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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Victor Darnell JACKSON, Defendant and Appellant.


Decided: January 25, 1984

Robert Buckley, Livermore, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Gloria F. DeHart, Marty A. Roth, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Victor Darnell Jackson, Sr., appeals his conviction of second degree murder (and the use of a deadly weapon in the commission thereof) in the death of his son, Vic Jr.

In April 1981, appellant, his wife Sheila, and his three children (Jevon, then aged four years;  Vic Jr., 33 months;  and Inez, 9 months) resided in an apartment in Oakland, California;  Sheila's brother Carl Abrams and his wife, Robin, occupied the adjoining apartment.   During the late evening hours of April 5, 1981, a violent argument erupted between Mr. and Mrs. Abrams in which appellant and his wife became involved as mediators.   During the course of the dispute, which shifted back and forth between the two apartments until 4 or 5 a.m. the following morning, appellant had occasion to confiscate from his brother-in-law a wooden closet dowel (36″ long and 2″ thick) with which the Abrams' had been alternatively threatening each other.   Appellant hid this dowel underneath his bed.

From the conclusion of this argument at approximately 5 a.m. on April 6 until late on the same afternoon, appellant slept fitfully, his rest being repeatedly interrupted by domestic noise, and particularly by children running in and out of the apartment.   When appellant finally arose at 4:30 p.m. Jevon was outside playing;  Vic Jr. was indoors watching television.   While Sheila told Vic Jr. he could stay indoors, Jackson insisted the child get dressed and go outside.   Sheila washed Vic Jr. and started to dress him.   Appellant became impatient with this procedure and insisted that Vic Jr. dress himself.   The child began to cry, and, in his confusion, put his pants on backwards.   Appellant slapped him on the head and ordered him to undress and go to bed.   Vic Jr. got into bed but refused to undress, which apparently enraged appellant.   He returned to his bedroom and, retrieving the closet dowel from under the bed, broke it in half by striking it against a table.   His wife attempted to stop him from hitting the child but was shoved aside.   As Sheila retreated to her bedroom, defendant hit Vic Jr. twice on the thigh with the dowel.   Appellant then grabbed the child by the neck, shook him, picked him up by the throat, and choked him for approximately one minute until the child passed out.

After a brief argument with his wife in another part of the house, Jackson returned to Vic Jr.'s bedroom, where the child was beginning to revive.   Jackson then picked up one of the pieces of the broken dowel (approximately 18″ long) and struck Vic Jr. on the head a number of times, after which the boy fell, striking his head on the corner of a dresser.   Appellant then left the room.

Following yet another series of altercations with his wife, appellant returned to Vic Jr.'s room and, noting that the child was unconscious, attempted to revive him.   Sheila entered the room and, observing the child's condition, panicked and fled to the Abrams' apartment for help.   A neighbor called an ambulance and notified the police.   Vic Jr. was alive when the ambulance arrived, but was pronounced dead at 9 p.m. that evening, the cause of death being cardiac arrest resulting from brain stem injury.   An autopsy revealed multiple injuries, including seven areas of trauma to the head and evidence of strangulation.

On this appeal appellant's principal assignment of error is that the jury should not have been instructed on second degree felony-murder because the underlying felony—Penal Code section 273d (child abuse)—is not one inherently dangerous to human life;  and, alternatively, that the violation of Penal Code section 273d was an integral part of, and included within, the crime of homicide.   In addition, appellant urges reversal on grounds of erroneous admission of uncharged offenses and prosecutorial misconduct.

Respecting the contention that Penal Code section 273d is not a felony inherently dangerous to human life, appellant relies on the holding of People v. Satchell (1971) 6 Cal.3d 28, 98 Cal.Rptr. 33, 489 P.2d 1361 that, in assessing whether a felony is inherently dangerous to human life, the court must “ ‘look to the elements of the felony in the abstract, not the particular “facts” of the case.’ ”  (Id., at p. 36, 98 Cal.Rptr. 33, 489 P.2d 1361.)   Appellant contends that since Penal Code section 273d can be violated without life-threatening violence (i.e., since the “injury” or “traumatic condition” proscribed by the statute need not necessarily be a mortal one), it is not, therefore, when viewed in the abstract, inherently dangerous to human life.

Penal Code section 273d provides:  “Any person who willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for 2, 3 or 4 years, or in the county jail for not more than one year.”

Appellant has provided this court with correct definitions of “traumatic condition,” “wounds,” and “injury.”   Significantly, however he provides no definitions for the terms “cruel,” “inhuman,” or “corporal punishment.”   We must therefore seek elucidation of these terms elsewhere.

Webster's Third New International Dictionary (Unabridged) defines “corporal punishment” as “1:  punishment applied to the body of an offender including the death penalty, whipping, and imprisonment 2:  punishment administered by an adult (as a parent or a teacher) to the body of a child ranging in severity from a slap to a spanking.”   It is evidently in the latter-defined range of severity that appellant would have us place his conduct in his contention that Penal Code section 273d can be violated by conduct which is not life-endangering.   To maintain this, however, is in our opinion to ignore the statutorily provided qualifiers “cruel” and “inhuman.”

Webster's Dictionary, supra, defines “cruel” as “1a:  disposed to inflict pain esp. in a wanton, insensate or vindictive manner ․ b:  rapacious, ravening:  given to killing and mangling or to tormenting prey ․ 2a:  ․ causing or conducive to injury, grief, or pain ․ 3:  severe, distressing:  extremely painful ․”  The same authority defines “inhuman” as “1a:  lacking the qualities of mercy, pity, kindness, or tenderness:  cruel, barbarous, savage ․ c:  not worthy of or conforming to the needs of human beings ․”

 It should be apparent from the mere recitation of the meanings ascribed to “cruel” and “inhuman” that corporal punishment imposed in such a spirit and manner would be inherently dangerous to human life;  the more so when one considers the fragility and vulnerability of the child-victims which Penal Code section 273d seeks to protect.   For these reasons we hold that conduct violative of Penal Code section 273d is abstractly and by definition inherently dangerous and will hence support a second degree felony-murder instruction.

In the alternative, however, appellant, relying on the rules laid down by People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 and People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, contends that the felony-murder instruction was improper because the homicide and the underlying violation of Penal Code section 273d occurred during the same course of conduct and with the identical purpose of inflicting violent bodily injury.   If so, it is argued, appellant's purpose cannot be said to involve a felonious intent independent of the homicide, and hence the felony-murder instruction was error.

The context and analytical framework in which we consider this issue have been enunciated by this court in People v. Northrop (1982) 132 Cal.App.3d 1027, 182 Cal.Rptr. 197.   There, in considering and rejecting the same argument in regard to Penal Code section 273, subdivision (a)(1) (child endangering), we observed:  “The Ireland doctrine is designed to prevent establishing the element of malice merely by proof of the commission of a felony which is an integral part of the homicide itself.  [Citation.]  ‘The felony-murder rule allows the implication of malice as an element of murder from the committing of an inherently dangerous felony’ ․ but justification for the rule is found in the need to discourage the commission of felonies.  [Citations.]

“Since the effect of the felony-murder doctrine is to erode the relationship between criminal liability and moral culpability, the Supreme Court has declared the caveat that the doctrine ‘ “should not be extended beyond any rational function that it is designed to serve.” ’  [Citations.]  Accordingly, it is well-settled that the rule should be given the ‘narrowest possible application consistent with its ostensible purpose—which is to deter those engaged in felonies from killing negligently or accidentally.’  [Citation.]

“The ‘Ireland ’ doctrine furthers this goal by precluding use of the felony-murder doctrine where the underlying felony is ‘a necessary ingredient of the homicide,’ or its elements ‘were necessary elements in the homicide.’   [Citation.]  The rule is to be applied only when the subject felony is ‘independent of the homicide.’

“In People v. Burton, supra, 6 Cal.3d 375 [99 Cal.Rptr. 1, 491 P.2d 793], however, the Supreme Court specifically rejected the notion that Ireland and Wilson should be interpreted ‘to mean ․ that if the facts proven by the prosecution demonstrate that the felony offense is included in fact within the facts of the homicide and integral thereto, then that felony cannot support a felony-murder instruction.’  ․ The court explained that the purpose of the felonious conduct must be examined, and noted that in both Ireland and Wilson ‘[t]he desired infliction of bodily injury was in each case not satisfied short of death.’

“In People v. Mattison (1971) 4 Cal.3d 177 [93 Cal.Rptr. 185, 481 P.2d 193] ․ application of the felony-murder rule was upheld against a challenge based upon the ‘Ireland ’ doctrine under circumstances we find analogous to the present case.   The underlying felony was administering poison with the intent to injury.  (Pen.Code, § 347.)   The court reasoned that application of the felony-murder rule served as a deterrent since the underlying felony could be committed without an intent to cause death-producing injuries․  Accordingly, application of the felony-murder rule was found proper because the underlying felony was committed with a ‘ “collateral and independent felonious design.” ’  ․”  (Id., at pp. 1032–1035, 182 Cal.Rptr. 197.)

 Summarizing the foregoing, then;  if it appears that a course of conduct has but a single purpose, the felony is “merged” into the homicide and hence will not support a felony-murder instruction.   If, however, the conduct manifests a collateral felonious intent, then it will support such an instruction.   And the mere fact that an assault is part of the underlying felony is not necessarily determinative of the issue.

 In the instant case, we find discernible in appellant's conduct an independent, collateral purpose separate from the intent to inflict bodily harm.   That purpose was to punish;  to chastise;  to bend the child's actions into conformity with his father's idea of propriety, and to impress upon him the virtue of obedience.   That this is indeed the case is evidenced by the testimony of the defense psychiatrist:

“Q. Now, is it your opinion then that at the time that the defendant hit this small child on the head with this closet rod that he intended to hurt that child? ․

“The Witness:  In his mind, the frame of mind, he was carrying out ‘Spare the rod and spoil the child,’ and using this as a correction for his kid's [sic] failure to obey him, that obedience is one of the virtues, that he had the feeling that the kid [sic] should have obedience and respect so that when he stated something, the kid [sic] was supposed to follow through on those particular orders and, if not, then he was supposed to be impressed that that is what he was supposed to do․”

“Q. But he was trying to hurt the child when he hit him with the club or he was just trying to do him good by making him obey?

“A. My conceptualization of it is that he started off punishing the kid [sic] and then in his state or rage it went further than he had intended to go․”

“Q. Now, did he have a motive such as persuasion in inflicting this pain and suffering on that child?

“A. Yes.   He had a motive.

“Q. And what was that motive, sir?

“A. The motive was to make the child become aware, remember and give him respect and become an obedient child, for the purpose of making him into an obedient adult.

“Q. I see.   Now was he immediately seeking to persuade the child to conform to the defendant's idea of propriety?

“A. To his ideas of propriety, yes․”

“Q. Now, would it have made any difference to the defendant in your opinion if the child had picked up his clothes, as the defendant wanted him to?

“A. Yes.

“Q. Would it have saved that boy's life if he had obeyed his father?

“A. Probably.

“Q. So the defendant did have certain options open to him, did he not?

“A. Yes.”

While such an intent (i.e., chastisement) is not in itself a felonious one, the intent to chastise in a “cruel or inhuman” (inherently dangerous) manner is felonious.   Moreover, we note that a murder conviction predicated upon a violation of Penal Code section 273d under the circumstances here presented is entirely congruent with the public policy underlying the felony-murder rule which is “to deter those engaged in felonies from killing negligently or accidentally.”  (People v. Satchell (1971) 6 Cal.3d 28, 34, 98 Cal.Rptr. 33, 489 P.2d 1361.) 1

Appellant also contends that the admission into evidence of his prior misdemeanor conviction for violating Penal Code section 273d (an October 1979 incident in which he was charged with beating his son Jevon, the older brother of Vic Jr.) fails to satisfy the criteria for the admissibility of such evidence required by our high court in People v. Thompson (1980) 27 Cal.3d 303, 315–318, 165 Cal.Rptr. 289, 611 P.2d 883.   Specifically, the contention is that such evidence lacked substantial probative value sufficient to outweigh its prejudicial nature and hence should have been excluded under Evidence Code section 352.2

Evidence Code section 1101, subdivision (a) provides in pertinent part that “evidence of a person's character or trait of his character (․ in the form of ․ specific instances of conduct) is inadmissible when offered to prove his conduct on a specified occasion.”  Evidence Code section 1101, subdivision (b) provides:  “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”

Referring to these two subdivisions of the Evidence Code, one court has commented that “In practical terms ․ the defendant always starts his discussion with a quotation from Evidence Code section 1101, subdivision (a) and the Attorney General starts his with a quotation from Evidence Code section 1101, subdivision (b).”  (People v. Haslouer (1978) 79 Cal.App.3d 818, 825, 145 Cal.Rptr. 234.)

Further, “the cases illustrating the exceptions are so much more numerous than those applying the exclusionary rule that it has been suggested that the true rule could be more realistically stated in an affirmative form:  That evidence of other crimes is admissible whenever it is relevant to a material issue, and that it should be excluded only where its sole purpose and effect is to show the defendant's bad moral character (disposition to commit crime).”  (Witkin, Cal.Evidence (2d ed. 1966) § 341, p. 300.)   Indeed, the rule often has been formulated in the affirmative:  People v. Washington (1969) 71 Cal.2d 1061, 1081, 80 Cal.Rptr. 567, 458 P.2d 479;  People v. Hill (1967) 66 Cal.2d 536, 557, 58 Cal.Rptr. 340, 426 P.2d 908;  People v. Kelley (1967) 66 Cal.2d 232, 239, 57 Cal.Rptr. 363, 424 P.2d 957.)

As noted, criteria for the admissibility of such evidence have been laid down in People v. Thompson (1980) 27 Cal.3d 303, 315–318, 165 Cal.Rptr. 289, 611 P.2d 883.   As summarized by appellant, they require that the evidence relate to a material fact in dispute;  have substantial probative value;  not be admitted merely to prove criminal disposition;  and not be cumulative.

 This determination of admissibility lies, however, within the sound discretion of the trial court.  (People v. Schader (1969) 71 Cal.2d 761, 775, 80 Cal.Rptr. 1, 457 P.2d 841;  People v. Garrison (1967) 252 Cal.App.2d 511, 514, 60 Cal.Rptr. 596;  People v. Kerry (1967) 249 Cal.App.2d 246, 252, 57 Cal.Rptr. 289.)   And “It is well-settled that a trial court's exercise of discretion under Evidence Code section 352 will not be reversed on appeal absent a clear showing of abuse.  [Citations.]”  (People v. Northrop, supra, 132 Cal.App.3d 1027, 1041, 182 Cal.Rptr. 197.)

 In the case at bench, appellant's claim of diminished capacity and his statement to the police to the effect that he did not realize “how hard I was doing to him [Vic Jr.]” placed in issue his intent and knowledge;  his state of mind became clearly material.   His previous conviction of the same offense within 18 months of the current incident certainly had probative value in respect to his awareness of the medical and legal consequences of his actions.   The trial court admitted the evidence for these limited purposes, and so instructed the jury.   Accordingly, on the present record, we are unable to say that the trial court erred in concluding that the probative value of the prior conviction outweighed its prejudicial impact on the jury.

Lastly, appellant assigns as prosecutorial misconduct—“appeals to passion and prejudice”—the following comments by the district attorney:  that the case was “gross” and one in which a “baby [was] being slaughtered”;  that the defendant's psychiatric testimony was “full of prunes”;  and that appellant's diminished capacity defense was a “Dan White” attempt at obfuscation.

 The prosecution is of course allowed a wide range of descriptive comments, provided they are reasonably warranted by the evidence.  (People v. Wein (1958) 50 Cal.2d 383, 396, 326 P.2d 457.) 3  The prosecutor may draw conclusions from the evidence presented and state them to the jury.   (People v. Eggers (1947) 30 Cal.2d 676, 693, 185 P.2d 1.)  “ ‘ “The right of counsel to discuss the merits of the case, both as to the law and the facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn thereform ․” ’ ” (People v. Beivelman (1968) 70 Cal.2d 60, 76–77, 73 Cal.Rptr. 521, 447 P.2d 913, citing People v. Sieber (1927) 201 Cal. 341, 355–356, 257 P. 64.) 4

 In our view, given the sordid nature of appellant's offenses, both the prosecutor's characterization of the evidence and his rude characterization of the defense psychiatrist's testimony fall within the bounds of permissible advocacy.   In commenting upon these matters, the prosecutor was not attempting to add to the evidence or introduce inflammatory elements without factual premises.

 Specifically, references to the Dan White trial,5 while not to be condoned as exemplary practice, was in any event not so prejudicial as to warrant reversal.   Even in a case where prosecutorial misconduct is shown, reversal will not result unless the misconduct can be said to have contributed materially to the verdict in a closely balanced case, or was of such a magnitude that it could not have been cured by proper admonition.   (People v. McDaniel (1976) 16 Cal.3d 156, 176, 127 Cal.Rptr. 467, 545 P.2d 843.)   We see nothing “close” about the present record;  and even were it to be so viewed, the trial court's timely admonitions negated the reasonable possibility of prejudice.

The judgment is affirmed.


1.   We are painfully aware of the fact that in the area of child abuse greater deterrence is sorely needed.   Statistics for the State of California reveal that in 1981, 28,579 cases of physical abuse of children were reported statewide, of which 79 resulted in fatalities.  (Source:  California Department of Social Services.)   The moral cost of these terrifying statistics is incalculable.

2.   Evidence Code section 352 provides, in pertinent part:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ․ (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

3.   Overruled on other grounds in People v. Daniels (1969) 71 Cal.2d 1119, 1140, 80 Cal.Rptr. 897, 459 P.2d 225.

4.   People v. Sieber, supra, was disapproved on other grounds in People v. Marsh (1962) 58 Cal.2d 732, 746, 26 Cal.Rptr. 300, 376 P.2d 300.

5.   Concerning which uninformed comment promises to be eternal.

NEWSOM, Associate Justice.

RACANELLI, P.J., and ELKINGTON, J., concur.