Return to CALJIC Part 14-17 – Contents
F 16.170 n1 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 (88) 47 C3d 112, 114 [253 CR 1].) People v. Deskin (92) 10 CA4th 1397, 1400 [13 CR2d 391] rejected a similar challenge to misdemeanor child endangerment. (PC 273a(2).)
F 16.170 n2 Child Abuse: New Four-Year Enhancement (PC 273a).
Effective 1/1/94, PC 273a has added 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 16.170 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.
See FORECITE F 1.20a regarding knowledge requirement of willfulness element.
F 16.170 n3 Child Abuse: Definition Of “Care” And “Custody.”
[See FORECITE F 9.37 n4]
F 16.170a
Child Endangerment: Must Be Reasonably
Foreseeable And Probable
(PC 273a(2))
*To be added at end of CJ 16.170:
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
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 (65) 232 CA2d 650, 658 [43 CR 28].)
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) (88) 46 C3d 381, 389-90 [250 CR 515]) 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 (74) 414 US 632, 639 [39 LEd2d 52].)
The language “serious danger or health hazard” is taken from People v. Beaugez 232 CA2d at 658.
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).]
