Opinion
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Part II of the Discussion.
Rehearing Denied Jan. 14, 1998.
Previously published at 60 Cal.App.4th 137
K. Douglas Cummings, under appointment by the Court of Appeal, Barry A. Zimmerman, Auburn, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Cynthia G. Besemer, Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.
BLEASE, Associate Justice.
Defendant appeals following a conviction by a jury of one count of felony child abuse under a provision of Penal Code section 273a, subdivision (a), that proscribes the infliction of unjustifiable physical pain upon a child under circumstances likely to produce great bodily harm or death.
References to a section are to the Penal Code unless otherwise indicated.
The prosecution was predicated upon evidence of "shaken baby syndrome", a medical The defendant contends there is no substantial evidence in support of the conviction because there is no evidence that he knew that shaking the baby was likely to cause great bodily harm or death. He moved for a new trial on that ground. The trial court denied the motion for the reason that, although parents don't know that shaking a baby could cause grave harm, such knowledge is not an element of the offense.
We will reverse the felony conviction on the ground that, although actual knowledge of the likelihood of great bodily harm or death is not required, criminal negligence is required. Applying that standard, we conclude that the evidence does not afford an inference that the defendant was criminally negligent, i.e., that he knew or should have known of the likelihood of great bodily harm or death from shaking the baby.
We will modify the judgment to reduce the conviction to the lesser included misdemeanor offense of section 273a, subdivision (b), which does not require actual or imputed knowledge of the risk of great bodily harm or death. (See § 1181, subd. 6.)
FACTS AND PROCEDURAL BACKGROUND
On August 19, 1993, ambulance personnel responding to a 911 call found Michael Sargent, Jr., defendant's infant son, aged four months, in a deep coma on the floor of defendant's apartment, with black and blue color around his lips indicating that he was not breathing. He received mouth to mouth resuscitation and CPR treatment, his airway was suctioned, and the paramedic attempted to put a tube into his trachea to help him breathe. Defendant told a neighbor and a paramedic that the infant had rolled off a couch.
The infant was hospitalized until September 3, 1993. He was given a complete medical examination. There were no bruises and no evidence of fractures of the extremities. Dr. John McCann, a pediatric specialist in child abuse cases who examined the infant on August 20 and 21, 1993, concluded that he was a victim of "shaken baby syndrome." Dr. McCann explained the syndrome as follows.
Physicians were having a difficult time explaining cases in which children could have injuries as severe as those of Michael Sargent, Jr., and not have a fractured skull or lumps or bumps or other external signs of injury. Research, inter alia, with piglets led to the theory of "shaken baby syndrome." The theory is that in children up to 18 months or two years, particularly those born prematurely, a large amount of fluid surrounds the brain and the neck muscles are weak. Angular forces applied to such children can move the brain inside the skull causing blood vessels to tear resulting in serious injury.
Michael Sargent, Jr.'s condition, which included inter-cranial hemorrhage and hemorrhages in both retinas but did not include external signs of trauma or fractures, was consistent with shaking but inconsistent with falling or being dropped.
Dr. McCann was asked whether shaking an infant of this age was an act "likely medically to produce death or great bodily injury?" He replied: "Yes, it's a distinct possibility."
On August 25, 1993, defendant was interviewed by the police. At first he said he had thrown the infant up in the air to stop him from crying and then fumbled in catching him, causing him to strike the floor with his head. The interviewing officers told the defendant that the treating physician had concluded the victim was shaken. The defendant then admitted that he had shaken the infant twice that day while he was sitting in a car seat. He said he had "lost his temper for a minute." He had not intended to hurt the infant and had no idea that shaking could do so.
At trial, defendant testified that his admission of shaking the infant was false and his account of dropping him was true. He had "confessed" to shaking the infant because that was what the interviewing officer wanted to hear and because the officer told him Defendant adduced testimony from Dr. Todd Brandtman, an emergency room physician, who neither treated nor examined the infant. Dr. Brandtman conceded that his expertise concerning shaken baby syndrome was not quite as great as a doctor like Dr. McCann.
Dr. Brandtman was shown photographs taken two days after the infant was released from the hospital. The photographs show a one inch diameter swollen area, discolored in the center, on the back of the infant's head. Dr. Brandtman also reviewed nurses' notes from the period of hospitalization. One of these (date not provided) indicates a slight swelling with a small scab on the back of the infant's head. Other records, from the outset of the hospitalization, note that the infant showed swelling of the forehead and around the eyes and that there was bright red blood in the infant's nose and mouth.
Dr. Brandtman testified that the blood and swelling could not have been caused by shaking the infant, unless there was also a blow to the face. Nor would shaking have caused an area of swelling on the back of the infant's head. He opined that if the infant was thrown into the air and as he fell he was hit and caused to flip he could strike the floor with the back of his head and then strike his face with his knee, accounting for the injuries.
Four defense witnesses, all family members or family friends, testified that they had seen the bump or scab on the back of the infant's head. One of these witnesses, Geneva Vargas, had been a medical assistant in a doctor's office for five years. She opined that the bump on the infant's head was hard: "It was a bump that you would get from a blow."
The nursing records for the infant's hospitalization show no sign of injury to the back of the infant's head until on August 25, 1993, when he developed a bed sore, at the same location as the swelling on which Dr. Brandtman relied.
The infant's mother had married defendant by the time of trial. She testified that she had seen defendant throwing the victim up in the air on other occasions and had told him not to do it. On August 19, 1993, she heard a thump and saw that the infant was crying, but concluded he had not been injured by his fall and left the apartment on business. She was not present when the infant lost consciousness.
After the trial, the defendant moved for a new trial or for a reduction of the offense to misdemeanor child abuse under section 273a, subdivision (b), on the ground of insufficiency of the evidence. The trial court denied the motion. In discussing its reasoning the court made the following pertinent remarks.
"[T]he statute does not require that he have knowledge of the possible consequences or that he intend the consequences but simply that he commit the act willfully, which means purposefully. Willful element does not require actual knowledge on the part of the defendant but simply that the act be done consistent with general criminal intent.
"This Court is prepared to believe that [defendant] did not realize or anticipate that his actions would result in such severe injuries to the infant. And I believe Dr. McCann may have alluded to that, that the shaking of an infant can result in these severe injuries, the equivalent of falling off a three-story building. And perhaps most people who do that do not have any real sense that this is the likely consequence. But having noted that, it doesn't assist the defendant or your client under these circumstances. So the motion for new trial based on insufficiency of the evidence is denied.
"...
"It's not this Court's position to rewrite the statute or to even point out perhaps some of its weaknesses--and I think there may be a problem with this particular statute that the legislature needed to look at because, according to Dr. McCann, who I heard interviewed on television following another incident out of Sacramento, he appeared to be saying, you know, parents shake their kids and they shouldn't do it because they don't know what could happen. And I think that's true. I don't "This particular case involves an infant which was born premature; so I would suggest to the father, the defendant, that even the thought of shaking such a delicate infant is heartless and cruel. But the lesson that's learned from here perhaps is that those who shake their 3-year-olds shouldn't even do that because you can cause severe injury."
The defendant appeals from the resulting judgment of conviction.
DISCUSSION
I
The defendant contends his felony conviction of violating section 273a, subdivision (a), must be reversed because there is insufficient evidence of the required scienter. The defendant's claim puts in issue the meaning of section 273a, subdivision (a), as applied to a conviction predicated upon the shaken baby syndrome.
For editorial convenience we will use the current text of section 273a in our discussion, except as specifically noted. Current section 273a, in pertinent part, with bracketed numbers added, is as follows:
We begin with a history of the statute. Its language is derived from the Statutes of 1877-1878, chapter 521, section 4, page 814. Section 273a, codified the earlier statute. (See Stats.1905, ch. 568, p. 759.) In 1963 the statute was amended to make the former misdemeanor offense an alternative felony/misdemeanor offense. (Stats.1963, ch. 783, eff. Jan. 1, 1964.) In 1965 the statute was again amended. The language proscribing the actus reus of an offense was, for the most part, replicated in two subdivisions. They differed in only one respect. The first subdivision required that the proscribed conduct occur in "circumstances or conditions likely to produce great bodily harm or death" and the offense was made a felony. The second subdivision, which does not require that circumstance, was made a misdemeanor.
The original uncodified provision is as follows.
The principal change in the substantive text was from "life or limb" and "health" to the more modern formulation "person or health."
As shown in footnote 2, ante, this distinction has continued to the present. With respect to subdivision (a), and subdivision (b), with the exception of the risk of harm, the felony and misdemeanor components of section 273a are identical; each has four parallel and alternative branches [marked by the bracketed numbers] which prescribe overlapping elements of related offenses. The first two branches overlap as to suffering; the first denounces willfully causing or permitting a child to suffer, the second inflicting unjustifiable pain or mental suffering. The The interwoven character of the branches of the statute does not aid in their analysis. As noted, the defendant was convicted under the second branch of section 273a, subdivision (a), the "inflict[ion of] ... unjustifiable physical pain or mental suffering" upon a child "under circumstances or conditions likely to produce great bodily harm or death...." At issue is the scienter required for conviction under this provision.
The second branch encompasses excessive or unwarranted corporal punishment (see, People v. Curtiss (1931) 300 P. 801, 116 Cal.App.Supp. 771), intersecting, inter alia, section 237d, an alternative misdemeanor offense, first enacted in 1945, which proscribes cruel or inhuman corporal punishment, i.e., infliction of unjustifiable pain which results in a traumatic condition. (See People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050, 12 Cal.Rptr.2d 33.)
No case has adequately analyzed this branch of section 273a, subdivision (a). However, the cases involving other branches generally say that "the crime described [in section 273a, subdivision (2), ante] is one of criminal negligence...." (People v. Rippberger (1991) 231 Cal.App.3d 1667, 1682, 283 Cal.Rptr. 111; see also Walker v. Superior Court (1988) 47 Cal.3d 112, 134-138, 253 Cal.Rptr. 1, 763 P.2d 852; People v. Pointer (1984) 151 Cal.App.3d 1128, 1134, 199 Cal.Rptr. 357; People v. Peabody (1975) 46 Cal.App.3d 43, 46-49, 119 Cal.Rptr. 780.)
Subdivision (1) was renumbered subdivision (a) in 1993. (Stats.1993, ch. 1253, § 1.) For editorial convenience we use section 273a, subdivision (a), when referring to either version of the offense.
In People v. Peabody, supra, the court considered the fourth branch of section 273a, subdivision (a), which applies to one who "willfully causes or permits [a] child to be placed in a situation where his or her person or health is endangered...." As with all of the branches, the proscribed conduct must involve "circumstances or conditions likely to produce great bodily harm or death...." Peabody held, relying inter alia on People v. Penny (1955) 44 Cal.2d 861, 879, 285 P.2d 926, that "Penal Code section 273a, subdivision [ (a) ] requires proof of criminal negligence which means that the defendant's conduct must amount to a reckless, gross or culpable departure from the ordinary standard of due care; it must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life." (46 Cal.App.3d at pp. 48-49, 119 Cal.Rptr. 780; see also, e.g., Williams v. Garcetti (1993) 5 Cal.4th 561, 573-574, 20 Cal.Rptr.2d 341, 853 P.2d 507; Walker v. Superior Court, supra, 47 Cal.3d at p. 135, 253 Cal.Rptr. 1, 763 P.2d 852; People v. Martin (1989) 211 Cal.App.3d 699, 714, 259 Cal.Rptr. 770; see also CALJIC No. 3.36, given in this case.) Peabody rejected the holding in People v. Beaugez (1965) 232 Cal.App.2d 650, 658, 43 Cal.Rptr. 28, that "subdivision [a] does not require a criminal intent, but only a negligent placing of a child in a dangerous situation...." (46 Cal.App.3d at p. 48, 119 Cal.Rptr. 780.) Peabody has been cited with approval in subsequent cases. (See Walker v. Superior Court, supra, 47 Cal.3d at p. 135, 253 Cal.Rptr. 1, 763 P.2d 852; People v. Rippberger, supra, 231 Cal.App.3d at p. 1682, 283 Cal.Rptr. 111; People v. Pointer, supra, 151 Cal.App.3d at p. 1134, 199 Cal.Rptr. 357.)
In People v. Atkins (1975) 53 Cal.App.3d 348, 125 Cal.Rptr. 855, a felony prosecution involving inter alia section 273a, subdivision (a)(under branch ), and 273d (infliction of corporal punishment), this court distinguished Peabody. We asserted, based on a truncated reading of the statute, that a criminal negligence instruction was not required to be given sua sponte when the evidence pointed strongly to the direct infliction of physical pain and mental suffering on the child by the defendant. We said: "An instruction on 'criminal negligence' with its attendant elements of foreseeability and the like, would be entirely inappropriate in such a case." (Id. at p. 361, 125 Cal.Rptr. 855; also see, e.g., People v. Wright (1976) 60 Cal.App.3d 6, 14, 131 Cal.Rptr. 311, in which we reiterated this incorrect view.)
Atkins goes wrong in failing to consider that the statute requires that the direct infliction of physical pain must occur "under circumstances likely to produce great bodily harm or death...." We said in Atkins only that "[t]he statute requires, in subdivision Because of this critical omission, neither Atkins nor the cases following it considered whether in a section 273a, subdivision (a) case, involving the direct infliction of physical pain and suffering, the conduct must satisfy a criminal negligence standard, i.e., that the actor must know or should know that his conduct would likely produce great bodily harm or death. We thus look at the issue afresh.
As noted, the provision at issue, section 273a, subdivision (a) , states that it is a felony for any person to "inflict[ ] ... unjustifiable physical pain" upon a child "under circumstances or conditions likely to produce great bodily harm or death...." There are two possible readings of this provision. Either the defendant need have no reason to know that the "circumstances or conditions [under which the pain is inflicted are] likely to produce great bodily harm or death" or the same criminal negligence standard applicable to the third branch of the statute, as imported by People v. Peabody, supra, must also be satisfied. The latter is the more sensible reading. It is supported by two considerations.
Unlike the other branches of section 273a, this provision is not modified by the term "willfully", meaning "intentionally" with respect to the conduct to which the term is appended in the applicable criminal statute. (See Pen.Code, § 7; In re Stonewall F. (1989) 208 Cal.App.3d 1054, 1065-1066, 256 Cal.Rptr. 578.) However, we discern no distinction between "willfully inflicting" unjustifiable pain and "inflicting" unjustifiable pain. The term "inflict" ordinarily means that the pain inflicted is intentional. Although "inflict" can be loosely used to describe the unintentional cause of harm, the defendant is entitled to the benefit of the ambiguity in the statutory language. (People v. Craft (1986) 41 Cal.3d 554, 560, 224 Cal.Rptr. 626, 715 P.2d 585.) Thus, in a section 273a, subdivision (a) case the unjustifiable pain must be intentionally inflicted notwithstanding the absence of the modifier "willfully."
First, if the former reading is taken a different scienter and a different standard of culpability will apply depending upon the branch under which the section 273a prosecution occurs. Second, if criminal negligence regarding the likelihood of great bodily harm or death is not required under the second branch of section 273a, subdivision (a), the offense would be tantamount to a strict liability felony offense. That is the case because the branch otherwise requires only that unjustifiable (i.e., unreasonable) pain be administered, regardless whether the unreasonableness stems from the risk of great bodily harm or death. (See Curtiss, supra, 116 Cal.App.Supp. at p. 781, 300 P. 801.) If there is no baseline requirement of criminal negligence as to the likelihood of great bodily harm or death, any unwarranted or excessive corporal punishment, which however unforeseeably results in such harm, would be felonious.
We do not contend that the felony offense under the second branch of section 273a, standing alone, would constitute a strict liability offense. As noted, section 273a distinguishes the felony offense (subd. (a)) from the misdemeanor offense (subd. (b)) solely by the likelihood of great bodily harm or death. Without a mens rea regarding that element there is no difference in scienter between the felony and the misdemeanor offenses. That would render the felony offense, as we said, "tantamount" to a strict liability offense. It would impose felony liability for conduct with a scienter which the Legislature has determined only warrants misdemeanor punishment.
By comparison, the Model Penal Code provides that a general culpability requirement of at least recklessness applies to each material element of the defined offense, i.e., each element relating to the harm or evil sought to be prevented by the law defining the offense, unless a contrary purpose plainly appears. (See Model Pen.Code, §§ 1.13, subd. (10), 2.02, subd. (3).) The explanatory note to section 2.02, subdivision (3) of the Model Penal Code observes that this provides "a rough correspondence between this provision and the common law requirement of 'general intent.' "
Such a construction of a criminal statute is disfavored absent a clear indication of a contrary The dissent rejects our argument that the requirement of criminal negligence concerning the risk of great bodily injury or death should be applied to all branches to render the statutory scheme consistent. It says: "[g]iven the omnibus nature of section 273a, consistent standards of culpability are not possible." (Dis. opn. at p. 214.) However, neither the dissent, nor Atkins and its progeny, plausibly maintain this bold assertion.
The dissent suggests the difficulty inheres in the fact that both active and passive conduct can violate the statute. However, the branches of section 273a do not turn upon that distinction. As noted, they overlap in significant ways. For example, the same active conduct charged as "inflict [ing] ... unjustifiable physical pain or mental suffering" under branch two of the statute could be charged as "willfully caus[ing] ... any child to suffer" under branch one of the statute. The "omnibus nature of section 273a" does not require nor justify differing requirements of culpability with respect to the risk of great bodily harm or death, an element of each of the branches of section 273a, subdivision (a). Notwithstanding that it proscribes a wide variety of misconduct there is no good reason why culpability regarding the risk of great bodily harm should turn on which overlapping branch of the statute is charged.
In Atkins, as the dissent notes, infliction of pain and suffering consisted of literally beating to death a two and one-half year old victim. Given that outrageous conduct, it is tempting to dispense with the correct analysis of the need for a requirement of criminal negligence with respect to the risk of great bodily harm or death as caviling. However, that is not because the second branch of section 273a compels that meaning. It is because on such facts, absent insanity, there is no plausible claim of ignorance of the risk. However, this is not such a case.
While we do not condone the infliction of corporal punishment on infants, we cannot ascribe this meaning to the statute. Strict liability offenses are generally disfavored in the law and are usually applicable only where the "conduct poses a threat to public health or safety, the penalty ... is usually small, and the conviction does not do 'grave damage to an offender's reputation.' " (People v. Simon, supra, 9 Cal.4th at pp. 517-524, 37 Cal.Rptr.2d 278, 886 P.2d 1271.) The latter two conditions are not met by a felony conviction under section 273a, subdivision (a).
This brings us to the requirements for criminal negligence. As noted in Peabody, to find criminal negligence "the defendant's conduct must amount to a reckless, gross or culpable departure from the ordinary standard of due care; it must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life." (46 Cal.App.3d at p. 48-49, 119 Cal.Rptr. 780.) Two aspects of this definition deserve emphasis.
First, "[C]riminal negligence must be evaluated objectively." (Walker v. Superior Court, supra, 47 Cal.3d at p. 136, 253 Cal.Rptr. 1, 763 P.2d 852.) "A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness." (People v. Watson (1981) 30 Cal.3d 290, 296, 179 Cal.Rptr. 43, 637 P.2d 279, emphasis in original, citation omitted.) The scienter is measured by an "actual or constructive knowledge of the risk." (Williams v. Garcetti,supra, 5 Cal.4th at p. 574, 20 Cal.Rptr.2d 341, 853 P.2d 507, citing to People v. Rodriguez (1960) 186 Cal.App.2d 433, 440, 8 Cal.Rptr. Second, the harm to which criminal negligence is directed, in the context of section 273a, is the harm to "human life." That harm is expressed in section 273a, subdivision (a), as "great bodily harm or death...." Accordingly, criminal negligence in the context of section 273a, subdivision (a), is measured by whether the defendant knew or should have known of the likelihood that his conduct would produce great bodily harm or death. The latter criterion is satisfied if a reasonable person, aware of the same facts as the defendant, would have been aware of that risk. (See Watson, supra, 30 Cal.3d at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279.)
Watson distinguished gross negligence from implied malice, or that form of recklessness which "depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (Id. at pp. 296-297, 179 Cal.Rptr. 43, 637 P.2d 279, emphasis in original, citation omitted.)
We conclude that a felony conviction under any branch of section 273a, subdivision (a), cannot be upheld absent evidence warranting a finding that the defendant was at least criminally negligent as to the likelihood of great bodily harm or death resulting from his or her conduct.
This conclusion necessarily rules out the defendant's claim the trial court erred in instructing on the elements of section 237a, subdivision (a) in the manner of CALJIC No. 9.37, given in this case, without deleting all references to criminal negligence.
Often, as a matter of evidence, such a warrant is inherent in the nature of the mistreatment, e.g., an assault with a deadly weapon or by means commonly known likely to result in great bodily harm. However, the conduct of the defendant on this record is not of that kind. There is nothing in the record from which it can be inferred that the defendant knew or should have known of the risk of great bodily harm or death from shaking the infant, e.g., attendance at a prenatal education session concerning this risk. The only prosecution evidence of likely grave harm broached in the case is the shaken baby syndrome and the evidence is that the phenomenon was until recently unknown even to physicians. Nor can we take judicial notice that such a risk is generally known. The experienced trial judge in this case concluded that: "This Court is prepared to believe that [defendant] did not realize or anticipate that his actions would result in such severe injuries to the infant.... And perhaps most people who do that do not have any real sense that this is the likely consequence."
On this record we conclude that at the time of this offense the phenomenon of the shaken baby syndrome was not widely known to the lay public. We imply no view on the question whether publicity concerning the syndrome in the time since this offense has materially altered the state of common knowledge. The defendant denied knowledge of the syndrome and the record is devoid of evidence showing that he knew or should have known of the syndrome. Accordingly, there is no basis for a finding that he knew or should have known that great bodily injury or death is likely to result from shaking his baby.
It might also be possible to show that the manner of shaking an infant satisfies the standard of criminal negligence, e.g., because it risks great bodily harm or death of a kind not dependent upon the esoteric mechanism involved in the shaken baby syndrome (see generally, People v. Schmies (1996) 44 Cal.App.4th 38, 46, fn. 4, 51 Cal.Rptr.2d 185), i.e., one which a reasonable person would know, or because the defendant was warned in some manner of the possibility of shaken baby syndrome. However, that was not the rationale for this prosecution. No one suggests a basis of criminal negligence in this case other than by reason of the risk of shaken baby syndrome.
Nor was the prosecution predicated upon criminal negligence in dropping the child. The defendant did testify, as a defense to the charge he shook the baby, that he dropped The question then is whether the conviction must be reversed because of insubstantial evidence of the defendant's culpability on the shaken baby syndrome theory. The test is set out in the recent decision of People v. Guiton (1993) 4 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45. Where the jury is presented with two factual theories for conviction, one of which is predicated upon insufficient evidence, "the appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (Id. at p. 1130, 17 Cal.Rptr.2d 365, 847 P.2d 45.)
For the reasons we have given, we conclude that, on this record, there is far more than a "reasonable probability" that the jury in fact found the defendant guilty solely on the shaken baby syndrome theory. Accordingly, we conclude that the defendant's felony conviction cannot be affirmed.
The remaining question is whether the judgment may be modified to a conviction of the included misdemeanor violation of section 273a, subdivision (b). As noted, subdivision (b) differs from subdivision (a) in that it does not require that the infliction of pain occur in "circumstances or conditions likely to produce great bodily harm or death", the element to which the requirement of criminal negligence is directed. Rather, under subdivision (b) it is sufficient if the infliction of pain occurs conditions "other than" those likely to produce such harm.
The jury necessarily found that the defendant's conduct satisfied the elements of section 273a, subdivision (b). In such a case, if the conviction of the greater offense is infirm only on a ground that does not impugn a conviction of the lesser offense, we may modify the judgment to reflect a conviction of the lesser offense. (See e.g., People v. Kelly (1992) 1 Cal.4th 495, 499-500, 3 Cal.Rptr.2d 677, 822 P.2d 385.)
See footnote *, ante.
DISPOSITION
The judgment is modified to a conviction of one count of violation of section 273a, subdivision (b), a misdemeanor, and the matter is remanded to the trial court for resentencing. (See § 1181, subd. 6.) Except as modified, the judgment is affirmed.
SIMS, J., concurs.
PUGLIA, Presiding Justice, dissenting.
The court holds that criminal negligence is an element of violation of Penal Code section 273a, subdivision (a), as charged. I dissent.
In People v. Atkins (1975) 53 Cal.App.3d 348, 125 Cal.Rptr. 855 (Atkins ), this court held that where a charge of felony child abuse is premised on the direct infliction of unjustifiable physical pain or mental suffering, a showing of criminal negligence is not required. (53 Cal.App.3d at p. 361, 125 Cal.Rptr. 855.) The majority rejects Atkins and holds that criminal negligence is an element of the crime of violation of Penal Code section 273a (section 273a) as charged here. The majority then concludes the evidence is insufficient to show defendant knew or reasonably should have known that shaking an infant would likely result in great bodily harm or death. As a consequence defendant, who admitted twice shaking his four-month-old infant, triggering a massive brain hemorrhage and rendering the child unconscious and near death, is at most guilty of misdemeanor child abuse.
Section 273a, subdivision (a), provides:
"Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or By parsing the statute, its involutions can be resolved into four branches, each describing a distinct type of prohibited conduct: willfully causing or permitting any child to suffer, inflicting on any child unjustifiable physical pain or mental suffering, willfully causing or permitting the person or health of any child to be injured, and willfully causing or permitting any child to be placed in a situation such that its person or health is endangered.
Defendant was prosecuted and convicted under the second branch of section 273a, subdivision (a): the infliction of unjustifiable physical pain or mental suffering upon a child under circumstances or conditions likely to produce great bodily harm or death.
To constitute a violation of section 273a, subdivision (a), each of the four types of prohibited conduct must be willful (People v. Smith (1984) 35 Cal.3d 798, 806, 201 Cal.Rptr. 311, 678 P.2d 886) and must have occurred " 'under circumstances or conditions likely to produce great bodily harm or death.' " (Ibid.)
The mens rea of violation of section 273a, subdivision (a) can be "either general criminal intent or criminal negligence." (People v. Moten (1991) 229 Cal.App.3d 1318, 1328, 280 Cal.Rptr. 602.) Felony child abuse as proscribed by section 273a "can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect." (People v. Smith, supra, 35 Cal.3d at p. 806, 201 Cal.Rptr. 311, 678 P.2d 886; People v. Beaguez (1965) 232 Cal.App.2d 650, 656, 43 Cal.Rptr. 28 ["The type of conduct which this ... statute seeks to reach defies precise definition. In number and kind the situations where a child's life or health may be imperiled are infinite."].) Obviously, in those instances where the mens rea involved is criminal negligence, instructions to that effect, with their emphasis on reckless conduct and reasonably foreseeable consequences, are necessary, as numerous cases have held. (E.g., People v. Deskin (1992) 10 Cal.App.4th 1397, 1402-1403, 13 Cal.Rptr.2d 391; People v. Rippberger (1991) 231 Cal.App.3d 1667, 1682, 283 Cal.Rptr. 111; People v. Odom (1991) 226 Cal.App.3d 1028, 1032-1033, 277 Cal.Rptr. 265; People v. Pointer (1984) 151 Cal.App.3d 1128, 1134 and fn. 4, 199 Cal.Rptr. 357; People v. Hernandez (1980) 111 Cal.App.3d 888, 894-895, 168 Cal.Rptr. 898; People v. Peabody (1975) 46 Cal.App.3d 43, 46-49, 119 Cal.Rptr. 780.)
However, where the conduct at issue involves the willful, direct infliction of unjustifiable physical pain or mental suffering, criminal negligence is not an element of the offense. Such was our holding in Atkins, supra. There, the two and one-half-year-old victim was literally beaten to death by his mother and her live-in boyfriend. (53 Cal.App.3d at pp. 353-355, 125 Cal.Rptr. 855.) The mother was convicted of involuntary manslaughter and violation of section 273a, subdivision (a). (Id., at p. 352, 125 Cal.Rptr. 855.) On appeal, the mother contended the trial court erred in failing to instruct, sua sponte, that a conviction of violation of section 273a, subdivision (a) requires criminal negligence. This court found no merit in her contention: "The statute requires, in subdivision [ (a) ], that for a person to be guilty of the offense, he willfully cause or permit injury to a child.... [An instruction on criminal negligence was not] requested in the instant case, and we hold it was not required, sua sponte, for the reason ... the evidence in the case at bench pointed strongly to direct infliction of physical pain and mental suffering on the child by the defendant herself. An instruction on 'criminal negligence' with its attendant elements of foreseeability and the like, would be entirely inappropriate in such a case." (Id., at p. 361, 125 Cal.Rptr. 855; italics omitted; accord People v. Wright (1976) 60 Cal.App.3d 6, 13-14, 131 Cal.Rptr. 311, criticized on other grounds in People v. Wells (1996) 12 Significantly, in other cases concerning the direct infliction of pain and suffering, criminal negligence is hardly mentioned (see e.g. People v. Smith, supra, 35 Cal.3d at pp. 802-808, 201 Cal.Rptr. 311, 678 P.2d 886; People v. Jaramillo (1979) 98 Cal.App.3d 830, 835, 159 Cal.Rptr. 771; People v. Ewing (1977) 72 Cal.App.3d 714, 716-718, 140 Cal.Rptr. 299; Iiams v. Superior Court (1965) 236 Cal.App.2d 80, 83, 45 Cal.Rptr. 627), and when defendant has raised the issue, its applicability has been rejected outright by the court. (E.g., People v. Wright, supra, 60 Cal.App.3d at pp. 13-14, 131 Cal.Rptr. 311; Atkins, supra, 53 Cal.App.3d at p. 361, 125 Cal.Rptr. 855.)
The majority suggests that unless criminal negligence is recognized as an element of the offense of willfully inflicting unjustifiable physical pain or mental suffering on a child, different standards of culpability will apply depending upon the particular branch of section 273a, subdivision (a) under which the prosecution occurs. I fail to see any problem with this result. Given the omnibus nature of section 273a, consistent standards of culpability are not possible. The Legislature obviously was aware that child abuse and endangerment can occur in an infinite variety of settings, running the gamut from direct assault to passive abuse. (People v. Smith, supra, 35 Cal.3d at p. 806, 201 Cal.Rptr. 311, 678 P.2d 886; People v. Deskin, supra, 10 Cal.App.4th at p. 1402, 13 Cal.Rptr.2d 391 ["The number and kind of situations where a child's life or health may be imperiled are infinite. [T]he statute [seeks] to protect children from willful mistreatment whether directly or indirectly applied."]; People v. Lee (1991) 234 Cal.App.3d 1214, 1228, 286 Cal.Rptr. 117.) It is hardly surprising that different standards of culpability apply depending on the context in which the proscribed conduct takes place. (Cf. People v. Patterson (1989) 49 Cal.3d 615, 624-625, 262 Cal.Rptr. 195, 778 P.2d 549.)
The majority also concludes that if criminal negligence is not recognized as an element of the crime of inflicting unjustifiable physical pain or mental suffering on a child, that branch of section 273a, subdivision (a), would be tantamount to a strict liability crime. I disagree. Generally speaking, a strict liability offense is one which dispenses with a mens rea, scienter or wrongful intent element. (See People v. Simon (1995) 9 Cal.4th 493, 519-522, 37 Cal.Rptr.2d 278, 886 P.2d 1271, and authorities cited therein.) Child abuse under the second branch of section 273a, subdivision (a) requires a mens rea: defendant must willfully inflict unjustifiable physical pain or mental suffering on the child, that is, the act of infliction must be intentional.
It is for the trier of fact to determine whether such intentional act was done "under circumstances or conditions likely to produce great bodily harm or death" (§ 273a, subd. (a)), i.e., under conditions "in which the probability of serious injury is great." (People v. Jaramillo, supra, 98 Cal.App.3d at p. 835, 159 Cal.Rptr. 771.) If so, the crime is a felony; if not, it is a misdemeanor. (People v. Deskin, supra, 10 Cal.App.4th at p. 1401, 13 Cal.Rptr.2d 391.)
Section 273a, subdivision (a) is not unlike other criminal statutes which gauge the degree of culpability for an intentional act according to matters extrinsic to the intent element of the crime. The actor may neither anticipate nor have any particular intent or knowledge with respect to these extrinsic matters. For example, a thief who was unaware the property he stole was worth more than $400 has no defense against conviction of grand theft because of his ignorance of the value of the property stolen. (See §§ 487, 488.) Nor may a burglar, unaware the structure he entered was inhabited, avoid conviction of first degree burglary on the ground of such ignorance. (See §§ 459, 460.) Thus the scienter required for felony and misdemeanor theft is precisely the same. So also is the scienter required for first degree burglary and the lesser crime of second degree burglary.
The foregoing are merely examples of violations of criminal laws where the precise measure of defendant's culpability depends upon facts extrinsic to intent or knowledge. (See Burg v. Municipal Court (1983) 35 Cal.3d 257, 270, 198 Cal.Rptr. 145, 673 P.2d There is a close analogy between felony child abuse and felony assault. Penal Code section 245, subdivision (a)(1) makes it a felony for any person "by means of force likely to produce great bodily injury" to commit an assault upon another. Felony assault does not require a specific intent to produce great bodily injury. (People v. Covino (1980) 100 Cal.App.3d 660, 667-668, 161 Cal.Rptr. 155.) Rather, it is a general intent crime. (People v. Martinez (1973) 31 Cal.App.3d 355, 359, 107 Cal.Rptr. 284.)
" 'The gravamen of the crime defined by [Penal Code] section 245 is the likelihood that the force applied or attempted to be applied will result in great bodily injury.' (People v. McCaffrey (1953) 118 Cal.App.2d 611, 618-619 [258 P.2d 557].) The criminal law thus independently sanctions the initiation of force or violence--the 'assault'--because it directly and immediately culminates in injury--the 'battery.' (See People v. Hunter (1925) 71 Cal.App. 315, 319 [235 P. 67].) Based on this apposition, each constitutes a discrete offense for which only an intent to commit the proscribed act is required. (See People v. Yslas (1865) 27 Cal. 630, 633; People v. McMakin [1857] 8 Cal. [547,] 548.)
"Considered from this perspective, it is clear that the question of intent for assault is determined by the character of the defendant's willful conduct considered in conjunction with its direct and probable consequences. If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed. Since the law seeks to prevent such harm irrespective of any actual purpose to cause it, a general criminal intent or willingness to commit the act satisfies the mens rea requirement for assault. ' As Professor Perkins puts it: "Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)." ' [Citation omitted.]" (People v. Colantuono (1994) 7 Cal.4th 206, 217, 26 Cal.Rptr.2d 908, 865 P.2d 704, italics added.)
As it is with assault by means of force likely to produce great bodily injury, so it is with infliction on a child of unjustifiable physical pain or mental suffering under circumstances or conditions likely to produce great bodily harm or death. Only a general criminal intent to commit the prescribed act (infliction of unjustifiable physical pain or mental suffering) is required. Whether the intended act in its nature is one likely to produce great bodily harm or death is a question for the jury. It is not required that the actor intend to produce great bodily injury or death (see People v. Covino, supra, 100 Cal.App.3d at p. 666, 161 Cal.Rptr. 155), nor is it required that he know or should know the act is intrinsically capable of causing such consequences.
A defendant who intentionally inflicts unjustifiable pain or mental suffering on a child is guilty of the crime of child abuse. The nature of the crime as felony or misdemeanor depends on the fact finder's determination whether the crime was committed "under circumstances or conditions likely to produce great bodily harm or death[.]" (See § 273a, subds. (a), (b).) There is sufficient evidence in the record to support the jury's implied finding that shaking a four-month-old infant creates a substantial probability that serious injury or death will result. Since defendant's act clearly occurred under "circumstances or conditions likely to produce great bodily harm or death" (§ 273a, subd. (a)), I would affirm the conviction.
"(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.
"(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor."
"Whoever shall willfully cause or permit any child to suffer, or who shall inflict thereon unjustifiable physical pain or mental suffering, and whoever, having the care or custody of any child, shall willfully cause or permit the life or limb of such child to be endangered, or the health of such child to be injured, or any person who shall willfully cause or permit such child to be placed in such a situation that its life or limb may be endangered, or its health shall be likely to be injured, shall be guilty of a misdemeanor." (Ibid.)
He argues that the unredacted pattern instruction is incorrect in the circumstances of this case because (he asserts) the only possible theory in this case is an intentional harm theory under the second branch of the statute, but the instruction also addresses criminal negligence.
The defendant utterly fails to explain the assertion that the only possible theory is one of intentional act. A failure to catch an infant thrown into the air is on its face inexplicable and could qualify as criminal negligence.