SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 823 Child Abuse (PC 273a(b))
TABLE OF CONTENTS
F 823.1 Child Abuse: Titles And Identification Of Parties
F 823.1 Inst 1 Child Abuse—Title
F 823.1 Inst 2 Identification Of Prosecution And Defendant
F 823.2 Child Abuse: Tailoring To Facts: Persons, Places, Things And Theories
F 823.2 Inst 1 Tailoring Elements To Facts: Name Of Alleged Victim
F 823.2 Inst 2 Tailor To Facts: Prosecution Theory Vis A Vis Type Of Pain
F 823.2 Inst 3 Tailor To Facts: Caused Or Permitted
F 823.2 Inst 4 Tailor To Facts: Caused Or Permitted
F 823.3 Child Abuse: Language That Is Argumentative, Confusing, Etc.
F 823.3 Inst 1 Delete Argumentative Language
F 823.4 Child Abuse: Burden Of Proof Issues
F 823.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 823.4 Inst 2 Criminal Negligence: “Requires” More Than Ordinary Carelessness
F 823.5 Child Abuse: Elements And Definitions
F 823.5 Inst 1 Alternative A: Separate Enumeration Of Elements
F 823.5 Inst 2 Alternative B: Separate Enumeration Of Elements
F 823.5 Inst 3 Alternative C: Separate Enumeration Of Elements
F 823.5 Inst 4 Alternative D: Separate Enumeration Of Elements
F 823.5 Inst 5 Instruction On Causation Principles; Causation Instructions Applicable To Permitting Injury, Suffering Or Endangerment
F 823.5 Inst 6 Unjustifiable Physical Pain: Reasonable Person In Defendant’s Situation
F 823.5 Inst 7 Child Endangerment: Must Be Reasonably Foreseeable And Probable (PC 273a(2))
F 823.6 Child Abuse: Defense Theories
F 823.6 Inst 1 Parental Discipline As Defense Theory
F 823.6 Inst 2 Parent’s Right To Discipline Child: Factors To Consider As To Whether Force Was Excessive Or Unreasonable
F 823.7 Child Abuse: Preliminary Fact Issues [Reserved]
F 823.8 Child Abuse: Unanimity/Duplicity/Multiplicity [Reserved]
F 823.9 Child Abuse: Lesser Offense Issues [Reserved]
F 823 NOTES
F 823 Note 1 Felony Child Abuse: CALCRIM Cross-References And Research Notes
F 823 Note 2 Felony Child Abuse: Effect Of Treatment By Spiritual Means (PC 273a(1))
F 823 Note 3 Mental Disease Or Defect: Post Partum Psychosis
F 823 Note 4 Child Abuse: Only One Principal Need Have “Care” And “Custody”
F 823 Note 5 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 823 Note 6 Child Abuse: PC 273d Does Not Preempt PC 273a
F 823 Note 7 Parent’s Right To Discipline Child: Definition Of “Force And Violence”
F 823 Note 8 Parents’ Right To Discipline Child: Jury Must Make Determination Of Objective Reasonableness
F 823 Note 9 Distinction Between Direct Infliction Of Pain And Suffering From Indirect Acts
F 823 Note 10 Misdemeanor Child Abuse: Not Unconstitutionally Vague (PC 273a)
F 823 Note 11 Felony Child Abuse: Requires Conduct Harming Or Endangering A Child After Its Birth
F 823 Note 12 Whether “Willingness” To Assume Care And Custody Is Required
F 823 Note 13 Felony Child Abuse: Parental Discipline And Self Defense As Potential Defenses
Return to Series 800 Table of Contents.
F 823.1 Child Abuse: Titles And Identification Of Parties
F 823.1 Inst 1Child Abuse—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 823.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 823.2 Child Abuse: Tailoring To Facts: Persons, Places, Things And Theories
F 823.2 Inst 1 Tailoring Elements To Facts: Name Of Alleged Victim
See FORECITE F 821.2 Inst 1.
F 823.2 Inst 2 Tailor To Facts: Prosecution Theory Vis A Vis Type Of Pain
See FORECITE F 821.2 Inst 2.
F 823.2 Inst 3 Tailor To Facts: Caused Or Permitted
See FORECITE F 821.2 Inst 3.
F 823.2 Inst 4 Tailor To Facts: Caused Or Permitted
See FORECITE F 821.2 Inst 4.
F 823.3 Child Abuse: Language That Is Argumentative, Confusing, Etc.
F 823.3 Inst 1 Delete Argumentative Language
See FORECITE F 821.3 Inst 1.
F 823.4 Child Abuse: Burden Of Proof Issues
F 823.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 823.4 Inst 2 Criminal Negligence: “Requires” More Than Ordinary Carelessness
See FORECITE F 821.4 Inst 2.
F 823.5 Child Abuse: Elements And Definitions
F 823.5 Inst 1 Alternative A: Separate Enumeration Of Elements
See FORECITE F 821.5 Inst 1.
F 823.5 Inst 2 Alternative B: Separate Enumeration Of Elements
See FORECITE F 821.5 Inst 2.
F 823.5 Inst 3 Alternative C: Separate Enumeration Of Elements
See FORECITE F 821.5 Inst 3.
F 823.5 Inst 4Alternative D: Separate Enumeration Of Elements
See FORECITE F 821.5 Inst 4.
F 823.5 Inst 5 Instruction On Causation Principles; Causation Instructions Applicable To Permitting Injury, Suffering Or Endangerment
See FORECITE F 821.5 Inst 5.
F 823.5 Inst 6 Unjustifiable Physical Pain: Reasonable Person In Defendant’s Situation
See FORECITE F 821.5 Inst 6.
F 823.5 Inst 7 Child Endangerment: Must Be Reasonably Foreseeable And Probable (PC 273a(2))
*Add to CC 823 as defense theory pinpoint instruction:
You may not find that the child was endangered unless the prosecution has proven beyond a reasonable doubt the existence of a serious physical danger or health hazard which was reasonably foreseeable and which created a reasonable probability that the child’s person or health would be endangered.
If, after considering the circumstances you have a reasonable doubt whether the danger to the child was reasonably foreseeable and reasonably probable, you must give the defendant the benefit of the doubt and find [him] [her] not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Due Process Requires Fair Description Of Prohibited Conduct—PC 273a(2) authorizes criminal liability when the child “may be endangered.” Literal interpretation of this provision would not provide “a fair description of the prohibited conduct, since virtually any conduct directed toward a child has the possibility, however slim, of endangering the child’s life or health. [Citations.]” (People v. Hoehl (Colo. Supreme Ct. 1977) 568 P2d 484, 486; see also People v. Beaugez (1965) 232 CA2d 650, 658.)
Therefore the due process proscription against overly broad and vague criminal legislation (U.S. Const. 5th & 14th Amendments; Calif. Const. Art. 1; e.g., People v. Superior Ct. (Caswell) (1988) 46 C3d 381, 389-90) requires that the term “may” be construed narrowly to mean that there is a “reasonable probability” that the child “will be endangered from the situation in which the child is placed.” (Hoehl, 568 P2d at 486.) Moreover, it must be shown that the specific danger existed and that it was “reasonably foreseeable.” (People v. Beaugez, 232 CA2d at 658.)
Additionally, overbroad interpretation of the statute would implicate the defendant’s federal constitutional right to freedom of choice regarding family life. (See also Cleveland Bd. of Ed. v. LaFleur (1974) 414 US 632, 639 [39 LEd2d 52; 94 SCt 791].)
The language “serious danger or health hazard” is taken from People v. Beaugez, 232 CA2d at 658.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 6.1 [Due Process And Notice—Generally]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 16.170a.
F 823.6 Child Abuse: Defense Theories
F 823.6 Inst 1 Parental Discipline As Defense Theory
See FORECITE F 821.6 Inst 1.
F 823.6 Inst 2 Parent’s Right To Discipline Child: Factors To Consider As To Whether Force Was Excessive Or Unreasonable
See FORECITE F 821.6 Inst 2.
F 823.7 Child Abuse: Preliminary Fact Issues [Reserved]
F 823.8 Child Abuse: Unanimity/Duplicity/Multiplicity [Reserved]
F 823.9 Child Abuse: Lesser Offense Issues [Reserved]
F 823 NOTES
F 823 Note 1 Felony Child Abuse: CALCRIM Cross-References And Research Notes
CALCRIM Cross References:
CALCRIM 821 [Child Abuse Likely To Produce Great Bodily Harm Or Death (PC 273a(a))]
CALCRIM 822 [Inflicting Physical Punishment On Child (PC 273d(a))]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 823 Note 2 Felony Child Abuse: Effect Of Treatment By Spiritual Means (PC 273a(1))
See FORECITE F 820 Note 7.
F 823 Note 3 Mental Disease Or Defect: Post Partum Psychosis
See FORECITE F 820 Note 8.
F 823 Note 4 Child Abuse: Only One Principal Need Have “Care” And “Custody”
See FORECITE F 820 Note 9.
F 823 Note 5 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 FORECITE F 820 Note 10.
F 823 Note 6 Child Abuse: PC 273d Does Not Preempt PC 273a
See FORECITE F 820 Note 11.
F 823 Note 7 Parent’s Right To Discipline Child: Definition Of “Force And Violence”
See FORECITE F 4.80 n1.
F 823 Note 8 Parents’ Right To Discipline Child: Jury Must Make Determination Of Objective Reasonableness
See FORECITE F 4.80 n2.
F 823 Note 9 Distinction Between Direct Infliction Of Pain And Suffering From Indirect Acts
See discussion in People v. Sargent (1999) 19 C4th 1206 and People v. Valdez (2002) 27 C4th 778.
F 823 Note 10 Misdemeanor Child Abuse: Not Unconstitutionally Vague (PC 273a)
Void for vagueness arguments have been rejected as to felony child endangerment (PC 273a(1).) (See Walker v. Superior Court (1988) 47 C3d 112, 114.) People v. Deskin (1992) 10 CA4th 1397, 1400 rejected a similar challenge to misdemeanor child endangerment. (PC 273a(2).)
CALJIC NOTE: See FORECITE F 16.170 n1.
F 823 Note 11 Felony Child Abuse: Requires Conduct Harming Or Endangering A Child After Its Birth
See FORECITE F 820 Note 6.
F 823 Note 12 Whether “Willingness” To Assume Care And Custody Is Required
People v. Perez (2008) 164 CA4th 1462, 1476-1477: Proposed jury instruction could have erroneously implied that the defendant must have affirmatively demonstrated or expressed a willingness to assume caretaker duties in order to be found to have had the “care or custody” of a child in the house he shared with at least two children]; compare People v. Cochran (1998) 62 CA4th 826, 832 [“The terms ‘care or custody’ … imply … only a willingness to assume duties correspondent to the role of a caregiver.”].)
F 823 Note 13 Felony Child Abuse: Parental Discipline And Self Defense As Potential Defenses
People v. Clark (2011) 201 CA4th 235: A parent has the right to administer reasonable discipline and both self-defense and parental discipline may provide legal justification for the use of force against the child. However, these defenses are not congruent and the amount of force used may be different.