PEOPLE v. LOPEZ (1984)

Martha Lopez appeals from a judgment of conviction entered upon jury verdicts finding her guilty of second degree murder (Pen.Code, §§ 187, 189) ¹ and felony child abuse (§ 273a, subd. (1)).

The question presented on this remand ordered unanimously by the California Supreme Court is whether this case falls within the holding of People v. Smith (1984) 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886, i.e., that felony child abuse of the “assaultive variety” cannot support a second degree murder conviction premised on a felony murder theory.  (Id., at pp. 806–809, 201 Cal.Rptr. 311, 678 P.2d 886.)   We find that it does, and accordingly, reverse the judgment insofar as it convicts defendant of second degree murder.

I. The Evidence

At the age of 17, defendant gave birth to a baby girl, Yesenia.   Before and after the birth of the baby, defendant lived with or near her boyfriend, Armando.   Slightly more than four months after the birth, the child died.   The circumstances leading to the child's death may be summarized as follows.

From April 16 until July 7, 1980, defendant and Yesenia stayed at the home of Mrs. Victoria Kerley.   Shortly after moving in, defendant began leaving the baby every night in the Kerley home while she visited Armando.   After about a week, Mrs. Kerley told defendant that the baby was defendant's responsibility.   Thereafter defendant took the baby with her during her nightly dates with Armando.

In early July of 1980, Mrs. Kerley noticed that Yesenia would cry out loudly when she was touched near her rib cage.   She told defendant to take the baby to the doctor to have x-rays taken.   A day or so later, defendant moved from Mrs. Kerley's house to the home of a cousin, Mrs. Ivonne Lopez.

During the time that she lived with Mrs. Lopez, defendant continued to go out with Armando at night;  she always took Yesenia with her.   Mrs. Lopez once observed what appeared to be fresh blood on the baby's mouth and noticed that her lip was a little swollen.   Defendant explained that the baby got hurt with a pacifier.

About a week before the child's death, defendant told Mrs. Lopez something was wrong with the baby's ribs.   Mrs. Lopez observed what appeared to be a bone about the size of a dime sticking out of the child's skin.   Defendant insisted she had been assured by a doctor that the baby's condition was normal.   Defendant did not mention any cause of the child's condition.

On Thursday July 24th, defendant told Mrs. Kerley that Yesenia had a large bump on her head.   Mrs. Kerley told defendant to take the baby to the doctor.   Defendant refused, insisting she was afraid the child would be taken from her.

On Monday morning, July 28, 1980, about 6 a.m., Mrs. Lopez heard the baby cry.   About 8 a.m. she learned that the baby had died.

The autopsy, performed by Dr. Peter Benson, revealed no visible injuries on the outside of the child's body.   A condition of peritonitis was found in her abdomen caused by a one-inch by one-inch tear in the stomach.   In the chest area, Dr. Benson observed a hemorrhage in the soft tissue over the ribs on the left side.   There were multiple fractures of the ribs;  the ribs were callused, indicating that previous fractures had healed.   A total of 11 ribs on both sides showed indications of recent fractures.   Most of the child's ribs had at least two fractures.   Dr. Benson estimated that the fractures ranged in age from between one and two months.   Another physician, Dr. John Wilson, believed they ranged from two to four weeks.   In addition, the baby's thymus gland showed traumatic injury.   The baby's mesentery, the membrane supporting the intestinal tract, was bruised and had traumatic hemorrhages.   There was a hemorrhage on the surface of the adrenal gland, and evidence of infection in the left kidney.   Finally, the baby's skull was fractured, and there was hemorrhaging in the scalp and at the base of the brain.   The cause of death was peritonitis caused by the ruptured stomach;  the rib fractures contributed to the death by weakening the condition of the child's body.   When asked to give an opinion, each of the examining physicians concluded that Yesenia was a victim of the so-called “battered child syndrome.”

Defendant was interviewed by San Mateo Police Detective John Stangl on July 28, the day the child died, as well as on July 30, August 5, and August 7.   The latter three conversations were tape-recorded.   In the July 30 interview, defendant described accidentally falling on the child when she was two or three months old.   She said that she had “squished the baby.”   Defendant believed this was the event when the baby's ribs were broken.   Defendant also described on occasion when Yesenia had fallen down in the car seat.   She believed the fall had caused a bump, but that when she took the child to the hospital the doctor said it was “only gas.”   Finally defendant admitted that once she had thrown the baby seven or eight feet into the air, but claimed that she caught her softly.

In the August 5 interview, defendant told of a second time in mid-July when the baby fell in the car and described the baby as having a “funny look” afterwards.   She insisted there were only a few times she had left the baby alone with Armando.

On her own initiative, defendant came to the police department on August 7 to speak to Detective Stangl.   She told the officer that some of her prior statements were not true.   Specifically, she said the baby had never fallen while defendant was in the car, but that she had fallen on the Thursday before her death.   Defendant described the baby as “lying unconscious” with her eyes just “staring up” when she found her.   Armando told defendant that the baby had hit her head, causing a bump which diminished after a couple of minutes.   Defendant said that when Armando tried to pick the baby up, the baby got stuck in the car seat, and that this accounted for the child's broken ribs.   She also recalled a time when Armando threw the baby up in the air, and in falling the baby hit her ribs on Armando's legs.   Apparently, on still another occasion, Armando roughly caught the baby against her ribs.   Defendant insisted that Armando did not intend to hurt the baby.

In her testimony at trial, defendant repeated the statement about her falling on the baby while walking.   She noticed then that the baby's head was injured and took her to her cousin's sister-in-law.

Defendant said she saw Armando hit the baby, but did not think that his throwing the baby in the air hurt the child.   Nor did she believe the baby was hurt when Armando once caught her under his arm, or on another occasion when the baby's ribs hit his knee.   She did not take the baby to the hospital to see if her ribs were broken in this incident.   The time she left the baby alone with Armando in the car, Armando told her that the baby pushed herself off the car seat onto the steering wheel.   Although she thought the baby had fainted that day, defendant did not take her to the hospital because she feared that the baby would be taken away from her.   She also once remarked that she did not want to take the child to a private doctor because they would ask too many questions.

On June 27, after leaving the child with Armando, defendant noticed that the baby was crying and that her stomach was swollen.   However, when she took the child to the emergency room, she did not tell the examining physician that the baby had been unconscious or that she had fallen.

II. Review

When instructing the jury on second degree felony murder, the trial court told the jury in relevant part that only certain types of felony child abuse could be used.   Specifically the jurors were told that “The defendant can only be convicted of felony murder if under circumstances or conditions likely to produce great bodily harm or death, the defendant had the specific intent to and did either:  [¶] 1.   permit any child to suffer unjustifiable physical pain;  [¶] 2.   permit the person or health of such child to be injured;  or [¶] 3.   permit the child to be placed in such circumstances or conditions that its person or health is endangered.”  (Emphasis added.)

Our legal analysis begins with the decision of People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580, where the California Supreme Court held the second degree felony murder rule inapplicable to 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.”  (Id., at p. 539, 75 Cal.Rptr. 188, 450 P.2d 580, emphasis in original.)   Later the court ruled that the second degree felony murder rule may nevertheless apply if the underlying offense was committed with an “independent felonious purpose.”  (People v. Burton (1971) 6 Cal.3d 375, 387, 99 Cal.Rptr. 1, 491 P.2d 793.)

Recently the high court was faced with the application of those rules in the context of felony child abuse.  (§ 273a, subd. (1).) ²  In People v. Smith, supra, 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886, the evidence showed that on the day of her death, the defendant's daughter had suffered a severe head injury as well as injuries consistent with compressive force caused by numerous blows to the head by hands, fists, and a paddle.   The evidence conflicted as to who inflicted the fatal blows.   The defendant admitted that she had spanked the child, but denied that she had any active involvement in the beating which led to the child's death.   She claimed that her live-in friend Foster had been solely responsible for that.   The defendant's other daughter testified that defendant and Foster had jointly beaten the child.  (Id., at pp. 801–802, 201 Cal.Rptr. 311, 678 P.2d 886.)

Noting that Ireland and its progeny bar the application of the felony murder rule where the purpose of the conduct was the very assault which resulted in death, the court concluded, “In cases in which the violation of section 273a, subdivision (1), is a direct assault on a child that results in death (i.e., causing or permitting a child to suffer or inflicting thereon unjustifiable physical pain), it is plain that the purpose of the child abuse was the ‘very assault which resulted in death.’   It would be wholly illogical to allow this kind of assaultive child abuse to be bootstrapped into felony murder merely because the victim was a child rather than an adult, as in Ireland.”  (People v. Smith, supra, at p. 806, 201 Cal.Rptr. 311, 678 P.2d 886, emphasis added.)

 Thus the holding of Smith is clear:  where the violation of section 273a, subdivision (1), results from either causing or permitting a child to suffer unjustifiable physical pain, that type of felony child abuse (characterized by our high court as being of the “assaultive variety”) cannot serve as the basis for second degree felony murder.  (At pp. 806–808, 201 Cal.Rptr. 311, 678 P.2d 886.)

 In the instant case, as in Smith, the death of the child was directly caused by an assault that in turn was the basis of the charge of felony child abuse.   It makes no difference that the person doing the assaulting was probably defendant's boyfriend Armando and not defendant herself, for as the Smith court noted, her guilt is premised on permitting that assault to occur.

Nor is it significant that here, unlike Smith, the child's death was not the product of a contemporaneous beating but was the product of numerous assaults inflicted upon her during the entire span of her tragic and tragically short life.   That this set of facts cannot support imposition of the second degree felony murder rule for such inaction of defendant jumps out from the manner in which the high court in Smith disapproved of the decision in People v. Northrop (1982) 132 Cal.App.3d 1027, 182 Cal.Rptr. 197.

In Northrop the evidence showed that although the child-victim often appeared bruised, scarred and ill, none of the injuries was ever treated.   The cause of death was determined to be organ and bone injuries resulting from blunt force.   A prosecution expert opined that the child's injuries were consistent with those associated with the battered child syndrome.   The defendant mother testified that she neither beat the child nor knew of the child's injuries.   Her testimony suggested that her husband was the actual abuser of the child.  (Id., 132 Cal.App.3d at pp. 1032–1033, 182 Cal.Rptr. 197.)   The jury was given an instruction identical to that given the jury here.³  The Court of Appeal found the felony murder rule applicable reasoning that “Felony child abuse may be committed without either an intent to kill or the infliction of great bodily harm, and thus has a felonious design independent of the resulting homicide.”  (Id., at p. 1036, 182 Cal.Rptr. 197.)

That rationale, the basis for the Court of Appeal's decision in Northrop, was specifically disapproved in strikingly strong language by the Supreme Court.   Our high court explained that since by its very definition felony child abuse occurs only under circumstances or conditions likely to produce great bodily harm or death “[i]t is untenable to assert that there is an independent design when the crime of felony child abuse of the assaultive variety is willfully committed under such circumstances.”  (People v. Smith, supra, 35 Cal.3d at pp. 807–808, 201 Cal.Rptr. 311, 678 P.2d 886, emphasis added.)

For these reasons we believe the instant case is squarely governed by Smith, and under the doctrine of stare decisis (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), we are compelled to find that it was error to instruct the jury on second degree felony murder premised on the underlying felony of child abuse.   Since it is impossible to demonstrate that no juror relied on the erroneous instruction as the sole basis for finding defendant guilty of second degree murder, the error must be deemed prejudicial.  (People v. Smith, supra, 35 Cal.3d at p. 808, 201 Cal.Rptr. 311, 678 P.2d 886.) ⁴

The judgment is reversed insofar as it convicts defendant of second degree murder;  in all other respects, the judgment is affirmed.

I respectfully dissent.   In my view, my colleagues' reliance on People v. Smith (1984) 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886, as the basis to reverse appellant's second degree murder conviction is misplaced.  Smith, by its express holding, was referring only to felony child abuse of the assaultive variety when it concluded that the acts constituting the child abuse were an integral part of the homicide and therefore merged in the homicide.   Moreover, Smith, at page 808, 201 Cal.Rptr. 311, 678 P.2d 886, distinguished the facts in Smith with the case of People v. Shockley (1978) 79 Cal.App.3d 669, 145 Cal.Rptr. 200, where the felony child abuse was of the nonassaultive variety.   As Smith pointed out at footnote 7, “Because of this factual distinction we need not address the question whether the merger doctrine applies when the defendant is guilty of felony child abuse of the nonassaultive variety, e.g., by extreme neglect—as in Shockley—or by failure to intervene when a child in his care or custody is placed in a life-endangering situation.”  (People v. Smith, supra, 35 Cal.3d at p. 808, fn. 7, 201 Cal.Rptr. 311, 678 P.2d 886.)   From a review of the facts of this case, and most importantly, by looking at the court's instructions to the jury,¹ it is clear that this case did not rest on wilful infliction of great bodily injury upon the child, but rather on appellant's failure to take good care of her baby and take the necessary steps to preserve the health and well being of the child.   In brief, the primary charges brought against appellant and proved at the trial were wilfully permitting the child to be injured or wilfully placing the child in such a situation that she was endangered.   These charges describe child abuse of the nonassaultive variety.   Moreover, in light of the court's instructions, ante, which do not even describe child abuse of the assaultive kind with which Smith is concerned, the jury could only have found appellant to have committed felonious child abuse of the nonassaultive variety.

The majority has placed great emphasis on the use of the word “permit” in the instruction which the court gave the jurors in this case.   Yet the phrase which is so heavily relied upon by the majority is nothing more than a parenthetical reference in the Smith opinion.   What Smith said was “In cases in which the violation of section 273a, subdivision (a), is a direct assault on a child that results in death (i.e., causing or permitting a child to suffer or inflicting thereon unjustifiable physical pain), it is plain that the purpose of the child abuse was the ‘very assault which resulted in death.’ ”  (People v. Smith, supra, at p. 806, 201 Cal.Rptr. 311, 678 P.2d 886, emphasis added.)   Clearly, the court had to be referring to assaultive conduct, rather than passive.   Most significantly, the instruction set forth at the beginning of the majority opinion, and which the majority finds requires reversal here, was identical to the instruction given in People v. Northrop (1982) 132 Cal.App.3d 1027, 182 Cal.Rptr. 197, which instruction the Smith court specifically found was compatible with its decision.  (People v. Smith, supra, 35 Cal.3d at p. 807, 201 Cal.Rptr. 311, 678 P.2d 886.)

Here, the felony child abuse had an “independent felonious purpose.”   As the court stated in Shockley:  “The act of leaving the child in a position that endangers its person or health is clearly collateral and independent of any design to cause death.   The act may be based on indifference or neglect or simply failure to take time to properly look after the child.”  (People v. Shockley, supra, 79 Cal.App.3d at p. 677, 145 Cal.Rptr. 200.)   In my view, where, as here, the court gave the jury instructions dealing only with felony child abuse of the nonassaultive variety, and the facts warranted such instructions, we do not have a Smith case at all.   I believe the facts of this case are covered by footnote 7 of Smith and the Shockley rationale, thereby requiring an affirmance rather than reversal.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   Section 273a, subdivision (1) 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 having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for 2, 3 or 4 years.”

3.   The Northrop jurors were instructed as follows:  “ ‘The unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs as a direct causal result of the commission of or attempt to commit a felony inherently dangerous to human life, namely, the crime of child abuse or child endangering, and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the second degree.  [¶]  The specific intent to commit child abuse or child endangering and the commission or attempt to commit such crime must be proved beyond a reasonable doubt.  [¶] Only certain types of felony child abuse or child endangering may be used in applying the felony-murder rule just defined for you.   The defendant can only be convicted of felony-murder if under circumstances or conditions likely to produce great bodily harm or death, the Defendant had the specific intent to and did either:  [¶] 1.   Permit any child to suffer an unjustifiable physical pain;  [¶] 2.   Permit the person or health of such child to be injured;  or [¶] 3.   Permit the child to be placed in such circumstances or conditions that its person or health is endangered.’ ”  (Id., at p. 1033, fn. 3, 182 Cal.Rptr. 197, emphasis added.)

4.   Consequently, we need not reach defendant's claim that felony child abuse is not a felony inherently dangerous to human life within the meaning of the second degree felony murder or other asserted errors pertaining to the murder count.

1.   The instructions in question provide as follows:  “The unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs as a direct causal result of the commission of or attempt to commit a felony inherently dangerous to human life, namely, the crime of child abuse or child endangering, and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the second degree.  [¶] The specific intent to commit child abuse or child endangering and the commission or attempt to commit such crime must be proved beyond a reasonable doubt.  [¶] Only certain types of felony child abuse or child endangering may be used in applying the felony-murder rule just defined for you.   The Defendant can only be convicted of felony-murder if under circumstances or conditions likely to produce great bodily harm or death, the Defendant had the specific intent to and did either:  [¶] 1.Permit any child to suffer an injustifiable physical pain;  [¶] 2.   Permit the person or health of such child to be injured;  or [¶] 3.   Permit the child to be placed in such circumstances or conditions that its person or health is endangered.”  (Emphasis added.)“In the crime (offense) charged in Count II of the Information, namely child abuse or child endangering, there must exist a union or joint operation of act or conduct and either criminal negligence or a certain willfulness in the mind of the defendant and unless such criminal negligence or willfulness exists the crime is not committed.  [¶] Criminal negligence means that the defendant's act or 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 any ordinary prudent person under the circumstances as to be incompatible with a proper regard for human life.   Whether there is criminal negligence must be determined from the act or conduct itself and not from the resultant harm.  [¶] A person acts wilfully when his acts or conduct are purposeful or with knowledge of the consequences or where great bodily harm or death is reasonably foreseeable.”

POCHÉ, Acting Presiding Justice.

TRAVIS, J.**, concurs.