PEOPLE v. JOSEPH (1982)

Appellant Harold Joseph was convicted of the second degree murder of his three-year-old daughter.

The girl died of brain injury.   Medical examination showed three severe blunt-force head injuries, retinal hemorrhaging, bruises about the face, minor injury to the liver and spleen, and some old injuries.   Doctors were of the opinion that the retinal hemorrhaging was caused by severe shaking, that the other new injuries could have been caused by blows from a fist, and that the pattern of new and old injuries showed the “battered child syndrome.”   The child's mother, immunized from prosecution, testified that appellant had admitted to her that he “went off” on the girl.

Appellant testified that the death was accidental.   He was putting the girl in the bathtub when she slipped from his arm and hit her head.   When he tried to pick her up, she slipped and hit her head again.   Her body became rigid, and he shook her vigorously and pushed on her abdomen to try to revive her.   Appellant attributed the girl's old injuries to abuse by her mother and denied that he admitted having hit her.

The court instructed the jury as to the principles of second degree murder on a theory of express malice and that “malice is implied when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life.”  (CALJIC No. 8.11 (1979 Rev.).)  The court further instructed that Penal Code section 273d,¹ which it defined, was “such a felony” and that, if the killing were “intentional, unintentional or accidental” but occurred as a result of the intentional commission of a violation of section 273d, then the killing was second degree murder.  (CALJIC No. 8.32.)   The jury was instructed not to consider murder on any other theory unless it had a reasonable doubt as to second degree felony-murder.

In so instructing the jury, the court erred, and the error was prejudicial, as we will explain.   We will also address other of appellant's contentions which may arise on retrial.

1. Propriety of Second Degree Felony-Murder Instructions.

The propriety of the felony-murder instructions depends upon two factors:  (A) whether section 273d defines an inherently dangerous felony and (B) whether the violation of that section was an integral part of the killing or, instead, sufficiently independent and collateral.

People v. Satchell (1971) 6 Cal.3d 28, 35, fn. 14, 98 Cal.Rptr. 33, 489 P.2d 1361, instructs us that the first factor is logically precedent.   However, we find that the two factors are logically interrelated, such that, at least in this case, the reasons for holding the felony to be inherently dangerous are reasons for holding that it was an integral part of the killing, and that arguments that the felony was independent and collateral are arguments that it was not inherently dangerous.   We therefore consider both factors.

(A) Does 273d define an inherently dangerous felony ?

 In People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892, the Supreme Court held that “A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen.Code, § 189) constitutes at least second degree murder.”   In determining whether a felony is inherently dangerous to human life, “we look to the elements of the felony in the abstract, not the particular ‘facts' of the case.”  (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5, 47 Cal.Rptr. 7, 406 P.2d 647;  People v. Phillips (1966) 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353.)   Thus, for example, “escape” (Pen.Code, § 4532) is not an inherently dangerous felony, because, although it may be committed by means of life-endangering violence, it may also be committed without force.  (People v. Lopez (1971) 6 Cal.3d 45, 51–52, 98 Cal.Rptr. 44, 489 P.2d 1372.)

 Whether Penal Code section 273d defines an inherently dangerous felony depends on whether that section can be violated without life-endangering violence.   Can there be a “corporal punishment or injury resulting in a traumatic condition” (see fn. 1, supra) which is not inherently dangerous to life?   It would seem that some of the ordinary forms of corporal punishment—e.g., a spanking—could, if carried to excess, result in a traumatic condition but without endangering the life of a child.

People v. Shockley (1978) 79 Cal.App.3d 669, 676–677, 145 Cal.Rptr. 200, held that Penal Code section 273a, subdivision (1),² which is similar to section 273d, is an inherently dangerous felony, but an element of that offense is that it be committed “under circumstances or conditions likely to produce great bodily harm or death ․”   That offense, unlike a violation of section 273d, cannot be committed without endangering a child's life.   It is probably for that reason that sections 273a and 273d provide the same punishment, even though 273a requires only pain or suffering, while 273d requires an injury.

(B) Was the violation of 273d an integral part of the killing?

In People v. Ireland (1969) 70 Cal.2d 522, 539, 75 Cal.Rptr. 188, 450 P.2d 580, the Supreme Court held that the application of the second degree felony-murder rule may not be “based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.”   Thus, for example, in People v. Berry (1976) 18 Cal.3d 509, 518, footnote 4, 134 Cal.Rptr. 415, 556 P.2d 777, the People conceded and the court held that it was error to instruct as to second degree felony-murder based on assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)), where the defendant had strangled his wife.   On the other hand, the application of the rule can be based on a felony committed “for an independent felonious purpose.”  (People v. Burton (1971) 6 Cal.3d 375, 387, 99 Cal.Rptr. 1, 491 P.2d 793.)

 It would appear in this case that appellant's violation of Penal Code section 273d—on the prosecution's evidence, by means of blows by the fist—was an integral part of the homicide and was included in fact within the murder charge—i.e., it “merged” therewith.

 Respondent argues that appellant's assault on the child was for “an independent felonious” purpose in that his intention was to punish the girl.   But an intention to punish is not felonious.   And any intention on appellant's part to punish the child was not independent of his willfully inflicting injury on her, because, on the prosecution's theory, he injured her in order to punish her.

Respondent also argues that Ireland concerned an underlying felony which involved an intent to inflict a serious injury whereas the violation of section 273d in this case may have involved an intent to inflict a minor injury:  “It does not necessarily involve an intent to cause serious injury likely to result in death.”   But that distinction is an argument that section 273d is not a felony inherently dangerous to human life.  (See part 1(A) above.)

Respondent further argues that the purpose of the felony murder rule—to deter the use of excessive force and to encourage the defendant to use due care, which People v. Mattison (1971) 4 Cal.3d 177, 185, 93 Cal.Rptr. 185, 481 P.2d 193, says, could have no effect where the defendant is already using deadly force—would be served by applying it to 273d.   But that, too, is an argument that 273d is not a felony inherently dangerous to human life.

Thus we conclude that, even if Penal Code section 273d is an inherently dangerous felony, nevertheless in this case the violation of that section was an integral part of the homicide and included in fact in the murder charge.   If the action and intent of the appellant which constituted a violation of section 273d could be separated from the action and intent which caused the death of the child, then section 273d could, in the abstract, be committed without endangering life, and it would not be an inherently dangerous felony.   In either case, it was error to instruct as to second degree felony-murder.

(C) Was the error prejudicial ?

Respondent argues that the error was not prejudicial because the jury's verdict shows that it would have found appellant guilty of second degree murder on a non-felony-murder theory, and the evidence of murder on such theory was sufficient.

 Respondent's reasoning is that, because section 273d requires an intentional infliction of injury and appellant's defense was that the injury occurred accidentally, the verdict shows that, if the jury acted on the erroneous instructions, it necessarily rejected appellant's defense and found that he intended to injure the child.   This argument appears to be correct, as far as it goes, but it does not go far enough.   To find appellant guilty on a non-felony-murder theory, it was necessary for the jury to find not only that the injury was not accidental and that it was intentional but also that it was with malice aforethought—i.e., with the intent to kill or with conscious disregard for life.³  (Pen.Code, §§ 187, 188;  People v. Washington (1965) 62 Cal.2d 777, 780, 44 Cal.Rptr. 442, 402 P.2d 130.)

 The error was clearly prejudicial because it relieved the jury of the necessity of finding malice aforethought and thus deprived appellant of his constitutional right to have the jury find one of the elements of the crime of murder.  (People v. Henderson (1977) 19 Cal.3d 86, 96, 137 Cal.Rptr. 1, 560 P.2d 1180;  People v. Wilson (1969) 1 Cal.3d 431, 438, 82 Cal.Rptr. 494, 462 P.2d 22;  People v. Phillips, supra, 64 Cal.2d 574, 584–585, 51 Cal.Rptr. 225, 414 P.2d 353.)   It does not matter that there was sufficient evidence of murder on a non-felony-murder theory.   Where the appellate court cannot determine whether the jury based its verdict on an improper felony-murder theory or a proper theory, reversal is required.  (People v. Green (1980) 27 Cal.3d 1, 69, 164 Cal.Rptr. 1, 609 P.2d 468.)

We now address questions which may arise on retrial.

2. Opinion Evidence.

Appellant complains that several witnesses testified to their conclusion that the deceased girl was a victim of the “battered child syndrome.”   The way appellant puts it is, “[t]he testimony is challenged as being inappropriate matter for expert opinion;  it is related to a subject wherein the trier of fact should make the necessary determinations without resort to testimony at so great a level of abstraction.”  Evidence Code section 801, subdivision (a) [expert opinion is limited to an opinion “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”] is cited.

If appellant is trying to say that the expert witnesses were permitted to state a conclusion on an ultimate issue in the case (whether the child was intentionally injured) and thus the “province of the jury” was invaded, this argument has been explicitly rejected.  (People v. Jackson (1971) 18 Cal.App.3d 504, 508, 95 Cal.Rptr. 919.)

 If appellant is arguing that the opinions expressed were not a proper subject of expert opinion, then he is correct as to one aspect of Dr. McNie's testimony.   The doctor testified that appellant's inconsistent statements regarding the cause of the injuries showed the battered child syndrome and, hence, that the girl was battered, not accidentally injured.   That the statements were inconsistent with the medical facts was a proper subject of expert opinion, but the further opinion that the inconsistency showed that the girl was battered was an opinion which was not “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; ․”  (Evid.Code, § 801, subd. (a).)  Lay jurors are just as capable as medical doctors of determining whether a person's equivocations about the cause of an injury indicate that it was intentionally inflicted.  (See People v. McCoy (1944) 25 Cal.2d 177, 185, 153 P.2d 315;  Jorgensen v. Beach ‘n’ Bay Realty, Inc. (1981) 125 Cal.App.3d 155, 165, 177 Cal.Rptr. 882.)   The doctor's opinion amounted to impermissible expert testimony on whether the appellant was telling the truth on a particular occasion.  (See People v. Russel (1968) 69 Cal.2d 187, 196, 70 Cal.Rptr. 210, 443 P.2d 794.)

 The testimony of Judith Bowen, a social worker, was even more objectionable—for the same reason and for an additional reason.   She was allowed to testify that a doctor suspected child abuse because of appellant's statements, that, in her experience, “the battering parent contriv[es] a history to accommodate or explain the injuries that are found,” and that “if you ․ confront that parent with additional injuries ․ that parent then tr [ies] to come up with more factual history to cover the additional injury.”   She also testified to certain “risk factors” which may have existed in this case and are correlated with child abuse:  “stress in the home,” premature birth, early medical problems, absence of a parent, slowness in toilet training, parent's perception that the child is “different,” and a passive/aggressive relationship between the parents.   The testimony was comparable to a sociologist's testifying that a defendant was probably guilty of burglary because he was a member of a minority group, grew up in a poor neighborhood, dropped out of school, was unemployed, had a relative with a criminal record, bore a tatoo, etc.   The factors testified to by the social worker may be correlated with the occurrence of the battered child syndrome, but the testimony was misleading because it gave no indication of the frequency with which the factors exist but the syndrome does not occur, and it had no tendency in reason to show that this case was one in which the factors exist and the syndrome does occur.   Such pseudo-scientific evidence should be excluded under Evidence Code section 352.  (See People v. Collins (1968) 68 Cal.2d 319, 331–332, 66 Cal.Rptr. 497, 438 P.2d 33.)

3. Similar Offenses.

 Appellant contends that evidence that he beat the deceased child's twin brother was improperly admitted under Evidence Code section 1101.

Respondent shows that the beating of the brother, under similar circumstances, was highly relevant to prove appellant's intent to injure the girl and that she was not injured accidentally.

4. Other Contentions.

Because the judgment must be reversed, it is unnecessary to consider the prejudicial effect of instructing the jury in accordance with the so-called definition of “moral certainty” of former CALJIC No. 22 (rev.), which was held to be erroneous in People v. Brigham (1979) 25 Cal.3d 283, 157 Cal.Rptr. 905, 599 P.2d 100.

Appellant's other contentions of error are without substance.

Reversed and remanded.

FOOTNOTES

1.   Appellant was not charged with a violation of section 273d.   That section 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.”A “traumatic condition” is defined as “a wound or other abnormal bodily condition resulting from the application of some external force.”  (People v. Stewart (1961) 188 Cal.App.2d 88, 91, 10 Cal.Rptr. 217.)

2.   Section 273a provides in relevant part:  “(1) 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, ․ is punishable [etc.].”

3.   It might be argued, although respondent does not, that if the jury acted on the erroneous instruction and found that appellant violated section 273d, it must have found that he acted with conscious disregard for life.   We reject this argument for the same reason that it was rejected in People v. Phillips, supra, 64 Cal.2d 574, 585, 51 Cal.Rptr. 225, 414 P.2d 353:  “In the absence of a finding that defendant subjectively appreciated the peril to which his conduct exposed the girl, we cannot determine that he acted with conscious disregard for life.”

WHITE, Presiding Justice.

FEINBERG and STERN *, JJ., concur.Hearing denied;  MOSK and RICHARDSON, JJ., dissenting.