improperly required that the acts of the defendant be “defended or excused” which shifted the burden to the defendant. (See CALJIC History CJ 9.37.)
F 9.37 n7 Mental Disease Or Defect: Post Partum Psychosis.
(See FORECITE F 3.32 n3.)
F 9.37 n8 Child Abuse: Only One Principal Need Have “Care” And “Custody.”
In People v. Culuko (2000) 78 CA4th 307 [92 CR2d 789] the court held that for the purposes of PC 273ab, the requirement that the defendant have “care or custody” of the child may be satisfied if any of the principals has care or custody of the child, and the defendant is convicted as an aider and abettor.
F 9.37 n9 Child Abuse: May Be Based On Indirect Infliction Of Harm On The Child As A Result Of The Defendant’s Criminal Negligence (PC 273a).
See People v. Valdez (2002) 27 C4th 778 [118 CR2d 3].
F 9.37 n10 Child Abuse: PC 273d Does Not Preempt PC 273a.
The general/special statute rule does not apply to the child abuse crimes proscribed by PC 273a and 273d because the more general statute, PC 273a, does not provide a more severe penalty than the special statute, PC 273d. (People v. Cockburn (2003) 109 CA4th 1151, 1158-1159.)
(See also FORECITE CHK IV(J).)
F 9.37a
Felony Child Abuse: “Willfully“ Requires Knowledge Of Consequences
*Modify CJ 9.37 ¶ 6 (defining “willfully“) to provide as follows [added language is capitalized; deleted language is between <<>>]:
The word “willfully“ as used in this instruction means <<“with knowledge>> PURPOSEFULLY AND WITH KNOWLEDGE of the consequences. <<” or “purposefully>>.“
Points and Authorities
The term “willfully“, as a component of general intent, requires actual knowledge of the nature and consequences of the act committed. (See FORECITE F 1.20a and FORECITE F 3.30a.) The term “purposefully“ does not alone encompass this requirement since it could be interpreted to apply to the act without regard to the consequences.
See also FORECITE F 9.37e.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution‘s burden of proof thereon violates the defendant‘s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
See FORECITE F 1.20b regarding negation of knowledge element by intoxication or other mental impairments.
F 9.37b
Felony Child Abuse:
No Requirement That Defendant Knew Or Should Have Known The Circumstances
Were Likely To Produce Great Bodily Harm Or Death (CJ 9.37)
[FORECITE F 9.37b instruction deleted.]
Points and Authorities
The California Supreme Court has held that a conviction for felony child abuse based on direct infliction of unjustifiable physical pain and mental suffering does not require a finding of criminal negligence. (People v. Sargent (99) 19 C4th 1206 [81 CR2d 835].) Direct infliction of unjustifiable physical pain or mental suffering in violation of PC 273a(1) does not include criminal negligence as an element. Rather, the defendant must have a mens rea of general criminal intent to commit the proscribed act; that is, infliction of unjustifiable physical pain or mental suffering on a child. There is no separate scienter which attaches to the phrase “circumstances or conditions likely to produce great bodily harm or death.” (Sargent, 19 C4th at 1222.)
[Briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-763.]
F 9.37c
Child Abuse Resulting In Death: Definition Of Care And Custody
*Add to CJ 9.37:
The term “care and custody” does not require a family relationship but does require an assumption of duties correspondent to the role of a caregiver.
Points and Authorities
(See People v. Cochran (98) 62 CA4th 826 [73 CR2d 257].)
F 9.37d
Improper To Define Willfulness In Terms Of Knowledge Of Consequences
*Modify 6th ¶ CJ 9.37 as follows [added language is capitalized; deleted language is between << >>];
The word “willfully,” as used in this instruction, means <<“with knowledge of the consequences” or “purposefully.”>> WITH A PURPOSE OR WILLINGNESS TO COMMIT THE ACT OR TO MAKE THE OMISSION IN QUESTION.
Points and Authorities
PC 273a(a) imposes a criminal liability for a person who, inter alia, “willfully causes or permits any child to suffer…unjustifiable physical pain or mental suffering….”
PC 7(1) defines “willfully” as follows: “The word ‘willfully’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to.” (See also CJ 1.20.)
CJ 9.37 fails to comply with this statutory definition of willfully and with People v. Sargent (99) 19 C4th 1206 [81 CR2d 835] by alternatively permitting a finding that the defendant acted willfully based on “knowledge of the consequences.”
As Sargent made clear, PC 273a is not defined in terms of “knowledge of the consequences” of the act which is akin to a negligence standard. “Felony child abuse requires a mens rea: the defendant must willfully inflict unjustifiable physical pain or mental suffering on a child.” (Sargent, 19 C4th at 1223.)
Hence, CJ 9.37 should be modified as set forth above.
(See also FORECITE F 9.37 n9.)
F 9.37e
Child Abuse: Clarification Of Willfulness Requirement
(PC 273a(a))
*Modify CJ 9.37, Elements 1, as follows [added language is capitalized; deleted language is between << >>:]
[1. A person willfully caused or, as a result of A WILLFUL ACT OR OMISSION WHICH WAS CRIMINALLY NEGLIGENT <<criminal negligence>>, permitted a child to suffer unjustifiable physical pain or mental suffering;] [or]
[a.] [willfully caused or, as a result of A WILLFUL ACT OR OMISSION WHICH WAS CRIMINALLY NEGLIGENT <<criminal negligence>>, permitted the child to be injured;] [or]
[b.] [willfully caused or, as a result of A WILLFUL ACT OR OMISSION WHICH WAS CRIMINALLY NEGLIGENT <<criminal negligence>>, permitted the child to be placed in a situation where his or her person or health was endangered;]] and
Points and Authorities
In People v. Valdez (2002) 27 C4th 778, 792 [118 CR2d 3], the Supreme Court made the following observation: “While not directly raised in the Attorney General‘s petition for review, we address the following claim for the guidance of the Court of Appeal on remand. Defendant asserts that the CALJIC instructions given below failed to require willfulness. The jury was instructed in the language of CALJIC No. 9.37, which states, ‘In order to prove this crime, each of the following elements must be proved: . . . [P] . . . [P] A person who had care or custody of a child . . . [P] willfully caused or, as a result of criminal negligence, permitted the child to be placed in a situation where his or her person or health was endangered.‘ Defendant is correct the instruction could be understood to link ‘willfully‘ only to the word ‘caused,‘ and not to ‘criminal negligence.‘ However, any failure to instruct on willfulness was not prejudicial, because the jury also found true the enhancement under section 12022.95. This instruction required the jury to find defendant, ‘under circumstances or conditions likely to cause great bodily harm or death, willfully caused or permitted [the victim] to suffer . . . or . . . willfully caused or permitted [the victim] to be injured or harmed, and that injury or harm resulted in her death.‘ (See People v. Kinkead (2000) 80 CA4th 1113 at pp. 1118-1119 [96 CR2d 121] [any error to instruct on willfulness for felony child endangerment not prejudicial because of instruction on enhancement allegation under section 12022.95].)“
See also FORECITE F 9.37a.