Return to CALJIC Part 9-12 – Contents
F 9.36.5 n1 Child Abuse Resulting In Death: Requires Finding That Reasonable Person Would Believe Force Would Be Likely To Result In Child’s Death.
The phrase “resulting in the child’s death” does not modify “great bodily injury” and, therefore, the prosecution need not prove that a reasonable person would believe the means of force would be likely to result in the child’s death. (People v. Preller (97) 54 CA4th 93, 97-98 [62 CR2d 507].)
F 9.36.5 n2 Child Abuse Resulting In Death: Constitutionality.
PC 273ab is not vague or overbroad, nor is it an unconstitutional strict liability offense. (People v. Albritton (98) 67 CA4th 647, 658 [79 CR2d 169].)
F 9.36.5 n3 Mental Disease Or Defect: Post Partum Psychosis.
(See FORECITE F 3.32 n3.)
F 9.36.5 n4 Child Abuse Resulting In Death: Merger Doctrine (Ireland) Precludes Conviction Of Second Degree Felony Murder (PC 273ab).
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.
(See People v. Stewart (2000) 77 CA4th 785 [91 CR2d 888] [second degree felony murder is not a lesser included offense of PC 273ab; giving of instruction would violate People v. Ireland (69) 70 C2d 522 [75 CR 188].)
F 9.36.5 n5 PC 273ab Is Not Void For Vagueness Despite Medical Disagreement As To Whether Shaking A Baby Can Cause A Severe Brain Injury.
See People v. Basuta (2001) 94 CA4th 370 [114 CR2d 285].
F 9.36.5 n6 Child Abuse (PC 273ab) Not Lesser Included Of Murder.
(See People v. Malfavon (2002) 102 CA4th 727 [125 CR2d 618].)
F 9.36.5 n7 PC 273ab: Absence Of Malice Element Does Not Violate Due Process.
(See People v. Malfavon (2002) 102 CA4th 727 [125 CR2d 618].)
F 9.36.5 n8 Child Abuse: Expert’s Change Of Opinion In “Shaken Baby” Cases.
See generally People v. Salazar (2005) 35 C4th 1031.
F 9.36.5a
Assault On Child Under 8 Resulting In Death
(PC 273ab)
*Add to Element 3 of CJ 9.36.5 [Added language is capitalized]:
3. The assault was committed by means of force that to a reasonable person, UNDER SIMILAR CIRCUMSTANCES, would be likely to produce great bodily injury; and
Points and Authorities
When a statute imposes criminal liability based upon constructive knowledge of a fact — i.e., the defendant “should have known” the fact — an objective “reasonable person” standard applies. (See People v. Mathews (94) 25 CA4th 89, 99 [30 CR2d 330]; see also People v. Ochoa (93) 6 C4th 1199, 1204 [26 CR2d 23] [whether a reasonable person “would have been aware” of the risk involved is an objective standard].) This standard requires consideration of “a reasonable person in defendant’s position ….” (Ochoa, 6 C4th at 1205, emphasis in original.) Thus, any evidence which would impair the defendant’s ability to know the fact in issue such as intoxication (Ochoa) or physical disability (Mathews), etc., must be considered by the jury in determining whether a reasonable person in the defendant’s position would have or should have known the fact in issue.
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 or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
NOTE: This instruction was successfully used in a “Shaken Baby Syndrome” case charged under PC 273ab. Allen Bloom of San Diego obtained not guilty verdicts on all charges in a “shaken baby” death case. Allen’s client was facing a possible life sentence under the PC 273ab charge. A modification to CJ 9.36.5 helped to produce the favorable verdict.
