Other Cases Affecting Children

People v. Stewart (2000) 77 Cal.App.4th 785 [91Cal.Rptr.2d 888]. Court of Appeal, Fourth District, Division 1.

In an adult criminal proceeding, the defendant was convicted of assault on a child under 8 years of age resulting in death (Penal Code section 273ab). The police responded to a 911 call from the defendant that his child had stopped breathing. The police found the defendant attempting to conduct CPR on his 2 ½-year-old child. The child had died well before the paramedics arrived. The medical examiner concluded that the cause of death was from brain damage and swelling resulting from severe shaking or repeated blunt-force blows to the back of the child’s head. Based on the evidence, the jury determined that the defendant had violated Penal Code section 273ab. The defendant challenged the sufficiency of one of the required elements of Penal Code section 273ab. He also contended that the trial court had failed to instruct the jury on lesser-included offenses.

The Court of Appeal, in a partially published opinion, affirmed the jury’s conviction under section 273ab. The defendant argued that there was no evidence presented to establish the element of section 273ab requiring that, to a reasonable person, the assault was committed by a force likely to cause great bodily injury. People v. Preller (1997) 54 Cal.App.4th 93, 97-98, 62 Cal.Rptr.2d 507. The Court of Appeal determined that the expert testimony describing the extent of the child’s injuries provided substantial evidence to meet this element of the offense. According to the medical examiner, the defendant caused 25 bruises to the back of the child’s head and that the child had sustained head injury as if he had been dropped from a high- rise building. The appellate court stated that a reasonable person would clearly know that either violent shaking or repeated blunt blows to a child’s head would likely produce great bodily injury.

The Court of Appeal held that the trial court had no duty to instruct the jury of the purported lesser-included offenses of involuntary manslaughter or second degree felony murder. The general rule is that the court has a duty to instruct the jury on all principles of law relevant to the issues raised by the evidence. People v. Hood (1969) 1 Cal.3d 444, 449, 82 Cal. Rptr. 618. It is judicial error for the court to instruct the jury on a lesser-included offense if the defendant, if guilty at all, could only be guilty of the greater offense. In this case, the court relied upon Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 86 Cal.Rptr.2d 384, to conclude that involuntary manslaughter is a lesser-related offense of section 273ab and not a lesser-included offense. The court had no duty to instruct the jury of involuntary manslaughter. The court also determined in accord with People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr.188, that the felony-murder rule was inapplicable to those felonies, which were an integral part of the homicide. The assault likely to produce great bodily injury in this case was an integral part of the child’s death. The trial court had no duty to instruct the jury of the lesser-included offense of second- degree felony murder.