PEOPLE v. JACKSON (1985)

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.   The appeal is grounded principally upon the contention that the trial court erred in instructing the jury on second degree felony-murder.   We previously disagreed with this contention, and in a published opinion filed January 25, 1984, affirmed the judgment.   Subsequently, the Supreme Court granted a hearing and retransferred the cause to this court for reconsideration in light of its decision in People v. Smith (1984) 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886.¹

Respecting the latter decision, we observe that, while factually close to the case at bench, legally it is distinguishable.  Smith dealt with the propriety of a felony-murder instruction predicated upon violation of Penal Code section 273a, subdivision (1), while we are here concerned with the propriety of such an instruction based upon conduct violative of an entirely different section of that code—Penal Code section 273d.   Cases are of course not authority for propositions not therein decided (People v. Ceballos (1974) 12 Cal.3d 470, 481, 116 Cal.Rptr. 233, 526 P.2d 241), and after careful deliberation—for the reasons herein stated—we do not consider the Smith decision controlling in the present case.   Having noted this, we again address the issues presented by the case at bench.

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 alternately 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.

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 (inflicting cruel or inhuman corporal punishment on a child)—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 first of these contentions—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,” but not for the terms “cruel,” “inhuman,” or “corporal punishment.”   We look elsewhere for elucidation of these terms.

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.”   In contending that Penal Code section 273d can be violated by conduct which is not life-endangering, it is evidently in the latter-defined range of severity that appellant would have us place his conduct.   To do so, however, is in our opinion to ignore the statutorily provided qualifiers “cruel” and “inhuman.”

Webster's, supra, defines “cruel” as “1 (a):  disposed to inflict pain esp. in a wanton, insensate or vindictive manner ․ (b):  rapacious, ravening:  given to killing and mangling or to tormenting prey ․;  2 (a):  ․ causing or conducive to injury, grief, or pain ․;  3:  severe, distressing:  extremely painful․”  The same authority defines “inhuman” as “1 (a):  lacking the qualities of mercy, pity, kindness, or tenderness;  (b):  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.   It is for such reasons that we believe conduct violative of Penal Code section 273d is abstractly and by definition inherently dangerous and will support a second degree felony-murder instruction.

Appellant's alternative argument relies upon the rules laid down in 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.   He 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.   It was to this “merger” issue that the Supreme Court commanded our attention in its re-transfer order, citing People v. Smith (1984) 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886.

In Smith, our high court reaffirmed its holding in People v. Ireland that “a second-degree felony murder instruction may not properly be given when it is 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.”  (People v. Smith, supra, at pp. 803–804, 201 Cal.Rptr. 311, 678 P.2d 886, quoting People v. Ireland, supra, 70 Cal.2d at p. 539, 75 Cal.Rptr. 188, 450 P.2d 580.)   The court further observed:  “In People v. Burton, supra, we refined the Ireland rule by adding the caveat that the felony-murder doctrine may nevertheless apply if the underlying offense was committed with an “independent felonious purpose.”   (6 Cal.3d at p. 387, 99 Cal.Rptr. 1, 491 P.2d 793.)   Even if the felony was included within the facts of the homicide and was integral thereto, a further inquiry is required to determine if the homicide resulted “from conduct for an independent felonious purpose” as opposed to a “single course of conduct with a single purpose” (ibid.).  (People v. Smith, supra, 35 Cal.3d at pp. 805–806, 201 Cal.Rptr. 311, 678 P.2d 886.)

 To summarize the foregoing:  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, 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 of 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, in our opinion a murder conviction predicated upon a violation of Penal Code section 273d under the circumstances here presented is entirely consistent with and well serves 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.)   Thus, conduct violative of Penal Code section 273d is always inherently dangerous, but it need not, of course, be in every instance fatal.   Here the independent purpose of the underlying felony was to coerce the child into obeying his father's will.   There is, of course, nothing criminal in such purpose, and had appellant admininistered light corporal punishment or some other rational discipline appropriate to the circumstances, Vic, Jr., would still be alive.   Only the inherently dangerous and entirely disproportionate means chosen to effectuate appellant's punitive purpose rendered his conduct felonious.   Strangulation and the first blow to the head with a truncheon constituted felony child abuse as defined in Penal Code section 273d.   Subsequent, lethal blows in our opinion rendered appellant culpable of murder by operation of the felony-murder rule;  for it was precisely these subsequent blows that the rule was designed to deter.²

We find support for this analysis in our high court's opinion in People v. Mattison (1971) 4 Cal.3d 177, 93 Cal.Rptr. 185, 481 P.2d 193, a case decided within the Ireland-Burton contextual framework and one we find especially analogous to the instant case.   In Mattison defendant was convicted of murder in the second degree in a prosecution arising out of a death from drinking poisonous methyl alcohol furnished by defendant, a technician in the medical laboratory of the prison in which both he and the victim were incarcerated.   After noting that the purpose of the felony-murder rule is to deter felons from killing—negligently or accidentally—by holding them strictly responsible for certain killings they advance or commit, the court concluded that:

“The instant case, however, presents an entirely different situation from the one that confronted us in Ireland.   The facts before us are very similar to People v. Taylor (1970) 11 Cal.App.3d 57 [89 Cal.Rptr. 697], in which the victim died as a result of an overdose of heroin which had been furnished to her by the defendant.   The defendant was convicted of second degree murder and the question presented was whether application of the felony-murder rule constituted error under Ireland.   After a thorough review of cases from other jurisdictions whose underlying reasoning was adopted by Ireland, the Taylor court concluded that application of the felony-murder rule was proper because the underlying felony was committed with a ‘collateral and independent felonious design.’  (People v. Taylor, supra, 11 Cal.App.3d 57, 63 [89 Cal.Rptr. 697].)  In other words the felony was not done with the intent to commit injury which would cause death.   Giving a felony-murder instruction in such a situation serves rather than subverts the purpose of the rule.  ‘While the felony-murder rule can hardly be much of a deterrent to a defendant who has decided to assault his victim with a deadly weapon, it seems obvious that in the situation presented in the case at bar, it does serve a rational purpose:  knowledge that the death of a person to whom heroin is furnished may result in a conviction for murder should have some effect on the defendant's readiness to do the furnishing.’  (People v. Taylor, supra, 11 Cal.App.3d 57, 63 [89 Cal.Rptr. 697].)  The instant case is virtually indistinguishable from Taylor, and we hold that it was proper to instruct the jury on second degree felony murder.”  (Mattison, at pp. 185–186, 93 Cal.Rptr. 185, 481 P.2d 193;  emphasis added.)

 Just so, on the facts before us, appellant had no intention of killing Vic, Jr., when he began to chastise him;  he was bent upon discipline and not murder.   The death of the child was not intended but accidental—the result of his father's unbridled fury.   It is precisely such an unintended but eminently foreseeable death that the felony-murder rule was fashioned to prevent.   We therefore conclude that because the act comprising a violation of section 273d was not an integral part of the homicide at issue, but had a separate felonious purpose, it did not merge into the homicide and was therefore properly used as a basis for invocation of the felony-murder rule.   We hence find that the jury was properly instructed as to second degree felony murder.³

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 352.⁴

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 “[i]n 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 947.)

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.  (People v. Wein (1977) 69 Cal.App.3d 79, 90, 137 Cal.Rptr. 814;  People v. Barrow (1976) 60 Cal.App.3d 984, 995, 131 Cal.Rptr. 913;  overruled on other grounds People v. Jimenez (1978) 21 Cal.3d 595, 608, 147 Cal.Rptr. 172, 580 P.2d 672.)

 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, overruled on other grounds in People v. Daniels (1969) 71 Cal.2d 1119, 1140, 80 Cal.Rptr. 897, 459 P.2d 225.)   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 therefrom․” ’ ”  (People v. Beivelman (1968) 70 Cal.2d 60, 76–77, 73 Cal.Rptr. 521, 447 P.2d 913.)

 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, were in any event not so prejudicial as to warrant reversal.   And 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.

I concur with the opinion authored by my colleague, Justice Newsom, for the reasons therein stated.   But assuming, arguendo, Smith error, I believe that no reasonable jury, on the uncontroverted facts of this case, could conclude other than that defendant Jackson acted with malice (see Pen.Code, § 188), and that his criminal act was inherently dangerous to human life.   (See People v. Satchell, 6 Cal.3d 28, 36, 98 Cal.Rptr. 33, 489 P.2d 1361.)   It follows that his crime was murder, second degree.   In such an event the Smith error would be harmless under the state's Constitution, article VI, section 13, providing:  “No judgment shall be set aside ․ on the ground of misdirection of the jury, ․ unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”  (My emphasis.)

This cause was ordered retransferred in light of People v. Smith (1984) 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886, a case dealing with an unlawful homicide in connection with convictions of charged violations of Penal Code sections 273a, subdivision (1) (felony child abuse) and 273d (child beating).   The second degree murder conviction potentially grounded on a felony-murder theory was reversed under compulsion of the merger doctrine reflected in the Ireland, Wilson and Burton trilogy because the purpose of the child abuse was the “very assault which resulted in death” and which could not be “bootstrapped into felony murder merely because the victim was a child rather than an adult, ․”  (Id., 35 Cal.3d at pp. 806–807, 201 Cal.Rptr. 311, 678 P.2d 886).¹  The court ultimately concluded that the limited deterrence function of the felony-murder rule would not be served where the willful infliction of unjustifiable physical pain on a child is shown.   (Id., at pp. 806–807, 201 Cal.Rptr. 311, 678 P.2d 886.)   In doing so, it cited with approval an Oklahoma decision finding merger in a child beating -homicide case and underscored the absence of an independent felony design under circumstances where the willful felonious assault was likely to produce great bodily harm or death, disapproving inconsistent reasoning in our earlier Northrop decision involving Penal Code section 273a, subdivision (1).   (People v. Smith, supra, 35 Cal.3d at pp. 807–808, 201 Cal.Rptr. 311, 678 P.2d 886.)

Herein, defendant was charged with murder and use of a deadly weapon but not with child abuse or child beating.   The jury rendered a second degree murder conviction under felony-murder instructions which included the uncharged child beating offense only, defined therein as an inherently dangerous felony.   The evidentiary record unmistakably demonstrates an aggravated criminal assault and battery perpetrated with use of a deadly weapon, as found by the jury, which resulted in the death of the three-year-old child.

Thus, although the record arguably would support a conviction of both child abuse and child beating had they been expressly charged, the only substantive distinction between this case and Smith is found in the charging circumstances rather than in any meaningful factual differences between the felonious acts as proved.   Obedient to the strictures of stare decisis, we should similarly conclude that prejudicial error occurred in giving the felony-murder instruction.   Accordingly, I would reverse the conviction of second degree murder.

FOOTNOTES

1.   In People v. Smith, supra, defendant was convicted by a jury of second degree murder (Pen.Code, § 187), felony child abuse (Pen.Code, § 273a, subd. (1)), and infliction of cruel or inhuman punishment upon a child (Pen.Code, § 273d), arising out of the death of her two-year-old daughter.   The trial court gave a felony-murder instruction informing the jury that an unlawful killing is second degree murder if it occurs during the commission of a felony inherently dangerous to human life, and that felony child abuse was such a crime.   Our high court reversed the judgment insofar as it convicted defendant of second degree murder.   The court held that, because the acts constituting child abuse as defined in Penal Code section 273a, subdivision (1) were an integral part of the homicide, the offense merged into the homicide and could not serve as the underlying felony to support a conviction of second degree murder on a felony-murder theory.

2.   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.Further, we are aware that our position in this regard may be viewed as anomalous in that, under our analysis, the existence of Penal Code section 273d would in some circumstances allow activity which under Ireland might constitute only manslaughter to be punishable as murder because the victim was a child rather than an adult.   We do not, however, perceive any illogic in our position as applied to the facts of the instant case.   Rather, that a rational and well-ordered society through its judicial system should seek to protect its most fragile and vulnerable members by providing, as a deterrent to deaths occurring in the course of “cruel or inhuman” attacks against them, a harsher penalty for killings resulting therefrom seems to us to be entirely congruent with fundamental principles of elementary justice and sound legislative policy.

3.   The independent felonious intent we describe here (namely the intent to chastise or punish, in order to compel obedience, by cruel and inhuman means) strikes us as certainly as viable as that present in Mattison, supra.   Just as the felonious intent to furnish poison—even if it was furnished for financial gain, as recently discovered in People v. Smith, supra, 35 Cal.3d at p. 808, 201 Cal.Rptr. 311, 678 P.2d 886—is not necessarily the intent to kill, an intent to punish is not the equivalent of a homicidal intent.

4.   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.”

5.   Concerning which uninformed comment promises to be eternal.

1.   The court expressly refrained from deciding whether felony child abuse constitutes an inherently dangerous felony within the second degree felony-murder rule.  (Id., at p. 808, 201 Cal.Rptr. 311, 678 P.2d 886.)   Quite obviously, the lead opinion exhibits no similar restraint in fashioning a highly artificial definition of child beating in order to elevate that crime to the required level.

NEWSOM, Associate Justice.