SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 820 NOTES
TABLE OF CONTENTS
F 820 Note 1 Assault Causing Death Of Child: CALCRIM Cross-References And Research Notes
F 820 Note 2 PC 273ab Not Unconstitutional: Malice Not Required
F 820 Note 3 Assault Causing Death Of Child: Causation
F 820 Note 4 Assault Causing Death Of Child: Willfully
F 820 Note 5 Felony Child Abuse: No Requirement That Defendant Knew Or Should Have Known The Circumstances Were Likely To Produce Great Bodily Harm Or Death
F 820 Note 6 Felony Child Abuse: Requires Conduct Harming Or Endangering A Child After Its Birth
F 820 Note 7 Felony Child Abuse: Effect Of Treatment By Spiritual Means (PC 273a(1))
F 820 Note 8 Mental Disease Or Defect: Post Partum Psychosis
F 820 Note 9 Child Abuse: Only One Principal Need Have “Care” And “Custody”
F 820 Note 10 Child Abuse: May Be Based On Indirect Infliction Of Harm On The Child As A Result Of The Defendant’s Criminal Negligence (PC 273a)
F 820 Note 11 Child Abuse: PC 273d Does Not Preempt PC 273a
F 820 Note 12 Child Abuse Resulting In Death: Constitutionality
F 820 Note 13 Child Abuse Resulting In Death: Merger Doctrine (Ireland) Precludes Conviction Of Second Degree Felony Murder (PC 273ab)
F 820 Note 14 Child Abuse (PC 273ab) Not Lesser Included Of Murder
F 820 Note 15 PC 273ab: Absence Of Malice Element Does Not Violate Due Process
F 820 Note 16 Child Abuse Resulting In Death: Intended To Be A Murder Statute
Return to Series 800 Table of Contents.
F 820 Note 1 Assault Causing Death Of Child: CALCRIM Cross-References And Research Notes
CALCRIM Cross References:
CALCRIM 821 [Child Abuse Likely To Produce Great Bodily Harm Or Death]
CALCRIM 822 [Inflicting Physical Punishment On Child]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 820 Note 2 PC 273ab Not Unconstitutional: Malice Not Required
See People v. Norman (2003) 109 CA4th 221; see also People v. Thrash (2002) 2002 Cal. App. Unpub. LEXIS 8902.
F 820 Note 3 Assault Causing Death Of Child: Causation
See CALCRIM 240.
F 820 Note 4 Assault Causing Death Of Child: Willfully
See CALCRIM 250.
F 820 Note 5 Felony Child Abuse: No Requirement That Defendant Knew Or Should Have Known The Circumstances Were Likely To Produce Great Bodily Harm Or Death
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 (1999) 19 C4th 1206.) 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.)
CALJIC NOTE: See FORECITE F 9.37b.
F 820 Note 6 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 (1977) 75 CA3d 214, 216-19.)
(See also FORECITE F 9.37 n10.)
CALJIC NOTE: See FORECITE F 9.37 n1.
F 820 Note 7 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 (1991) 231 CA3d 1667, 1682.)
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.]
CALJIC NOTE: See FORECITE F 9.37 n3.
F 820 Note 8 Mental Disease Or Defect: Post Partum Psychosis
(See FORECITE F 3.32 n3.)
F 820 Note 9 Child Abuse: Only One Principal Need Have “Care” And “Custody”
In People v. Culuko (2000) 78 CA4th 307 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.
CALJIC NOTE: See FORECITE F 9.37 n8.
F 820 Note 10 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.
CALJIC NOTE: See FORECITE F 9.37 n9.
F 820 Note 11 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).)
CALJIC NOTE: See FORECITE F 9.37 n10.
F 820 Note 12 Child Abuse Resulting In Death: Constitutionality
PC 273ab is not vague or overbroad, nor is it an unconstitutional strict liability offense. (People v. Albritton (1998) 67 CA4th 647, 658; see also People v. Basuta (2001) 94 CA4th 370 [PC 273ab is not void for vagueness despite medical disagreement as to whether shaking a baby can cause a severe brain injury].)
CALJIC NOTE: See FORECITE F 9.36.5 n2.
F 820 Note 13 Child Abuse Resulting In Death: Merger Doctrine (Ireland) Precludes Conviction Of Second Degree Felony Murder (PC 273ab)
(See People v. Stewart (2000) 77 CA4th 785 [second degree felony murder is not a lesser included offense of PC 273ab; giving of instruction would violate People v. Ireland (1969) 70 C2d 522.)
ALERT: People v. Farley (2009) 46 C4th 1053, 1118-20 overruled People v. Wilson (1969) 1 C3d 431 which precluded the application of the felony murder rule to assaultive burglaries. However, Wilson still applies to crimes committed prior to the finality of the Farley decision.
CALJIC NOTE: See FORECITE F 9.36.5 n4.
F 820 Note 14 Child Abuse (PC 273ab) Not Lesser Included Of Murder
(See People v. Malfavon (2002) 102 CA4th 727.)
CALJIC NOTE: See FORECITE F 9.36.5 n6.
F 820 Note 15 PC 273ab: Absence Of Malice Element Does Not Violate Due Process
(See People v. Malfavon (2002) 102 CA4th 727.)
CALJIC NOTE: See FORECITE F 9.36.5 n7.
F 820 Note 16Child 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 (1997) 54 CA4th 93, 98.)
CALJIC NOTE: See FORECITE F 9.37 n5.
